Stone v. Superior Court

Decision Date01 June 1982
Citation31 Cal.3d 503,646 P.2d 809,183 Cal.Rptr. 647
Parties, 646 P.2d 809 Clifford STONE, Petitioner, v. The SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent, The PEOPLE, Real Party in Interest. L.A. 31395.
CourtCalifornia Supreme Court

Milton J. Silverman, San Diego, for petitioner.

Quin Denvir, State Public Defender, Lisa Short, Deputy State Public Defender, Carl Yaeckel, San Diego, and Frank X. Nageotte, San Jose, as amici curiae for petitioner.

No appearance for respondent.

Edwin L. Miller, Jr., Dist. Atty., Richard D. Huffman, Chief Deputy Dist. Atty., Paul M. Morley, Hugh E. McManus and Terry J. Scott, Deputy Dist. Attys., for real party in interest.

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Daniel J. Kremer, Asst. Atty. Gen., A. Wells Petersen, Steven V. Adler and Pat Zaharopoulos, Deputy Attys. Gen., John K. Van de Kamp, Dist. Atty., Los Angeles, Harry B. Sondheim and Richard W. Gerry, Deputy Dist. Attys., as amici curiae for real party in interest.

MOSK, Justice.

That no criminal defendant should be twice forced to bear the risk of conviction for a single offense is a basic precept of our system of criminal justice. From this deceptively simple premise is derived much of the complex, rapidly expanding body of law implementing the constitutional prohibition against double jeopardy.

The murder case at bar presents four issues: (1) whether we should give effect to the informally expressed, albeit unequivocal, intent of the jury to unanimously acquit this defendant of the charge of murder; (2) whether the double jeopardy prohibition against multiple prosecutions for a single offense requires that trial courts provide a means for the receipt of a partial verdict when a jury unanimously favors acquittal on a charged offense yet remains deadlocked as to an uncharged lesser included offense contained by implication in the same count; (3) whether a partial verdict of acquittal on a greater offense prevents a subsequent prosecution for the uncharged lesser included offense as to which the jury was unable to agree; and (4) whether the trial court's declaration of a mistrial and subsequent discharge of the jury herein was premature with respect to the manslaughter offenses.

Beginning in June 1980, defendant Clifford Stone stood trial on a charge of murder. (Pen.Code, § 187.) The jury was instructed on first degree murder, second degree murder, voluntary manslaughter, and involuntary manslaughter. The verdict forms presented the jury with six options: declare the defendant guilty of the charged offense or any of the three uncharged lesser included offenses; find that he committed a justifiable homicide; or simply acquit him. Parenthetically, we can perceive no reason for distinguishing, in this context, justifiable homicide and acquittal.

The jury deliberated for seven days, but was unable to reach a unanimous verdict within the options presented to it. The prosecution and defense counsel then stipulated to an inquiry to determine the jury's position. The foreman reported in open court that the members of the jury stood as follows:

                First degree murder         No votes
                Second degree murder        No votes
                Voluntary manslaughter    Four votes
                Involuntary manslaughter   Two votes
                Justifiable homicide       Six votes
                Acquittal                   No votes

In response to questioning from the court, each juror expressed the opinion that the jury was hopelessly deadlocked and further deliberations would not yield a verdict. The court dismissed them for the day.

The next morning, before the jury had reentered the courtroom, defense counsel filed a motion asking the court to adopt one of a number of alternative courses of action designed to give effect to the jury's obvious intent: (1) to formally receive a verdict on the offenses of first and second degree murder; (2) to require the prosecution to amend the accusatory pleading to charge manslaughter in a separate count; (3) to submit to the jury a request for a special verdict on the existence of malice; or (4) to withdraw from the jury's consideration all lesser included offenses if the prosecution was unwilling to amend the information. The court responded by recognizing that "After seven days of deliberation, the foreman has indicated there is no one for first degree murder, no one for second degree murder ...." However, the court felt compelled to deny defendant's motion because of the lack of any established procedure for the receipt of a partial verdict in these circumstances: "My opinion, I don't have any authority to take any of the action that you request other than to protect your record by what we have in. And I think ... that if any action is going to be taken, it has to come from a court higher than a Superior Court, which is required to follow the criminal law and procedure." Moments later, this colloquy ensued:

"THE COURT: ... I think your remedy, if there is one at all, lies with the California Supreme Court....

