(Super. Ct. No. 08F09616) APPEAL from a judgment of the Superior Court of Sacramento County, Kevin R. Culhane, Judge.
The opinion of the court was delivered by: Duarte , J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
This appeal arises after a two-jury trial of Gene Whitaker, Jr., his son, Gene Whitaker, III, and Dewayne Presley.*fn2
Presley and Whitaker III beat and tried to shoot Melvin Weathers at the behest of Whitaker, in retaliation for a prior incident in which Weathers had broken Whitaker's jaw. Presley and Whitaker III, and a broken rifle, were found near the scene. Whitaker's sister, Beverly Robinson, reported that Whitaker had "hyped" up the other defendants into attacking Weathers. Each defendant was a member of the East Side Piru gang. Each defendant was convicted of attempted premeditated murder and other charges, and each received a life sentence.
After the first jury was selected, the trial court delayed swearing in the jury, pending resolution of prosecution witness problems. When those problems were resolved adversely to the People, they moved to dismiss the case for lack of evidence. The trial court granted the motion, and the People later refiled the charges. Defendants then moved to dismiss the refiled charges, contending that allowing the People to refile the charges improperly thwarted double jeopardy protections, and violated due process principles. The trial court denied the defendants' motions, and the jury trial ensued.
In the published portion of this opinion (Part I), we first describe the events leading to the dismissal of defendant's first case. Then, as we explain, we assume the trial court erred in finding good cause to delay swearing in the first jury, but conclude that this error does not require reversal of the convictions arising from the jury verdicts, because defendants have not suffered a double jeopardy or due process violation.
In the unpublished portion of this opinion (Part II), we describe the facts relevant to the jury trial from which defendants' appeals were taken, and reject all other contentions raised. However, we have discovered an error in the abstracts of judgment that must be corrected as to each defendant. Accordingly, we shall affirm the judgments and direct the trial court to prepare corrected abstracts of judgment.
Double Jeopardy and Due Process
Defendants initially were charged in case No. 07F19992.
November 6, 2008, was the last day to bring the case to trial, because none of the defendants had waived time. (See Pen. Code, §1382.)*fn3 The People announced "ready" for trial, and the case was assigned to the first trial court.
When the trial court asked if the People had any matters to be heard, the People replied that they wanted the trial deemed "commenced" to avoid a speedy trial dismissal, and the parties agreed the trial had indeed commenced.*fn4 Later, the People conceded that Weathers had not been subpoenaed, but stated they would seek to have Weathers's prior testimony admitted. The trial court lifted the stay of a bench warrant for Robinson, who had been subpoenaed and failed to appear.
On November 12, the People moved in limine to introduce the preliminary hearing testimony of Weathers and Robinson, and the defense sought discovery of efforts made to locate them. The prior testimony could be admitted if and only the People showed those witnesses were "unavailable[,]" which turned on whether the People "exercised reasonable diligence" to ensure their appearance. (Evid. Code, §§ 240, subd. (a)(5), 1291, subd. (a)(2); see People v. Bunyard (2009) 45 Cal.4th 836, 849.)
On Thursday, November 13, the People stated a diligence report would be ready the next court day, Monday, but the defense objected and sought a "live" hearing on diligence. The trial court directed the clerk to have a panel of jurors available on Monday morning.
On Monday, November 17, after the People filed a fourth amended information, the trial court asked if there was "any matter" to address before jury selection, the People said there was not, and jury selection began. Later, defense counsel acknowledged receipt of discovery on diligence.
On Wednesday, November 19, the People presented to the court a deputy's testimony about efforts to find Robinson. Without objection, the trial court continued the diligence hearing to "the most convenient opportunity that we have after we either select the jury or during jury selection[.]" Jury selection continued that day.
On Thursday, November 20, the jurors and alternates were selected but not sworn. The People announced they had additional witnesses to present regarding diligence, and defense counsel referred to an earlier objection to the court's failure to swear the jury. The People's witnesses testified about efforts to locate Robinson and Weathers, and the trial court heard argument on the People's motion.
On Friday, November 21, after the People recalled one witness, the trial court found the People had not shown adequate diligence with respect to either Weathers or Robinson, and denied the People's motion to allow the witnesses' prior testimony to be introduced at trial.
