People v. Nedd
| Docket Number | E073575 |
| Decision Date | 04 January 2022 |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. RICHARD TOBIAS NEDD, et al., Defendants and Appellants. |
| Court | California Court of Appeals Court of Appeals |
NOT TO BE PUBLISHED
Order Filed Date: January 4, 2022
APPEAL from the Superior Court of San Bernardino County. Nos 16CR020590, 16CR020593 Victor R. Stull and Cara D. Hutson Judges. Affirmed in part; reversed in part with directions.
Jean Ballantine, under appointment by the Court of Appeal, for Defendant and Appellant Richard Tobias Nedd. Robert Booher under appointment by the Court of Appeal, for Defendant and Appellant Arieon Shoulders.
Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.
The Petition for rehearing filed by defendant and appellant Richard Tobias Nedd on December 23, 2021, is denied. The opinion filed on this matter on December 21, 2021, is modified as follows:
On page 5, the first full paragraph is stricken, and the following paragraph is added in its place:
We agree with Nedd's claim that double jeopardy principles bar retrial of the premeditation allegation against Nedd in count 2, based on his jury's not true finding on the premeditation allegation. Our reversal of defendants' convictions and sentences in counts 1 and 2 makes it unnecessary to address two other claims raised in this appeal: (1) defendants' claims that their juries were erroneously instructed that they could convict defendants of the attempted premediated murder of Richard F. in count 2 based on a natural and probable consequences theory; and (2) defendants' claims that their six-year, unstayed terms for the first degree residential robbery of Richard F. in count 4, must be stayed due to their greater, indeterminate terms on counts 1 and 2.
On page 59, after the third line, and before the heading add the following subsection:
3. Nedd May Not Be Retried on the Premeditation Allegation in Count 2
Nedd claims double jeopardy principles bar retrying him on the premeditation allegation on the attempted murder charge in count 2 because his jury found the premeditation allegation in count 2 not true. We agree.
Nedd's jury was given guilty and not guilty verdict forms for the attempted murder charge in count 2 and separate, special allegation forms for finding the premeditation allegation in count 2 true or not true. The verdict forms allowed the jury to find Nedd (1) guilty of "attempted willful, deliberate, and premeditated murder . . . as charged in count 2 of the information" [verdict form 2-A], or (2) "not guilty as charged in count 2 of the information" [verdict form 2-B]. The special allegation form asked the jury to find whether "the allegation that the offense charged in count 2 was committed willfully, deliberately, and with premeditation" was true or not true. Thus, the guilty verdict form for count 2 contained premeditation language and did not give Nedd's jury the option of finding Nedd guilty in count 1 without also finding that the attempted murder was willful, deliberate, and premeditated.
During its deliberations, Nedd's jury sent the court a note asking, "Why is 'attempted, willful, deliberate, and premeditated' written on [the] count 2 special allegation [form] AND the verdict [form] 2-A?" After conferring with counsel, the court responded to the note in writing: (Italics added.) Nedd's jury later returned verdict form 2-A, finding Nedd guilty of the "attempted willful, deliberate, and premeditated murder" of Richard F. in count 2, but finding the premeditation allegation not true on the special allegation form in count 2.
The trial concluded in September 2016, but defendants were not sentenced until August 23, 2019. The trial judge (Hon. Victor Stull) died in 2018, and another judge (Hon. Cara D. Hutson) sentenced defendants. Despite the not true finding on the special allegation form for the premeditation allegation in count 2, at sentencing the court treated Nedd as having been convicted of attempted premeditated murder in count 2-ostensibly based on the premeditation language in verdict form 2-A. Nedd was sentenced to seven years to life (life with the possibility of parole, with a seven-year minimum parole eligibility period), the required sentence for attempted premeditated murder. (§§ 664, subd. (a), 3046; People v. Bright (1996) 12 Cal.4th 652, 662).) An attempted murder that is not premeditated is punishable by five, seven, or nine years in state prison. (§ 664, subd. (a); People v. Seel (2004) 34 Ca 1.4th 535, 541.)
