Curry v. Superior Court

• Decision Date: 19 June 1970
• Docket Number: S.F. 22738
• Parties: , 470 P.2d 345 Clinton CURRY et al., Petitioners, v. The SUPERIOR COURT OF the CITY AND COUNTY OF SAN FRANCISCO, Respondent; The PEOPLE, Real Party in Interest.
• Court: California Supreme Court

Page 361

87 Cal.Rptr. 361

2 Cal.3d 707, 470 P.2d 345

Clinton CURRY et al., Petitioners, v. The SUPERIOR COURT OF the CITY AND COUNTY OF SAN FRANCISCO, Respondent The PEOPLE, Real Party in Interest.

S.F. 22738.

Supreme Court of California In Bank.

June 19, 1970.

Marvin Friedman, San Francisco, under appointment by Supreme Court, Edward T. Mancuso, Public Defender, and Charles G. Warner, Deputy Public Defender, for petitioners.

Thomas C. Lynch, Atty. Gen., Albert W. Harris, Jr., Asst. Atty. Gen., and Michael J. Phelan, Deputy Atty. Gen., for respondent and real party in interest.

MOSK, Justice.

By this proceeding in prohibition petitioners Clinton Curry and Lionel Pete McCoy seek to prevent their trial on a charge of murder, contending they have been once in jeopardy for this offense. We conclude that the plea is justified and the relief prayed for should be granted.

Petitioners were brought to trial on an indictment charging them with the murder of Jimmy Carney. A jury was duly sworn, and several witnesses for the prosecution were examined. On the afternoon of the second day of trial, the prosecution called Christine Patterson to the witness stand. On direct examination, Miss Patterson testified that at 8 p.m. on the day of the shooting she went out for a walk. Carney, whom she had known about a year, called to her to stop and fired a gun twice into the air to attract her attention. He put the gun in his pocket, and the two walked on together. In due course they stopped at a service station while Carney made a telephone call. A car drove up, and petitioners Curry and McCoy got out. Curry accused Carney of 'cussing out his mother,' and an altercation ensued. Miss Patterson testified that McCoy handed Curry a gun; that some blows were struck, and Carney started to run; that McCoy shouted, 'Shoot him,' and Curry fired once, the bullet striking Carney in the head.

Miss Patterson, a teenager, as were the other participants in this tragedy, underwent a vigorous cross-examination. She was the sole eyewitness to the shooting, and the defense made a major issue of her ability to identify the alleged murder weapon. She testified she could not describe the weapon, knew nothing about guns, and had never had a gun in her possession. Yet when defense counsel asked her if she had ever fired a gun, she answered in the affirmative. She testified she had talked with one Louis Lee about this case, and had fired a gun at him when he refused to leave her house. Counsel then asked her if she had ever been under psychiatric care, and she replied that she had. She also acknowledged that shortly after the shooting of Carney she attempted suicide by an overdose of sleeping pills. The prosecutor voiced no objection to any of the foregoing testimony.

On the third day of trial the prosecutor took Miss Patterson on redirect examination and inquired into her motive in firing a shot at Louis Lee. She testified that she did so because he threatened 'to have some of Pete and Clinton's (i.e., petitioners') friends shoot me.' Defense counsel then requested that the jury be instructed that such statements made by a third party 'cannot be attributed' to petitioners, and the court asked for argument on the point.

In chambers outside the presence of the jury, counsel reiterated, 'Your Honor, I think the alleged threats made by this Louis Lee in which the names of the defendants have been mentioned can be extremely prejudicial to the defendants unless the jury is cautioned.' The court replied, however, that it was troubled by the admission of Any of Miss Patterson's testimony concerning her shooting at Lee. Counsel stressed he did not object to the testimony as such and was 'not quarreling' with it, but the court said, 'this calls plainly for hearsay testimony, and as such it's objectionable. But on the other hand, it's in the record and it's prejudicial to the People if we leave it in its present status without some explanation.' The court then added, 'I am also troubled about the matter that came up last weekend and the supposed mental illness of this witness. That has no place in this record, either, but it came in without objection.' The prosecutor pointed out that by the latter evidence 'Counsel intended to impeach her, showing she's unstable,' but the court replied, 'You can't impeach a witness by showing that she was under care of a psychiatrist.' Remarking that 'I don't know whether I can save this trial or not at this point,' the court then called a recess.

Upon reconvening, the court ruled as follows: 'Gentlemen, after some reflection I have reached the conclusion that under the present state of this record it's impossible to have a fair trial either from the point of view of the People or the defendants, so I am with some reluctance, of course, declaring this to be a mistrial and transferring the matter to Department 23 for trial. * * *' In response to an inquiry by the prosecutor, the court specified that the grounds for its ruling were 'The present state of the record with respect to the alleged firing of a hand gun at some third person, a man by the name of Lee,' and 'the question * * * that's been asked as to the alleged mental illness of the People's witness.' The court discharged the jury on these same grounds, and petitioners thereafter entered pleas of once in jeopardy. (Pen.Code, § 1016, subd. 5.)

