Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 05F10016
ROBIE, J.
An information accused defendant Kyiron Ferguson as follows:
Count one: infliction of corporal injury on a cohabitant;
Count two: infliction of corporal injury on a cohabitant;
Count three: assault by means of force likely to produce great bodily injury;
Count four: criminal threats.
The information alleged that defendant personally inflicted great bodily injury under circumstances involving domestic violence in the commission of counts two and three.
A jury found defendant guilty of count one and count two (finding the special allegation not true). As to count three, the jury found him guilty of the lesser included offense of assault (to which the special allegation does not apply). He was acquitted on count four.
Based on these convictions, the trial court found defendant in violation of his probation in two unrelated cases (cases Nos. 03F03968 and 01F02218).
Defendant was sentenced to state prison for six years, consisting of four years on case No. 03F03968 plus one year each on current counts one and two. Sentence on current count three was stayed pursuant to Penal Code section 654.
The abstract of judgment incorrectly identifies defendant’s count two conviction as a violation of Penal Code section “23/5(a),” not section 273.5, subdivision (a). The abstract also omits any reference to the conviction and stay of sentence on count three. The abstract incorrectly lists defendant’s custody credit as 299 days, rather than 209 days. We shall direct the trial court to correct the abstract. (People v. Mitchell (2001) 26 Cal.4th 181, 185-186.)
On appeal, defendant contends his convictions on counts one and two must be reversed because: (1) the jury returned acquittals on lesser included offenses to those counts; (2) the trial court’s comments to the jury following its return of the acquittals improperly directed it to return verdicts of guilty; and (3) the court’s failure to record the acquittals violated his federal due process rights. In the alternative, he claims the consecutive sentences on counts one and two violate the principles of Cunningham v. California (2007) 549 U.S. __ [166 L.Ed.2d 856] and its antecedents, and thus must be modified to run concurrently. We shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
The facts of defendant’s offenses are not at issue and need not be set forth in this opinion. At issue, instead, is the manner in which the jury returned the verdicts and the manner in which the court instructed the jury, which we recount below.
Before jury deliberations began, the court determined that the jury should consider lesser included offenses to counts one, two, and three. The court then instructed the jury with a modified version of CALCRIM No. 3518 which explains how the jury is to deal with the lesser offenses.
CALCRIM No. 3518 told the jury:
On May 10, 2006, the jury returned to the courtroom and stated that it had reached a verdict. At the trial court’s request, the clerk read verdicts of guilty on counts one and two (corporal injury of a cohabitant) and a not true finding on the great bodily injury enhancement on count two. The clerk then read two verdicts of guilty on count three -- one on assault by force likely to produce great bodily injury and one on the lesser included offense of assault.
This case was tried by Judge Garcia. Judge Nunley sat in for Judge Garcia during the May 10, 2006, proceedings.
After the clerk read the jury’s second guilty verdict on count three, the court held an unreported conference with the attorneys. Thereafter, at the court’s request, the clerk read the jury’s verdicts on the lesser included offenses to counts one and two. In those verdicts, the jury found defendant not guilty of battery in a dating relationship. The clerk also read the jury’s count four verdict of not guilty of criminal threats.
After the verdicts were read, the trial court informed the attorneys that it was its “intent not to record the verdict at this time.” The court then addressed the jury as follows: “Ladies and gentlemen, I cannot accept that verdict. What I’m going to do is I’m going to reinstruct you relative to [CALCRIM] number 3518. I’m going to send you back to the jury deliberation room to fill out the verdict forms consistent with [CALCRIM] number 3518. So if you need guidance as to how to fill out the verdict forms, read [CALCRIM No.] 3518, please.”
The trial court then reinstructed the jury with CALCRIM No. 3518. At defense counsel’s request, and without objection by the prosecutor, the court recorded the jury’s not guilty verdict on count four, which each juror stated was his or her true and correct verdict. The court then ordered the jurors to return to the deliberation room to “fill out the verdict forms consistent with [CALCRIM] number 3518.”
