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Court of Appeal, Third District, California.

The PEOPLE of the State of California, Plaintiff and Appellant, v. Joe David UPSHAW, Defendant and Respondent.

Cr. 7188.

Decided: February 14, 1974

Evelle J. Younger, Atty. Gen. by Roger E. Venturi and W. Scott Thorpe, Deputy Attys. Gen., Sacramento, for plaintiff and appellant. Raul Anthony Ramirez, Sacramento, for defendant and respondent.

Defendant was indicted for two separately charged sales of heroin. Two prior convictions were also charged. After various proceedings not relevant to this appeal, the case came on for jury trial at 1:30 p. m. on May 14, 1973. At an in camera hearing prior to the beginning of jury selection, the court, without the concurrence of defense counsel and despite counsel's objection thereto, acceded to defendant's demand that the jury panel be dismissed and the case proceed to trial by the court. The first witness was sworn at 3:20 p. m. and the evening recess taken before cross-examination had been completed. At the outset of the trial the next morning, the court, of its own motion, declared a mistrial because article I, section 7, of the California Constitution, states that in a criminal trial a jury may be waived with ‘the consent of both parties, expressed in open court by the defendant and his counsel.’ The court ordered the case remanded for resetting a trial date. The district attorney then stated that he had brought the matter of the constitutional mandate to the attention of the court and defense counsel before the court convened. (There is no record of this presentation.) Defense counsel then said that he thought the remand was improper; that the court could do nothing but dismiss the case because jeopardy had attached and he requested a transcript. The request was granted.

On May 16, when the matter was called in the calendar department, defense counsel entered a plea of former jeopardy and moved for a dismissal of the case. The matter was set for hearing and was eventually argued and submitted on the reporter's transcript and briefs. The motion was granted and an order of dismissal entered. The prosecution appeals therefrom.

The issues raised herein turn upon the derivation, nature and effect of the error that brought about the declaration of mistrial. We proceed to examine the transcript to ascertain these matters.

At the outset of the in camera session, defense counsel stated that his client wished to address the court and should be allowed to do so. There followed an extended and somewhat disorganized statement by defendant that included motions to postpone the trial, to suppress evidence, to compel attendance of news reporters at the trial and other matters, including habeas corpus relief. None of these issues are involved in this appeal. About midway in his statement, defendant said, ‘the United States Constitution guarantees me the right to a jury trial or a court trial. I do not wish to have a jury trial.’ When the judge, in a conscientious effort to segregate and clarify the various issues raised in the statement, came to the issue of the waiver of the jury, defense counsel addressed himself to the ‘question as to Mr. Upshaw's right to jury trial versus court trial’ and said, ‘With all due respect for Mr. Upshaw's obvious constitutional rights, I cannot in good conscience . . . allow him to . . . waive his trial by jury . . . I do not believe . . . that he has the understanding of the law to make a knowing waiver of his trial by jury . . . I respectfully request at this time that he not be allowed to waive trial by jury . . ..'1

The italics supplied to portions of the colloquy are not so much for emphasis as to supply the connective tissue of error that stemmed from defendant's bald assertion of a nonexistent constitutional right and flowed to the dismissal of the venire. The defendant's assertion was clearly erroneous. People v. Terry (1970) 2 Cal.3d 362, 378, 85 Cal.Rptr. 409, 417, 466 P.2d 961, 969, states: ‘The judge does not have to give his consent to a nonjury trial, nor can he overrule the consent of the defendant and prosecutor. Under the Constitution this determination is left to the ‘consent of both parties,’ and the means the defendant and the prosecutor.' Defendant's assertion of a constitutional right to a nonjury trial was not challenged by either of the attorneys or by the court.

On the contrary, the district attorney's statement clearly conceded the existence of the claimed right. Defense counsel's reference to defendant's ‘obvious constitutional rights,’ in context, implied the existence of the right. Further, his assertion that he did not have to concur in the waiver implies an acceptance of the prosecution's assumption that the election of a court or jury trial belonged solely to defendant. By injecting Boykin considerations (the requirement of an affirmative showing that a plea of guilty is both intelligently and voluntarily made before it may be accepted in court (Boykin v. Alabama (1969) 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274)), counsel effectively created a whole new ball game wherein defendant's competency to understand the import of the waiver became the crucial decisional point rather than counsel's refusal to consent thereto. The two statements (each tied to the competency objection) that ‘What the Court will do or not is up to the Court,’ and ‘if . . . the Court finds him . . . competent to waive jury trial, that is a ruling of the Court,’ strongly imply that the court had the power to accept the unilateral waiver if it overruled the stated objection.

