Except as provided in Penal Code section 1161, a trial court may not reject a jury’s verdict and send the jury back for further deliberations based on the court’s belief that the jury made a mistake. Appellant was charged with sexually molesting two victims. In his first trial, the jury convicted him of some counts dealing with one victim but was not able to reach a verdict on the counts dealing with a separate victim. Regardless, it returned a true finding on the “One Strike” allegation that appellant had committed offenses against multiple victims. (Pen. Code, § 667.61, subds. (b), (e)(4).) Believing the jury erred, the trial court directed the jury to reconsider its verdict on the allegation. The jury quickly returned, apparently with a not true finding. Before the jury declared its second verdict, the court called counsel to a sidebar and stated that the court did not believe that it should take any verdict on the allegation because the jury was hung on the counts involving the second victim. The court did not enter the finding. Instead, the court again addressed the jury and asked it to reconsider its verdict a third time. The jury then returned a blank verdict form and indicated it had deadlocked on the multiple victim allegation. On retrial, appellant was found guilty of the previously deadlocked counts with the jury also finding true the One Strike allegation. The Supreme Court concluded that the trial court departed from the procedures set forth in Penal Code sections 1147, 1149, 1161, 1163, and 1164 for receiving and recording a jury’s verdict. Had the first jury been properly authorized to return a verdict on the multiple victim allegation, the proper statutory procedure would have been to allow the jury to declare its verdict when it returned to the courtroom the second time. Once the trial court directed the jury to reconsider its initial verdict of conviction, it could not again order further deliberations. (Pen. Code, § 1161.) Following a second deliberation, no statute permits a court to refuse to hear a verdict it believes to be erroneous or to direct the jury to deliberate further without the declaration of one or more jurors that the announced verdict is in error. Additionally, aside from a limited exception set forth in section 1161, a court may not decline to accept or hear a jury verdict merely because it is inconsistent with another verdict the jury rendered in the case.
A jury cannot return a valid verdict on the One Strike multiple victim allegation where it has not first arrived at the underlying verdicts that comprise the essential predicate for the allegation and, if it nevertheless reaches a verdict on the allegation, the finding is unauthorized and has no double jeopardy consequences. The Supreme Court rejected appellant’s contention that double jeopardy principles prevented retrial on the One Strike allegation. As to the multiple victim allegation, a jury may not consider whether a defendant “has been convicted in the present case or cases of committing an offense specified in [Penal Code section 667.61,] subdivision (c) against more than one victim” until the jury has returned convictions on offenses involving more than one victim. Because the jury here deadlocked on the counts involving the second victim, it never brought into existence the predicate facts required for consideration of the multiple victim allegation. Without this essential predicate, the jury had no authority to consider the multiple victim allegation. As a result, it could not return a valid verdict on the allegation and retrial was not barred by double jeopardy. The court also noted that trial courts may avoid the problems presented in this case by doing the following: (1) expressly instructing the jury not to return a verdict on the allegation unless it first finds the defendant guilty of the requisite predicate crimes committed against multiple victims; (2) if the court believes a returned verdict of conviction is in error, it can exercise its authority under section 1161 and provide the jury with instruction on the applicable law and explanation as to why it believes the jury’s verdict is a mistake of the law; and (3) when confronted with a jury verdict that appears inconsistent with the jury’s true intent, the court may, at the request of any party, poll the jury and order further deliberations if any juror indicates the verdict does not reflect his or her true intent.