PEOPLE v. MARKS

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Court of Appeal, Second District, Division 7, California.

The PEOPLE, Petitioner, v. The SUPERIOR COURT of the State of California for the County of Los Angeles, Respondent. John MARKS, Real Party in Interest.

No. B039818.

Decided: December 14, 1989

Ira Reiner, Dist. Atty. of Los Angeles County, Donald J. Kaplan and Brent Riggs, Deputy Dist. Attys. for petitioner. Lawrence A. Morse and Robert S. Gerstein for real party in interest. Farella, Braun & Martel, and Douglas R. Young as amicus curiae for California Attorneys For Criminal Justice on behalf of Real Party in Interest.

Petitioner seeks a writ mandating respondent to vacate its order precluding the prosecution of Real Party in Interest (RPI) John Marks (Marks), for first degree murder with special circumstances and to order respondent to strike Marks' pleas of former acquittal and once in jeopardy.   We grant the writ.

FACTUAL AND PROCEDURAL BACKGROUND

The facts, as described in People v. Marks (1988) 45 Cal.3d 1335, 248 Cal.Rptr. 874, 756 P.2d 260, are:

“Ronald Moore was killed in Valinda, California, in November 1980.   Defendant's [Marks'] stepsister, Margaret Moore, was the victim's wife.   The prosecution theory was that she wanted to kill her husband to obtain money from an insurance policy on his life and from the sale of the family home and because he had been violent against her.   The prosecution contended she and her paramour, Leonard Brown, hired defendant [Marks] to kill her husband.

“An information filed in Los Angeles Superior Court charged defendant [Marks] with murder (§ 187) and with two special circumstances:  (1) that the murder was intentional and carried out for financial gain (§ 190.2, subd. (a)(1));  and (2) that defendant intentionally killed the victim while lying in wait (§ 190.2, subd. (a)(15)).   The information also charged defendant with conspiracy to commit murder (§ 182) for financial gain, with personally using a handgun in the commission of the murder (§§ 12022.5 and 1203.06, subd. (a)(1)), and with personally inflicting great bodily harm on the victim (§§ 12022.7 and 1203.075).

“At a pretrial hearing on April 2, 1981, defendant's counsel expressed severe doubt as to defendant's ability to understand the nature of the proceedings against him and to assist in his defense.”  (Id. at p. 1338, 248 Cal.Rptr. 874, 756 P.2d 260.)   The court expressed a doubt as to Marks' present sanity (Pen.Code, § 1368 1 ) and ordered a special hearing to determine his competency to stand trial.   Although the court appointed two psychiatrists to examine Marks “[t]here is no further reference in the record to any proceeding to determine defendant's [Marks'] competency to stand trial.”  (Id. at p. 1339, 248 Cal.Rptr. 874, 756 P.2d 260.)

Nevertheless the court resumed criminal proceedings and “[t]he jury found [Marks] guilty of murder and conspiracy to commit murder.   The jury found to be true the financial-gain special circumstance but found to be not true the lying-in-wait special circumstance and the allegation that [Marks] had personally used a firearm to commit the murder.   The jury returned a verdict of death.”  (Ibid.)

The California Supreme Court reversed the judgment solely on the ground “the trial court failed to conduct a competency hearing pursuant to sections 1368 and 1369 after specifically stating a doubt as to [Marks'] competency to stand trial and ordering a hearing to determine his competency.”  (People v. Marks, supra, 45 Cal.3d 1335, 1337–1338, 248 Cal.Rptr. 874, 756 P.2d 260.)

Upon remand, the trial court conducted a section 1368–1369 hearing and found Marks mentally competent to stand trial.  (Petn., appendix D.)   Criminal proceedings were resumed.

Marks sought to enter pleas of former acquittal (§ 1016, subd. (4)) and once in jeopardy (§ 1016, subd. (5)) to, among other charges and allegations, first degree murder and the special circumstances.  (Petn., appendix E.)   The pleas were based upon the failure of the guilty murder verdict to specify degree.   Under section 1157,2 Marks urged, he had, as a matter of law, been acquitted of first degree murder, which acquittal mooted the special circumstances.   The trial court found “that by operation of law the murder that this defendant was found guilty of is second degree murder”, that jeopardy had attached, the People lacked standing to object that the convictions were void, and “the jury's findings on the enhancements precludes relitigation of those enhancements, that the crimes for which this defendant now faces are limited to second degree murder and conspiracy to commit second degree murder.”

The People filed a petition seeking a writ of mandate to vacate these findings and order.

DISCUSSION

We begin by considering People v. Marks, supra, 45 Cal.3d 1335, 248 Cal.Rptr. 874, 756 P.2d 260, since we are free to decide only that which People v. Marks has not already decided.   When “the Supreme Court, in deciding the appeal, states in its opinion a principle or rule of law necessary to the decision, that principle or rule becomes the law of the case and must be adhered to throughout its subsequent progress․”  (Tally v. Granahl (1907) 151 Cal. 418, 421, 90 P. 1049.)

People v. Marks held that the trial court committed reversible error by failing to conduct a competency hearing pursuant to sections 1368 3 and 1369, after having expressed a doubt concerning Marks' competency to stand trial.  (People v. Marks, supra, 45 Cal.3d at p. 1337, 248 Cal.Rptr. 874, 756 P.2d 260.)

The significance and scope of this error, and an understanding of People v. Marks, can best be appreciated by a brief review of the cases construing section 1368.

People v. Jackson (1951) 105 Cal.App.2d 811, 234 P.2d 261 made clear that once the record reflects that the trial court has a doubt concerning the defendant's present sanity “a trial on the issue of present sanity becomes mandatory and that trial must be entirely separate and independent of the criminal proceeding.”  (Id. at p. 815, 234 P.2d 261.)

This separate trial is a civil proceeding not part of the criminal trial.   (In re Shaw (1953) 115 Cal.App.2d 753, 252 P.2d 970.)  “In a proceeding under section 1368 a defendant is not charged with a criminal act and is not subject to criminal proceedings or punishment if he is found insane.”   (People v. Fields (1965) 62 Cal.2d 538, 540, 42 Cal.Rptr. 833, 399 P.2d 369.)

Although section 1368 refers to a subjective doubt (“a doubt arises in the mind of the judge”) the landmark case of People v. Pennington (1967) 66 Cal.2d 508, 58 Cal.Rptr. 374, 426 P.2d 942 holds that substantial evidence of present insanity, regardless of the trial court's subjective evaluation of that evidence, creates a 1368 doubt as a matter of law.   The consequence of such substantial evidence is that “[u]nder section 1368 of the Penal Code the trial court has no power to proceed with the trial once a doubt arises as to the sanity of the defendant.   In trying defendant without first determining at a hearing his competence to stand trial, the court both denied to defendant a substantial right (People v. Westbrook, supra, 62 Cal.2d 197, 204 [41 Cal.Rptr. 809, 397 P.2d 545];  People v. Jackson, 105 Cal.App.2d 811, 815–816 [234 P.2d 261] ) and pronounced judgment on him without jurisdiction to do so.   In such cases the error is per se prejudicial.”  (Id. at p. 521, 58 Cal.Rptr. 374, 426 P.2d 942, emphasis added.)

In re Davis (1973) 8 Cal.3d 798, 106 Cal.Rptr. 178, 505 P.2d 1018, in rejecting a defendant's claim that he had an option whether to proceed with the criminal trial or have a 1368 hearing, reiterated the “no jurisdiction” language of Pennington, stating “this court has held that when a ‘doubt’ arises in the mind of the trial judge regarding defendant's present sanity or competence to stand trial, it becomes his duty to certify the defendant for a sanity hearing;  the matter is jurisdictional and cannot be waived by defendant or his counsel.”  (Id. at p. 808, 106 Cal.Rptr. 178, 505 P.2d 1018, emphasis added.)

