Opinion
Certified for Partial Publication.
Pursuant to California Rules of Court, rule 976.1, this opinion is certified for publication with the exception of part II.J.
Review Granted March 25, 1998.
Previously published at 59 Cal.App.4th 1095 William D. Farber, San Rafael, for Mendoza.
David McNeil Morse by appointment of the Court of Appeal under the First District Appellate Project's independent case system, San Francisco, for Valle.
Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Ronald A. Bass, Senior Assistant Attorney General, Stan M. Helfman, Supervising Deputy Attorney General, John R. Vance, Jr., Deputy Attorney General, for Respondent.
PETERSON, Presiding Justice.
In the published portion of this opinion, we hold, as a matter of first impression, that the failure of a jury verdict to specify explicitly the degree of what can only be first degree felony murder as a matter of law (PEN.CODE, § 189), does not automatically compel reduction of the ensuing judgment to one for second degree murder under section 1157, if our review of the entire cause required by California Constitution, article VI, section 13 reveals such claimed verdict error was harmless, resulting in no miscarriage of justice. On reviewing the entire cause as to each appellant, we hold the failure of the jury verdicts to specify the degree of the felony murder of which each appellant was convicted, which in this case was first degree murder as a matter of law, was harmless error resulting in no miscarriage of justice. In the unpublished portions of this opinion, we reject the remaining contentions of error of both appellants and, thus, affirm the judgments of murder in the first degree against each of them.
Unless otherwise indicated, all subsequent statutory references are to the Penal Code.
All constitutional references are to the California Constitution unless otherwise noted. Article VI, section 4 1/2 (renumbered section 13 in 1966) and article VI, section 13 will be referred to as section 13 throughout this opinion.
Appellants Cruz Alberto Mendoza and Raul Valle were convicted by separate juries of murder (§ 187) in the killing of Pastor Dan Elledge, during a robbery and burglary at the victim's church. Appellants were also found guilty of numerous other previous crimes committed in churches; and both juries found the murder of the victim occurred in the course of a robbery and burglary, for purposes of the robbery-murder and burglary-murder special circumstances. (§§ 190.2, subd. (a)(17)(A) & 190.2, subd. (a)(17)(G).) The trial court imposed sentences of life without parole on both appellants, together with additional sentences of 22 years 4 months for Mendoza, and 20 years for Valle.
The separate juries trying appellants before the same trial judge were each furnished by the court with guilty verdict forms as to the charge of murder, that neither explicitly provided for, nor required a statement of, the degree of the murder. Accordingly, the juries' guilty verdicts of murder as to each appellant contained no explicit written findings as to the degree of that crime.
Both appellants were prosecuted and defended solely on the theory of murder committed in the perpetration of the felonies of robbery and burglary. Each jury was instructed only on that theory of felony murder, which is first degree murder as a matter of law. (§ 189.)
Appellants do not contend that error occurred in failing to instruct on lesser degrees of homicide or premeditated murder. They simply contend that the provisions of section 1157 and precedent of our Supreme Court compel: (1) The automatic reduction of the judgments against appellants to second degree murder because of the juries' failure to specify explicitly in their verdicts the degree of appellants' crimes, which they do not argue can be other than murder in the first degree; and (2) a concomitant vacation of each jury's special circumstance finding and each appellant's sentence of life without parole.
As we will explain, this contention must be resolved by an analysis of over a century of Supreme Court case law, related jurisprudence, and a constitutional amendment in effect for decades, which has strangely never been discussed or applied to a case like that at bench. Although we acknowledge other cases have reached results different from I. FACTS AND PROCEDURAL HISTORY
We summarize the facts relating to appellants' crimes as briefly as possible, because the facts of the offenses are not specifically related to the main issue in this case.
Appellants were armed resistance fighters in the El Salvador civil war, who more recently traveled around California robbing and committing other crimes against innocent strangers in churches. Their crime wave finally came to an end after they killed Pastor Elledge in his church in Novato, and they were apprehended after a high speed chase.
Appellants were tried by separate juries before the same trial judge in Marin County. Both juries found appellants guilty in the murder of Pastor Elledge; both juries found the murder occurred in the course of a robbery and burglary of Elledge's church; and both juries later rejected the death penalty sought by the prosecution in the penalty phase, opting instead for life without parole. Both juries also found appellants guilty of numerous similar robberies, burglaries, and other crimes in churches throughout the state. The trial court, therefore, imposed sentences of life without parole on both appellants, together with additional sentences of 22 years 4 months for Mendoza, and 20 years for Valle.
II. DISCUSSION
A. The Presumption of California Criminal Law Before and After Passage of Constitution Section 13 in 1911
Before section 13 was added to the Constitution, the California Supreme Court took a far different view of the effect of error in a criminal trial than it has since. The law prior to Constitution section 13 was succinctly expressed in People v. Williams (1861) 18 Cal. 187, 194 (Williams): "Courts have no power in criminal cases to affirm a judgment, merely because the Judges are persuaded that upon the merits of the case the judgment is right. If any error intervenes in the proceeding, it is presumed to be injurious to the prisoner, and generally he is entitled to a reversal of the judgment, for it is his constitutional privilege to stand upon his strict legal rights, and to be tried according to law." (Italics added.)
People v. Campbell (1870) 40 Cal. 129, 137-138 (Campbell ), relied on by appellants as the seminal case supporting compulsory reduction of their judgments to second degree murder, was decided while the presumption of injury to a defendant from "any error" as expressed by Williams was the law. More than 40 years later, section 13 of the Constitution came to the California electorate as Senate constitutional amendment No. 26. It was enacted by the people in October 1911, after it was unanimously adopted by the California Legislature. (See "Proposed Amendments to the [Constitution], with Legislative Reasons for and against Adoption thereof, to be voted upon at a special election to be held on Tuesday, the tenth day of October, A.D.1911" (§ 13 Ballot Pamp.).) As adopted, Constitution section 13 provided: "No judgment shall be set aside, or new trial granted in any criminal case on the ground of misdirection of the jury or the improper admission or rejection of evidence, or for error as to any matter of pleading or procedure, unless, after an examination of the entire cause including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice." Constitution section 13 obviously did not exempt a claim of error under section 1157 from its application, which had been codified as such in 1872. The ballot arguments for adoption were signed by Senator A.E. Boynton (the amendment was commonly called the "Boynton Amendment") and Senator E.S. Birdsall.
We will return to Campbell in part II.B., post, of this opinion.
By amendment of November 3, 1914, the word "criminal" was omitted from Constitution section 13, thereby providing that no judgment shall be set aside (civil or criminal) unless an examination of entire cause discloses a miscarriage of justice.
Those ballot arguments sound somewhat familiar to the contemporary reader (§ 13 Ballot Pamp.): The amendment was "designed to meet the ground of common complaint that criminals escape justice through technicalities." The courts have gone to "absurd lengths ... in the reversal of cases for immaterial errors...." "The amendment ... is designed to render it impossible for the higher courts to reverse the judgments of our trial courts in criminal cases for unimportant errors." "The trial of a criminal is so hedged about with technicalities that it has grown almost impossible to convict one whose wealth is sufficient to enable him to employ counsel skilled in the technique of criminal law." "This amendment would be a great help in the administration of the law by enabling judges to rule as freely in behalf [of] one side as the other, and in its fairness stop the growing impression that our judicial decisions are based on technicalities and not on justice."
