Opinion
NOT TO BE PUBLISHED
Santa Clara County Super.Ct.No. CC113039
Duffy, J.
A jury trial ended in a mistrial when the jury reached an impasse on lesser included offenses to a charge that defendant committed the first degree murder of Abelardo Chávez. Defendant’s case was tried anew, this time to the court on the basis of the transcripts of the prior trial and a new round of closing arguments. The court convicted defendant of the second degree murder (Pen. Code, § 187) of Chávez and the attempted murder (§§ 187, 664) of Herman Cuevas. It found true enhancements based on defendant’s inflicting great bodily injury by firing a gun. (§§ 12022.5, subd. (a), 12022.53, subds. (b)-(d).) It sentenced defendant to a determinate term of seven years in prison followed by an indeterminate term of imprisonment for 65 years to life.
All further statutory references are to the Penal Code unless otherwise specified.
On appeal, defendant contends that the trial court abused its discretion in declaring a mistrial in the prior proceeding and therefore his second trial occurred in violation of the constitutional guaranties against being placed twice in jeopardy for the same offense, that there was insufficient evidence to convict him of second degree murder and attempted murder and to impose a gun-use enhancement for the attempted murder, and that the enhancements should have been stricken.
We will affirm the judgment.
FACTS
Prior hostilities between Salvador Morales “Chava” Rentería, the defendant in this case, and his enemies Herman Cuevas and Abelardo Chávez, Cuevas’s cousin, led defendant to shoot Chávez to death and shoot and wound Cuevas. Defendant committed the crimes on May 22, 2001.
Four days before, on May 18, 2001, defendant, Chávez, and Cuevas were at a gathering at a third party’s house. Defendant got into an argument with Guadalupe “Lupillo” Ramos, displayed a gun, and threatened to shoot Chávez, Cuevas, and Ramos. Defendant then left in his black General Motors Corporation pickup truck. At the gathering Cuevas learned that it was defendant who had hit him with a bottle a year before. Cuevas and others, including Chávez, located defendant at a local bar, the Desperado Club, to confront him. Cuevas started a fist fight with defendant, who came out the loser.
On May 22, 2001, Cuevas and Chávez had just arrived at a bar called Maria’s Club. They had just seated themselves at adjoining bar stools when defendant drove his pickup truck into the parking lot and Chávez, recognizing it, alerted Cuevas. Cuevas told the bartender, Florencia “Jessica” Aramburo, not to let the truck’s occupants into the premises. Aramburo found defendant standing silently at the bar’s front door. She had seen him carrying a pistol at the bar two months before and, remembering the episode, told him not to cause trouble. Defendant was with Miguel “Baby” Vargas, who was related to one of the bar’s employees. Defendant told Aramburo not to interfere and that he had a dispute with others—he then pointed to Chávez—that they would settle as men. Chávez, accompanied by Cuevas, came to the front door. Chávez said he was unarmed, knew that defendant was armed, and did not want any problems. Defendant acknowledged that he was armed and (possibly at Chávez’s invitation) displayed his handgun. He appeared angry and nervous and his movements were jerky. Chávez and Cuevas, who was also unarmed, went back into the bar and had begun sitting down again when defendant drew his gun and, firing past Aramburo, who witnessed the shooting from four or five steps away, shot both of them. Defendant fired a total of five shots from a .45-caliber semiautomatic pistol. One round hit Chávez, another hit Cuevas, and two others lodged inside the establishment’s open front door. A shell casing found outside marked the firing of the fifth round.
The witnesses’ accounts of the rapid sequence of events in the minutes before the shootings vary in minor, unessential details. Our summary emphasizes the testimony that, in our view, contains the best recollections.
Chávez, who lay dead on the floor of Maria’s Club, had been fatally shot in the back. The bullet that killed Chávez had passed through his spine and aorta and a lung, and had fractured two bones.
Cuevas survived his wounds. In the opinion of San Jose Police Sergeant Bruce Marten Wiley, a qualified expert in wound ballistics, Cuevas suffered penetrating wounds to both thighs and the bullet that caused them may have glanced off of one thighbone. Cuevas was treated at a hospital and released. He retained scars from his wounds but immediately after being shot was able to run behind the bar, call 9-1-1, and kneel beside Chávez in an effort to ascertain the extent of his injuries and possibly render aid after the shooting. He was not permanently disabled.
Defendant testified on his own behalf and produced corroborating witnesses. Cuevas’s associate Ramos was a dangerous drug dealer who had pistol-whipped defendant at the Desperado Club four days before defendant killed Chávez and wounded Cuevas. Cuevas was present during the pistol-whipping incident and had beaten and threatened defendant. Chávez was also present. Both Cuevas and Ramos were armed at the time and someone had put a gun to defendant’s head. Defendant was bleeding copiously after the beating. After that incident, defendant started carrying a gun.
Ramos had a friend who had, in Ramos’s presence, threatened to shoot defendant in November of 2000. Defendant pushed the gun away from his knee and it discharged.
Defendant denied ever hitting Cuevas with a bottle.
At Maria’s Club on the day of the shootings, defendant met Aramburo at the front door, who warned him not to enter because his enemies were inside. Defendant, who had not gone to Maria’s Club looking for trouble, surmised that Cuevas, Chávez, and Ramos were in the bar. Chávez came to the door, repeated threats he had made earlier, and said that if defendant was carrying a gun he should produce it. Defendant was afraid and, when he saw Chávez pull up his shirt rapidly in the gloom of the bar’s interior, thought that he saw a gun in Chávez’s hand. Defendant did not see Cuevas inside the bar.
Defendant fired his gun. His first two shots struck the bar’s door. The next two struck Chávez and Cuevas. At the time, defendant feared for his life and intentionally shot Chávez in self-defense. Defendant ran from the bar, firing a fifth shot into the air to ward off any pursuers.
