Double Jeopardy
Category > Double Jeopardy
Updated 3/4/2024Increased sentence on remand violated the state constitution’s double jeopardy provision.Defendant was convicted of multiple offenses and sentenced to a 12 year term. The case was remanded for resentencing by the Court of Appeal and the trial court imposed a new sentence of 12 years and four months. The increased sentence violated the double jeopardy provision of the state constitution as described in People v. Henderson (1963) 60 Cal.2d 482. However, defendant was not entitled to a new full resentencing before a different judge as there was no evidence to support the claim that the sentencing judge was vindictive. The sentence was reduced to a term of 11 years and four months.id: 28147
The trial court violated defendant’s right to a unanimous verdict (California Constitution) when it recorded a written guilty verdict after a polled juror replied that she had voted “not guilty” on that count.When a polled juror disavows the written verdict but the court nevertheless records it, the court violates a defendant’s right to a unanimous verdict under the California Constitution. The defense was not required to object in order to preserve the issue, the error was structural, and double jeopardy prevents retrial on that count. id: 25870
Failure to prove the stolen car was worth more than $950 rendered the theft a misdemeanor, and a remand for additional proof would violate double jeopardy.The minor was found to have committed theft of a vehicle under Vehicle Code section 10851. However, the prosecution presented no proof of the value of the stolen vehicle, so it could not be considered a felony theft, which requires proof that the car’s value exceeded $950. A remand for additional evidence would violate double jeopardy principles.id: 25492
There was no double jeopardy violation where the state conspiracy charge was based on different acts and different elements than the federal charge to which the defendant pled guilty.Defendant argued that the trial court erred by refusing to dismiss the conspiracy count on double jeopardy grounds because he had pled guilty to federal offenses that incorporated the same elements. However, the federal charge of using a telephone to facilitate a drug deal did not share any of the elements or acts involved in the state conspiracy charge. id: 24082
The trial court erred in denying defendant’s Kellett motion where he pled guilty in 2008 to conspiracy to sell meth to Nuestra Familia and was thereafter charged with active participation in the gang.In 2008, defendant was charged with conspiracy to distribute methamphetamine to members of the Nuestra Familia street gang although no gang members were charged and no gang-related charges or enhancements were alleged. He pled guilty to the charge and was sentenced to 10 years in prison. Shortly thereafter, the prosecution indicted defendant and 28 others for active participation in Nuestra Familia. The trial court erred in denying defendant’s motion to dismiss under Kellett v. Superior Court (1966) 63 Cal.2nd 822, because the prosecution was aware that the same course of conduct formed a significant part of the offenses charged in the 2008 complaint.id: 24752
Double jeopardy precluded retrial on lesser related offense of arson after the court found insufficient evidence of an element of a structure.Defendant set fire to two motor homes he owned and was convicted of arson of an inhabited structure under Penal Code section 451, subd.(b). In the original appeal the court found there was insufficient evidence that the inhabited motor home was a “structure.” Double jeopardy principles bar retrial for arson of property and any other lesser related offense on which the jury was instructed but did not return a verdict because the guilty verdict in the arson of a structure did not determine whether defendant was guilty of arson of property. id: 24533
Whenever a plea of once in jeopardy presents a question of material fact, it must be resolved by a jury, unless a jury trial is waived. Penal Code sections 1041 and 1042 provide for the right to a jury trial on factual issues underlying a plea of once in jeopardy. Defendants entered pleas of once in jeopardy based on their claim that the prosecutor at the first of their two trials intentionally goaded them into requesting a mistrial. While policy considerations might favor judicial resolution of factual issues, defendants had a statutory right to a jury trial on their plea of once in jeopardy.id: 24353
The rape conviction was reversed where the evidence was insufficient to support it under the theory the prosecution elected even though evidence supported the conviction under a different theory.The prosecution presented evidence that the rape occurred both in the bedroom and in a vacant apartment. During argument, the prosecutor took the position that the rape occurred in the vacant apartment. But there was insufficient evidence of force in that incident. When the prosecution has elected to proceed on one theory - thus obviating the need for a unanimity instruction, the reviewing court is bound by that election. The rape conviction was reversed for insufficient evidence and a retrial was barred by double jeopardy principles.id: 24290
While the prosecution could appeal the granting of the new trial motion, there was insufficient evidence to corroborate the accomplice’s testimony so the case was dismissed.Defendant was convicted of murder and related charges, but the trial court granted defendant’s new trial motion after finding there was insufficient evidence to corroborate the testimony of the accomplice. The trial court’s ruling constituted an acquittal but because it occurred after the jury’s verdict, the order was appealable. Double jeopardy does not bar appellate review of the dismissal order or the new trial order. However, there was no evidence corroborating the accomplice’s testimony implicating defendant in the crimes. The prosecution failed to prove its case, and defendant cannot be retried.id: 23871
Double jeopardy barred retrial where the jury was discharged before delivering a verdict and trial counsel then rendered IAC by failing to plead once in jeopardy.Double jeopardy bars a retrial on a substantive offense when jurors reached a verdict on the substantive offense but deadlocked as to an enhancement. The trial court should have taken a verdict on the substantive offense and declared a mistrial as to the enhancement only. Discharging the jury without the verdict was tantamount to an acquittal. Trial counsel thereafter rendered ineffective assistance by failing to advise defendant to plead once in jeopardy. id: 23218
Stone’s partial acquittal rule continues to apply to California after Blueford.In Stone v. Superior Court (1982) 31 Cal.3d 503, the California Supreme Court held that where a jury is deadlocked as to a lesser included offense, the trial court must offer it a chance to acquit on the greater offense and if the court does not do so, double jeopardy precludes retrial on the greater offense. In Blueford v. Arkansas (2012) 566 U.S. ___, the U.S. Supreme Court recently ruled the double jeopardy clause of the Fifth Amendment does not mandate that procedure. However, the California Constitution provides an independent source of double jeopardy protection and Stone continues to apply in this state until the California Supreme Court holds otherwise.id: 23335
The trial court erred in delaying the swearing in of jurors to accommodate the prosecution’s witnesses, but there was no double jeopardy violation in recharging the case after dismissal and the error was harmless.After the jury was selected, the trial court delayed swearing in the jurors, pending resolution of problems with certain prosecution witnesses. When the problems could not be resolved, the trial court granted the prosecution’s motion to dismiss for lack of evidence. The defense objected to the refiled charges. There was no double jeopardy violation because jeopardy does not attach until the jury is actually sworn. For the same reason there was no due process denial of the right to a particular jury. While the prosecutor improperly announced “ready” before starting voir dire, this did not amount to outrageous government conduct. The trial court abused its discretion by delaying the swearing in for reasons unrelated to jury selection, but the error was harmless.id: 23078
Even though the trial court erred by dismissing the charges for insufficient evidence under section 1385, retrial was barred by double jeopardy principles.Defendants were convicted of conspiracy to obtain prescription drugs fraudulently on behalf of a celebrity. One defendant was the celebrity's psychiatrist/friend and the other was a lawyer/friend. The trial court granted a new trial finding insufficient evidence to support the lawyer's convictions. However, the evidence supported the convictions as the jury could well have found the defendants were actively involved in the unlawful practice of securing illegal prescriptions. But a new trial for the lawyer/defendant was forbidden by double jeopardy because the trial court's ruling was based on insufficient evidence. The court never ruled on the new trial motion for the other defendant because she was the lone surviving co-conspirator, so her retrial was not prohibited.id: 22932
Increased restitution at second trial after defendant successfully appealed the conviction at his first trial violated the double jeopardy prohibition.Defendant was convicted of second degree murder but the conviction was reversed on appeal. At the first trial he was ordered to pay restitution in the amount of $3,400. Following a conviction at the retrial, he was ordered to pay $10,000 in restitution. This violated his constitutional right not be subjected to a greater punishment after having successfully appealed his first conviction. id: 22817
Double jeopardy prohibited the true finding on the multiple victim allegation after the second trial where the court refused to take the not true finding after the first trial.Defendant was charged with sex crimes against two victims along with the multiple victim one strike law allegation. The jury convicted defendant of the offenses regarding one of the victims but could not reach a verdict on the counts involving the second victim. The jury also found the multiple victim allegation to be true but this was due to a legal mistake and the court thereafter refused to accept the not true funding. He was then retried on the remaining counts and convicted and the jury found the multiple victim allegation to be true. Even though there was only one victim in the second trial, the jury could address the multiple victim allegation. However, double jeopardy prevented the true finding where the court refused to accept the not true finding at the first trial.id: 22261
Double jeopardy barred retrial of sex offenses which occurred during the same time period as the offenses for which the jury acquitted defendant.Defendant was charged with various sex offenses but acquitted of certain counts and convicted of a lesser included offense as to another. Double jeopardy barred retrial of these offenses because, in the case of one victim, the jury acquitted defendant of all offenses alleged to have been committed in the five month interval and the prosecutor failed to show that one of the acquittals pertained to the offense the prosecutor sought to retry, and that offense was allegedly committed in the same five month interval. In the case of another victim, the jury acquitted defendant of continuous sexual abuse of a minor based on the same conduct and during the same 22 month interval alleged in four counts the court allowed the prosecutor to retry. id: 21796
Supreme Court says acquittal may raise collateral estoppel bar to retrial on mistried counts. Defendant was charged with securities and wire fraud and insider trading. The jury acquitted him of the fraud counts but was unable to reach a verdict on the insider trading counts. Defendant argued that the jury’s acquittal of the fraud counts necessarily represented a finding that he did not possess insider information and therefore collaterally estopped the government from retrying him on the insider trading counts. The court of appeals rejected this claim, in part because the jury’s failure to reach a verdict on the insider trading counts showed that its acquittal on the fraud counts did not rest on a finding that defendant did not possess insider information. Dividing 6-3, the Supreme Court, in a decision written by Justice Stevens, held that the apparent inconsistency between a jury’s verdict of acquittal on some counts and its failure to reach a verdict on other counts does mean the acquittals have no preclusive force under the Double Jeopardy Clause. The Court explained that a failure to reach a verdict on some counts is a “nonevent” that plays no role in determining the collateral estoppel effect of an acquittal on other counts. The Court remanded to allow the court of appeals to determine whether the acquittals barred defendant’s retrial on the mistried counts. Justices Scalia and Alito wrote dissents.id: 21425
Double jeopardy barred retrial of defendant's CYA extension proceeding under section 1800 after the commitment order was reversed for insufficient evidence. Defendant's Youth Authority commitment was extended pursuant to Welfare and Institutions Code section 1800. However, the order was reversed on appeal due to insufficient evidence. Section 1803 states that upon reversal of an order the defendant may be discharged. Section 1801.5 provides that defendants in these actions are entitled to all constitutional rights afforded to criminal defendants. Therefore, double jeopardy barred retrial in the present case.id: 19036