The sea change wrought in the criminal law by Constitution section 13 was summarized by the Supreme Court in People v. Watts (1926) 198 Cal. 776, 793, 247 P. 884 (Watts): "Since the adoption of section it no longer is the rule in this state that injury is presumed from error. Before the reversal of a judgment of conviction may be had it must affirmatively appear to the satisfaction of this court, after an examination of the entire cause, including the evidence, that the accused may well have been substantially injured by the error of which he complains. [Citations.]" (Italics added.) As we explain post, no such injury appears here.
B. Campbell
We return to Campbell on which appellants rely as introducing the principle requiring reduction of their judgments to second degree murder.
Campbell was decided 127 years ago, while the "injury is presumed from error" principle applied to criminal cases and before the enactment of section 13 to the Constitution. (Watts, supra, 198 Cal. at p. 793, 247 P. 884; see also Williams, supra, 18 Cal. at p. 194.) Our Supreme Court created a rule in Campbell that the failure of a jury to explicitly specify the degree of a murder on its verdict form required the first degree murder verdict be reversed, although the murder of which Campbell was convicted could only have been first degree murder as a matter of law. (40 Cal. at pp. 138-139.)
The defendant in Campbell was convicted of murder by poisoning of the victim, who was the husband of his partner in crime. Such a murder, if the defendant committed it, could only have been murder in the first degree, because under California law at that time, as now, "All murder ... perpetrated by means of poison ... shall be deemed murder of the first degree...." (Stats. 1856, ch. 139, § 2, p. 219; § 189; see also Campbell, supra, 40 Cal. at pp. 138-139.)
Significantly, at that time, every murder in the first degree was also required to be punished by the death penalty. (Campbell, supra, 40 Cal. at p. 140.)
The jury in the Campbell case found the defendant " 'guilty of the crime charged,' " i.e., murder by poisoning, but also "recommended him to the mercy of the Court." (40 Cal. at p. 137.)
For reasons not explained in the Campbell opinion, the jury "did not specify the degree of murder of which they found [defendant] guilty." (40 Cal. at p. 137.) Conjecture suggests that since only one degree of murder was possible, such a finding was thought to be unnecessary.
As an interesting historical aside, the Solano County District Attorney who prosecuted this case was Joseph McKenna, who was subsequently to serve as Attorney General of the United States under President William McKinley and as a justice of the United States Supreme Court for many years. (McDevitt, Joseph McKenna Associate Justice of the United States (Catholic Univ. of Am. Press 1946) pp. 19-20, 91-92, 105.)
At that time in 1870, section 21 of the Act Concerning Crimes and Punishments provided: "[T]he jury before whom any person
Our Supreme Court, unimpeded in 1870 by the constitutional provisions of section 13, adopted a construction of this statute, as it stood at that time, which it recognized as facially absurd: "However absurd it may, at the first blush, appear to be to require the jury to designate the degree of the crime, when it appears on the face of the indictment that the offence charged has but one degree, there are plausible and, perhaps, very sound reasons of this requirement. No jury can well be ignorant of the fact that a conviction for murder in the first degree will be followed [automatically] by the death penalty; and it may well be that the verdict is required to specify, in such a case, the degree of the crime, in order that it may distinctly appear that, in rendering the verdict, the jury was fully aware of the magnitude of the penalty which was to follow, and that they had, therefore, bestowed upon the case the careful and solemn deliberation demanded in a cause involving the life of a human being." (Campbell, supra, 40 Cal. at pp. 139-140.)
Although the Campbell decision does seem absurd "at the first blush," the court clearly noted its decision was motivated by another reason existing at that time, which obviously does not exist today, i.e., the fact that all first degree murders were then punishable by death. In light of the fear that a jury might unintentionally sentence a defendant to death as a result of some sort of forbidden compromise verdict, the result, however absurd, of the Campbell decision could be rationalized on the grounds that it reached the best solution available at the time for an overriding practical problem existing under the death penalty laws as they stood in 1870. As a result of restrictions on, and the procedure required to be followed in imposition of, the death penalty in this state in the years since 1870, of course, this justification for the Campbell rule has long since vanished. Campbell is not controlling precedent on the issue appellants raise, because no constitutionally compelled harmless error analysis was required or made, and first degree murders do not any longer precipitate an automatic death penalty under California law, which was the clearly enunciated underpinning and rationale of the Supreme Court's Campbell result.
C. McDonald
In People v. McDonald (1984) 37 Cal.3d 351, 382-383, 208 Cal.Rptr. 236, 690 P.2d 709 (McDonald ), our Supreme Court subsequently extended the Campbell rule--without regard to its limited procedural justification, without discussing its automatic death penalty rationale and, most importantly, without addressing harmless error principles imposed after Campbell by Constitution section 13.
McDonald is perhaps more familiar as the case in which our Supreme Court held that a purported expert on psychological factors affecting eyewitness identification should be allowed to opine before the jury that the percipient witnesses to a crime might be mistaken, and that the accused might be innocent. (See 37 Cal.3d at p. 355, 208 Cal.Rptr. 236, 690 P.2d 709.) The McDonald court actually held that the trial court committed prejudicial abuse of discretion for excluding the expert testimony, and that the judgment of conviction for first degree murder and the sentence of death must, therefore, be reversed. (37 Cal.3d at p. 376, 208 Cal.Rptr. 236, 690 P.2d 709.) Appellants rely not on the holding of McDonald, but on certain dicta added to the end of the McDonald opinion dealing with the issue before us, and apparently based upon a discussion of other issues which the trial court might face on retrial. (37 Cal.3d at pp. 379-383, 208 Cal.Rptr. 236, 690 P.2d 709.) We are specifically concerned with the McDonald court's citation to and apparent extension of Campbell, albeit in dicta, without analysis of the statutory differences in imposition of the death penalty since 1870 (see McDonald, supra, 37 Cal.3d at pp. 382-383, 208 Cal.Rptr. 236, 690 P.2d 709), and with no consideration of the applicability of Constitution section 13.
For the subsequent history of this holding in the courts, see People v. Johnson (1993) 19 Cal.App.4th 778, 786-790, 23 Cal.Rptr.2d 703, and the cases cited therein.
In McDonald, the defendant, as here, had been tried and convicted of a murder which apparently occurred in the course of a robbery, of which latter crime the defendant was, however, acquitted. The jury had also, as here, made a true finding on the robbery-murder special circumstance. (Id., 37 Cal.3d at p. 355, 208 Cal.Rptr. 236, 690 P.2d 709.) The McDonald dicta, however, relying on Campbell and section 1157, the successor to the law interpreted in Campbell, indicated that the jury verdict, which it in fact had reversed on other grounds, should also be reduced to second degree murder because the jury had not properly returned a finding of the degree of the murder, although a murder occurring during the course of a robbery could only have been murder of the first degree; and the jury, therefore, (as here) had never been instructed on any lesser degree of murder. (McDonald, supra, 37 Cal.3d at pp. 382-384, 208 Cal.Rptr. 236, 690 P.2d 709.)
