PORTER v. SUPERIORCOURTOFMONTEREYCOUNTY

Filed 3/20/07

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

Petitioner Anthony Porter, the criminal defendant in the underlying prosecution for attempted murder and other felonies arising from a drive-by shooting, filed a petition for writ of mandate to compel respondent superior court to vacate its order denying petitioner's motion to dismiss this action on double jeopardy grounds and to enter a different order granting the motion or for a writ of mandate granting other appropriate relief. Petitioner Porter seeks to avoid further trial on the premeditation and gang enhancement allegations. We issued an order to show cause. The People, the real party in interest, filed a return.

The question before us is whether the prosecution may retry premeditation allegations and gang enhancement allegations on which the trial court granted a new trial after the jury had convicted petitioner as charged. Petitioner argues that double jeopardy bars further trial and Apprendi v. New Jersey (2000) 530 U.S. 466 [120 S.Ct. 2348] precludes trial on only discrete elements of greater offenses.

We take judicial notice of relevant court records. (Evid. Code,  452, subd. (d).) In the underlying case, the jury specifically found him guilty of two counts of attempted murder (counts one and two) (Pen. Code,  187, subd. (a), 664)[1] and it found that the attempted murders were willful, deliberate, and premeditated ( 664, subd. (a)), found petitioner had personally and intentionally discharged a firearm in the commission of those attempted murders ( 12022.53, subd. (c)), and found the gang enhancements true as to both counts ( 186.22, subd. (b)(1)). The jury also found petitioner guilty of shooting at an inhabited dwelling ( 246) (count three), two counts of assault with a semi-automatic firearm ( 245, subd. (b)) (counts four and five), carrying a loaded firearm while not the registered owner ( 12031, subd. (a)(2)(F)) (count six), and shooting from a motor vehicle at a person ( 12034, subd. (c)) (count seven). It found the gang enhancement ( 186.22, subd. (b)(1)) alleged as to each of these five offenses also to be true. In addition, the jury found true as to counts four and five that petitioner personally used a firearm ( 12022.5, subd. (a)).

After granting a new trial on the premeditation and gang enhancement allegations, the trial court announced that the People would be permitted to set a new trial date on those enhancements. It then sentenced petitioner and entered a judgment of conviction on the remaining guilty verdicts and true findings. Petitioner subsequently filed pleas of former judgment of conviction and once in jeopardy and sought to demur and asked the court to dismiss the action. The court rejected petitioner's arguments and agreed that a trial on the allegations should be set. This court stayed the criminal trial until further order of this court.

A. Federal Constitution's Double Jeopardy Clause

The People assert that the double jeopardy clause does not bar retrial of the premeditation and gang enhancement allegations because the trial court's grant of a new trial was not an implied acquittal and petitioner Porter waived any double jeopardy claim by requesting a new trial. As we will discuss, we agree that the trial court's order granting a new trial was not an implied acquittal. The People, however, address only one of the three protections encompassed by the double jeopardy clause.

The Fifth Amendment provides: "No person shall . . . be subject for the same offence to be twice put in jeopardy of life or limb . . . ." This protection is enforceable against the States through the Fourteenth Amendment. (Benton v. Maryland (1969) 395 U.S. 784, 794 [89 S.Ct. 2056].) The federal constitutional protection against double jeopardy "affords a defendant three basic 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." ' Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221, 2225, 53 L.Ed.2d 187 (1977), quoting North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969)." (Ohio v. Johnson (1984) 467 U.S. 493, 498 [104 S.Ct. 2536].)

