People v. Ham

• Decision Date: 20 May 1970
• Docket Number: Cr. 7577
• Citation: People v. Ham, 7 Cal.App.3d 768, 86 Cal.Rptr. 906 (Cal. App. 1970)
• Court: California Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Dennie Lee HAM, Defendant and Appellant.

Page 906

86 Cal.Rptr. 906

7 Cal.App.3d 768

PEOPLE of the State of California, Plaintiff and Respondent, v.Dennie Lee HAM, Defendant and Appellant.

Cr. 7577.

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

May 20, 1970.

Hearing Denied July 16, 1970.

Leonard Luther Nolting, Oakland, for appellant(under appointment of the Court of Appeal).

Thomas C. Lynch, Atty. Gen., of California, Robert R. Granucci, Gloria F. DeHart, Deputy Attys.Gen., San Francisco, for respondent.

MOLINARI, Presiding Justice.

Defendant appeals from a denial of his motion for a new trial¹ and from a judgment entered pursuant to a jury verdict convicting defendant of armed robbery and assault with a deadly weapon.He makes several contentions.We shall separately discuss each contention and the facts pertinent thereto.

Double Jeopardy

Pursuant to an amended indictment defendant was charged with armed robbery (violation of Pen.Code, § 211)² in count one, assault with a deadly weapon (violation of § 245, subd. (b)) in count two, and with attempted murder (violation of §§ 667and187) in count three.A jury trial commenced on June 24, 1968 in which the trial court determined that the jurors were unable to agree upon a verdict.The jury was discharged and the cause was reset for trial.Prior to the commencement of the second trial defendant moved to dismiss counts two and three on the grounds of former jeopardy.The motion was denied.The jury, in the second trial, found defendant guilty of counts one and two and not guilty of count three.

Defendant argues that his retrial was violative of his rights against double jeopardy ³ in that the trial court erred in prematurely discharging the jury in the first trial because of deadlock in that the court failed to sufficiently determine that resolution was not possible or to encourage the jurors to resolve their differences.He argues that the discharge was tantamount to an acquittal and that his subsequent trial therefore placed him in double jeopardy.In the alternative, defendant argues that since the first jury did not deliberate on counts two and three, the discharge was an implied acquittal as to those counts, and, therefore, he was subjected to double jeopardy as to those counts.In this regard he relies on the statement by the jury foreman that the jury had deliberated on and considered only count one.

In considering these contentions we observe, initially, that we are concerned with double jeopardy in regard to the second count only.The record discloses that defendant's plea of double jeopardy was entered only as to counts two and three.Accordingly, the failure to enter a plea as to count one in the court below constitutes a waiver thereof.(People v. Venturi, 196 Cal.App.2d 244, 245, 16 Cal.Rptr. 505;People v. Foster, 199 Cal.App.2d 866, 873--875, 19 Cal.Rptr. 283;People v. Gomez, 229 Cal.App.2d 781, 784, 40 Cal.Rptr. 616.)As regards count three, any consideration of the plea of double jeopardy as to this count has been rendered moot by virtue of the fact that defendant was found not guilty as to this count.An appellate court will not review error unless it is prejudicial, i.e., it must be error that substantially affects the rights and obligations of the appellant and therefore results in a miscarriage of justice.(Code Civ.Proc. § 475;Kyne v. Eustice, 215 Cal.App.2d 627, 635, 30 Cal.Rptr. 391;People v. Ghione, 115 Cal.App.2d 252, 254, 251 p.2d 997.)

Directing our attention to count two, we observe that 'jeopardy 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, 10 Cal.2d 350, 352, 74 P.2d 243, 244;Paulson v. Superior Court, 58 Cal.2d 1, 5, 22 Cal.Rptr. 649, 372 P.2d 641.)If a jury is discharged without first having rendered a verdict, a defendant cannot be retried and placed in jeopardy unless the jury's discharge was consented to or there was legal necessity to discharge the jury.(Cardenas v. Superior Court, 56 Cal.2d 273, 275, 14 Cal.Rptr. 657, 363 P.2d 889;Paulson v. Superior Court, supra.)

In the present case there was no consent by defendant to the discharge.Hence our inquiry is whether there was a legal necessity for the discharge.

