PEOPLE v. CARBAJALRespondent's Petition for ReviewCal.August 15, 2011619560 In the Supreme Court uf the State of Caltfornia THE PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent, V. VALENTIN CARBAJAL, Defendant and Appellant. Case No. S Second Appellate District, DivisionFive, Case No. B222615 Los Angeles County Superior Court, Case No. BA3 16526JPREVE ¢ The Honorable Larry P. Fidler, Judge ee PETITION FOR REVIEW eWit:GOURT FILED AUG 16 2011 Fredarick &. Ohinch Clerk Reputy KAMALA D. HARRIS Attorney General of California DANER. GILLETTE Chief Assistant Attorney General PAMELA C. HAMANAKA Senior Assistant Attorney General LAWRENCEM.DANIELS Supervising Deputy Attorney General STEVEN D. MATTHEWS Supervising Deputy Attorney General State Bar No. 137375 300 South Spring Street, Suite 1702 Los Angeles, CA 90013 Telephone: (213) 897-2367 Fax: (213) 897-6496 Email: DocketingLAAWT@doj.ca.gov Attorneysfor Respondent TABLE OF CONTENTS Page Issue Presented ........cceccecseeesscsseecsecsesesssesssseesscenesseeessscsssseeseerssseneeseseteswel Statement of the Case... cecesceseeseeseceneeessseseecsscesetsaeesseseeneeenaesaeseneeesetaeens 1 Reasons for Granting the Petition 0.0... .ccccccsessesseceeeteeeesseeceeseseeseseenseees 5 The court should grant review to determine whether retrial as to a special allegation is barred by double jeopardy wherethe first jury never reached or resolved the allegation...cecescecsssecsssesseeetecseeeseseeeeseeseeaeeeeessees 5 A. Retrial was not barred by double jeopardy becausethe first jury never reached or resolved the special allegation...........c.cecccsseecerecesseeesseeeseesneees 5 B. Retrial was not barred by double jeopardy becausethefirst jury could not resolve the special allegation as to the deadlocked counts........... 9 Conclusion ..........000vesasssssessscscsusasssscesensasscsssvsssscsssssssessesssacsticaescseecacseees 13 TABLE OF AUTHORITIES Page CASES Arizona v. Washington (1978) 434 U.S. 497.......secateeeesaeeeecsaevseteneceaeeeatevatersneesnecrevetenseeaes 3,4 Illinois v. Somerville | (1973) 410 U.S. 458 oecccsscscessecseessessceeecseessessesesessresseeeseesssaeeneestens 4 Logan v. United States (1892) 144 U.S. 263 oceeccccccsssesecneessesscesecssecsecsscnseeeeesseceesesssaeeseentens 4 People v. Anderson (2009) 47 Cal.4th 92... ceccsecssessessccsessessessssceessesseeessesseessens 4,10, 11 People v. Bright (1996) 12 Cal.4th 652.0.cescscecesesseenteesssesseesseserseesesesseesseeneenes 10 People v. Fields | (1996) 13 Cal.4th 289occccesessesssssesssessrensenees veceaeeeeseeessessneeenes 12 People v. Seel (2004) 34 Cal4th 535... eecssessesesnessenneseeersncsnsensensneensseeaseerensentsnnsans 10 Porterv. Superior Court (2009) 47 Cal4th 125... ccceccesecssetessresecsscsessseessesseeenaeseeeseens 12,13 Richardson v. United States (1984) 468 U.S. 317 vceceeseneeseseseecssseessssceseesesesstsssessensieeeeenes United States v. Perez (1824) 9 Wheat. 579 oo. eeecsesssesssessecseccseesssesseessseessesessscesusssesseeseeegs 4 Wade v. Hunter (1949) 336 U.S. 684 occ ecsessecseeseesscneenseesneeseeseeseseessees eeeeserseeneee il STATUTES Pen. Code, . § 67.61 ccccccsccscsesescscscsssesessssscsestessessstsesseseeesestesssetseseseeeseeseeees PASSIM § 667.61, SUDA. (D) oo... cesecsscssccsssseccssesseeeeseseescesescssessevseeesnseneaners 10 § 1023 ee eelecccscecsessscssssecscsseeccsscecssseeecsesssecseeesesuseusnseveesransessueeses veneees 12 S LLG] eccccesescsssseceessecesseccsssessecsesessesscssuseusseecsessnsessensesees 2,5,8 COURT RULES Cal. Rules of Court, TUle 8.500...eee ecesscsssecesseecsnecssesusseecnsessssssessssenescseusensssecsecesareessaetenaess 1 Tule 8.500(D)(1).......ceceecccscessesscessesssscsesssssstecsesessessessesecsssseseususveaees 4,9 TUle 8.504 oo. eeccceeseeeeeeees veseesecesseeseecssuesensseeeessetesseeseecerseeessnenasssevens 1 iit TO THE HONORABLETANI CANTIL-SAKAUYE, CHIEF JUSTICE, AND TO THE HONORABLEASSOCIATE JUSTICES OF THE CALIFORNIA SUPREME COURT: The People of the State of California, plaintiff and respondentin the above-entitled action, hereby petition this Honorable Court to grant review in this case, pursuant to California Rules of Court, rules 8.500 and 8.504, following a published decision by the California Court of Appeal, Second Appellate District, Division Five, case number B222615, filed on July 5, 2011, reversing the judgment of conviction. (Exh. A.) | ISSUE PRESENTED Whether double jeopardybarsretrial as to a multiple-victim enhancementthat the first jury never reached because no verdict was received, and was never resolved because the jury deadlocked on the underlying offenses? STATEMENT OF THE CASE This is a case about whethera retrial is barred by double jeopardy as to an enhancementthatthe first jury never reached and moreover, could not have resolved. The jury at the defendant’s first trial was unable to reach a decision regarding the counts pertaining to one victim (Zelene C.), but found the defendantguilty of the three counts pertaining to another victim (Jessica R.), and found true the multiple victim special circumstance pursuant to Penal Code section 667.61. Although theinstructions specifically asked the jury to decide the Penal Code section 667.61 allegation only if the defendant were found guilty of two or more qualifying sex offenses, the instructions given did not specify that the special | allegation wasonly to beconsidered bythe jury in the event they returned guilty verdicts pertaining to qualifying offensesfor two or morevictims. The trial court noted the inconsistency betweenthe guilt determinations and the specialallegation, and specifically inquired of the foreperson atthefirst trial whetherthe special allegation verdict was correct. The foreperson noted the original “true finding” was incorrect. Thetrial court then asked the jury to reconvene andascertain its true verdict regarding the special allegation. | At this point, the majority opinion adopts the position that the jury actually returned with another finding, and that Penal Code section 1161 “prohibited the court from sending the jury back for reconsideration in either case.” (Opn.at p.9.) However, the record instead clearly showsthat before the jury was asked whetherit reached a new verdict, and without any juror volunteering that he or she had returned and reached a new verdict, the trial court called the jurors back and explained that the special allegation was inapplicable unless the jury returned with guilt findings as to two different victimsor if the jury unanimously concludedthere wasonly a single victim, and again directedthe jury to reconveneandclarify its decision. (3RT 2110-2113.) Shortly thereafter, the first jury returned and submitted a blank special allegation verdict. The jury onretrial found the defendant guilty of the deadlocked counts and found true the Penal Code section 667.61 allegation. Asthe dissenting opinion found, the majority opinion of the Court of Appeal erred on the question of whetherretrial was barred by the double jeopardy clause both becausethe jury never returned with a “not true” finding on the special allegation, and because evenif (contrary to the record) the jury had returned with a finding, it nevertheless did not reach or resolve the issue of the special allegations on the counts on which they were deadlocked. The Court of Appeal’s published opinion now declares as a matter of law that double jeopardy barsretrial as to a special allegation even if a jury neverreachedorresolved, and could notlegally reach andresolve, the question. “Tt has been established for 160 years, since the opinion of Justice Story in United States v. Perez, 9 Wheat. 