Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County. No. FBA009537 Thomas D. Glasser, Judge.
John L. Dodd, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Steve Oetting and Theodore M. Cropley, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
HOLLENHORST J.
I. INTRODUCTION
Defendant Deon Detes Abrams appeals from his conviction of possession of cocaine base (Health & Saf. Code, § 11350, subd. (a)—a lesser offense in count 1) and maintaining a place for selling or using controlled substances (Health & Saf. Code, § 11366—count 2) and the finding that he had suffered two prior strike convictions. Defendant contends the trial court erred in admitting the testimony of a prosecutor that defendant’s spouse had recanted her allegations in a former case in which defendant had been accused of spousal battery. Defendant also contends the trial court erred in denying a motion to reveal the identity of a confidential informant, to hold an in camera hearing on the issue, or to dismiss the affected count. Finally, defendant contends the trial court erred by rejecting defendant’s plea of once in jeopardy without submitting the disputed questions to the jury. We find no error, and we affirm.
II. FACTS AND PROCEDURAL BACKGROUND
A. Prosecution Evidence
On April 21, 2006, police officers, under the supervision of Detective Joseph Silva, executed a search warrant at defendant’s house in Barstow. Defendant and his wife Theresa were sleeping when the officers arrived. Officer Frank Espinoza found a plastic bag containing 14 white rocks inside a purple pouch, which was inside a black glass jar on the nightstand next to defendant’s bed. The rocks were in individual heat-sealed plastic bags. A criminalist tested two of the rocks; the tests were positive for rock cocaine. The gross weight of the 14 rocks was 4.58 grams, including packaging. The officers found marijuana in a locked metal box in the garage. The officers did not find in the house or garage any pipes or paraphernalia for using cocaine.
The room was a former living room that had been converted into a master bedroom.
Detective Silva testified he took a photograph of “[a] purple bag, change, dollar bills, the rock cocaine, [and] the black glass jar” lying on a mattress. Detective Silva testified Officer Espinoza had placed the items on the mattress. The jar had also contained a white rectangular object like a small envelope; Detective Silva had not looked inside the envelope. Detective Silva collected the rock cocaine and money and left the other items at the scene.
Officer Espinoza testified as an expert witness on drug sales. In his opinion, the cocaine was possessed for sales because of the quantity, the size of the rocks, and the absence of paraphernalia for consuming the cocaine.
Corey Riley, known as “Country,” and his uncle, Ronald Swan, lived in defendant’s garage, and Riley frequently visited in defendant’s house. Riley admitted having been a cocaine addict at the time of the search, and he, Swan, and Swan’s girlfriend sometimes used cocaine in the garage.
Riley testified at trial that on the evening of April 20, he had gone back and forth between the garage and defendant’s house, and Swan had been in the house as well. Abrams and his family had left the house at 7:00 to 8:00 p.m., and Riley understood he then had the house to himself. Riley testified that he retrieved a black canister from the garage; the canister contained 14 rocks of cocaine, pipes, rolling papers, and about $60. Riley watched a DVD in the living room while using cocaine, marijuana, and alcohol, and Swan had also used drugs with him that evening. Riley testified that he passed out under the influence of alcohol. Abrams and his family returned home and awakened Riley, who then went back to the garage. Early the next morning, Riley got up to drive a friend to work. A team of police officers arrived, and Riley was arrested for an outstanding DUI warrant and transported to jail. Riley saw officers leading defendant out of the house in handcuffs.
Riley later testified the canister had held 17 or 18 rocks of cocaine when he carried it into the house, and he had smoked three or four rocks that night.
Riley was released from custody the same or the following night. Defendant told Riley the police had found drugs in the house. Riley testified it was a matter of integrity for him to take responsibility for his own drugs. He wrote a confession stating that the drugs in defendant’s house belonged to him, not to defendant, and he had a friend take 26 photographs of the residence and drug paraphernalia to document his account. Riley testified that his food stamp benefit card had been inside the black glass jar, as shown in one of his photographs.
Riley contacted Detective Silva to explain his ownership of the drugs and give Detective Silva one of the packets, including Riley’s notarized confession. Detective Silva testified that in the evening of April 25, defendant drove up to Detective Silva in the field. Riley was sitting in defendant’s passenger seat. Defendant said he wanted to give Detective Silva something the next day, but defendant would not say what it was. On April 26, Detective Silva saw Riley getting out of defendant’s car; defendant was again driving. Riley’s confession packet had been left on Detective Silva’s desk earlier that day.
Riley testified it had been his own idea to make the packet and have his confession notarized. Defendant had not made any suggestions about what should be included in the packet. No one had ever threatened or pressured Riley or told him what his testimony should be. Riley testified he understood that if he had been convicted of drug charges, he would have been eligible for a drug diversion program and would not have gone to jail.
