Opinion
Petitione seeks a writ of prohibition to stay further criminal proceedings in the Municipal Court, West Orange County Judicial District, of Orange County on the ground of former jeopardy.
The facts set forth in this opinion are those agreed to in the respective briefs of counsel. No court reporter was present at the trial.
The petitioner, Robert Lynn Clemensen was involved in a traffic accident; as a result, he was charged with misdemeanor manslaughter in the driving of a vehicle, a violation of Penal Code, section 192, subdivision (3)(b). His trial commenced on Tuesday, September 15, 1970, and about 9 a.m. on Friday, September 18, the case was submitted to the jury for decision. About 2:30 p.m. the trial judge asked defense counsel to stipulate that the court might instruct, question, or dismiss the jury in the absence of counsel. Counsel declined to do so, stating: “No, I don’t think I can.” Defense counsel then told the judge his office was only about 15 minutes away from the court and requested permission to go to his office and be placed on a 15-minute call. The judge said: “Yes, that will be all right—no problem.” As defense counsel left the courtroom he asked the clerk if the latter had his [counsel’s] telephone number. The clerk replied: “Yes, here it is right on top of the file.” Counsel then told the clerk: “The judge has allowed me to be on a fifteen minute call, so please call me whenever the jury has to be returned to the courtroom.” Counsel then left the courtroom and went directly to his office.
At some undetermined time between 2:30 p.m. and 5 p.m., in the absence of counsel, the following events took place, set out in the exact words of the agreed facts submitted to us:
“a. After having asked the jury, through the foreman, if they had arrived at a decision, the Court obtained a ‘negative answer’. Also, the foreman said to the Court, T don’t blame them’. The Court then called the jury into the courtroom.
*496 “b. No discussion was held with defendant before the jury was brought in.
“c. The Court communicated with the foreman (a lady) of the jury.
“d. The Court did not question each juror individually.
“e. The Court asked the foreman (a lady): ‘Do you feel further deliberations will enable you to arrive at a verdict?’ The foreman said, ‘No.’ The Court then asked the rest of the jurors as a whole: ‘Do you agree with the statement of your foreman?’ He received nothing as a response. The judge, in his testimony, could not recall making any inquiry as to whether specific additional time, such as one-half hour or one hour, for further deliberations was discussed with the jurors. The defendant said no other verbal communication took place.
The Court knew that the foreman, Mrs. Kline, was an ‘out-spoken strong person’, the domineering type; what one would call a leader.
“f. The Court was of the opinion that ‘defense counsel was not necessary’ at this stage of the proceedings, and that he ‘ought to go home’.
“g. The Court observed facial expressions, ‘tilting of the head’, and other non-verbal signs as a means of reading how the jurors felt, as a matter of habit, and on this occasion the Court felt that he and defense counsel would not have disagreed as to what these non-verbal signs meant.
“h. The Court made a determination that the jurors could not arrive at a decision.
“i. The Court declared a mistrial.
“j. The defendant did not have an opportunity to call his counsel prior to the activities mentioned above.
“k. The Court said to defendant: ‘Don’t worry, your rights are being protected by the Court. Will you waive counsel being present before I dismiss the jury?’ Defendant said, ‘Yes.’ The Court did not Mirandxze the defendant.’
“1. The Court dismissed the jury, then discussed with them the difficulty of the case.
“Counsel for defendant would not have allowed the matter to proceed in his absence. The bailiff, Mr. Tarter, testified that he knew of no system in the court provided to allow defense counsel to know of the communications between the judge and the jury.”
Thereafter, petitioner’s motion to permit him to enter a plea of once in jeopardy was denied. The case was set for retrial. A petition to the
*497
superior court for a writ of prohibition was denied and this court issued an alternative writ and stayed the trial. Prohibition is a proper remedy to prevent retrial when a defendant has been once in jeopardy.
(Curry
v.
Superior Court,
In California, in our sister states, and under the federal jurisdiction, jeopardy attaches when a defendant is placed on trial before a court of competent jurisdiction and a jury is duly impaneled and charged with his deliverance. If the jury is discharged without returning a verdict, the defendant cannot again be put in jeopardy unless he consented to the discharge or legal necessity required it. The discharge of a jury contrary to law is equivalent to a verdict of acquittal.
(Mitchell
v.
