IN THE SUPREME COURT OF CALIFORNIA
Plaintiff and Respondent,
Ct.App. 2/5 B222615
Los Angeles County
Defendant and Appellant.
Super. Ct. No. BA316526
Defendant was charged with sexually molesting two victims. A jury
convicted defendant of some counts involving one victim while deadlocking on all
counts involving the other victim. Nevertheless, the jury returned a true finding
on a ―One Strike‖ allegation that defendant had committed offenses against
multiple victims. (Pen. Code, § 667.61, subds. (b), (e)(4); all further statutory
references are to the Penal Code.) Believing the jury‘s true finding was made in
error, the trial court instructed the jury on the law and ordered further
deliberations. When the jury quickly returned, the trial court did not ask for or
receive a verdict from the jury. Believing the jury had again erred, this time by
making a not true finding, the court gave a lengthy comment with additional
instructions and again ordered further deliberations. The jury then returned a third
time with a blank verdict form and indicated it had deadlocked on the multiple
victim allegation. The trial court declared a mistrial, and defendant was retried. A
second jury convicted defendant of counts involving the other victim and found
true the multiple victim allegation. The issue presented is whether defendant
could be properly retried on the multiple victim allegation.
Numerous courts have found improper a trial court‘s good faith inquiries
into apparently inconsistent verdicts. In the present case, the trial court tried to
steer the first jury toward the ―correct‖ outcome on the multiple victim allegation.
In so doing, the trial court departed from the procedures carefully prescribed by
the Legislature for receiving and recording a jury‘s verdict. However, because the
first jury had no authority to decide or even to consider the multiple victim
allegation in the circumstances here, the jury could not have returned any valid
verdict on that allegation. Thus, retrial on the multiple victim allegation was not
barred by double jeopardy.
An information charged defendant with committing various sex offenses
against two minor victims, J.R. and Z.C., with nine counts involving Z.C. and four
counts involving J.R. The information also alleged, pursuant to the One Strike
law, that defendant ―in the present case committed [a specified offense] against
more than one victim.‖ (See § 667.61, subds. (b), (e)(4).) Z.C. was defendant‘s
biological daughter, and J.R. was the daughter of defendant‘s wife. They all lived
in the same household at the time of the alleged offenses. There was no allegation
in the information or any evidence at trial that defendant committed sex offenses
against anyone other than Z.C. and J.R.
The trial court instructed the jury on the One Strike allegation as follows:
―If you find the defendant guilty of two or more sex offenses as charged in Counts
1, 2, 6, 7, 8, 9, 10, 11, 12 and 13, you must then decide whether the People have
proved the additional allegation that those crimes were committed against more
than one victim.‖ The jury deliberated for about a day. It then informed the trial
court that it had reached a verdict on three counts but was deadlocked on the
remaining counts. The trial court brought the jury into the courtroom, and the
foreperson, Juror No. 8, said the jury had reached a verdict on counts 10, 11, and
12, all of which involved J.R. After inquiring about the numerical split of the
jurors on the 10 remaining counts, the trial court polled the jury, and each juror
agreed that further deliberations would not assist them. The trial court briefly
discussed the matter with counsel and then decided it would receive the jury‘s
verdicts as to the three counts involving J.R. and accept that the jury was
deadlocked on the remaining counts.
After receiving the verdict forms, the trial court called counsel to sidebar
and informed them that the jury had convicted defendant on counts 10, 11, and 12,
but had found true the One Strike allegation that defendant committed offenses
against more than one victim. Because the three counts on which the jury
convicted defendant involved only a single victim, J.R., the trial court questioned
whether the jury could find the multiple victim allegation true and decided to
inquire whether ―this is what they want to do.‖ The following transpired:
―The Court: Juror Number 8, I have a question. Based upon your verdicts
that I‘ve taken a look at, as to Counts 10, 11, and 12, you also signed a true finding
on the special allegation, which calls for the offenses to be committed against
more than one victim. Is that what you wanted to do?
―Juror No. 8: No, sir. I thought it was one or more counts.
―The Court: No, it has to be against one or more victims. With that in
mind, what I am going to do, I am going to hand this form back to you. I‘m going
to ask the jury to go back in, and if you did not mean to find that as true, because
I‘ve just explained it to you, to make sure that that reflects your verdict. Once
you‘re done, you are done with that, come back out.
―If it does, that‘s fine. You have to go back in the jury room. . . . Why
don‘t you go ahead back in at this point. I think there may have been a
The jury went back to the deliberation room and returned in five minutes.
At that point, the trial court again called counsel to sidebar and said, ―I think I can
guess what they have done. They have gone in; they signed it ‗not true finding.‘
The problem is that‘s not what they should have done. . . . [¶] It will be double
jeopardy. Otherwise, the truth is if they are hung, the Court should not take any
verdict on that Count because it‘s inappropriate.‖ Defense counsel said, ―Do you
want to look and see what they did first?‖ The court said, ―I think what it is, since
they are hung, we probably should not enter a finding on that at this point.‖ The
court then addressed the jury as follows:
―The Court: Okay. Ladies and gentlemen, I have given this some thought.
Since you are unable to arrive at a decision on some of the counts, it is my belief
that you should not be making a finding on that allegation unless two different
victims were named.
―Now, we know what the verdicts are. You signed them, and I have read
them, and counsel is aware of it. It appears to me the appropriate thing to do is —
as with the other charges, is to not enter a finding. Since you are unable to arrive
at a verdict, you can‘t find that to be true unless your belief is unanimously — if
unanimously you believe not just as to the counts that you return but the entire
case that there is not more than one victim.
―I mean, technically, you could come to that finding without arriving at the
other counts. I think legally they could, but you would have to make a finding
unanimously that there is only one victim. If you are not able to do that . . . then
what you should do is simply not fill in that form.
―That‘s correct, if you believe unanimously that that finding is not true, it‘s
not based on the three verdicts that you returned, it‘s based on the entire case
because you are unable to arrive at a verdict on many of the counts. . . .
―Let‘s assume for a moment you had arrived at verdicts, and the verdicts
named more than one victim, that‘s all I could say, you then would have to make a
determination whether this allegation was true or not true. The problem is by
signing that verdict form, you still have counts where you have been unable to
arrive at a verdict, and those verdict forms do name more than one victim.
