People v. Yopp

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

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.

There can be no doubt but that the procedure followed was erroneous (see Pen. Code, §§ 976, 990) ; it is equally clear, however, that there was no denial of due process. De

His contention relative to due process is without merit. (Garland v. Washington, 232 U.S. 642 [ 34 S.Ct. 456 , 58 L.Ed. 772 ].) Additionally, the question raised by defendant comes squarely within the provisions of article VI, section 4% of the California Constitution, which specifically provides that: “No judgment shall be set aside, . . . for any error as to any matter of procedure, unless, . . . the error complained of has resulted in a miscarriage of justice.’’

In support of his contention, defendant cites People v. O’Connor, 81 Cal.App. 506 [ 254 P. 630 ], for the proposition that article VI, section 4% is not so broad in its meaning as to permit a trial court to disregard the usual and ordinary procedure in the trial of a case and to substitute therefor a different and unrecognized mode of procedure. In that case, not only was there a question as to the propriety of joint trials, but in addition there was the question whether defendants were deprived of their right of trial by jury in that they were compelled to go to trial before jurors whom they were entitled to reject. Certainly no such constitutional right of defendant in the present case was affected by the procedural error or change which was a result of the mutual mistake of all the parties involved.

It appears to us that the case of People v. Tomsky, 20 Cal.App. 672 [ 130 P. 184 ], a decision by this court, is more in point. There, as here, the question on appeal related to the failure of defendant to enter a plea under which he was prosecuted and adjudged guilty. However, in that case the point was not raised until after defendant’s conviction and the verdict was set aside by the trial court on its own motion. This court held, in reversing the order of the trial court, that the error was procedural, no prejudice was shown, and therefore, under article VI, section 4%, the action of the trial court was not grounds for reversal. (See also People v. Hall, 220 Cal. 166 [ 30 P.2d 23 ]; People v. McCalla, 63 Cal.App. 783 [ 220 P. 436 ]; People v. Thal, 61 Cal.App. 48 [ 214 P. 296 ]; People v. White, 47 Cal.App. 400 [ 190 P. 821 ]; People v. Agnew, 110 Cal.App.2d Supp. 837 [ 242 P.2d 410 ].)

The judgment is affirmed.

Van Dyke, P. J., and Schottky, J., concurred.