Dismissal of jury without defendant's consent after finding a juror failed to disclose a bias against the prosecutor was without legal necessity and double jeopardy principles prevented a retrial.During trial, the court became aware that a juror had failed to disclose her potential bias against the prosecution. After questioning the juror and finding she could not be fair, she was dismissed by the court. Because both alternates had been excused, and the parties were unwilling to proceed with a jury of less than 12, the court declared a mistrial. However, there was no legal necessity to discharge the jury and a retrial was barred by double jeopardy principles.id: 17483
Double jeopardy prevented prosecution for conspiracy to commit first degree murder where defendant was previously convicted of conspiracy to commit second degree murder and it was later determined there was no such crime.Defendant was convicted of conspiracy to commit second degree murder. Thereafter, the Supreme Court decided, in <i>People v. Cortez</i> (1998) 18 Cal.4th 1223, that there is no such crime. Since the jury convicted defendant of conspiracy to commit second degree murder, it impliedly acquitted him of conspiracy to commit first degree murder. Any effort to prosecute him for conspiracy to commit first degree murder would violate double jeopardy principles.id: 16358
The trial court erred in failing to give a specific acts unanimity instruction in addition to an instruction allowing a conviction if the jurors unanimously agreed defendant committed all of the lewd acts described by the victim.Defendant was charged with ten counts of lewd acts with a minor. The prosecution used identical generic statutory language to describe each of the ten counts (and their associated allegations of substantial sexual conduct.) The jury convicted defendant of the first count, hung on the second, and acquitted him on counts three through ten. However, the trial court erred by refusing defendant's request for a specific acts unanimity instruction as the evidence sufficiently differentiated from the types, locations and episodes of molestation. The instructional error was prejudicial under the Chapman standard. If, on retrial, defendant enters a plea of once in jeopardy, he will have the initial burden of going forward. He must make a nonfrivolous showing that he is charged with an offense for which he was previously placed in jeopardy. The prosecution will then have to establish that the new charges involve different offenses from the ones he was acquitted of committing.id: 18781
Evidence did not support the minor's extended CYA commitment where the state did not show he had difficultly in controlling his behavior, and double jeopardy barred retrial.Minor appealed from the judgment extending his CYA commitment under Welfare and Institutions Code section 1800 et seq., which allows for a two year extension. He correctly argued the evidence at trial was insufficient to prove the required element that he has serious difficulty controlling his dangerous behavior. The CYA staff psychologist failed to prepare a formal risk assessment evaluation, and his testimony that the minor posed a moderate risk of reoffense based upon a limited number of risk factors was insufficient to make the required showing. The minor was ordered discharged as double jeopardy applies to section 1801.5 trials and retrial was barred under section 1803 upon reversal of a commitment order for lack of proof.id: 18948
Following Apprendi double jeopardy protections preclude a retrial of a premeditation allegation after an appellate finding of insufficient evidence.In 1996, the court held in People v. Bright (1996) 12 Cal.4th 652, that an allegation prescribing greater punishment for an attempt to commit murder that was willful and premeditated (Penal Code section 664, subd.(a)) was a penalty provision to which double jeopardy protections do not apply. Several years later, in Apprendi v. New Jersey (2000) 530 U.S. 466, the court concluded that any fact other than a prior conviction that increases punishment beyond the statutory maximum is the functional equivalent of an element of a greater offense than the one covered by the jury's guilty verdict. In light of Apprendi and related cases, double jeopardy protections preclude retrial of the premeditation allegation after an appellate finding of evidentiary insufficiency.id: 18206
Counsel was incompetent in advising defendant to waive jury trial on the enhancement where the court had discharged the jury after the guilty verdict.The trial court discharged the jury after it returned a guilty verdict but before the issue of the prior convictions was tendered to it. Counsel was incompetent for advising defendant to waive a jury trial on the enhancement allegation, since <i>People v. Wojahn</i> (1984) 150 Cal.App.3d 1024, provides that in such situations double jeopardy prohibits the impanelling of a new jury, and absent the waiver of the court would have been compelled to dismiss the allegation.id: 11983
Civil penalty unrelated to monetary loss, imposed after criminal conviction, violated double jeopardy.Defendant was convicted of filing 65 false claims. The total loss to the government was $565. He was fined $5,000 and sentenced to two years in prison. Thereafter, the government sought civil penalties of $130,000 under the false claims statute, 18 U.S.C. section 287, which provides for a civil penalty of $2,000 per claim. In a unanimous decision written by Justice Blackmun, the Supreme Court held that the statutory penalty, as applied in this case, violated the Double Jeopardy clause. In rare cases such as this, where the offender has been convicted in criminal court and the civil penalty sought bears no rational relationship to the government's loss, the penalty constitutes a second punishment violative of the Double Jeopardy clause. The case was remanded to permit the government to prove its costs.id: 9817
Double jeopardy prevented the court from proceeding on the prior conviction allegation after having dismissed the jurors before obtaining a waiver of a jury trial on the issue.After the verdict was returned, the trial court dismissed the jury. Both counsel and the court agreed to have the hearing on the prior felony conviction (Penal Code section 6675.5, subdivision (b)) the following day. However, double jeopardy prevented the court from proceeding on the prior, having dismissed the jurors before obtaining defendant's waiver of trial on the issue.id: 12000
State may not seek the death penalty on retrial after the first jury imposed LWOP.The prosecution may not seek the death penalty on retrial after reversal of a conviction in which the defendant was sentenced to life imprisonment without possibility of parole.id: 12011
Double jeopardy bars retrial on the issue of the prior conviction where the prosecution forgets to offer proof on the charge.Where a defendant is charged with a prior felony conviction; the jury is impaneled and sworn; defendant does not waive jury trial on the issue; and no evidence is offered to prove the prior conviction; double jeopardy attaches and bars any retrial of the prior felony conviction.id: 11993
Because the suppression hearing and adjudication hearing were held concurrently, jeopardy attached the moment the first witness was sworn in.Because the suppression hearing and adjudication hearing pursuant to Welfare and Institutions Code section 602 were held concurrently, jeopardy attached at the moment officer Gonzalez was sworn as a witness. The court then sustained the motion to suppress evidence. The prohibition against double jeopardy precluded any future proceedings following the dismissal of the petition.id: 9816
Double jeopardy applies to a conviction of a lesser degree crime where the verdict failed to specify the degree of the murder.A defendant whose conviction has been deemed of a lesser degree crime by operation of Penal Code section 1157 (failure to specify the degree in the verdict) may invoke the protections of double jeopardy to the same extent as one whose similar conviction has followed an express finding of the lesser degree by the trier of fact.id: 11991
Supreme Court applies Double Jeopardy Clause to criminal contempt but also overrules Grady v. Corbin.Respondents had been tried for criminal contempt for violating court orders that prohibited them from engaging in conduct that was later the subject of criminal prosecutions. Respondent Dixon violated his conditions of release on a second degree murder charge by possessing cocaine with intent to distribute. Respondent Foster violated court orders by assaulting his estranged wife. In divided opinions in which all Justices ultimately concurred in the judgment, a majority of the court found generally that the Double Jeopardy Clause bars prosecution for an offense if the defendant has already been held in criminal content for commission of the offense. The Justices divided over the application of the same elements test set forth in <i>Blockburger v. U.S.,</i> 284 U.S. 299 (1932) but a majority agreed that respondent Dixon's drug prosecution was barred and that the simple assault count only was barred against respondent Foster. In a 5-4 split, the court overruled the same conduct test of <i>Grady v. Corbin,</i> 495 U.S. 508 (1990) finding it wholly inconsistent with Supreme Court precedent and with the clear common law understanding of double jeopardy.id: 12012
Court erred in increasing restitution fine on resentencing following a successful appeal.The trial court violated the state constitutional prohibition on double jeopardy by imposing a $5,000 restitution fine, when a fine of $1,000 was part of the sentence originally imposed for the voluntary manslaughter. The monetary portion of a sentence on remand from a successful appeal may not exceed the monetary portion of the sentence originally imposed, absent some express agreement by the defendant to the contrary.id: 11985
Supreme Court holds Montana tax on dangerous drugs was punishment violating double jeopardy.After petitioners were convicted of drug charges, the state of Montana filed a claim in petitioners' bankruptcy proceeding to collect a state tax on the possession and storage of dangerous drugs. The bankruptcy held that the assessment on harvested marijuana, a portion of which resulted in a tax eight times the product's market value, was invalid under the double jeopardy clause. In a 5-4 opinion written by Justice Stevens, the Supreme Court affirmed, relying on <i>U.S. v. Halper</i>, 490 U.S. 435 (1989). <i>Halper</i> held that a legislature's description of a statute as civil does not foreclose the possibility that it has a punitive character. In this case, the tax was conditioned on the commission of a crime and was exacted only after the taxpayer had been arrested for the precise conduct that gave rise to the tax obligation in the first place. The court noted that the state's interest in revenue could be equally well served by increasing the fine imposed upon conviction. Accordingly, the court held that the tax was actually a second punishment that was required to be imposed during the first prosecution or not at all. Chief Justice Rehnquist and Justices O'Connor, Scalia and Thomas dissented.id: 12015
Conviction of the lesser included offense of gross vehicular manslaughter without insisting on a verdict as to murder precluded retrial of murder.Gross vehicular manslaughter while intoxicated is a lesser offense necessarily included in murder. Because the prosecution did not insist that the jury be instructed that it could not return a verdict as to the lesser included offense unless and until it had acquitted defendant of murder, the jury was permitted to convict him of gross vehicular manslaughter while intoxicated without reaching a verdict as to murder. In these circumstances the conviction of the lesser included offense operated to bar retrial of the greater offense.id: 11982
Double jeopardy ban applies to juvenile proceedings including those involving section 707 petitions whether or not the alleged probation violation amounts to criminal conduct.While the minor was being investigated for a possible assault he admitted to officers that he AWOL'ed. The court found the assault allegations not to be true but the prosecution alleged an escape from the county juvenile facility based on the earlier statement. While it was unclear whether the escape was alleged as a criminal offense or a probation violation, the evidence which consisted of his statement to the officers did not support either since there was no evidence presented concerning where he AWOL'ed from or the circumstances under which it happened. Moreover, double jeopardy principles apply to juvenile delinquency proceedings, including Welfare and Institutions Code section 777 petitions, and since the evidence presented at the earlier section 602 hearing was to be the evidence supporting the section 777 amendment to the petition, the minor was placed in jeopardy.id: 11992
Increasing restitution fine following a reversal on appeal violates double jeopardy prohibition.When a defendant successfully appeals a criminal conviction, California's constitutional prohibition against double jeopardy precludes the imposition of more severe punishment or resentencing. This includes an increase in the statutorily mandated restitution fine.id: 15825