1. Acquittal

A jury's verdict of acquittal, no matter how erroneous, is accorded absolute finality. (See Burks v. U.S. (1978) 437 U.S. 1, 16 [98 S.Ct. 2141]; see also Dowling v. U.S. (1990) 493 U.S. 342, 355 [110 S.Ct. 668]; Bullington v. Missouri (1981) 451 U.S. 430, 445 [101 S.Ct. 1852].) "[T]he law attaches particular significance to an acquittal. To permit a second trial after an acquittal, however mistaken the acquittal may have been, would present an unacceptably high risk that the Government, with its vastly superior resources, might wear down the defendant so that 'even though innocent, he may be found guilty.' Green, 355 U.S., at 188, 78 S.Ct., at 223." (U.S. v. Scott (1978) 437 U.S. 82, 91 [98 S.Ct. 2187].) "[A] verdict of acquittal, although not followed by any judgment, is a bar to a subsequent prosecution for the same offense. [Citations.]" (Ball v. U.S. (1896) 163 U.S. 662, 671 [16 S.Ct. 1192].) "[T]he Double Jeopardy Clause of the Fifth Amendment prohibits reexamination of a court-decreed acquittal to the same extent it prohibits reexamination of an acquittal by jury verdict. See Richardson v. United States, 468 U.S. 317, 325, n. 5, 104 S.Ct. 3081, 82 L.Ed.2d 242 (1984); Sanabria v. United States, 437 U.S. 54, 64, n. 18, 98 S.Ct. 2170, 57 L.Ed.2d 43 (1978); United States v. Martin Linen Supply Co., 430 U.S. 564, 573, 97 S.Ct. 1349, 51 L.Ed.2d 642 (1977); United States v. Sisson, 399 U.S. 267, 290, 90 S.Ct. 2117, 26 L.Ed.2d 608 (1970)." (Smith v. Massachusetts (2005) 543 U.S. at pp. 462, 467.)

Petitioner argues that the trial court's grant of his motion for a new trial was tantamount to an acquittal and the prohibition against double jeopardy absolutely bars further prosecution. We reach a contrary conclusion.

Under California law, a trial court reviewing a motion for a new trial is "guided by a presumption in favor of the correctness of the verdict and proceedings supporting it. (People v. Martin (1970) 2 Cal.3d 822, 832 . . . .)" (People v. Davis (1995) 10 Cal.4th 463, 524.) "The trial court 'should [not] disregard the verdict . . . but instead . . . should consider the proper weight to be accorded to the evidence and then decide whether or not, in its opinion, there is sufficient credible evidence to support the verdict.' (People v. Robarge (1953) 41 Cal.2d 628, 633 . . . .)" (Ibid.)

"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, supra, 128 Cal.App.3d at pp. 467-468.)" (People v. Lagunas (1994) 8 Cal.4th 1030, 1038, fn. 6.)

On the other hand, "[d]ouble 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 U.S. 40, 44 [67 L.Ed.2d 30, 34, 101 S.Ct. 970, 972]; People v. Trevino (1985) 39 Cal.3d 667, 694-695 [. . . ].) To determine whether substantial evidence supports a verdict, the court reviews 'the whole record in the light most favorable to the judgment' and decides 'whether it discloses substantial evidence . . . such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.' (People v. Johnson (1980) 26 Cal.3d 557, 578 . . . .)" (People v. Lagunas, supra, 8 Cal.4th at p. 1038, fn. 6.) "The 'substantial evidence' test is used . . . by trial courts when ruling on a section 1118.1 motion for judgment of acquittal. (See People v. Trevino, supra, 39 Cal.3d 667, 694-695.)" (Ibid.) "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. ( 1118.2.)" (People v. Veitch (1982) 128 Cal.App.3d 460, 466.)

In this case, the trial court expressed its understanding that, in ruling on a motion for a new trial, "[t]he trial judge must independently determine whether there is sufficient credible evidence to support the verdicts" and "[t]he trial judge does not review the jury's determination" but "instead weighs the evidence and exercises an independent judgment." The trial court's discussion of the evidence in ruling on the motion was consistent with an independent weighing of the evidence as prescribed by California law. (See People v. Davis, supra, 10 Cal.4th at p. 523 ["In reviewing a motion for a new trial, the trial court must weigh the evidence independently]".)

After finding sufficient credible evidence to prove attempted murder, the court stated: "It is a closer question in my mind as to whether or not there was sufficient, credible evidence of premeditation and deliberation to make these offenses attempted, willful, premeditated and deliberated murder." The trial court found that the evidence of petitioner's extreme intoxication indicated a lack of premeditation and deliberation. The court explained: "The strongest evidence in my mind of premeditation is the fact that the car either went up and down the street twice or three times, I think as described by one of the women on the porch. . . . And that certainly one could certainly draw the conclusion from that that the occupants of the car, Mr. Porter and Mr. Williams, were considering what they were doing and going to do in driving up and down the street. So I acknowledge that evidence. But on balance, given the really uncontroverted evidence of the defendant's extreme intoxication in the hours preceding the shooting, I cannot find that there was sufficient evidence that he had the ability to weigh the decision to kill or not kill the people on the porch, the two or three women who were on the porch. . . . [] Further, as I've said, even though the strongest evidence of the premeditation of the act was the driving back and forth, it is the evidence in the case that Mr. Porter was actually not the driver of the car. Mr. Williams was the driver of the car."

