F 3308 NOTES

SERIES 3300 NON-CALCRIM DEFENSES

F 3308 NOTES

TABLE OF CONTENTS
F 3308 Note 1 Former Jeopardy: Proposition 115 Update
F 3308 Note 2 Former Jeopardy: Fundamental Nature of the Right
F 3308 Note 3 Former Jeopardy: Whether Jury’s Rejection Of Enhancement Constitutes An Express Acquittal And Forecloses Any Retrial
F 3308 Note 4 Former Jeopardy: PC 1157 Reduction Bars Retrial
F 3308 Note 5 Former Jeopardy: Conviction Of Substantive Offense Not A Bar To Subsequent Conspiracy Charge
F 3308 Note 6 Former Jeopardy: No Requirement Of Personal Waiver
F 3308 Note 7 Former Jeopardy/Collateral Estoppel: Effect Of Finding Gun Use Untrue
F 3308 Note 8 Former Jeopardy: Grady v. Corbin Overruled
F 3308 Note 9 Former Jeopardy: No Bar To Conviction As Accessory And Perpetrator
F 3308 Note 10 Collateral Estoppel Precludes Re-Litigation Of Underlying Felony And Felony Murder Convictions
F 3308 Note 11 Collateral Estoppel Bars Relitigation Only If All Elements Were Resolved
F 3308 Note 12 Former Jeopardy: Does Conviction Of Lesser Offense Constitute Implied Acquittal Of Greater Offense?
F 3308 Note 13 Forfeiture: Double Jeopardy Defense
F 3308 Note 14 Former Jeopardy: Inapplicable To Premeditated Attempted Murder
F 3308 Note 15 Former Jeopardy: Lesser Offense Distinguished From Penalty Enhancement
F 3308 Note 16 New Charges After Appeal: No Retrial For Same Act Under Different Statute Following Successful Appeal Of Original Conviction Based On Insufficiency Of Evidence
F 3308 Note 17 Double Jeopardy: Prosecutor Misconduct—Argument Intended To Provoke A Mistrial
F 3308 Note 18 Double Jeopardy: Continuing Offenses
F 3308 Note 19 Double Jeopardy: Death Penalty—Inapplicable To Life Sentence Imposed As A Matter Of Law After Hung Jury
F 3308 Note 20 Law Of The Case Doctrine
F 3308 Note 21 Double Jeopardy: Dismissal Of Jury Without Legal Necessity Or Defendant’s Consent Bars Retrial
F 3308 Note 22 Law Of The Case Doctrine: Exceptions
F 3308 Note 23 Double Jeopardy: Pre-Verdict Acquittal
F 3308 Note 24 Collateral Estoppel: Not Applicable Against Defendant If Factual Determination Is Not Final

Return to Series 3300 Table of Contents.

F 3308 Note 1 Former Jeopardy: Proposition 115 Update

In Raven v. Deukmejian (1990) 52 C3d 336, 349, the court held section 3 of Proposition 115, which eliminated state constitutional rights not recognized by the federal constitution, to be unenforceable because section 3 revised, not simply amended, the California Constitution. Hence, the state constitutional basis for double jeopardy remains intact. Moreover, note that there are several Penal Code statutes which supplement the state constitutional guarantee to double jeopardy. These statutes include PC 654, PC 656, PC 687, PC 793, PC 794, PC 1023, PC 1101, PC 1118.2, PC 1188 and PC 1387.

PC 656, for example, may be relied upon to bar state prosecution for a federal offense for which the defendant has already been placed in jeopardy.

[Research Note: See FORECITE BIBLIO “Former Jeopardy” (BIBLIO FJ)]

CALJIC NOTE: See FORECITE F 4.007 n1.

F 3308 Note 2 Former Jeopardy: Fundamental Nature of the Right

The right not to be placed twice in jeopardy for the same offense is as sacred as the right to trial by jury. (See People v. Superior Court (Marks) (1991) 1 C4th 56, 79 [the double jeopardy clause “suffers no compromise; therein lies its strength and vitality”]; Gonzales v. Municipal Court (1973) 32 CA3d 706, 714; see also Larios v. Superior Court (1979) 24 C3d 324, 329.) “The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.” (Green v. United States (1957) 355 US 184, 187-188 [2 LEd2d 199, 204; 78 SCt 221].) “Without the guarantee against double jeopardy, the chances of convicting innocent persons would be increased, both because the state would have unlimited opportunities to prosecute an acquitted defendant and because the exposure of the accused’s defense in the first trial would provide the state with a major advantage in preparing for the second. [Citation.]” (Larios v. Superior Court (1979) 24 C3d 324, 329-330.) Thus, retrial “may even enhance the risk that an innocent defendant may be convicted.” (Arizona v. Washington (1978) 434 US 497, 504 [54 LEd2d 717; 98 SCt 824].)