"MR. SILVERMAN [defense counsel]: ... if it gets to the California Supreme Court, I think that the court here, the trial court should have a clear expression from this jury as to its finding with respect to first and second degree murder.

"THE COURT: I am ruling that there is a clear expression that after approximately ten weeks of trial and one week of deliberations there is not one juror of the 12 who believes that the evidence is sufficient to support a finding of first degree murder beyond a reasonable doubt. I don't think I can give you any more." (Emphasis added.)

When the jury was brought into the courtroom and again polled to see if each juror believed that further deliberations could possibly result in a verdict, one juror expressed hope that a verdict might be reached. The court ordered further deliberations. However, a day and a half later, the foreman again indicated that the jury was unable to render a unanimous verdict, and each juror agreed. Before discharging the jury and declaring a mistrial, the court again asked the foreman how the jury stood on the individual offenses, with this result:

                First degree murder          No votes
                Second degree murder         No votes
                Voluntary manslaughter    Three votes
                Involuntary manslaughter   Five votes
                Justifiable homicide       Four votes
                Acquittal                    No votes

After the court declared a mistrial and denied defendant's motion for dismissal of some or all of the charges, defendant sought extraordinary relief in the form of a writ of prohibition. 1 It is defendant's theory that the jury functionally acquitted him on the murder charge and therefore double jeopardy prevents his retrial for murder. He also seeks to avoid retrial for manslaughter, asserting statutory and constitutional grounds barring such retrial.


First addressing the question whether double jeopardy principles forbid a retrial of defendant on the charge of murder, we are mindful that the double jeopardy clause of the Fifth Amendment applies to the states through the general provisions of the Fourteenth Amendment. (Benton v. Maryland (1969) 395 U.S. 784, 794-796, 89 S.Ct. 2056, 2063-2064, 23 L.Ed.2d 707.) Thus, the minimum standards of double jeopardy protection for criminal defendants, as enunciated by numerous United States Supreme Court decisions, are binding on this court. Of course, we remain free to delineate a higher level of protection under article I, section 15 (formerly § 13), of the California Constitution. (Curry v. Superior Court (1970) 2 Cal.3d 707, 716, 87 Cal.Rptr. 361, 470 P.2d 345; see also Bunnell v. Superior Court (1975) 13 Cal.3d 592, 601, 119 Cal.Rptr. 302, 531 P.2d 1086.)

Defendant contends that the jury effectively found him not guilty of the offenses of first and second degree murder and that we should give formal effect to the jury's intent by preventing his retrial for those offenses. The early cases interpreting the double jeopardy clause established the fundamental principle that no criminal defendant can be retried for an offense of which he has once been acquitted. (See United States v. Ball (1896) 163 U.S. 662, 671, 16 S.Ct. 1192, 1195, 35 L.Ed. 602; People v. Webb (1869) 38 Cal. 467, 479-480.) This basic protection was long ago codified in Penal Code sections 687 and 1023, enacted in 1872. 2 It is plain, then, that if we recognize the jury's actions to be the equivalent of an acquittal of murder, defendant cannot be retried for either degree of that offense.

The facts demonstrate overwhelmingly that the jury, having evaluated for one entire week all the evidence the prosecution was able to muster, unanimously concluded that the prosecution had not introduced sufficient evidence to convince them to convict the defendant of murder. The trial court made an unambiguous and amply supported finding of this fact. The question is whether we should accord the terminal effect of a verdict to such an unequivocally expressed conclusion of a jury.

Two lines of authority are cited for the proposition that we should recognize the jury's plain intent not to convict defendant of murder. 3 The first series of cases is summed up as follows in People v. Bratis (1977) 73 Cal.App.3d 751, 763, 141 Cal.Rptr. 45: " 'There are innumerable authorities which declare that the form of the verdict is immaterial if the intention to convict of the crime charged is unmistakably expressed. [Citations.]' " These authorities have developed despite the language of section 1162, which states: "If the jury persists in finding an informal verdict, from which, however, it can be clearly understood that their intention is to find in favor of the defendant upon the issue, it must be entered in the terms in which it is found, and the Court must give judgment of acquittal. But no judgment of conviction can be given unless the jury expressly finds against the defendant upon the issue...." Related cases have stressed that in...

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