Where jury’s guilty verdict on arson of an inhabited structure was reversed for insufficient evidence, and the jury failed to return a verdict on the lesser related offense of arson of property, retrial is barred. Goolsby set fire to his two motor homes at a time when he and his girlfriend were living in one of them. He was convicted of arson of an inhabited structure (Pen. Code, § 451, subd. (b)), with a multiple structure enhancement (Pen. Code, § 451.1, subd. (a)(4)). In his first appeal, the Court of Appeal found insufficient evidence that the motor home was a “structure.” It held that retrial on the lesser related offense of arson of property (Pen. Code, § 451, subd. (d)) was prohibited (Pen. Code, § 654). The California Supreme Court granted the prosecution’s petition for review and held that section 654 did not bar retrial. However, it remanded the case so the Court of Appeal could consider whether double jeopardy barred retrial. Held: Retrial prohibited. The constitutional protection against double jeopardy prohibits a second trial after an acquittal or after a judgment is set aside based on insufficient evidence. When a court finds there is insufficient evidence to support a conviction of a greater offense, it can reduce the conviction to a lesser included offense that is supported by the evidence (Pen. Code, §§ 1181, subd. 6; 1260). Once jeopardy attaches, the discharge of the jury without a verdict is tantamount to an acquittal and prevents a retrial unless the defendant consented to the discharge or it was warranted by legal necessity. Here, the trial court instructed the jury both on arson of an inhabited structure and arson of property (Pen. Code, § 451, subd. (d)). The jury found defendant guilty of arson of an inhabited structure but did not return a verdict on arson of property. Under these circumstances, double jeopardy bars any retrial for arson of property. Additionally, the Court of Appeal does not have power to reduce the conviction to the lesser related offense of arson of property, and the court did not identify any lesser included offense that the conviction could be reduced to.

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/E052297B.PDF