Code Section Group

Penal Code - PEN

PART 2. OF CRIMINAL PROCEDURE [681 - 1620]

  ( Part 2 enacted 1872. )

TITLE 7. OF PROCEEDINGS AFTER THE COMMENCEMENT OF THE TRIAL AND BEFORE JUDGMENT [1065 - 1188]

  ( Title 7 enacted 1872. )

CHAPTER 4. The Verdict or Finding [1147 - 1168]
  ( Heading of Chapter 4 amended by Stats. 1951, Ch. 1674. )

1147.
  

When the jury have agreed upon their verdict, they must be conducted into court by the officer having them in charge. Their names must then be called, and if all do not appear, the rest must be discharged without giving a verdict. In that case the action may be again tried.

(Amended by Stats. 1905, Ch. 534.)

1148.
  

If charged with a felony the defendant must, before the verdict is received, appear in person, unless, after the exercise of reasonable diligence to procure the presence of the defendant, the court shall find that it will be in the interest of justice that the verdict be received in his absence. If for a misdemeanor, the verdict may be rendered in his absence.

(Amended by Stats. 1931, Ch. 124.)

1149.
  

When the jury appear they must be asked by the Court, or Clerk, whether they have agreed upon their verdict, and if the foreman answers in the affirmative, they must, on being required, declare the same.

(Enacted 1872.)

1150.
  

The jury must render a general verdict, except that in a felony case, when they are in doubt as to the legal effect of the facts proved, they may, except upon a trial for libel, find a special verdict.

(Amended by Stats. 1998, Ch. 931, Sec. 390. Effective September 28, 1998.)

1151.
  

A general verdict upon a plea of not guilty is either “guilty” or “not guilty,” which imports a conviction or acquittal of the offense charged in the accusatory pleading. Upon a plea of a former conviction or acquittal of the offense charged, or upon a plea of once in jeopardy, the general verdict is either “for the people” or “for the defendant.” When the defendant is acquitted on the ground of a variance between the accusatory pleading and the proof, the verdict is “not guilty by reason of variance between charge and proof.”

(Amended by Stats. 1951, Ch. 1674.)

1152.
  

A special verdict is that by which the jury find the facts only, leaving the judgment to the Court. It must present the conclusions of fact as established by the evidence, and not the evidence to prove them, and these conclusions of fact must be so presented as that nothing remains to the Court but to draw conclusions of law upon them.

(Enacted 1872.)

1153.
  

The special verdict must be reduced to writing by the jury, or in their presence entered upon the minutes of the Court, read to the jury and agreed to by them, before they are discharged.

(Enacted 1872.)

1154.
  

The special verdict need not be in any particular form, but is sufficient if it presents intelligibly the facts found by the jury.

(Amended by Stats. 1987, Ch. 828, Sec. 65.)

1155.
  

The court must give judgment upon the special verdict as follows:

1. If the plea is not guilty, and the facts prove the defendant guilty of the offense charged in the indictment or information, or of any other offense of which he could be convicted under that indictment or information, judgment must be given accordingly. But if otherwise, judgment of acquittal must be given.

2. If the plea is a former conviction or acquittal or once in jeopardy of the same offense, the court must give judgment of acquittal or conviction, as the facts prove or fail to prove the former conviction or acquittal or jeopardy.

(Amended by Stats. 1951, Ch. 1674.)

1156.
  

If the jury do not, in a special verdict, pronounce affirmatively or negatively on the facts necessary to enable the court to give judgment, or if they find the evidence of facts merely, and not the conclusions of fact, from the evidence, as established to their satisfaction, the court shall direct the jury to retire and return another special verdict. The court may explain to the jury the defect or insufficiency in the special verdict returned, and the form which the special verdict to be returned must take.

(Amended by Stats. 1927, Ch. 602.)

1157.
  

