Opinion
WOODS (Fred), J. We find that, as in People v. Bonillas (1989) 48 Cal.3d 757 [257 Cal.Rptr. 895, 111 P.2d 844], the initial incomplete jury verdict, degree of murder not having been expressly specified, was lawfully completed by a properly admonished and promptly reconvened jury which rendered a supplemental verdict of first degree murder. Therefore the petition for a peremptory writ of mandate is denied.
Factual and Procedural Background
Petitioner was charged with the murder of Ruby Reed (Pen. Code, § 187, subd. (a),1 aggravated by four special circumstance allegations (burglary, attempted robbery, rape, and sodomy), and with her rape (§261, subd. (2)), sodomy (§ 286, subd. (c)), robbery (§ 211), and residential burglary (§ 459). He was additionally charged with six other residential burglaries.
On February 22, 1989, after several weeks of trial, the jury returned guilty verdicts on all the charges and found the special circumstance allegations true. The verdict on the murder charge found petitioner “guilty of Murder, in violation of Penal Code section 187, subdivision (a), a felony, as alleged in count I of the Information.” The verdict did not specify degree.
The jury was polled, the verdicts recorded, and the jury was admonished and instructed to return two days later, on February 24, to commence the penalty phase.
The next day, February 23, during a conference with counsel and petitioner, the court expressed concern over the omission of degree on the guilty [548]of murder verdict. Citing section 1151,2 People v. Marks (1988) 45 Cal.3d 1335 [248 Cal.Rptr. 874, 756 P.2d 260], People v. McDonald (1984) 37 Cal.3d 351 [208 Cal.Rptr. 236, 690 P.2d 709, 46 A.L.R.4th 1011] and other authorities petitioner moved that the murder be declared second degree as a matter of law. The court denied the motion, indicating it would reinstruct the jury and submit to them modified verdict forms.
On February 24 the court reconvened and reinstructed the jury. They were provided revised verdict forms and asked to deliberate. Twenty-three minutes later they returned a guilty first degree murder verdict.
Petitioner filed with this court a petition for writ of mandate. We stayed his penalty trial and on April 3, 1989, issued a peremptory writ of mandate ordering the trial court to enter a judgment of conviction of second degree murder. Thereafter the California Supreme Court granted real party in interest’s (RPI) petition for review and on June 8, 1989, transferred the matter to this court with directions to vacate our April 3, 1989, opinion and reconsider the matter in light of People v. Bonillas, supra, 48 Cal.3d 757.
Pursuant to those directions, on June 21, 1989, we vacated our April 3, 1989, opinion.
Having had the benefit of the parties’ supplemental briefs and oral argument, we now reconsider the petition in the light of People v. Bonillas.
Discussion
Since the jury did expressly find the degree of the murder in its February 24 verdict, the question is, as it was in Bonillas, whether the February 24 verdict was lawful.
The answer turns on the principle enunciated in People v. Hendricks (1987) 43 Cal.3d 584 [238 Cal.Rptr. 66, 737 P.2d 1350] and quoted with approval in Bonillas: “ ‘ “. . . if a complete verdict has not been rendered (Powell, Ham), or if the verdict is otherwise irregular (Chong, Grider), jurisdiction to reconvene the jury depends on whether the jury has left the court’s control. If it has, there is no jurisdiction (Chong, Grider); if it hasn’t, the [549]jury may be reconvened (Powell, Ham).” ’ ” (People v. Bonillas, supra, at p. 771.) (Original italics.)
1. Was the February 22 verdict complete or incomplete?
The February 22 verdict, degree of murder not having been expressly specified, was incomplete or irregular.3 It was this identical defect, omission of degree, that caused Bonillas to characterize the Chong verdict as “irregular” (See fn. 3, ante) and the Hughes and Bonillas verdicts as “incomplete.” (See fn. 3, ante.)
Petitioner, however, argues that the February 22 verdict was complete since, unlike Bonillas, the instant jury was never instructed that it must return a verdict specifying the degree of the offense. Petitioner relies upon the following language in Bonillas: “Because the instructions required the jury to specify the degree of the murder and the verdict returned failed to do so, the verdict was incomplete under the law and the instructions.” (People v. Bonillas, supra, 48 Cal.3d at p. 769.)
