People v. Mendoza

MOSK, J.

Idissent.

Penal Code section 1157 in pertinent part requires: “Whenever a defendant is convicted of a crime . . . which is distinguished into degrees, the jury, or the court if a jury trial is waived, must find the degree of the crime . . . of which he is guilty. Upon the failure of the jury or the court to so determine, the degree of the crime ... of which the defendant is guilty, shall be deemed to be of the lesser degree.”

We have consistently, until today, taken the Legislature at its word, strictly construing Penal Code section 1157 to require an express indication by the trier of fact of the degree of the offense. (People v. McDonald (1984) 37 Cal.3d 351, 382 [ 208 Cal.Rptr. 236 , 690 P.2d 709 , 46 A.L.R.4th 1011 ].) We have specifically rejected the argument, renewed herein, that when a jury is instructed solely on first degree murder, the failure of the jury to designate the degree does not trigger the default provision of the statute. Thus, in People v. McDonald , which I authored, we explained: “[T]he statute applies to reduce the degree even in situations in which the jury’s intent to convict *926 of the greater degree is demonstrated by its other actions .... [T]he key 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. . . . HD . . . [IQ ... No special exception is created for the situation presented by this case [in which the jury was instructed solely on first degree murder].’’ (Ibid.)

Contrary to the majority’s assertions, there is nothing “unjust”—let alone “absurd” (maj. opn., ante, at p. 911)—about this simple bright-line rule as applied to a case involving a charge of felony murder. The clear legislative aim of the statute and its predecessor, section 21 of the amended Act Concerning Crimes and Punishments, dating back more than a century, is to avoid uncertainty with regard to the jury’s actual verdict and to promote justice and administrative efficiency by requiring a verdict that is clear on its face. 1

Nor is the requirement under Penal Code section 1157 obscure or burdensome: “[The] rule is not arcane nor short on life. It is no Herculean task to require a jury finding on the degree of a murder.” (In re Birdwell (1996) 50 Cal.App.4th 926, 931 [ 58 Cal.Rptr.2d 244 ].) Moreover, as a safeguard against inadvertent failure to specify such a finding in the verdict, Penal Code section 1164 requires the trial court, before discharging the jury, to verify on the record that the jury has reached a verdict on all issues before it, including the degree of the crime charged.

The majority, in a desperate attempt to discredit the analysis in People v. McDonald, supra, 37 Cal.3d 351 , assert that we erroneously relied therein on an analysis of section 21—a “different statute with different language” (maj. opn., ante, at p. 915)—that was presumptively rejected by the Legislature in enacting Penal Code section 1157 in 1872 (maj. opn., ante, at p. 916). The argument is specious; it finds no support in the legislative history, which, as noted, evinces the intent of the Commission for Revision of the Laws to “preserv[e]” the “spirit and substance” of existing law. (Code commrs., *927 Preface, Ann. Pen. Code, supra, at p. vi.) Nor is there any support in the legislative history for the majority’s assertion that the Legislature, in amending Penal Code section 1157 in 1951, must have “believed and intended” that the statute would not apply in the case of felony murder. (Maj. opn., ante, at p. 911.)

As we observed in McDonald , “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.” (People v. McDonald, supra, 37 Cal.3d at p. 382 .) Instead, by its inaction, it has “effectively acquiesced” in this court’s interpretation of the statute. (People v. Bonillas (1989) 48 Cal.3d 757, 804 [ 257 Cal.Rptr. 895 , 771 P.2d 844 ] (cone, opn. of Arguelles, J.).) Indeed, entreated to do so by some members of this court (ibid.), the Legislature has considered—and rejected—proposed amendments to the statute that would have superseded our long-standing judicial construction of its requirements. (See Sen. Bill No. 2572 (1989-1990 Reg. Sess.) § 1; Assem. Bill No. 2402 (1997-1998 Reg. Sess.) § 1.) The majority are grasping at straws in speculating that it is “at least plausible” that the Legislature, after nearly 150 years of consistent decisions in point, was simply “ ‘looking to this Court to correct its error’ in McDonald.” (Maj. opn., ante, at p. 921, fn. 11.) Rather, it is more plausible to conclude that the Legislature’s retention of the long-standing requirement that the trier of fact designate degree, despite various amendments and proposed amendments to the statute, implies its continued endorsement of that provision. (See People v. Ledesma (1997) 16 Cal.4th 90, 100-101 [ 65 Cal.Rptr.2d 610 , 939 P.2d 1310 ] [failure to change statute raised the presumption of the Legislature’s acquiescence]; People v. Bouzas (1991) 53 Cal.3d 467, 475 [ 279 Cal.Rptr. 847 , 807 P.2d 1076 ]; cf. DeVita v. County of Napa (1995) 9 Cal.4th 763, 795 [ 38 Cal.Rptr.2d 699 , 889 P.2d 1019 ] [defeat of repeated attempts to amend statute provided additional corroboration of legislative intent].)

