People v. McJimson

• Decision Date: 16 September 1982
• Docket Number: Cr. 39956
• Citation: 185 Cal.Rptr. 605,135 Cal.App.3d 873
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. General McJIMSON, Defendant and Appellant.

Page 605

185 Cal.Rptr. 605

135 Cal.App.3d 873

The PEOPLE, Plaintiff and Respondent, v. General McJIMSON, Defendant and Appellant.

Cr. 39956.

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

Sept. 16, 1982.

Norman W. De Carteret, Sherman Oaks, under appointment by the Court of Appeal, for defendant and appellant.

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., S Clark Moore, Asst. Atty. Gen., Edward T. Fogel, Jr., and Robert R. Anderson, Deputy Attys. Gen., for plaintiff and respondent.

ERIC E. YOUNGER, ^* Associate Justice.

Appellant timely entered a plea of "once in jeopardy" at the commencement of his second trial for the murder of Cynara Pope, the first having been declared a mistrial after a jury was impanelled because the deputy district attorney assigned the case was ill. At the second trial, McJimson was found guilty of second degree murder and sentenced to state prison. ¹

Because we conclude the judgment must be reversed on "double jeopardy" grounds, no exposition of the facts of the crime is necessary, but this court is mindful that the victim was the mother of a small child and that its ruling precludes retrial of a man convicted by a jury of beating her to death.

While not wishing to be unduly harsh on the trial judge, who attempted to be both fair and solicitous to the needs of counsel, our ruling, to which we feel absolutely compelled, makes brutally clear the need for extreme care--by deputy district attorneys as well as judges--in matters such as the declaration of mistrials.

A jury was impanelled on Thursday, November 13, 1980, and instructed to return to begin the trial on the following Monday, the 17th. By that date, however, Mr. Weiss, the deputy district attorney assigned to try the case, had come down with a strep throat. While no "formal" finding was made on this issue, the record is clear that Mr. Weiss' condition was completely incapacitating and that both the court and defense counsel agreed that it was.

The trial was continued, generally from day-to-day, until November 24, whereupon the court ascertained that Mr. Weiss was still too sick to begin trial. The following colloquy then took place between defense counsel (Mr. Lenoir), the court and Mr. Vezzani, the deputy district attorney "standing in" for Mr. Weiss:

"THE COURT: Mr. Vezzani, I think the first thing that I ought to do is let Mr. Lenoir get his request on the record, which I believe is something like, 'Don't you have someone else that can try this case?'

"MR. LENOIR: Yes. I put that on the record Friday, Your Honor.

"MR. VEZZANI: Notwithstanding Mr. Lenoir's request, I don't know what he is going to do about it. He might go upstairs and talk to Mr. Ron Carroll, who is the Director of Central Operations. He might try talking to the calendar deputy from the court Mr. Weiss' case came from. I don't know where the files are. They may be in Mr. Weiss' office.

"I would have a feeling that because of the charges here, whoever would take over the case would need time to prepare it anyway, and by that time the likelihood is Weiss would be back anyway.

"What do you want to do?

"MR. LENOIR: I discussed it with my client in very great detail. Both he and I, as the court knows, have been very considerate in this matter. We were considerate when Mr. Weiss was engaged in another trial. We gave him an opportunity, waived time before.

"I discussed it with my client last week. He was totally upset last week about it, but somehow he agreed to go on until today.

"MR. VEZZANI: What would you like me to do, Gerry?

"MR. LENOIR: Nothing in particular. I don't know. I don't know what to say.

"MR. VEZZANI: You have jeopardy attached, so what you are trying to say [is] you got us by the short and curlies and you want to have someone walk in the door and say, 'I don't know what the case is about, but get on the stand and tell your story.'

"MR. LENOIR: You know better than that. I have a client to represent. The client is insisting. I got him to go along this far."

The record contains a great deal of other conversation between counsel and the court but, significantly, at no point can it be shown, even by some sort of implication or silence, that defense counsel or his client agreed to the granting of a mistrial. To the contrary, counsel advised the court that he and his client "lik[ed] this jury."

The Attorney General concedes, as surely he must, that article I, section 13, of the California Constitution prevents a person from being placed in jeopardy twice for the same offense. The question of what constitutes "being placed on trial" or being "in jeopardy" is one which pretty well requires an arbitrary answer. There is nothing more logically compelling about the swearing in of the jury than some other point in a trial such as the swearing of the first witness, the first question being asked of a witness or the trial judge's telling the People to "proceed." But plainly swearing the jury is California's time when jeopardy is deemed to "attach" and, after that point, the jury's being discharged is the equivalent to an acquittal, barring retrial unless "legal necessity" for the discharge is present. (Larios v. Superior Court (1979) 24 Cal.3d 324, 155 Cal.Rptr. 374, 594 P.2d 491.)

