People v. Superior Court

trial. In deciding whether real party in interest John Marks^[1] may invoke the protections of the double jeopardy clause, we first consider whether a trial court suffers a fundamental loss of jurisdiction when it subjects a defendant to trial without first determining that he has the requisite capacity to understand, consult, and assist in the defense of his life or liberty. (Pen. Code, § 1368.) We resolve this threshold question in the negative and conclude the court retains jurisdiction over the subsequent, albeit defective, proceedings.

This determination does not end our inquiry, however. Because the failure to evaluate a defendant’s competence to stand trial mandates reversal, principles of double jeopardy may limit the scope of reprosecution. To assess the proper application of this constitutional guaranty in the present factual context, we also address whether a conviction of a lesser degree crime by operation of law (Pen. Code, § 1157)^[2] should be accorded the same effect on retrial as an express finding of the lesser degree crime by the previous trier of fact. This question we answer in the affirmative.

We are not unacquainted with the underlying factual and procedural history herein, portions of which we reviewed on automatic appeal.^[3] (People v. Marks (1988) 45 Cal.3d 1335 , 1338-1339 [ 248 Cal.Rptr. 874 , 756 P.2d 260 ] (Marks I).) The record established reversible error because the trial court failed to hold a competency hearing in compliance with section 1368, subdivision (b), after expressing a doubt as to defendant’s ability to proceed with the guilt phase. (45 Cal.3d at pp. 1340-1344; see People v. Hale (1988) 44 Cal.3d 531 , 541 [ 244 Cal.Rptr. 114 , 749 P.2d 769 ].) “[T]o provide brief guidance to the trial court for the possibility of a retrial,” we noted that “[t]he jury’s verdict did not specify the degree of murder of which defendant was convicted [contrary to the mandate of section 1157].” (45 Cal.3d at p. 1344.)

The matter returned to the trial court, where defendant was found competent. The prosecution reinstated all charges, including first degree murder, both special circumstance allegations, and all enhancement allegations, and

indicated its intention again to seek the death penalty. Defendant entered pleas of former acquittal and once in jeopardy (§ 1016), essentially contending that by operation of section 1157 the prosecution could not retry him on any offense greater than second degree murder.^[4] The People responded that the trial court’s section 1368 error rendered it without jurisdiction except to hold a competency hearing and that all other proceedings were a nullity. Since jeopardy never attached, the proffered pleas were unavailable.

After a hearing on the matter, the trial court agreed with defendant and limited the prosecution to retrial for second degree murder.^[5] The People petitioned for extraordinary relief; in a divided opinion, the Court of Appeal issued a peremptory writ of mandate directing the trial court to set aside its order precluding prosecution for first degree murder and to strike defendant’s pleas of former acquittal and once in jeopardy.

In reversing the trial court, the Court of Appeal majority accepted the People’s jurisdictional argument, obviating the need to consider defendant’s double jeopardy claims. In a lengthy explication, the dissent vigorously disagreed, positing that the trial court did not proceed without jurisdiction but only in excess of jurisdiction because its failure to hold a competency hearing denied defendant his due process right to a fair trial. Since the trial proceedings were thus not void, double jeopardy might preclude retrial for first degree murder. The dissent declined, however, to reach this issue in light of countervailing policy considerations, concluding instead that due process required the same result to avoid penalizing defendant for exercising his right to appeal.

We granted defendant’s petition for review and stayed further proceedings.

A. Trial Court Jurisdiction

The parties have framed the nature and scope of our threshold inquiry thusly: The People contend double jeopardy is not implicated because the trial court’s failure to observe the mandate of section 1368 divested it of fundamental, i.e., subject matter, jurisdiction. “Both the history of the Double Jeopardy Clause and its terms demonstrate that it does not come into play until a proceeding begins before a trier ‘having jurisdiction to try the

question of guilt or innocence of the accused.’ [Citations.]” (Serfass v. United States (1975) 420 U.S. 377 , 391 [ 43 L.Ed.2d 265 , 276, 95 S.Ct. 1055 ]; see United States v. Perez (1824) 22 U.S. 579 [ 6 L.Ed. 165 ].) From this perspective, since section 1368 error requires reversal irrespective of prejudice (see, e.g., People v. Hale, supra, 44 Cal.3d at p. 541), defendant was never subjected to the possibility of a valid conviction. “Without risk of a determination of guilt, jeopardy does not attach, and neither an appeal nor further prosecution constitutes double jeopardy.” (Serfass v. United States, supra, 420 U.S. at pp. 391-392 [43 L.Ed.2d at p. 276].) Put succinctly, “an accused must suffer jeopardy before he can suffer double jeopardy.” (Id., at p. 393 [43 L.Ed.2d at pp. 277].)

