Gray

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…

I respectfully dissent. This case is before us for reconsideration in light of the recent Supreme Court decision in People v. Bonillas (1989) 48 Cal.3d 757 [ 257 Cal.Rptr. 895 , 771 P.2d 844 ], Properly considered, I do not interpret that decision to control under these facts. The crucial difference is that here, the jury was not properly instructed that if it found the defendant guilty of murder it must also specify degree. Hence, the verdict was not “incomplete under the . . . instructions.” (Id. at p. 769.) Since the February 22 verdict was complete, I would find the defendant guilty of second degree murder as a matter of law under the settled and prevailing interpretation of section 1157 of the Penal Code. (Bonillas, supra, 48 Cal.3d at p. 804 (cone. opn. of Arguelles, J.).)

An examination of pertinent recent decisions in this area is illuminating. In People v. Marks (1988) 45 Cal.3d 1335 [ 248 Cal.Rptr. 874 , 756 P.2d *556 260 ], the defendant was charged with murder and with two special circumstances: lying in wait and intentional murder for financial gain. The trial court failed to conduct a competency hearing after specifically questioning the defendant’s competency.…

Ira Reiner, District Attorney, Donald J. Kaplan and Maurice H. Oppenheim, Deputy District Attorneys, for Real Party in Interest.

OPINION

WOODS (Fred), J.

We find that, as in People v. Bonillas (1989) 48 Cal.3d 757 [ 257 Cal. Rptr. 895 , 771 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.

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,…