The special circumstance finding was apparently predicated on an attempted robbery, although the jury was not properly instructed on attempted robbery. (McDonald, supra, 37 Cal.3d at p. 378, fn. 25, 208 Cal.Rptr. 236, 690 P.2d 709.)
We quote the McDonald dicta: "While respondent is correct that the jury was not instructed on the lesser included offense of second degree murder, we see no reason why this variation in the facts should lead to a different result. First, the terms of the statute [section 1157] are unambiguous. No special exception is created for the situation presented by this case; had the Legislature chosen to make section 1157 inapplicable to cases in which the jury was instructed on only one degree of a crime, it could easily have so provided. The statute requires that 'if the jury shall find the defendant guilty, the verdict shall specify the degree of murder[.] ... It establishes a rule to which there is to be no exception, and the Courts have no authority to create an exception when the statute makes none.' ( [Campbell, supra,] 40 Cal. [at p.] 138 [ellipsis added by McDonald court].)" (37 Cal.3d at p. 382, 208 Cal.Rptr. 236, 690 P.2d 709.)
The McDonald court continued: "Furthermore, prior applications of the statute suggest no rationale for excepting this case from the plain language of section 1157. As we have noted, this is not the first case in which the statute compels the court to deem the crime to be of the lesser degree despite indications that the jury's failure to specify degree was not intentional but resulted from mistake or inadvertence. [Citation.] [p] In fact, this court in Campbell was faced with a dilemma similar to that which respondent asserts exists in the present case. In Campbell, the People claimed that because the facts alleged in the indictment would support only a conviction of first degree and not of second degree murder, the failure of the jury to specify the degree did not require reversal. The court rejected this contention, stating that 'We have no right to disregard a positive requirement of the statute, as it is not our province to make laws, but to expound them.' (40 Cal. at p. 138.) In interpreting the statutory provision which then required that the jury 'designate' (rather than the equivalent current term 'find') the degree of the crime, the court stated: 'The word "designate," as here employed, does not imply that it will be sufficient for the jury to intimate or give some vague hint as to the degree of murder of which the defendant is found guilty; but it is equivalent to the words "express" or "declare," and it was evidently intended that the jury should expressly state the degree of murder in the verdict so that nothing should be left to implication on that point.... [T]he very letter of the statute ... requires the jury to This discussion of the Campbell rule from McDonald apparently constituted dicta, since the entire judgment in McDonald was reversed, and the verdict was not in fact reduced to second degree murder. (37 Cal.3d at p. 384, 208 Cal.Rptr. 236, 690 P.2d 709.) It is clear that the McDonald court's dicta failed to discuss the automatic death penalty rationale of the Campbell rule. The McDonald court quoted the first part of the Campbell court's statement that there might be good reasons for its seemingly "absurd" rule, while eliminating through the use of an ellipsis the Campbell court's actual statement of those reasons, which were no longer valid. At the time of McDonald it was not true, as it was at the time of Campbell, that all first degree murders were punishable only by the death penalty. Thus, the underlying rationale of the Campbell rule no longer then existed. There was no danger that the jury which found McDonald guilty of murder during a robbery, and later found the robbery-murder special circumstances true, and later imposed the death penalty for the crime, was unaware or uncertain of the magnitude of the death penalty it was imposing. (McDonald, supra, 37 Cal.3d at p. 355, 208 Cal.Rptr. 236, 690 P.2d 709.)
The McDonald dicta on this point may perhaps be explicable as a result of a residual discomfort about imposition of the death penalty, but not as a result of any fear as projected by Campbell that the McDonald jury shared this sentiment yet somehow failed to articulate it. Although the underlying reason supporting the facially "absurd" Campbell rule had long disappeared, McDonald perpetuated that rule with no discussion of its vanished rationale which McDonald eliminated by an ellipsis. McDonald did not consider the application of section 13 of the Constitution.
D. The Marks Cases
The problem presented here was compounded by dicta in a pair of Supreme Court cases dealing with the same defendant, People v. Marks (1988) 45 Cal.3d 1335, 248 Cal.Rptr. 874, 756 P.2d 260 (Marks I ) and People v. Superior Court (Marks ) (1991) 1 Cal.4th 56, 2 Cal.Rptr.2d 389, 820 P.2d 613 (Marks II ).
In Marks I, the defendant had, as in Campbell, joined the wife of the victim in a murder conspiracy, this time to murder the victim and collect life insurance proceeds. The jury found the defendant-hired-killer guilty of murder and conspiracy to commit murder, and found true the alleged financial-gain special circumstance. (Marks I, supra, 45 Cal.3d at pp. 1338-1339, 248 Cal.Rptr. 874, 756 P.2d 260.) The actual holding of our high court was only that the failure to conduct a competency hearing for the defendant required reversal. (Id., at pp. 1340-1344, 248 Cal.Rptr. 874, 756 P.2d 260.) However, as in McDonald, the high court also added troubling dicta to the end of its opinion: "Defendant persuasively contends there were numerous reversible errors at trial. In light of our reversal of the judgment on another ground, we need not decide whether there were other errors and, if so, whether they would require reversal, either alone or in combination. As to the more significant of the alleged errors, however, we believe it necessary to provide brief guidance to the trial court for the possibility of a retrial. [p] 1. Failure to Specify Degree of Crimes [p] The jury's verdict did not specify the degree of murder of which defendant was convicted. Indeed, the trial court inexplicably denied defendant's requested instruction, CALJICNo. It may well be that the trial court in Marks I "inexplicably" did not instruct the jury to find the degree of the murder, using CALJIC No. 8.70, because it believed, as our Supreme Court has since held, that the giving of CALJIC No. 8.70 is not necessary when the murder in question can only be first degree murder. (People v. Morris (1991) 53 Cal.3d 152, 211, 279 Cal.Rptr. 720, 807 P.2d 949 (Morris).)
CALJIC No. 8.70 provides: "Murder is classified into two degrees. If you should find the defendant guilty of murder, you must determine and state in your verdict whether you find the murder to be of the first or second degree." As the Use Note to this instruction states, "If the only theory of murder supported by the evidence is first degree felony-murder [sic], do not give this instruction." (Italics added.)
The Marks I dicta was obviously intended "for the possibility of a retrial" of the first degree murder charges. It was intended to prevent the trial court from failing to instruct the jury to find the degree of the murder. Yet, when the matter came up for retrial, after the defendant was found competent, the trial court was instead forced to dismiss the first degree murder and special circumstance allegations on federal constitutional double jeopardy grounds, because the Supreme Court in Marks I had observed that the jury in the first trial had not explicitly found the murder to be a first degree murder. Our Supreme Court then affirmed the trial court's actions. (Marks II, supra, 1 Cal.4th at pp. 62-63, 71-78, 2 Cal.Rptr.2d 389, 820 P.2d 613.)