Defendant counters that principles of double jeopardy obtain because “[t]he jurisdictional concept involved ... is not lack of jurisdiction of the cause but excess of jurisdiction. [Citation.]” (In re Griffin (1967) 67 Cal.2d 343 , 347 [ 62 Cal.Rptr. 1 , 431 P.2d 625 ]; see also, e.g., People v. Superior Court (Prudencio) (1927) 202 Cal. 165 , 174 [ 259 P. 943 ], disapproved on other grounds in People v. Superior Court (Howard) (1968) 69 Cal.2d 491 , 501 [ 72 Cal.Rptr. 330 , 446 P.2d 138 ].) Accordingly, even when, for example, a case proceeds under a “fatally defective” indictment, “if the court had jurisdiction of the cause and the party, its judgment is not void, but only voidable”; and the defendant may invoke double jeopardy. (United States v. Ball (1896) 163 U.S. 662 , 669-670 [ 41 L.Ed. 300 , 302-303, 16 S.Ct. 1192 ]; Benton v. Maryland (1969) 395 U.S. 784 , 797 [ 23 L.Ed.2d 707 , 717, 89 S.Ct. 2056 ]; see In re Hess (1955) 45 Cal.2d 171 , 175-176 [ 288 P.2d 5 ]; In re Dellasala (1977) 66 Cal.App.3d 453 , 456-457 [ 136 Cal.Rptr. 99 ].) In defendant’s view, the trial court retained subject matter jurisdiction even if it lacked discretion to act other than in compliance with section 1368.

In arguing an absence of fundamental jurisdiction, the People rely substantially on our statement in Marks I that “once a trial court has ordered a competency hearing pursuant to section 1368, the court lacks jurisdiction to conduct further proceedings on the criminal charge or charges against the defendant until the court has determined whether he is competent.” (Marks I, supra, 45 Cal.3d at p. 1337, citing People v. Hale, supra, 44 Cal.3d 531 .) We also reiterated our earlier conclusion in Hale: “ ‘The sub silentio disposition of the section 1368 proceedings without a full competency hearing rendered the subsequent trial proceedings void because the court had been divested of jurisdiction to proceed pending express determination of the competency issue.’ [Citation.]”^[6] (Marks I, supra, 45 Cal.3d at p. 1344.) The People also note that since People v. Pennington (1967) 66 Cal.2d 508 [ 58 Cal.Rptr. 374 , 426 P.2d 942 ] (Pennington),

this court and the Courts of Appeal have consistently spoken in jurisdictional terms when referring to this species of error. (Id., at p. 521 [trial court “pronounced judgment . . . without jurisdiction to do so.”]; see People v. Hale, supra, 44 Cal.3d at p. 541 [trial court “has no jurisdiction to proceed”]; In re Davis (1973) 8 Cal.3d 798 , 808 [ 106 Cal.Rptr. 178 , 505 P.2d 1018 ] [“the matter is jurisdictional”]; People v. Day (1988) 201 Cal.App.3d 112 , 119 [ 247 Cal.Rptr. 68 ] [“the court has no power to proceed”]; People v. Conrad (1982) 132 Cal.App.3d 361 , 367 [ 182 Cal.Rptr. 912 ] [trial court “lacks jurisdiction to try, judge, or sentence a defendant”]; People v. Tomas (1977) 74 Cal.App.3d 75 , 87-88 [ 141 Cal.Rptr. 453 ] [“Since the matter is jurisdictional [citation], the court lacks the power to try, judge, or sentence . . . .”]; cf. § 1367 [defendant “cannot be tried or adjudged to punishment while . . . mentally incompetent”].)