As to the gang enhancements, the trial court found that the evidence that the "Krazy Ass Pimps" (KAP) gang was an ongoing organization was "weak." The court found that Officer Sargent's testimony regarding the pattern of criminal gang activity was "not particularly strong." The court found it significant that no gang enhancements had been charged in regard to crimes committed by persons possibly members of KAP and the evidence appeared to her to be merely "[e]vidence of occasional crimes committed by the persons who could be defined as members . . . at least up until the year 2000." The court concluded that "the evidence of any cohesive gang activity after the year 2000 is lacking."

The court acknowledged that Probation Officer Kevin Christian had testified that "a Marina police officer told him a year and a half ago that Mr. Porter was jumped into KAP" but the court found his testimony to be "very, very vague." It found the evidence "weak" because Christian was not sure if the police officer he had named was actually present at the incident and Christian himself did not know details concerning the incident. The court acknowledged the evidence that petitioner had been friends with identified gang members when he was a young man, 14 and younger, but found "no evidence that he was ever involved with any of them in participating in any crime." The court further found no evidence that the shooting was committed at the direction of the KAP gang, no evidence that there was any plan to retaliate or any directions given to Mr. Porter or Mr. Williams to commit a shooting in retaliation, no evidence the offense was in association with a gang, and no evidence that Mr. Porter or Mr. Williams was of a member of the KAP gang. In addition, the court stated that there was "no credible evidence that the shooting would have benefitted . . . the KAP gang" since "neither Mr. Williams nor Mr. Porter would be identified by members of the community as a member of KAP." The court noted the stipulation, that the shooting of Albert Johnson, whose funeral preceded the shooting, could not be shown to be gang related, "very much weakened the notion that the shooting at DeShawn Lee's house was in retaliation for a gang offense." For the same reasons, the trial court did not find "any sufficient evidence" to establish that "the crimes were committed with the specific intent to promote, further or assist in any criminal conduct by gang members."

After the trial court's ruling on the motion for a new trial, the prosecution, in order to clarify the record, brought up the trial evidence that petitioner had been wearing a particular shirt and the expert's testimony that the shirt indicated gang membership. The court responded: "[T]hat brings up an issue . . . I overlooked addressing was the T-shirt. Because the Court certainly did weigh that evidence in reaching its conclusion. And there was a lot of evidence and a lot of testimony regarding this T-shirt. In my mind, in weighing this evidence, the strongest evidence was that put forward by the young women who had created the T-shirt and who testified that they created a T-shirt as a memorial to Mr. Johnson and something for his friends to wear at the funeral. So that explanation was credible to me, that it was a shirt prepared just for this funeral, to be worn by friends of Mr. Johnson. Not a shirt prepared as gang clothing or worn as gang clothing."

Even though the trial court in the present case discussed the various evidentiary deficiencies it perceived, the record does not establish that the court was applying the substantial evidence test or ruling that the evidence was insufficient as a matter of law. In the context of the evidence at trial and the court's apparent application of the appropriate standard in ruling on defendant's motion for a new trial, we cannot reasonably infer that the court's "no evidence" observations were an implied acquittal.[2]

Petitioner is correct that where a trial judge expressly grants a new trial because the state failed to prove its case as a matter of law, federal double jeopardy protection bars a second prosecution because such a ruling is the equivalent of an acquittal. (Hudson v. Louisiana (1981) 450 U.S. 40, 44-45 [101 S.Ct. 970]; see Richardson v. U.S., supra, 468 U.S. at p. 326, fn. 5.) But this case is unlike the situation in Hudson v. Louisiana, supra, 450 U.S. 40 where the defendant moved for a new trial based upon insufficiency of the evidence as a matter of law and the trial judge explicitly granted the motion on that ground. (Id. at pp. 43-44.) In Hudson, the U.S. Supreme Court noted that a motion for a new trial was the only means of challenging the legal sufficiency of the evidence under Louisiana law. (Id. at p. 41.) In contrast, as previously mentioned, California law has a different statutory mechanism that allows trial courts to acquit for legal insufficiency of the evidence.[3] (See  1118 [at the close of the prosecution's evidence in a court trial], 1118.1 [before the case is submitted to the jury in a jury trial]; 1118.2.) "A court reviewing the verdict under section 1181 [motion for new trial] has no authority to acquit the defendant expressly, impliedly or inadvertently." (People v. Serrato (1973) 9 Cal.3d 753, 762.)