This absence of criminal jurisdiction is illustrated by People v. Tomas (1977) 74 Cal.App.3d 75, 141 Cal.Rptr. 453.   Following the defendant's felony conviction, but before sentencing, the court received (and apparently overlooked) a psychiatrist's report which concluded that the defendant was presently insane.   The court sentenced defendant to state prison.   In reversing the judgment the court stated, “[i]t is thus apparent that the court lacked jurisdiction to render its judgment sentencing defendant to prison for the term prescribed by law, and that no further proceedings may be taken against defendant until a hearing has been held to determine his present sanity․”  (Id. at p. 92, 141 Cal.Rptr. 453, emphasis added.)

Thus, by 1982, the effect of declaring a present sanity doubt was so firmly established, a Second District Court of Appeal decision declared, “[i]t is settled law that a person cannot be tried or sentenced while he or she is mentally incompetent.  (Pen.Code, § 1367.)  Section 1368, Penal Code, which procedurally implements section 1367, requires a court to institute proceedings to determine present sanity, if during the pendency of an action, and prior to judgment, a doubt arises in the mind of the trial judge as to the mental competence of defendant.   The trial court lacks jurisdiction to try, judge, or sentence a defendant unless he or she is then presently sane. ”   (People v. Conrad (1982) 132 Cal.App.3d 361, 367, 182 Cal.Rptr. 912, emphasis added.)

This lack of jurisdiction to try a defendant, once a section 1368 doubt is declared, was reaffirmed in People v. Hale (1988) 44 Cal.3d 531, 244 Cal.Rptr. 114, 749 P.2d 769, decided only months before People v. Marks.   In Hale, as in Marks, the defendant was charged with a capital murder, a section 1368 doubt declared but no hearing held, a criminal trial ensued, and a jury convicted the defendant and imposed a death penalty.

In reversing the entire judgment “[b]ecause the trial court failed to hold a competency hearing pursuant to section 1368” (id. at p. 533, 244 Cal.Rptr. 114, 749 P.2d 769) Hale is notable both for what it says and for what it doesn't say.

It says that “section 1368 ‘requires that if at any time during the pendency of a criminal case a doubt arises as to mental competency, all criminal proceedings must be suspended until a hearing has been conducted to determine whether the defendant is presently mentally competent.’  ( [People v. ] Stankewitz, [ (1982) ] supra, 32 Cal.3d [80] at p. 91 [184 Cal.Rptr. 611, 648 P.2d 578], italics added.)   Indeed, once a doubt has arisen as to the competence of the defendant to stand trial, the trial court has no jurisdiction to proceed with the case against the defendant without first determining his competence in a section 1368 hearing, and the matter cannot be waived by defendant or his counsel.  (Pennington, supra, 66 Cal.2d at p. 518 [58 Cal.Rptr. 374, 426 P.2d 942];  In re Davis (1973) 8 Cal.3d 798, 808 [106 Cal.Rptr. 178, 505 P.2d 1018].)”  (People v. Hale, supra, at pp. 540–541, 244 Cal.Rptr. 114, 749 P.2d 769, emphasis added.)

Later, in rejecting a People's argument, the Court states, “[s]uch an argument, however, overlooks the fact that the matter is jurisdictional, and cannot be waived by counsel.”  (Id. at p. 541, 749 P.2d 769, emphasis added.)

Finally, and unequivocally, Hale explained:

“The court explicitly demonstrated its own doubt as to defendant's competence and ordered a section 1368 hearing.   The sub silentio disposition of the section 1368 proceedings without a full competency hearing rendered the subsequent trial proceedings void because the court had been divested of jurisdiction to proceed pending express determination of the competency issue.”  (Ibid.)  (Emphasis added.)

That the “subsequent trial proceedings” were rendered void is underscored by what Hale does not say.   Absent from the opinion is any reference to or detail about either the guilt or penalty trials.   This juridical silence denotes the legal non-existence of those proceedings.

The nullity of such proceedings, those proceedings subsequent to non-compliance with section 1368, was again pointed out just two months before People v. Marks.   Referring to Hale, Pennington, and Tomas a Court of Appeal observed “[i]n those cases, the courts concluded that the trial court, having failed to comply with its section 1368 statutory duty, had no jurisdiction to continue.”  (People v. Day (1988) 201 Cal.App.3d 112, 120, 247 Cal.Rptr. 68.)

It is against this body of precedent, an unbroken line of cases holding that non-compliance with section 1368 divests the trial court of jurisdiction and renders subsequent trial proceedings void, that we consider People v. Marks.

Marks not only does not deviate from this line of cases but explicitly affirms them, approving and quoting from Hale that “ ‘[t]he sub silentio disposition of the section 1368 proceedings without a full competency hearing rendered the subsequent trial proceedings void because the court had been divested of jurisdiction to proceed pending express determination of the competency issue.’ ”  (People v. Marks, supra, 45 Cal.3d at p. 1344, 248 Cal.Rptr. 874, 756 P.2d 260.)

Although RPI urges a variety of legal theories 4 why the petition should be denied, fundamental to all these theories is a voidable not a void judgment of conviction.

Essential to RPI's position is the notion that his trial, conviction, and sentence—all subsequent to the trial court's stating a doubt as to his competency to stand trial—have that kind of flaw which makes them selectively voidable at his unilateral discretion.   We find no support for this position in People v. Marks.

To the contrary, we are constrained to conclude that when Marks states that the trial proceedings were “void” it means void not “voidable”.5  And we find no intimation in Marks that upon remand, and a finding of defendant's competency, some parts of the void judgment may be deemed valid.   Not only is such a construction violative of the plain and explicit language of Marks that the “trial proceedings ” were “void” and that the trial court “had been divested of jurisdiction” but is inconsistent with the “guidance to the trial court for the possibility of a retrial” (ibid.) portion of the opinion.

Unless Marks contemplated the possibility of a first degree murder retrial its section 1157 guidance “that a jury must explicitly specify in its verdict the degree of the crime for which it convicts the defendant” (ibid.) is meaningless surplusage, an interpretation we decline to make.   Moreover, absent from this section 1157 guidance is any hint that the guilty murder verdict, which failed to specify degree, has any post-reversal significance.   If that verdict was not a nullity then the issue raised but not decided by People v. McDonald (1984) 37 Cal.3d 351, 383, fn. 31, 208 Cal.Rptr. 236, 690 P.2d 709 [whether RPI could be retried for first degree murder] would have been ripe for trial court guidance, if not for decision.  Marks ' silence evidences the nullity of the verdict.

For these reasons we conclude that People v. Marks decided the trial court was without jurisdiction to try RPI, that the judgment of conviction was void, that RPI was not placed in jeopardy, and RPI was not acquitted of first degree murder nor relieved of special circumstances liability.

DISPOSITION

The petition for a writ of mandate is granted.   Respondent superior court is ordered to set aside its order precluding prosecution for first degree murder and special circumstances, to strike RPI's pleas of former acquittal and once in jeopardy, and to set the matter for trial.

I respectfully dissent.

The question in this case is whether Marks can be retried for first degree murder after his conviction for that offense was reversed because the trial court failed to conduct a competency hearing as required by Penal Code section 1368.1  Under normal circumstances, the answer to this question would be yes.   It is well settled the double jeopardy clause does not bar retrial for an offense when a prior conviction for that same offense has been set aside on appeal.  (Green v. United States (1957) 355 U.S. 184, 189, 78 S.Ct. 221, 224, 2 L.Ed.2d 199.)   Thus, if Marks is found competent to stand trial, under normal circumstances he could be retried for first degree murder.

This case, however, does not present normal circumstances.   First, it is complicated by the fact Marks never should have been convicted of first degree murder.   Where, as here, the guilty verdict fails to specify the degree of the crime of which the defendant is found guilty, it “shall be deemed to be of the lesser degree.”  (§ 1157.)   Thus the trial court should have entered a judgment of second degree murder.   Although the Supreme Court acknowledged this error in People v. Marks (1988) 45 Cal.3d 1335, 1344, 248 Cal.Rptr. 874, 756 P.2d 260, (Marks I ), it chose to reverse Marks' conviction on a different ground:  failure to hold a competency hearing.  (Id. at p. 1340, 248 Cal.Rptr. 874, 756 P.2d 260.)   This introduced the second complication.   Assuming a conviction of the lesser degree of murder under section 1157 would have barred Marks' retrial for the greater degree, did Marks lose his protection against retrial for first degree murder because, by failing to hold a competency hearing, all subsequent proceedings including the general verdict of guilty were null and void for lack of jurisdiction?

