PEOPLE of the State of California, Plaintiff and Respondent, v. Robert Samuel CRAIG, Defendant and Appellant.
The PEOPLE, Plaintiff & Respondent, v. Darrell Kenneth MOORE, Defendant & Appellant.
Defendants Robert Samuel Craig (Craig) and Darrell Kenneth Moore (Moore) (collectively defendants) took part in a robbery from a Sizzler restaurant during which a customer was shot and killed. There was evidence that Moore fired the fatal shot; however, there also was evidence that the witnesses who identified Moore were mistaken, and that Moore was at home that night. Craig took money from a cash drawer and tried to take money from a safe, but did not shoot anybody.
In a first trial, the jury was unable to reach a verdict on the murder charge as to both defendants, and on robbery and attempted robbery charges as to Moore; however, it found Craig guilty of robbery and attempted robbery. In a second trial, the second jury finished the job: it found both Craig and Moore guilty of first degree murder, and found Moore guilty of robbery and attempted robbery.
Craig contends that once the first jury convicted him of the underlying robbery and attempted robbery, double jeopardy precluded his retrial for felony-murder. In the published portion of this opinion, we reject his contention. We hold that because the first jury deadlocked on the murder charge, Craig remained in continuing jeopardy and could be retried for felony-murder without double jeopardy. In so holding, we follow People v. Williams (1987) 195 Cal.App.3d 398, 240 Cal.Rptr. 717.
Moore contends that the trial court erred in admitting a videotaped partial reenactment of the crime taken from the point of view of the wife of the murder victim. Previously, she had testified that the gunman was clean-shaven; Moore had a mustache and goatee. The videotape showed that the gunman's lower face was hidden from her by his hands and the gun. Moore claims the videotape was irrelevant and prejudicial. In the unpublished portion of this opinion, we reject his contention.
FACTUAL BACKGROUND **
The initial information was filed on December 18, 1992. On August 9, 1993, an amended information was filed charging defendants with second degree robbery of Denise Baumann (§ 211), attempted second degree robbery of Richard Howe (§§ 211, 664), and murder of Ronald Bartz (§ 187, subd. (a)). As to Moore, it was alleged as a special circumstance that the murder took place during a robbery (§ 190.2, subd. (a)(17)). It was alleged in connection with each count that both defendants personally used a firearm (§ 12022.5, subd. (a)); that Moore had served three prior felony prison terms (§ 667.5, subd. (b)); and that Craig had been convicted of one prior serious felony (§ 667, subd. (a)) and had served one prior felony prison term (§ 667.5, subd. (b)).
On August 11, 1993, trial commenced. On September 9, 1993, a jury found Craig guilty of robbery and attempted robbery; it found the personal firearm use allegation against Craig in connection with the robbery and attempted robbery counts to be true. The jury was unable to reach a verdict on the murder charge against Craig. It purported, however, to find the personal firearm use allegation against Craig in connection with the murder not true. At the prosecution's request, the trial court struck this allegation. The jury also was unable to reach a verdict on any of the charges against Moore. The trial court declared a mistrial on the unresolved counts and allegations.
The trial court had bifurcated trial of the prior felony allegations. On September 10, 1993, Craig waived a jury trial on these allegations, and the trial court found them true.
On October 7, 1993, the trial court sentenced Craig to a total prison term of 16 years and 8 months. On December 1, 1993, Craig filed a notice of appeal (Case No. E013658).
The matter was set for retrial. On October 7, 1994, Craig entered a plea of double jeopardy. On November 15, 1993, Craig filed a motion to dismiss the murder charge, again claiming double jeopardy, but, on December 3, 1993, the motion was denied. On December 29, 1993, Craig challenged the denial of his motion to dismiss by filing a petition for writ of mandate with this court (Case No. E013762). On January 4, 1994, we denied the petition.3
On January 5, 1994, the second trial commenced. Again, the trial court bifurcated trial of the prior felony allegations. On Friday, January 28, 1994, the jury returned a verdict as to Craig, finding him guilty of first degree murder. Initially, it reported that it was unable to reach a verdict as to Moore. The trial court, however, ordered it to return for further deliberations. On Monday, January 31, 1994, the jury found Moore guilty of first degree murder. It found the robbery-murder special circumstance allegation against Moore to be true. It also found Moore guilty of robbery and attempted robbery, and found the personal firearm use allegations against Moore in connection with all counts to be true.
On January 26, 1994, Moore waived a jury trial on the prior felony allegations, and on February 1, 1994, the trial court found these allegations true.
On February 4, 1994, Craig moved to set aside the verdict on double jeopardy grounds, but the motion was denied. The trial court then vacated the sentence imposed on Craig following the first trial and resentenced Craig to 25 years to life on the murder conviction, plus a total of six years (consisting of five years on the prior serious felony allegation, plus one year on the prior felony prison term allegation), to be served consecutively. It stayed execution of sentence on the robbery and attempted robbery convictions and the related enhancements pursuant to section 654.
On February 8, 1994, Craig filed a timely notice of appeal (Case No. E013955).
On March 2, 1994, in light of the fact that the trial court had vacated the sentence initially imposed on Craig, we dismissed Craig's appeal in Case No. E013658 as moot.