We do not impugn the ability, integrity or motivations of the court or either attorney involved. We may point out, however, that the obvious confusion that was created by the in pro per presentation was such that the assertion of a nonexistent constitutional right in the middle of the defendant's complex and amorphous pro per package was the most clearly stated and readily understood point contained therein. It therefore possessed a clarity that may have given it a surface validity that might explain its ready acceptance by both counsel and a court preoccupied with ascertaining the legal nature of the various matters that required rulings. Unfortunately, this kind of confusion frequently results when a court or counsel departs from the rule that where a litigant is represented by an attorney, only counsel of record has a right to address the court. (See, People v. Hill (1969) 70 Cal.2d 678, 692, 76 Cal.Rptr. 225, 452 P.2d 329; People v. Darling (1962) 58 Cal.2d 15, 19, 22 Cal.Rptr. 484, 372 P.2d 316.) Unless compelling reasons appear of record to justify an exception, the rule should be strictly observed. In pertinent part, article I, section 7, of the California Constitution reads: ‘The right of trial by jury shall be secured to all, and remain inviolate . . .. A trial by jury may be waived in all criminal cases, by the consent of both parties, expressed in open court by the defendant and his counsel . . ..’

The record is clear that until the next morning the constitutional provision entirely escaped the attention of each counsel2 and the court as well. At the time, the posture of the case was that the judge found himself conducting a trial wherein he was called upon to perform the fact-finding function of a jury but was not constitutionally in vested with the authority to do so. If the prosecution proved defendant's guilt to a moral certainty and beyond a reasonable doubt, the finding of fact necessary to support a conviction could not validly be made.

The record shows that defense counsel did not impliedly consent to or join in the waiver of the jury by the accused. In criminal trials both a defendant's and the prosecution's right to a jury trial is so ingrained in our law as a matter of such fundamental importance that in many jurisdictions it cannot be waived by an accused in the absence of statutory authority. (State v. Karsunky (1938), 197 Wash. 87, 84 P.2d 390, 396; and see also Anno.—Waiver of Jury in Criminal Cases, 48 A.L.R. 767, 775, 58 A.L.R. 1031, and Massachusetts and Pennsylvania cases therein cited.) In California, the fact that the matter is governed by constitutional provision rather than by statute is of significance. In People v. Holmes (1960) 54 Cal.2d 442, 443–444, 5 Cal.Rptr. 871, 872, 353, P.2d 583, 584, it was held that a waiver of jury in a criminal case must be expressed by a defendant in words and ‘will not be implied from a defendant's conduct.’ The court said: ‘If the waiver were left to implication from conduct, there would be a danger of misinterpretation with respect to a right the importance of which requires there be certainty.’ But in People v. Brooks (1957) 154 Cal.App.2d 631, 316 P.2d 435, wherein defense counsel merely informed the court that his client desired to waive a jury and the court by questioning the defendant ascertained the fact, the waiver was held valid. The court stated a page 634, 316 P.2d at page 437: ‘Clearly, if the defendant unequivocally expresses his waiver of a jury trial in the presence of his counsel and his counsel thereafter continues to represent him throughout the trial without indicating any objection then his counsel has in effect joined in the waiver.’ This case, decided before Holmes, suggests that different criteria may apply when counsel's consent rather than that of the accused is under consideration. But if counsel's consent may be implied from conduct, the conduct must unequivocally establish the fact. At 50 C.J.S. Juries § 90, p. 797, the rule is stated that a waiver of jury will not be implied in doubtful cases and in order to create a waiver by implication, unequivocal acts are necessary.

The transcript of the in camera session shows no act or statement implying a willingness on counsel's part to consent to the waiver. He expressly refused to concur in the waiver and stated his reasons therefor, i. e., his trial preparation, his professional judgment and defendant's lack of competency to make an intelligent waiver. The facts that he did not argue the decisive ground why the waiver could not be accepted and may have inferred he would bow to the court's ruling if his stated objection was not sustained do not raise the slightest inference that he would join in or consent to the waiver. An error of constitutional dimensions was thus present in the acceptance of the waiver and proceeding to trial without a jury. The effect of the error was to deprive the judge of the fact-finding authority essential to the validity of any judgment that he might render. Thus, it affected the structure of a court in a criminal trial under the California Constitution. We do not deem this a mere error of law for the reasons discussed below.