Despite their imperative tenor, however, none of the cited authorities squarely addressed a question of the trial court’s jurisdiction to proceed notwithstanding an erroneous failure to hold a competency hearing. The principal consideration was invariably limited to the effect of section 1368 error on the underlying judgment of conviction; subsequent to Pennington, supra, 66 Cal.2d 508 , the cases simply adopted its “without jurisdiction” language as a shorthand for reversible error.^[7] While the opinions occasionally embellished the terminology, they never confronted the factual predicate to, and hence never engaged in, any substantial discussion or analysis of it. “Language used in any opinion is of course to be understood in the

light of the facts and the issue then before the court, and an opinion is not authority for a proposition not therein considered. [Citation.]” (Ginns v. Savage (1964) 61 Cal.2d 520 , 524, fn. 2 [ 39 Cal.Rptr. 377 , 393 P.2d 689 ]; Brown v. Kelly Broadcasting Co. (1989) 48 Cal.3d 711 , 734-735 [ 257 Cal.Rptr. 708 , 771 P.2d 406 ].) The issue before us then is one of first impression. Consequently, we must view with caution seemingly categorical directives not essential to earlier decisions and be guided by this dictum only to the extent it remains analytically persuasive.

As explained below, we conclude that the failure to comply with the mandate of section 1368 does not effect a fundamental loss of jurisdiction, i.e., “an entire absence of power to hear or determine the case, an absence of authority over the subject matter or the parties. [Citation.]” (Abelleira v. District Court of Appeal (1941) 17 Cal.2d 280 , 288 [ 109 P.2d 942 , 132 A.L.R. 715 ].) Rather, the trial court suffers an inability “to act except in a particular manner, or to give certain kinds of relief, or to act without the occurrence of certain procedural prerequisites.” (Ibid.; see, e.g., Rodman v. Superior Court (1939) 13 Cal.2d 262 , 269 [ 89 P.2d 109 ].) Thus, while the court retains jurisdiction over the cause,^[8] it acts in excess of that authority in failing to hold a competency hearing.

Our analysis begins with the statutory language, from which we educe no legislative directive or intent to oust the trial court of subject matter jurisdiction pending an evaluation of the defendant’s competence. In pertinent part, section 1368, subdivision (c), provides that when the court has expressed a doubt as to the defendant’s capacity to stand trial and has ordered a hearing thereon, “all proceedings in the criminal prosecution shall be suspended until the question of the present mental competence of the defendant has been determined.” Among other definitions, “to suspend” means “to cause (as an action, process, practice, use) to cease for a time ...[;] stay [as a hearing] . . . .” (Webster’s New Internal. Dict. (3d ed. 1981) p. 2303.) The code provision itself is thus not cast in jurisdictional terms. Nor does the statutory scheme invite or accommodate judicial imposition of such a limitation. For example, in contrast to subdivision (c), subdivision (b) of section 1368 explicitly vests exclusive authority in the superior court to conduct the competency hearing; a municipal court may not do so even when the defendant is charged with a misdemeanor.^[9] (In re Shaw (1953) 115 Cal.App.2d 753 , 756 [ 252 P.2d 970 ]; see Bean v. County of Los

be understood. The trial court acts “without jurisdiction” because its authority is constitutionally and statutorily restricted to holding a competency hearing before proceeding with any other matters. When the court fails to discharge this obligation, the resultant denial of due process is “so fundamental and persuasive that [it] require[s] reversal without regard to the facts or circumstances of the particular case. [Citations.]” (Delaware v. Van Arsdall (1986) 475 U.S. 673 , 681-682 [ 89 L.Ed.2d 674 , 685, 106 S.Ct. 1431 ]; see also Gideon v. Wainwright (1963) 372 U.S. 335 , 344-345 [ 9 L.Ed.2d 799 , 805, 83 S.Ct. 792 , 93 A.L.R.2d 733 ] [deprivation of right to counsel at trial]; People v. Sarazzawski (1945) 27 Cal.2d 7 , 16 [ 161 P.2d 934 ] [denial of new trial motion without reasonable opportunity to be heard (§ 1202)]; see generally Arizona v. Fulminante (1991) 499 U.S____[ 113 L.Ed.2d 302 , 331, 111 S.Ct. 1246 , 1265 (conc. opn. of Rehnquist, C. J.) [no harmless error review of “structural defect affecting the framework within which the trial proceeds”].)

