PEOPLE v. QUILLIN (1984)

OPINION

STATEMENT OF THE CASE

Appellant was found guilty by a jury of first degree felony murder with a finding that a firearm had been used (Pen.Code, §§ 187, 12022.5) and of attempted robbery with the use of a firearm (Pen.Code, §§ 664/211, 12022.5).   The jury also found true the special circumstance that appellant was committing a robbery at the time of the murder (Pen.Code, §§ 190.2, subd. (a)(17)(i), 190.4).

Appellant was given a stayed sentence of two years for the attempted robbery conviction and life without the possibility of parole on the murder conviction.

The issues addressed in this appeal are (1) whether there is substantial evidence to support the jury's verdict regarding diminished capacity;  (2) whether the trial court adequately instructed the jury on the relationship between diminished capacity caused by voluntary intoxication and involuntary manslaughter and (3) whether Carlos v. Superior Court (1983) 35 Cal.3d 131, 197 Cal.Rptr. 79, 672 P.2d 862 compels a reversal of the special circumstance finding because the jury was not instructed that a specific intent to kill is a necessary prerequisite to such a finding.

As we shall explain, we hold against appellant on issue (1) but in appellant's favor on issues (2) and (3).   Accordingly, we reverse the judgment and remand for a new trial.

THE FACTS

Appellant, 34 years old, woke up at 7 a.m. on Saturday, November 28, 1981, and began to drink alcoholic beverages.   He, his father and Art Williams went to the store and bought a six-pack of beer.   After consuming this, they returned to the store and bought two more six-packs and consumed them.   Appellant also had two or three drinks from his father's whiskey bottle.

By the early afternoon, appellant had consumed “a case or more” of beer.   His wife testified that this was not an unusual amount for him to drink.   Appellant testified that he ate nothing that day.

Appellant got into his father's car and drove from Goshen to Fresno.   When he got to Fresno, he bought another six-pack and began drinking that.   He drove to the homes of two of his friends, James Tracy and Jimmy Glass, to try to persuade them to go drinking with him.   Tracy testified that appellant was “well on his way ․ to being drunk” when he first saw him, but Glass testified that appellant was not drunk or staggering, and he could not see that the beer was having any affect on appellant.   Unable to persuade his friends to join him, appellant drank some more beer and then went to the Len's 7 Sons bar where he had two more beers.   The barmaid at Len's 7 Sons had seen appellant drunk before and testified that he didn't seem drunk when he left at 10 p.m.   She did say that appellant had been at the bar three or four nights before and had become “aggressive.”

Appellant got in the car and drove back to James Tracy's home.   Both Tracy and his wife testified that appellant was noticeably drunk at this time.   Still unable to persuade Tracy to go with him, he got in the car and drove to the Hi-Ho Club on Belmont Avenue.

Appellant entered the Hi-Ho Club at about 10:30 p.m.   One patron sitting at the bar testified that appellant walked in normally and did not seem to be drunk.   Appellant ordered a beer from the barmaid, reached into his right front pants pocket with both hands and pulled out a $5 bill.   The barmaid noticed that appellant was swaying a little as he did so.   She put his change next to his glass and exchanged a few words with him.   She walked away to watch some other customers play pool but kept her eye on appellant who was sitting sideways on his bar stool with his head tilted and nodding.   She then saw appellant get up and walk out of the bar “in a normal manner,” leaving his change on the bar.

Three to five minutes later, appellant came back into the bar with a rifle that his father had kept under the car seat.   He pointed the gun at Robert Conner, one of the four patrons in the bar.   He had his finger on the trigger mechanism.   He said to Conner, “Up against the wall, mother fucker.”   Connor put his hands up and replied, “I'm up against the wall.”   Appellant then ordered everyone to get over by the bar and then demanded “all the money on the bar.”   Another witness heard appellant repeat, “I want all the money on the bar.”   Several patrons began putting their money on the bar.