DISCUSSION
I. Double Jeopardy Claim
Defendant claims that his second trial occurred in violation of the constitutional guaranties against being placed twice in jeopardy for the same offense. (U.S. Const., 5th & 14th Amends.; Cal. Const., art. I, § 15.) The predicate of defendant’s claim is a contention that the trial court erred in discharging the jury without the constitutionally required legal necessity following the jury’s declared inability to decide anything except possibly that defendant was not guilty of first degree murder.
The trial court erred first in giving a confusing off-the-cuff instruction to the jury regarding reduction of its decisions to writing, second in not resolving the question whether the jury had acquitted defendant of first degree murder, and third in allowing the state, in violation of the federal and state constitutions, to place defendant twice in jeopardy on that charge by permitting him to be retried on it. But at the retrial, the court acquitted defendant of first degree murder. The question is the nature of the remedy to be afforded under these unusual circumstances.
A. Facts
Instructing the jury in the language of CALJIC No. 8.75, the trial court stated: “If you find the defendant not guilty of murder in the first degree as to Count 1 but cannot reach a unanimous agreement as to murder in the second degree, your foreperson should sign and date the not guilty of murder in the first degree form and should report your disagreement to the Court. And do not sign any other verdict forms.”
The trial court then added its own gloss on the instructions after reading the standard instructions to the jury:
The trial court suggested that the standard instructions and the verdict forms could bewilder the jury: “Now, on the instructions about lesser included offenses, the verdict forms are I know very confusing. However, by law I must read those to you.” It then proceeded to interpret CALJIC No. 8.75 for the jury as follows:
“In the event of another event that can occur [a partial acquittal and a partial deadlock], I read it [CALJIC No. 8.75] to you but it’s confusing how it goes. If you’re unable to reach a unanimous verdict, let’s take the first one, first degree murder, do not go to anything else, do not fill out anything else. And you’ve seen commonly on TV, a hung jury. Tell the deputy that and stand by for further instructions. You’ll be instructed about that. And that will be true, for instance, if you found him not guilty of first degree murder and say now you’re on second degree murder, that you are now a hung jury, you cannot decide unanimously where all 12 agree. Advise the deputy, don’t fill anything out, you’re unable to reach a unanimous verdict, stand by for further instructions.” (Italics added.)
On the fourth day of deliberations the jury returned to the courtroom for further instruction without having completed any verdict forms. Certain jurors informed the court that they all had agreed defendant was not guilty of first degree murder, but were otherwise deadlocked. Those jurors explained that in the course of what the court characterized as “extensive deliberations,” they were divided as follows: six to convict defendant of second degree murder, three to convict him of manslaughter (the jurors had not decided what type of manslaughter), two to acquit him of all charges on grounds of justifiable self-defense, and one who remained undecided between lawful self-defense and manslaughter. As for the first degree murder charge, jurors offered conflicting accounts about whether the jury had reached a decision, as we will explain in detail below.
The trial court asked the jury foreperson if further deliberations would likely result in a unanimous verdict on the charges on which the jury was deadlocked, and the foreperson responded: “In my opinion, no.” The court then asked the jurors if anyone thought “further deliberations would have a likelihood of a unanimous decision.” The jurors all remained silent. Evidently at that point the court and the jurors had in mind only the charges on which the jury was undisputedly deadlocked.
As for the first degree murder charge, although certain jurors told the court that the jury had found defendant not guilty, the trial court refused to enter a judgment of acquittal on that charge after learning that the jury had not acquitted defendant with sufficient formality:
“THE COURT: . . . Did the jury reach a unanimous verdict, I don’t believe so, on first degree murder or did not?
“JUROR NUMBER THREE: No.
“THE COURT: Okay. It’s a mistrial on all counts. Ladies and gentlemen, I want to state that this then ends your—.
“JUROR NUMBER THREE: Oh, I’m sorry, did you then decide it was not—
“THE COURT: Did 12 people unanimously agree first degree murder not guilty?
“JUROR NUMBER THREE: Right.
“THE COURT: You did?
“JUROR NUMBER THREE: We all agreed it was not first degree.
“THE COURT: We didn’t get any verdict form. It was never noted. The instructions were very clear. If not guilty, proceed to the other one.
“JUROR NUMBER THREE: Well, we never voted on first degree murder.
“THE COURT: Did you fill out any forms that said not guilty signed by the foreperson, anything like that?
“JUROR NUMBER THREE: No. We just came in when you asked us to come in. We didn’t even get to that.
“THE COURT: Let me ask you, it’s very important what you say here. On first degree murder, that is the most serious one.
“JUROR NUMBER THREE: Okay.
“THE COURT: [Were] there 12 people [who] voted at the same time unanimously not guilty?
“JUROR NUMBER THREE: No.
“THE COURT: It didn’t happen?
“JUROR NUMBER THREE: No.
“[¶] . . . [¶] THE COURT: Do you recall what the numbers were on that? Did some people say yes guilty on first—
“JUROR NUMBER THREE: I think there were two people that actually spoke up and said that, but we didn’t note [sic; apparently the transcript should read “vote”].
“THE COURT: It was all verbal, nothing written?
“JUROR NUMBER THREE: This is our last—
“JUROR NUMBER SEVEN: Nothing written.
“THE COURT: Nothing was ever written?
“JUROR NUMBER THREE: No.
“[¶] . . . [¶] JUROR NUMBER ONE: Your Honor?
“THE COURT: Stand by just a minute. (Name redacted), a form like this, one of the verdict forms, none of those forms were filled out not guilty—
“JUROR NUMBER THREE: No, we didn’t.
“THE COURT: —to first degree? . . . [¶] . . . [¶] . . . I want to make it very clear. On the issue of first degree murder, just that issue alone, is it your representation that the jury did not reach a verdict of not guilty of first degree murder, unanimous one, is that correct?
“JUROR NUMBER THREE: Can we go into deliberations and talk about it again?
“THE COURT: No, you cannot. I cannot send you back into the jury. You can’t vote now, it’s a mistrial. During the course of deliberations when I say vote, I mean did you take a vote, everybody wrote down their vote?