After the jurors left the courtroom, the trial court stated: “All right. We’re meeting on the record outside the presence of the jurors. And counsel, one of the things that became quite clear as the clerk read the verdict forms, as I read them to myself, is they were incorrect. And in fact, one of the things that’s happened is the jurors kind of interspersed the verdict forms with the questionnaire forms. So that’s why -- because you noticed when I pulled out the documents from the envelope, there were a number of documents in there. And in sticking the questionnaire forms in there, they had mixed them in with the verdict forms. So some of the verdict forms were actually inside of the packet containing the question forms. So that’s why the verdict came out kind of piecemeal by the court. I didn’t look through the question forms. If I did I would have found all the verdict forms. [¶] One of the things that is clear in reading the verdict forms is they were inconsistent with the manner in which CALCRIM suggests you fill out the verdict forms. And counsel well know the reason I didn’t record those verdicts is because as you well know acquittal relative to a lesser serves as a bar to a conviction to greater offenses, because the lessers are necessarily included within the greater offenses. So that’s why they weren’t recorded. And I imagine they simply made mistakes there. Because as to some of the verdicts, I believe it was maybe Count Three, I don’t know, but in any event it was clear they made a mistake in filling out the forms. And we’ll see. So they may fill them out the same way.” Defense counsel expressed concern regarding the enhancing allegations, as to which the jury’s “findings . . . were consistent.” The court replied that it doubted the jury subsequently would return a true finding.
The next day, the jury returned to the courtroom and informed the trial court (Judge Garcia) that it had reached verdicts on counts one, two, and three. After reviewing the verdict forms, the court told the jury: “Ladies and gentlemen, as to Count Three, I’m going to return the verdict forms back to you. You’ve signed both guilty and not guilty verdict forms. It can’t be both, so you have made an error.”
The trial court instructed the jury to return to the deliberation room and make a notation on any verdict form or forms that had been “signed in error.” After a brief recess, the jury returned to the courtroom and the foreperson indicated that the verdict forms had been discussed. The clerk read verdicts of guilty on counts one and two; the count two enhancement not true; not guilty on count three; and guilty on count three’s lesser included offense of assault. The jury confirmed that those were its verdicts, and the court ordered that the verdicts be recorded.
DISCUSSION
I
The Verdicts On Counts One And Two
Defendant contends his convictions on counts one and two must be reversed because “the jury impliedly acquitted [him] on those counts by initially returning acquittals on the lesser included offenses to those counts.” He reasons that “the jury’s acquittal on the lesser included offenses necessarily means that the jury found that the prosecution failed to meet its burden of proving facts necessary both to the lesser and to the greater offense beyond a reasonable doubt.”
The People contend defendant forfeited his contentions by failing to object to the jury’s returning to the deliberation room to complete the verdict forms consistent with the court’s instructions. (Citing People v. Saunders (1993) 5 Cal.4th 580, 590.)
Defendant acknowledges that his claim “appears to be directly contradicted by the decision in People v. Davis (1988) 202 Cal.App.3d 1009,” but he argues Davis should not be followed because “the jury’s intentions in this matter were far less clear than the intent of the jury in Davis.”
In Davis, the jury was instructed on first degree premeditated murder, second degree murder, voluntary manslaughter, and involuntary manslaughter. (People v. Davis, supra, 202 Cal.App.3d at p. 1014.) The jury was also instructed pursuant to a former version of CALJIC No. 8.75, which advised it to “address the possible homicide verdicts in decreasing order of severity,” and “[t]he process was to be repeated downward through the two manslaughter verdicts until the jury had agreed on a verdict of guilty at some level, deadlocked at some level, or agreed on a verdict of not guilty at all levels.” (Ibid.)
After deliberating, the jury returned verdicts of not guilty of first degree murder, guilty of second degree murder, not guilty of voluntary manslaughter, and not guilty of involuntary manslaughter. (People v. Davis, supra, 202 Cal.App.3d at p. 1014.) The foreperson signed the not guilty of first degree murder verdict on November 25, 1986, at 10:00 a.m. The foreperson signed the three remaining verdicts the next day at 10:58 a.m. (Ibid.) After the second degree murder verdict was read in court, defense counsel waived further reading of the verdict forms. The court noted that the jury had returned not guilty verdicts of voluntary and involuntary manslaughter, but the jurors were polled and all agreed that guilty of second degree murder was their verdict. (Ibid.)
Davis rejected the defendant’s argument that his second degree murder conviction must be reversed because it was inconsistent with the jury’s acquittal on the lesser included offenses. (People v. Davis, supra, 202 Cal.App.3d at pp. 1014-1017.) Davis observed that the jury expressly had found the defendant guilty of second degree murder, and the jury foreperson had signed the second degree murder verdict form at the same time she had signed the not guilty of manslaughter verdict forms. Thus, Davis reasoned that the verdict forms as completed “expressed the jury’s conclusion that defendant was ‘not guilty’ of first degree murder or manslaughter. Rather, the evidence justified his conviction of second degree murder.” (Id. at p. 1017.)
