PEOPLE v. GOOLSBY

Respondent’s Reply Brief on the Merits

Cal.December 30, 2014

Ju the Supreme Court of the State of California THE PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff& Respondent, Vv. RICHARD GOOLSBY, Defendant & Appellant. Case No. 8216648 oe O . pel eG 7m{b e Fourth Appellate District, Division Two, Case No. E052297.. San Bernardino County Superior Court, Case No. FSB905099 The Honorable BRYAN F. FOSTER, Judge REPLY BRIEF ON THE MERITS KAMALAD. HARRIS Attorney General of California GERALD A. ENGLER Chief Assistant Attorney General 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: FelicitySenoski@doj.ca.gov a&CEIVED oo 282014 SLERK SUPREME COURT Attorneysfor Respondent TABLE OF CONTENTS Page IntrOGuctiOn...........cccccccecccescccececcsseeceeccccccuceccucsecscecesececsteeseuseeuacccauuscaeeesensuessss 1 ALQUMENL 00... ee eccecesecsesceeseceeseecsecsseseseeeesssrsesssseessasecnecseaseesseenesesesseuseseaaees 3 I. Il. Appellant’s conviction for violating section 451, subdivision (b), should be affirmed because he committed arson of inhabited property and he had notice of that Charge ...........ccccsssecessseessecesseceesseetesseeeseaeees 3 A. B. Appellant’s guilt under section 451, subdivision (b), of arson of inhabited property is established Arson undersection 451, subdivision (b), sets forth one offense with alternative theories of the same degree, therefore this court may affirm without modifying the judgment...eee Appellant received proper notice of the arson offense undersection 451, subdivision (b); the omission of “inhabited property” from thefirst amended information did not underminethat notice or undermine any meaningful defense to that theory Of AFSON..........ceecccceseeeteeeneeeeeereneeeneee Penal Codesection 654 does not preventretrial of an offense properly addedin the original prosecution, but where an instructionalerror resulted in no verdict being returned ....eeeeeeeeeseeeeteeeeeees seceseeeseusvceeeseueneeees 17 A. This court’s decision in Ke//ett construing section 654 does not apply to preventretrial of charges properly before the jury in the original PFOSCCULION oo... ee cee steeteeseeeeneeeeeeaeeaceesneesaeenaeense The lesser offense of arson of property was before the jury without objection by the defense; any claim the jury was improperly discharged whenit failed to declare a verdict as to this offense is forfeited, and the issue of appellant’s guilt should be resolved byretrial.... eveeees 4 sevseene 8 sesees 10 sevees 18 seeeee 19 TABLE OF CONTENTS (continued) Page C. The principles 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 verdict as instructed............ 23 CoOnclUSiON ...........-0esceeseeseceecccccccceesececccecuccvscecccacstuscesceuseseccuceseseccerancecaeaeeees 30 il TABLE OF AUTHORITIES Page CASES Arizona v. Washington (1978) 434 U.S. 497 [98 S.Ct. 824, 54 L.Ed.2d 717]...25 Downumv. United States (1963) 372 U.S. 734 [83 S.Ct. 1033, 10 L.Ed.2d 100]...ee28 In re Alvernaz (1992) 2 Cal.4th 924occccccesssseseeneesetetsessenecssecseecsteesceseeaeeesnsaenteres 14 Inre Winship (1970) 397 U.S. 358 [90 S.Ct. 1068, 25 L.Ed.2d 368]...eee 7 Kellett v. Superior Court (1966) 63 Cal.2d 822.00...seeeseueseseseuecaceaesesaeaesensessaeaceceeeseaeneaees 2, 18, 19 Lafler v. Cooper (2012) US. [132 S.Ct. 1376, 182 L.Ed.2d 398]....... 14, 16, 17 Lopez v. Smith (2014) US. [135 S.Ct. Leeceneeeeseeeseneeeeesenenees 12, 13 Martinezv. Illinois (2014) -~U.S.__ [134 S.Ct. 2070, 188 L.Ed.2d 1112]oe28 Ohio v. Johnson (1984) 467 U.S. 493 [104 S.Ct. 2536, 81 L.Ed.2d 425]... 24 Orlina v. Superior Court (1999) 73 CalApp.4th 258 ooccccccteseteeeeseseeeseeeessenserseeeeeeeaes 19, 20, 28 People v. Anderson (2009) 47 Cal4th 92 oeeccecccecsseseeeeesesescseseseaeseseseesereaeeeseeeceeeeeseneaeaeees 25 People v. Anzalone (2013) 56 Cal.4th 545 occcccsseseseeesesseeseceneeseeneeesseseecaereasaeeesteaeaeeees 23 People v. Atkins (2001) 25 Cal4th 76 oceccccessssssssscsssseseseseseseacseseeseeeeesesseesseseseesseeees 4 lil People v. Birks (1998) 19 Cal4th 108oeccseeseessessseeeesseseeasesesnsateeseeeesersesenseeees 22 People v. Burnett (1999) 71 CalApp.4th 150 occecscsesecsesecsesssesseeressesseseseesseseeeeees 13 People v. Fields (1996) 13 Cal.4th 289oiccccseseeseseseseseseeeseecseenseeaeseaseeacereeseeeeeees 27 People v. Gonzalez - (2014) 60 Cal4th 533 ooccecccessesssseseseseseseseeecssseeeeseseeeeeacereeseacaeeeees 9 People v. Green (1983) 146 CalApp.3d 369 ooo cccscsessseseseneeseseressseeeesseeeeseeesseneaeees 5,8 People v. Hamilton (1988) 46 Cal.3d 123ccccecessecsnessesssessessesessessnsereeseenensseesnenseess 25 People v. Harris | (1994) 9 Cal.4th 407occcccccseeeseeseeteceseceeseeeeessseeeenensersnesieserenseeteeses 7 People v. Holt . (1997) 15 Cal.4th 619icccccscsceceneseceeeeeerseeneeetsneeaserseeaeressseeseesess 10 People v. Marshall (1990) 50 Cal.3d 907 ooo ceeeeseesteceeetecesesetetessceseeesneseeeteaesesaeenenes 25 People v. Moore. (1997) 59 CalApp.4th 168oeecenceteneeeeseeeneecenenseseseasseersesenssenes 7 People v. Moore (2006) 39 Cal.4th 168ocecccsssesseessseesssseceresescseseensneseneeeseeesecsennenens 16 People v. Ramirez (1987) 189 CalApp.3d 603 0... ceecesceeeseeeseseseesneeesnieeenneenneeeeeesaes 20, 28 People v. Russo (2001) 25 Cal.4th 1124oiccccsseeseesceseeseseeceeteseaeaenenesesseseeeeeseees 20 People v. Saunders (1993) 5 Cal.4th 580 ..occccccsecsssscssmssesesnteetnenenenesenetee |.23, 24, 26 People v. Sullivan (2013) 217 CalApp.4th 242 ooeeseceseseeeseneseseeeseeeseneneeesnestics 25, 28 iv People v. Superior Court (Marks) (1991) 1 Cal.4th 56 oocecccsessesssssesesneeseseesesesssesseeasaceeeeees 26, 27, 28 People v. Taylor (1969) 273 Cal.App.2d 477 oo.eccececcseseeseceseseereeseeeesseseeceneeeeetensseeseeenes 21 People v. Toro (1989) 47 Cal.3d 966 ooccccseseseceeseeeseetensesescaeeeseeeseessenenenties 19, 20, 28 People v. Turnage (2012) 55 Cal4th 62 occcccccccssssseseesseseecseseeeeceescaceceesneeraeseneeserenaeeeaes 8 Richardson v. United States (1984) 468 U.S. 317 [104 S.Ct. 3081, 82 L.Ed.2d 242]... 24 Schad v. Arizona (1991) 501 U.S. 624 [111 S.Ct. 2491, 115 L.Ed.2d 555] oe. 9,10 Schneble v. Florida (1972) 405 U.S. 427 [92 S.Ct. 1056, 31 L.Ed.2d 340]...25 Sheppard v. Reese (1989) 909 F.2d 1234ccccccseseseseeeeteeceseseseeneeseessesesseeceeseeseeeses 12, 13 Stanley v. Superior Court (2012) 206 Cal.App.4th 265 ooccccescteneeesteeesstenesessneteenseaeerenes 25 Stone v. Superior Court (1982) 31 Cal.3d 503 oc eeceecseeseeseerrerneersnesessntessnecaeensenaseessesen 25, 29 United States v. Hasting (1983) 461 U.S. 499 [103 S.Ct. 1974, 76 L.Ed.2d 96]...eee 25 STATUTES Evidence Code : § 310, SUD. (8) oo. ecececcessecseceseccseecesacecesseecsseesesecsecenseeseseeetsaeersnesteneeeseees 7 Penal Code SASL iccccccccssesseesseccseessecessecsscsaeeesseesessseeesacessesessecseeecssaeeesereesenseeneeteneas 4,5 § 451.1, Subd. (€)(4)oo. ccccccsccscccsseccesseeserseeeseeeeecesessneeceeteeessnetereeeesseeees 12 § 451, SUD. (8) occccssecsseccssseeseeenseeecenseesesneeeesneceeeenaeeesossageneenerensieas 9 § 451, SUD. (D)occceesecssceeeessecssececesneceeseeseasscerseseeeeeneeseesas 1 etpassim § 451, subd. ()oncccceecsesseseesseeseeseseeeeseseeeseeeseeseeesreeaneee 5, 21, 22 § 452, SUB. (d) occ ccccccscsccsessesecseeesesseesserseecseeeseeteeteeeneesseesnesenecets 5,21 § O54eccccccctcsecneecersecseeeeecseeseecsseeeseeaeeseeesseereeseeeaeeesereeeaeeees 2, 17, 18, 19 § 1023 oeeeeecscssecseessesssesesecessescesseescecsseeseeecteceseeenscdecaecseeaseseesneesaee 24, 27 LST eeeeeccsceteeeessteeeenesececesseceeceeeaeeeseseecssneceaseeuneccaueeeteneseeneeeeneses 26, 27 § 1164celcescesscesseecseesssecseesneceseecsseeecsaeecsseseenecseenenesenssascssesossenseaeaenes 23 § L180eeeeccceessessecsressecssesssssesseceseeseeecsseecseesenecsecneersceseaeensessneeesseesseeaes 23 § 1181, subd. (6)... ceecscsecssscssecessesseeeeseecrecaeeneetieeesnesneeesseneneeetenes 8, 10 § 1385 eeeeeccceccescnsessseecesceeeseesesseceaeeeeneeeseeseceeseeeeeesaecssessseecaueesseeeseeeseeseees 