Given this historical and legal perspective, we discern no reasoned basis for finding that trial error, even of this magnitude, implicates jurisdiction in any fundamental sense.^[10] “Where a . . . court has power ... to proceed on the merits, that is jurisdiction of the proceedings.” (United States v. Williams (1951) 341 U.S. 58 , 68 [ 95 L.Ed. 747 , 754, 71 S.Ct. 595 ].) We therefore conclude that the trial court does not lose subject matter jurisdiction when it fails to hold a competency hearing, but rather acts in excess of jurisdiction by depriving the defendant of a fair trial. (See Abelleira v. District Court of Appeal, supra, 17 Cal.2d at p. 290.) Although the

judgment may be a nullity, for double jeopardy purposes the proceedings are not.^[11]

B. Double Jeopardy

As we anticipated in People v. McDonald, supra, the proper analytical relationship between section 1157 and principles of double jeopardy “is not immediately obvious” (37 Cal.3d at p. 383, fn. 31); and, indeed, that determination “has not proved to be facile or routine.” (United States v. DiFrancesco (1980) 449 U.S. 117 , 127 [ 66 L.Ed.2d 328 , 339, 101 S.Ct. 426 ].) Nevertheless, after careful consideration of both federal and state precedents and the constitutional policies they reflect, we conclude that a defendant whose conviction has been deemed of a lesser degree crime by operation of section 1157^[12] may invoke the protections of double jeopardy^[13] to the same extent as one whose similar conviction has followed an express finding of the lesser degree by the trier of fact.

“The fundamental nature of the guarantee against double jeopardy can hardly be doubted. Its origins can be traced to Greek and Roman times, and it became established in the common law of England long before this Nation’s independence.” (Benton v. Maryland, supra, 395 U.S. at p. 795 [23 L.Ed.2d at p. 716], citation and fn. omitted.) “The prohibition is not against being twice punished, but against being twice put in jeopardy; and

the accused, whether convicted or acquitted, is equally put in jeopardy at the first trial.” (United States v. Ball, supra, 163 U.S. at p. 669 [41 L.Ed. at p. 302].) Should a defendant secure reversal on appeal, however, criminal proceedings are subject to reinstatement. (United States v. DiFrancesco, supra, 449 U.S. at p. 131 [66 L.Ed.2d at p. 342].)

The scope of any reprosecution may, nevertheless, be restricted. Principally, double jeopardy “prohibits retrial after a conviction has been reversed because of insufficiency of the evidence. [Citations.]” (United States v. DiFrancesco, supra, 449 U.S. at p. 131 [66 L.Ed.2d at p. 342].) A defendant may also raise the bar of former conviction “when the first jury ‘was given a full opportunity to return a verdict’ on [a greater] charge and instead reached a verdict on the lesser charge. [Citation.]” (Price v. Georgia (1970) 398 U.S. 323 , 329 [ 26 L.Ed.2d 300 , 305, 90 S.Ct. 1757 ]; accord, People v. Serrato (1973) 9 Cal.3d 753 , 760 [ 109 Cal.Rptr. 65 , 512 P.2d 289 ], disapproved on other grounds in People v. Fosselman (1983) 33 Cal.3d 572 , 583, fn. 1 [ 189 Cal.Rptr. 855 , 659 P.2d 1144 ]; Gomez v. Superior Court (1958) 50 Cal.2d 640 , 647-649 [ 328 P.2d 976 ]; cf. People v. Henderson (1963) 60 Cal.2d 482 , 495-497 [ 35 Cal.Rptr. 77 , 386 P.2d 677 ] [no liability for death penalty on retrial after sentence of life without possibility of parole].) Accordingly, to gauge the import and application of double jeopardy principles in the present context, we must take careful measure of the precise terms and circumstances of defendant’s conviction.^[14]

As we indicated in Marks I, contrary to the statutory mandate, the jury failed to specify whether it found defendant guilty of first or second degree

murder. (Marks I, supra, 45 Cal.3d at p. 1344.) Section 1157 requires that the trier of fact “must find the degree of crime or attempted crime of which [the defendant] is guilty”; but prior to 1949 it did not contain any remedy or further directive in the event of an omission. Because this type of irregularity invariably necessitated reversal and retrial (People v. Dixon (1979) 24 Cal.3d 43 , 51 [ 154 Cal.Rptr. 236 , 592 P.2d 752 ]; see, e.g., People v. Brown (1945) 69 Cal.App.2d 602 , 606 [ 159 P.2d 686 ]), the Legislature amended the language to provide that if the jury returned an incomplete verdict, “the degree of the crime or attempted crime of which the defendant is guilty, shall be deemed to be of the lesser degree.” (§ 1157.) The operation of this proviso is categorical and conclusive, “even in situations in which the jury’s intent to convict of the greater degree is demonstrated by its other actions . . . .” (People v. McDonald, supra, 37 Cal.3d at p. 382 [second degree conviction notwithstanding special circumstance finding when jury failed to specify degree].) The court has no power to recall the jury after its discharge or otherwise to rectify the deficiency.^[15] (37 Cal.3d at pp. 380-383; cf. People v. Jenkins (1880) 56 Cal. 4 , 7 [trial court “can, at any time while the jury are before it, and under its control, see that [the verdict] is amended in form so as to meet the requirements of law.”].)

