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)
STORY CONTINUE FROM
PART I….
Petitioner
contends, as he did in the trial court, that double jeopardy precludes retrial
of count 13 and counts 19 through 22. 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.
The double
jeopardy provisions of the federal and state constitutions protect against
successive prosecutions for the same offense after acquittal or conviction, and
against multiple punishment for the same offense. (North Carolina v. Pearce (1969) 395 U.S. 711, 717 [89 S.Ct. 2072]; People v. Anderson (2009) 47 Cal.4th 92,
103–104.) Double jeopardy includes an
issue preclusion component: once an
issue of ultimate fact has been resolved in a criminal proceeding, it cannot be
relitigated in a subsequent prosecution or
retrial. (
at p. 2367 (Yeager); Ashe v. Swenson (1970) 397 U.S. 436, 443, 445 [90 S.Ct. 1189] (Ashe).)
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| 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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