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

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinio n has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE

,
Plaintiff and Respondent,

v.

ISAIAH JAM ES STAFFORD

,

D efe nda nt and Appellant. B322534

Stanislaus County Super. C t. No. 1466458

- 02

APPEAL from a judgment of the Superior Court of
Stanislaus County. Ricardo Cardova , Judge

. Affirmed.

Deborah L. Hawkins , un der appointment b y the Court of Appeal

, for De f

enda nt and Appellant

.

Rob Bont a , 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, f or P l aintiff
and R e s pond en t

.

_________________________2 The People charged Isaiah James Stafford with murder

, assault , and attempted robbery

. A jur y con victed Stafford
of assault, found he did not commit murder under an express malice theory

, and was un a b le to agree unanimo us l y whe ther
he committed attempted robbery and murder under a felony murder theory. Stafford repeatedly moved for a mistrial, which
the court eventually granted. T h e People retried the case under
the felon y murder theory , and the sec o nd jur y convicted S t a fford of first degree m urder and attempted robbery

. On appeal, Stafford contends double jeopardy principles barred the P eo ple from ret ry ing the murder charge

. H e also argues he received
ineffective assistance of counsel. We affirm. FACT S AN D PROCEDU RA L BACKGROUND

1

. Background Because the facts of the underlying offenses are not relevant to this appeal, we summarize them only briefly.
On t he afternoon of December 11, 2013, Luisa Riley went

to a restaurant to meet up with Staffor d , wh om she was da t i ng

. 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 lo t

. Stafford repli e d h e was going to buy “weed” and “do a come u p,” which Riley understoo d to mean he was going to steal something. Stafford had a gun. Lamarr Oldham, whom Stafford claimed was his cousin, was standing by hims e lf next to a nearby d um pster. Roy Randall a nd Damien Villavicencio drove up in a

car and par ked near where Riley and Stafford were standing. Stafford got into the backseat of the car. He left the door open
and ha d his feet outsid e th e car.3 Stafford asked the men to show him the “weed.” One of the men responded by asking Stafford t o show him th e money. Oldham slowly moved toward the car from a crouched position

, and Rand a ll and Villa vicenci o lo oked in his direction

. Randall

t ried to drive away

, but he crashed into a curb. Stafford star t ed shooting his gun, and Riley heard three

gu nshots coming from his direction. O ldham, who was n o w right beside Riley, started firing his gun at the ca r as well

. Stafford, Oldham, and Riley ran to Oldham’s apartment, which was in a nearby complex. Police arrested them later
that evening.
Ra n d al l su ffered a guns hot 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 ( P en. Code, § 187, subd. ( a) ; count 1), 1 a s sault with a firearm on Rand a ll (§ 245, su bd. (a)(2); count 2)

, and

two counts of attem pted robbery (§§ 211, 664; counts 3, 4)

. The P eople also alleged various firearm enhancements.
2

. The first trial The People tried th e c ase to a j ury in 2019

. At the close of evidence, the court i nstructed 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 requi r em ents . . . .”
The court gave the jury separate sets of verdict forms for
“F IRST DEGREE M URDER . . . as charged in Count I,” and “FELONY MURDER . . . as charged in Count I.” The court also provided the jurors with sets of v erdict forms for s e co n d degree

1 Statutory references are to t he Pe n al Code.4

mur de r , inv oluntary manslaughter , attempted robbery, and
several other lesser included off enses

. After deliberati ng for less than a day , the foreperson informed the court the jury was not able to reach verdicts on
“the f i r s t [count] of fe lony m urder” 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
hav e n o t 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 w hat they are hung on. They did sign with r espect to malice verdict, found him not guilty of fir st

- de gree murder, no t gu il ty of
second

- degree murder, not guilty of involuntary manslaughter.” The prosecutor remarked that the verdicts made sens e because
the “lesser [ ] [offenses] were include d under [the] malice murder” theory, not the felony m ur d er theory. The court noted the jury could still convict Stafford under the felony murder theory. Defense counsel stated he needed to research the issu e. After retu rning to the courtroom, the court instructed
the j u ry to continue it s deli b er ations. Stafford then moved “for

a mistrial on the felony murder theory

, ” which the prosecutor opposed. The court denied the motion. Abou t 45 minutes later, the ju ry indicated it had not
mad e a ny progress. S tafford 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 co u rt read the juro rs CALC R IM No . 3551 and
instructed them to continue their deliberations. Stafford made5