Court properly dismissed state court counts which involved the same acts - staged car accidents to which defendants pled guilty in a federal action.Defendants were charged with conspiracy to defraud insurance companies in a case involving eight staged car accidents. Six of the collisions also formed the basis for a federal indictment for conspiracy to commit mail fraud and substantive offenses of mail fraud. Defendants entered guilty pleas on certain federal counts. Under Penal Code section 656, the trial court properly dismissed the state counts charging conspiracy and insurance fraud which were based on the same "acts" to which the defendants pled guilty in federal court. However, the court erred in dismissing two counts which related to accidents not alleged in the federal indictment and in dismissing conspiracy counts against two defendants who were not convicted of conspiracy in the federal action.id: 16558
Penal Code section 654 barred prosecution of different offenses under an amended information where the original convictions were reversed for insufficient evidence and the new charges involved the identical conduct.Defendant was convicted of several counts of grand theft but the convictions were reversed for insufficient evidence. The prosecution then charged defendant with several counts of forgery and presenting a forged document based on the identical conduct. However, Penal Code section 654 barred prosecution under the amended information. The quote in the appellate opinion reversing the grand theft counts and remanding for "any further appropriate proceedings" was included inadvertently and did not permit the refiling of the new charges.id: 15695
Failure to prove the prior burglary was of a dwelling house rendered the evidence insufficient on the strike prior and retrial of the prior was barred on double jeopardy grounds.First degree burglary includes burglary of a dwelling house or trailer coach as well as an inhabited vessel or floating home. However, an inhabited vessel or floating home is not an inhabited dwelling house or building within the statutory definition of burglary as a serious felony under Penal Code section 1192.7. Proof that a prior burglary was in the first degree, without proof of the nature of the burglary does not establish a serious felony. The evidence was therefore insufficient to prove the prior burglary strike. Moreover, reversal of a true finding on a prior serious felony allegation due to insufficiency of the evidence precludes retrial of the allegation under double jeopardy principles.id: 9387
Updated 6/1/2024Double jeopardy did not preclude a retrial on the Watson murder charge where the jury found defendant guilty of gross vehicular manslaughter while intoxicated but not murder.Defendant was charged with murder under the Watson murder theory, and the gross vehicular manslaughter while intoxicated. The jury did not reach a verdict on the murder charge but convicted him of the manslaughter. Double jeopardy did not preclude retrial on the murder charge because gross vehicular manslaughter is not a lesser included offense of murder.id: 28295
Updated 6/1/2024The trial court’s earlier section 1385 dismissal order following two hung juries did not indicate an intent to dismiss for insufficient evidence and did not preclude a retrial.Defendant was charged with murder in 1992. After two hung juries, the trial court dismissed the case under Penal Code section 1385. The prosecution refiled the murder charge in 2022 after new DNA testing. Defendant moved to dismiss the case as the new charge violated double jeopardy. However, the section 1385 dismissal order did not clearly indicate an intent to dismiss for legally insufficient evidence that would preclude a retrial.id: 28271
Updated 3/6/2024The bar on successive prosecutions does not apply to the addition of new charges following a trial where the jury acquitted on some counts, convicted on others, and could not agree on the remainder.Defendant was tried for seven sex offenses allegedly committed against his adopted daughter when she was a child. He was acquitted of two and the jury could not reach a verdict as to the remaining four counts. The prosecutor moved to amend the information by adding eight new alternative charges based on the conduct underlying the four counts on which the jury hung. The amendment was not barred by Penal Code section 654(a)’s prohibition on successive prosecutions (or Kellett v. Superior Court (1966) 63 Cal.2d 822) where its application will not conserve public resources or protect defendant from harassment. Moreover, the facts don’t give rise to a presumption of vindictiveness because the charges are less serious, alternative charges that don’t increase defendant’s exposure.id: 26551
Updated 3/5/2024Six million dollars in civil fines did not violate double jeopardy where criminal plea did not involve the same offenses, and the fines were not excessive. Defendant leased two commercial properties in Los Angeles to medical marijuana dispensaries that violated the city’s zoning code. He was ordered to pay fines in excess of six million dollars. He argued the fines violated the double jeopardy clause because he had earlier been convicted of crimes based on the same offenses. However, the record did not show the criminal complaint involved the same offenses and there was no overlap in the dates in the criminal and civil complaints. Moreover, the fines were not excessive under the Eighth Amendment given the defendant’s culpability, the relationship between the harm and the penalty, similar penalties in other cases and defendant’s ability to pay. id: 26857
Updated 3/4/2024Henderson rule precluding longer sentences following an appeal did not apply where the original sentence was unauthorized even though the court could have imposed the same term in an authorized manner.The trial court imposed a 28-year term but erroneously stayed a consecutive 10 year term for the firearm use enhancement under Penal Code section 654. His unstayed aggregate term was reduced to 18 years, but was increased following an appeal from 18 to 28 years. Defendant argued that because the court could have imposed an 18 year term in an authorized manner at the original sentencing, remand was required to impose that term. However, under People v Serrato (1973) 9 Cal.3d 753, when a court pronounces an unauthorized sentence, it may impose a longer term on remand even if it could have imposed an authorized sentence that was the same length as the unauthorized term it opposed.id: 28165
Updated 2/24/2024The trial court properly granted the prosecution’s motion to strike the defendants’ once in jeopardy pleas where defendants failed to show the prosecutor intentionally elicited an improper statement by a testifying officer. The trial court declared a mistrial after a police officer testified to a fact that the prosecutor had be warned to avoid. Defendants thereafter entered pleas of once in jeopardy claiming the prosecutor had acted intentionally in goading defendants into the motion for a mistrial. However, defendants did not meet their burden of presenting evidence in support of an inference that the prosecutor intentionally elicited the improper comment.id: 26722
Updated 2/2/2024Penalty retrial following the erroneous discharge of a juror was not barred by double jeopardy.Defendant was convicted of special circumstance murder and sentenced to death. His death sentence was reversed on appeal (due to the improper discharge of a juror). He was given a second penalty trial where the jurors again delivered a death verdict. The penalty retrial was not barred by double jeopardy protections.id: 27885
Increased restitution on retrial after appellate reversal did not violate double jeopardy.The trial court originally imposed direct restitution in the amount of $11,749 to cover burial and funeral expenses. His conviction was reversed on appeal, and he was convicted again at a retrial. The court then imposed additional restitution of $5,000 to cover newly claimed losses for investigators hired by the victim’s family. The additional restitution did not violate double jeopardy because victim restitution does not constitute punishment.id: 26138
Kellett did not prohibit a separate murder prosecution after defendant had pled guilty as an accessory to the same murder. Defendant was convicted of two counts of murder in connection with a drug-fueled shooting spree along with her boyfriend. She initially pled guilty to being an accessory after the fact to the killings for disposing of the vehicle. The plea took place early in the investigation. She argued the murder conviction was barred by Penal Code section 654 under Kellett v. Superior Court (1966) 63 Cal. 2d 822, because the prior conviction and present prosecution involve the same murders. However, the same course of conduct did not play a significant part in both prosecutions, and therefore section 654 did not apply.id: 25879
Double jeopardy did not preclude a new jurisdictional hearing where the prosecution could attempt to prove the section 10851 offense was a felony. After the passage of Prop 47, a violation of Vehicle Code section 10851 can only be deemed a felony if it was based on nontheft driving, or if it was based on theft of a vehicle worth more than $950. The minor’s adjudication was reversed where there was no evidence from which the court could have inferred the minor and his friends intended only to temporarily deprive the owner of possession of the vehicle. Double jeopardy did not bar a new jurisdictional hearing where the prosecution can attempt to prove the minor intended to temporarily deprive the owner of possession of the vehicle or that the vehicle was worth more than $950.id: 25628
Defendant’s payment of a fine for the red light infraction did not prevent subsequent prosecution for the DUI under Kellett.Defendant moved to dismiss his drunk driving case under People v. Kellett (1966) 63 Cal.2d 822, arguing that his payment of a fine associated with a traffic citation issued during a traffic stop that resulted in his arrest for drunk driving barred subsequent prosecution for the drunk driving offense. However, the evidence required to prove the red light infraction was sufficiently distinct from that required to prove the charges in the drunk driving case so as to permit separate prosecutions.id: 25516
The trial court did not violate double jeopardy by vacating the unauthorized Prop 47 misdemeanor sentence and reinstating the felony burglary sentence. The trial court erroneously granted defendant’s Prop 47 petition to reduce his second degree burglary to a misdemeanor. The offense did not qualify under the new shoplifting provision because it involved an entry into a storage locker leased by an individual, and the locker was not a commercial establishment. Because the sentence was unauthorized, the trial court did not violate double jeopardy principles by vacating the misdemeanor and reinstating the felony sentence.id: 25439
Defendants convicted in federal court of harboring illegal aliens could be charged in state court with human trafficking. After a joint human trafficking investigation by the FBI and LA Police Department, defendants were charged in federal court with harboring illegal aliens, but pled guilty to misuse of visas. They were subsequently charged in state court with violating the anti-trafficking statute — Penal Code section 236.1. The trial court did not err by denying the motion to dismiss based on double jeopardy because the federal crimes to which the defendants pled guilty do not constitute the “same offense” as the subsequent state human trafficking charges.id: 25330
Inconsistent verdict by finding true the aggravated kidnapping circumstance but rejecting the lesser included simple kidnapping circumstance did not violate double jeopardy or require reversal.The trial court did not violate double jeopardy with the true finding on the aggravated kidnapping circumstance. The inconsistent verdicts did not require reversal, and the court was not required to direct the jury to reconsider the inconsistent verdict.id: 24600
The trial court did not violate defendant’s due process rights by allowing a fourth trial after three mistrials in which the juries deadlocked.Defendant argued the trial court abused its discretion when it failed to grant his motions to dismiss after three previous trials ended in hung juries. While double jeopardy principles don’t mandate a dismissal and bar a retrial when juries deadlock, defendant argued his due process rights were violated by the fundamental unfairness of a fourth trial relying on virtually the same evidence. However, the trial court did not violate defendant’s due process rights by denying his motion to dismiss.id: 24468
Paying a civil fine to the federal government for discharging a laser at an airplane did not prevent criminal charges in state court.Defendant was charged with discharging a laser at an occupied aircraft under Penal Code section 247.5. The magistrate dismissed the charge on double jeopardy grounds based on defendant’s earlier payment of a civil penalty to the federal government. However, double jeopardy did not require dismissal where defendant failed to establish the civil penalty imposed by the Federal Aviation Administration was a criminal punishment.id: 24369
Supreme Court finds no double jeopardy bar to death sentence after jury deadlocks at penalty phase of prior trial.At the penalty phase of defendant's first capital murder trial, the jury was unable to agree on whether to impose the death penalty. As a result, state law required the trial judge to impose a life sentence. Defendant appealed, and his conviction was reversed. At the retrial, he was again convicted, and this time the jury imposed the death penalty over defendant's objection that the life sentence at the first trial constituted an "acquittal" of the death penalty. The state courts rejected defendant's double jeopardy claim, and the Supreme Court affirmed in a 5-4 decision. The court held that neither the hung jury nor the trial court's imposition of a life sentence at the first trial constituted an acquittal that barred the imposition of the death penalty after the retrial.id: 20158
