PEOPLE v. GOOLSBY

Respondent’s Opening Brief on the Merits

Cal.July 29, 2014

An the Supreme Court of the State of California THE PEOPLE OF THE STATE OF CALIFORNIA, SUPREME COURT Case No. 8216648 vsME COURT Plaintiff& Respondent, pe EP v. RICHARD GOOLSBY, JUL 29 2014 Defendant & Appellant. Frank A. MoGuire Clerk Deputy Fourth Appellate District, Division Two, Case No, E052297 San Bernardino County Superior Court, Case No. FSB905099 The Honorable BRYAN F. FOSTER, Judge OPENING BRIEF ON THE MERITS KAMALAD.HARRIS Attorney General of California JULIE L. GARLAND Senior Assistant Attorney General WILLIAM M. WoopD Supervising Deputy Attorney General STEVEN T. OETTING Deputy Solicitor General FELICITY SENOSKI Deputy Attorney General State Bar No. 195181 110 West A Street, Suite 1100 San Diego, CA 92101 P.O. Box 85266 San Diego, CA 92186-5266 Telephone: (619) 645-2607 Fax: (619) 645-2271 Email: Felicity.Senoski@doj.ca.gov Attorneysfor Respondent TABLE OF CONTENTS Page Questions Presented ......eee eeseeceseeeteeeseeeseneeeseseaeeeessecuestiteseusssetsseesneenses 1 IntrOductiOn.........cccccccsecsssecscsccesseecececcseeseeeesereeersaneeeessuseneenseneesredesesssesseeeneeees 1 Statement of the Case and Facts... ececesccsseeeesseessneeesnesessseeseeseneneesaeeegs 3 ALQUMENT «0.2... ce eeeeeseesnseeteeerseserenseeeees daacensancusssescauneesceassoaaaaaouenssonseesonsneeeeeenss 7 I, Appellant’s conviction for violating section 451, subdivision (b), should be affirmed.........e.eeeeceesseeeesreeeeeees 7 A. Additional procedural and factual background........... 7 B. Appellant’s conviction under section 451, subdivision (b), is supported by the jury’s verdict, the Court of Appeal’s opinion, and appellant’s concession that the motorhome WAS PLOPerty ....eeeeeeseeeseessseessseeseseeeesneseeeeseneessseeees 11 C. This court should affirm appellant’s conviction for section 451, subdivision (D)......... ee ee eeeeeseeeeseeees 16 1. Appellant received adequate notice to prepare a meaningful defense against a charge arson of an inhabited structure or inhabited property 0...eeeeseeeeseeeseeeeees 17 2. At no time after the charge was amended was appellant deprived of a meaningful opportunity to defend against the arson count and he cannot claim his due processright to notice would be prejudiced by an affirmance ofthe CONVICTION .......ceeccceesceeeeeneeeeeeeeceneeerseeeeesaueeeeeaes 20 I. Penal Code section 654 does notpreventretrial of an offense properly added in the original prosecution, but where aninstructional error resulted in no verdict being returned .....eeeences ceneeseeeseesseeeeeeseeneesneesseenseeseees 26 A. Additional relevant procedural background.............. 27 TABLE OF CONTENTS (continued) Page B. Section 654, as construed by this court in Kellett, does not apply to preventretrial off charges properly before the jury in the original PFOSCCULION 0... eee ceeeeersceeeereecseesessnesseseeesareeensennes 28 C. Appellant impliedly consented to add the uncharged offense; any claim the jury was improperly discharged whenit failed to declare a verdict as to this offense is forfeited,retrial is proper to resolve the question ofguilt...33 l. The rule of Toro and implied consent CONTLOIS oe... eccseccceseseecenereeeseeteesesneeseseseeeeseneeees 33 a. Appellant’s tacit agreementto the lesser offense instruction amended the charge......cccecsccsseeeeees 37 b. Appellant’s affirmative conduct amended the charge with the lesser OffENSE 0.0... eeeseeeesteeeesteeeeeees 37 2. Appellant’s trial strategy depended upon the jury’s consideration of the lesser OFFENSE ........cc cece seeeeeeereeseseeseeeeneeeneneeees 38 3, Appellant has forfeited any claim under section 1164 that the trial court improperly discharged the jury without a verdict on the lesser offense ...........cceeeeee 40 D. Theprinciples of double jeopardy do not preventretrial of a lesser related offense mistakenly identified as a lesser included offense in the jury instructions and for which the jury did not return a verdictas instructed............45 CONCIUSION ceccceccceccccccececcccecececceneccecccccersecceuuncesucuceceseeeessuseceseeaaerssaeaenecconsenss 52 il TABLE OF AUTHORITIES Page CASES Arizona v. Washington (1978) 434 U.S. 497 [98 S.Ct. 824, 54 L.Ed.2d 717]cece46 Brownv. Boren | (1999) 74 Cal.App.4th 1303ccccsessenseeeesesenssenersnsecterseeeeneneneey 15 Burks v. United States _ (1978) 437 U.S. 1 [98 S.Ct. 2141, 57 L.Ed.2d 1]oes51 Cole v. Arkansas . (1948) 333 U.S. 196 [68 S.Ct. 514, 92 L.Ed. 644]0eee21 Curry v. Superior Court (1970) 2 Cal.3d 707 ooecccecsesceccsescscesesessseesesseneseneneenseseresseeseseneneensarens 50 Downum v. United States (1963) 372 U.S. 734 [83 S.Ct. 1033, 10 L.Ed.2d 100)...eee 51 Fontana v. Upp (1954) 128 CalApp.2d 205 ociccccssecsesteseseersneneersnseeeeerenereseereaeensnsens 15 Higgins v. Superior Court In and For Los Angeles County (1960) 185 Cal.App.2d 37... eccsseceseesseseeneneeeasesseceeceneeeenseasansaencens 50 In re Colford (1924) 68 Cal.App. 308 oo. ccsesccescsneseeesiesessenetensenseeeneeeaseneneenenen 50 Kellett v. Superior Court (1966) 63 Cal.2d 822oiecece cess eeeseenereenenensereneenenes 1 et passim Martinezv. Illinois (May 27, 2014) __U.S.__ [134 S.Ct. 2070, L-Ed.2d Jaeessesssee 51 Ohio v. Johnson (1984) 467 U.S. 493 [104 S.Ct. 2536, 81 L.Ed.2d 425]... 45,51 Orlina v. Superior Court (1999) 73 Cal.App.4th 258 oicceesseeseseseseecenenenenenssenennensaes 6, 35 lil People v. Anderson (2009) 47 Cal.4th 92 ooccccceneseseer re rsesnesenscssessssenecseeseseneeneneenenenes 46 People v. Anzalone (2013) 56 Cal.4th 545iceseeee sete esseisssseseseesssseneessenerecess 42, 48 People v. Ardoin (2011) 196 Cal.App.4th 102oonrcesessseesescnesenenerenenseeneseeess 25 People v. Birks (1998) 19 Cal.4th 108cessescseeneresenssesessssseseesieererseerenes 34, 36 People v. Bolin (1998) 18 Cal.4th 297 oo. eeceeceeeseeeeeeerieeesrenssnenseneesenenens 12, 13 People v. Ceja (2010) 49 Cal.4th Dooceensssessssessssssessnssessssssansnsneseessesnereeseeees 39 People v. Cuevas (1996) 51 Cal.App.4th 620 occnecseesssssesesesescstenenenenssesseeesenees 32 People v. Fields . (1996) 13 Cal.4th 289eeccsnesessseeneeseeseneeesseseecseeseneee 46, 47 People v. Flood (1998) 18 Cal.4th 470occecesecceseseesesessenessseseenereneeeeeeeesnneneennens 14 People v. Francis (1969) 71 Cal.2d 66 occseeccsceescrcsetssescenerssssneesssessensersssentereecaeanees 37 People v. Fyfe (1929) 102 CalApp. 549...ccseeseseerenecenenenens deeaeeseeseeeetaeeeeneates 18 People v. Gallego (1990) 52 Cal.3d 115 vocessees ssssesnesesesencsessssssscssasseesenennseserenserey 24 People v. Garcia | (1984) 36 Cal.3d 539 ooceeccseseessesscsesescecesesseeesnenesesseseseeneiees 14, 50 People v. Greer (1947) 30 Cal.2d 589cccesees esse tsreesesnsreesssessenesecscerenenenereeennens 47 People v. Guiuan (1998) 18 Cal.4th 558ocrcece ssesssisssseeneseressteneneseaessenees 6, 34 iV People v. Ham Tong (1909) 155 Cal. 579 occecceseeesseensseneeseesssssssssessseisscsseseseseenees 48, 49 People v. Harris (1994) 9 Cal.4th 407 ooccecceesescenesesessensesesssseeeessasetesssesscesessesessneessenens 16 People v. Haskin (1992) 4 CalApp.4th 1434oeceneesecescesstsensssessneneneneneeees 34, 35 People v. Holt (1997) 15 Cal.4th 619eeccsceeseresesseessessasenesesseseeeneesersesenenee 20 People v. Jackson (1989) 49 Cal.3d 1170cececeeeecnenenereseeeeneseees Seeeeesseneneneeeeeeeeees 12 People v. Labaer (2001) 88 Cal.App.4th 289 ooeessseneseesseeneneessenenerseeeeseeten 48 People v. Moore (1997) 59 CalApp.4th 168 oo. ccceccsessensseesestenenesssensteeeeseentenee 16 People v. Peters (1950) 96 CalApp.2d 671.icccscceeeeteeeseeneeenetenseereneereeeneee 13, 14 People v. Pijal (1973) 33 Cal.App.3d 682.00... cccceseeesesteseeseeeeeasnenenereeeereeeiees 14,15 People v. Ramirez (1987) 189 Cal.App.3d 603oncepeeeesesesenss 36, 37, 39 People v. Randazzo (1957) 48 Cal.2d 484oscceseeseesesceestesnseneessesseensaceneneerenieneerseneees 18 People v. Reed (2006) 38 Cal4th 1224icccesseseseeseeneeseaneesenenesseeenseeneneesseene 34 People v. Richie (1994) 28 CalApp.4th 1347cccccssesceseeseesessenseerseereasereeerenenreneey 15 People v. Russo (2001) 25 Cal4th 1124iceceseseeseeeensenesneseeenseenesesseeeseneeeseneey 36 People v. Sanders (1998) 67 Cal.App.4th 1403 oo.cesesneseeneseteeetieenereereteeeasae 30 People v. Saunders (1993) 5 Cal.4th 580cccceeeneneeresenseeetssesesserssscssseteneneerenees 41, 45 People v. Schwartz (1992) 2 Cal.App.4th 1319 oeseeseeseeeseerenssessserssessssesesseenereaseness 38 People v. Seaton (2001) 26 Cal.4th 598oereeseeeeenes“secaeseveeseeesseseseneeetaeeetenenenes 17 People v. Shirley (1982) 31 Cal.3d 18ocresessesseesesssesnesececssecenenssnessseeenentenees 51 People v. Sullivan (2013) 217 Cal.App.4th 242 oo. eccsesecsseessseesnecenesesnneeecenneerseesnins 49 People v. Taylor (1969) 273 Cal.App.2d 477 ...cccccccescseseesenesseenenereirerseeteees 36, 37, 38, 39 People v. Toro (1989) 47 Cal.3d 966 occcccseeteeneeseeesenenseeseeasietenenees 6 etpassim People v. Valli (2010) 187 Cal.App.4th 786 oo... ccccccecseserseseeeeneneteneeeneeneersees 31, 32, 39 Richardson v. United States (1984) 468 U.S. 317 [104 S.Ct. 3081, 82 L.Ed.2d QA2|] .oecccccseteeeeeeee 45 Russell v. United States (1962) 369 U.S. 749 [82 S.Ct. 1038, 8 L.Ed.2d 240]...eee21 Sanders v. Superior Court (1999) 76 Cal.App.4th 609 oo. cccececeeseeseserenenstenenenenenseneres 30, 31, 32 Sheppard v. Rees (9th Cir.1989) 909 F.2d 1234 oo cccesecsseseseeeneeseeeeeeeeteeerenenens 22, 23, 24 Stanley v. Superior Court (2012) 206 Cal-App.4th 265 oo.cc cccecseeeseereseeeseceneseeneneneneeeneneeee 49 Stone v. Superior Court (1982) 31 Cal.3d 503 oicescsessesssescenesssereseseseseesneeeneeeeertneey 49, 52 Wade v. Hunter (1949) 336 U.S. 684 [69 S.Ct. 834, 93 L.Ed. 974] oo. cceseeeeeeieen 51, 52 vi STATUTES Penal Code SBTccccccesceceseteeeeeeeceeecnerseseeeeeevessteesssnessessssesesesessssesesseeesnseesessesseneeeeeeeney 3,7 § 187, SUDdIVISION (A) ...... ce eeee ee esees eee eseesecesseeeessensesseenseessaeteetaeeaeseesenenes 19 SALT ecccccccccccnecceseteseecnecnenereresseneceeesssesuenecevsssesseseesessecsensesestesaesaseaenseeey 28 § 450, subd. (8) oeseeteseeeeeneeseceeeseetsesenereeneeslecduaeesevaeeeeusneetsueesentaeenes 12 § 450, subd. (C) .ccceeeeeseeceneeseeesessesessessesecesecsesesssseeseeseseseessesnesesersereas 12, 22 SSD ceccccsceeseeceeceecseeeeseecesesessseseseenscsenecssesssseesseseneessesessseeeeseanesseneentees 11, 12 § 451.1, SUC. (8) occccesesesesetesetetesseseseesssseseneneeeeneeees easesseeseeteretaees 3, 7,4 § 451.1, Subd. (A)(4)cece csceeteeeeneeseneenseseeeereeeeneeereeenees jesseeessseeessuaeees 19, 22 § 451, Subd. (D)eeeccceeesssseersnetscssssecseesseessessesenesseneneenernenecsenens 1 et passim § 451, SUB. (d) ceceee csesessesesesetererscsesecsssesersassesenseneeseneneeereeitestanarateey 3,4 § 452, SUB. (A). seccceecsenerstestenseetscsesesesseseseeesssarscenenesaeenenecneseesersenenaserans 10 § O54 ceccccccceccrenesneseeeneeseessseesssessseseseesseeneesecsseesuerieseressereeereneey 1 et passim § 664 coecccccccccscesesceecseneceecseneeeeseeneesseseecsessessssssesesseseessensseesienersenersentegs 3,7, 19 § 664, SUD. (B)occeccccccsccesseseesecsecerssesissesseeerssesseescenesnesnesessesneecieessereeceneneneny 25 § 667.5, SUDA. (D) occ cecseteeeseseeesseterscecsereeseeereneseeeeees veseseateseseceeseeaeeees 4,7 § 667, SUD. (8) vo seeecceeesescssteesesceesssesesersesecenessnensnessereneaeeerensesnesessseeeecasieneass 5 § 667, Subds. (a)(1), (D)-(i) ec eccccccecccsseneteceereecenetenenenerenenetserereneseesenenenenes 4 § 667, SUbdS. (2), (D)-() oe eccsesceceteeeeesecesereneeeeee tenets tsnsnesssessenerenenanenenenes 8 STL ccecccccccscccsereteteeeeessesesveveseseeassesenenasesecssseseensnsacaeeseserscisieenseeeererseaeeeenes 18 § 872, SUDA. (8) ..seecccereeseseseseesesesesesetensteneesersesiseenseecesseesiseenseenenenenesens 18 § O54 eccccecseeceteretetenseevecsescensssseeesensenenesecssisenensneneisessenenenseearseseseseeegegs 29, 30 § 1009 veeceecccseceeseeenseeescsesseeeesssseseseeesenessenrecenenserseeensessiees eeseeneseeeseeneneeeaeeny 18 § 1023 eeeecceccseceseetenseeesssseerssssesenesssesesssseecseenserseneserisscseneseesereeesasseneas 46, 47 § LO2DS ceceeccccccseseeerereneeeesesesusseseesesesesenssesecsessenenensaseceserensensaenesseersnseasaneerenees 4] § 1025, Sub. (D) occ eeeetctes cence cenenenerseseseeesneneeasesesneassneneesseseesesseeeseereas 4] § 1149 oe cccccseeeeseneetereeeteseerssssesssesssesesenecseeneasesieeserenseseseasseenenenseeeeneeeeeees 42 § 1159 eccccceseceeeteneteeeesessesessssesesesssssesaceeseenensaeacenenenevseaeaeseveversvenneeasensses 34 S LLG] ecececccctcsetenseseeesesesesrescseeeeteneneesenscseeeessneneeeesssesssseeeteessereessesenees 43,47 S164 oe cccceecececeeeeeseretssesnssssesesesssesssenecerenensececeneeeneeerseesseestieeseseasennees 40 § 1164, sub. (D)seescece eeseneneceeneeereeeeenerenetennenty ceseeeeeeeenees 40, 41, 43 § 1170.12, subds. (€)-(A)...ceceeeeseneereeeeeeeseeterstenesesseeeereeseeeeees 4,8 § 1181, Subd. (6).eeecess rece eseeeecaesenesessenenseaseeeneeseensssessaereresenenens 4,5 § L202] veeeceeeeecesesesseeeessesesesstssssesescecesesesenensneeaseseneaseresscaeenerseeseseaeeeeeaseegegys 29 CONSTITUTIONAL PROVISIONS California Constitution Art. 1, § 14 occcccccccceccesceceeeeeecsnssstsesecevecassessseasseseseseaeasneeceeseesasessesssasseseeanens 17 United States Constitution VI Amendment ooo... iiccccccccsccceseeeccecssseeeeeeeesneeesseeeseeaseeeensesaaaaneeeees 15, 16, 21 Vii OTHER AUTHORITIES CALCRIM No. 1502 oo. eeceeeetecneeneecesnesnessecssesseneeeerseesesraseneeeneensesseey 9, 13 CALCRIM No. 1515 cee eccescceesseeteeneeceesnesessssessssenessseseessesseeeeeeegeenees 3, 10, 40 CALCRIM No. 1532 wo ceececeseeesetseceerseeesesseesesescsseenesseeseseeeseeeasensessaseaeeneseats 10 CALCRIM No. 3518oeseeesseeeeessseeessecsneesssesnasesseeesnaes Vesteeeeeceeeeseaneeeesneees 3 Vili QUESTIONS PRESENTED 1. Do the jury verdict and Court of Appeal opinion establish that defendantis guilty of violating Penal Code section 451, subdivision (b), which governsarson of “an inhabited structure or inhabited property?” 2. If so, should defendant’s conviction for violating Penal Code section 451, subdivision (b), be affirmed? 