PEOPLE v. PETTI (1981)

The People appeal an order of the trial court acquitting Chris Petti after a jury found him guilty of felonious assault (Pen.Code,1 s 245 subd. (a)). We reverse the judgment of acquittal, but remand with directions to order a new trial.

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 one attack but acquitted of the other.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 (s 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

Further complicating the situation, the jury was polled after returning their verdict and the guilty verdict the jurors did not intend was individually orally affirmed.

Because the evidence at trial tended to show 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 such was, in fact, not their intent. Rather, they believed their verdict of “guilty as charged in count two” was a conviction for assault upon the person actually beaten because they had referred to the conspiracy verdict forms listing the 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 polled again without being re-sworn. 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 to them, 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 discharged jurors are incompetent to impeach its formal verdict. We are asked to reinstate the previously entered conviction of aggravated assault as charged in count two.

We hold the trial court erred in granting acquittal, the proper remedy being the granting of a new trial, not reinstating the conviction.

DISCUSSION

The Verdict Was Properly Impeached

Evidence Code section 1150, subdivision (a), specifies the evidence competent to impeach a verdict.⁶ The section has been interpreted to allow affidavits showing improper statements made to the jury by a bailiff (People v. Hutchinson, 71 Cal.2d 342, 78 Cal.Rptr. 196, 455 P.2d 132; People v. Lee, 38 Cal.App.3d 749, 113 Cal.Rptr. 641), by the judge (Putensen v. Clay Adams, Inc., 12 Cal.App.3d 1062, 91 Cal.Rptr. 319), or by other jurors (People v. Neely, 95 Cal.App.3d 1011, 157 Cal.Rptr. 531); in addition to evidence showing certain statements were not made (People v. Pierce, 24 Cal.3d 199, 155 Cal.Rptr. 657, 595 P.2d 91) or to show discussions among jurors (Krouse v. Graham, 19 Cal.3d 59, 137 Cal.Rptr. 863, 562 P.2d 1022); or the conduct of a juror in purporting to depict the defendant's actions through reenactment (People v. Cooper, 95 Cal.App.3d 844, 157 Cal.Rptr. 348). “The courts have been firm, however, in precluding (evidence) which do(es) no more than characterize the juror's own state of mind or the state of mind of other members of the jury. (Citations)” People v. Hall, 108 Cal.App.3d 373, 380, 166 Cal.Rptr. 578.)

In short, the section has most often been held to allow evidence tending to show misconduct on the part of jurors or others. We are asked to extend its ambit to include evidence proving juror mistake. In this factual context there is no reason to exclude such evidence from the scope of Evidence Code section 1150.

In People v. Hutchinson, supra, 71 Cal.2d 342, 78 Cal.Rptr. 196, 455 P.2d 132, the Supreme Court declared “(t)he only improper influences that may be proved under section 1150 to impeach a verdict are those open to sight, hearing and other senses and thus subject to corroboration.” (Id., at 350, 78 Cal.Rptr. 196, 455 P.2d 132.) The second jury poll showed beyond question all jurors believed they were filing a verdict acquitting Petti of assaulting the person whom he did not actually strike because no one of them believed him to have been proved guilty, and, except for the lack of guidelines in the verdict form, would have done so. This consensus, together with the additional objective factors explaining the jury's misunderstanding, was certainly open to the senses, subject to corroboration, and thus an objective condition within the meaning of Evidence Code section 1150 and Hutchinson, supra. On our facts it would be manifestly unjust to disallow impeachment simply because the evidence shows mistake rather than sustaining misconduct. (Cf. People v. Hall, supra, 108 Cal.App.3d 373, 379-380, 166 Cal.Rptr. 578.)

The Acquittal Was Improper

Petti moved for acquittal under section 1162 which is inapplicable where, as here, a formal verdict has been entered.⁷ (See People v. Bratis, 73 Cal.App.3d 751, 141 Cal.Rptr. 45.) He argues, nonetheless, once the previously recorded verdict was impeached under Evidence Code section 1150, supra, it no longer existed. Thus, the testimony elicited at repolling constituted an informal verdict pursuant to section 1162.