The Marks II court reviewed its prior efforts to provide guidance on this issue as follows: "As we indicated in Marks I, contrary to the statutory mandate, the jury failed to specify whether it found defendant guilty of first or second degree murder. [Citation.] Section 1157 requires that the trier of fact 'must find the degree of crime or attempted crime of which [the defendant] is guilty'; but prior to 1949 it did not contain any remedy or further directive in the event of an omission. Because this type of irregularity invariably necessitated reversal and retrial [citations], the Legislature amended the language to provide that if the jury returned an incomplete verdict, 'the degree of the crime or attempted crime of which the defendant is guilty, shall be deemed to be of the lesser degree.' (§ 1157.) The operation of this proviso is categorical and conclusive, 'even in situations in which the jury's intent to convict of the greater degree is demonstrated by its other actions....' ( [McDonald,] supra, 37 Cal.3d at p. 382, 208 Cal.Rptr. 236, 690 P.2d 709 [second degree conviction notwithstanding special circumstance finding when jury failed to specify degree].)" (1 Cal.4th at pp. 72-73, 2 Cal.Rptr.2d 389, 820 P.2d 613.)
The Marks II court continued: "The law constrains reviewing courts as well as trial courts.... [Citations.] Despite the jury's special circumstance finding in this case, we may not imply a verdict of first degree murder in the absence of an express indication to that effect. ( [McDonald,] supra, 37 Cal.3d at p. 382 [208 Cal.Rptr. 236, 690 P.2d 709];....) To the contrary, we are compelled to find on this record 'as a matter of law ... defendant was convicted of second degree murder. [Citation.]' ( [McDonald,] supra, 37 Cal.3d at p. 383 [208 Cal.Rptr. 236, 690 P.2d 709], fn. omitted.) Accordingly, that conviction controls our assessment of the viability of defendant's pleas of former acquittal and once in jeopardy." (1 Cal.4th at pp. 74-75, 2 Cal.Rptr.2d 389, 820 P.2d 613.)
The high court then held that as a matter of federal constitutional double jeopardy law, the defendant could not now be retried for first degree murder, because the verdict in his first trial, which was reversed because he The actual holding in Marks II related only to federal constitutional double jeopardy principles. Further, section 1157 is applicable only when the jury has a choice of degree, because the crime under consideration is "distinguished into degrees"; and the statute only applies where the jury's verdict is "incomplete," because the jury does not explicitly "so determine" the unknown degree in its verdict. Where, as here, felony murder is the only theory of criminal liability supported by the evidence, and the sole theory on which the case is prosecuted, the murder cannot be "distinguished into" degrees by a jury, because it is first degree murder as a matter of law; and where, as here, a verdict of second degree murder is not a possible choice as to which the jury is instructed or which is otherwise presented to the jury for its determination, application of section 1157 would exacerbate the absurdity noted by Campbell in 1870. The verdict is "[ ]complete" under those facts when the verdict of guilty is returned, since only a first degree murder verdict is possible. (See Morris, supra, 53 Cal.3d at p. 211, 279 Cal.Rptr. 720, 807 P.2d 949.) Under such circumstances, the jury's verdict stating that a defendant is guilty of murder shows that the jury did, in fact, find first degree murder. We respectfully suggest the Marks II dicta which implies the contrary perpetuates an erroneous reliance on Campbell, decided when first degree murders resulted in automatic death penalties. It extends a faulty and superficial analysis of the application of section 1157 in concluding that a homicide tried and submitted only as a felony murder--always a murder of first degree only--must be nonetheless mandatorily characterized as such by a convicting jury, although no other characterization is possible under the law.
As we will discuss post, none of the cases discussed ante and no other Supreme Court cases within Campbell 's progeny, applying section 1157 to reduce judgments of first degree felony murder to second degree murder, have considered or even mentioned an analysis of the record for harmless error which Constitution section 13 requires of an appellate court. (See, e.g., People v. Beamon (1973) 8 Cal.3d 625, 105 Cal.Rptr. 681, 504 P.2d 905 (Beamon ).) We proceed, first however, to discuss certain incongruities which result if, as appellants urge, section 1157 is automatically applied here to reduce the judgments to second degree murder.
E. The Morris Case
In Morris, the murder victim was killed in the course of a robbery. The defendant challenged the homicide instructions, inter alia, on the ground the court's omission of certain pattern instructions (CALJIC No. 8.70--Duty of Jury as to Degree of Murder, No. 8.71--Doubt Whether First or Second Degree Murder, and No. 8.73--Evidence of Provocation May Be Considered in Determining Degree of Murder) "created a charge that did not adequately distinguish between first and second degree murder." (Morris, supra, 53 Cal.3d at p. 211, 279 Cal.Rptr. 720, 807 P.2d 949.) The Morris court held: "The omission of these instructions was not error. The evidence in this case established either that [the victim] was killed by defendant as part of a robbery (the prosecution theory) or by [others], with or without justification (the defense theory). Defendant advances no theory consistent with the evidence that would have allowed the jury to convict him of second degree murder." (Ibid., italics added.)
Thus, the Supreme Court has found no error in failing to give instructions regarding second degree murder when, as here, no theory consistent with the evidence would support a second degree murder conviction.
It seems utterly inconsistent and logically indefensible to apply section 1157 in this case to reduce first degree murder convictions to second degree murder, when no theory consistent with the evidence would allow convictions of second degree murder and the case was tried only on a theory of felony first degree murder. It would be absurd to thereby reduce such convictions to second degree murder, an offense on which the juries were Such a result would perpetuate and grossly enlarge the absurdity the Supreme Court itself first observed in the Campbell result in 1870, long after the automatic death penalty rationale for that result has ceased to exist, and after the passage of section 13 of the Constitution which has been wholly ignored for years in Campbell 's progeny.
F. Inconsistent Application of Section 1157 After Enactment of Section 13 of the Constitution
In McDonald, the Supreme Court, following Campbell with no reference to either the automatic death penalty rationale of that case or the provisions of section 13 of the Constitution enacted after Campbell, discussed the application of section 1157 in these terms: "[T]he key [to the statute's application in reducing the degree of a crime when not explicitly specified in the jury's verdict] is not whether the 'true intent' of the jury can be gleaned from circumstances outside the verdict form itself; instead, application of the statute turns only on whether the jury specified the degree in the verdict form." (McDonald, supra, 37 Cal.3d at p. 382, 208 Cal.Rptr. 236, 690 P.2d 709.)
An examination of the extant authorities reveals, however, that section 1157 has not been uniformly applied on the sole and limited basis of whether "the jury specified the degree in the verdict form." (McDonald, supra, 37 Cal.3d at p. 382, 208 Cal.Rptr. 236, 690 P.2d 709.)
