[687]Opinion
MOSK, J. We are confronted here with a factual situation worthy of Abbott and Costello but which, regrettably, has untoward legal consequences. The jury found defendant guilty of burglary in the second degree on count one but not guilty on count two, an identical charge relating to a separate burglary, and judgment was entered accordingly. Nearly two months later, six of the jurors stated in affidavits that the jury unanimously intended to convict on count two and acquit on count one. The trial court denied defendant’s motion for a new trial on count one, and he appealed. “After giving this matter much consideration, we have come to the conclusion that we should do nothing.” (People v. Williams (1968) 264 Cal.App.2d 885, 889 [70 Cal.Rptr. 882].)
Facts
Defendant was charged with two counts of burglary. (Pen. Code, § 459.) The consolidated information charged defendant in count one with the daytime burglary of a residence in Escalón (the Brumley burglary). Lealon “Dusty” Brumley, who lived at the residence, testified at trial and identified defendant as the man he saw fleeing when he returned to his home on the morning of February 13, 1979. Defendant introduced the testimony of an alibi witness and presented evidence tending to show that the burglary was committed by someone else.1 He also pointed out inconsistencies between Brumley’s earlier reports and his trial testimony.
Count two of the information charged defendant with the February 25, 1979, burglary of a business located in Stockton (the Autohaus burglary). Stockton police units were dispatched to the location of the foreign car repair shop at 10:12 p.m. after a silent alarm was activated. They arrived at approximately 10:15 p.m. and discovered that the door to the shop had been pried open. Finding defendant inside the building, they arrested him. His story was that he was on his way to a nearby store when he noticed the pried-open door and was inside investigating when police arrived.
[688]Jury trial began on May 22, 1979. The jury retired after lunch on May 31, and returned with its verdict in less than two hours. The first verdict form read: “We, ¡the Jury in the above entitled cause, find the defendant, Larry RomeRo guilty of a violation of Section 459 of the Penal Code of the State of California, to-wit: Burglary, a felony, as charged and set forth in Count One of the Amended Information on file herein; and further we fix the degree, thereof, as Burglary in the Second Degree.” This verdict form was signed and dated by the foreman, who erroneously wrote “Acount # 2 [j/c]” at the bottom of the form.
The second form read: “We, the Jury in the above entitled cause, find the defendant, Larry Rómero not guilty of a violation of Section 459 of the Penal Code, of the State of California, to-wit: Burglary, a felony, as charged and set forth in Count Two of the Amended Information on file herein.” This form was also dated and signed by the foreman, but he erroneously wrote “Count 1” at the bottom.2
The clerk read the count one verdict. The court noticed the erroneous “Acount 2” notation at the bottom of the count one form and questioned the foreman, who replied, “I had a Count 1 and a Count 2. I separated them.” The court asked: “Just for your own memoranda?” The foreman answered “yes.” The court did not pursue the matter further, but directed the clerk to record the guilty verdict on count one and read the verdict on couqt two. The jury was polled as to each count, and the verdicts were Confirmed by each juror. The jury was then dismissed.
Nearly two months later defendant moved for a new trial, submitting affidavits from the foreman and five other jurors which stated that no juror raised a hand for a guilty verdict on the Brumley burglary and that all jurors raised their hands for a not guilty verdict on that charge.3 The court denied the mption and sentenced defendant on the burglary charge to two years in state prison, the median term, plus a one-year enhancement for a prior felony conviction. This appeal followed.
[689] Discussion
We start with the obvious premise that under the double jeopardy clause of the United States Constitution (U.S. Const., 5th Amend.), defendant cannot be retried on the charge of which he was acquitted, count two. “The fundamental nature of this rule [barring retrial after acquittal] is manifested by its explicit extension to situations where an acquittal is ‘based upon an egregiously erroneous foundation.’” (Sanabria v. United States (1978) 437 U.S. 54, 64 [57 L.Ed.2d 43, 54, 98 S.Ct. 2170].) We are thus left with a number of alternatives, none of which, we candidly concede, is perfect.
Defendant urges that we admit the jurors’ affidavits to prove that the verdict on count one was not the verdict the jury agreed upon, and then remedy the problem by granting a new trial on that count. This procedure, however, would result in retrial of a count on which the evidence was manifestly unconvincing, and thus give defendant, in all probability, an undeserved double acquittal.4
Another suggested alternative is that we admit the jurors’ affidavits and allow the trial court to correct a “clerical error” by transposing the two verdicts. Although this alternative has attractive aspects, we believe, for reasons to be discussed, that it poses an unacceptable risk of interference with duly rendered jury verdicts under the guise of correcting such “clerical errors.”