The record did not show the court prematurely declared a mistrial during the penalty phase. The trial court did not err in failing to make a reasonable inquiry into whether there existed a legal necessity to declare a mistrial after the jury reached an impasse during penalty phase deliberations. The duration of the deliberations was not long for a capital case with complex issues (over 7 hours) but there was no indication in response to the court's questioning that there was a prospect of achieving a unanimous verdict.id: 19835
Defendant’s 1985 conviction for receiving the victim’s stolen car did not preclude a later murder charge where the prosecution originally lacked evidence to sustain a murder charge but later found evidence to support the charge. Under the “unavailable evidence” exception to the rule regarding multiple prosecutions in Penal Code section 654, in cases where the prosecution has probable cause to charge the defendant with murder and a related crime but proceeds only on the related crime, it is not barred from bringing the murder charge upon obtaining additional evidence if, at the time it decided to proceed, the prosecution lacked evidence supporting the objectively reasonable belief that it could secure a murder conviction on the evidence then available, despite the exercise of due diligence in the investigation of the crimes. The trial court properly found that the newly developed evidence was not the result of a prior failure of due diligence, and that it provided concrete support for the murder charge. id: 24050
Double jeopardy would not preclude a retrial if, on remand, the trial court were to grant the new trial motion on grounds other than sufficiency of the evidence.Defendants were convicted of conspiracy but the trial court granted a new trial and dismissed the charges due to insufficient evidence to establish defendant intended to commit a crime. The Court of Appeal reversed and reinstated the verdict and ordered the trial court to consider the remaining issues for a new trial, but found double jeopardy prevented a retrial. However, double jeopardy does not preclude a retrial, and if the trial court grants a new trial on any of the remaining claims, defendants may be retried.id: 23860
Trial court’s dismissal on double jeopardy principles was erroneous because that ruling can only be made after a once in jeopardy plea. The trial court did not err in granting defendant’s motion for new trial on the witness dissuasion count even though the court seemed to use two different standards of review when addressing the issue. The court’s use of the term “insufficient evidence” did not establish that the court used the wrong standard. However, the court erred by granting the motion under “a jeopardy theory” because double jeopardy applies only after a defendant has pled once in jeopardy. There was sufficient evidence to support a conviction so the error was not harmless. id: 23188
Defendant was not twice placed in jeopardy with respect to the multiple victim “one strike” allegation where the jury indicated it was deadlocked on all charges involving the second victim. Convictions of specified sex offenses against more than one victim are an essential predicate to the jury’s authority to adjudicate the “One Strike” multiple victim allegation. Once the trial court determined that the first jury in this case had hopelessly deadlocked as to all of the charged offenses involving the second victim, it had no legal authority to adjudicate the multiple victim allegation. Therefore, any finding the jury purported to render as to the multiple victim allegation had no double jeopardy consequences, and defendant’s retrial on the allegation was not unconstitutional.id: 23149
Amended SVP act providing for an indeterminate commitment did not violate double jeopardy or equal protection provisions.The SVP act, amended by Prop 83 to allow for an indefinite commitment did not violate double jeopardy principles as the commitment furthered a nonpunitive governmental objective. Moreover, because SVP’s are clinically distinct from MDO’s and NGI’s, the indeterminate term did not violate equal protection principles.id: 23100
The double jeopardy statute did not prohibit a capital murder charge despite defendant’s convictions in federal court for interstate murder for hire. Defendant argued that Penal Code section 656 (which provides protection against double jeopardy) was violated where the state prosecuted him for murder after a conviction in federal court of interstate murder for hire. However, because the lying-in-wait special circumstance required proof of conduct that was not necessary for proof of the prior federal murder-for-hire charge, the prior conviction provided no defense under section 656 to the state murder charges.id: 23017
Double jeopardy did not prevent a retrial where defense counsel impliedly consented to the mistrial after being informed before opening statements that several jurors could not serve.Defense counsel participated in discussions which led the trial court to believe that counsel had consented to the procedure which ultimately resulted in the dismissal of the jury prior to opening statements. When defendant subsequently moved for a dismissal, asserting double jeopardy, the trial court properly found that defense counsel’s conduct constituted implied consent and denied the motion. id: 22720
Increased sentence after retrial was not vindictive prosecution and did not violate due process or double jeopardy where it was based on enhancements on which the jury hung at the first trial.Defendant’s attempted murder conviction was reversed for instructional error. At the retrial, the prosecution pursued firearm enhancements on which there had been a hung jury and a mistrial. They were never dismissed. At the second trial, the prosecution pursued the enhancements which were found true, and resulted in a greater sentence at the retrial. The retrial on the mistried enhancements was not vindictive prosecution as there was no increase in changes for the second trial. Moreover, the increased aggregate sentence did not violate due process or double jeopardy under the state constitution as the rule prohibiting an increased sentence at a retrial does not apply where it was due to retrial of a count on which the jury hung. id: 22225
Imposition of a greater sentence on retrial following a successful appeal was not unconstitutional where defendant was convicted of an additional count at the retrial.Defendant was convicted of all charged counts except for count three, as the jury was unable to reach a verdict on that count. He successfully appealed his convictions and was granted a new trial. The prosecutor recharged all counts, including count three. After the jury convicted defendant of all counts, the court imposed the same sentence it had previously imposed, but added eight months for count three. His increased sentence following the successful appeal did not violate the due process and double jeopardy clauses of the state constitution.id: 22037
Double jeopardy did not prevent defendant’s state court prosecution for failing to register as a sex offender where he had been prosecuted in federal court for failing to register after traveling in interstate commerce. Defendant argued that, under California’s double jeopardy principles, his prosecution in federal court for failing to register as a sex offender after traveling in interstate commerce barred subsequent prosecution in state court for failing to register his new address as a sex offender before he moved out of state. However, there was no double jeopardy violation because the state and federal prosecutions punished separate acts of failing to register, and because the conduct at issue in the state court action occurred before defendant traveled in interstate commerce and before the effective date of the federal statute.id: 22539
The trial court did not err when correcting the sentence by imposing a higher term where the original sentence was unauthorized. The trial court corrected a sentencing error - increasing defendant’s term in state prison from an unauthorized four years to an authorized six years. Defendant argued the trial court was prohibited from resentencing him to a term greater than that originally imposed. However, neither double jeopardy nor Penal Code section 1170(d) prohibited the increased sentence where the original term was unauthorized. id: 22456
The sham trial which took place without the prosecutor did not trigger double jeopardy protection.The prosecution asked to trail the case within the 10 day statutory period after indicating it was not prepared to proceed but the motion was denied. The prosecution thereafter refused to participate in the trial. After defense counsel’s opening statement, the court granted defendant’s motion to dismiss the charges for lack of evidence. Because the defendant faced only a sham trial, double jeopardy did not prevent the prosecution’s appeal and retrial.id: 21841
The trial court had jurisdiction to substitute lesser included offenses after it granted defendant’s motion for acquittal on the greater offenses. During trial in a multiple count case involving drunk driving and fleeing from police, the trial court granted defendant’s motion to dismiss the two DUI felonies for insufficient evidence. Contrary to defendant’s claim, the court thereafter did not exceed its jurisdiction by substituting two lesser included misdemeanor charges.id: 21365
Where the trial court sitting as the “13th juror” found the evidence did not support certain allegations found true by the jury, double jeopardy did not prevent retrial of those allegations.In a companion case, People v. Anderson (S152695) ____ Cal.4th ____, the court held retrial of a penalty allegation on which the jury has deadlocked is not barred by double jeopardy principles. In this case, the jury found the penalty allegations and enhancements to be true, but the trial court, sitting as the 13th juror” in a new trial motion concluded that some of the allegations had not been proven beyond a reasonable doubt. A second trial on those allegations would not violate double jeopardy and Apprendi v. New Jersey (2000) 543 U.S. 466 did not require a different result.id: 21186
Double jeopardy does not prohibit retrial when a jury has convicted the defendant of an offense but deadlocked on the attached penalty allegation.Retrial of a penalty allegation on which a jury has deadlocked is not barred by constitutional double jeopardy principles or by Penal Code section 1023. Moreover, retrial may be limited to the deadlocked allegation alone and need not encompass the underlying offense.id: 21185
Defendant who concealed the domestic violence victim during part of the trial and obtained a partial acquittal was estopped from challenging the order vacating the acquittal when he produced the witness for his own purposes thereafter.Defendant concealed the victim-witness and obtained a partial acquittal. When he produced the same victim-witness for his own purposes on other counts, the trial court vacated the partial acquittal. Under these circumstances, double jeopardy did not prevent the court’s actions as defendant was estopped from making that claim because of his own wrongdoing.id: 20455
There was no termination of jeopardy on the one-strike sentencing charge where the jury convicted on the underlying charge but deadlocked on the one-strike allegation. Defendant was convicted of committing a lewd act in count one, but the jury deadlocked on the one-strike allegation under Penal Code section 667.61, subd.(e)(1). A subsequent trial on the charge adding a second one strike allegation was not prohibited by double jeopardy. There was no termination of jeopardy on the one strike charge when the jury deadlocked and the trial court declared a mistrial. Hence retrial of that charge did not violate double jeopardy.id: 19539
Supreme Court finds no double jeopardy in prosecution for drugs included as relevant conduct in earlier sentence.Defendant plead guilty to attempted possession of 1,000 pounds of marijuana. At sentencing, the district court found that 1,091 kilograms of cocaine were relevant conduct under USSG 1B1.3 and sentenced defendant for the cocaine as well as the marijuana. Several months later, defendant was indicted for the cocaine offenses, and he moved to dismiss on double jeopardy grounds. In an 8-1 opinion written by Justice O'Connor, the Supreme Court found no double jeopardy, ruling that the fact that conduct is considered as relevant conduct does not constitute punishment for that conduct. Justices Scalia and Thomas concurred, and Justice Stevens dissented. The majority noted that USSG 5G1.3(b) lessens the impact of its ruling by requiring a concurrent sentence if the defendant is serving an undischarged term of imprisonment resulting from offenses that have been fully taken into account as relevant conduct. This reduces the possibility that two separate prosecutions will grossly increase a defendant's sentence.id: 12014
Supreme Court reverses 9th Circuit on Washington's Sexually Violent Predator statute.In <i>Young v. Weston</i>, 192 F.3d 870 (9th Cir. 1999), the Ninth Circuit ordered the district court to hold a hearing on the allegations of a habeas corpus petitioner who was subjected to indefinite civil commitment under Washington's Sexually Violent Predator statute. The Supreme Court granted certiorari and reversed, holding that the Washington Supreme Court's prior determination that the statute was civil rather than criminal precluded the inmate's claim that "as applied" to his conditions of confinement, the statute violated double jeopardy and the ex post facto clause. Writing for the majority, Justice O'Connor noted that the Washington act was the pattern for the Kansas act upheld in <i>Kansas v. Hendricks</i>, 521 U.S. 346 (1997). The majority held that an "as applied" analysis could never conclusively resolve whether the particular scheme was punitive and would thereby prevent a final determination of the scheme's validity under the double jeopardy and ex post fact clauses. "Permitting respondents as-applied" challenge would invite an end run around the Washington Supreme Court's decision that the Act is civil in circumstances where a direct attack on the decision is not before this court." Justices Scalia, Souter and Thomas concurred separately. Justice Stevens dissented.id: 15135