For example, in People v. Savala (1969) 2 Cal.App.3d 415, 418-419, 82 Cal.Rptr. 647 (Savala) (disapproved on other grounds in People v. Beagle (1972) 6 Cal.3d 441, 451-452, 99 Cal.Rptr. 313, 492 P.2d 1), no express finding was made by the jury that defendant was guilty of first degree robbery. In upholding a judgment of guilty of first degree robbery, and refusing to apply section 1157 to reduce the conviction to one for second degree robbery, the Third Appellate District observed: "It was undisputed as to count I and count II that a robbery with a dangerous or deadly weapon (and therefore, first degree robbery) had been committed.... Furthermore, as to those counts defense counsel stipulated at trial that each was first degree robbery." (Savala, supra, 2 Cal.App.3d at pp. 418-419, 82 Cal.Rptr. 647.)
Similarly, in the case at bench, it was undisputed that the crimes charged were felony murders and, hence, first degree murders; and appellants' counsel have never contended that in a prosecution solely on this theory, there was any necessity for instructions on lesser degrees of homicide, including second degree murder, or that error occurred in failing to so instruct.
First degree burglary convictions have also been upheld where the jury did not explicitly specify the degree of burglary in the verdict form: People v. Goodwin (1988) 202 Cal.App.3d 940, 945-948, 249 Cal.Rptr. 430 (review den.) (Goodwin ) [Burglary of an inhabited dwelling was charged, and counsel stipulated the facts of the case could only constitute first degree burglary; a first degree conviction was upheld despite the failure to state the degree of burglary in the verdict.]; People v. Anaya (1986) 179 Cal.App.3d 828, 831-832, 225 Cal.Rptr. 51 [The verdict, finding burglary was committed upon " 'an inhabited building and a residence,' " supported a first degree burglary conviction despite no verdict statement of degree.]; People v. Atkins (1989) 210 Cal.App.3d 47, 51-52, 258 Cal.Rptr. 113 [A verdict of " 'guilty of burglary of a residence, in violation of ... section 459, a felony, as charged in Count I of the Information' " reflected a jury determination that defendant's crime was first degree burglary. (Following Goodwin.) ]; People v. Wilson (1991) 227 Cal.App.3d 1210, 1218-1219, 278 Cal.Rptr. 319 (review den.) ["Because '[e]very burglary of an inhabited dwelling house ... is burglary of the first degree' ( [§ 460, subd. (a) ] ), it is now well established that a recital by a court or a jury verdict that the defendant is guilty of residential burglary constitutes a finding of first degree burglary." (Italics added.) ].
It seems logically certain that a jury verdict finding a defendant guilty of a murder which can only be first degree felony murder, Sustaining Mendoza's judgment on these alternative grounds and, thus, avoiding the application of section 1157 appellants urge, as did the burglary and robbery cases discussed ante, departs from the McDonald dicta that "application of [section 1157] turns only on whether the jury specified the degree in the verdict form." (37 Cal.3d at p. 382, 208 Cal.Rptr. 236, 690 P.2d 709, italics added.)
Our Supreme Court also held in People v. Saunders (1993) 5 Cal.4th 580, 589-592, 20 Cal.Rptr.2d 638, 853 P.2d 1093 (Saunders) that it is proper to apply the doctrine of waiver, and rejected a closely analogous claim of statutory error, as a result of the alleged premature discharge of the jury before it had determined all the issues before it. As then Justice George and the other members of the majority held in Saunders, "In the present case, the trial court violated sections 1025 and 1164 by discharging the jury before the jury had determined the truth of the alleged prior convictions. But defendant did not call this error to the court's attention by timely objection. As we shall explain, defendant's failure to object precludes his obtaining appellate relief on the basis of the statutory error committed by the trial court. [p] ' "An appellate court will ordinarily not consider procedural defects or erroneous rulings, in connection with relief sought or defenses asserted, where an objection could have been, but was not, presented to the lower court by some appropriate method.... The circumstances may involve such intentional acts or acquiescence as to be appropriately classified under the headings of estoppel or waiver.... Often, however, the explanation is simply that it is unfair to the trial judge and to the adverse party to take advantage of an error on appeal when it could easily have been corrected at the trial." ' ( [Citation], italics in [original].)" (Pp. 589-590, 20 Cal.Rptr.2d 638, 853 P.2d 1093.)
Justice Kennard cited Marks II in support of a contrary result in her dissent in Saunders. (5 Cal.4th at p. 603, 20 Cal.Rptr.2d 638, 853 P.2d 1093.) The majority responded by noting in a footnote that the Marks II holding was solely based upon federal double jeopardy grounds. (Saunders, supra, 5 Cal.4th at p. 589, fn. 5, 20 Cal.Rptr.2d 638, 853 P.2d 1093.) There is no double jeopardy issue in the present appeal.
Although we do not rest our holding thereon, we observe that the doctrines of estoppel and waiver may well apply here. Neither appellant sought an explicit written finding from his jury that this murder, which could only have been a first degree murder, was a first degree murder; nor did either appellant object on this basis to the forms of verdict submitted to the juries by the court. Under Saunders, the issue of noncompliance with section 1157 might, therefore, fairly be deemed to have been waived. We deal here, as in Saunders, solely with a statutory right, not a federal constitutional right as in Marks II. Like all other such statutory rights, appellants' rights under section 1157 could be waived by a failure to assert them at the time of trial. Just as appellants had a right to poll the juries regarding their verdicts, but would waive that right if they failed to assert it, the right to have the juries determine that a murder which could only be first degree murder was first degree murder may well be deemed waived here. (See Saunders, supra, 5 Cal.4th at pp. 589-591, 20 Cal.Rptr.2d 638, 853 P.2d 1093.)
In addition, in light of the ruling in Morris, supra, 53 Cal.3d at page 211, 279 Cal.Rptr. 720, 807 P.2d 949, which holds that the jury need not be instructed to determine the degree of a murder which can only be first degree murder, there was no error or violation of any sua sponte duty in failing to so instruct the juries. The prior cases on the section 1157 issue in the case at bench have not had the benefit of a full analysis in light of the holding in Morris. That holding would seem to compel rejection of contrary Finally, we agree with the observations regarding waiver made in People v. Dailey (1996) 47 Cal.App.4th 747, 755, 55 Cal.Rptr.2d 171 (Dailey ): "We further note that the ... section 1157 cases do not address the possibility that the defendant's failure to object to a deficient verdict form might operate as a waiver of an argument that the lesser degree must be deemed to have been found. As the Supreme Court recently stated in discussing the remedy to be applied when a jury is prematurely discharged before commencement of a bifurcated trial on charges of prior felony convictions, 'We do not believe that the Legislature ... intended to create a procedural trap that would enable defense counsel to ambush the trial judge[ ]....' ( [Saunders, supra,] 5 Cal.4th [at pp.] 590-591 [20 Cal.Rptr.2d 638, 853 P.2d 1093]....)"
G. Judicial Criticism of the Campbell Rule and Its Progeny
California courts have unanimously recognized and condemned the illogic of the troubling dicta in the older and more hypertechnical cases discussing section 1157 errors.
The Campbell court characterized its own pre-Constitution section 13 holding as appearing at first blush to be "absurd," while rationalizing it as increasing a jury's awareness of the automatic death penalty in effect in 1870 for all first degree murder. This pejorative analysis has been echoed in subsequent cases.