“JUROR NUMBER THREE: We did take a vote and there was one undecided, yes. We did not—we all agreed that it was not first degree murder based on this vote. We all voted in the three camps of—
“THE COURT: I’m going to go a little further. Is there anybody on the entire jury panel that feels that the jury voted unanimously, all 12, that the defendant was not guilty of first degree murder?
“JUROR NUMBER ELEVEN: I’m sorry, could you repeat your question?
“THE COURT: Is there anybody that—well, is there anybody that thinks that unanimously all 12 members of the jury voted not guilty to first degree murder?
“JUROR NUMBER ELEVEN: What’s the direct question, please? Is there anybody who—
“THE COURT: I can’t be more direct than that. Did the jury reach, I’m asking any member of the jury . . . in your opinion, did the jury vote, when I say vote, take like a secret ballot, write down, come to a unanimous decision the defendant was not guilty of first degree murder? Not just talking.
“JUROR NUMBER ELEVEN: We did not write it down.
“THE COURT: They did not write it down.
“JUROR NUMBER ELEVEN: But we had agreement that it was not—we had agreed that we were not going to pursue and go with first degree murder any further, that that was not on the table any more. We’d all verbally agreed that was not where we were at.
“THE COURT: . . . [Y]you would agree that it was never put on a ballot form, not written down, the jury [foreperson] signs it not guilty of first degree?
“JUROR NUMBER THREE: Okay, let me say, Judge, our last vote we very specifically said what charge are you voting for? And none of the 12 people voted for first degree murder. They voted for six second degree, three manslaughter, two self-defense, and one person either manslaughter or self-defense.
“THE COURT: . . . there was never a verdict form filled out, never filled out not guilty first degree murder, is that correct? I’ve asked you several times.
“JUROR NUMBER THREE: That is correct.
“MR. TEICH: Could the court poll the jury orally?
“THE COURT: I’m not going to take a vote now, sir. The thing is split, you can’t take a vote. I just want to know what already happened in the past. I cannot go back and do that. Anyway, the jury is very much hung six, three, three on this case. We’ll have extensive hearings on what charges are left for the defendant to stand trial for in front of a different jury, I’m sure.”
The trial court expressed concern that the jury had not reduced to writing its decision, if it had reached one, on first degree murder. “That would be clear you didn’t follow the instructions,” the court commented to the jurors. “The instructions are first you go to first degree murder, guilty or not guilty. If it’s not guilty then go lower. Not vote all at the same time. You can’t go to a lower one until you find him not guilty unanimously of a higher one, then go to the lower one. L.I.O., lesser included offense. But anyway, it’s your opinion—there will be a lot of hearings about this, I can assure you.”
The trial court implicitly found that legal necessity required declaring a mistrial, and it discharged the jury. It noted for the record: “The . . . Court is aware that the jury has been in extensive deliberations, has considered extensive read back of, in the Court’s opinion, the major witnesses to the case, and further, have voted and are unable to reach a unanimous verdict and the inquiry to the jury is no members of the jury find that further deliberations would likely lead to a unanimous verdict of the entire jury. The Court at this time agrees and concurs with that. Madam Clerk, I’m going to declare a mistrial in this matter. The case is mis tried.”
B. Standard of Review
The “determin[ation] whether there is a reasonable probability of jury agreement is left to the sound discretion of the trial court.” (People v. Cook (2006) 39 Cal.4th 566, 615; see § 1140.) In other words, “The determination of the jurors’ state of mind, and whether further deliberations will result in a unanimous verdict, lies within the sound discretion of the trial judge in view of all the circumstances.” (People v. Wash (1993) 6 Cal.4th 215, 248.) The foregoing standard presumes, of course, that the law governing the question that leads to a situation in which a court must exercise its discretion has been correctly observed. A court has no basis for the proper exercise of discretion if that exercise is based on a misunderstanding of the underlying legal principles. As recently stated by our Supreme Court, “an abuse of discretion arises if the trial court based its decision on impermissible factors [citation] or on an incorrect legal standard.” (People v. Knoller (2007) 41 Cal.4th 139, 156.)
C. Legal Principles
“When a jury indicates it is unable to reach a verdict, double jeopardy rules bar retrial unless the defendant consents to the discharge of the jury [citation], or the trial court determines further deliberations are not reasonably likely to result in a verdict (§ 1140), in which case legal necessity exists for a declaration of mistrial.” (People v. Marshall (1996) 13 Cal.4th 799, 825.) “Such a legal necessity exists if . . . it satisfactorily appears to the court that there is no reasonable probability that the jury can resolve its differences and render a verdict. Under these circumstances the court may properly discharge the jury and reset for trial.” (People v. Rojas (1975) 15 Cal.3d 540, 545-546 (per curiam) (Rojas).)
D. Discussion
1. Lesser included Offenses
With regard to the lesser included offenses to first degree murder, the trial court did not abuse its discretion in declaring a mistrial, implicitly on the ground of legal necessity. In Rojas, the jury had deliberated for five and a half hours when the foreperson informed the court of a nine-to-three deadlock. (Rojas, supra, 15 Cal.3d at p. 546.) In Rojas as here, the court asked the foreperson if further deliberations would be of value, and she responded negatively. The court then directed this same question to all the jurors, and, similar to the facts of this case, various jurors shook their heads negatively. (Ibid.) “Under these circumstances it cannot be said that the court abused its discretion in discharging the jury[,] as it properly determined that there was no reasonable probability that a verdict could be reached.” (Ibid.) “[A]accordingly, the jury was validly discharged for legal necessity.” (Id. at p. 547.)
Defendant relies on People v. Medina (1980) 107 Cal.App.3d 364. In Medina, however, the jury had had the case for just 50 minutes when it sent the court a note explaining that after two votes the jurors were evenly divided and needed further instructions. (Id. at pp. 368-369.) When the court asked if further deliberations would not produce a unanimous verdict, the foreperson responded, “ ‘with the information that we have, it would appear that way. There were some definite questions that kind of were unanswered that we would like to know before any—.’ ” (Id. at p. 369.) The court interrupted and declared that it could not give any further instructions. It then asked the other jurors if further deliberations could produce a verdict. Two indicated more deliberations could help whereas the rest said they would not. (Ibid.)
