Filed 1/30/23 P. v. Stafford CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, 

Plaintiff and Respondent,

v.

ISAIAH JAMES STAFFORD,

Defendant and Appellant.

B322534

Stanislaus County

Super. Ct. No. 1466458-02

APPEAL from a judgment of the Superior Court of 

Stanislaus County. Ricardo Cardova, Judge. Affirmed.

Deborah L. Hawkins, under appointment by the Court 

of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief

Assistant Attorney General, Michael P. Farrell, Assistant 

Attorney General, Louis M. Vasquez, Lewis A. Martinez

and William K. Kim, Deputy Attorneys General, for Plaintiff 

and Respondent.

_________________________
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The People charged Isaiah James Stafford with murder, 

assault, and attempted robbery. A jury convicted Stafford 

of assault, found he did not commit murder under an express 

malice theory, and was unable to agree unanimously whether 

he committed attempted robbery and murder under a felony 

murder theory. Stafford repeatedly moved for a mistrial, which 

the court eventually granted. The People retried the case under 

the felony murder theory, and the second jury convicted Stafford

of first degree murder and attempted robbery. On appeal, 

Stafford contends double jeopardy principles barred the People

from retrying the murder charge. He also argues he received 

ineffective assistance of counsel. We affirm.

FACTS AND PROCEDURAL BACKGROUND

1. Background

Because the facts of the underlying offenses are not 

relevant to this appeal, we summarize them only briefly. 

On the afternoon of December 11, 2013, Luisa Riley went 

to a restaurant to meet up with Stafford, whom she was dating. 

Stafford was not at the restaurant, so Riley walked around the

area. She found Stafford sometime later in a nearby parking lot.

Riley asked Stafford what he was doing in the parking lot. 

Stafford replied he was going to buy “weed” and “do a come up,” 

which Riley understood to mean he was going to steal something. 

Stafford had a gun. Lamarr Oldham, whom Stafford claimed was

his cousin, was standing by himself next to a nearby dumpster.

Roy Randall and Damien Villavicencio drove up in a 

car and parked near where Riley and Stafford were standing. 

Stafford got into the backseat of the car. He left the door open 

and had his feet outside the car.
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Stafford asked the men to show him the “weed.” One 

of the men responded by asking Stafford to show him the money. 

Oldham slowly moved toward the car from a crouched position, 

and Randall and Villavicencio looked in his direction. Randall 

tried to drive away, but he crashed into a curb.

Stafford started shooting his gun, and Riley heard three 

gunshots coming from his direction. Oldham, who was now 

right beside Riley, started firing his gun at the car as well.

Stafford, Oldham, and Riley ran to Oldham’s apartment, 

which was in a nearby complex. Police arrested them later 

that evening.

Randall suffered a gunshot wound to his forearm. 

Villavicencio suffered a gunshot wound to his chest, which 

was fatal.

The People charged Stafford with the first degree murder 

of Villavicencio (Pen. Code, § 187, subd. (a); count 1),1 assault 

with a firearm on Randall (§ 245, subd. (a)(2); count 2), and 

two counts of attempted robbery (§§ 211, 664; counts 3, 4). 

The People also alleged various firearm enhancements.

2. The first trial

The People tried the case to a jury in 2019. At the close 

of evidence, the court instructed the jury that Stafford “has 

been prosecuted for murder under two theories: One, malice 

aforethought; and two, felony murder. Each theory of murder 

has different requirements . . . .”

The court gave the jury separate sets of verdict forms for 

“FIRST DEGREE MURDER . . . as charged in Count I,” and 

“FELONY MURDER . . . as charged in Count I.” The court also 

provided the jurors with sets of verdict forms for second degree 

1 Statutory references are to the Penal Code.
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murder, involuntary manslaughter, attempted robbery, and 

several other lesser included offenses.

After deliberating for less than a day, the foreperson 

informed the court the jury was not able to reach verdicts on 

“the first [count] of felony murder” as well as the attempted 

robbery counts. The foreperson handed the verdict forms

to the court, noting he had “signed the forms of the verdicts 

that we all agree on, and we have left blank the ones that we 

have not agreed on.”

The court met with counsel in chambers and told them

the jurors “did not sign the felony murder verdict forms so that 

is what they are hung on. They did sign with respect to malice 

verdict, found him not guilty of first-degree murder, not guilty of 

second-degree murder, not guilty of involuntary manslaughter.” 