Trial court had authority to reinstate the dismissed attempted murder conviction after the subsequent murder conviction was reversed, and the reinstatement did not violate double jeopardy.Defendant was convicted of attempted murder, but after the victim died he was tried for murder and convicted. His murder conviction was reversed on appeal and the prosecution was unable to proceed with a retrial. The trial court then reinstated his earlier attempted murder conviction. Contrary to defendant's claim, the trial court had the authority to reinstate the previously dismissed conviction. Moreover, the reinstatement of the attempted murder charge did not place defendant in double jeopardy.id: 20061
The double jeopardy clause did not prohibit multiple convictions for aggravated assault resulting in serious injury and battery with serious bodily injury.Defendant argued the double jeopardy clause of the state and federal constitutions required that his convictions of battery with serious injury be vacated because that offense is a lesser included offense of assault with a deadly weapon coupled with a great bodily injury enhancement. However, the multiple punishment proscription of the double jeopardy clause does not prohibit multiple convictions for the offenses of aggravated assault resulting in great bodily injury and battery with serious bodily injury.id: 19290
Double jeopardy did not bar retrial on conspiracy to commit murder where defendant was acquitted of first degree murder.Defendant argued that double jeopardy precluded a retrial of the conspiracy to murder charge since the jury's not guilty verdict of first degree murder at the first trial rejected the mental state of premeditation and deliberation common to first degree murder and conspiracy to murder alike. However, inherently inconsistent verdicts are allowed to stand, and no double jeopardy bar exists to defendant's again standing trial on the charge of conspiracy to murder.id: 19265
Neither battery nor assault are lesser included offenses of elder abuse so double jeopardy did not preclude retrial on the aggravated assault charges following the acquittal for elder abuse.Defendant was acquitted of elder abuse under Penal Code section
368(b)(1). The verdicts also purported to acquit him of lesser offenses to that count including simple battery and simple assault. The jury was unable to reach a verdict on a separate charge of aggravated battery and assault. On retrial defendant was convicted of these offenses. Defendant argued the acquittals for the elder abuse and the included offenses of battery and assault barred retrial because they were elements of the remaining charges. However, neither assault nor battery are included offenses of elder abuse which may be committed by inflicting mental suffering. Double jeopardy principles did not bar retrial for the assault and battery and the acquittals did not have any preclusive effect on the issues on retrial.id: 19096
Appellate court's writ ruling that reinstatement of dismissed special circumstance allegation did not violate double jeopardy was law-of-the-case.The Court of Appeal held, in a pretrial writ procedure, that the trial court erred in dismissing the lying-in-wait special circumstance. Defendant had argued that since he had already pled guilty to the remaining charges, any further prosecution involving the special circumstance allegation would violate double jeopardy principles. The appellate court's ruling that there was no double jeopardy bar to reinstatement and prosecution of the special circumstance allegation became law-of-the-case and could not be raised again on appeal. id: 18992
Retrial on deadlocked counts of aggravated battery and assault following acquittal of elder abuse was not prohibited by double jeopardy or collateral estoppel principles.The jury acquitted defendant of the charged offense of elder abuse. It also returned verdicts purposing to acquit him of lesser offenses of that count - simple battery and simple assault. The jury was unable to reach a verdict on the remaining counts of aggravated battery and assault. However, neither battery nor assault are lesser offenses included in elder abuse which can be committed by inflicting mental suffering. Because the case involves a continuing rather than a successive prosecution, neither constitutional nor statutory protections against double jeopardy prevent retrial. Moreover, defendant did not show the acquittals necessarily resolved the ultimate issues for collateral estoppel purposes.id: 18963
The court was not required to accept partial verdicts before discharging a juror.Defendant argued that by discharging valid verdicts after a juror was dismissed, the court deprived him of due process and subjected him to double jeopardy. However, while the court could have accepted the partial verdicts before discharging the juror and seating an alternate, it was not required to do so. Defendant was entitled to a unanimous verdict from 12 deliberating jurors and that is what he received. Moreover, the fact that the new jury deliberated for only a short period of time did not show the jurors did not begin deliberations anew after the juror was dismissed.id: 18817
Defendant was procedurally barred from claiming double jeopardy or improper multiple punishment following his successful motion in LA to sever the San Diego charges.Having moved in Los Angeles County for dismissal of the charges involving crimes committed in San Diego, notwithstanding the prosecutor's representation that the motion, if granted, would effect a severance of the charges against defendant and a refiling in the respective counties in which the crimes occurred, defendant was procedurally barred from complaining that the severance led to a second murder prosecution. Moreover, there was no double jeopardy violation where defendant was placed in jeopardy in Los Angeles for the murders of three victims, and was not charged with or convicted of any crimes relating to the murder alleged in the San Diego case. Finally, because defendant was neither acquitted nor convicted of the murder of the San Diego victim in LA county, section 654 did not bar San Diego from charging defendant with those crimes.id: 18734
The failure to prosecute the Orange County and San Bernardino homicides in a single proceeding did not violate due process or double jeopardy provisions.Defendants were prosecuted for one murder in Orange County which resulted in a life without possibility of parole sentence, and for a second murder in San Bernardino which resulted in a death sentence. Defendant argued the prosecutors in both cases argued the two murders were a product of a single plan to obtain money, and therefore the separate trials violated Penal Code section 954 and his right to due process. However, the murder of separate victims on separate days in separate counties is not a single course of conduct requiring a single prosecution. The successive prosecutions in the two counties did not violate due process or double jeopardy provisions.id: 18051
Double jeopardy does not bar retrial of capital case after reversal despite the fact that the appeal is automatic.Defendant argued that because his prior appeal, upon which the court reversed his conviction because of juror misconduct, was taken automatically under Penal Code section 1239, subd.(b), the guarantees against double jeopardy precluded his retrial. He claimed a criminal appellant ordinarily waives double jeopardy by taking an appeal, but no such waiver is found where the appeal is taken automatically by operation of law. However, the retrial does not violate double jeopardy principles despite the automatic appeal.id: 17941
Strike prior may be retried after reversal for insufficient evidence.Retrial of a strike allegation is permissible where a trier of fact finds the allegation to be true, but an appellate court reverses that finding for insufficient evidence. The court previously held such retrial does not violate double jeopardy principles. In the present case, the court held retrial is not barred by the constitutional requirement of fundamental fairness, equitable principles of res judicata and law of the case, or relevant statutory provisions.id: 17728
Penal Code section 656 did not bar prosecution for kidnapping and murder despite defendant's earlier federal Travel Act convictions.Defendants argued their prosecution in California for kidnapping for ransom and murder were barred by Penal Code section 656 because those crimes involved the "same acts" as the federal offense for which they were convicted. However, the "acts" described in the state murder and kidnapping statutes were not the same acts complained of in the federal Travel Act prosecution. (18 U.S.C.id: 17554
Jeopardy did not attach following a discharge of the jury where the jurors did not notify the court there was an acquittal as to the greater charge, and in light of the instructions given, no further questioning was necessary.The jury was discharged after they reported a deadlock as to two counts. Prior to the discharge the court provided verdict forms on the greater and lesser included offenses, and instructed the jurors to return a verdict of acquittal on the greater offense of first degree murder before deciding whether defendant was guilty of a lesser included offense. Contrary to defendant's claim the failure to return any verdict form did not show an acquittal as to the greater offense. The court was not required to further question the jury on this matter. Moreover, jeopardy did not attach during the second proceedings where the new judge bifurcated the case and first asked the jurors to make findings on the effect of the earlier mistrial for purposes of determining the double jeopardy issue regarding the greater offenses. Impaneling the new jury did not cut off the prosecutor's right to appeal the jeopardy ruling. Since it was defendant who sought dismissal, he waived the argument that jeopardy attached as a result of the second proceedings.id: 17386
State double jeopardy clause bars retrial following intentional prosecutorial misconduct only where it was committed for the purpose of causing a mistrial, and it deprived defendant of a reasonable chance for an acquittal.After an earlier joint trial on first degree murder indictments ended in a mistrial as a result of the prosecutor's intentional misconduct, defendants were retried and convicted. The Court of Appeal reversed the convictions holding the retrial was barred by double jeopardy principles. However, retrial is barred under the federal double jeopardy clause only if the prosecutor committed the misconduct with the intent to provoke a mistrial. The prosecutor in the present case had no such intent. Neither was retrial barred under the state double jeopardy clause which requires not only a prosecutor's belief that an acquittal was likely at the time of the intentional misconduct, but also that a court determine from an objective prospective that the misconduct actually deprived defendant of the reasonable prospect of an acquittal.id: 17349
Following the reversal of a felony count on appeal, the aggregate term need not be decreased.On remand following the reversal of a felony count for which a subordinate term had been imposed, neither lack of jurisdiction nor res judicata bars the trial court from reconsidering its prior sentencing choices made under the normal rules of felony sentencing, including imposing a higher term for the principal, or base, term, so long as the total prison term for all affirmed counts does not exceed the original aggregate sentence. Moreover, the trial court did not err by supporting its sentencing choice with aggravating factors it rejected the first time. Finally there was no error in failing to consider letters in mitigation, which were filed late, where the letters were not properly mitigating. Their untimely submission did not constitute the ineffective assistance of counsel.id: 17235
Double jeopardy does not bar retrial following the improper discharge of a juror.The improper discharge of a single seated juror during a criminal trial warrants a reversal of the judgment of conviction. However, double jeopardy principles do not bar retrial of the defendant . In rejecting the claim, the court adhered to the general rule that double jeopardy guarantee imposes no limitation on the power to retry a defendant who has succeeded in having his conviction set aside on appeal on grounds other than insufficiency of evidence.id: 17249
The factual findings made in a habeas corpus proceeding have no collateral estoppel effect limiting a subsequent retrial of the criminal charges.The factual findings made in a habeas corpus proceeding have no collateral estoppel effect limiting a subsequent retrial of the criminal charges. (584)(598)(940) Defendant was convicted of murder and attempted murder on the theory that he was the shooter. His conviction was affirmed on appeal, but he later presented newly discovered evidence in a petition for writ of habeas corpus establishing that he was not the shooter. That petition was filed in the trial court. The court then vacated the convictions and the prosecution dismissed the charges pursuant to Penal Code section 1385. The trial court thereafter erred in ruling that principles of collateral estoppel barred retrial of defendant on the theory that he was the shooter. The factual findings made in an order in a habeas corpus proceeding have no collateral estoppel effect limiting a subsequent retrial of the criminal charges. Moreover, principles of double jeopardy did not prevent the prosecution from retrying the defendant on any theory of guilt.id: 17142