―So I sort of, I don‘t want to tell you what to do. I am sort of giving you
what I believe the law require[s] — You have three options: You could find it to
be true, which at this point you originally signed, but you have agreed it was a
mistake based upon a misunderstanding. I think I may have misled you when I
sent you back out as to . . . what your options were.
―Do you understand now what your options are? I see a lot of jurors
nodding their heads you don‘t. There is a lot of counts that are still outstanding.
―Juror No. 9: Correct.
―The Court: I think legally there may be some problem, but I don‘t want to
tell you that‘s the law because I am not sure you are making a finding that there is
not more than one victim in this case; yet you haven‘t decided all the counts.
―That finding does not apply just to the three counts that you decided; it
applies to the entire case. If you are unable — I don‘t want to say anything more
on that finding. I think you have to go in and discuss that.
―A lot of jurors are nodding their heads, and I think I know — Juror No. 8,
you seem somewhat confused. That finding applies when the entire case has been
decided, if you can, but what I am saying is there is a lot of counts you did not
―Juror No. 8: Correct. Okay.
―The Court: I want you to go back. I don‘t want to say anymore. When
you‘re done — go in, take as much time as you need. You let us know. . . . You
retire and continue your deliberations. I am not comfortable saying anything more
about it. I think I have explained it to the satisfaction where enough jurors could
perhaps guide the discussion. Then we will just see where you stand.‖
The jury went back to the deliberation room and returned a few minutes
later, at which point the trial court noted ―[f]or the record‖ that ―the jurors
questioned the clerk as to whether they could leave a form blank and could they
have a fresh form which was sent in to them[.]‖ The trial court then polled the
jury, and all jurors agreed they wanted to leave the form blank. The trial court
accepted the guilty verdicts on counts 10, 11, and 12, and declared a mistrial as to
the remaining counts and the multiple victim allegation.
Subsequently, the trial court empanelled a second jury, and that jury
convicted defendant of the nine remaining counts involving Z.C. and found true
the multiple victim allegation. Count 13, which involved J.R., was not retried.
The trial court sentenced defendant on counts 1 and 10 to two consecutive terms of
15 years to life (one term for each victim) pursuant to the One Strike law, plus a
consecutive term of 53 years as to the remaining counts.
On appeal, defendant argued that federal and state double jeopardy
principles barred retrial on the multiple victim allegation. Defendant cited section
1161, which provides in relevant part: ―When there is a verdict of conviction, in
which it appears to the Court that the jury have mistaken the law, the Court may
explain the reason for that opinion and direct the jury to reconsider their verdict,
and if, after the reconsideration, they return the same verdict, it must be entered;
but when there is a verdict of acquittal, the Court cannot require the jury to
reconsider it.‖ According to defendant, the trial court properly asked the first jury
to reconsider its initial true finding on the multiple victim allegation because that
finding appeared inconsistent with the jury‘s other verdicts convicting defendant
of counts involving only a single victim. However, defendant argued, once the
jury returned the second time with a not true finding, as the trial court assumed the
jury had, section 1161 required the trial court to accept that finding.
In her brief in the Court of Appeal, the Attorney General conceded that the
jury had returned the second time with a not true verdict as to the multiple victim
allegation. However, the Attorney General argued that the trial court properly
directed the jury to reconsider this finding as it was inconsistent with the jury‘s
other verdicts. She further argued that because the jury ultimately revealed that its
―true intent‖ was to make no finding, ―no double jeopardy issues were presented
during the retrial.‖
A divided Court of Appeal agreed with defendant. The majority reasoned
that the trial court was obligated under section 1161 to accept the jury‘s second
finding, whether the finding was true or not true, and that double jeopardy
principles barred defendant‘s retrial on the multiple victim allegation. Thus, the
Court of Appeal reversed the second jury‘s true finding on the multiple victim
allegation. Judge Kumar, sitting by assignment, dissented on the ground that ―no
verdict at the first trial was ever taken or recorded on the allegation‖ and that the
first jury could not have made a finding on the multiple victim allegation since it
did not reach a verdict on counts involving Z.C.
We granted the Attorney General‘s petition for review and now reverse.
We begin by addressing the primary question addressed by the parties and
by the Court of Appeal below: whether the trial court departed from the
procedures established by the Legislature for receiving and recording a jury‘s
verdict. We then consider whether the constitutional prohibition on double
jeopardy precluded defendant from being retried on the multiple victim allegation.
As we explain, if the first jury had possessed authority to consider the
enhancement allegation, any verdict it might have returned after its second
deliberation should have been received and recorded by the trial court. But
because the jury had no authority to consider the enhancement allegation after it
deadlocked on the counts involving Z.C., no valid verdict could have been
rendered, and thus double jeopardy did not bar retrial on that allegation.
The Legislature has set forth in prescriptive detail the procedures that trial
courts must follow in receiving a jury verdict. Section 1147 provides that ―[w]hen
the jury have agreed upon their verdict, they must be conducted into court by the
officer having them in charge.‖ Section 1149 provides that ―[w]hen the jury
appear they must be asked by the Court, or Clerk, whether they have agreed upon
their verdict, and if the foreman answers in the affirmative, they must, on being
required, declare the same.‖ Section 1161, as noted, provides that ―[w]hen there is
a verdict of conviction, in which it appears to the Court that the jury have mistaken
the law, the Court may explain the reason for that opinion and direct the jury to
reconsider their verdict, and if, after the reconsideration, they return the same
verdict, it must be entered; but when there is a verdict of acquittal, the Court
cannot require the jury to reconsider it.‖ Section 1163 provides that ―[w]hen a
verdict is rendered, and before it is recorded, the jury may be polled, at the request
of either party, in which case they must be severally asked whether it is their
verdict, and if any one answer in the negative, the jury must be sent out for further
deliberation.‖ And section 1164, subdivision (a) provides that ―[w]hen the verdict
given is receivable by the court, the clerk shall record it in full upon the minutes,
and if requested by any party shall read it to the jury, and inquire of them whether
it is their verdict. If any juror disagrees, the fact shall be entered upon the minutes
and the jury again sent out; but if no disagreement is expressed, the verdict is
complete . . . .‖
These provisions are intended to reduce the likelihood of a trial court
unduly, even if inadvertently, influencing the jury to reach a particular outcome.