21 CONSTITUTIONAL PROVISIONS California Constitution Article I, § 14... ceeceecesseeeeteessseesseeesstanes soseesnnnenecnnnseecnnneennsene vesteseeseeeees 13 OTHERAUTHORITIES CALCRIM NO. 1502 cecscssssssssssssesssssssssssssetsntineninesinessesiesssstsetsnvieen 6 CALCRIM NO. 1515 ssescsssssssssssssssesssssssnernesntiennnseeseeteetvesnevee18 CALCRIM NO, 1515 sscsscscssssscsssssasussenersananususnenasiensnenetsinneies6 CALCRIM NO. 153] sesccsssssssssssssssssssesssessennseannnsvesteecesesseantneenes 6 CALCRIM NO.1532 vscscsscssssssesessssssssnssneststinttannetensgetegsieesestcescie 6 vi INTRODUCTION Penal Code section 451, subdivision (b),' sets forth one offense, with alternative theories for conviction of the same degree. Specifically,it describes arson ofeither an inhabited structure or inhabited property. Here, the jury’s verdict established the factual basis for appellant’s conviction underthe statute; the jury found appellant willfully and maliciously caused the motorhomein which he andhis girlfriend lived, and in which she was then sleeping, to burn. Further,at trial, appellant conceded the motorhome wasproperty. Ultimately, the Court of Appeal made the determination that the motorhomeat issue in this case was property as a matter of law. An affirmance of the judgmentdoesnot require any modification ofthe verdict as appellant argues. The jury’s factual findings in support of its verdict, appellant’s concession, and the Court of Appeal’s legal conclusion establish appellant is guilty of violating section 451, subdivision (b). Underthese circumstances, the fact that the district attorney filed a first amended information that omitted the “inhabited property”alternative and focused on the theory that appellant caused an inhabited structure to burn is not dispositive of the issue of due process. Appellant always had propernotice of the offense andall theories of criminal liability stated in section 451, subdivision (b), from the evidence presented at the preliminary hearing. First, the prosecutor’s omission could not have affected appellant’s defensesattrial because appellant was always on notice he could be held criminally liable underalternative theories of section 451, _ subdivision (b), and his defenseat trial would have been the same had the omission not occurred. It is clear that the case was never about whether appellant caused the motorhometo burn, but rather, with whatintent he did so. More specifically, at issue at the preliminary hearing, andlater in the ' Future unlabeled statutory references are to the Penal Code. trial court was whether appellant intended to kill his girlfriend when heset the motorhomeonfire or whetherthe firewas accidental. The jury did not find an intent to kill existed, but concluded appellant committed arson by willfully and maliciously setting fire to the motorhome. In doing so,it rejected appellant’s theory of the case that the burning was accidental and his conduct was merely reckless. Second, appellant’s due process claim that he detrimentally relied upon the prosecutor’s theory of the offense when he rejected anofferto settle is not supported by the record. He has made no showing he would have accepted the prosecutor’s offer. The appellate record is insufficient to allow appellant to make this showing, and even if he could the appropriate remedy wouldnot be to allow, appellant to walk free. Instead, fairness would require he be given the prison term he claims he would have accepted. In sum,the jury’s factual findings beyond a reasonable doubt that ~ appellant willfully and maliciously caused the motorhome where helived with his girlfriend to burn constitute arson. Thesefindings, appellant’s concession the motorhome wasproperty, and the Court of Appeal’s legal conclusion the motorhomewasproperty, establish appellant’s guilt and his conviction undersection 451, subdivision (b), should be affirmed. If this court finds that appellant’s conviction undersection 451, subdivision (b), is not éstablished by the jury’s verdict and the Court of Appeal’s opinion, and does not contain alternative theories of conviction of the same degree, it should remand the matter for retrial of the lesser related offense of arsonofproperty, an offense for whichappellant consented to be placed in jeopardyin the trial court. The Court of Appeal’s decision reversing and dismissing the matter under section 654as interpreted by this court’s decision in Kellett v. Superior Court (1966) 63 Cal.2d 822, should be reversed. The Court of Appeal’s opinion improperly expands Kellett by prohibiting retrial of a countthat was before the jury in the original prosecution. Retrial is necessary where appellant’s jeopardy was not terminated because the count was left unresolved whenthe jury did not return a verdict on it as a result of instructional error. Such error should not provide appellant with a “get out ofjail free” card. ARGUMENT 1. APPELLANT’S CONVICTION FOR VIOLATING SECTION 451, SUBDIVISION (b), SHOULD BE AFFIRMED BECAUSE HE COMMITTED ARSON OF INHABITED PROPERTY AND HE HAD NOTICE OF THAT CHARGE The jury’s verdict, appellant’s concession the motorhome was property, and the Court of Appeal’s legal conclusion the motorhome was property establish appellant is guilty of violating section 45 1, subdivision (b). Becausesection 451, subdivision (b), describes alternative theories of arson of the same degree,it sets forth only one offense. Therefore, an affirmanceof appellant’s conviction does not constitute a modification of the judgment on a non-included, separate, related offense as appellant argues. Further, appellant received adequate notice of the offense even though the prosecution’s theoryof liability changedas stated in the first amendedinformation, whereit for the first time omitted reference to the motorhomeas inhabited property, and focused on the motorhomeas an inhabitedstructureas its theory ofliability at trial. Based on the evidence presentedat the preliminary hearing, appellant had notice he wassubject to criminalliability for either theory of arson articulated in section 451, subdivision (b). More specifically, the prosecution’s charging language that omitted “inhabited property” did not have a detrimental affect on appellant’s settlement decisions or defenseat trial. Nor can it be said affirmance based uponan alternate theory of guilt amounts to an ambush because appellant’s defense would have been no different had the inhabited property language beenleft in the information. A. Appellant’s Guilt Under Section 451, Subdivision (b), of Arson of Inhabited Property Is Established This court has explained, “‘[t}he proscribed acts within the statutory definition of arson are to: (1) set fire to; (2) burn; or (3) cause to be burned, any structure, forest land, or property. (§ 451.)” (People v. Atkins (2001) 25 Cal.4th 76, 86.) The various subdivisions of section 451 describe different ways of committing the crime of arson.” “Consistent with the * Section 451 states as follows: A personis guilty of arson whenheor she willfully and maliciouslysets fire to or burns or causes to be burned or whoaids, counsels, or procures the burning of, any structure, forest land, or property. | (a) Arson that causes great bodily injury is a felony punishable by imprisonmentin thestate prison for five, seven, or nine years. (b) Arson that 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 of a structure or forest land is a felony punishable by imprisonmentin the state prison for two,four, or six years. (d) Arson of property is a felony punishable by imprisonmentin the state prison for 16 months, two,or three years. For purposesofthis paragraph, arson ofproperty does not include one burning or causing to be burnedhisor her ownpersonalproperty unless there is an intent to defraud or there is injury to another person or another person’s structure, forest land, or property. (e) In the case of any person convicted ofviolating this section while confined