Sturms v. Justice Court

Opinion

FRIEDMAN, J.

Petitioner seeks a writ of prohibition to stay further criminal proceedings in the Justice Court of the Woodland Judicial District of Yolo County on the ground of former jeopardy. No person may be twice put in jeopardy for the same offense (Cal. Const., art. I, § 13; Pen. Code, § 1023.) Where a plea of once in jeopardy is good, prohibition will lie to prevent a retrial.

(Cardenas

v.

Superior Court,

56 Cal.2d 273, 275 [14 Cal.Rptr. 657, 363 P.2d 889, 100 A.L.R.2d 371].)

The amended complaint contains two counts: a charge of failure to yield the right of way in violation of Vehicle Code section 21801 and a charge of failure to comply with the hit-and-run statute, Vehicle Code section 20001. Both charges arose out of the same incident.

Petitioner went to trial on these two counts before a jury on February 20, 1969. The jury deliberated for approximately six hours, then advised the court it had reached a verdict on one of the counts but was hopelessly deadlocked on the other. Consulting the attorneys, the court asked them if they would stipulate that it might receive the verdict to which the jury had agreed. The prosecuting attorney refused so to stipulate. The court then declared a mistrial and, without identifying the count upon which the jury had agreed, discharged the jury. Petitioner’ consent was neither sought nor given.

The prosecution then secured a retrial date. After an unsuccessful justice court plea of once in jeopardy, petitioner sought and was denied relief in the superior court. This proceeding followed.

Once a jury trial has commenced, the defendant is in jeopardy, and any unwarranted discharge of the jury thereafter gives rise to the defense of double jeopardy. The discharge is unwarranted unless it is with the defendant’s consent or for recognized reasons of legal necessity. Despite the absence of consent, the discharge of the jury after the court has found a deadlock falls within the “necessity” exception and does not prevent a re

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