Whenever a defendant is convicted of a crime or attempt to commit a crime which is distinguished into degrees, the jury, or the court if a jury trial is waived, must find the degree of the crime or attempted crime of which he is guilty. Upon the failure of the jury or the court to so determine, the degree of the crime or attempted crime of which the defendant is guilty, shall be deemed to be of the lesser degree.

(Amended by Stats. 1978, Ch. 1166.)

1158.
  

Whenever the fact of a previous conviction of another offense is charged in an accusatory pleading, and the defendant is found guilty of the offense with which he is charged, the jury, or the judge if a jury trial is waived, must unless the answer of the defendant admits such previous conviction, find whether or not he has suffered such previous conviction. The verdict or finding upon the charge of previous conviction may be: “We (or I) find the charge of previous conviction true” or “We (or I) find the charge of previous conviction not true,” according as the jury or the judge find that the defendant has or has not suffered such conviction. If more than one previous conviction is charged a separate finding must be made as to each.

(Amended by Stats. 1951, Ch. 1674.)

1158a.
  

(a) Whenever the fact that a defendant was armed with a weapon either at the time of his commission of the offense or at the time of his arrest, or both, is charged in accordance with section 969c of this code, in any count of the indictment or information to which the defendant has entered a plea of not guilty, the jury, if they find a verdict of guilty of the offense with which the defendant is charged, or of any offense included therein, must also find whether or not the defendant was armed as charged in the count to which the plea of not guilty was entered. The verdict of the jury upon a charge of being armed may be: “We find the charge of being armed contained in the ____ count true,” or “We find the charge of being armed contained in the ____ count not true,” as they find that the defendant was or was not armed as charged in any particular count of the indictment or information. A separate verdict upon the charge of being armed must be returned for each count which alleges that the defendant was armed.

(b) Whenever the fact that a defendant used a firearm is charged in accordance with Section 969d in any count of the indictment or information to which the defendant has entered a plea of not guilty, the jury if they find a verdict of guilty of the offense with which the defendant is charged must also find whether or not the defendant used a firearm as charged in the count to which the plea of not guilty was entered. A verdict of the jury upon a charge of using a firearm may be: “We find the charge of using a firearm contained in the ____ count true,” or “We find the charge of using a firearm contained in the ____ count not true,” as they find that the defendant used or did not use a firearm as charged in any particular count of the indictment or information. A separate verdict upon the charge of using a firearm shall be returned for each count which alleges that defendant used a firearm.

(Amended by Stats. 1972, Ch. 1131, Sec. 2.)

1159.
  

The jury, or the judge if a jury trial is waived, may find the defendant guilty of any offense, the commission of which is necessarily included in that with which he is charged, or of an attempt to commit the offense.

(Amended by Stats. 1951, Ch. 1674.)

1160.
  

On a charge against two or more defendants jointly, if the jury cannot agree upon a verdict as to all, they may render a verdict as to the defendant or defendants in regard to whom they do agree, on which a judgment must be entered accordingly, and the case as to the other may be tried again.

Where two or more offenses are charged in any accusatory pleading, if the jury cannot agree upon a verdict as to all of them, they may render a verdict as to the charge or charges upon which they do agree, and the charges on which they do not agree may be tried again.

(Amended by Stats. 1951, Ch. 1674.)

1161.
  

When there is a verdict of conviction, in which it appears to the Court that the jury have mistaken the law, the Court may explain the reason for that opinion and direct the jury to reconsider their verdict, and if, after the reconsideration, they return the same verdict, it must be entered; but when there is a verdict of acquittal, the Court cannot require the jury to reconsider it. If the jury render a verdict which is neither general nor special, the Court may direct them to reconsider it, and it cannot be recorded until it is rendered in some form from which it can be clearly understood that the intent of the jury is either to render a general verdict or to find the facts specially and to leave the judgment to the Court.

(Enacted 1872.)

1162.
  

