Opinion
NOT TO BE PUBLISHED
Marin County Super. Ct. No. SC139206A.
Haerle, J.
I. INTRODUCTION
Kristie T. Meyer appeals from the judgment of conviction after entry of her no contest plea. In the middle of appellant’s trial for seven theft-related felonies, the court granted appellant’s Marsden motion and relieved her attorney. The court then declared a mistrial. Appellant’s substitute counsel filed a motion to dismiss based on double jeopardy. Prior to the hearing on that motion, appellant entered into a plea agreement on condition that she could still litigate and, if necessary, appeal the double jeopardy issue. Her motion to dismiss on double jeopardy grounds was subsequently denied. Appellant contends the trial court erred in declaring a mistrial because she did not consent and legal necessity did not require it. We disagree and hence affirm the convictions.
People v. Marsden (1970) 2 Cal.3d 118.
II. FACTUAL AND PROCEDURAL BACKGROUND
On November 22, 2005, the Marin County District Attorney charged appellant with seven theft-related felonies occurring between September and December 2004: identity theft (Pen. Code, § 530.5); fraudulent use of an access card (§ 484g); two counts of grand theft (§ 487, subd. (a)); and three counts of commercial burglary (§ 459). The information alleged that appellant was presumptively ineligible for probation (§ 1203, subd. (e)(4)) based on three prior felony convictions for violations of Welfare and Institutions Code section 10980, subdivision (c)(2), and section 476.
Except as otherwise specified, all further statutory references are to the Penal Code.
A jury was sworn on November 7, 2006, and the first witness was sworn the following day. On November 16, 2006, appellant was absent from the trial. The court and counsel discussed appellant’s whereabouts, her condition, and her competence to stand trial (§ 1368).
On the next day, November 17, 2006, appellant was present with her attorney, Sarah Belletto. Appellant’s counsel renewed her motion to suspend criminal proceedings pursuant to section 1368. After further discussions, including appellant’s attempt to explain her absence the previous day, the court refused to declare a doubt about appellant’s competence and declined to suspend criminal proceedings.
Later that day, the court and counsel again discussed appellant’s stated reason for not having appeared in court the previous day. The court declined the prosecutor’s request that appellant be remanded into custody to ensure her presence throughout the remainder of the trial.
At that point, appellant made a Marsden motion and the court convened a closed hearing. On November 21, 2006, the court resumed the Marsden hearing and granted the motion. The court informed appellant and Ms. Belletto that that court was going to declare a mistrial.
The trial court then reconvened open proceedings and announced that it had granted the Marsden motion and felt compelled to order a mistrial and to obtain new counsel for appellant. The court asked appellant, with Ms. Belletto present, whether she understood that “with new counsel you will be subject to being tried again, and we’ll start all over? Appellant said she understood. The court then ordered appellant to appear on November 27, 2006, for appointment of counsel and for setting of a retrial. The court then excused appellant.
The jury entered the courtroom, and the court informed the jury that it had granted a motion to appoint new counsel for appellant and that the court was declaring a mistrial. Two jurors voiced agreement with the court’s decision.
On January 31, 2007, new counsel for appellant filed a written motion to bar retrial and dismiss the case on double jeopardy grounds.
On February 9, 2007, while appellant’s motion to bar retrial and dismiss the information was pending, appellant entered into a plea agreement. Pursuant to the agreement, which the prosecutor did not sign, and which was entered over the prosecutor’s objection, appellant entered no contest pleas to all counts and admitted two prior convictions upon condition that she would be placed on probation, would not receive a state prison commitment, would receive no more time than the midterm if she violated her probation, and would retain her right to appeal any denial of her double jeopardy motion.
On February 28, 2007, after argument, the court denied appellant’s double jeopardy motion.