3. Does Penal Code section 654 andthis court’s rule in Kellett v. Superior Court (1966) 63 Cal.2d 822 (Kellett), bar retrial when a defendant impliedly consents to instructing the jury with a lesser related offense, but the jury doesnot return a verdict on that charge based on erroneously given instructions? INTRODUCTION In a first amended information, appellant was charged with arson of an inhabited structure. Penal Codesection 451, subdivision (b),' proscribes arson of“an inhabited structure or inhabited property.” The amendment omitted “or inhabited property”from the original charge. Arson of property, whichis a lesser-related offense of arson of an inhabitedstructure, was not charged by the prosecutor, but following an instructional conference ontheissue the trial court instructed the jury on that offense without objection by the defense. During argument, the defense urged the jury to convict appellant of the lesser offense of arson of property, or alternatively mere reckless burning of property. The jury convicted appellant of arson of an inhabited structure, but, as the result of thetrial court’s instruction, it did not return a verdictas to the lesser related offense of arson of property and that count remained unresolved. The Court of ' Future unlabeled statutory references are to the Penal Code. Appeal reversed appellant’s arson of an inhabited structure conviction for insufficient evidence because the motorhomeappellant burned was not a structure underthe law ofarson. This court should reverse the Court of Appeal’s decision and affirm appellant’s conviction for violating Penal Codesection 451, subdivision (b). The statutory provision sets forth alternative elements for the offense based on arson ofeither an inhabited structure or inhabited property. The jury’s verdict revealedit necessarily found every elementof section 451, subdivision (b), save the alternative element of property. However, the Court of Appeal’s opinion established the missing elementand, in his defense at trial, appellant concededthe alternative element. It follows that appellant’s guilt for violating section 451, subdivision (b), has been established. Even if the prosecution had not amendedthe charge to omit the “or inhabited property” language from the information, appellant’s defense would have been the same. Consequently, appellant’s due process rights were not violated and the case should be affirmed even though the evidence wasinsufficient to show a structure was burned. Alternatively, a retrial of the unresolved arson of property offenseis properbecause it constitutes a continuation of the original prosecution, rather than a new,successive prosecution barred by Penal Code section 654. When a defendant impliedly consents to be placed in jeopardy for a lesser related offense by failing to object to jury instructions and affirmatively urging the jury to convict on such offense, he necessarily consents to its resolution whether byconviction or acquittal. An instructional error, such as occurred here, merely delays resolution of the charge. Like any othertrial error, if a countis left unresolved by instructional error, the defendant’s jeopardy on that counthas not terminated. A retrial in such a case cannot be deemeda successive prosecution undersection 654 and does notviolate state or federal double jeopardy protections. Accordingly, this court should rule that when a defendant consents to be charged with an offense anda trial error subsequently occurs that renders the issue of guilt on that offense unresolved, the prosecutor mayretry the offense. STATEMENTOF THE CASE AND FACTS After several arguments withhis girlfriend one night, appellant used a vehicle to push an inoperable motorhomenextto the motorhome in which he and his girlfriend were living, and wherehis girlfriend was then sleeping. (1 RT 42, 48-54, 95-97.) Appellant doused the inoperable motorhomewith gasoline andsetit on fire. His girlfriend, who was awakened by her dogs, smelled smoke and gasoline, and heard crackling sounds and glass popping. She looked out the window and saw flames coming from the inoperable motorhome,aboutfour feet away. (1 RT 55- 56, 62, 202.) She saw appellant walking from the inoperable motorhometo the other side of the lot. (1 RT 58.) Fleeing the motorhome,she got out with her dogs just before the fire spread and engulfed it. The fire destroyed | both motorhomes. (1 RT 63-64, 103, 105, 107-108, 126-129.) The San Bernardino County District Attorney charged appellant with attempted murder (§§ 664/187) and arson of an inhabited structure (§ 451, subd.(b)), and alleged appellant caused multiple structures to burn (§ 451.1, subd. (a)). (1 CT 69-73 [First Amended Information].) Attrial, the court and both parties evidently believed that arson of property (§ 451, subd. (d)) was a lesser included offense of arson of an inhabitedstructure. (2 RT 284-287.) Accordingly, without an objection by the defense,thetrial court instructed the jury on the lesser offense, andinstructed the jury not to reach a verdict on that offense if it found appellant guilty of arson of an inhabited structure. (CT 118-119, 122; see CALCRIM Nos. 1515, 3518.) The defense urged the jury to convict appellant of either of the lesser offenses of arson of property or reckless burning of property. (2 RT 354, 358, 368-369.) | The jury found appellant not guilty of attempted murder, but guilty of arson of an inhabited structure. In accordance with thetrial court’s instructions, the jury did not return a verdict on the lesser offense of arson of property. The jury also returned a true finding that appellant caused multiple structures to burn (§ 451.1, subd. (a)). (1 CT 126-127, 260.) Subsequently,the trial court found true that appellant had prior convictions for residential burglary and two robberies, which constituted “strikes” and serious felony convictions (§§ 667, subds.(a)(1), (b)-(), 1170.12, subds. (a)-(d)). It also foundtrue three prison prior allegations (§ 667.5, subd. (b)). (1 CT 97, 262-265.) . Thetrial court sentenced appellant under the Three Strikes law to a 25-year-to-life sentence plus a determinate term of 23 years. The determinate term was comprised ofa five-year enhancementfor the burning of multiple structures, plus three consecutive five-year terms for each serious prior felony, and three consecutive one-year terms for each prison prior. (2 CT 297-298, 311-314.) Appellant appealed. On February 14, 2013, the Court of Appealfiled an unpublished opinionthat affirmed, but modified the judgment. The court heldthat the evidence did not support the arson of an inhabited structure conviction, reasoning the motorhomethat was burnedin this case wasnot a “structure” within the meaning of the arson law but was instead property. Having rejected appellant’s argumenthe did not act with malice in burning the motorhome, the court exercised its authority under section 1181, subdivision (6), modified the verdict and reduced appellant’s conviction to the lesser offense of arson of property (§ 451, subd. (d)). Because the court concluded the motorhomewasproperty,it struck the burning of multiple structures enhancement. Thecourt also struck two ofthe serious prior felony enhancements because the offenses were not brought and tried separately as required by section 667, subdivision (a). The court subsequently granted appellant’s petition for rehearing on the issue of whether arson ofproperty is a lesser included offense of arson of an inhabited structure such that it could properly exercise its discretion under section 1181, subdivision (6), and reduce appellant’s conviction from the greater offense to the lesser offense. In an opinionfiled April 30, 2013, the court found that arson of property wasa lesser related offense of arson of an inhabitedstructure and, therefore, outside the scope ofits authority to modify the conviction under section 1181, subdivision (6). In reversing and remanding the case with directions to dismiss, the court concluded that permitting a new trial on the lesser related offense “would violate the constitutional prohibition against placing a person twice in jeopardy for the sameoffense.” Respondentpetitioned for rehearing, arguing that double jeopardy did not preventa retrial of the lesser related offense. The Court of Appeal granted rehearing and issued a third (now divided) opinion that reversed and remandedto thetrial court with - directions to dismiss the case. (Slip Opinion, pub. Jan. 14, 2014 (hereinafter, “Opn.”).) Writing for the majority, Justice McKinsterfirst held the motorhomewasnota structure and, therefore, could not support a charge of arson of an inhabited structure. The majority further concluded that retrial on the lesser related offense of arson of property is barred under section 654’s prohibition against multiple prosecutions for the same act following an acquittal or conviction. The majority no longerrelied upon principles of double jeopardy. Instead, the majority looked to this court’s opinion in Kellett and concludedretrial constituted a new and separate prosecution of the same act. (Opn. at p. 9.) The majority acknowledged that the offense was before the jury in thetrial court’s instructions, however,it reasoned: Hadthe prosecutor charged the defendant with the lesser related offensein this case, the jury would have beeninstructed to render verdicts on both the greater and lesser charges. Because the prosecutor did not do so,there is no unresolved or pending charge on which to remandthis matter to thetrial court. (Opn.at p. 10.) In dissent, Justice Richli disagreed with the majority’s holding to dismiss the case because a dismissal provided appellant with an unwarranted windfall - a “get out ofjail free” card. (Dis. Opn.at p. 1.) The dissent focused its analysis on the impliedly amended charges. Relying on authority from this court and the Fourth District, the dissent concludedthat “the prosecution did effectively charge defendant with arson of property, because the jury was instructed on this offense, and because defense counseldid not object.” (Dis. Opn. at p. 2, citing People v. Toro (1989) 47 Cal.3d 966, 976 (Toro), disapproved on another ground in People v. Guiuan (1998) 18 Cal.4th 558, 568, fn. 3; Orlina v. Superior Court (1999) 73 Cal.App.4th 258, 263-264 (Orlina).) Justice.Richli reasoned that because the jury did not return a verdict on the offense of arson of property, the charge is “unresolved”andstill “pending”; the instructional error mischaracterizing the lesser related offense as a lesser included one did not implicate the concernsarticulated in Kellett. She therefore would have remanded the matter for a retrial on the arson of property count. (Dis. Opn. at pp. 2-3.) Respondentpetitioned this court for review. On April 23, 2014,this court granted the petition for review. On June 18, 2014, this court ordered briefing on two additional questions. ARGUMENT IL APPELLANT’S CONVICTION FOR VIOLATING SECTION 451, © SUBDIVISION (B), SHOULD BE AFFIRMED The jury convicted appellant of arson ofan inhabited structure under section 451, subdivision (b). Underthe instructions provided,the jury found that appellant willfully and maliciously caused the motorhometo burn, and that it was an inhabitedstructure. In reversing the conviction on the basis of insufficient evidence, the Court of Appeal concluded that the motorhomeappellant burned wasproperty, rather than a structure, within the meaningofthat section, which governs arson of“an inhabited structure or inhabited property.” Because the prosecutor had charged appellant with arson of an inhabited structure and the jury wasso instructed, the court reversed the conviction. However,the jury’s verdict, the opinion of the Court of Appeal, and appellant’s concession attrial that the motorhome was property all establish that appellant is guilty of arson of inhabited property under section 451, subdivision (b). Moreover, appellant had adequate notice ofthis alternative basis for his conviction. Therefore, this court should affirm the conviction. A. Additional Procedural and Factual Background On December15, 2009, the District Attorney filed an information charging appellant with arson of an inhabited structure or inhabited property (count 1; Pen. Code, § 451, subd. (b)) and attempted willful, deliberate and premeditated murder (count 2; Pen. Code, §§ 664/187, subd. (a)). The District Attorney alleged that appellant caused multiple structures to burn (Pen. Code, § 451.1, subd. (a).) It was further alleged that appellant had prior convictions within the meaning of section 667.5, subdivision (b). (1 CT 15-17.) In a first amended information,filed February 1, 2010, the District Attorney amendedthe charging language in count| to arson of an inhabited structure, striking the alternative language of inhabited property. The amended information additionally alleged appellant had prior convictions within the meaning of sections 667, subdivisions (a) and (b) through(i), and 1170.12, subdivisions (a) through (d). In all other respects, the charging language was unchanged. (1 CT 70.) Attrial, appellant maintained that the motorhomewasnota structure. (1 RT 230-233, 236-240.) The trial court determined it would instruct the jury on arsonofan inhabited structure and providethe statutory definition of structure, allowing the parties to then argue their positions to the jury. (1 RT 240-241 . In that sameruling, the trial court explicitly refused the * Thetrial court instructed the jury on arson of an inhabited structure as follows: The defendant is charged in Count One with arson that burned an inhabited structure. To provethat the defendantis guilty of this crime, the People must provethat: 1. The defendantset fire to or burned a structure, 2. He acted willfully and maliciously; AND 3. Thefire burned an inhabited structure. To setfire to or burn means to damage or destroy with fire either all or part of something, no matter how small the part. Someone commits an act willfully whenheor she doesit willingly or on purpose. Someoneacts maliciously when heor she intentionally does a wrongful act or when he or she acts with the unlawfulintent to defraud, annoy, or injure someoneelse. A structure is any building, bridge, tunnel, powerplant, commercial or public tent. (continued...) defense’s underlying requestto rule that a motorhome wasnota structure as a matter of law. (1 RT 241.) The defense did not call any witnesses. (2 RT 283.) During closing arguments, appellant’s counsel focused the jury’s attention on the lesser crimes of arson of property and unlawful burning of property. (2 RT 354- 356.) Appellant’s counsel argued to the jury as follows: We’vealready eliminated the structurepart of this becausethat’s not contained in any ofthe jury instructions; that a motorhomeis a structure. What we got is - we got now the property. We’re looking at the property because, yeah, there was a crime committed. He burned her property as a result ofrecklessly setting his own motorhomeonfire whichis not a crime. (2 RT 358.) Having concededthat appellant was guilty of unlawfully causing a fire of property, appellant’s attorney urged the jury to “[c]onvict him of what he did[.]” (2 RT 369.)