PEOPLE of the State of California, Plaintiff and Respondent, v. Lee TIDEMAN, Defendant and Appellant.*
After a trial by jury, defendant was found guilty of murder in the second degree. From the judgment of conviction and from the order denying his motion for a new trial, he prosecutes this appeal. The sole issue presented is whether the trial court properly rejected his plea of once in jeopardy.
The information, as originally framed, contained two counts. The first count charged the appellant and his co-defendant Stafford with performing an abortion on Kay Beverly Stretlow on April 21, 1960 (Pen.Code, § 274); the second charged the appellant and Stafford with the murder of Kay Beverly Stretlow on April 21, 1960 (Pen.Code, § 187).
When arraigned, the appellant entered a plea of not guilty to each count; however, before the trial, the appellant withdrew his plea of not guilty on the first count. He then entered a plea of guilty to the first count for abortion, and interposed the plea, as to count two, that the judgment about to be entered on his plea of guilty to count one, would be a conviction of the same offense, charged in count two. The court rejected the appellant's motion to terminate the trial on the second count and indicated that the plea of once in jeopardy was to be determined at the termination of the trial on the second count, stating as the reason for its action that jeopardy could not attach because ‘* * * [i]t is not until the judgment of the Court has been pronounced as to the first count that he stands convicted of a felony. * * *’ The court then referred the first count to the probation officer for investigation and report and deferred sentencing until October, 3, 1960.
Thereafter, on September 13, 1960, the appellant was tried on count two by a jury. During the selection of the jury, the court granted the district attorney's motion to amend the second count of the information to charge ‘murder in the second degree.’ After the presentation of evidence was completed, the court ruled that the issue of jeopardy was a question of law for the court and denied the plea. On September 15, 1960, the jury found the appellant guilty of murder in the second degree. On October 6, 1960, the court ordered that the plea of guilty to the first count be set aside and the first count dismissed, and then sentenced the appellant on the second count.
The evidence produced on the trial supports the judgment. It shows that on April 21, 1960, by prearrangement, Kay Beverly Stretlow went to Stafford's Oakland apartment for an abortion, and met Stafford and the appellant. The appellant attempted to perform the abortion. Shortly thereafter, the victim died as a result of an air embolism in the wall of her uterus. The appellant admitted employing an instrument to bring about an abortion, but denied responsibility for the cause of death; he testified that the victim was already aborting at the time of the operation. Although there was evidence of an allegedly self-inflicted puncture or laceration of the cervix, the pathologist who performed the autopsy testified that this laceration was insignificant, and that it was highly improbable that the wound which caused the death was self-inflicted.
On this appeal, no direct attack is made upon the sufficiency of the evidence. Appellant argues that as our Supreme Court has indicated that he cannot be convicted of both abortion and second degree murder (People v. Brown, 49 Cal.2d 577, 320 P.2d 5), the abortion here charged contained in count one is an offense necessarily included in the second degree murder charge contained in count two; that, therefore, after pleading guilty to count one, the plea of once in jeopardy was applicable to count two.
The attorney general argues that the plea of double jeopardy will not lie when a defendant is tried but once; that the instant case is one which involves only section 654 of the Penal Code, and not section 1023; that the doctrine of double jeopardy has no application to a defendant who is tried on several counts in the same trial; and that the abortion charged in count one was not a necessarily included offense in the second degree murder charged in count two. The attorney general concedes that both counts in the amended information relate to the same act.
The statements of the law applicable to the doctrine of double jeopardy are by no means clear and in some respects inconsistent. In fact, the issue here presented has long been one of the most vexing questions of the criminal law. Our state Constitution provides: ‘* * * No person shall be twice put in jeopardy for the same offense * * *.’ Const. art. I, § 13. It has been acknowledged that the doctrine of included offenses is a part of the constitutional guarantee against double jeopardy (People v. Smith, 36 Cal.2d 444, 448, 224 P.2d 719; People v. Kehoe, 33 Cal.2d 711, 204 P.2d 321). Thus, if an offense is ‘necessarily included’ within another, the requirement of the ‘same offense’ is satisfied for purposes of double jeopardy.
