People v. Allen

• Decision Date: 17 September 1974
• Docket Number: Cr. 24507
• Citation: 116 Cal.Rptr. 493,41 Cal.App.3d 821
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Appellant, v. David Lee ALLEN, Defendant and Respondent.

Page 493

116 Cal.Rptr. 493

41 Cal.App.3d 821

The PEOPLE of the State of California, Plaintiff and Appellant, v. David Lee ALLEN, Defendant and Respondent.

Cr. 24507.

Court of Appeal, Second District, Division 5, California.

Sept. 17, 1974.

Joseph P. Busch, Dist. Atty. of Los Angeles County, Harry B. Sondheim, Head, Appellate Division, Eugene D. Tavris, Deputy Dist. Attys., for plaintiff and appellant.

Hollopeter & Terry and Charles Hollopeter, Pasadena, for defendant and respondent.

KAUS, Presiding Justice.

The People appeal from an 'order' of the trial court on a double-jeopardy plea entered by defendant David Lee Allen. He, in turn, has filed a motion to dismiss the appeal. As will appear, the issues with respect to the People's appeal and the defendant's motion to dismiss intertwine. The appeal and the motion to dismiss were heard and submitted together.

FACTS

Defendant was charged with attempted murder (count 1) and assault with a deadly weapon (count 2). With respect to each count, it was charged that defendant had 'used a firearm' in the commission of the offense. (Pen.Code, § 12022.5.) It is undisputed that the firearm charged in each count is the same; the preliminary hearing transcript ¹ shows that there was one incident in which the victim was shot in the chest by someone, allegedly defendant, who used a .22 revolver.

On August 13, 1973, the jury acquitted defendant of attempted murder (count 1). Although the jury was specifically instructed to make findings on the question whether defendant used a firearm only if it found him guilty on both or either counts, it returned a verdict finding that it was 'not true' that defendant used a firearm 'at the time of the commission of the offense as contained in Count I . . ..' It also reported itself as 'hopelessly deadlocked on all other verdicts.' The court declared a mistrial on count II, the jury was discharged and the verdicts were filed. The matter was continued until August 15, for 'trial setting.'

On August 15, defendant was permitted to 'enter the additional plea of having been once in jeopardy.' Both attorneys and defendant personally waived a jury trial on that issue only, it being agreed that the issue of double jeopardy presented solely a question of law.

After argument on August 17, the court made the following ruling: The Court 'finds for the defendant on the plea of former jeopardy.' The court specifically declined to dismiss the action: '(T)he only finding that the Court makes is for the defendant at this time on the plea of once-in-jeopardy.' The minute order similarly states: 'The Court finds for the defendant.'

DISCUSSION

I.

Appealability of 'Order'

After the People filed their opening brief, defendant filed his motion to dismiss, on the theory that the court's 'order' was equivalent to an acquittal and, therefore, nonappealable.

If anything is clear about the trial court's order, it is that the court neither formally dismissed the action, nor purported to finally acquit defendant but--right or wrong--intended that its order be appealable. ² Nevertheless, it obviously also intended that if no appeal was taken or its ruling affirmed on appeal, that the proceeding against defendant should terminate.

The People base their right to appeal on Penal Code section 1238, subdivision (a)(8), which allows a People's appeal from '(a)n order or judgment dismissing or otherwise terminating the action before the defendant has been placed in jeopardy or where the defendant has waived jeopardy.' Obviously, where the question presented on such an appeal is whether or not the defendant has been placed in jeopardy, an affirmative answer disposes not only of the merits of the appeal, but compels a holding that we cannot reach them. Conversely, a negative answer permits us to resolve the merits, without pausing to consider the jurisdictional question. ³ (See United States v. Castellanos (2d Cir. 1973) 478 F.2d 749, 750--751.)

In his motion to dismiss the appeal, defendant argues that since he has already been tried by a jury and then by the court on the double jeopardy plea 'to say that he has not been in jeopardy . . . is nonsense.'

The ruling appealed from is, however, directed at count 2. With respect to that count, the effect of the mistrial is that jeopardy has never attached. (People v. Doolittle, 23 Cal.App.3d 14, 22, 99 Cal.Rptr. 810; People v. Wheeler, 23 Cal.App.3d 290, 311, 100 Cal.Rptr. 198.) The fact that the tenor of the prejeopardy ruling was to the effect that jeopardy had attached cannot affect the threshold question of appealability. ⁴

We therefore turn to the merits.

Defendant's contention that the acquittal of an attempted murder (count 1) bars retrial on assault with a deadly weapon (count 2) is without merit. (Pen.Code, § 1160.) '(A) retrial of a count on which the jury fails to agree is not 'another prosecution' within the meaning of Penal Code section 1023, and hence is not barred by the double jeopardy doctrine. (Citation.)' (People v. Webb, 66 Cal.2d 107, 127, 56 Cal.Rptr. 902, 916, 424 P.2d 342. 356.)

Generally, a defendant may be retried until 'complete and final disposition is made of . . . all charges pleaded.' (People v. Tideman, 57 Cal.2d 574, 581, 21 Cal.Rptr. 207, 211, 370 P.2d 1007, 1011.) Thus, for purposes of retrial where, as here, defendant was tried in one proceeding on both charges, it is irrelevant whether assault with a deadly weapon is, or is not, a necessarily included offense in attempted murder. ⁵

What is relevant is that the same act formed the basis for both the attempted murder and assault with a deadly weapon charges, and that the same weapon is involved in both charges. Thus, the question is whether the jury's finding, in connection with the acquittal on count 1, that defendant was not 'using a firearm at the time of the commission of the (count 1) offense' bars retrial on count 2.

It appears to have been the thinking of the trial court that since the same weapon was involved in both counts, and the jury specifically found that defendant was not using the gun with respect to count 1, he could not, at the same time, have assaulted the victim with it.

The People concede, at least for the sake of argument, that, had the jury legally found that defendant did not use the gun in connection with count 1, the prosecution would be barred from retrying defendant on count 2--the weapon being the same.

The jury's special verdict that defendant did not use a firearm was necessarily surplusage, just as in situations where the jury includes a recommendation of leniency in a verdict, such 'recommendations by the jury constitute no part of the verdict, but are mere surplusage . . .. (Citations.)' (People v. Gidney, 10 Cal.2d 138, 145, 73 P.2d 1186, 1191.)

The only distinction between the 'leniency' cases and this one is that the determination of punishment is not a jury function at all, while the decision whether defendant used a firearm was specifically committed to the jury, but only in the event that it found defendant guilty--which it did not do. Therefore, the jury's finding was beyond the scope of its duties and should be disregarded, particularly as it is clear that the jury made no factual determination at all.

It is true that the internal operations of a jury are rarely subject to scrutiny (see, E.g., People v. Hutchinson, 71 Cal.2d 342, 349--350, 78 Cal.Rptr. 196, 455 P.2d 132) and that verdicts are not reversibly inconsistent unless they are rendered upon charges in which the elements of the offenses alleged are...