Bordeaux

This case presents the issue of whether, in a murder case where the jury during deliberations is deadlocked on the greater offense of first degree murder, it is error for the trial court to withdraw the charge of first degree murder and thereby permit the jury to consider and return a verdict of second degree murder. We conclude that such action by the trial court is not error.

Defendant Marion Bordeaux (Bordeaux) appeals from her conviction of second degree murder on grounds that the withdrawal of the first degree murder charge during deliberations with instructions to the jury to deliberate on the charge of second degree (1) violated the rules of Stone v. Superior Court (1982) 31 Cal.3d 503 [ 183 Cal.Rptr. 647 , 646 P.2d 809 ] and People v. Kurtzman (1988) 46 Cal.3d 322 [ 250 Cal.Rptr. 244 , 758 P.2d 572 ], and (2) coerced the jury into returning a guilty verdict of second degree murder; and on the further ground that (3) self-defense was established as a matter of law. We find Bordeaux’s contentions to be without merit and affirm the judgment.

Factual and Procedural Background

The charges arose from a shooting incident in the early morning hours of February 14,…

I agree the judgment should be affirmed. I limit my concurrence to the result only for the following reasons.

My initial concern is with the majority’s willingness to transmute the trial court’s conditional withdrawal of the first degree murder charge from the jury into “a form of dismissal authorized by Penal Code section 1385.” (Maj. opn., ante, p. 581, fn. omitted.) Whatever label may be given to the court’s action, it cannot be properly characterized as a dismissal under section 1385.

Penal Code section section 1385 is based on trial court discretion. Before deciding dismissal is appropriate, the court must carefully evaluate the circumstances weighing the defendant’s interests against those of society. (People v. Orín (1975) 13 Cal.3d 937, 945 [ 120 Cal.Rptr. 65 , 533 P.2d 193 ].) Clearly that did not happen here where the court contemplated its action would permit the first degree murder charge to be retried if the jury could not reach a verdict on second degree murder. (Maj. opn. ante, p. 578.) Moreover, a dismissal under section 1385 is invalid unless the court complies with the statutory mandate of stating reasons for the dismissal in an order entered upon the minutes.…

[Opinion certified for partial publication. [*] ]

OPINION

WIEN, J. [*]

This case presents the issue of whether, in a murder case where the jury during deliberations is deadlocked on the greater offense of first degree murder, it is error for the trial court to withdraw the charge of first degree murder and thereby permit the jury to consider and return a verdict of second degree murder. We conclude that such action by the trial court is not error.

Defendant Marion Bordeaux (Bordeaux) appeals from her conviction of second degree murder on grounds that the withdrawal of the first degree murder charge during deliberations with instructions to the jury to deliberate on the charge of second degree (1) violated the rules of Stone v. Superior Court (1982) 31 Cal.3d 503 [ 183 Cal. Rptr. 647 , 646 P.2d 809 ] and People v. Kurtzman (1988) 46 Cal.3d 322 [ 250 Cal. Rptr. 244 , 758 P.2d 572 ], and (2) coerced the jury into returning a guilty verdict of second degree murder; and on the further ground that (3) self-defense was established as a matter of law. We find Bordeaux's contentions to be without merit and affirm the judgment.

The charges arose from a shooting incident in the early…