PEOPLE v. MOORE (1985)

In this case we hold that a claim of double jeopardy survives a guilty plea following a mistrial based on a hung jury.   We also hold that the trial court did not commit prejudicial error when it reconvened a hung jury immediately after its dismissal and before it left the jury box in order to poll the jury.   Finally, when the evidence as to two defendants is so intertwined that a verdict as to one of them would inculpate or exculpate the other and a poll of the jury demonstrates a hung jury on the next lesser included offense as to one defendant, we hold it was not prejudicial error to fail to poll the jury as to the next lesser included offense as to the codefendant because the court could have reasonably determined the jury was deadlocked on that point.

Calvin Moore appeals from a judgment after the denial of his plea of once in jeopardy following a mistrial and his subsequent plea of guilty to voluntary manslaughter.  (Pen.Code, §§ 192–194.)   We affirm the judgment.

Robert Evans and Calvin Moore were tried for the killing of Alphonso Julian.   Julian had formerly been romantically involved with Evans' sister who was now involved with Moore.   Julian had carried out a pattern of severe harassment against the sister and her family, including having burned down her parent's house.   After Julian took the sister to force her into prostitution, Evans and Moore were seen battering Julian to death with a baseball bat and then transporting the body in the trunk of Moore's car to dispose of it.

The jury announced it was deadlocked after eight days of deliberation.   The court declared a mistrial, discharged the jury and, immediately thereafter, before the jury left the box, reconvened the jury and polled it to see how it had divided as to Evans.   All of the jurors indicated they would acquit him of first degree murder and involuntary manslaughter.   Seven indicated that they would convict him of second degree murder and five of voluntary manslaughter.

The court then attempted to poll the jury as to Moore.   The jurors indicated that they had not taken a ballot on any of the charges with respect to Moore, but that two of them felt Moore was “not implicated” in the crime while ten felt he was “implicated” but “could not arrive at what degree.”   The court then polled the jurors individually as to Moore's first degree murder charge and they unanimously voted for acquittal.   The court did not poll as to second degree murder or manslaughter.   The jury was then dismissed.

After the trial, Moore pled guilty to voluntary manslaughter and was sentenced to the midterm of four years plus a one-year enhancement, for a total of five years.

I.

 The first issue presented—whether a claim of double jeopardy survives a guilty plea under Penal Code section 1237.5—is apparently a question of first impression.   However, current statutory and case law indicate that such a claim should survive a guilty plea.

 Since a guilty plea admits all matters essential to the conviction, claims which involve a defendant's guilt or innocence are deemed waived following such a plea.  (People v. DeVaughn (1977) 18 Cal.3d 889, 895, 135 Cal.Rptr. 786, 558 P.2d 872;  People v. Ribero (1971) 4 Cal.3d 55, 63, 92 Cal.Rptr. 692, 480 P.2d 308;  People v. Ahern (1984) 157 Cal.App.3d 27, 33, 204 Cal.Rptr. 11.)   It would be inconsistent for a defendant to challenge any matter involving guilt or innocence when he or she has already admitted to commission of the crime.

However, claims which are based on “reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings” may be raised on appeal from a guilty plea.  (Pen.Code, § 1237.5;  People v. DeVaughn, supra, 18 Cal.3d at p. 895, 135 Cal.Rptr. 786, 558 P.2d 872;  People v. Hayton (1979) 95 Cal.App.3d 413, 416, 156 Cal.Rptr. 426.)   The jeopardy claim in this case is based on reasonable constitutional grounds which go to the legality of the proceedings.   Therefore the claim should survive Moore's guilty plea.

Article I, section 15 of the California Constitution provides:  “Persons may not twice be put in jeopardy for the same offense․”  Likewise, the Fifth Amendment of the United States Constitution states:  “[N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb․”  Thus Moore's claim is one of significant constitutional stature.   In addition, his claim goes to the legality of the proceedings, for Moore is in no way attempting to establish his innocence by means of the double jeopardy claim.   To the contrary, regardless of his guilt or innocence, it is unconstitutional to place Moore twice in jeopardy for the same crime.   He does not contest any factual issues, only the legality of the proceedings.

II.1

III.