At this point, another patron, Jose Lopez, started walking back to the pool table, cue stick in hand.   Appellant said, “Where are you going?” and Lopez said he was going to finish his pool game.  “Is that pool game worth your life?” appellant said, and then he fired the rifle into the ceiling.   Appellant said that he “meant business.”   One bar patron testified that appellant “knew what he was doing with that rifle.”

Appellant swung the rifle back and forth in front of everyone.   The barmaid went to the cash register and began pulling money out.   The two patrons seated at the bar, Rodney Peterson and Chuck Tucker, began taking money out of their pockets.   Just then, Robert Conner grabbed the barrel of appellant's rifle and pushed it up towards the ceiling.   Appellant took a step backwards, pointed the gun at Conner and fired.   Appellant fired a second time, and almost simultaneously, Jose Lopez hit appellant over the back of the head with his cue stick.   Both Conner and appellant fell to the floor.

Conner died as the result of two gunshot wounds—one in the chest and one in the abdomen—fired from six to twelve inches away.   Either shot would have been sufficient to kill him.

Appellant had a blood alcohol level of .23 approximately one-half hour after the incident.

Appellant testified that he did not remember anything from the time he first left James Tracy's house until he woke up in the hospital.   Specifically, he did not remember seeing Jimmy Glass, going to Len's 7 Sons, going to the Hi-Ho Club or using a gun.   He said it was usual for him to drink to the point of not remembering what he did.   He also testified that he knew his father kept a rifle under the front seat of his car.

A psychiatrist examined appellant and concluded, based in part on information he got from appellant directly, that “since the age of 20, [appellant was] always under the influence of some mind altering substances that would effect conscious—would effect mental functioning.   He was drinking just as much as he could—often as much as he could get ahold of.   He was intermittently a very heavy drinker and a chronic substance abuser.”   He described appellant as a “hostile drunk” who had fantasies about violence when drunk.   Appellant would, in turn, act out these fantasies and then not remember his acts afterwards.   He also found evidence of early brain damage in appellant due to his drinking.

DISCUSSION

I. Substantial evidence supports the jury's finding that appellant had the specific intent to commit robbery.

 Appellant contends the jury erred in not finding that on the evening in question, he was operating under such a diminished capacity due to alcohol as to negate his ability to form the specific intent to commit robbery.   In the alternative, he claims he was experiencing an alcoholic blackout at the time of the robbery which he defines as “an unconscious state wherein a person cannot reason, cannot be aware of his actions, and has no control over unconscious impulses.”   Appellant argues this was essentially the opinion of the expert psychiatrist, and there was no substantial evidence to the contrary.

While appellant was obviously intoxicated at the time of the robbery—(blood alcohol level of .23 shortly after the crime)—there is substantial “credible [evidence] ․ of solid value” to support the jury's finding that he was capable of formulating and did formulate the specific intent to commit a robbery.  (People v. Green (1980) 27 Cal.3d 1, 55, 164 Cal.Rptr. 1, 609 P.2d 468.)   In the early afternoon after drinking heavily, appellant was able to drive a car from Goshen to Fresno without incident, purchase beer at a store and find the homes of two of his friends.   He then was able to drive to the Len's 7 Sons bar, a bar he had frequented before, and back to the home of one friend, again without incident.   Even though he continued to drink, he was then able to drive to the Hi-Ho Club at night, without incident again.   He entered the bar in a normal manner.   He ordered a beer, paid for it and carried on a brief but coherent conversation with the barmaid.   He walked out of the bar in an apparently normal manner.

Appellant's ability to form the specific intent to rob is most clearly evidenced by his ability to remember that there was a gun out in the car.   After retrieving the gun, he placed his finger on the trigger and gave coherent commands to the bar patrons as to what he wanted.   When confronted with Jose Lopez' refusal to comply, he responded, not with a slurred threat, but with a hypothetical question:  “Is that pool game worth your life?”   After firing a warning shot into the ceiling, appellant said to everyone, “I mean business.”