(See People v. Guerra (2009) 176 Cal.App.4th 933, 943 (Guerra) [discussing risk
of jury coercion ―[g]iven the formality of the setting of a superior court, over
which the trial judge presides in a commanding display of authority‖]; Bigelow v.
Superior Court (1989) 208 Cal.App.3d 1127, 1134 (Bigelow) [inferring from the
statutory scheme the ―basic principle‖ that ―a trial court may not coerce a jury by
rejecting its verdict [of acquittal] and requesting it to continue deliberating‖].)
The mechanical, prescriptive character of the process for eliciting and receiving a
jury verdict reflects the Legislature‘s judgment that the risk of jury coercion
outweighs the risk of jury error. The procedural requirements set forth in the
statutory scheme apply regardless of whether a reviewing court can discern that
there was no actual coercion of the jury by the trial court. The requirements are
premised on the notion that the risk of coercion is enough to warrant strict
adherence to clear and detailed procedures for receiving a jury verdict.
Here, the trial court departed from these procedures. Had the jury been
properly authorized to return a verdict on the multiple victim allegation, sections
1147 and 1149 spell out what was supposed to happen when the jury completed its
deliberations the second time. As noted, section 1147 says: ―When the jury have
agreed upon their verdict, they must be conducted into court by the officer having
them in charge.‖ And section 1149 says: ―When the jury appear they must be
asked by the Court, or Clerk, whether they have agreed upon their verdict, and if
the foreman answers in the affirmative, they must, on being required, declare the
same.‖ Thus, when the jury returned to the courtroom the second time, proper
adherence to the statutory procedures would have led to the jury‘s declaration of
its verdict. Having directed the jury to reconsider its initial verdict of conviction,
the trial court could not again order further deliberations even if the court again
believed the jury had made a mistake. Section 1161 makes clear that ―if, after the
reconsideration, they return the same verdict, it must be entered; but when there is
a verdict of acquittal, the Court cannot require the jury to reconsider it.‖ (§ 1161.)
At that point in the process, a court may poll the jury at either party‘s request. If
any juror says that the verdict does not reflect his or her true intent, the court may
send the jury back for further deliberations with additional instructions as the court
deems necessary. (§§ 1163, 1164, subd. (a).) But no provision of the statutory
scheme permits a court, after the jury‘s second deliberation, to refuse to hear a
verdict it believes to be erroneous or to direct the jury to deliberate further without
the declaration of one or more jurors that the announced verdict is in error.
We recognize that there is case law permitting a trial court to clarify an
―ambiguous‖ verdict. For example, appellate courts have held that if a jury returns
a verdict finding the defendant guilty and not guilty on the same count, the trial
court may request clarification. (See People v. Keating (1981) 118 Cal.App.3d
172, 182; People v. Mestas (1967) 253 Cal.App.2d 780, 787.) Appellate courts
have also held that a trial court may seek clarification where a jury finds the
defendant guilty of a greater offense but not guilty of a lesser included offense.
(See People v. Caird (1998) 63 Cal.App.4th 578, 589–590; People v. Davis (1988)
202 Cal.App.3d 1009, 1014.) In these cases, asking the jury to clarify its verdict
did not contravene the procedural requirements of the statutory scheme because it
was not possible to understand whether the jury had actually convicted or
acquitted the defendant of the specified counts. Clarification was necessary to
determine whether there was an intelligible verdict at all.
But the trial court in this case did not attempt to clarify an unintelligible
verdict. Whatever finding the jury might have returned following its second set of
deliberations, there is no reason to think the trial court would have been unable to
discern what the jury‘s finding was. A verdict of true or not true on the special
allegation would have been inconsistent with the jury‘s findings on the substantive
counts, but it would not have been unintelligible in the way that a finding of guilt
and acquittal on the same count is.
Mere inconsistency does not provide a valid reason for courts to reject a
jury verdict. As the high court explained in United States v. Powell (1984) 469
U.S. 57 (Powell): ―[A]n individualized assessment of the reason for the
inconsistency would be based either on pure speculation, or would require
inquiries into the jury‘s deliberations that courts generally will not undertake. . . .
But with few exceptions, [citations], once the jury has heard the evidence and the
case has been submitted, the litigants must accept the jury‘s collective judgment.
Courts have always resisted inquiring into a jury‘s thought processes, [citation];
through this deference the jury brings to the criminal process, in addition to the
collective judgment of the community, an element of needed finality.‖ (Id. at
pp. 66–67.) For this reason, our courts have consistently held that ―[a]s a general
rule, inherently inconsistent verdicts are allowed to stand.‖ (People v. Avila
(2006) 38 Cal.4th 491, 600; see id. at pp. 600–601 [discussing Powell with
approval]; accord Bigelow, supra, 208 Cal.App.3d at p. 1136; Guerra, supra, 176
Cal.App.4th at p. 944; People v. Espiritu (2011) 199 Cal.App.4th 718, 727.)
Thus, apart from the limited circumstance specified in section 1161 —
where ―it appears to the Court that the jury have mistaken the law‖ in initially
rendering ―a verdict of conviction‖ — a trial court may not decline to accept a jury
verdict, or refuse to hear the verdict, simply because it is inconsistent with another
verdict rendered by the same jury in the same case. Importantly, this is not some
odd quirk of our justice system. ― ‗Jury decision-making is designed to be a black
box: the inputs (evidence and argument) are carefully regulated by law and the
output (the verdict) is publicly announced, but the inner workings and deliberation
of the jury are deliberately insulated from subsequent review. . . .‘ [Citation.]‖
(Guerra, supra, 176 Cal.App.4th at p. 942.) A trial court‘s obligation to accept a
jury verdict even if inconsistent with the jury‘s other verdicts is a corollary of
these principles. (Id. at p. 943 [―The system accepts the possibility that ‗the jury
arrived at an inconsistent conclusion through ―mistake, compromise, or lenity.‖
[(Powell, supra, 469 U.S. at p. 65.)]‘ [Citation.]‖].) ―To allow a judge to question
a jury‘s process of deliberate decision, even though done in good faith to avoid an
apparent miscarriage of justice, could result in abuses far outweighing the
infrequent inability to correct what may appear to be . . . erroneous or a
misunderstanding. And this must be true, even though reconsideration by the jury
results in a verdict more accurately reflecting the jury‘s intentions.‖ (Chicago,
Rock Island & Pacific Railroad Co. v. Speth (8th Cir. 1968) 404 F.2d 291, 295.)
