People v. Chaney

• Decision Date: 15 July 1988
• Docket Number: No. B026734,B026734
• Citation: 249 Cal.Rptr. 251,202 Cal.App.3d 1109
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Appellant, v. Carolyn Jean CHANEY, Defendant and Respondent.

Page 251

249 Cal.Rptr. 251

202 Cal.App.3d 1109

The PEOPLE, Plaintiff and Appellant, v. Carolyn Jean CHANEY, Defendant and Respondent.

No. B026734.

Court of Appeal, Second District, Division 1, California.

July 15, 1988.

Ira Reiner, Dist. Atty. of Los Angeles County, Donald J. Kaplan and Eugene D. Tavris, Deputy Dist. Attys., for plaintiff and appellant

Andrew E. Rubin, Santa Monica, under appointment by the Court of Appeal, for defendant and respondent.

INTRODUCTION

SPENCER, Presiding Justice.

The People appeal from an order of dismissal entered after defendant Carolyn Jean Chaney entered a plea of once in jeopardy.

PROCEDURAL BACKGROUND

Defendant originally was charged by information with the offense of murder (Pen.Code, § 187). At the conclusion of defendant's jury trial, the trial court instructed the jury on the degrees of murder and on voluntary and involuntary manslaughter as lesser necessarily included offenses. The court did not instruct the jury it could render a partial verdict of acquittal on a greater degree or offense if it became deadlocked only on a lesser degree or offense.

The jury began deliberations on January 16, 1986, thereafter deliberating for some complete and some partial days until January 23. At that time, the jury returned to court. The foreman informed the trial court the jury had been "seriously deliberating," with all members participating in the deliberations. Nevertheless, the jury was unable to agree upon a verdict. In response to the trial court's request, the foreman stated the vote was 10 to 2 and had been that way since the first ballot; he heeded the court's admonition not to give any more detail about the split in the vote.

The court inquired twice whether the foreman was stating the jury could not reach a verdict on any of the possibilities, but did not inquire whether the jury had been able to eliminate the question of defendant's guilt on any one or more offenses. The foreman explained, "there is just this difference ... on the matter of intent." He added, "We have reached unanimity ... on several items. Where we are disagreeing is on the degree.... The division is on two close possibilities, and ... it's been this way just about from the first day of the deliberation." When the foreman attempted to explain his meaning in greater detail, the trial court cut him off. The trial court then polled the remaining jurors, who agreed unanimously the jury could not reach a verdict.

Thereafter, the trial judge discussed the possibility of declaring a mistrial with both counsel, stating: "it probably would not serve any purpose [to continue] this further." Defense counsel then pointed out the deliberations had not in fact been lengthy and opined the jury apparently was deadlocked on a degree of offense; accordingly, he sought further inquiry into the nature of the jury's inability to reach a verdict. The trial court declined to make any further inquiry, but defense counsel persevered, endeavoring to convince the court to expand the scope of inquiry and polling of the jurors. The trial court then agreed to inquire as to the number of ballots the jury had taken, but warned: "If it doesn't change my mind, I will grant a mistrial. If you don't want me to do it after I ask that, you let me know." The Further discussion followed, during which defense counsel attempted to secure further inquiry even in the event the trial court ordered a mistrial. He stated, "if the Court does declare a mistrial, I would ask the Court to inquire on the record ... as to the exact vote and how it stood." When the court indicated a misunderstanding of counsel's meaning, he continued: "I mean after the Court declares a mistrial, the Court can ask before excusing the jury which way they voted. I would like that on the record." The trial court declined to make that inquiry, but proceeded to determine the number of ballots the jury had taken. After learning the jury had taken six or seven ballots, the court found the jury was hopelessly deadlocked and declared a mistrial "for legal cause," excusing the jury and setting the matter for retrial. After court adjourned, both the prosecutor and defense counsel conversed with the jurors.

prosecutor responded, "All right"; defense counsel remained silent.

In support of defendant's subsequent plea of once in jeopardy, defense counsel presented his own declaration. This provides in pertinent part: "Following the mistrial both the [prosecutor] and [I] went to the hall to discuss the matter with the jurors. All twelve of the trial jurors were waiting in the hallway. However, as I approached the larger group of jurors, I noticed that two of the twelve jurors had begun a private conversation with [the prosecutor] a few feet away from where the other ten were standing in a close group. Both my client and I approached the larger group, who were not only willing but anxious to discuss the case with us. It was at this time that my client and I were told the vote of the jury had been 10 for involuntary manslaughter, and two for voluntary manslaughter. The ten jurors who voted for involuntary manslaughter were those [we] were speaking with. The two jurors who had held out for voluntary manslaughter were those discussing the case with [the prosecutor]. It was absolutely clear from my discussion with all of the ten jurors that I was speaking with that the jury had long ago agreed, unanimously, that the Defendant was not guilty of murder, and that the vote of the jury had been ten for involuntary manslaughter and two for voluntary manslaughter since the first day of deliberation...."