° Regarding the attempted murder (...continued) A structure is inhabited if someonelives there and either(a)is presentor (b) has left but intends to return. . A person does not commit arson if the only thing burnedis his or her ownpersonal property, unless he or she acts with the intent to defraud, or the fire also injures someoneelse or someoneelse’s structure or property. (1 CT 118 (italics in original); see CALCRIM No.1502, Arson: Inhabited Structure.) 3 The trial court instructed the jury on the lesser offense of arson of property as follows: Arson is a lesser included offense to Count One. . To prove that the defendantis guilty of this crime, the People must provethat: . 1. The defendantset fire to or burned a structure or property; and 2. He acted willfully and maliciously. (continued...) charged in count 2, the defense argued that appellant did not harborthe mental state required, namely, he did not have specific intent to kill when he set the inoperable motor homeonfire. (2 RT 362-364.) | The jury acquitted appellant of attempted willful, deliberate and premeditated murder. (1 CT 128.) However, the jury convicted appellant of arson of an inhabited structure under section 451, subdivision (b), rejecting appellant’s arguments he did not cause the motorhome to burn with willful or malicious intent and that the motorhomewasa not a structure. (1 CT 126-127; see 1 CT 70.) Onappeal from the conviction, the Court of Appeal noted inits opinion,“[t]he facts are undisputed.” (Opn.at p. 3.) The Court of Appeal briefly recounted that appellant and his girlfriend lived in the motorhome (...continued) To setfire to or burn means to damageor destroy with fire either all or part of something, no matter how smallthepart. Someone commits an act willfully whenheor she doesit willingly or on purpose. Someoneacts maliciously when he or she intentionally does a wrongful act or when heor she acts with the unlawfulintent to defraud, annoy, or injure someoneelse. | A structure is any building, bridge, tunnel, powerplant, commercial or public tent. Property meanspersonal property. A person does not commitarson if the only thing burned ishis or her own personalproperty, unless he or she acts with the intent to defraud, or the fire also injures someoneelse or someoneelse’s structure, forest land, or property. (1 CT 118-119 (italics in original); see CALCRIM No.1515, Arson.) Thetrial court further instructed the jury on the misdemeanoroffense of unlawfully causing a fire. (1 CT 120; see CALCRIM No. 1532, Unlawfully Causing a Fire; § 452, subd. (d).) 10 that caught on fire after the fire appellant set to the inoperable motorhome spread, destroying both motorhomes. (/bid.) | The Court of Appeal determined that the motorhome wasnot a structure as a matter of law, but was property. Because there was no evidence to show the motorhomein which appellant and his girlfriend lived “was fixed to a particular location and, therefore, hadthe attributes of a building,” the Court of Appeal held that, “[flor purposes of the arson statute, defendant’s motor homeis property[.]“ (Opn. at pp. 6-7.) The court reversed the conviction on that basis, because the evidence did not support that appellant committed arson of an inhabited structure. (Opn.at p. 7.) B. Appellant’s Conviction Under Section 451, Subdivision (b), Is Supported by the Jury’s Verdict, the Court of Appeal’s Opinion, and Appellant’s Concession that the Motorhome Was Property The various subdivisions of section 451 describe different ways of committing the crime of arson.’ Section 451 fixes the termsof 4 Section 451 states as follows: A personis guilty of arson when he orshe willfully and maliciously sets fire to or burns or causes to be burned or who aids, counsels, or procures the burningof, anystructure, forest land, or property. (a) Arson that causes great bodily injury is a felony punishable by imprisonmentin the state prison forfive, seven, or nine years. (b) Arsonthat causes an inhabited structure or inhabited property to burn is a felony punishable by imprisonmentin the state prison for three, five, or eight years. (c) Arson ofa structure or forest land is a felony punishable by imprisonmentin the state prison for two, four, or six years. (continued...) ll imprisonmentfor the various ways in which arson is committed according to the injury or potential injury to humanlife involved. Relevant here, subdivision (b) of section 451 governs the malicious burning of “an inhabited structure or inhabited property.” For purposes of arson, “structure”is defined as “any building, or commercial or public tent, bridge, tunnel, or powerplant.” (§ 450, subd. (a).) “Property” is defined as “real property or personal property, other than a structure or forest land.” (§ 450, subd. (c).) The oft-cited standard for sufficiency of the evidence review requires an appellate court to “draw all inferences in support ofthe verdict that reasonably can be deduced and must uphold the judgmentif, after viewing all the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the elements of the crime beyond a reasonable doubt.” (People v. Jackson (1989) 49 Cal.3d 1170, 1199-1200.) Reversal of a conviction for insufficient evidence “is unwarranted unless it appears ‘that upon no hypothesis whateveris there sufficient substantial evidence to support [the conviction].’ [Citation.]” (People v. Bolin (1998) 18 Cal.4th 297, 331.) (...continued) (d) Arson ofproperty is a felony punishable by imprisonmentin the state prison for 16 months, two, or three years. For purposes of this paragraph, arson of property does not include one burning or causing to be burnedhis or her own personal property unless there is an intent to defraud or there is injury to another person or another person'sstructure, forest land, or property. (e) In the case of any person convicted of violating this section while confinedin a state prison, prison road camp,prison forestry camp,or other prison campor prison farm, or while confined in a county jail while serving a term of imprisonment for a felony or misdemeanorconviction, any sentence imposed shall be consecutive to the sentence for which the person was then confined. 12 Here, the jury’s verdict reveals that it necessarily found appellantset fire to the motorhomewith the requisite intent, and that the motorhome was inhabited. (1 CT 118; see CALCRIM No.1502, Arson: Inhabited Structure.) The Court of Appeal determined it did not constitute a structure as a matter of law, but was instead property. (Opn.at pp. 6-7.) Appellant concededthis very factat trial. (2 RT 354-356.) Therefore,all of the facts required for a conviction under section 451, subdivision (b), are present. In its sufficiency of the evidence review the Court of Appeal did notfully contemplate the impact of appellant’s concession the motorhome was property whenit reversed the conviction. This was error. Under these circumstances, where the record substantially establishes all material facts required to support the conviction,it should be affirmed. (People v. Bolin, supra, 18 Cal.4th at p. 331.) Specifically, the doctrine of concession applies in this case so that appellant’s concession the motorhome was property, along with the jury’s factual findings on the other elements, supports a conviction under section 451, subdivision (b), for arson of inhabited property. The court’s decision in People v. Peters (1950) 96 Cal.App.2d 671 (Peters), is instructive on the principles underlying the concession doctrine. In Peters, the defendant was charged with manslaughter. At trial, he did not contest the fact of the fight andits details that resulted in the victim's death, but claimed instead that he killed the victim in self-defense. Upon conviction, defendant claimed on appealthat there was insufficient evidence of the cause of death but the reviewing court rejected his contention. Althoughthe facts surrounding the fight including the stabbing were placed in evidence, there was no evidenceofthe cause ofthe victim's death. Evenso, the court observed “the cause of deathis a fact, which, like every other fact, need not be proved, even in a criminal case, if admitted or 13 conceded by defendant.” (Peters, supra, 96 Cal.App.2d at p. 675.) The court acknowledgedthat “[i]n a criminal case a defendant is not called upon to make explanation, to deny issues expressly (his plea of not guilty does that for him), nor is he required to point out to the prosecutionits failure to makea case against him orto prove any link in the required chain ofguilt.” (Id. at p. 676.) However,the court recognized that a defendant “cannot mislead the court and jury by seemingto take a position asto the issues in the case and then on appealattempt to repudiate that position.” (/bid.) The Peters court concludedthat “[i]t would be a miscarriage ofjustice to set aside a verdict found by a jury onall issues which defendantat the trial believed necessary to be submitted to the jury. After all, a criminal case or court proceedingis not a game in which participants may be misled by a defendant's attitude and conductatthetrial, and then the verdict be set aside on appeal, because defendant contends there wasnoproofofa fact which he had conceded, not by express word, but by conduct.” (Peters, supra, 96 Cal.App.2d at p. 677; see People v. Pijal (1973) 33 Cal.App.3d 682, 697 [rule is well established that defendant cannot mislead the court and jury by seemingto take a position on issues and then disputing or repudiating the same on appeal]; see also People v. Garcia (1984) 36 Cal.3d 539, 555 [in the contextofjury instructions that fail to instruct on an element, this court recognized the “concession exception” as one of several exceptions to automatic reversal based on that type of instructional error]; People v. Flood (1998) 18 Cal.4th 470, 505 [defendanteffectively conceded peaceofficer element of offense on which the jury was not instructed in the language of the offense but where defendant requested instruction that included phrasing instructing the jury the officers were peace officers, did not object to the trial court informing the jury of same, did notrefer to this element ofthe offense duringtrial, did not argue that the prosecution failed to prove it beyond a reasonable doubt, did not ask the 14 jury to consider it, presented no evidenceon the peace officer element and did not contest the prosecution’s evidence on the issue]; People v. Richie (1994) 28 Cal.App.4th 1347, 1356 [where defendant pursueda trial strategy of conceding guilt on a lesser offense to obtain acquittal on others, failure to instruct on uncontested elementof the lesser offense is not reversible].) The concession doctrine applies in the present case because appellant concededthat the motorhomewasproperty. The jury’s conclusionthat the motorhomewasa structure does not diminish in any way or negate appellant’s concession. Appellant’s concession supported his defensesat trial, in which he affirmatively argued that he did not cause multiple structures to burn andthat he wasonly guilty of the least offense of reckless burning ofproperty. He maynot repudiate this position on appeal. Under the concession doctrine, appellant’s concession serves to foreclose any claim on appealthat his conviction cannot stand becausethe evidence introducedat trial does not support it. (People v. Pijal, supra, 33 Cal.App.3d at p. 697; accord Brown v. Boren (1999) 74 Cal.App.4th 1303, 1316 [“a litigant may not change his or her position on appeal and assert a new theory”]; Fontana v. Upp (1954) 128 Cal.App.2d 205, 211 (“Where parties have taken a certain position duringthetrial, they cannot adopt a different position on appealby raising a new issue whichthe other party wasnotapprisedofat the trial”].) Nor can appellant now claim that the jury hadto find that that the motorhome wasproperty for the conviction to stand. Under the Sixth Amendmentrightto a jury trial, a defendantis entitled to have the jury decide every issue of fact material to guilt. The rule is different as to facts that are not at issue in the trial, as here where appellant conceded the fact that the motorhome wasproperty. “‘In criminal cases, the rightto jurytrial is, primarily, a right to have the jury rather than a court decide every “issue of fact” arising in thetrial of the criminal charge. But when a fact is undisputed,or the parties have stipulated to its 15 existence, there is no “issue of fact” for the jury to resolve, and this aspect of the Sixth Amendmentrightto jury trial is not implicated. Otherwise stated, the federal Constitution gives an accused noright to have the jury decide the truth of a fact that the accused has elected not to contest.’” (People v. Moore (1997) 59 Cal.App.4th 168, 185-186,fn. 18, quoting People v. Harris (1994) 9 Cal.4th 407, 459, fn. omitted (conc. & dis. opn. of Kennard, J.).) The disputed fact at trial was whether the motorhome was a structure. (2 RT 341, 343-345 [prosecutor’s closing argument]; 2 RT 353-354, 359-360 [defense closing argument].) Appellant “elected not to contest” that it was property. In short, the judgment of conviction should be deemedto incorporate the uncontested fact the motorhome wasproperty and affirmed by this court not only for this reason, but for the reasons discussed below. C. This Court Should Affirm Appellant’s Conviction for Section 451, Subdivision (b) Asdiscussed in the preceding section, a violation of section 451, subdivision (b) is supported by the jury’s verdict, the Court of Appeal’s opinion, and appellant’s concession. Because appellant had a meaningful opportunity to defend against a charge setting forth section 451, subdivision (b), even in light of the prosecutor’s later decision to amendthe charge and omit “or inhabited property” from it, his conviction should be affirmed. The record establishes that appellant received notice ofthe arson of an inhabited structure or inhabited property charge from the evidence presented at the preliminary hearing. Appellant rejected multiple pretrial offers to settle his case, which always contemplated arson of an inhabited structure or inhabited property as the charged offense. Following the prosecutor’s amendmentandattrial, the defense strategy focused on the lack of evidence to support the attempted willful, deliberate, and 16 premeditated murder count (and the defense prevailed). Appellant admitted he had engagedin unlawful conduct in burning the motorhome. His essential defense, similar to his attempted murder defense, was that he did not harbor the required mentalstate for arson. He argued his conduct of causing the motorhometo burn wasreckless. To be sure, appellant also argued the motorhomewasnota structure. He advanced the argumentit was property, ultimately conceding he was guilty of recklessly causing property to burn, a misdemeanor. But from the defense arguments it is apparent that even if the prosecutor had not amendedthe charge to omit “or inhabited property,” they would have been the same. It would beillogical to presume any difference; appellant’s argument refuting the required mentalstate for arson would still be pertinentas well as his argumentdisputing the motorhome wasa structure, given the burning of multiple structures enhancement allegation. The facts would still demonstrate that appellant was guilty of unlawful conduct and an argumentthat his conduct amountedto the least offense possible, would still have been his best defense. Underthese circumstances, appellant could not have been prejudiced by the prosecution’s amendmentnor can he now claim an affirmance by this court amounts to an ambushofhis ability to defend against the charges. 