Chaney

Introduction

The People appeal from an order of dismissal entered after defendant Carolyn Jean Chaney entered a plea of once in jeopardy.

Procedural Background

Defendant originally was charged by information with the offense of murder (Pen. Code, § 187). At the conclusion of defendant’s jury trial, the trial court instructed the jury on the degrees of murder and on voluntary and involuntary manslaughter as lesser necessarily included offenses. The *1113 court did not instruct the jury it could render a partial verdict of acquittal on a greater degree or offense if it became deadlocked only on a lesser degree or offense.

The jury began deliberations on January 16, 1986, thereafter deliberating for some complete and some partial days until January 23. At that time, the jury returned to court. The foreman informed the trial court the jury had been “seriously deliberating,” with all members participating in the deliberations. Nevertheless, the jury was unable to agree upon a verdict. In response to the trial court’s request, the foreman stated the vote was 10 to 2 and had been that way since the first ballot; he heeded the court’s admonition not to give any more detail…

While I concur in the result, I write separately to emphasize how simple it would have been to avoid dismissal of this criminal action.

In 1982, our Supreme Court said in no uncertain terms that when a criminal jury deliberating a charge that contains lesser included offenses is not afforded an opportunity to render a partial verdict, any subsequently declared mistrial is without legal necessity and retrial is therefore barred under the double jeopardy clause. (Stone v. Superior Court (1982) 31 Cal.3d 503, 514, 519 [ 183 Cal.Rptr. 647 , 646 P.2d 809 ].) Thus was created a rule whose violation has particular significance. When a trial court errs by failing to provide the opportunity for a partial verdict, the error cannot be measured by any standard of prejudice. The error does not allow for reversal and retrial. Rather, to put it in the vernacular, the defendant walks.

*1125 The CALJIC committee responded promptly to Stone . In 1982 it created instruction No. 8.75 (“Jury May Return Partial Verdict—Homicide”). 1 The extensive “Use Note” and “Comment” to this instruction explain that, as contemplated by Stone , it may be used either before jury deliberations have commenced or…

The People appeal from an order of dismissal entered after defendant Carolyn Jean Chaney entered a plea of once in jeopardy.

Defendant originally was charged by information with the offense of murder (Pen. Code, § 187). At the conclusion of defendant's jury trial, the trial court instructed the jury on the degrees of murder and on voluntary and involuntary manslaughter as lesser necessarily included offenses. The court did not instruct the jury it could render a partial verdict of acquittal on a greater degree or offense if it became deadlocked only on a lesser degree or offense.

The jury began deliberations on January 16, 1986, thereafter deliberating for some complete and some partial days until January 23. At that time, the jury returned to court. The foreman informed the trial court the jury had been "seriously deliberating," with all members participating in the deliberations. Nevertheless, the jury was unable to agree upon a verdict. In response to the trial court's request, the foreman stated the vote was 10 to 2 and had been that way since the first ballot; he heeded the court's admonition not to give any more detail about the split in the…