Filed 6/17/13
                           CERTIFIED FOR PUBLICATION


                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                           SECOND APPELLATE DISTRICT

                                    DIVISION EIGHT


THE PEOPLE,                                       B237734

        Plaintiff and Respondent,                 (Los Angeles County
                                                  Super. Ct. No. NA088024)
        v.

DEMETRIUS SULLIVAN,

        Defendant and Appellant.



        APPEAL from a judgment of the Superior Court of Los Angeles County, James
Pierce, Judge. Reversed.


        Joshua L. Siegel, under appointment by the Court of Appeal, for Defendant and
Appellant.


        Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Paul M. Roadarmel, Jr., and
David F. Glassman, Deputy Attorneys General, for Plaintiff and Respondent.


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        We hold that double jeopardy bars a retrial on a substantive offense when jurors
reached a verdict on the substantive offense but deadlocked as to an enhancement. The
trial court should have taken a verdict on the substantive offense and declared a mistrial
as to the enhancement only. Finding that defendant Demetrius Sullivan received the
ineffective assistance of counsel for counsel‟s failure to advise defendant to plead once in
jeopardy, we reverse the judgment of conviction.
                                     BACKGROUND
       On March 17, 2011, defendant was charged with robbery (Pen. Code, § 211)1 and
assault likely to produce great bodily injury (§ 245, subd. (a)(1)). It was further alleged
defendant personally inflicted great bodily injury on John Doe in violation of section
12022.7, subdivision (a). Prior convictions were alleged. Defendant was tried by jury.
With respect to the great bodily injury enhancement, jurors were instructed that “great
bodily injury means significant or substantial physical injury. It is an injury that is
greater than minor or moderate harm.” Jurors asked the court the meaning of “moderate
harm,” and the court reinstructed them.
       In the morning of June 30, 2011, jurors returned a verdict on the robbery charge,
and reported they were unable to reach a verdict on whether defendant actually inflicted
great bodily injury on John Doe. The court ordered jurors to conduct additional
deliberations. That afternoon, jurors reported they were still unable to reach a verdict on
the special circumstance. Their note stated: “We are at a standstill on special
circumstances. We have a verdict.” The court concluded it could not take a verdict on
the substantive offense without simultaneously taking a verdict on the enhancement. The
court explained:
       “THE COURT: . . . It‟s now 3:05 in the afternoon, and approximately 10 minutes
ago we received another note from the foreperson that indicated: „We are at a standstill
on special circumstances. We have a verdict.‟ [¶] Unfortunately, ladies and gentlemen.
I‟m unable to take the verdict unless the complete form is there. So I want you to
understand that it‟s all together. [¶] Now I would like to inquire as to Juror No. 4, the
foreperson, what the poll count at the last counting?

1      All undesignated statutory references are to the Penal Code.

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       “JUROR No. 4: It was 11 to 1.
       “THE COURT: So there‟s been no change?
       “JUROR No. 4: Uh-uh.
       “THE COURT: Okay. Let me ask you a couple of other questions, and I want all
of you to think about this. If the Court were to ask you to continue deliberating and
provide anything to you, if additional playing the tape again or maybe some more
definitions, if I can give you some more words from the dictionary in regard to the
difference between „moderate‟ versus „significant‟ -- that‟s what we‟re talking about
here. „Moderate‟ versus „significant‟ -- would any of that be helpful and would possibly,
not probably, but possibly result in a verdict in this matter? . . . .
       “JUROR No. 4: I don‟t think so.”
The court asked the remaining jurors the same question; all responded negatively. The
court then stated: “The Court hereby declares a mistrial in this matter, and we start all
over again. . . . [¶] The jury is hereby excused.”
       After declaring a mistrial, the foreperson reported that one juror thought “it was
minor” and “everyone else thought it was significant.”
       On October 24, 2011, the People filed an amended information alleging a single
count of assault likely to produce great bodily injury. A great bodily injury enhancement
was alleged. Prior convictions also were alleged. Jurors found defendant committed the
assault but found the great bodily injury enhancement not true. Defendant admitted he
suffered a prior conviction. The court ordered defendant to serve a five-year sentence.
The sentence was ordered to run consecutive to defendant‟s sentence in another case.2
                                        DISCUSSION
       Because defendant did not enter a plea of once in jeopardy, he has technically
forfeited his argument that the second trial violated the double jeopardy clause. (People



2     On March 4, 2011, the trial court revoked defendant‟s probation in a case in which
defendant pled guilty to possession of a controlled substance.