579, 6 L.Ed. 165 (1824),that a failure of the jury to agree on a verdict was an instance of ‘manifest necessity’ which permitted trial judge to terminate the first trial and retry the defendant, because ‘the ends of public justice would otherwise be defeated.’ Jd., at 580, 6 L.Ed. 165.” (Richardson v. United States (1984) 468 U.S. 317, 323-324 [104 S.Ct. 3081, 82 L.Ed.2d 242].) The United States Supreme Court has “constantly adheredto therule that a retrial following a ‘hung jury’ does not violate the Double Jeopardy Clause”(id. at p. 324), and explained the reasons for this conclusion in Arizonav. Washington (1978) 434 U.S. 497 [98 S.Ct. 824, 54 L.Ed.2d 717]: {W]ithout exception, the courts have heldthatthe trial judge maydischarge a genuinely deadlocked jury and require the defendant to submit to a secondtrial. This rule accords recognition to society's interest in giving the prosecution one complete opportunity to convict those who haveviolatedits laws. (id. at p. 509.) Similarly, in Wade v. Hunter (1949) 336 U.S.684 [69 S.Ct. 834, 836, 93 L.Ed. 974], the Court held: The double-jeopardy provision of the Fifth Amendment, however, does not meanthat every time a defendantis put to trial before a competenttribunal heis entitled to go free if the trial fails to end in a final judgment. Such a rule would create an insuperable obstacle to the administration ofjustice in many cases in which there is no semblance ofthe type of oppressive practices at which the double-jeopardy prohibition is aimed. There may be unforeseeable circumstancesthat arise during a trial making its completion impossible, such as the failure of a jury to agree ona verdict. In such event the purpose of law to protect society from those guilty of crimes frequently would be frustrated by denying courts powerto put the defendanttotrial again. ... What has been said is enough to show that a defendant's valued right to have his trial completed by a particular tribunal must in someinstances be subordinated to the public's interest in fair trials designedto end in just judgments. (Id. at pp. 688-689; see also IIlinois v. Somerville (1973) 410 US. 458, 468-471 [93 S.Ct. 1066, 35 L.Ed.2d 425]; Logan v. United States (1892) 144 U.S. 263, 297-298 [12 S.Ct. 617, 36 L.Ed. 429]; United States v. Perez (1824) 9 Wheat. 579, 580 [6 L.Ed. 165].) Likewise, this Court has held that “whena trial produces neither an acquittal nor a convictionretrial may be permittedifthetrial ended ‘without finally resolving the merits of the charges against the accused.’” (People v. Anderson (2009) 47 Cal.4th 92, 104 (“Anderson”), quoting Arizona v. Washington, supra, 434 U.S. at p. 503.) There is no authority whatsoever supporting the application of double jeopardy principles in the mannerarticulated by the majority in a published opinion. Indeed, as noted in the dissenting opinion,this the first case that, contrary to this Court’s and the United States Supreme Court’s well-settled principles, has applied the doctrine of double jeopardy to precludea retrial of a special allegation despite the fact that the allegation was not reached and was neverdecided by a fact-finder in a prior proceeding. Respondent submits the record mustinstead affirmatively demonstrate that the jury actually reached and decided the special allegation in order to trigger a double jeopardybarto retrial of the same allegation. To conclude otherwise, as the majority has done in this published opinion, now provides fodder for the inconsistent application of double jeopardy principles. As a result, review is necessary to settle important questions of law and secure uniformity of decision. (Cal. Rules of Court, rule 8.500(b)(1).) REASONS FOR GRANTING THE PETITION THE COURT SHOULD GRANT REVIEW TO DETERMINE WHETHER RETRIALAS TO A SPECIAL ALLEGATIONIS BARRED BY DOUBLE JEOPARDY WHERE THEFIRST JURY NEVER REACHED OR RESOLVED THE ALLEGATION . The Court of Appeal’s decision that retrial as to the special allegation was barred by the Double Jeopardy Clause, and reversing and remanding for resentencing, was based upon that court’s determination that “following a brief period of reconsideration,the[first] jury again returned a finding” (Opn.at 9), and, as such,the trial court below violated Penal Codesection 1161 becauseit thereafter “did not give effect to the jury’s finding” (Opn. at 10). Review is necessary because the record doesnot establish that the first _ jury returned with a “not true”finding as to the special allegation, and even assuming, contrary to the record,that it did return with such a finding, the jury did not reach orresolve the special allegation as to the counts on which the jury remained deadlocked. A. Retrial Was Not Barred by Double Jeopardy Because the First Jury Never Reached Or Resolvedthe Special Allegation — Respondentfirst submits that, contrary to the Court of Appeal’s determination, the record below doesnotestablish that thefirst jury, after being sent back to reconsider, ever in fact returned with anyfinding,let alone a “not true” finding. Indeed, the record establishes precisely to the contrary. Herethetrial court, before recalling the jury, recognized that based upon its incomplete directives, the jury was likely to return with what the court guessed would be a “nottrue”finding, as indicated in the following colloquy: THE COURT:I think I can guess what they have done. They have gonein; they signedit “not true” finding. The problem is that’s not what they should have done. MS.WISE [the DDA]: They shouldhave just not made -- THE COURT:It will be double jeopardy. Otherwise, the truth is if they are hung, the court should not take any verdict on that count becauseit’s inappropriate. MS. WISE: That’s correct. THE COURT:So -- MR. HERRIFORD [defense atty]: Do you wantto look and see whatthey did first? THE COURT:I think whatit is, since they are hung, we probably should not enter a finding on that at this point. (THE FOLLOWING PROCEEDINGS WERE HELD IN OPEN COURT IN THE PRESENCE OF THE JURY:) THE COURT: Okay. Ladies and gentlemen, I have given this some thought. Since you are unableto arrive at a decision on some ofthe 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 whatthe verdicts are. You signed them, and I have read them, and counselis awareofit. It appears to me the appropriate thing to do is -- as with the other charges, is not to enter a finding. Since you are unableto arrive at a verdict, you can’t find that to be true unless yourbeliefis unanimously -- if unanimously you believe notjust as to the counts that you return but the entire case that there is not more than one victim. I mean, technically, you could cometo that finding withoutarriving at the other counts. I think legally they could, but you would have to makea finding unanimously that there is only one victim. If you are not able to dothat -- if you are not able to do that, then what you should do is simply notfill in the form. That’s correct, if you believe unanimously that that finding is nottrue, it is 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. You understand what I am saying? That enhancement-- I am not going to explain anymore. Let’s assume for a moment you hadarrivedat verdicts, and the verdicts named more than onevictim, that’s all I could say, you then would have to make a determination whetherthis allegation wastrue or not true. The problem is by signing that verdict form, youstill 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 wantto tell you what to do. I am sort of giving you whatI believe the law require -- you have three options: you could findit to be true, whichat 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 -- what your options were. Do you understand now what your options are? I see a lot ofjurors nodding their heads you don’t. There