Filed 9/12/13



                           CERTIFIED FOR PUBLICATION



          IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                          FOURTH APPELLATE DISTRICT

                                     DIVISION TWO



THE PEOPLE,

        Plaintiff and Appellant,                      E056708

v.                                                    (Super.Ct.No. RIF154701)

BRIAN MICHAEL ARANDA,                                 OPINION

        Defendant and Respondent.



        APPEAL from the Superior Court of Riverside County. Michele D. Levine and

Helios (Joe) Hernandez, Judges. Affirmed and remanded.

        Paul E. Zellerbach, District Attorney, and Kelli Catlett, Deputy District Attorney,

for Plaintiff and Appellant.

        Blumenthal Law Offices, Virginia Blumenthal and Brent F. Romney for

Defendant and Respondent.




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                                     INTRODUCTION

       In Stone v. Superior Court (1982) 31 Cal.3d 503 (Stone), the California Supreme

Court held that when a jury indicates that it has unanimously determined that the

defendant is not guilty of a greater offense but is deadlocked only on a lesser included

offense, the court must afford the jury the opportunity to return a partial verdict of

acquittal on the greater offense before the trial court may declare a mistrial. If the court

does not do so, the mistrial is deemed to be without legal necessity as to the greater

offense, and double jeopardy principles preclude retrying the defendant for that offense.

(Id. at p. 519.)

       Not all states have a partial acquittal rule. In Blueford v. Arkansas (2012) 566

U.S. ___ [132 S.Ct. 2044] (Blueford), which was decided while this case was pending in

the trial court, the United States Supreme Court held that the Fifth Amendment’s double

jeopardy clause does not mandate such a procedure, and that, in a state which does not

have a partial acquittal rule, if the jury deadlocks on a lesser included offense without

formally returning a verdict of not guilty on the greater offense, the defendant may be

retried on both the greater and lesser offenses. (Id., 132 S.Ct. at pp. 2048-2053.)

       The People, the appellants in this case, contend that Blueford abrogates Stone,

because Stone based its analysis solely on double jeopardy jurisprudence under the

United States Constitution. Defendant contends that Stone is based instead on the

California Constitution and that Blueford consequently does not abrogate the partial

verdict rule enunciated in Stone.



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       We conclude that Stone continues to apply in criminal prosecutions in California

state courts until such time as the California Supreme Court holds otherwise.

                                     BACKGROUND

       Defendant Brian Michael Aranda was tried on an information which alleged a

single count of first degree murder.1 The jury was instructed on first degree murder and

the uncharged lesser included offenses of second degree murder and voluntary

manslaughter. The jury was apparently given “guilty” verdict forms for first degree

murder, second degree murder and voluntary manslaughter, but only a single “not guilty”

verdict form.2

       On Friday, December 2, 2011, after the court received a report of possible

misconduct by one juror—“throwing things” when the juror disagreed with other

jurors—and that the jury was possibly deadlocked, the court summoned the jury foreman

into the courtroom. The court asked the foreman “how things are going.” The foreman

replied that the jury was at a stalemate. He stated that the jury had “basically ruled out

murder in the first degree” and had “worked down to voluntary manslaughter, but there’s

still a couple that are still stuck on second degree.” He stated that the jury was having “a




       1  Because no verdict was returned, the underlying facts were not determined. The
trial evidence is in any event not relevant to the issues raised in this appeal.

       2  The clerk’s transcript does not contain the unused verdict forms, and neither
party cites any portion of the record which makes this explicit. Nevertheless, it is clear
that the jury was not given a “not guilty” verdict form for first degree murder.


                                              3
tough time coming to a unanimous decision.” The court told the foreman to go back to

the jury room and to continue deliberations.

       The following Monday, December 5, the foreman sent a request to speak to the

court. The foreman stated that there was still one juror who thought that defendant was

guilty of second degree murder and two others who were “on the side of voluntary.”

Nine jurors “are not guilty.” The foreman stated that the jury was “kind of at a

stalemate.” He stated that the jury had gone through all of the evidence, “over and over

and over.” He reported that some jurors were concerned about Juror No. 10 because

Juror No. 10 “knows a lot of Corona police officers” and worked for the city. It was

Juror No. 10 who was “pretty much stuck on second degree.”

       The court asked the foreman to step out into the hallway. After discussion with

counsel, the court decided to bring the jury in and “ask them what they can do” to assist

the jury, but to have them continue to deliberate for the rest of the afternoon. When the

jury came into the courtroom, several jurors asked questions concerning instructions.

Juror No. 12 then said that although the jury had been deliberating for six days, they were

still “at different ends of the spectrum.” Juror No. 12 did not believe that the jury would

ever reach a verdict. The court directed the jury to continue deliberations until 3:30 pm.

(It was then 2:49 p.m.)

