Cardenas v. Superior Court In and For Los Angeles County

• Decision Date: 20 July 1961
• Court: California Supreme Court
• Parties: , 363 P.2d 889, 100 A.L.R.2d 371 Fidel Carrillo CARDENAS, Petitioner, v. SUPERIOR COURT of the State of California, IN AND FOR the COUNTY OF LOS ANGELES, Respondent; The People of the State of California, Real Party in Interest. L.A. 26406.

Page 657

14 Cal.Rptr. 657

56 Cal.2d 273, 363 P.2d 889, 100 A.L.R.2d 371

Fidel Carrillo CARDENAS, Petitioner, v. SUPERIOR COURT of the State of California, IN AND FOR the COUNTY OF LOS ANGELES, Respondent; The People of the State of California, Real Party in Interest.

L.A. 26406.

Supreme Court of California, In Bank.

July 20, 1961.

As Modified Aug. 16, 1961.

David C. Marcus, Los Angeles, for petitioner.

No appearance for respondent.

William B. McKesson, Dist. Atty., Harry Wood and Robert J. Lord, Deputy Dist. Attys., Los Angeles, for real party in interest.

DOOLING, Justice.

Petitioner seeks a writ of prohibition to prohibit any further proceedings upon an information charging him with the crime of possessing narcotics. The record shows the following facts:

Petitioner was arrested and charged by information with possessing heroin and marijuana in violation of Health and Safety Code, § 11500. He was arraigned, and the matter came to trial on April 25, 1961. A jury was impaneled, and a number of witnesses testified for the prosecution and underwent defense counsel's cross-examination. Petitioner took the stand and testified in his own behalf. Upon cross-examination by the prosecutor, petitioner was asked a question which caused defense counsel to object and to move for a mistrial. The prosecutor joined in the motion. There ensued a dispute between defense counsel and the prosecutor as to the procedural effect of the prosecutor's having joined in the motion for a mistrial, the trial court indicating that the turn taken by the proceedings 'is all right with me.' Defense counsel then requested that his motion be withdrawn, and the prosecutor asked the court to rule on the motions as they stood. The trial judge called both attorneys into chambers, where proceedings which do not appear in the record took place. When the proceedings resumed in the courtroom, defense counsel again requested that his motion for a mistrial be withdrawn. The request was denied. The motion for a mistrial was thereupon granted. Defense counsel then moved that any further proceedings against petitioner be dismissed on the ground that he had now been once placed in jeopardy. This motion was denied and a date for resetting the trial was scheduled. When defendant and his counsel appeared for resetting, defendant entered a plea of once in jeopardy based upon the discharge of the jury at the prior trial without his or his counsel's consent. We are satisfied that under the facts shown by the record the plea of once in jeopardy is good and the writ sought by petitioner should issue. It is settled that where a plea of once in jeopardy is good a writ of prohibition may issue to prevent the unnecessary expense and delay attendant upon a futile trial and appeal. Jackson v. Superior Court, 10 Cal.2d 350, 352-353, 74 P.2d 243, 113 A.L.R. 1422. Once the jury 'has been impaneled and sworn jeopardy attaches, and a dismissal of the case, when not authorized by law and without the consent of the defendant, after the jury has been sworn and the trial actually commenced is equivalent to an acquittal of the charge and will constitute former jeopardy on a subsequent trial on the same charge.' Jackson v. Superior Court, supra, 10 Cal.2d at page 356, 74 P.2d at page 247.

Our attention has been called to Gori v. United States, 81 S.Ct. 1523, wherein a bare majority of the United States Supreme Court held that the granting of a mistrial on the court's own motion without the defendant's consent, but for the defendant's benefit, does not as a matter of law place the defendant in jeopardy under the Fifth Amendment to the United States Constitution. This holding does not accord with the uniform construction placed by this court upon the jeopardy provision of the California Constitution contained in article I, section 13. Jackson v. Superior Court, supra; People v. Hunckeler, 48 Cal. 331, 334; People v. Webb, 38 Cal. 467, 477-478. As stated in Jackson, 10 Cal.2d at page 357, 74 P.2d at page 247: Once the jury is charged with the defendant's deliverance '(h)is jeopardy is real and he cannot be again subjected to jeopardy unless the jury be discharged without rendering a verdict, by his consent, or upon some legal necessity resulting from physical causes beyond the control of the court.' (Emphasis added.)

The defendant's motion for a mistrial, where it is granted by the court, operates as a waiver of the claim of once in jeopardy. People v. Mills, 148 Cal.App.2d 392, 395, 306 P.2d 1005. The narrow question presented by this record is whether a defendant, after he has made a motion for a mistrial and before the court has acted upon it, may effectively withdraw his motion. We are satisfied that he ...