Confronting the ultimate issue of whether or not the trial judge's sua sponte declaration of mistrial bars retrial, we face the categorical pronouncements of the California Supreme Court in Curry v. Superior Court (1970) 2 Cal.3d 707, 87 Cal.Rptr. 361, 470 P.2d 345, that at first blush appear to support the calendar court's finding that jeopardy had attached. Curry restates the ‘rules that (1) jeopardy attaches when a defendant is placed on trial in a court of competent jurisdiction, on a valid accusatory pleading,3 before a jury duly impaneled and sworn[;] . . . (2) 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’ (id. at P. 712, 87 Cal.Rptr. at p. 364, 470 P.2d at p. 348); (3) ‘[a] mere error of law or procedure, however, does not constitute legal necessity’ (id. at p. 714, 87 Cal.Rptr. at 365, 470 P.2d at p. 349); and (4) ‘except in the limited instances of ‘legal necessity,’ the policy underlying the prohibition against double jeopardy will best be served by firmly adhering to the rule that after jeopardy has attached no mistrial can be declared save with the defendant's consent.' (Id. at pp. 717–718, 87 Cal.Rptr. at p. 367, 470 P.2d at p. 351.)

Citing curry, witkin states: ‘The standards which the Fifth Amendment creates for protection against double jeopardy are minimum standards. A state may thus afford greater protection for an individual.’ (Witkin, Cal.Crimes (1973 Supp.) § 186A, p. 91.) (Original italics.) But in affording an accused greater protection against double jeopardy than is accorded in federal or other jurisdictions, we cannot conceive that the California Supreme Court intended to create a rigid and mechanistic rule to dispose of all cases. Nor do we believe that the Curry reference to ‘the limited instances of ‘legal necessity” (supra) was intended to promulgate a narrowly exclusionary rule that ‘legal necessity’; can arise only in instances there listed as typical, and to thus freeze an important and complex concept for reuse only in previously adjudicated factual situations.

We need not explore the multiple concepts that are embraced in the term ‘jurisdiction,’ because, in any aspect, its exercise requires the existence of a court constituted pursuant to the constitution and empowered to try a case and render a valid judqment therein. Although apparently unique in California, the factual situation here present has arisen in other jurisdictions, and the weight of authority is that jurisdiction cannot be conferred by a defendant's waiver or consent, and that a trial undertaken by a court without a jury in the absence of a statute authorizing such waiver is a nullity and does not create jeopardy.

The most nearly parallel case we have been able to find dates back to 1837, being State v. Mead (Indiana) 30 Am.Dec. 661, wherein defendant claimed the right to have his cause tried by the court and not a jury. The prosecuting attorney objected. The court overruled the objection, tried the case and acquitted the defendant. On appeal by the prosecution, the court cited the Indiana Constitution, providing, ‘That in all criminal cases, except in petit misdemeanors . . . the right of trial by jury shall remain inviolate’ and rejected the defense claim of former jeopardy in the following language: ‘Here is no verdict, and the objection to the judgment is, that there had been no legal trial. The court had no authority, under the circumstances, to determine the issue and the trial is coram non judice, and absolutely void.’ (Ibid.) (Italics added.) The court further said (at p. 662) that double jeopardy does not apply ‘where the first trial was a nullity, and where the defendant, of course, was not put in jeopardy by it.’

Although the case is of venerable age and an appeal by the prosecution would not lie in California, the reasoning of the case is sound and has been applied in many more recent cases (see, A.L.R. annots., supra). and because of the terms of article I, section 7, of the California Constitution, is particularly cogent to the case at hand.

Decisions in other states holding that the right to a jury trial is a personal right of a defendant and may be waived are not authoritative in California because the structure and jurisdiction of courts must always derive from the constitution and statutes validly enacted thereunder. The effect of the specific language of article I, section 7, of the California Constitution (quoted, supra) is that in criminal cases a court consists of judge and jury unless jury is waived as therein provided. Unless so waived, there is no constitutional authority for a judge alone to function as the court.