Where the jury has entered a formal verdict, valid on its face and then been discharged, the section may not be used. Rather, it applies only before the entry of a final judgment. (See Pen.Code, s 1147, et seq.).

Likewise, Petti's assertion the acquittal may be justified under section 1118.1 ignores the circumstances at bench. Section 1118.1 specifically applies only before the case is submitted to the jury for decision.

The court should have denied the motion to acquit.

A New Trial Is Warranted

Nonetheless, a just result is available. Section 1181 lists specific grounds upon which a new trial may be granted including (subd. (4)) “when the verdict has been decided by lot, or by any means other than a fair expression of opinion on the part of all the jurors ” Moreover, “while section 1181 purports to state the ‘only’ grounds upon which a new trial may be granted, the courts have recognized ‘new trials are frequently granted on nonstatutory grounds where the failure so to do would result in a denial of a fair trial to a defendant in a criminal case.’ (Citation.) ‘The power to grant a new trial on such nonstatutory grounds obviously is derived from the trial court's constitutional duty to insure an accused a fair trial.’ ” (People v. Hall, supra, 108 Cal.App.3d 373, 377, 166 Cal.Rptr. 578, citing People v. Davis, 31 Cal.App.3d 106, 109, 110, 106 Cal.Rptr. 897.)

We are precluded from reviewing the mistaken verdict acquitting Petti on the count of which the jury was persuaded he was guilty. (Sanabria v. United States, supra, 437 U.S. 54, 64, 98 S.Ct. 2170, 2178, 57 L.Ed.2d 43; People v. Gottman, 64 Cal.App.3d 775, 780, 134 Cal.Rptr. 834.) However, we are not foreclosed from reviewing the propriety of the jury's unintended, but actual, verdict of conviction on count two. There is no favored public policy furthered by allowing Petti to remain erroneously convicted of one crime, merely because he secured an unintended acquittal on a different charge through a bizarre fluke for which he is in no way responsible. Both Petti and the People are entitled to a fair resolution. To have meaning, the right to a fair trial must encompass the entire proceeding including the right not to stand convicted of an offense for which no juror voted other than not guilty.

Petti is entitled to a new trial.

Petti argues, however, once the trial court entered its erroneous order of acquittal retrial is barred by the double jeopardy clause of the United States and California Constitutions. (U.S.Const. Fifth and Fourteenth Amends.; Cal.Const., art. I, s 15; see also Sanabria v. U.S., 437 U.S. 54, 64, 98 S.Ct. 2170, 2178, 57 L.Ed.2d 43.) This claim is without merit.

The order acquitting Petti on count two is reversed and the matter remanded with directions to grant a new trial on count two.

I concur with and join in the opinion of the court. I do not understand it to preclude the entry of an additional plea of once in jeopardy, or the sustaining of such a plea upon a showing the jury in fact agreed the defendant did not commit the offense charged in count two.

FOOTNOTES

FN1. All references are to the Penal Code unless otherwise specified..  FN1. All 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. (P) 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’. (P) 1. Assault With a Deadly Weapon against JOSEPH BALKINS, in violation of Penal Code section 245(a). ( ) (P) 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). (P) 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). (P) 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.  “Upon an inquiry as to the validity of a verdict, any otherwise admissible evidence may be received as to statements made, or conduct, conditions, or events occurring, either within or without the jury room, of such a character as is likely to have influenced the verdict improperly. No evidence is admissible to show the effect of such statement, conduct, condition or event upon a juror either in influencing him to assent to or dissent from the verdict or concerning the mental processes by which it was determined.” (Evid.Code, s 1150, subd. (a).)

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.”

WORK, Associate Justice.

COLOGNE, Acting P. J., and LANGFORD,* J., concur.