Sylvia v. Superior Court

Opinion

EVANS, Acting P. J. In a single count1 Peter Sylvia was accused of felony drunk driving (Veh. Code, § 23101). The trial jury decided he was not guilty of the charged offense, but apparently could not agree on the lesser included offense of misdemeanor drunk driving (Veh. Code, § 23102, subd. (a)). The petition for an extraordinary writ presents the question, does acquittal on the charge of felony drunk driving prohibit retrial of the lesser included offense (not separately charged) of misdemeanor drunk driving? We conclude it does.

[311]The case was submitted to the jury for deliberation on the felony drunk driving charge and the uncharged offense of misdemeanor drunk driving. The jury was given separate verdict forms for the offense charged, the uncharged misdemeanor offense, and one of not guilty. The unanimous not guilty verdict was recorded. The judge then questioned the jury about possible further deliberations on the included misdemeanor offense; they indicated further deliberations would not be productive and were discharged. An amended information was then filed bearing the same superior court case number, but charging a violation of Vehicle Code section 23102, subdivision (a), a misdemeanor.

The court rejected defendant’s plea of former jeopardy and scheduled the matter for trial. This writ followed.

The trial court, in rejecting the plea, relied solely on Stone v. Superior Court (Cal.App.). On March 11, 1981, the Supreme Court granted a hearing (L.A. 31395), removing that decision from our consideration.

The controlling decisional authority is Menjou v. Superior Court (1932) 128 Cal.App. 117 [16 P.2d 1007], followed consistently until Stone v. Superior Court, supra. (See People v. Doolittle (1972) 23 Cal.App.3d 14, 20-22 [99 Cal.Rptr. 810]; Magee v. Superior Court (1973) 34 Cal.App.3d 201 [109 Cal.Rptr. 758]; People v. Allen (1980) 110 Cal.App.3d 698, 702-703 [168 Cal.Rptr. 227].)

In Menjou, the defendant was charged with murder. The jury was instructed that it could convict him of either murder or manslaughter or, if it was found he was guilty of neither, it could acquit him; three verdict forms reflecting those instructions were provided. Rather than utilizing the prepared instruction form, the jury executed its own, which found the defendant “not guilty of murder, a felony, as charged .... ” Following the verdict, the foreman expressed some uncertainty and explained that although the jurors unanimously agreed the defendant was not guilty of murder, their last vote on the lesser included charge had been eight for acquittal and four for conviction. The court thereupon set the matter for retrial on the manslaughter charge, and the jury was discharged. Upon defendant’s petition for extraordinary relief, asserting double jeopardy principles, the court granted relief. In analyzing the problem, it first noted that Penal Code section 1023 provided that an acquittal on a charge contained in the information barred any retrial for the charged offense “or for an offense necessarily included therein, of which he might have been convicted under that ... pleading.” The