On March 28, 2007, the court found this case to be “unusual” within the meaning of section 1203, subdivision (e)(4), suspended imposition of sentence, placed appellant on supervised probation for a period of three years, and imposed a county jail term of ten months which it stayed pending appellant’s entry into and successful completion of a court program. Other conditions of probation included no contact orders with the victims, orders that appellant not accept employment involving financial records, instruments or proceeds, that she not maintain a checking account, and that she not have in her possession any checks other than payroll checks or business checks payable to appellant. The court ordered appellant to pay restitution to the victims, imposed but suspended a probation restitution fine of $200, and imposed a restitution fine of $200, a court security fine of $140, and a supervised probation fee of $350.
On May 25, 2007, upon learning that appellant was excluded from the intended court program, the court lifted the stay of the jail term, authorized appellant to apply for parole or a monitoring program, and ordered appellant to appear on August 3, 2007, for remand into custody.
Also on May 25, 2007, appellant filed a notice of appeal from the order denying her double jeopardy motion and the sentencing order of March 28, 2007. The court granted her request for a certificate of probable cause based on the denial of her double jeopardy motion.
III. DISCUSSION
The double jeopardy clauses of the federal and state constitutions guarantee that a criminal defendant has both a federal and a state right to not be placed twice in jeopardy for the same offense. (U.S. Const., 5th Amend.; Cal. Const., art. I, § 15.) “[J]eopardy attaches when a defendant is placed on trial in a court of competent jurisdiction, on a valid accusatory pleading, before a jury duly impaneled and sworn . . . . [A] discharge of that jury without a verdict is equivalent in law to an acquittal and bars a retrial, unless the defendant consented thereto or legal necessity required it. [Citations.]” (Curry v. Superior Court (1970) 2 Cal.3d 707, 712-713 (Curry).) A defendant need not object to a proposed discharge of the jury in order to claim the constitutional protection against double jeopardy; mere silence cannot be deemed a waiver. (Id. at p. 713.)
“A motion for mistrial is directed to the sound discretion of the trial court. We have explained that ‘[a] mistrial should be granted if the court is apprised of prejudice that it judges incurable by admonition or instruction. [Citation.] Whether a particular incident is incurably prejudicial is by its nature a speculative matter, and the trial court is vested with considerable discretion in ruling on mistrial motions.’ (People v. Haskett (1982) 30 Cal.3d 841, 854.)” (People v. Jenkins (2000) 22 Cal.4th 900, 985-986 [holding no abuse of discretion by the trial court in denying a motion for mistrial]; see also People v. Bolden (2002) 29 Cal.4th 515, 555 [“A trial court should grant a mistrial only when a party’s chances of receiving a fair trial have been irreparably damaged . . . .”]; cf. Carrillo v. Superior Court (2006) 145 Cal.App.4th 1511, 1523-1524 (Carrillo) [noting that state Supreme Court has not applied abuse of discretion standard to an order granting a mistrial; suggesting that proper standard of review is an open question].)
Here, the court declared a mistrial in the middle of trial in a court of competent jurisdiction, on a valid accusatory pleading, before a jury duly impaneled and sworn. Thus, jeopardy had attached. Appellant contends that retrial was barred because her purported consent was invalid and no legal necessity justified it.
Initially, we observe that there is no question as to the propriety of the trial court’s order granting appellant’s Marsden motion. We also observe that we cannot endorse the trial court’s action in attempting to gain appellant’s consent to the mistrial, that is, a waiver of her constitutional double jeopardy rights (see People v. Gibbs (1986) 177 Cal.App.3d 763, 767), after granting the Marsden motion, while appellant was effectively unrepresented. However, because we conclude there was legal necessity for the court to declare a mistrial, we need not say more on the issue of consent.
Legal necessity typically arises “where the jury is unable to agree on a verdict” or “where physical causes beyond the control of the court, such as the death, illness, or absence of the judge, a juror, or the defendant, make it impossible to continue.” (People v. Brandon (1995) 40 Cal.App.4th 1172, 1175, citing Curry, supra, 2 Cal.3d at pp. 713-714.) This list is not exclusive. (In re Carlos V. (1997) 57 Cal.App.4th 522, 527.) Conversely, “[a] mere error of law or procedure, even a ‘palpably prejudicial error’ in an evidentiary ruling, does not constitute legal necessity. (Larios v. Superior Court (1979) 24 Cal.3d 324, 331; Curry, supra, 2 Cal.3d at pp. 713-714.)” (People v. McNally (1980) 107 Cal.App.3d 387, 390 (McNally).)