Double jeopardy did not protect defendant against California prosecution for kidnapping his own children where he detained them from 1989 to 1995 in Yugoslavia and was prosecuted in that country for the offense in 1991.Defendant's ex-wife was granted custody of their two children following the divorce. One day in 1989, he took the children and fled to his home country of Yugoslavia. In 1991 he was prosecuted by Serbian authorities for taking and detaining the children from the lawful custody of their mother. The children were thereafter concealed in Serbia until 1995. Defendant was thereafter charged in California with taking and detaining the children under Penal Code section 278.5. The trial court concluded it lacked jurisdiction to proceed and dismissed the case for "once in jeopardy." However, defendant's original kidnapping offense was completed when he was convicted in Serbia in 1991. Defendant's subsequent detention of the children from 1992 through 1995 was not embraced in the original Serbian prosecution. The trial court erred by dismissing the information to the extent that it charged post-1992 conduct.id: 16631
Double jeopardy does not prohibit a new section 602 petition where the minor's previous dispositional order was modified based on the same criminal conduct.Defendant argued that double jeopardy principles barred the prosecutor from pursuing a new Welfare and Institutions Code section 602 petition because the probation department's motion to modify the previous dispositional order was based on the same criminal conduct and placed him twice in jeopardy for that conduct. However, whatever distinctions may exist between adult and juvenile probation revocation proceedings, the reasons double jeopardy protections are inapplicable to adult probation revocation proceedings pertain also to juvenile probation revocation proceedings.id: 16599
Double jeopardy did not bar the trial court from changing its ruling on the applicability of a sentence enhancement.Following defendant's convictions on various felony charges, the trial court considered the applicability of a Penal Code section 667, subdivision (a) sentence enhancement. The court agreed with the prosecutor that defendant had a prior serious felony conviction, but it found section 667, former subdivision (a) did not apply because, in its opinion, none of defendant's present convictions constituted a serious felony. The trial court later reconsidered and reversed its initial decision. The Court of Appeal found the reversal constituted double jeopardy. However, state and federal prohibitions against double jeopardy do not apply to noncapital sentencing determinations. Moreover, imposition of the sentence enhancement constituted a noncapital sentencing determination, not a conviction of a new crime.id: 15822
Double jeopardy did not prevent a retrial of a defendant who challenged the reversal of his conviction and death sentence.Defendant argued that because the appeal from his initial conviction and death sentence was taken automatically and over his opposition, and because he filed a petition for rehearing challenging the reversal of his conviction and death sentence, double jeopardy principles barred the prosecution from retrying him. However, defendant was not placed in jeopardy when he originally entered his guilty plea because the plea was invalid.id: 15823
Further proceedings against the minor were justified by legal necessity after the juvenile court judge disqualified himself and declared a mistrial.The juvenile court commenced a jurisdictional hearing after alleging the minor committed certain sex offenses. After a continuance, the juvenile court judge disqualified himself due to concern about his impartiality and declared a mistrial. The minor then moved to dismiss the petition on the ground that further proceedings violated the prohibition against double jeopardy. However, the juvenile judge's self-disqualification compelled the mistrial and thus, as a matter of legal necessity prevented the case from proceeding.id: 15824
Increasing the base term following a successful appeal is not improper as long as the aggregate term does not exceed the initial sentence.A criminal defendant who has successfully appealed from a prior conviction may, upon retrial, be sentenced to a greater term for the offense, provided that his aggregate term which includes time for enhancements, does not exceed that imposed at his initial sentencing.id: 15826
State may retry defendant on an uncharged lesser related offense following acquittal on the greater charge and a hung jury on the lesser charge where defendant requested an instruction on the lesser charge.The state may retry a defendant on an uncharged lesser related offense following an acquittal of the charged offense and a deadlocked jury on the lesser offense where the defendant requested that the jury be instructed on the lesser offense.id: 15827
The constitutional prohibition against double jeopardy does not bar retrial after a dismissal under section 1385 absent clear evidence the court intended to exercise this power.Although the trial court had the power to dismiss for insufficient evidence as a matter of law after submission to the jury, such dismissal will not be construed as an acquittal for double jeopardy purposes absent clear evidence the court intended to exercise this power. Because the record did not clearly indicate such an intent, no double jeopardy bar to retrial existed.id: 15828
In a noncapital case, the state and federal prohibitions against double jeopardy do not apply to a proceeding to determine the truth of a prior conviction allegation.Defendant was convicted of drug sales, and in a separate bifurcated proceeding, the court determined he had suffered a previous strike based on an earlier conviction of assault with a deadly weapon. The Court of Appeal reversed the trial court's true finding on the prior serious felony allegation, holding the evidence insufficient to establish that defendant acted personally. In addition the Court held that state and federal double jeopardy provisions barred retrial of the prior serious felony allegation. However, the state and federal double jeopardy protections do not apply to the trial of the prior conviction allegation in this case.id: 15205
A trial court's post-conviction dismissal for lack of evidence is appealable and retrial does not violate double jeopardy.A trial court's post-conviction dismissal of a jury's verdict based on insufficiency of evidence is an appealable order. That judgment may be entered on that underlying jury verdict without violating the state or federal prohibition against double jeopardy.id: 14980
Bargained-for dismissal of gun use allegation in 1980 robbery did not amount to an acquittal, and evidence of gun use was properly admitted at penalty phase in current case.The prosecution sought to admit at the penalty phase, evidence of defendant's 1980 robbery. The victim of that robbery had testified that defendant used a gun, but the plea bargain dismissed the gun use allegation. The bargained-for dismissal did not amount to an acquittal and the evidence could be considered in aggravation.id: 14981
Court-ordered victim restitution imposed for the first time at a resentencing following appeal is not punishment for double jeopardy purposes.In <i>People v Hanson</i> (2000) 23 Cal.4th 355, the California Supreme Court held that double jeopardy provisions of the state constitution prohibited a trial court from increasing a statutorily mandated restitution fine following retrial after appeal. The same result does not apply to direct restitution to victims of the crime. The court-ordered victim restitution imposed for the first time at a resentencing following appeal is not punishment and is therefore not constitutionally barred.id: 14982
Retrial on the prior assault conviction following a reversal for insufficient evidence was not barred by double jeopardy, res judicata or law of the case.In an earlier opinion the Court of Appeal determined the evidence was insufficient to support the trial court's finding that defendant had suffered a prior serious felony conviction for assault under Penal Code section 245, subd.(a)(1), which qualified as a strike under the three strikes law. The court reversed the sentence and remanded the matter for a retrial on the prior conviction allegation. The principles of res judicata, law of the case, and double jeopardy whether singularly or in combination, do not preclude a new trial on the issue of whether defendant personally used a dangerous or deadly weapon in committing the crime underlying his prior assault conviction.id: 14984
The non-forcible sex offenses were not lesser included offenses of the forcible offenses under the elements test and retrial of the forcible offenses was not barred by double jeopardy principles.The count 2 offense (unlawful intercourse with a minor under 16) is not a lesser included offense to the count 1 defense (forcible rape), and the counts 4 and 6 offenses (oral copulation with a minor under 16) are not lesser included offenses to the counts 3 and 5 offenses (forcible oral copulation.) This is so under the "elements" test because the forcible sex crimes do not require the perpetrator and victim to be within certain age limits. At the first trial the jury convicted defendant of the nonforcible offenses but was unable to reach a verdict as to the forcible sex offenses. Retrial on the forcible counts was not barred under double jeopardy principles because the conviction for the nonforcible offenses in the first trial were lesser included offenses under the accusatory pleading test. The accusatory pleading test is not concerned with double jeopardy.id: 14985
Double jeopardy did not bar a subsequent trial on priors where the jury was discharged without making specific findings on such allegations.The jury was sworn to try both the issue of defendant's substantive guilt and his alleged prior convictions. They were discharged after rendering a guilty verdict on the substantive offense but before the issue of the prior convictions was presented. A newly impaneled jury, or a judge if the jury is properly waived, may determine the validity of the priors.id: 11994
Double jeopardy did not bar appellant's prosecution in superior court for murder after he admitted allegations of robbery and assault on the victim in the juvenile court before the victim died.Appellant argued that because the acts that caused the victim's death were the same acts that formed the basis for the juvenile court adjudications as to the counts for robbery and assault of the victim, jeopardy attached when he admitted the robbery and assault in juvenile court, and he subsequently could not be prosecuted for murder when the victim died later. However, the constitutional protection against double jeopardy did not bar appellant's prosecution for murder in superior court.id: 11995
Double jeopardy did not bar defendant's receiving stolen property conviction at the second trial where the first robbery trial ended in a mistrial due to jury disagreement.Defendant was charged with robbery in his first trial but a mistrial was declared where the jury could not reach a verdict. Defendant argued that double jeopardy barred his conviction at the second trial for receiving stolen property because substantial evidence supporting the charge was not admitted at the first trial. However, when a defendant's first trial ends without a verdict due to jury disagreement, double jeopardy does not preclude the defendant from facing new or different charges at the second trial.id: 11996
Double jeopardy does not preclude retrial of a prior conviction allegation following Yurko error.Appellant's admission of his prior conviction for assault was set aside because of the trial court's failure to advise him of his constitutional rights and to obtain his waiver of those rights. However, the former jeopardy does not preclude retrial of the prior conviction. Appellant argued he could not be retried for the prior because the jury which determined his guilt on the new charges did not also determine the truth of the alleged prior conviction. There is nothing prejudicial involved in a limited new trial on the issue of the challenged prior conviction by a jury different from that which tried the issue of guilt on the primary offenses.id: 11997
Double jeopardy does not bar retrial on the quantity enhancement where defendant is convicted of possession for sale but the jury is unable to reach a verdict on the enhancement.Defendant was found guilty of possession of a controlled substance for sale but the jury was unable to reach a decision on the weight enhancement. He argued it was a violation of the double jeopardy clause to subject him to retrial on the weight enhancement. However, neither double jeopardy nor Penal Code section 1157 bar retrial of a large quantity enhancement where defendant is found guilty of possession for sale but the jury cannot reach a verdict on the enhancement.id: 11998
