Can RPI be retried for first degree murder?

Unless Marks contemplated the possibility of a first degree murder retrial its section 1157 guidance "that a jury must explicitly specify in its verdict the degree of the crime for which it convicts the defendant" (ibid.) is meaningless surplusage, an interpretation we decline to make. Moreover, absent from this section 1157 guidance is any hint that the guilty murder verdict, which failed to specify degree, has any post-reversal significance. If that verdict was not a nullity then the issue raised but not decided by People v. McDonald (1984) 37 Cal.3d 351, 383, fn. 31, 208 Cal.Rptr. 236, 690 P.2d 709 [whether RPI could be retried for first degree [234 Cal.App.3d 491] murder] would have been ripe for trial court guidance, if not for decision. Marks ' silence evidences the nullity of the verdict.

For these reasons we conclude that People v. Marks decided the trial court was without jurisdiction to try RPI, that the judgment of conviction was void, that RPI was not placed in jeopardy, and RPI was not acquitted of first degree murder nor relieved of special circumstances liability.