For the reasons set forth below, I conclude that where a general verdict of guilty must be deemed a conviction of the lesser degree of the crime under Penal Code section 1157, reversal of the general verdict of guilty bars retrial for the greater degree of the crime.   I reach this result on due process grounds.   Therefore I find it unnecessary to decide whether a verdict deemed to be a conviction of the lesser degree of offense under section 1157 must also be deemed an acquittal on the greater degree for double jeopardy purposes.   However, should a higher court conclude section 1157 operates as an acquittal of the greater degree of offense for double jeopardy purposes, I further conclude the fact the trial court violated Marks' right to a fair trial by denying him a competency hearing is not a ground for stripping him of the acquittal he achieved despite that violation.

I. THE SUPREME COURT, IN MARKS I, DID NOT DECIDE WHETHER DOUBLE JEOPARDY BARS RETRIAL WHEN THE ACQUITTAL OCCURS BY OPERATION OF LAW NOR WHETHER A TRIAL COURT'S ACTS IN EXCESS OF ITS JURISDICTION VOID AN ACQUITTAL FOR DOUBLE JEOPARDY PURPOSES.

Marks I held the trial court committed reversible error by failing to conduct a competency hearing pursuant to Penal Code sections 1368 and 1369, after the trial court specifically stated a doubt as to defendant's competency to stand trial.  (45 Cal.3d at p. 1337, 248 Cal.Rptr. 874, 756 P.2d 260.)   This is all Marks I decided.

After explaining why Marks' conviction must be reversed for failure to conduct a competency hearing, the court observed:  “In light of our reversal of the judgment on another ground, we need not decide whether there were other errors and, if so, whether they would require reversal, either alone or in combination.   As to the more significant of the alleged errors, however, we believe it necessary to provide brief guidance to the trial court for the possibility of a retrial.”  (45 Cal.3d at p. 1344, 248 Cal.Rptr. 874, 756 P.2d 260;  italics added.)   The Court then proceeded to discuss the other significant errors alleged in Marks' appeal.   In the course of this discussion, the Supreme Court noted the trial judge had treated the jury's verdict as a verdict of first degree murder despite the fact the jury did not specify the degree of the crime.  (Ibid;  see § 1157, supra.)

The majority would convert this “guidance to the trial court,” which the Supreme Court clearly recognized as dictum, into a holding the double jeopardy clause does not bar Marks' retrial for first degree murder.   The majority offers two reasons for treating the court's “guidance” as a holding on double jeopardy.   First, unless the Court contemplated the possibility of a retrial for first degree murder, its discussion of section 1157 “is meaningless surplusage.”   Second, because the Court did not discuss whether the jury's general verdict of guilty supports a plea of double jeopardy, a question left open in an earlier case,2 the Court must have concluded the verdict was a nullity.  (Maj. op. at p. 915.)

The “guidance to the trial court” in Marks I is a classic example of dictum, which Witkin defines as “general observations, unnecessary to the decision.”  (9 Witkin, Cal. Procedure (3d ed. 1985) § 783, p. 753.)   Indeed, the Court in Marks I specifically acknowledges it is not deciding any issue other than the trial court's failure to conduct a competency hearing.  (45 Cal.3d at p. 1344, 248 Cal.Rptr. 874, 756 P.2d 260.)

This is not to say dicta should always be ignored.  “Dicta may be highly persuasive, particularly where made by the Supreme Court after the court has considered the issue and deliberately made pronouncements thereon intended for the guidance for the lower court upon further proceedings.  [Citation.]”  (County of Fresno v. Superior Court (1978) 82 Cal.App.3d 191, 194, 146 Cal.Rptr. 880.)   The dicta in Marks I, however, does not meet the standard for persuasiveness suggested by County of Fresno v. Superior Court.

It is clear from the record in Marks I the Court did not consider the double jeopardy problem that might arise if it reversed Marks' murder conviction for failure to hold a competency hearing and the People attempted to retry Marks for first degree murder.   The record shows it was not Marks who raised the issue of the competency hearing.   The Supreme Court itself raised this issue in a letter to the parties prior to oral argument.   In that letter the Court noted the clerk's transcript reflected a competency hearing was ordered but did not reflect the hearing was ever held.   The Court requested the parties advise it whether a competency hearing was in fact held or, if not, the effect of such failure on Marks' conviction in light of People v. Hale (1988) 44 Cal.3d 531, 244 Cal.Rptr. 114, 749 P.2d 769.3  The parties agreed no competency hearing was held and argued in letter briefs to the Court whether that failure required a reversal of Marks' conviction.   Neither party discussed the double jeopardy implications of a reversal on that ground should the People attempt to retry Marks for first degree murder.

The parties did brief the double jeopardy consequences of reducing Marks' conviction from first degree murder to second degree murder under the mandate of section 1157:  the question left open in McDonald.   The People, naturally, argued there was no double jeopardy bar to a retrial for first degree murder and Marks, naturally, argued there was.   However, Marks also argued a decision on this issue would be premature.   He pointed out the People had not yet decided to retry him for first degree murder and, consequently, he had not yet attempted to enter a plea of once in jeopardy or of former acquittal.   Therefore, Marks argued, it was not necessary for the Supreme Court to resolve the double jeopardy issue in this appeal.

The Court must have accepted Marks' position.   It is just plain unreasonable to believe the Court would decide, sub silencio, two major questions of first impression involving double jeopardy, a protection “fundamental ․ in our constitutional heritage.”  (Benton v. Maryland (1969) 395 U.S. 784, 794, 89 S.Ct. 2056, 2062, 23 L.Ed.2d 707.)

In People v. McDonald, the Court stated the question whether double jeopardy principles apply to verdicts under section 1157 is one to which the “answer is not immediately obvious.”  (37 Cal.3d at p. 383, fn. 31, 208 Cal.Rptr. 236, 690 P.2d 709.)   It is difficult to believe an answer “not immediately obvious” to the Court when it decided McDonald suddenly became so obvious when it decided Marks I the answer did not even merit one word of discussion.

Similarly, the question whether a person acquitted of one crime and convicted of another can be retried for both when his conviction for the latter offense is reversed for failure to afford him a competency hearing is one of first impression.   No previous case reversing a conviction for failure to afford the defendant a competency hearing involved the situation where the defendant had been acquitted of some of the charges against him.  (See, e.g., People v. Hale, supra;  People v. Pennington (1967) 66 Cal.2d 508, 58 Cal.Rptr. 374, 426 P.2d 942;  People v. Westbrook (1964) 62 Cal.2d 197, 41 Cal.Rptr. 809, 397 P.2d 545;  People v. Tomas (1977) 74 Cal.App.3d 75, 141 Cal.Rptr. 453.)   Surely, if the Court in Marks I meant to address this question it would not have done so in the abstruse way suggested by the majority opinion in the instant case.  (See maj. op. at p. 915.)

Given the appellate record of Marks I, the only reasonable conclusion is that the Court decided to leave for another day a decision about the double jeopardy consequences of section 1157 and did not consider at all the double jeopardy consequences of a reversal under People v. Hale when the defendant has been acquitted of some of the charges against him.   Thus, no court until now has had reason to address the questions presented in the case before us.

II. CONVICTION OF THE LESSER DEGREE OF A CRIME UNDER SECTION 1157 BARS RETRIAL FOR THE GREATER DEGREE AFTER REVERSAL ON APPEAL.

When the jury has the choice of a greater or lesser degree of offense and chooses the lesser, the choice acts as an implied acquittal of the greater degree for double jeopardy purposes.  (Green v. United States, supra, 355 U.S. at p. 191, 78 S.Ct. at p. 225;  Gomez v. Superior Court (1958) 50 Cal.2d 640, 643, 328 P.2d 976.)   The question before us is whether the same rule applies when the jury fails to choose and the choice of the lesser offense is made, instead, by the Legislature.   Under Penal Code section 1157, “[u]pon the failure of the jury or the court to ․ determine [the degree of the crime], the degree of the crime or attempted crime of which the defendant is guilty, shall be deemed to be of the lesser degree.”

