Opinion
3-6-1958
Anthony GOMEZ and Ray Cardinal, Petitioners, v. The SUPERIOR COURT of the State of California, IN AND FOR the COUNTY OF MENDOCINO, and Honorable Hale McCowen, Respondents. * Civ. 9446.
Kasch & Cook, Ukiah, for petitioners. Merle P. Orchard, Dist. Atty., Ukiah, and Edmund G. Brown, Atty. Gen., by Doris H. Maier, and J. M. Sanderson, Deputy Attys. Gen., for respondents.
Anthony GOMEZ and Ray Cardinal, Petitioners,
v.
The SUPERIOR COURT of the State of California, IN AND FOR the COUNTY OF MENDOCINO, and Honorable Hale McCowen, Respondents. *
Kasch & Cook, Ukiah, for petitioners.
Merle P. Orchard, Dist. Atty., Ukiah, and Edmund G. Brown, Atty. Gen., by Doris H. Maier, and J. M. Sanderson, Deputy Attys. Gen., for respondents.
VAN DYKE, Presiding Justice.
Petitioners herein seek a writ of prohibition to restrain the Superior Court of Mendocino County from proceeding with the trial of a criminal action. They also seek mandate to compel that court to transfer the cause to the justice court. On March 19, 1957 an information was filed charging petitioners with a violation of Section 484 of the Penal Code in that on or about October 20, 1956, they 'did then and there, wilfully, unlawfully and feloniously take one P & H Loading Shovel of the value of Three Thousand and no/100ths ($3,000.00) Dollars, * * * the personal property of Arthur T. Casteel.' They were tried to a jury which returned a verdict finding them guilty of petty theft. They appealed from the ensuing judgment and the judgment was reversed for misconduct of the district attorney. People v. Cardinal, 154 Cal.App.2d 835, 316 P.2d 1001. Thereafter petitioners moved the respondent court to dismiss the charges as to grand theft upon the ground that they had once been in jeopardy and had been acquitted of that charge. They contended further that the respondent court had no jurisdiction to try them upon the remaining charge, petty theft. Their motions were denied and they were ordered to appear for setting of the cause for trial. They thereupon initiated this proceeding.
We have concluded that petitioners' contentions cannot be sustained. There was but one offense charged in the information, the offense of theft. Penal Code, Sec. 484. The code divides theft into two degrees, grand theft and petty theft. Penal Code, Secs. 486-488. Where the charge of theft puts in issue the value of the property charged to have been taken, it is competent for the jury to return a verdict of petty theft. If such a verdict is returned, however, the defendant has been convicted of theft. There has been no acquittal of the charge of theft. In view of the statute prescribing two degrees of the crime, the situation presented here is comparable to that presented in People v. Keefer, 65 Cal. 232, 3 P. 818, wherein a defendant, having been charged with murder, having been found guilty of murder in the second degree, and having obtained a reversal of that conviction, was held to be subject to a second trial involving a charge of murder in the first degree. The Supreme Court declared, 65 Cal. at page 235, 3 P. at page 820: '* * * The indictment charges the crime of murder, and the defendant was not acquitted of murder by the first verdict. 'In dividing the crime of murder into two degrees the legislature recognized the fact that some murders, comprehended within the same general definition, are of a less cruel and aggravated character than others, and deserving of less punishment. It did not attempt to define the crime of murder anew, but only to draw certain lines of distinction by reference to which the jury might determine, in a particular case, whether the crime deserved the extreme penalty of the law or a less severe punishment. * * * The fact that a severer penalty is to be imposed in one case than the other does not change the effect of a previous conviction, and the defendant who, on his own motion, secures a new trial, subjects himself to a retrial on the charge of murder, whether the first verdict was guilty of murder of the first or of the second degree. At the second trial he may, if the evidence justify such verdict, be found guilty of murder of the first degree.' See, also, In re Moore, 29 Cal.App.2d 56, 84 P.2d 57, and People v. McNeer, 14 Cal.App.2d 22, 57 P.2d 1018.
Our courts have distinguished the situation presented here from one where a defendant is charged with an offense which includes other offenses of lower grade. In such cases if the defendant has been convicted of an offense of lower grade, but necessarily included within the charge, the verdict is considered as an implied finding that he was not guilty of the offense charged, or of the offenses of lower grade necessarily included within the charge but of higher grade than the offense of which he was convicted. In such cases, upon reversal our courts have held that the defendant cannot be tried for an offense included within the charge concerning which he has impliedly been found not guilty. People v. Gordon, 99 Cal. 227, 33 P. 901; In re Hess, 45 Cal.2d 171, 288 P.2d 5. Our attention is called to the case of People v. Ny Sam Chung, 94 Cal. 304, 29 P. 642, wherein the court, treating petty theft as, under the facts of that case, a necessarily included crime in a charge of grand theft, applied the rule appropriate under that theory. But the case was decided long before the legislature, by the amendatory legislation of 1927 grouped many theretofore distinct common law crimes under the general definition of theft, and then divided theft into two degrees called grand and petty theft. Therefore we think the case is no longer applicable to prosecutions for theft. Petitioners rely also upon the case of Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199. In that case it was held that, after a conviction of second degree murder in a federal court had been reversed on appeal, the defendant could not be convicted upon a second trial of first degree murder. As noted by the minority, the rule in the federal courts had theretofore been otherwise. However, the decision recognized that the provision against double jeopardy contained in the federal Constitution, Const.Amend. 5, applied to federal court proceedings and did not control the application of that principle in the state courts. Although our constitutional provision is substantially the same as that contained in the federal Constitution, our courts still follow the rule laid down in the cases herein cited.
For the reasons given, the petition is denied as to both writs requested.
SCHOTTKY and PEEK, JJ., concur. --------------- * Opinion vacated 328 P.2d 976.