is a lot of counts that are still outstanding. JUROR9: Correct. THE COURT:I think legally there may be some problem, but I don’t wantto 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 decidedall 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 onthat finding. I think you have to go in anddiscussthat. A lot ofjurors are noddingtheir heads, and I think I know -- Juror Number8, you seem somewhat confused. That finding applies when the entire case has been decided, if you can, but what I am sayingis there are 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. Let us know. I am goingto send the alternates back out in the hallway. You retire and continue your deliberations. I am not comfortable saying anything more aboutit. I think I have explainedit to the satisfaction where enough jurors could perhaps guide the discussion. Then we will see where you stand. (3RT 21 10-21 13.) The jury thereafter returned with a blank verdict form as to the Penal Code section 667.61 allegations. The record quoted in full above demonstrates thatthe first jury was not asked whetherit reached a verdict or finding, that no juror volunteered that he or she had reached a new verdictor finding, and that no new verdict or finding was evertaken or recorded. Indeed, the record instead ‘establishes -- contrary to the majority opinion that “the jury returned a finding” (Opn.at 9) -- that, as recognized in the dissenting opinion, “no verdict in the first trial was ever taken or recorded onthe allegation” and “the former jury never reached, muchless resolved the issues[.]” (Dissenting Opn.at 2; see alsoid. at p. 1 [“the majority appears to assume the former jury foundthe allegation to be not true’’]; andat p. 4 [“the record is devoid of any indication that the formerjury reacheda verdict resolving the issue’’].) | This was a significant and material error, warranting a review ofthis published opinion,as it is from pure conjecture that the first jury returned with a finding that the majority opinion then reachedthe similarly erroneouslegal conclusionthatthe trial court violated Penal Code section 1161 becauseit thereafter “did not give effect to the jury’s finding.” (Opn. at 10.)' In other words,it is only from this erroneous finding that the Court ' In an unsuccessfulpetition for rehearing, respondent alternatively suggested that if the record was unclear to the Court of Appealas to (continued...) of Appeal, in a published case and contrary to this Court’s settled principles, has applied the doctrine of double jeopardy to precluderetrial of a special allegation despite the fact that the allegation was not reached and decided by a fact-finder in a prior proceeding. Respondent submits the record must affirmatively demonstrate that the first jury actually reached and decidedthe allegation in order to trigger a double jeopardybarto retrial of the sameallegation.” As a result, review is necessaryto settle important questions of law and secure uniformity of decision. (Cal. Rules of Court, rule 8.500(b)(1).) B. Retrial Was Not Barred by Double Jeopardy Because the First Jury Could Not Resolve the Special Allegation as to the Deadlocked Counts Asstated above, the Court of Appeal erred whenit held thatretrial was barred under double jeopardy principles because the former jury never Infact returned with a finding on the Penal Code section 667.61 penalty allegation. Nevertheless, irrespective of whetherthefirst jury returned with a finding, the Court of Appeal further erred in determiningthatretrial was barred by the double jeopardy clause becausethe first jury did not (and could not) resolve the question of the special allegation as it applied to the counts on which they were deadlocked. In other words,retrial was not barred by double jeopardy principles because the record is devoid of any indication that the formerjuryresolved the issue of the Penal Code section (...continued) - whetherorif the first jury returned with verdict or finding as to the special allegation, then the appropriate remedy was a limited remandfor the purposes of holding a hearing to determine whetherthe jury actually returned with a signed “not true”finding. * In fact, the majority opinion couldbe relied on in anycasefor the proposition that a Court of Appeal may find any factin the record merely from the trial court’s prediction ofthatfact. 667.61 allegation as it applied to the counts on which the jury was hung and which formed the basis for the second trial. Penal Codesection 667.61, subdivision (b), provides, in pertinent part, that “any person whois convicted of an offense specified in subdivision (c) under one or more circumstancesspecified in subdivision (ce)... shall be punished by imprisonmentin the state prison for 15 years to life.” This statute is an alternative sentencing schemeapplicable to only certain felonies. (People v. Anderson, supra, 47 Cal.4th at p. 102.) “[T]he |jury mustfirst decide whetherall the elements of the underlying substantive crime have been proven.If not, it returns an acquittal and the case is over. If the jury convicts on the substantive crime, it then independently determines whetherthe factual allegations that would bring the defendant under the OneStrike sentencing scheme[set forth in section 667.61] have also been proven.” (/bid.) | “The double jeopardy clauses of the Fifth Amendmentto the United States Constitution, applicable to the states through the Fourteenth Amendment, andarticle I, section 15, of the California Constitution, guarantee that a person shall not be placed twice ‘in jeopardy’ for the ‘same offense.’ The double jeopardy bar protects against a second prosecution for the same offense following an acquittal or conviction, and also protects against multiple punishmentfor the same offense. [Citations.]” (People v. Bright (1996) 12 Cal.4th 652, 660-661, overruled on other grounds in People v. Seel (2004) 34 Cal.4th 535, 550, fn. 6.) These principles of double jeopardy have been extended to penalty allegations. (People v. Anderson, supra, 47 Cal.4th at pp. 105-108.) Here, as stated above, the defendant’sfirst trial concerned twosets of sex offenses -- counts 1 through 9 and 13, committed against victim Z.C., and counts 10 through 12 committed against victim J.R. -- as well as a Penal Code section 667.61 penalty allegation. The jury was declared 10 deadlocked on the chargesrelated to victim Z.C., but found the defendant guilty of the charges corresponding to victim J.R. Thus, because the defendant was not convicted of the Z.C. offenses (counts 10 through 12) in the formertrial, the predicate necessary to trigger the jury’s consideration of the Penal Code section 667.61 allegationfor those offenses was absent from thattrial. In sum,if the first jury had convicted the defendantofthe Z.C. offenses in counts 10 through 12, and had announced they were deadlocked on the Penal Code section 667.61 allegation, the prosecutor would have been able to retry the allegation. However, as noted in the dissenting opinion,“the reality of the instant case evinces even stronger support for allowingretrial of the allegation -- i.e., the jury deadlocked onthe attached substantive crimes(i.e., the [Z.C.] offenses) and, therefore, never reached the penalty allegation.” (Dissenting Opn.at 3.) Furthermore, if the doctrine of double jeopardy does not preclude retrial of a sentencing allegation where a former jury deadlocked on that sentencing allegation, then it should not precluderetrial ofthat allegationif, because the former jury deadlocked on the attendant substantive offense,it never even considered the allegation. To conclude otherwise,asthe majority has donein this published opinion, “now provides fodderfor the