P.

Filed 4/8/

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE, )

) Plaintiff and Respondent, ) ) S195600 v. ) ) Ct.App. 2/5 B222615

VALENTIN CARBAJAL, )

) Los Angeles County Defendant and Appellant. ) Super. Ct. No. BA316526 ____________________________________)

Defendant was charged with sexually molesting two victims. A jury convicted defendant of some counts involving one victim while deadlocking on all counts involving the other victim. Nevertheless, the jury returned a true finding on a ―One Strike‖ allegation that defendant had committed offenses against multiple victims. (Pen. Code, § 667.61, subds. (b), (e)(4); all further statutory references are to the Penal Code.) Believing the jury‘s true finding was made in error, the trial court instructed the jury on the law and ordered further deliberations. When the jury quickly returned, the trial court did not ask for or receive a verdict from the jury. Believing the jury had again erred, this time by making a not true finding, the court gave a lengthy comment with…

Defendant was charged with sexually molesting two victims. A jury convicted defendant of some counts involving one victim while deadlocking on all counts involving the other victim. Nevertheless, the jury returned a true finding on a “One Strike” allegation that defendant had committed offenses against multiple victims. (Pen. Code, § 667.61, subds. (b), (e)(4); all further statutory references are to the Penal Code.) Believing the jury’s true finding was made in error, the trial court instructed the jury on the law and ordered further deliberations. When the jury quickly returned, the trial court did not ask for or receive a verdict from the jury. Believing the jury had again erred, this time by making a not true finding, the court gave a lengthy comment with additional instructions and again ordered further deliberations. The jury then returned a third time with a blank verdict form and indicated it had deadlocked on the multiple victim allegation. The trial court declared a mistrial, and defendant was retried. A second jury convicted defendant of counts involving the other victim and found true the multiple victim allegation. The issue presented is whether defendant…

Defendant was charged with sexually molesting two young girls. The charge included an allegation under an alternative sentencing provision of the “One Strike” law, which applies when, in the same case, the defendant has been convicted of serious sex offenses involving more than one victim. (Pen. Code, § 667.61, subds. (b) & (e)(4); further statutory references are to the Penal Code.)

A jury found defendant guilty of serious sex offenses against one victim, was unable to reach verdicts as to the second victim, and found the multiple-victim sentencing allegation to be true. Because the multiple-victim finding was inconsistent with the jury’s guilty verdicts, which pertained to only one victim, the trial court rejected the finding and directed the jury to reconsider the allegation. After deliberating briefly, the jury again returned to the courtroom, but the trial court did not ask whether the jury had made a new finding on the allegation. Instead, after telling the jury it should not be making any finding on the allegation, the trial court declared a mistrial on that allegation. At a second trial, a different jury found defendant guilty of serious sex offenses against the second…

The majority holds, in accordance with People v. Anderson (2009) 47 Cal.4th 92, 102, 115 [ 97 Cal.Rptr.3d 77 , 211 P.3d 584 ], that convictions of specified sex offenses against more than one victim are an essential predicate to the jury’s authority to adjudicate the “One Strike” multiple-victim allegation. (Pen. Code, § 667.61, subds. (b), (e)(4).) Thus, once the trial court determined that the first jury in this case had hopelessly deadlocked as to all of the charged offenses involving the second victim, the jury had no legal authority to adjudicate the multiple-victim allegation. *543 Accordingly, any finding the jury purported to render as to the multiple-victim allegation “had no double jeopardy consequences, and defendant’s retrial on that allegation was not unconstitutional.” (Maj. opn., ante, at p. 536.)

I agree with the majority’s conclusion, which is sufficient to answer the question presented for review: “Whether double jeopardy bars retrial as to a multiple-victim allegation that the first jury never reached because no verdict was received, and was never resolved because the jury deadlocked on the underlying offenses?”

As guidance in future cases, I believe we should…