Regardless of the evidence of appellant's extensive drinking before he entered the bar with the rifle and his high blood alcohol level after the shooting, the facts support a finding that appellant entertained the specific intent to rob.

II. There was a prejudicial failure to fully instruct the jury on the relationship between diminished capacity caused by voluntary intoxication and involuntary manslaughter.

Appellant contends the instructions in effect told the jurors that even if they found that appellant did not have the specific intent to commit robbery, they nevertheless could not convict him of involuntary manslaughter unless they found that he was unconscious at the time of the attempted robbery and shooting.   Because of the failure to more specifically define the lesser included offense of involuntary manslaughter in the context of a diminished capacity caused by voluntary intoxication short of unconsciousness, appellant argues the jury was forced to choose between a verdict of felony murder and an outright acquittal which it refused to do.

To answer appellant's contention, we must determine whether the instructions given, when considered as a whole (CALJIC No. 1.01 (4th rev. ed. 1979)) ¹ clearly informed the jury that it should find appellant guilty of involuntary manslaughter if it found that he had a diminished capacity short of unconsciousness which precluded his ability to form the specific intent to rob.

The jury was instructed in the terms of CALJIC No. 8.21 (First Degree Felony Murder ) as follows:

“The unlawful killing of a human being, whether intentional, unintentional or accidental, which occurs as a result of the attempt to commit the crime of robbery, and where there was in the mind of the perpetrator the specific intent to commit such crime, is murder of the first degree.”

“The specific intent to commit robbery and the attempt to commit such crime must be proved beyond a reasonable doubt.”  (As modified.)

The jury was then instructed in the terms of CALJIC No. 3.35 (Diminished Capacity ):

“When a defendant is charged with a crime which requires that a certain specific intent be established ․ you must ․ determine ․ if, at the time when the crime allegedly was committed, the defendant was suffering from some abnormal mental or physical condition, however caused, which prevented him from forming the specific intent ․”  (As modified.)

It was next instructed in the terms of CALJIC No. 4.21 (Voluntary Intoxication When Relevant to Specific Intent ):

“In the crime of murder ․ a necessary element is the existence in the mind of the defendant of the specific intent to commit robbery.

“If the evidence shows that the defendant was intoxicated at the time of the alleged offense, the jury should consider his state of intoxication in determining if defendant had such specific intent.

“If from all the evidence you have a reasonable doubt whether defendant was capable of forming such specific intent, you must give the defendant the benefit of that doubt and find that he did not have such specific intent.”

The jury was finally instructed in the terms of CALJIC No. 17.10, as modified:

“If you are not satisfied beyond a reasonable doubt that the defendant is guilty of ․ murder he may, however, be found guilty of any lesser offense, the commission of which is necessarily included in the offense charged ․

“The offense of murder ․ necessarily includes the lesser offense[s] of involuntary manslaughter.”  (Emphasis added.)

At this point in the instruction scenario, the jury had been told that it could not convict appellant of felony murder unless it found he had the specific intent to commit a robbery.   The jury had also been told that if it did not find appellant guilty of felony murder, it could find him guilty of the lesser offense of involuntary manslaughter.   However, the jury was not explicitly directed to find appellant guilty of involuntary manslaughter if it found that appellant was unable to form the specific intent to rob by reason of his diminished capacity caused by voluntary drunkenness.

 The trial court then gave another instruction which took the jury's attention away from the relationship between diminished capacity and involuntary manslaughter:

“If you find that the defendant killed while unconscious as a result of voluntary intoxication and was therefore unable to form a specific intent to commit the crime of robbery, his killing is involuntary manslaughter.

