Opinion
B195585
4-15-2008
THE PEOPLE, Plaintiff and Respondent, v. JESSIE HEREDIA, Defendant and Appellant.
Peter Gold, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Margaret E. Maxwell and Chung L. Mar, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
INTRODUCTION
Defendant Jessie Heredia appeals from a judgment of conviction following a jury trial. The jury found defendant guilty of first degree murder (Pen. Code § 187, subd. (a)), attempted murder (§§ 187, subd. (a), 664) and conspiracy to commit murder (§ 182, subd. (a)(1)). The jury further found that the murder was committed by means of lying in wait (§ 190.2, subd. (a)(15)), and the attempted murder was committed willfully, and with premeditation (§ 664, subd. (a)). The jury also found that in the commission of the murder and attempted murder, a principal was armed with a firearm (§ 12022, subd. (a)(1)).
Unless otherwise noted, all further statutory references are to the Penal Code.
Codefendants Richard Lara, Eric Lara, and Anthony Diaz were charged with the same three counts. Codefendant Richard Lara was charged with two additional counts. The defendants were jointly tried. Richard Lara and Anthony Diaz were convicted as to all counts. A mistrial was declared as to Eric Lara, the jury being unable to reach a decision. For ease of reference, Richard Lara and Eric Lara will be referred to by their first names.
The trial court sentenced defendant to a total state prison term of life without possibility of parole plus 27 years to life. The trial court imposed a $10,000 restitution fine and imposed and stayed a $10,000 parole revocation fine.
On appeal, defendant claims insufficient evidence supports his convictions; abuse of discretion in discharging Juror No. 9; tagging crew evidence was improperly allowed by the trial court; the trial court erred in requiring the jury to clarify its verdict as to count 1; evidence supporting the lying-in-wait special circumstance finding was insufficient; the sentence on count 2 was incorrect; and the imposition of the parole revocation fine was improper. We agree that the tagging crew evidence was improperly admitted but hold the error to be harmless. We further hold that the trial court erred in requiring the jury to clarify its verdict as to count 1 and in imposing the sentence on count 2. This requires reinstatement of the jurys original second degree murder conviction on count 1 and resentencing.
FACTS
A. Prosecution Evidence
On April 28, 2004, in the early evening, Richard Ybarra (Ybarra), his girlfriend Zulema Arellano (Arellano), and Cesar Cabrera (Cabrera) went grocery shopping at the "El Super" market in North Hollywood. Defendant and Carlos Chavez (Chavez) worked at the market. After Ybarra, Arellano and Cabrera entered the market, a videotape from the markets security camera showed defendant looking at, and following Ybarra and Cabrera.
Defendant borrowed Chavezs cell phone. Cell phone records for Chavezs phone showed defendant made two calls to Erics cell phone, at 8:24 and 8:26 p.m. He also made a call to the home phone of Erics girlfriend at 8:25 p.m.
From approximately 8:31 to 8:35 p.m., the store videotape showed two other individuals enter the market and follow Ybarra and Cabrera. The police later identified Eric as one of these two individuals. Eric and the second individual exited the store before Ybarra and Cabrera. Ybarra and Cabrera later exited and went to the parking lot while Arellano was waiting in line at the checkout register.
Santiago Sencion, a store employee, saw Richard approach Ybarra and Cabrera. An argument ensued. Richard then pulled out a gun from his waistband and shot Ybarra and Cabrera. The victims were unarmed and did not hit Richard before the shooting. Anthony Diaz (Diaz) ran out from between two cars in the parking lot and shot Ybarra and Cabrera while they were on the ground. He and Richard then ran out of the parking lot. Ybarra suffered four gunshot wounds and died as a result of the wounds.