Three recent decisions of the Courts of Appeal, while criticizing the dicta they applied, have followed Campbell-McDonald on this issue. (See, e.g., Dailey, supra, 47 Cal.App.4th at pp. 754-755, 55 Cal.Rptr.2d 171 [The court noted "troublesome aspects" in the language in the Supreme Court cases on this issue.]; People v. Escobar (1996) 48 Cal.App.4th 999, 1027, 55 Cal.Rptr.2d 883 ["The foregoing result is neither just nor fair...."]; In re Birdwell (1996) 50 Cal.App.4th 926, 929, 58 Cal.Rptr.2d 244 [McDonald and its progeny have been "criticized for ... inflexibility."].) In all these cases, the courts believed they should reduce murder verdicts to second degree murder, because the verdict forms did not specify the degree of the murder; and in each case, our high court denied review. However, unlike the case at bench, none of these Courts of Appeal had before them the issue of the application of Constitution section 13 to a claimed section 1157 error in a felony-murder verdict; and we, accordingly, do not follow their obviously reluctant holdings.
H. Constitution Section 13 Must Be Mandatorily Applied in Determining Whether a Verdict's Failure to Conform With Section 1157 Constitutes No Miscarriage of Justice and Is Harmless Error
We turn to the pivotal issue of whether harmless error analysis of the verdicts' failure to explicitly state the degree of murder on the record of this case is required of a reviewing court; and if so, did a miscarriage of justice contemplated by Constitution section 13 occur for that reason.
1. A Question of First Impression We Must Consider
Neither our Supreme Court nor any appellate court has decided this issue. Appellants argue, however, that Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, 20 Cal.Rptr. 321, 369 P.2d 937 (Auto Equity) compels us to adhere to McDonald and its progeny and reduce the judgments to second degree murder. We decline to do so because the McDonald line of cases did not consider the application of Constitution section 13, or the application of section 1157 to a felony-murder conviction; and " 'an opinion is not authority for a proposition not therein considered....' " (In re Clifford C. (1997) 15 Cal.4th 1085, 1093, fn. 6, 64 Cal.Rptr.2d 873, 938 P.2d 932; People v. Banks (1993) 6 Cal.4th 926, 945, 25 Cal.Rptr.2d 524, 863 P.2d 769; Marks II, supra, 1 Cal.4th at p. 65, 2 Cal.Rptr.2d 389, 820 P.2d 613; Ginns v. Savage (1964) 61 Cal.2d 520, 524, fn. 2, 39 Cal.Rptr. 377, 393 P.2d 689.) Only one case, We share the surprise expressed by Division One of the Second Appellate District through Justice Masterson. Unlike Dailey, however, this issue is briefed by the parties in the case at bench and is before us for decision. In Dailey it was not.
People v. Dixon (1979) 24 Cal.3d 43, 51-52, 154 Cal.Rptr. 236, 592 P.2d 752 traced some history of section 1157 from 1850, when a verdict's failure to state the crime's degree was held to require reversal and remand for new trial (under the presumed prejudice doctrine), to 1949, when the statute was amended to provide such failure deemed the crime to be of the lesser degree. Constitution section 13 is not mentioned in this opinion.
Contrary to appellants' suggestion, our Supreme Court has not previously found section 1157 error and reduced first degree murder to second degree murder in felony-murder cases such as this one.
Our Supreme Court has never held in a felony-murder case that section 1157 requires an explicit finding of degree, or that the failure so to find is prejudicial error. Campbell was not a felony-murder case, because there was no predicate felony. In McDonald, there was no valid conviction of felony murder, because the jury acquitted the defendant of the predicate felony. In Marks, there was again no predicate felony, so there could be no conviction for felony murder. In Beamon, which was solely a robbery and kidnapping case, there was no felony-murder conviction, because the defendant was not found guilty of, or even charged with, murder.
No Supreme Court case has held that section 1157 requires a finding of a degree in a felony-murder situation such as this one, where the only possible verdict was for felony-murder; and we are writing on a clean slate here for purposes of Auto Equity. The reason such a Supreme Court case does not exist may be because, obviously, felony murder is first degree murder as a matter of law under section 189, and it cannot be "distinguished into degrees" by a jury, however instructed. The Supreme Court has not discussed this precise issue or held to the contrary, despite troubling dicta arguably capable of contrary application in some cases where such issue was not raised.
Even if the Supreme Court had heretofore expressly held section 1157 requires a verdict of guilty in a felony murder to state the obvious--that the degree thereof is first degree, Auto Equity would not preclude our consideration of the applicability of Constitution section 13 to this record.
It is undisputed that the Supreme Court, as Dailey observes, has never in eight decades considered or applied the constitutional miscarriage of justice standard in a case like that at bench.
We find no case holding that Auto Equity prevents an appellate court from ruling on a constitutional issue the Supreme Court has never decided. Moreover, we do not feel compelled to misapply Auto Equity by ascribing to our Supreme Court a disregard for the principles of Constitution section 13, when the relevant issue has never been previously raised or decided by its cases. To do so would attribute to Supreme Court jurisprudence, from cases never discussing or deciding the point, a sub silentio ruling that Constitution section 13, whose application to all cases is constitutionally mandated on all appellate courts, is inapplicable to a defective verdict claim because overridden by the statutory provisions of section 1157. Thus, we respectfully disagree with our dissenting colleague's reluctant conclusion that Auto Equity compels our application of section 1157 to reduce the conviction of Valle to second degree murder, and we reject the arguments of both appellants for such reduction. This record, reviewed by the standard of Constitution section 13, requires affirmance of the convictions of both appellants.
Moreover, even if we were to assume arguendo that there was an error here under section 1157, statutory law codified in the Penal Code and the constitutional harmless error provision result in the same harmless error conclusion. Section 1404 provides: "Neither a departure from the form or mode prescribed by this Code in respect to any pleading or proceeding, nor an error or mistake therein, renders it invalid, unless it has actually prejudiced the defendant, or tended to his prejudice, in respect to a substantial right."
Obviously, section 1404 and section 13 of the Constitution govern claims of error under sections 1157 and 1164, subdivision (b), where the trial court assertedly erred by not reducing felony murder to second degree sua sponte, or by failing to submit the issue of the degree of a felony murder to the jury in the verdict form, or by discharging the jury before it made a finding of degree. In a recent case, our Supreme Court has found that an asserted section 1157 error was harmless under section 1404, even though the trial judge submitted the issue of the degree of a murder, which could only be first degree felony murder, to the jury after its original verdict was rendered. (See People v. Cain (1995) 10 Cal.4th 1, 56-57, 40 Cal.Rptr.2d 481, 892 P.2d 1224.)
2. We Are Constitutionally Required to Review the Entire Cause on This Appeal to Determine if a Miscarriage of Justice Occurred Under the Standard Set by Watson
A constitutional amendment trumps a statute conflicting with it. Constitution section 13 mandatorily requires our review of this entire cause, and our determination that a miscarriage of justice resulted from the judgments of first degree murder because the jury verdicts failed to describe felony first degree murder as such. We conclude that section 1157 does not, and cannot, except such omission from the jury verdicts from the harmless error review Constitution section 13 compels.