“When a person voluntarily induces his own intoxication to the point of unconsciousness, he assumes the risk that while unconscious he will commit acts inherently dangerous to human life or safety.”  (CALJIC No. 8.47, as modified, emphasis added.) 2

The giving of CALJIC No. 8.47 in the light of the prior instructions which failed to precisely define involuntary manslaughter in the context of the diminished capacity defense and which failed to direct the jury to find involuntary manslaughter if appellant did not formulate the intent to rob, reasonably could have induced some of the jurors to believe that the killing was involuntary manslaughter only if they found that appellant killed while unconscious as a result of his intoxication.

Confusion in the jurors' minds on this point is evidenced by their request for clarification of the specific intent question during deliberations:

“THE COURT:  And [the note] states that you need further instructions with regard to specific intent.   Can you help me out a little bit and tell me what you are interested in?

“FOREMAN TIPPING:  Yes, Your Honor.   As we began discussions, we seem to have different recollection of exactly what was said as you read your instructions as it pertains to specific intent.

“THE COURT:  All right.   Let me see if I can find some that will help you here.

“FOREMAN TIPPING:  And that perhaps to help you even more, as it pertains to abnormal conditions.

“THE COURT:  All right.   Let me read these, and if these are not the ones that you're—not all of the ones that you are interested in, be sure and let me know.

“In the crimes charged in the Information;  namely, murder and attempted robbery, there must exist a union or joint operation of act or conduct and a certain specific intent in the mind of the perpetrator, and unless such specific intent exists, the crime to which it relates is not committed.

“The specific intent that we're talking about here is the specific intent to commit robbery in both—in all charges.

“When a defendant is charged with the crime which requires that a certain specific intent be established in order to constitute the crime or degree of crime, you must take all of the evidence into consideration and determine therefrom if, at the time when the crime allegedly was committed, the defendant was suffering from some abnormal mental or physical condition, however caused, which prevented him from forming the specific intent essential [sic ] to constitute the crime or degree of crime with which he is charged.

“In the crime of murder, of which the defendant is accused in Count 1 of the Information, a necessary element is the existence in the mind of the perp—of the defendant of the specific intent to commit robbery.   If the evidence shows that the defendant was intoxicated at the time of the alleged offense, the jury can—should consider his state of intoxication in determining if the defendant had such specific intent.   If, from all of the evidence, you have a reasonable doubt whether the defendant was capable of forming such specific intent, you must give the defendant the benefit of that doubt and find that he did not have such specific intent.

“Now this is the instruction relating to involuntary manslaughter:

“If you find that the defendant killed while unconscious as a result of voluntary intoxication and was, therefore, unable to form a specific intent to commit the crime of robbery, then his killing is involuntary manslaughter.

“When a person voluntarily induces his own intoxication to the point of unconsciousness, he assumes the risk that, while unconscious, he will commit acts inherently dangerous to human life or safety.

“Are those the ones that you were interested in?

“FOREMAN TIPPING:  Yes, sir.”  (Emphasis added.)

Again, the court did not tell the jury that if it found appellant was unable to formulate the specific intent to rob because of his diminished capacity short of unconsciousness, he should be found guilty of involuntary manslaughter.   Further, the court failed to reread CALJIC No. 17.10, as modified, which at least told the jury in general terms that it could find appellant guilty of involuntary manslaughter as a lesser included offense of murder if it did not find him guilty of murder.   Then, by repeating the “unconsciousness” instruction (CALJIC No. 8.47) as “․ the [only] instruction relating to involuntary manslaughter,” the trial court inadvertently compounded the confusion caused by its earlier failure to fully explain the law of involuntary manslaughter resulting from a diminished capacity.

The importance of telling a jury that it can only find a defendant guilty of involuntary manslaughter if it finds he was unable to form the requisite specific intent because of his drunkenness was explained in People v. Ray (1975) 14 Cal.3d 20, 120 Cal.Rptr. 377, 533 P.2d 1017 where the Supreme Court stated:

“Although a finding that the perpetrator was unconscious would establish the ultimate facts that the perpetrator lacked both the ability to entertain malice and an intent to kill, the absence of either or both of such may nevertheless be found even though the perpetrator's mental state had not deteriorated into unconsciousness․  [A]n instruction on involuntary manslaughter is required if there is evidence that the accused is unable to entertain an intent to kill even though he has not lapsed into unconsciousness.