As our Supreme Court observed in McDonald, the question whether double jeopardy principles will bar retrial for the greater degree of offense is a difficult one which requires weighing a number of policy considerations.   (37 Cal.3d at p. 383, fn. 31, 208 Cal.Rptr. 236, 690 P.2d 709.)   The question is made even more difficult by the fact the parties here have given the matter scant attention in their briefs.   Were it not for the majority's refusal to acknowledge the issue even exists we might call for supplemental briefing on the question.   Failing that, and with the hope our Supreme Court will finally resolve this issue, I set out below the arguments which seem most salient to me and the reasons why I believe the double jeopardy and due process clauses prohibit retrial for the greater offense.4

Since the earliest cases interpreting the double jeopardy clause it has been a fundamental principle that no criminal defendant acquitted of an offense can be retried for that same offense.  (See United States v. Ball (1896) 163 U.S. 662, 671, 16 S.Ct. 1192, 1195, 41 L.Ed. 300;  People v. Webb (1869) 38 Cal. 467, 479–480;  Pen.Code, § 1023 (Stats. 1872).)   It is plain then, if we recognize the application of section 1157 to be the equivalent of an acquittal on the greater degree of the offense charged, the defendant cannot be retried for that offense.  (Gomez v. Superior Court, supra, 50 Cal.2d at p. 653, 328 P.2d 976.)

The legislative history of section 1157 offers little guidance on the question whether a defendant “deemed” guilty of the lesser degree of an offense is also “deemed” acquitted of the greater degree for purposes of the double jeopardy clause.   As originally enacted, section 1157 provided simply:  “ ‘Whenever a crime is distinguished into degrees, the jury, if they convict the defendant, must find the degree of the crime of which he is guilty.’ ”   (People v. Dixon (1979) 24 Cal.3d 43, 51, 154 Cal.Rptr. 236, 592 P.2d 752.)   There was no statutory remedy prescribed for the jury's failure to specify the degree.   The court-crafted remedy was to set aside the verdict, reverse the judgment and order a new trial.  (See, e.g., People v. Lee Yune Chong (1892) 94 Cal. 379, 386, 29 P. 776 citing cases.)   Defendants' claims of double jeopardy under this procedure were rejected on the theory that by appealing the error in their judgments, defendants had impliedly consented to a new trial.   (Id. at pp. 386–387, 29 P. 776;  People v. Travers (1888) 77 Cal. 176, 178, 19 P. 268;  cf. In re Colford (1924) 68 Cal.App. 308, 311, 229 P. 63 [granting writ of habeas corpus and ordering new trial on same theory].)

Cases holding double jeopardy did not bar retrial under the original version of section 1157 are consistent with the long established rule double jeopardy does not bar retrying a defendant for the same offense following reversal of an erroneous conviction.  (United States v. Tateo (1964) 377 U.S. 463, 465, 84 S.Ct. 1587, 1588, 12 L.Ed.2d 448.)   These cases do not, however, resolve the double jeopardy issue under the current version of section 1157.   Marks does not contend that, if section 1157 had been properly applied, he could not be retried for second degree murder if his conviction for that offense were set aside on appeal.   Furthermore, the current version of section 1157 eliminates the need for a new trial when the jury fails to specify the degree of the offense because the statute itself fixes the degree at the lower level.  (In re Harris (1967) 67 Cal.2d 876, 881, 64 Cal.Rptr. 319, 434 P.2d 615.)

There is some support for the argument section 1157 operates to acquit the defendant of the greater degree of offense.   In People v. Hughes (1959) 171 Cal.App.2d 362, 370, 340 P.2d 679 the court held that under section 1157 the jury's verdict of guilty “as charged in the information” must be construed as a verdict of second degree murder.  “Of that crime and of that crime only has appellant been convicted and by that verdict he had been acquitted of first degree murder.”  (Italics added.)   The language in Hughes, however, is dictum.   There was no double jeopardy issue in that case and therefore no need to determine if Hughes had been acquitted of first degree murder.   Unlike McDonald, there was no retrial because there was no reversible error in Hughes other than the failure to apply section 1157.   That error was cured by ordering the trial court to enter a conviction of second degree murder.  (Id. at p. 370, 340 P.2d 679.)

It can be argued a conviction of the lesser degree of an offense under section 1157 necessarily implies acquittal of the greater degree.   Without such a balancing of the books, the prosecution would be free to retry every defendant for the greater degree offense, even those who were content to accept their lesser degree conviction and go quietly off to prison.

It would appear unnecessary, however, to imply an acquittal of the greater offense if the only object is to prevent repeated attempts to convict the defendant of that offense.   If the defendant is convicted of the lesser degree of offense, e.g., second degree murder, and he does not appeal, he cannot be retried for first degree murder.  (Pen.Code, § 1023, cf. People v. Greer (1947) 30 Cal.2d 589, 597, 184 P.2d 512.)5  Furthermore, if the defendant was willing to accept his second degree murder conviction under section 1157 and go quietly off to prison, repeated attempts by the prosecutor to convict him of first degree murder would undoubtedly be barred by double jeopardy principles under the United States Constitution.  (See, e.g., Ohio v. Johnson (1984) 467 U.S. 493, 498–499, 502, 104 S.Ct. 2536, 2540, 2542, 81 L.Ed.2d 425;  Tibbs v. Florida (1982) 457 U.S. 31, 41–43, 102 S.Ct. 2211, 2217–2219, 72 L.Ed.2d 652.)

Whether double jeopardy principles will bar retrial for the greater degree after appeal and reversal as to the lesser degree is a more difficult question.   As the court explained in McDonald,

“In the usual case a defendant is convicted by the trier of fact of a lesser degree of the crime charged and the judgment is reversed on appeal;  in that event it has long been held that the defendant cannot be retried on the greater degree because of the double jeopardy clause.  (Green v. United States (1957) 355 U.S. 184 [78 S.Ct. 221, 2 L.Ed.2d 199, 61 A.L.R.2d 1119];  Gomez v. Superior Court (1958) 50 Cal.2d 640 [328 P.2d 976].)   Here defendant's conviction of the lesser degree follows not from a finding of the trier of fact but by operation of law.”  (37 Cal.3d at p. 383, fn. 31, 208 Cal.Rptr. 236, 690 P.2d 709.)

The distinction noted in McDonald between a conviction based on a finding by the trier of fact and a conviction resulting by operation of law issignificant because it affects the balancing of interests that governed the application of the double jeopardy clause in cases such as Green and Gomez.   The state's interest is in “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.)   The defendant's principal interest is in putting an end to the proceedings.  (Abney v. United States (1977) 431 U.S. 651, 661, 97 S.Ct. 2034, 2041, 52 L.Ed.2d 651.)

The state's full and fair opportunity to convict entitles it to resolution of the case by verdict from the jury.  (Richardson v. United States (1984) 468 U.S. 317, 326, 104 S.Ct. 3081, 3086, 82 L.Ed.2d 242.)   If the jury, having heard the state's evidence, finds the defendant guilty of some lesser charge or lesser degree of the offense, the state's interest is satisfied and the defendant's interest in finality bars retrial.   Thus, in Green v. United States, supra, the court held that where a defendant charged with first degree murder was convicted in a jury trial of second degree murder and on appeal the conviction was reversed, the defendant could not again be tried for first degree murder.

“The underlying idea [of the double jeopardy clause] ․ is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, 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.”  (355 U.S. at pp. 187–188, 78 S.Ct. at P. 223;  accord, Gomez v. Superior Court (1958) 50 Cal.2d 640, 649, 328 P.2d 976.)

If, on the other hand, the jury fails to determine the degree of crime, it has, arguably, deprived the state of its full and fair opportunity to convict someone who has violated its laws.