 Proceeding to the merits, in a jury trial jeopardy attaches when the jury is impaneled and sworn.   Thereafter, the court cannot properly declare a mistrial and discharge the jury unless either the defendant consents or there is legal necessity for the discharge.  (Larios v. Superior Court (1979) 24 Cal.3d 324, 329, 155 Cal.Rptr. 374, 594 P.2d 491;  Curry v. Superior Court (1970) 2 Cal.3d 707, 712–713, 87 Cal.Rptr. 361, 470 P.2d 345.)   If the jury is discharged without the requisite consent or legal necessity, the defendant is acquitted of the charges and further proceedings on those charges are barred.   (Ibid.)

Here, Moore did not consent.   Thus, the issue is whether there was legal necessity for the discharge.   Legal necessity for a discharge most often results from the jurors' inability to reach a unanimous verdict.   The jury's inability to reach a unanimous verdict constitutes legal necessity if “at the conclusion of such time as the court deems proper, it satisfactorily appears to the court that there is no reasonable probability that the jury can resolve its differences and render a verdict.”  (People v. Rojas (1975) 15 Cal.3d 540, 545–546, 125 Cal.Rptr. 357, 542 P.2d 229.)

After Rojas, our Supreme Court held:  “[T]he trial court is constitutionally obligated to afford the jury an opportunity to render a partial verdict of acquittal on a greater offense when the jury is deadlocked only on an uncharged lesser included offense.   Failure to do so will cause a subsequently declared mistrial to be without legal necessity.”  (Stone v. Superior Court (1982) 31 Cal.3d 503, 519, 183 Cal.Rptr. 647, 646 P.2d 809.)

 Here, Moore argues that the trial court did not comply with the additional requirement set forth in Stone and that the discharge of the jury was therefore without legal necessity.   Moore contends Stone was violated either:  (1) when the jury was dismissed but polled immediately thereafter, or (2) when the court subsequently failed to poll the jury as to Moore's lesser included offenses.

Resolution of the first issue hinges upon whether or not the jury was effectively reconvened after the first dismissal.   Since “[t]he office of a juror is discharged upon acceptance of his verdict by the court,” a discharged jury which has already issued a complete and proper verdict cannot be reconvened under any circumstances.  (People v. Peavey (1981) 126 Cal.App.3d 44, 49, 178 Cal.Rptr. 520;  quoting People v. Lee Yune Chong (1892) 94 Cal. 379, 385, 29 P.2d 776.)

However, if the verdict is not complete or otherwise irregular, the jury may be reconvened, provided the jurors have not left the court's control.   (People v. Powell (1950) 99 Cal.App.2d 178, 221 P.2d 117;  People v. Ham (1970) 7 Cal.App.3d 768, 86 Cal.Rptr. 906, overruled on other grounds in People v. Compton (1971) 6 Cal.3d 55, 60, 98 Cal.Rptr. 217, 490 P.2d 537.)   In both Powell and Ham, because the trial court discharged the jury with the mistaken belief they could not reach a verdict on certain counts, the jury was allowed to reconvene.   In Powell, the jury had in fact reached a verdict on one of the counts but did not inform the court, while in Ham, the jury had not yet deliberated on two of the three counts before it.

Here, as in Powell and Ham, the verdict was not yet complete at the time of the first dismissal.   Under Stone, a court must give the jury an “opportunity to render a partial verdict of acquittal on a greater offense when the jury is deadlocked only on an uncharged lesser included offense.”  (31 Cal.3d at p. 519, 183 Cal.Rptr. 647, 646 P.2d 809.)   Since the jury in this case had not yet been given such an opportunity at the time of the first dismissal its verdict cannot be considered complete or proper.

The additional requirement that the jury remain in the court's control between dismissal and reconvening was also met.   The jurors did not leave the jury box and the record shows no gap of time between dismissal and polling.

Thus, the jury was properly reconvened when the court proceeded to poll the jury.

IV.

The court polled the jury properly as to Evans.   When it attempted to poll as to Moore, however, the jury told the court that although no ballots had been taken on Moore's actual charges, 10 jurors felt Moore was “implicated” in the crime but they “could not arrive at what degree.”   Following this discussion, the court polled the jurors individually as to Moore's first degree murder charge and they unanimously acquitted him.   The jury was then dismissed.

 The final issue in this case involves the court's failure to continue polling on Moore's lesser included offenses of second degree murder and manslaughter.   To resolve this issue, it is necessary to examine whether the court could have reasonably determined that the jury was deadlocked as to these lesser included offenses, thereby eliminating the need for further polling under Rojas, or whether Stone has implicitly overruled Rojas and compels further polling of the jury as to lesser included offenses.