a third motion for mistrial, arguing it was clear the jury was deadlocked on fel ony murder. The court again denied the moti o n. Som etim e l ater, the jury sent the court a note askin g whether it could find Stafford guilty of felony murder without finding him guilty of attempted robbery. The court resp onded that the jury must find Stafford guilty of attemp t ed robbery

to find him g ui lty of felony murder. The jury returned to the court room a few minutes after receiving the court’s response. The foreperson informed the

court t he jury was at an “impasse and will not be able to reac h

a unanimous decisi on.” The court told the jurors to continue deliberating the following day. After the j urors left for the day, Stafford asked the court

to record the not gui lty verdicts and declare a mistrial. T h e court responded t hat i t would record the verdicts the next day , and
the jury would continue to deliberate only on felony murder and the attempte d robbery counts. The court again den ied Stafford’s
mistrial motion. After deli b er ating for several mor e h ours the next day

, the jury informe d 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
the n Counts I II and IV that the jury wa sn’t able to decide on;
is that rig ht?” The foreperson responded, “Correct.” The jury returned the verdict forms to the court. The foreperson signed “not guilty ” forms for “FIRST DEGREE
MURDER . . . as char ged in Co u nt I,” “SECOND DEGREE
M U RD ER . . . as charged in Count I,” an d “INVOLUNTARY
MANSLAUGHTER . . . a lesser included offen s e to Count I.”
The foreperson also signed a “ guilty ” verdict form on count 26

(assa ult with a fire ar m), which found true the allegati on that S t af ford personally used a f irearm. The foreperson did not sign any verdict forms for “FELONY MURDER . . . as charged
in Count I” or th e attempted robbery counts

. The court asked the f

oreperson for the vote split “ wi th respect to Count I

, t he 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 t h e cl erk read the verdicts , t he court remarked: “With respect to the other theory for Co unt I, which was felony murder, I will declare a mistrial with respect to that particular
count si nce it’s clear to the Court that further deliberation

w o ul d not assis t the jury in reac hing a verd ic t 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 Staff ord waived ti me. 3

. T h e se cond trial
The Peopl e tried the mu rder and attemp te d robbery counts to a new jury in January 2020. After the parties rest ed

, the court instructed the jury that the People charged Stafford with murder “under a t h eo ry of first degree fe l ony murder.” It did not i nstruct the ju r y on any othe r theories of m ur de r. The jury convicted Stafford of murder and two counts
of attempted robbery

. It also found true the allegati ons that Stafford a id ed and abetted the mu r der while “engaged in the
commission of the crime of attempted robb e ry,” and “per sonally

an d int en tionally discharge[d] a firearm and proximately cause[d] great bodily injury t o another person” during the
offenses

.7 The co urt sentenced Staffor d to an aggregate term of five years p lus 50 years to life consisting of the foll o wing:
25 yea rs to life for th e murder (count 1), 25 years to life for
the firearm enhancement on the murder count

, the low term
of two years for the a ss ault (count 2) , and t h e l ow term of
three years for the fir earm enhancement on the assault count

. The court imposed two consecutiv e sentences of two years plus
25 years to life on the at tempted robbery counts ( counts 3 & 4 )

, which it stayed u nd er section 654. Stafford timely appealed.

DI SCU S SIO N

1

. Double jeopardy principles did not bar the People from re t rying Staffor d for murder
St af ford argues his conviction f or murder violates the double jeopardy clauses found in th e federal and Califor n ia

c onstitutions. Specifically, he c ontends the jury in the first trial acquitted him of murder, which precluded the People from

p rosecuti ng him fo r murder in the second trial

. At the outset, w e a gree wi th the Attorney Gener a l th at Stafford forfeited this issue by failing to raise it below

. A defendant must affirmatively raise a claim of double jeopardy
in the trial co u rt to preserv e the issue for a ppeal. ( People v.
Gurule (2002) 28 Cal.4th 5 57
, 646. ) Stafford did not enter a

once

- in

- jeopardy plea 2 or otherwis e raise the double jeopardy issue in the trial court. As a result, he has forfeited the issue

2 “ In order to pre s ent a double jeopardy defense at trial,

a defendant must first have entered a special plea o f ‘former acquittal,’ ‘former conviction’ or ‘ on ce in je opardy.’ ” ( People v. Bell ( 2015) 241 Cal.A pp .4th 315, 339 ; see §§ 1016, su bd s