Prior to 1949, the jury's failure to find the degree of the offense required reversal of the defendant's conviction and a new trial.  (See Discussion, supra, p. 918.)   In 1949, the Legislature amended section 1157 to automatically set the degree at the lesser degree of the offense when the jury failed to find the degree of the crime.   In doing so, “the Legislature ․ determined that the state's interest in securing a conviction of a higher degree is outweighed by the administrative convenience of terminating litigation by imposing a lesser sentence when the [trier of fact] fails to determine the degree.”  (In re Harris, supra, 67 Cal.2d at p. 881 & fn. 6, 64 Cal.Rptr. 319, 434 P.2d 615.)   Thus, the purpose of section 1157 is to promote the interests of the state and the defendant in finality of judgment by resolving ambiguities in the form of the verdict.  (See People v. Lamb (1986) 176 Cal.App.3d 932, 935, 222 Cal.Rptr. 570.)

By appealing his lesser degree conviction, the defendant, if he is successful, gives up his right to finality in order to try to win acquittal of the entire charge.  (See Trono v. United States (1905) 199 U.S. 521, 533, 26 S.Ct. 121, 124, 50 L.Ed. 292.) 6  Arguably, then, the state which was deprived of the opportunity to obtain a conviction on the greater degree at the first trial is entitled to renew that attempt if the lesser degree conviction is reversed.   The purpose of section 1157 to promote finality of judgment is no longer relevant because the defendant has eschewed finality in favor of a chance at acquittal.   Having made this choice, the defendant cannot claim the state is harassing him or attempting to wear him down through repeated attempts to convict him.  (See Green, supra, 355 U.S. at p. 187, 78 S.Ct. at pp. 223–224;  United States v. DiFrancesco (1980) 449 U.S. 117, 130, 101 S.Ct. 426, 433, 66 L.Ed.2d 328.)   And, unlike the situation in Green, there is no jury verdict to act as an “implicit acquittal” on the greater degree of the offense.  (Green, supra, 355 U.S. at p. 190, 78 S.Ct. at p. 225.)

In explaining why Green's conviction of second degree murder operated as an acquittal of first degree murder, the court placed particular emphasis on the fact the jury chose to convict Green of second degree murder.

“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 an 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․  In brief, we believe this case can be treated no differently, for purposes of former jeopardy, than if the jury had returned a verdict which expressly read:  ‘We find the defendant not guilty of murder in the first degree but guilty of murder in the second degree.’ ”  (Id. at pp. 190–191, 78 S.Ct. at p. 225.)   (Fn. and citation omitted.)

In the present case, the jury was not given a full opportunity to return a verdict and there were extraordinary circumstances which prevented it from doing so.   Marks' jury was not given a verdict form on which to indicate the degree of murder and was not even told it was required to specify the degree.   (Marks I, supra, 45 Cal.3d at p. 1344, 248 Cal.Rptr. 874, 756 P.2d 260.)   Thus, a fairly strong argument can be made the rationale of Green does not apply to the present case because of the significant factual differences in the way the cases were presented to the juries.

The state's interest in a “fair opportunity” for conviction is also violated when the judge fails to make sure the jury has specified the degree of the offense in its verdict.  “It is the duty of a Court to look after the form and substance of a verdict, so as to prevent a doubtful or insufficient finding from passing into the records of the Court․”  (People v. Jenkins (1880) 56 Cal. 4, 7.)   It can be argued application of the double jeopardy clause should not “be a game in which a wrong move by the judge means immunity for the [defendant].”  (Bozza v. United States (1947) 330 U.S. 160, 166–167, 67 S.Ct. 645, 649, 91 L.Ed. 818.)   Although Marks' finality interests would have precluded the state from relief for the trial court's blunder, that finality interest is no longer applicable.   Therefore, it can be argued the state should be freed from the effects of court's error at a new trial.

In summary, in section 1157 cases the arguments in favor of allowing retrial for the greater offense after reversal of conviction for the lesser offense are:  (1) when the jury fails to specify the degree of offense in its guilty verdict it deprives the state of the right to a full and fair opportunity to convict the defendant of the offense of which he is guilty;  (2) the defendant's interest in finality of judgment is not applicable because a new trial is the natural result of his successful appeal;  (3) the holding of Green v. United States is not applicable to convictions under section 1157 because the jury did not choose to convict the defendant of the lesser degree of the offense and may, in fact, have been prevented from doing so.

In my view, it is unnecessary to decide whether convicting Marks of second degree murder would operate to “acquit” him of first degree murder for double jeopardy purposes.   There is another, more compelling, reason why Marks cannot be retried for first degree murder.  “A defendant's right of appeal from an erroneous judgment is unreasonably impaired when he is required to risk his life to invoke that right.”  (People v. Henderson (1963) 60 Cal.2d 482, 497, 35 Cal.Rptr. 77, 386 P.2d 677.)

Whether labeled a principle of double jeopardy, (Green v. United States, supra, 355 U.S. at pp. 193–194, 78 S.Ct. at pp. 226–227) or due process, (North Carolina v. Pearce (1969) 395 U.S. 711, 724, 89 S.Ct. 2072, 2080, 23 L.Ed.2d 656), the United States Supreme Court has made it clear the state cannot impose a penalty upon the defendant for having successfully pursued a statutory right of appeal.   In Green, supra, in which the jury convicted the defendant of second degree murder, the court held, “Conditioning an appeal of one offense on a coerced surrender of a valid plea of former jeopardy on another offense exacts a forfeiture in plain conflict with the constitutional bar against double jeopardy.”  (Green v. United States, supra, 355 U.S. at pp. 193–194, 78 S.Ct. at p. 227;  accord:  Gomez v. Superior Court, supra, 50 Cal.2d at p. 652, 328 P.2d 976.)   In Pearce, supra, the court held the state's ability to impose a harsher sentence on retrial for the same offense is limited by the defendant's due process right to “ ‘free and unfettered’ ․ access to the courts.”  (395 U.S. at p. 724, 89 S.Ct. at p. 2080, citations omitted.)   Although the due process clause does not require appellate review, Ross v. Moffitt (1974) 417 U.S. 600, 611, 94 S.Ct. 2437, 2444, 41 L.Ed.2d 341, “it is now fundamental that, once established, these avenues must be kept free of unreasoned distinctions that can only impede open and equal access to the courts.”  (North Carolina v. Pearce, supra, 395 U.S. at p. 724, 89 S.Ct. at p. 2080.)

It appears to me beyond dispute that subjecting Marks to the risk of a first degree murder conviction and, possibly, a death sentence as a condition of receiving a fair trial imposes an unconstitutional condition on both his right to appeal and his right to a fair trial.   It must be remembered how Marks got into this predicament.   If the trial court had proceeded in accordance with section 1157, Marks could have gone quietly off to prison secure in the knowledge he could not be retried for first degree murder.  (See Discussion, supra, p. 919.)   Or, if he had appealed his second degree murder conviction and lost, the result would have been the same.   It is only because the trial judge failed to apply section 1157 and denied Marks a fair trial by failing to hold a competency hearing (Pate v. Robinson (1966) 383 U.S. 375, 385, 86 S.Ct. 836, 842, 15 L.Ed.2d 815) that Marks is facing a retrial and the possibility of a death sentence.

The People argue the law is capable of correcting one of these errors but not both;  it is up to Marks to choose which.   In my view the law should not and does not place the defendant in such an incredible dilemma.  (Green, supra, 355 U.S. at p. 193, 78 S.Ct. at p. 226.)

III. A JUDGMENT OF ACQUITTAL IN A COURT WITH SUBJECT MATTER JURISDICTION BARS DEFENDANT'S RETRIAL FOR THE SAME OFFENSE.

Another way of approaching this case is to construe section 1157 as acquitting Marks of first degree murder and convicting him of second degree murder.7  In the usual case this would end the inquiry for double jeopardy purposes because once the court finds the defendant has been acquitted of the greater degree of offense, double jeopardy bars the defendant's retrial for that offense.  (Green v. United States, supra, 355 U.S. at p. 191, 78 S.Ct. at p. 225;  People v. Mercer (1962) 210 Cal.App.2d 153, 161, 26 Cal.Rptr. 502;  People v. McDonald, supra, 37 Cal.3d at p. 383, fn. 31, 208 Cal.Rptr. 236, 690 P.2d 709.)   Even the majority of this court would concede, I think, that had Marks been explicitly convicted of second degree murder and the conviction reversed, let us say, because of an instructional error Marks could not be retried for first degree murder.   But again, this is not the usual case.