The prosecutor remarked that the verdicts made sense because 

the “lesser[ ] [offenses] were included under [the] malice murder” 

theory, not the felony murder theory. The court noted the jury 

could still convict Stafford under the felony murder theory. 

Defense counsel stated he needed to research the issue.

After returning to the courtroom, the court instructed 

the jury to continue its deliberations. Stafford then moved “for 

a mistrial on the felony murder theory,” which the prosecutor 

opposed. The court denied the motion.

About 45 minutes later, the jury indicated it had not 

made any progress. Stafford again moved for a mistrial. The 

prosecutor opposed the motion, arguing that the jury could still 

reach a verdict on the felony murder theory. The court denied

Stafford’s motion.

The court read the jurors CALCRIM No. 3551 and 

instructed them to continue their deliberations. Stafford made 
5

a third motion for mistrial, arguing it was clear the jury was 

deadlocked on felony murder. The court again denied the motion.

Sometime later, the jury sent the court a note asking 

whether it could find Stafford guilty of felony murder without 

finding him guilty of attempted robbery. The court responded 

that the jury must find Stafford guilty of attempted robbery 

to find him guilty of felony murder.

The jury returned to the courtroom a few minutes after 

receiving the court’s response. The foreperson informed the 

court the jury was at an “impasse and will not be able to reach

a unanimous decision.” The court told the jurors to continue 

deliberating the following day.

After the jurors left for the day, Stafford asked the court 

to record the not guilty verdicts and declare a mistrial. The court 

responded that it would record the verdicts the next day, and

the jury would continue to deliberate only on felony murder and

the attempted robbery counts. The court again denied Stafford’s 

mistrial motion.

After deliberating for several more hours the next day, 

the jury informed the court it still could not come to an 

agreement on the outstanding counts. The court asked the 

foreperson: “It was . . . one of the theories under Count I, and 

then Counts III and IV that the jury wasn’t able to decide on; 

is that right?” The foreperson responded, “Correct.”

The jury returned the verdict forms to the court. The

foreperson signed “not guilty” forms for “FIRST DEGREE 

MURDER . . . as charged in Count I,” “SECOND DEGREE 

MURDER . . . as charged in Count I,” and “INVOLUNTARY 

MANSLAUGHTER . . . a lesser included offense to Count I.” 

The foreperson also signed a “guilty” verdict form on count 2 
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(assault with a firearm), which found true the allegation that 

Stafford personally used a firearm. The foreperson did not 

sign any verdict forms for “FELONY MURDER . . . as charged 

in Count I” or the attempted robbery counts.

The court asked the foreperson for the vote split “with 

respect to Count I, the felony murder count,” as well as the 

attempted robbery counts. The foreperson responded that the

jury was split 11 to 1, with the majority of jurors voting to convict 

on all three counts.

After the clerk read the verdicts, the court remarked: 

“With respect to the other theory for Count I, which was felony 

murder, I will declare a mistrial with respect to that particular 

count since it’s clear to the Court that further deliberation 

would not assist the jury in reaching a verdict based on the 

representations of the foreperson.” The court also declared 

a mistrial on the attempted robbery counts. The court set

a hearing to reset the jury trial, and Stafford waived time.

3. The second trial

The People tried the murder and attempted robbery counts 

to a new jury in January 2020. After the parties rested, the court 

instructed the jury that the People charged Stafford with murder 

“under a theory of first degree felony murder.” It did not instruct 

the jury on any other theories of murder. 

The jury convicted Stafford of murder and two counts 

of attempted robbery. It also found true the allegations that

Stafford aided and abetted the murder while “engaged in the 

commission of the crime of attempted robbery,” and “personally 

and intentionally discharge[d] a firearm and proximately 

cause[d] great bodily injury to another person” during the 

offenses.
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The court sentenced Stafford to an aggregate term 

of five years plus 50 years to life consisting of the following: 

25 years to life for the murder (count 1), 25 years to life for 

the firearm enhancement on the murder count, the low term 

of two years for the assault (count 2), and the low term of 

three years for the firearm enhancement on the assault count. 

The court imposed two consecutive sentences of two years plus 

25 years to life on the attempted robbery counts (counts 3 & 4), 

which it stayed under section 654.

Stafford timely appealed.

DISCUSSION

1. Double jeopardy principles did not bar the People 

from retrying Stafford for murder

Stafford argues his conviction for murder violates the

double jeopardy clauses found in the federal and California 

constitutions. Specifically, he contends the jury in the first trial 

acquitted him of murder, which precluded the People from 

prosecuting him for murder in the second trial.