In Carsey v. United States (D.C Cir. 1967) 392 F2d 810, 813-814, Judge Leventhal described how subtle changes in the State’s testimony, initially favorable to the defendant, may occur during the course of successive prosecutions:

“[T]he Government witnesses came to drop from their testimony impressions favorable to defendant. Thus a key prosecution witness, the last person to see appellant and the deceased together, who began by testifying that they had acted that evening like newlyweds on a honeymoon, without an unfriendly word spoken, ended up by saying for the first time in four trials that the words between them had been ‘firm,’ and possibly harsh and ‘cross.’

“We also note that the police officer who readily acquiesced in the two ‘hung jury’ trials that appellant was ‘hysterical,’ later withheld that characterization. This shift, though less dramatic, was by no means inconsequential in view of the significance of appellant’s condition at the time he made a statement inconsistent with what he later told another officer.” (See also Arizona v. Washington, 434 US at 504-505.)

[Research Note: See FORECITE BIBLIO “Former Jeopardy” (BIBLIO FJ).]

CALJIC NOTE: See FORECITE F 4.007 n2.

F 3308 Note 3 Former Jeopardy: Whether Jury’s Rejection Of Enhancement Constitutes An Express Acquittal And Forecloses Any Retrial

People v. Hernandez (1998) 19 C4th 835, held that neither the state nor federal prohibitions against double jeopardy (former jeopardy) preclude the trial court from reconsidering a finding regarding an enhancement which the trier of fact found to be untrue. See also People v. Barragan (2004) 32 C4th 236 [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]; compare People v. Superior Court (Marks) (1991) 1 C4th 56, 71 [double jeopardy applies to acquittal of lesser included offense by operation of PC 1157]. The court held that double jeopardy does not apply to non-capital sentencing determinations. However, the decisions may still be subject to challenge under the rationale of Apprendi v. New Jersey (2000) 530 US 466 [147 LEd2d 435; 120 SCt 2348]. (See also Blakely v. Washington (2004) 542 US 296 [159 LEd2d 403; 124 SCt 2531].)

(See FORECITE PG VII(C)(32).)

[Research Note: See FORECITE BIBLIO “Former Jeopardy” (BIBLIO FJ)]

CALJIC NOTE: See FORECITE F 4.007 n3.

F 3308 Note 4 Former Jeopardy: PC 1157 Reduction Bars Retrial

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 see People v. Mendoza (2000) 23 C4th 896, 908-909 [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) (1991) 1 C4th 56, 78.) Accordingly, if the defendant obtains a reversal of the conviction, there may be no retrial on the greater degree of the offense.

[Research Note: See FORECITE BIBLIO “Former Jeopardy” (BIBLIO FJ).]

CALJIC NOTE: See FORECITE F 4.007 n4.

F 3308 Note 5 Former Jeopardy: Conviction Of Substantive Offense Not A Bar To Subsequent Conspiracy Charge

Prior state court drug conviction does not preclude subsequent conspiracy conviction based upon the same acts. (U.S. v. Felix (1992) 503 US 378 [118 LEd2d 25, 35; 112 SCt 1377].)

[Research Note: See FORECITE BIBLIO “Former Jeopardy” (BIBLIO FJ)]

CALJIC NOTE: See FORECITE F 4.007 n5.

F 3308 Note 6 Former Jeopardy: No Requirement Of Personal Waiver

People v. Ryan REV GTD/DISD/DEPUB (1991) 234 CA3d 289.

[Research Note: See FORECITE BIBLIO “Former Jeopardy” (BIBLIO FJ)]

CALJIC NOTE: See FORECITE F 4.007 n6.

F 3308 Note 7 Former Jeopardy/Collateral Estoppel: Effect Of Finding Gun Use Untrue

[See FORECITE EA II(C).]

CALJIC NOTE: See FORECITE F 4.007 n7.

F 3308 Note 8 Former Jeopardy: Grady v. Corbin Overruled

In U.S. v. Dixon (1993) 509 US 688 [125 LEd2d 556, 572-78; 113 SCt 2849], the Supreme Court abandoned the same conduct test of double jeopardy set forth in Grady v. Corbin (1990) 495 US 508 [104 LEd2d 548; 110 SCt 2084] in favor of the traditional same elements test.