In sum, except as provided in section 1161, a trial court may not reject a
jury‘s verdict and send the jury back for further deliberations based on the court‘s
belief that the jury made a mistake. We express no view on whether there are
circumstances other than a belief that the jury has erred that may justify a trial
court‘s departure from the statutory scheme for receiving a jury verdict.
In circumstances where a jury has authority to consider and decide an
allegation, the jury‘s verdict, even if erroneous, may bar retrial on the allegation
under settled principles of double jeopardy. (See Fong Foo v. United States
(1962) 369 U.S. 141, 143.) As we now explain, however, the first jury in this case
had no authority to consider the multiple victim allegation. (§ 667.61,
subd. (e)(4).) Once the jury deadlocked on the counts involving Z.C., the jury
could not have returned a valid verdict on the penalty allegation, and double
jeopardy thus did not bar retrial on that allegation.
The Fifth Amendment of the United States Constitution, applicable to the
states through the due process clause of the Fourteenth Amendment (Benton v.
Maryland (1969) 395 U.S. 784, 793–796), provides in relevant part that no person
shall ―be subject for the same offence to be twice put in jeopardy of life or
limb . . . .‖ Article I, section 15 of the California Constitution similarly provides
that ―[p]ersons may not twice be put in jeopardy for the same offense . . . .‖ These
provisions ―guarantee that the State shall not be permitted to make repeated
attempts to convict the accused, ‗thereby subjecting him to embarrassment,
expense and ordeal and compelling him to live in a continuing state of anxiety and
insecurity, as well as enhancing the possibility that even though innocent he may
be found guilty.‘ ‖ (United States v. Martin Linen Supply Co. (1977) 430 U.S.
564, 569.) Even where the jury does not return a verdict as to a particular charge,
the defendant may properly be subject to retrial on that offense only in certain
circumstances. ―Retrial after discharge of a jury without ‗manifest‘ (in federal
terminology) or ‗legal‘ necessity violates the protections afforded under both‖ the
federal and state constitutional double jeopardy clauses. (People v. Halvorsen
(2007) 42 Cal.4th 379, 425.)
In some cases, a trial court‘s failure to adhere to procedures governing the
receipt of a jury‘s verdict will implicate these principles. (See Stone v. Superior
Court (1982) 31 Cal.3d 503, 519 [trial court‘s unlawful failure to accept a jury
verdict ―will cause a subsequently declared mistrial to be without legal
necessity‖]; Stow v. Murashige (9th Cir. 2004) 389 F.3d 880, 890, fn. 17 [―[A]
judge should not be able to subvert the Double Jeopardy Clause by failing or
refusing to enter formally a jury‘s verdict of acquittal into the record.‖]; Bigelow,
supra, 208 Cal.App.3d at p. 1135.) However, in the circumstances here, the jury‘s
attempts to return a verdict do not implicate the protections of double jeopardy.
―Like the Three Strikes law, the One Strike law is an alternative sentencing
scheme, but it applies only to certain felony sex offenses. [Citation.] It mandates
an indeterminate sentence of 15 or 25 years to life in prison when the jury has
convicted the defendant of a specified felony sex crime (§ 667.61 [listing
applicable crimes]) and has also found certain factual allegations to be true
(§ 667.61, subds. (d), (e)).‖ (People v. Anderson (2009) 47 Cal.4th 92, 102.) In
Anderson, we clarified that the double jeopardy principles described above apply
to allegations under the One Strike law. (See id. at pp. 105–108.) Further, in
construing the One Strike law, we explained that ―the jury must first decide
whether all the elements of the underlying substantive crime have been proven‖
and that ―[i]f the jury convicts on the substantive crime, it then independently
determines whether the factual allegations that would bring the defendant under
the One Strike sentencing scheme have also been proven.‖ (Id. at p. 102; see
People v. Bright (1996) 12 Cal.4th 652, 661, disapproved on another ground
in People v. Seel (2004) 34 Cal.4th 535, 550, fn. 6.)
As noted, the One Strike allegation at issue here is the multiple victim
circumstance, which applies to a defendant who ―has been convicted in the present
case or cases of committing an offense specified in subdivision (c) against more
than one victim‖ and prescribes an alternative sentence of 15 years to life.
(§ 667.61, subds. (b), (e)(4).) In considering the purview of the jury in the specific
context of a multiple victim allegation, we construe section 667.61, subdivision
(e)(4) to entail that a jury may not consider whether a defendant ―has been
convicted in the present case or cases of committing an offense specified in
subdivision (c) against more than one victim‖ until the jury has returned
convictions on offenses involving more than one victim. The essential predicate
for the jury‘s consideration of the multiple victim allegation — conviction of a
section 667.61, subdivision (c) offense against more than one victim — consists of
facts that only the jury itself can establish by rendering verdicts on the underlying
substantive charges. Until the jury establishes those predicate facts, it has no basis
for deciding, and thus no statutory authority to decide, the multiple victim
This limitation on the jury‘s authority inherent in section 667.61,
subdivision (e)(4) is dispositive here. In this case, the first jury reached a verdict
only on the substantive counts involving J.R. but not on the counts involving Z.C.
Having decided not to return convictions on counts involving more than one
victim, the jury never brought into existence the predicate facts required for its
consideration of the multiple victim allegation. Absent the essential predicate that
only the jury could have established through verdicts on the underlying charges,
the jury at that point and for that reason lacked authority to decide or even to
consider the section 667.61, subdivision (e)(4) allegation. Because the jury could
not have returned any valid verdict on the multiple victim allegation, double
jeopardy did not bar retrial on that allegation. (Cf. People v. Serrato (1973) 9
Cal.3d 753, 764 [when sentence imposed is not just erroneous but entirely
unauthorized, state constitutional double jeopardy clause does not prohibit
subsequent imposition of more severe sentence].)