1. Appellant Received Adequate Notice to Prepare a Meaningful Defense Against a Charge Arson of an Inhabited Structure or Inhabited Property “Both the Sixth Amendmentof the federal Constitution and the due processguaranteesofthe state and federal Constitutions require that a criminal defendant receive notice of the charges adequate to give a meaningful opportunity to defend against them.” (People v. Seaton (2001) 26 Cal.4th 598, 640.) Article I, section 14 of the California Constitution 17 states that “Felonies shall be prosecuted as provided by law,either by indictmentor, after examination and commitmentby a magistrate, by information.” Aspart of the statutory framework for charging a felony, section 871 provides: “If, after hearing the proofs, it appears either that no public offense has been committed or that there is not sufficient cause to believe the defendant guilty of a public offense, the magistrate shall order the complaint dismissed and the defendant to be discharged.” Section 872, subdivision (a), provides in relevant part: “If, however, it appears from the examination that a public offense has been committed, and thereis sufficient cause to believe that the defendantis guilty, the magistrate shall make or indorse on the complaint an order... ‘that he or she be held to answerto the same.’” (Italics added.) | In order to discharge those duties, the magistrate must, in a case like the current one, hold the accused to answer if the evidence at the preliminary hearing showsthat the defendant willfully and maliciously set fire to or caused to burn an inhabited structure or an inhabited property. (§ 451, subd. (b).) The preliminary hearing proceedings not only confer jurisdiction on thetrial court but protect the accused by limiting the prosecution’s ability to force an accusedto trial on an information “which is not within the scope of the evidence taken.” (People v. Fyfe (1929) 102 Cal.App. 549, 553.) Thus, notice of circumstancesof the offense “is given, not by detailed pleading, but by the transcript ofthe evidence before the committing magistrate. [Citation.]” (People v. Randazzo (1957) 48 Cal.2d 484, 489; see § 1009 [prohibiting amendmentto an information to charge “an offense not shownby the evidence taken at the preliminary examination”].) . In the current case, the preliminary hearing took place on December 17, 2009. (1 CT 18-65 [Reporter’s Transcript of preliminary 18 hearing proceedings].) At the start of these proceedings, appellant waived arraignmentonthe first amended complaint. (1 CT 21.) The first amended complaint, filed on December 11, 2009, charged appellant in count 1 with arson of an inhabited structure or property under section 451, subdivision (b), alleged that appellant caused multiple structures to burn within the meaning of section 451.1, subdivision (a)(4), and charged appellant in count 2 with attempted willful, deliberate, and premeditated murder under sections 664 and 187, subdivision (a). (1 CT 9-11.) Appellant’s attorney stated, “Your Honor,I’ve had a new offer onthis case,it’s eight years. AndI’ve explained to Mr. Goolsby that with the change alleging a first degree attempted murderthat’s life top. He does not wanteightyears.” | (1 CT 21.) Previously, appellant had rejected another offer by the prosecutorto settle the matter. The clerk’s minutesof the proceeding on December 10, 2009, state: “OFFER/EXPOSURE PLACED ON THE RECORD; OFFER REJECTED/WITHDRAWN.” (1 CT 8.) The only substantive difference between the charges in the original complaintand the first amended complaint concerned the prosecutor’s attempted murder allegation. (1 CT 1-3 [original complaint], 9-11 [first amended complaint].) The evidencepresented at the preliminary hearing, which was the sameas the evidencesetforth attrial, showed that appellant willfully and maliciously had burned the motorhome, which was alternatively referenced as an inhabited structure or inhabited property in the complaint. (1 CT 9- 11; § 451, subd. (b).) In argumentat the preliminary hearing, the defense contended that when appellant set his motorhomeonfire, he was only trying to scare his girlfriend. Focusing on the attemptedfirst degree murder count, appellant’s attorney argued thatif appellant had the requisite intent to kill, he would have poured gasoline directly on the motorhomein which his girlfriend was sleeping. Appellant’s attorney deemedthe attempted 19 murder count “a bit heavy,” and stated that appellant should not be held to answeron that count. (1 CT 61-62.) Thetrial court rejected the defense’s interpretation of the evidence, concluded that there was probable cause to believe that appellant committed the offenses alleged in the first amended complaint, and held him to answerto those charges. (1 CT 63.) Theevidence taken at the preliminary hearing establishes appellant had propernotice of the circumstances of the arson offense charged under section 451, subdivision (b). The testimony taken at the preliminary hearing on whichthetrial court’s order requiring appellant to answeris based, clearly set out the offense of arson of an inhabited structure or inhabited property. (1 CT 24-26, 36-39, 42-43, 50-55.; People v. Holt (1997) 15 Cal.4th 619, 672.) Appellant did not advance any credible arguments to refute the arson countat the preliminary hearing. The defense focus on the attempted first degree murder count cast a themethat continued throughthe trial and on which he ultimately prevailed: that appellant, who had admittedly burned the motorhomes, did not harbor an intentto kill. In short, the scope of the evidence taken at the preliminary hearing satisfied the constitutional and statutory pleading and proof requirements. 2. At No Time After the Charge Was Amended WasAppellant Deprived of a Meaningful Opportunity to Defend Against the Arson Count and He Cannot Claim His Due Process Right to Notice Would Be Prejudiced by an Affirmance of the Conviction As noted above,the basic principles of due process guarantee a criminal defendant the fundamentalright to be informed of the nature and cause of the accusations against him so that he may have a meaningful opportunity to prepare an adequate defense against every issue raised by 20 those accusations. (U.S. Const. Amend. VI; Cole v. Arkansas (1948) 333 U.S. 196, 201 [68 S.Ct. 514, 92 L.Ed. 644].) Notice must be sufficiently detailed to enable a defendantto addressall the relevantissues in his defense. (Russell v. United States (1962) 369 U.S. 749, 766-68 [82 S.Ct. 1038, 8 L.Ed.2d 240].) | After the preliminary hearing and appellant’s rejection ofthe prosecution’s offersto settle the case, the prosecutor amended the information by omitting the “or inhabited property”reference from section 451, subdivision (b), in count 1. In this case, the variance between the charging language and the offense on which respondentis asking this court to affirm is of no moment. As discussed above, a conviction under section 451, subdivision (b), is established by the jury’s verdict, the Court of Appeal’s opinion, and appellant concession. Although the prosecutor proceeded underthe theory that appellant burned an inhabited structure, appellant’s due process right to an adequate defense was not prejudiced. Appellantreiterated his argumentbefore the jury that he did not have the intentto kill, and he prevailed. Pertinent here, at trial appellant’s counsel developed a strategic defense to the arson count. Appellant’s counsel recognizedthat appellant had engaged in wrongful conduct, there were no issues in this prosecutionasto the identity of the arsonist or that the act of setting fire was somehow justified. There were twofacets to the defense strategy: the absence ofthe required mental state for arson and the motorhomeas property. Appellant’s counsel arguedto the jury that appellant had not willfully and maliciously set the fire to the inoperable motorhome. Counseltold the jury that appellant was “sending[his girlfriend] a message”whenhesetfire to the inoperable motorhome because he wanted her to get out. The spreading ofthe fire to the one in which she slept, counsel argued, was accidental. Hetold the jury appellant’s conduct underthe law was, at most, reckless. (2 RT 357.) 21 Counselalso argued that the motorhomewasnot a structure but property. As discussed in greater detail below under ArgumentII, counsel’s motorhome-is-property argument provided the jury an alternative lesser count on which to convict appellant. (Arg.II, infra, at pp. 37-38.) - For purposesof discussion here, it suffices to say appellant’s trial strategies allowed him to admit somelevel of culpability and argue for the jury to convict him ofthe least offense of recklessly causing a fire of property, a misdemeanor. This argument wasalso essential to rebut the sentence enhancementthat alleged appellant “caused multiple structures to burn.” (§ 451.1, subd. (a)(4), italics added.) To avoid a truefinding of this sentence enhancement, appellant had to argue that the motorhome was property. Thus, because the motorhome-is-property argumentwascritical to this aspect of the case, even if the information had remained unchanged and continuedto alternatively charge arson of an inhabited structure or inhabited property, and the jury had beensoinstructed, the defense arguments would not have been any different. Further, it cannot reasonably be claimed that appellant would have argued the motorhomewasneither a structure or property if the information had remained unchanged. The law of arson defines property as real or personal, “other than a structure or forest land.” (§ 450, subd. (c).) It is inconceivable that appellant would have argued the motorhome,if not a structure or property, was forest land. The circumstancesof the present case are not the same as those where the prosecution misleads a defendantinto believing he will be defending against one theory before raising a new theory forthe first time at the conclusion oftrial to the detriment of the defense. The latter circumstances are illustrated in the Ninth Circuit's opinion in Sheppard v. Rees (9th Cir.1989) 909 F.2d 1234 (Sheppard). In that case, the defendant was charged with murder and “[t]he case wastried before a jury on the theory that the killing was premeditated and deliberate.” (/d. at p. 1235.) “At no 22 time duringpretrial proceedings, opening statements, or the taking of testimony was the conceptof felony-murderraised, directly or indirectly.” (Ibid.) However, on the day set for closing arguments, the prosecutor asked for instructions on robbery and felony murder, and, over strenuous objection by Sheppard’s counsel, the trial court agreed to give those instructions. (/bid.)° The State of California eventually concededthat underthe circumstancesof the case, Sheppard was “‘denied adequate notice and opportunity to prepare to defend against a charge of felony-murder.’”” (Id. at p. 1236.) The Ninth Circuit agreed that the government had ‘ambushed’ the defense with a new theory of culpability,” noting that “IdJefense counsel would have added an evidentiary dimensionto his defense designed to meet the felony-murdertheory hadhe knownat the outset what he was up against.” (/d. at p. 1237.) That is not the case here. Appellant cannot claim that he was deprived of a defense by wayof the prosecutor’s amendment. Unlike Sheppard, the felony complaint included “inhabited property”in the arson > Sheppard’s counsel objected as follows: I object strenuously to the giving of any instructions based on any theoryoffirst degree murder on the felony-murdertheory. .. Itnever occurred to methat the People would ever go forward on a theory of felony-murder,. I would note that at no time has a‘robbery ever been charged in this case. It was never charged in the Municipal Court; there was no holding on that issue by the magistrate at the end of the preliminary hearing. There was no robbery chargeeverfiled in Superior Court in an Information. Mrs. [Prosecutor] has filed several amended Informationsthat never included a robbery charge. And suddenly, after we've already goneoverall the instructions, we've gone homeand prepared our arguments, the time comes to argue the case, Mrs. [Prosecutor] is submitting a felony-murder theory. (Sheppard, supra, 909 F.2d at pp. 1235-1236.) 