Double jeopardy exception applies where the prosecution is unable to proceed on the more serious charge at the outset because a fact necessary to sustain that charge had not yet occurred.Before the victim died, the prosecution charged the defendant with noncapital crimes arising from her assault. Defendant pled guilty to the charges and was sentenced to 42 years. When the victim died several months later, defendant was charged with her murder. He argued the second murder violated double jeopardy principles. However, an exception to the traditional double jeopardy analysis applies where, as here, the prosecution is unable to proceed on the more serious charge at the outset because a fact necessary to sustain that charge - here the victim's death - had not yet occurred. Moreover, the prosecution had no duty to wait until the victim died before charging defendant with the crimes already completed.id: 11999
Double jeopardy principles did not prevent criminal prosecution following civil forfeiture proceedings.Defendant's criminal prosecution for drug offenses was not barred by the double jeopardy clause of the United States Constitution because of the completed forfeiture of money and property in a related civil action.id: 12001
Evidence did not show section 667, subdivision (a) priors were brought separately where there was no evidence of separate complaints, and relitigating of this issue was not barred by double jeopardy.Defendant pled guilty in a single superior court proceeding to two separate, though consecutively numbered dockets. The cases were not consolidated but defendant was represented by the same counsel in each. He was given a single constitutional admonishment and received consecutive sentences. The court referred to the cases individually and took the pleas separately. The cases were <U>tried</U> <U>separately</U> for purposes of Penal Code section 667, subdivision (a)(1). However, there was insufficient evidence that the cases were <U>brought</U> <U>separately</U>, where it could not reasonably be inferred the charges had been instituted by separate complaints. Double jeopardy did not preclude the prosecution from relitigating, on remand, the issue of whether the priors were brought separately.id: 12002
Forfeiture judgment violates neither the state nor federal double jeopardy clause.Defendant argued the forfeiture judgment violated the double jeopardy clause of the United States and California Constitutions, because the government simultaneously subjected him to criminal charges and civil forfeiture proceedings based on his violation of laws regarding controlled substances. However, the U.S. Supreme Court recently decided that civil forfeitures are neither punishment nor criminal for purposes of the federal double jeopardy clause. This finding applies to the instant claim based on federal grounds. Moreover, there is no reason why a broader rule should be applied under the state double jeopardy clause.id: 12003
In a bifurcated proceeding after the original jury was discharged without objection of defendant the impanelling of a new jury to determine the truth of the priors did not violate statutory or double jeopardy provisions.The trial court discharged the jury that was deadlocked on the underlying charges before the jury had determined the truth of the alleged prior convictions. Defendant argued that impanelling a new jury to determine the truth of the prior conviction allegations violated state statutory law and unconstitutionally placed him twice in jeopardy. However, defendant's failure to object to the premature discharge of the original jury precluded him from appellate relief on the basis of statutory error. (Penal Code sections 1025 and 1164.) Moreover, because determination of the truth of the alleged priors was bifurcated from the trial of the current charges, the court's action in impanelling the new jury did not violate the double jeopardy clause of the state or federal Constitution.id: 12004
Premeditated attempted murder is not a higher degree of attempted murder so double jeopardy did not bar retrial of the penalty allegation where defendant was convicted of attempted murder without a finding on the penalty allegation.The provision in Penal Code section 664, subdivision (a), imposing a greater punishment for an attempt to commit murder that is willful, deliberate, and premeditated does not create a greater degree of attempted murder, but, rather, constitutes a penalty provision that prescribes an increase in punishment (a greater base term) for the offense of attempted murder. The jury verdict convicting defendant of attempted murder, without a finding on the penalty allegation, therefore did not constitute an acquittal of a so-called greater degree of attempted murder. Accordingly, the double jeopardy prohibition did not bar retrial of the penalty allegation.id: 12005
Prior conviction allegations do not implicate double jeopardy and there is no bar to a retrial where there was no express waiver of the right to a jury trial.The court bifurcated trial on the prior conviction issues. At the end of the trial but before the verdict was announced the court asked whether defendants wanted a jury trial on the priors. Neither defendant expressed in words a waiver of the right to a jury trial. There was only counsel's representation that defendants wished to waive jury trial. The finding as to the priors was therefore made in violation of defendant's constitutional rights and required reversal. Contrary to defendant's claim the prior conviction allegations do not implicate double jeopardy and there was no bar to a retrial on that issue. Moreover, Penal Code section 1025 does not hold that, for good cause, another jury may not be impaneled to retry the prior conviction enhancements. Good discussion of the applicability of the double jeopardy clause to prior conviction enhancements.id: 12006
Resentencing to longer of two sentences after shorter was served did not violate double jeopardy.Defendant was convicted of attempted robbery and felony murder based on the underlying attempted robbery. He was given consecutive sentences of 15 years and life, but the Missouri courts later held that the state legislature had not intended multiple punishments. After his 15-year sentence was completed, the state vacated that sentence, but left the life sentence in place, giving him credit for the time served on the other sentence. The Eighth Circuit held that his continued confinement violated double jeopardy, since he had already completed one sentence for the crime. The Supreme Court reversed in a 5-4 decision by Justice Kennedy, ruling that the Missouri court's alteration of respondent's sentence to a single term for felony murder with credit for time served provided suitable protection of his double jeopardy rights. Justices Brennan, Marshall, Scalia and Stevens dissented.id: 12007
Reversal of defendant's felony murder conviction after he was acquitted on the underlying felony did not prevent retrial on the theory of first degree premeditated murder.Defendant was convicted of first degree murder under a felony murder theory. The jury inconsistently found him not guilty of the underlying robbery. The prosecution did not present the premeditated theory to the jury. On appeal, the conviction was reversed because of <i>Wheeler</i> error. Double jeopardy principles did not prevent defendant's retrial on the theory of first-degree premeditated murder.id: 12008
Stalking conviction following violation of restraining order did not violate the prohibition against successive prosecutions or double jeopardy principles.Defendant argued the prosecution for stalking violated Penal Code section 654's prohibition against successive prosecutions for crimes arising from the same course of conduct, because he had already been prosecuted and convicted of contempt for violating the restraining order. However, the section 654 prohibition does not apply where, as here, at least some of the acts giving rise to the charge occurred after the prosecution for the related crime. Moreover, there was no double jeopardy violation because the provisions relating to the violation of a restraining order do not define a crime. Rather, they create a punishment enhancement and as such are not considered in the double jeopardy analysis.id: 12009
State court prosecution was not barred by double jeopardy following federal forfeiture action.Defendant argued forfeiture of his interests in property under federal civil forfeiture actions for the same offense for which he was sentenced in the instant case constituted a violation of his guarantees against double jeopardy. However, prosecutions and convictions for the same offense by state and federal authorities are not barred by double jeopardy principles. Moreover, the prohibitions against multiple punishment (Penal Code section 654) and multiple prosecutions (section 656) did not apply because the federal action was a civil forfeiture action, not a criminal prosecution.id: 12010
Supreme Court finds no double jeopardy violation despite use at prior trial of evidence underlying the present charges.In <i>Grady v. Corbin</i>, 495 U.S. 508 (1990), the Supreme Court held that the double jeopardy clause bars a subsequent prosecution where the government, to establish an essential element of an offense charged in that prosecution, will prove conduct that constitutes an offense for which the defendant has already been prosecuted. Relying on this language, the 10th Circuit held that the government was foreclosed from prosecuting Oklahoma drug charges because it had presented evidence underlying those charges at a prior trial in Missouri to show defendant's criminal intent with respect to the Missouri transaction. In a unanimous opinion, Chief Justice Rehnquist ruled that this was an extravagant reading of <i>Grady</i>, because <i>Grady</i> disclaimed any intention of adopting a same evidence test. The Court relied on <i>Dowling v. U.S.,</i> 493 U.S. 342 (1990), which held that the introduction of relevant evidence of particular misconduct under Rule 404(b) is not the same thing as prosecution for that conduct. The opinion of the Court of Appeals was reversed.id: 12013
Suspending driver's license after refusing to take a blood test does not violate double jeopardy after imposing refusal enhancement following the drunk driving conviction.The right to be free from double jeopardy is not violated when the Department of Motor Vehicles suspends a driver's license for refusal to take a blood-alcohol test, even though the licensee was convicted of drunk driving and received a 48-hour refusal enhancement for the same conduct.id: 12016
Trying defendant in adult court after juvenile court trial for the same offense did not violate double jeopardy where he perpetrated a fraud on the juvenile court by concealing his true age.Defendant was tried in juvenile court and then again in adult court for the same offense. It was determined that he perpetrated a fraud on the court by deliberately misleading the juvenile court about his true status as an adult. Accordingly, the juvenile court judgment was vacated and the conviction in adult court for the same offense did not constitute double jeopardy.id: 12017
Court did not violate double jeopardy by permitting the prosecution to reopen to present evidence of the prior conviction after having found him guilty of possession.In a non-bifurcated court trial, the prosecution did not present evidence of defendants prior conviction before the trial court convicted him of cocaine possession. He argued the trial court erroneously permitted the prosecution to reopen, over his double jeopardy objection, to prove his prior conviction. However, because the trial was not finished, and defendant earlier told the prosecutor he would admit the prior conviction, the double jeopardy prohibition was not violated.id: 11984
Court was authorized to reconvene the jury to correct the verdict since the jury had not been discharged.The jury returned the guilt phase verdict of January 27 and was told that it would be reassembled the next week to begin the penalty phase. On January 28 defense counsel informed the judge that the jury failed to specify the degree of the murder in the verdict. On January 31, the jury was reassembled for the purpose of correcting the commission and completing its verdict. The murder was determined to be of the first degree. Since the jury remained under the control of the court and had not been discharged, the court was authorized to reconvene the jury and correct the verdict.id: 11986
Court's dismissal of a count did not amount to an acquittal.On the date set for trial, defendant waived a jury trial on the Penal Code 12021.1 charge. In discussing the motions the trial court found that 12021.1 did not contemplate prior misdemeanor convictions and dismissed the count. The Court of Appeal held the dismissal was pursuant to a hearing on a 995 motion as opposed to a court trial, and therefore, did not constitute an acquittal.id: 11987
Court's order striking the prior for lack of advisement was not an acquittal of the prior.The People appealed the trial court's order striking the prior on the ground defendant was not adequately advised of the right to testify. Defendant argued that double jeopardy principles barred the appeal because the order acquitted defendant of the prior. However, what occurred below was a pre-jeopardy hearing on the constitutionality of the prior, not a trial of the prior. Moreover, the hearing was not the commencement of trial on the prior, but was part of the People's prima facie case on the motion.id: 11988
Declaration of a mistrial following continued deliberations was a matter of legal necessity despite the court's failure to inquire into the possibility of a partial verdict of acquittal as to the greater offenses.Defendant was twice tried on the murder counts. At the first trial the court asked the jurors to continue deliberating several times but eventually the court accepted the 7-5 deadlock. However, at no time did the court inquire whether the jury was able to reach a partial verdict of acquittal on any of the charged offenses, nor did the jury hint at such a possibility. Defendant argued the failure to so inquire resulted in a mistrial lacking legal necessity and that retrial was barred by double jeopardy principles. However, the court conducted a sufficient inquiry before declaring a mistrial and no evidence supported an inference of partial acquittal on a greater offense. The mistrial was therefore a matter of legal necessity and there was no double jeopardy violation.id: 11989
