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Court of Appeal, Fourth District, Division 1, California.

The PEOPLE, Plaintiff and Appellant, v. Chris PETTI, Defendant and Respondent.

Cr. 11995.

Decided: November 18, 1983

Nicholas De Pento, San Diego, for defendant and respondent. Edwin L. Miller, Jr., Dist. Atty., Richard D. Huffman, Asst. Dist. Atty., William H. Kennedy, Chief Deputy Dist. Atty., Peter C. Lehman, Henry R. Mann, and Paul M. Morley, Deputy Dist. Attys., for plaintiff and appellant.

The People appeal a judgment of the trial court acquitting Chris Petti of felonious assault (Pen.Code, § 245) 1 after previously filing the returned jury verdict of guilty on that specific charge.

 In addition to conspiracy, Petti, and a co-defendant, were charged with assaulting separate victims with a baseball bat, actually striking one but missing the other.   Petti was convicted by a jury for the attack on the person missed, but acquitted of assaulting the person struck.2  After the judgments were formally entered, and the jury discharged, a corridor discussion outside the courtroom revealed the jurors mistakenly had returned a guilty verdict as to the assault on which they had unanimously voted to acquit (the miss), and entered a not guilty verdict on the felony count on which each juror voted for conviction (the hit).   Since the evidence would support a conviction on both counts (§ 245, subd. (a) may be violated without any striking of, or injury to the victim), neither entered verdict is inconsistent with the evidence as a matter of law.

The jury's confusion was triggered by the manner in which the verdict forms were prepared.   At the close of trial, verdict forms were prepared by the People which did not specify the victim named in each assault count, referring only to the offenses as charged generally in the indictment:

“We, the jury in the above entitled cause, find the defendant, CHRIS PETTI, ——— of the crime of Assault With a Deadly Weapon or by Means of Force Likely to Produce Great Bodily Injury, in violation of Penal Code section 245(a), as charged in Count Two of the Indictment.

“We, the jury in the above entitled cause, find the defendant, CHRIS PETTI, _ of the crime of Assault With a Deadly Weapon or by Means of Force Likely to Produce Great Bodily Injury, in violation of Penal Code section 245(a), as charged in Count One of the Indictment.”  (Emphasis Added.)

A copy of the indictment was not given to the jurors during deliberation;  however, both victims' names were included in the conspiracy count verdict form.   Unfortunately, the names were reversed from the order in which the victims were named in the indictment.3

Because the evidence at trial showed Petti swung at both victims but struck only one, after discharge attorneys for both Petti and the People asked several jurors why they found an assault only on the unstruck person when the evidence appeared to be stronger on the other count.   The jurors explained they mistakenly believed their verdict of “guilty as charged in count two” was a conviction for assault upon the person actually beaten because the conspiracy verdict forms listed the victims' names in reverse order from the indictment.

The mistake was promptly brought to the attention of the trial judge, whereupon 11 of the 12 jurors were recalled and questioned without being re-sworn.   When they unanimously agreed on what had occurred, Petti orally alternatively moved for a mistrial, new trial, or acquittal pursuant to section 1162.

The following day, after hearing oral arguments on these motions, but without considering written responses submitted, the court ordered Petti acquitted on count two,4 and the judgment of acquittal was entered in the clerk's minutes.   Thus, Petti now stands acquitted on both counts.5

The People contend the trial court lost jurisdiction to acquit once the jury rendered its verdict and was discharged and, in any event, statements elicited by repolling the unsworn discharged jurors are incompetent to impeach its formal verdict.   We are asked to order the trial court to reinstate the previously entered jury guilty verdict and enter judgment accordingly.


Petti contends the trial court acted legally and, in any event, the constitutional prohibitions against double jeopardy bar this appeal.   In a now vacated earlier opinion, we addressed the issues regarding the validity of the trial court's action, but did not address Petti's contention the People had no remedy by way of appeal.   The matter was retransferred to us by the California Supreme Court with instructions to reconsider in light of People v. Smith, 33 Cal.3d 596, 189 Cal.Rptr. 862, 659 P.2d 1152, emphasizing we direct our attention to the contents of pages 599–600, 189 Cal.Rptr. 862, 659 P.2d 1152 and to consider the effect of section 1238, subdivision (a)(8).6  Section 1238 describes those limited areas in which the People may take an appeal in a criminal case.   Appeals not precisely falling within the exact statutory language are prohibited.  (People v. Drake, 19 Cal.3d 749, 754, 139 Cal.Rptr. 720, 566 P.2d 622.)   Section 1238, subdivision (a)(8) permits the People to appeal from an order or judgment dismissing or otherwise terminating the action before the defendant has been placed in jeopardy or where the defendant has waived jeopardy.   This must be read to prohibit the People from appealing any such orders or judgments in those cases where the defendant has already been placed in jeopardy and has not waived it.

