People v. Yopp

PEEK, J.

Defendant appeals from a judgment of conviction of a violation of section 702 of the Welfare and Institutions Code (contributing to the delinquency of a minor, a misdemeanor), and from the order denying his motion for a new trial.

On June 16, 1960, an indictment was returned charging defendant with the crime above mentioned. Following num

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erous continuances, the ease finally came to trial on November 1, 1960. The jury was sworn and the indictment was read by the clerk, who stated that, “To this Indictment the defendant plead not guilty.” Thereupon the noon recess was taken. Upon reconvening, defendant’s counsel stated to the court that during the recess the defendant had said he had no recollection of entering a plea to the crime charged. After a somewhat lengthy discussion between the court and counsel, the trial was continued until the following day. On that day, the court reconvened and in the absence of the jury it was agreed that the record did not disclose that a formal plea had been entered. The court then indicated that it would recess as a superior court, reconvene as a juvenile court, and defendant would then be arraigned; and that it would be deemed he had made every legal objection to the procedure and that each objection would be deemed to have been overruled. Thereupon, defendant moved to quash the indictment on the ground that it was returned to the superior court instead of the juvenile court. This motion was denied. He further moved to set aside the indictment, pursuant to section 995 of the Penal Code. This motion was also denied. Defendant then refused to plead on the ground that the jury had been impaneled and that he could not be required to plead after the commencement of the trial, whereupon the court directed him to plead, stating that if he stood mute the court would enter a plea of not guilty pursuant to section 1024 of the Penal Code. Counsel for defendant then entered pleas of not guilty and former jeopardy and the matter was transferred to the superior court for trial.

Following the reconvening as the superior court, the matter was continued until November 9, 1960, in order to allow appellant to seek a writ of prohibition in this court. On November 7, 1960, defendant’s petition was denied and on November 9, 1960, the trial was resumed. Defendant moved for a mistrial on the grounds that the taking of his plea after the trial had commenced was prejudicial and deprived him of due process of law. This motion was likewise denied and the cause proceeded to trial before the original jury. At the conclusion, defendant was found guilty, his motion for a new trial was denied, probation was granted, and this appeal followed.