[Research Note: See FORECITE BIBLIO “Former Jeopardy” (BIBLIO FJ)]

CALJIC NOTE: See FORECITE F 4.007 n8.

F 3308 Note 9 Former Jeopardy: No Bar To Conviction As Accessory And Perpetrator

See FORECITE F 6.40 n2.

[Research Note: See FORECITE BIBLIO “Former Jeopardy” (BIBLIO FJ)]

CALJIC NOTE: See FORECITE F 4.007 n9.

F 3308 Note 10 Collateral Estoppel Precludes Re-Litigation Of Underlying Felony And Felony Murder Convictions

In People v. Ramsey (1995) 32 CA4th 1504, the court held that the defendant’s substantive conviction of robbery and felony murder in a prior trial precluded him, under collateral estoppel principles, from challenging the existence of those convictions in a subsequent trial relating only to the felony murder special circumstance per PC 190.2(a)(17)(I).

CALJIC NOTE: See FORECITE F 4.007 n10.

F 3308 Note 11 Collateral Estoppel Bars Relitigation Only If All Elements Were Resolved

In People v. Fletcher REV GTD/DISD/DEPUB (1995) 30 CA4th 687 reprinted at 39 CA4th 836, the prior adjudication was that the defendant possessed a firearm. Since the jury in the first trial had not necessarily resolved whether the defendant possessed the firearm at the particular place, collateral estoppel did not bar relitigation of the issue at the second trial where the location of the possession was at issue. [Review was granted in Fletcher but the collateral estoppel issue was not addressed.] (People v. Fletcher (1996) 13 C4th 451.)

U.S. v. Romeo (9th Cir. 1997) 114 F3d 141, held that collateral estoppel principles precluded the defendant’s retrial on importation charges because an essential element of the importation charge was resolved against the government when the jury acquitted the defendant of the possession charge. Because the possession charge was based on the same facts as the importation charge and because knowledge was the only contested element as to the possession charge, the jury’s acquittal as to the possession necessarily included a finding that the element of knowledge was lacking. Accordingly, the government was precluded from relitigating that issue as to the importation charge upon which the jury had deadlocked.

CALJIC NOTE: See FORECITE F 4.007 n11.

F 3308 Note 12 Former Jeopardy: Does Conviction Of Lesser Offense Constitute Implied Acquittal Of Greater Offense?

[See FORECITE LIO V(D).]

CALJIC NOTE: See FORECITE F 4.007 n12.

F 3308 13 Note Forfeiture: Double Jeopardy Defense

U.S. v. Ursery (1996) 518 US 267 [135 LEd2d 549; 116 SCt 2135], held that civil forfeitures do not constitute “punishment” for purposes of the double-jeopardy clause. This holding was based on the court’s conclusion that civil proceedings (1) have not historically been regarded as punishment; (2) there was no requirement in the statutes at issue that the government demonstrate scienter in order to establish that the property is subject to forfeiture; (3) though both statutes may serve a deterrent purpose, this purpose may serve civil as well as criminal goals; and (4) the fact that both statutes are tied to criminal activity is insufficient in itself to render them punitive. (518 US at 291-92; see also People v. $4,413.00 (1996) 47 CA4th 1631, 1639 [in the context of forfeiture, California’s Double Jeopardy Clause isn’t subject to broader interpretation than federal clause]; People v. Shanndoah (1996) 49 CA4th 1187, 1192-93 [relying on Ursery, holding that civil forfeiture of drug money isn’t punitive and double jeopardy doesn’t bar criminal prosecution]; see also Hudson v. U.S. (1997) 522 US 93, 94 [139 LEd2d 450; 118 SCt 488] [overruling U.S. v. Halper (1989) 490 US 435 [104 LEd2d 487; 109 SCt 1892].)

CALJIC NOTE: See FORECITE F 4.007 n13.

F 3308 Note 14 Former Jeopardy: Inapplicable To Premeditated Attempted Murder

[See FORECITE F 8.66 n5.]

CALJIC NOTE: See FORECITE F 4.007 n14.

F 3308 Note 15 Former Jeopardy: Lesser Offense Distinguished From Penalty Enhancement

ALERT: People v. Monge (1997) 16 C4th 826 and Monge v. California (1998) 524 US 721 [141 LEd2d 615; 118 SCt 2246] may be subject to challenge based on Apprendi v. New Jersey (2000) 530 US 466 [147 LEd2d 435; 120 SCt 2348]. (See also Blakely v. Washington (2004) 542 US 296 [159 LEd2d 403; 124 SCt 2531].) (See FORECITE PG VII(C)(32)(4).)

