P v. Goolsby (II) (4th Dist., Div.2) Double Jeopardy Prohibits Retrial After Erroneous Discharge of Jury Without Verdicts on Lesser-Related Counts.

This case began when Mr. Goolsby, upset with his girlfriend, torched his two motor homes, one of which was inhabited by him and his girlfriend.  Goolsby was charged with attempted murder, PC 187/664, and arson of an inhabited structure, PC 451(b), with an enhancement for multiple structures.

Following the taking of evidence, the trial court correctly instructed the jury as to attempted murder, arson of an inhabited structure, and the multiple structure enhancement.  The jury was also instructed as to the lesser offenses of arson of property, PC 451(d), unlawfully causing a fire that burned an inhabited structure, PC 452(b), and unlawfully causing a fire, PC 452(c),(d).  The trial judge instructed the jury that these lesser offenses were "lesser included offenses" and that the jury should not return a verdict on any of the lesser offenses unless they found Goolsby not guilty of the greater offense of 451(b).

The jury found Goolsby not guilty of attempted murder.  They found Goolsby guilty of arson of an inhabited structure and found true the multiple structure enhancement.  Goolsby received a sentence of 48 years to life and appealed.

In Goolsby (I), a Fourth District panel reversed Goolsby's conviction.  The panel did so on the ground the trial evidence was insufficient for a finding the inhabited motor home was a "structure" under PC 451(b).  Further, in Goolsby (I), the panel held they could not reduce the conviction to arson of property, PC 451(d), because arson of property is not a lesser included offense of PC 451(b), rather it is a lesser related offense.  Finally, the Goolsby (I) opinion prohibited retrying Goolsby for arson of property on the ground such a retrial would violate California Penal Code section 654.

The California Supreme Court granted review and reversed the Goolsby (I) holding that PC 654 prohibited retrial on the 451(d) lesser related count.  Because the jury had been instructed as to the lesser related 451(d) and Goolsby's lawyer did not object to that instruction, PC 654 did not prohibit retrial on that charge.  The California Supreme Court then remanded the case back to the Fourth District to determine the open question of whether the Double Jeopardy Clause prohibits retrial.

On remand, the Fourth District holds that the Double Jeopardy Clause does prohibit the State from retrying Goolsby on any of the lesser related offenses.

Double Jeopardy prohibits retrial on a count when a jury is discharged without rendering a verdict on that count unless [1] the defendant consents to the discharge, or [2] legal necessity requires discharge, such as a hung jury.  The panel finds neither exception applicable here.

This is all traceable back to the trial court's erroneous instruction that the lesser offenses were "lesser included" offenses of arson of an inhabited building.  Lesser included offenses are crimes that are necessarily committed when the greater offense is committed, hence no verdict need be rendered on lesser included offenses upon a verdict on the greater offense.  Lesser related offenses are crimes that have elements in common with the greater offense but are not necessarily committed when the greater crime is committed.  A verdict is required for lesser related offenses regardless of the a jury's verdict (or lack thereof) on the greater.

The trial court's error of discharging Goolsby's jury without having the jury render verdicts on the lesser related counts means the jury's discharge is considered an acquittal on those counts unless Goolsby consented to the discharge.  While Goolsby did not object, that does not constitute consent.

Therefore Goolsby cannot be retried for any of the lesser offenses.