Gomez v. Superior Court In and For Mendocino County

Decision Date17 July 1958
Citation50 Cal.2d 640,328 P.2d 976
PartiesAnthony GOMEZ and Ray Cardinal, Petitioners, v. The SUPERIOR COURT of the State of California, IN AND FOR the COUNTY OF MENDOCINO, and Honorable Hale McCowen, Respondents. Sac. 6928.
CourtCalifornia Supreme Court

Kasch & Cook and Leo M. Cook, Ukiah, for petitioners.

Edmund G. Brown, Atty. Gen., Doris H. Maier and J. M. Sanderson, Deputy Attys. Gen., for respondents.

CARTER, Justice.

Petitioners, Anthony Gomez and Ray Cardinal, seek writs of prohibition and mandate against the Superior Court of the County of Mendocino. Petitioners seek the writ of prohibition to restrain the superior court from proceeding with the trial of the grand theft charge and the writ of mandate to compel the superior court to transfer the cause to the appropriate justice court for the disposition of the charge of petty theft.

On March 19, 1957, an information was filed against petitioners charging them with a felony, the violation of section 484 of the Penal Code. 1 Petitioners were accused of the theft of a P & H Loading Shovel of the value of $3,000, the personal property of one Casteel, to which charge they pleaded not guilty. The cause was tried to a jury which, after trial and argument, had submitted to it three forms of verdict: (1) Guilty of grand theft; (2) guilty of petty theft; and (3) not guilty. The verdict of the jury was that petitioners were guilty of petty theft. The court pronounced judgment and sentenced each of them to pay a $500 fine and serve a six months' term in the county jail. Petitioners appealed, and the District Court of Appeal reversed the judgment because of prejudicial misconduct on the part of the district attorney (People v. Cardinal, October 31, 1957, 154 Cal.App.2d 835, 316 P.2d 1001).

From the opinion of the District Court of Appeal (154 Cal.App.2d 835, 316 P.2d 1001), it appears that petitioners admitted that they dismantled and sold as scrap, a loading shovel which they said they had purchased from one Berry who purported to be the owner thereof. A receipt bearing the signature 'W. H. Berry' was introduced in evidence but Berry was not produced as a witness.

Petitioners now allege that they have been ordered to proceed to trial on a charge of grand theft; that they have moved the respondent to dismiss the grand theft charge against them on the ground that they have been once in jeopardy and have been acquitted of the grand theft charge; that respondent has no jurisdiction to try them on the sole remaining charge of petty theft and that the matter should be transferred to the Justice Court for the Little Lake Judicial District, Mendocino County, which is the appropriate court for the retrial of the petty theft charge.

Section 687 of the Penal Code provides that 'No person can be subjected to a second prosecution for a public offense for which he has once been prosecuted and convicted or acquitted.' Section 1023 of the Penal Code provides: 'When the defendant is convicted or acquitted or has been once placed in jeopardy upon an accusatory pleading, the conviction, acquittal, or jeopardy is a bar to another prosecution for the offense charged in such accusatory pleading, or for an attempt to commit the same, or for an offense necessarily included therein, of which he might have been convicted under that accusatory pleading.' Article I, section 13, of the California Constitution provides, in part, that 'No person shall be twice put in jeopardy for the same offense * * *.'

In California a distinction has been drawn by the courts to the effect that where one is convicted of a lesser offense necessarily included in the charge of a greater offense, he may not be tried again on a charge that he has committed the greater offense. On the other hand, where a crime divided into degrees is concerned, a conviction of a lower degree of the crime has been held not to operate as an acquittal of the higher degree. In other words, it has been held that where one is found guilty of a lesser and necessarily included offense he has been placed in jeopardy and cannot again be tried for the greater offense with which he was originally charged; but where one is found guilty of second degree burglary, for example, the conviction is not considered an acquittal of a charge of first degree burglary or that the defendant has been once in jeopardy. The reasoning appears to be that in the crimes which are divided into degrees but one crime or offense has been charged and that a reversal by an appellate court, or the granting of a new trial operates to set aside the whole verdict leaving the entire matter at large. Petitioners here rely on the cases holding that the conviction of a lesser offense operates as an acquittal of the greater charged offense (People v. Gilmore, 4 Cal 376; People v. Gordon, 99 Cal. 227, 33 P. 901; In re Hess, 45 Cal.2d 171, 288 P.2d 5), and the People rely on the cases where 'degree' crimes were involved (People v. Keefer, 65 Cal. 232, 3 P. 818; People v. McNeer, 14 Cal.App.2d 22, 57 P.2d 1018; In re Moore, 29 Cal.App.2d 56, 84 P.2d 57). 2