Richard and Diaz fled on foot and were seen by Michael Kushner. Akarapong Sasomsup, who was in the parking lot of a Yoshinoya restaurant, saw Richard and Diaz running through the parking lot. Yurik Hovhannisyan (Hovhannisyan), who lived in an apartment building near the Yoshinoya parking lot, discovered a gun located near his vehicle. He had started to move the car forward when he heard something drop from the rear tire area. The recovered gun was a .38 caliber snub-nosed revolver, with six empty casings. The police had recovered three expended .38 caliber bullets or slugs at the scene of the shooting.
During a police surveillance the following morning in the parking lot where the gun was discovered, they observed Richard get out of the rear passenger seat of a car driven by Eric. Richard reached underneath the front left wheel well of a parked car and moved his hand back and forth. After removing his hand, he ran toward an alley where Hovhannisyans car was parked. Richard reappeared from the direction of the alley after a few seconds, reentered Erics car, and Eric drove off.
Los Angeles Police Department firearm examiner Rafael Garcia (Garcia) determined that the three bullets recovered at the scene of the shooting were fired from the recovered revolver. Garcia further determined that the bullet recovered from Ybarras body was not fired from the revolver.
After the shooting, defendant told Chavez at the market that he had asked to borrow the cell phone because he had recognized two men that had problems with his friends, and he wanted to contact his friends to "handle it." Defendant also stated that he told his friends "not to burn the spot," a phrase that meant not to do anything at, or draw attention to, the market. Defendant told Chavez not to say anything.
A few days after the shooting, Cabrera was interviewed at the hospital and shown two photographic lineups. In the second photographic lineup, Cabrera identified Richards photograph. He also indicated that he saw Richard pacing back and forth next to his car the evening of the shooting at the market. Richard asked Cabrera where he was from and then punched him in the face, knocking him to the ground. Ybarra then began fighting with Richard. A second man appeared and started shooting at Ybarra. Cabrera got up and started to run, but he was shot and fell to the ground.
According to Arellano, Ybarra was a member of the "UK" tagging crew, and she believed that Cabrera was also a member of the same tagging crew. Ybarra told Arellano that he had been having problems with someone from the "UE" tagging crew. The wall outside the apartment that Arellano shared with Ybarra had graffiti from the tagging crew UE crossed out and UK graffiti written on top of it.
Evidence admissible as to Richard only was introduced showing that a few months before the shooting, he had made a derogatory comment about Ybarra and UK.
Detective Martin Pinner spoke to Jorge Vela, Ybarras neighbor. Vela stated that, on the day of the shooting, he saw Ybarra cross out the UE graffiti and replace it with UK graffiti.
Detective Daniel Fournier testified as an expert on tagging crews. He testified that the UE and UK tagging crews were rivals, that UE stood for "Unexpected" or "Up Everywhere" and that UK stood for "Unexpected Klique", "United Kings," or "Unstoppable Klique." With respect to the crossed-out graffiti on the wall of Ybarras apartment building, it was a sign of disrespect that could result in retaliation, with the retaliation ranging from crossing out UK tagging to possible escalation into violence.
B. Defense Evidence
Defendant did not present any witnesses. Eric presented a defense. His witnesses included alibi and character witnesses. Witnesses also testified that Eric was not one of the defendants appearing on the video.
Eric testified on his own behalf and denied any involvement in the shooting. He testified that he did not receive the telephone calls made to his cell phone from Chavezs cell phone.
DISCUSSION
A. Sufficiency of the Evidence to Support the Convictions
Defendant contends that there was insufficient evidence to support his convictions of first degree murder and attempted murder on an aiding and abetting theory, and that there was insufficient evidence to support his conviction of conspiracy to commit murder. We disagree.
In reviewing a sufficiency of the evidence claim, the reviewing courts role is a limited one. The test to determine the sufficiency of the evidence is whether, on the entire record, there is substantial evidence from which a rational trier of fact could find defendant guilty beyond a reasonable doubt. On appeal, we must view the evidence in the light most favorable to the prevailing party and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. (People v. Smith (2005) 37 Cal.4th 733, 738-739.)
