Ct.App. 2/5 B222615 Los Angeles County Super. Ct. No. BA316526
The opinion of the court was delivered by: Liu, J.
Defendant was charged with sexually molesting two victims. A jury convicted defendant of some counts involving one victim while deadlocking on all counts involving the other victim. Nevertheless, the jury returned a true finding on a "One Strike" allegation that defendant had committed offenses against multiple victims. (Pen. Code, § 667.61, subds. (b), (e)(4); all further statutory references are to the Penal Code.) Believing the jury's true finding was made in error, the trial court instructed the jury on the law and ordered further deliberations. When the jury quickly returned, the trial court did not ask for or receive a verdict from the jury. Believing the jury had again erred, this time by making a not true finding, the court gave a lengthy comment with additional instructions and again ordered further deliberations. The jury then returned a third time with a blank verdict form and indicated it had deadlocked on the multiple victim allegation. The trial court declared a mistrial, and defendant was retried. A second jury convicted defendant of counts involving the other victim and found true the multiple victim allegation. The issue presented is whether defendant could be properly retried on the multiple victim allegation.
Numerous courts have found improper a trial court's good faith inquiries into apparently inconsistent verdicts. In the present case, the trial court tried to steer the first jury toward the "correct" outcome on the multiple victim allegation. In so doing, the trial court departed from the procedures carefully prescribed by the Legislature for receiving and recording a jury's verdict. However, because the first jury had no authority to decide or even to consider the multiple victim allegation in the circumstances here, the jury could not have returned any valid verdict on that allegation. Thus, retrial on the multiple victim allegation was not barred by double jeopardy.
An information charged defendant with committing various sex offenses against two minor victims, J.R. and Z.C., with nine counts involving Z.C. and four counts involving J.R. The information also alleged, pursuant to the One Strike law, that defendant "in the present case committed [a specified offense] against more than one victim." (See § 667.61, subds. (b), (e)(4).) Z.C. was defendant's biological daughter, and J.R. was the daughter of defendant's wife. They all lived in the same household at the time of the alleged offenses. There was no allegation in the information or any evidence at trial that defendant committed sex offenses against anyone other than Z.C. and J.R.
The trial court instructed the jury on the One Strike allegation as follows: "If you find the defendant guilty of two or more sex offenses as charged in Counts 1, 2, 6, 7, 8, 9, 10, 11, 12 and 13, you must then decide whether the People have proved the additional allegation that those crimes were committed against more than one victim." The jury deliberated for about a day. It then informed the trial court that it had reached a verdict on three counts but was deadlocked on the remaining counts. The trial court brought the jury into the courtroom, and the foreperson, Juror No. 8, said the jury had reached a verdict on counts 10, 11, and 12, all of which involved J.R. After inquiring about the numerical split of the jurors on the 10 remaining counts, the trial court polled the jury, and each juror agreed that further deliberations would not assist them. The trial court briefly discussed the matter with counsel and then decided it would receive the jury's verdicts as to the three counts involving J.R. and accept that the jury was deadlocked on the remaining counts.
After receiving the verdict forms, the trial court called counsel to sidebar and informed them that the jury had convicted defendant on counts 10, 11, and 12, but had found true the One Strike allegation that defendant committed offenses against more than one victim. Because the three counts on which the jury convicted defendant involved only a single victim, J.R., the trial court questioned whether the jury could find the multiple victim allegation true and decided to inquire whether "this is what they want to do." The following transpired:
"The Court: Juror Number 8, I have a question. Based upon your verdicts that I've taken a look at, as to Counts 10, 11, and 12, you also signed a true finding on the special allegation, which calls for the offenses to be committed against more than one victim. Is that what you wanted to do?
"Juror No. 8: No, sir. I thought it was one or more counts.
"The Court: No, it has to be against one or more victims. With that in mind, what I am going to do, I am going to hand this form back to you. I'm going to ask the jury to go back in, and if you did not mean to find that as true, because I've just explained it to you, to make sure that that reflects your verdict. Once you're done, you are done with that, come back out.
