Clemensen

Petitione seeks a writ of prohibition to stay further criminal proceedings in the Municipal Court, West Orange County Judicial District, of Orange County on the ground of former jeopardy.

The facts set forth in this opinion are those agreed to in the respective briefs of counsel. No court reporter was present at the trial.

The petitioner, Robert Lynn Clemensen was involved in a traffic accident; as a result, he was charged with misdemeanor manslaughter in the driving of a vehicle, a violation of Penal Code, section 192, subdivision (3)(b). His trial commenced on Tuesday, September 15, 1970, and about 9 a.m. on Friday, September 18, the case was submitted to the jury for decision. About 2:30 p.m. the trial judge asked defense counsel to stipulate that the court might instruct, question, or dismiss the jury in the absence of counsel. Counsel declined to do so, stating: “No, I don’t think I can.” Defense counsel then told the judge his office was only about 15 minutes away from the court and requested permission to go to his office and be placed on a 15-minute call. The judge said: “Yes, that will be all right—no problem.” As defense counsel left the courtroom he asked the…