Substantial evidence is that which is reasonable, credible and of solid value. (People v. Bradford (1997) 15 Cal.4th 1229, 1329.) The uncorroborated testimony of even one witness may provide substantial evidence, unless the testimony is physically impossible or inherently improbable. (People v. Scott (1978) 21 Cal.3d 284, 296.) We do not reweigh the evidence, in that questions of credibility and the weight to be given the evidence are matters exclusively within the province of the trier of fact. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206; People v. Ceja (1993) 4 Cal.4th 1134, 1139.)
1. Murder and Attempted Murder
A person aids and abets the commission of a crime when he or she (1) with knowledge of the unlawful purpose of the perpetrator, and (2) with the intent or purpose of committing, encouraging, or facilitating the commission of the crime, (3) by act or advice, aids, promotes, encourages or instigates the commission of the crime. (People v. Prettyman (1996) 14 Cal.4th 248, 259.)
Substantial evidence supports the finding that defendant aided and abetted the commission of the murder and attempted murder. Defendant initiated the commission of the crimes by alerting his codefendants—Eric, Richard and Diaz—to the presence of the victims in the market; he followed the victims through the market, borrowed a cell phone from a coworker and then called the phones of Eric and Erics girlfriend. After the phone calls, Eric and another man entered the store and followed the victims. Richard and Diaz waited for the victims outside in the parking lot and shot them after they left the market. After the shooting, defendant made admissions to his coworker that he recognized Ybarra and Cabrera as men who had problems with his friends, and he wanted his friends to handle the matter. He also told his coworker that he told his friends not to "burn the spot," a phrase that meant not to draw attention to the market.
Defendant contends that the phrase not to "burn the spot" meant that defendant did not want to get involved in any confrontation, and the phrase suggested that he did not believe anything would happen at the market. We are not persuaded by this argument. A reasonable inference is that defendant knew what would happen after he called his friends and wanted to make sure that they did not do anything at the market, where it might draw attention to defendant or his involvement in the incident.
A reasonable jury certainly could find that defendant was aware of and shared his codefendants intention to kill the victims. The jury could reasonably infer from his participation, that he shared the same intent as the shooters. His statements to his coworker certainly indicated that he was aware of the problems between the victims and the shooters. His murder and attempted murder convictions on an aiding and abetting theory thus are supported by substantial evidence. (People v. Smith, supra, 37 Cal.4th at pp. 738-739.)
2. Conspiracy
"`A conviction of conspiracy requires proof that the defendant and another person had the specific intent to agree or conspire to commit an offense, as well as the specific intent to commit the elements of that offense, together with proof of the commission of an overt act "by one or more of the parties to such an agreement" in furtherance of the conspiracy. [Citations.]" (People v. Jurado (2006) 38 Cal.4th 72, 120.) Due to the secrecy usually involved in a conspiracy, the People need not provide direct evidence that the conspirators met and came to an express or formal agreement to commit the target crime. (People v. Austin (1994) 23 Cal.App.4th 1596, 1606, disapproved on another ground in People v. Palmer (2001) 24 Cal.4th 856, 861.) "The evidence is sufficient if it supports an inference that the parties positively or tacitly came to a mutual understanding to commit a crime. Therefore, conspiracy may be proved through circumstantial evidence inferred from the conduct, relationship, interests, and activities of the alleged conspirators before and during the alleged conspiracy." (People v. Prevost (1998) 60 Cal.App.4th 1382, 1399.)
Here, the evidence established that defendant was aware of problems his friends were having with the victims, and he wanted his friends to "handle" it. He spoke with at least one of his friends about the victims immediately before the murder, warning him that he did not want his friends to "burn the spot." It is reasonably inferable from this evidence that defendant told his friend that the victims were at the market so that his friends could commit crimes against the victims. In other words, the evidence supports an inference that defendant and the friend with whom he spoke "positively or tacitly came to a mutual understanding" (People v. Prevost, supra, 60 Cal.App.4th at p. 1399) that his friends would commit crimes against the victims, with an understanding that the crimes would take place at a location away from the market so as not to implicate defendant. Substantial evidence therefore supports his conviction. (Ibid.)
