People v. Lovely
Decision Date | 23 March 1971 |
Docket Number | Cr. 18470 |
Citation | 16 Cal.App.3d 196,93 Cal.Rptr. 805 |
Court | California Court of Appeals Court of Appeals |
Parties | The PEOPLE, Plaintiff and Respondent, v. Frank L. LOVELY, Defendant and Appellant. |
Cornelia Shuford, Los Angeles, under appointment by the Court of Appeal, for defendant and appellant.
Thomas C. Lynch and Evelle J. Younger, Attys. Gen., William E. James, Asst. Atty. Gen., and Russell Iungerich, Deputy Atty. Gen., for plaintiff and respondent.
Defendant was charged with assault with a deadly weapon, in violation of section 245 of the Penal Code. On January 20, 1970, a jury trial commenced. At the close of the trial, during the jury's deliberation, the jury at its request was returned to the jury box for the reading of one witness' testimony and for the re-reading of jury instructions. The jury was then retired for further deliberation. On January 23 the jury sent a note to the court stating they were a 'hung jury.' The court ordered the jury returned to the jury box and inquired whether or not it was a hung jury. The jury as a group stated that it was hopelessly hung. Whereupon, the court declared the trial a mistrial, excused the jury and reset the case for a jury trial.
On January 29, 1970, at the commencement of the retrial of the case, defendant filed a 'once in jeopardy' notice. On January 30, defendant's plea of once in jeopardy was denied. The jury returned its verdict of guilty as charged.
Defendant's motion for new trial and probation were denied and defendant was sent to state prison for the term prescribed by law.
Defendant appeals from the judgment of conviction.
On November 4, 1969, Norman Heath was employed by the El Rey Hotel as security guard. He first noticed defendant at the clerk's desk when the hotel clerk told him to usher defendant out of the hotel to get some fresh air. He thereupon took defendant by the arm and started walking defendant toward the front door, a distance of approximately 60 feet. As they reached the door defendant pulled Mr. Heath off balance and struck him a couple of times in the back. Someone called, 'He's got a knife' and with that defendant disappeared on Sixth Street. Mr. Heath had a night stick strapped across his shoulder, but used it only after he was stabbed by defendant. He was promptly thereafter taken to the receiving hospital and thereafter to General Hospital where he remained for eight days for treatment of serious knife wounds.
Heath received the following injuries from defendant's stabs or cuts: Approximately 11-inch cut from the navel to the mid-chest area; a cut under the right arm to the lower mid-back area to the left of the spinal column, which cut or stab wound caused a ruptured spleen. It was necessary for his spleen to be removed.
Jim Brown, an employee of the El Rey Hotel, was in the hotel lobby on November 4. He noticed defendant at the desk creating a disturbance and he observed Mr. Heath escorting defendant toward the front door. He also observed defendant 'going into his pocket and pulling something out.' He called to Heath that defendant 'had a knife' and it was then that defendant hit Heath with his elbow, knocking him off balance. As Heath's back was turned to defendant, Heath was struck by defendant who attacked him with a knife making several striking motions. Jim Brown testified that after he was wounded Heath got his night stick off his shoulder and struck at defendant as defendant was running from the scene. Heath did not strike defendant before he was stabbed. Heath went over to the stairs and sat down to wait for the ambulance.
Dr. Fulvio Serafini was on duty at the receiving hospital when Mr. Heath was brought in. The doctor observed two stab wounds, one on the right axilla (shoulder) region and the other on the left thoraxolumbar junction (lower left back).
Defendant testified in his own behalf. He said that he had lived at the El Rey Hotel since 1960. On November 4, 1969, he was passing through the hotel lobby, and going out to the store to get some matches. He had his hat on and was carrying a walking stick. Mr. Heath approached him and asked where he lived. He responded that he lived at the hotel in room 230. Mr. Heath asked for his key and told defendant that he must either check the key in or give it to him. Mr. Heath tried to take the key out of his hand and when defendant refused, Heath took his night stick from his shoulder strap and began hitting defendant with it. He thereafter pushed defendant towards the front door giving him 'the bum's rush' and continued to hit him about the head and shoulders with the night stick. As the two men struggled towards the front door, defendant got a knife from his pocket. Heath was facing him as defendant stabbed Heath. Defendant was not sure that he struck Heath in the stomach, but he was sure that he did not stab him in the back. Defendant walked from the scene of the fracas and then ran down Sixth Street.
Defendant contends that he was placed in double jeopardy by a second trial after the first trial ended in a hung jury. We find no merit in this contention. Before a mistrial was declared by the court in the first trial, the following proceedings were had:
'THE COURT: Let the record show defendant is present with counsel and Deputy District Attorney, Mr. Traeger. Twelve jurors are present in the box and the alternative juror.
'I have received a note which we will mark Court's Exhibit 3 which reads: 'We all find the defendant guilty but cannot agree on assault charges or felony.
"1/23/70, L. J. Terrell.'
'We will have this note sealed after conclusion of the proceedings. Mr. Terrell?
'The jury foreman answered: 'Yes, sir.'
'As a jury, have you taken more than one ballot?
'None indicate affirmative.
'Well, you have had two long days. Do you have any further questions, Mr. Traeger, you would ask the jury?
'The court will declare this to be a hung jury and will declare this a mistrial.
'Do any of the jurors feel, without further instructions, the jury could arrive at a unanimous verdict?
'(A) jeopardy defense is not available if the jury is discharged for some recognized proper cause. Section 1141 of the Penal Code provides that 'the cause may be again tried' where a jury 'is discharged or prevented from giving a verdict by reason of an accident or other cause'; and section 1140 of the same code declares that 'the jury cannot be discharged after the cause is submitted to them * * * unless, at the expiration of such time as the court may deem proper, it satisfactorily appears that there is no reasonable probability that the jury can agree. " (People v. Demes, 220 Cal.App.2d 423, 433, 33 Cal.Rptr. 896, 901.)
In the case at bench the foreman advised the court, as spokesman for the jury, that several oral ballots and two written ballots had been taken. In response to the court's further inquiry the foreman responded that the numercial division of the jury, 6 to 6, had not changed significantly over the last few ballots. The foreman declared it to be his belief that further deliberation would not enable the jury to arrive at a unanimous verdict. The court then inquired of the individual jurors as to the probability of reaching a verdict as follows:
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