Under double jeopardy principles, a conviction of the lesser degree of an offense is an implied acquittal of the greater degree. (People v. Bright (1996) 12 C4th 652, 660-61; see also FORECITE F 4.007 n4.) However, in contrast to greater and lesser degrees of an offense, a penalty provision prescribes an added penalty to be imposed when the offense is committed under specified circumstances. A penalty provision is separate from the underlying offense and does not set forth elements of the offense or a greater degree of the offense charged. (See People v. Wolcott (1983) 34 C3d 92, 101; see also, People v. Bryant (1992) 10 CA4th 1584, 1596-98.) Accordingly, a defendant’s conviction of the underlying substantive offense does not, on double jeopardy grounds, bar further proceedings, such as retrial on a penalty allegation. (People v. Bright, 12 C4th at 661.)

People v. Monge (1997) 16 C4th 826, held in a 4-3 split in a non-capital case that the state and federal prohibitions against double jeopardy are inapplicable in a proceeding to determine the truth of a prior conviction allegation. The lead opinion explains that, although the state is not prohibited by double jeopardy principles from retrying a prior felony conviction enhancement, other limits might curtail the ability of the state on retrial to obtain a true finding. The lead opinion opines, for example, that on retrial the state cannot rely solely on the same evidence as initially presented, which would be prohibited under law of the case principles. And without elaborating, the lead opinion suggests unspecified evidentiary limitations (in addition to those identified in People v. Guerrero (1988) 44 C3d 343 [state may only present evidence from the record of the prior conviction] and People v. Reed (1996) 13 C4th 217 [rules of evidence are applicable in proceedings to determine truth of prior conviction allegations]) might restrict such required additional evidence. Similarly, the lead opinion hints there may be due process limits in such a retrial and expresses no opinion about whether PC 1025 (or some other applicable provision) might in some cases bar retrial of the prior conviction allegation as a statutory matter irrespective of constitutional constraints. (See also People v. Valladoli (1996) 13 C4th 590, 610-11, concurrence of Chin, joined by Mosk and Brown [same jury must decide both guilt and enhancement allegation].)

In Monge v. California (1998) 524 US 721 [141 LEd2d 615; 118 SCt 2246], the United States Supreme Court affirmed the California Supreme Court holding that the double jeopardy clause does not preclude retrial on a prior conviction allegation in non-capital sentencing proceedings. In Bullington v. Missouri (1981) 451 US 430 [68 LEd2d 270; 101 SCt 1852], it was held that the double jeopardy clause does apply in sentencing proceedings. However, Monge declared that this a narrow exception which applies only in capital cases. In non-capital cases, the sentencing is not a continuation of the trial itself as it is in a capital case and, hence, double jeopardy doesn’t apply. (See also People v. Barragan (2004) 32 C4th 236 [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]; but see FORECITE PG VII(C)(4).)

NOTE: Monge was decided on the narrow double jeopardy issue upon which the California Supreme Court decision was based. The U.S. Supreme Court opinion did not discuss the issues left open by the California Supreme Court such as whether the law of the case doctrine applies to require additional evidence by the prosecution to obtain a different result; whether there are limitations on that evidence; whether under PC 1025 or other statutory provisions retrial was barred under state law; whether due process precludes prosecution from retrying the enhancement allegation. (See People v. Monge (1997) 16 C4th 826 at 845.)

CALJIC NOTE: See FORECITE F 4.007 n15.

F 3308 Note 16 New Charges After Appeal: No Retrial For Same Act Under Different Statute Following Successful Appeal Of Original Conviction Based On Insufficiency Of Evidence

PC 654(a) provides that “[a]n acquittal or conviction and sentence under any one [provision of law] bars a prosecution for the same act or commission under any other.” This section has been construed by the California Supreme Court in Kellett v. Superior Court (1966) 63 C2d 822, 827 to provide that when “the prosecution is or should be aware of more than one offense in which the same act or course of conduct plays a significant part, all such offenses must be prosecuted in a single proceeding unless joinder is prohibited or severance permitted for good cause. Failure to unite all such offenses will result in a bar to subsequent prosecution of any offense omitted if the initial proceedings culminate in either acquittal or conviction and sentence.” This rule is applicable when the defendant’s original conviction has been reversed for insufficiency of evidence. (See Sanders v. Superior Court (1999) 76 CA4th 609.)