On Monday, November 24, the People moved to dismiss the case for insufficiency of the evidence, in light of the trial court's evidentiary ruling. (See § 1385.)*fn5 One defense counsel objected that the dismissal should be with prejudice, alleging the People were "Judge shopping." Another defense counsel stated: "We objected to the lack of swearing in of the jurors . . . prior to the selection of the alternates, and we continue to believe that jeopardy should have attached last week[.]"
The trial court stated it had found "good cause not to swear the jury upon their selection, nor the alternates. [¶] The Court was well aware, as were all counsel, that the People were attempting in various ways to secure the presence of the victim, Lamont Weathers and . . . witness Beverly Robinson. [¶] We had not yet concluded the diligence hearing, so there was no firm evidence of what efforts had been discharged by the People in that regard. [¶] So the Court, with that scenario, found there was sufficient cause not to swear the jury." The trial court also stated it had been "anticipating" that the People might not show due diligence.
The trial court granted the motion to dismiss, and later thanked and excused the jurors.
The People refiled the charges on November 26; a second trial court presided over the refiled case.
Each defendant entered a plea of once in jeopardy, moved to dismiss raising due process and double jeopardy grounds, and later raised those issues in their new trial motions. The defense argued the first trial court should not have delayed swearing the jury to allow the People "time to fix the problems in their case" and then allow them to dismiss and refile after they failed to fix those problems. Instead of seeking a continuance before jury selection began (see fn. 3, ante), when the People "declared ready, for all purposes, [they took] the risk that [they] would not be able to get [their] witnesses." As a result, defendants were subjected to increased incarceration and lost the opportunity to have that first jury "decide their fate with the evidence that was available to the People at the time, which . . . they admit was absolutely nothing."
The People's consistent response was that jeopardy had not attached, and that the first trial court "knew exactly what he was doing in not swearing [in] the jury. He was taking things in a certain order, well within [his] rights."
The second trial court denied the various defense motions, finding that jeopardy had never attached.*fn6
Before analyzing the specific defense contentions, we first review some general rules about double jeopardy.
"The Fifth Amendment to the United States Constitution, which applies to the states through the Fourteenth Amendment [citation]), protects defendants from repeated prosecution for the same offense [citations], by providing that no person shall 'be subject for the same offense to be twice put in jeopardy of life or limb. . . .'" (People v. Batts (2003) 30 Cal.4th 660, 678 (Batts).) The California Constitution contains a similar provision. (Cal. Const., art. I, § 15 ["Persons may not twice be put in jeopardy for the same offense"].)
In Downum v. United States (1963) 372 U.S. 734 [10 L.Ed.2d 100] (Downum), the parties "announced ready" but, after the jury was sworn, the prosecutor asked for it to be discharged because a witness could not be found. The trial court discharged the jury, and later overruled a plea of former jeopardy. (Downum, supra, 372 U.S. at p. 735 [10 L.Ed.2d at p. 102].) In reversing the judgment, Downum endorsed a Ninth Circuit case on similar facts, holding "'The fact is that, when the district attorney impaneled the jury without first ascertaining whether or not his witnesses were present, he took a chance. . . . The situation presented is simply one where the district attorney entered upon the trial of the case without sufficient evidence to convict.'" (Id. at p. 737 [10 L.Ed.2d at p. 102], quoting Cornero v. United States (9th Cir. 1931) 48 F.2d 69, 71.)
Downum has been characterized as involving "a particularly unpardonable fault of the prosecutor--unpreparedness." (Schulhofer, Jeopardy and Mistrials (1977) 125 U.Pa.L.Rev. 449, 466.) A later high court case described Downum as involving "a defective procedure that would lend itself to prosecutorial manipulation" and where the procedure "operated as a post-jeopardy continuance to allow the prosecution an opportunity to strengthen its case." (Illinois v. Somerville (1973) 410 U.S. 458, 464, 469 [35 L.Ed.2d 425, 431, 434].)
Thus, it is clear that had the jury been sworn, the People would not have been able to legally refile the charges after successfully moving to dismiss them, because double jeopardy principles prevent "a prosecutor or judge from subjecting a defendant to a second prosecution by discontinuing the trial when it appears that the jury might not convict." (Green v. United States (1957) 355 U.S. 184, 188 [2 L.Ed.2d 199, 204-205] (Green); see State v. Stani (N.J. App. Div. 1984) 197 N.J. Super. 146, 151 [484 A.2d 341, 343] ["the State may not retreat from the field when its case turns sour and then be permitted to sally forth on a future day before a new jury when its case is refreshed and reinforced"].)*fn7
We now address defendants' specific claims of error.
