Brief Bank # B-706 (Re: PG X(H) [Inconsistent Verdicts].)
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ARGUMENT [Footnote 1]
I. THE KIDNAP-MURDER SPECIAL CIRCUMSTANCE FINDING MUST BE STRICKEN BECAUSE IT WAS INCONSISTENT WITH THE JURY’S SPECIAL VERDICTS THAT THE FIRST DEGREE MURDER WAS NOT COMMITTED IN THE COMMISSION OF A KIDNAPPING.
Appellant was convicted of first degree murder, and the jury found true the special circumstance that the murder was committed in the commission of a kidnapping. [Footnote 2] The jury also returned a special finding, fixing the degree of the murder conviction in the first degree, as follows:
We the jury fixed the murder as of the first degree based on our unanimous finding that:
1. The killing was willful, deliberate and premeditated. “Yes.
2. That the killing occurred in the perpetration of a kidnapping, a felony, in violation of Penal Code section 207 and/or 209. “No.”
3. That the killing occurred in the perpetration of a robbery, a felony in violation of Penal Code section 211. “No.” (RT 4146; see also CT 1246-1248.)
The jury was polled, and the court found their verdicts were unanimous. (RT 4151.) Following the verdicts, appellant’s counsel moved for a judgment of acquittal notwithstanding the verdict on the special circumstance allegation, on the ground that the special circumstance finding was inconsistent with the jury’s special findings that the murder was not committed in the perpetration of a robbery or kidnapping. (RT 4153.) The trial court stated, “There is no question [the verdicts] are inconsistent. .” These verdicts as they presently exist will undoubtedly support the defendant’s conviction of first degree murder without special circumstances and his conviction of simple kidnapping and robbery.” (RT 4154-4155.) However, the court denied appellant’s motion for a judgment of acquittal on the special circumstance allegation, concluding that “[W]hat we have here is that when a murder is put to a jury on a number of different theories, it is not necessary nor is the jury directed that they must make a finding on all those theories.” (RT 4159-4160.) The trial court found there was no need to inquire further of the jury, and the jury was discharged. (RT 4162; 4170.)
Prior to sentencing, appellant’s counsel moved for a new trial. At the hearing on the motion for new trial, appellant’s counsel renewed the objection that ‘it [the verdict] was inconsistent then, and it is still inconsistent.” (RT 4214.) The trial court denied the motion for new trial, finding that, ‘I don’t think it’s inconsistent.” (RT 4215.)
The jury’s special findings that the murder did not occur in the commission of a kidnapping or robbery were inconsistent with its findings that the kidnapping special circumstances was true. The special circumstance finding must therefore be reversed.
B. Standard of review:
Penal Code section 954 was amended in 1927 to provide: “A verdict of acquittal of one or more counts shall not be deemed or held to be an acquittal of any other counts.” (Stats. 1927, ch. 611, sec. 1, p. 1042; see also People v. Amick (1942) 20 Cal.2d 247, 250-253.) The statute was amended ‘for the purpose of declaring the law that a verdict apparently inconsistent shall afford no basis for a reversal where the evidence is sufficient to support the conclusion that the defendant is guilty of the offense for which he stands convicted.” (In re Johnson (1935) 3 Cal.2d 32, 36; People v. Hamilton (1978) 80 Cal.App.3d 124, 130.)
There is a recognized exception to the rule where “all of the essential elements of the crime of which the defendant was acquitted are identical to some or all of the essential elements of the crime of which he was convicted, and proof of the crime of which the defendant was acquitted is necessary to sustain a conviction of the crime of which the defendant was found guilty.” (People v. Federico (1981) 127 Cal.App.3d 20, 32.) Inconsistent verdicts cannot be allowed to stand where they are rendered upon charges wherein the elements of the offenses are identical. (People v. Calpito (1970) 9 Cal.App.3d 212, 219.)
C. The iury’s special findings that the first degree murder did not occur “in the perpetration of” a robbery or kidnapping were inconsistent with the special circumstance finding that the killing occurred “in the commission of” the kidnapping:
Appellate cases which have considered the question of inconsistent verdicts have upheld such verdicts (1) as the result of leniency; or (2) as not actually inconsistent. Section 954 was designed to prevent reversal of convictions supported by the evidence, where the jury may have acquitted on some counts as an exercise of leniency. Thus in People v. O’Conner (1992) 8 Cal.App.4th 941, this Division found the acquittal of six counts of child molestation did not require reversal of fourteen other counts based upon identical conduct. In People v. Federico, supra, 127 Cal.App.3d 20, 32-33, a finding that appellant was not armed was not inconsistent with his murder conviction, where “the negative finding on the armed allegation was a determination more favorable to the defendant than the evidence warranted.”