Medina found that the trial court had abused its discretion in declaring a mistrial because its ruling was premature. The court had rejected the jurors’ request for further instructions (People v. Medina, supra, 107 Cal.App.3d at p. 370) and, we note, had not acted on two jurors’ statements that further deliberations would be helpful. Medina is distinguishable because of the undue haste of the court there to dismiss the jury, whereas Rojas is not distinguishable, except in a manner that cannot benefit defendant. Whereas in Rojas the jurors had deliberated five and a half hours, here the jurors had deliberated over a period of four days, though the first day’s deliberations were brief. A fortiori, Rojas compels our conclusion that the court did not abuse its discretion in declaring a mistrial on the second degree murder and manslaughter charges. The jurors’ impasse created a legal necessity to declare a mistrial, so there was no violation of double-jeopardy principles in retrying defendant for second degree murder and manslaughter.
2. First Degree Murder
Defendant next argues that it violated state law and double jeopardy guaranties to retry him on the first degree murder charge. He maintains that the jury at his first trial had effectively acquitted him of the charge but, through a series of errors by the trial court—a faulty instruction, failing to let the jury reconvene to decide the charge, and retrying him on the charge—the state placed him twice in jeopardy for first degree murder.
We turn first to defendant’s instructional claim.
“ ‘When reviewing a supposedly ambiguous [i.e., potentially misleading] jury instruction, “ ‘we inquire “whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way” that violates the Constitution.’ ” ’ ” (People v. Ayala (2000) 24 Cal.4th 243, 289.) The same test applies under California law. (People v. Clair (1992) 2 Cal.4th 629, 663.)
As should be apparent from the procedural background, the trial court committed an initial error in giving a confusing off-the-cuff instruction that, as the jury evidently interpreted it, countermanded CALJIC No. 8.75. The court obviously meant to re instruct the jury not to fill out a verdict form except for the not-guilty form on first degree murder. But the jury understood the court to be saying not to fill out any form and instead return to the courtroom for new instructions. Because there is a reasonable likelihood that the court’s instruction misled the jury, giving it was error. The jury, if it concluded that defendant was not guilty of first degree murder (a matter that will forever remain unknown) disregarded CALJIC No. 8.75, instead following its understanding of the court’s oral instruction.
The trial court then missed an opportunity to cure its initial error. It could have undone the harm if it had set aside its mistrial order for the limited purpose of allowing the jury to reconvene and decide the first degree murder charge definitively. It appears that the court had the power to do so, for mistrials can be vacated even by a judgment of a reviewing court. (Blumenthal v. Superior Court (2006) 137 Cal.App.4th 672, 674 [ordering a court trial to be completed before the same superior court judge].) The People do not contest the point on appeal, and we will take it as conceded. The court could then have had the jury return for deliberations, as one juror proposed, for “the trial court retained control over the jury” (People v. Gray (2005) 37 Cal.4th 168, 199); the jurors’ “ ‘verdict was incomplete, and the court was authorized to reconvene the jury to complete its verdict.’ ” (Ibid.) In sum, to avoid constitutional problems, and because there was “some indication of deadlock only on [a] lesser included offense” (People v. Marshall, supra, 13 Cal.4th at p. 826 [speaking of an uncharged lesser included offense]), “the trial court . . . should [have] inquire[d] further and determine[d] whether any offenses can be eliminated.” (Ibid.) But the court instead left open the path for the state to put defendant again in jeopardy for first degree murder.
The state violated constitutional double jeopardy guaranties when it retried defendant for first degree murder. “The ‘twice put in jeopardy’ language of the Constitution . . . relates to a potential, i.e., the risk that an accused for a second time will be convicted of the ‘same offense’ for which he was initially tried.” (Price v. Georgia (1970) 398 U.S. 323, 326.) In other words, double jeopardy principles are “cast in terms of the risk or hazard of trial and conviction, not of the ultimate legal consequences of the verdict.” (Id. at p. 331.)
The question, then, is not whether a violation occurred—it did—but of the remedy to which defendant is entitled on this appeal. (See Morris v. Mathews (1986) 475 U.S. 237, 238.) At his second trial, the court acquitted defendant of first degree murder. The nature of the remedy to be afforded in such a situation presents an important issue.
Relying on People v. Ham (1970) 7 Cal.App.3d 768, 774, overruled on another ground in People v. Compton (1971) 6 Cal.3d 55, 60, footnote 3, the People urge us to reject defendant’s claim as moot because the court found him guilty only of second degree murder at his retrial.
Ham presented circumstances similar to this case. The superior court had determined at the defendant’s first trial that the jury had been unable to reach a verdict on attempted murder and discharged it. The defendant was retried and acquitted of attempted murder but convicted of two other offenses. Before retrial, the defendant moved to dismiss the attempted murder charge on the grounds of former jeopardy. The superior court denied the motion. The jury, in the second trial, found the defendant not guilty of attempted murder. On appeal, the defendant argued that the superior court had prematurely discharged the jury at his first trial, doing so without legal necessity, and therefore the state placed him twice in jeopardy when it retried him on the attempted murder charge. Ham rejected the claim on grounds of lack of prejudice, stating, “any consideration of the plea”—and more generally the issue—“of double jeopardy as to this count has been rendered moot by virtue of the fact that defendant was found not guilty as to this count. An appellate court will not review error unless it is prejudicial, i.e., it must be error that substantially affects the rights and obligations of the appellant and therefore results in a miscarriage of justice.” (People v. Ham, supra, 7 Cal.App.3d at p. 774.)
