Double Jeopardy [§LIO-32]
LIO V(A) Conviction Of Both Greater And Lesser Included Offenses [§LIO-33]: It has long been held that a defendant may not be convicted of both the greater and lesser included offenses. (People v. Pearson (86) 42 C3d 351, 356-57 [228 CR 509]; see also People v. La Stelley (99) 72 CA4th 1396 [85 CR2d 835] [defendant could not be convicted of both robbery and theft when he took one item from a store and the theft turned into a robbery when he struggled with a store employee]; People v. Ortega (98) 19 C4th 686, 692 [80 CR2d 489] [multiple convictions may not be based on necessarily included offenses].) In such cases the jury should be instructed that if it finds the defendant guilty of one charge it must acquit on the other. (See CJ 17.03; CJ 17.12.)
LIO V(B) Reduction of Degree [§LIO-34]: The automatic reduction of the degree of an offense per PC 1157 when the jury fails to specify the degree constitutes an implied acquittal of the greater offense. (But seePeople v. Mendoza (2000) 23 C4th 896, 908-909 [98 CR2d 431] [PC 1157 does not require jury to specify degree of murder conviction when only theory of killing offered by prosecution is felony murder].)
Hence, when a defendant’s conviction is deemed to be of the lesser degree by operation of PC 1157 it “‘is to be accorded constitutional finality and conclusiveness similar to that which attaches to a jury’s verdict of acquittal.’ [Citation.]” (People v. Superior Court (Marks) (91) 1 C4th 56, 71 [2 CR2d 389].)
LIO V(C) Waiver Of Double Jeopardy [§LIO-35]: The defendant has no right to instruction upon time-barred lesser offenses because the trial court has no jurisdiction over such offenses. (See FORECITE LRO VI.) InPeople v. Carter (93) 19 CA4th 1236, 1254 [23 CR2d 888], the Court of Appeal attempted to apply the same analysis to a lesser offense which was barred by double jeopardy. In so doing, however, the court failed to recognize an important distinction between double jeopardy and the statute of limitations; namely that double jeopardy may be waived and, hence, is not jurisdictional. (See People v. Belcher (1974) 11 C3d 91, 96 [113 CR 1].)
The Court of Appeal’s response to this argument is unpersuasive in that it fails to explain why there is no jurisdiction over an offense for which the double jeopardy claim has been waived.
LIO V(D) Conviction Of Lesser Offense – Impact On Greater Offense
As articulated by the Supreme Court in North Carolina v. Pearce (1969) 395 US 711, 717 [23 LEd2d 656; 89 SCt 2072, 2076], the constitutional prohibition against double jeopardy “consist[s] of three separate constitutional protections. It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense.” (Fns. omitted.)
An acquittal barring a second prosecution may be either express or implied by a conviction on a lesser included offense when the jury was given the opportunity to return a verdict on the greater offense. (Green v. United States (1957) 355 US 184, 190-191 [2 LEd2d 199; 78 SCt 221].) Under the “implied acquittal” doctrine, a guilty verdict on a lesser included offense represents “an implied acquittal of the greater offense of which the jury could have convicted the defendant.” (Stone v. Superior Court (1982) 31 C3d 503, 511, fn. omitted; see also People v. Fields (1996) 13 C4th 289, 299.)
The applicable definition of “necessarily included offenses” for purposes of double jeopardy law “is simply that where an offense cannot be committed without necessarily committing another offense, the latter is a necessarily included offense. [Citation.]” (People v. Greer (1947) 30 C2d 589, 596, fn. omitted.) This is commonly referred to as the “elements” test, which is met when all the elements of the lesser offense are included in the elements of the greater offense. (People v. Lopez (1998) 19 C4th 282, 288-289.) Under this test, which compares the statutory language, an offense is necessarily included if the crimes are defined in such a way as to make it impossible to commit the greater offense without also committing the lesser. (People v. Greer, supra, 30 C2d at p. 597.)
In the double jeopardy context, it does not matter whether or not the crimes are lesser included offenses under the accusatory pleading test.The appropriate yardstick is the elements test based on statutory comparison of the crimes. (See United States v. Dixon (1993) 509 US 688, 703-712 [125 LEd2d 556; 113 SCt 2849, 2859-2864]; People v. Scott (2000) 83 CA4th 784, 796; People v. Scheidt (1991) 231 CA3d 162, 165-166, 170.)