Apparently impatient with the continued failure of the Legislature in this regard, the majority undertake to limit the scope of the statute by judicial fiat. Overruling our settled construction of the statute, and contrary to its plain language, they now hold that the statute does not apply in this case because felony murder is not a crime “distinguished into degrees.” (Pen. Code, § 1157.) The predicate for such an exception is unsound. It is, of course, true that felony murder, like any other form of murder designated as a crime of the first degree, e.g., murder by poison, by lying in wait, by torture, or any willful, premeditated killing (Pen. Code, § 189), is not further divisible into degrees. But Penal Code section 1157 addresses generic crimes, e.g., murder, robbery, burglary, not specific forms of those offenses. Felony murder is not a separate or distinct offense; indeed, defendants in this *928 matter were charged with, and found guilty of, the crime of “murder” in violation of Penal Code section 187, subdivision (a)—not the crime of “felony murder.”

Abandoning the simple bright-line test of McDonald that required the verdict to specify on its face the degree of the crime, the majority substitute a new standard under which the failure of the jury to specify degree may be excused—or not—depending on the theory or theories argued by the prosecution. The majority’s approach is neither simple nor clear-cut; it will inevitably require examination on a case-by-case basis of the unique facts and circumstances to determine whether Penal Code section 1157 applies. The potential for costly and time-consuming litigation is obvious. Such a result does not, in my view, justify the majority’s exercise of what is more appropriately the legislative prerogative.

With regard to the verdicts herein, I agree with Justice Kennard, for the reasons cogently stated in her dissenting opinion, that the failure of the jury to determine the degree of murder of which it found Raul Antonio Valle guilty required that his conviction be deemed to be one of second degree murder. In my view, the same result is required in the case of Cruz Alberto Mendoza because, as in the case of Valle, although the jury found him guilty of the offense of murder, it failed to specify the degree of the crime in the verdict form; nor do the minutes record a verdict specifying the degree of the crime.

Thus, unlike Justices Kennard and Werdegar, I am not persuaded that the trial court’s polling of the jurors in the Mendoza case satisfied the requirements of Penal Code section 1157. After the verdict was rendered, finding Mendoza “guilty of the offense charged in Count I, a felony, to wit, murder in violation of Section 187(a) of the Penal Code of the State of California,” the jurors were polled as to whether “that was your vote on the charge of murder 187 first degree” and each answered in the affirmative. But they had not been instructed to—and had not—deliberated on or reached a verdict fixing the degree of murder; indeed, Mendoza’s request for an instruction requiring the jury to specify degree was rejected. Accordingly, the jurors did not endorse or assent to the verdict actually returned and recorded in the minutes. In effect, the trial court, in its polling of the jurors to determine unanimity of the verdict, merely imputed the additional finding to them; it did not purport to correct the verdict by such means or otherwise follow the appropriate procedures for doing so. (Cf. Pen. Code, §§ 1163, 1164; People v. Cain (1995) 10 Cal.4th 1, 53-56 [ 40 Cal.Rptr.2d 481 , 892 P.2d 1224 ]; People v. Schroeder (1979) 96 Cal.App.3d 730, 734-735 [ 158 Cal.Rptr. 220 ]; People v. Galuppo (1947) 81 Cal.App.2d 843, 850-851 [ 185 P.2d 335 ].)

*929 Penal Code section 1157, like the statute on .which it was modeled, “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. ftQ We have no right to disregard a positive requirement of the statute, as it is not our province to make the laws, but to expound them.” (People v. Campbell, supra, 40 Cal. at p. 138 [construing § 21 of the Act Concerning Crimes and Punishments].)

For these reasons, I would hold that the convictions of Cruz Alberto Mendoza and Raul Antonio Valle must be deemed second degree murder as a matter of law pursuant to Penal Code section 1157.

Accordingly, I dissent.

Section 21 of the Act Concerning Crimes and Punishments, as amended, provided: “[T]he jury before whom any person indicted for murder shall be tried, shall, if they find such person guilty thereof, designate by their verdict, whether it be murder of the first or second degree.” (Stats. 1856, ch. 139, § 2, p. 219.) In People v. Campbell (1870) 40 Cal. 129, 139 , we held the statute to require that “the jury should expressly state the degree of murder in the verdict so that nothing should be left to implication on that point.” Penal Code section 1157, first enacted in 1872, continued the same requirement, while broadening it to apply not only to murder, but to any crime divisible into degrees. Indeed, the preface to the 1872 Penal Code indicates the drafters’ intent to retain the substance of existing law: “While many sections of existing laws have been redrawn to correct verbal errors and to give them precision and clearness, their spirit and substance have, in all cases, been preserved.” (Code commrs., Preface, Ann. Pen. Code (1st ed. 1872, Haymond & Burch, commrs.-annotators) p. vi.)