Twenty-six days after Ham was filed, the United States Supreme Court decided Price v. Georgia, supra, 398 U.S. 323, and took a different view regarding prejudice. Price was charged with murder and the jury convicted him only of voluntary manslaughter. That conviction was reversed on appeal, and the state retried him, again seeking a murder conviction in the face of Price’s plea of autrefois acquit (i.e., former jeopardy; in this state see §§ 1017, par. 4 [plea of once in jeopardy], 1023 [bars to later prosecution]; see also §§ 656, 793, 794). Once again, however, the jury rejected the murder charge and convicted Price only of voluntary manslaughter. (Price v. Georgia, supra, 398 U.S. at p. 324.)
Price held that because the defendant was effectively acquitted of murder at his first trial, retrying him on that charge violated the double jeopardy clause. (Price v. Georgia, supra, 398 U.S. at p. 324.) “Although [Price] was not convicted of the greater charge on retrial . . . the risk of conviction on the greater charge was the same in both cases, and the Double Jeopardy Clause of the Fifth Amendment is written in terms of potential or risk of trial and conviction, not punishment.” (Id. at p. 329.)
Price then rejected the state’s suggestion that retrying Price constituted harmless error because he was not convicted of murder on retrial. Along with the harm done by undergoing the unnecessary “ordeal” (Price v. Georgia, supra, 398 U.S. at p. 331) of an improper retrial, the court stated that “we cannot determine whether or not the murder charge against petitioner induced the jury to find him guilty of the less serious offense of voluntary manslaughter rather than to continue to debate his innocence.” (Ibid.) In other words, there was the risk that a compromise verdict occurred rather than the outright exoneration that might have been brought about had Price been recharged only with the lesser offense.
Thus, under Price, a double jeopardy violation under these circumstances “is not to be readily disposed of as ‘moot’ or harmless,” for “acquittal (even if implied) upon retrial of the greater offense does not by itself render the double jeopardy violation harmless.” (Brazzel v. Washington (9th Cir. 2007) 484 F.3d 1087, 1097.)
Nonetheless, the United States Supreme Court later limited Price. The court announced that its “holding in Price did not impose an automatic retrial rule whenever a defendant is tried for a jeopardy-barred crime and is convicted of a lesser included offense. Rather, the Court relied on the likelihood that the conviction for manslaughter had been influenced by the trial on the murder charge—that the charge of the greater offense for which the jury was unwilling to convict also made the jury less willing to consider the defendant’s innocence on the lesser charge.” (Morris v. Mathews, supra, 475 U.S. at p. 245.)
Morris discerned that Price had applied a blunt ax to the question of prejudice and announced a defter rule that we believe governs this case. “[W]e hold that when a jeopardy-barred conviction is reduced to a conviction for a lesser included offense which is not jeopardy barred, the burden shifts to the defendant to demonstrate a reasonable probability that he would not have been convicted of the non jeopardy-barred offense absent the presence of the jeopardy-barred offense. In this situation, we believe that a ‘reasonable probability’ is a probability sufficient to undermine confidence in the outcome.” (Morris v. Mathews, supra, 475 U.S. at pp. 246-247.)
To be sure, in Morris an appellate court had reduced the defendant’s conviction from a jeopardy-barred offense to one not barred by jeopardy. (Morris v. Mathews, supra, 475 U.S. at p. 243; see also id. at p. 244 [parties agreed on which offenses were barred and which were not].) Here, by contrast, the trial court found defendant not guilty of the jeopardy-barred offense and guilty of an offense that was not jeopardy-barred. The distinction, however, is immaterial with regard to the remedy defendant should be afforded. “After all, one of the purposes of the Double Jeopardy Clause is to prevent multiple prosecutions and to protect an individual from suffering the embarrassment, anxiety, and expense of another trial for the same offense [citation]. In cases like this, therefore, where it is clear that the jury necessarily found that the defendant’s conduct satisfies the elements of the lesser included offense, it would be incongruous always to order yet another trial as a means of curing a violation of the Double Jeopardy Clause.” (Id. at p. 247.) Something similar is true here: it would be incongruous to order a third trial to decide defendant’s guilt of second degree murder when he was already convicted of it in the second trial. To be sure, if this were a close case, defendant would undoubtedly be willing to undergo the embarrassment and anxiety of a third trial in hopes of being acquitted of murder, and the rationale expressed in Morris would not carry much weight. This, however, was not a close case, notwithstanding the uncertainty of the jurors in the first trial about whether to convict defendant of murder, manslaughter, or nothing at all.
Defendant has not met his burden of showing a reasonable probability (Morris v. Mathews, supra, 475 U.S. at p. 247) that trying him again for first degree murder tainted his second degree murder conviction. The case was retried not to a jury, but to the court, and on the transcripts of the prior trial, with only a new round of closing arguments added. A seasoned trial judge is ordinarily dispassionate, and defendant does not point us to anything in the record that might indicate the trial court here was otherwise. We therefore presume that the court would not have been swayed by the array of charges and tempted to reach a compromise verdict.
Moreover, even if the analysis in Price v. Georgia, supra, 398 U.S. 323, controls, unlike the courts in Price, supra, at page 331, and Brazzel v. Washington, supra, 484 F.3d at page 1097, we are able to determine that the trial court did not impose the murder conviction because it was presented with a first degree murder charge. As stated, a seasoned trial judge is ordinarily dispassionate, and, even under a Price-based analysis where defendant would not bear the burden of making a contrary showing, we are confident on this record that the trial court was not swayed by the array of charges and tempted to reach a compromise verdict.
Accordingly, any error was vitiated (whether we describe it in terms of prejudice or mootness is a technical question we need not address) and defendant received his remedy with regard to his criminal liability when the court acquitted him of first degree murder on retrial.
3. Validity of Waiver of Jury Trial Right
Defendant further maintains that he did not voluntarily and intelligently consent to a trial to the court on retrial.
A defective waiver of the constitutionally guaranteed (U.S. Const., 6th Amend.; Cal. Const., art. I, § 16) right to a jury trial is reversible without regard to prejudice. (People v. Collins (1986) 42 Cal.3d 378, 391, fn. 12 (lead opn. by Mosk, J.); accord, id. at p. 396 (conc. opn. of Lucas, J.); ibid. (conc. opn. of Grodin, J.); id. at p. 397 (conc. & dis. opn. of Broussard, J.).)