Such a legal necessity exists if, at the conclusion of such time as the court deems proper, it satisfactorily appears to the court that there is no reasonable probability that the jury can resolve its differences and render a verdict.Under these circumstancesthe court may properly discharge the jury and reset for trial.(§ 1140⁴;People v. Griffin, 66 Cal.2d 459, 464, 58 Cal.Rptr. 107, 426 P.2d 507;Paulson v. Superior Court, supra, 58 Cal.2d 1, 5, 22 Cal.Rptr. 649, 372 P.2d 641.)This determination, in each instance, rests in the sound discretion of the trial judge, exercisable on reference to and consideration of all the factors before him (Paulson v. Superior Court, supra, at p. 6, 22 Cal.Rptr. 649, 372 P.2d 641;People v. Huff, 255 Cal.App.2d 443, 447, 63 Cal.Rptr. 317;People v. Caradine, 235 Cal.App.2d 45, 47, 44 Cal.Rptr. 875;People v. Carter, 68 Cal.2d 810, 815, 69 Cal.Rptr. 297, 442 P.2d 353), and will not be disturbed on appeal unless there is a strong showing of a manifest miscarriage of justice and no possibility for different opinions on the facts.(Brown v. Newby, 39 Cal.App.2d 615, 618, 103 P.2d 1018;Estate of Ockerlander, 195 Cal.App.2d 185, 188, 15 Cal.Rptr. 404;Waller v. Brooks, 267 Cal.App.2d 389, 394, 72 Cal.Rptr. 228.)

Adverting to the instant case in the light of these principles we observe the following facts attendant on the discharge of the jury at the first trial.After the deliberation the court asked the jury if it had reached a verdict.The foreman replied 'Your Honor, we have not,' and indicated a deadlock on each of four ballots.The court then asked the foreman if he felt the jury could reach a verdict if they deliberated longer.The foreman stated he did not believe a verdict could be reached.The court then asked the jury as a whole if this was their opinion.Only one juror responded orally to this inquiry with the statement 'Without more evidence.'The court then announced that 'Jurors being unable to reach a verdict, the matter will be reset for trial on July 8th at 10:00 A.M.'The court then discharged the jury 'from further attendance upon the Court' and remanded defendant to the custody of the sheriff.However, before the jury left the jury box the court made some observations to the jury concerning the jury system and then made the following inquiry: 'Do I gather that those votes were in respect to each form of verdict?'The foreman responded: 'Your honor, we took up the first indictment only.* * * We were working on that one and taking four ballots on that one.'The court then asked 'The robbery charge?' and the foreman responded 'Yes.'The trial judge then excused the jury.

From the foregoing it appears that at the time the trial judge first ordered that the jury be discharged he was under the impression that the jury was unable to agree on any of the three counts.However, While the jury was still in the box the judge learned that the jury had deliberated only as to count one and that it had not deliberated at all on counts two and three.Under these circumstances the trial judge was empowered to send the jury back to deliberate on these counts notwithstanding that he has declared his intention to discharge them.(SeePeople v. Powell, 99 Cal.App.2d 178, 180--182, 221 P.2d 117.)Not only was he justified in doing so, but it was his duty to do so.Section 1160 provides, in pertinent part, that 'Where two or more offenses are charged in any accusatory pleading, if the jury cannot agree upon a verdict as to all of them, they may render a verdict as to the charge or charges upon which they do agree, and the charges on which they do not agree may be tried again.'This section takes cognizance of the principle that each count in an accusatory pleading which charges a separate and distinct offense must stand on its own merit and the disposition of one count has no effect or bearing on the other counts in the accusation.(§ 954;People v. Carothers, 77 Cal.App.2d 252, 254, 175 P.2d 30;People v. Hernandez, 242 Cal.App.2d 351, 358, 51 Cal.Rptr. 385;People v. Villa, 156 Cal.App.2d 128, 133, 318 P.2d 828;People v. Tideman, 57 Cal.2d 574, 585, 21 Cal.Rptr. 207, 370 P.2d 1007.)

Accordingly, since each count was entitled to be severally and finally disposed of on its own merits, the fact that the jury was unable to agree upon a verdict as to count one and the trial judge was justified in declaring a mistrial as to that count because legal necessity required it, did not affect counts two and three upon which the jury had not yet deliberated.Therefore, when the jury in the present case was discharged without returning a verdict as to counts two and three, or without any legal necessity for such discharge, jeopardy attached to defendant as to counts two and three.(SeePaulson v. Superior Court, supra, 58 Cal.2d 1, 5, 22 Cal.Rptr. 649, 372 P.2d 641.)Such discharge was equivalent to a verdict of acquittal as to those counts.(Jackson v. Superior Court, supra, 10 Cal.2d 350, 356, 74 P.2d 243;Paulson v. Superior Court, supra.)

By reason of the acquittal as to counts two and three resulting from the discharge of the jury, only count one remained in the accusation.Since a plea of once in jeopardy was not interposed as to count one, we need not determine whether the trial court abused its discretion in determining that there was no reasonable probability that the jury could agree upon a verdict as to this count.

Self-Incrimination

Defendant argues that the court's failure to give an instruction admonishing the jury to draw no unfavorable inferences from defendant's failure to testify was violative of...