. ( 4), (5),
1 020 .)8

on appeal. Ne v ertheless, we will c onsider th e merits of his arguments in order to foresta l l h is derivative ineffe c tive
assistance of counsel claim.
T he double jeopardy clauses of the Fifth Amendment to
the United States Constitution and article I, section 15, of the
Ca l ifornia Const itution provide t hat no person may be tried

more than once for th e same offense. ( Peo p le v . Aranda (2019)
6 Cal.5th 1077, 1083 ( Aranda ) .) T he double jeopardy clause s protect against “ ‘ a second prosecution for the same offense following an a cquittal or c onviction

. . . . ’ ” ( People v. Anderson (2009) 47 Cal.4th 92, 103

– 104.) T he d ouble jeo pard y cl auses generally do not preclude t he People fro m retrying a defendant
if the jury fails to agree on a verdict and the court declares

a mistrial. (

Aranda, at p. 1083.) Staff or d limits his double jeopardy argument s to the
murder c ha r ge

. Murder is the “unl awful killing of a human being, or a fetus, wi th malice aforethought.” (§ 187, subd. (a).) Malice may be either express or implied. (§ 188, su b d. (a).) “Ma lice is express w h en there is mani fested a deliberate intention to unlawf

u ll y take away t he l ife 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 sub stitute for the m e ntal state ordin arily required for the offense of murde r .” ( People v. Patt erso n (1989) 49 Cal.3d 615, 626 , italics omitted .) The felony murd er rule “makes a killing while committing certain felonies murder without the

nece s sity of furth er examining th e defendant ’ s mental state.” ( Peopl e v. Chun (2009) 45 Cal.4th 1172, 1182. )
T he People c harg ed S tafford with a single count of m urder,
but pr esented alternative theories to the jury in the first trial.9

Under one theory

— the m alice theory

— the People posi te d that Stafford wa s guilty of murder because he killed Vill avicencio
with ex press malice

. Un der the other theory

— the felony murder theory

— t he People posited that Stafford was guilty of murder
because Villavicencio was killed w hile Staffor d was attemptin g
t o rob him

. As Stafford correctly points out, ma li ce murder and fel ony murder are not separate crimes ; instead, th ey are simply
diff erent ways of proving the single offense of murder. ( People

v. Nakahara (2003) 30 Cal.4th 70 5 , 712.) As a result

, in ord er
to acquit Stafford of murder, the jury in the first trial had to f in d him not guilty under both of the prosecution ’ s theories.
The jury found Stafford did not commit express ma lice murder,
but it was unable to reach a unani m ous decision as to whe ther
h e committed murder under a felony murder theory. T he ju ry, there fore

, di d not acquit Stafford of murder, and the prosecut ion

was not barred from retrying him under the f elon y murder theory

. (See Aranda

, supra , 6 Cal.5th at p. 1083.) Staf ford’s argument s to the contrary are premise d on a misreading of the verdict for ms i n t he first trial. T he trial court

gave the jury two set s of verdict forms for the murder char ge : one set for the express malice theory, and one set for the felony
murde r theory. H ybri d verdict forms of this sort are permissible. (See People v. Nee ly ( 1 993) 6 Cal.4th 877, 898 .) Unfortunately,
the ve rdict fo rms were not worded as precisely as t hey should
have been

. Unlike the felony murder forms , t he malic e theo ry form s did not explic it ly state they were limited to a single theory of murder; inste a d, t h ey r eferred to the crime of murder generally, without qua lification

.10 S tafford m aintains that b y sig ning the not guilty verdict form related to the mal ice the o ry

— which stat es the jury fou nd
him not guilty of “ MURDER . . . as charged in Coun t I ”

— the jury
in the first trial acquitted him of th e crime of murder

. If we were
to view this particular verdict form in isolation, we might agree. V iewed in the context o f the entire r ecord, however

, i t is readily apparent the jury did no t in t end to acquit Stafford of murder.