The law constrains reviewing courts as well as trial courts in this regard. (People v. Lamb (1986) 176 Cal.App.3d 932 , 934 [ 222 Cal.Rptr. 570 ]; see, e.g., People v. Stephenson (1974) 10 Cal.3d 652 , 656 [ 111 Cal.Rptr. 556 , 517 P.2d 820 ], disapproved on other grounds in People v. Pope (1979) 23 Cal.3d 412 , 426, fn. 16 [ 152 Cal.Rptr. 732 , 590 P.2d 859 , 2 A.L.R.4th 1 ]; People v. Morga (1969) 273 Cal.App.2d 200 , 202 [ 78 Cal.Rptr. 120 ].) Despite the jury’s special circumstance finding in this case, we may not imply a verdict of first degree murder in the absence of an express indication to that effect. (People v. McDonald, supra, 37 Cal.3d at p. 382; People v. Thomas (1978) 84 Cal.App.3d 281 , 284 [ 148 Cal.Rptr. 532 ].) To the contrary, we are compelled to find on this record “as a matter of law . . . defendant was convicted of second degree murder. [Citation.]” (People v. McDonald, supra, 37 Cal.3d at p. 383, fn. omitted.) Accordingly, that conviction controls our

assessment of the viability of defendant’s pleas of former acquittal and once in jeopardy.

Defendant urges that by operation of section 1157 the law implicitly absolved him of first degree murder, thereby precluding his reprosecution for that offense as a “former acquittal.” (See Green v. United States, supra, 355 U.S. 184 .) We agree that the legal effect of the statute coincides in significant respects with an implied acquittal: It is a final verdict of the lesser degree crime after a determination on the merits. (See United States v. Martin Linen Supply Co. (1977) 430 U.S. 564 , 571 [ 51 L.Ed.2d 642 , 651, 97 S.Ct. 1349 ]; cf. Stone v. Superior Court, supra, 31 Cal.3d at p. 516 [“discharge of the jury without a verdict is tantamount to an acquittal” once jeopardy attaches].)

For purposes of delimiting the scope of retrial after a successful appeal, however, such a finding is generally contingent upon an implied or express determination that the evidence failed to sustain the prosecution’s case.^[16] By contrast, section 1157 renders a conviction of the lesser degree by operation of law and does not establish or necessarily imply an insufficiency of the evidence to convict of the greater degree.^[17] Indeed, on occasion “form triumphs over substance, and the law is traduced” (People v. Johns (1983) 145 Cal.App.3d 281 , 295 [ 193 Cal.Rptr. 182 ]) when the record contains

“clear and reliable evidence that the jury must have actually found the defendant guilty of the higher degree offense.” (People v. Bonillas, supra, 48 Cal.3d at pp. 802-803 (conc. opn. of Arguelles, J.); see, e.g., People v. McDonald, supra, 37 Cal.3d at pp. 379-383; People v. Beamon (1973) 8 Cal.3d 625 , 629, fn. 2 [ 105 Cal.Rptr. 681 [ 504 P.2d 905 ].)

In any event, we need not decide the former acquittal issue. The overriding fact remains that in fixing a defendant’s conviction at the lesser degree, section 1157 conclusively resolves the question of his guilt for the greater degree crime in his favor after trial for that offense. In this circumstance, controlling United States Supreme Court precedents compel we accommodate a plea of “once in jeopardy.”^[18] (§ 1016.)

In the seminal case of Green v. United States, supra, 355 U.S. 184 , the defendant was charged with both first and second degree murder; the jury found him guilty of second degree murder but failed to return a verdict on first degree. Green secured a reversal of his conviction. The prosecution again charged him with first degree murder, and the trial court rejected his plea of double jeopardy. On retrial, the jury convicted of the greater offense.