Legal necessity for a mistrial was found where the judge in a juvenile court hearing disqualified himself and declared a mistrial, explaining that he could not fairly and impartially weigh the evidence. (T.P.B. v. Superior Court (1977) 66 Cal.App.3d 881, 883.) The juvenile’s plea of once in jeopardy was rejected on the basis of legal necessity. The appellate court affirmed, finding that the disqualification of the judge “did not involve a mere error of law or procedure; rather it involved the very jurisdiction of the trial judge to proceed with the action. The posture in which the action found itself is akin to the legal necessity deemed a physical cause beyond the control of the court brought about by the illness or absence of the judge.” (Id. at p. 886.)
Legal necessity for granting a mistrial without the defendant’s consent has also been found in certain instances where the trial court is required to replace defense counsel in the middle of trial. In People v. Manson (1976) 61 Cal.App.3d 102, 197 (Manson), the attorney for one of the defendants disappeared after both sides had rested but before closing arguments in a five-month-long trial. Over the defendant’s objection, new counsel was appointed. (Ibid.) The defendant moved for a mistrial, arguing that new counsel’s absence during the taking of evidence made it impossible for him to argue witness credibility. (Id. at p. 198.) The mistrial motion was denied. On appeal, the court reversed, reasoning that the right to the assistance of counsel is the right to effective representation. The defendant had been denied effective representation both because her attorney was incapable of arguing witness credibility and because the disappearance of prior counsel “severely interrupted the continuity of representation necessary to a fair trial.” (Id. at p. 198.) Under the circumstances, the absence of counsel qualified as legal necessity in the same manner as would the absence of judge or juror. (Id. at p. 202, citing Curry, supra, 2 Cal.3d at p. 713.)
In McNally, supra, 107 Cal.App.3d at page 391, on the third day of trial, defense counsel discovered a conflict of interest such that he could no longer represent the defendant. The trial court relieved counsel and declared a mistrial. The defendant then moved for an order entering a plea of once in jeopardy. After a hearing, the trial court sustained the plea and dismissed the information, finding that the defendant did not consent to the mistrial and no legal necessity required it. The appellate court reversed on the ground of legal necessity, finding that “the development which led to the mistrial was not simply a legal or procedural error; rather, counsel’s belated discovery of his conflict of interest struck at [the defendant’s] constitutionally guaranteed right to assistance of counsel. [Citations.] If counsel must represent conflicting interests or is ineffective because of the burdens of representing more than one defendant, the injured defendant has been denied his constitutional right to effective counsel. [Citations.]” (Id. at pp. 391-392.) Because defense counsel could no longer effectively represent the defendant, “that counsel became ‘absent,’ as did the judge in T.P.B. v. Superior Court, supra, 66 Cal.App.3d 881 when he disqualified himself.” (Id. at p. 392.)
Finally, in People v. Coleman (1992) 9 Cal.App.4th 493 (Coleman), following defense counsel’s opening statement and after a prosecution witness had begun to testify, the defendant moved to substitute counsel pursuant to Marsden. He contended that his counsel’s misstatement of the evidence during her opening statement would make him look like a liar if he testified during the trial. Defense counsel opposed the Marsden motion and argued instead that the court should declare a mistrial. The court denied the mistrial without prejudice, granted the Marsden motion, and continued the case to allow substitute counsel to prepare for trial. After the People rested, the defendant moved again for a mistrial. Defense counsel argued that his predecessor’s opening statement had undermined his ability to mount a defense because if he put on any evidence that contradicted the misstatement, it would appear that the defendant had changed his story between defense counsel. (Id. at pp. 495-496.) The court again denied the motion for a mistrial but agreed to strike defense counsel’s opening statement. The defendant was convicted. On appeal, the court reversed, concluding that legal necessity required a mistrial. Prior counsel’s misstatement undermined the defendant’s credibility and caused a conflict of interest. It resulted in a breakdown in the relationship between the defendant and his counsel and “frustrated the realization of a fair trial.” (Id. at pp. 496-497.) The court explained that the trial court’s remedy was inappropriate under the circumstances because substituting counsel could not erase from the jurors’ minds the impression that the defendant had changed his story. (Id. at p. 497.)