in 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 (continued...) purpose of the Determinate Sentencing Law,whichis that punishment be ‘fixed by statute in proportion to the seriousness ofthe offense’ (Pen. Code, § 1170), section 451 fixes the terms of imprisonmentfor various degrees of arson accordingto the injury or potential injury to humanlife involved[.]” (People v. Green (1983) 146 Cal.App.3d 369, 378.) Relevant here, subdivision (b) of section 451 governs the malicious burning of “an.inhabited structure or inhabited property” and fixes the term of imprisonment for this particular degree ofarsonatthree,five, or eight years. As discussed in respondent’s opening brief on the merits, appellant wasoriginally charged in the language of this subdivision. Uponfiling the first amended information, the prosecutor omitted the reference to “inhabited property.” (1 CT 70.) The disputed facts at trial were whether the motorhomewasa structure and whetherit was burned with the requisite intent for arson. (2 RT 341-345, 353-354, 359-360.) Attrial, appellant’s counsel argued that a motorhomeis not a structure. He maintained that a motorhomeis a vehicle or property. Counsel set forth the defensetheory that the burning of the motorhome was a reckless act caused by the “radiant heat” of the burning of the inoperable motorhome. Counsel claimed that because appellant ownedthe inoperable motorhome,it was not a crime to burn it.? However, counsel conceded that (...continued) imprisonment for a felony or misdemeanorconviction, any sentence imposed shall be consecutive to the sentence for which the person wasthen confined. 3 Counsel’s statement appellant’s conductofsetting fire to the motorhome waslawfulis not entirely accurate. (E.g., Pen. Code, §§ 451, subd. (d), 452, subd. (d).) The jury was instructed that a person does not commit arson or does not unlawfully cause fire “if the only thing burned is his or her own personal property, unless [...] thefire also injures someoneelse or someone else’s structure or property. [Italics added.]” (continued...) appellant’s girlfriend’s property was burned. Counseltold the jury to “Tcjonvict him of what he did. [Appellant] recklessly burned the property of another person by burning his own property whichthe jury instruction tells you he can do. [Italics added.]” (2 RT 354-358, 360-361, 364, 366- 367.) Whether the motorhomewasa structure or property, the jury made the predicate factual finding that appellant causedit to burn. The jury ultimately found that the motorhomewasa structure andthat it was inhabited. Itis clear from the jury’s verdictthatit rejected appellant’s claim that he accidentally caused the motorhome wherehis girlfriend was sleeping to burn. Had the jury accepted this argument, it could have convicted appellant of unlawfully causing fire to an inhabited structure on which it was instructed. (1 CT 120; see CALCRIM No.1531.) Although the jury concluded the motorhomeappellant caused to burn wasa structure, the Court of Appeal deemed the motorhomeproperty as a matter of law because there was no evidence showingit was “fixed in place” and, (...continued) (1 CT 118-121; see CALCRIM Nos. 1502, 1515, 1531, 1532.) The record established appellant’s girlfriend had lived in the motorhomethat caught fire for eleven months and keptall of her belongings there. (1 RT 41-42, 44-45: see 1 CT 30, 34, 36, 53-54 [preliminary hearing].) As noted, counsel conceded appellant’s girlfriend’s property was burned. (2 RT 355.) Additionally, the prosecutor pointed out in rebuttal that appellant’s concession established it was unlawful for him to have burned his motorhome. (2 RT 372.) Respondentnotes that appellant repeatedly refers to a lesser offense he deems“arson to property of another”that solely implicates the burning of his girlfriend’s personal property. (See, e.g., ABM 11-12, 21-22, 27-28, 34-37, 49-50.) Howeverin doing so, appellant misconstrues the nature of the lesser offense at issue by stating it too narrowly. As madeclearin the trial court, the lesser offense of arson ofproperty referredto appellant’s act of burning his motorhome, which as a consequencealso causedhis girlfriend’s belongings to burn. therefore, it could not be a structure “as that term is defined in the arson statutes[.]” (Opn. at pp. 6-7; see Evid. Code, § 310, subd. (a) [“All questions of law (including but not limited to questions concerning... the construction ofstatutes ...) are to be decided by the court”]. The Court of Appeal’s legal conclusion that the motorhome wasproperty, the basis for its reversal of the conviction, did not negate the jury’s factual findings that appellant had willfully and maliciously caused the motorhometo burn. The Court of Appeal’s legal conclusion is consistent with appellant’s concession that the motorhomewasproperty. Thisis significant because appellant’s concession establishes an uncontested element of his conviction under section 451, subdivision (b). The disputed factat trial was whether the motorhome wasa structure. Appellant did not contest that it was property. (People v. Moore (1997) 59 Cal.App.4th 168, 185-186, fn. 18; People v. Harris (1994) 9 Cal.4th 407, 459, fn. omitted (conc. & dis. opn. of Kennard,J.).) Given the jury’s predicate factual finding that the motorhomein which appellant and his girlfriend lived was burned,its findingthat appellant willfully and maliciously causedit to burn, appellant’s concession the motorhome wasproperty, and the court’s legal conclusion the motorhome wasproperty, “every fact necessary” to establish the elements of the offense of arson of inhabited property are present beyond a reasonable doubt. (/n re Winship (1970) 397 U.S. 358, 364 [90 S.Ct. 1068, 25 L.Ed.2d 368].) The rule in Winship expresses society’s interest that only the guilty are punished. (/d. at p. 372 (Harlan, J., concurring)[“it is far worse to convict an innocent man thanto let a guilty man go free”].) Under the circumstancesofthis case where every fact necessary to supporta conviction of arson of inhabited property exist, a reversal of the conviction does not promotethe interest that the rule serves. Accordingly, appellant’s conviction should be upheld. B. Arson UnderSection 451, Subdivision (b), Sets Forth One Offense With Alternative Theories of the Same Degree, Therefore This Court May Affirm Without Modifying the Judgment Asdiscussed above, the arson statute under which appellant was prosecuted and convicted sets forth one offense involving alternative statutory theories of arson of the same degree. The statute describes alternative ways to commit the offense by including the burning ofeither an inhabited structure or inhabited property. In response to this court’s questions, appellant states that even though the evidenceat trial showed that he committed arson ofinhabited property, the jury’s verdict shows only that he committed the related offense of arson of an inhabited structure. Appellant argues that this court cannot modify the judgmentto reflect a conviction of an uncharged, non-included or separate related offense because to do so wouldviolate section 1181, subdivision (6). Heasserts thatit is irrelevant section 451, subdivision (b), sets forth one punishment. (ABM 13-16.) Appellant’s argumentthat this court has no authority to modify the judgmentto reflect the related offense of arson of inhabited property is wrong becauseonly one offenseis articulated by section 451, subdivision (b), not a set of related offenses. (People v. Green, supra, 146 Cal.App.3d at p. 378 [degrees of arson fixed according to injury or potential injury to humanlife involved].) Consequently, an affirmance of the conviction does not require this court to modify the judgment. In short, section 1181, subdivision (6), does not apply. Nevertheless, appellant summarily dismisses as “irrelevant”the Legislature’s intent to apply varying levels of punishmentaccordingtothe level of culpability involved. (ABM 15.) “It is both the prerogative