"If it does, that's fine. You have to go back in the jury room. . . . Why don't you go ahead back in at this point. I think there may have been a misunderstanding."
The jury went back to the deliberation room and returned in five minutes. At that point, the trial court again called counsel to sidebar and said, "I think I can guess what they have done. They have gone in; they signed it 'not true finding.' The problem is that's not what they should have done. . . . [¶] It will be double jeopardy. Otherwise, the truth is if they are hung, the Court should not take any verdict on that Count because it's inappropriate." Defense counsel said, "Do you want to look and see what they did first?" The court said, "I think what it is, since they are hung, we probably should not enter a finding on that at this point." The court then addressed the jury as follows:
"The Court: Okay. Ladies and gentlemen, I have given this some thought. Since you are unable to arrive at a decision on some of the counts, it is my belief that you should not be making a finding on that allegation unless two different victims were named.
"Now, we know what the verdicts are. You signed them, and I have read them, and counsel is aware of it. It appears to me the appropriate thing to do is -- as with the other charges, is to not enter a finding. Since you are unable to arrive at a verdict, you can't find that to be true unless your belief is unanimously -- if unanimously you believe not just as to the counts that you return but the entire case that there is not more than one victim.
"I mean, technically, you could come to that finding without arriving at the other counts. I think legally they could, but you would have to make a finding unanimously that there is only one victim. If you are not able to do that . . . then what you should do is simply not fill in that form.
"That's correct, if you believe unanimously that that finding is not true, it's not based on the three verdicts that you returned, it's based on the entire case because you are unable to arrive at a verdict on many of the counts. . . .
"Let's assume for a moment you had arrived at verdicts, and the verdicts named more than one victim, that's all I could say, you then would have to make a determination whether this allegation was true or not true. The problem is by signing that verdict form, you still have counts where you have been unable to arrive at a verdict, and those verdict forms do name more than one victim.
"So I sort of, I don't want to tell you what to do. I am sort of giving you what I believe the law require[s] -- You have three options: You could find it to be true, which at this point you originally signed, but you have agreed it was a mistake based upon a misunderstanding. I think I may have misled you when I sent you back out as to . . . what your options were.
"Do you understand now what your options are? I see a lot of jurors nodding their heads you don't. There is a lot of counts that are still outstanding.
"The Court: I think legally there may be some problem, but I don't want to tell you that's the law because I am not sure you are making a finding that there is not more than one victim in this case; yet you haven't decided all the counts.
"That finding does not apply just to the three counts that you decided; it applies to the entire case. If you are unable -- I don't want to say anything more on that finding. I think you have to go in and discuss that.
"A lot of jurors are nodding their heads, and I think I know -- Juror No. 8, you seem somewhat confused. That finding applies when the entire case has been decided, if you can, but what I am saying is there is a lot of counts you did not decide.
"Juror No. 8: Correct. Okay.
"The Court: I want you to go back. I don't want to say anymore. When you're done -- go in, take as much time as you need. You let us know. . . . You retire and continue your deliberations. I am not comfortable saying anything more about it. I think I have explained it to the satisfaction where enough jurors could perhaps guide the discussion. Then we will just see where you stand."
The jury went back to the deliberation room and returned a few minutes later, at which point the trial court noted "[f]or the record" that "the jurors questioned the clerk as to whether they could leave a form blank and could they have a fresh form which was sent in to them[.]" The trial court then polled the jury, and all jurors agreed they wanted to leave the form blank. The trial court accepted the guilty verdicts on counts 10, 11, and 12, and declared a mistrial as to the remaining counts and the multiple victim allegation.
Subsequently, the trial court empanelled a second jury, and that jury convicted defendant of the nine remaining counts involving Z.C. and found true the multiple victim allegation. Count 13, which involved J.R., was not retried. The trial court sentenced defendant on counts 1 and 10 to two consecutive terms of 15 years to life (one term for each victim) ...