B. Discharge of Juror No. 9
Section 1089 provides that a trial court may discharge a juror and replace him or her with an alternate if the juror is found to be unable to perform his or her duty. On appeal, this court reviews the decision to discharge a juror and replace him or her with an alternate for abuse of discretion. (People v. Marshall (1996) 13 Cal.4th 799, 843.) If there is any substantial evidence supporting the trial courts decision, it will be upheld. (Ibid.)
Deliberations began at 11:50 a.m. on Tuesday, October 24, 2006. On Thursday, October 26, after 3:00 p.m., the jury foreperson and three other jurors sent a note to the court which stated: "A number of jurors have concerns about juror #9. Since deliberations have begun he has disclosed information such as `I was arrested for murder, `all prosecutors lie,[] `you dont know how much the police lie, `I was involved in a shooting once. His bias & refusal to accept any witness or evidence as credible is seriously hampering our consensus. He seems to be concerned about penalty."
On Friday, October 27, the judge sitting in for the trial court suggested questioning the foreperson in chambers. The court then received a second note indicating that the jury was continuing its deliberations and decided not to take any action at that time.
On Monday, October 30, when the trial judge returned, another note was received from the jury which read, "Your honor, [ten] jurors are in agreement that Juror #9 is refusing to deliberate or give reasons why he wont accept any evidence beyond `I need more." The note was signed by the foreperson and nine other jurors. The court also received a two-page letter from the foreperson stating in part:
"Your Honor, first I want to say that Im convinced that we each believe that we are conscientiously following your instructions in order to reach a decision in our deliberations. We have read and reread them many times during this process. We are unsure as to whether our frustration and disappointment about not being able to come to a consensus is a normal part of the difficult deliberation situation or if we are indeed being hindered by one person who came into this process with a personal grudge or agenda and is . . . unable and unwilling to evaluate the evidence as presented."
The letter repeated the comments regarding the police and prosecutors lying, and stated that Juror No. 9 said he had been involved in a shooting, had been removed from 13 high schools, and was discharged from the military for incompatibility.
The trial court noted that Juror No. 9s voir dire responses were in direct contradiction to his statements made during deliberations. The trial court explained that Juror No. 9 had indicated in voir dire that he had been arrested once for assault and that it was later reduced to a disturbance charge. The court further noted that Juror No. 9 had indicated in voir dire that he had been fairly treated by the police during his arrest, that he had no ill feelings toward anyone once the case was over, that he would not hold the prosecutor in this case responsible for his prior incident, that he did not believe police officers were either more or less likely to tell the truth, that there was no reason why he could not be a fair and impartial juror in this case, and that he had never been unfairly treated by a law enforcement officer.
The trial court then began individual questioning of the jurors. The trial court started with the foreperson. He indicated that Juror No. 9 had initially participated in the discussions, but he had changed and was either turning his back in the jury room, facing or looking at the wall, or laying his head on the table. The foreperson also repeated Juror No. 9s comments about being accused of murder and how all police lie.
The court next examined Juror No. 9 and the following occurred regarding Juror No. 9s voir dire responses and his statements in the jury room.
"The Court: We do have the transcript from your voir dire. I have reviewed that, including the Courts questionnaire. [¶] Were you accused of murder?
"Juror No. 9: No. No. I believe the charge—the charge—the person made against me I believe it was attempted murder, but I dont believe it was ever charged. It was bumped down to assault with a deadly weapon ultimately bumped down to a 415 disturbance.
"The Court: So attempted murder was never actually filed against you, it was only complained of by the person who brought the charges against you, is that what you are saying?
"Juror No. 9: I believe so. I cant remember exactly how the charge went. It was very—it was very confusing. [¶] My brother was a police officer at the time. So most of the charge went through him and I was a co-defendant with him, and so I cant remember exactly what the original charge was. But I dont believe I was ever charged with the attempted murder. But I believe that was the charge he wanted of me which is what came up in there.
