People v. Doolittle

• Decision Date: 24 January 1972
• Docket Number: Cr. 9263
• Citation: 99 Cal.Rptr. 810,23 Cal.App.3d 14
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. George William DOOLITTLE, Defendant and Appellant.

Page 810

99 Cal.Rptr. 810

23 Cal.App.3d 14

PEOPLE of the State of California, Plaintiff and Respondent, v. George William DOOLITTLE, Defendant and Appellant.

Cr. 9263.

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

Jan. 24, 1972.

Hearing Denied March 22, 1972.

Robert P. Charrow, Charrow & Reisman, Palo Alto, Court appointed, for defendant and appellant.

Evelle J. Younger, Atty. Gen. of Cal., Robert R. Granucci, Jerome C. Utz, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

MOLINARI, Presiding Justice.

Defendant, who was charged with murder (violation of Pen.Code, § 187) was found guilty of voluntary manslaughter, a lesser included offense, upon a second jury trial, a mistrial having been declared in the first trial when the jury advised the court that a verdict could not be reached. He appeals from the judgment of conviction and sentence, ¹ and urges essentially that on the second trial he was placed in double jeopardy because in the first trial he had been impliedly acquitted of murder and therefore could not be tried for that crime but only for manslaughter. Since defendant was only convicted of manslaughter, we are also confronted with the question whether the implied acquittal issue has been rendered moot.

At the conclusion of the first trial the court presented the jury with five possible verdicts, one of which they were instructed to date and sign. These verdicts were: 'not guilty as charged'; 'guilty of voluntary manslaughter, a lesser included offense'; 'guilty of second degree murder, a lesser included offense'; 'guilty as charged, to wit: guilty of murder, to wit, violation of Section 187 of the Penal Code of the State of California'; and 'guilty of involuntary manslaughter, a lesser included offense.' After approximately 11 hours of deliberation the jury declared that it could not reach a verdict, and following a polling of the jurors by the judge as to whether there was a reasonable probability that they could reach a verdict and a negative response from each of them, the court declared a mistrial and discharged the jury.

Defendant thereafter noticed a motion for leave to change his plea by adding: (1) a plea that he had already been acquitted of the offense charged and of the lesser included offenses of second degree murder and voluntary manslaughter, and (2) that he had been once in jeopardy for the offense charged and the lesser included offenses of second degree murder and voluntary manslaughter. In support of this motion defendant called, as a witness, Mrs. Betty F. Beckendorf, who had been foreman of the jury at the trial at which the mistrial was declared.

Mrs. Beckendorf testified as follows: The jury had been presented with five alternative verdicts; that the final vote was divided, a portion of the votes being for acquittal, but that she could not remember whether the larger number was for acquittal or conviction; and that she believed that those voting for conviction had voted for a conviction of voluntary manslaughter. She also testified that during its deliberations the jury took a vote on whether defendant was guilty of first degree murder and unanimously voted that he was not guilty, and that they then took a vote on whether he was guilty of second degree murder and the vote was unanimous that he was not guilty. She then testified that thereafter the jury deliberated on whether defendant was guilty of voluntary or involuntary manslaughter and on whether he should be acquitted. On each of these questions the jury was divided.

On cross-examination by the district attorney Mrs. Beckendorf testified that there had been one vote for second degree murder. The motion was thereupon submitted and denied by the court.

Adverting to the questions presented, we first observe that by his motion defendant was seeking leave to be allowed to change his plea originally made to the charge by adding the following pleas permitted by Penal Code section 1016, to wit: '4. A former judgment of . . . acquittal of the offense charged' and '5. Once in jeopardy.' Whether he should have been permitted to file such additional pleas prior to the commencement of the second trial was a matter in the trial court's discretion and its ruling denying such motion will not be disturbed on appeal, except upon a showing of abuse of discretion by the trial judge. (People v. Young, 26 Cal.App.2d 700, 702, 80 P.2d 138; People v. Natale, 199 Cal.App.2d 153, 157, 18 Cal.Rptr. 491; People v. Tidwell, 108 Cal.App.2d 60, 63, 238 P.2d 21; People v. Morgan, supra, 9 Cal.App.2d 612, 615, 50 P.2d 1061; People v. Northcott, 209 Cal. 639, 646--647, 289 P. 634.)

Section 1016 of the Penal Code provides, in pertinent part, that '. . . the court may for good cause shown allow a change of plea at any time before the commencement of the trial. . . .' 'The burden of showing good cause for the change of plea rests upon the defendant.' (People v. Morgan, supra, 9 Cal.App.2d at p. 615, 50 P.2d at p. 1062; see People v. Egan, 218 Cal. 408, 410--411, 23 P.2d 755.) Accordingly, the defendant is required to show the trial judge that there is merit to his claim of former acquittal or once in jeopardy. (People v. Gibbs, 12 Cal.App.3d 526, 536, 90 Cal.Rptr. 866; People v. Morgan, supra; People v. Egan, supra.)

