Cardenas v. Superior Court

Petitioner seeks a writ of prohibition to prohibit any further proceedings upon an information charging him with the crime of possessing narcotics. The record shows the following facts:

Petitioner was arrested and charged by information with possessing heroin and marijuana in violation of Health and Safety Code, section 11500. He was arraigned, and the matter

We are satisfied that under the facts shown by the record the plea of once in jeopardy is good and the writ sought by petitioner should issue. It is settled that where a plea of once in jeopardy is good, a writ of prohibition may issue to prevent the unnecessary expense and delay attendant upon a futile trial and appeal. (Jackson v. Superior Court, 10 Cal.2d 350 , 352-353 [ 74 P.2d 243 , 113 A.L.R. 1422 ].) Once the jury “has been impaneled and sworn jeopardy attaches, and a dismissal of the case, when not authorized by law and without the consent of the defendant, after the jury has been sworn and the trial actually commenced is equivalent to an acquittal of the charge and will constitute former jeopardy on a subsequent trial on the same charge.” (Jackson v. Superior Court, supra, at p. 356.)

Our attention has been called to Gori v. United States, 367 U.S. 364 [ 81 S.Ct. 1523 , 6 L.Ed.2d 901 ], wherein a bare majority of the United States Supreme Court held that the granting of a mistrial on the court’s own motion without the

The defendant’s motion for a mistrial, where it is granted by the court, operates as a waiver of the claim-of once in jeopardy. (People v. Mills, 148 Cal.App.2d 392 , 395 [ 306 P.2d 1005 ].) The narrow question presented by this record is whether a defendant, after he has made a motion for a mistrial and before the court has acted upon it, may effectively withdraw his motion. We are satisfied that he can. While we have found no direct authority upon the precise question in this state, we can see no good reason why a party making a motion during the course of a trial may not, upon reflection, withdraw it at any time before the court has made an order responsive to the motion. Such authority as we have found in other jurisdictions fully accords with this view. (Leader v. Leader, 8 Misc.2d 1015 [ 166 N.Y.S.2d 784 , 785] ; Oshrin v. Celanese Corp. of America, 37 N.Y.S.2d 548 , 550; Wilcox v. Hedwall, 186 Minn. 504 [ 243 N.W. 709 , 711]; cf. Jensen v. Barbour, 12 Mont. 566 [ 31 P. 592 , 593].) If something had occurred to prejudice the opposing party by the motion’s withdrawal, a different question would be presented; for example, it has been held that on a noticed motion, where the opposing party has incurred costs in preparing to oppose it, the motion may not be withdrawn without the payment of such costs. (Walkenshaw v. Perzel, 32 N.Y. (How. Pr.) 310, 311.) But the People can show no prejudice here, since the withdrawal of the motion would have allowed the trial to proceed and would have amounted to a waiver of any claim of prejudice from the incident by petitioner thereafter, either on appeal or on motion for a new trial or otherwise. This was not a case in which counsel’s conduct led the court to believe that he was consenting to a mistrial, as in

The further suggestion that the trial court’s remark, “It is all right with me,” made during the discussion of the effect of the joinder in the motion by the prosecutor, might be construed as a granting of the petitioner’s motion before it was withdrawn, is in no way borne out by the record.

It is ordered that the writ of prohibition issue as prayed.

Gibson, C. J., Traynor, J., Schauer, J., Peters, J., and White, J. concurred.

McComb, J., dissented.