Defense counsel has the right to move for a mistrial which removes the possibility of a double jeopardy defense at the second trial.A jury was initially impaneled but was discharged after defense counsel moved for a mistrial as it was determined the crime was committed on a date other than the one alleged in information. Defendant argued counsel was ineffective in failing to assert that the second trial was barred by the double jeopardy clause of the Fifth Amendment. However, defense counsel has the right to request a mistrial and such request was deemed to be consent by appellant. Since the defense consented to the mistrial there was no meritorious double jeopardy defense to the second trial.id: 11990
The trial court does not lose subject matter jurisdiction when it fails to hold a competency hearing, but rather acts in excess of jurisdiction by depriving defendant of a fair trial.At an earlier trial, the court committed reversible error in failing to hold a competency hearing under Penal Code section 1368, after expressing a doubt as to defendant's ability to proceed with the guilt phase. Moreover, the verdict did not specify the degree of the murder of which defendant was convicted. When the matter was returned to the trial court, the People reinstated all charges including first degree murder. The court held the prosecution could not retry him on any offense greater than second degree murder and the People responded the court's section 1368 error rendered it without jurisdiction except to hold a competency hearing. However, the court did not proceed without jurisdiction, but only in excess of jurisdiction because the failure to hold the competency hearing denied defendant's due process rights. Since the proceedings were not void, double jeopardy prevented retrial for first degree murder.id: 11778
Juvenile court judge's reconsideration of the referee's CYA determination was authorized and not barred by double jeopardy.Appellant argued that the juvenile court had no jurisdiction to reconsider the juvenile court referee's order because the court's jurisdiction over a minor adjudged a ward of the court terminates when his CYA commitment goes into affect. However, the juvenile judge's reconsideration of the CYA determination was authorized by Welfare and Institution's Code section 779. Moreover, the redetermination of the section 707, subdivision issue was not barred by double jeopardy because it was a purely legal issue.id: 11673
Civil forfeiture after a conviction does not violate double jeopardy if there is a rational relation between the proportionate value of the proceeds and the harm occasioned by the criminal conduct.Defendant argued that double jeopardy principles prohibited the prosecution from pursuing the civil forfeiture action because he had already been convicted and sentenced on the criminal offense. However, whether double jeopardy bars the prosecution of the civil forfeiture action depends upon whether or not there is a rational relation between the proportionate value of the proceeds and the harm occasioned by the criminal conduct. If not, the forfeiture constitutes punishment for double jeopardy purposes. The cause was remanded for a determination by the trial court on this issue.id: 11587
Criminal prosecution did not violate double jeopardy because of the government's prior nonjudicial forfeiture of money seized from the vehicle he drove at the time of his arrest.Defendant argued that because the nonjudicial forfeiture of his property was complete before institution of the criminal proceedings, subjecting him to trial on the charges in the instant case would violate the state and federal proscriptions against double jeopardy. However, at no point did jeopardy attach in the nonjudicial forfeiture proceeding.id: 11591
Supreme Court holds in rem civil forfeitures are neither punishment nor criminal for double jeopardy purposes.In an 8-1 opinion written by Chief Justice Rehnquist, the Supreme Court reversed the Ninth Circuit's decision in <i>U.S. v. $405,089.23 U.S. Currency</i>, 33 F3d 1210 (9th Cir. 1994) amended, 56 F.3d 41 (9th Cir. 1995) and held that, for double jeopardy purposes, in rem civil forfeitures are neither punishment nor criminal. The court distinguished its prior decisions in <i>U.S. v. Halper</i>, 490 U.S. 435 (1989), <i>Austin v. U.S.</i>, 509 U.S. 602 91993), and <i>Department of Revenue of Montana v. Kurth Ranch</i>, 511 U.S. __, 114 S.Ct. 1937 (1994), saying that none of those decisions purported to overrule the court's traditional understanding that in rem civil forfeitures do not impose punishment. The court noted that Halper involved <i>in personam</i> civil penalties under the double jeopardy clause. <i>Kurth Ranch</i> considered a punitive state tax imposed on marijuana under the double jeopardy clause, and <i>Austin</i> dealt with civil forfeitures under the Eighth Amendment's excessive fines clause. Justice Stevens dissented.id: 11597
Withdrawal of plea after the court's ascertainment of the correct number of defendant's priors did not violate double jeopardy.Defendant argued the filing of a felony complaint after he had already pled guilty to the misdemeanor charges violated the constitutional prohibition against double jeopardy and the court lacked authority to withdraw an accepted guilty plea on its own motion. However, the trial court, before judgment is final, retains the power to withdraw its approval and vacate the guilty plea sua sponte. The instant court had just advised defendant that a fourth drunk driving offense would subject him to felony prosecution. Thereafter, the court discovered this was the fourth offense. The trial court did not err in withdrawing the plea based on the ascertainment of the correct number of prior offenses.id: 11520
Proceeding with drunk driving charges following the DMV license suspension did not violate double jeopardy.Defendants were charged in the municipal court with drunk driving. At the same time the Department of Motor Vehicles administratively suspended their drivers' licenses for the same conduct. The superior court erred in ordering the criminal charges dismissed because proceeding with the criminal charges after the licenses were suspended by the DMV did not violate double jeopardy principles.id: 10612
Determination in the criminal proceeding that the drunk driving arrest was unlawful did not preclude relitigation of the issue in the administrative proceeding.A determination in a prosecution that a defendant had been illegally arrested for driving under the influence did not preclude relitigation of the same question in the DMV's administrative proceeding to suspend the license. Such a dismissal is not the equivalent of an acquittal since there was no judicial determination in defendant's favor regarding the factual elements. Moveover, Penal Code section 1538.6, subd. (d), does not itself prohibit relitigation of the legality of the arrest in the administrative proceeding.id: 10574
Involuntary manslaughter is not a lesser included offense of voluntary manslaughter.Defendant was found not guilty of murder and of the uncharged lesser included offense of involuntary manslaughter. The jury was unable to decide whether she had committed the uncharged lesser included offense of voluntary manslaughter. Defendant argued that double jeopardy barred a second trial on the voluntary manslaughter charge because involuntary manslaughter is a lesser included offense of voluntary manslaughter and her acquittal of the latter offense served as an implied acquittal of the former. However, voluntary manslaughter can be committed without committing involuntary manslaughter, and thus the latter is not a lesser included offense of voluntary manslaughter.id: 10160
Mistrial on intentional murder charge did not preclude death sentence for murdering intentionally.Petitioner was charged with intentional murder and felony murder for killing during a rape. The jury found him guilty of felony murder but left the remaining verdict sheets blank. He was sentenced to death on the ground that he committed the murder intentionally. In this habeas corpus appeal, petitioner argued that the jury's failure to convict him of intentional murder was an acquittal and that therefore sentencing him based on the intentional murder aggravating circumstance violated double jeopardy and the doctrine of collateral estoppel. In a 7-2 opinion written by Justice O'Connor, the Supreme Court found no double jeopardy violation and held that the doctrine of collateral estoppel did not apply because the mistrial on the intentional murder count did not resolve the question of intentional murder in petitioner's favor. Petitioner could therefore properly be sentenced for committing the murder intentionally.id: 10162
A guilty verdict on the lesser offense where jurors were deadlocked on the greater offense did not constitute an implied acquittal for double jeopardy purposes but retrial was barred under section 1023.The trial court determined the jurors were genuinely deadlocked on the greater offense of gross vehicular manslaughter while intoxicated. In this situation, unlike the case where the jurors are merely silent with regard to the greater offense, the verdict of guilty on the lesser offense of vehicular manslaughter while intoxicated does not constitute an implied acquittal of the greater offense. However, pursuant to Penal Code section 1023, defendant's conviction of the lesser included offense barred a subsequent retrial on the greater offense, notwithstanding the first jury's deadlock on that charge.id: 9814
After one count was dismissed following a legal error it was perfectly proper for the trial judge to reimpose the same sentence in a different manner.In its first review of the case, the Court of Appeal reversed one count of attempted robbery with directions to dismiss. By changing a stayed sentence on one count to a consecutive one, the judge reimposed the original term. Defendant argued the court erred in basing its resentencing decision on its subjective feeling about the sentence. He claimed the court is not permitted to reason backward to permit a particular sentence. However, it was perfectly proper for the trial judge to reimpose the same sentence in a different manner. Moreover, double jeopardy principles did not bar the change in the disposition of count 1 and defendant was not punished for a successful appeal. Although one component of the sentence was raised, the overall sentence was not increased.id: 9815
Considering the circumstances of the crime and a special circumstance based on conviction of a felony which underlies the first degree felony-murder conviction does not violate double jeopardy.Defendant argued the double jeopardy clause of the Fifth Amendment prohibits both multiple conviction and multiple punishment for the same offense. On that basis he claimed the convictions for rape, robbery, and burglary should have been set aside, and that allowing the jury to consider his conviction as well as the circumstances of those offenses when determining the appropriate punishment was constitutionally impermissible. However, since Penal Code section 190.3 expressly permits the sentencer to consider both the circumstances of the crime and a special circumstance based on conviction of a felony which underlies the first degree felony-murder conviction, there is no federal double jeopardy violation.id: 9818
Conviction of murder and accessory after the fact in separate trials was not improper.Defendant argued that his conviction at the first trial of being an accessory after the fact to murder precluded retrial of the murder charge based on double jeopardy principles. However, once the murder was completed, defendant's further acts of attempting to dispose of the murder weapon were entirely separate and distinct, and served a further and different purpose. The imposition of separate liability for these distinct and independent actions was proper.id: 9611
The Supreme Court holds that substantive crime and conspiracy are not the same offense for double jeopardy purposes.Prior to <i>Grady v. Corbin</i>, 495 U.S. 508 (1990), it was the rule that a substantive crime, and a conspiracy to commit that crime, were <i>not</i> the same offense for double jeopardy purposes. In an opinion written by Chief Justice Rehnquist with Justices Stevens and Blackmun concurring in the judgment, the Supreme Court chose to adhere to this well-established rule despite the difficulty of reconciling it with the language of <i>Grady</i>. The court acknowledged that while <i>Grady</i> eschewed a same evidence test and prior cases had rejected a single transaction test, the line between those tests and the same conduct" language of <i>Grady</i> is not easy to discern." Nevertheless, the court thought it best not to enmesh in such subtleties the established doctrine that a conspiracy to commit a crime is a separate offense from the crime itself.id: 9591
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Exclusion of 18-25 year-olds from the youthful offender provisions of section 3051 did not violate equal protection. Penal Code section 3051 establishes a parole eligibility hearing for juveniles convicted of special circumstance murder and sentenced to life without the possibility of parole. Excluding persons 18-25 from the youthful offender parole hearing provision did not violate equal protection principles.id: 27245