and the duty of the Legislature to define degrees of culpability and punishment, and to distinguish between crimesin this regard.” (People v. Turnage (2012) 55 Cal.4th 62, 74.) Not surprisingly, the Legislature punishes more severely those arsonsthat hold the greatest potential for human injury. (§ 451, subd. (a).) For purposes of arson of an inhabited structure or inhabited property, the essential element that elevates culpability in the statutory schemeis not the thing burned, but whetherit is inhabited because of the potential for harm to humanlife. (§ 451, subd. (b).) The Legislature’s intent that the relative risk to humanlife is commensurate with the severity of the offense is manifest in its designating the burning of an inhabited structure or inhabited property in the same subdivision. Had the Legislature intended separate offense, it could have easily made two offenses simply by separating the alternatives into two different subdivisions. (See, e.g., People v. Gonzalez (2014) 60 Cal.4th 533, 540 [determination of separate offenses or different ways of committing same offense turns on Legislature’s intent, here legislative intent that section 281a, subdivisions (f) and (i) sets forth two separate offenses].) The United States Supreme Court’s decision in Schad v. Arizona (1991) 501 U.S. 624 [111 S.Ct. 2491, 115 L-Ed.2d 555], is instructive. There, the defendant was prosecuted for first degree murderon alternative theories of premeditation and felony murder, and no instruction required the jury to be unanimous on which theory supported the defendant’s guilt for first degree murder. (/d. at pp. 630-631.) The court reasonedthat because the alternative theories were not inherently separate offenses, unanimity was not required. (/d. at pp. 643-645 [Opn. of Souter, J. with Rehnquist, C.J. and O’Connor and Kennedy,JJ.], 649 [conc. opn. of Scalia, J.].) A plurality of four justices reasoned: “If... two mental states are supposed to be equivalent meanstosatisfy the mens rea element of a single offense, they must reasonably reflect notions of equivalent blameworthiness or culpability, whereas a difference in their perceived degrees of culpability would be a reason to conclude that they identified different offenses altogether. Petitioner has made out no case for such moral disparity in this instance.” (/d. at p. 643.) The court noted the same punishmentfor both means of committing first degree murder supported both means were a way to commit one offense. (/d. at p. 644 fn. 9.) So too here, because arson of an inhabited structure or inhabited property “reasonably reflect[s] notions of equivalent blameworthiness or culpability” and proscribes the same punishment, a single offense exists under section 451, subdivision (b). Thus, a reversal of the Court of Appeal’s opinion would not require this court to modify the judgmentto reflect a related offense, it would necessitate only an affirmanceof the conviction undersection 451, subdivision (b). Appellant’s claim that an affirmance would violate section 1181, subdivision (6), should be rejected. C. Appellant Received Proper Notice of the Arson Offense Under Section 451, Subdivision (b); the © Omission of “Inhabited Property” From the First AmendedInformation Did Not Undermine That Notice or Undermine Any Meaningful Defense to That Theoryof Arson - Asdiscussed in the opening brief on the merits, the evidence taken at the preliminary hearing clearly set out the offense of arson of an inhabited structure or inhabited property under section 451, subdivision (b). (I CT 24-26, 36-39, 42-43, 50-55.; People v. Holt (1997) 15 Cal.4th 619, 672.) The prosecutor’s theory ofliability at trial that appellant burned an inhabited structure does not render inadequate the notice of the alternative theory that he burned inhabited property. Because the constitutional requirementofnotice is established, appellant may be properly convicted . of arson undereither theory. Onthis record,it is clear appellant always had the opportunity to prepare and present a meaningful defense to arson undersection 451, 10 subdivision (b). In this case, appellant’s defense would not have been any different had both theories of arson under 451, subdivision (b), been presented. Appellant still would have argued that a motorhomewasnot a structure but property to avoid the multiple structure burning enhancement and hestill would have advanced the argumentthat he did not maliciously and willfully set the motorhomeonfire to avoid a conviction of the charge altogether. Notwithstanding appellant’s attempt to dispel the significance and application of these defenses under either charging scenario (ABM 16- 17), the fact that appellant’s defense would have remained consistent demonstrates that his due process right to an adequate defense was not prejudiced. Attrial, appellant’s defense focused on defeating the attempted premeditated murder charge. Additionally, appellant’s counsel recognized appellant had somelevel of culpability for the fire. Appellant’s counsel developed a strategic defense to the arson count that centered on appellant’s mental state. Appellant’s counsel acknowledged before the jury that appellant had engaged in criminal conduct by causing the motorhometo burn but attempted to mitigate the conductto the least culpable degree. Appellant’s counsel argued to the jury that appellant had not willfully and | maliciously set the fire to the inoperable motorhome. Counsel told the jury that appellant was “sending [his girlfriend] a message” whenhesetfire to the inoperable motorhomebecause he wantedherto get out. The spreading of the fire to the one in which she slept, counsel argued, was accidental. Lastly, he told the jury appellant’s conduct under the law was,at most, reckless burning of property. (2 RT 357.) Thus, counsel’s strategy involved proving appellant innocent of attempted premeditated murder, admitting the conductin setting the motorhomeon fire was wrongful to the extent his exposure to the Three Strikes law was shielded, and rebutting the sentence enhancementthat 1] alleged appellant “caused multiple structures to burn.” (§ 451.1, subd. (a)(4).) Even if the charging language had not been changed and continued to alternatively charge arson of an inhabited structure or inhabited property, and the jury had beenso instructed, the defense arguments would not have been anydifferent. The United States Supreme Court’s recent opinion in Lopez v. Smith (2014) US. [135 S.Ct. 1], a federal habeas corpuscase,is instructive. In the state court, the prosecutor proceeded on the theory that Smith killed his wife as a direct perpetrator. At the close of evidence however,the trial court granted the prosecutor’s request for an instruction on aiding and abetting liability and presented to the jury the additional theory that Smith could be found guilty of murder based uponhis status as an aider and abettor. The jury convicted Smith offirst degree murder without specifying a theory of guilt. (/d. at p. 2.) The state court concluded Smith received adequate notice of the possibility of conviction as an aider and abettor. The state court reasoned, “even if this case required greater specificity concerning the basis of defendant’s liability, the evidence presented at his preliminary examination providedit.” (/d. at p. 3.) Even though Smith “wasinitially adequately apprised of the offense against him,” because “the prosecutor focusedat trial on one potential theory of liability at the expense of another[,]” on federal habeas the Ninth Circuit Court of Appeals found notice constitutionally inadequate and granted Smith relief. In doing so, the Ninth Circuit relied on its own decision in Sheppard v. Reese (1989) 909 F.2d 1234 [where prosecution raised new theory of case at conclusionoftrial, court concluded defense denied adequate notice]. (Smith, supra, at p. 3.) Assuming without deciding that a defendantis entitled to notice of the possibility of conviction on an aiding and