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Porter v. Superior Court of Monterey County

July 23, 2009


Ct.App. 6 H029884 Monterey County Super. Ct. No. SS042332A. Judge: Russell D. Scott.

The opinion of the court was delivered by: Corrigan, J.

(this opn. follows companion case, S152695, filed same date)

This is a companion case to People v. Anderson (July 23, 2009, S152695) __ Cal.4th __ (Anderson), also filed today. In Anderson, we held that retrial of a penalty allegation on which a jury has deadlocked is not barred by constitutional double jeopardy principles or by Penal Code section 1023.*fn1 We also concluded that retrial may be limited to the deadlocked allegation alone and need not encompass the underlying offense.

Petitioner here raises the same arguments we addressed in Anderson but in a different procedural context. A jury convicted petitioner of all substantive offenses and found all attached penalty allegations and enhancements to be true. The trial court granted a new trial on some of these penalty factors. Sitting, in effect, as a "13th juror," the court concluded the allegations had not been proven beyond a reasonable doubt. (§ 1181, subd. 6 (hereafter section 1181(6)).) Petitioner then objected that a second trial on the sentencing allegations would violate double jeopardy. The trial court rejected that argument, but the Court of Appeal disagreed. Relying on language in Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi) requiring that certain sentencing factors be treated as the "functional equivalent" of elements of greater offenses, as compared with the underlying offense alone, the Court of Appeal concluded retrial of the penalty allegations would violate the double jeopardy clause and section 1023. Accordingly, that court issued a peremptory writ of mandate directing the trial court to dismiss the allegations. We reverse.


Based on his participation in a drive-by shooting, petitioner Anthony Porter was indicted on two counts of attempted murder, two counts of assault with a semiautomatic firearm, shooting at an inhabited dwelling, shooting from a motor vehicle, and carrying a loaded firearm registered to a different owner.*fn2 The indictment alleged that the attempted murders were committed willfully, deliberately, and with premeditation (§ 664, subd. (a)), and that all of the offenses were committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)). Enhancements to the attempted murder and assault charges were alleged for personal use of a firearm (§§ 12022.5, subd. (a), 12022.53, subd. (c)). The jury convicted on all counts and found all the allegations true.

Petitioner sought a new trial under section 1181(6), arguing there was insufficient evidence to prove he acted with premeditation and deliberation, with intent to kill, or for the benefit of a street gang. The trial court rejected the argument relating to intent, observing, "It's impossible to summon up what the intent could have been under these circumstances if not the intent to kill...." However, the court found it "a closer question" whether sufficient, credible evidence supported the finding of premeditation and deliberation. It conceded that some evidence supported premeditation, including testimony that petitioner's car drove past the victims two or three times before petitioner opened fire. But, "on balance, given the really uncontroverted evidence of [petitioner's] extreme intoxication in the hours preceding the shooting," the court did not believe petitioner acted with the more exacting mental state. The court also found the evidence of gang involvement to be weak. In the court's view, scant evidence showed the "Krazy Ass Pimps" gang was still in existence at the time of the shooting. The court characterized the testimony identifying petitioner as a member of this gang as "very, very vague." Accordingly, the court granted a new trial on the gang enhancements and the allegation of premeditation and deliberation.

After announcing this ruling, the trial court proceeded to sentencing. The court remarked that the People could request a date for a new trial on the premeditation allegation and gang enhancements, and if a jury later found them to be true petitioner could be resentenced. Petitioner's counsel agreed to this proposal. The court then imposed a total imprisonment of 25 years.

Several months later, petitioner filed a demurrer, along with a motion to dismiss, and entered pleas of former judgment and once in jeopardy (§ 1016, subds. 4, 5) with respect to the premeditation and gang allegations. Reasoning that these sentencing factors were elements of greater offenses under Apprendi, as construed by this court in People v. Seel (2004) 34 Cal.4th 535 (Seel), petitioner argued the court lacked the power to grant a section 1181 motion as to an element alone and could not limit retrial to an element of an offense. Petitioner argued that, to grant relief under section 1181, the trial court either had to "reduce the verdict to a lesser included offense or order a new trial of the principal offense." In addition, based on the court's comments at the section 1181 hearing that "no" evidence supported the allegations, petitioner asserted that the court found the evidence legally insufficient to support the jury's verdicts, such that double jeopardy barred retrial. (See Burks v. United States (1978) 437 U.S. 1.) The trial court rejected these arguments. Retrial of the sentencing allegations was stayed, however, when petitioner sought a writ of mandate.