We acknowledge that the trial court‘s jury instructions may have
erroneously led the jury to believe it could consider the allegation without having
convicted defendant of offenses involving more than victim. But this instructional
error could not have imparted to the jury, in the face of a statutory limitation on
the jury‘s authority to consider a specific allegation, any power to decide or even
to consider the allegation. The circumstances here are distinguishable from those
cases according double jeopardy effect to a verdict returned by a court or a jury
that, while misconstruing the substantive elements of an offense, nevertheless had
authority to render a verdict on that offense. (See, e.g., Evans v. Michigan (2013)
___ U.S. ___ [133 S.Ct. 1069]; Arizona v. Rumsey (1984) 467 U.S. 203.) Further,
this case is unlike People v. Fields (1996) 13 Cal.4th 289, where we held that the
statutory double jeopardy provision, section 1023, precluded the defendant from
being retried on a greater offense when the jury had convicted him of a lesser
included offense, even though the jury should have been instructed to decide the
lesser offense only after having acquitted the defendant of the greater offense. (Id.
at pp. 308–310.) The acquittal-first rule in Fields did not implicate the jury‘s
statutory authority to render a verdict. (Id. at pp. 304, 309–310.)
In sum, a jury cannot return a valid verdict on a multiple victim allegation
where the jury has not rendered the underlying verdicts that comprise the essential
predicate for its consideration of the allegation. In other words, a jury cannot
consider a penalty allegation that turns solely on its assessment of an underlying
verdict that it has not reached. Accordingly, any finding that the first jury might
have returned on the multiple victim allegation had no double jeopardy
consequences, and defendant‘s retrial on that allegation was not unconstitutional.
We conclude by noting at least three ways a trial court may avoid the types
of problems that arose in this case. First, in cases involving a multiple victim
allegation, the trial court can expressly instruct the jury not to return a finding on
the allegation unless and until it finds the defendant guilty of specified section
667.61, subdivision (c) predicate crimes committed against more than one victim.
The import of such instructions may be further clarified and reinforced by verdict
forms that clearly indicate when a jury can properly return a finding on an
allegation. Such explicit instructions and verdict forms will forestall the jury from
considering or deciding issues beyond the lawful scope of its duties.
Second, when a trial court has properly authorized the jury to return a
verdict on a charge or allegation, and when the jury returns a verdict of conviction
that the court believes to be in error, the court — exercising its authority under
section 1161 — should take care to thoroughly instruct the jury on the applicable
law and to explain why the court believes the verdict to reflect the jury‘s mistake
of the law. By providing correct and comprehensive guidance at this stage, the
trial court may well be able to eliminate any further risk of inconsistent verdicts.
Third, when a trial court is confronted with a verdict that it believes to be at
odds with the jury‘s true intent, the court may, at the request of any party, poll the
jury pursuant to sections 1163 and 1164, subdivision (a). In so doing, the trial
court may not express its own opinion of the verdict or otherwise invite the jury to
reconsider its verdict unless permitted by section 1161. (See Guerra, supra, 176
Cal.App.4th at p. 944.) But if any juror states that the verdict does not reflect his
or her true intent, sections 1163 and 1164, subdivision (a) require the court to
order further deliberations. In these ways, the statutory scheme provides courts
with specific mechanisms for prompting a jury‘s reconsideration of an erroneous
or inconsistent verdict.
For the foregoing reasons, we reverse the judgment of the Court of Appeal
and remand the case for further proceedings in accordance with our decision.
WE CONCUR: CANTIL-SAKAUYE, C. J.
CONCURRING OPINION BY KENNARD, J.
Defendant was charged with sexually molesting two young girls. The
charge included an allegation under an alternative sentencing provision of the
―One Strike‖ law, which applies when, in the same case, the defendant has been
convicted of serious sex offenses involving more than one victim. (Pen. Code,
§ 667.61, subds. (b) & (e)(4); further statutory references are to the Penal Code.)
A jury found defendant guilty of serious sex offenses against one victim,
was unable to reach verdicts as to the second victim, and found the multiple-victim
sentencing allegation to be true. Because the multiple-victim finding was
inconsistent with the jury‘s guilty verdicts, which pertained to only one victim, the
trial court rejected the finding and directed the jury to reconsider the allegation.
After deliberating briefly, the jury again returned to the courtroom, but the trial
court did not ask whether the jury had made a new finding on the allegation.
Instead, after telling the jury it should not be making any finding on the allegation,
the trial court declared a mistrial on that allegation. At a second trial, a different
jury found defendant guilty of serious sex offenses against the second victim, and
it found true the multiple-victim allegation.
Defendant contends that constitutional double jeopardy principles render
invalid the retrial jury‘s true finding on the multiple-victim allegation. He argues
that retrial of the allegation was barred because the trial court at the first trial
improperly refused to receive the jury‘s multiple-victim allegation finding.
Rejecting defendant‘s contention, the majority reasons that once the jury at the
first trial had reached verdicts finding defendant guilty on serious sex offense
counts involving just one victim, while deadlocking on counts involving the other
victim, ―the jury had no authority to decide or even to consider the multiple victim
allegation,‖ and thus it ―could not have returned any valid verdict on that
allegation.‖ (Maj. opn., ante, at p. 2.) Consequently, the majority reasons, any
finding on that allegation the jury at the first trial may have made lacks
constitutional significance for double jeopardy purposes. (Ibid.)
I agree that double jeopardy principles did not bar retrial of the multiple-
victim allegation, but for a different reason. At the first trial, the issue before the
jury was whether, at that stage of the proceedings, it had found defendant guilty of
offenses involving more than one victim. But at the retrial, the jury considered a
different issue: whether, at that later stage in the proceedings, there were
convictions involving multiple victims. In this situation, where the jury at the
retrial was not asked to reconsider the same issue placed before the jury at the first
trial, defendant was not placed twice in jeopardy.
Defendant was charged with 13 counts of sexually molesting his daughter,
Z.C., and his stepdaughter, J.R, over a period of several years, starting when Z.C.
was nine and J.R. was eight. Included was a multiple-victim allegation under the
One Strike law, which comes into play when a defendant is convicted of specified
serious sex crimes against more than one victim.
The case went to trial in late 2007. With respect to defendant‘s
stepdaughter, J.R., the jury found defendant guilty of three counts of lewd conduct
on a child under 14 years old (§ 288, subd. (a)). But the jury was unable to reach a
verdict on any of the counts involving defendant‘s daughter, Z.C. The jury found
the multiple-victim allegation to be true because, as the jury foreman explained to
the trial court, there were three convictions against defendant for the molestation
of J.R. As the multiple-victim allegation required convictions involving more
than one victim rather than convictions on multiple counts against just one victim,
the trial court did not accept the jury‘s finding and asked the jury to reconsider it.
