Mendoza

Under Penal Code section 1157, 1 “[w]henever a defendant is convicted of a crime . . . which is distinguished into degrees,” the trier of fact “must find the degree of the crime ... of which he is guilty. Upon the failure of the [trier of fact] to so determine, the degree of the crime ... of which the defendant is guilty, shall be deemed to be of the lesser degree.” Here, we consider this section’s applicability under the following circumstances: (1) the prosecution’s only murder theory at trial is that the killing was committed during perpetration of robbery or burglary, which is first degree murder as a matter of law (§ 189); (2) the court properly instructs the jury to return either an acquittal or a conviction of first degree murder; and (3) the jury returns a conviction for murder, but its verdict fails to specify the murder’s degree. We conclude that under these circumstances, section 1157 does not apply because the defendant has not been “convicted of a crime . . . which is distinguished into degrees” within the meaning of that section. Thus, the conviction is not “deemed to be of the lesser degree.” (§ 1157.) We therefore affirm the Court of Appeal’s…

Idissent.

Penal Code section 1157 in pertinent part requires: “Whenever a defendant is convicted of 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 . . . of which he is guilty. Upon the failure of the jury or the court to so determine, the degree of the crime ... of which the defendant is guilty, shall be deemed to be of the lesser degree.”

We have consistently, until today, taken the Legislature at its word, strictly construing Penal Code section 1157 to require an express indication by the trier of fact of the degree of the offense. (People v. McDonald (1984) 37 Cal.3d 351, 382 [ 208 Cal.Rptr. 236 , 690 P.2d 709 , 46 A.L.R.4th 1011 ].) We have specifically rejected the argument, renewed herein, that when a jury is instructed solely on first degree murder, the failure of the jury to designate the degree does not trigger the default provision of the statute. Thus, in People v. McDonald , which I authored, we explained: “[T]he statute applies to reduce the degree even in situations in which the jury’s intent to convict *926 of the greater degree is demonstrated by its other actions .... [T]he…

Our Penal Code provides that certain defined murders are “of the first degree” while “[a]ll other kinds of murders are of the second degree.” (Pen. Code, § 189.) The Penal Code also provides that whenever a crime is “distinguished into degrees,” the jury “must” find the degree of the crime of which the defendant is guilty. (Pen. Code, § 1157; hereafter section 1157.) If the jury fails to so determine the degree, the crime “shall be deemed to be of the lesser degree.” (Ibid.)

The majority holds that, contrary to the plain language of these statutes, an unwritten exception exists to section 1157: According to the majority, murder is not always a crime divided into degrees, and a defendant should be convicted of first rather than second degree murder notwithstanding the jury’s failure to determine the degree if the prosecution presents evidence that would support only a first degree murder conviction and the court so instructs the jury.

I disagree. The majority disregards not only the plain language of section 1157, which admits no exceptions, but also this court’s consistent interpretation of section 1157 as requiring the jury to determine the degree regardless of the evidence or…

I dissent, albeit reluctantly. The majority opinion amply illustrates the illogic of a strict application of Penal Code 1 section 1157 to the facts of this case. The People proceeded solely on a first degree felony-murder theory when prosecuting defendants; the jury was instructed solely on first degree murder; and, on the facts of this case, the only reasonable verdict for the homicide-related counts was murder in the first degree or *939 acquittal. A judgment of murder in the second degree has no factual predicate and, as the majority explains (maj. opn., ante, at p. 909), had the jury returned a second degree verdict, the trial court could have refused to accept it, reinstructed the jury, and directed it to reconsider its verdict. (See § 1161.) Accordingly, reducing defendant Raul Antonio Valle’s 2 conviction to murder in the second degree is artificial, fails to reflect his true culpability, and is not a just result for this murderer.

Nevertheless, the issue raised in this case transcends our concern that Valle’s conviction reflect his true culpability. The history of section 1157, including the recent amendments to both sections 1157 and 1164, subdivision (b), demonstrates…

Under Penal Code section 1157, [1] "[w]henever a defendant is convicted of a crime ... which is distinguished into degrees," the trier of fact "must find the degree of the crime ... of which he is guilty. Upon the failure of the [trier of fact] to so determine, the degree of the crime ... of which the defendant is guilty, shall be deemed to be of the lesser degree." Here, we consider this section's applicability under the following circumstances: (1) the prosecution's only murder theory at trial is that the killing was committed during perpetration of robbery or burglary, which is first degree murder as a matter of law (ї 189); (2) the court properly instructs the jury to return either an acquittal or a conviction of first degree murder; and (3) the jury returns a conviction for murder, but its verdict fails to specify the murder's degree. We conclude that under these circumstances, section 1157 does not apply because the defendant has not been "convicted of a crime ... which is distinguished into degrees" within the meaning of that section. Thus, the conviction is not "deemed to be of the lesser degree." (ї 1157.) We therefore affirm the Court of Appeal's judgment.

On…