We turn, therefore, to an analysis of the effect of the asserted section 1157 error under the standard and principles set forth in the governing California Supreme Court case, People v. Watson (1956) 46 Cal.2d 818, 834-838, 299 P.2d 243 (Watson).
Our high court explained the general standard for review of the effect of an alleged error under Constitution section 13 as follows: "While it had long been provided in our statutory law that judgments would not be reversed because of technical errors or defects which did not affect the substantial rights of the defendant (... §§ 1258, 1404), the courts nevertheless in reviewing convictions in criminal cases had generally followed the rule that prejudice would be presumed from error and upon that basis the defendant was 'entitled to a reversal of the judgment.' [Citations.] The constitutional amendment [which enacted the present Constitution section 13] added a new concept calling for a determination by the court that the alleged error resulted in 'a miscarriage of justice.' To this end the appellate court was required to review the evidence so as to form an 'opinion' as to whether the assigned errors had affected the outcome of the case resulting in 'a miscarriage of justice.' " (Watson, supra, 46 Cal.2d at pp. 834-835, 299 P.2d 243.)
"Giving due consideration to the varying language heretofore employed in relating the constitutional amendment to the particular situations involved, it appears that the test generally applicable may be stated as follows: That a 'miscarriage of justice' should be declared only when the court, 'after an examination of the entire cause, including the evidence,' is of the 'opinion' that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error." (Watson, supra, 46 Cal.2d at p. 836, 299 P.2d 243.) Applying this Watson test, we are of the opinion that it is not reasonably probable these juries would have designated this felony murder as second degree murder, rather than first degree murder, if the juries had been given jury verdict forms providing for an express statement of the degree of the murder. The murder was prosecuted solely on a felony-murder theory, which is first degree murder as a matter of law. The juries were properly not instructed on any other degree of murder. The juries were instructed not to proceed to a finding on the special circumstances unless they first found appellants guilty of first degree murder, and the juries obviously did so find. It is, therefore, impossible to conclude under Watson that a miscarriage of justice occurred by virtue of the failure of the jury verdict forms to make an explicit finding of first degree murder, and we are required by Constitution section 13 to find the assigned error does not justify reversal of the judgments. (See Watson, supra, 46 Cal.2d at p. 836, 299 P.2d 243.)
In addition, the test of harmless error and no miscarriage of justice under Constitution section 13, where a verdict fails to state the degree of the crime on which a guilty verdict is returned, is not to be resolved solely on whether the type of crime charged, considered in the abstract, is "distinguish[able] into degrees" in the language of section 1157. Generically, both burglary and murder are distinguishable into degrees. But burglary of a residence, considered by the parties and the court to be first degree burglary as a matter of law, cannot be second degree burglary (§ 460, subd. (a)); and the killing of a human being in the perpetration of a robbery or burglary--first degree murder as a matter of law--cannot be second degree murder (§ 189).
Where, as in the case at bench, the theory of prosecution and defense, and the court's instructions consistent with that theory, is solely that the jury only has first degree felony murder to consider, no miscarriage of justice results from a verdict of guilty failing to state the obvious--that defendant's crime, which can only be first degree murder as a matter of law, is first degree murder.
The error complained of, if indeed an error at all, is one of procedure or jury misdirection. Jurors do not construct their own verdict forms in criminal cases in this state. The trial court prepares and furnishes them. The trial court's form of guilty verdict, which the juries were expressly directed to use if applicable, did not contain a specification for a finding of degree for the reasons we have discussed.
We are compelled by Constitution section 13 to refrain from setting appellants' convictions aside for "error as to any matter of procedure" or "misdirection of the jury" unless after our examination of the entire cause, "including the evidence" (italics added), we are "of the opinion that the error complained of has resulted in a miscarriage of justice."
We must follow this constitutional mandate and make the analysis it requires. Without that action, we would risk infliction of a gross miscarriage of justice on the people of this state by automatically giving appellants, robbers who committed a brutal murder, the windfall of reduction by many years of the sentences imposed for their crimes. The absurdity of the continuation of the Campbell rule of 1870 on the record before us would be thereby compounded by holding, as appellants urge, that section 1157 compels the sentence reductions they seek predicated on post-Campbell cases which never considered, and totally ignored, the superior and obligatory constitutional mandate of Constitution section 13, in effect for over 80 years.
Cf. the similar statutory provisions of sections 1258 and 1404, and of Code of Civil Procedure section 475.
I. Our Review of the Record Reveals No Miscarriage of Justice, and Substantial Evidence Supports the Judgments
1. The Evidence
We find upon review of the evidence, no possible prejudice to Mendoza and Valle Mendoza and Valle acting together had previously carried out numerous robberies and burglaries at churches throughout the state. Likewise prior to this particular burglary and the murder which occurred in the commission of the burglary, a witness saw a Latino male outside the church, walking around it together with another Latino male, who could reasonably be concluded to have been Mendoza and Valle.
Pastor Elledge, who had been preparing for his evening Bible study class, was wounded inside the church building by bullets fired from two different guns, one of which was carried by Mendoza, after Elledge apparently interrupted a burglary of video equipment from the church and became the victim of an attempted robbery.
A gun shot residue test performed shortly after the murder showed Mendoza had recently fired a gun, although the test was not entirely conclusive and was contested by another expert who was unable to replicate this finding.
Significantly, Mendoza also had Pastor Elledge's blood on his shoes after the murder.
Shortly after the murder, a person who may have been Mendoza was seen standing outside the church by a neighbor, Mr. Dougherty, moments after Dougherty saw the murder victim fall down the stairs of the church. Mendoza and Valle drove away together, disregarding the demands of a law enforcement officer that they not leave. They were chased by the police, and later fled on foot when their van stopped.
Mendoza testified in his own defense that it had been his idea to rob people in churches, and that he and Valle together carried out a number of such robberies. He testified he did not enter the church on this particular occasion, however, because he had had a change of heart; and he did not shoot Pastor Elledge. He got Elledge's blood on himself only because he had tried to help Elledge after he was shot.
Mendoza argues there was no evidence he entered the church or shot Elledge. He ignores most of the damning evidence summarized above, and relies principally upon the testimony of church neighbor Dougherty, who saw a person who may have been Mendoza standing near his van outside the church, moments after Dougherty saw the murder victim fall down the church stairs when the victim emerged from the church where he had been shot. Mendoza contends this evidence showed incontestably that he was simply waiting outside the church the entire time, knowing the burglary was taking place, and was not inside committing the burglary, attempted robbery, and murder with Valle.