In support of his motion defendant produced the testimony of juror Beckendorf. No other evidence was produced. We apprehend that Mrs. Beckendorf's testimony is not in the nature of an attempt to impeach a jury's verdict which would only be admissible in certain limited situations. ² (See People v. Hutchinson, 71 Cal.2d 342, 346--348, 78 Cal.Rptr. 196, 455 P.2d 132; Putensen v. Clay Adams, Inc., 12 Cal.App.3d 1062, 1082, 91 Cal.Rptr. 319; Evid. Code, § 1150.) In the present case no verdict was rendered at all in view of the failure of the jury to agree upon a verdict. In such a situation the status of the case is the same as if there had been no trial. (People v. Disperati, 11 Cal.App. 469, 475--476, 105 P. 617; People v. Messerly, 46 Cal.App.2d 718, 721, 116 P.2d 781; People v. Crooms, 66 Cal.App.2d 491, 499, 152 P.2d 533.) Accordingly, there is no verdict to impeach. We do not apprehend that because of the testimony of Mrs. Beckendorf a court may now go behind the first jury's declaration that there was no reasonable probability that the jury could agree on a verdict.

The trial judge at the first trial polled each juror individually as to whether he or she believed that there was a reasonable probability that the jury could arrive at a verdict. Each juror, including Mrs. Beckendorf, responded unequivocally that there was no such probability. The judge then declared a mistrial. The determination whether there is a 'reasonable probability that the jury can agree' is for the trial judge, and not the jury, and must be made on the basis of his own impression of the psychological situation involved. (People v. Sullivan, 101 Cal.App.2d 322, 328, 222 P.2d 645; People v. Greene, 100 Cal. 140, 142, 34 P. 630; People v. Finch, 213 Cal.App.2d 752, 762--763, 29 Cal.Rptr. 420; Pen.Code, § 1140.) As stated in People v. Ham, 7 Cal.App.3d 768, 775, 86 Cal.Rptr. 906, 910, 'This determination (i.e., that there is no reasonable probability a jury can resolve its differences and render a verdict), in each instance, rests in the sound discretion of the trial judge, exercisable on reference to and consideration of all factors before him (citations) . . ..' In the present case there is nothing in the record to indicate that the judge in the first trial had before him any inkling or information that the jurors had agreed that defendant was not guilty of first degree murder and second degree murder and that their disagreement was only as to whether he should be convicted of manslaughter or acquitted. All that he was told by the jury was that they could not agree upon a verdict.

We are persuaded, moreover, that in the trial of an offense with necessarily included offenses the jury question is whether the accused committed the offense charged or any included offense. A necessarily included offense is that which occurs when an offense cannot be committed without necessarily committing another offense. (People v. Greer, 30 Cal.2d 589, 596, 184 P.2d 512; People v. Krupa, 64 Cal.App.2d 592, 598, 149 P.2d 416.) A jury may find a defendant guilty of an included offense (Pen.Code, § 1159), and a finding that the defendant is guilty of the lesser included offense necessarily constitutes a finding of not guilty of the greater offense. (In re Hess, 45 Cal.2d 171, 176, 288 P.2d 5; People v. Harris, 191 Cal.App.2d 754, 759, 12 Cal.Rptr. 916.) A person cannot be convicted of both an included and the greater offense because, in essence, only one offense is committed. (People v. Greer, supra, at pp. 600--601, 184 P.2d 512; People v. Blue, 161 Cal.App.2d 1, 4--5, 326 P.2d 183 (disapproved on other grounds in People v. Tideman, 57 Cal.2d 574, 587--588, 21 Cal.Rptr. 207, 370 P.2d 1007).) Accordingly, if follows that, since only one offense can be committed where the offense contains a necessarily included offense, a finding of not guilty is an acquittal of the included offense as well as the greater offense.

In view of the foregoing principles we apprehend that in the trial of an offense which necessarily includes a lesser offense, as was the case here, ³ the jury, before they can return a verdict, must, on the one hand, agree that the defendant is guilty of the offense charged or any included offense or, on the other hand, agree that he is not guilty of any offense, whether the greater or the lesser. We are of the opinion that although the law contemplates the conviction of an accused of a lesser offense when the evidence is insufficient to justify a conviction for the greater offense charged (Pen.Code, § 1159; People v. Wilder, 151 Cal.App.2d 698, 708, 312 P.2d 425; People v. McCoy, 25 Cal.2d 177, 194, 153 P.2d 315), an acquittal of the...