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Name: People v. Carabajal
Case #: B222615
Court: CA Court of Appeal
District 2 DCA
Division: 5
Opinion Date: 07/05/2011
Subsequent History: 10/12/11 rev. granted (S195600)

Under Penal Code section 1161, when there is a verdict of conviction, the court may order reconsideration of a verdict if it appears that the jury may have mistaken the law, but once the jury has returned a “not true” finding on an enhancement, the court may not order reconsideration of the verdict but must order it be entered. The jury convicted appellant of Penal Code section 288, subdivision (a), for counts related to one victim but could not reach a finding on the counts addressing a second victim. Nevertheless, the jury found the enhancement for more than one victim “true.” The court explained the law on the verdict and directed the jury to reconsider. The jury then returned a “not true” finding but the court did not give effect to the finding and sent the jury back for reconsideration. The third time the jury made no finding. In this retrial of the counts on which the jury was not able to reach a verdict, the enhancement was also alleged and found to be true. The appellate court found the charging of the enhancement to be error because under section 1161 the “not true” finding rendered by the first jury on the reconsideration should have been entered into the verdict, thereby preventing its subsequent charging.