On March 14, 1994, the trial court sentenced Moore to life without parole on the murder conviction, plus a total of eight years (consisting of five years on the personal firearm use finding, and one year on each of the three prior felony prison term findings), to be served consecutively. It stayed execution of sentence on the robbery and attempted robbery convictions and the related enhancements, pursuant to section 654 and In re Culbreth (1976) 17 Cal.3d 330, 130 Cal.Rptr. 719, 551 P.2d 23.
On March 28, 1994, Moore filed a timely notice of appeal (Case No. E014198).
On April 11, 1994, we consolidated Craig's appeal, Case No. E013955, and Moore's appeal, Case No. E014198.
Craig contends that because the jury in the first trial convicted him of robbery and attempted robbery, double jeopardy prohibited his second trial for felony-murder based on these robberies. He relies on the rule that a conviction on a lesser included offense is an implied acquittal of the greater, and bars a subsequent prosecution for the greater offense. In People v. Williams (1987) 195 Cal.App.3d 398, 240 Cal.Rptr. 717, cert. den. sub nom. Wiley v. California (1988) 488 U.S. 832, 109 S.Ct. 89, 102 L.Ed.2d 65 (hereafter Williams ), however, which involved essentially identical facts, the Court of Appeal for the Fifth District held that where the jury in the first trial deadlocked on the greater offense, this rule does not apply. Craig contends that Williams was ill-reasoned, and urges us not to follow it. Related issues are pending before the Supreme Court in People v. Fields (S044641, review granted Mar. 23, 1995), People v. Mullins (S045293, review granted Apr. 13, 1995), and People v. Rivera (S047569, review granted Aug. 31, 1995).
A. Federal Constitutional Double Jeopardy Principles.
The double jeopardy clause of the Fifth Amendment, by incorporation into the Fourteenth Amendment, is binding on the states. (Benton v. Maryland (1969) 395 U.S. 784, 794, 89 S.Ct. 2056, 23 L.Ed.2d 707; Stone v. Superior Court (1982) 31 Cal.3d 503, 509–510, 183 Cal.Rptr. 647, 646 P.2d 809.) “The Double Jeopardy Clause ‘protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense.’ ” (Brown v. Ohio (1977) 432 U.S. 161, 165, 97 S.Ct. 2221, 2225, 53 L.Ed.2d 187, quoting North Carolina v. Pearce (1969) 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656.)
An offense and its lesser included offenses are “the same offense” for double jeopardy purposes. Thus, if a defendant is convicted of the greater offense, subsequent prosecution for a lesser included offense is barred. (Illinois v. Vitale (1980) 447 U.S. 410, 421, 100 S.Ct. 2260, 2267, 65 L.Ed.2d 228; Brown v. Ohio, supra, 432 U.S. at pp. 168–169, 97 S.Ct. at pp. 2226–27.) And vice versa: if a defendant is convicted of a lesser included offense, subsequent prosecution for the uncharged greater offense is barred. (Illinois v. Vitale, supra, 447 U.S. at pp. 419–421, 100 S.Ct. at 2266–2267 [conviction for failure to slow would bar subsequent prosecution for involuntary manslaughter if failure to slow is lesser included offense of involuntary manslaughter]; Brown v. Ohio, supra, 432 U.S. at pp. 168–169, 97 S.Ct. at pp. 2226–27 [conviction for joyriding bars subsequent prosecution for car theft where joyriding is a lesser included offense of car theft].)
Where the defendant is charged with a greater offense, a verdict silent on the greater offense but finding the defendant guilty on a lesser included offense bars a subsequent prosecution for the greater offense. The conviction on the lesser is deemed an “implied acquittal” of the greater. (Stone v. Superior Court, supra, 31 Cal.3d at p. 511 and fn. 5, 183 Cal.Rptr. 647, 646 P.2d 809; In re Hess (1955) 45 Cal.2d 171, 176, 288 P.2d 5.) In Green v. United States (1957) 355 U.S. 184, 188, 78 S.Ct. 221, 223, 2 L.Ed.2d 199, the defendant was charged with one count of arson and one count of first degree murder. On the first count, the jury convicted him of arson; on the second count, it convicted him of the lesser included offense of second degree murder. (Id., at pp. 185–186, 78 S.Ct. at 222.) After his conviction for second degree murder was reversed on appeal, the defendant was retried, over his objection, and convicted of first degree murder. (Id., at p. 186, 78 S.Ct. at p. 222.)
The court held that retrial of the first degree murder charge was barred by double jeopardy. It explained: “Green was in direct peril of being convicted and punished for first degree murder at his first trial. He was forced to run the gantlet once on that charge and the jury refused to convict him. When given the choice between finding him guilty of either first or second degree murder it chose the latter. In this situation the great majority of cases in this country have regarded the jury's verdict as an implicit acquittal on the charge of first degree murder. But the result in this case need not rest alone on the assumption, which we believe legitimate, that the jury for one reason or another acquitted Green of murder in the first degree. For here, the jury was dismissed without returning any express verdict on that charge and without Green's consent. Yet it was given a full opportunity to return a verdict and no extraordinary circumstances appeared which prevented it from doing so. Therefore it seems clear, under established principles of former jeopardy, that Green's jeopardy for first degree murder came to an end when the jury was discharged so that he could not be retried for that offense.” (Green v. United States, supra, 355 U.S. at pp. 190–191, 78 S.Ct. at p. 225, fn. omitted; see also Price v. Georgia (1970) 398 U.S. 323, 328, 90 S.Ct. 1757, 1760, 26 L.Ed.2d 300.)
