Mitchell v. Superior Court for Los Angeles County

• Decision Date: 13 September 1962
• Citation: 24 Cal.Rptr. 671,207 Cal.App.2d 643
• Parties: John Franklin MITCHELL, Petitioner, v. SUPERIOR COURT of the State of California for the COUNTY OF LOS ANGELES, Respondent, PEOPLE of the State of California, Real Party in Interest. Civ. 26644.
• Court: California Court of Appeals Court of Appeals

Page 671

24 Cal.Rptr. 671

207 Cal.App.2d 643

John Franklin MITCHELL, Petitioner, v. SUPERIOR COURT of the State of California for the COUNTY OF LOS ANGELES, Respondent, PEOPLE of the State of California, Real Party in Interest.

Civ. 26644.

District Court of Appeal, Second District, Division 2, California.

Sept. 13, 1962.

Ellery E. Cuff, Public Defender of Los Angeles County, Roy R. Maines, James L. McCormick, Deputy Public Defendants, for petitioner.

No appearance for respondent.

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

ASHBURN, Justice.

By his petition for a writ of prohibition petitioner seeks to prevent his being tried a second time, after the jury was dismissed at his first trial ostensibly for inability to reach a verdict. His claim is double jeopardy.

Petitioner was tried by a jury on June 18, 1962, upon a charge of incest, violation of § 288, Penal Code, etc., before Samuel Laidig, Judge Pro tempore of the superior court and was represented by the Public Defender. Both sides having rested the jury was instructed on June 19, 1962 and retired to deliberate at 11:45 a. m. They lunched from 12:10 p. m. until 1:25 p. m. At 4:45 p. m. the jury returned to the court room. A judge other than Laidig (pro tem.) was then on the bench and the following took place: 'THE COURT: The record will reflect that all of the jurors are present in their respective position, and defendant is present with counsel. Ladies and gentlemen of the jury, Judge Laiding had to go downtown to another trial downtown, and has asked me to stand in for him, and I understand counsel have stipulated that this will be satifactory. MR. MAINES [Deputy Public Defender]: That's correct Your Honor. MR. NOLAND [Deputy District Attorney]: That's correct, Your Honor. THE COURT: Satisfactory to the defendant and the People. I know nothing of this case, so I am going to ask a few questions of the foreman. Who is the foreman of this jury? Thank you. The end of the day has come, and the answer to my question will determine whether or not I should keep you a little longer or not, and so I will ask you this: the question is, has the jury a possibility of returning a verdict with a little bit more deliberation. THE FOREMAN: At this point I would say no, Your Honor. THE COURT: I take it the jury has not arrived at a verdict now. THE FOREMAN: Yes, sir. THE COURT: Can you, without revealing how it stands, in whose favor, can you tell me the numerical division. THE FOREMAN: By counts, Your Honor? THE COURT: Yes, so many one way against the other, without saying in whose favor. MR. NOLAND: Excuse me just a minute, not by counts you don't mean, Your Honor, there are five counts. THE COURT: Oh, I meant by how they stand--eight to four or five, something like that. How is the jury divided, without stating in whose favor. Is it six to six? THE FOREMAN: Your Honor, on one statement it would be--THE COURT: First of all, how many counts are there. You say in one statement, are there several counts? THE FOREMAN: Yes, there are, your Honor. THE CLERK: Four, Your Honor. THE COURT: Four counts. As to the first count? THE FOREMAN: To the first count--THE COURT: Now remember, don't tell me in whose favor. THE FOREMAN: I would say it would be 80 per cent in favor of one direction. THE COURT: It is not percentage. In other words, there are twelve jurors, you would say six or--THE FOREMAN: Well, yes, sir; six definite votes and six undecided. THE COURT: Now count number two. THE FOREMAN: Ten votes, two undecided. THE COURT: Count number three. THE FOREMAN: Ten and two. THE COURT: Count number four. THE FOREMAN: Ten and two. THE COURT: And it is your opinion, is it, that with another half an hour or so deliberation this evening you could not arrive at a verdict? THE FOREMAN: I do not believe so, Your Honor. THE COURT: Could we confer, counsel, up here out of the hearing of the jury. (Whereupon a discussion was had between the Court and counsel at the bench, outside the hearing of the jurors, which was not reported.) THE COURT: Well, ladies and gentlemen of the jury, you heard the foreman's statement, does anybody differ with his version of it? No one differs. If anyone differs with his version, will you raise your hand, number one as to the division, how it stood, and number two, as to a possibility of a reaching a verdict with a little bit more deliberation. No one disagrees with the foreman. Judge Laidig, when he asked me to sit in for him, said that in his opinion he would declare a mistrial at the end of the day and would not lock you up. I, therefore, do not feel that I will overcome his decision. It is his decision that deliberations would end at this time, unless the foreman would indicate that a little bit more time would be needed to arrive at a verdict. In view of the fact that the foreman has indicated, with the assent of all other jurors, that the jury has not arrived at a verdict at this time, quarter to five, and that even with a little bit more deliberation there is no possibility of arriving at a verdict tonight, I do hereby declare a mistrial. And ladies and gentlemen of the jury, this means that your services are terminated, this trial has ended.' It does not appear from the record that either counsel had anything to say for or against the discharge of the jury or that defendant or his counsel in any way manifested consent thereto.