inconsistent application of double jeopardy principles.” (Dissenting Opn. at 3.) Asthe dissenting opinion correctly notes, the majority’s holding, when read in tandem with this Court’s decision in Anderson, now creates an anomaly in the law. This Court held in Andersonthat “if a defendantis convicted of the substantive crime but the jury deadlocks on the attached [Penal Code section 667.61] sentencingallegations, neither federal norstate double jeopardy principles bara retrial on those sentencing allegations.” (Anderson, supra, 47 Cal.4th at p. 105.) The majority opinion turns 11 Anderson onits face by deeming doublejeopardy to apply where the jury deadlocks on the crime but (supposedly) has madea finding on a Penal Codesection 667.61 allegation. | Nothing in People v. Fields (1996) 13 Cal.4th 289 (“Fields”) permits this result. In Fields, this Court decided that Penal Code section 1023 prohibited a retrial of a greater offense after a defendant's conviction of a lesser included offense, even when there has been no express or implied acquittal of the greater offense. (/d. at p. 307.) The decision in Fields “was grounded onthe ‘acquittal first’ rule, which requires that a jury be instructed it must acquit the defendantof a greater offense before it returns a verdict on any lesser included offense,” and the Court “reasoned that a jury's verdict on a lesser included offense alone is ‘mistaken in law,’ and section 1023 requires that the consequencesofthis mistake must be borne by the People, not the defendant.” (Porter v. Superior Court (2009) 47 Cal.4th 125, 135-136 (“Porter”), citing Fields, supra, 13 Cal.4th at pp. 310-311.) “Accordingly, a conviction of the lesser offense alone will bar the People from retrying the greater offense notwithstandingthe jury's deadlock on that charge.” (Porter, supra, at p. 136.) Critically, however, this Court in Porter, supra, 47 Cal.4th 125, specifically noted that the “holding in Fields is limited to greater and lesser included offenses and does not apply to sentencing enhancementsor penalty allegations, which thejury does not address until after it has reached a verdict on the underlying offense.” (Porter, supra, 47 Cal.4th at p. 136, emphasis added.) In sum,there is nothing in the record to indicate that the first jury | actually reached a verdict or finding resolving the issue of the Penal Code section 667.61 allegation. Further, and morespecifically, the first jury here never reached andresolvedthe special allegation as to the counts on which thejury remained hung (which formedthebasis for the secondtrial) 12 because “the jury does not address[it] until after it has reached a verdict on the underlying offense.” (Porter, at p. 136.) As the dissent aptly notes: If the prosecution were barred from proving a charge- specific penalty allegation simply becausea prior jury was declared deadlocked on the charge, the defendant would be provided with an unjustified windfall. There is no authority supporting the application of double jeopardy principles in this manner. This case should notbethefirst. (Dissenting Opn.at 4.) CONCLUSION For the foregoing reasons, respondent respectfully requests that review be granted. Dated: August 12, 2011 Respectfully submitted, KAMALAD. HARRIS Attorney General of California DANER. GILLETTE Chief Assistant Attorney General PAMELA C, HAMANAKA Senior Assistant Attorney General LAWRENCEM.DANIELS Supervising Deputy Attorney General STEVEN D. MATTHEWS. __ Supervising Deputy Attorney General Attorneysfor Respondent SDM:mol LA2011503695 50953224.doc 13 CERTIFICATE OF COMPLIANCE I certify that the attached PETITION FOR REVIEWusesa 13 point Times New Romanfont and contains 3,850 words. Dated: August 12, 2011 KAMALA D, HARRIS Attorney General of California HasMK STEVEN D. MATTHEWS Supervising Deputy Attorney General Attorneysfor Respondent EXHIBIT A CERTIFIED FOR PUBLICATION Me- LAQdssOCT IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA ~ SECOND APPELLATE DISTRICT = -URT OF APPEAL - Secon DIST. yess i? —S _ DIVISION FIVE IIL IE D Jfi 9 %5 Ott4 THE PEOPLE, B222615 — = Deputy Clerk Plaintiff and Respondent, (Los Angeles County ; Super. Ct. No. BA3 16526) Vv. VALENTIN CARBAJAL, Defendant and Appellant. APPEAL from a judgmentof the Superior Court of Los Angeles County. Larry Paul Fidler, Judge. Affirmed in part; reversed and remanded in part. Nancy J. King, under appointment by the Court of Appeal,for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthe ws and G, Tracey Letteau, Deputy Attorneys General, for Plaintiff and Respondent. Appellant Valentin Carbajal was convicted, following a jury trial, of three counts of lewd acts on a child in violation of Penal Code’section 288, subdivision (a). The jury was unable to reach verdicts on 10 other counts, and the trial court declared a mistrial. A retrial followed, and appellant was convicted of one count of lewd acts, one count of forcible rape in violation of section 261, subdivision (a)(2), three counts of attempted forcible rape in violation of sections 664 and 261, subdivision (a)(2), and four counts of forcible oral copulation in violation of section 288a, subdivision (c)(2). The jury found true the allegation that appellant committed an offense specified in section 667.61 against more than one victim. Thetrial court sentenced appellantto a total of 83 yearsto life in state prison, which included two consecutive terms of 15 years to life imposed pursuant to section 667.61. Appellant appeals from the judgment of conviction, contending that the true findingon the section 667.61 allegation must be reversed. We agree. We reverse the finding and remand for resentencing. Facts The underling facts can be briefly summarized, as they are not relevant to the issue on appeal. The victims in this case were Zelene C. and Jessica R. The twogirls are stepsisters. Appellant is Zelene's biological father. Appellant was married to Jessica's biological mother, Ruth. At the timeof the offenses in this case appellant, Zelene, Jessica, and Ruth all lived together. Procedural facts In the third amended informationin this case, appellant was charged with 13 counts of sexual offenses against Zelene and Jessica. Counts 10, 11 and 12 alleged that appellant committed lewd acts upon a child in violation of section 288, subdivision(a). The victim of those counts was Jessica. The victim in the other counts was Zelene. The ' All further statutory references are to the Penal Code unless otherwise indicated. information contained the following allegation: "It is further alleged, within the meaning - of Penal Code sections 667.61(a), (b) and (e), as to defendant, VALENTIN CARBAJAL, as to counts(s) 1, 2, 6, 7, 8, 9, 10, 11, 12, and 13 that the following circumstances apply: The defendant in the present case committed an offense specified in Penal Code section 667.61, subdivision (c), against more than one victim." Thetrial court instructed the jury about this allegation as follows: "Ifyou find the defendant guilty of two or more sex offenses, as charged in Counts 1, 2, 6, 7, 8, 9, 10, il, 12 & 13, you must then decide whether the People have proved the additional allegation that those crimes were committed against more than one victim. [{] The People have the burdenof provingthis allegation beyond a reasonable doubt. If the People have not met this burden, you mustfindthat this allegation has not been proved." After deliberating, the jury reached a guilty verdict on counts 10, 11 and 12,all involving Jessica as the victim. The jury could not reach verdicts on the other 10 counts, which involved Zelene as the victim. The foreperson told the court that he/she did not believe that further deliberations would be of assistance. The court polled the jury andall the jurors agreed with the foreperson. After a brief discussion with counsel, the trial court stated: "J will take the verdict and then I will declare a mistrial on the remaining counts." The court then directed the jury foreperson to hand "the verdict forms where you have beenableto arriveata verdict" to the bailiff. After reading the verdict forms, the court stated: "This is certainly interesting. ’ The jury hasarrived at guilty verdicts on Counts. 