Opinion
Review Granted and Transferred to the Court of Appeals June 8, 1989.
Previously published at 209 Cal.App.3d 342
Henry J. Hall, Deputy County Public Defender for petitioner.
Maurice H. Oppenheim, Deputy Dist. Atty. for real party in interest. OPINION AND ORDER FOR PEREMPTORY WRIT OF MANDATE
JOHNSON, Associate Justice.
Petitioner Gray contends the jury's failure to specify the degree of murder in its verdict renders his conviction second degree murder as a matter of law. Under the law (Pen.Code, § 1157) as construed by our Supreme Court (People v. McDonald (1984) 37 Cal.3d 351, 208 Cal.Rptr. 236, 690 P.2d 709; People v. Hughes (1959) 171 Cal.App.2d 362, 340 P.2d 679) petitioner is correct, and accordingly we will order the respondent to pronounce and enter a judgment of conviction of second degree murder.
FACTS
Petitioner was charged with murder, aggravated by four special circumstances--murder committed while in the commission of burglary, attempted robbery, rape, and sodomy. He was also charged with residential burglary of the victim's residence, and with forcible rape, robbery, and forcible sodomy of the murder victim. Six unrelated burglaries were also charged. On February 22, 1989, after several weeks of trial, the jury found petitioner guilty on all charges and found the special circumstances allegations to be true. The verdict form for guilty on the murder charge submitted to and returned by the jury, did not specify the degree of the murder. The jury was polled, the verdicts were recorded, and the jury was released on the guilt phase with instructions to return February 24 for the penalty phase.
The following day (February 23) the parties appeared, and the court expressed concern that the jury's failure to specify the degree of the murder may pose a problem in view of Penal Code section 1157 as recently construed by the Supreme Court in People v. Marks (1988) 45 Cal.3d 1335, 248 Cal.Rptr. 874, 756 P.2d 260. Petitioner moved the murder be declared of second degree as a matter of law. The court denied petitioner's motion, and announced it would attempt to "correct" the error in the verdict on February 24 by resubmitting modified verdict forms to the jury specifying murder in the first degree. Petitioner's motion was denied.
Unless otherwise indicated, all further statutory references are to the Penal Code.
We have noted the single paragraph dictum in People v. Marks (1988) 45 Cal.3d 1335, 1344, 248 Cal.Rptr. 874, 756 P.2d 260 which assumes the correctness of the McDonald holding.
On February 24 the court told the jury the verdict forms for murder should have specified murder in the first degree, and instructed the jury to deliberate and render a verdict on the murder count using the revised verdict forms. The jury deliberated briefly and returned with a verdict of guilty of murder in the first degree. We have stayed the penalty phase of the trial pending disposition of this proceeding.
DISCUSSION
Penal Code section 1157 provides:
"Whenever a defendant is convicted of a crime or attempt to commit a crime which is distinguished into degrees, the jury, or the court if a jury trial is waived, must find the degree of the crime or attempted crime of which he is guilty. Upon the failure of the jury or the court to so determine, the degree of the crime or attempted crime of which the defendant is guilty, shall be deemed to be of the lesser degree."
In a long and unbroken line of cases, our courts have held section 1157 requires the degree be explicitly specified by the jury's verdict. (People v. Dixon (1979) 24 Cal.3d 43, 51-52, 154 Cal.Rptr. 236, 592 P.2d 752; People v. Flores (1974) 12 Cal.3d 85, 94-95, 115 Cal.Rptr. 225, 524 P.2d 353; People v. Beamon (1973) 8 Cal.3d 625, 629, fn. 2, 105 Cal.Rptr. 681, 504 P.2d 905; People v. Thomas (1978) 84 Cal.App.3d 281, 148 Cal.Rptr. 532; People v. Baeske (1976) 58 Cal.App.3d 775, 778, fn. 1, 130 Cal.Rptr. 35; People v. Doran (1974) 36 Cal.App.3d 592, 111 Cal.Rptr. 793; People v. Cox (1973) 33 Cal.App.3d 378, 381-382, 109 Cal.Rptr. 43; People v. Fernandez (1963) 222 Cal.App.2d 760, 769, 35 Cal.Rptr. 370; People v. Hughes, supra, 171 Cal.App.2d at pp. 369-370, 340 P.2d 679; In re Candelario (1970) 3 Cal.3d 702, 706, fn. 2, 91 Cal.Rptr. 497, 477 P.2d 729; People v. McDonald, supra, 37 Cal.3d at pp. 379-383, 208 Cal.Rptr. 236, 690 P.2d 709.) As We are unable to distinguish the facts of McDonald from those in the instant case in any legally significant manner. The Supreme Court's holding in that case is amply clear, and under established principles of stare decisis we are bound by the decision of the high court regardless of our own policy preferences.
DISPOSITION
The petition expressly prays for a peremptory writ in the first instance (Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 203 Cal.Rptr. 626, 681 P.2d 893), and the People have been afforded an opportunity to file opposition, which they have ably done. Under these circumstances we dispense with the issuance of an alternative writ and issue an order for a peremptory writ of mandate in the first instance. (Code Civ.Proc., § 1088.)