Penal Code, § 1140: 'Except as provided by law, the jury cannot be discharged after the cause is submitted to them until they have agreed upon their verdict and rendered it in open court, unless by consent of both parties, entered upon the minutes, or unless, at the expiration of such time as the court may deem proper, it satisfactorily appears that there is no reasonable probability that the jury can agree.'

The dispute focuses upon the question whether there was an abuse of discretion in the determination of whether the jury could not reach a verdict, and the even more basic question of whether there was any exercise of discretion. It should first be pointed out that it does not appear to be necesary that defendant or his counsel object to an improper discharge of the jury before the claim of double jeopardy may be asserted. Section 1140 requires that consent be 'entered upon the minutes.' In People v. Valenti, 49 Cal.2d 199, 316 P.2d 633, the jury was discharged and the information was dismissed. 'Defense counsel said nothing either in protest against or in acceptance * * *.' (49 Cal.2d page 202, 316 P.2d page 634.) It was held that jeopardy had attached and that defendant could not be retried. Cases on both sides of this question are collected in 63 A.L.R.2d 782.

In Paulson v. Superior Court, 58 A.C. 1, 22 Cal.Rptr. 649, 372 P.2d 641, after approximately five hourse of deliberation the jury entered the courtroom and upon inquiry from the court replied that they had not reached a verdict. Questions were asked of the court and were answered. The court then asked the jury how it stood and the foreman replied. The court then made the following statement: "Well, it just appers to the Court, Mr. Foreman, that this Jury has been confused. Some of the jurors are off on a tangent. Apparently they have misconceived the evidence, failed to understand the instructions or have not been able to apply the instructions to the evidence. I feel that I should declare this a mis-trial. The Court declares this case a mis-trial. The Jury is discharged with the thanks of the Court." (P. 4, 22 Cal.Rptr. p. 651, 372 P.2d p. 643.) It was stipulated that at a time when the court was not in session the foreman of the jury reported to the bailiff that the jury was hopelessly deadlocked and the bailiff reported this to the judge. At pages 5 and 6, of 58 A.C. at page 651 of 22 Cal.Rptr. at page 643 of 372 P.2d, the court stated: 'Prohibition is a proper remedy to prevent retrial when a defendant has been once in jeopardy (Cardenas v. Superior Court, 56 Cal.2d 273, 14 Cal.Rptr. 657, 363 P.2d 889; Gomez v. Superior Court, 50 Cal.2d 640, 652, 328 P.2d 976; Jackson v. Superior Court, 10 Cal.2d 350, 352, 74 P.2d 243, 244, 113 A.L.R. 1422.)

"[J]eopardy attaches to a defendant when he is placed on trial before a court of competent jurisdiction upon a valid indictment or information before a jury duly impaneled and charged with his deliverance.' (Jackson v. Superior Court, supra.) If a jury is discharged without returning a verdict, the defendant cannot again be put in jeopardy unless he consented to the discharge or legal necessity required it. (Cardenas v. Superior Court, supra; ...