The Supreme Court reversed, relying on both a finding of an implied acquittal and the broader principle of once in jeopardy. (Price v. Georgia, supra, 398 U.S. at p. 329 [26 L.Ed.2d at p. 305].) With respect to the latter, the high court observed that “the jury was dismissed without returning any express verdict on [first degree murder] and without Green’s consent. Yet it was given a full opportunity to return a verdict and no extraordinary circumstances appeared which prevented it from doing so. Therefore it seems clear, under established principles of former jeopardy, that Green’s jeopardy for first degree murder came to an end when the jury was discharged so that he could not be retried for that offense. [Citation.]” (Green v. United States, supra, 355 U.S. at p. 191 [2 L.Ed.2d at p. 206]; accord, Price v. Georgia, supra, 398 U.S. at p. 329 [26 L.Ed.2d at p. 305].)

We discern no constitutionally sustainable logic or rationale by which to distinguish the present case. To suggest defendant was not “in direct peril of being convicted and punished for first degree murder at his first trial” or that he was not “forced to run the gantlet once on that charge” (Green v. United

States, supra, 355 U.S. at p. 190 [2 L.Ed.2d at p. 206]) would indefensibly trivialize “the heavy personal strain” imposed by a criminal trial, particularly one for a capital offense. (United States v. Jorn (1971) 400 U.S. 470 , 479 [ 27 L.Ed.2d 543 , 553, 91 S.Ct. 547 ] (plur. opn.).) Correspondingly, “[t]o be charged and to be subjected to a second trial for first-degree murder is an ordeal not to be viewed lightly.” (Price v. Georgia, supra, 398 U.S. at p. 331 [26 L.Ed.2d at p. 306], fn. omitted.) The prosecution had a full and fair opportunity to convince the trier of fact of defendant’s guilt for first degree murder. Although the jury did return a verdict, it nevertheless did not convict him of that charge; and by operation of law its verdict became fixed at second degree murder. In this circumstance, the application of double jeopardy is manifest: “the first verdict, limited as it was to the lesser included offense, required that the retrial be limited to that lesser offense.” (Id., at p. 327 [26 L.Ed.2d at p. 304]; accord, Bunnell v. Superior Court (1975) 13 Cal.3d 592 , 608 [ 119 Cal.Rptr. 302 , 531 P.2d 1086 ].) We must perforce conclude defendant’s jeopardy for first degree murder terminated when the jury was discharged from the guilt phase and a second degree verdict was rendered pursuant to section 1157. (See also In re Hess, supra, 45 Cal.2d at p. 176; cf. Kellett v. Superior Court (1966) 63 Cal.2d 822 , 827-828 [ 48 Cal.Rptr. 366 , 409 P.2d 206 ] [§ 654 precludes prosecution for more serious offense after defendant has been acquitted or convicted of lesser charge].)

The fact the trial court committed reversible error at the outset of the proceedings and defendant successfully appealed his conviction on that ground assumes no analytical significance in this context. When a defendant has once endured the rigors of trial and the jury fails to convict despite a full opportunity to do so, he may not be required to face that ordeal again regardless of any collateral defects in the original proceeding. (Benton v. Maryland, supra, 395 U.S. at pp. 796-797 [23 L.Ed.2d at p. 717]; see, ante, fn. 14; cf. United States v. Jorn, supra, 400 U.S. at p. 483 [27 L.Ed.2d at p. 555] (plur. opn.) [reprosecution after unnecessary mistrial subjects defendant to “same personal strain and insecurity” even if trial court is well intentioned].) Moreover, as the court in Green v. United States, supra, explained in rejecting the government’s waiver argument, “Green was not convicted of first degree murder and that offense was not involved in his appeal.” (355 U.S. at p. 193 [2 L.Ed.2d at p. 207].) Here, the court should have entered judgment on second degree murder, which then would have been the properly appealed conviction had defendant chosen to pursue the matter.^[19] (See People v. Hughes (1959) 171 Cal.App.2d 362 , 370 [ 340 P.2d 679 ]; ante, fn. 17.)