We conclude, rather, that the soundest course is to exclude the affidavits, involving as they do essentially subjective reasoning on the part of the jurors. This solution has the virtues of both simplicity and finality: it promotes a “bright line” standard and, on the facts of this case, it results in conviction on one charge of burglary, a result the jury manifestly intended to reach.
I. The “Subjective-objective" Dichotomy
At common law jurors could not impeach their verdicts. (People v. Hutchinson (1969) 71 Cal.2d 342, 346-347 [78 Cal.Rptr. 196, 455 P.2d [690132]].) “‘The problem involves the balancing of two conflicting policies. It is, of course, necessary! to prevent instability of verdicts, fraud, and harassment of jurors, and, on the other hand, it is desirable to give the losing party relief from wrongful conduct by the jury.’” (Id. at p. 348, quoting from Kollert v. Cundiff (1958) 50 Cal.2d 768, 773-774 [329 P.2d 897].) In Hutchinson, we found that the distinction drawn in the Evidence Code5 “between proof of overt acts, objectively ascertainable, and proof of the subjective reasoning processes of the individual juror, which can be neither corroborated nor disproved .. . has been the basic limitation on proof set by the leading decisions, allowing jurors to impeach their verdicts.” (71 Cal.2d at p. 349.) This dichotomy and the limitation of impeachment evidence to “proof of overt conduct, conditions, events, and statements, as suggested by the commentators, vitiates the major policy arguments supporting the common law rule.” (Id. at pp. 349-350.) We concluded, “The only improper influences that may be proved under section 1150 to impeach a verdict, therefore, are those open to sight, hearing, and the other senses and thus subject to corroboration.” (Id. at p. 350.) We felt confident that admission of jurors’ affidavits within the limits set by section 1150 “will not result in the widespread upsetting of verdicts.” (Ibid.)
There is some difference, however, between Hutchinson and the situation we face here. Hutchinson dealt with “improper influences” on the jury or misconduct that might have affected deliberations, such as intervention by the bailiff in jury proceedings. In the case at bar, by contrast, an asserted clerical error in transcribing the verdict was involved.
II. “Clerical Error”
We first discuss cases in which it appeared that clerical errors of some sort occurred in the rendition of the verdict, mindful that the line of demarcation between such clerical errors and what are termed “deliberative” errors is sometimes unclear.
[691]In People v. Grider (1966) 246 Cal.App.2d 149 [54 Cal.Rptr. 497], the jury was given three forms of verdict: guilty of robbery in the first degree, guilty of robbery in the second degree, and not guilty. After the jury had deliberated for a little over an hour, the foreman informed the court that a verdict had been reached. The clerk read the verdict, which found the defendant guilty of robbery in the second degree. It had been signed by the foreman. After the reading of the verdict the jurors were asked if it was their verdict and they replied “yes.” There was no request for a poll, the judge ordered the clerk to enter the verdict in the minutes, and after thanking the jurors for their services he discharged the jury and adjourned the court. (Id. at p. 150.)
The verdict was entered in the minutes of the court by the clerk at 3:30 p.m. At 3:39 p.m. the judge reconvened the court with all members of the jury present, saying he had been ‘“informed that there may have been a mistake on the verdict signed.’” (Ibid.) There had been: it turned out that as the jury was dispersing into an adjoining foyer after it had been discharged, the prosecutor asked one of the jurors, “How did you ever find second degree in this case?” The juror replied, “We didn’t. We found first degree.” Upon hearing this, the prosecutor told the bailiff to stop the jury and have it reconvene. As the bailiff circulated among the jurors in the hallway, he heard a juror remark, “That wasn’t our verdict. The Foreman just signed the wrong verdict.” (Id. at p. 151.)
The clerk reread the verdict finding the defendant guilty of second degree robbery, and the judge ordered a poll of the jury on the question ‘“[I]s this individually the verdict you voted for, that is, robbery in the second degree . . . ?’” Each juror answered “no.” Upon questioning by the trial judge, the foreman stated that he had made a mistake in reading and signing the first verdict. (Id. at pp. 150-151.) The judge then directed the jury to continue its deliberations and the jury was left in the courtroom for this purpose. At 3:50 p.m. the jury returned a second verdict of robbery in the first degree. The jurors were polled as to whether they had individually voted for this second verdict, and each answered “yes.” The judge then ordered another poll, and asked each juror whether this second verdict was the one he or she voted for originally. Again each juror answered in the affirmative. The foreman also stated that the signing of the first verdict was a clerical error. The judge entered the new verdict conditionally, and later ruled that the second verdict was a correction of a clerical error made by the foreman [692]and ordered the first verdict set aside, but only on condition that the first degree robbery conviction was upheld on appeal. (Id. at p. 151.)