Davis concluded that the defendant’s claim involved a “technical error,” and that he had “suffered no injustice because of the errors.” (People v. Davis, supra, 202 Cal.App.3d at p. 1017.) The court could “think of no policy which would be served by reversing [the defendant’s] conviction based on this clearly procedural error. Under article VI, section 13 of the California Constitution no judgment should be set aside or new trial granted for an error in procedure unless, from the whole record, the court can say there has been a miscarriage of justice. [The defendant] was convicted of second degree murder which was clearly the jury’s intent. There was no miscarriage of justice.” (Ibid.)
Like the jury in Davis, the jury in this case initially returned verdicts of guilty of a greater offense and verdicts of not guilty of a lesser included offense. Like the inconsistent verdicts in Davis, the inconsistent verdicts in this case were based on a technical error, specifically, completing verdicts on lesser included offenses after finding defendant guilty of the greater offenses. After the court reinstructed the jury with CALCRIM No. 3518, the jury corrected the inconsistency in its verdicts and returned single verdicts of guilty on counts one and two. The jurors collectively agreed that this was their true and correct verdict. The record shows that defendant’s convictions on counts one and two reflect the jury’s true intent.
To support his argument that the jury’s intent regarding counts one and two was unclear, defendant compares the jury’s initial verdicts and subsequent verdicts on counts one and two with the jury’s initial verdict and subsequent verdict on count three. He claims the jury’s intent to convict him of the greater offenses is “undercut significantly by the fact that the jury initially convicted [him] on count three when the initial verdicts were returned [citation] but acquitted him on count three after being sent back to continued deliberations.”
Unlike the initial verdicts on counts one and two -- guilty of the charged offenses but not guilty of the lesser included offense -- the jury’s initial verdict on count three was guilty of both the charged offense and the lesser included offense. The next day, the jury attempted to clarify its intent by returning three verdict forms: guilty of the charged offense, not guilty of the charged offense, and guilty of the lesser included offense. The jury later clarified that the form for guilty of the charged offense had been signed in error. The fact the jury ultimately convicted defendant of only the lesser included offense on count three does not suggest that it further intended to convict him of only the lesser included offenses on counts one and two, or that it intended to acquit him on those counts. We therefore reject defendant’s contention that the jury “impliedly acquitted” him on counts one and two.
II
The Court’s Comments On Counts One and Two
Defendant contends his convictions on counts one and two must be reversed because the trial court’s comments directed the jury to convict him of those counts. We disagree.
After the clerk read all the verdicts returned on May 10, 2006, the trial court told the jury: “Ladies and gentlemen, I cannot accept that verdict.” Read in context, the singular phrase “that verdict” referred generally to all the verdicts returned by the jury and did not single out the acquittals on the lesser included offenses on counts one and two. Thus, contrary to defendant’s contention, by the comment the court simply recognized the jury was confused and it neither “directed the jury not to acquit [him] on the lesser offenses,” nor “directed the jury to convict [him] on the greater offenses.”
Immediately after the disputed remark, the court stated it was sending the jury “back to the jury deliberation room to fill out the verdict forms consistent with [CALCRIM No.] 3518.” Nothing in that instruction required the jury to convict defendant of any offense. (See fn. 2, ante.) There was no error.
To avoid the problems that occurred in this case from the confusing verdict forms returned by the jury, the trial court may well consider in the future reviewing the verdict forms for errors before they are read in open court by the clerk.
III
Failure To Record Verdicts On Lesser Included Offenses
Defendant contends his convictions on counts one and two must be reversed because the trial court’s failure to record the acquittals on the lesser included offenses violated his due process rights. We disagree.
Penal Code section 1161 states in relevant part: “When there is a verdict of conviction, in which it appears to the court that the jury have mistaken the law, the court may explain the reason for that opinion and direct the jury to reconsider their verdict, and if, after the reconsideration, they return the same verdict, it must be entered; but when there is a verdict of acquittal, the court cannot require the jury to reconsider it.” (Italics added.)
In this case, the jury did not return an unambiguous “verdict of acquittal,” and the trial court necessarily did not require it to reconsider any such verdict. Rather, the court required the jury to reconsider its mélange of convictions of charged offenses and acquittals of lesser included offenses. This merely required the jury to clarify the inconsistent verdicts and to show its true intent. (See Bigelow v. Superior Court (1989) 208 Cal.App.3d 1127, 1136 [after jury returned an inconsistent verdict, the trial court could have “informed the jury that the acquittal was not consistent with findings of special circumstances and asked it to clarify its verdict to show its true intent”].)