“ T he touchstone of a jur y verdict of acquittal is the jury ’ s

m anifestation of a definite and final intent to acquit of the offense.” (

B igelow v. Sup e rior Court (1 989) 208 Cal.Ap p. 3 d 1127, 1134, accord Aranda

, supra , 6 Ca l.5th at p. 1093 .) The jury

must unequivocal ly in dicate an intent to acquit to preclude the prosecution from retrying the de fendant on the s ame charge. ( People v. Brown (2016) 247 Ca l .App.4th 211, 234 .) The jury d id no such thing here. To the co ntr a ry, t he foreperson repeatedly informed the court the j ury could not
reach a unanimous decision as to whether Stafford was guilty
of murder under a felony murder theory

. Consistent with th o se
rep resenta tions , the jury d id not complete any of the verdic t f o rm s related to the felony murder theory. Moreover, a t Stafford’s request

, the court declared a mistrial “[w] ith respect
to the [ felony murder ] theory for Count I,” which would have
been u n necessary and nonsensic al ha d the jury acquitte d S t affo r d of murder. On this record, the re is no doubt the jury
did not intend to acquit Stafford of the crime of murder , despite
the im precise language in the malice murder verdict forms.
Indee d

, even Sta f

for d seemed t o recognize thi s fact

, as h e di d

not enter a once

- in

- jeopardy plea

, object t o the second trial

, or claim the jury acquitted him of murder at any point prior to this appeal.11 Stafford sugge sts that

, whenever a jur y u nanimously rejects a theory o f murder, it acts as a compl e te acqui tta l, e ven if the prosecutor presented multiple theor ies o f the offense.
He contends it would be fundamentally u nfair to r equire juror s
to reject unanimously all theories of murder in order to acquit, given juror s nee d not agre e un animously on a s i ngle theory
in order to convict. We are not persuaded

. In both situations

— conviction and acquittal

— the jurors mus t agree unanimously

on the core question submitted to them : did the defendant
commit murder. So long as at l e ast one juror an swer s yes
to that question under a valid theory

, t he jury has not acquitted
the defendant of the offense. Stafford also suggest s his retria l was improper because

a p rosecut or cannot evade double jeopardy by re trying the
d efendant under a new theory fo llo wing an acqu i ttal

. While

we generally a gree, that is not what happened here. Instead

, the People retried Stafford und er one of the theor ies presented

to t he jury in the first trial

— felony murder

. The second trial, therefore , was a conti n uat ion of the original prose c ution,
rather than a n entir ely new one. The double jeopardy clauses
do no t apply in this situation

. (See Yeager v. U.S. (2009) 557
U.S. 11 0, 118 [retrial following a mistrial due to a hung jury is

a continuation of the initi a l jeopardy an d 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 [dou ble jeopardy pr i nciples do not apply where a second proceeding is a continuation of
the origina l proceeding]. )12

2

. Stafford did not receive ineffective assistance of counsel Stafford argues his trial counsel was constitutionally ineffecti ve i n f

ailing to a dvis e him to en t er a once

- in

- jeopar dy plea. Under either the federa l or state Constitution, the
“be nchmark for judging any claim of inef fectiveness must be whether counsel’s conduct so undermined the proper functioning
of t he adve rsarial proc e ss that the [ proceedings ] ca n not be relied on as having produced a just result.” ( Strickland v. Washington (198 4) 466 U.S. 668, 686.) To establis h a claim for ineffective assistance of counsel, a defendant must prove by a preponderanc e

o f th e evidence ( 1 ) that h is la wyer’s pe rforma n ce w as deficient because it fell below an objecti ve standard of reasonableness
in a ll the circumstances; and (2) that absent those errors,

a different outcome was reasonably probable, meaning a probability s uff

icie nt to underm i ne confidence in the o utcome

. ( P eople v. Cunningham (2001) 25 Cal.4th 926, 10 30.) Stafford has not shown h is la wyer’s performance was
deficient o r that he suffered prejudice . As we discussed above

, double jeopardy principles did not b ar the People from r e t rying Staff ord for murder. Def

ense c ounsel , therefore, was not required

to advise Stafford to enter a once

- in

- jeopardy plea, which would have been futi le

. For the same reasons, Stafford has not shown he suffered prejudice. Accordin gly , hi s ineffectiv e a ssistance

o f counsel claim lack s merit.13 DISPOSITIO N
We affirm the ju dgment

.

N O T TO B E PUBLISHED IN T HE OFFICIAL REPORTS

EGERTON, J.

We con cur:

LAVIN

, A cting P. J.

RICHARDSON (

ANNE K. )

, J

. 

 Judge o f the Los Angeles County Superior Court , assigned by the Chief Justice pursuant t o article V I, section 6 of the Calif ornia Constitution

.