California Court of Appeals, Second District, Eighth Division
APPEAL from a judgment of the Superior Court of Los Angeles County, No. NA088024 James Pierce, Judge.
Joshua L. Siegel, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Paul M. Roadarmel, Jr., and David F. Glassman, Deputy Attorneys General, for Plaintiff and Respondent.
We hold that double jeopardy bars a retrial on a substantive offense when jurors reached a verdict on the substantive offense but deadlocked as to an enhancement. The trial court should have taken a verdict on the substantive offense and declared a mistrial as to the enhancement only. Finding that defendant Demetrius Sullivan received the ineffective assistance of counsel for counsel’s failure to advise defendant to plead once in jeopardy, we reverse the judgment of conviction.
On March 17, 2011, defendant was charged with robbery (Pen. Code, § 211) and assault likely to produce great bodily injury (§ 245, subd. (a)(1)). It was further alleged defendant personally inflicted great bodily injury on John Doe in violation of section 12022.7, subdivision (a). Prior convictions were alleged. Defendant was tried by jury. With respect to the great bodily injury enhancement, jurors were instructed that “great bodily injury means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm.” Jurors asked the court the meaning of “moderate harm, ” and the court reinstructed them.
In the morning of June 30, 2011, jurors returned a verdict on the robbery charge, and reported they were unable to reach a verdict on whether defendant actually inflicted great bodily injury on John Doe. The court ordered jurors to conduct additional deliberations. That afternoon, jurors reported they were still unable to reach a verdict on the special circumstance. Their note stated: “We are at a standstill on special circumstances. We have a verdict.” The court concluded it could not take a verdict on the substantive offense without simultaneously taking a verdict on the enhancement. The court explained:
“THE COURT:... It’s now 3:05 in the afternoon, and approximately 10 minutes ago we received another note from the foreperson that indicated: ‘We are at a standstill on special circumstances. We have a verdict.’ [¶] Unfortunately, ladies and gentlemen. I’m unable to take the verdict unless the complete form is there. So I want you to understand that it’s all together. [¶] Now I would like to inquire as to Juror No. 4, the foreperson, what the poll count at the last counting?
“JUROR No. 4: It was 11 to 1.
“THE COURT: So there’s been no change?
“JUROR No. 4: Uh-uh.
“THE COURT: Okay. Let me ask you a couple of other questions, and I want all of you to think about this. If the Court were to ask you to continue deliberating and provide anything to you, if additional playing the tape again or maybe some more definitions, if I can give you some more words from the dictionary in regard to the difference between ‘moderate’ versus ‘significant’ that’s what we’re talking about here. ‘Moderate’ versus ...