Because the trial court’s instructions were consistent with Penal Code section 1164, defendant was deprived of his liberty “only to the extent determined by the jury in the exercise of its statutory discretion.” (See Hicks v. Oklahoma (1980) 447 U.S. 343, 346 [65 L.Ed.2d 175, 180].) There was no due process violation.
IV
Imposition Of Consecutive Sentences
Defendant contends his consecutive sentences on counts one and two must be reversed because they were based upon facts not submitted to, or found true by, a jury. We disagree.
In People v. Black (2007) 41 Cal.4th 799 the California Supreme Court concluded that a “defendant’s constitutional right to jury trial was not violated by the trial court’s imposition of consecutive sentences . . . .” (Id. at p. 823.) Black explained that “[t]he determination whether two or more sentences should be served in this manner is a ‘sentencing decision[] made by the judge after the jury has made the factual findings necessary to subject the defendant to the statutory maximum sentence on each offense’ and does not ‘implicate[] the defendant’s right to a jury trial on facts that are the functional equivalent of elements of an offense.’ [Citation.]” (Ibid.) Accordingly, defendant’s contention has no merit.
Because we have rejected all of defendant’s challenges to counts one and two, it is not necessary to consider his contention that count three must be unstayed and sentenced concurrent to any terms imposed in the probation revocation cases.
DISPOSITION
The judgment is affirmed. The trial court is directed to correct the abstract of judgment and to forward a certified copy to the Department of Corrections and Rehabilitation. The “Section No.” in count 2C shall be listed as “273.5(a).” The conviction and stay of sentence on count three shall be added as count “3C.” Defendant’s “Actual” days of custody credit shall be listed as 209, not 299.
We concur: BLEASE, Acting P.J., MORRISON, J.
“Counts one and two charges [sic] that the Defendant committed a violation of section 273.5(a) of the Penal Code. [¶] The offense of 243(e)(1), is a lesser offense of counts one and two.
“Count three charges that Defendant committed a violation of 245 of the Penal Code. [¶] The offense of section 240 is a lesser offense of that in count three.
“For each of these offenses you have been given two separate verdict forms, one stating that the Defendant is guilty, and the other stating the Defendant is not guilty of that offense. You may consider these different offenses in whatever order you wish. I am going to explain to you how to fill out the verdict forms using one order, but you may cho[o]se the order to use.
“As with all the charges in this case to return a verdict of guilty or not guilty of an offense, you must all agree on that decision. [¶] If you all agree that the People have not proved that the Defendant committed any of these offenses, then you must complete each verdict form stating that he is not guilty.
“If you all agree that the People have proved that the Defendant is guilty of 273.5(a), complete the verdict form stating that the Defendant is guilty of that offense. Do not complete the other verdict form for the lesser offense if you cannot find the Defendant guilty of both 273.5(a) and the lesser offense of 243(e)(1).
“If you all agree that the defendant is not guilty of 273.5(a), but you agree the People have proved that the Defendant is guilty of 243(e)(1), you must do two things. First, complete the verdict form stating that the Defendant is not guilty of the 273.5(a), then complete the verdict form stating that the Defendant is guilty of 243(e)(1). Do not complete the verdict form stating that the Defendant is guilty of 243(e)(1) unless you all agree that the Defendant is not guilty of 273.5(a). Do not complete the other verdict forms for this count or for the lesser offense.
“If you all agree that the People have proved that the Defendant is guilty of either 273.5(a) or 243(e)(1), but you do cannot [sic] all agree on which offense they have proved, do not complete any verdict forms. Instead the foreperson should send a note reporting that you cannot all agree on which offense has been proved.
“If you all agree that the Defendant is not guilty of 273.5(a) but you cannot all agree on whether or not the People have proved the Defendant is guilty of 243(e)(1), then you must do two things. First, complete the verdict form stating that the Defendant is not guilty of 273.5(a), second, the foreperson should send a note reporting that you cannot all agree that 243(e)(1) has been proved. Do not complete any other verdict forms for this count or the lesser offense.”
Defendant counters that directing a verdict for the prosecution (an issue we consider post) is a structural error mandating reversal. (Rose v. Clark (1986) 478 U.S. 570, 578 [92 L.Ed.2d 460, 470-471].) So, too, is imposing sentence upon a defendant who has been acquitted at trial. Where jury trial is “altogether denied,” or its favorable outcome altogether disregarded, the error is structural. (Ibid.) Because forfeiture of a structural error at trial would constitute prejudicial ineffective assistance of counsel, we consider defendant’s claim on its merits.