23 charge,all offers that appellant rejected contemplated arson of an inhabited structure or inhabited property, the magistrate’s order requiring appellant to ariswer was based upon the evidence introduced at that preliminary examination that appellant burned an inhabited structure or inhabited property. (Sheppard, supra, 909 F.2d at pp. 1235-1236.) As mentioned, the information was amended beforetrial but the amendment did not prevent appellant from setting forth any defensesat trial. Specifically, the motorhome-is-property argument hadto be asserted because of the sentence enhancementthat wasalleged that focused on the burning of structures and because the defense wantedto place before the jury thelesser offense of recklessly causing a fire to property. (See People v. Gallego (1990) 52 Cal.3d 115, 188-189 [court rejects Sheppard claim that due processright to adequate defense wasviolated by trial court’s instruction on felony murder wherethe “defendant himselftestified that the murders were committed while he ... w[as] engaged in a robbery[.]”]), It cannot be said that his defense arguments would have been any different had arson of an inhabited structure or inhabited property been chargedin the alternative. In other words, an affirmance by this court would not be by ambush because arson of inhabited property does not adds an “evidentiary dimension”that was not contemplated by the defense. (Sheppard, supra, 909 F. 2d at p. 1237.) Appellant cannot reasonably claim otherwise. Respondent recognizes that, during a mid-trial hearing on the prosecutor’s proposed special | instruction on “structure,” which was denied by thetrial court, appellant’s counsel proclaimed that the only reason appellant proceeded to trial was because of the way the prosecutor had charged the arson count. Counsel said he believed that the elements of the offense could not be met because a motorhome wasnota structure under the law of arson. (1 RT 233, 240.) Counsel’s rhetoric in opposition to the prosecutor’s proposed special 24 instruction does not support anyclaim of ambush. The record of counsel’s conductbelies any such assertion. Appellant was charged with attempted murderand,prior to the preliminary hearing, the prosecutor amendedthe felony complaint to charge attemptedfirst degree murder. The defense turned downthe prosecution’s eight-year offer to settle the case. (1 CT 121.) The attempted first degree murder count wasa significant aspect of the defense case and carried the potential greatest penalty. (§ 664, subd. (f).) Appellant could not then and cannot now claim that the prosecution’s amendmentto the arson count wasthe catalyst for his decisionto gototrial whenthe record clearly demonstrates his decision to goto trial was based upon his unwillingnessto settle the matter before any amendments to the arson count were made. (See People v. Ardoin (2011) 196 Cal.App.4th 102, 133-134 [noting that to the extent defense counsel “may not have argued against felony-murderliability in as much detail as he, upon subsequent reflection, would have liked, ... defense counsel knew the issue had been presented and took the opportunity to vigorously contestit” and noting the “right to due process guarantees an opportunity for effective presentation of a defense, not the presentation of a defense thatis as effective asa defendant mightprefer”].) In sum,the fact that the first amended information did not contain the “or inhabited property” language in no way deprived appellant of an adequate defenseand did not prejudice his defense. At trial, appellant admitted that he burned the motorhome, which he conceded wasproperty, and argued his did not havethe required mentalstate for arson. Appellant did not and could notdispute that he lived in the motorhomewithhis girlfriend. Appellant’s trial strategies allowed him to rebut the sentence enhancementallegation and admit somelevel of culpability, which was reasonable under the circumstances, but argue for the jury to convict him of the least offense of recklessly causinga fire of property. Thesestrategies 25 and defenses would have been no different had the arson count been charged using the alternative “or inhabited property” language. Accordingly, this court should affirm appellant’s conviction undersection 451, subdivision (b). II. PENAL CODE SECTION 654 DOES NOT PREVENT RETRIAL OF AN OFFENSE PROPERLY ADDED IN THE ORIGINAL PROSECUTION, BUT WHEREAN INSTRUCTIONAL ERROR RESULTEDIN NO VERDICT BEING RETURNED Alternatively, when a defendant impliedly consents to being placed in jeopardy of a conviction on a uncharged lesser related offense, urges the jury to so convict as analternative to the greater offense, and an - instructional error occurs that results in no verdict being returned,a retrial of the lesser related offense to resolve the question of guilt is proper because it constitutes a continuation ofthe original prosecution, rather than a new,successive prosecution barred by section 654.° Because the jury here did not makea finding on arson of property as instructed, jeopardy has not terminated as to that offense. Therefore, a retrial on the offense of arson of property does not implicate, andis not prevented by, state or © Respondent’s alternative argumentis premised on arson of property as constituting a lesser related offense of arson ofan inhabited structure. The Court of Appeal’s ruling on this point, not challenged here, wasthat arson of property is not necessarily included in the charged offense of arson of an inhabited structure because the charged crime did “not include all of the elements of the lesser” and arson of property requires “oroof the property either did not belong to the defendant[...], or in burning or causing one’s own property to burn, ‘there is an intent to defraud or there is injury to another person or another person’s structure, forest land or property.’ (§451, subd. (d).)” (Opn.at p. 8.) The limitation of burning one’s ownproperty in section 451, subdivision (d), does not exist in section 451, subdivision (b). Therefore, for the same reasonsrelied upon by the Court of Appeal, arson of property is not necessarily included in arson of inhabited property. 26 federal principles of double jeopardy. Retrial to resolve the issue ofguilt is proper under such circumstances. A. Additional Relevant Procedural Background Attrial, there were two disputed issues related to the arson count: whetherappellant burned a structure and whether he did so with malicious intent. The former issue was argued extensively at several points during trial, specifically in the context of instructions. (1 RT 141-148 [defense motion to exclude prosecution’s expert reference to “structure”]; see 2 RT 278-280 [expert testimony]; 1 RT 146-147, 228-242 [prosecutor’s special instruction on structure denied]; 1 CT 224.) Thetrial court determinedit would instructthe jury as to structure under the statutory definition, and the parties could argue their positions to the jury. (1 RT 240-241.) The defense did not call any witnesses. (2 RT 283.) Before closing arguments and outside the presence of the jury,the trial court stated that it had been “working on”verdict forms. The trial court describedto the parties a “decision tree” that the jury might utilize to eliminate the greater crime before finding guilt on a lesser crime. Thetrial court explained there were a series questions that the jury had to determinerelating to “whether or not the burning was done with malice which would makeit arson as opposed to unlawfulsetting of a fire,” and “whether or not [the motorhome] wasinhabited,” andlastly, “whether or not it was a structureor just personalproperty.” (2 RT 284.) The trial court indicated to the prosecutor and appellant’s attorney that it “did everything as lesser-includeds.” (2 RT 285.) The prosecutor explicitly agreed to the lesser offense instructions and verdict options proposedbythetrial court, which included arson of property and identified all of the lesser offenses as lesser included offenses. (2 RT 284-287.) Appellant’s attorney spoke onthe matteralso. In responseto thetrial court’s inquiry concerning the proposed instructions 27 and verdict forms, appellant’s attorney stated he “understood where [the trial court was] going.” (2 RT 285.) During closing arguments, appellant’s counsel focused the jury’s attention on the crimes of arson of property and unlawful burning of property. (2 RT 354-356.) Appellant’s counsel argued to the jury that appellant committed a crime by recklessly burning his motorhome, which wasproperty, and urged the jury to “[c]onvict him of what he did[.]” (2 RT 358, 369; see 1 CT 118-119, 120.) B. Section 654, as Construed by This Court in Kellett, Does Not Apply to Prevent Retrial of Charges Properly Before the Jury in the Original Prosecution In cases where a defendant is charged with and convicted of an offense, and that offense is reversed on appeal, an issue arises as to whether section 654 posesa barto the defendant being charged with a related offense for the same act. Subdivision (a) of section 654 provides as follows: An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision. An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other. This court explained the application of section 654to a new prosecution in Kellett. Simply put, the rule in Kellett is concerned with new and separate prosecutions of offenses that were never before considered by a jury, but are based on the sameact or conduct of an earlier prosecution. (Kellett, supra, 63 Cal.2d at p. 827.) In that case, Kellett was charged with misdemeanorbrandishing of a firearm (§ 417), and ina second case based on the samefacts, with possessing a concealable weapon 28 by a felon (§ 12021). After pleading guilty to the misdemeanor, Kellett sought to dismiss the second case against him.In holding the section 12021 charge should have been dismissed undersection 654, this court reasoned that where joinderof offenses is proper, closely related crimes based on the sameact or conduct “must be prosecutedin a single proceeding”and if they | are not broughtin “the initial proceedings” subsequent prosecution is barred. (Kellett, supra, 63 Cal.2d at p. 827; see § 954 [requiring joinder of related offenses in a single prosecution].)’ The provision of section 654 prohibiting multiple prosecutions “is a procedural safeguard against harassment.” (/d. at p. 825.) Section 654 operates in complete accord with section 954. The court in Kellett illustrated the balance between the two sections with the following hypothetical. If a defendant blows up an airplane killing all on board, he is properly subject to greater punishment than if he killed one person. However,it is not true that he is properly subject to successive prosecutions for each airplane passenger’s death. 7 The full text of section 954 states as follows: An accusatory pleading may charge twoor more different offenses connected together in their commission,or different statements of the same offense or two or more different offenses of the same class of crimes or offenses, under separate counts, and if two or more accusatory pleadingsare filed in such cases in the same court, the court may order them to be consolidated. The prosecution is not required to elect between the different offenses or counts set forth in the accusatory pleading, but the defendant may be convicted of any numberofthe offenses charged, and each offense of which the defendant is convicted mustbe stated in the verdictor the finding of the court; provided,that the court in which a case is triable, in the interests ofjustice and for good cause shown, mayin its discretion order that the different offenses or counts set forth in the accusatory pleading betried separately or divided into two or more groups and each ofsaid groupstried separately. An acquittal of one or more counts shall not be deemed an acquittal of any other count. 29 This court explained in Kellett, “It would constitute wholly unreasonable harassment in such circumstances to permittrials seriatim until the prosecutoris satisfied with the punishment imposed.” (/d. at pp. 825-826.) Section 954 demonstrates the Legislature’s intent to require joinder of related offenses in a single prosecution. Joinder of related offenses prevents harassmentbut also “avoids needless repetition of evidence and saves the state and the defendant time and money.” (/d. at p. 826.) The Court of Appeal’s opinion in Sanders v. Superior Court (1999) 76 Cal.App.4th 609 (Sanders I), is instructive on the interplay between sections 654 and 954 and the application of the rule in Kellett. In Sanders IT, the issue was whether, following the reversal of the defendant’s convictions on ten counts of grand theft for insufficient evidence, the prosecution could property file new charges of forgery and presenting false documents that were based upon the sameactsas the original prosecution for grand theft. The appellate court determined this was error and granted the defendant’s petition for writ of mandate. (Sanders II, supra, 76 Cal.App.4th at pp. 612-613, 617.) In its analysis, the court read the provision in section 654 prohibiting multiple prosecutions and section 954 together and concluded Kellett error occurred. (/d. at p. 614.) The evidence to support the new charges was presentedin the original prosecution against Sanders. However, unlike the present case, the jury was not instructed as to those offenses in the original prosecution. (See People v. Sanders (1998) 67 Cal.App.4th 1403, 1414, 1417-1418 [appeal in original prosecution on sufficiency of evidence claim] (SandersJ).) Therefore, because the jury in Sanders I was not so instructed, it was legally impossible for it to consider whether the defendant wasguilty of any of those related crimes. Thus, the subsequent information filed by the prosecution contained new charges on whichit sought to commence a new 30 and successive prosecution in violation of the Kellett rule. (SandersII, supra, 76 Cal.App.4th at p. 617.) Morerecently, the Third District addressed a claim that the prosecutor proceeded oncharges against the defendant based on the sameact or conductofan earlier prosecution. In People v. Valli (2010) 187 Cal.App.4th 786 (Valli), the defendant was acquitted of murder, attempted murderand being an ex-felon in possession of a gun. Immediately upon his acquittal, the defendant wasarrested and charged with two counts of felony evading based on evidencethat had been introducedatthefirst trial to show defendant's consciousnessofguilt. (/d. at p. 790.) Prior to the secondtrial, the defendant brought an unsuccessful motion to dismiss the evading counts onthe basis of section 654 as interpreted in Kellett. (Ibid.) On appealofthatruling, the Valli court acknowledgedthe charges against the defendant were a matter of the prosecutor’s discretion. The court aptly noted that a requirement for prosecutors to proceed onall known charges simultaneously would have the adverse effect of “impelling a prosecutorfiling on one chargeto throw the book at the defendantin order to prevent him from acquiring immunity against other potential charges and to protect the prosecutor from accusations of neglect of duty. [Citation.]” (/d.at p. 801.) By contrast, the rule of Kellett more appropriately tempers the prosecutor’s charging discretion by requiring joinder of offenses related by the defendant’s conduct. The Valli court ultimately concludedthatthe rule of Kellett was not violated by the felony evadingtrial because,“although the People relied in part on proofofthe evading in order to prove the murder, the necessary interrelation of murder and evading is missing; the sameact or course of conduct did not playa significant role in each.” (Ibid.) The court explained, “Simply using facts