Prohibition is a proper remedy to prevent retrial when a defendant has been once in jeopardy. (Paulson v. Superior Court (1962) 58 Cal.2d 1, 5, 22 Cal.Rptr. 649, 372 P.2d 641, and cases cited.)

Article I, section 13, of the California Constitution declares that 'No person shall be twice put in jeopardy for the same offense * * *.' Implementing this constitutional command, the decisions of this court have settled the now familiar rules that (1) jeopardy attaches when a defendant is placed on trial in a court of competent jurisdiction, on a valid accusatory pleading, before a jury duly impaneled and sworn, and (2) a discharge of that jury without a verdict is equivalent in law to an acquittal and bars a retrial, unless the defendant consented thereto or legal necessity required it. (Paulson v. Superior Court (1962) supra, 58 Cal.2d 1, 5, 22 Cal.Rptr. 649, 372 P.2d 641; Cardenas v. Superior Court (1961) 56 Cal.2d 273, 275, 14 Cal.Rptr. 657, 363 P.2d 889; Jackson v. Superior Court (1937) 10 Cal.2d 350, 352--357, 74 P.2d 243, and cases cited; see also Pen.Code, §§ 654, 687, 1023, 1140, and 1141.)

In the case at bar the record demonstrates that at the time the court declared a mistrial and discharged the jury, jeopardy had attached pursuant to the foregoing rules; the sole remaining issues, therefore, are consent and legal necessity.

At no time did petitioners, in person or through counsel, expressly consent to the granting of the mistrial or the discharge of the jury. The People maintain that petitioners impliedly gave such consent, but the contention does not withstand analysis. When a trial court proposes to discharge a jury without legal necessity therefor, the defendant is under no duty to object in order to claim the protection of the constitutional guarantee, and his mere silence in the face of an ensuing discharge cannot be deemed a waiver. (Mitchell v. Superior Court (1962) 207 Cal.App.2d 643, 647, 24 Cal.Rptr. 671; Hutson v. Superior Court (1962) 203 Cal.App.2d 687, 691--692, 21 Cal.Rptr. 753; cf. People v. Valenti (1957) 49 Cal.2d 199, 202, 208--209, 316 P.2d 633. It is true that affirmative conduct by the defendant may contitute a waiver if it clearly evidences consent (People v. Kelly (1933) 132 Cal.App. 118, 122--123, 22 P.2d 526; cf. People v. Terry (1970) 2 Cal.3d 362, 386, 85 Cal.Rptr. 409, 466 P.2d 961; see generally Note, 63 A.L.R.2d 782), and such a waiver will a fortiori be implied when the defendant actually initiates or joins in a motion for mistrial (People v. Mills (1957) 148 Cal.App.2d 392, 394--395, 306 P.2d 1005).

No such motion, however, was made in the case at bar. When the record is fairly read, it is clear that defense counsel requested no more than a cautionary instruction advising the jury that the alleged threats of Louis Lee, reported in the testimony of Miss Patterson, were hearsay as to these petitioners. Counsel neither objected to this testimony as such, nor moved to strike it; indeed, he expressly represented to the court that he had no quarrel with it. In these circumstances, petitioners' simple request for an admonition on an evidentiary matter cannot be magnified into a waiver of their constitutional protection against double jeopardy.

Secondly, there was no 'legal necessity'--as that concept has been limited in our decisions--for the court to declare a mistrial and discharge the jury without petitioners' consent. In California, legal necessity for a mistrial typically arises from an inability of the jury to agree (Pen.Code, § 1140; Paulson v. Superior Court (1962) supra, 58 Cal.2d 1, 5, 22 Cal.Rptr. 649, 372 P.2d 641) or from physical causes beyond the control of the court (Pen.Code, § 1141; Cardenas v. Superior Court (1961) supra, 56 Cal.2d 273, 276, 14 Cal.Rptr. 657, 363 P.2d 889), such as the death, illness, or absence of judge or juror (Pen.Code, §§ 1123, 1147; People v. Ross (1890) 85 Cal. 383, 24 P. 789; People v. Hess (1951) 107 Cal.App.2d 407, 425--426, 237 P.2d 568) or of the defendant (Pen.Code, § 1043; People v. Higgins (1881) 59 Cal. 357, 358). A mere error of law or procedure, however, does not constitute legal necessity. (Cardenas v. Superior Court (1961) supra, 56 Cal.2d 273, 14 Cal.Rptr. 657, 363 P.2d 889 (prosecutor's question on cross-examination objected to by defendant); People v. Huff (1967) 255 Cal.App.2d 443, 63 Cal.Rptr. 317 (testimony of police officer that he saw defendant talking to two jurors during recess); Hutson v. Superior Court (1962) supra, 203 Cal.App.2d 687, 21 Cal.Rptr. 753 (public defender's asserted inability to...