10 [alleging Jessica R. as the victim], 11 [alleging Jessica R. as the victim], and 12 [alleging Jessica R. as the victim]. The named victim is Jessica R. in each count. They havealso found true finding on the special allegation against more than one victim. I don't know if they can do that without a conviction. I would like to think about that. I don't know the answerto that." After a brief consultation with counsel, the court spoke to the jury foreperson: "Juror Number 8, I have a question. Based upon yourverdicts that I've taken a look at, as to counts 10, 11, and 12, you also signed 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 replied: "No, sir. I thought it was one or more counts." The court stated: "No. It has to be against one or more victims. With that in mind, what I am going to do, I am goingto hand this form back to you. I'm goingto ask the jury to go back in, and if you did not meanto find that as true, becauseI've just explainedit to you, to makesure that that reflects your verdict. Once you're done, you are done with that, comeback out." . The jury returned to the jury room and,in less than five minutes, returnedto the courtroom. The court, apparently surprised bythe jury's quick return, made the following statement: "I think I can guess what they have done. They have gonein; they signedit "not true finding.’ The problem is that's not what they should have done. " The court continued: "It will be double jeopardy. Otherwise, the truth is if they are hung, the court should not take any verdict on that count becauseit's inappropriate." The court concluded: "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: "Okay. Ladies and gentlemen, I have given this some thought. Since you are unableto arrive at a decision on someofthe counts,it is my belief that you shouldnot 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 counselis 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 unableto arrive at a verdict, you can't find that to be true unless yourbeliefis unanimously — if unanimously you believe not just as to the counts that you return butthe entire case that there is not more than one victim. | | "T mean, technically, you could cometo 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 — if you are not able to do that, then what you should dois simply notfill in that form. 4 "That's correct, if you believe unanimously that that finding is nottrue, 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. You understand whatI am saying? "That enhancement— J am not going to explain anymore. "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 whetherthis allegation was true or not true. The problem is by signing that verdict form, youstill have counts where you have been unableto arrive at a verdict, and those verdict forms do name more than onevictim. "So I sort of, J don't want to tell you what to do. Iam sort of giving you whatI believe the law require — you have three options: You couldfindit to be true, which at this point you originally signed, but you have agreed it was a mistake based upon a _ misunderstanding. J think I may have misled you when I sent you back out as to what — what your options were. "Do you understand now what youroptions are? I see a lot ofjurors nodding their heads you don't. There is a lot of counts that are still outstanding. "Juror No. 9: Correct. "The court: I think legally there may be some problem, but I don't wantto 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 ~ J don't want to say anything more on that finding. I _ think you haveto goin and discuss that. "A lot ofjurors are nodding their heads, and J think I know — Juror Number8, 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 muchtime as you need. You let us know. I am going to send the alternates back outinto the hallway. Youretire and continue your deliberations. | am not comfortable saying anything more aboutit. I think I have explainedit to the satisfaction where enough jurors could perhaps guide the discussion. Then we will just see where you stand." The jury deliberatedbriefly, then returned to the courtroom. The court stated: "For the record, the jurors questioned the clerk as to whether they could leave a form blank and could they have a fresh form which wassentin to them? [§] JurorNumber8 , is that what the jury wishesto do,is to leave that form blank?" Juror No. 8 agreed thatit was. The court polled the jury andall jurors agreed. The clerk then read the verdicts fo r counts 10, 11 and 12. Following the reading of theverdict, the court stated: "Ladies and gentlemen, based upon my conversations with you, on the remaining countsthat you were unabl e to arrive at a verdict on, I will find that further deliberations would not be of use. You have indicated that you have taken several ballots and no juror believes that any further deliberations will help on those counts. [{{] As to those counts, I will declare a mist rial, and the jury will now — as soonasI read the final instruction to you — will be dis charged with the thanks ofthe court." A secondtrial followed, involvingthe retrial of the charges against appellant in - which Zelene wasthe victim. The section 667.61 multiple victim allegation w as also retried. The jury convicted appellant of 9 of the 10 counts alleging Zelene.as the victim and foundthe section 667.61 allegation true. Discussion 1. Single trial | As discussed, ante, in the second trial of this matter, the jury considered only the charges involving Zelene. Evidence of appellant's conviction in the first trial was introduced, andthe jury was instructed that if it found appellant guilty of one of the section 288(a) charges involving Zelene in the presentcase, and found that th e prosecution had proved that appellant had been convicted of the crimesin thefirst trial involving Jessica, the jury could find the section 667.61 multiple victim allegation true. Appellant contends that there was only onevictim in the secondtrial, and there was no statutory authority for the jury in thattrial to determine the truth of a multiple victim allegation pursuant to section 677.61. We do notagree. The multiple victim enhancement of section 667.61 reads as follows: "The defendant has been convicted in the present case or cases of committing an offense specified in subdivision (c) against more than one victim." (§ 667.61, subd. (e)(5).) The charges involving both Jessica and Zelene were charged in the same information and wereinitially all tried together, before one jury. The charges were closely related. The retrial of the hung counts involving Zelene wasstill the samecase. Thereis no absolute requirement under California law that "the samejury that finds a defendant guilty of an offense must always decide the truth of an attached penalty allegation. On the contrary, ‘prior decisions haveheldthat a trial court may receive a guilty verdict from a jury that is unable to agree on a penalty provision, declare a mistrial | on the penalty provision alone, and empanel another jury to consider the issue of penalty. {Citations.]' [Citation.]" (People v. Anderson (2009) 47 Cal.4th 92, 119-120 [involving retrial of penalty allegation under section 667.61 without retrial of previous lewd act conviction].) "Defendant has not identified, nor have we found, a single decision holding that aggravating factors must be retried together with all the elements of the underlying offenses to which they attach. If Apprendi [v. New Jersey (2000) 530 U.S. 466]truly required such a dramatic change in resentencing proceedings, one would expectto find case law reaching this conclusion, as well as clear guidance from the United States Supreme Court about how the change should be implemented. There is none, and we decline to create it." Ud. at p. 123.) 