I respectfully dissent. The majority’s prospective rule requires trial courts “to afford the jury an opportunity to render a partial verdict of acquittal on a greater offense when the jury is deadlocked only on an uncharged lesser included offense.” (Ante, p. 518.) In the absence of such an opportunity, “a subsequently declared mistrial [will be deemed] to be without legal necessity.” (Ibid.) The majority then applies this newly fashioned rule to the instant case and forbids retrial of this defendant on the charge of murder.
The error in the majority’s reasoning is that the jury here did not enter a partial verdict nor, at the time of the trial, was the court required to afford the jury an opportunity to do so. Our own opinion in People v. Griffin (1967) 66 Cal.2d 459 [58 Cal.Rptr. 107, 426 P.2d 507], is very instructive. In Griffin, we rejected the defendant’s assertion that a retrial for first degree murder violated double jeopardy where, in the earlier trial, after the jury had been discharged, the foreman disclosed in open court that the jury stood at 10 for acquittal and 2 for second degree murder. We stated that “We may not infer from the foreman’s statement that the jury had unanimously agreed to acquit of first degree murder. There is no reliable basis in fact for such an implication, for the jurors had not completed their deliberations and those voting for second degree murder may have been temporarily compromising in an effort to reach unanimity.” (66 Cal.2d at p. 464.) Similarly, here the jurors were never put to the test and required actually to enter a judgment on the greater offense. The record discloses that at the time the jury first claimed that it was deadlocked, it stood as follows:
First degree murder No votes
Second degree murder. No votes
Voluntary manslaughter Four votes
Involuntary manslaughter Two votes
Justifiable homicide Six votes
Acquittal No votes
After the jury returned for further deliberations and again concluded that it could not reach a verdict, the jury foreman stated that the jurors then stood: “Three voluntary [manslaughter], five involuntary [manslaughter], four justifiable [homicide].”
*524Thus between the first and second declarations of deadlock, at least three jurors had changed their votes. This clearly indicates to me that this jury was engaged in continuing negotiation and compromise. Those favoring voluntary manslaughter dropped. Those favoring involuntary manslaughter increased substantially, and those favoring justifiable homicide dropped. This was a jury which, to use a trial lawyer’s term, was “in movement.” It had not settled into firm, fixed, immovable positions under these circumstances.
As in Griffin, we do not know whether the reported votes represented a “temporary compromise” reached by any particular juror in an attempt to reach a unanimous verdict. The jurors were never instructed that their failure to reach unanimity on a lesser verdict would mean an acquittal on a greater offense. Nor were they ever required actually to reach and report a final verdict on the greater offenses. This fact readily distinguishes this case from those in which federal juries are instructed to the effect that “if the jury should unanimously find the accused ‘Not Guilty’ of the prime charged in the indictment . . . then the jury must proceed to determine the guilt or innocence of the accused as to any lesser offense which is necessarily included in the crime charged.” (Devitt & Blackmar, Federal Jury Practice and Instructions (3d ed. 1977) § 18.05, italics added.) A form of this instruction was approved in United States v. Tsanas (2d Cir. 1978) 572 F.2d 340, 344-347 (cert. den. 435 U.S. 995 [56 L.Ed.2d 84, 98 S.Ct. 1647]).
The votes reported by the foreman here merely demonstrated, at a particular time, the closest that the jury could come to a unanimous verdict. They were flash pictures taken of jury negotiations at particular moments in their deliberations. The votes did not reveal what the jurors would have done if they had been required actually to vote on each possible offense as a separate matter. Most certainly, the reported, votes did not show that the jurors had unanimously reached a verdict on the greater offenses as would be the case under the standard federal instructions above described.
Nor does Green v. United States (1957) 355 U.S. 184 [2 L.Ed.2d 199, 78 S.Ct. 221, 61 A.L.R.2d 1119], cited by the majority (ante, p. 515) compel a different conclusion. In Green, the jurors had reached unanimity on the lesser included offense, thus leaving no room for speculation on their finding on the greater offense. Indeed, if the federal instruction cited above had been given, the Green jurors’ verdict on the lesser offense clearly demonstrated that they had unanimously reached *525a verdict of “not guilty” on the greater offense. Once a jury has reached unanimity as to one offense, it has implicitly or explicitly rejected the possible alternative verdicts. Here, however, no such final unanimous verdict was reached. The votes thus could not be said to be a final product of the jurors’ deliberation.
Moreover, in my view, if California is now to adopt a “partial” verdict policy in criminal cases it should be accomplished by legislative enactment as has been done by New York (ante, p. 512), rather than by judicial construction in a case in which no final verdict had been reached.
Under the circumstances, I cannot conclude that the jury here had “completed its deliberations . ..." (Ante, p. 519.) I therefore would deny the writ and permit retrial of defendant on the charge of murder.