A few minutes later, the jury returned to the courtroom. Before hearing from the
foreman, the trial court told the jury it should not be making a finding on the
multiple-victim allegation because its guilty verdicts were all on counts pertaining
to the same victim. After returning briefly to the jury room, the jury came back
into the courtroom, where the foreman gave the clerk a blank verdict form for the
multiple-victim allegation. The trial court declared a partial mistrial and set the
matter, including all nine counts involving Z.C., together with the multiple-victim
allegation, for a second trial.
At that retrial, in 2009, the prosecution introduced into evidence the trial
court‘s minute order documenting the first jury’s convictions on three counts of
lewd conduct involving stepdaughter J.R., and the court told the jury at the second
trial that it could consider that documentary evidence in determining the truth of
the multiple-victim allegation. The jury convicted defendant of all nine
molestation counts against daughter Z.C. (including one count of lewd conduct on
a child under 14 years old (§ 288, subd. (a)), one count of forcible rape (§ 261,
subd. (a)(2)), and four counts of forcible oral copulation (§ 288a, subd. (c)(2)). At
that retrial, the jury also determined — based on defendant‘s lewd conduct
convictions at the first trial (all involving J.R.) as well as his convictions at the
second trial of lewd conduct, forcible rape, and forcible oral copulation (all
involving Z.C.), that defendant was subject to the One Strike law‘s alternative
sentence of 15 years to life in prison for having been convicted of serious sex
offense charges against more than one victim (§ 667.61, subd. (e)(4)). The trial
court‘s sentence of defendant included that prison term as to each of the two
In a two-to-one decision, the Court of Appeal set aside the life terms as it
perceived a double jeopardy violation in the second jury’s consideration of the
multiple-victim allegation. The dissenting justice disagreed, stating that in light of
the first jury‘s inability to reach a verdict on any counts involving second victim
Z.C., that jury had no reason and no authority to consider and make a finding on
the alternative sentencing allegation, which requires convictions pertaining to
more than one victim.
Not in dispute here are the legal principles governing the federal
Constitution‘s prohibition against double jeopardy. The Fifth Amendment
prohibits placing a criminal defendant ―twice . . . in jeopardy‖ for the same crime.
(U.S. Const., 5th Amend; see United States v. Ball (1896) 163 U.S. 662, 671;
accord, Evans v. Michigan (2013) 568 U.S. ___ [133 S.Ct. 1069] (Evans).)
Simply stated: ―[O]nce a defendant is placed in jeopardy for an offense, and
jeopardy terminates with respect to that offense, the defendant may neither be tried
nor punished a second time for the same offense.‖ (Sattazahn v. Pennsylvania
(2003) 537 U.S. 101, 106 (Sattazahn).) Jeopardy terminates either upon a jury‘s
acquittal or conviction of a charged offense (Ohio v. Johnson (1984) 467 U.S. 493,
498; Bullington v. Missouri (1981) 451 U.S. 430, 437), upon a determination that
the prosecution failed to prove an element of its case (Sattazahn, supra, 537 U.S.
at p. 108; Evans, supra, 568 U.S. at p. __ [133 S.Ct. at pp. 1074-1075]), or upon a
grant of a mistrial without ― ‗manifest necessity‘ ‖ (Arizona v. Washington (1978)
434 U.S. 497, 505). But jeopardy is not terminated when a trial court‘s grant of a
mistrial is manifestly necessary. (Sattazahn, supra, at pp. 113-114; Richardson v.
United States (1984) 468 U.S. 317, 323-324.)
Instructive is the high court‘s decision in Sattazahn, supra, 537 U.S. 101,
which applied double jeopardy rules, as here, in the context of a sentencing
proceeding. In that case, the Commonwealth of Pennsylvania charged the
defendant with capital murder, and it alleged the aggravating circumstance that the
murder was committed in the course of some other felony. (An aggravating
circumstance under Pennsylvania law is functionally equivalent to a ―special
circumstance‖ under California‘s death penalty scheme.) The jury convicted the
defendant of first degree murder, but it did not reach a verdict on the aggravating
circumstance allegation. The trial court imposed a life sentence. The state
appellate court reversed the murder conviction because of instructional error. On
remand, the prosecution chose to retry the murder charge, this time adding, as a
second aggravating circumstance allegation, the defendant‘s serious history of
convictions for violent felonies. At that retrial, the jury convicted the defendant of
murder and, based on the existence of aggravating circumstances, returned a
penalty verdict of death. When the matter reached the United States Supreme
Court, that court rejected the defendant‘s contention that the retrial put him twice
in jeopardy on the issue of penalty. Double jeopardy was not implicated, the high
court said, because at the first murder trial neither the jury‘s failure to reach a
verdict on the aggravating circumstance nor the trial court‘s imposition of a life
sentence operated as an acquittal of death penalty murder. (Id. at pp. 109-110.)
Our court in People v. Anderson (2009) 47 Cal.4th 92 (Anderson), in
rejecting a double jeopardy challenge to the retrial of a One Strike allegation under
California law, summed up the high court‘s holding in Sattazahn, supra, 537 U.S.
101: ―Sattazahn teaches that double jeopardy principles do not bar retrial of an
aggravated sentencing allegation if the first trial did not produce an express or
implied acquittal on the allegation.‖ (Anderson, supra, at p. 111.)
The multiple-victim allegation that is pertinent here and, if found to be true,
results in a punishment of 15 years to life, is an alternative sentencing provision
under the One Strike law, which seeks to ensure that ―serious sexual offenders
receive long prison sentences whether or not they have any prior convictions.‖
(People v. Wutzke (2002) 28 Cal.4th 923, 929.) The alternative punishment
applies when a defendant ―has been convicted in the present case‖ of perpetrating
specified offenses ―against more than one victim.‖ (§ 667.61, subd. (e)(4), italics
added.) Section 667.61‘s subdivision (c) lists the applicable crimes. Among them
are crimes of which defendant here was convicted: forcible rape (§ 261, subd.
(a)(2) & (6)), forcible oral copulation (§ 288a, subd. (c)(2)), and lewd and
lascivious conduct with a child under age 14 (§ 288, subd. (a)).