The majority of cases which have considered the issue have concluded that the verdicts were not actually inconsistent. Thus in People v. Calpito, supra, 9 Cal.App.3d 212, 219, “the elements necessary to sustain a conviction of conspiracy to commit robbery are not identical with those involved in an attempted robbery.” (See also People v. Lemus (1988) 203 Cal.App.3d 482; acquittal of kidnapping was not inconsistent with conviction of false imprisonment; People v. Brown (1985) 174 Cal.App.3d 762, 768; finding that the defendant did not inflict great bodily injury in the commission of a burglary was not inconsistent with the finding that he inflicted great bodily injury in the commission of a forcible rape.)
Appellant’s case falls within the exception to section 954. The jury’s special findings that the murder did not occur in the perpetration of a kidnapping resulted in no leniency to the accused. (People v. O’Conner, supra, 8 Cal.App.4th 941.) Proof that the first degree murder was committed in the perpetration of a robbery and kidnapping were essential to the jury’s findings that the special circumstance was true. (People v. Federico, supra, 127 Cal.App.3d 20, 32.) The special verdicts finding that the murder was not committed in the perpetration of those felonies thus preclude the special circumstance finding.
Section 189 defines felony-murder as murder committed “in the perpetration of” enumerated felonies. Appellant’s jury was instructed pursuant to CALJIC No. 8.21 that first degree murder is a killing ‘which occurs during the commission” of robbery or kidnapping. (RT 3778.) Section 190.2, subd. (a) (17) defines felony-based special circumstances as murder committed “while engaged in the commission, attempted commission, or the immediate flight after committing” enumerated felonies. The jury was instructed pursuant to CALJIC No. 8.80 that the special circumstance require proof that the killing occurred while appellant “was engaged in the commission’ of the kidnapping (RT 3782.)
The threshold question is whether the jury could have found that the murder was not committed “in the perpetration of” a kidnapping for purposes of first degree felony-murder, but was committed “in the commission of” a kidnapping for purposes of the special circumstance. Section 189 has been given substantially broader construction that section 190.2, subdivision (a) (17). To satisfy the requirements of felony-murder, it has long been established that the killing need only be part of one continuous transaction. (People v. Chavez (1951) 37 Cal.2d 656, 669.) By contrast, the language of the special circumstance statute has been construed to require that the killing occur during the same time as the commission of the felony or attempted felony. (Domino v. Superior Court (1982) 129 Cal.App.3d 1000 [Footnote 3]; Jones v. Superior Court (1981) 123 Cal.App.3d 160.) It is beyond dispute that, as a purely legal matter, section 189 applies to a much broader scope of conduct than does section 190.2, subdivision (a) (17).
In People v. Asbury (1985) 173 Cal.App.3d 362, the Court of Appeal rejected any distinction between the definition of robbery for purposes of felony-murder and the special circumstance, in concluding that a jury’s finding that the robbery-murder special circumstance was not true barred a retrial for felony-murder. The Asbury court held:
[T]he original jury, in finding the special circumstance not true, necessarily rejected the notion that the murder occurred during the course of the robbery. We agree. While the People argue that the special circumstance finding is narrower than the felony-murder instruction (and thus not necessarily a bar to the subsequent adjudication,) their contention does not withstand scrutiny. Although the language of the felony-murder instruction (which only requires that the murder occur “as a result of” the robbery) is slightly different from the special circumstance instruction specifying that the murder occur “in the commission of” the robbery, the variation is trifling. Moreover, Penal Code section 189 defines felony murder as murder “in the perpetration of” a robbery. This formulation is virtually indistinguishable from the ‘in the commission of” language used to define the special circumstance in Penal Code section 190.2, subdivision (a) (17) and would be controlling over any phrasing used in the jury instructions. In light of the plain language of these statutes, therefore, respondent’s contention that the special circumstance finding does not operate as a collateral estoppel must fail. (Ld. at p. 365, italics added.)