At the outset, we agree with the Attorney General that 

Stafford forfeited this issue by failing to raise it below. A 

defendant must affirmatively raise a claim of double jeopardy 

in the trial court to preserve the issue for appeal. (People v. 

Gurule (2002) 28 Cal.4th 557, 646.) Stafford did not enter a 

once-in-jeopardy plea2 or otherwise raise the double jeopardy 

issue in the trial court. As a result, he has forfeited the issue 

2 “In order to present a double jeopardy defense at trial, 

a defendant must first have entered a special plea of ‘former 

acquittal,’ ‘former conviction’ or ‘once in jeopardy.’ ” (People v. 

Bell (2015) 241 Cal.App.4th 315, 339; see §§ 1016, subds. (4), (5), 

1020.)
8

on appeal. Nevertheless, we will consider the merits of his 

arguments in order to forestall his derivative ineffective

assistance of counsel claim.

The double jeopardy clauses of the Fifth Amendment to 

the United States Constitution and article I, section 15, of the 

California Constitution provide that no person may be tried 

more than once for the same offense. (People v. Aranda (2019) 

6 Cal.5th 1077, 1083 (Aranda).) The double jeopardy clauses

protect against “ ‘a second prosecution for the same offense 

following an acquittal or conviction . . . .’ ” (People v. Anderson

(2009) 47 Cal.4th 92, 103–104.) The double jeopardy clauses

generally do not preclude the People from retrying a defendant 

if the jury fails to agree on a verdict and the court declares 

a mistrial. (Aranda, at p. 1083.) 

Stafford limits his double jeopardy arguments to the 

murder charge. Murder is the “unlawful killing of a human 

being, or a fetus, with malice aforethought.” (§ 187, subd. (a).) 

Malice may be either express or implied. (§ 188, subd. (a).) 

“Malice is express when there is manifested a deliberate 

intention to unlawfully take away the life of a fellow creature.” 

(§ 188, subd. (a)(1).) Alternatively, a defendant may be guilty 

of murder under the felony murder rule, which “generally

acts as a substitute for the mental state ordinarily required 

for the offense of murder.” (People v. Patterson (1989) 49 Cal.3d 

615, 626, italics omitted.) The felony murder rule “makes a 

killing while committing certain felonies murder without the 

necessity of further examining the defendant’s mental state.” 

(People v. Chun (2009) 45 Cal.4th 1172, 1182.) 

The People charged Stafford with a single count of murder, 

but presented alternative theories to the jury in the first trial. 
9

Under one theory—the malice theory—the People posited that 

Stafford was guilty of murder because he killed Villavicencio

with express malice. Under the other theory—the felony murder 

theory—the People posited that Stafford was guilty of murder 

because Villavicencio was killed while Stafford was attempting 

to rob him.

As Stafford correctly points out, malice murder and

felony murder are not separate crimes; instead, they are simply 

different ways of proving the single offense of murder. (People 

v. Nakahara (2003) 30 Cal.4th 705, 712.) As a result, in order

to acquit Stafford of murder, the jury in the first trial had to 

find him not guilty under both of the prosecution’s theories. 

The jury found Stafford did not commit express malice murder, 

but it was unable to reach a unanimous decision as to whether 

he committed murder under a felony murder theory. The jury, 

therefore, did not acquit Stafford of murder, and the prosecution

was not barred from retrying him under the felony murder 

theory. (See Aranda, supra, 6 Cal.5th at p. 1083.) 

Stafford’s arguments to the contrary are premised on a 

misreading of the verdict forms in the first trial. The trial court 

gave the jury two sets of verdict forms for the murder charge: 

one set for the express malice theory, and one set for the felony 

murder theory. Hybrid verdict forms of this sort are permissible. 

(See People v. Neely (1993) 6 Cal.4th 877, 898.) Unfortunately, 

the verdict forms were not worded as precisely as they should 

have been. Unlike the felony murder forms, the malice theory 

forms did not explicitly state they were limited to a single 

theory of murder; instead, they referred to the crime of murder

generally, without qualification.
10

Stafford maintains that by signing the not guilty verdict 

form related to the malice theory—which states the jury found

him not guilty of “MURDER . . . as charged in Count I”—the jury 

in the first trial acquitted him of the crime of murder. If we were 

to view this particular verdict form in isolation, we might agree. 

Viewed in the context of the entire record, however, it is readily 

apparent the jury did not intend to acquit Stafford of murder.