In the recent case of Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199, where a prosecution for first degree murder was involved, a divided court held that where a jury had found the defendant guilty of second degree murder, and on appeal the conviction was reversed, the defendant could not be again tried for first degree murder because to do so would place him twice in jeopardy for the same offense in violation of the constitutional guarantee contained in the Fifth Amendment. The People contend that the double jeopardy provisions of the federal Constitution have never been applied to the states and that the rule of the Green case is not determinative of the case at bar.

There appears to be no sound reason for the distinction drawn by the California cases, and our constitutional provision and statutes certainly do not require one to be drawn. As Mr. Justice Black pointed out in the Green case, 'The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and orderal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may by found guilty.' 78 S.Ct. 221, 223. In California, burglary is a crime divided into two degrees. It is defined as follows: 'Every person who enters any house, room, apartment, tenement, shop, warehouse, store, mill, barn, stable, outhouse or other building, tent, vessel, railroad car, trailer coach as defined in the Vehicle Code * * * with intent to commit grand or petit larceny or any felony is guilty of burglary.' Pen.Code, § 459. Section 460 provides: '1. Every burglary of an inhabited dwelling house or building committed in the night-time, and every burglary, whether in the daytime or nighttime, committed by a person armed with a deadly weapon, or who while in the commission of such burglary arms himself with a deadly weapon, or who while in the commission of such burglary assaults any person, is burglary of the first degree.

'2. All other kinds of burglary are of the second degree.'

If a person is accused of first degree burglary, and under the evidence a jury returns a verdict of second degree burglary, it has impliedly found that the accused did not enter an inhabited dwelling-house in the nighttime, or was not armed with a deadly weapon during the commission of the crime, or that he did not assault any person during the commission of the crime. Insofar as the elements of the crime of burglary are concerned, they remain the same except for the difference between the two degrees, and since the jury had before it all of the evidence pertaining to the crime allegedly committed by the accused, the distinction in the two lines of cases appears unsound. The elements necessary for first degree murder differ from those of second degree murder in much the same way. A jury impliedly decides that the necessary element of the greater crime is lacking under the evidence and returns a verdict finding the defendant guilty of the lesser degree.

In the case under consideration, petitioners were charged with grand theft of an article of the alleged value of $3,000. The jury found them guilty of petty theft or, in other words, the jury which heard the evidence found them guilty, but impliedly determined that the value of the article stolen did not exceed $200.

The distinctions between grand and petty theft according to the Penal Code are in the type of article stolen, whether the article was taken from the person of another and in the value thereof. Pen.Code, §§ 484, 487, 487a, 488. The elements of the crime remain the same with the exceptions noted. In People v. Ny Sam Chung, 1892, 94 Cal. 304, 307, 29 P. 642, 643, a prosecution for grand larceny was held barred after the court had dismissed a charge of petty larceny against the defendants. The court said: 'It follows that, if defendants were placed in jeopardy by reason of the proceedings in the police court, their trial in the superior court was a second jeopardy, and they are entitled to their discharge.' This case was, of course, decided prior to the 1927 amalgamation of the crimes of larceny, embezzlement, false pretenses and kindred offenses under the cognomen of theft. However, no elements of the former crimes have been changed. In People v. Myers, 206 Cal. 480, 483, 275 P. 219, 220, the court was discussing the change made by the 1927 amendment and held: 'No elements of the former crimes have been changed by addition or subtraction. This is particularly true of the crime of larceny. All former elements of this offense are perpetuated and contained in section 484 as amended.'...

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