The People acknowledge Petti was placed in jeopardy but claim he has waived it by alternatively moving the court for a mistrial, new trial or acquittal pursuant to section 1162,7 after the jury's verdict was recorded and the jury discharged.

 Although Petti would have been deemed to have waived jeopardy had a mistrial been granted on his motion, that motion was not granted and no mistrial was declared.   Thus, no jeopardy was waived merely by the bringing of the ungranted mistrial motion.   Further, had Petti been granted a new trial at his request following the jury verdict, but before judgment, there would be no jeopardy bar to the retrial.   A new trial was not granted and waiver of jeopardy cannot be founded from the mere bringing of a motion for new trial.

 However, Petti's motion to dismiss directly triggered the court's action.   Section 1162 refers only to the court's power to enter a judgment of acquittal when the jury persists in finding an informal verdict clearly expressing its intention to find in favor of the defendant upon an issue.   This section does not apply to the facts in this case where the jury's formal verdict was returned, recorded and the jury discharged before further inquiry.   The court's entry of a contrary verdict was error.

People v. Smith, supra, 33 Cal.3d 596, 189 Cal.Rptr. 862, 659 P.2d 1152, the Supreme Court decision to which we have been referred on remand, involved the trial court dismissing an action after jeopardy had attached “in furtherance of justice” (§ 1385).   The two pages (599–600, 189 Cal.Rptr. 862, 659 P.2d 1152) to which we are specifically directed discuss only the court's holding that when the People appeal an order or judgment terminating an action the first inquiry must be whether double jeopardy has attached and, if so, whether there is a waiver.   It held the fact the trial court was without authority to act as it did and, in effect acted in excess of its jurisdiction, does not enlarge the People's right of appeal.  (Citing People v. Godfrey, 81 Cal.App.3d 896, 901, 147 Cal.Rptr. 9.)   In other words, if there is jeopardy and it has not been waived, the court's acts in excess of its jurisdiction may not be attacked by appeal.   Here the People concede jeopardy had attached and our inquiry is confined to the second aspect.  People v. Smith contains no language helpful to determining this issue on the facts of this case.

The People contend we need not reach the issue of waiver because there is language in United States v. Wilson, 420 U.S. 332, 352–353, 95 S.Ct. 1013, 1026, 43 L.Ed.2d 232, United States v. Ramos (9th Cir.1977) 558 F.2d 545, 546, and People v. Cartwright, 98 Cal.App.3d 369, 379, 159 Cal.Rptr. 543, stating the double jeopardy clause is not offended when there is no threat of multiple punishment or successive prosecution and the only effect of the People's appealing a post-verdict ruling is to reinstate the original ruling.   Wilson and Ramos specifically permit the People to appeal from the trial court's granting of a post-verdict judgment of acquittal.   Cartwright involved the trial court reducing a jury verdict from first to second degree murder, the People asking to have the first degree verdict reinstated.   That is all the People ask here.   However, the Supreme Court in People v. Drake tells us we must narrowly construe the statutory language of section 1238.   In subdivision (a)(8), the Legislature has granted the People a right of appeal from final orders or judgments terminating an action in which the defendant has been placed in jeopardy only where the defendant has waived that jeopardy.   The Cartwright and Wilson line of cases merely hold, under some circumstances, the fact a defendant has been in jeopardy will not bar the People's right of appeal where that right of appeal otherwise exists.   Here, the question is not whether the double jeopardy clause would bar the People's right of appeal, it is whether a right of appeal can be found within the narrowly construed statutory language.   Section 1238, subdivision (a) contains no exception allowing the People a right of appeal from post-verdict rulings of the court for the purpose of having the trial court simply reinstate a vacated order or judgment once the defendant has been placed in jeopardy.   We are bound by the holdings in People v. Drake and People v. Smith.

Petti cites no case or statutory authority for the proposition a judgment of acquittal entered by the trial court at the express urging of the defendant following the return and recording of a formal jury verdict should not be deemed a waiver of any rights and protections arising from being placed in jeopardy upon a trial of the criminal proceedings.

