(Super. Ct. No. KA095567) (Los Angeles County) Tia Fisher, Judge Superior Court County of Los Angeles
The opinion of the court was delivered by: Yegan, J.
CERTIFIED FOR PUBLICATION
The grant of a defendant's motion to dismiss on double jeopardy principles terminates the People's case. After the grant of a new trial, there is simply no authority upon which such motion can be made or granted. Had it been made after a formal plea of "once in jeopardy" had been entered and as contemplated by Penal Code section 1016, subdivision 5,*fn1 the People would have presumably filed written opposition. Any trial court contemplating terminating the People's case should welcome the opportunity to pause and reflect before making an informed ruling.
The People appeal from the trial court's order granting a new trial on the charge of attempting to dissuade a witness as alleged in count 7. (Pen. Code, § 136.1, subd. (a)(2).) They also appeal from the trial court's subsequent order dismissing this charge and the accompanying "on bail" enhancement. (§ 12022.1.)*fn2 The dismissal was predicated on the theory that retrial is barred by double jeopardy principles.
A jury acquitted respondent on counts 1, 2, 3, and 6. It returned guilty verdicts on counts 7 and 8. It was unable to reach a verdict on count 4, which was dismissed. For the misdemeanor offense of willful disobedience of a court order (count 8), respondent was sentenced to 241 days in county jail. He was given credit for 241 days of presentence confinement.
For the charge of attempting to dissuade a witness count 7), the trial court granted a new trial on the ground that the verdict was contrary to the evidence. (§ 1181, subd. 6.) We affirm this order but reverse the trial court's subsequent order dismissing count 7 because it was based on an erroneous application of double jeopardy principles.
Facts and Procedural History
Respondent, a practicing attorney, was Sirena Zavala's boyfriend. They lived in Zavala's house. On September 16, 2011, Deputy Aaron Scheller interviewed Sirena Zavala. Zavala stated as follows: During an argument with respondent the previous day, she asked him to move out. Respondent grabbed Zavala by the throat and started choking her. Zavala said that she would stay with respondent, and he "let go." Zavala walked into the bedroom and sat on the bed. She was crying. Respondent asked her "if they were okay." Zavala responded that "they were not okay." Respondent "pulled her head out of her elbows where she was crying and brandished a silver handgun revolver in his right hand." Respondent said, "I told you if you were ever going to leave me, I will shoot you and shoot myself." Respondent inserted a single bullet into the revolver's cylinder. He cocked the revolver and put the muzzle against his temple. Zavala pleaded with him not to fire the weapon. Respondent repeatedly pointed the revolver at her and then at himself. When respondent pointed the gun at Zavala, it was only inches from her head. Respondent fired the revolver. The bullet struck the bed's headboard and mattress. Zavala said that she was not going to leave respondent, and he put the weapon down. Zavala walked out of the bedroom and told respondent that she was going to take a break. Respondent replied, "[Y]ou're not going anywhere." Zavala felt "an object hit her in the buttocks." Respondent had thrown a candle at her. Respondent grabbed her by the shoulders, pulled her back into the bedroom, and threw her onto the bed. For several minutes, he hit her with his fists in the face, body, arms, and legs. Respondent stopped hitting her when she said that her children were going to be home soon from school.
Respondent's Porsche was parked at Zavala's house. Deputy Scheller searched the vehicle and found a revolver that was registered to respondent. The revolver's cylinder contained one expended cartridge and no live rounds.
Under Zavala's bed, Deputy Scheller found a bullet fragment. There was a bullet hole in a bed sheet. Zavala gave Scheller a bullet fragment that she had found underneath the hole in the sheet. Scheller saw "an impact mark on the wood of the headboard."
A felony complaint was filed against respondent. On September 20, 2011, he was arraigned on the complaint. The court issued a restraining order requiring him to not have any contact with Zavala. A preliminary hearing was set for October 26, 2011.
Deputy Greg Salcido was assigned to investigate the case. On September 21, 2011, he met Zavala at her house, but she refused to talk to him. Thereafter, Deputy Salcido went to Zavala's house four or five times to serve her with a subpoena for the preliminary hearing, but he was unable to locate her. Zavala saw Salcido come to her house, but she did not open the door. Zavala did not want to be served with a subpoena.
Between September 25 and 29, 2011, while Salcido was trying to find Zavala, respondent and Zavala stayed in the same room at a hotel. Respondent signed the hotel receipt and paid for the room with his law office's credit card. Zavala testified that it was her idea to stay at the hotel. She explained that respondent had told her that "he couldn't see [her] because of the restraining order." Zavala had responded, " 'We'll stay at a hotel and nobody will know.' " However, Zavala later testified that she "had [respondent] help [her] not be found [by law enforcement] by staying at a hotel with him."
At trial, Zavala testified that she and respondent had a verbal argument that did not become violent. Respondent did not touch any part of her body. After the argument ended, she was in the kitchen when she heard a gunshot inside her bedroom. She went into the bedroom and saw respondent "kind of like in shock holding the gun." Respondent said, "I'm sorry, you're going to be pissed off. I just totally ruined your ...