abetting theory, the Supreme Court concludedthat the grant of habeas relief could only be affirmedif its “cases clearly establish that a defendant, 12 once adequately apprised of such a possibility, can nevertheless be deprived of adequate notice by a prosecutorial decision to focus on another theory of liability at trial.” (/d. at p. 3.) Finding Sheppard irrelevant, the Supreme Court held there was no established case law that notice was constitutionally inadequate under such circumstances. (/d. at p. 5.) It therefore concluded the Ninth Circuit “had nobasis to reject the state court’s assessmentthat [Smith] was adequately apprised of the possibility of conviction on an aiding-and-abetting theory.” (/bid., italics added.) The result is the same in this case. Pleading and proof requirements weresatisfied by the evidence taken at the preliminary hearing. Therule is that “‘a defendant may not be prosecuted for an offense not shown by the evidenceat the preliminary hearing or arising out of the transaction upon which the commitment was based.” (People v. Burnett (1999) 71 Cal.App.4th 151, 165-166,; see Cal. Const., Art. I, § 14 [Felonies shall be prosecuted as provided by law,either by indictmentor,after examination and commitmentby a magistrate, by information.”].) The prosecutorfiled a first amended information that omitted the “inhabited property” language; however,appellant, like Smith, was adequately apprised ofthe possibility of conviction on this theory because the evidence supporting it was presented at the preliminary hearing. (Smith, supra, 135 S.Ct. at p. 5.) . Appellant does not appear to dispute that the evidenceat the preliminary hearing wassufficient to provide notice rather, he argues in his answeringbrief that if this court affirms the judgment a due process violation would result because he turned downa pre-trial settlement offer in reliance on the fact the prosecutor omitted “inhabited property” from the first amended information. (ABM 17-19.) However, any claim that he detrimentally relied on the prosecutor’s omission in taking the matter to 13 trial is not supported by the record. Therefore, appellant fails to make a sufficient showing of reliance and prejudice. Asappellant points out in his answering brief on the merits, there was a pre-trial settlement offer made on June 10, 2010. (1 CT 94.) Bythat time, the first amended information had beenfiled and appellant was on notice it was a Three Strikes case. (1 CT 70.) Appellant states that the other offers madepriorto trial were “extremely early.” He appears to argue that those offers cannot be considered and that the only relevant offer was the one made on June 10, 2010. (ABM 18.) Appellant observes the terms of that offer are not part of the record on appeal. (ABM 10.) He points to counsel’s statement midtrial at an instructional conference that he decided not to settle the case because of the way the prosecutor charged the arson countin the first amended information. (ABM 18; 1 RT 233 [“{A] lot of our decisions on whetheror not we were goingto trial were based upon the fact that the district attorney did not use the proper(sic) and could not meet the facts or elements of this case.”].) However, counsel’s bare statementin the heat of argumentduring theinstructional conference is not enough to show a due processviolation would result from an affirmance. Having gonetotrial is the prejudice appellant nowalleges. In order to establish that he was prejudiced by relying on the prosecutor’s omission, he would have to show that he would have agreed tothe plea offer but for the omission. (Cf., In re Alvernaz (1992) 2 Cal.4th 924, 937-938 {“[A] defendant’s self-serving statement-aftertrial, conviction, and sentence-that with competentadvice he or she would have accepted a proffered plea bargain,is insufficient in andofitself to sustain the defendant’s burden ofproofasto prejudice, and must be corroborated independently by objective evidence.” (Original italics)]; Lafler v. Cooper (2012) U.S.___ [132 S.Ct. 1376, 1385, 182 L.Ed.2d 398] [prejudice resulting from rejection of plea offer requires showing defendant would 14 have accepted plea, court would have accepted its terms, the conviction or sentence or both underthe terms of the offer would have been less severe than the judgment and sentence actually imposed].) Aside from counsel’s bare assertion, there is nothing in the appellate record to show the factors appellant considered whenherejected the prosecutor’s June 10 offer, only that appellant rejecteditlike all of the other offers. A determination as to appellant’s reliance cannot be made. To besure,all the record in this case demonstrates is that appellant wasneverinterested in settling the matter. Appellant consistently rejected all settlement offers. He rejected offers where he was charged with attempted murder and alternatively with arson of inhabited structure or inhabited property and the attendant multiple structures enhancement; where he was charged with attempted premeditated murder and alternatively with arson of inhabited structure or inhabited property and the attendant multiple structures enhancement; where he was charged with attempted premeditated murder and arson of inhabited structure and the attendant multiple structures enhancement, and where the prosecutor charged Three Strikes allegations. (1 CT 1-3, 8-11, 21, 94.) Even when appellant faced exposureto life in prison, he choseto reject settlement offers. Moreover, under any combination of the charges andallegations noted, appellant faced a substantial risk that the jury would find him guilty of the arsonoffense undersection 451, subdivision (b), based on the undisputed facts that he caused the motorhomein whichhisgirlfriend slept | to burn. Yet, appellant madea tactical decision that he could beat the charges and a Three Strikes sentence-especially when he refusedthefinal offer, a decision he claimed was based upon the prosecutor’s omission. But it was never a foregone conclusion that he would winin the trial court on an acquittal motion or be acquitted by the jury because it concluded a 15 motorhome wasnot a structure. The fact that he was “acquitted” by the Court of Appeal of burning an inhabited structure is beside the point. Atthe time oftrial, there was no legal precedent that a motorhome was not a structure. Appellant still had to make that argumentto prevail attrial. Thus, in refusing the prosecutor’s final settlement offer, appellant gambled that he would be able to persuadethe trial court that a motorhome wasnot | a structure, and if unsuccessful, he gambled that ultimately he would be able to persuade thejury. It cannot be concluded on this record that appellant was denied due process or prejudiced in connection with his decisionsthat led to his rejection of the prosecutor’s offers to settle the matter. From the first instance, appellant received constitutionally adequate notice that he was subject to criminalliability underthe different theories of arson articulated in section 451, subdivision (b), by the evidence taken at the preliminary hearing and there is no showingthat he detrimentally relied upon the prosecutor’s omission of“inhabited property” when he declined the final settlement offer. Appellant cannot meet his burden of showing he was prejudiced by goingtotrial and has never requested a limited remand in order to make that showing. As this Court has observed,““[W]hen the validity of a conviction depends solely on an unresolved or improperly resolved factual issue whichis distinct from issues submitted to the jury, such an issue can be determinedat a separate post-judgmenthearing and if at such hearing theissue is resolved in favor of the People, the conviction may stand.’ [Citation.]” (People v. Moore (2006) 39 Cal.4th 168, 176- 177.) Were appellant to satisfy his burden at a post-judgment hearing by showing he rejected the offer based on the mannerin which the prosecutor charged the offense, the remedy would not be “to grant a windfall” and ~ dismiss the case. (Lafler v. Cooper, supra, 132 S.Ct. at p. 1389.) The 16 correct remedy under those circumstances would be to order the prosecutor to reoffer the June 10 plea agreement. (/d. at p. 1391.) In sum,the jury’s verdict, appellant’s concessionat trial the motorhomewasproperty, and the Court of Appeal’s legal conclusion the motorhomewasproperty establish appellant’s guilt for the offense in section 451, subdivision (b). Based on the evidenceat the preliminary hearing, appellant had adequate notice and a meaningful opportunity to defend against a charge ofviolating section 451, subdivision (b), even in light of the prosecutor’s later decision to omit “inhabited property” from the first amended information and focus on the alternative and equally culpable theory that appellant burned an inhabited structure. As discussed, had the language ofthe charge not been omitted, his defense would have been nodifferent. Appellant fails to showthat his right to due process would be violated by an affirmance. Accordingly, this court should reverse the Court of Appeal’s ruling and affirm appellant’s arson conviction under section 451, subdivision (b). II. PENAL CODE SECTION 654 DOES NOT PREVENT RETRIAL OF AN OFFENSE PROPERLY ADDEDIN THE ORIGINAL PROSECUTION, BUT WHERE AN INSTRUCTIONAL ERROR RESULTED IN NO VERDICT BEING RETURNED | Alternatively, when a defendant impliedly consents to being placed in jeopardy of a conviction on a unchargedlesserrelated offense by failing to object to instructions on that offense and urging the jury to so convict as an alternative 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 becauseit constitutes a continuation of the original prosecution, rather than a new, successive prosecution barred by section 654. Becausethe jury here did not make a finding on arson of property as instructed, jeopardy has not terminatedasto that offense. 17 Therefore, a retrial on the offense of arson ofproperty does not implicate, and is not prevented by, state or federal principles of double jeopardy. Contrary to appellant’s arguments,retrial to resolve the issue of guilt is proper undersuch circumstances. A. This Court’s Decision in Kellett Construing Section 654 Does Not Apply to Prevent Retrial of Charges Properly Before the Jury in the Original Prosecution This case does not pose the problem that arises when a defendantis charged with and convicted of an offense, that offense is reversed on appeal, and subsequently the defendant is newly charged with a related offense for the same act. Under such circumstances a new prosecution exists and is barred by section 654 as construed bythis court in Kellett.’ The holding 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 conductof an earlier prosecution. (Kellett, supra, 63 Cal.2d at p. 827.) Clearly the rule in Kellett does not apply to this case because the offense in issue-arson of property-wasbefore the jury. (1 CT 118-119; see CALCRIM No. 1515, Arson.) Appellant ignores the effect of the instruction but ultimately cannot avoid its import. The majority acknowledgedthatthe trial court instructed the jury on the offense of arson of property, but it relied exclusively on the rule in Kellett whenit reversed. * Section 654states as follows: An act or omission that is punishable in different ways by different provisions of law shall be punished underthe 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 onebars a prosecution for the sameact or omission under any other. 18 (Opn.at p. 9.) This was error. More specifically, where, as here, a defendant has agreed to an unchargedlesser offense and, because of an instructionalerror, the jury does not return a verdict on it, leaving it unresolved,retrial does not result in unreasonable harassmentthat Kellett was designedto protect against. (Kellett, supra, 63 Cal.2d at.p. 827.) In short, retrial serves to resolve the matter without implicating any of the concernsraised by a new andsuccessive prosecution within the meaning of section 654 as construed by Kellett. B. The Lesser Offense of Arson of Property Was Before the Jury Without Objection by the Defense; Any Claim the Jury Was Improperly Discharged When It Failed to Declare a Verdict as to This OffenseIs © Forfeited, and the Issue of Appellant’s Guilt Should Be Resolved by Retrial During discussions on thejury instructions, appellant’s counsel did not object to the jury’s consideration of the lesser related offense of arson ofproperty and byfailing to do so, impliedly consentedto putting the offense before the jury. (2 RT 285.) A defendant need not explicitly requestthat a jury instruction be given for an amendmentto occur. It is well settled that a defendant is considered to have impliedly consented to an amendmentofthe charge whenhefails to object to the jury instructions or verdict form that gives rise to a nonincluded offense. (People v. Toro (1989) 47 Cal.3d 966, 976-977.) This court held in Toro, “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.) The dissent in this case properly concluded that the charge was effectively amended by way ofjury instruction and could be ““‘treated as if the offense had been charged.’” (Dis. Opn.at pp. 2-3, quoting Orlina v. Superior Court (1999) 73 Cal.App.4th 258, 263- 19 264 (Orlina).) In Orlina, supra, 73 Cal.App.4th 258, the court addressed whetherthe 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 request that the jury be instructed on the lesser related offense effectively amended the information to add a count: By requesting the jury be instructed on the lesser offense, be it an included or related one, a defendantasksto betried on a crime not charged in the accusatory pleading. By doing so, the defendant implicitly waives any objection based on lack of notice. Such defendants in 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.) Appellant goes to great length to distinguish Orlina (ABM 29-31), because there, unlike this case, the jury deadlocked on the charge soughtto be retried. Respondent agreesthat this distinction exists but neither the dissent nor respondentrelies on Orlina for the proposition that charges on which the jury has deadlocked mayberetried. (See Dis. Opn.at 2-3; BOM 35.) Rather, Orlina’s applicability to the current case relates to the amendmentofthe charge and demonstratesthe casefalls within the rule of Toro because the charge here waseffectively amended based onthe instruction. Consentto conviction of lesser related offense has been foundnot only when a defendant requests an instruction on thelesser offense, or when he impliedly consents to such instruction by failing to object as in the Toro line of cases, but also when he urges conviction on the lesser. (People v. Ramirez (1987) 189 Cal.App.3d 603, 623 (Ramirez), disapproved on another point in People v. Russo (2001) 25 Cal.4th 1124, 1137.) The record showsthat appellant impliedly consented to the charge by urging the jury to convict him of a lesser count. (2 RT 354-356, 358, 20 368-369.) The argument was reasonable because whentheparties litigated the motorhome-is-a-structure issue midtrial, the trial court was not persuaded by appellant’s argument that the motorhomewasnota structure butinstead a vehicle or property. (1 RT 241.) Appellant’s theory of the case focused on his mentalstate and that the motorhome, along withits contents, was mere property. Aside from a complete acquittal, which was unlikely, the arson of property offense and any lesser offensesto it had to be before the jury for the defense to argue he should suffer the least degree of culpability in an attempt to achieve the best possible result. (Peoplev. Taylor (1969) 273 Cal.App.2d 477, 485-486.) Nevertheless, appellant asserts that the instructions provided by the trial court madeit “harder” for him to avoid a Three Strikes sentence. (ABM 20-22.) That is not so. The hardest hurdle for appellant was always complete acquittal. Had the jury found him guilty of simple arson of