 Although the protections normally enveloping a defendant once placed in jeopardy are those which prevent him being subjected to double punishment or double prosecution, by statute the Legislature has seen fit to give the additional protection under section 1238, subdivision (a)(8) by limiting the People's right to appeal.   If an erroneous order or judgment of the court is sought and obtained upon a defendant's affirmative conduct, decisions based upon analogous facts have held this to be a waiver of jeopardy.   The fact the defendant did not state he expressly intended to waive his jeopardy protections is irrelevant, because a waiver of jeopardy will be implied when a defendant's affirmative conduct succeeds in getting a case improperly dismissed.  People v. Finch, 119 Cal.App.2d Supp. 892, 896–899, 258 P.2d 1124, so holds where the dismissal is before a verdict of conviction or acquittal.  People v. Loving, 67 Cal.App.3d Supp. 12, 15, 136 Cal.Rptr. 851, similarly holds where a mistrial is declared out of legal necessity at defendant's requests.  People v. Mills, 87 Cal.App.3d 302, 151 Cal.Rptr, 71, holds a defendant's request for dismissal to sanction prosecutorial misconduct impliedly waives jeopardy if improperly granted.   These cases are consistent with the statement of the California Supreme Court that “[i]t is true that affirmative conduct by the defendant may constitute a waiver if it clearly evidences consent [citations] ․”  (Curry v. Superior Court, 2 Cal.3d 707, 713, 87 Cal.Rptr. 361, 470 P.2d 345.)   In People v. Terry, 2 Cal.3d 362, 386, 85 Cal.Rptr. 409, 466 P.2d 961, the California Supreme Court held a motion to sever the trial of multiple defendants, made and denied before trial began, would be deemed an implied waiver of their rights to plead the bar of former jeopardy should the court, on its own motion after trial began, grant a mistrial for the purposes of commencing new separate trials.   Here, the trial court's substitution of a judgment of acquittal for the guilty verdict returned by the jurors resulted solely from Petti's specific request, with his consent and is a waiver of jeopardy.   The People may appeal.


After vacating our previous decision in this case, the Supreme Court filed its opinion in People v. Romero, 31 Cal.3d 685, 183 Cal.Rptr. 663, 646 P.2d 824, resolving each of the concerns we had addressed.  Romero involved “flip-flop” verdicts of identical crimes of burglary.   The court entered the jury's returned verdict of guilty on count one and not guilty on count two, after the jury was polled.   Two months after the jurors were discharged, the court denied a motion for new trial based on affidavits from six jurors stating all jurors had voted for not guilty on count one and guilty on count two.   In holding the policy against impeaching jury verdicts is too important to be disregarded where no possible prejudice results, the Supreme Court analyzed the reasoning of other notable “flip-flop” cases, People v. Williams, 264 Cal.App.2d 885, 70 Cal.Rptr. 882 and People v. Grider, 246 Cal.App.2d 149, 54 Cal.Rptr. 497.

Petti attempts to distinguish Romero's holding because of its factual differences and those in Grider and Williams because each of those cases involved an appeal by the defendant, while here it is the People who are appealing the trial court's action.   Minor factual differences aside, we find Romero's holding squarely in point.

People v. Grider reversed a trial court which had reconvened a jury nine minutes after discharge to allow it to reconsider its already entered verdict of robbery in the second degree and return a different verdict of robbery in the first degree.   The trial court had acted upon being notified the jurors unanimously found, and intended to file a verdict of, robbery in the first degree.   The Court of Appeal held a jury, once discharged, cannot be reconvened in the same case for any purpose.   Thus, the more lenient, but erroneous, verdict could not be overridden in that manner even though all the discharged jurors promptly attested to the error.

 Williams involved a mistaken returned verdict of guilty on one count and a mistaken finding it was “hung” on a second.   Here, the point was not even raised by defendant but, for some unexplained reason, presented by the Attorney General.   Factually, after the verdict of guilty was returned and a finding of inability to reach a verdict on a second count, the People dismissed the unresolved count.   A colloquy ensued between some of the jurors and the trial court during which some jurors stated the jury had mistakenly transposed the victims in the two counts.  (Precisely the situation here, and one which the decision in Williams attributed to a lack of imagination in drawing the pleadings and preparing the verdict forms.) 8  Finding there was sufficient evidence to have supported the intended guilty verdict on the now dismissed count, the Court of Appeal refused to reverse Williams' conviction based only on unsworn statements of some jurors, pragmatically stating it found it better to do nothing when it perceived no possible prejudice, rather than violate the principle against impeaching jury verdicts.  (People v. Williams, supra, 264 Cal.App.2d 885, 889, 70 Cal.Rptr. 882.)

In adopting Williams' practical approach, the majority in Romero emphasized no possible prejudice resulted from the jury's clerical mix-up in reversing its intended verdicts.   In the absence of prejudice, the majority found no justification to depart from the policy of jury impeachment.   Petti can show no more prejudice than that suffered by the defendant in Romero.   The penalty Petti faces for the assault in either count is the same.

Although neither Romero, Williams nor Grider involved a different verdict entered by the trial court after the jury was discharged, the Supreme Court stated in Romero, supra, 31 Cal.3d 685, 694, 183 Cal.Rptr. 663, 646 P.2d 824:  “Once the jury was polled ․ and each member thereof orally assented to the verdict and was discharged, the trial of the defendant was complete and the court had no jurisdiction to recall the jury for further proceedings.   [Citation.]  Any such proceedings would have been nullities;  the court would have lacked jurisdiction to acquit on the charge of which defendant was convicted.”  (Italics added.)   This language negates Petti's arguments Romero's holding must be confined to “belated” attempts to impeach the jury verdict.   Grider, the appellate decision whose language is expressly paraphrased in Romero, involved only a nine-minute gap between the jury's discharge and its reconvening.

