Scott v. Municipal Court

[887]

Opinion

KINGSLEY, J.

Petitioner was charged in respondent court with a violation of subdivision (b) of section 647 of the Penal Code (soliciting an act of prostitution). She pled not guilty and waived jury trial. At the trial, on the representation of the prosecuting attorney that it went to probable cause for her arrest, the court admitted testimony of conversations, outside the presence of defendant, with another woman who had been charged with a similar offense on the same occasion. After the case had been submitted, the trial judge, in summarizing the evidence, referred to these conversations; defense counsel interrupted to object to consideration of that evidence on the issue of guilt and, in connection with that objection, advised the court that the other woman had been acquitted of the charges against her by another judge of respondent court. The trial judge chastized counsel for making that statement, declared that because of it he could no longer render an impartial verdict, and declared a mistrial.

1

When the case was called for retrial, defendant entered a plea of double jeopardy, which was denied. She thereafter sought, unsuccessfully, to secure a writ of prohibition in the superior court.

2

She then instituted the present petition; we issued our alternative writ;

3

the matter has been argued and submitted. For the reasons set forth below, we issue our peremptory writ of prohibition.

Although there were factual differences, we feel that the language and the philosophy of

Curry

v.

Superior Court

(1970) 2 Cal.3d 707 [87 Cal.Rptr. 361, 470 P.2d 345], governs the case at bench. Admittedly, a mistrial may be granted, without the consent of defendant,

4

only