The "policies [behind double jeopardy protection] do not have the same force when a judge disagrees with a jury's resolution of conflicting evidence and concludes that a guilty verdict is against the weight of the evidence. See Hudson v. Louisiana, 450 U.S. 40, 44-45, n. 5, 101 S.Ct. 970, 972-973, n. 5, 67 L.Ed.2d 30 (1981)." (Tibbs v. Florida (1982) 457 U.S. 31, 42 [102 S.Ct. 2211].) The United States Supreme Court observed in Hudson: "Whether a state trial judge in a jury trial may assess evidence as a '13th juror' is a question of state law. [Citations.] . . . Burks precludes retrial where the State has failed as a matter of law to prove its case despite a fair opportunity to do so. [Citation.] By definition, a new trial ordered by a trial judge acting as a '13th juror' is not such a case." (Hudson v. Louisiana, supra, 450 U.S. at p. 44, fn. 5; see Tibbs v. Florida, supra, 457 U.S. at p. 42 ["an appellate court's disagreement with the jurors' weighing of the evidence does not require the special deference accorded verdicts of acquittal"].)

A trial court's order granting a motion for a new trial should not be construed as an acquittal unless the record unmistakably indicates the trial court applied the substantial evidence test and concluded that no reasonable trier of fact could find guilt beyond a reasonable doubt. (Cf. People v. Hatch (2000) 22 Cal.4th 260, [a dismissal pursuant to section 1385 was not an implied acquittal absent an affirmative showing in the record that trial court had applied substantial evidence test].) There has been no such affirmative showing in this case.

TO BE CONTINUED AS PART II..

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[1] All further statutory references are to the Penal Code unless otherwise stated.

[2] We take judicial notice that there was testimony at trial indicating that the KAP gang had continued to associate as a criminal street gang since its formation in 1997, petitioner was a member of the gang, a gang may retaliate in response to the shooting of a member whether or not the shooter was a member of a rival gang, and retaliation would enhance the gang's reputation that "this gang is not to be targeted or messed with," and, in the opinion of an expert, the shootings in this case were retaliatory and were committed for the benefit of the KAP gang by a gang member. (Evid. Code, 452, subd. (d).) Furthermore, the enhancement under section 186.22, subdivision (b)(1), applies to "any person" who commits a felony as specified and does not require current or active gang membership. (See In re Ramon T. (1997) 57 Cal.App.4th 201, 206-207.) The specific intent requirement in section 186.22, subdivision (b)(1) may be satisfied by a showing that the shooting was intended as a "retaliatory strike" to avenge the shooting of gang member. (See People v. Gamez (1991) 235 Cal.App.3d 957, 978 [expert evidence regarding gang culture], disapproved on another point in People v. Gardeley (1996) 14 Cal.4th 605, 624, fn. 10; see also People v. Ortiz (1997) 57 Cal.App.4th 480, 484, fn. 3 [expert testimony that the crime was committed for the benefit of a gang as "pay back" against another gang].)

[3] We take judicial notice that petitioner apparently did bring an unsuccessful motion for a judgment of acquittal before this case was submitted to the jury for decision. (Evid. Code,  452, subd. (d).) We agree that the court's denial of a previous motion to acquit does not control whether the court's ruling on the motion for a new trial was tantamount to an implied acquittal (see People v. Trevino, supra, 39 Cal.3d 667 ["inherent contradiction" between denial of motion for an acquittal and a grant of motion for a new trial based on the insufficiency of the evidence as a matter of law did not prevent application of double jeopardy bar]) and the trial judge's belief that there will be a new trial is not conclusive on the issue of double jeopardy (see U.S. v. Scott (1978) 437 U.S. 82, 92 [98 S.Ct. 2187]). Nevertheless, the trial court's denial of petitioner's motion for an acquittal is consistent with our conclusion that the trial court in ruling on the motion for a new trial was not applying the substantial evidence test.