Superior Court, supra,
At the outset we consider whether petitioner had a right to counsel which he intelligently waived, thus consenting to the discharge of the jury and precluding himself from raising the issue of double jeopardy.
Article I, section 13 of the California Constitution states: “In criminal prosecutions, in any court whatever, the party accused shall have the right ... to appear and defend, in person and with counsel.”
This right is reiterated in Penal Code, section 686, subdivision 2. However, no California case has been found by us which has decided the specific question of whether the right extends to the time of discharge of the jury at a mistrial.
The right to counsel, of course, is not limited to the evidentiary portions of the trial. For example, where defense counsel was not present at the time his objection to evidence submitted at the preliminary hearing was ruled upon, .and the court heard additional prosecution argument before ruling, the appellate court reversed the ensuing conviction.
(People
v.
Helium,
The discharge of the jury at time of a mistrial is obviously part of the criminal proceedings, and thus would seem to come within the scope of the right to counsel. The Court of Criminal Appeals of Texas
(Davis
v.
State,
While we have found no direct authority upon the precise question in this state, there is some analogy to a police line-up. Counsel’s proper role at a line-up is unclear, but his right to be there is settled.
(United States
v.
Wade,
The district attorney, representing the real party in interest, asks, in effect, “what could counsel have done had he been present?” We would point to the language in
People
v.
Lovely,
We would contrast the proceedings in Lovely with those in the case at bench. The fact the proceedings were even questioned in Lovely suggest compelling reasons for examining the inquiry made by the judge in the case before, us.
*499 Had counsel been present as he had requested, he could have suggested the court make additional inquiries of the jury. A specific poll of the jury could have been requested. Counsel could have discussed with the court the possibility of further deliberation. Counsel could have requested a record. Since petitioner was represented by private counsel, the additional legal expense incident to a retrial of an action that had already taken four days could have been brought to the attention of the court and such consideration might have induced the trial judge to permit further deliberation by the jury.
We do not know how the jury was divided and it makes no difference whether the discharge of the jury improved petitioner’s chances for eventual acquittal or not. The test is not whether the defendant was possibly benefited. The conception of benefit involves nothing more than an exercise in pure speculation. To retry petitioner would subject him to additional expense, personal strain and insecurity regardless of whether he was abstractly benefited by the court’s action and regardless of the motivation underlying the trial judge’s action. It was an abuse of discretion for the court to foreclose the right of the peitioner to have the jury determine his matter at a single trial until a “scrupulous exercise of judicial discretion leads to the conclusion that the ends of public justice would not be served by a continuation of the proceedings.” (See
United States
V.
Jorn,
We would stress the circumstance that when petitioner agreed to waive counsel he had already been told by the judge the presence of his counsel was unnecessary and the court would protect his rights. While we attach no improper motives to the action taken by the court, it nevertheless deprived petitioner of his right to have counsel present.
We emphasize the right to counsel, which we hold exists at the time a jury is discharged for failure to agree on a verdict, applies only where counsel is available to return to court promptly. If counsel had gone to his office without the court’s permission, or could not be reached at the telephone number left with the clerk, or failed to return within 15 minutes as he promised he would do, no right of petitioner would have been violated.
A defendant has a right to counsel at sentencing
(In re Boyce,
*500
Drolet
v.
Commonwealth,
Where a party elects to be represented by counsel his attorney has the authority and the duty to handle the trial. (Witkin, Cal. Criminal Procedure (1963) p. 371.) Counsel had informed the court of his desire to be present when the jury was recalled to the courtroom and the judge had agreed to such procedure. Both petitioner and his attorney had a right to rely on this promise made by the court.
With the foregoing considerations in mind we find no valid consent by petitioner, in the absence of his counsel, to the discharge of the jury and no consequent waiver of the right to plead “once in jeopardy.”
Beyond the issue of consent by petitioner to the discharge of the jury is the further question: Was there a legal necessity for the discharge of the jury?
The power of government to put an individual through a series of prosecutions for the identical offense has been determined to “cut deeply into the framework of procedural protections which the Constitution establishes for the conduct of a criminal trial.” (See
United States
v.