       Both before and after the colloquy with the foreman on December 5, 2011,

defense counsel asked the court to give the jury a “not guilty” verdict form to allow the

jury to state that it had found defendant not guilty of first degree murder, if that was the

case. The court refused, saying that doing so after having not originally given the jury

                                               4
“not guilty” verdicts on any of the offenses might give jurors the impression that the

court was “directing them as to which way to think.”

       At 3:30 p.m., the foreman reported that the jury was “still at the same spot,” i.e.,

nine to acquit, two for voluntary manslaughter and one for second degree murder. The

court concluded that the jury was hopelessly deadlocked and declared a mistrial.

Referring back to her request that the jury be given a “not guilty” verdict form for first

degree murder, defense counsel then stated that defendant “should not be able to be tried

again on first degree murder” because the jury had indicated that it had acquitted him of

that offense.

       The defense filed a motion to dismiss the first degree murder charge and the lesser

included offenses, asserting “once in jeopardy.” The prosecution opposed the motion.

After argument, the court3 held that the trial judge’s failure to afford the jury the

opportunity to return a not guilty verdict on first degree murder precluded retrial on that

offense, but that the trial judge had properly declared a mistrial on the lesser offenses and

that retrial on the lesser offenses was permissible. The court subsequently denied the

prosecution’s motion for reconsideration, which was based on the recently decided case

of Blueford, supra, 132 S.Ct. 2044.




       3The Honorable Helios (Joe) Hernandez presided over the trial. The posttrial
motion was heard by the Honorable Michele D. Levine.


                                              5
       The prosecution filed a timely notice of appeal.4

                                    LEGAL ANALYSIS

       It has long been established that the double jeopardy clause of the Fifth

Amendment to the United States Constitution does not permit retrial of a criminal

defendant after a mistrial has been declared without the defendant’s consent, unless the

mistrial resulted from “manifest necessity”—typically, a deadlocked jury which is unable

to return a unanimous verdict. (See Blueford, supra, 132 S.Ct. at pp. 2050, 2053.) The

same rule, termed “legal necessity,” arises under the California Constitution. (People v.

Fields (1996) 13 Cal.4th 289, 300 (Fields).)

       As noted above, in Stone, supra, 31 Cal.3d 503, the California Supreme Court held

that when a jury indicates that it has unanimously determined that a defendant is not

guilty of a charged offense but reports that it is deadlocked on an uncharged lesser

included offense, the trial court must offer the jury the opportunity to return a verdict of

not guilty on the greater offense before it declares a mistrial. “Failure to do so will cause




       4An order granting a motion to dismiss based on a plea of former jeopardy is
appealable as long as the motion was granted before a jury has been impaneled in a
subsequent proceeding. (People v. McDougal (2003) 109 Cal.App.4th 571, 580-581;
Pen. Code, § 1238, subd. (a)(8).)


                                               6
a subsequently declared mistrial to be without legal necessity,” with respect to the greater

offense, and double jeopardy principles preclude a retrial on that offense.5 (Id. at p. 519.)

       The People contend that Blueford implicitly overruled Stone because in that case

the United States Supreme Court held that the Fifth Amendment does not require that a

jury which is deadlocked on a lesser included offense be given the opportunity to return a

partial verdict of not guilty on the greater offense. (Blueford, supra, 132 S.Ct. at

pp. 2050-2053.) If Stone based its rule exclusively on the Fifth Amendment, as the

People assert, then its holding was abrogated by Blueford. Blueford does not, however,

hold that a state may not require the opportunity for partial acquittal upon deadlock on a

lesser included offense. Accordingly, if the partial acquittal rule arises independently

under the California Constitution, the partial acquittal rule enunciated in Stone retains its

validity.

       The People are correct that the California Supreme Court did not explicitly state in

Stone that the partial acquittal rule arises independently under the California Constitution.

Although the court stated that it remains free to delineate a higher level of protection

under article I, section 15 of the California Constitution (Stone, supra, 31 Cal.3d at

p. 510), the court did not state that it was delineating a higher level of protection under

the California Constitution. After discussing California authorities involving somewhat

       5  The Stone rule does not require the jury to make any formal announcement
that it has unanimously decided that the defendant is not guilty of the charged offense.
Rather, “some indication of deadlock only on an uncharged lesser included offense”
suffices to trigger the trial court’s duty to afford the jury the opportunity to return a
partial verdict of not guilty on the charged offenses. (People v. Marshall (1996) 13
Cal.4th 799, 826.)

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similar but distinguishable scenarios (id. at pp. 512-516), the court “turn[ed] to the

precise issue here—whether the double jeopardy clause requires formulation of a

procedure for the receipt of partial verdicts in [the circumstances present in that case].”

