THE PEOPLE, Plaintiff and Respondent, v. BILLY J. COMPTON, Defendant and Appellant.
Crim. Nos. 15654, 15655
In Bank
Nov. 16, 1971.
55
Richard E. Erwin, Public Defender, and Donald G. Griffin, Deputy Public Defender, for Defendant and Appellant.
Evelle J. Younger, Attorney General, William E. James, Assistant Attorney General, and Rodney Lilyquist, Jr., Deputy Attorney General, for Plaintiff and Respondent.
OPINION
MOSK, J.—The sole issue on this appeal is whether the trial below was barred by the constitutional prohibition against placing the defendant twice in jeopardy for the same offense. (
This case was brought to triаl three times. In Ventura Superior Court action No. CR 7871 defendant was charged with committing lewd and lascivious acts and related sexual offenses upon a minor. At the conclusion of the first trial the jury was unable to reach a verdict, and a mistrial was declared. The cause was consolidated for retrial with Ventura Suрerior Court action No. CR 7882, another pending prosecution against defendant on similar charges. In the second trial a jury was impaneled and sworn, and a full day was consumed in taking the testimony of one of the prosecuting witnesses. When the proceedings resumed after a weekend adjournment, however, the сourt declared a mistrial and discharged the jury for reasons which will be discussed infra.
Defendant promptly moved for leave to enter a plea of once in jeopardy and for dismissal of the actions on that ground, but the motions were denied. His petition for writ of prohibition was denied without opinion, and the matter went to trial for a third time. After considerable difficulty the jury returned verdicts finding defendant guilty on four of the counts charged in action No. CR 7871, but acquitting him on the remaining four counts.1
In the case at bar it is undisputed that jeopardy had attachеd at the time the court declared the second mistrial and discharged the jury; the sole remaining questions, accordingly, are legal necessity and consent.
There was no “legal necessity” within the meaning of Curry for the court to discharge the entire jury. The relevant facts are as follows: In a proceeding conducted outside the presence of the jury, а barber testified that during the weekend recess the alternate juror on the case, Paul Hamilton, came to his shop for a haircut. In the course of conversation Hamilton disclosed his connection with the trial in progress and told the barber that certain older women had been rejected as prosрective jurors “because they would be hard to keep an open mind on a case such as this and what the people that selected the jury didn‘t know, that he felt the same way,” and that “he didn‘t like to be on a case like this because it was hard to keep an open mind.”2
At the outset it may be doubted whether this showing would have been sufficient to justify Hamilton‘s discharge even if he had been a regular juror rather than an alternate. A juror‘s admission that by reason of the nature of the case it would be difficult for him to keep an open mind constitutes a basis for his disqualification upon a challenge for actual bias. (
In the case at bar the extrajudicial remarks of Hamilton were, as the trial court recognized, equivocal: they could have signified that he was
While the court‘s concern in this regard is understandable, its ruling cannot withstand scrutiny under the precise language of sections
Secondly, in any event Hamilton was only the alternate juror. A defendant is not entitled as a matter of right to have an alternate juror sit on his case: section
The Pеople do not now contend otherwise, but argue that the mistrial was proper because Hamilton‘s conduct might somehow have “tainted” the remaining 12 jurors. In support, the People emphasize the trial court‘s remark that “maybe the jurors saw Gene [defendant‘s barber brother] and noticed the family resemblance and they may speculate something is up,” and defense counsel‘s suggestion that Hamilton may have inadvertently communicated his views to the other jurors.