However, “[i]t is well settled that a defendant may be retried for offenses as to which the jury is deadlocked.” (Stone v. Superior Court, supra, 31 Cal.3d at p. 522, 183 Cal.Rptr. 647, 646 P.2d 809; see Pen.Code, § 1160.) “[J]eopardy is not regarded as having come to an end so as to bar a second trial in those cases where ‘unforeseeable circumstances ․ arise during [the first] trial making its completion impossible, such as the failure of a jury to agree on a verdict.’ ” (Green v. United States, supra, 355 U.S. at p. 188, 78 S.Ct. at p. 223, quoting Wade v. Hunter (1949) 336 U.S. 684, 688–689, 69 S.Ct. 834, 836–837, 93 L.Ed. 974.) “Once jeopardy has attached, discharge of the jury without a verdict is tantamount to an acquittal and prevents a retrial, unless the defendant consented to the discharge or legal necessity required it. [Citations.] ‘Such a legal necessity exists if, at the conclusion of such time as the court deems proper, it satisfactorily appears to the court that there is no reasonable probability that the jury can resolve its difference and render a verdict. Under these circumstances the court may properly discharge the jury and reset for trial.’ ” (Stone v. Superior Court, supra, 31 Cal.3d at p. 516, 183 Cal.Rptr. 647, 646 P.2d 809, quoting People v. Rojas (1975) 15 Cal.3d 540, 545–546, 125 Cal.Rptr. 357, 542 P.2d 229; accord Green v. United States, supra, 355 U.S. at p. 188, 78 S.Ct. at p. 223.)
Felony-murder and the underlying felony are not, strictly speaking, greater and lesser included offenses—as we will discuss in more detail in part IV.B.2, post. Nevertheless, they are sufficiently analogous to greater and lesser included offenses to be treated as such for double jeopardy purposes. (Morris v. Mathews (1986) 475 U.S. 237, 244, 106 S.Ct. 1032, 1036, 89 L.Ed.2d 187 [conviction for robbery barred subsequent prosecution for felony-murder based on same robbery]; Harris v. Oklahoma (1977) 433 U.S. 682, 682–683, 97 S.Ct. 2912, 2912, 53 L.Ed.2d 1054 [conviction for felony-murder based on robbery barred subsequent prosecution for underlying robbery]; see also United States v. Dixon (1993) 509 U.S. 688, ––––, ––––, 113 S.Ct. 2849, 2857, 2863, 125 L.Ed.2d 556 [opn. of Scalia, J., joined by Kennedy, J.] [“for double jeopardy purposes, ‘the crime generally described as felony murder’ is not a separate offense distinct from its various elements”; underlying felony is “ ‘a species of lesser-included offense’ ”]; id., at pp. ––––, –––– – ––––, 113 S.Ct. at pp. 2865, 2867–2868 [conc. and dis. opn. of Rehnquist, J., joined by O'Connor and Thomas, J.J.] [felony-murder and underlying felony are “analogous to greater and lesser included offenses”].)
Here, the jury in the first trial found Craig guilty of robbery and attempted robbery. However, it did not simply fail to return a verdict on felony-murder; it was expressly unable to agree on that charge. As a result, the trial court declared a mistrial on the felony-murder count. This brings the case within the rule that if the jury is unable to agree on a verdict, jeopardy does not terminate, and double jeopardy does not bar retrial.
If a conviction on a greater offense is to bar further prosecution for a lesser included offense (or vice versa), the jury in the first trial must reach a verdict resolving, expressly or impliedly, all the charges submitted to it. In Green v. United States, supra, the jury's verdict was silent with respect to the greater offense, but there was no indication that it was unable to agree as to that charge. Indeed, the Supreme Court specifically based its holding on the fact that although “the jury was dismissed without returning any express verdict on that charge ․ it was given a full opportunity to return a verdict and no extraordinary circumstances appeared which prevented it from doing so.” (355 U.S. at p. 191, 78 S.Ct. at p. 225; see also People v. Superior Court (Marks) (1991) 1 Cal.4th 56, 74–75, 2 Cal.Rptr.2d 389, 820 P.2d 613 [where jury found defendant guilty of murder but failed to find degree, double jeopardy barred retrial for first degree murder after appeal]; Stone v. Superior Court, supra, 31 Cal.3d at p. 511, 183 Cal.Rptr. 647, 646 P.2d 809 [implied acquittal may be found “when the jury made no expression, formal or informal, of its conclusion” on the greater offense].)
Here, by contrast, the jury expressly deadlocked on the greater offense. We cannot very well infer that it “impliedly acquitted” Craig of felony-murder. Rather, this is one of those cases in which “unforeseeable” or “extraordinary” circumstances prevented the jury from reaching a verdict on that charge. Under these circumstances, the fact that the jury convicted Craig of the lesser offenses of robbery and attempted robbery does not bar retrial of the greater offense of felony-murder.
In so holding, we concur with Williams. There, the jury in the first trial convicted the three defendants of robbery and burglary, but deadlocked on an additional charge of murder. The trial court declared a mistrial. In the second trial, the jury convicted all defendants of felony-murder. (195 Cal.App.3d at pp. 400–401, 240 Cal.Rptr. 717.) On appeal, the defendants relied on the rule that conviction of a lesser included offense bars a subsequent prosecution for a greater. The court, however, held that this rule did not apply because the first jury had deadlocked on the greater offense: “In such cases the state's interest in enforcing its laws and ensuring public order outweighs the burden borne by the defendant who must once again face the prosecutorial machinery of the state.” (Id., at p. 407–408, 240 Cal.Rptr. 717.)