(Id. at pp. 516-517.) The court did not specify which double jeopardy clause it was

relying on. And, the ensuing discussion leading to the court’s holding is based almost

entirely on Green v. United States (1957) 355 U.S. 184, a Fifth Amendment case. (Stone,

at pp. 517-518.)6

       Nevertheless, the court has made it clear that the legal necessity rule, of which the

partial acquittal rule is a part, is a doctrine which arises independently under the

California Constitution. In Fields, supra, 13 Cal.4th 289, the court addressed the

contention that the implied acquittal rule, which applies when a jury returns a guilty

verdict on a lesser offense without expressly stating that it is deadlocked on a greater

offense, should also apply when a jury reports that it is deadlocked on a greater offense

and returns a verdict of guilty on a lesser offense. (Id. at p. 295.) The court held that the

implied acquittal rule arises both under the federal and state Constitutions. (Id. at p. 299.)

Analyzing the defendant’s argument first under the federal double jeopardy clause, the

       6 In Blueford, the court rejected the argument that Green v. United States, supra,
355 U.S. 184, mandated a finding of implied acquittal. In Green, the court held that
when a jury convicts a defendant of a lesser included offense and does not return a verdict
on the greater offense, acquittal of the greater offense is implied. That rule does not
apply when the jury has deadlocked on a lesser included offense, even if the jury was
instructed that it must acquit the defendant of the greater offense before returning a
verdict on a lesser included offense. (Blueford, supra, 132 S.Ct. at pp. 2050-2052.)
Implied acquittal, however, is distinct from the doctrines of manifest necessity and legal
necessity to justify a retrial following jury deadlock. (Fields, supra, 13 Cal.4th at pp.
299-300.)

                                              8
court found the rule inapplicable where the jury is “expressly deadlocked, rather than

merely silent, on the greater offense.” (Id. at p. 301) Based on cases where under other

circumstances the United States Supreme Court “recognized a distinction, for double

jeopardy purposes, between a jury’s silence and its expressed inability to return a verdict”

(ibid.), the court concluded that the federal Constitution “does not compel the

conclusion” that the doctrine of implied acquittal applies in every case in which the jury

returns a verdict of guilty on the lesser included offense. (Id. at pp. 301-302.)

Nevertheless, the court held, that does not end the inquiry, because the doctrines of

implied acquittal and of manifest necessity/legal necessity “are well established under

both the federal and state Constitutions.” Accordingly, a different result could obtain

under California law. (Id. at pp. 302-303.) The court held, however, that there is

“nothing in the state decisions suggesting it is any more plausible under California law

than under federal law” to apply the doctrine of applied acquittal when the jury has

expressly deadlocked on the greater offense. (Id. at p. 303.)

       This does not directly resolve the question presented here, i.e., whether the Stone

partial acquittal rule survives Blueford. However, because Fields makes it abundantly

clear that California’s Constitution is the independent source of its double jeopardy

jurisprudence to the extent that it may provide protection greater than is mandated by the

federal Constitution, we conclude that we are compelled to hold that the Stone rule arises

independently of the federal Constitution and that it retains its validity under the

California Constitution until such time as our Supreme Court holds otherwise. We

emphasize that in Blueford, the court did not hold that a partial acquittal rule is

                                              9
impermissible under the federal Constitution; on the contrary, it held only that such a rule

is not compelled by the Fifth Amendment. (Blueford, supra, 132 S.Ct. at pp. 2050-2053.)

Because Blueford does not mandate the abrogation of Stone, we do not believe it is our

prerogative to disregard a rule enunciated by the California Supreme Court simply

because the court did not explicitly hold that the rule arises under both the state and

federal Constitutions. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450,

455.) Accordingly, we hold that Blueford abrogates Stone only to the extent that Stone

held that the partial acquittal rule arises under the federal Constitution, and that the partial

acquittal rule continues to apply in prosecutions in California state courts.

       The remainder of the People’s arguments are based on the contention that the trial

court should have applied Blueford to determine whether the mistrial was properly

granted with respect to the charged offense of first degree murder. Accordingly, we need

not address them.7




       7 Because the People do not assert that the trial court erred in finding the mistrial
without legal necessity under Stone, we need not address the merits of the ruling.
Defendant, on the other hand, argues that double jeopardy bars retrial on both the charged
offense and the uncharged lesser offenses and asks that we dismiss “all charges.” We
cannot grant defendant affirmative relief with respect to the uncharged lesser offenses
because he has not appealed from that aspect of the trial court’s ruling on his motion.
(Estate of Powell (2000) 83 Cal.App.4th 1434, 1439.) In any event, the trial court
correctly concluded that retrial on the lesser included offenses is permissible pursuant to
Stone.

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                                        DISPOSITION

          The order granting the motion to dismiss the charge of first degree murder is

affirmed. The cause is remanded for further proceedings. The previously ordered stay is

lifted.

          CERTIFIED FOR PUBLICATION




                                                                 McKINSTER
                                                                                  Acting P.J.

We concur:



RICHLI
                             J.



KING
                             J.




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