"The Court: Because you were quoted as saying that you were accused of murder not attempted murder or assault.
"Juror No. 9: No.
"The Court: You never made those statements?
"Juror No. 9: I said I was charged, which is what I believe the charge was originally.
"The Court: You were charged with murder or attempted murder?
"Juror No. 9: I believe the charge was attempted murder, I think is what he wanted originally. I dont believe it ever made it that far. Im not certain of even how the process went.
"The Court: Why wasnt that disclosed when we asked you about prior arrests?
"Juror No. 9: Because Im certain the charge was assault with a deadly weapon when it came down to it. I dont know what it was originally. That sounds terrible. The charge was—it was a while ago and I dont remember what the original charge was for it. I do remember being charged with assault with a deadly weapon. [¶] My point to them was that the charge the person wanted was nowhere near what was reasonable for the incident.
"The Court: And why is that relevant to your deliberations in this case? Why is it even brought up?
"Juror No. 9: One of them had brought up something in regards to—how can I say it without telling anything—in relation to this case, we were talking about how things can get escalated. Thats all.
"The Court: You felt that that happened to you and that you were charged with a greater offense that was later reduced?
"Juror No. 9: I was explaining how the person charging sometimes escalates the charge on the assumption its going to be dropped down sometime.
"The Court: All right. And we talked to you in voir dire about your feelings about police officer credibility and whether or not you could be fair to both sides in this case and you indicated you could. Do you have a different feeling?
"Juror No. 9: I dont. I dont. Ive indicated to them that the police could lie just like anyone else could. I believe a lot of my statements are being taken to the extreme in there, your Honor.
"The Court: You never said anything about all police officers lie?
"Juror No. 9: I never said all police officers lie.
"The Court: Have you ever said anything about prosecutors lying?
"Juror No. 9: Not that I remember directly. But if it was anything, it would have been that they could just like anyone else.
"The Court: And you never made the direct statement or something close to the effect that all police officers lie or all prosecutors lie?
"Juror No. 9: No. I try very hard in there to make sure my statements sound very reasonable being that Im the dissenting opinion."
After examination of Juror No. 9, the trial court then examined four other jurors. Juror No. 1 stated that Juror No. 9 "wont deliberate," that he had "an agenda of some sort," and a "mindset from the outset." Juror No. 8 indicated that at the beginning of deliberations, Juror No. 9 expressed an extreme bias. Juror No. 8 stated that Juror No. 9 expressed bias against prosecutors and police officers because he stated, "cops are all liars," "prosecutors are slimy," and "they concocted an entire case against me."
The trial court then spoke to Juror No. 11, who indicated that Juror No. 9 was deliberating, and that she did not recall Juror No. 9 making any statements in deliberations that were inconsistent with his voir dire responses. Juror No. 2 was then questioned and stated that Juror No. 9 discussed "when he went to court, how they tried to frame him and stuff like that." Juror No. 2 also expressed a belief that Juror No. 9 was not willing to deliberate.
The trial court excused Juror No. 9. The trial court found that Juror No. 9 had been either deliberately falsifying answers in voir dire or substantially misrepresenting the facts regarding his feelings about the credibility of police officers, and the credibility of prosecutors. The trial court also found that Juror No. 9 misrepresented his prior criminal record or at least minimized it substantially. The trial court found the statements of the foreperson and the other jurors, with the exception of Juror No. 11, to be credible.
In discharging Juror No. 9, the trial court relied on the case of People v. Thomas (1990) 218 Cal.App.3d 1477. In Thomas, the trial court properly discharged a juror who had stated that police officers in Los Angeles generally lie and that she could not accept the testimony of the officers who testified at trial. (Id. at pp. 1482-1485.)