Let a peremptory writ issue compelling the respondent to vacate its order of February 23, 1989 in Los Angeles Superior Court case number A885549 denying petitioner's motion for an order declaring his conviction to be of murder in the second degree, and thereafter to pronounce and enter a judgment of conviction of murder in the second degree.
Good reason appearing, this decision shall be deemed final as to this court five days from the date hereof. (Cal. Rules of Court, rule 24(c).) The stay of proceedings heretofore imposed shall be dissolved upon the finality of this decision as to this court.
LILLIE, Presiding Justice, concurring.
I concur in the issuance of the peremptory writ of mandate, but only do so under the compulsion of section 1157, Penal Code, People v. Marks, 45 Cal.3d 1335, 248 Cal.Rptr. 874, 756 P.2d 260 and People v. McDonald, 37 Cal.3d 351, 208 Cal.Rptr. 236, 690 P.2d 709.
The shocking evidence in this case impels me to invite the Legislature to reexamine the provisions of section 1157 in light of this and other cases in which our courts have strictly construed the statute.
FRED WOODS, Associate Justice, concurring.
I agree with the court's conclusion that People v. McDonald (1984) 37 Cal.3d 351, 208 Cal.Rptr. 236, 690 P.2d 709 compels issuance of the instant writ and therefore concur in the judgment of the court. I write separately to urge that McDonald 1 be overruled.
Even Alice would be taken aback by our present topsy turvy predicament. An accused is brought to a court of justice. A jury, asked to determine his guilt or innocence, finds him guilty of murdering a woman while burglarizing, raping, sodomizing, and attempting to rob her. Everyone agrees the jury intended to convict the accused of first degree murder. And everyone agrees that their verdict demonstrates their intention. But the law, we are told, requires that two words be spoken. Unless the words "first degree" are uttered, first degree becomes second degree. Such an approach, in the opinion of A single pillar supports McDonald: the mandate of Penal Code section 1157 that unless a verdict specifies the higher degree the law deems the lesser degree. Quoting People v. Campbell (1870) 40 Cal. 129, 138 McDonald states "[i]t establishes a rule to which there is to be no exception, and the Courts have no authority to create an exception when the statute makes none." (People v. McDonald, supra, 37 Cal.3d at p. 382, 208 Cal.Rptr. 236, 690 P.2d 709.)
Thus, McDonald explains and justifies its result not on any policy ground but exclusively under the compulsion of section 1157. McDonald, like an obedient soldier, is just obeying orders, just doing what section 1157 commands it to do.
In 1870 Campbell suggested that absent a specification of degree in its verdict a jury might be unaware that convicting a defendant of murder could subject him to a death penalty. No one has made this suggestion recently nor could such suggestion be made in candor in view of the elaborate criminal procedures which have evolved since 1870 to protect the rights of an accused in a special circumstance case. People v. Lamb (1986) 176 Cal.App.3d 932, 935, 222 Cal.Rptr. 570 does suggest policy reasons for section 1157 but finding them absent affirms a judgment involving 11 first degree burglary convictions, by guilty plea, despite the trial court not having "determined" degree as prescribed by Penal Code section 1192, the non-jury counterpart to section 1157.
But is McDonald really just following the "orders" of section 1157? Section 1157 provides:
"Whenever a defendant is convicted of a crime or attempt to commit a crime which is distinguished into degrees, the jury, or the court if a jury trial is waived, must find the degree of the crime or attempted crime of which he is guilty. Upon the failure of the jury or the court to so determine, the degree of the crime or attempted crime of which the defendant is guilty, shall be deemed to be of the lesser degree." (Pen. Code, § 1157.)
Clearly, under the section, a duty is imposed upon a jury to do something. That duty is to "find" or, synonymously, "determine", the degree of the crime.
Thus, the section mandates what the jury must do. It does not mandate how the jury must perform the dictates of the statute. Section 1157 does not prescribe that a finding of higher degree may only be expressed by the words "first degree". Nor do the words "find" and "determine" (each denotive of the decision making process vice the decision transmitting or communicating process), suggest any linguistic preference.
Campbell, despite its prominence in the McDonald analysis, construes neither "find" nor "determine" but instead concentrates on the far different word, namely, "designate". "Designate", unlike "find" and "determine", does denote a communication process. Our 1872 code, in section 1157, chose to use the term "find" not "designate". McDonald 's reliance on Campbell could bear further scrutiny.
Under section 1157, when a jury makes a finding of higher degree and then plainly communicates that finding, it has fully discharged its duty. The "orders" of section 1157 have thus been carried out.
See People v. Goodwin (1988) 202 Cal.App.3d 940, 249 Cal.Rptr. 430; People v. Anaya (1986) 179 Cal.App.3d 828, 225 Cal.Rptr. 51.
McDonald, in requiring more by mandatory use of the words "first degree", is not following the "orders" of section 1157, but is devising its own.