Mouser v. Superior Court

Opinion

MILLER, J.

Petitioner, aggrieved by an order of respondent court rejecting his pleas of once in jeopardy (Pen. Code, § 1016, subd. 5) and former judgment of acquittal (Pen. Code, § 1016, subd. 4), petitioned this court for a writ of prohibition to prevent his retrial. We have concluded that petitioner is entitled to the relief requested.

On April 20, 1982, trial by jury commenced against petitioner and two codefendants on charges of violation of Health and Safety Code section 11358 (unlawful cultivation of marijuana) and Health and Safety Code section 11359 (unlawful possession for sale of marijuana). On April 22, 1982, at the close of the prosecution’s case, all defendants, in a motion made pursuant to Penal Code section 1118.1, joined in a motion for judgment of acquittal. Respondent court granted the motion as to the two codefendants but denied it as to petitioner.

Petitioner thereupon moved for a mistrial, contending that he would be prejudiced by proceeding before the jury without the codefendants. Respondent court denied the motion for mistrial. Thereupon, the district attorney interjected, as follows:

“Mr. Mahoney: May the People have an opportunity to speak?

“The Court: On what?

“Mr. Mahoney: On the motion that was made.

“The Court: By Mr. Cochran?

“Mr. Mahoney: Yes.

“The Court: I am not granting his motion, but I will let you speak on it.

“Mr. Mahoney: I think his motion has some merit.

“The Court: I’ll let you speak on it.

[113]

“Mr. Mahoney: It’s never the People’s intention to take unfair advantage of anyone. I’m not saying what the Court’s ruling should be, I just think that his motion has some merit.

“The Court: All right, I appreciate that, Mr. Mahoney. That’s more than I can say.