Jorn, supra,
“But it is also true that a criminal trial is, even in the best of circumstances, a complicated affair to manage. The proceedings are dependent in the first instance on the most elementary sort of considerations, e.g., the health of the various witnesses, parties, attorneys, jurors, etc., all of whom must be prepared to arrive at the courthouse at set times. And when one
*501
adds the scheduhng problems arising from case overloads, and the Sixth Amendment’s requirement that the single trial to which the double jeopardy provision restricts the Government be conducted speedily, it becomes readily apparent that a mechanical rule prohibiting retrial whenever circumstances compel the discharge ¡of a jury without the defendant’s consent would be too high a price to pay for the added assurance of personal security and freedom from governmental harassment which such a mechanical rule would provide. As the Court noted in
Wade
v.
Hunter,
“Thus the conclusion that ‘jeopardy attaches’ when the trial commences expresses a judgment that the constitutional policies underpinning the Fifth Amendment’s guarantee are implicated at that point in the proceedings. The question remains, however, in what circumstances retrial is to be precluded when the initial proceedings are aborted prior to verdict without the defendant’s consent.”
Generally, the discretion of the trial judge determines whether, under all the circumstances, such necessity exists. If it does, a plea of former jeopardy will not prevail on a subsequent trial, even though the accused does not consent to the discharge of the jury.
“There is no fixed rule laid down to control this discretion, and unless it has been grossly abused a plea of former jeopardy cannot be sustained; the court cannot act arbitrarily or capriciously. No formula should be mechanically applied, and all the abstract circumstances should be taken into account.” (See 22 C.J.S. 669, 671-672 and cases cited.)
The California cases have upheld the discretionary power of the trial judge to declare a mistrial without the consent of the defendant, when a legal necessity exists.
(Curry
v.
Superior Court, supra,
“The jeopardy defense is not available if the jury is discharged for some recognized proper cause. Section 1141 of the Penal Code provides that ‘the cause may be again tried’ where a jury ‘is discharged or prevented from giving a verdict by reason of an accident or other cause’; and section 1140 of the same code declares that ‘the jury cannot be discharged
*502
after the cause is submitted to them . . . unless, at the expiration of such time as the court may deem proper, it satisfactorily appears that there is no reasonable probability that the jury can agree.’ . . . Although it has been observed that the jurors should ordinarily be questioned individually as to the probability or otherwise of reaching a verdict
(Paulson
v.
Superior Court,
The trial judge here did not follow the preferable method suggested in Paulson for making such determination by polling the jurors. Nor do we have any record showing how the jury stood.
Although the inquiry instituted by the trial judge in the case at bench might under ordinary circumstances establish a “necessity” sufficient to discharge the jury and declare a mistrial, under the peculiar facts disclosed here such “necessity” is not shown. We concede there are circumstances, even in the absence of counsel, where a trial judge may discharge a jury and order a new trial. 2 However, here counsel specifically declined to stipulate the jury might be discharged in his absence. He had also obtained permission from the judge to return to his office from which he would be available to return to the court on short notice. He remained at his office and was available. Under these facts, for the court not to keep its promise to notify counsel when the jury was to be called into the courtroom was an abuse of discretion and of the trial process. There was no necessity to discharge the jury before waiting the few minutes for counsel to appear.
In the case before us, there was no inquiry by the court as to the number of ballots taken or the numerical division of the jury. No reporter was present and no record was kept.
We cannot presume a “necessity” to discharge a jury for disagreement when the above imperfections and shortcomings exist.
Perhaps a proper way to put this case in perspective is to reflect on the ordinary meaning of Penal Code, § 686, “In a criminal action the defendant is entitled; ... 2. To be allowed counsel as in civil actions, or to appear and defend in person and with counsel.” Discharge of the jury is certainly an important part of the criminal action. Although it is within the discretion of the trial court to discharge a jury for disagreement many other rulings are in its discretion, at which counsel has the undeniable right to be present.
*503 Considering all the circumstances we are of the opinion the trial judge abused his discretion in determining there was no reasonable probability the jury could agree, under Penal Code, section 1140, before giving petitioner’s counsel an opportunity to be present, as the court had indicated it would do.
Since jeopardy attached, the petitioner cannot be compelled to assume the additional peril of being tried again. The alternative writ is discharged; let a peremptory writ issue, prohibiting respondent court from proceeding further with petitioner’s case, other than to dismiss it.
Gardner, P. J., and Tamura, J., concurred.