Espiritu

INTRODUCTION

Defendant and appellant Illuminado Espíritu (defendant) was convicted of attempted voluntary manslaughter (Pen. Code, §§ 664, 192, subd. (a)), 1 and battery with serious bodily injury (§ 243,. subd. (d)). The jury initially found “not true” the allegation that defendant personally used a deadly weapon, but after the trial court sent the jury back for further deliberations to reconsider its verdict, the jury ultimately found the allegation to be true. On appeal, defendant contends that the trial court erred by not recording the jury’s original “not true” finding on defendant’s use of a deadly weapon allegation. We reverse the true finding on the use of a deadly weapon allegation under section 1161 and because the trial court controlled the verdict. We remand the matter for resentencing. We otherwise affirm.

*721 BACKGROUND

A. Factual Background

Noemi Espíritu, defendant’s former wife, testified that on October 9, 2009, defendant entered her residence, stated to her “I will kill you,” stabbed her several times with a knife, and choked her. 2 During the encounter, Noemi held defendant’s hand to prevent being stabbed again, and defendant stabbed himself.…

I concur in the reversal. In terms of the merits, Penal Code section 1161 requires the entry of a verdict or finding which indicates a jury’s decision to acquit. The trial court was required to enter the not true finding; no ifs, ands or buts. Additionally, in my view: no jury coercion occurred; the violation of Penal Code section 1161 has been forfeited; no issue of any consequence has been raised which excuses forfeiture; the failure of defense counsel to object was prejudicial in terms of the deadly weapon use issue; even on direct appeal, such would constitute ineffective assistance of counsel; I would direct briefing on that issue; *729 and then reverse the deadly weapon use finding because defense counsel failed to object. Criminal defense lawyers are charged with the duty to know the limitations on a trial court’s right to direct the jury reconsider a verdict or finding of acquittal; no ifs, ands or huts. That did not occur here.

On October 14, 2011, the opinion was modified to read as printed above.