The Court of Appeal reversed, reasoning that ‘““With the assent of the jury to the verdict as recorded, their functions with respect to the case cease, and the trial is closed”; and “after the verdict is received and the jury discharged, . . . the control of the jury and the court over such verdict is at an end. The court cannot alter it, nor can the jury be called to alter or amend it. As well might any other twelve men be called to alter it as the men who were jurors. The office of a juror is discharged upon the acceptance of his verdict by the court.’”” (Id. at pp. 152-153, quoting from People v. Lee Yune Chong (1892) 94 Cal. 379, 385 [29 P. 776].)
The facts of Grider are virtually identical to those of the present case; if anything, Grider was a! more compelling case for correcting “clerical error” than this. In Grider the “error” resulted in an undeserved windfall for the defendant, a verdict different from that which was intended. Here, defendant stands convicted of one count of second degree burglary, which is the very result the jury meant to reach. Moreover, in Grider the miscue was paught and rectified in a matter of minutes; here, the error, if any there was, was not brought to the court’s attention for almost two months. It goes without saying that in two months memories may fail, and in the interim, ex parte contact with former jurors by dissatisfied litigants may encourage jurors to falsify or invent facts.6 Finally, in Grider, every available safeguard to ensure that the first verdict was in fact error was taken: each juror stated that he or she had voted for the second verdict, and each also assured the judge that the second verdict was the one he or she had voted for originally. Here, on the other hand, we have only six affidavits submitted two months later stating that the jurprs voted in the jury room to acquit on the Brumley burglary. This is an unconvincing demonstration of “clerical error.”
Similarly, in People v. Williams (1968) supra, 264 Cal.App.2d 885, 889, “It became apparent that, as one juror put it, the jury ‘had it back[693]wards.’ They thought Sands was the victim named in count VI.” Apparently, the jury meant to convict the actual count VI, but was deadlocked on the actual count V; it returned a mistaken “guilty” verdict on count V, however, and reported a deadlock on count VI. The two counts charged similar offenses. Writing for the court, Presiding Justice Kaus adopted an eminently sensible solution: “After giving this matter much consideration, we have come to the conclusion that we should do nothing. Whether that would be the proper course in similar, but not identical, situations is beside the point. Unquestionably there was sufficient evidence on count V (Sands). If we reversed, we would set aside a verdict on the unsworn statements of the foreman and a few fellow jurors. This would violate the principle against impeachment of verdicts by the jury. [Citation.] The values protected by this principle have been thought to be sufficiently high even in situations where an injustice may well have resulted from its application. Certainly we should not ignore it where no possible prejudice results.” (Ibid.)
The same disposition is appropriate here. We are disinclined to set a verdict aside on belated statements of the foreman and a few fellow jurors. The policy against impeachment of jury verdicts is too important to be disregarded “where no possible prejudice results.” Nor do we think the Hutchinson holding, which was subsequent to Grider and Williams, compels a different result: as pointed out above, Hutchinson dealt with misconduct and improper influences upon the jury, not with verdicts that may have been mixed up because of clerical error.
A strict rule against belated impeachment in cases of alleged clerical error, moreover, comports with settled law in California. After the verdict is received and the jury discharged, the court cannot alter or “correct” the verdict. (People v. Lee Yune Chong, supra, 94 Cal. 379, 385; Witkin, Cal. Criminal Procedure (1963) § 532, p. 545.) Moreover, the power to reconsider a verdict is subject to the limitation that a defective verdict of acquittal cannot be reconsidered. (Pen. Code, § 1161; Witkin, Cal. Criminal Procedure (1963) § 533, p. 546.) In addition, Penal Code section 1164 embodies the no-correction rule: “When the verdict given is such as the court may receive, the clerk, or if there is no clerk, the judge or justice, must record it in full upon the minutes, and if requested by any party must read it to the jury, and inquire of them whether it is their verdict. If any juror disagrees, the fact must be entered upon the minutes and the jury sent out; but if no disagreement is expressed, the verdict is complete, and the jury must be discharged from the case.” As the court observed in Grider (246 Cal.App.2d at [694]p. 152), “The words of the statute are clear and unequivocal.” Once the jury was polled in the present case, and each member thereof orally assented to the verdict and the jury was discharged, the trial of the defendant was complete ánd the court had no jurisdiction to recall the jury for further proceedings. (Id. at p. 154.) Any such proceedings would have been nullities; the court would have lacked jurisdiction to acquit on the charge of which defendant was convicted. (Ibid.)7 (Cf. People v. Powell (1950) 99 Cal.App.2d 178, 181 [221 P.2d 117] [error discovered before jury left box; proper to rectify it].)