Craig urges us not to follow Williams. First, Craig takes issue with Williams 's reliance on Richardson v. United States (1984) 468 U.S. 317, 323, 104 S.Ct. 3081, 3086, 82 L.Ed.2d 242, 250 and Ohio v. Johnson (1984) 467 U.S. 493, 499, 104 S.Ct. 2536, 2541, 81 L.Ed.2d 425, 433. In Richardson, the defendant was charged with two counts of distributing a controlled substance and one count of conspiring to distribute a controlled substance. (468 U.S. at p. 318, 104 S.Ct. at p. 3082.) After the jury acquitted him on one of the distribution counts, but deadlocked on the other distribution count and the conspiracy count, the trial court declared a mistrial. (Id., at pp. 318–319, 104 S.Ct. at p. 3082.) The defendant argued that the prosecution had introduced insufficient evidence of his guilt on the conspiracy count, and double jeopardy therefore barred retrial. (Id., at pp. 322–323, 104 S.Ct. at p. 3084.)
The Supreme Court recognized that under Burks v. United States (1978) 437 U.S. 1, 18, 98 S.Ct. 2141, 2150, 57 L.Ed.2d 1, where a conviction is reversed due to insufficiency of the evidence, double jeopardy bars retrial. (468 U.S. at p. 323, 104 S.Ct. at p. 3084.) It held, however, that: “Where, as here, there has been only a mistrial resulting from a hung jury, Burks simply does not require that an appellate court rule on the sufficiency of the evidence because retrial might be barred by the Double Jeopardy Clause.” (Ibid.) It explained: “Justice Holmes' aphorism that ‘a page of history is worth a volume of logic’ sensibly applies here․” (Id., at pp. 325–326, 104 S.Ct. at p. 3086.) “The case law dealing with the application of the prohibition against placing a defendant twice in jeopardy following a mistrial because of a hung jury has its own sources and logic․ [¶] ‘[W]ithout exception, the courts have held that the trial judge may discharge a genuinely deadlocked jury and require the defendant to submit to a second trial. This rule accords recognition to society's interest in giving the prosecution one complete opportunity to convict those who have violated its laws.’ [Citation.]” (468 U.S. at pp. 323–324, 104 S.Ct. at pp. 3084–3085, quoting Arizona v. Washington (1978) 434 U.S. 497, 509, 98 S.Ct. 824, 832, 54 L.Ed.2d 717.)
“We think that the principles governing our decision in Burks, and the principles governing our decisions in the hung jury cases, are readily reconciled when we recognize that the protection of the Double Jeopardy Clause by its terms applies only if there has been some event, such as an acquittal, which terminates the original jeopardy. [Citations.] ․ [¶] [W]e hold ․ that the failure of the jury to reach a verdict is not an event which terminates jeopardy.” (468 U.S. at p. 325, 104 S.Ct. at p. 3086.)
Contrary to Craig's contention, Richardson strongly supports both the holding in Williams and our holding today. In Richardson, the hung jury rule prevailed over the rule that a conviction obtained on insufficient evidence bars retrial. We hold that the hung jury rule likewise trumps the rule that conviction on a lesser included offense bars a subsequent prosecution for the greater offense; and for the same reasons. The first reason is a matter of formal logic: where the jury has been unable to agree, jeopardy has not terminated. The second reason is one of policy: where the jury has been unable to agree, both the force of history and the policy of affording the prosecution a complete opportunity to convict require retrial, even though the policies otherwise underlying double jeopardy principles might militate against retrial.
In Ohio v. Johnson, supra, the defendant was indicted on charges of both murder and involuntary manslaughter, arising out of a single homicide, and both aggravated robbery and grand theft, arising out of the taking of property from the homicide victim's apartment. (467 U.S. at pp. 494–495, 104 S.Ct. at p. 2538.) He pleaded guilty to involuntary manslaughter and grand theft. The trial court then dismissed the murder and robbery charges on grounds of double jeopardy. (Id., at p. 496, 104 S.Ct. at p. 2539.)
The Supreme Court refused to apply double jeopardy under these circumstances. “Previously,” it noted, “we have recognized that the Double Jeopardy Clause prohibits prosecution of a defendant for a greater offense when he has already been tried and acquitted or convicted on the lesser included offense,” citing Brown v. Ohio, supra, 432 U.S. 161, 97 S.Ct. 2221. “We do not believe, however, that the principles of finality and prevention of prosecutorial overreaching applied in Brown reach this case. No interest of respondent protected by the Double Jeopardy Clause is implicated by continuing prosecution on the remaining charges brought in the indictment. Here respondent offered only to resolve part of the charges against him, while the State objected to disposing of any of the counts against respondent without a trial. Respondent has not been exposed to conviction on the charges to which he pleaded not guilty, nor has the State had the opportunity to marshal its evidence and resources more than once or to hone its presentation of its case through a trial. The acceptance of a guilty plea to lesser included offenses while charges on the greater offenses remain pending, moreover, has none of the implications of an ‘implied acquittal’ which results from a verdict convicting a defendant on lesser included offenses rendered by a jury charged to consider both greater and lesser included offenses. [Citations.] There simply has been none of the governmental overreaching that double jeopardy is supposed to prevent. On the other hand, ending prosecution now would deny the State its right to one full and fair opportunity to convict those who have violated its laws. [Citation.]” (467 U.S. at pp. 501–502, 104 S.Ct. at pp. 2541–2542.)