A trial courts decision to remove a juror for cause will be upheld on appeal if the jurors inability to perform as a juror appears on the record as a "demonstrable reality." (People v. Barnwell (2007) 41 Cal.4th 1038, 1052.) In Barnwell, the California Supreme Court held that the trial court properly discharged a juror for cause because the record demonstrated that the juror "exhibited a general bias against police officers that prevented him from fairly weighing police testimony in this case." (Id. at p. 1048.) In Barnwell, the trial court examined all 12 jurors to investigate an allegation that one juror was not deliberating due to a bias against law enforcement officers. Nine of the jurors indicated that the discharged juror had exhibited bias against police officers. (Id. at p. 1049.) This was sufficient to demonstrate inability to perform as a demonstrable reality. (Id. at p. 1053.)
In the instant case, as in Barnwell, it appears on the record as a "demonstrable reality" that Juror No. 9 was unable to perform his duties as a juror based upon his actual bias against police officers and prosecutors. (People v. Barnwell, supra, 41 Cal.4th at p. 1052.) Four of the six jurors examined support the trial courts decision to excuse Juror No. 9 based upon bias. This was sufficient. (Id. at p. 1053.)
Defendant also contends that the trial courts inquiry violated the sanctity of jury deliberations. We disagree.
People v. Cleveland (2001) 25 Cal.4th 466 discusses the trial courts inquiry into possible grounds for discharge of a juror. The court noted that "[d]etermining whether to discharge a juror because of the jurors conduct during deliberations is a delicate matter, especially when the alleged misconduct consists of statements made during deliberations." (Id. at p. 484.) Evidence Code section 1150 prohibits admission of evidence of jurors mental processes when there is a postjudgment inquiry into possible juror misconduct. (Cleveland, supra, 25 Cal.4th at p. 484.) It permits introduction of evidence of statements made within the jury room when "`the very making of the statement sought to be admitted would constitute misconduct." (Ibid.) But "because `[s]tatements have a greater tendency than nonverbal acts to implicate the reasoning processes of jurors," caution must be used in admitting evidence of such statements. (Ibid.) These same rules should guide a judge in making an inquiry into possible grounds for discharge of a juror; the "trial courts inquiry into possible grounds for discharge of a deliberating juror should be as limited in scope as possible, to avoid intruding unnecessarily upon the sanctity of the jurys deliberations." (Id. at p. 485.)
The trial courts inquiry into misconduct was appropriate and did not violate the sanctity of jury deliberations. The trial courts inquiry focused on the objective conduct of Juror No. 9 and his ability to be an impartial juror. The focus included whether Juror No. 9 was discussing the evidence with the other jurors and whether he had made statements that reflected any bias. (See, e.g., People v. Barnwell, supra, 41 Cal.4th at p. 1054.)
C. Evidence of Tagging Crews
Defendant contends that the trial court committed prejudicial error and violated his due process rights to a fair trial by allowing the prosecution to introduce evidence relating to tagging crews. While we agree that the evidence was inadmissible, we hold that its admission was harmless.
The prosecutions theory of the case was that Ybarra, a member of the UK tagging crew, was killed because he had recently crossed out UE graffiti at his apartment building and replaced it with UK graffiti. While that may have been the motive for the killing, the prosecution failed to introduce any evidence connecting defendant with UE. Absent any connection between defendant and UE, the evidence was irrelevant and inadmissible. (Evid. Code, §§ 210, 350.)
The erroneous admission of the evidence does not require reversal of the judgment unless it is reasonably probable defendant would have obtained a more favorable result had there been no error. (People v. Earp (1999) 20 Cal.4th 826, 878.) That is not the case here: The tagging crew evidence went to motive only, it did not directly implicate defendant, and it was not highly inflammatory, so as "to evoke an emotional bias against defendant as an individual" (People v. Yu (1983) 143 Cal.App.3d 358, 377). Additionally, there was ample evidence connecting defendant to the crimes. It is not reasonably probably he would have been acquitted had the tagging crew evidence not been introduced.
