People v. Mason

PEEK, P. J.

Defendants, while committed to Folsom State Prison, escaped from a state forestry camp. Following their apprehension they were charged with a violation of section 4531 of the Penal Code (escape). Each entered pleas of not guilty and former jeopardy. The latter plea was stricken upon motion of the district attorney and the case proceeded to trial on their pleas of not guilty. The jury found them guilty as charged and they now appeal.

They attack the action of the trial court in granting the motion of the prosecution to strike their pleas of former jeopardy on three grounds: (1) that in accordance with the provisions of section 1005 of the Code of Civil Procedure they should have received notice of said motion in order to have afforded them an opportunity to have prepared their opposition; (2) that they were entitled to a verdict by the jury on each plea entered; and (3) that a motion to strike cannot be granted where issues of fact remain for determination.

[284]

Under the pertinent provisions of Penal Code section 1017, every plea “. . . must be in substantially the following form:

i i

“4. If he plead once in jeopardy: ‘The defendant pleads that he has been once in jeopardy for the offense charged (specifying the time, place, and court).’ ”

The plea of once in jeopardy is a personal privilege which, unless properly invoked, will be deemed to have been waived. In other words, “ ‘ [t]he law’s methods must be pursued by him who seeks the protection of the law.’ ”

(People

v.

Bennett,

114 Cal. 56, 59 [45 P. 1013].)

Thus, it has been held that a plea is insufficient if it fails to include all of the elements set forth in said section

(People

v.

O'Leary,

77 Cal. 30 [18 P. 856]), and being insufficient there would be no issue in that regard “upon which the court could have instructed the jury or upon which the jury could have found.”