Alternative sentencing under the One Strike law also comes into play when
a defendant commits a specified crime under certain aggravating circumstances.
For instance, in Anderson, supra, 47 Cal.4th 92, 99, involving a defendant charged
with lewd conduct with a five-year-old child, the One Strike allegation was that
―the defendant kidnapped the victim‖ (§ 667.61, subd. (e)(1)) in committing the
charged lewd-conduct offense. By contrast, the multiple-victim allegation at issue
here rests not on a defendant‘s commission of a charged offense in a specified
manner, but on the defendant‘s conviction of certain serious sex crimes against
multiple victims. In that respect, the multiple-victim allegation under the One
Strike law resembles the multiple-murder allegation under California‘s death
penalty law, which elevates the crime of first degree murder to capital murder
(carrying a sentence of either death or life imprisonment without parole) when
―[t]he defendant, in [the same] proceeding, has been convicted of more than one
offense of murder in the first or second degree.‖ (§ 190.2, subd. (a)(3), italics
added.) The multiple-victim allegation at issue here also is like our death penalty
law‘s multiple murder allegation in that neither is attached to any particular
charged crime. (See People v. Diaz (1992) 3 Cal.4th 495, 565 [holding that the
prosecution in a capital murder case ―should allege only one multiple-murder
special circumstance,‖ no matter the number of murder counts it brings against the
At issue here is whether defendant was twice placed in jeopardy with
respect to the multiple-victim allegation. The majority and I agree that he was not,
but for different reasons. According to the majority, when the jury at the first trial
returned verdicts finding defendant guilty of serious sex offenses against one
victim, but was unable to reach verdicts as to serious sex offense charges against
the other victim, consideration and resolution of the multiple-victim allegation,
which was predicated on convictions of offenses against multiple victims, was
legally prohibited, so that the trial court had no authority to do anything other than
declare a mistrial, which was manifestly necessary. (Maj. opn., ante, at pp. 12-
15.) Therefore, whatever finding the jury at the first trial may have made on the
multiple-victim allegation could not produce a double jeopardy bar to retrial of
that allegation. (Id. at p. 16.)
I analyze the double jeopardy issue differently. The multiple-victim
allegation requires a finding that the defendant, in a single proceeding, was
convicted of certain serious sex crimes against more than one victim. (§ 667.61,
subd. (e)(4).) Thus, a rejection of the allegation by the jury at the first trial was
merely a determination that defendant had not yet been convicted of charges
involving more than one victim. The jury at the first trial convicted defendant
only on three counts of lewd conduct against his stepdaughter, J.R. Therefore, the
sole issue that could have been resolved by the jury‘s ―untrue‖ finding on the
multiple-victim allegation was that those three lewd conduct convictions did not
pertain to more than one victim.
But the jury at the retrial, when it addressed the multiple-victim allegation,
was faced with a different combination of convictions: those from the first trial
(all involving stepdaughter J.R.) together with those entered at the second trial (all
involving daughter Z.C.). Because this same combination of convictions was
never considered by the first trial jury (which could have considered only the
convictions it reached regarding victim J.R.), the first jury‘s rejection of the
multiple-victim allegation was not ―an express or implied acquittal‖ of the same
allegation (Anderson, supra, 47 Cal.4th 92, 111; see Sattazahn, supra, 537 U.S.
101, 109-110) put before the second jury.
The jury instructions given at the first trial support this conclusion. At that
trial, the trial court advised the jury that if it found ―the defendant guilty of two or
more sex offenses as charged in [counts involving both victims], [it] must then
decide whether . . . those crimes were committed against more than one victim.‖
(Italics added.) Given their common and ordinary meaning, this instruction‘s
words directed the jurors, after reaching verdicts on the substantive charges, to
determine whether the offenses on which they had reached guilty verdicts (and
only those offenses) had been committed against more than one victim. Because
at the first trial the jury‘s consideration was thus limited to the guilty-verdict
offenses, it did not address the identical factual question that the jury addressed at
For these reasons, I agree with the majority that defendant was not twice
put in jeopardy by the retrial of the multiple-victim allegation, and that therefore
he is subject to prison terms of 15 years to life under the One Strike law for his
convictions in this proceeding of serious sex crimes against two minor victims.
CONCURRING OPINION BY BAXTER, J.
The majority holds, in accordance with People v. Anderson (2009) 47
Cal.4th 92, 102, 115, that convictions of specified sex offenses against more than
one victim are an essential predicate to the jury‘s authority to adjudicate the ―One
Strike‖ multiple-victim allegation. (Pen. Code, § 667.61, subds. (b), (e)(4).)
Thus, once the trial court determined that the first jury in this case had hopelessly
deadlocked as to all of the charged offenses involving the second victim, the jury
had no legal authority to adjudicate the multiple-victim allegation. Accordingly,
any finding the jury purported to render as to the multiple-victim allegation ―had
no double jeopardy consequences, and defendant‘s retrial on that allegation was
not unconstitutional.‖ (Maj. opn., ante, at p. 16.)
I agree with the majority‘s conclusion, which is sufficient to answer the
question presented for review: ―Whether double jeopardy bars retrial as to a
multiple-victim allegation that the first jury never reached because no verdict was
received, and was never resolved because the jury deadlocked on the underlying
As guidance in future cases, I believe we should also explain what the trial
court is authorized to do when, as here, a jury purports to make a finding on a
penalty allegation even though the jury has hopelessly deadlocked as to the
essential predicate to its adjudication of that allegation. The prescription is simple.
When a jury has hopelessly deadlocked as to the offense or offenses that are an
essential predicate to the adjudication of a penalty allegation, the trial court is
authorized to declare a mistrial not only as to the predicate offense or offenses on
which the jury has deadlocked, but also as to the penalty allegation. A jury that
has deadlocked on the predicate offense or offenses ―has no basis for deciding, and
thus no statutory authority to decide,‖ the penalty allegation, and a purported
finding on that allegation, whether true or not true, can have no legal effect. (Maj.
opn., ante, at p. 15.) A declaration of a mistrial in such circumstances poses no
―likelihood of a trial court unduly, even if inadvertently, influencing the jury to
reach a particular outcome.‖ (Id. at p. 9.) Nor does a mistrial present a ―risk of
jury coercion‖ (ibid.), invite an inquiry ― ‗into a jury‘s thought processes‘ ‖ (id. at
p. 11), or create a conflict with the ― ‗general rule‘ ‖ that ― ‗inherently inconsistent
verdicts are allowed to stand‘ ‖ (ibid.).
