People v. Odom, Cr. 610

• Decision Date: 16 January 1970
• Docket Number: Cr. 610
• Citation: 83 Cal.Rptr. 520,3 Cal.App.3d 559
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Wendell Wayne ODOM, Defendant and Appellant.

Page 520

83 Cal.Rptr. 520

3 Cal.App.3d 559

PEOPLE of the State of California, Plaintiff and Respondent, v. Wendell Wayne ODOM, Defendant and Appellant.

Cr. 610.

Court of Appeal, Fifth District, California.

Jan. 16, 1970.

Lerrigo, Thuesen & Thompson, Gerald L. Thuesen and Timothy R. Nibler, Sandell & Hill and Floyd S. Hill, Fresno, for appellant.

Thomas C. Lynch, Atty. Gen., Jack R. Winkler and A. Wells Petersen, Deputy Attys. Gen., Sacramento, for respondent.

GARGANO, Associate Justice.

Appellant was charged with murder in the second degree in the first count of the information, and after jury trial was convicted of voluntary manslaughter. ¹ His appeal centers on the perplexing question which came into existence when the trial judge purported to dismiss the murder charge, presumably pursuant to Penal Code section 1118.1, while at the same time declaring that the court retained jurisdiction over the lesser included offense of voluntary manslaughter. ² He contends that because he was not charged with voluntary manslaughter in a separate count, the court's dismissal of the charge of murder not only resulted in an acquittal of that charge, but be necessity resulted in an acquittal of the lesser included offense as well. The thrust of appellant's argument is that the jury's verdict finding appellant guilty of voluntary manslaughter, after he was acquitted by the court of murder, is contrary to the mandate of Penal Code, section 1118.2, which states that an acquittal under section 1118.1 is a bar to further prosecution. On the other hand, respondent argues that the court's order dismissing the murder charge was a nullity from the inception and, because it inured to appellant's benefit, he had no reason to complain.

The relevant facts of this bizzare case are these: Appellant was initially charged with voluntary manslaughter in violation of Penal Code, section 192, subd. 1, and assault with a deadly weapon in violation of Penal Code, section 245. Subsequently, the district attorney filed an amended information charging appellant with murder in the second degree instead of voluntary manslaughter. The cause proceeded to trial on this basis.

On the fifth day of trial, at the conclusion of the presentation of the People's case, appellant moved for a 'dismissal' of the charge of murder in the second degree under section 1118.1 of the Penal Code. This is what he said:

'Your Honor, the People rested yesterday afternoon. That means their case is concluded. At this time the defendant, Wayne Odom, will move for a dismissal of the charge of murder under the provisions of 1118.1. This is a new code section * * *'

The court then answered:

'I am not familiar with it. Unfortunately this is the first murder case the court has actually tried since it returned from Juvenile, and the statute was not in existence the last time I tried a murder case.'

Defense counsel went on to explain that the statute provided that at the close of either party's evidence a motion for dismissal could be made for insufficiency of the evidence under the law, and that he felt that his motion should be granted on that basis. After more discussion the trial judge said:

'I am not concerned with what the appellate court is going to do * * *. I am concerned with what the court is going to do here. What I want to know from you is don't you, from the facts which you have presented, have at the very best a weak manslaughter case?'

Then the court added:

'Well, you have to look to the intent of the statute. What is it intended to correct; the scope of it? All right. The court needs no more argument. Motion of the defendant to dismiss the murder charge is granted and the murder charge is dismissed. The case will go to the jury on the question of whether there is manslaughter, and whether it's justifiable homicide. All right, call the jury. The evidence is inadequate to support a murder charge under the facts of the case.'

After the court granted appellant's motion, his counsel made an opening statement to the jury and then commenced to present evidence in appellant's defense of the remaining charges, voluntary manslaughter and assault with a deadly weapon. Sometime later the following transpired.

'MR. MITCHELL: At this time, your Honor, I would like the record to be clear as to what charges that we are proceeding against the defendant at this time.

THE COURT: The included offense of manslaughter and assault as charged in Count Two.

MR. MITCHELL: All right. The People would like to have the defendant and counsel consent to this, your Honor--on our--

THE COURT: Consent? I didn't dismiss the manslaughter charge.

MR. WANGER: Your Honor--

THE COURT: Is it necessary?

MR. MITCHELL: We feel it's necessary, your Honor, for the record.

THE COURT: He made the motion. It's at his request. I don't think there is any necessity for it but--

MR. HILL: Your Honor, this catches me as a little surprise, and I would like to research the law on it. I made the motion, it is true enough, and well, I just am not in a position to answer without researching the point. This is a new code section as I indicated to the Court.

THE COURT: Well, it was not the Court's intent to do anything other than to reduce the charge from second degree murder to manslaughter. In other words, any doubt in anybody's mind, I will have to set aside the granting of the motion on mistaken inadvertence if there is any problem for anybody.

MR. WANGER: If the People could be heard very briefly, our understanding of 1118.2 which reads as follows:

'A judgment of acquittal entered pursuant to the provision of Section 1118, or 1118.1 shall not be appealable and is a bar to any other prosecution for the same offense. The same offense has been interpreted to mean'--and I am quoting from People vs. or in re Hess, 45 Cal.2d 171. (288 P.2d 5)

'A person cannot be convicted of an offense other than a necessarily included offense not charged against him by indictment or information, whether or not there was evidence at his trial to show that he had committed that offense.'

Second, the conviction of the offense not charged is excess of jurisdiction and void, hence a judgment based upon it will be reversed on appeal. Citing in re Hess again.

THE COURT: Well, the court--

MR. WANGER: It's our understanding that former jeopardy would bar any proceedings as far as the homicide here.

THE COURT: The Court's intent was to, in effect, dismiss the higher charge of murder to leave the lesser included offense of manslaughter stand for trial. That was my announcement at the time, and if there is any reservation on the part of the defendant, then I will have to reinstate and set aside the matter on my mistake. So I don't see the necessity of his consenting, but if he deems it necessary--

MR. HILL: If the People refuse to proceed without the consent, I don't see that the defendant should be placed in this position, to consent either, your Honor. The Court's made its ruling based upon our motion and I think that's sufficient. I would want to research the law, I feel, and I owe an obligation to the Court and to the defendant before I go making consentient agreements with the District Attorney. It's not my trial. It belongs to Mr. Odom, and I understand the Court's ruling, and I don't think the D.A. should try to force the defendant--

THE COURT: Well, just put it this way rather plainly: The Court dismissed the higher charge and not the lesser included offense. The lesser included offense is the offense the defendant is now standing trial for, and I have in mind manslaughter, whether it be involuntary or voluntary, and I am not differentiating. I will instruct on whatever is requested in that regard, and any other included offense contained within the murder charge predicated upon the facts of the case which...