In People v. Guzman (1988) 45 Cal.3d 915, the California Supreme Court compared the statutory language of the 1977 felony murder special circumstance statute, which required the killing to be “committed during the commission of” enumerated felonies, to the language adopted by the 1978 amendment, under which appellant was charged, requiring that “the murder was committed while the defendant was engaged in…or the immediate flight after committing…” enumerated felonies. The Guzman court concluded that “[W]e perceive no substantial difference between the two statutory phrases, “during the commission of,” and “while engaged in the commission of.” The words “during” and “while,” in this context, reasonably appear to mean the same thing.” Id. at p. 950; see also People v. Pettaway (1988) 206 Cal.App.3d 1312, 1320.)
In appellant’s case, the jury returned special findings that the first degree murder did not occur “in the perpetration of” a robbery or kidnapping. (CT 1248.) That language was identical to the statutory language of section 189, defining felony-murder as murder committed “in the perpetration of” enumerated felonies, including robbery and kidnapping. The special verdicts were thus “virtually indistinguishable from the ‘in the commission language’ used to define the special circumstance.” (People v. Asbury, supra, 173 Cal.App.3d at p. 365.) The jury’s special circumstance finding therefore cannot be upheld on the basis that the jury found the murders were committed “in the commission of” a kidnapping. To do so, this Court would be forced to conclude that the jury could reject felony-murder as the basis for appellant’s conviction of first degree murder, but could properly find the felony-based special circumstance true. As in Asbury, where the jury’s rejection of the special circumstance that the murder occurred “in the commission of “ a robbery barred retrial for felony-murder “in the perpetration of” a robbery, the jury’s finding that appellant did not commit the murder “in the perpetration of” a kidnapping precludes the special circumstance finding that the murder occurred “in the commission” that offense. The elements required to return special verdicts that the crime was a first degree murder because it occurred in the perpetration of kidnapping were necessary to sustain the special circumstance allegation. (See People v. Federico, supra, 127 Cal.App.3d at p. 32; People v. Hamilton, supra, 80 Cal.App.3d at p. 130.) The jury’s unanimous findings that the first degree murder did not occur in the perpetration of those offenses therefore precludes the special circumstance finding.
Furthermore, a special circumstance statute must provide “a meaningful basis for distinguishing the few cases in which [the penalty] is imposed from the many cases in which it is not (Furman v. Georgia (1972) 408 U.S. 238, 331); and must therefore “genuinely narrow the class of persons eligible for the [increased penalty]… and reasonably justify the imposition of a more severe sentence on the defendant compared to others found guilty of murder. (Zant v. Stephens (1983) 462 U.S. 862, 877.) California’s special circumstance statute was enacted to comply with the mandate of Furman. (People v. Green (1980) 27 Cal.3d 1, 61.) To uphold the special circumstance finding that appellant committed the murder “in the commission of” a kidnapping, where the jury expressly found that the crime was not a first degree murder “in the perpetration of” that offense, would give a more expansive application to the special circumstance than to the underlying murder. Such an interpretation would be contrary to the constitutional mandate that the capitol sentencing scheme must narrow the class of offenders eligible for the increased punishment. [Footnote 4] (Furman v. Georgia, supra, 408 U.S. 238; Gregg v. Georgia (1976) 428 U.S. 153.)
D. The trial court erred in disregarding the special findings as surplusage:
Special verdicts are factual findings made by the jury in addition to its general verdict, and have been approved by the California Supreme Court, even though not authorized by statute. (People v. Webster (1991) 54 Cal.3d 411, 447; People v. Mickle (1991) 54 Cal.3d 140, 178.) A trial court cannot require the jury to return a special verdict. The decision to bring in a special verdict or finding is solely within the jury’s discretion. (People v. McIntyre (1990) 222 Cal.App.3d 229, 233.) However, once a special verdict or finding is made, it cannot be ignored as surplusage. ‘[W]e reject out of hand [the] further arguments that the special findings were “unreliable, ambiguous, and meaningless surplusage.” (People v. Belmontes (1988) 45 Cal.3d 744, 792.) The Belmontes court observed that the jury was instructed that the special findings could only be found true “unanimously and beyond a reasonable doubt.” ( Ibid.)
