Rodriguez v. Superior Court

GIBSON, C. J.

The object of this proceeding is to prevent the respondent court from retrying petitioner on a criminal charge of which he allegedly has been acquitted. Petitioner was tried on an information containing two counts, the first charging statutory rape, and the second accusing him of contributing to the delinquency of the minor involved in count one in violation of section 702 of the Welfare and Institutions Code. He was found not guilty of rape and of the included offense of attempted rape. The jury disagreed on the charge of violating section 702, and petitioner seeks to restrain the court from trying him again for this offense. He claims he has been once in jeopardy and that therefore the court is without jurisdiction to proceed against him.

Prohibition is an appropriate remedy to prevent the retrial of a defendant who has been in jeopardy.

(Jackson

v.

Superior Court,

10 Cal.2d 350 [74 P.2d 243, 113 A.L.R. 1422].)

In support of his claim of double jeopardy petitioner asserts that since both counts are based on the same occurrence or transaction, the offense defined in section 702 is necessarily included in the charge of rape or attempted rape and that an acquittal of the greater offenses is a bar to prosecution of the lesser offense. The test, however, is the identity of the offenses and not the identity of the occurrence from which they arise. A defendant may be convicted of separate offenses arising out of the same transaction when each charge is separately stated and the offenses differ in their elements and one is not included in the other.

(People

v.

Kearney,

20 Cal.2d 435 [126 P.2d 612];

People

v.

Hoyt,

20 Cal.2d 306, 317 [125 P.2d 29]; see, also,

People

v.

Craig,

17 Cal.2d 453, 457-458 [110 P.2d 403];

People