from the first prosecution in the subsequent prosecution doesnottrigger application of Kellett.” (dd. at p. 799.) On this 31 point, the Valli court distinguished Sanders IJ, where “the same conduct was at issue in both prosecutions.” (/d. at p. 802; see also People v. Cuevas (1996) 51 Cal.App.4th 620, 624, and cases cited therein [Ke/lett does not require that offenses committed at different times and at different places must be prosecuted in a single proceeding].) _ Innearly five decades ofjurisprudence, Kellett’s principles have remained unchanged: new chargesthat are based on the same conduct of a failed earlier prosecution are not permitted. Here, the majority relied exclusively on Kellett. The majority acknowledgedthatthe trial court instructed the jury on the offense of arson of property. (Opn. at p. 9.) But the majority applied Kellett in a wholly new context when it concluded that retrial of the unresolved arson of property count was foreclosed on the basis of Kellett even thoughthe jury considered the offense in the original prosecution. Thesettled rule in Kellett is concerned with new and separate prosecutions of offenses that were never before considered byajury, but are based on the sameact or conduct ofan earlier prosecution. (Kellett, supra, 63 Cal.2d at p. 827.) In stark contrast to a situation where wholly new chargesarefiled, retrial in the present case cannot be deemed a new or successive prosecution under Kellett because thelesser related offense wasbefore the jury as a separate count. (Cf. Sanders I, supra, 76 Cal.App.4th at p. 617 [prosecution filed subsequent information that contained new charges on whichit sought to commencea new and successive prosecution in violation of the Kellett rule].) Retrial does not amount to unreasonable harassment when a defendant has agreed to an uncharged lesser offense and, because of aninstructionalerror, the jury does not return a verdict onit, leaving it unresolved. (Kellett, supra, 63 Cal.2d at p. 827.) Retrial of the unresolved counthere is properly viewed.as a continuation of the original prosecution, rather than a new and 32 successive prosecution within the meaning of section 654 as construed by Kellett. C. Appellant Impliedly Consented to Add the Uncharged Offense; Any Claim the Jury Was Improperly Discharged Whenit Failed to Declare a Verdict as to This Offense Is Forfeited, Retrial Is Proper to Resolve the Question of Guilt Although arson of property wasnotoriginally charged, appellant impliedly consented to allow the jury to consider this lesser related offense. Hedid so in two ways: (1) by his tacit agreementto the instructions and (2) by his affirmative conduct during argumenturging the jury to convict him onthe lesser. As the dissent concluded, any misunderstanding asto the nature of the arson of property offense as a lesser included offense does not alter the conclusion that appellant supplied valid consent. (Dis. Opn.at p. 3.) This is so becauseit did not matter to the defense how the count was classified; it only mattered that it was put before the jury forits consideration. Nor does the instructionalerror that allowed the jury to be discharged without declaring a verdict on the lesser related offense prevent retrial. Appellant forfeited any claim oferror in the taking of the verdict by failing to bring theerrorto thetrial court’s attention. 1. The Rule of Toro and Implied Consent Controls Aninformation can be amended with an uncharged lesser related offense when suchoffense is put before the jury by way ofjury instruction without objection by the defense or when the defense urges the jury to convict of such offense. Under the facts ofthis case, both rules apply. The information was amendedto addthe offense of arson of property because 33 appellant’s attorney did not object to the court’s instructions and he affirmatively urged the jury to find him guilty of burning property. Generally, a defendant may be convicted of an uncharged crime only if it is a lesser included offense of a charged crime. (People v. Reed (2006) 38 Cal.4th 1224, 1227; see § 1159.) The rule limiting convictions of uncharged crimesto lesser included offenses of charged crimessatisfies the due process requirement that an accused be given adequate notice of the charges so as to have a reasonable opportunity to prepare and present a defense. (People v. Reed, supra, 38 Cal.4th atp. 1227.)8 Whena lesser offense is not necessarily included in the original charge, the parties may nevertheless agree that the defendant may be convicted of such offense. (People v. Birks (1998) 19 Cal.4th 108, 136 fn. 19 (Birks).) It is only whenthe parties mutually agree to amendthe charge with a lesser related offense that this court’s stated concern for “mutual fairness between the defense and the prosecution”in the context of lesser offenses remains intact. (/d. at p. 126.) A defendant’s agreementthat he may be convicted of an uncharged lesser related offense may be express or he may impliedly consentor acquiesceto have thetrier of fact consider an uncharged offense. (Toro, supra, 47 Cal.3d at p. 973, disapproved on another ground in People v. Guiuan, supra, 18 Cal.4th at p. 568, fn. 3; People v. Haskin (1992) 4 Cal.App.4th 1434, 1438.) ® Although similar to the previous notice discussion, the notice discussion in this section is based on appellant’s notice of the arson of property offense. As discussed in the preceding section, appellant had propernotice of the offense of arson of inhabited property. As to each offense, appellant’s defense is no different - i.e., that he did not have the required mental state. 34 In Orlina, supra, 73 Cal.App.4th 258, the court addressed whether the state may retry a defendant on an unchargedlesser-related offense following acquittal of the charged offense and a deadlocked jury on the lesser offense. (/d. at p. 260.) The Court of Appeal concluded the defendant’s requestthat the jury be instructed on the lesser related offense effectively amendedthe information to add a count: By requesting the jury be instructed on the lesser offense, be it an includedorrelated one, a defendantasksto be tried on a crime not charged in the accusatory pleading. By doingso, the defendant implicitly waives any objection based on lack of notice. Such defendantsin effect ask the court to treat them as if the pleading had been amended. [...] [A] defendant who requests the jury be instructed on an uncharged offense consents to be treated as if the offense had been charged. (Id. at pp. 263-264.) The dissentin this case relied upon Orlina for the proposition that the charge waseffectively amended by wayofjury instruction and could be ““treated as if the offense had been charged.’” (Dis. Opn.at pp. 2-3 quoting Orlina, at p. 264.) Although the defendantin Orlina requested that the jury be instructed on an uncharged offense, which was not the casehere, a defendant need notexplicitly request that a jury instruction be given for an amendment to occur. It is well settled that a defendant is considered to have impliedly consented to an amendmentof the charge whenhefails to object to the jury instructions or verdict form that gives rise toa nonincluded offense. (Toro, supra, 47 Cal.3d at pp. 976-977.) In Toro, the defendant was charged by information with attempted murderand assault with a deadly weapon. In addition to the charged offenses, the jury was instructed on, and received verdict formsfor, the offenses of attempted voluntary manslaughter, battery with serious bodily injury, simple battery, and simple assault. (/d. at pp. 970-971.) The defense did not objectto the proposedinstructions, the verdict forms, or claim unfair surprise with 35 respectto the verdict options provided to the jury, leading this court to concludethat“the failure to object constituted an implied consentto the jury's consideration of the lesser related offense and a waiver of any objection based on lack of notice.” (/d. at p. 978.) Toro held, “There is no difference in principle between adding a new offenseat trial by amending the information and adding the same charge by verdict forms and jury instructions.” (/d. at p. 976.) Thus,a failure to promptly object to verdict forms and jury instructions “will be regarded as a consentto the new charge and a waiverof any objection based on lack of notice.” (/bid.) This court reiterated these principles in Birks, noting thatif the defendant“fails to object when the prosecutoror the court proposesthat such instructions [on an uncharged, nonincluded offense] be given, no complaint about the consequencescan thereafter be raised on appeal.” (Birks, supra, 19 Cal.4th at p. 136 fn. 19.) The defendant’s failure to object to such instructions is deemed consent and constitutes waiver of any claim of unfair surprise. (/bid., citing Toro, supra, 47 Cal.3d at p. 976.) Consentto conviction ofa lesser related offense has been found not only when a defendant requests an instruction on the lesser offense, or when he impliedly consents to such instruction by failing to object, but also whenhe urges conviction on the lesser. (People v.. Ramirez (1987) 189 Cal.App.3d 603, 623 (Ramirez), disapproved on anotherpoint in People v. Russo (2001) 25 Cal.4th 1124, 1137.) In People v. Taylor (1969) 273 Cal.App.2d 477 (Taylor), for example, the defendant was charged with attempted murder and there wasnoallegation that the attempt was made with a deadly weapon. However, the defendant’s attorney urged thetrier of fact to find that the defendant was guilty of assault with a deadly weapon under the charge of attempted murder. The Taylor court concludedthat the attorney’s conduct caused two accusatory pleading-amending events to occur. First, the defendant impliedly consented that the information be 36 treated as though the separate and related crime of attempted murderby use of a deadly weapon had been pleaded. Second, as a result of his implied consentto the separate offense, the information was effectively amended and “clearly charged the lesser included offense of assault with a deadly weapon.” (/d. at pp. 485-486.) a. Appellant’s Tacit Agreementto the Lesser Offense Instruction Amended the Charge The record establishes appellant’s tacit agreementto thetrial court’s proposed instructions onthe lesser offenses. When appellant’s attorney responded to thetrial court’s inquiry as to whether he “understood”thetrial court’s so-called “decision tree,” appellant’s attorney expressly stated that he “understood where[thetrial court was] going.” (2 RT 285.) Thetrial court identified the lesser offenses as lesser included offenses of arson of an inhabited structure. Appellant had ample opportunity to objectto the instructions but did not. (Toro, supra, 47 Cal.3d at pp. 973, 976-977.) b. Appellant’s Affirmative Conduct Amended the Chargewith the Lesser Offense Imbued with as much,if not greater, significance as appellant’s tacit agreementis appellant’s affirmative conduct during argument urging the jury to convict him of burning property. (2 RT 354-356, 358, 368-369; Ramirez, supra, 189 Cal.App.3dat p. 623; Taylor, supra, 273 Cal.App.2d at pp. 485-486.) Indeed, underthe facts ofthis case, “‘neither [appellant] nor his attorney could rationally have anticipated anything other than a finding of guilt of someoffense.’” (Toro, supra, 47 Cal.3d at p. 977 quoting People v. Francis (1969) 71 Cal.2d 66,74.) Appellant’s counsel strategically focused the jury’s attention on the crimes of arson of property 37 and unlawful burning of property. (2 RT 354-356.) He concededthat appellant was guilty of unlawfully causing a fire to property and urged the jury to “[c]Jonvict him of what he did[.]” (2 RT 369.) | 2. Appellant’s Trial Strategy Depended Upon the Jury’s Consideration of the Lesser Offense Appellant’s entire theory of the case wasthat he did not burn a structure, but that he recklessly burned something, and that it was mere property. (2 RT 369.) From a defense perspective, it matter not how the lesser offense wasclassified; it only mattered that the offense was before the jury so that the defense could argue for the best potential result - a conviction on the leastofall the crimes, misdemeanor burning of _ property. Appellant had obvious tactical reasons for agreeingto the additional instructions and arguing accordingly. As in the Taylor case, the instruction on arson ofproperty gaverise to an additionallesser offense that would otherwise not have been available to the defense. Namely, as a result of adding the arson of property count, the jury was also instructed on the lesser included offense of misdemeanor unlawful burning of property. (People v. Schwartz (1992) 2 Cal.App.4th 1319, 1325 [“Unlawfully causing a fire is a lesser included offense of arson.”]; Taylor, supra, 273 Cal.App.2d at pp. 485-486 .) Had the jury been persuaded by appellant’s arguments that he burned mere property, and did so recklessly, he would have been convicted of a misdemeanor, and therefore would have been outside the reach of the Three Strikes law under which he was ultimately sentenced. (1 CT 97, 262-265; 2 CT 297-298, 31 1-3 14.) _ The majority ignored the effect of appellant’s consent to the uncharged offense and summarily disposedof the instruction on the lesser offense of arson of property to be a productofthetrial court’s and parties’ mistaken belief. The majority focused instead on the prosecutor’s charging 38 decision. The majority reasoned, “Had the prosecutor charged defendant with the lesser related offense in this case, the jury would have been instructed to render verdicts on both the greater and lesser charges.” (Opn. at p. 10.) At the outset, the majority’s undue emphasis on the prosecutor's charging decision runscounterto the separation of powers doctrine. It is wellsettled that “the prosecutor hasthe discretion to decide which offenses to charge. The courts do not generally supervise these ‘purely prosecutorial functions[s].’ [Citations.]” (People v. Ceja (2010) 49 Cal.4th 1, 7; see Valli, supra, 187 Cal.App.4th at p. 801.) But more importantly, that the prosecution could have donethings differently does not detract from the fact that appellant consented to amending the information to add the uncharged offense. (Toro, supra, 47 Cal.3d at pp. 973,976-977, Ramirez, supra, 189 Cal.App.3d at p. 623; Taylor, supra, 273 Cal.App.2dat pp. 485- 486.) Nevertheless, the majority concluded that“[b]ecause the prosecutor did not [charge the offense ofarson of property], there is no unresolved or pending charge on which to remandthis matter to the trial court.” (Opn.at p. 10; italics added.) The majority’s reasoning has no support in law or logic. As Justice Richli noted in dissent, appellant was charged with the lesser related offense becausehe failed to object to the jury instruction on it and, “because the jury never returned a verdict on the lesser (for whatever reason), the chargeis still ‘unresolved’ and ‘pending.’” (Dis. Opn.at p. 3.) In other words,the instructional error that occurred here merely delayed resolution of the charge. 