property (§ 451, subdivision (d)), a felony, appellant still would have been in a better position to arguethe trial court should exercise its discretion to strike one or morepriorstrikes. (§ 1385.) The lesser offense instructions could not have made it more difficult for appellant; they only could have benefitted him. Indeed, appellant would have been able to successfully defeat the Three Strikes allegations had the jury been persuaded by his argumentsthat he burned mere property and did so recklessly. He then would have been convicted of a misdemeanor(§ 452, subdivision (d)), and therefore would have been outside the reach of the Three Strikes law under which he wasultimately sentenced. (1 CT 97, 262-265; 2 CT 297-298, 311-314.) In the end, the jury choseto convict him ofthe greatest arson offense, consequently the lesser offenses ultimately did not matter. Whether the claimed hardship existed or not, the fact remains that appellantfailed to objectto thetrial court’s proposed instructionsandinstead lent his tacit agreementto them. 21 Viewingthe instructional conference in this way,it does not follow that the prosecution’s charging decisionis the reasonthe trial court misinstructed the jury. (Opn. at p. 10 [“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.”’].) The Court of Appealand appellant lay the blameat the prosecutor’s feet for not having charged the offense of arson of property.” However, the instruction mischaracterizing the offense so that the jury failed to return a verdict on it was not the result of the prosecution’s charging decision; it was the result of an error duringtrial in which appellant had full and fair opportunity to object rather than acquiesce. In short, it is precisely because the prosecutor had not charged the offense that appellant could have objected. (People v. Birks (1998) 19 Cal.4th 108, 136, fn. 19 [an uncharged related offense can only be addedto the charge by mutual consentofthe parties].) His failure to do so sealed his fate. The effect of the failure to object to instructional error allowed the jury to be discharged without declaring a verdict on thelesser related offense and delayed resolution of _ the charge,it did not preventretrial. In the wordsofthe dissent, the charge is still “pending” and appellant can “lawfully be retried for arson of property.” (Dis. Opn.at pp.1, 3.) Appellant makes an additional claim that places blameonthetrial court for denying his motion for acquittal on the arson count “and any lessers that require the burning ofa structure,” which wasbased uponhis > As noted in respondent’s openingbrief on the merits, arson of property undersection 451, subdivision (d), is not a lesser included offense of arson undersection 451, subdivision (b), because the limitation of burning one’s own property in section 451, subdivision (d), does not exist in section 451, subdivision (b). (BOM 26 fn. 6.) 22 motorhome-is-not-a-structure argument. (ABM 32-33; 2 RT 326.)° He relies on the Court of Appeal’s determination that “the motorhomeis a vehicle” and property under the arson statutes to show thetrial court erred in denying his motion. (Opn.at p. 6-7.) However, the Court of Appeal’s legal conclusion does not resolve whethera retrial is proper. Further, 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, amountsto forfeiture of a claim that the discharge wasimproper. (§ 1164; People v. Saunders (1993) 5 Cal.4th 580, 590; People v. Anzalone (2013) 56 Cal.4th 545, 550.) Appellant’s reliance on the language of section 1180 relating to the granting of a newtrial and requiring “a former verdict” to prevent this court from orderingretrial of the arson of property offense misses the point. (ABM 23-24.) Absent any objection below, appellant cannot now claim that the absence of a verdict preventsretrial. He is not entitled to a “‘get out ofjail free card’” because the jury was discharged without a verdict on the lesser countof arson of property. (Dis. Opn.at p. 1.) C. 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 Appellant agreed to be placed in jeopardy ofthelesser related offense. Asnoted in the preceding section, his consent to the jury instructions included allowing the jury to be discharged without rendering a verdict on the arson of property offense. The consequenceofthis instructionis that © When appellant made his motion for acquittal, the trial court had already providedits instructions to the jury. (2 RT 315.) 23 appellant’s jeopardy for the offense has not terminated. As such, federal and state double jeopardy protections are not violated byretrial to resolve the question of guilt. “The Fifth Amendmentto the United States Constitution provides that ‘[n]o person shall ... be subject for the same offense to be twice put in jeopardyoflife or limb....”. This guaranteeis applicable to the states through the Fourteenth Amendment. [Citations.] Similarly, articleI, section 15, of the California Constitution provides: ‘Persons may not twice 999 be put in jeopardy for the sameoffense... (People v. Saunders, supra, 5 Cal.4th at pp. 592-593.) The state’s constitutional double jeopardy protection is codified in section 1023 whichstates: “When the defendant is convicted or acquitted or has been once placedin jeopardy upon an accusatorypleading, the conviction, acquittal, or jeopardyis 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 under that accusatory pleading.” 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 same offense.’ [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 protection of the Double Jeopardy Clause byits terms applies only if there has been some event, 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, whena trial produces neither an acquittal nor a conviction,retrial may be permittedif the trial ended ‘without finally resolving the merits of the charges against the 24 accused.’” (People v. Anderson (2009) 47 Cal.4th 92, 104, quoting Arizona v. Washington (1978) 434 US. 497, 505 [98 S.Ct. 824, 54 L.Ed.2d 717].) Federal and California state courts have taken the position that retrial is proper following the discharge of the jury before rendering its verdict based upon legal necessity or a defendant’s consent. (/bid.; Stonev. 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. not return a verdict on the lesser offense of arson of property if it found guilt on the greater offense of arson of an inhabited structure is reasonably construed as implied consentto the process by which the jury was discharged. By logical extension, he agreed to both the jury instructions and their consequence: the jury was discharged without rendering a verdict. Howevererroneousthoseinstructions were, appellant’s consentis still valid. The principle that a defendantis entitled to a fair trial, not a perfect one, even where he has been exposed to - substantial penalties, resonates underthe circumstances. (See Peoplev. Marshall (1990) 50 Cal.3d 907, 945; People v. Hamilton (1988) 46 Cal.3d 123, 156; see also Schneble v. Florida (1972) 405 U.S. 427, 432 [92 S.Ct. 1056, 31 L.Ed.2d 340]; see, e.g., United States v. Hasting (1983) 461 U.S. 499, 508-509 [103 S.Ct. 1974, 76 L.Ed.2d 96] [“{G]iven the myriad safeguards provided to assure a fair trial, and taking into accountthereality of the human fallibility of the participants, there can be no such thing as an error-free, perfect trial, and ... the Constitution does not guarantee such a trial.”].) Appellant’s trial was not perfect, but he cannot now pointto those imperfections in which he acquiesced to escaperetrial. 25 Nor wouldit be fair to the People for this court to reverse appellant’s arson conviction and dismiss the matter on the basis of double jeopardy. Indeed, this court recognized the United States Supreme Court’s pragmatic application of double jeopardy protection in Saunders: “Courts ‘have disparaged “rigid, mechanical”rules in the interpretation of the Double Jeopardy Clause.’ [Citation.]’ [Citation.] ‘The exaltation of form over substanceis to be avoided.’ [Citation.] The standards for determining when a double jeopardy violation has occurred are not to be applied mechanically. [Citations.]” (People v. Saunders, supra, 5 Cal.4th at p. 593.) Nostate or federal constitutional principle of double jeopardy is violated when a defendantis subjectedtoretrial of a lesser related offense after he has agreedto beplaced 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. Conversely, to the extent the prosecutor wassilent on the ‘matter of the jury’s discharge, her silence does not trigger application of the double jeopardy prohibition. Nevertheless, appellant argues prosecutorial “sloppiness” requires retrial to be barred by double jeopardy principles. He relies on this court’s earlier decision in People v. Superior Court (Marks) (1991) 1 Cal.4th 56 (Marks), in his effort to avoid the potential outcomeofretrial. (ABM 22- 23, 40-41, 48-49.) In that case, this court addressed the issue of whether principles of double jeopardy limited the scope of re-prosecution. (Id. at p. 62.) Marks wasoriginally tried for capital murder, convicted and the jury imposeda verdict of death. This court reversed based on the trial court’s failure to hold a competency hearing. This court also found that _ jury’s failure to specify the degree of murder ofwhich Marks was convicted contravened section 1157, which requires the degree of crime to be specified and wherenot specified, reduces the offense to the lesser 26 degree. After Marks’ competency wasrestored, the prosecutor reinstated the charge of first degree murder. Marks invokedthe prohibition against double jeopardy. (Ud. at pp. 62-63.) This court held that section 1157 operated like an implied acquittal of first degree murder and by operation of law his murder conviction was reduced to second degree. The resulting consequencewasthat the prosecutor was limited to re-prosecuting Marks on a charge of second degree murder. (/d. at pp. 74-76.) Under such circumstances, this court “perceive[d] no unfairness to the People [...] [w]hen the verdict is ‘deemed ofthe lesser degree’ by operation of law, the prosecution bearsat least partial responsibility.” (Ud. at p. 77, italics added.) The issue in Marks centered on the proper scope of re-prosecution by operation of law and specifically, an implied acquittal under section 1157. (See People v. Fields (1996) 13 Cal.4th 289, 295 [after jury deadlock, retrial of greater offense barred by section 1023 where jury returned verdict on lesser included offense insame proceeding].) This case is different becausehere the jury convicted appellant of the greater offense. The jury’s silence on the lesser offense of arson ofproperty that was based upon an instructional error does not constitute an implied acquittal of that offense by operation of law or otherwise. Rather, the count is “unresolved” and still “pending.” (Dis. Opn.at p. 3.) Even ifMarks applied, re-prosecution under Marks is limited, not barred. To the extent the limitation on re-prosecution was deemed appropriate in Marks, the same maybe said here. Like Marks, appellant cannotbe re-prosecuted for greater offense of arson of inhabited property because ofthe principles of double jeopardy. But a total bar toretrial would result in “unfairness to the People.” Granting retrial on the offense of arson of property effectively limits re-prosecution in this case to the lesser offense and comports with the reasoning in Marks that “the 27 prosecution bear[] at least partial responsibility” for not calling the error in the jury’s dischargeto thetrial court’s attention. (Marks, supra, 1 Cal.4th at p. 77.) Additionally, the cases relied upon by appellantto preventretrial are distinguishable in another aspect: this not a case where the prosecutor can be faulted for moving forward withoutsufficient evidence to convict appellant so thatretrial is improper. (ABM 37-38;see, e.g., Downumv. 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 because oneofits key witnesses was absent and had not been found andthe prosecutor allowed the jury to be sworn and selected under these circumstances, rather than moveto dismissits case before thejury was sworn and jeopardy attached]; Martinez v. Illinois (2014) U.S. [134 S.Ct. 2070, 188 L.Ed.2d 1112] (per curiam) [Double Jeopardy Clause barred state’s appealoftrial court’s directed verdicts of not guilty on charges of aggravated battery and mobaction, entered after State declined to present evidence against defendantafter jury was sworn, since the directed verdicts constituted acquittals].) Here, the prosecution did move forward and proceeded throughtrial as evidenced by the jury’s verdict for the “greater” offense. Further, appellant agreed he may be convictedofthe lesser offense of arson of property. Indeed, he urged the jury to convict him of burning property. (2 RT 354-358, 360-361, 364, 366-367; People v. Ramirez, supra, 189 Cal.App.3d at p. 623.) He agreedto the jury instructions on the offense of arson ofproperty and their necessary consequence-the way in which the jury was discharged. (Toro, supra, 47 Cal.3dat pp. 976-977; Orlina, supra, 73 Cal.App.4th at p. 263-264; People v. Sullivan, supra, 217 Cal.App.4th at p. 256.) Thus, he “has no constitutional interest in preventinghis retrial” for arson, and “there is an important public interest 28 in finally determining whether he committed that offense.” (Stonev. Superior Court, supra, 31 Cal.3d at p. 522.) Theinstructional error that occurred has delayed resolution of the lesser related count. 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 unchargedlesser related offense and an instructional error subsequently occurs for which the defendant fails to object that rendersthe issue of guilt on that offense unresolved, the prosecutor may retry the offense. 29 CONCLUSION For the reasons explained in respondent’s opening brief on the merits and herein, respondent respectfully requests that this court affirm appellant’s conviction under section 451, subdivision (b), because the jury’s verdict, appellant’s concession the motorhomewasproperty and the Court of Appeal’s opinion establish appellant’s guilt. Alternatively, this court should remand the matter for retrial of arson of property, an offense that was properly before the jury by way of appellant’s consent, yetleft unresolved as a consequenceofinstructional error. Dated: December 23, 2014 Respectfully submitted, KAMALAD. HARRIS Attorney General of California GERALD A. ENGLER Chief Assistant Attorney General 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 Attorneysfor Respondent FS:swm $D2014808005 71000550.doc 30 CERTIFICATE OF COMPLIANCE I certify that the attached REPLY BRIEF ON THE MERITSusesa 13-point Times New Romanfont and contains 9,175 words. Dated: December 23, 2014 KAMALAD. HARRIS Attorney General of California FELICITY SENOSKI Deputy Attorney General Attorneysfor Respondent DECLARATION OF SERVICEBY 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 memberofthe California State Bar, at which member's direction this service is made. I am 18 years of age or older and not a party to this matter. I am familiar with the businesspractice at the Office of the Attorney Generalfor collection and processing of correspondence for mailing with the United States Postal Service. In accordance with that practice, correspondenceplaced in 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 December24, 2014,I served the attached REPLY BRIEF ON THE MERITS,by placing a true copy thereof enclosed in a sealed envelope in 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 a OFFICE OF THE DISTRICT ATTORNEY KEVIN JLANE CLERK 412 WHOSPITALITY LN 1ST FLR CALIFORNIA COURT OF APPEAL 3389 TWELFTH ST RIVERSIDE CA 92501 I declare underpenalty of perjury underthe laws ofthe State of California the foregoing is true and correct and that this declaration was executed on December 24, 2014, at San Diego, California. STEPHEN MCGEE Declarant nn $D2014808005 71000558.doc