The evidence, however, amply supported the jury's conclusion, verdict, and special circumstance findings that Mendoza intentionally participated in the burglary, attempted robbery, and murder with Valle. The two had carried out numerous violent crimes in churches before, while acting together. They also went to this church together, and were seen together walking around the church and apparently casing it. The church was burglarized; and the victim was shot with bullets from two guns, one of which was used by Mendoza. There was evidence Mendoza had recently fired a gun, and he had the victim's blood on his shoes. The jury was not required to accept Mendoza's rather improbable story that he got the victim's blood on his shoes only while trying to aid the victim, after Valle had just shot the victim with his own gun and with Mendoza's gun.
The fact that a neighbor saw Mendoza calmly standing near the van, outside the church, shortly after the murder victim fell down the church stairs, does not show Mendoza had not been inside the church shortly before, and fairly viewed is as consistent with guilt as it is with innocence. This testimony certainly seems inconsistent with Mendoza's story regarding aiding the murder victim after the wounded victim fell down the stairs, In addition, our review of this evidence convinces us that appellants suffered no conceivable prejudice from the asserted section 1157 error in this case. As the evidence showed, appellants were guilty of first degree felony murder, or no murder at all. (See Morris, supra, 53 Cal.3d at p. 211, 279 Cal.Rptr. 720, 807 P.2d 949.)
2. The Juries Were Properly Instructed on First Degree Felony Murder as the Only Possible Theory of Murder in this Case
The court properly instructed the juries on first degree felony murder, as the only possible theory of murder in this case. The evidence summarized above showed that if either appellant was guilty of murder, it was as a result of a killing in the course of a robbery and burglary. As the Use Note to CALJIC No. 8.79 states, instructions on lesser degrees of murder are improper in felony-murder cases.
Neither appellant objected to the trial court's decision to instruct only on first degree felony murder. Neither appellant objected to the trial court's verdict form on the ground that it did not ask his jury to determine the degree of the murder, since only one degree of felony murder was possible. The jury instructions as given required the jurors to find first degree murder liability before turning to consideration of the issue of the special circumstances, which the jurors also found true.
In addition, the trial judge orally polled the Mendoza jury, asking the jurors whether "that was your vote on the charge of murder 187 first degree." This was an explicit jury finding that Mendoza was guilty of first degree murder. The same finding was obviously made as well as to Valle, because only one degree of murder was possible; and the jury found the special circumstances true as to Valle. Neither appellant contends his jury was misinstructed regarding the fact that first degree felony murder was the only possible degree of murder in this case.
When we review the evidence, the jury instructions given without objection, the procedural history of the case, and the juries' actual findings, we find absolutely no showing of a miscarriage of justice under Constitution section 13 in imposition of judgment of guilt of first degree murder on both appellants.
See footnote *, ante.
III. DISPOSITION
The judgments of conviction are affirmed.
JONES, J., concurs.
HANING, Associate Justice, concurring and dissenting.
Although I concur in all other respects, I respectfully dissent from the majority's position However, if I were writing on a clean slate, I would apply Penal Code section 1157 differently. Since 1886 our Supreme Court has consistently held that instructions on lesser included offenses are not required where the state of the evidence will not support a conviction of a lesser offense. (People v. Lee Gam (1886) 69 Cal. 552, 555, 11 P. 183; People v. Carmen (1951) 36 Cal.2d 768, 773, 228 P.2d 281; People v. Teale (1965) 63 Cal.2d 178, 192-193, 45 Cal.Rptr. 729, 404 P.2d 209; People v. Flannel (1979) 25 Cal.3d 668, 684-685, 160 Cal.Rptr. 84, 603 P.2d 1; People v. Kaurish (1990) 52 Cal.3d 648, 696, 276 Cal.Rptr. 788, 802 P.2d 278; People v. Morris (1991) 53 Cal.3d 152, 211, 279 Cal.Rptr. 720, 807 P.2d 949; People v. Avena (1996) 13 Cal.4th 394, 424, 53 Cal.Rptr.2d 301, 916 P.2d 1000.)
In a case such as this, which was prosecuted on a first degree felony-murder theory only, and where the jury was not instructed on second degree murder because the evidence would not support such a conviction, one cannot logically expect the jury to find between first and second degree in the absence of instructions defining second degree murder. If I were interpreting Penal Code section 1157 without the force of Supreme Court pronouncements on the issue, I would hold that it has no application to prosecutions such as this where, due to the absence of evidence that would support conviction of a lesser degree, the jury is not instructed on lesser degrees of the charged offense.
The majority opinion appears to conclude that in all its prior decisions interpreting Penal Code section 1157, the Supreme Court overlooked the harmless error rule established by article VI, section 13 of the California Constitution and its own precedents in the Lee Gam line of cases. I doubt that is the case. If it is, it was an oversight that has led to a significant miscarriage of justice in a number of cases. However, I suggest that the Supreme Court has not discussed the harmless error rule because it has no application if section 1157 fixes the penalty at the lesser degree by operation of law when the jury fails to specify the higher degree. If so, the error would be that of the court in pronouncing judgment on the higher degree.
For the same reason, I do not think any waiver occurred here. In light of existing precedent, no defense attorney in his or her right mind is going to ask the court to send the jury back to fix the degree of the offense, if failure to ask automatically guarantees a conviction of the lesser degree by operation of law.
Neither do I rely on the burglary cases cited by the majority: People v. Wilson (1991) 227 Cal.App.3d 1210, 278 Cal.Rptr. 319; People v. Atkins (1989) 210 Cal.App.3d 47, 258 Cal.Rptr. 113; People v. Goodwin (1988) 202 Cal.App.3d 940, 249 Cal.Rptr. 430 and People v. Anaya (1986) 179 Cal.App.3d 828, 225 Cal.Rptr. 51. Wilson was a nonjury trial where the court stated that "the elements are all there for the residential burglary" with which the defendant was charged. (At p. 1218, 278 Cal.Rptr. 319, italics added.) In Atkins the jury found the defendant " 'guilty of burglary of a residence.' Thus, in all the burglary cases cited by the majority, the factfinder was held to have specified the degree of the burglary by finding the specific elements of first degree burglary. By contrast, the verdict forms in the instant case state merely: "We, the jury in the above-entitled case, find the defendant[s] GUILTY of the offense charged in Count I, a Felony, to wit: Murder in violation of Section 187 [subdivision] (a) of the Penal Code of the State of California." Penal Code section 187, subdivision (a) simply states: "Murder is the unlawful killing of a human being, or a fetus, with malice aforethought." Consequently, there is nothing in the form of the verdicts to indicate that the jury found appellants guilty of either first or second degree murder.
In Mendoza's case the court polled the jury, and confirmed that each member concurred in a verdict of first degree murder. I think this satisfies Penal Code section 1157, and for that reason I concur that his conviction should be affirmed. However, no such inquiry was made when Valle's jury was so polled.
For the foregoing reasons, I reluctantly conclude we are required to reverse and remand Valle's conviction with instructions to enter judgment of second degree murder and resentence him accordingly. I also urge the Supreme Court to reexamine or clarify its position on Penal Code section 1157 to eliminate the confusion caused by the inconsistency between the Lee Gam and McDonald lines of cases, and limit the application of section 1157 to those cases where the factfinder must make a choice between the degrees of the charged offense.