As it is generally accepted that the plea of double jeopardy incorporates both protection against repeated prosecution and double punishment, the above quoted constitutional provision is implemented by section 654 of the Penal Code, which provides: ‘An act or omission which is made punishable in different ways by different provisions of this Code may be punished under either of such provisions, but in no case can it be punished under more than one; an acquittal or conviction and sentence under either one bars a prosecution for the same act or omission under any other * * *’, and section 1023, which reads: ‘When the defendant is convicted or acquitted or has been once placed in jeopardy upon an accusatory pleading, the conviction, acquittal, or jeopardy is a bar to another prosecution for the offense charged in such accusatory pleading, or for an attempt to commit the same, or for an offense necessarily included therein, of which he might have been convicted under that accusatory pleading.’ [Emphasis supplied.]
Although section 1023 refers to a situation where the prosecution for the greater offense is first in time, it is clear that the same rule applies where the prosecution for the lesser offense comes first. A conviction of the lesser offense is held to be a bar to the prosecution for the greater offense on the theory that to convict of the greater would be to convict twice of the lesser. If this were not the rule, section 1023 could be vitiated by the simple device of beginning with a prosecution of the lesser offense and proceeding up the scale. The prosecution cannot avoid the consequences of a conviction of a necessarily included offense by charging the included offense in a separate count, on the theory that a conviction under such circumstances constitutes a conviction of a separate offense. It is well settled that no person shall be convicted of both an included and a greater offense (People v. Greer, 30 Cal.2d 589, 601, 184 P.2d 512; People v. Mims, 136 Cal.App.2d 828, 830, 289 P.2d 539).
The appellant argues that the regular entry of his plea of guilty to the abortion count placed him in jeopardy as to the second degree murder count, as he stood ‘convicted’ when the plea was entered. The attorney general contends that the appellant was tried but once; that the doctrine of double jeopardy has no application to a defendant who is tried on several counts in the same trial, on the same indictment where the jeopardy took place at the same time as the conviction sought to be set aside. The attorney general relies on People v. Chessman, 38 Cal.2d 166, 193, 238 P.2d 1001; People v. Day, 199 Cal. 78, 83, 248 P. 250; People v. Amick, 20 Cal.2d 247, 125 P.2d 25, and People v. Degnen, 70 Cal.App. 567, 234 P. 129. However, these cases are clearly distinguishable as the situation which the defendant claimed resulted in jeopardy, arose after the trial began. However, the true double jeopardy situation arises only when, as here, the defendant prior to the trial has been in jeopardy for the same or an included offense and pleads such jeopardy as a bar to the trial.
In the instant case, the appellant entered a plea of guilty to count one and interposed a plea of once in jeopardy to count two. As indicated above, the trial court concluded that jeopardy could not attach, because the appellant did not stand convicted of a felony until after its judgment as to count one had been pronounced. There is no question that the court below erred in this conclusion. A plea of guilty is the equivalent of a conviction, even though judgment and sentence have not been entered (People v. Blue, 161 Cal.App.2d 1, 326 P.2d 183). As to when jeopardy attaches, the law on this matter was settled in People v. Goldstein, 32 Cal. 432, at page 433, wherein the court said:
‘Where a defendant pleads guilty, and his plea is entered of record as provided in the Criminal Practice Act, (Sec. 300,) he stands convicted in the eye of the law as fully as he would have been by a verdict of guilty. He is convicted by his plea, and there is, therefore, no occasion for a trial, and nothing remains to be done except to pronounce judgment. On the question of former conviction there can be no distinction between a plea and a verdict of guilty, for both are followed by the same consequences.
‘Nor is it necessary that a judgment should have been pronounced upon the conviction to make the plea of former conviction good. (1 Bishop on Criminal Procedure, Sec. 581; The State v. Elden, 41 Maine, 165.)’