“Protection against double jeopardy is also embodied in article I, section 15 of the California Constitution, which declares that ‘[p]ersons may not twice be put in jeopardy for the same offense.’ … [T]he California Constitution is a document of independent force and effect that may be interpreted in a manner more protective of defendants’ rights than that extended by the federal Constitution, as construed by the United States Supreme Court. [Citations.]” (People v. Fields (1996) 13 C4th 289, 297-298.) PC 1023 “implements the protections of the state constitutional prohibition against double jeopardy, and, more specifically, the doctrine of included offenses. [Citations.]” (Id. at pp. 305-306.)
PC 1023 provides: “When the defendant is convicted or acquitted or has been once placed in jeopardy upon an accusatory pleading, the conviction, acquittal, or jeopardy is a bar to another prosecution for the offense charged in such accusatory pleading, or for an attempt to commit the same, or for an offense necessarily included therein, of which he might have been convicted under that accusatory pleading.” “Under Penal Code section 1023, as construed in People v. Greer (1947) 30 C2d 589, 596-597, when an accused is convicted of a lesser included offense, the conviction bars a subsequent prosecution for the greater offense.” (People v. Fields, supra, 13 C4th at p. 296, fn. omitted.) This rule applies even where the jury deadlocks on the greater offense and its verdict of guilty on the lesser included offense does not imply intent to acquit the accused of the greater offense. (Id. at pp. 295-296, 305-307.)
In People v. Fields, supra, 13 C4th 289, even though the doctrine of implied acquittal was inapplicable to the greater offense – due to juror deadlock – the California Supreme Court concluded: “[N]otwithstanding the jury’s deadlock on the greater offense, defendant could not be subjected to retrial on that charge. As we explain, once the verdict of guilty on the lesser included offense was received by the trial court and recorded, and the jury was discharged, defendant stood convicted of the lesser included offense within the meaning of section 1023. Pursuant to that statute, when an accused is convicted of a lesser included offense, the conviction bars a subsequent prosecution for the greater offense. (People v. Greer (1947) 30 C2d 589, 596-597.)” (Id. at p. 305.) The court declared that “once a conviction on the lesser offense has been obtained, ‘”to [later] convict of the greater would be to convict twice of the lesser.”‘ [Citations.]” (Id. at p. 306; see also Porter v. Superior Court (2009) 47 C4th 125.)
LIO V(E) Granting Of New Trial On Lesser Precludes Retrial of Greater
Even if the trial court’s limited grant of a new trial is not an implied acquittal (see LIO V(F), California’s constitutional protection against double jeopardy as implemented by PC 1023 bars further prosecution of the greater offenses. (See LIO V(D); see also Apprendi v. New Jersey, supra, 530 U.S. at p. 494, fn. 19).
LIO V(F) Impact Of A New Trial Order On Double Jeopardy
“In considering a motion for a new trial made on the ground of insufficiency of the evidence to support the verdict, the trial court independently weighs the evidence, in effect acting as a ’13th juror.’ If the trial court, sitting as a ’13th juror,’ would have decided the case differently from the other 12 jurors and grants the motion for a new trial, there is no double jeopardy bar to retrial. (People v. Veitch (1982) 128 CA3d 460, 467-468.)” (People v. Lagunas (1994) 8 C4th 1030, 1038, fn. 6; see also Porter v. Superior Court (2009) 47 C4th 125.)
“Double jeopardy does bar retrial, however, when a court, using the ‘substantial evidence’ test, determines as a matter of law that the prosecution failed to prove its case. (Hudson v. Louisiana (1981) 450 US 40, 44 [67 LEd2d 30, 34; 101 SCt 970, 972]; People v. Trevino (1985) 39 C3d 667, 694-695 [ … ].) “In California, if a criminal defendant in a jury trial wishes to challenge the legal sufficiency of the evidence in the trial court, he must move for a judgment of acquittal under section 1118.1. Such a judgment is a bar to any other prosecution for the same offense. (PC 1118.2.)” (People v. Veitch, supra, 128 CA3d at 466.)
LIO V(G) Dismissal Of Greater Offense On Appeal Allows Reinstatement Of Dismissed Lesser Included Offense.
People v. Davidson (2008) 159 CA4th 205.