Nedd claims that verdict form 2-A was defective in that it did not give his jury the option of finding him guilty of attempted murder and only allowed his jury to find him guilty of attempted premeditated murder. He notes that his jury was "clearly confused" as to why verdict form 2-A included the phrase "willful, deliberate, and premeditated," when the jury was asked to separately find, in the special allegation form, whether the attempted murder, if any, was willful, deliberate, and premeditated. He claims the court's response to the jury's question about the repeated premeditation language in verdict form 2-A and in the special allegation form failed to clear up the confusion and incorrectly stated the law.
The trial court has a "duty to clear up any instructional confusion expressed by the jury." (People v. Gonzalez (1990) 51 Cal.3d 1179, 1212; People v. Smithey (1999) 20 Cal.4th 936, 985 []; § 1138.) In response to the jury's question as to why verdict form 2-A and the special allegation form for the premeditation allegation both contained the phrase" 'willful, deliberate and premeditated, '" the court correctly told the jury that it was required to "make a specific finding as to 'willful, deliberate, and premeditated' murder." (§ 664, subd. (a)). The court told the jury that the premeditation allegation was "redundant" to the charged offense of attempted willful, deliberate, and premeditated murder, "insofar as the charge includes the same language, but it is necessary to comply with the law."
The court's response was erroneous. It was unnecessary to have the willful, deliberate, and premediated language used both in the verdict form for the charge and in the special premeditation allegation. Such language in the guilty and not guilty verdict forms created confusion and ambiguity. Under section 664 and the applicable instructions, the jury was first required to determine whether the People proved Nedd's guilt of the attempted murder charge beyond a reasonable doubt. The jury was specifically instructed that if it found Nedd guilty of attempted murder, only then would it proceed to determine the truth of the premeditation allegation-whether the attempted murder was done willfully, and with deliberation and premeditation.
The court's response to the jury's question did not remedy the defect in verdict form 2-A. As Nedd points out, verdict form 2-A was defective because it did not give his jury the option of finding him guilty of only attempted murder. Instead, it only allowed his jury to find him guilty of attempted premeditated murder. We agree that the court should not have instructed the jury in this manner. The court should have remedied this defect by striking the "willful, deliberate and premeditated" language from verdict form 2-A, either (1) when the jury questioned why this language appeared in verdict form 2-A and in the special allegation form, or (2) after the jury returned its verdicts and the special allegation form, finding the premeditation allegation not true.
Nevertheless, the record shows that Nedd's jury intended to find Nedd guilty only of attempted murder, not attempted premeditated murder. In light of the court's response to its question, Nedd's jury must have believed that its not true finding on the premeditation allegation meant that it was only convicting Nedd of attempted murder when it signed verdict form 2-A. That is, Nedd's jury must have believed that the premeditation language in verdict form 2-A was of no effect in light of its not true finding on the premeditation allegation. As Nedd further argues, double jeopardy principles bar the prosecution from retrying him on the premeditation allegation in count 2, given his prior acquittal on the allegation. (People v. Carbajal (2013) 56 Cal.4th 521, 533-534; Bigelow v. Superior Court (1989) 208 Cal.App.3d 1127, 1133-1138.)
On page 70, the following sentence is added to the end of the paragraph under the heading,
Nedd's retrial for the attempted murder of Richard F. count 2, if any, is limited to a charge of attempted murder and cannot include an allegation that the attempted murder was willful, deliberate, and premeditated.
There is no change in the judgment.
OPINIONFIELDS J.
In 2016, defendants Richard Nedd and Arieon Shoulders were tried together before separate juries and found guilty as charged of the first degree murder of Julian K. (Pen. Code, § 187, subd. (a), [1] count 1); the attempted premeditated murder of Richard F. (§§ 664, subd. (a), 187, subd (a), count 2), and the...
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