Appellant relies on Carrillo, supra, 145 Cal.App.4th 1511, in arguing that no legal necessity supported the mistrial here. In Carrillo, defense counsel chose, as an admitted trial tactic, not to move to suppress the defendant’s tape-recorded confession, but rather to allow it to be played for the jury. After hearing a portion of the taped confession which was played for the jury, the trial court concluded that the confession was coerced. The court believed that defense counsel had provided ineffective representation and declared a mistrial sua sponte. (Carrillo, supra, 145 Cal.App.4th at p. 1514.)
On appeal, the Carrillo court characterized Manson, McNally and Coleman as standing for the proposition that “ineffective assistance of counsel may, in extreme circumstances, constitute legal necessity for a mistrial.” (Id. at p. 1525.) The court distinguished these cases on the grounds that “[n]either [his counsel] nor Carrillo requested a mistrial, defense counsel did not absent himself during trial, no ethical bar prevented defense counsel from representing his client, and there was no evidence that a breakdown in the relationship between [defense counsel] and Carrillo had occurred.” (Id. at pp. 1527-1528.) Rather, the development that led the trial court to declare a mistrial was defense counsel’s decision to allow the confession into evidence. The Carrillo court found that the mistrial was without legal necessity and that double jeopardy barred retrial. (Id. at p. 1531.) The court explained: “Where, as here, a trial court becomes convinced that defense tactics are denying a defendant a fair trial, the proper course of action, in the absence of the type of extreme circumstances described in Manson, McNally and Coleman, is to allow the case to proceed to judgment and then consider whether the defendant is entitled to a new trial.” (Id. at p. 1529.)
Carrillo does not assist appellant. Here, the mistrial was occasioned not by defense tactics, but by the absence of any defense counsel following the court’s order granting the Marsden motion. The Carrillo court acknowledged that circumstances such as a breakdown in the relationship between defense counsel and the defendant, and the absence of defense counsel during trial could amount to legal necessity for a mistrial. (Carrillo, supra, 145 Cal.App.4th at p. 1528.) As in Coleman, supra, 9 Cal.App.4th at pages 496-497, appellant’s relationship with her counsel had clearly broken down. As in Manson, supra, 61 Cal.App.3d at page 202, where counsel disappeared, and McNally, supra, 107 Cal.App.3d at page 392, where counsel was relieved because of a conflict of interest, counsel here also became “absent,” having been relieved because of deficient performance.
Finally, we also reject appellant’s contention that the trial court was required to appoint a new defense attorney and grant a continuance so that appellant and her substitute counsel could decide whether to request a mistrial or to proceed with the current trial. Substitute counsel could not have been expected to conclude the trial adequately, having neither prepared for it nor been present for the taking of evidence prior to the removal of prior counsel. (See Manson, supra, 61 Cal.App.3d at p. 198 [substitute counsel could not meaningfully argue the case, not having been present for the testimony of witnesses].) In addition, the potential for prejudice to appellant’s case from defense tactics by new counsel that differed from those of her prior counsel is manifest. (See Coleman, supra, 9 Cal.App.4th at pp. 496-497 [substitute counsel could not contradict prior counsel’s misstatement without creating impression that defendant had changed his story].)
As a result of her prior counsel’s performance and removal in the middle of trial, appellant’s “chances of receiving a fair trial [had] been irreparably damaged . . . .” (People v. Bolden, supra, 29 Cal.4th at p. 555.) Since legal necessity required a mistrial under the circumstances present here, double jeopardy did not bar a retrial.
IV. DISPOSITION
Both the judgment and the trial court’s order denying appellant’s motion to dismiss on double jeopardy grounds are affirmed.
We concur: Kline, P.J., Lambden, J.