D. Trial Court Request of Jury to Clarify Its Verdict
Defendant contends that the trial court committed prejudicial error when it refused to accept the jurys initial verdict of second degree murder in count 1 and instructed the jury to continue deliberations and to reconsider its verdict, in that the jurys verdict of guilty of second degree murder was an implied "acquittal" of first degree murder. We agree the trial courts instruction was erroneous.
In its initial instructions to the jury, the trial court stated: "If you decide that the defendant has committed murder, you must decide whether it is murder of the first degree or second degree. The defendants have been prosecuted for first degree murder under two theories. Number one, that the murder was willful, deliberate and premeditated and, two, the murder was committed while lying in wait. . . . All others are of the second degree. The People have the burden of proving beyond a reasonable doubt that the killing was first degree murder rather than a lesser crime. If the People have not met this burden, you must find the defendant not guilty of first degree murder."
The court also instructed the jury that the defendant had been charged with the special circumstance of lying in wait and defined that term. The court did not, however, give the jury the "acquittal-first" instruction (CALCRIM No. 640), i.e., that the jury must first acquit defendant of first degree murder before considering whether he is guilty of second degree murder. The court did not precede the special circumstances instruction with an instruction that the jury must decide whether the defendant is guilty of first degree murder before it determines whether the alleged special circumstances are true (CALCRIM No. 700). Neither did the court instruct the jury that if they found the defendant guilty of second degree murder they should not make findings on the alleged special circumstances.
The jury returned the following verdict on the murder charge: "[W]e, the jury in the above entitled action, find the defendant, Jessie Heredia, guilty of the crime of murder of Richard Ybarra . . . . We further find the murder to be of the second degree. We further find the allegation that Jesse Heredia committed the murder of Richard Ybarra and intentionally killed the victim by means of lying in wait to be true."
After the entire verdict was read, the court asked the jurors to step back into the jury room. The court and counsel discussed the murder verdict. The court noted that the jury "found [defendant] guilty in the second degree, but they found the lying in wait to be true which I think is inconsistent." The court advised counsel that it was "inclined to bring them out and tell them to look over the jury instructions again with regards to first degree murder and the allegations of lying in wait to see if they can reach a different verdict consistent or striking the allegation, one or the other." Defense counsel objected to the court directing "re-deliberation on a particular point when theyve come out clearly and said it was a second degree." The court overruled this objection and called the jury back to the courtroom.
When the jury returned, the court stated: "It occurs to me, ladies and gentlemen, after relooking at the verdicts on count one as to defendant Jessie Heredia only, which is the murder allegation of Richard Ybarra, that you found him guilty in the second degree of murder but you also found he intentionally killed the victim by means of lying in wait to be true. This is inconsistent with the jury instructions. I will refer you back to the jury instructions on the definition of first degree murder and the special allegation of lying in wait and see if you can rectify this inconsistency. If you cant, you cant but there may be some confusion there." The jury went back to the jury room, deliberated further, and returned a verdict of first degree murder, finding the lying in wait special circumstance to be true.
Section 1161 provides, in pertinent part, as follows: "When there is a verdict of conviction, in which it appears to the Court that the jury have mistaken the law, the Court may explain the reason for that opinion and direct the jury to reconsider their verdict, and if, after the reconsideration, they return the same verdict, it must be entered; but when there is a verdict of acquittal, the Court cannot require the jury to reconsider it."
In Bigelow v. Superior Court (1989) 208 Cal.App.3d 1127, the jury returned a verdict convicting defendant of kidnapping and robbery but acquitting him of first degree murder. The jurys verdict also found that the charged murder special circumstances of robbery and kidnapping existed. Without explaining the inconsistency, the trial court had the jury deliberate further based upon the inconsistent verdict. After further deliberations, the jury reported it was deadlocked on the murder count and the trial court declared a mistrial. (Id. at pp. 1129, 1136.)
The appellate court held that when faced with an acquittal of first degree murder, which purported to be unanimous, and conflicting findings of special circumstances the trial court had three options. It could have recorded the verdict of acquittal and treated the special circumstance findings as superfluous. It could have polled the jury to assure itself there were 12 votes for acquittal. Or, it could have explained to the jury that its findings of special circumstances were inconsistent with its acquittal of the murder charge and asked the jury to clarify its verdict to show its true intent. (Bigelow v. Superior Court, supra, 208 Cal.App.3d at p. 1136.)