39 3. Appellant Has Forfeited Any Claim Under Section 1164 that the Trial Court Improperly Discharged the Jury Without a Verdict on the Lesser Offense At no point in the trial court proceedingsdid appellant ever claim that the jury should not be discharged without declaring a verdict on the lesser offense. Appellant’s failure to object to the jury’s discharge without a verdict on the lesser offense forfeited any claim the discharge was improper. under section 1164, subdivision (b). That statutory provision provides, in pertinentpart, the jury shall not be discharged “until the court has verified on the record thatthe jury has either reached a verdict or has formally | declaredits inability to reach a verdict on all issues before it.” (§ 1164, subd.(b).) Here, without objection, the trial court instructed the jury as if the lesser related offense was a lesser included offense. (1 CT 118; CALCRIM No. 1515.) Theinstruction that characterized arson of property as a lesser included offense of arson of an inhabited structure did not compromise the jury’s ability to consider the arson of property offense because the elements of that offense were accurately set forth in the instructions. (Kellett, supra, 63 Cal.2d at p. 827.) However, as a consequenceofit being characterized as a lesser included offense, the jury was instructed that it could not convict appellant of “both a greater and lesser crime for the same conduct.” (1 CT 122.)’ Under the instructions provided, when the jury reachedits verdict on * The jury was specifically instructed: If you find that the defendantis not guilty of a greater charged crime, you mayfind him guilty of a lesser crime if you are convinced beyond a reasonable doubtthat the defendantis guilty of that lesser crime. A defendant may not be convicted of both a greater and lesser crime for the same conduct. [§] Arson of (continued...) 40 the greatest offense charged, arson of an inhabited structure, it did not return a verdict on the lesser offense of arson of property. (1 CT 126, 131.) In People v. Saunders (1993) 5 Cal.4th 580, this court held the defendant forfeited his claim thetrial court erred under.section 1164, subdivision (b), whenit discharged the jury. In that case, the defendant failed to object to the trial court’s discharge of the jury that convicted him of burglary, before the samejury could decide the truth ofthe prior conviction allegations. (§ 1025.)'° He claimed that the trial court was barred from impaneling a new jury and conducting further proceedings on the prior conviction allegations. (/d. at p. 587.) This court concluded that general waiverand forfeiture principles applied, explaining that it “is unfair to the trialjudge andto the adverse party to take advantage ofan error on appeal whenit could easily have been corrected at the trial. [Citation.] ” Ud. at p. 590,italics in original.) In reachingthis conclusion, the court acknowledgedthattrial practice is fast-paced and issues are sometimes overlooked but noted, “The law casts uponthe party the duty of looking after his legal rights and ofcalling the judge's attention to any infringement of them. If any other rule were to obtain, the party would in most casesbe careful to be silent as to his objections until it would be too late to obviate them, and the result would be that few judgments would standthetest of an appeal. [Citation.]” (Ibid.) Thus, the defendant’s claim thatthe trial court had improperly (...continued) property or a structureis a lesser crime of arson of an inhabited structure charged in Count One. 10 Subdivision (b) of the section states, in pertinent part, “the question of whether or notthe defendanthas suffered the prior conviction shall be tried by the jury thattries the issue upon the plea of not guilty, or in the case ofa plea of guilty or nolo contendere, by a jury impaneledforthat purpose, or by the courtif a jury is waived.” (§ 1025, subd.(b).) 41 discharged the jury before it determined the truth of the prior conviction allegations was forfeited. The court concluded, “although sections 1025 and 1164 prohibit a trial court from discharging a jury until it has determined the truth of any alleged prior convictions, a defendant may not complain on appeal of a departure from this procedural requirement unless the error has been broughtto the attention of the trial court by means of a timely and specific objection.” (/bid.) Because the forfeiture did not apply to the defendant’s claim of once in jeopardy, the court further concluded that the defendant’s double jeopardy rights had not been violated. Ud. at pp. 592-597.) Likewise, this court recently held in People v. Anzalone (2013) 56 Cal.4th 545, that forfeiture rules applied to the defendant’s claim that herright to a unanimousverdict was violated by thetrial court’s failure to ask the jury to affirm its verdict. Section 1149 mandates the procedure for taking the jury’s verdict; the section requires the trial court to ask the jury if it has agreed upontheir verdict and,if further required, to declare their verdict. (§ 1149.) The Anzalone court explained that in the event of such error “a party should notsit on his or her hands, but instead must speak up and provide the court with an opportunity to address the alleged error at a time whenit might be fixed.” (/d. at p. 550.) Notwithstanding the court’s forfeiture ruling, it held the error was not in any way unfair. (/d. at pp. 556- 560.) The samereasoning applies to the present case: underthe principles of forfeiture, appellant cannot claim the jury was improperly discharged because hefailed to object. Consistent with the agreed-upon instructions provided bythetrial court, that not only identified the arson of property offense as a lesser included offense but told the jury that appellant could “not be convicted of both a greater and lesser crime forthe same conduct,” the trial court discharged the jury whenit returnedits verdict of guilt on the 42 greater crime becausethetrial court believed it had reached a verdict “on all issues before it.” (1 CT 122; Pen. Code, § 1164, subd. (b).) The jury faithfully followedthetrial court’s instructions and returned its verdict as instructed. Appellant’s failure to object to the trial court’s instructions and, importantly, to the jury’s discharge without rendering a verdict on the arson of property count, amounts to forfeiture of a claim that the discharge was improper. Absent any objection below, appellant cannot now claim that this statutory error preventsretrial; he is not entitled to a “‘get out ofjail free card’” because the jury was discharged without a verdict on the lesser count of arson of property. (Dis. Opn.at p. 1.) Asdiscussed above, appellant had obviousstrategic reasonsfor wanting the lesser offense to be before the jury. In the context of consent, it did not necessarily matter to appellant how the lesser offense was classified, only that it be before the jury as an alternative offense for which the defense vigorously argued. (2 RT 354-356, 358, 269.) The jury’s consideration of the motorhomeas property wascritical to his defense becauseit not only defeated the multiple structure enhancementallegation but also brought into the jury’s view the misdemeanoroffense of reckless burning ofproperty. Appellant’s strategy was reasonable, but it is unreasonable for him not to accept the resultant consequenceof his consent to the instructions andhis failure to object to the jury’s discharge. The unresolved countis a function of what occurredin the trial court. Had appellant objected to the jury’s discharge, thetrial court would have had the opportunity to correct the any alleged error. (See § 1161 {circumstances under which the court may direct the jury to reconsiderthe verdict].)"' '! Section 1161 provides: In what cases Court may direct a reconsideration of the verdict. Whenthere is a verdict of conviction, in which it appears to the (continued...) 43 Undertheprinciples of forfeiture, appellant is precluded from claiming that the error preventsretrial. In sum, appellant’s statementto the trial court that he “understood” the jury instructions and his affirmative conduct before the jury in closing argumentreasonably implied his consent to add the lesser related offense to the prosecutor’s original charge. From tactical standpoint, the mistaken classification of the offense as a lesser included offense was immaterial; what mattered greatly to the defense wasthat the count be before the jury. Because “adding a new offenseat trial by amending the information” is the functional equivalent of “adding the same charge by verdict forms and jury instructions[]’” (Toro, supra, 47 Cal.3d at p. 976, fn. omitted), the charge was properly amended with the lesser offense of arson of property. Any claim that the instructional error that resulted in the jury not returning a verdict on the lesser offense precludesretrial is forfeited. The instructional error that rendered the offense “unresolved”or “pending,” simply delayed resolution of the count. (Dis. Opn.at p. 3.) Retrial of the offense is proper. (...continued) Court that the jury have mistaken the law, the Court may explain the reason for that opinion anddirect the jury to reconsider their verdict, andif, after the reconsideration, they return the same verdict, it must be entered; but whenthere is a verdict of acquittal, the Court cannot require the jury to reconsiderit. If the jury render a verdict which is neither general norspecial, the Court may direct them to reconsiderit, and it cannot be recorded until it is rendered in some form from whichit can be clearly understood that the intent of the jury is either to render a general verdict or to find the facts specially and to leave the judgmentto the Court. 44 D. The Principles of Double Jeopardy Do Not Prevent Retrial of a Lesser Related Offense Mistakenly Identified as a Lesser Included Offense in the Jury Instructions and for Which the Jury Did Not Return a Verdict as Instructed The Court of Appeal entirely abandonedits earlier reliance on the principles of double jeopardy in concluding that retrial was barredinits now-divided third opinion at issue here. And properly so. Appellant agreed to be placed in jeopardy ofthe lesser related offense. His consent to the jury instructions extendsto the way in which the jury was discharged. As such, federal and state double jeopardy protections are not violated by retrial to resolve the question ofguilt. “The Fifth Amendmentto the United States Constitution provides that ‘InJo person shall ... be subject for the same offense to be twiceputin jeopardyoflife or limb....”. This guarantee is applicable to the states through the Fourteenth Amendment. [Citations.] Similarly, article I, section 15, of the California Constitution provides: ‘Persons may not twice be put in jeopardy for the sameoffense....’” (People v. Saunders, supra, 5 Cal.4th at pp. 592-593.) The Double Jeopardy Clause provides a defendantthree basic protections: “‘[It] protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. Andit protects against multiple punishments for the sameoffense.’ [Citations.]” (Ohio v. Johnson (1984) 467 U.S. 493, 497-498 [104 S.Ct. 2536, 81 L.Ed.2d 425].) As the high court has further stated, “the protéction of the Double Jeopardy Clause by its terms applies only if there has been someevent,such as an acquittal, which terminates the original jeopardy.” (Richardson v. United States (1984) 468 U.S. 317, 325 [104 S.Ct. 3081, 82 L.Ed.2d 242].) “However, when trial produces neither an acquittal nor a conviction,retrial may be permitted if the trial 45 ended ‘withoutfinally resolving the merits of the charges against the accused.’” (People v. Anderson (2009) 47 Cal.4th 92, 104, quoting Arizona v. Washington (1978) 434 U.S. 497, 505 [98 S.Ct. 824, 54 L.Ed.2d 717].) Federal and California state courts have taken the position thatretrial is proper following the discharge of the jury before rendering its verdict based upon legal necessity or a defendant’s consent. (/bid.) California’s double jeopardy protection is codified in section 1023 which states: “When the defendant is convicted or acquitted or has been once placed in jeopardy upon an accusatory pleading, the conviction, acquittal, or jeopardy is a bar to another prosecution for the offense charged in such accusatory pleading, or for an attempt to commit the same,or for an offense necessarily included therein, of which he might have been convicted underthat accusatory pleading.” This court considered the application of section 1023 in People v. Fields (1996) 13 Cal.4th 289. In that case, the jury hopelessly deadlocked on the greater offense but reached a verdict on the lesser included offense. Thetrial court declared a mistrial on the greater offense andsetit forretrial. Thetrial court received the jury’s verdict on the lesser included offense and discharged the jury. Subsequently, the defendant wasretried on the greater offense and convicted. (/d. at pp. 296-297.) The issue before this court was whetherfederal or state principles of double jeopardy barred retrial of the greater offense on which the jury deadlocked but in the same proceedingreturned a guilty verdict on a separately charged lesser included offense. (/d. at p. 295.) This court considered two distinct doctrines of double jeopardy that were potentially at play: the implied acquittal doctrine and the doctrine of legal necessity. (/bid.) Ultimately, the court concluded neither doctrine applied. The court reasoned an express deadlock is inconsistent with the jury’s silence underlying an implied acquittal of the greateroffense. Additionally, notwithstanding the deadlock, which permits 46 retrial based uponlegal necessity, a verdict of guilt on the lesser included offense preventsretrial on the greater under section 1023. (/d. at pp. 300- 303, 305.) Relying on anearlier opinion of this court construing section 1023, the Fields court confirmed, “The statute implementsthe protections of the state constitutional prohibition against double jeopardy and, more specifically, the doctrine of included offenses.” (/d. at pp. 305-306; People vy. Greer (1947) 30 Cal.2d 589, 596-597 [conviction oflesser included offense bars