The court did not inquire into these matters with the jurors, apparently for fear of prejudicing them against defendant. Yet the questions were collateral at best, and any risk of prejudice was so slight that it could surely have been negated by appropriate admonitions. Instead, the concerns of court and counsel never progressed beyond the stage of bare speculation. As we reiterated in Curry, however, “In California, legal necessity for a mistrial typically arises from an inability оf the jury to agree [citations] or from physical causes beyond the control of the court [citations], such as the death, illness, or absence of judge or juror [citations] or of the defendant [citations]. A mere error of law or procedure, however, does not constitute legal necessity.” (2 Cal.3d at рp. 713-714.) Under that test, the speculative effect of Hamilton‘s discharge upon the trial jury did not amount to “legal necessity” for declaring a mistrial.6
We recognized in Curry (at p. 713 of 2 Cal.3d) that “affirmative conduct by the defendant may constitute a waiver if it clearly evidences consent [citations], and such a waiver will a fortiori be implied when the defendant actually initiates or joins in a motion for mistrial [citation].” Here, however, counsel for defendant merely called Hamilton‘s conduct to the court‘s attention, and requested the court to “question Mr. Hamilton regarding his conversation with various people outside this court concerning this сase.” When the court asked counsel if he was moving for a mistrial, counsel squarely denied that was his purpose: “I don‘t have any motion. I simply want to advise the Court of what has happened.” The court then inquired whether Hamilton‘s remarks were improper or innocent, and counsel again replied: “Well, your Honor, I am a partisan. My view of the thing isn‘t necessarily an objective or intelligent view. All I want to do is apprise the Court of what has happened.”
The circumstance that it is defense counsel who initiates the court‘s inquiry into a matter which ultimately results in an order of mistrial does not ipso facto transform counsel‘s exрression of concern into an implied consent to such drastic ruling. Thus in People v. Valenti (1957) 49 Cal.2d 199 [316 P.2d 633], defense counsel requested the court to interrupt the trial to inquire into the legality of the arrest and search of the defendant; we held erroneous the court‘s subsequent dismissal of the information and discharge of the jury, and declared that a retrial was barred by the double jeopardy clause. In Cardenas v. Superior Court (1961) 56 Cal.2d 273 [14 Cal.Rptr. 657, 363 P.2d 889, 100 A.L.R.2d 371], defense counsel actually moved for a mistrial because of a question asked of his client on cross-examination, then requested unsuccessfully to withdraw his motion; we held that a subsequent order of mistrial was made without the defendant‘s consent, and hеnce that a retrial would place him in double jeopardy. Finally, in Curry defense counsel advised the court that certain testimony of the prosecuting witness was hearsay as to his clients and “extremely prejudicial,” and requested a cautionary instruction to the jury; we held that the mistrial thereafter ordered was nоt consented to by the defendants because their “simple request for an admonition on an evidentiary matter
Applying this rule to the case at bar, we conclude that a waiver of defendant‘s constitutional protection against double jeopardy cannot be inferred from his counsel‘s request that the court inquire into a reported instance of misconduct on the part of the alternate juror.7
Finally, the People urge that such consent should be implied from defendant‘s failure to object to the prоposed order of mistrial. After discussing why a mistrial seemed “the only course left,” the court asked both counsel, “do any of you have any strong objections to what I am going to do? Let me know now, but I think that is the only recourse.” The deputy district attorney gave the guarded answer, “No comment, your Honor.” The court then asked defense counsel if he had “anything further,” and the latter replied simply, “No, your Honor.”
The effect of a failure to object is no longer an open question: we declared in Curry (at p. 713 of 2 Cal.3d) that “When a trial court proposes to discharge a jury without legal necessity therefor, the defendant is under no duty to object in ordеr to claim the protection of the constitutional guarantee, and his mere silence in the face of an ensuing discharge cannot be deemed a waiver.” No grounds are shown to distinguish the present case from Curry on this point, and no consent to a mistrial may therefore be implied from defendant‘s failure to voice an objection.
Inasmuch as defendant was thus placed once in jeopardy at his second trial, we are required not only to reverse the judgment in his third trial but also to prohibit a fourth trial on these same charges.
The judgment is reversed with directions to the trial court to dismiss the information in Ventura Superior Court action No. CR 7871.
Wright, C. J., Peters, J., Tobriner, J., Burke, J., and Sullivan, J., concurred.
McCOMB, J.—I dissent. I agree with the trial judge that defendant im-