We perceive no unfairness to the People in our holding. The prosecution is not deprived of its “one complete opportunity to convict those who have violated [the] laws.” (Arizona v. Washington (1978) 434 U.S. 497 , 509 [ 54 L.Ed.2d 717 , 730, 98 S.Ct. 824 ]; Burks v. United States, supra, 437 U.S. at p. 16 [57 L.Ed.2d at pp. 12-13].) When the verdict is “deemed of the lesser degree” by operation of law, the prosecution bears at least partial responsibility.^[20] The consequences of an irregular verdict are well settled, and nothing precludes the prosecution from calling the deficiency to the court’s attention before it discharges the panel.^[21] (See §§ 1161-1164.) Since any failure to do so results from neglect rather than lack of notice and opportunity to be heard, the People’s right to due process is accordingly not offended. (See United States v. Jorn, supra, 400 U.S. at p. 486 [27 L.Ed.2d at p. 557] (plur. opn.); United States v. Ball, supra, 163 U.S. at p. 668 [41 L.Ed. at p. 302] [prosecutor cannot “ ‘take advantage of his own wrong’ ”]; see also Brown v. Ohio (1977) 432 U.S. 161 , 165 [ 53 L.Ed.2d 187 , 193, 97 S.Ct. 2221 ] [double jeopardy guaranty “serves principally as a restraint on courts and prosecutors”].)

The United States Supreme Court has repeatedly counseled against subjecting a defendant to further proceedings to allow the prosecution the opportunity to ameliorate trial deficiencies, evidentiary or procedural, that could have been otherwise timely corrected. (See Swisher v. Brady (1978) 438 U.S. 204 , 215-216 [ 57 L.Ed.2d 705 , 715, 98 S.Ct. 2699 ]; Ashe v. Swenson, supra, 397 U.S. at pp. 446-447 [25 L.Ed.2d at p. 477] [collateral estoppel]; United States v. Ball, supra, 163 U.S. at p. 667 [41 L.Ed. at p. 302] [prosecutor cannot “ ‘allege[] his own inaccuracy or neglect, as a reason for a second trial’ ”]; see also Fong Foo v. United States, supra, 369 U.S. 141 [erroneous midtrial dismissal].) The purpose of double jeopardy “is sub-served by refusing to permit repeated retrials of a defendant in order to

remedy errors of law . . . made by the trial court in the course of trial.” (People v. Valenti (1957) 49 Cal.2d 199 , 209 [ 316 P.2d 633 ]; People v. Webb (1869) 38 Cal. 467 , 476; Mouser v. Superior Court (1982) 136 Cal.App.3d 110 [ 186 Cal.Rptr. 21 ].) At the very least, repeated trials impermissibly permit the prosecution to “gain[] an advantage from what it learns at the first trial about the strengths of the defense case and the weaknesses of its own.” (United States v. DiFrancesco, supra, 449 U.S. at p. 128 [66 L.Ed.2d at p. 340]; accord, Stone v. Superior Court, supra, 31 Cal.3d at p. 515.) This process in turn encourages “the governmental overreaching that double jeopardy is supposed to prevent.” (Ohio v. Johnson (1984) 467 U.S. 493 , 502 [ 81 L.Ed.2d 425 , 435, 104 S.Ct. 2536 ].)

Moreover, allowing reprosecution for the greater degree offense would essentially afford the People otherwise unavailable recourse from the mandatory and conclusive operation of section 1157. This result would not only circumvent and contravene the statutory imperative, it would undermine the constitutional impetus favoring finality of judgments. “It has been said that ‘a’ or ‘the’ ‘primary purpose’ of the [double jeopardy clause] was ‘to preserve the finality of judgments,’ [citation] . . . .” (United States v. DiFrancesco, supra, 449 U.S. at p. 128 [66 L.Ed.2d at p. 340]; Arizona v. Washington, supra, 434 U.S. at p. 503 [54 L.Ed.2d at pp. 726-727].) To reward the prosecution for its inadvertence would thus substantially subvert a multiplicity of traditional double jeopardy protections.

Accordingly, guided by the weight of precedent and the substantial policy considerations they reflect, we hold that when a defendant’s conviction is “deemed to be of the lesser degree” by operation of section 1157, it “is to be accorded constitutional finality and conclusiveness similar to that which attaches to a jury’s verdict of acquittal.” (United States v. DiFrancesco, supra, 449 U.S. at p. 132 [66 L.Ed.2d at p. 343].) If the defendant obtains a reversal of that conviction, he may not be subject to retrial for any more serious offense.^[22]

As its ancient lineage attests, the double jeopardy clause is no mere “technicality”; it is an integral part of “the framework of procedural protections which the Constitution establishes for the conduct of a criminal trial.”