What makes this case unusual is the fact Marks' conviction was reversed on the ground “the trial court had no jurisdiction to proceed on the charges against defendant until the court determined whether defendant was competent to stand trial.”  (Marks I, 45 Cal.3d at p. 1340, 248 Cal.Rptr. 874, 756 P.2d 260, italics added.)   Seizing on the word “jurisdiction,” the People argue if the trial court lacked jurisdiction to try Marks then jeopardy never attached and there is no bar to a retrial for first degree murder.

The People's argument ignores the question what sort of “jurisdiction” the Court was referring to in Marks I when it stated, “the trial court had no jurisdiction to proceed․”  (45 Cal.3d at p. 1340, 248 Cal.Rptr. 874, 756 P.2d 260.)   The answer to this question is critical because, as discussed below, if the trial court lacked personal jurisdiction over Marks or subject matter jurisdiction over the cause then jeopardy did not attach and Marks may be retried for first degree murder.   If, on the other hand, the trial court had subject matter jurisdiction but acted in excess of that jurisdiction, jeopardy attached and Marks cannot be retried for first degree murder.

The term “jurisdiction” carries a variety of meanings.  “Lack of jurisdiction in its most fundamental or strict sense means an entire absence of power to hear or determine the case, an absence of authority over the subject matter or the parties.”  (Abelleira v. District Court of Appeal (1941) 17 Cal.2d 280, 288, 109 P.2d 942.)   In comparison, the term may be applied to circumstances where, “though the court has jurisdiction over the subject matter and the parties in the fundamental sense, it has no ‘jurisdiction’ (or power) to act except in a particular manner ․ or to act without the occurrence of certain procedural prerequisites.”  (Ibid.)

In a criminal case, jurisdiction in the fundamental sense consists of two elements:  jurisdiction over the person and jurisdiction over the offense.   (Burns v. Municipal Court (1961) 195 Cal.App.2d 596, 599, 16 Cal.Rptr. 64.)   The jurisdictional defects in the cases cited by the People were all of the fundamental kind.   In Anger v. Municipal Court (1965) 237 Cal.App.2d 69, 72–73, 46 Cal.Rptr. 577, the court in the previous case never acquired jurisdiction over the defendant.   In People v. Zadro (1937) 20 Cal.App.2d 320, 323, 66 P.2d 1204, the court in the previous case had no jurisdiction over the offense charged.   In United States v. Ball (1896) 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300, the court in the previous case had jurisdiction of the cause and Ball's plea of double jeopardy was upheld.   In dictum, however, the Supreme Court observed, “An acquittal before a court having no jurisdiction is, of course, like all proceedings in the case, absolutely void, and therefore no bar to subsequent indictment and trial in a court which has jurisdiction of the offense.”  (Id. at p. 669, 16 S.Ct. at p. 1194.) 8  In the present case the People do not argue, and the evidence does not suggest, the trial court lacked jurisdiction over Marks or the cause.

A court having jurisdiction in the fundamental sense may be said to have “lacked jurisdiction” if it did something beyond the power granted it.

“Even though a court has jurisdiction of the subject matter and the person of the defendant, it still must act within its jurisdiction, i.e., within constitutional and statutory limitations.   Acts in substantial disregard of important limitations, or which deny fundamental rights or defenses, are in excess of jurisdiction.”  (4 Witkin & Epstein, Cal. Criminal Law (2d ed. 1989) at p. 2165.)

Thus, a court may have jurisdiction in the fundamental sense of power to try a certain class of crimes but may act without, i.e. in excess of, jurisdiction by doing something that exceeded its jurisdiction.

Historically, the most intriguing example of a trial court acting in excess of its jurisdiction occurred in the case of Alfred Packer, the notorious “man-eater of the frontier,” who led an expedition of gold-seekers into the Colorado mountains and returned alone but with a full stomach.   Packerwas indicted and found guilty of murder and sentenced to death.9  His murder conviction was reversed because at the time of his trial the new State of Colorado had no statute punishing the crime of murder.   Therefore, “the court was without jurisdiction to try the prisoner for that crime.”   (Packer v. People (1885) 8 Colo. 361, 8 P. 564, 568.)   The court noted the indictment itself was not defective because it was deemed to also charge Packer with manslaughter, a crime for which Packer could have been convicted and punished under Colorado law as it existed at the time of his trial.   Thus, the trial court had jurisdiction, in the fundamental sense, to put Packer on trial for manslaughter but “the court erred in putting Packer upon trial for murder.”  (Id. 8 P. at p. 566.)

A similar, but less dramatic, example of a court acting in excess of jurisdiction occurred in California in the case of People v. Broussard (1977) 76 Cal.App.3d 193, 142 Cal.Rptr. 664.   Broussard was charged with attempted murder.   In accordance with instructions it received from the trial court, the jury convicted Broussard of the lesser included offense of “attempted involuntary manslaughter.”   The conviction was reversed on the ground there is no such crime as “attempted involuntary manslaughter.”  (Id. at p. 197, 142 Cal.Rptr. 664.)   In Broussard, the trial court had subject matter jurisdiction over the charged offense, attempted murder, but acted in excess of that jurisdiction by trying and convicting defendant for a non-existent crime.  (See also People v. Bean (1989) 213 Cal.App.3d 639, 642, 261 Cal.Rptr. 784 [defendant convicted of “non-crime”:  attempted petty theft with a prior conviction].)

Another pertinent example of a trial court acting in excess of its jurisdiction occurred in In re Shaw (1953) 115 Cal.App.2d 753, 252 P.2d 970.   Shaw was undergoing trial in a municipal court for disturbing the peace, a misdemeanor, when the trial court announced it had a doubt as to her sanity.   The municipal court proceeded to conduct a hearing pursuant to sections 1368 and 1369 which resulted in Shaw's commitment to a state mental hospital.   The appellate court granted her petition for a writ of habeas corpus on the ground the municipal court had jurisdiction over the charged offense but it did not have jurisdiction to conduct a sanity proceeding.   That question should have been referred to the superior court for determination.  (Id. at p. 756, 252 P.2d 970.)

It is well established that where the trial court lacks subject matter jurisdiction, or jurisdiction over the defendant, jeopardy does not attach and the defendant's acquittal under those circumstances is not a bar to retrial for the same offense.  (See Kepner v. United States (1904) 195 U.S. 100, 133, 24 S.Ct. 797, 806, 49 L.Ed. 114;  Grafton v. United States (1907) 206 U.S. 333, 345, 27 S.Ct. 749, 751, 51 L.Ed. 1084;  Serfass v. United States (1975) 420 U.S. 377, 391, 95 S.Ct. 1055, 1064, 43 L.Ed.2d 265, and see cases discussed, supra, at p. 923.)   In Serfass, the court observed, “Both the history of the Double Jeopardy Clause and its terms demonstrate that it does not come into play until a proceeding begins before a trier ‘having jurisdiction to try the question of the guilt or innocence of the accused.’  ․ Without risk of a determination of guilt, jeopardy does not attach, and neither an appeal nor further prosecution constitutes double jeopardy.”  (420 U.S. at pp. 391–392, 95 S.Ct. at p. 1064, citation omitted.)   If the court lacks jurisdiction in the fundamental sense, it is incapable of rendering an enforceable judgment of guilt.   Thus, the defendant's life or liberty was never “at risk.”   The defendant has not been placed in jeopardy.