Defendant predicates his claim on an argument that, had the state not improperly placed him twice in jeopardy for first degree murder, he would not have consented to waive his jury trial rights. He asserts that he waived his rights in exchange for the prosecution’s agreement not to introduce the testimony of Miguel Vargas, his former co-defendant, whom he described in papers filed with the trial court as the witness the prosecution viewed as its best source of evidence regarding first degree murder.
Before the second trial, however, defense counsel explained that Vargas might be able to implicate defendant on both first and second degree murder. Counsel explained that Vargas might testify that defendant sent someone inside Maria’s Club to see if Cuevas was there. “[O]n July 24th of 2003 Mr. Vargas gave a second statement. That statement was much more damaging to Mr. Rentería.” “[I]t supplies the Prosecution with the argument that looks like it makes it a first degree or at the very least a second degree [murder] . . . that [Camilo] Esquível looked into the bar prior to the time Mr. Rentería got to the door of the bar to see if Pelón was there or Pelar, which means the bald-headed one, could possibly be referring to Mr. Cuevas.” To be sure, defendant vigorously maintained that Vargas was an unreliable witness who could be impeached by other testimony. But it was unclear how things might play out before a jury. The detailed motion filed with the court in support of waiving defendant’s jury trial rights made clear that defense counsel had considered the matter exhaustively and that counsel and defendant had decided that there was considerable benefit to a non jury trial. The motion urged the court to alert defendant, in taking his waiver, that the court was likely to find defendant guilty of “one of the possible charges” on the murder and attempted murder counts and that if the court found him guilty of murder he faced a long prison sentence. Defendant’s waiver of his jury trial rights was knowing, intelligent, and voluntary.
Turning to a subsidiary point: we cannot agree with defendant that his “decision to waive a jury was based upon his belief that a first degree murder charge was properly brought” and therefore his waiver was not knowing, intelligent, and voluntary. In pretrial proceedings before the retrial, defendant argued unsuccessfully that the court had improperly placed him again in jeopardy on the first degree murder charge. He agreed to the retrial procedure knowing that there was a substantial question whether the first degree murder charge was constitutional, an issue he could raise in this court and the California Supreme Court.
4. Conclusion
We agree with defendant that the trial court did not correctly address the first degree murder question and the state violated the double jeopardy guaranties of the state and federal Constitutions when it subjected him to new jeopardy on that charge. Nevertheless, we reject his claim that he is entitled to relief, which presumably would consist of a new trial before a jury, as a result.
Because we have addressed defendant’s double-jeopardy claims on the merits, we need not entertain his further claim that if we find his claims forfeited, he received ineffective assistance of counsel for counsel’s failure to preserve them for appeal.
II. Sufficiency of Evidence
Defendant argues that the evidence of his guilt of second degree murder and attempted murder is insufficient to withstand challenge under the due process clause of the Fifth and Fourteenth Amendments to the United States Constitution, and its equivalent in article I, section 15, of the California Constitution. He also claims there was insufficient evidence to support the finding that he inflicted great bodily injury on Cuevas.
The standard of review of defendant’s first two claims is well-settled. Under the federal Constitution’s due process clause, there is sufficient evidence to support defendant’s conviction if, viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307, 319.) The same standard applies under article I, section 15, of the California Constitution. (People v. Berryman (1993) 6 Cal.4th 1048, 1083, overruled on another ground in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1.) This test “does not require a court to ‘ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.’ [Citation.] Instead the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Jackson v. Virginia, supra, 443 U.S. at pp. 318-319.) “[T]he court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Johnson (1980) 26 Cal.3d 557, 578.) “The court does not, however, limit its review to the evidence favorable to the respondent. . . . ‘[O]our task . . . is twofold. First, we must resolve the issue in the light of the whole record, i.e., the entire picture of the defendant put before the jury—and may not limit our appraisal to isolated bits of evidence selected by the respondent. Second, we must judge whether the evidence of each of the essential elements . . . is substantial; it is not enough for the respondent simply to point to ‘some’ evidence supporting the finding, for “Not every surface conflict of evidence remains substantial in the light of other facts.” ’ ” (Id. at p. 577.)
With regard to defendant’s claim of insufficient evidence to find Cuevas suffered great bodily injury, the following standard of review applies for purposes of section 12022.7: “the determination of great bodily injury is essentially a question of fact, not of law. ‘ “Whether the harm resulting to the victim . . . constitutes great bodily injury is a question of fact for the jury. [Citation.] If there is sufficient evidence to sustain the jury’s finding of great bodily injury, we are bound to accept it, even though the circumstances might reasonably be reconciled with a contrary finding.” ’ ” (People v. Escobar (1992) 3 Cal.4th 740, 750.) “ ‘The term “great bodily injury” has been used in the law of California for over a century without further definition and the courts have consistently held that it is not a technical term that requires further elaboration.’ ” (Id. at p. 750, fn. 3.) But the definition is not formless and unbounded. “The statute expressly defines great bodily injury as constituting ‘a significant or substantial physical injury.’ ” (Id. at p. 746, fn omitted.) Such an injury need not require “that the victim suffer ‘permanent,’ ‘prolonged’ or ‘protracted’ disfigurement, impairment, or loss of bodily function.” (Id. at p. 750.) Imposing a great bodily harm enhancement does require, however, that the victim suffered “a substantial injury beyond that inherent in the offense.” (Id. at p. 746; see id. at p. 750.) Because the language of section 12022.53 imports the section 12022.7 standard (“proximately causes great bodily injury, as defined in Section 12022.7”), the foregoing standard of review applies to the section 12022.53 enhancements that the trial court found true.