“The touchstone of a jury verdict of acquittal is the jury’s 

manifestation of a definite and final intent to acquit of the 

offense.” (Bigelow v. Superior Court (1989) 208 Cal.App.3d 1127, 

1134, accord Aranda, supra, 6 Cal.5th at p. 1093.) The jury 

must unequivocally indicate an intent to acquit to preclude the

prosecution from retrying the defendant on the same charge. 

(People v. Brown (2016) 247 Cal.App.4th 211, 234.)

The jury did no such thing here. To the contrary, the 

foreperson repeatedly informed the court the jury could not 

reach a unanimous decision as to whether Stafford was guilty 

of murder under a felony murder theory. Consistent with those 

representations, the jury did not complete any of the verdict 

forms related to the felony murder theory. Moreover, at 

Stafford’s request, the court declared a mistrial “[w]ith respect 

to the [felony murder] theory for Count I,” which would have 

been unnecessary and nonsensical had the jury acquitted 

Stafford of murder. On this record, there is no doubt the jury 

did not intend to acquit Stafford of the crime of murder, despite 

the imprecise language in the malice murder verdict forms. 

Indeed, even Stafford seemed to recognize this fact, as he did 

not enter a once-in-jeopardy plea, object to the second trial, or 

claim the jury acquitted him of murder at any point prior to 

this appeal.
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Stafford suggests that, whenever a jury unanimously 

rejects a theory of murder, it acts as a complete acquittal, even 

if the prosecutor presented multiple theories of the offense.

He contends it would be fundamentally unfair to require jurors 

to reject unanimously all theories of murder in order to acquit, 

given jurors need not agree unanimously on a single theory

in order to convict. We are not persuaded. In both situations—

conviction and acquittal—the jurors must agree unanimously

on the core question submitted to them: did the defendant 

commit murder. So long as at least one juror answers yes 

to that question under a valid theory, the jury has not acquitted

the defendant of the offense.

Stafford also suggests his retrial was improper because 

a prosecutor cannot evade double jeopardy by retrying the 

defendant under a new theory following an acquittal. While 

we generally agree, that is not what happened here. Instead,

the People retried Stafford under one of the theories presented 

to the jury in the first trial—felony murder. The second trial,

therefore, was a continuation of the original prosecution, 

rather than an entirely new one. The double jeopardy clauses 

do not apply in this situation. (See Yeager v. U.S. (2009) 557 

U.S. 110, 118 [retrial following a mistrial due to a hung jury is

a continuation of the initial jeopardy and therefore not barred];

People v. Williams (1987) 195 Cal.App.3d 398, 408, fn. 4 [“a 

mistrial results in a mere continuation of the jeopardy, thus 

prohibiting the invocation of that clause by a defendant”]; In re 

Dale S. (1970) 10 Cal.App.3d 952, 956 [double jeopardy principles 

do not apply where a second proceeding is a continuation of 

the original proceeding].)
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2. Stafford did not receive ineffective assistance

of counsel

Stafford argues his trial counsel was constitutionally 

ineffective in failing to advise him to enter a once-in-jeopardy 

plea.

Under either the federal or state Constitution, the 

“benchmark for judging any claim of ineffectiveness must be 

whether counsel’s conduct so undermined the proper functioning 

of the adversarial process that the [proceedings] cannot be relied 

on as having produced a just result.” (Strickland v. Washington

(1984) 466 U.S. 668, 686.) To establish a claim for ineffective 

assistance of counsel, a defendant must prove by a preponderance 

of the evidence (1) that his lawyer’s performance was deficient 

because it fell below an objective standard of reasonableness 

in all the circumstances; and (2) that absent those errors, 

a different outcome was reasonably probable, meaning a 

probability sufficient to undermine confidence in the outcome.

(People v. Cunningham (2001) 25 Cal.4th 926, 1030.)

Stafford has not shown his lawyer’s performance was 

deficient or that he suffered prejudice. As we discussed above,

double jeopardy principles did not bar the People from retrying 

Stafford for murder. Defense counsel, therefore, was not required 

to advise Stafford to enter a once-in-jeopardy plea, which would 

have been futile. For the same reasons, Stafford has not shown 

he suffered prejudice. Accordingly, his ineffective assistance 

of counsel claim lacks merit. 
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DISPOSITION

We affirm the judgment.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

EGERTON, J.

We concur:

LAVIN, Acting P. J.

RICHARDSON (ANNE K.), J.



 Judge of the Los Angeles County Superior Court, assigned 

by the Chief Justice pursuant to article VI, section 6 of the 

California Constitution.