The rule is different when the trial court has subject matter jurisdiction but acts in excess of its jurisdiction when it acquits the defendant.   In that situation, the acquittal stands as a bar to retrial for the offense on which the defendant was acquitted.   Thus, in People v. Broussard, supra, the court held that notwithstanding the fact the jury convicted appellants of a nonexistent offense, the conviction operated as an implied acquittal of the greater offenses of attempted murder and attempted voluntary manslaughter and, therefore, double jeopardy barred retrial of appellants for those offenses.  (See also Fong Foo v. United States (1962) 369 U.S. 141, 143, 82 S.Ct. 671, 672, 7 L.Ed.2d 629;  People v. Valenti (1957) 49 Cal.2d 199, 208, 316 P.2d 633;  cf. Sanabria v. United States (1978) 437 U.S. 54, 78, 98 S.Ct. 2170, 2186, 57 L.Ed.2d 43;  Benton v. Maryland (1969) 395 U.S. 784, 796–797, 89 S.Ct. 2056, 2063–2064, 23 L.Ed.2d 707;  People v. Horn (1886) 70 Cal. 17, 19, 11 P. 470.)

In Fong Foo v. United States, the prosecutor was only a few witnesses into what promised to be a long and complicated trial when the trial judge decided he had heard enough and directed the jury to return verdicts of acquittal as to all defendants.   A formal judgment of acquittal was subsequently entered.  (369 U.S. at pp. 141–142, 82 S.Ct. at pp. 671–672.)   The Supreme Court refused to vacate the acquittal and allow the defendants to be retried.   The court accepted the government's argument the trial court “was without power to direct acquittals under the circumstances․”  Nevertheless, the court held, setting aside the acquittal and retrying the defendants would violate the double jeopardy clause.

“The [defendants] were tried under a valid indictment in a federal court which had jurisdiction over them and over the subject matter․  The trial ․ terminated with the entry of a final judgment of acquittal as to each [defendant].   The Court of Appeals thought, not without reason, that the acquittal was based on an egregiously erroneous foundation.   Nevertheless, ‘[t]he verdict of acquittal was final, and could not be reviewed ․ without putting [defendants] twice in jeopardy, and thereby violating the Constitution.’ ”  (Id. at p. 143, 82 S.Ct. at p. 672, italics added, citation omitted.)

Similarly, in People v. Valenti, supra, 49 Cal.2d 199, 316 P.2d 633 the People attempted to appeal from a trial court's order, made in the midst of trial, dismissing the information on the ground the defendant was illegally arrested.   The Court agreed with the People the trial court had exceeded its jurisdiction but found reversal would be futile because the dismissal constituted an acquittal on the charge and defendant could not be retried.   (Id. at pp. 208–209, 316 P.2d 633.)

“The purpose of the constitutional provision against double jeopardy is to prevent repeated harassment of a defendant upon a charge of the same offense.   Certainly this purpose is subserved by refusing to permit repeated retrials of a defendant in order to remedy errors of law such as those made here by the trial court in the course of trial.”  (Id. at p. 209, 316 P.2d 633.)

In analogous cases, courts have held the double jeopardy clause bars retrial after acquittal where the jury trying the case was illegally constituted, (Benton v. Maryland, supra, 395 U.S. at pp. 796–797, 89 S.Ct. at pp. 2063–2064), where the trial court erroneously excluded the government's evidence;  (Sanabria v. United States, supra, 437 U.S. at pp. 77–78, 98 S.Ct. at pp. 2185–2186);  and where the trial court misinstructed the jury, (People v. Horn, supra, 70 Cal. at p. 19, 11 P. 470 [dictum].)

The reason why acts in excess of jurisdiction do not overrule an acquittal is found at the very core of the double jeopardy principle.   That principle, variously stated, is simply this:  once the defendant is acquitted of the offense charged against him it is fundamentally unjust to try him again.  (See Burks v. United States, supra, 437 U.S. at p. 11, 98 S.Ct. at p. 2147;  Benton v. Maryland, supra, 395 U.S. at p. 795, 89 S.Ct. at p. 2063;  Arizona v. Washington (1978) 434 U.S. 497, 503, 98 S.Ct. 824, 829, 54 L.Ed.2d 717;  United States v. DiFrancesco, supra, 449 U.S. at p. 129, 101 S.Ct. at p. 433.)   The fundamental nature of this principle is evidenced by its history dating back to Greek, Roman and canon law and in its recognition today as “the most fundamental rule in the history of double jeopardy jurisprudence.”  (United States v. Martin Linen Supply Co. (1977) 430 U.S. 564, 571, 97 S.Ct. 1349, 1354, 51 L.Ed.2d 642;  and see Benton v. Maryland, supra, 395 U.S. at p. 795, 89 S.Ct. at p. 2063;  Westen & Drubel, Toward A General Theory Of Double Jeopardy, 1978 Sup.Ct.Rev. 81, fn. 2.)   Whatever uncertainties may otherwise exist in constitutional law, the double jeopardy clause accords “absolute finality to a jury's verdict of acquittal ․,” (Burks v. United States, supra, 437 U.S. at p. 16, 98 S.Ct. at p. 2150), and “unequivocally prohibits a second trial following an acquittal.”  (Arizona v. Washington, supra, 434 U.S. at p. 503, 98 S.Ct. at p. 829.)   The public interest in this principle is so strong an acquitted defendant may not be retried no matter how egregiously the trial court errs.   (Id. at p. 503, 98 S.Ct. at p. 829;  Fong Foo v. United States, supra, 369 U.S. at p. 143, 82 S.Ct. at p. 672.)   Only where the court lacked jurisdiction in the fundamental sense, and consequently jeopardy did not attach, may an acquitted defendant be retried for the same offense.

The hearing requirement of section 1368 is not “jurisdictional” in a fundamental sense.   It does not empower the court to hear or determine the cause.   Rather, it measures the power the court may exercise in hearing the cause.   Under the statute, “when an order for a hearing into the present mental competence of the defendant has been issued, all proceedings in the criminal prosecution shall be suspended․”  (§ 1368, subd. (c), italics added.)   Therefore, “once a trial court has ordered a competency hearing pursuant to section 1368, the court lacks jurisdiction to conduct further proceedings on the criminal․”  (Marks I, supra, 45 Cal.3d at p. 1337, 248 Cal.Rptr. 874, 756 P.2d 260.)   The court's inability to conduct further proceedings is not because personal and subject matter jurisdiction over the defendant have, somehow, become detached.   The court lacks jurisdiction to proceed because the court's power to act in the case is suspended.  (See People v. Rothrock (1936) 8 Cal.2d 21, 24, 63 P.2d 807.)   Thus, a trial court continuing with the trial instead of holding a hearing on defendant's competency, as occurred in Marks' trial, presents a classic case of a court proceeding in excess of its jurisdiction.

The People argue the trial court's proceeding with the trial without a full competency hearing “rendered the subsequent trial proceedings void․”  (Marks I, supra, 45 Cal.3d at p. 1344, 248 Cal.Rptr. 874, 756 P.2d 260, quoting People v. Hale, supra, 44 Cal.3d at p. 541, 244 Cal.Rptr. 114, 749 P.2d 769.)   If the subsequent trial proceedings were void, the People reason, then neither the conviction nor the acquittal are of any effect and all the charges must be retried.   Again, the People ignore the critical distinction between a judgment of conviction and a judgment of acquittal.   When the Court said the subsequent proceedings in Hale's case were void, it meant the trial court's error was so grave it undermined fundamental assumptions on which the legitimacy of criminal convictions are based.   Among these are the assumptions the defendant understands the nature of the proceedings against him, is able to consult with counsel and to assist in the conduct of his defense.  (People v. Pennington, supra, 66 Cal.2d at p. 516, 58 Cal.Rptr. 374, 426 P.2d 942;  Drope v. Missouri (1975) 420 U.S. 162, 171, 95 S.Ct. 896, 903, 43 L.Ed.2d 103.)   Once these assumptions are called into doubt further proceedings are “void” in the sense they are conducted in violation of rights so fundamental a conviction cannot be sustained no matter how strong the evidence.  (People v. Pennington, supra, 66 Cal.2d at p. 521, 58 Cal.Rptr. 374, 426 P.2d 942;  Drope v. Missouri, supra, 420 U.S. at p. 181, 95 S.Ct. at p. 908;  Pate v. Robinson, supra, 383 U.S. at p. 386, 86 S.Ct. at p. 842;  Dusky v. United States (1960) 362 U.S. 402, 403, 80 S.Ct. 788, 789, 4 L.Ed.2d 824.)