In State v. Karsunky, supra, 197 Wash. 87, 84 P.2d 390, defendant was convicted after a court trial on one count of manslaughter and one count of practicing medicine without a license. Defendant had waived trial by jury. On appeal, defendant contended that his waiver was ineffective and he had thus been denied his right to a jury trial. The Washington court held that, by statute, in the circumstances presented, defendant did not have the option of waiving a jury. The court stated in part at page 396: ‘The rule uniformly followed is that, in the absence of statutory authority, one who is charged with the commission of a felony . . . can not, by waiver, confer jurisdiction to proceed without a jury.’ If consent of a party may not confer jurisdiction, certainly judicial error may not confer it or permit a judge to arrogate unto himself the junction of a court in derogation of a constitutional proviso. It follows that after the dismissal of the jury venire, the proceeding was a mullity that had the semblance but not the reality of a trial.

Witkin in California Crimes (§ 187, p. 180) observes: ‘Although in practical effect a wholly ineffectual proceeding may involve just as much harassment as a valid one, in theory the defendant is not in jeopardy unless there was a possibility of a valid conviction.’ (Original italics.) No California case deals with the precise point of the incompetency or lack of authority on the part of a judge to render judgment. Jackson v. Superior Court (1937) 10 Cal.2d 350, 355–356 [74 P.2d 243], contains language adopted from 8 R.C.L. 138, that indicates that where a jury is improperly constituted, even though sworn, jeopardy does not arise. Although possibly dictum, the principle there stated is correct. We believe the situation developed in the trial court herein is completely analogous to that which would exist if there is a fatal defect in the impanelment of a jury.

Upon this record, there was no abuse of discretion in the declaration of mistrial. Further trial would result in a complete waste of the time and energies of the court personnel, the attorneys and the witnesses; if a conviction resulted, it would be reversed because the judgment could not be supported by a finding of fact made by legally constituted authority. There would be the possibility of additional waste of the expense and time involved in the appellate process. All of these factors support the exercise of discretion in the anomalous situation that had developed in the trial of the case before us. The jeopardy issue herein is not controlled by decisions which equate jeopardy with an abuse of discretion in ordering the mistrial. Accordingly, cases wherein a court's failure to explore alternates before declaring a mistrial has been held to be an abuse of discretion (e. g., Hutson v. Superior Court (1962) 203 Cal.App.2d 687, 691, 21 Cal.Rptr. 753; People v. Huff (1967) 255 Cal.App.2d 443, 447–448, 63 Cal.Rptr. 317; see Paulson v. Superior Court (1962) 58 Cal.2d 1, 8, 22 Cal.Rptr. 649, 372 P.2d 641) are not applicable because the problem here present was such that no viable alternates existed without risking charges of judicial pressure or coercion to secure a belated consent from defense counsel or some stipulation to recall the panel and begin again in some manner with a jury or to proceed in whatever other agreed manner a game of cat and mouse might have produced.

Accordingly, we hold that when an error of law goes to the constitutional authority of a judge to function as a court in a criminal trial and to enter a valid judgment, the court has inherent power to declare a mistrial and to order the case reset for trial without a defendant's consent. Our holding does not contravene either the rule or sound philosophy of Curry v. Superior Court, supra, because a trial had not been commenced before a lawfully constituted ‘court of competent jurisdiction’ and a compelling ‘legal necessity’ existed that justified the declaration of mistrial. Jeopardy had not attached.

We do not discuss the prosecution's contentions that defendant is estopped to plead former jeopardy because he invited the error. They may or may not be valid. We deem the jurisdictional aspect of the issues to be decisive and of greater legal significance.

The order dismissing the information is reversed and the case remanded to the superior court with instructions to enter an order denying the motion to dismiss and to deny the plea of former jeopardy.

I dissent. Jeopardy had attached here because defendant Upshaw had been placed on trial before a court of competent jurisdiction on a valid accusatory pleading. The trial judge declared a mistrial without the defendant's consent and without legal necessity. The trial judge's action was equivalent in law to an acquittal and bars the defendant's retrial. (Curry v. Superior Court, 2 Cal.3d 707, 712–713, 87 Cal.Rptr. 361, 470 P.2d 345.) The rule is just as powerful in nonjury as in jury trials. (See Scott v. Municipal Court, 17 Cal.App.3d 885, 95 Cal.Rptr. 460.) Defendant's silence in the face of the mistrial order was not a waiver of his constitutional guarantee against double jeopardy. (Curry v. Superior Court, supra, 2 Cal.3d at p. 713, 87 Cal.Rptr. 361, 470 P.2d 345.)

Certainly the trial judge had committed an error of law by disregarding the emphatic refusal of defendant's attorney to waive a jury trial. Article I, section 7, of the State Constitution requires an accused's waiver of jury to be manifested by the consent of both the defendant and his attorney. An error of law or procedure does not constitute ‘legal necessity’ in the double jeopardy sense. (Curry v. Superior Court, supra, 2 Cal.3d at p. 714, 87 Cal.Rptr. 361, 470 P.2d 345.)