subsequent prosecution for the greater offense].) The Fields court specifically addressed the importance of the jury acquitting the defendantofthe greater offense before reaching the question of guilt of any lesser includedoffense,i.e., the “acquittal-first” rule, within the context of the doctrine oflesser included offenses. It outlined the procedure fortrial courts to follow prior to the discharge of the jury to avoid incomplete verdicts. (/d. at pp. 309-311.) The court further concluded that when an incomplete verdict is rendered and the jury has been discharged,the no-retrial consequence is “borne by the People.” (Ud. at p. 311.) The court reasoned it was appropriate to place the burden on the Peopleto bring the incomplete verdict to the trial court’s attention because it “preserves the possibility that, after reconsideration pursuant to section 1161, the jury will decline to return the requisite verdict of acquittal of the greater offense” and therebytrigger either a motion for mistrial by the People or a request by the People for dismissal of the greater offense. ([bid.) This case is distinguishable from Fields because the doctrine of included offenses at work in the Fields case is not applicableto lesser related offenses. The narrow issue raised by an incomplete verdict under the rubric of the acquittal-first rule is not present underthe circumstances of the present case. Morespecifically, the jury here, unlike the jury in F’ields, convicted appellantof the greater offense. Unlike the doctrine of included 47 offenses, the unresolved verdict on the lesser related offense bears no direct relationship to the greater offense so that a conviction of one does not necessarily render conviction of both improper. Becauseofthis, it was possible to convict appellant of both the greater and lesser offenses. (People v. Labaer (2001) 88 Cal.App.4th 289, 290 [defendant convicted of both arson ofa structure and arson ofproperty].) The specific concerns related to the lesser included offense doctrine do not apply. Further, the consequencesofthe instructional error here should not be “borne by the People”rather than the defense because appellant consented to be charged andtried on the lesser offense. When appellant agreed he could be convicted of the lesser related offense of arson of property by placing it before the jury, he entered into a logical concomitant agreement that the jury would resolve the count, either by conviction or acquittal. Appellant“is entitled to a fair trial, not a perfect one.” (People v. Saunders, supra, 56 Cal.4th at p. 556.) His agreements do not carry any less force or validity becausean instructional error occurred requiringretrial of the count in orderfor final resolution of it. This court should not provide appellanta “get out ofjail free card” because, as agreed by appellant, the jury was discharged without a verdict on the lesser count of arson of property. (Dis. Opn.at p. 1.) This court has stated that “question of the propriety of discharging a jury depends uponthe facts of each particular case.” (People v. Ham Tong (1909) 155 Cal. 579, 584-585 (Ham Tong).) In Ham Tong,the trial court erroneously determined the information charged robbery, whenit actually charged larceny. Thetrial court proceeded to instruct the jury on robbery and the jury so convicted. In reviewing the error in thecontext of double jeopardy, this court rhetorically asked, “Why should this form of error entitle a defendantto his discharge any more than should any other misdirection upon a question of law?” (Ham Tong, supra, at p. 584-585.) 48 There, “[t]he jury, acting according to the law as given them by the court, returned ‘their verdict,’ erroneousto be sure, but accordingto that declaration of the law which they were boundto accept as containing the principles to be followed by them in reaching ‘their verdict[].’” bid.) The court concluded underthose circumstances the defendant wasnot protected from retrial of larceny underprinciples of double jeopardy. (Jbid.) Here,the trial court determined that a motorhome could be structure underthe law of arson; it erroneously determined without objection that arson of property wasa lesser included offense of arson of an inhabited structure, and instructed the jury accordingly. (1 CT 118-119, 122.) Subsequently, the Court of Appeal ruled that a motorhome wasnot a structure and reversed appellant’s conviction for arson of an inhabited structure. (Opn.at pp. 4-8.) This court’s reasoning in Ham Tong permitting retrial following an invalid verdict that was based upon instructional error should apply with equal force to the unresolved verdict in the current case. Indeed, Ham Tong echoes the concernofthe dissenting justice in this case, that appellant should notbe entitled to be released based on the instructional error that occurred. (Diss. Opn,. at pp. 1, 3.) It is well settled that a jury may be discharged before reaching a verdict with the defendant’s consent. (Stone v. Superior Court (1982) 31 Cal.3d 503, 516; People v. Sullivan (2013) 217 Cal_App.4th 242, 256.) In this context, the defendant’s consent can be implied from defense counsel’s conduct. (Stanley v. Superior Court (2012) 206 Cal.App.4th 265, 288.) Appellant’s failure to object to the trial court’s instructions on the lesser offense that allowed the jury to notreturn a verdict on the lesser offense of arson ofproperty if it found guilt on the greater offense of arson of an inhabited structure is reasonably construed as implied consent to the process by which the jury was discharged. By logical extension, he agreed to both the jury instructions and the way in whichthe jury was discharged 49 via those instructions. (See Jn re Colford (1924) 68 Cal.App. 308, 311 [a defendant who allows an imperfect verdict to be rendered, without objection, waives the right to plead once in jeopardyif the verdict is set aside anda retrial ordered]; Higgins v. Superior Court In and For Los Angeles County (1960) 185 Cal.App.2d 37, 42 [petitioner’s failure to object to the entry ofjudgment on the defective verdict and subsequentcollateral attack of the judgmentresults in an implied waiver of any objection to being tried on the charge of which he was improperly convicted].) Nostate or federal constitutional principle of double jeopardyis violated when a defendantis subjected toretrial of a lesser related offense after he has agreed to be placed in jeopardy for that offense and, by reason of instructional error for which appellant did not object, the jury does not return a verdict for the offense so that neither acquittal nor conviction and sentence exist. Duringtrial, the true nature of the lesser offense as a lesser related offense was overlooked. Setting aside appellant’s failure to object to the error, this case aptly illustrates the principle underlying the well- settled rule that the double jeopardy guaranty does not prohibitretrial followingtrial error. (People v. Garcia, supra, 36 Cal.3d at p. 558 fn. 13 {double jeopardy principles do notbarretrial after special circumstance finding is reversed for instructional error even though evidence of one elementof special circumstance “may be insufficient”].) Trial error, such as instructional error, does nottrigger application ofthe rule against double jeopardy. The purpose ofthe constitutional provision against double jeopardy is to prevent repeated harassment of a defendant upon the same charges. (Curry v. Superior Court (1970) 2 Cal.3d 707, 714.) The rule against double jeopardy achievesits purpose of protecting the defendant against the harassmentandrisks of unnecessary repeated trials on the same charge by giving the prosecution a “powerful incentive to make the best caseit can at 50 its first opportunity.” (People v. Shirley (1982) 31 Cal.3d 18, 71, citing Burks v. United States (1978) 437 U.S. 1, 11 [98 S.Ct. 2141, 2147, 57 L.Ed.2d 1].) Such incentive serves no purpose whenthe prosecution did make such a case-- as evidenced here by the jury’s verdict for the “greater” offense-and,“having doneso, the prosecution [has] little or no reason to produceother evidenceof guilt.” (People v. Shirley, supra, 31 Cal.3dat p. 71.) This not a case where the prosecutor can befaulted for moving forward without sufficient evidence to convict appellant. (See, e.g., Downum v. United States (1963) 372 U.S. 734, 737-738 [83 S.Ct. 1033, 10 L.Ed.2d 100][retrial improper following first trial where jury discharged at prosecution’s request becauseone ofits key witnesses was absent and had not been found andthe prosecutor allowed the jury to be sworn and selected under these circumstances, rather than move to dismissits case before the jury was sworn and jeopardy attached]; Martinezv. Illinois (May 27, 2014) --~U.S.__ [134 S.Ct. 2070, Ss L-Ed.2d___| (per curiam) [Double Jeopardy Clause barredstate's appeal oftrial court's directed verdicts of not guilty on charges of aggravated battery and mob action, entered after State declined to present evidence against defendant after jury was sworn,sincethe directed verdicts constituted acquittals].) Asin this case, circumstances mayarise during the course oftrial that prevent the return ofthe jury’s verdict but that do not implicate the “oppressive practices” that the double jeopardy clause was designed to protect against. (Wade v. Hunter (1949) 336 US.684, 689 [69 S.Ct. 834, 93 L.Ed. 974].) It cannot besaid that a retrial of the unresolved count may be counted amongthe “oppressive practices” forbidden by the double jeopardy clause. Continuing prosecution on an unresolved consented-to lesser related offense following reversal ofthe greater offense for insufficiency does not amountto “governmental overreaching.” (Ohio v. Johnson, supra, 467 U.S. at p. 501.) Appellant agreed he may be convicted 51 of the lesser offense of arson of property. Indeed, he urged the jury to convict him of burning property. Thus, he “has no constitutional interest in preventinghisretrial” for arson, and “there is an important public interest in finally determining whether he committed that offense.” (Stonev. Superior Court, supra, 31 Cal.3d at p. 522.) Simply put, an instructional error occurred that has delayed resolution of the lesser related count. “The double-jeopardy provision ofthe Fifth Amendment, however, does not mean that every time a defendantis put to trial before a competenttribunal heis entitled to go free if thetrial fails to end in a final judgment.” (Wade v. Hunter, supra, 336 U.S.at p. 689.) The dissenting justice expressed that point precisely when shestated that appellant was notentitled to a “‘get out ofjail free’” card.” (Dis. Opn.at p. 1.) Because appellant’s original jeopardy has not terminated,retrial for resolution of the lesser related offense is proper. This court should reverse the holding of the Court of Appeal and find that when a defendant consents to be placed in jeopardy for an uncharged lesserrelated offenseanda trial error subsequently occurs that renders the issue of guilt on that offense unresolved, the prosecutor may retry the offense. CONCLUSION This court should affirm appellant’s conviction of section 451, subdivision (b), becausea violation of that section is established by the jury’s verdict, the opinion of the Court of Appeal, and appellant’s concession the motorhome wasproperty. An affirmance does not prejudice appellant’s due processrightto notice ofthe charges against him orright to prepare a meaningful defense. This is so because appellant’s defense would have been no different had the count been charged in thealternative language ofsection 451, subdivision(b). 52 Alternatively, section 654 does not apply to preventretrial of the lesser related offense of arson of property in this matter because appellant impliedly consentedto betried for that offense in the original prosecution. Consequently, the rule in Kellett construing section 654 and prohibiting multiple prosecutionsfor the same conduct has no application to this case. Appellant’s agreementto be placed in jeopardy for the lesser related offense is not vitiated by the instructionalerror that permitted the jury’s discharge without declaring its verdict on that offense, leaving it unresolved. Forall of these reasons,a retrial to resolvethe issue of appellant’s guilt of the lesser related offense of arson of property is proper. Because the Court of Appeal reached the contrary conclusion in its opinion by relying exclusively on Kellett, it should bereversed. Dated: July 18, 2014 Respectfully submitted, KAMALA D. HARRIS Attorney General of California JULIE L. GARLAND Senior Assistant Attorney General WILLIAM M. WooD Supervising Deputy Attorney General STEVEN T. OETTING Deputy Solicitor General FELICITY SENOSKI Deputy Attorney General Attorneys for Respondent FS:swm $D2014808005 70911475.doc 53 CERTIFICATE OF COMPLIANCE I certify that the attached OPENING BRIEF ON THE MERITSuses a 13-point Times New Romanfont and contains 16,662 words. Dated: July 18, 2014 KAMALAD. HARRIS Attorney General of California FELICITY SENOSKI Deputy Attorney General Attorneysfor Respondent DECLARATION OF SERVICE BY U.S. MAIL Case Name: People v. Goolsby No.: S216648 I declare: I am employedin 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 ofage or older and not a party to this matter. I am familiar with the business practiceat 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, correspondenceplacedin the internal mail collection system at the Office of the Attorney General is deposited with the United States Postal Service with postage thereon fully prepaid that same day in the ordinary course of business. On July 18, 2014, I served the attached OPENING BRIEF ON THE MERITS,byplacing a true copy thereof enclosed in a sealed envelopein the internal mail collection system at the Office of the Attorney General at 110 West A Street, Suite 1100, P.O. Box 85266, San Diego, CA 92186-5266, addressed as follows: STEVEN S LUBLINER CLERK OF THE COURT ATTORNEY AT LAW FOR HON BRYAN F FOSTER P O BOX 750639 SAN BERNARDINO CO SUPER COURT PETALUMA CA 94975-0639 401 N ARROWHEAD AVE , Attorneyfor Appellant SAN BERNARDINO CA 92415-0063 Richard James Goolsby (2 Copies) APPELLATE SERVICES UNIT OFFICE OF THE DISTRICT ATTORNEY 412 WHOSPITALITY LN 1ST FLR SAN BERNARDINO CA 92415-0042 KEVINJLANE CLERK DIV TWO FOURTH APP DIST CALIFORNIA COURTOF APPEAL 3389 TWELFTH ST RIVERSIDE CA 92501 I declare under penaltyof perjury under the lawsof the State of California the foregoingis true and correct and that this declaration was executed on July 18, 2014, at San Diego, California. STEPHEN MCGEE Soon2 Declarant ep, $D2014808005 708947 18.doc