2. Double jeopardy Appellant contendsthatretrial of the section 667.61 multiple victim allegation was barred by double jeopardy principles. Appellant did not raise a claim of double jeopardy in thetrial court. "If, however, a plea of former jeopardy had merit and trial counsel's failure to raise the plea resulted in the withdrawalof a crucial defense, then defendant would have been denied the effective assistance of counsel to which he was entitled. (People v. Belcher (1974) 11 Cal.3d 91, 96... [acknowledging general rule of waiver, but addressing double jeopardy argument on direct appeal and concludingtrial counsel's failure to timely raise plea of former jeopardy constituted a denial of effective assistance of counsel]; see Stricklandv. Washington (1984) 466 U.S. 688 [80 L.Ed.2d 674, 104 S.Ct. 2052].) Consequently, although the Attorney Generalis technically correct in arguing the issue was waived, as in Belcher we nevertheless must determine whether such a plea would have had merit." _ People v. Marshall(1996) 13 Cal.4th 799, 824, fn. 1.) Both parties agree that if the jury in thefirsttrial found the section 667.61 allegation nottrue,retrial of the allegation would be barred under People v. Seel (2004) | 34 Cal.4th 535. (People v. Anderson, supra, 47 Cal.4th 92, 119 [Under Apprendi, the OneStrike allegation had to betried to a jury, and under Seel an acquittal on the allegation would have barredretrial"].) Although the parties do not consider the alternate scenario, retrial would also be barred if the jury in thefirsttrial had again found the section 667.61 allegation true aft er reconsideration, because’such a finding wouldnot be supported by the evidence as a matter of law. The jury convicted appellant only of the charges against one victim and . the section 667.61 requires two or more victims. Thus,the true finding would inevit ably be reversed on appealfor insufficiency of the evidence, and double jeopardy would b ar retrial. (People v. Seel, supra, 34 Cal.4th at pp. 548-550 [double jeopardybarsretrial of penalty allegation after reversal for insufficient evidence].) The handling of the jury finding inthis matter was governed by section 1161 which provides in pertinent part: "Whenthereis a verdict of conviction, in whichit appears to the Court that the jury have mistaken the law, the Court mayexplain the reason for that opinion and direct the jury to reconsider their verdict, andif, after t he reconsideration, they return the sameverdict, it must be entered; but whenthereis a verdict of acquittal, the Court cannot require the jury to reconsiderit.” | Here, the jury initially returned a true finding on the section 667.61 allegation. The court believed that the jury had mistaken the law and believedthat it could find the allegation true if it had convicted appellant of multiple counts. The allegation involved multiple victims. The court's discussion with the jury foreperson supported the court's belief. Thus, the court properly directed the jury to reconsiderits true finding. It is undisputed that, following brief period of reconsideration, the jury again" returned a finding. Thetrial-court and both parties believed that the jury finding was "not true" and both parties on appealstill share thatbelief. As the trial court said, apparently surprised by the jury's quick return: "I think I can guess what they have done. They have gone in; they signedit 'not true finding.’ The problem is that's not what they should have done." The court added: "It will be double jeopardy.” Forpurposes of double jeopardy, it does not matter whether that finding was "true" or "not true" because section 1161 prohibited the court from sending the jury back for further reconsideration in either case. Section 1161 specifies that when thereis a verdict of conviction,the trial court may direct the jury to reconsider but "if, after the reconsideration, they return the same * The jury foreperson's exchange with the court clearly shows that the jury intended to return a verdict, albeit one based on a mistake in the jury's understanding of the substantive law. The jury had correctly informedthetrial court that it was hung on substantive counts, so this is not a case where the jury was confused about howto inform the court that it could not reach a verdict or mistakenly believed that it had tofill out all the forms. Thus, the circumstances of this case are not like the circumstances before the - Court in People v. Caird (1998) 63 Cal.App.4th 578. Caird, and the cases considered therein, involved instances where the jury made technical or clerical errorsin filling out verdict forms. The jury in Caird, for example, returned a guilty finding on the greater offense and a not guilty finding on a lesser included offense. The trial court, suspecting a "technical" error, polled the jury and determinedthat the jury "never reached a decision on the lesser included offense." (/d. at p. 586.) Thus, the verdict form did not reflect the jury's intent. The jury in Caird, like the jury in other similar cases, may well "have mistakenlybelieved that it was supposed to complete all the formsit had been given." Ud. at p. 589.) verdict, it must be entered." Thus, if the jury had again returned a "true" finding, the court was required to enter that finding. Section 1161 also specifies that "when there is a verdict of acquittal, the Court cannot require the jury toreconsiderit." Thus, if the jury had returned a "not true" finding, the court was required to enter that finding. "Once the jury submits a verdict of acquittal to the trial court, the court may not order reconsideration of that verdict but rather must order that judgment be entered on the verdict. (§§ 1161, 1165; People v. Blair (1987) 191 Cal.App.3d 832,839 [236 Cal.Rptr. 675].) Second,a trial court may not coerce a jury by rejecting its verdict and requesting it to continue deliberating. (Ibid.; see also People v. Gainer (1977) 19 Cal.3d 835, 842- 843.)" (People v. Bigelow (1989) 208 Cal.App.3d 1127, 1134.) "Once the jury has manifested its intention to acquit, then the court must receive and record the verdict. (§§ 1164, 1165.) The court may not thereafter declare a mistrial without giving effect to that verdict. Nor may the court, by refusing to poll the jury or otherwise impeding recordation ofthe verdict, deny the defendanthisright to havehis ~ guilt or innocence determinedby the first tribunal to hear the matter. [Citations.]" (Bigelow v. Superior Court, supra, 208 Cal.App.3d at p. 1135.) Here, the court did not give effect to the jury's finding after reconsideration. Rather, the court impermissibly sent the jury back to deliberate again, after makingit clear to the jury that the court expectedthe jury to indicate that it was hung. Thejury | asked if they could leave the form blank and requested a fresh form. The jury foreperson then told the court that the jury wanted to leave the form blank. This indicated that the jury was hung on the section667.61 allegation. | Respondent contendsthat the court properly found that the jury's true andnottrue findingswere inconsistent with the jury's inability to reach a verdict on the counts | involving