The purpose of the double jeopardy defense is to prevent harassment of a defendant by repeated trials of the same criminal charge; that purpose is served by refusing to permit retrials in order to remedy errors made by the court in the course of the trial. (People v. Valenti, 49 Cal.2d 199, 209, 316 P.2d 633; People v. Sturdy, 235 Cal.App.2d 306, 314, 45 Cal.Rptr. 203.) That purpose is violated here. Before declaring a mistrial, the trial judge gave the defense no choice, no opportunity to waive its earlier objection to a nonjury trial, no opportunity to request a mistrial as an assertion of continued objection. ‘[The judge] must avoid depriving the defendant of his constitutionally protected freedom of choice in the name of a paternalistic concern for his welfare.’ (Curry v. Superior Court, supra, 2 Cal.3d at p. 717, 87 Cal.Rptr. at p. 367, 470 P.2d at p. 351.)

The majority of this court reason that the trial court was not one of ‘competent jurisdiction.’ I respectfully suggest that the majority thesis rests upon a misconceived notion of jurisdiction. Jurisdiction in its fundamental or strict sense means power to hear and determine the case, authority over the subject matter and parties; in a less fundamental sense, jurisdiction means merely power to act in a certain way or after occurrence of certain procedural requisites. (Abelleira v. District Court of Appeal, 17 Cal.2d 280, 288, 109 P.2d 942.) I think the double jeopardy cases use the phrase ‘court of competent jurisdiction’ in the fundamental sense, as referring to a court with power to try that grade of criminal offense, with a valid accusation before it and with power over the defendant's person. (See, e. g., People v. Hamberg, 84 Cal. 468, 24 P. 298; Anger v. Municipal Court, 237 Cal.App.2d 69, 46 Cal.Rptr. 577.) Given jurisdiction in the fundamental sense, a court does not lose it by committing error in the course of its proceedings. The constitutional dimension of the error does not alter its character as an error of law committed in the exercise of fundamental jurisdiction.

Following the abortive declaration of mistrial, another judge of the trial court correctly recognized that defendant had been in jeopardy and that his retrial subjected him to repeated harassment on a criminal charge. I would affirm the judgment.



1.  Deletions refer to whether or not prior convictions were to be denied or admitted, as to which counsel and his client also held different views. The judge then suggested to defendant that he ought to give very serious consideration to the advice of his counsel but defendant interrupted with a declaration of his lack of faith in the jury system and said, ‘I . . . refuse a jury trial and demand a court trial, your Honor.’ The district attorney was then asked for an expression of his attitude and made the astonishing statement, ‘Well, your Honor, we're prepared to go forward in any manner the Court feels appropriate. We have to, of course, concur in the waiver of the jury trial, and I believe the defense attorney does too.’ Defense counsel immediately rejoined, ‘Well, your Honor, I don't have to concur. I go on record . . . as objecting to it. I don't believe he is competent to waive a jury trial or know the results or possible conclusions that might come about. However, if that is what he desires and the Court finds him so competent to waive jury trial, that is a ruling of the Court. However, I go on the record as opposing his waiver of jury trial.’ The court then proceeded to question defendant to determine whether the waiver was voluntarily and intelligently made. The court determined that it was so made, excused the venire and commenced the trial.

2.  We are confident that defense counsel would not have us assume that he was aware of the constitutional mandate but deliberately placed his objection upon grounds calculated to divert the court's attention from the decisional point. The point was such that if he had been aware of the constitutional mandate, counsel would have demanded rather than requested that the jury waiver not be accepted.

3.  The requirement of an accusatory pleading may be questioned, because in 1969, Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707, held that a voidable accusatory pleading would support a plea of former jeopardy. (See, Witkin, Cal.Crimes (1973 Supp.) p. 92.) But the majority opinion in the sharply divided court of Illinois v. Somerville (1973) 410 U.S. 458, 93 S.Ct. 1066, 35 L.Ed.2d 425, ignored Benton and held that where a defect in the indictment could not be cured by amendment, there was no abuse of discretion in the declaration of a mistrial and although the jury had been sworn, jeopardy had not attached.

GOOD, Associate Justice.* FN* Assigned by the Chairman of the Judicial Council.

REGAN, J., concurs.