Not only is this relied upon sentence from Bonillas not quite authority for petitioner’s assertion but in context is even less so. The full Bonillas paragraph reads: “In the first instance, the jury was instructed that if it found defendant guilty of murder it was required to find the degree of the murder. However, for some unknown reason it was not furnished a verdict form by which to specify the degree, and the guilty verdict it did return on January 27 specified only that defendant was guilty of murder ‘as charged in the information.’ Because the instructions required the jury to specify the degree of the murder and the verdict returned failed to do so, the verdict was incomplete under the law and the instructions.” (48 Cal.3d at p. 769.)4
Thus, according to Bonillas, the jury was instructed it was to “find” degree and “to specify the degree” but Bonillas does not state, contrary to petitioner’s assertion, that the jury was instructed to specify degree in its verdict. The footnoted language, referring to related instructions, also fails to state that the jury was instructed to specify degree in its verdict.
“The jury was instructed it should return a finding on the burglary-murder special circumstance only if it found defendant guilty of first degree [550]murder, and, of course, it did return a verdict of true as to the burglary-murder special circumstance.” (48 Cal.3d at p. 769, fn. 4.)
In the instant case, although the trial judge did not explicitly instruct the jury that if it found petitioner guilty of murder it should specify first degree in its verdict, it did instruct them as follows: “Second, you must apply the law that I state to you to the facts as you determine them. And in this way arrive at your verdict and any finding you are instructed to include in your verdict.” (Italics added.)
“If you find the defendant in this case guilty of murder in the first degree, you must then determine if one or more of the following special circumstances are true or not true: Burglary, robbery, rape and sodomy.” (Italics added.)
“Your finding as to each count must be stated in a separate verdict.” (Italics added.)
When linked, these instructions informed the jury that their determination defendant was guilty of first degree murder was a finding and that a finding must be stated in a (separate) verdict. Of course, as in Bonillas, the verdict form provided to the jury neither stated “first degree” nor provided any box to check or other cue enabling the jury to carry out the court’s instructions and satisfy the law’s requirements. (§ 1157.) (See fn. 2, ante.)
Thus, contrary to petitioner’s argument, the instant instructions are comparable to those of Bonillas.
But even if the instant instructions were not comparable to Bonillas the verdict would still have been incomplete or irregular. For although Bonillas notes that the verdict was “incomplete under . . . the instructions”, it is clear that such instructions are not a sine qua non to an incomplete verdict.
Bonillas states that “the verdict was incomplete under the law. and the instructions” (People v. Bonillas, supra, 48 Cal.3d at p. 769, italics added.) Thus, it is clear, there are two causes for the verdict being incomplete: the law and the instructions.
What Bonillas says regarding its trial court applies equally to the trial court in this case: “There is no question that, had the court noted the omission at once and required the jury to retire at that time to complete its verdict, the verdict fixing the degree of the murder would have been lawful.” (48 Cal.3d at p. 769.)
[551]The authority for such remedial action by a trial court, section 1161,5 does not depend upon the instructions to the jury, complete or incomplete, clear and specific or unclear and unspecific, but upon the verdict. “When there is a verdict of conviction, in which it appears to the Court that the jury have mistaken the law . . .” (§ 1161, italics added) the court is empowered to rectify the mistake.
As Bonillas went on to state, making clear that trial court authority to correct a defective verdict did not depend upon the court’s instructions, “[t]here are numerous decisions applying this principle to jury verdicts incomplete or inconsistent with the court’s instructions.” (48 Cal.3d at p. 769.) In its seven illustrations of this principle, Bonillas makes no distinction between inconsistent verdict cases and incomplete verdict cases. (Id. at pp. 769-770.)
Later in its opinion, again without dependence upon the court’s instructions, Bonillas remarked, “[i]n criminal as well as civil cases ‘[i]t is the duty of a Court to look after the form and substance of a verdict, so as to prevent a doubtful or insufficient finding from passing into the records of the Court; for that purpose the Court can, at any time while the jury are before it, and under its control, see that it is amended in form as to meet the requirements of the law.’ ” (48 Cal.3d at p. 772.) (Italics added by Bonillas.)
Moreover, in its discussion of Grider (People v. Grider (1966) 246 Cal.App.2d 149, [54 Cal.Rptr. 497]) and Chong, supra, 94 Cal. 379, both cited as examples of irregular, i.e. incomplete, verdict cases (48 Cal.3d at p. 771), there is no suggestion that the jury failed to heed the court’s instructions. (Id. at p. 772, fn. 6.)