The facts in Rojas were different than here, but created a virtually identical situation as to jury deliberations.   Rojas and his codefendant Ramirez were charged with murder.   They had driven to a specific location looking for the victim.   When they found him, Ramirez shot him through the window of the car door and Rojas immediately drove his car away.   The jury deadlocked as to Ramirez but had taken no vote in Rojas when it was discharged.   In holding there was a legal necessity to discharge the jury as to Rojas, our Supreme Court stated:  “Adverting to the contention that there was no showing that the jury was deadlocked as to Rojas because his guilt or innocence was never discussed, [we find that] the record made the special hearing on this issue contains sufficient evidence to support the determination that under the facts of this case the jury's inability to reach a verdict as to defendant Ramirez's guilt or innocence precluded a verdict as to Rojas' guilt or innocence.   There was ample evidence to indicate that the evidence was so intertwined as to both defendants that a verdict regarding one of them would inculpate or exculpate the other as well and that the jury's deadlock as to Ramirez also meant a deadlock as to Rojas.  [¶] Moreover, as observed by the trial court, common sense dictates that if the jury forelady and the jury believed a verdict was possible as to one defendant, but not the other, they would not have responded negatively when asked by the court if a verdict was possible.   The fact that the jury did not vote on Rojas' guilt or innocence is immaterial.  (See People v. Demes (1963) 220 Cal.App.2d 423, 434 [33 Cal.Rptr. 896] [cert. den., 377 U.S. 946, 84 S.Ct. 1354, 12 L.Ed.2d 308].)  There is no authority for the proposition that a formal vote is a prerequisite to a determination, after inquiry of the jury, that a verdict cannot be reached.  (People v. Demes, supra.)”  (People v. Rojas, supra, 15 Cal.3d at pp. 546–547, 125 Cal.Rptr. 357, 542 P.2d 229.)

The determination that a jury is deadlocked, that is, that there is “no reasonable probability” the jurors will resolve their differences, “rests within the sound discretion of the trial judge, exercisable on reference to and in consideration of all the factors before him.”  (15 Cal.3d at pp. 545–546, 125 Cal.Rptr. 357, 542 P.2d 229.)

Thus, the question arises whether the Supreme Court intended to overrule its earlier holding in Rojas when it held in Stone:  “[I]n all cases in which the jury has not yet begun deliberations as of the date this decision becomes final, the trial court is constitutionally obligated to afford the jury an opportunity to render a partial verdict of acquittal on a greater offense when the jury is deadlocked only on an uncharged lesser included offense.   Failure to do so will cause a subsequently declared mistrial to be without legal necessity.”  (Stone v. Superior Court, supra, 31 Cal.3d at p. 519, 183 Cal.Rptr. 647, 646 P.2d 809.)

We believe the holdings in Rojas and Stone are distinguishable and the latter did not overrule the former.   Firstly, the court in Stone cited Rojas in two parts of the opinion without criticism or in any other manner indicating it was overruled.   Secondly, Stone involved a single defendant, not codefendants with “intertwining” evidence.   Thirdly, when Stone is followed as to a codefendant and the jury reaches a deadlock, where the evidence “intertwines” with the other codefendant, it is reasonable to conclude the jury is likewise deadlocked as to the other codefendant.   We do not mean to say that the practice recommended in Stone should not be followed where there are codefendants with intertwining evidence.   It should.   However, the failure to follow it here, as in Rojas, was not prejudicial error.

Here, although the jurors did indicate that they had not taken ballots on Moore's actual charges, they also indicated that 10 of them felt Moore was “implicated” in the crime but they “could not arrive at what degree.”   In addition, the jury deliberated for eight days on this case, implying conscientiousness and full consideration of the issues before it.   Based on these factors, the court could have reasonably determined that the jury was deadlocked as to Moore's lesser included offenses such that “no reasonable probability” existed that the jurors would resolve their differences.   Therefore, the court acted within its discretion to determine the existence of a deadlock.   The need for further polling was consequently eliminated.

Accordingly, we hold that there was legal necessity for the discharge of the jury and that Moore has not been subjected to double jeopardy.

The judgment is affirmed.

FOOTNOTES

1.   See footnote *, ante.

KING, Associate Justice.

LOW, P.J., and HANING, J., concur.