# People v. Mendoza > California Supreme Court · July 31, 2000 · 98 Cal. Rptr. 2d 431 URL: https://www.frixlaw.com/law-library/cases/9788458 ## Case - **Full name:** The PEOPLE, Plaintiff and Respondent, v. CRUZ ALBERTO MENDOZA Et Al., Defendants and Appellants - **Court:** California Supreme Court - **Decided:** July 31, 2000 - **Citations:** 98 Cal. Rptr. 2d 431; 23 Cal. 4th 896; 2000 Daily Journal DAR 8387; 4 P.3d 265; 2000 Cal. Daily Op. Serv. 6329; 2000 Cal. LEXIS 5821 - **Precedential status:** Published - **Opinion:** Dissent by Werdegar - **Judges:** Chin, Mosk, Kennard, Werdegar - **Cited by:** 259 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9788458 ## Opinion text WERDEGAR, J. I dissent, albeit reluctantly. The majority opinion amply illustrates the illogic of a strict application of Penal Code 1 section 1157 to the facts of this case. The People proceeded solely on a first degree felony-murder theory when prosecuting defendants; the jury was instructed solely on first degree murder; and, on the facts of this case, the only reasonable verdict for the homicide-related counts was murder in the first degree or *939 acquittal. A judgment of murder in the second degree has no factual predicate and, as the majority explains (maj. opn., ante, at p. 909), had the jury returned a second degree verdict, the trial court could have refused to accept it, reinstructed the jury, and directed it to reconsider its verdict. (See § 1161.) Accordingly, reducing defendant Raul Antonio Valle’s 2 conviction to murder in the second degree is artificial, fails to reflect his true culpability, and is not a just result for this murderer. Nevertheless, the issue raised in this case transcends our concern that Valle’s conviction reflect his true culpability. The history of section 1157, including the recent amendments to both sections 1157 and 1164, subdivision (b), demonstrates persuasively that the Legislature has acquiesced to the fairly rigid interpretation this court has given to section 1157. As explained in Justice Kennard’s dissenting opinion, that interpretation, which would require lowering the degree of the murder for defendant Valle, is one of almost ancient lineage. Section 1157 represents a legislative response to the situation where a jury, in convicting a defendant of an offense divided into degrees, fails to specify the degree of the offense. As the majority explains (maj. opn., ante, at p. 911), before the Legislature in 1949 amended section 1157 to provide that in such circumstances the degree of the crime shall be deemed the lesser degree, the judicially declared rule was that a jury’s failure to determine degree entitled the defendant to a new trial. Section 1157, therefore, represents the Legislature’s considered decision, in fashioning a just remedy for the error, to reject retrial as a remedy. In so doing, the Legislature balanced a variety of factors. These include, on the one hand, the financial cost of retrial, the emotional cost to the victims and other witnesses who must again testify at the retrial, and the possibility the defendant could be acquitted on retrial. Balanced against these costs, on the other hand, are a defendant’s constitutional right to have a jury decide all the elements of the charged crime, the infrequency of the error, the ability of the prosecutor to call attention to an omission before the jury is discharged, the statutory duty of the trial court to ensure—and verify on the record—that the jury has reached a verdict on the degree of the crime (§ 1164, subd. (b)), and fairness to the defendant, who would have to run the gauntlet a second time. The Legislature’s solution was to eschew retrial, but to reduce the offense to the lesser degree as a matter of law. That the Legislature’s resolution of this problem is not necessarily the one I would have chosen is of no consequence; it is the one the Legislature did *940 choose and has adhered to. Nor is it, as the majority proclaims, an “absurd” policy choice (maj. opn., ante, at pp. 911-912). To balance the complex policy concerns involved in cases in which the jury fails to specify the degree of a crime, and conclude a clear bright-line rule should govern, is not absurd even in those few cases in which a guilty defendant might obtain an unjust benefit. In any event, it appears the Legislature has acquiesced to this court’s long-standing interpretation of section 1157, and we are not at liberty to disregard its views. Judicial restraint and respect for the Legislature’s work compel that we adhere to our previous interpretations absent some indication the Legislature intends some different meaning. “ ‘[A]s this court has often recognized, the judicial role in a democratic society is fundamentally to interpret laws, not to write them. The latter power belongs primarily to the people and the political branches of government . . . .’ (Kopp v. Fair Pol. Practices Com. (1995) 11 Cal.4th 607, 675 [ 47 Cal.Rptr.2d 108 , 905 P.2d 1248 ] (cone. opn. of Werdegar, J.).) It cannot be too often repeated that due respect for the political branches of our government requires us to interpret the laws in accordance with the expressed intention of the Legislature. ‘This court has no power to rewrite the statute so as to make it conform to a presumed intention which is not expressed.’ ” (California Teachers Assn. v. Governing Bd. of Rialto Unified School Dist. (1997) 14 Cal.4th 627, 633 [ 59 Cal.Rptr.2d 671 , 927 P.2d 1175 ], quoting Seaboard Acceptance Corp. v. Shay (1931) 214 Cal. 361, 365 [ 5 P.2d 882 ].) Members of this court and of the lower appellate courts have urged the Legislature to look at section 1157 anew (see People v. Bonillas (1989) 48 Cal.3d 757, 803, fn. 3 [ 257 Cal.Rptr. 895 , 771 P.2d 844 ] (cone. opn. of Arguelles, J.), and cases cited), explaining in strong language the anomalous results that can occur from a strict application of the statute (see, e.g., People v. Thomas (1978) 84 Cal.App.3d 281, 285 [ 148 Cal.Rptr. 532 ] (cone. opn. of Ashby, J.) [strict application of § 1157 requires appellate court “to exalt form over substance”]). The Legislature, in 1990, responded by amending section 1164 to require that trial courts, before discharging the jury, ensure that the jury rendered a verdict on the degree of the crime. (Stats. 1990, ch. 800, § 1, p. 3548; see People v. Superior Court (Marks) (1991) 1 Cal.4th 56, 73, fn. 15 [ 2 Cal.Rptr.2d 389 , 820 P.2d 613 ] [urging “strict compliance [with § 1164] to forestall procedural quagmires”].) This amendment to section 1164 was the Legislature’s way of addressing the problem; we should honor the legislative choice. Although the majority’s reinterpretation of section 1157 admittedly would impose on defendant Valle a sentence commensurate with his culpability, I *941 find I cannot endorse the majority’s reasoning without intruding on the role of the Legislature. Accordingly, until that body amends section 1157 to change the statute’s meaning from the bright-line rule it now provides to one permitting an examination of the individual facts of each case, I would reluctantly adhere to our previous interpretation of that statute (People v. McDonald (1984) 37 Cal.3d 351 [ 208 Cal.Rptr. 236 , 690 P.2d 709 , 46 A.L.R.4th 1011 ]; People v. Beamon (1973) 8 Cal.3d 625, 629, fn. 2 [ 105 Cal.Rptr. 681 , 504 P.2d 905 ]) and therefore dissent. Appellants’ petition for a rehearing was denied September 13, 2000. Mosk, J., Kennard, J., and Werdegar were of the opinion that the petition should be granted. All statutory references are to this code. I agree with Justice Kennard that the polling of the jury provides sufficient justification to conclude the degree of defendant Valle’s murder conviction must be lowered, but that of his codefendant Cruz Alberto Mendoza need not be. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9788458. Public record. Not legal advice.