A. Sufficiency of Evidence of Second Degree Murder
Contrary to defendant’s view, there was sufficient evidence for a rational trier of fact to find defendant guilty of second degree murder. Favoring the prosecution’s theory that defendant intended to kill and thus harbored express malice (§ 188), the trier of fact (the court in this case) received evidence that Cuevas and Chávez were defendant’s mortal enemies. The Cuevas-Chávez-Ramos trio had beaten him and threatened his life. Defendant had threatened to shoot Cuevas and Chávez four days before he did so. Defendant found Cuevas and Chávez in the bar, knew that Chávez was unarmed, saw his chance to eliminate the threat they posed, and acted to do so.
B Sufficiency of Evidence of Attempted Murder
The foregoing evidence also operates to defeat defendant’s claim that there was constitutionally insufficient evidence that he is guilty of the attempted murder of Cuevas. Attempted murder requires the intent to kill and the commission of a direct but ineffectual act toward accomplishing the killing. (People v. Superior Court (2007) 41 Cal.4th 1, 7.) Defendant fired five shots and one of them struck Cuevas. The round could have killed him, but by happenstance it did not.
C. Sufficiency of Evidence for Great Bodily Harm Findings
As noted, San Jose Police Sergeant Bruce Marten Wiley, a qualified expert in wound ballistics, testified that Cuevas suffered penetrating wounds to both thighs and the bullet that caused them may have glanced off of one thighbone. Cuevas was treated at a hospital and released. He retained scars from his wounds but immediately after being shot was able to run behind the bar, call 9-1-1, and kneel beside Chávez in an effort to ascertain the extent of his injuries and possibly render aid after the shooting. He was not permanently disabled.
The parties rely on the facts of cases that predate the standard announced in People v. Escobar, supra, 3 Cal.4th 740. The People rely on People v. Lopez (1986) 176 Cal.App.3d 460, and defendant relies on People v. Martinez (1985) 171 Cal.App.3d 727. Each party attempts to align the facts of the case on which the party relies with the evidence of the nature of the injuries Cuevas suffered. In this highly fact-dependent area of the law, however, we are loath to place much emphasis on cases that predate Escobar, which substantially revised the standard for injuries that constitute great bodily injury. Escobar requires a significant or substantial physical injury beyond that inherent in the offense. (3 Cal.4th at p. 746; see id. at p. 750.) The evidence of Cuevas’s wounds suffices to meet that standard, and we may not disturb the court’s findings on appeal. (Id. at p. 750.) Defendant emphasizes that Sergeant Wiley had no qualifications as a medical expert and that his expertise related only to ballistics, not the gravity of Chávez’s wounds. We agree that the evidence was less than ideal in this regard. Sergeant Wiley testified: “If you look at that photograph, the bullet traverses one thigh and then through the other thigh. It doesn’t strike any bone—it deflects a little bit off one bone, I believe, without looking at the medical report. I believe it was on the left thigh it caught a little bit of bone.” This testimony went unchallenged, and we cannot disregard it. It would have been better to have expert medical testimony on the nature and extent of Chávez’s injuries. Nevertheless, on the record before us, there was sufficient evidence for the trier of fact to conclude that Cuevas suffered great bodily injury. Attempted murder may occur without any injury at all, whereas Cuevas had both of his thighs pierced by a bullet. The court did not venture beyond its proper role as the trier of fact in finding that those wounds constituted significant and substantial physical injuries beyond those inherent in the offense.
III. Whether Enhancements Should Be Stayed or Stricken
Defendant claims that the trial court erred by staying enhancements rather than striking them. We agree in part and disagree in part.
The trial court entered a judgment finding appellant guilty of second degree murder (count 1) and attempted murder (count 2). With regard to count one, the court found that defendant discharged a firearm causing the death of Chávez within the meaning of section 12022.53, subdivisions (b), (c), and (d), and that he personally used a firearm within the meaning of section 12022.5, subdivision (a). With regard to count two, the court found that defendant discharged a firearm causing great bodily injury, as defined in section 12022.7, to Cuevas within the meaning of section 12022.53, subdivisions (b), (c), and (d), and that he used and discharged a firearm within the meaning of section 12022.53, subdivisions (b) and (c).
The trial court imposed two consecutive terms of 25 years to life for the enhancements pursuant to section 12022.53, subdivision (d). As for the lesser enhancements pursuant to sections 12022.5, subdivision (a) (count 1) and 12022.53, subdivisions (b) and (c) (counts 1 and 2), the court ordered that they be stayed pursuant to 12022.53, subdivision (f).
Whether the enhancements under sections 12022.5, subdivision (a), and 12022.53, subdivisions (b) and (c), should have been stayed or stricken is a question before the Supreme Court. (People v. Gonzalez, rev. granted Mar. 14, 2007, S149898.) Our view is that the trial court correctly stayed the section 12022.53 enhancements, but should have stricken the section 12022.5 enhancement.
Former section 12022.5, subdivision (a)(1), in effect at the time of defendant’s crimes and therefore applicable to his sentence (People v. Cartwright (1995) 39 Cal.App.4th 1123, 1144), provided: “Except as provided in subdivisions (b) and (c) [not relevant here], any person who personally uses a firearm in the commission or attempted commission of a felony shall, upon conviction of that felony or attempted felony, in addition and consecutive to the punishment prescribed for the felony or attempted felony of which he or she has been convicted, be punished by an additional term of imprisonment in the state prison for 3, 4, or 10 years, unless use of a firearm is an element of the offense of which he or she was convicted.” (Stats. 1999, ch. 129, § 5.)
There is an exception to this rule. If a later amelioration of the punishment goes into effect while a defendant’s case is on appeal, the defendant is entitled to the lessened punishment. (People v. Roberts (1994) 24 Cal.App.4th 1462, 1466 [stating general rule]; People v. Vieira (2005) 35 Cal.4th 264, 305 [“a defendant generally is entitled to benefit from amendments that become effective while his case is on appeal”].) This exception does not apply to any of defendant’s enhancements.