Finally, Petti argues the relief given him by the trial court is consistent with that authorized by the Supreme Court in People v. Stone, 31 Cal.3d 503, 183 Cal.Rptr. 647, 646 P.2d 809.   He claims Stone allows a trial court to “give formal intent to the jury's intent to acquit, even though no formal procedure for doing so exists.”   We presume the ramifications of Stone's majority holding, as authored by Justice Mosk, were recognized when, 20 days after its filing, the Supreme Court filed its majority decision in Romero, also authored by Justice Mosk.

Petti claims his characterization of Stone's holding is consistent with the general rule allowing a returned verdict to be corrected when it is shown to be different from that actually assented to in the jury room.  (See citations listed in People v. Romero, supra, 31 Cal.3d 685, 701, 183 Cal.Rptr. 663, 646 P.2d 824, Bird, J. dissenting.)   All relevant facts in Stone occurred before the jury was discharged, and the trial court determined the jurors intent while they were still sworn in the case.   The holding in Stone does not imply the trial court is empowered to act upon its perception of a jury's intent gleaned from unsworn oral comments of some of the jurors after discharge.

The judgment acquitting Petti on count two is reversed.   Upon remand, the trial court shall reinstate the jury verdict of guilty and proceed to sentence the defendant.


1.   All statutory references are to the Penal Code unless otherwise specified.

2.   He was also found not guilty of conspiracy.

3.   The conspiracy forms read as follows:  “We, the jury in the above entitled cause, find the defendant, CHRIS PETTI, _ of the crime of Conspiracy to Commit the Crime of Assault with a Deadly Weapon (PC 245(a)), in violation of Penal Code section 182.1, as charged in Count Three of the Indictment.  [¶]  We, the jury in the above entitled cause, find that the defendant, CHRIS PETTI, conspired to commit the crimes opposite the designation of which there has been placed an ‘X’.  [¶]  1. Assault With a Deadly Weapon against JOSEPH BALKINS, in violation of Penal Code section 245(a).  [ ] [¶]  2. Assault With a Deadly Weapon against LAWRENCE CHARLES HALBEISEN, in violation of Penal Code section 245(a).  [ ]”While the indictment lists the victims in reverse order:  “COUNT ONE:  On or about August 10, 1979, CHRISTOPHER POLOUS [Petti], JOSEPH MICHAEL BASSI, and DEAN RICHARD MUMBY did assault another, to wit:  LAWRENCE CHARLES HALBEISEN, with a deadly weapon and instrument, and by means of force likely to produce great bodily injury, in violation of Penal Code Section 245(a).  [¶]  COUNT TWO:  On or about August 10, 1979, CHRISTOPHER POLOUS [Petti], JOSEPH MICHAEL BASSI, and DEAN RICHARD MUMBY did assault another, to wit:  JOSEPH BALKINS with a deadly weapon and instrument, and by means of force likely to produce great bodily injury, in violation of Penal Code Section 245(a).  [¶]  COUNT THREE:  On or about August 10, 1979, CHRISTOPHER POLOUS [Petti], JOSEPH MICHAEL BASSI, and DEAN RICHARD MUMBY did wilfully and unlawfully conspire together to commit the crime of Assault With a Deadly Weapon (PC 245(a)), in violation of Penal Code Section 182.1.”

4.   Although at the close of hearing on the motions Petti submitted a written motion for new trial on count two, at that time the court had already rendered its decision.

5.   The People have not attacked the erroneous acquittal on count one.

6.   We interpret the brief order of retransfer as merely telling us our previous opinion disregarded and failed to analyze the issue of appealability which had been squarely raised by appellant, calling our attention to this omission without attempting to direct us to a particular conclusion.   That order does not, as contended by Petti, “indicate” that Smith mandates a particular result.

7.   Section 1162 reads:  “If the jury persist in finding an informal verdict, from which, however, it can be clearly understood that their intention is to find in favor of the defendant upon the issue, it must be entered in the terms in which it is found, and the Court must give judgment of acquittal.   But no judgment of conviction can be given unless the jury expressly finds against the defendant upon the issue, or judgment is given against him on a special verdict.”

8.   The opinion does not tell us whether the juror-court colloquy occurred before the jury was discharged.   Nor does it specify what, if any, relief was requested in the trial court.

WORK, Associate Justice.

COLOGNE, Acting P.J., and HANSCOM, J.*, concur.Hearing denied;  BIRD, C.J., dissenting.

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