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People v. Avalos, 37 Cal.3d 216, 689 P.2d 121, 207 Cal.Rptr. 549

Facts

The charges arose from a New Year's shooting incident on December 31, 1980, at the Island Plaza Shopping Center, where a crowd was celebrating. Shots were fired from a white four-door car, hitting three young men, one fatally. Eyewitnesses identified Avalos as the shooter, and police found a .22 caliber handgun, later confirmed as the murder weapon, during his arrest.

The charges arose from a New Year's shooting incident on December 31, 1980. A large crowd of young people had gathered at the Island Plaza Shopping Center to celebrate the New Year. The celebration was disrupted just after midnight, when shots were fired by a passenger of a white four-door car that had pulled into the parking lot. Three young men were hit by the gunfire; one of them was fatally wounded.

Issue

Whether the trial court erred in instructing the jury that it could return a verdict of murder without specifying the degree if the jurors were unable to reach a unanimous verdict on the question of degree.

The primary issue presented by this appeal is whether the trial court erred when it (1) instructed the jury it could return a verdict of murder without specifying the degree if the jurors were unable to reach a unanimous verdict upon the question of degree and (2) thereafter deemed the conviction to be second degree murder pursuant to Penal Code section 1157.

Rule

The court held that Penal Code section 1157 was not intended to apply when the jury is deadlocked on the degree of a crime, and that a trial court must instruct the jury to reach a unanimous verdict on the degree.

In People v. Dixon (1979) 24 Cal.3d 43, 154 Cal.Rptr. 236, 592 P.2d 752 we held that section 1157 was not intended to apply to cases in which the jury does not fix the degree of a crime because it cannot reach a unanimous verdict on that issue.

Analysis

The court found that the trial court's instruction was erroneous under the precedent set in People v. Dixon, which clarified that section 1157 applies only when the jury fails to fix the degree due to inadvertence, not when there is a deadlock. However, the court noted that the defense counsel's lack of objection to the instruction indicated a tactical decision to accept the outcome rather than risk a retrial.

The record shows that the court was led into error by counsel for both the people and the defense, and that the defense took full advantage of the tactical benefit made available by the court's error.

Conclusion

The court affirmed Avalos's conviction, concluding that the trial court's error did not warrant reversal due to the tactical decisions made by the defense.

Thus we conclude that defendant cannot use this error to gain a reversal of his conviction on this appeal.

Who won?

The People (State of California) prevailed as the court affirmed the conviction, finding no reversible error in the trial court's actions.

The Attorney General argues that defendant is barred from obtaining a reversal of his conviction on appeal by his acquiescence in the instruction, receipt of the verdict, entry of judgment and sentencing.

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