In People v. Memro (1995) 11 Cal.4th 786, after the first trial resulted in a finding that the felony-based special circumstance was not true, the defendant was retried for first degree murder on theories of both felony-murder and premeditation. The California Supreme Court affirmed the first degree murder verdict, observing that the jury was not polled on its theory of liability, and therefore did not necessarily determine that there was no felony-murder or no premeditation. (Id. at p. 821.) The special verdicts in the present case were equivalent to polling the jury on its theory of liability for first degree murder. Having instructed the jury to make that determination, the court was not permitted to disregard the jury’s unanimous findings that the killing did not occur in the perpetration of a robbery or kidnapping. (People v. Belmontes, supra, 45 Cal.3d at p. 792.)
E. Retrial on the special circumstance allegation is barred by double jeopardy and collateral estoppel:
Double jeopardy prohibits retrial for an offense after it has been reversed for insufficiency of the evidence to support the jury’s verdict. (Stone v. Superior Court (1982) 31 Cal.3d 503, 515; Burks v. United States (1978) 437 U.S. 1.) Principles of collateral estoppel have also been applied in the double jeopardy context to prevent relitigation of factual issues once decided adversely to the government. (Ashe v. Swenson (1970) 397 U.S. 436.) In addition, double jeopardy bars retrial in some circumstances even though no verdict has been rendered. Once jeopardy attaches, discharge of the jury without a verdict is tantamount to an acquittal and prevents a retrial unless the defendant has consented or there is legal necessity. (Arizona v. Washington (1978) 434 U.S. 497, 503-505; People v. Rojas (1975) 15 Cal.3d 540, 545.)
In Stone v. Superior Court, supra, 31 Cal.3d 503, the California Supreme Court held that the double jeopardy clause required trial courts to adopt a procedure to accept partial verdicts, and “it is within the discretion of the court to order further deliberations if it perceives a reasonable probability that a verdict will be reached that will dispose of the entire proceeding.” (Id. at p. 520.) The Stone court stated:
To guide the trial courts of this state in fulfilling the obligations which this rule entails, we suggest procedures derived by analogy from the multiple count situation. [Citations omitted.] When a trial court has instructed a jury on a charged offense and on an uncharged lesser included offense, one appropriate course of action would be to provide the jury with forms for a verdict of guilty or not guilty to each offense. The jury must be cautioned, of course, that it should first decide whether the defendant is guilty of the greater offense before considering the lesser offense, and that if it finds the defendant guilty of the greater offense, or if it is unable to agree on that offense, it should not return a verdict on the lesser offense. (Id. at p. 519.)
When appellant’s jury returned verdicts convicting him of first degree murder and finding the kidnap-murder special circumstance true, but returned special findings that the murder was not committed in the perpetration of kidnapping, the trial court was obligated under Stone to protect appellant’s double jeopardy rights. Unless the jury unanimously agreed that the murder occurred in the commission of a robbery or kidnapping for purposes of finding appellant guilty of first degree murder, it could not pass upon the special circumstance allegations. Thus the trial court had an obligation to order further deliberations. There was a reasonable probability that a verdict would have been reached that would have disposed of the entire proceeding. (Stone v. Superior Court, supra, 31 Cal.3d at p. 520.) By discharging the jury without requiring further deliberation to resolve the conflict between the special findings and kidnap-murder special circumstance verdict, the trial court acted without legal necessity. Retrial on the special circumstance allegation is therefore barred by the double jeopardy clause. (People v Memro, supra, 11 Cal.4th at pp. 820-821.)
Section 1161 provides in pertinent 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…” In the recent decision of People v. Fields (May 6, 1996) -Cal.4th-; 96 Daily Journal D.A.R. 5135, the California Supreme Court observed that “[I]f the jury renders only a verdict of conviction on the lesser included offense, without a corresponding verdict of acquittal on the greater offense, its verdict is incomplete under the law and the instructions. (People v. Bonillas (1989) 48 Cal.3d 757, 769; also Gray v. Superior Court (1989) 214 Cal.App.3d 545, 550-551.) Under these circumstances, the trial court is permitted, pursuant to section 1161, to direct the jury to reconsider its verdict of conviction in light of the acquittal-first rule.” (People v. Fields, supra, 96 Daily Journal D.A.R. at p. 5141.) The Fields court concluded:
[I]f the jury renders an incomplete verdict of conviction on the lesser included offense, and the rendered verdict is received by the court, recorded, and the jury discharged, the trial court no longer has jurisdiction to direct jurors to reconsider their irregular verdict… Under such a scenario, the consequence of this “mistake in the law” should be borne by the People, rather than the defendant. Thus, once the jury is discharged after rendering a verdict of guilty on the lesser included offense, without a corresponding verdict of acquittal on the greater offense, the defendant stands convicted of the lesser included offense, and retrial on the greater offense is barred notwithstanding the jury’s deadlock on that charge. (Ibid.)