If the jury persist in finding an informal verdict, from which, however, it can be clearly understood that their intention is to find in favor of the defendant upon the issue, it must be entered in the terms in which it is found, and the Court must give judgment of acquittal. But no judgment of conviction can be given unless the jury expressly find against the defendant upon the issue, or judgment is given against him on a special verdict.

(Enacted 1872.)

1163.
  

When a verdict is rendered, and before it is recorded, the jury may be polled, at the request of either party, in which case they must be severally asked whether it is their verdict, and if any one answer in the negative, the jury must be sent out for further deliberation.

(Enacted 1872.)

1164.
  

(a) When the verdict given is receivable by the court, the clerk shall record it in full upon the minutes, and if requested by any party shall read it to the jury, and inquire of them whether it is their verdict. If any juror disagrees, the fact shall be entered upon the minutes and the jury again sent out; but if no disagreement is expressed, the verdict is complete, and the jury shall, subject to subdivision (b), be discharged from the case.

(b) No jury shall be discharged until the court has verified on the record that the jury has either reached a verdict or has formally declared its inability to reach a verdict on all issues before it, including, but not limited to, the degree of the crime or crimes charged, and the truth of any alleged prior conviction whether in the same proceeding or in a bifurcated proceeding.

(Amended by Stats. 1990, Ch. 800, Sec. 1.)

1165.
  

Where a general verdict is rendered or a finding by the court is made in favor of the defendant, except on a plea of not guilty by reason of insanity, a judgment of acquittal must be forthwith given. If such judgment is given, or a judgment imposing a fine only, without imprisonment for nonpayment is given, and the defendant is not detained for any other legal cause, he must be discharged, if in custody, as soon as the judgment is given, except that where the acquittal is because of a variance between the pleading and the proof which may be obviated by a new accusatory pleading, the court may order his detention, to the end that a new accusatory pleading may be preferred, in the same manner and with like effect as provided in Section 1117.

(Amended by Stats. 1951, Ch. 1674.)

1166.
  

If a general verdict is rendered against the defendant, or a special verdict is given, he or she must be remanded, if in custody, or if on bail he or she shall be committed to the proper officer of the county to await the judgment of the court upon the verdict, unless, upon considering the protection of the public, the seriousness of the offense charged and proven, the previous criminal record of the defendant, the probability of the defendant failing to appear for the judgment of the court upon the verdict, and public safety, the court concludes the evidence supports its decision to allow the defendant to remain out on bail. When committed, his or her bail is exonerated, or if money is deposited instead of bail it must be refunded to the defendant or to the person or persons found by the court to have deposited said money on behalf of said defendant.

(Amended by Stats. 1999, Ch. 570, Sec. 1. Effective January 1, 2000.)

1167.
  

When a jury trial is waived, the judge or justice before whom the trial is had shall, at the conclusion thereof, announce his findings upon the issues of fact, which shall be in substantially the form prescribed for the general verdict of a jury and shall be entered upon the minutes.

(Added by Stats. 1951, Ch. 1674.)

1168.
  

(a) Every person who commits a public offense, for which any specification of three time periods of imprisonment in any state prison or imprisonment pursuant to subdivision (h) of Section 1170 is now prescribed by law or for which only a single term of imprisonment in state prison or imprisonment pursuant to subdivision (h) of Section 1170 is specified shall, unless such convicted person be placed on probation, a new trial granted, or the imposing of sentence suspended, be sentenced pursuant to Chapter 4.5 (commencing with Section 1170) of Title 7 of Part 2.

(b) For any person not sentenced under such provision, but who is sentenced to be imprisoned in the state prison or imprisonment pursuant to subdivision (h) of Section 1170, including imprisonment not exceeding one year and one day, the court imposing the sentence shall not fix the term or duration of the period of imprisonment.

(Amended by Stats. 2011, Ch. 15, Sec. 449. (AB 109) Effective April 4, 2011. Operative October 1, 2011, by Sec. 636 of Ch. 15, as amended by Stats. 2011, Ch. 39, Sec. 68.)

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