The leading case on "legal necessity" in California is Curry v. Superior Court (1970) 2 Cal.3d 707, 87 Cal.Rptr. 361, 470 P.2d 345, in which the trial judge, because he felt bizarre testimony from a key witness had "prejudiced both sides," declared a mistrial. The Supreme Court, in addition to confirming the timing of "jeopardy attaching," held unequivocally that, absent clear consent of a defendant or his counsel, a mistried case may not be retried except for the inability of the jury to agree (PEN.CODE, § 1140 )², death or serious illness of a juror (§ 1123) or some other extraordinary cause "beyond the control of the court" (§ 1141; Cardenas v. Superior Court (1961) 56 Cal.2d 273, 14 Cal.Rptr. 657, 363 P.2d 889). Even a cause so extreme as known juror misconduct does not warrant declaring a mistrial (i.e., permit a retrial) without a defendant's consent. (Larios, supra.)

Because we recognize the enormity of reversal of a killer's conviction under circumstances which will not permit a retrial, we have undertaken a review of not only federal precedent in the area, but that of our sister states as well. Notwithstanding the clear holding of our Supreme Court that our state constitutional standard (at art. I, § 13) is different from and higher than that demanded by the United States Supreme Court (Curry, supra, at 716, 87 Cal.Rptr. 361, 470 P.2d 345, citing Cardenas, supra, we have made that review to determine whether cases factually more similar to the instant one than Curry might suggest a different result. (See 1 Witkin, Cal. Crimes (1978 pocket supp.) § 183.)

At first blush, the federal standard, which has come to be the constitutionally-mandated minimum for 14th Amendment analysis of state convictions (Benton v. Maryland (1969) 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707), appears significantly lower than our own, permitting retrial after the declaration of a mistrial in a variety of situations since the landmark 1824 opinion by Mr. Justice Story in United States v. Perez, 9 Wheat. 579, 6 L.Ed. 165.

But, whether the federal standard is lower or not, it can be said that the cases enunciating it deal with issues which are simply different from any in the instant case. Illinois v. Somerville (1973) 410 U.S. 458, 93 S.Ct. 1066, 35 L.Ed.2d 425, for example, permits a state to retry a defendant after the declaration of a mistrial (following the jury being sworn) in a situation where the charging indictment was fatally defective and, under relevant state law, not amendable. Were the trial to have been held, reversal of a conviction would have been essentially automatic. Attempting to define the "manifest necessity" and "ends of public justice" standards used by the United States Supreme Court since Perez, Justice Rehnquist held: "A trial judge properly exercises his discretion to declare a mistrial if an impartial verdict cannot be reached, or if a verdict of conviction could be reached but would have to be reversed on appeal due to an obvious procedural error in the trial. If an error would make reversal on appeal a certainty, it would not serve 'the ends of public justice' to require that the Government proceed with its proof when, if it succeeded before the jury, it would automatically be stripped of that success by an appellate court." (410 U.S. at 464, 93 S.Ct. at 1070.) ³

We have found no case ⁴ suggesting that prosecutorial illness is a proper basis for declaration of a mistrial, regardless of the particular language employed to define the standard. The only case expressly dealing with the issue in recent years is Commonwealth v. Brooks (1973) 225 Pa.Super. 247, 310 A.2d 338, in which the court stated "Recent decisional law leads us to the inexorable conclusion that such a reason for subjecting the defendant to a second trial can hardly be considered tantamount to 'manifest necessity'." (310 A.2d at 339.)

Respondent cites People v. Manson (1976) 61 Cal.App.3d 102, 132 Cal.Rptr. 265, cert. den. (1977) 430 U.S. 986, 97 S.Ct. 1686, 52 L.Ed.2d 382 for the proposition that "absence of counsel may qualify as legal necessity." But that case was one in which defense counsel (for a codefendant, Van Houten) disappeared without a trace near the end of a trial. Those are very substantial differences from the instant case. The most obvious distinction is that the defendant personally favored a mistrial after her lawyer's disappearance, as her substitute counsel simply could not realistically argue her cause. Secondly, counsel was absolutely missing (under the circumstances of that case, quite likely never to return).

Here, we deal with a strep throat, a serious illness, but not one with long-term...