People of the State of California, Plaintiff and Respondent v. Lee Tideman, Defendant and Appellant
| Decision Date | 16 August 1961 |
| Docket Number | Cr. 3902 |
| Citation | 15 Cal.Rptr. 277 |
| Court | California Court of Appeals Court of Appeals |
| Parties | PEOPLE of the State of California, Plaintiff and Respondent, v. Lee TIDEMAN, Defendant and Appellant. |
Martin N. Pulich, Public Defender, Alameda County, John D. Nunes, Chief Asst. Public Defender, Spencer W. Strellis, Asst. Public Defender, Oakland, for appellant.
Stanley Mosk, Atty. Gen., Arlo E. Smith, Albert W. Harris, Jr., Deputy Attys. Gen., for respondent.
After a trial by jury, defendant was found guilty of murder in the second degree. From the judgment of conviction and from the order denying his motion for a new trial, he prosecutes this appeal. The sole issue presented is whether the trial court properly rejected his plea of once in jeopardy.
The information, as originally framed, contained two counts. The first count charged the appellant and his co-defendant Stafford with performing an abortion on Kay Beverly Stretlow on April 21, 1960 (Pen.Code, § 274); the second charged the appellant and Stafford with the murder of Kay Beverly Stretlow on April 21, 1960 (Pen.Code, § 187).
When arraigned, the appellant entered a plea of not guilty to each count; however, before the trial, the appellant withdrew his plea of not guilty on the first count. He then entered a plea of guilty to the first count for abortion, and interposed the plea, as to count two, that the judgment about to be entered on his plea of guilty to count one, would be a conviction of the same offense, charged in count two. The court rejected the appellant's motion to terminate the trial on the second count and indicated that the plea of once in jeopardy was to be determined at the termination of the trial on the second count, stating as the reason for its action that jeopardy could not attach because '* * * [i]t is not until the judgment of the Court has been pronounced as to the first count that he stands convicted of a felony. * * *' The court then referred the first count to the probation officer for investigation and report and deferred sentencing until October, 3, 1960.
Thereafter, on September 13, 1960, the appellant was tried on count two by a jury. During the selection of the jury, the court granted the district attorney's motion to amend the second count of the information to charge 'murder in the second degree.' After the presentation of evidence was completed, the court ruled that the issue of jeopardy was a question of law for the court and denied the plea. On September 15, 1960, the jury found the appellant guilty of murder in the second degree. On October 6, 1960, the court ordered that the plea of guilty to the first count be set aside and the first count dismissed, and then sentenced the appellant on the second count.
The evidence produced on the trial supports the judgment. It shows that on April 21, 1960, by prearrangement, Kay Beverly Stretlow went to Stafford's Oakland apartment for an abortion, and met Stafford and the appellant. The appellant attempted to perform the abortion. Shortly thereafter, the victim died as a result of an air embolism in the wall of her uterus. The appellant admitted employing an instrument to bring about an abortion, but denied responsibility for the cause of death; he testified that the victim was already aborting at the time of the operation. Although there was evidence of an allegedly self-inflicted puncture or laceration of the cervix, the pathologist who performed the autopsy testified that this laceration was insignificant, and that it was highly improbable that the wound which caused the death was self-inflicted.
On this appeal, no direct attack is made upon the sufficiency of the evidence. Appellant argues that as our Supreme Court has indicated that he cannot be convicted of both abortion and second degree murder (People v. Brown, 49 Cal.2d 577, 320 P.2d 5), the abortion here charged contained in count one is an offense necessarily included in the second degree murder charge contained in count two; that, therefore, after pleading guilty to count one, the plea of once in jeopardy was applicable to count two.
The attorney general argues that the plea of double jeopardy will not lie when a defendant is tried but once; that the instant case is one which involves only section 654 of the Penal Code, and not section 1023; that the doctrine of double jeopardy has no application to a defendant who is tried on several counts in the same trial; and that the abortion charged in count one was not a necessarily included offense in the second degree murder charged in count two. The attorney general concedes that both counts in the amended information relate to the same act.
The statements of the law applicable to the doctrine of double jeopardy are by no means clear and in some respects inconsistent. In fact, the issue here presented has long been one of the most vexing questions of the criminal law. Our state Constitution provides: '* * * No person shall be twice put in jeopardy for the same offense * * *.' Const. art. I, § 13. It has been acknowledged that the doctrine of included offenses is a part of the constitutional guarantee against double jeopardy (People v. Smith, 36 Cal.2d 444, 448, 224 P.2d 719; People v. Kehoe, 33 Cal.2d 711, 204 P.2d 321). Thus, if an offense is 'necessarily included' within another, the requirement of the 'same offense' is satisfied for purposes of double jeopardy.
As it is generally accepted that the plea of double jeopardy incorporates both protection against repeated prosecution and double punishment, the above quoted constitutional provision is implemented by section 654 of the Penal Code, which provides: 'An act or omission which is made punishable in different ways by different provisions of this Code may be punished under either of such provisions, but in no case can it be punished under more than one; an acquittal or conviction and sentence under either one bars a prosecution for the same act or omission under any other * * *', and section 1023, which reads: '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.' [Emphasis supplied.]
Although section 1023 refers to a situation where the prosecution for the greater offense is first in time, it is clear that the same rule applies where the prosecution for the lesser offense comes first. A conviction of the lesser offense is held to be a bar to the prosecution for the greater offense on the theory that to convict of the greater would be to convict twice of the lesser. If this were not the rule, section 1023 could be vitiated by the simple device of beginning with a prosecution of the lesser offense and proceeding up the scale. The prosecution cannot avoid the consequences of a conviction of a necessarily included offense by charging the included offense in a separate count, on the theory that a conviction under such circumstances constitutes a conviction of a separate offense. It is well settled that no person shall be convicted of both an included and a greater offense (People v. Greer, 30 Cal.2d 589, 601, 184 P.2d 512; People v. Mims, 136 Cal.App.2d 828, 830, 289 P.2d 539).
The appellant argues that the regular entry of his plea of guilty to the abortion count placed him in jeopardy as to the second degree murder count, as he stood 'convicted' when the plea was entered. The attorney general contends that the appellant was tried but once; that the doctrine of double jeopardy has no application to a defendant who is tried on several counts in the same trial, on the same indictment where the jeopardy took place at the same time as the conviction sought to be set aside. The attorney general relies on People v. Chessman, 38 Cal.2d 166, 193, 238 P.2d 1001; People v. Day, 199 Cal. 78, 83, 248 P. 250; People v. Amick, 20 Cal.2d 247, 125 P.2d 25, and People v. Degnen, 70 Cal.App. 567, 234 P. 129. However, these cases are clearly distinguishable as the situation which the defendant claimed resulted in jeopardy, arose after the trial began. However, the true double jeopardy situation arises only when, as here, the defendant prior to the trial has been in jeopardy for the same or an included offense and pleads such jeopardy as a bar to the trial.
In the instant case, the appellant entered a plea of guilty to count one and interposed a plea of once in jeopardy to count two. As indicated above, the trial court concluded that jeopardy could not attach, because the appellant did not stand convicted of a felony until after its judgment as to count one had been pronounced. There is no question that the court below erred in this conclusion. A plea of guilty is the equivalent of a conviction, even though judgment and sentence have not been entered (People v. Blue, 161 Cal.App.2d 1, 326 P.2d 183). As to when jeopardy attaches, the law on this matter was settled in People v. Goldstein, 32 Cal. 432, at page 433, wherein the court said:
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