The trial court here did eventually declare a mistrial as to the deadlocked
counts and as to the One Strike allegation. For the reasons I have explained, the
record provides sufficient justification for that ruling. (See Arizona v. Washington
(1978) 434 U.S. 497, 505, 516-517.) Thus, jeopardy did not terminate, and retrial
was not barred. (Richardson v. United States (1984) 468 U.S. 317, 325-326.)
Allowing retrial of the One Strike allegation in these circumstances ―accords
recognition to society‘s interest in giving the prosecution one complete
opportunity to convict those who have violated its laws.‖ (Arizona v. Washington,
supra, at p. 509.) As the high court has emphasized, ―[t]he interests of the public
in seeing that a criminal prosecution proceed to verdict, either of acquittal or
conviction, need not be forsaken by the formulation or application of rigid rules
that necessarily preclude the vindication of that interest.‖ (Illinois v. Somerville
(1973) 410 U.S. 458, 463.)
See next page for addresses and telephone numbers for counsel who argued in Supreme Court. Name of Opinion People v. Carbajal
Review Granted XXX 197 Cal.App.4th 32
Date Filed: April 8, 2013
County: Los Angeles
Judge: Larry P. Fidler
Counsel:Nancy J. King, under appointment by the Supreme Court, for Defendant and Appellant.
Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, and Pamela C.
Hamanaka, Assistant Attorney General, , Lawrence M. Daniels, Steven D. Matthews and G. Tracey
Letteau, Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):Nancy J. King
1901 First Avenue, Suite 138
San Diego, CA 92101
Steven D. Matthews
Deputy Attorney General
300 South Spring Street, Suite 1702
Los Angeles, CA 90013
Was retrial on sentencing allegations under the one strike law (Pen. Code, § 667.61) barred by double jeopardy although the first jury never reached or resolved the issue?
|Mon, 04/08/2013||56 Cal.4th 521||S195600|
|Opinion||Justice Goodwin Liu|
|Concur||Justice Joyce L. Kennard, Justice Marvin R. Baxter|
Respondent's Petition for Review Filed on August 15, 2011.pdf (1515771 bytes) - Respondent's Petition for Review Filed on August 15, 2011
Appellant's Answer to Petition for Review Filed on September 2, 2011.pdf (893374 bytes) - Appellant's Answer to Petition for Review Filed on September 2, 2011
Respondent's Opening Brief on the Merits Filed on November 15, 2011.pdf (821703 bytes) - Respondent's Opening Brief on the Merits Filed on November 15, 2011
Appellant's Answer Brief on the Merits Filed on February 1, 2012.pdf (973579 bytes) - Appellant's Answer Brief on the Merits Filed on February 1, 2012
|Jun 7, 2013|
Annotated by Nick Snavely
At the trial, in addition to the thirteen sex offenses the government also charged that the defendant committed offenses “against more than one victim.” This multiple-victim allegation, if found by a jury, gives the defendant a longer sentence under California’s “One Strike” law (Penal Code Section 667.61(b) and (e)(4)).
A jury convicted the defendant of three counts, all relating to his stepdaughter. On the other counts, the jury reported that it could not reach a unanimous decision. However, the jury also reported that it found the multiple-victim allegation true – even though they had not been able to agree on the counts relating to the defendant’s daughter.
When told of the jury findings, the judge questioned the jury about the apparent inconsistency, and the jury answered that it had made a mistake. The judge gave new instructions, and the jury went back to the jury room to deliberate again. When they came out again after only five minutes, the judge assumed they had misunderstood him and marked the One Strike allegation as “untrue” when they should have left that part of the form blank if they were deadlocked. He explained to them that if they could not agree on the multiple victim allegation, they should leave the form blank. He then sent them in to the jury room one last time; when they came out, they had left the form blank as to the multiple victim allegation.
The judge accepted that the jury was deadlocked on ten of the counts, and on the One Strike enhancement for multiple victims. A new trial was then held on the deadlocked charges relating to the defendant’s daughter and on the One Strike enhancement, and the second jury found the defendant guilty of all nine counts relating to his daughter and of the multiple victim enhancement. He was sentenced to two consecutive terms of 15 years to life based on the One Strike enhancement, plus 53 years on all the other counts.
The Attorney General argued that while it was true the jury had returned with the form marked “untrue” for the multiple-victim allegation, it was clearly a mistake and that the conversations between the judge and jury proved that the jury had meant to make no finding because they could not agree.
On appeal, the Court of Appeals ruled for the defendant, and reversed the One Strike enhancement that had been found by the second jury after the retrial. On judge dissented. The California Supreme Court agreed to hear the case.
1) Was the judge wrong to send the jury back a second time without receiving their verdict form?
2) If the judge was wrong, does the double jeopardy principle forbid the government from retrying the multiple victim enhancement?
As a result, the Supreme Court reverses the decision of the Court of Appeals and remands.
In this case, the trial judge failed to follow these procedures. If the jury had returned the second time with a valid finding of “untrue” as to the One Strike enhancement, the judge should have accepted that as a verdict of acquittal and could not order the jury to deliberate further. While a finding of “untrue” as to multiple victims may be inconsistent with a deadlock regarding the actual crimes against the second victim, this does not amount to a logically unintelligible verdict.
However, the fact that the judge failed to follow the proper procedures does not mean that sending the jury back a second time violated constitutional protections against double jeopardy. While the US Supreme Court case Fong Foo v. United States stands for the principle that even an erroneous verdict must be considered final, the verdict in this case was not just erroneous – it was totally invalid.
Under the One Strike law, the multiple victim allegation is only considered if the defendant “has been convicted” of committing a specified crime “against more than one person.” Thus, until the jury returns guilty verdicts on offenses involving more than a single victim it cannot consider the question of whether the enhancement applies. Because in this case the jury did not convict the defendant of crimes against more than one victim (as it deadlocked on all the charges relating to his daughter), it had no authority to deliver a valid verdict on the sentencing enhancement and double jeopardy is not implicated by retrying the defendant for the enhancement later.
double jeopardy, constitutional law, criminal law, One Strike, sentencing enhancement, jury deadlock, 5th Amendment, retrial