ANGELES COUNTY
Filed 8/31/10
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
ONE
MICHAEL DONNELL BROWN,
Petitioner,
v.
THE SUPERIOR
COURT OF LOS
ANGELES COUNTY,
Respondent;
THE PEOPLE,
Real Party in Interest.
No. B221980
(Super. Ct.
No. PA058712)
ORIGINAL
PROCEEDINGS in mandate or prohibition.
Harvey Giss, Judge. Petition for
writ of mandate granted.
Peter
Swarth for Petitioner.
No
appearance for Respondent.
Steve
Cooley, District Attorney, Irene Wakabayashi, Phyllis C. Asayama and Tracey W.
Lopez, Deputy District Attorneys, for Real Party in Interest.
_________________________________
Petitioner
Michael Donnell Brown filed the instant petition for a writ of mandate to
challenge the trial court's denial of his double
jeopardy motion to preclude retrial after a jury acquitted him of some
counts, convicted him of a lesser included offense as to one count, and hung on
the remaining counts. We conclude that
double jeopardy bars retrial of all of the charges the trial court permitted to
be retried because, (1) in the case of one victim, the jury acquitted
petitioner of offenses, all of which were alleged to have been committed within
the same five-month interval, and the prosecutor failed to show that none of
the acquittals pertained to the offense the court agreed to permit the
prosecutor to retry, which was also alleged to have been committed in the same
five-month interval; and (2) in the case of the other victim, the jury
acquitted petitioner of continuous sexual abuse of a minor based upon the same
conduct and during the same 22-month interval alleged in four counts the court
agreed to permit the prosecutor to retry.
Accordingly, we grant the petition.
A 23-count
information filed April 30, 2008,
charged petitioner with the commission of various sexual offenses against two
minors, Caleb C. and Kyle C.
With respect to alleged victim Caleb, counts 1 through 13 charged
petitioner with forcible
oral copulation in violation of Penal Code section 288a, subdivision (c)(2) on
or between the dates of October 1, 2006, and March 8, 2007;
counts 14 through 16 charged him with sodomy by force during the same range of dates; count 17
charged him with assault with intent to commit a felony on August 1, 2006; and count
18 charged him with attempted sodomy by force on or between the dates of October 1,
2006, and March 8, 2007. (All
undesignated statutory references pertain to the Penal Code.) With respect to alleged victim Kyle, counts
19 through 22 charged petitioner with committing a forcible lewd act upon a child under the age of 14 in
violation of section 288, subdivision (b)(1) on or between the dates of
April 15, 2005, and March 2, 2007; count 23 charged him with
continuous sexual abuse of a child under the
age of 14 in violation of section 288.5, subdivision (a) during the same date
range. The information also alleged, with respect to
all counts, that the crimes involved multiple victims. (§ 667.61, subd. (b).)
Petitioner
waived a preliminary hearing and proceeded to
trial on all of the charges.
Alicia C.,
the mother of Caleb and Kyle, testified that petitioner is her nephew. She and her husband permitted petitioner and
his girlfriend, Maria Pereyra, to move in with her family in their two-bedroom
mobile home in March of 2004 because petitioner and Pereyra had nowhere else to
go. Petitioner and Pereyra slept and
kept some of their property in the living room.
They did not move out until February of 2007. (Unless otherwise noted, all further date
references pertain to 2007.) Alicia
moved out of the mobile home in September of 2006 and moved back in after
March 8.
Alicia
testified that when petitioner first moved in with her family, she saw him
â€
| Description | Petitioner Michael Donnell Brown filed the instant petition for a writ of mandate to challenge the trial court's denial of his double jeopardy motion to preclude retrial after a jury acquitted him of some counts, convicted him of a lesser included offense as to one count, and hung on the remaining counts. We conclude that double jeopardy bars retrial of all of the charges the trial court permitted to be retried because, (1) in the case of one victim, the jury acquitted petitioner of offenses, all of which were alleged to have been committed within the same five-month interval, and the prosecutor failed to show that none of the acquittals pertained to the offense the court agreed to permit the prosecutor to retry, which was also alleged to have been committed in the same five-month interval; and (2) in the case of the other victim, the jury acquitted petitioner of continuous sexual abuse of a minor based upon the same conduct and during the same 22-month interval alleged in four counts the court agreed to permit the prosecutor to retry. Accordingly, Court grant the petition. |
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