“․

“․ The weight of the evidence of defendant's intoxication was sufficient for a jury to have believed that although he was conscious he lacked both malice and an intent to kill.  [Citation.]   The court was required, accordingly, to have instructed that if, because of a diminished capacity due to defendant's voluntary intoxication, he had harbored neither malice nor an intent to kill the offense could be no greater than involuntary manslaughter.”  (Id., at pp. 28–29, 31, fn.omitted, 120 Cal.Rptr. 377, 533 P.2d 1017, first emphasis original, second emphasis added.)

 The trial court is required on its own motion to instruct the jury on the general principles of law relevant to the issues raised by the evidence (People v. Sedeno (1974) 10 Cal.3d 703, 716, 112 Cal.Rptr. 1, 518 P.2d 913, overruled on other grounds by People v. Flannel (1979) 25 Cal.3d 668, 684, 160 Cal.Rptr. 84, 603 P.2d 1).   The general principles of law governing the case are those principles closely and openly connected with the facts before the court and which are necessary for the jury's understanding of the case.   This sua sponte duty to instruct includes instructing on the essential elements of the crimes charged, all lesser included offenses and all defenses if supported by the evidence.   The duty also includes instructing on the relationship of the defenses to the elements of the charged offense.  (People v. Sedeno, supra, 10 Cal.3d at p. 716, 112 Cal.Rptr. 1, 518 P.2d 913.)

 Since appellant had a constitutional right to have the jury determine every material issue presented by the evidence (id., at p. 730, 112 Cal.Rptr. 1, 518 P.2d 913), the trial court's failure to so instruct was error.   We are not permitted to assess the prejudicial effect of this error, however, by weighing the evidence to determine the likelihood that a properly instructed jury would have found appellant guilty only of involuntary manslaughter.  (People v. Graham, supra, 71 Cal.2d 303, 315–316, 78 Cal.Rptr. 217, 455 P.2d 153;  cf. People v. Castillo (1969) 70 Cal.2d 264, 271, 74 Cal.Rptr. 385, 449 P.2d 449.)   Nor can we find in the present case that the factual question posed by the omitted instruction was necessarily resolved adversely to appellant under the other properly given instructions.  (People v. Sedeno, supra, 10 Cal.3d at p. 721, 112 Cal.Rptr. 1, 518 P.2d 913.)   Thus, the instructional hiatus must be deemed prejudicial.  (Id., at pp. 716, 720, 112 Cal.Rptr. 1, 518 P.2d 913.)

III. The absence of an instruction that appellant must intend to kill the victim before the special circumstance could be found true requires a reversal of the special circumstance finding.

 Appellant correctly contends an intent to kill must be found in a felony-murder situation before a defendant can be sentenced to life in prison without the possibility of parole.³  Such was the holding of the Supreme Court in Carlos v. Superior Court, supra, 35 Cal.3d 131, 197 Cal.Rptr. 79, 672 P.2d 862:

“The wording of the initiative, its purpose as explained to the voters, the principle that penal statutes should be construed to give the defendant the benefit of reasonable doubt, and the companion principle that statutes should be construed to avoid substantial questions of their constitutional validity—all unite to support the conclusion that the felony murder special circumstance of the 1978 initiative requires proof that the defendant intended to kill.   Specifically, we construe the word ‘intentionally’ in subdivision (b) of section 190.2 ․ to require an intent to kill before a defendant is subject to a special circumstance finding under paragraph 17 of that section.”  (Id., at pp. 153–154, 197 Cal.Rptr. 79, 672 P.2d 862.)

Carlos has retrospective effect.  (People v. Denney (1984) 152 Cal.App.3d 530, 537–538, 199 Cal.Rptr. 623.)