In commenting on the Goldstein case, we said in People v. Mims, 136 Cal.App.2d 828, at pages 831 and 832, 289 P.2d 539, at page 541:
‘The reasoning of this case appears to us to be unanswerable, but even if it were open to question, under a well settled principle of constitutional construction, we are foreclosed from re-examining it now. The right not to be placed twice in jeopardy for the same offense was contained in the California Constitution of 1849. Const. of 1849, Art. I, sec. 8. It was that constitutional provision which the Supreme Court construed in People v. Goldstein, supra. The same provision against being placed twice in jeopardy was readopted in the present Constitution. It is settled by a long line of authorities that where a provision of the earlier Constitution had been construed by the Supreme Court it must be presumed that the framers of the present Constitution in readopting it intended it to have the same effect. [Citations.] We conclude that the regular entry of the plea of guilty placed respondent in jeopardy within the meaning of Article I, section 13, of our Constitution.’
Thus, we can only conclude that jeopardy attached on entry of the appellant's plea of guilty to the abortion count. We turn now to the question of whether the abortion was a necessarily included offense in second degree murder, within the above quoted language of section 1023 of the Penal Code.
Our Supreme Court has recently indicated that the yardstick for measuring offenses ‘necessarily included’ within the meaning of section 1159 of the Penal Code [which provides that the jury, or judge if a jury trial is waived, may find the defendant guilty of any offense, the commission of which is necessarily included in that with which he is charged, or of an attempt to commit the offense], is the specific language of the accusatory pleading rather than the statutory definition of the offense (People v. Marshall, 48 Cal.2d 394, 309 P.2d 456).
In the Marshall case, the information charged robbery under section 211 of the Penal Code, alleging that the defendant forcibly took money and an automobile. At the trial, the defendant was convicted of violating section 503 of the Vehicle Code,* a lesser but not necessarily included offense. On appeal, he argued that the taking of a particular kind of personal property, an automobile, was not ‘necessarily included’ in a charge of robbery, because it was not part of the definition of that offense. The court affirmed the conviction under section 503 as the information specifically alleged that the subject of the taking was an automobile. In rejecting the defendant's contention, the court labeled correct but inadequate, as an exclusive test, the view that an offense is ‘necessarily included’ if, in the commission of acts denounced by one statute, the offender must always violate another, and indicated that if the manner of commission of an offense necessarily involved the commission of a minor offense, the minor offense was necessarily included.
Although the court was construing only the ‘included offenses' language of section 1159, the court implied that the same reasoning would apply to section 1023.
Appellant argues that under the authority of the Marshall case, supra, and People v. Brown, 49 Cal.2d 577, 320 P.2d 5, it necessarily follows that under the circumstances here presented, abortion is an offense necessarily included in second degree murder. We agree.
In People v. Brown, supra, the defendant, like the appellant here, was convicted of both the abortion and second degree murder of the same victim [Lucy]. He argued that the two convictions for murder and abortion could not stand because of section 654 of the Penal Code that: ‘* * * ‘An act or omission which is made punishable in different ways by different provisions of this code may be punished under either of such provisions, but in no case can it be punished under more than one; an acquittal or conviction and sentence under either [one] bars a prosecution for the same act or omission under any other. * * *’ * * *' 49 Cal.2d at page 590, 320 P.2d at page 13.
After reviewing several cases under that section which held it applicable not only where there was ‘one act’ in the ordinary sense, but also where a course of conduct violated more than one statute, and the problem was whether it comprised a divisible transaction which could be punished under more than one statute within the meaning of section 654, the court stated: ‘* * * Where the question is whether a transaction is divisible or indivisible, each case must be resolved on its facts * * *.’ 49 Cal.2d at page 591, 320 P.2d at page 14.
The court then discussed People v. Coltrin, 5 Cal.2d 649, 660–661, 55 P.2d 1161; People v. Powell, 34 Cal.2d 196, 208 P.2d 974; People v. Gomez, 41 Cal.App.2d 249, 106 P.2d 214, all of which affirmed convictions of abortion and homicide resulting therefrom.1 The court then said at pages 592 and 593 of 49 Cal.2d, at page 15 of 320 P.2d:
‘* * * The discussion of section 654 in the Coltrin case is intermingled with discussion of double jeopardy; the court apparently overlooked the rule that no plea of double jeopardy can properly be made where the defendant is tried but once. (People v. Amick (1942), 20 Cal.2d 247, 251, 125 P.2d 25; People v. Day (1926), 199 Cal. 78, 83, 248 P. 250; People v. Horowitz (1933), 131 Cal.App.Supp. 791, 793 , 19 P.2d 874.)