In the Court of Appeal, petitioner renewed his arguments that double jeopardy barred further trial on the penalty allegations and that Apprendi, supra, 530 U.S. 466, precluded trial of the allegations alone because they constituted discrete elements of greater offenses. The Court of Appeal determined the granting of a new trial could not be construed as an implied acquittal of the sentencing allegations but agreed that Apprendi rendered the allegations the equivalent of elements of greater offenses. It remained skeptical whether a defendant who creates the need for a second trial by bringing a motion seeking precisely this relief can then claim double jeopardy. The court observed, "Retrial of a greater offense after a defendant has successfully brought a statutory new trial motion is not the type of governmental oppression or prosecutorial overreaching targeted by the double jeopardy clause." The court ultimately did not resolve the federal double jeopardy question because it concluded retrial of the allegations was barred by section 1023 and our holding in People v. Fields (1996) 13 Cal.4th 289 (Fields). Based on its view that sentencing allegations are elements of an offense under Apprendi, it concluded that retrial of the allegations alone would be no different from having piecemeal jury trials of discrete elements of an offense, a prospect at odds with the Sixth Amendment's jury trial guarantee.

The Court of Appeal directed the trial court to dismiss the premeditation and gang enhancement allegations. We granted review to decide whether double jeopardy principles permit retrial of a penalty allegation after the jury's verdict is found "contrary to... evidence" under section 1181(6).


I. Order Granting New Trial Is Not Equivalent to an Acquittal

In the trial court, a defendant may attack the evidence against him in two ways. A motion under section 1118.1 seeks a judgment of acquittal for insufficient evidence. It may be made at the close of the prosecution's case or at the close of the defense evidence, before the case is presented to a jury. (§ 1118.1.) A motion under section 1181(6) seeks a new trial because the verdict is "contrary to law or evidence." The court performs significantly different tasks under these two provisions.

In ruling on an 1118.1 motion for judgment of acquittal, the court evaluates the evidence in the light most favorable to the prosecution. If there is any substantial evidence, including all inferences reasonably drawn from the evidence, to support the elements of the offense, the court must deny the motion. (People v. Mendoza (2000) 24 Cal.4th 130, 175; see also People v. Harris (2008) 43 Cal.4th 1269, 1286.) In considering this legal question, "a court does not ` "ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt." [Citation.] Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' [Citation.]" (People v. Lagunas (1994) 8 Cal.4th 1030, 1038, fn. 6 (Lagunas).) This test is the same as that used by appellate courts in deciding whether evidence is legally sufficient to sustain a verdict. (Ibid.; see also People v. Harris, at p. 1286.) The grant of a judgment of acquittal under section 1118.1 bars "any other prosecution for the same offense." (§ 1118.2.) Because the prosecution had a full opportunity to prove the facts necessary for a conviction but failed to do so, double jeopardy bars a second bite at the apple. (Hudson v. Louisiana (1981) 450 U.S. 40, 43-44; Burks v. United States, supra, 437 U.S. at pp. 16-18.)*fn3

A grant under section 1181(6) is different. The court extends no evidentiary deference in ruling on an 1181(6) motion for new trial. Instead, it independently examines all the evidence to determine whether it is sufficient to prove each required element beyond a reasonable doubt to the judge, who sits, in effect, as a "13th juror." (Lagunas, supra, 8 Cal.4th at p. 1038 & fn. 6; see also People v. Davis (1995) 10 Cal.4th 463, 523-524; People v. Serrato (1973) 9 Cal.3d 753, 761 (Serrato), overruled on another ground in People v. Fosselman (1983) 33 Cal.3d 572, 583, fn. 1.) If the court is not convinced that the charges have been proven beyond a reasonable doubt, it may rule that the jury's verdict is "contrary to the... evidence." (§ 1181(6); see People v. Veitch (1982) 128 Cal.App.3d 460, 467-468.) In doing so, the judge acts as a 13th juror who is a "holdout" for acquittal. Thus, the grant of a section 1181(6) motion is the equivalent of a mistrial caused by a hung jury. (Veitch v. Superior Court (1979) 89 Cal.App.3d 722, 727.) We have repeatedly held that an order granting a new trial under section 1181(6) is not an acquittal and does not bar retrial on double jeopardy grounds. (Lagunas, supra, 8 Cal.4th at pp. 1038-1039; Serrato, supra, 9 Cal.3d at p. 761.)

Significantly, a court has no authority to grant an acquittal in connection with an 1181 motion. (Serrato, supra, 9 Cal.3d at p. 762.) "[A] trial court considering a section 1181 motion to modify a verdict on the ground that it is contrary to the evidence is limited to the three options specified in the statute: (1) It can set aside the verdict of conviction and grant the defendant a new trial; (2) it can deny the motion and enter judgment on the verdict reached by the jury; or (3) it can modify the verdict either to a lesser degree of the crime reflected in the jury verdict or to a lesser included offense of that crime as specified by [section 1181(6)]." (Lagunas, supra, 8 Cal.4th at p. 1039, italics omitted.) Whereas a jury must acquit if it finds the evidence insufficient, a trial court ruling on an 1181 motion may only grant the defendant a new trial if it is not convinced of guilt beyond a reasonable doubt. (Serrato, at p. 762.) This rule permits trial court oversight of the verdict but ensures that the People, like the defendant, have the charges resolved by a jury.

The trial court here chose the first of the Lagunas options and set the allegations for a new trial. However, this ruling cannot be construed as an express or implied acquittal triggering constitutional double jeopardy protections. (Lagunas, supra, 8 ...

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