We accept, for purposes of argument, defendants' view that the first trial court abused its discretion by delaying swearing the jury for reasons extrinsic to jury selection.
By statute, after all parties have exercised or passed exercising peremptory challenges, "the jury shall then be sworn, unless the court, for good cause, shall otherwise order." (Code Civ. Proc., § 231, subds. (d) & (e).) The trial court's discretion to find such good cause "will not be set aside absent a clear showing of abuse." (People v. Niles (1991) 233 Cal.App.3d 315, 320-321 (Niles) [construing former § 1088] .) Further, the trial court has the inherent discretionary power "To provide for the orderly conduct of proceedings before it[.]" (Code Civ. Proc., § 128, subd. (a)(3); see People v. Alvarez (1996) 14 Cal.4th 155, 209.)
But discretion is always delimited by applicable legal standards, a departure from which constitutes an "abuse" of discretion. (City of Sacramento v. Drew (1989) 207 Cal.App.3d 1287, 1297-1298; see County of Yolo v. Garcia (1993) 20 Cal.App.4th 1771, 1778 ["the range of judicial discretion is determined by analogy to the rules contained in the general law and in the specific body or system of law in which the discretionary authority is granted"].)
Certainly a problem regarding jury selection would provide good cause to delay swearing a jury. (See People v. DeFrance (2008) 167 Cal.App.4th 486, 503-504 (DeFrance) ["There was a real, substantive and objective need to reopen jury selection"]; Niles, supra, 233 Cal.App.3d at pp. 320-321 [no abuse of discretion in denying request to reopen to allow peremptory challenge, because the facts about the seated juror had been known before]; People v. Griffin (2004) 33 Cal.4th 536, 564-567 (Griffin); accord, In re Mendes (1979) 23 Cal.3d 847, 851 (Mendes) [after jury proper--but no alternates--sworn, juror excused after she advised that her brother died during the night, and the parties were permitted to select another juror].)
But here, the sole reason for not swearing the jury was to avoid the rule of Downum, supra, 372 U.S. 734 [10 L.Ed.2d 100], because the first trial court anticipated it might rule against the People on their evidentiary motion.
The People provide no authority upholding delay in swearing a jury for reasons unrelated to jury selection.
Generally, a trial court abuses its discretion by basing a discretionary decision on improper factors. (See, e.g., People v. Sandoval (2007) 41 Cal.4th 825, 847; People v. Carmony (2004) 33 Cal.4th 367, 378.) Accordingly, we shall assume for purposes of argument that the first trial court abused its discretion by basing its decision on a factor unrelated to jury selection.
Assuming the first trial court erred by not timely swearing the jury, the result did not violate double jeopardy as such.
The United States and California high courts apply a bright-line rule: In a jury trial, jeopardy attaches when the jury is sworn. (Crist v. Bretz (1978) 437 U.S. 28, 37-38 [57 L.Ed.2d 24, 32-33] (Crist); People v. Riggs (2008) 44 Cal.4th 248, 278, fn. 12 ["once a jury has been sworn, jeopardy has attached" for state and federal double jeopardy] (Riggs); Curry v. Superior Court (1970) 2 Cal.3d 707, 712 (Curry).)*fn8
Accordingly, the second trial court correctly concluded it was bound to overrule the pleas of former jeopardy, and deny the dismissal and new trial motions to the extent they were based solely on double jeopardy claims. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 (Auto Equity Sales).)
Defendants invite us to "fix jeopardy at the point where the jurors are indeed chosen, viewing the oath as an administrative technicality that has no bearing on the question of jeopardy, except, perhaps, where good cause [to delay swearing the jury] has actually been established and proved." They correctly contend that California courts may invoke independent state grounds to interpret the California Constitution's double jeopardy provision more broadly than the analogous federal provision. (See, e.g., People v. Hanson (2000) 23 Cal.4th 355; People v. Fields (1996) 13 Cal.4th 289, 297-298, 302 (Fields).)
However, our Supreme Court precedent fixes the point of attachment of jeopardy in a jury trial as the time when the jury is sworn, not the point it should have been sworn. (Riggs, supra, 44 Cal.4th at p. 278, fn. 12; Curry, supra, 2 Cal.3d at p. 712.) We are not free to change that rule. (See Auto Equity Sales, supra, 57 Cal.2d at p. 455.)
However, these conclusions about double jeopardy, in and of themselves, do not necessarily resolve ...