Johnson therefore supports our conclusion that even though the jury convicted Craig on lesser charges, jeopardy did not terminate, because the murder charge remained pending. Craig seeks to distinguish Johnson, arguing that he has been exposed to conviction on the greater offense, and the prosecution has “had the opportunity to marshal its evidence and resources more than once [and] to hone its presentation of its case through a trial.” While true, this was not the result of governmental overreaching. The prosecution did not deliberately charge the lesser offenses in one prosecution and the greater offense in another (cf. Brown v. Ohio, supra, 432 U.S. 161, 97 S.Ct. 2221); it did not seek to retry a charge on which a jury had returned an implied acquittal (cf. Green v. United States, supra, 355 U.S. 184, 78 S.Ct. 221). Rather—as whenever the hung jury rule applies—“ending prosecution now would deny the State its right to one full and fair opportunity to convict those who have violated its laws.” (Ohio v. Johnson, supra, 467 U.S. at p. 502, 104 S.Ct. at p. 2542.)
Next, Craig takes issue with Williams 's analysis of the policies underlying double jeopardy principles. The court stated that: “Avoiding the emotional and financial burden on the accused, lessening humiliation and stigmatization, and preventing enhanced risk of convicting the innocent [citation]—all of these are paramount justifications supporting the prohibition against double jeopardy․” (Id., at p. 406, 240 Cal.Rptr. 717.) However, after the first jury has deadlocked, retrial “does not necessarily inconvenience defendants ․; they do not face emotional trauma caused by multiple, lengthy trials. A continuation of the same proceeding after mistrial simply does not present the same degree of stigmatization and humiliation; indeed, such a retrial should be expected, as compared to the unknowing defendant who can only guess at what lies ahead when the state fails to join charges into one proceeding.” (Id., at p. 407, 240 Cal.Rptr. 717.)
Craig, understandably, disagrees; he claims that a second trial causes emotional trauma, stigmatization and humiliation under any circumstances. Even if so, however, these factors, and the other policies that normally weigh against subjecting a defendant to retrial, have never been held to prevent retrial after the jury deadlocks. This situation is an exception to the double jeopardy principles that would otherwise apply.
Williams is in accord with cases from other jurisdictions. (U.S. v. Bailin (7th Cir.1992) 977 F.2d 270, 274–275; Alley v. State (Alaska 1985) 704 P.2d 233, 234; State v. Luzanilla (Ariz.App.1993) 176 Ariz. 397, 401, 861 P.2d 682, app. dism. in part and vacated in part (Ariz.1994) 179 Ariz. 391, 880 P.2d 611,4 cert. den. sub nom. Luzanilla v. Arizona (1995) 514 U.S. 1039, 115 S.Ct. 1406, 131 L.Ed.2d 293; Bell v. State (1982) 249 Ga. 644, 646–647, 292 S.E.2d 402; Mauk v. State (1992) 91 Md.App. 456, 473–487, 605 A.2d 157; People v. Gonzalez (1992) 197 Mich.App. 385, 396–398, 496 N.W.2d 312; State v. Crago (1994) 93 Ohio App.3d 621, 632–636, 639 N.E.2d 801, app. dism. 70 Ohio St.3d 1413, 637 N.E.2d 10, cert. den. sub nom. Crago v. Ohio (1995) 613 U.S. 1172, 115 S.Ct. 1149, 130 L.Ed.2d 1107; Com. v. McCane (1988) 517 Pa. 489, 500–501, 539 A.2d 340.) Although we have analyzed the issue independently, we conclude that Williams is sound and should be followed.
B. Double Jeopardy as a Matter of California Law.
The California constitution has its own double jeopardy clause (Cal. Const., art. 1, § 15), which may afford a higher level of protection than the federal constitution. (Cal. Const., art. I, § 24; Raven v. Deukmejian (1990) 52 Cal.3d 336, 352, 276 Cal.Rptr. 326, 801 P.2d 1077; Stone v. Superior Court, supra, 31 Cal.3d at p. 510, 183 Cal.Rptr. 647, 646 P.2d 809.) Also, California statutes implementing this constitutional provision provide a level of protection which may be higher still. (Pen.Code, §§ 687, 1023; Bunnell v. Superior Court (1975) 13 Cal.3d 592, 607–608, 119 Cal.Rptr. 302, 531 P.2d 1086.) “The California Supreme Court has recognized, however, that we should give deference to decisions of the United States Supreme Court interpreting similar basic rights in the absence of good cause for departure or deviation therefrom.” (People v. Superior Court (Jurado) (1992) 4 Cal.App.4th 1217, 1230, 6 Cal.Rptr.2d 242, citing Raven v. Deukmejian, supra, 52 Cal.3d at p. 353, 276 Cal.Rptr. 326, 801 P.2d 1077.)