III. “Deliberative Error”
In cases of a “deliberative error” which appears to produce a mistaken or erroneous verdict, the result has almost invariably been to bar impeachment of the verdict. Two recent cases dramatically illustrate this principle.
In People v. Peavey (1981) 126 Cal.App.3d 44 [178 Cal.Rptr. 520], defendant was found guilty of second degree murder. The clerk read the verdict and asked the jurors collectively if the verdict was theirs. They responded affirmatively. The jury was polled; as the clerk called the jurors by name, each indicated that the verdict was his or hers. The name of juror number nine, Mrs. DuGais, was read twice, and she responded “yes” on both occasions. (Id. at p. 46.) The jury was ordered discharged. Immediately thereafter, and before any of the jurors had left the jury box, juror nine blurted out, “Can I change? I’m sorry. I gotta go not guilty. I know it messes up everything, but in my mind I just can’t. I knew I was going to do that, but I’m sorry, I just can’t.” (Id. at p. 47.) On appeal, the court rejected the attempt to impeach the verdict, relying on People v. Lee Yune Chong, supra, 94 Cal. 379, 385, and People v. Grider, supra, 246 Cal.App.2d 149. The Peavey court correctly reasoned, “In the case at bar, the verdict given was certainly ‘such as the court may receive’ urider the terms of Penal Code section 1164. It [695]was complete in every way, and signified appellant’s guilt....” (126 Cal.App.3d at p. 49.)
Similarly, in People v. Hall (1980) 108 Cal.App.3d 373 [166 Cal. Rptr. 578], three jurors signed declarations stating that they meant to convict defendant of simple assault, a misdemeanor, instead of assault by force, a felony. The court held that it had been proper to exclude the declarations. It rejected “appellant’s theory that a mistake on the part of jurors constitutes misconduct which can be evidenced by the affidavits of the jurors themselves.” (Id. at p. 379.) (Italics in original.) “The courts have been firm, however, in precluding affidavits which do no more than characterize the affiant’s own state of mind [citation] or the state of mind of other members of the jury [citations].” (Id. at p. 380.) (See also People v. Elkins (1981) 123 Cal.App.3d 632 [176 Cal.Rptr. 729] [no error in refusing to admit declarations; their subject matter, an alleged misstatement of law by one juror, involved subjective mental processes].)8
The purported error alleged here involved the subjective mental processes of the jurors, and thus the affidavits did not compel a new trial under Hutchinson. Although the affidavits asserted that the jurors “raised their hands” for a not guilty verdict, what essentially happened was that the jurors apparently thought they were convicting defendant on one count when they were polled, but they were really convicting him on another. Such “thoughts” do not rise to the level of “improper influences .. . open to sight, hearing, and the other senses and thus subject to corroboration.” (Hutchinson, supra, 71 Cal.2d at p. 350.) To grant a new trial in these circumstances would permit enterprising but dissatisfied litigants to cull the jurors’ deliberations for “clerical” errors, then artfully draft affidavits aimed at exploiting their mistaken beliefs. The stability of verdicts stressed in Hutchinson is too important to be so easily tampered with.
[696]IV. No Miscarriage of Justice Resulted
Even if, arguendo, we 1 were to agree that a technical error appears here, this would be the páradigm case for invocation of article VI, section 13, of the California Constitution: no judgment should be set aside or new trial granted for an error in procedure unless, from the whole record, the court can say there has been a miscarriage of justice. This defendant was charged with two counts of burglary; he was convicted of one count of burglary, and the evidence is overwhelming that he was guilty of at least one count of burglary. Any claim that the collateral consequences of conviction on one count differ from the consequences of conviction on the other is, on this record, purely speculative.9 There was no miscarriage of justice.