Finally, there is the explication of People v. Hughes (1959) 171 Cal.App.2d 362 [340 P.2d 679]. In Hughes, according to Bonillas, the jury did precisely what the court instructed it to do. “[T]he jury returned a verdict form finding the defendant guilty of murder ‘as charged.’ This was the form the jury had been instructed to utilize if they found the defendant guilty of first degree murder.” (48 Cal.3d at p. 773.) Notwithstanding this fidelity to the court’s instructions, the verdict, which failed to specify the degree of murder, was incomplete and remained rectifiable until the moment the jury began to receive penalty phase evidence. (Id. at p. 774.) Bonillas characterizes the Hughes court’s statement that the verdict was “complete” when received and the jury “released” (although it was to return for the penalty phase) as “erroneous.” (Ibid.) Bonillas explained that “the notion that a verdict is ‘complete’ or ‘that the functions of a jury cease [552]with their assent to the recorded verdict, must be construed, of course, as applying to a final assent followed by a discharge’ ” (Ibid.) (Italics added by Bonillas.)
Thus, even if the instant jury followed the court’s instructions in returning their guilty of murder verdict (no degree specified), as the Hughes jury certainly followed the instructions of its trial judge, the verdict (as Bonillas says of the Hughes verdict) was incomplete.
2. Sufficiency of the court’s admonition.
As Bonillas indicates, the verdict being incomplete, “jurisdiction to reconvene the jury depends on whether the jury has left the court’s control.” (48 Cal.3d at p. 771.) One factor in assessing retention of court control is the court’s admonition to the jury. In Bonillas “the court, after receiving these verdicts, admonished the jurors not to discuss the case among themselves or with anyone, and to refrain from reading anything about the case in the newspapers.” (Bonillas, supra, 48 Cal.3d at p. 768.)
Petitioner claims that the admonition in the instant case was deficient because unlike Bonillas they were not “specifically instructed that they [were] still jurors in the case.” (48 Cal.3d at p. 773.)
The trial court admonished the jurors as follows: “The Court: Now you are under still the obligation not to discuss this case because some of the things that you have already heard will be things that may also be discussed at the penalty phase. ... So you’re admonished again not to discuss the case with each other or anybody else until now we go into the— we go into the penalty phase. All during that you are not to discuss the case even though you had discussed it before, but now we are in for an entirely different purpose. So don’t discuss anymore until again you are instructed and go back and deliberate on that aspect of it. Counsel wish me to instruct the jury to anything in particular more than I have done?
“Mr. Monaghan [the prosecutor]: No, your honor.
“Mr. MacBride [defense counsel]: No, your honor.
“The Court: All right. Then Friday morning at 9:15. Thank you. The day after tomorrow.”
It is unmistakable from the court’s admonition that the jurors were told and would have understood that “they were still jurors in the case.” Unlike a discharged jury, this jury, under the court’s admonition, was not free to [553]“[throw] off their characters as jurors” nor “free from any official obligation.” (People v. Bonillas, supra, 48 Cal.3d at p. 771.)
Petitioner’s claim is not well founded.6
Petitioner makes a related and more abstruse argument, viz., that the instant jury was told it had completed its job regarding the guilt phase in contrast to Bonillas “where it was made clear to the jury that its duties were not completed.” The distinction eludes us. Both juries, the instant one on February 22 and Bonillas on January 27, were made to understand that the guilt phase was over, a penalty phase would soon commence, and they were temporarily excused not discharged. Any syntactical discrepancy in communicating this identical information is without significance.
3. Reconvening the jury.
Petitioner draws the following distinction; “In Bonillas, the jury was specially reconvened for the purpose of ‘correcting’ the verdict” while “[i]n the case at bench, the jury was asked to ‘complete’ its guilt phase verdict at the commencement of the penalty phase.”
Whether or not the trial court retained jurisdiction to have the jury rectify its omission of degree from a guilty of murder verdict does not depend upon which word is used: “correct” or “complete.” The purpose was the same: to correct a deficient verdict by adding a specification of degree and thus to make it complete.
Similarly, any distinction between the reassembling of the Bonillas jury “even before penalty phase proceedings were scheduled to commence” (People v. Bonillas, supra, 48 Cal.3d at p. 776) and the reconvening of the instant jury on the day penalty phase proceedings were scheduled to commence, is without significance.
It was mere happenstance that the Bonillas trial court, after receiving the guilty verdict on January 27, failed to schedule a precise date for the commencement of the penalty phase. Having failed to schedule such a date, it then, on January 31, reassembled the jurors to correct and complete their [554]verdict. But the nature and substance of the January 31 Bonillas proceedings were identical to those at bench on February 24. What was critical was the absence of “tainting, by receipt of penalty phase evidence.” (48 Cal.3d at p. 776.)
4. Correction and completion of the verdict.
On February 24 the court instructed the jurors as follows: “The verdict forms originally given you concerning count 1 should have specified murder in the first degree instead of simply murder. ft[] Revised forms of verdicts as to count 1 will now be given [to] you specifying murder in the first degree, [fl] Please return to the jury room, deliberate, and render your verdict as to count 1 using the revised verdict forms.”