Under due process principles, doubts about the defendant's competency do not void the resolution of all issues at the trial;  only those not “susceptible of fair determination ․ without the personal participation of the defendant.”   (Model Pen.Code, § 4.06, subd. (3) (Proposed Official Draft 1962);  and see Jackson v. Indiana (1972) 406 U.S. 715, 740, 92 S.Ct. 1845, 1859, 32 L.Ed.2d 435.)

As counsel for Marks points out, the distinction is highly relevant.   The conviction of an incompetent defendant cannot be regarded as a “fair determination” of guilt.   Its reliability is compromised by doubt about whether the defendant was able to participate fully and effectively in his defense.   This is not true of an acquittal.   The defendant's inability to participate fully does not undermine the fairness or reliability of the acquittal and, therefore, provides no basis for holding an acquittal void.

To hold the trial court's proceeding with the trial without a full competency hearing rendered the defendant's acquittal void would be to turn the Bill of Rights on its head.   The United States Supreme Court has recognized certain constitutional errors require reversal of a conviction without regard to the strength of the evidence of guilt.  (See, e.g., Payne v. Arkansas (1958) 356 U.S. 560, 567–568, 78 S.Ct. 844, 849–850, 2 L.Ed.2d 975 [introduction of coerced confession];  Tumey v. Ohio (1927) 273 U.S. 510, 535, 47 S.Ct. 437, 445, 71 L.Ed. 749 [adjudication by biased judge];  Pate v. Robinson, supra, 383 U.S. at p. 385, 86 S.Ct. at p. 842 [denial of competency hearing where evidence raises “bona fide doubt” as to defendant's competency to stand trial].)   It is patently absurd to argue a defendant acquitted despite the prosecution's use of a coerced confession, despite being tried by a biased judge or despite doubts about his competency to stand trial, must be retried because his trial was constitutionally flawed.   A defendant who has obtained an acquittal despite the prosecution or the trial court stacking the deck against him has more than earned his right to repose.  (See Green v. United States, supra, 355 U.S. at pp. 187–188, 78 S.Ct. at p. 223.)

For the reasons stated above, I would hold a defendant who is acquitted of a criminal charge despite a bona fide doubt about his competency cannot be retried for that charge after he is found competent.

I do not reach this conclusion easily or happily.   The choices are not easy.   To grant Marks the relief he requests appears to immunize him from retrial on special circumstance charges because of “a technicality.”   To deny him that relief, however, is to tell him and future defendants they must risk their lives in order to appeal convictions on lesser though still serious charges such as second degree murder.   I am not particularly happy with either alternative.   Yet, to my mind, the United States Constitution makes the choice for us and for that reason I would deny the petition.

FOOTNOTES

1.   Unless otherwise noted all statutory references are to the Penal Code.

2.   “Whenever a defendant is convicted of a crime or attempt to commit a crime which is distinguished into degrees, the jury, or the court if a jury trial is waived, must find the degree of the crime or attempted crime of which he is guilty.   Upon the failure of the jury or the court to so determine, the degree of the crime or attempted crime of which the defendant is guilty, shall be deemed to be of the lesser degree.”

3.   Section 1368 provides:  “(a) If, during the pendency of an action and prior to judgment, a doubt arises in the mind of the judge as to the mental competence of the defendant, he shall state that doubt in the record and inquire of the attorney for the defendant whether, in the opinion of the attorney, the defendant is mentally competent.   If the defendant is not represented by counsel, the court shall appoint counsel.   At the request of the defendant or his counsel or upon its own motion, the court shall recess the proceedings for as long as may be reasonably necessary to permit counsel to confer with the defendant and to form an opinion as to the mental competence of the defendant at that point in time.“(b) If counsel informs the court that he believes the defendant is or may be mentally incompetent, the court shall order that the question of the defendant's mental competence is to be determined in a hearing which is held pursuant to Sections 1368.1 and 1369.   If counsel informs the court that he believes the defendant is mentally competent, the court may nevertheless order a hearing.   Any hearing shall be held in the superior court.“(c) Except as provided in Section 1368.1, when an order for a hearing into the present mental competence of the defendant has been issued, all proceedings in the criminal prosecution shall be suspended until the question of the present mental competence of the defendant has been determined.“If a jury has been impaneled and sworn to try the defendant, the jury shall be discharged only if it appears to the court that undue hardship to the jurors would result if the jury is retained on call.“If the defendant is declared mentally incompetent, the jury shall be discharged.”

4.   E.g., double jeopardy, collateral estoppel, no standing, etc.

5.   Although RPI cites authorities for the proposition that an absence of jurisdiction is equivocal (Fong Foo v. United States (1962) 369 U.S. 141, 82 S.Ct. 671, 7 L.Ed.2d 629;  Benton v. Maryland (1969) 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707;  In re Griffin (1967) 67 Cal.2d 343, 62 Cal.Rptr. 1, 431 P.2d 625) and petitioner cites authorities for the proposition that an absence of jurisdiction is unequivocal (People v. Woods (1890) 84 Cal. 441, 23 P. 1119;  People v. Zadro (1937) 20 Cal.App.2d 320, 66 P.2d 1204;  Anger v. Municipal Court (1965) 237 Cal.App.2d 69, 46 Cal.Rptr. 577;  People v. Superior Court (Edmonds) (1971) 4 Cal.3d 605, 94 Cal.Rptr. 250, 483 P.2d 1202;  People v. Takencareof (1981) 119 Cal.App.3d 492, 174 Cal.Rptr. 112) none of these authorities pertain to section 1368 and are therefore not dispositive.

1.   All statutory references are to the Penal Code.

2.   People v. McDonald (1984) 37 Cal.3d 351, 383, footnote 31, 208 Cal.Rptr. 236, 690 P.2d 709.

3.   In Hale, the Court reversed the defendant's first degree murder conviction because the trial court failed to conduct a competency hearing after finding there was a doubt as to defendant's competency.   (Id. 44 Cal.3d at pp. 541–542, 244 Cal.Rptr. 114, 749 P.2d 769.)

4.   In contrast, it is abundantly clear that if Marks is deemed acquitted of first degree murder for double jeopardy purposes he cannot be retried for that crime on the ground the court lacked jurisdiction to proceed with the trial that acquitted him.  (See Discussion, infra, pp. 922 ff.)

5.   Penal Code section 1023 is based on California's prohibition against double jeopardy (Cal.Const., art. I, § 15):  “Persons may not twice be put in jeopardy for the same offense․”

6.   Unless the conviction is reversed for insufficiency of the evidence, (Burks v. United States (1978) 437 U.S. 1, 11, 98 S.Ct. 2141, 2147, 57 L.Ed.2d 1) the double jeopardy clause would not bar the defendant's retrial for the lesser degree of the offense.  (Green v. United States, supra, 355 U.S. at p. 189, 78 S.Ct. at p. 224.)

7.   See discussion, supra, pages 919–921.

8.   The other two cases cited by the People are not on point.   People v. Woods (1890) 84 Cal. 441, 442–443, 23 P. 1119 stands for the proposition a defendant cannot procure, by fraud on the court, a conviction on a lesser offense and then assert it as a bar to prosecution on the greater offense.  People v. Smith (1983) 33 Cal.3d 596, 602, 189 Cal.Rptr. 862, 659 P.2d 1152 held acquittal on the charged offense did not bar retrial on a previously uncharged lesser included offense.   Jurisdiction was not an issue.

9.   The strange facts of this case are not contained in the court's opinion but are recounted in numerous books including Simpson, Cannibalism And The Common Law (1984) at pages 150–159.   Among the legends that have arisen around Packer and his trial is the trial court's denouncement on sentencing Packer to the death penalty.  “You son-of-a-bitch.   There were only seven Democrats in this county and you ate five of them.”   This may be one of the first examples of murder with “special circumstances.”

FRED WOODS, Associate Justice.

LILLIE, P.J., concurs.