the secondvictim Zelene. Respondent further contends that the jury's findings appeared to be based on a mistake or confusion andthetrial court had authority under section 1161 to clarify or reconcile their verdict, which respondent characterizes as "ambiguous." Respondent concludesthat the trial court acted properly in directing the 10> Jury to reconsider their finding, and so no "not true" finding was actually returned at the first trial. | AS we discuss, ante, section 116] permits the trial court to direct the jury to reconsider a guilty verdict (or true finding) if it appears that the verdict is based on a mistake of law. If, however, the jury again returns a guilty verdict (or true finding), the court must accept that verdict. This second verdict presumably would be noless mistaken thanthefirst verdict, but the law limits the number of times a jury may be asked to reconsider a guilty verdict. | The law does not permit reconsideration of a verdict of acquittal (or not true finding), even if it is inconsistent. "A jury's verdict of acquittal or not true may not be questioned by anyoneelse or in any other forum,anda trial court may not probe further into the jury's deliberations. 'As a general rule, inherently inconsistent verdicts are _ allowed to stand. [Citations.] For example, "if an acquittal of one count is factually irreconcilable with a conviction on another, or ifa not true finding ofan enhancement allegation is inconsistent with a conviction ofthe substantive offense, effect is given to both." [Citation.]" (People v. Avila (2006) 38 Cal.4th 491, 600 [43 Cal. Rptr.3d 1 133 P.2d 1076], italics added.) The system accepts the possibility that 'the jury arrived at an | inconsistent conclusion through "mistake, compromise,or lenity." [Citation.]' ([bid.)" (People v. Guerra (2009) 176 Cal.App.4th 933, 943 [jury convicted defendant of sex crimes against two victims but found section 667.61 multiple victim enhancement not true].) In general, "the state has no remedy whenajury acquits ‘in the teeth of both law _and facts.’ (Horning v. District ofColumbia (1920) 254 U.S. 135, 138 [65 L.Ed. 185, 41 S.Ct. 53], disapproved on other grounds in United States v. Gaudin (1995) 515 U.S. 506, 520 [132 L.Ed.2d 444, 115 §.Ct. 2310].)" (People v. Guerra, supra, 176 Cal.App.4th at p- 943.) Respondent contendsthat the trial court's action was permissibleunder Bigelow v. . Superior Court, supra, 208 Cal.App.3d 1127 becausethe court in that case stated that the trial court could have "informed the jury that the acquittal was not consistent with 11 findings of special circumstances and askedit to clarify its verdict to show its true intent." (Id. at p. 1136.) The Court in Guerra rejected an identical claim, pointing out that in the very next sentence of Bigelow, the Court of Appeal "disapproved of whatthe trial court there actually did: 'the court sent the jury back to deliberate." (People v. Guerra, supra, 176 Cal.App.4th at p. 944.) To beprecise, the opinion in Bigelow reads: "The court could have . . . informed the jury that the acquittal was not consistent with findings of special circumstances and askedit to clarify its verdict to show its true intent. — But instead, the court sent the jury backto deliberate." (Bigelow v. Superior Court, supra, 208 Cal.App.3d at p. 1136,italics added.) Respondent's reliance on Bigelow is misplaced. Respondentcites no other authority to support its position. We are not aware of any authority which permits a trial court to send the jury back for further deliberations on a punishmentallegation because it is inconsistent with the jury's verdicts on the charges. As we have just discussed, statutory and case law are to the contrary. Thetrial court acted improperly in refusing to accept the jury's finding. Accordingly, the true finding on the section 667.61 allegation must be reversed and a not true finding entered in the minutes. Disposition The jury'strue finding on the section 667.61 multiple victim allegation is reversed. This matter is remanded for resentencing and for correction of the minutes. The judgment of convictionis affirmed in all other respects. CERTIFIED FOR PUBLICATION ARMSTRONG,Acting P. J. I concur: MOSK,J. 12 KUMAR,J., Dissenting People v. Carbajal B222615 “[Wyhen a trial produces neither an acquittal nor a conviction retrial may be permitted if the trial ended ‘without finally resolving the merits of the charges against the accused.’” (People v. Anderson (2009) 47 Cal.4th 92, 104 (“Anderson’’), quoting Arizona v. Washington (1978) 434 U.S. 497, 503.) This is the first case that, contrary to this principle, has applied the doctrine of double jeopardy to precluderetrialof a special allegation despite the fact that the allegation was not reached and decidedbya fact-finder in a prior proceeding.. Because I believe that, under these circumstances, the record must demonstrate the former fact-finder (e.g., a jury) reached and decided theallegation in order to trigger a double jeopardy bar to retrial of the same allegation, I respectfully dissent. | “The double jeopardy clauses of the Fifth Amendment to the United States Constitution, applicable to the states through the Fourteenth Amendment, andarticle I, section 15, of the California Constitution, guarantee that a person shall! not be placed twice ‘in jeopardy’ for the ‘same offense.’ The double jeopardy bar protects against a second prosecution for the same offense following an acquittal or conviction,and also protects against multiple punishmentfor the same offense. [Citations.|” (People v. Bright (1996)12 Cal.4th 652, 660-661, overruled on other grounds in Peoplev. Seel (2004) 34 Cal.4th 535, 550, fn. 6.) Principles of double jeopardy have been extended to penalty allegations. (People v. Anderson, supra, 47 Cal.4th at pp. 105-108.) The majority concludes that, not only did the former jury reach a decision with respect to the multiple—victim penalty allegation (§ 667.61, subds. (b) & (e)(4)) but, in some instances, the majority appears to assumethe former jury foundthe allegation to be not true. Thus, the majority holds the doctrine of double jeopardy precludedretrial of the allegation. There are three problems with this approach. The first stems from the nature of a section 667.61 allegation. Section 667.61, subdivision (b) provides, in pertinent part, that “any person whois convicted of an offense specified in subdivision (c) under one or more circumstances specified in subdivision (e) . . . shall be punished by imprisonmentin the state prison for 15 years to life.” This statute is considered to be an alternative sentencing schemeapplicable to only certain felonies. (People v. Anderson, supra, 47 Cal.4th at p. 102.) “[T]he jury mustfirst decide whetherall the elements of the underlying substantive crime have been proven. If not, it returns an acquittal and the case is over. Ifthe jury convicts on the substantive crime, it then independently determines whether the factual allegations that would bring the defendant under the One Strike sentencing scheme[set forth in section 667.61] have also been proven.”