Former section 12022.53, subdivision (b), applicable to defendant at the time of the offenses, specified: “Notwithstanding any other provision of law, any person who is convicted of a felony specified in subdivision (a) [including murder and attempted murder], and who in the commission of that felony personally used a firearm, shall be punished by a term of imprisonment of 10 years in the state prison, which shall be imposed in addition and consecutive to the punishment prescribed for that felony. The firearm need not be operable or loaded for this enhancement to apply.” (Stats. 2000, ch. 287, § 23.)
Former section 12022.53, subdivision (c), applicable to defendant at the time of the offenses, specified: “Notwithstanding any other provision of law, any person who is convicted of a felony specified in subdivision (a), and who in the commission of that felony intentionally and personally discharged a firearm, shall be punished by a term of imprisonment of 20 years in the state prison, which shall be imposed in addition and consecutive to the punishment prescribed for that felony.” (Stats. 2000, ch. 287, § 23.)
Former section 12022.53, subdivision (d), applicable to defendant at the time of the offenses, specified: “Notwithstanding any other provision of law, any person who is convicted of a felony specified in subdivision (a), Section 246, or subdivision (c) or (d) of Section 12034, and who in the commission of that felony intentionally and personally discharged a firearm and proximately caused great bodily injury, as defined in Section 12022.7, or death, to any person other than an accomplice, shall be punished by a term of imprisonment of 25 years to life in the state prison, which shall be imposed in addition and consecutive to the punishment prescribed for that felony.” (Stats. 2000, ch. 287, § 23.)
Section 12022.53, subdivision (f), provides, as it did at the time of defendant’s crimes (Stats. 2000, ch. 287, § 23): “Only one additional term of imprisonment under this section shall be imposed per person for each crime. If more than one enhancement per person is found true under this section, the court shall impose upon that person the enhancement that provides the longest term of imprisonment. An enhancement involving a firearm specified in Section 12021.5, 12022, 12022.3, 12022.4, 12022.5, or 12022.55 shall not be imposed on a person in addition to an enhancement imposed pursuant to this section. An enhancement for great bodily injury as defined in Section 12022.7, 12022.8, or 12022.9 shall not be imposed on a person in addition to an enhancement imposed pursuant to subdivision (d).”
Thus, the trial court properly imposed the longest term of imprisonment under section 12022.53, subdivision (d).
Since section 12022.53, subdivision (f) provides that only one term of imprisonment shall be imposed, the trial court must next decide, depending on the applicable law, either to strike or stay the remaining enhancements. Section 12022.53, subdivision (h), provides, as it did at the time of defendant’s crimes (Stats. 2000, ch. 287, § 23): “Notwithstanding Section 1385 or any other provision of law, the court shall not strike an allegation under this section or a finding bringing a person within the provisions of this section.” The trial court was correct to stay the section 12022.53 lesser enhancements.
The People invoke People v. Bracamonte (2003) 106 Cal.App.4th 704. Bracamonte addressed the issue of how to harmonize the language of subdivisions (f) and (h) of section 12022.53. (Bracamonte, supra, at p. 713.) While noting that “[t]he better rule is the trial court must either impose an enhancement or strike the underlying finding” (id. at p. 711) and that the broad and general language of section 12022.53, subdivision (f), accordingly would favor such a result, the court acknowledged that the express language of section 12022.53, subdivision (h) prohibited striking the finding. (Bracamonte, supra, at p. 713.) Thus, the court held that when the jury has found true the allegations under section 12022.53, subdivisions (b), (c), and (d), for the same count, the trial court should impose all three enhancements, but should stay executing the enhancements for section 12022.53, subdivisions (b) and (c). (Bracamonte, supra, at pp. 713-714.) We find this analysis persuasive.
In analyzing the enhancement under section 12022.5, Bracamonte concluded that the proper procedure was to strike the finding. (People v. Bracamonte, supra, 106 Cal.App.4th at pp. 712-713.) Under today’s version of section 12022.5, this holding would be inconsistent with its analysis of the section 12022.53 enhancements. Section 12022.5, subdivision (c), consists of language virtually identical to and materially indistinguishable from that of section 12022.53, subdivision (h),and thus also prohibits striking the enhancement finding. In 2000, however, when Bracamonte and his codefendant Medina committed the crimes, section 12022.5 contained no such prohibition. Accordingly, Bracamonte was correct. Nor did section 12022.5, subdivision (c), exist when this defendant committed his crimes in May of 2001. A number of cases provide that unless a statute provides otherwise, an enhancement must be imposed or stricken and may not be stayed. (People v. Harvey (1991) 233 Cal.App.3d 1206, 1231; People v. Cattaneo (1990) 217 Cal.App.3d 1577, 1588-1589.) On the other hand, it has also been held that when a trial court has the power to strike an enhancement, it perforce has the power to permanently stay its execution, because the latter is a “lesser act.” (People v. Vergara (1991) 230 Cal.App.3d 1564, 1568.) We are reluctant to follow the conclusion of Vergara. “Striking an enhancement is tantamount to dismissing it. [Citation.] By contrast, ‘ “A stay is a temporary suspension of a procedure in a case until the happening of a defined contingency.” ’ ” (People v. Aubrey (1998) 65 Cal.App.4th 279, 284.) Although nothing can be certain pending the final word of the California Supreme Court in People v. Gonzalez, supra, S149898, the weight of authority militates in favor of striking, not staying, the section 12022.5 enhancement, and the People conceded the point at oral argument. It is the “better rule” (People v. Bracamonte, supra, 106 Cal.App.4th at p. 711) in cases in which the crimes predate the current version of section 12022.5, subdivision. (c). (See also Bracamonte, supra, at p. 712, fn. 5 [discussing the legislative history of the current version of section 12022.5, subd. (c)].) We conclude that the trial court should have stricken, not stayed, the section 12022.5, subdivision (a), enhancement given the statutory scheme then in effect.
DISPOSITION
The trial court is directed to modify the judgment to reflect that the enhancement under Penal Code section 12022.5, subdivision (a), found true with regard to the murder of Abelardo Chávez, is stricken, not stayed. As so modified, the judgment is affirmed.
WE CONCUR: Bamattre-Manoukian, Acting P. J., McAdams, J.