Here, the jury’s verdict finding the kidnap-murder special circumstance true, but finding the first degree murder did not occur in the perpetration of that offense, demonstrated that the special circumstance finding was the result of a mistake of law. The trial court was therefore required to direct the jury to reconsider the verdict in light of the instructions that the special circumstance finding depended upon the jury’s unanimous agreement that the first degree murder was committed “in the commission of the crime of kidnapping.” (CALJIC No. 8.80.) By recording the verdict and discharging the jury, the court lost jurisdiction to direct the jury to reconsider the irregular verdict, and jeopardy attached. (People v. Fields, sugra, 96 Daily Journal D.A.R. at p. 5141.)
Principles of collateral estoppel also bar retrial of the special circumstance allegation. Collateral estoppel is an “issue preclusion” doctrine, barring relitigation of an issue decided at a previous trial if
(1) the issue necessarily decided at the previous trial is identical to the one which is sought to be relitigated; i f (2) the previous trial resulted in a final judgment on the merits; and if (3) the party against whom collateral estoppel is asserted was a party or in privity with a party at the prior trial. (Ieitelbaum Furs, Inc. v. Dominion Ins. Co., Ltd. (1962) 58 Cal.2d 601, 604; People v. Henderson (1990) 225 Cal.App.3d 1129, 1150, disapproved on other grounds in People v. Davis (1994) 7 Cal4th 797, 805.)
In People v. Asbury, supra, 173 Cal.App.3d 362, the jury’s rejection of a robbery-murder special circumstance barred retrial on felony-murder under the doctrine of collateral estoppel. The Asbury court found no distinction between the definition of robbery for purposes of felony-murder and special circumstances. A fortiori, the jury’s special finding that the first degree murder did not occur in the perpetration of a robbery or kidnapping in the present case is an estoppel to retrial of the kidnap-murder special circumstance allegation.
Footnote 1: Pursuant to California Rules of Court, rule 15(a), the headings used in this brief are not intended to be construed as technical assignments of error, but rather, as specified in rule 15(a), ‘are generally descriptive of the subject matter covered, under each such heading.
Footnote 2: The jury found the robbery-murder special circumstance not true. (RT 4145; CT 1 247.)
Footnote 3: In Domino, the court held that ‘lying in wait’ for purposes of first degree murder required only that the murder be perpetrated by means of lying in wait. However, in order to justify imposition of the special circumstance for murder committed ‘while lying in wait,’ required proof that the killing actually took place during the period of watchful waiting. (People v. Domino, supra, 129 Cal.App.3d at p. 1006; see also People v. Morales (1989) 48 Cal.3d 527, 556; lying in wait special circumstance requires no cognizable interruption’ between period of lying in wait and killing.)
Footnote 4: In People v. York (1992) 11 Cal.App.4th 1506, the court held that a jury’s rejection of the special circumstance of murder in the commission of a lewd and lascivious act (sec. 190.2, subd. (17) (e) ) was not inconsistent with the jury’s verdicts convicting the defendant of first degree murder and violation of section 288, subdivision (a), commission of a lewd and lascivious act. The York court held that the first degree murder and special circumstance verdicts were not actually inconsistent in light of the jury instructions, which defined “commission of a lewd and lascivious act” differently for purposes of first degree murder and special circumstances. York supports appellant’s contention that the special circumstance must be given narrower application than that of the underlying first degree felony-murder. (Accord, People v. Williams (1994) 30 Cal.App.4th 1758, 1762.) However, had the jury in York found that the defendant did not commit first degree murder ‘in the commission of’ a lewd and lascivious act, but found the special circumstance allegation true, there is no doubt the judgment as to the special circumstance would have been reversed. (See People v. McDonald (1984) 37 Cal.3d 351, 378; acquittal of underlying crime of robbery barred subsequent prosecution for robbery-murder special circumstance.)