‘Specifically concerning section 654 it is said in the Coltrin case (page 660  of 5 Cal.2d, page 1166 of 55 P.2d), ‘If the act involved in one charge is necessarily involved in the other and is merely incidental to that charge but one offense is committed and it cannot be carved into two offenses in order to inflict a double punishment.’ It does not appear accurate to say that ‘but one offense is committed’ in the circumstances. Rather, section 654 comes into application where a defendant by one act commits more than one offense.
‘It is further said in the Coltrin case (page 661  of 5 Cal.2d, page 1167 of 55 P.2d), ‘The act of committing an abortion and the act of killing a person while attempting to do this are not merely the same act made punishable in different ways. Not only are these two offenses separate and distinct in a legal sense and each dependent upon evidence not required in the other, but as a practical matter it cannot be said that the two charges involve but one act. The act of committing an abortion may be done without causing the death of the party operated upon. The act which causes the death of the same person is usually another act, careless or otherwise, which, while it may be committed in connection with the first and about the same time, involves a further and additional element.’ It is artificial to say that the act which caused death in the Coltrin case, and the act which caused death in the present case, was another act than that which constituted the abortion. Furthermore, under section 654, the Coltrin case is mistaken in its dictum (page 660  of 5 Cal.2d, page 1166 of 55 P.2d) that ‘where a defendant was convicted on an abortion charge and where the victim thereafter died, the first conviction would not be a bar to a subsequent prosecution for murder.’ In so far as the Coltrin case is contrary to section 654 of the Penal Code and to the many cases which, obediently thereto, hold that a person cannot be twice punished for one act, it is overruled.' [Emphasis supplied.]
The court then concluded that the conviction for the less severely punishable offense should be reversed. The court below interpreted People v. Brown, supra, to mean that while the appellant was guilty of both offenses, he could only be punished for one, as the abortion was not a necessarily included offense in the charge of murder.
We agree with the appellant's argument that the above quoted language from the Brown case, supra, clearly implies that his conviction on count one for abortion is a bar to the subsequent prosecution for murder in the second degree. Certainly in the instant case, just as in People v. Brown, it cannot be said that the act which caused the death was another act than that which constituted the abortion.
The attorney general, however, points out that in the Borwn case, supra, the court relied on People v. Amick, 20 Cal.2d 247, 125 P.2d 25 and People v. Day, 199 Cal. 78, 83, 248 P. 250, and People v. Horowitz, 131 Cal.App.Supp. 791–793, 19 P.2d 874 to say at page 592 of 49 Cal.2d, at page 15 of 320 P.2d, supra, that ‘* * * no plea of double jeopardy can properly be made where the defendant is tried but once * * *’ However, in People v. Amick, supra, and People v. Day, supra, the claim of double jeopardy was based on inconsistent verdicts; in People v. Horowitz, supra, People v. Dreyer, 71 Cal.App.2d 181, 162 P.2d 468, and People v. Clensey, 97 Cal.App. 71, 274 P. 1018, the claim was based on the dismissal during the trial of one or more counts, and as we indicated above, these cases are clearly distinguishable.
The attorney general further argues that the identical language of ‘included of fenses' in section 1023 of the Penal Code should not be construed in the same manner as the identical language in section 654. As we indicated above, it is generally accepted that the plea of double jeopardy not only prohibits a second punishment for the same offense but also prohibits a second trial for the same offense (IV Blackstone, Commentaries, 335; Exparte Lange, 1873, 18 Wall. 163, 169, 85 U.S. 163, 169, 21 L.Ed. 872; Perkins, Criminal Law and Procedure 650; 57 Yale L.J. 132–133). People v. Marshall, supra, and People v. Brown, supra, indicate that the same ‘transaction’ approach is appropriate, and there is considerable overlap between the two statutes. More recently, our Supreme Court said in Neal v. State of California, 55 Cal.2d 11, 9 Cal.Rptr. 607, at page 612:
‘* * * Section 654's preclusion of multiple prosecution is separate and distinct from its preclusion of multiple punishment. The rule against multiple prosecutions is a procedural safeguard against harassment and is not necessarily related to the punishment to be imposed; double prosecution may be precluded even when double punishment is permissible.’