In opposition, the People filed the declaration of Irene Maffahey, one of the jurors serving in the deadlocked jury. Ms. Maffahey declares she served as a juror in defendant's case and deliberated with the other jurors. She continues, "I personally believe that defendant is guilty of first degree murder but at no time did we complete our deliberations. We were unable to reach a verdict. At no time did the jury reach unanimous agreement that the defendant was not guilty of first or second degree murder. And at no time would I agree that the defendant was not guilty of first degree murder. However, temporarily in an effort to reach a verdict I voted for a lesser included offense. [p] Since we did not reach a verdict, I was never asked while I [w]as a juror, by the court, what my personal verdict was at that time. [p] Further, there was another juror who also believed that the defendant was guilty of second degree murder. She also, in an effort to reach a verdict during the balloting in the jury room voted for a lesser included offense."

After considering defendant's plea and the People's opposition thereto, the court found jeopardy had attached as to all offenses, relying solely on Stone v. Superior Court (1982) 31 Cal.3d 503, 183 Cal.Rptr. 647, 646 P.2d 809. Accordingly, the court dismissed the matter.

CONTENTIONS

I

The People contend the court erred in dismissing the matter, in that defendant consented to the declaration of mistrial.

II

The People further contend the court erred in dismissing the matter, in that there exists legal justification for the declaration of mistrial.

DISCUSSION

Preliminarily, we consider whether the order of dismissal is appealable by the People. Pursuant to Penal Code section 1238, subdivision (a)(8), the merits of an appeal from an order of dismissal may be reached only if it is determined that jeopardy did not attach. (People v. Smith (1983) 33 Cal.3d 596, 601, fn. 3, 189 Cal.Rptr. 862, 659 P.2d 1152.) Hence, the first inquiry an appellate court must make is jurisdictional; it must determine whether the defendant was placed in jeopardy. (Ibid.)

Generally, "where a jury is discharged for failure to reach a verdict, jeopardy does not attach because the law places the parties back in status quo as if no trial had ever occurred." (People v. Wheeler (1971) 23 Cal.App.3d 290, 311, 100 Cal.Rptr. 198, disapproved on other grounds in People v. Wheeler (1978) 22 Cal.3d 258, 286-287, 148 Cal.Rptr. 890, 583 P.2d 748; accord, People v. Allen (1974) 41 Cal.App.3d 821, 824-825, 116 Cal.Rptr. 493.) However, when a case has been dismissed following a plea of once in jeopardy, the general presumption does not clearly operate. In the instant matter, therefore, the pertinent inquiry is whether the motion for dismissal was made before defendant was again placed in jeopardy and, if it was, to deem the dismissal appealable. ( People v. Smith, supra, 33 Cal.3d at p. 602, 189 Cal.Rptr. 862, 659 P.2d 1152.) Here, the motion was made before defendant was again placed in jeopardy; consequently the dismissal is appealable.

I

The People contend the trial court erred in dismissing the instant matter, in that defendant consented to the declaration of mistrial. We disagree.

An otherwise legally insufficient declaration of mistrial may become legally sufficient where the defendant has consented to the declaration of mistrial. (See Stone v. Superior Court, supra, 31 Cal.3d at p. 516, 183 Cal.Rptr. 647, 646 P.2d 809; cf. Larios v. Superior Court (1979) 24 Cal.3d 324, 332, 155 Cal.Rptr. 374, 594 P.2d 491.) It is conceded in the instant matter defendant did not expressly consent to the declaration of mistrial; the People rely instead on their perception of implied consent thereto.

A defendant's consent to a declaration of mistrial cannot be inferred from mere silence. (People v. Compton (1971) 6 Cal.3d 55, 62, 98 Cal.Rptr. 217, 490 P.2d 537; Curry v. Superior Court (1970) 2 Cal.3d 707, 713, 87 Cal.Rptr. 361, 470 P.2d 345; Hutson v. Superior Court (1962) 203 Cal.App.2d 687, 691, 21 Cal.Rptr. 753.) However, "affirmative conduct by the defendant may constitute a waiver if it clearly evidences consent." ( Curry supra, 2 Cal.3d at p. 713, 87 Cal.Rptr. 361, 470 P.2d 345, emphasis added; accord, Compton, supra, 6 Cal.3d at p. 62, 98 Cal.Rptr. 217, 490 P.2d 537.) That is the case,...