 A necessary corollary of Carlos is that the jury must be instructed that a specific intent to kill is an essential element of the special circumstance alleged against the defendant and that the prosecution has the burden of proving the specific intent to kill beyond a reasonable doubt.   Such instructions were not given in the present case.

 The critical question is what standard of prejudice is to be applied in reviewing the instructional omission.   In our view, the right to have the jury instructed on an essential element of a special circumstance murder—here, the intent to kill—goes to the very heart of the right to a jury trial on the special circumstance allegation.   In this vein, we read Penal Code section 190.4 ⁴  —to require a two-step process in a special circumstance determination:  first, the “truth or untruth” of an alleged special circumstance is determined by the same jury, if at all possible, that found the defendant guilty of murder;  second, a “separate penalty hearing” is held where a trier of fact determines only “what the penalty shall be.”   It seems apparent to us that the determination of the intent to kill as required by Carlos v. Superior Court, supra, 35 Cal.3d 131, 197 Cal.Rptr. 79, 672 P.2d 862, is to fall into the first phase of this two-step process and be governed by the same rules that protect the integrity of the factfinding process in the trial of the underlying murder charge.   Simply put, the determination of the truth or untruth of a special circumstance alleged under Penal Code section 190.2, subdivision (a)(17) is part of the guilt phase of the trial;  it follows that the same rules that regulate the finding of fact as to the murder charge regulate the finding of fact as to the section 190.2, subdivision (a)(17) special circumstance charge at least insofar as a defendant's right to a determination of every material issue presented by the evidence is concerned.  (See People v. Sedeno, supra, 10 Cal.3d 703, 112 Cal.Rptr. 1, 518 P.2d 913.)   The failure of the trial court to instruct the jury on the intent to kill deprived appellant of this right.

We recognize that People v. Sedeno, supra, 10 Cal.3d 703, 112 Cal.Rptr. 1, 518 P.2d 913, provides that instructional error can be cured in appropriate circumstances by examining the verdict in the light of the instructions given and finding that the jury necessarily resolved, although in a different setting, the same factual question that would have been presented by the missing instruction.  “Thus, in some circumstances it is possible to determine that although [a necessary] instruction ․ was erroneously omitted, the factual question posed by the omitted instruction was necessarily resolved adversely to the defendant under other, properly given instructions.   In such cases the issue should not be deemed to have been removed from the jury's consideration since it has been resolved in another context, and there can be no prejudice to the defendant ․”  (People v. Sedeno, supra, 10 Cal.3d at p. 721, 112 Cal.Rptr. 1, 518 P.2d 913.)

We have carefully examined the instructions that were given to the jury in the present case and find insufficient basis for concluding that the jury necessarily resolved the specific intent to kill issue against appellant.   The only instructions on specific intent that were given pertained to the specific intent to rob the patrons of the bar at the time of the killing.   There is a material difference between formulating an intent to rob and an intent to kill;  the former does not necessarily encompass the latter.

Although the evidence strongly suggests that appellant did intend to kill the victim when he shot him twice in the abdomen from a short distance, the evidence of appellant's possible diminished capacity caused by his substantial blood alcohol condition when he shot the victim forecloses a finding that the omitted instructions were harmless beyond a reasonable doubt.  (Chapman v. California, supra, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705.)

We are aware of the recent case of People v. Darwiche (1984) 152 Cal.App.3d 630, 199 Cal.Rptr. 806, which holds without analysis that “[b]ecause Carlos did not reach any constitutional issues, the proper test to apply is the harmless error test set forth in People v. Watson (1956) 46 Cal.2d 818 [299 P.2d 243] ․   Therefore, Darwiche's conviction [of life imprisonment without possibility of parole] must be reversed only if it is reasonably probable that a result more favorable to him would have been reached if the jury had been instructed on the Carlos [specific] intent [to kill] requirement.”  (152 Cal.App.3d at p. 638, 199 Cal.Rptr. 806.)   With all due respect to our colleagues on the Fourth District, Division Three, we must disagree with their holding.   As we have explained, we believe the instructional omission under Carlos v. Superior Court, supra, 35 Cal.3d 131, 197 Cal.Rptr. 79, 672 P.2d 862 must be evaluated under the standard of Chapman v. California, supra, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705.