1. Implications from the Trial Court's Authority to Control of the Jury's Deliberations.
We therefore consider whether California's constitution or laws afford Craig any more double jeopardy protection than the federal constitution. The argument to this effect derives from Stone v. Superior Court, supra, 31 Cal.3d 503, 183 Cal.Rptr. 647, 646 P.2d 809 (hereafter Stone ) and People v. Kurtzman (1988) 46 Cal.3d 322, 250 Cal.Rptr. 244, 758 P.2d 572 (hereafter Kurtzman ). In Stone, the defendant was charged in a single count with murder. The jury was instructed on first degree murder, and on the lesser included offenses of second degree murder, voluntary manslaughter, and involuntary manslaughter. (Id., at p. 507, 183 Cal.Rptr. 647, 646 P.2d 809.) After deliberating, the jurors announced that they were deadlocked. None of them had voted to convict the defendant of either first or second degree murder; their disagreement was over the choice of voluntary manslaughter, involuntary manslaughter, or acquittal. (Id., at pp. 507–509, 183 Cal.Rptr. 647, 646 P.2d 809.) After the trial court declared a mistrial, the defendant sought a writ of prohibition to prevent a retrial on any of the charges. (Id., at p. 509, 183 Cal.Rptr. 647, 646 P.2d 809.)
The Supreme Court held that the defendant could not be retried for murder, because the trial court failed to receive the jury's verdict on those charges. (Id., at pp. 514–520, 183 Cal.Rptr. 647, 646 P.2d 809.) “[T]he trial court is constitutionally obligated to afford the jury an opportunity to render a partial verdict of acquittal on a greater offense when the jury is deadlocked only on an uncharged lesser included offense. Failure to do so will cause a subsequently declared mistrial to be without legal necessity.” (Id., at p. 519, 183 Cal.Rptr. 647, 646 P.2d 809.) On the other hand, the defendant could be retried for manslaughter, because the jury deadlocked on those charges. (Id., at pp. 520–521, 183 Cal.Rptr. 647, 646 P.2d 809.)
The court suggested two ways for a trial court to proceed. First, it could provide the jury with verdict forms permitting a verdict of guilty or not guilty on each offense, provided it cautioned the jury at the outset “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.” (Ibid.) “Alternatively, the court may decide to wait and see whether the jury is unable to reach a verdict; if it is, the court should then inquire whether the jury has been able to eliminate any offense. If the jury declares itself hopelessly deadlocked on the lesser offense yet unanimous for acquittal on the greater offense, and the court is satisfied that the jury is not merely expressing a tentative vote but has completed its deliberations, the court must formally accept a partial verdict on the greater offense.” (Id., at pp. 519–520, 183 Cal.Rptr. 647, 646 P.2d 809.)
“Stone addressed the situation in which the jury was unanimous on the greater offense but in disagreement on the lesser. This inevitably leads to the question ․—what if the situation is reversed and disagreement is limited to the greater offense?” (Kurtzman, supra, 46 Cal.3d at p. 329, 250 Cal.Rptr. 244, 758 P.2d 572.)
In Kurtzman, as in Stone, the defendant was charged in a single count with murder. (See id., at pp. 326–327, 326–327, fn. 3, and 327, fn. 4, 250 Cal.Rptr. 244, 758 P.2d 572.) The jury was instructed that if it unanimously acquitted him of first degree murder, it could convict him of the lesser included offenses of second degree murder or manslaughter. (Id., at p. 327 and 327, fn. 4, 250 Cal.Rptr. 244, 758 P.2d 572.) After several rounds of deliberations, the jury returned a partial verdict acquitting the defendant of first degree murder. The jury then asked if it could find the defendant guilty of manslaughter without having unanimously acquitted him of second degree murder. The trial court answered that it had to agree unanimously on second degree murder before “considering” manslaughter. (Id., at p. 328, 250 Cal.Rptr. 244, 758 P.2d 572, italics omitted.) The jury then found the defendant guilty of second degree murder. (Ibid.) The defendant contended that the trial court's answer was erroneous.
The Supreme Court held: “Stone should be read to authorize an instruction that the jury may not return a verdict on the lesser offense unless it has agreed beyond a reasonable doubt that defendant is not guilty of the greater crime charged, but it should not be interpreted to prohibit a jury from considering or discussing the lesser offenses before returning a verdict on the greater offense.” (Id., at p. 329, 250 Cal.Rptr. 244, 758 P.2d 572.) “[T]he overall import of Stone is simply that the jury must acquit of the greater offense before returning a verdict on the lesser included offense, and no further control of the sequence of jury deliberations was intended. Indeed, this interpretation is the only reading of the opinion consistent with the fact that Stone presented the alternative of not giving the jury any explicit guidance unless a deadlock appeared to have developed. Jurors given no explicit guidance in the matter could, of course, commence deliberations in any order they wished, whether considering the lesser offenses first or beginning with the greater.” (Id., at p. 330, 250 Cal.Rptr. 244, 758 P.2d 572.)
The court recognized that some jurisdictions used an “acquittal-first” instruction, requiring the jury to acquit on the greater offense before even considering lesser included offenses. Others used a “disagreement” instruction, requiring the jury to consider the greater offense first, but permitting it to consider lesser included offenses if it could not agree on the greater. (Id., at p. 333, 250 Cal.Rptr. 244, 758 P.2d 572.) Most federal courts had decided that, “given the tactical advantages of various instructions, either a strict acquittal-first instruction or a disagreement instruction may be given at defendant's option.” (Id., at p. 334, 250 Cal.Rptr. 244, 758 P.2d 572.) The court concluded: “We need not engage in this national debate, as our rule ․ seems adequate to protect both the defendant's interest in not improperly restricting the jury's deliberations and the People's interest in requiring the jury to grapple with the prospect of defendant's guilt of the greatest offense charged.” (Ibid.)