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v. Scott (1997) 15 Cal.4th 1188, 1201.) However, we must consider the argument in
evaluating defendant‟s claim of ineffective assistance of counsel. (Ibid.)
       “„The Fifth Amendment to the United States Constitution provides that “[n]o
person shall . . . be subject for the same offense to be twice put in jeopardy of life or
limb. . . .” This guarantee is applicable to the states through the Fourteenth Amendment.
[Citation.] Similarly, article I, section 15, of the California Constitution provides:
“Persons may not twice be put in jeopardy for the same offense. . . .”‟ [Citation.]”
(Stanley v. Superior Court (2012) 206 Cal.App.4th 265, 278 (Stanley).) “„“The
constitutional prohibition against „double jeopardy‟ was designed to protect an individual
from being subjected to the hazards of trial and possible conviction more than once for an
alleged offense. . . .”‟ [Citation.]” (People v. Saunders (1993) 5 Cal.4th 580, 593.)
       “In some circumstances, double jeopardy bars a retrial even though no verdict has
been rendered. Once jeopardy has attached, discharge of the jury without a verdict is
tantamount to an acquittal and prevents a retrial, unless the defendant consented to the
discharge or legal necessity required it.” (Stone v. Superior Court (1982) 31 Cal.3d 503,
516 (Stone).) “If the prosecutor charges different offenses in separate counts and the jury
reaches a verdict as to some counts but not as to others, the jury „may render a verdict as
to the charge or charges upon which they do agree, and the charges on which they do not
agree may be tried again.‟ [Citations.] In that situation, the trial court is required to
receive a verdict as to those counts on which the jury has reached agreement; failure to do
so bars retrial on such counts.” (Id. at p. 517.)
       Applying these principles here, the court‟s discharge of the jury without a verdict
on the assault charge prevents a retrial, unless the defendant consented to the discharge or
legal necessity required the discharge. With respect to consent, the record shows nothing
more than mere silence, which standing alone is insufficient to infer consent. (Stanley,
supra, 206 Cal.App.4th at p. 280.) Immediately after learning the jury remained
deadlocked notwithstanding additional deliberations, the court stated that it “hereby
declares a mistrial in this matter,” set the case for retrial, and excused the jury. Neither
defense counsel nor defendant led the court to believe defendant consented.

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       With respect to legal necessity, none existed. Although a court may discharge “a
genuinely deadlocked jury,” here jurors twice stated they reached a verdict on the
substantive count. (Arizona v. Washington (1978) 434 U.S. 497, 509; see also People v.
Fields (1996) 13 Cal.4th 289, 300 [“Like its federal counterpart, the state rule permits
retrial following discharge of a jury that has been unable to agree on a verdict.”].) The
jury foreperson reported that the jury was at a standstill on the “special circumstance” –
meaning the great bodily injury enhancement – but “[w]e have a verdict,” which could
only be on the remaining assault charge.
       The court should have received the verdict on the assault charge and declared a
mistrial only as to the great bodily injury enhancement. The court erred in concluding
that it could not declare a mistrial as to the enhancement only. A retrial may be limited to
the deadlocked allegation. (People v. Anderson (2009) 47 Cal.4th 92, 102-104
(Anderson).) In a case similar to this one, the appellate court held that the great bodily
injury enhancement may be tried separately from the substantive offense. (People v.
Schulz (1992) 5 Cal.App.4th 563.) The court reasoned “there is no legal or practical
barrier to continued prosecution of an enhancement before a second jury . . . .” (Id. at p.
569.) That reasoning was favorably cited by our high court in Anderson. (Anderson,
supra, at p. 121.) Because the great bodily injury enhancement could have been tried in a
second trial, there was no legal necessity to declare a mistrial as to the assault.
       Respondent‟s principal argument is that jurors never reached a verdict because
they never orally pronounced their verdict. That argument is technically correct but is
irrelevant as it demonstrates no necessity for discharging the jury.3 Because jurors had




3       “Section 1163 provides that „[w]hen a verdict is rendered, and before it is
recorded, the jury may be polled, at the request of either party, in which case they must
be severally asked whether it is their verdict, and if any one answer in the negative, the
jury must be sent out for further deliberation.‟ And section 1164, subdivision (a)
provides that „[w]hen the verdict given is receivable by the court, the clerk shall record it
in full upon the minutes, and if requested by any party shall read it to the jury, and inquire
of them whether it is their verdict. If any juror disagrees, the fact shall be entered upon

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reached a verdict on the substantive offense of assault, the verdict should have been
received and recorded. (Carbajal, supra, 56 Cal.4th at p. 530.) The failure to receive the
verdict bars retrial under the double jeopardy clause. (Stone, supra, 31 Cal.3d at pp. 517,
519; see also Carbajal, at pp. 533-534.)
       Respondent‟s remaining arguments lack merit. Blueford v. Arkansas (2012) __
U.S. __ [132 S.Ct. 2044] is inapposite because it discusses double jeopardy principles in
the context of a juror report prior to the conclusion of jury deliberations whereas in this
case the jurors reported they had a verdict at the conclusion of jury deliberations.
Blueford‟s conclusion that it was possible for jurors “to revisit the offenses,” during the
continued deliberations is inapplicable here. (Id. at p. 2051.) Finally, respondent
incorrectly asserts that double jeopardy prevents retrial only if jurors intended to acquit a
defendant not if jurors intended to convict him. To the contrary, “„[t]he double jeopardy
bar protects against a second prosecution for the same offense following an acquittal or
conviction, and also protects against multiple punishment for the same offense.
[Citations.]‟ [Citation.]” (Anderson, supra, 47 Cal.4th at pp. 103-104, italics added.)
       In sum, defendant‟s claim of double jeopardy has merit. The great bodily injury
enhancement could have been retried separately from the assault, and the trial court was
required to receive a verdict as to the assault. The failure to do so bars retrial on the
assault. (Stone, supra, 31 Cal.3d at p. 517.) Defendant‟s counsel was ineffective for
failing to advise defendant to assert a plea of once in jeopardy, and defendant was
prejudiced because he was convicted of assault for which he previously was in jeopardy.
(See § 1016; In re Wilson (1992) 3 Cal.4th 945, 950.) There could be no tactical reason
for not raising a plea of jeopardy in the second trial.




the minutes and the jury again sent out; but if no disagreement is expressed, the verdict is
complete . . . .‟” (People v. Carbajal (2013) 56 Cal.4th 521, 530-531 (Carbajal).)


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                                   DISPOSITION
     The judgment of conviction for assault is reversed.




                                              FLIER, J.


We concur:


             RUBIN, Acting P. J.




             GRIMES, J.




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