Petitioner contends that by so instructing the jury the court informed them “it must convict petitioner of first degree murder.” This, petitioner argues, constitutes a tainting “outside influence” prohibited by Bonillas.
Petitioner’s premise is mistaken and his argument amiss.
The trial court, rather than telling the jury they “must convict petitioner of first degree murder,” told the jury that the original verdict forms “should have specified murder in the first degree.” After informing them they would be provided revised forms of verdicts (obviously referring to a guilty of first degree murder verdict form and a not guilty of first degree murder verdict form) the court instructed them to “deliberate and render your verdict.”
Thus, the court merely iterated its original instructions providing a jury choice of guilty first degree murder or not guilty. This was the sole purpose of the jury reconvening, and the court’s instruction, under Bonillas, was neither a taint nor an outside influence.7
5. Retroactivity of Bonillas.
Finally petitioner urges, in an argument noteworthy for its imaginativeness, that Bonillas cannot be applied retroactively to this case. In other words, although the California Supreme Court directed this court to reconsider the instant case in the light of Bonillas we may not do so. We find [555]nothing in Bonillas suggesting such an anomalous result and decline to disregard the clear directions of the California Supreme Court.
Summary
Finally, the Bonillas summary aptly describes the instant case: “Where, as here, further proceedings are to take place, the jury has not been discharged, the jurors have been specifically instructed that they are still jurors in the case, they have been admonished not to discuss the case with anyone nor to permit anyone to discuss the case with them, and they have been directed not to read anything about the case, [see fn. 6, ante] the jurors have not thrown off their character as jurors nor entered the outside world freed of the admonitions and obligations shielding their thought processes from outside influences. Clearly, the jury here remained within the court’s control (see People v. Lee Yune Chong, supra, 94 Cal. 379, 384; People v. Thornton, supra, 155 Cal.App.3d 845, 856 [202 Cal.Rptr. 448]), their verdict was incomplete, and the court was authorized to reconvene the jury to complete its verdict.” (People v. Bonillas, supra, 48 Cal.3d at p. 773.)
Disposition
The petition for a peremptory writ of mandate is denied.
Lillie, P. J., concurred.
Unless otherwise noted, all statutory references are to the Penal Code.
The section provides: “Whenever a defendant is convicted of a crime or attempt to commit 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 or attempted crime of which he is guilty. Upon the failure of the jury or the court to so determine, the degree of the crime or attempted crime of which the defendant is guilty, shall be deemed to be of the lesser degree.”
Bonillas uses the terms “incomplete” and “irregular” inconsistently. E.g., the murder verdict in People v. Lee Yune Chong (1892) 94 Cal. 379 [29 P. 776] which failed to specify degree is characterized as “irregular” (People v. Bonillas, supra, at p. 771) but the murder verdicts in Bonillas, McDonald, and People v. Hughes (1959) 171 Cal.App.2d 362 [340 P.2d 679] which similarly failed to specify degree are characterized as “incomplete.” (People v. Bonillas, supra, 48 Cal.3d at pp. 769, 774, 775-776.)
Bonillas only paraphrases not quotes the trial court’s jury instructions.
It provides in pertinent part: “When there is a verdict of conviction, in which it appears to the Court that the jury have mistaken the law, the Court may explain the reason for that opinion and direct the jury to reconsider their verdict, and if, after the reconsideration, they return the same verdict, it must be entered;...”
Petitioner does not contend that the court’s admonition was deficient because it omitted instructing the jurors “to refrain from reading anything about the case in the newspapers.” (Bonillas, supra, 48 Cal.3d at p. 768.) This caution, although prudent, is not mandated by section 1122. Moreover the jury was outside the court’s presence for only one day, having been excused on February 22 to return February 24. By contrast the Bonillas jury was excused January 27 and not reconvened until January 31. Additionally, the trial court specifically asked counsel if they wished additional jury admonitions and defense counsel said no. We are satisfied the court’s admonition, under these circumstances, was sufficient.
“There are numerous decisions applying this principle to jury verdicts incomplete or inconsistent with the court’s instructions. (People v. Scott, supra, 53 Cal.2d 558, 561-562 [2 Cal.Rptr. 274, 348 P.2d 882] [where evidence showed and jury instructed only on first degree robbery or innocence, trial court properly refused to accept verdicts contrary to law and instructions of second degree robbery, and ordered jury to resume further deliberations (citing § 1161)].” (People v. Bonillas, supra, 48 Cal.3d at p. 769.)