The appellate court noted that when the trial court sent the jury out for further deliberations, it "could not more plainly have told the jury that its verdict was unacceptable, yet it never explained why. It was unrealistic to have expected the jury to solve the problem unassisted. This jury had already shown its confusion by filling out special circumstance verdicts after stating an acquittal. Given that confusion, it would be entirely unrealistic to expect that same jury, with no explanation, to deduce the reason why the trial court would not accept its verdict. . . . This conduct greatly increased the probability of the jurys concluding that a verdict of acquittal was unacceptable and that it was under a mandate to convict." (Bigelow v. Superior Court, supra, 208 Cal.App.3d at p. 1137.)
The instant case is no different. Upon receiving the inconsistent verdict, the trial court should not only have told the jury the verdict was inconsistent but explained the inconsistency (§ 1161) and instructed the jury pursuant to CALCRIM No. 640 that in order to convict defendant of second degree murder it must first acquit him of first degree murder. (People v. Fields (1996) 13 Cal.4th 289, 309; People v. Kurtzman (1988) 46 Cal.3d 322, 329.) It also should have instructed the jury pursuant to CALCRIM No. 700 that the special circumstances should be considered only after finding defendant guilty of first degree murder. Armed with these instructions, the jury could have clarified its verdict to show its true intent. (Bigelow v. Superior Court, supra, 208 Cal.App.3d at p. 1136.)
In the absence of proper instruction, all the jury knew was that its second degree murder verdict was in some way inconsistent, but not how or why it was consistent. It easily could have concluded that the trial court was directing it to return a first degree murder verdict, which is what it did. The first degree murder verdict "can only be viewed as the product of trial court conduct which the jury understood as rejection of its verdict." (Bigelow v. Superior Court, supra, 208 Cal.App.3d at p. 1137.) It thus cannot stand, and defendant is entitled to the jurys original second degree murder conviction. (Ibid.) The special circumstance finding must be deemed superfluous. (Id. at p. 1136.)
In light of this conclusion, we need not address defendants contention that the evidence is insufficient to support the special circumstance finding.
E. Sentence on Count 2
Defendant contends that the sentence on count 2 is incorrect, and the People agree. After the trial court imposed a term of life without possibility of parole on count 1, the trial court then sentenced defendant to a consecutive term of 25 years to life for the count 2, attempted premeditated murder.
Section 664, subdivision (a), provides that "if the crime attempted is willful, deliberate, and premeditated murder, as defined in Section 189, the person guilty of that attempt shall be punished by imprisonment in the state prison for life with the possibility of parole." The trial courts imposition of a consecutive sentence of 25 years to life for defendants attempted murder conviction is unauthorized. Under section 664, subdivision (a), the correct sentence on count 2 should be life with the possibility of parole, plus a consecutive one-year term for the section 12022, subdivision (a)(1) enhancement.
F. Parole Revocation Fine
Defendant contends that the trial court erred in imposing a $10,000 parole revocation fine under section 1202.45. Since he was sentenced to a term of life without the possibility of parole on count 1, the section 1202.45 parole revocation fine was not applicable. (People v. Oganesyan (1999) 70 Cal.App.4th 1178, 1185-1186.) Inasmuch as we are reversing defendants first degree murder conviction and thus his sentence of life without the possibility of parole (Pen. Code, § 190), defendants contention no longer has any merit.
DISPOSITION
The judgment is reversed as to the conviction on count 1, the true finding on the lying in wait special circumstance and the sentence on count 2. In all other respects, it is affirmed. The trial court is directed to enter a conviction of second degree murder on count 1 and to resentence defendant in accordance with the views expressed herein.
We concur:
MALLANO, Acting P. J.
ROTHSCHILD, J.