CALJIC NOTE: See FORECITE F 4.007 n16.

F 3308 Note 17 Double Jeopardy: Prosecutor Misconduct—Argument Intended To Provoke A Mistrial

The United States Supreme Court held in Oregon v. Kennedy (8192) 456 US 667 [72 LEd2d 416; 102 SCt 2083], that under the federal double jeopardy clause a retrial is prohibited following the grant of a defendant’s mistrial motion only if the prosecution committed the misconduct with the intent to provoke a mistrial.

However, People v. Batts (2003) 30 C4th 660 established a broader standard under the double jeopardy clause of the California Constitution:

First, as under the federal constitution, retrial is barred by the state double jeopardy clause when the prosecution intentionally commits misconduct for the purpose of triggering a mistrial. Second, the state double jeopardy clause also may bar retrial when the prosecution, believing (in view of events that occurred during trial) that a defendant is likely to secure an acquittal at that trial, knowingly and intentionally commits misconduct in order to thwart such an acquittal. In the latter circumstance, however, retrial is barred under the state double jeopardy clause only if a court reviewing all of the circumstances as of the time of the misconduct finds not only that the prosecution believed that an acquittal was likely and committed misconduct for the purpose of thwarting such an acquittal, but also determines, from an objective perspective, that the prosecutorial misconduct deprived the defendant of a reasonable prospect of acquittal. (Ibid.; compare Sons v. Superior Court (2004) 125 CA4th 110 [deliberate pretrial Brady error does not preclude retrial].)

CALJIC NOTE: See FORECITE F 4.007 n17.

F 3308 Note 18 Double Jeopardy: Continuing Offenses

“Where an offense is one that is continuous in nature, the doctrine of double jeopardy forecloses alleging separate offenses for the conduct committed during the period embraced by the indictment (Ex parte Nielsen (1889) 131 US 176 [33 LEd 118; 9 SCt 672]), but not for criminal activity engaged in thereafter.” (People v. Lazarevich (2002) 95 CA4th 416, 425 [prosecution for continued unlawful detention of children (PC 278.5) despite previous foreign conviction for taking and detaining children].)

CALJIC NOTE: See FORECITE F 4.007 n18.

F 3308 Note 19 Double Jeopardy: Death Penalty—Inapplicable To Life Sentence Imposed As A Matter Of Law After Hung Jury

In the defendant’s first trial, the jury hung 9-3 for life and was discharged. Under Pennsylvania law, the court was required to enter a life sentence, which it did. Defendant then successfully appealed the guilt phase. Upon retrial, the state again sought the death penalty, he was again convicted, and the second jury returned a death verdict. The United States Supreme Court, in a 5-4 decision, held that this does not offend either the double jeopardy or due process clauses of the United States Constitution. (See Sattazahn v. Pennsylvania (2003) 537 US 101 [123 SCt 732; 154 LEd2d 588].)

CALJIC NOTE: See FORECITE F 4.007 n19.

F 3308 Note 20 Law Of The Case Doctrine

“[W]hen one judge determines, as a matter of law and fact, that the evidence requires the giving of an entrapment instruction, and no additional evidence to the contrary is proffered at a subsequent trial, the second judge may not simply ignore the findings of the first. ‘It is a fundamental principle of jurisprudence … that a question of fact or of law distinctly put in issue and directly determined by a [criminal or civil] court of competent jurisdiction cannot afterwards be disputed between the same parties.’ (Frank v. Mangum (1915) 237 US 309, 334 [35 SCt 582; 59 LEd 969] [internal citation omitted].) California recognizes this application of the law of the case doctrine. The California Court of Appeal recently held that a superior court judge lacked the authority to vacate and redetermine the bail setting determination of another superior court judge. (In re Alberto (2002)102 CA4th 421.) The decision reasoned that ‘for one superior court judge, no matter how well intended, even if correct as a matter of law, to nullify a duly made, erroneous ruling of another superior court judge places the second judge in the role of a one-judge appellate court.’ (Id. at 11206; see also People v. Woodard (1982)131 CA3d 107, 111.) In the instant case, the second judge simply ignored the findings of the previous judge, without even bothering to assert that the earlier decision was erroneous or that the circumstances of the case had changed. This kind of unauthorized second-guessing is impermissibly arbitrary and can amount to a violation of Due Process.” (Bradley v. Duncan (9th Cir. 2002) 315 F3d 1091, 1098.)