Kurtzman describes Stone as holding that “the jury must acquit of the greater offense before returning a verdict on the lesser included offense” (id., at p. 330, 250 Cal.Rptr. 244, 758 P.2d 572), and refers to a “requirement of unanimity on the greater before returning a verdict on the lesser included offense.” (Id., at p. 331, 250 Cal.Rptr. 244, 758 P.2d 572, emphasis added.) It could be argued that if the jury cannot reach a verdict on the greater offense, the trial court must instruct it not to return a verdict on lesser included offenses; if, instead, the trial court accepts the jury's verdict on a lesser included offense, double jeopardy will bar retrial of the greater offense.
But we do not believe Kurtzman was intended to be this far-reaching. Both Stone and Kurtzman permitted the trial court to instruct the jury that it must reach a verdict on the greater offense before returning a verdict on lesser included offenses (hereafter a “Stone instruction”).5 When the court in Kurtzman discussed what the jury “must” do, it was referring to what the trial court could instruct the jury to do. As the court recognized, a Stone instruction is not given for the benefit of the defendant; it benefits the prosecution, by “requiring the jury to grapple with” the greater offense. Thus, the trial court is not required to give a Stone instruction, as a matter of double jeopardy or otherwise. Instead, it may wait and see if a deadlock develops. (People v. Jackson (1989) 49 Cal.3d 1170, 1197, 264 Cal.Rptr. 852, 783 P.2d 211; People v. Harris (1985) 175 Cal.App.3d 944, 956–957, 221 Cal.Rptr. 321; People v. Soto (1984) 157 Cal.App.3d 694, 713, 204 Cal.Rptr. 204.)
Then, if a deadlock does develop, the trial court cannot assume that the jury is hung on all charges, and hence a retrial is permissible; it must “inquire whether the jury has been able to eliminate any offense.” (Stone, supra, 31 Cal.3d at p. 519, 183 Cal.Rptr. 647, 646 P.2d 809, emphasis added.) Nothing in Stone or Kurtzman requires the trial court to give a Stone instruction even at this point. “Under Stone the trial judge may choose whether and when an acquittal-first instruction should be given to facilitate the jury's deliberations.” (Kurtzman, supra, 46 Cal.3d at p. 332, fn. 9, 250 Cal.Rptr. 244, 758 P.2d 572, emphasis added.)
A jury which is not given a Stone instruction in advance and which deadlocks on the greater offense may assume it is free to reach a verdict on the lesser. In other jurisdictions, as the court recognized in Kurtzman, the jury is expressly instructed to do so. (Id., at pp. 333–334, 250 Cal.Rptr. 244, 758 P.2d 572.) Nothing prohibits the trial court from receiving this partial verdict. This at least spares the defendant from a retrial of the lesser offense. Stone protected “the defendant's double jeopardy interest in avoiding retrial for offenses on which he has been factually acquitted.” (Stone, supra, 31 Cal.3d at p. 518, 183 Cal.Rptr. 647, 646 P.2d 809.) Surely the defendant has a similar interest in avoiding retrial for offenses on which he or she has been factually convicted.6 This procedure does not infringe the defendant's right to be free from double jeopardy in any way.
Certain language in People v. Zapata (1992) 9 Cal.App.4th 527, 12 Cal.Rptr.2d 118 would seem to support Craig's position. There, the jury acquitted the defendant of attempted murder; it deadlocked on the lesser included offense of attempted voluntary manslaughter, but convicted him of the lesser related offense of assault with a deadly weapon. The defendant argued that, given the jury's deadlock on the attempted voluntary manslaughter charge, the trial court erred in permitting it to convict him of assault with a deadly weapon. (Id., at p. 531, 12 Cal.Rptr.2d 118.) The court held that while this procedure was “irregular,” the resulting verdict was not “void.” (Id., at p. 534, 12 Cal.Rptr.2d 118.)
The Zapata court stated that “[the] verdict amounted to an implied acquittal of the attempted voluntary manslaughter lesser offense” and “depriv [ed] the prosecution of its opportunity to have a retrial and possible guilty verdict on attempted voluntary manslaughter.” (Id., at p. 534, 12 Cal.Rptr.2d 118.) However, this clearly was dictum, as it does not appear that the prosecution was actually seeking to retry the defendant for attempted voluntary manslaughter. To the contrary, he had been sentenced to prison on the assault with a deadly weapon count, and was appealing from that conviction. (Id., at p. 531, 12 Cal.Rptr.2d 118.) Thus, as the court noted, “The People may choose to forego their right to have a decision on a principal or a greater offense, in favor of a verdict on a lesser offense. That is the effect of what has happened in this case.” (Ibid.) Zapata is not controlling.
Stone and Kurtzman give no indication that the Supreme Court intended to expand double jeopardy protection beyond that provided by the federal constitution.
2. Application to Specifically Included Offenses.
Finally, even assuming a general rule that the jury must reach a unanimous verdict on a greater offense before it can return a verdict on a lesser included offense, that rule should not apply here. As we mentioned in part IV.A, ante, for purposes of double jeopardy, robbery is treated as if it were a lesser included offense of felony-murder. However, it is not a genuine lesser included offense, and it need not be treated as such for other purposes.