. (/bid., italics added.) Thefirst trial concerned two sets of sex offenses — some committed against Zelene and others committed against Jessica — as well as a section 667.61 penalty allegation. The jury was declared deadlocked onthe charges related to Zelene butfound appellant guilty of the charges corresponding to Jessica. Because appellant was not convicted of the Zelene offenses in the formertrial, the predicate necessary to trigger consideration of the section 667.61 allegation for those offenses was absent from thattrial. Thus, it cannot be said that double jeopardy principles precluded retrial of the penalty allegation asit applied to the Zeleneoffenses because the former jury never reached, much less resolved, the issue of whether the allegation was applicable to the Zelene offenses. The secondrelates to the absence of a section 667.61 verdict in the former proceeding. In this regard, no verdictat the first trial was ever taken or recorded on the allegation and, in fact, the only indication in the record ofthe nature of that verdict is a reference in the reporter’s transcript to the trial court’s “guess” that it was “not true.” The record does not demonstrate the jury was asked whetherit reached a verdict and no juror volunteeredthatit reaclied a “not true”verdict. Ultimately, the court asked each individual juror whether ‘he or she wanted to leave the verdict form blank and each juror indicated that washis or her desire. I respectfully disagree with the inference in the majority opinion that double jeopardy precludesretrial of a penalty allegation or offense as long a court is able to “guess” a former fact-finder resolved the corresponding issue in the defendant’s favor. t The third problem with the majority’s holding is that, whenit is read in tandem with the California Supreme Court’s decision in Anderson, it creates an anomaly in the law. Anderson holds that “if a defendant is convicted of the substantive crime but the jury deadlocks on the attached [section 667.61] sentencing allegations, neither federal nor state double jeopardy principles bara retrial on those sentencingallegations.” (Peoplev. Anderson, supra, 47 Cal.4th at p. 105.) Thus,if the first jury had convicted appellant of the Zelene offenses and had deadlocked on the section 667.61 allegation, the prosecutor would have been ableto retry the allegation. However,the reality of the instant case evinces even stronger supportfor allowing retrial of the allegation — i.e., the jury. deadlocked oni the attached substantive crimes(i.e., the Zelene offenses) and, therefore, never reached the penalty allegation. Ifthe doctrine of double jeopardy does not preclude retrial of a sentencing allegation where a former jury deadlocked on that sentencing allegation then,certainly, it should not precluderetrial of that allegation if, because the former jury deadlocked on the attendant substantive offense, it never even considered the allegation. To conclude otherwise, as the majority has done, provides fodderforthe inconsistent application of double jeopardy principles. The majority also appears to suggest the finding on the section 667.61 allegation must be reversed because, by declining to take the jury’s verdict when it returned to the courtroom for the second time,thetrial court failed to comply with section 1161. However, “[r]eversal of a conviction for a violation of section 1161 requires a showing of actual prejudice.” (People v. Caird (1998) 63 Cal.App.4th 578, 587.) As explained above, any section 667.61 verdict at the first trial corresponded only to the offenses for which appellant was convicted. Thus, anyerrorthe trial court may have committed by declining to accept the jury’s verdict when.it returned to the courtroom a second time was harmless because, even if the trial court accepted a “not true” verdict, double jeopardy principles would not have precluded the prosecution from proving the section 667.61 allegation in the subsequenttrial on the deadlocked counts. 3 > In sum, the record is devoid of any indication that the former jury reached a . verdict resolving the issue of whether the section 667.61 allegation was applicable to the counts on which the jury hung and formed the basis forthe secondtrial. If the prosecution were barred from proving a charge-specific penalty allegation simply because a prior jury was declared: deadlocked on the charge, the defendant would be ' provided with an unjustified windfall. There is no authority supporting the application of double jeopardyprinciples in this manner. This case should not bethe first.’ KUMAR,J.” , I would direct the abstract ofjudgment be corrected. In pertinent part, the prosecution allegedsection 667.61 applied to counts 1, 2, 6, 7, 8, 9, 10, 11, and 12. The first trial resulted in guilty verdicts on counts 10, 11, and 12. Following the secondtrial, the jury found appellant guilty as charged in counts 1, 2, 6, 7, 8, and9; and the section _ 667.61 allegation was found true. Thetrial court sentenced appellant pursuant to section 667.61 only on counts | and 10. However, appellant should have been sentenced to consecutive 15 years-to-life terms, pursuant to section 667.61, on counts 2, 6, 7, 8, and 9 because:(1) a trial court may notstrike a section 667.61 allegation (§ 667.61, subd.(i)); and (2) the crimes ‘were committedon separate occasions (§ 667.67, subd.(i); § 667.6, subd. (d)). In addition, due to the fact that neitherjury found the section 667.61 allegation applicable to count 10, thetrial court incorrectly imposed a 15-years-to-life sentence for that offense. But, because the court expressed’a desire to imposethe . maximum term, remandis not necessary. The abstract ofjudgment should be corrected to reflect the maximumterm of eight years (§§ 288, subd. (a), 667.6, subds. (d) & (e)(5)) in state prison on count 10 as well as consecutive 15 years-to-life terms on counts2,6, 7, 8, and 9. neeA * Judge of the Los Angéles Superior Court, assigned by the ChiefJusticepursiiahtito article VI, section 6 of the California Constitution. mays 4 DECLARATION OF SERVICE Case Name: People v. Valentin Carbajal No. S ; B222615 I declare: | am employed in the Office of the Attorney General, whichis the office of a memberof the California State Bar, at which member’s direction this service is made. I am 18 years of age or _ older and not a party to this matter; my business address is 300 South Spring Street, Suite 1702, Los Angeles, CA 90013. I am familiar with the business practice at the Office of the Attorney General for collection and processing of correspondence for mailing with the United States Postal Service. In accordance with that practice, correspondence placedin the internal mail collection system at the Office of the Attorney General is deposited with the United States Postal Service that same day in the ordinary course of business. On August 12, 2011, I served the attached Petition for Review by placing a true copy thereof enclosed in a sealed envelope with postage thereon fully prepaid, in the internal mail system of the Office of the Attorney General, addressed as follows: Nancy J. King | John A. Clarke Attorney at Law Clerk of the Court 1901 First Avenue, Suite 138 Los Angeles County Superior Court San Diego, CA 92101 111 N.Hill Street (Counsel for Appellant Carbajal) Los Angeles, CA 90012 To be delivered to Anne Marie Wise Hon.LarryP.Fidler, Judge Deputy District Attorney Los Angeles District Attorney's Office CAP- LA 210 West Temple Street, 17th Floor California Appellate Project (LA) Los Angeles, CA 90012 520 S. Grand Ave., 4th Floor Los Angeles, CA 90071-2600 On August 12, 2011, I caused 13 copies of the Petition for Review in this case to be delivered to the California Supreme Court at 350 McAllister Street, First Floor, San Francisco, CA 94102 by FedExPriority Overnight Service, tracking number 8744 4308 7168. On August 12, 2011, I hand delivered a copyofthe Petition for Review to the Clerk of the Court of Appeal, Second Appellate District, Division Five, 300 South Spring Street, Los Angeles, CA 90013. I declare under penalty of perjury underthe laws of the State of California the foregoingis true and correct and that this declaration was executed on August 12, 2011, at Los Angeles, California. M.O.Legaspi elopesoe | Declarant Signatyr(CO) SDM:mol LA2011503695 50955026.doc