See also People v. Blue, 161 Cal.App.2d 1, 326 P.2d 183, and 11 Stanford L.R. 735.
The attorney general argues further that by holding that the plea of double jeopardy applies to the instant case, we would be creating a situation where by pleading guilty to a lesser offense, a defendant can escape punishment for the more serious one. This court [Division One] long ago dispelled the same argument under very similar circumstances in People v. Krupa, 64 Cal.App.2d 592, at page 603, 149 P.2d 416, at page 423:
‘* * * This result does not, necessarily, show a weakness in the law. The doctrine that no man shall be put in jeopardy twice for the same offense is based upon sound and fundamental principles, which are recognized by both the federal and state constitutions. The fault in the present case, if any there be, lies in the procedure adopted. It was within the discretion of the law enforcement authorities to prosecute defendant for either the felony or the misdemeanor. They elected to frame an information charging the two identical offenses. This made it possible for the defendant to adopt the procedure he did.’
See also People v. Blue, supra.
The attorney general attempts to distinguish the Krupa case on the ground that the court there knew at the time of plea that the defendant intended to rely on his plea of guilty to one count as a defense to the trial on the other. The same is true here. The attorney general also contends that even after the plea, the trial court in Krupa could have dismissed the lesser offense and forced trial on the greater. However, People v. Mims, supra, indicates the contrary. In that case, the defendant was charged and pleaded guilty to a violation of section 488 of the Penal Code (petty theft, a misdemeanor). Before judgment, the trial court moved to set aside the plea and dismiss the complaint in order that the defendant could be charged with a violation of section 666 of the Penal Code (petty theft and prior petty theft, a felony). The court, citing People v. Goldstein, supra, held that the plea of guilty was a conviction for purposes of double jeopardy.
The court then pointed out that no code section would be constitutional which attempted to abridge this right by allowing the dismissal of any count once jeopardy attached, relying on People v. Hunckeler, 48 Cal. 331. In that case, the defendant was tried before a jury for manslaughter. After witnesses had been examined, the court without the consent of the defendant, dismissed the jury so that the defendant could be indicted for murder. On a subsequent murder charge, the defendant pleaded once in jeopardy and the Supreme Court held that this plea was good, saying at page 334, ‘And when a person has been placed in actual jeopardy, the jeopardy cannot be repeated without his consent, whatever statute may exist on the subject. * * *’ Similarly, it has been repeatedly held that a statute cannot constitutionally confer on the state the right to appeal in any criminal case in which jeopardy actually attached (People v. Knowles, 27 Cal.App. 498, 155 P. 137).
There is no problem as to how the accusatory pleading should have been phrased in the instant case. By using a single count, the district attorney could have avoided the situation. This would have permitted, in the court's discretion, a conviction of abortion. To avoid the problem created by the Krupa case, supra, only the greater offense needs to be charged; the district attorney can then rely on the normal instructions to cover the included offenses. In special situations, such as that presented by this case, one count should be used. As indicated in People v. Greer, 30 Cal.2d 589, 184 P.2d 512, the form of pleading cannot assume such importance that it will permit a defendant to be convicted of both the included and the greater offense.
In view of the foregoing, the judgment and order denying the motion for new trial are reversed, with directions to the trial court to enter judgment of conviction on the abortion count.
FOOTNOTE. Now Vehicle Code 1959, § 10851.
1. The Powell and Gomez cases merely affirmed the convictions and did not discuss the question of double punishment.
KAUFMAN, Presiding Justice.
DRAPER and SHOEMAKER, JJ., concur.