Cardenas v. Superior Court

California Supreme Court Jul 20, 1961 No. L. A. No. 26406Published

Before: Dooling

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Holding. A defendant may withdraw a motion for a mistrial at any time before the court has acted upon it; therefore, a mistrial granted over the defendant's subsequent objection constitutes former jeopardy.

Issues

Whether a defendant may withdraw a motion for a mistrial before the court has ruled upon it.
Whether a mistrial granted over the defendant's objection after the withdrawal of his motion constitutes former jeopardy under the California Constitution.

Disposition. Writ of prohibition issued.

Quotations verified verbatim against the opinion

“The narrow question presented by this record is whether a defendant, after he has made a motion for a mistrial and before the court has acted upon it, may effectively withdraw his motion. We are satisfied that he can.”

“The record is clear that counsel was not consenting and the case thus must be treated as one in which the mistrial was granted on the prosecutor's motion over the petitioner's objection, a situation which clearly supports the plea of once in jeopardy.”

56 Cal.2d 273 (1961) FIDEL CARRILLO CARDENAS, Petitioner,

THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; THE PEOPLE, Real Party in Interest.

L. A. No. 26406. Supreme Court of California. In Bank.

July 20, 1961. David C. Marcus for Petitioner.

No appearance for Respondent.

William B. McKesson, District Attorney, Harry Wood and Robert J. Lord, Deputy District Attorneys, for Real Party in Interest.

DOOLING, J.

Petitioner seeks a writ of prohibition to prohibit any further proceedings upon an information charging him with the crime of possessing narcotics. The record shows the following facts:

Petitioner was arrested and charged by information with possessing heroin and marijuana in violation of Health and Safety Code, section 11500. He was arraigned, and the matter [275] came to trial on April 25, 1961. A jury was impaneled, and a number of witnesses testified for the prosecution and underwent defense counsel's cross-examination.petitioner took the stand and testified in his own behalf. Upon cross-examination by the prosecutor, petitioner was asked a question which caused defense counsel to object and to move for a mistrial. The prosecutor joined in the motion. There ensued a dispute between defense counsel and the prosecutor as to the procedural effect of the prosecutor's having joined in the motion for a mistrial, the trial court indicating that the turn taken by the proceedings "is all right with me." Defense counsel then requested that his motion be withdrawn, and the prosecutor asked the court to rule on the motions as they stood. The trial judge called both attorneys into chambers, where proceedings which do not appear in the record took place. When the proceedings resumed in the courtroom, defense counsel again requested that his motion for a mistrial be withdrawn. The request was denied. The motion for a mistrial was thereupon granted. Defense counsel then moved that any further proceedings against petitioner be dismissed on the ground that he had now been once placed in jeopardy. This motion was denied and a date for resetting the trial was scheduled. When defendant and his counsel appeared for resetting, defendant entered a plea of once in jeopardy based upon the discharge of the jury at the prior trial without his or his counsel's consent.

Cardenas v. Superior Court

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L. A. No. 26406. Supreme Court of California. In Bank.

DOOLING, J.

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