A defendant cannot be convicted of both a greater offense and a lesser included offense. (People v. Pearson (1986) 42 Cal.3d 351, 355, 228 Cal.Rptr. 509, 721 P.2d 595.) “ ‘The test in this state of a necessarily included offense is simply that where an offense cannot be committed without necessarily committing another offense, the latter is a necessarily included offense.’ ” (Ibid., quoting People v. Greer (1947) 30 Cal.2d 589, 596, 184 P.2d 512; see also People v. Miranda (1994) 21 Cal.App.4th 1464, 1467, 26 Cal.Rptr.2d 610.)
Felony-murder can be committed without committing robbery; the felony element of felony-murder can be satisfied by a host of different felonies. Moreover, murder and felony-murder are not distinct crimes; they are a single crime, the mens rea element of which may be satisfied in alternative ways. (People v. Davis (1995) 10 Cal.4th 463, 515, 41 Cal.Rptr.2d 826, 896 P.2d 119; People v. Brown (1995) 35 Cal.App.4th 708, 712–716, 41 Cal.Rptr.2d 321; People v. Johnson (1991) 233 Cal.App.3d 425, 454, 284 Cal.Rptr. 579; see also Schad v. Arizona (1991) 501 U.S. 624, 630–632, 640–643 [plur. opn. of Souter, J.], 649–651 [conc. opn. of Scalia, J.] 111 S.Ct. 2491, 2496–2497, 2501–2503, 2506–2507, 115 L.Ed.2d 555.) Certainly murder can be committed without committing robbery.
Robbery is, at most, a “specifically included offense” of murder. This term comes from People v. Pearson, supra, 42 Cal.3d 351, 228 Cal.Rptr. 509, 721 P.2d 595. There, the defendant had been convicted of sodomy with a child under 14 (Pen.Code, § 286, subd. (c)) and lewd conduct with a child under 14 (Pen.Code, § 288, subd. (a)) arising out of a single act. (Id., at p. 354, 228 Cal.Rptr. 509, 721 P.2d 595.) The defendant contended that lewd conduct was a lesser included offense of sodomy. The court disagreed; it reasoned that one could commit sodomy without committing lewd conduct, because lewd conduct required a specific sexual intent which sodomy did not. (Id., at pp. 355–356, 228 Cal.Rptr. 509, 721 P.2d 595.)
Next, the defendant pointed out that, conversely, sodomy was a “specifically included offense” of lewd conduct. The acts prohibited by the lewd conduct statute specifically included sodomy, when committed with the requisite specific intent. (Id., at p. 357, 228 Cal.Rptr. 509, 721 P.2d 595.) He concluded that he could not be convicted of both. The court again disagreed. It held that a defendant can be convicted of both an offense and a specifically included lesser offense. (Id., at pp. 357–358, 228 Cal.Rptr. 509, 721 P.2d 595.) It relied on “the plain language of section 954, which states that ‘the defendant may be convicted of any number of the offenses charged,’ and which does not contemplate exceptions for ‘specifically included’ offenses.” (Id., at p. 358, 228 Cal.Rptr. 509, 721 P.2d 595.)
A defendant therefore can be convicted of both felony-murder and the underlying felony (although punishment for the underlying felony may be barred by double jeopardy and/or section 654). (People v. Wader (1993) 5 Cal.4th 610, 670, 20 Cal.Rptr.2d 788, 854 P.2d 80; see, e.g., People v. Neely (1993) 6 Cal.4th 877, 881, 889, 26 Cal.Rptr.2d 189, 864 P.2d 460; People v. Proctor (1992) 4 Cal.4th 499, 514, 532–533, 15 Cal.Rptr.2d 340, 842 P.2d 1100.) Here, the prosecution had every right to seek to convict Craig not only of felony-murder, but also of the underlying robbery and attempted robbery. Moreover, the trial court properly instructed the jury, using CALJIC No. 17.02, that: “Each count charges a distinct crime. You must decide each count separately. Each defendant may be found guilty or not guilty of any or all of the crimes charged.” It would have been inappropriate to instruct the jury that if it found Craig guilty of murder, or if it was unable to agree on the felony-murder charge, it could not return a verdict on the robbery charges. When the jury deadlocked on the murder charge, it would have been equally inappropriate to refuse to accept its verdict on the robbery charges.
We therefore hold that because the jury was unable to agree on the felony-murder charge against Craig, the fact that it convicted him on the lesser charge of robbery did not bar his retrial for felony-murder.
ADMISSIBILITY OF THE VIDEOTAPED REENACTMENT ***
The judgment is affirmed.
FOOTNOTE. See footnote *, ante.
3. Craig has requested that we take judicial notice of our records in related Cases No. E013658 and E013762. The People indicated that they had no objection to the request. We reserved the request for consideration together with the merits of the appeal. We now grant it. (Evid.Code, §§ 452, subd. (d)(1), 459, subd. (a).)
4. The Arizona Supreme Court concurred with the lower court's opinion on the double jeopardy issue; it therefore dismissed the appellant's petition for review from that portion of the opinion. It vacated the remainder of the opinion on other grounds. (State v. Luzanilla, supra, 179 Ariz. 391, 393, 400, 880 P.2d 611.)
5. CALJIC now provides Stone instructions. (CALJIC No. 8.75 [re: murder]; CALJIC No. 17.10 [re: other offenses].)
6. Also, if the jury has deadlocked on the greater offense but, perhaps illogically, acquitted on the lesser offense, it is arguable that retrial of both would be barred.
FOOTNOTE. See footnote *, ante.
RICHLI, Associate Justice.
HOLLENHORST, Acting P.J., and McDANIEL, J.†, concur.