The judgment is reversed.

FOOTNOTES

1.   All CALJIC instructions referred to are from the fourth edition (1979) unless otherwise noted.

2.   This instruction was required because of the evidence that appellant was in an “alcoholic blackout” at the time he robbed the bar and appellant's testimony that he did not remember even being in the bar.  (See People v. Tidwell (1970) 3 Cal.3d 82, 89 Cal.Rptr. 58, 473 P.2d 762;  People v. Graham (1969) 71 Cal.2d 303, 78 Cal.Rptr. 217, 455 P.2d 153.)

3.   Penal Code section 190.2 reads in relevant part:“(a) The penalty for a defendant found guilty of murder in the first degree shall be death or confinement in state prison for a term of life without the possibility of parole in any case in which one or more of the following special circumstances has been charged and specially found under Section 190.4, to be true:“․“(17) The murder was committed while the defendant was engaged in ․ the commission of, attempted commission of, or the immediate flight after committing or attempting to commit the following felonies:“(i) Robbery in violation of Section 211.”

4.   Penal Code section 190.4 reads, in relevant part:“(a) Whenever special circumstances as enumerated in Section 190.2 are alleged and the trier of fact finds the defendant guilty of first degree murder, the trier of fact shall also make a special finding on the truth of each alleged special circumstance.   The determination of the truth of any or all of the special circumstances shall be made by the trier of fact on the evidence presented at the trial or at the hearing held pursuant to Subdivision (b) of Section 190.1.“In case of a reasonable doubt as to whether a special circumstance is true, the defendant is entitled to a finding that it is not true.   The trier of fact shall make a special finding that each special circumstance charged is either true or not true.   Whenever a special circumstance requires proof of the commission or attempted commission of a crime, such crime shall be charged and proved pursuant to the general law applying to the trier and conviction of the crime.“․“If the trier of fact finds that any one or more of the special circumstances enumerated in Section 190.2 as charged is true, there shall be a separate penalty hearing, and neither the finding that any of the remaining special circumstances charged is not true, nor if the trier of fact is a jury, the inability of the jury to agree on the issue of the truth or untruth of any of the remaining special circumstances charged, shall prevent the holding of a separate penalty hearing.“In any case in which the defendant has been found guilty by a jury, and the jury has been unable to reach a unanimous verdict that one or more of the special circumstances charged are true, and does not reach a unanimous verdict that all the special circumstances charged are not true, the court shall dismiss the jury and shall order a new jury impaneled to try the issues, but the issue of guilt shall not be tried by such jury, nor shall such jury retry the issue of the truth of any of the special circumstances which were found by a unanimous verdict of the previous jury to be untrue.   If such new jury is unable to reach the unanimous verdict that one or more of the special circumstances it is trying are true, the court shall dismiss the jury and in the court's discretion shall either order a new jury impaneled to try the issues the previous jury was unable to reach the unanimous verdict on, or impose a punishment of confinement in state prison for a term of 25 years.“(b) ․“If the trier of fact is a jury and has been unable to reach a unanimous verdict as to what the penalty shall be, the court shall dismiss the jury and shall order a new jury impaneled to try the issue as to what the penalty shall be.   If such new jury is unable to reach a unanimous verdict as to what the penalty shall be, the court in its discretion shall either order a new jury or impose a punishment of confinement in state prison for a term of life without the possibility of parole.”  (Emphasis added.)

FRANSON, Acting Presiding Justice.

ANDREEN and HAMLIN, JJ., concur.