P. v.CHRISTOPHER MICHAEL BROWN

Filed 3/17/06

CERTIFIED FOR PUBLICATION

COPY

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Placer)

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APPEAL from a judgment of the Superior Court of Placer County, Robert G. Vonasek, Judge. (Retired Judge of the Glenn Sup. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed; remanded for further proceedings.

Robert Derham, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, Stan Cross and J. Robert Jibson, Deputy Attorneys General, for Plaintiff and Respondent.

An information alleged that defendant Christopher Brown committed battery with serious bodily injury, abuse of an elder, and assault by means of force likely to produce great bodily injury; the latter count also alleged personal infliction of great bodily injury. (Pen. Code, §§ 243, subd. (d), 368, subd. (b)(1), 245, subd. (a)(1), 12022.7, subd. (a).)^[1] All charges stemmed from a fight with a 69-year-old victim.

In his first trial, the jury acquitted the defendant of the charged offense of elder abuse. It also returned verdicts that purported to acquit him of lesser offenses to that count on which the court had instructed: simple battery, simple assault, and misdemeanor elder abuse. (§§ 242, 240, 368, subd. (c).) In returning these verdicts, the jury announced it was not able to reach a verdict on either of the remaining charged counts of aggravated battery and assault, and the trial court consequently declared a mistrial.

On retrial, a second jury found defendant guilty of both remaining counts as charged, and sustained the allegation of great bodily injury. The trial court suspended imposition of sentence and placed the defendant on probation.

On appeal, the defendant contends that the verdicts of acquittal for elder abuse and the included offenses of battery and assault barred his retrial because the included offenses are elements of the remaining charges. He concludes that we must reverse the convictions and order their dismissal. The defendant also claims the trial court erred in ordering him to pay for his legal fees without complying with notice and hearing requirements. The People concede that the defendant could not be retried, but urge us to remand the matter for a hearing on the defendant's payment of his legal fees.

We requested supplemental briefing on whether the crimes of assault and battery are necessarily included in the crime of elder abuse, and the effect on the retrial issue if they are not. In their supplemental briefs, both parties acknowledge that neither assault nor battery are included within the crime of elder abuse. Both parties agree that this circumstance has no effect on the retrial issue.

We agree that neither battery nor assault are lesser offenses included in elder abuse, because (whether as a matter of statutory definition or the pleadings in the present case) elder abuse may be committed solely by inflicting mental suffering. We disagree, however, that either constitutional or statutory protections against double jeopardy barred the retrial for assault and battery. We also conclude that the acquittals do not have any preclusive effect on the issues on retrial. As a result, we reject the People's concession and will affirm the judgment. We will remand the matter for further proceedings on the issue of reimbursement for the defendant's legal fees.

Discussion

I

A

According to the parties, two principles barred the People from seeking to retry the defendant. They first assert that the constitutional prohibition against double jeopardy (U.S. Const., 5th Amend.; Cal. Const., art. I, § 15)^[2] and its statutory equivalent (§ 1023) bar retrial because simple battery and assault are respectively elements of the charged offenses of battery with great bodily injury and assault by means of force likely to produce great bodily injury.^[3] Second, they claim section 654, subdivision (a)^[4] bars retrial because the jury acquitted the defendant of elder abuse, and all three of the charges arose out of the same indivisible course of conduct, i.e., a fist fight.

We conclude that neither the constitutional protection against double jeopardy nor the cited statutes support these arguments. The parties miss a key point: the constitutions and statutes apply only to successive prosecutions, and not (as here) a continued prosecution in a second trial after a jury is unable to reach a verdict on certain counts. (Richardson v. United States (1984) 468 U.S. 317, 323 [82 L.Ed.2d 242]; Stone v. Superior Court (1982) 31 Cal.3d 503, 516.) That a jury has returned a verdict of acquittal on one of several counts is immaterial. â€