V. Other Assignments of Error
Defendant raises numerous other assignments of error pertaining to the Brumley burglary. Since the Court of Appeal did not reach these issues, having reversed the trial court on other grounds, we will allow that court to consider these issues in the first instance, and therefore re-transfer the cause to the Court of Appeal for determination of these issues. (See Andrews v. Agricultural Labor Relations Bd. (1981) 28 Cal.3d 781, 796 [171 Cal.Rptr. 590, 623 P.2d 151]; Arnel Development Co. v. City of Costa Mesa (1980) 28 Cal.3d 511, 525 [169 Cal.Rptr. 904, 620 P.2d 565].)
Richardson, J., Newman, J., Scott, J.,* and Poché, J.,* concurred.
The defense sought to implicate a Robert Martinez, but Martinez invoked the privilege against self-incrimination and was not questioned about his involvement in the offense in the presence of the jury. The defense offered to show that Martinez told fellow jail inmates that he had committed the offense, but the court found these witnesses “untrustworthy” and refused to allow their testimony.
The record also contains a handwritten note to the jury by the judge, saying, “Count One is the Brumley burglary at Escalón; Count Two is the Autohaus burglary at Stockton.” This reminder apparently had no salutary effect on the foreman’s ability to use the correct form.
The affidavits were apparently prepared and typed by the defense; except for that of the foreman, all are identically worded. The foreman’s affidavit states, “I recorded a ‘not guilty’ verdict for the Brdmley burglary on one of the verdict forms by signing my name.” Unfortunately that is hot true; if the foreman had done so, the case would not be here.
A1I concerned appear to agree that the evidence was stronger on the Autohaus burglary — defendant was apprehended inside a locked commercial building after 10 p.m. — than on the Brumley burglary. The prosecutor reportedly admitted that the not guilty verdict on the Autohaus burglary “put a question on his mind, since he felt that was the evidentially stronger of the two. And the guilty verdict on the Brumley case, on the weaker of the two, sort of confused him.”
Evidence Code section 1150 reads: “(a) Upon an inquiry as to the validity of a verdict, any otherwise admissible evidence may be received as to statements made, or conduct, conditions, or events occurring, either within or without the jury room, of such a character as is likely to have influenced the verdict improperly. No evidence is admissible to show the effect of such statement, conduct, condition or event upon a juror either in influencing him to assent to or dissent from the verdict or concerning the mental processes by which it was determined.
“(b) Nothing in this code affects the law relating to the competence of a juror to give evidence to impeach or support a verdict.”
It cannot be gainsaid, however, that the mistake should have been caught much earlier. First, the inclusion of simple distinguishing references on the verdict forms — e.g., identifying one count as the “Brumley burglary” and the other as the “Autohaus burglary” — might have prevented the problem. Second, the trial judge apparently noticed the foreman’s erroneous notations at the bottom of each form; but he then accepted the foreman’s incorrect explanation, failing to pursue the simple inquiry that would have revealed the confusion. ¡
Penal Code section 1181, subdivision 4, cited by defendant, does not mandate a different result. It provides that a court may grant a new trial when the verdict has been decided “by any means other than a fair expression of opinion on the part of all the jurors.” Here, the jurors were polled and all agreed to the verdict. Defendant argues that a “miscarriage of justice has occurred due to the mistake in this case” justifying a new trial under the cited subdivisiori, although he admits that most decisions discussing section 1181, subdivision 4, involve instances of jury misconduct. In fact, defendant does not cite any case of “mistake” in which this subdivision was invoked; and, since no miscarriage of justice resulted — the jury clearly found defendant guilty of one charge — there is no reason to overturn the judge’s denial of the motion here.
defendant’s reliance on Krouse v. Graham (1977) 19 Cal.3d 59, 79-82 [137 Cal.Rptr. 863, 562 P.2d 1022], is misplaced. There the defendant offered declarations of four jurors to the effect that the verdict had been inflated to take into account the amount plaintiff would probably have to pay in attorney’s fees. This court found the declarations in question “inconclusive,” saying that they “could be construed as conduct reflecting only the mental processes of the declarant jurors, for they assert that certain unnamed jurors ‘commented’ on the subject of attorneys’ fees, and that the jurors ‘considered’ the matter in determining the ‘final compromise award.’” We directed the trial court to reconsider the motion for new trial, admitting the declarations and “weighing them in conjunction with all other relevant matters.” Such a course of action is unnecessary here, since it appears the trial judge has already weighed the affidavits in considering and rejecting defendant’s motion for new trial.
In this connection, we observe that there is no evidence defendant’s sentence was affected by the alleged mistake. ¡
Assigned by the Chairperson of the Judicial Council.