While Riley was on the stand, the prosecutor played recordings of telephone calls defendant made from the jail to Theresa and Riley, and transcripts of the calls were introduced into evidence as trial exhibits. Riley identified the voices on the recordings as those of defendant, Theresa, and himself. In one call, defendant told Theresa, in reference to “Country,” “No see, all you gotta do, is when he go to preliminary hearing, all you gotta do is, go on tell him what he gonna tell him, and that’s it. They, they can’t do nothing. Just like when Renee did. Remember when she sat up on the stand and told the truth?” Later in the conversation, Theresa, speaking of the confession letter “Country” had written, said, “He [referring to a third party, Manino] said, um, there’s only one word that he should correct, and that’s he fell asleep. A crack head don’t fall asleep.” Defendant responded, “Man, he, hey, I don’t want to talk about that on the phone, but it’s cool the way it is.” Defendant later said, “But I ain’t worried about it, cause, it’s like when Renee went to court, and said that shit.” Defendant told Theresa he would be “home, next week when we go to court. So don’t even worry about it.” He continued, “Baby, when he get up on the stand, all we, when we go back, he getting to tell everybody. That’s what you remember, you have him do that. Get his ass on the stand, like Renee did, remember?”
At trial, Riley said he had passed out or blacked out in defendant’s house the night before the search. When asked why, he responded, “I wouldn’t say because of the cocaine or marijuana. I think it was because of the alcohol because I’d been drinking, like I say, all day pretty much and just got to me.” Riley had earlier testified he had drunk a 32-ounce bottle of King Cobra in defendant’s living room.
The day before the preliminary hearing, defendant told Theresa, “Baby, listen, make sure you push that nigga, and make sure he do the right thing, man, tomorrow[,]” and “Remember how Renee did it.” In another conversation, defendant told Theresa that when “Country” went to court, “all he got to make sure, he get up there, mom, my baby momma, you know how Renee did.” Theresa told defendant, “Man, Mike was trying to tell Country, to restory the story and shit, like [inaudible] went in the house to get the . . . .” Theresa then passed the telephone to Riley, who told defendant he had spoken with Detective Silva. Defendant said to Riley, “Main thing, dude stick to the script.”
B. Defense Evidence
Officer Espinoza testified he had not emptied the contents of the black jar onto the mattress. Riley testified that when he had encountered Detective Silva on the street, Riley had been alone in the car; defendant had not been present. Riley testified he had originally purchased 20 pieces of rock cocaine for his own consumption. The room where he had used the drugs on the night before the search was a living room, not a master bedroom.
C. Verdicts and Sentence
The jury found defendant guilty of possession of cocaine base (Health & Saf. Code, § 11350, subd. (a)) as a lesser offense of possession for sale (Health & Safe. Code, § 11351.5) as charged in count 1, and of maintaining a place for selling or using controlled substances (Health & Saf. Code, § 11366) in count 2. In a bifurcated proceeding, the trial court found true the allegation that defendant had suffered two prior strike convictions under Penal Code sections 1170.12, subdivisions (a)-(d) and 667, subdivisions. (b)-(i).
The trial court sentenced defendant to a term of 25 years to life for count 1 and a concurrent term of 25 years to life for count 2.
Other facts are set forth in the discussion of the issues to which they pertain.
III. DISCUSSION
A. Admission of Testimony of Prosecutor from Defendant’s Prior Trial
Defendant contends the trial court erred in admitting the testimony of the prosecutor in a former case in which defendant had been accused of spousal battery, but charges had been dropped after the spouse had recanted her accusations.
1. Background
The prosecutor offered evidence relating to a prior case involving defendant in Los Angeles County in which defendant had been charged with a crime against his then wife, Hope Renee Abrams. The prosecutor’s purpose in offering the evidence was to show that Hope had recanted her story, and the case had been dismissed for insufficient evidence. The prosecutor offered the testimony of a Los Angeles County Deputy District Attorney, Brenda Wells, who had taken notes at the preliminary hearing at which Hope had recanted her story. The prosecutor intended the witness to read those notes into the record as past recollection recorded under Evidence Code section 1237.
Defense counsel objected to the evidence on the grounds, among others, that it was hearsay, it was more prejudicial than probative under Evidence Code section 352, and it was improper character evidence under Evidence Code section 1101. The trial court ruled that the proffered evidence was admissible because it was offered for a nonhearsay purpose, and the probative value of the evidence outweighed its prejudice under Evidence Code section 352.
At trial, Wells testified she had taken notes at the preliminary hearing in the prior case, and she read from the notes she had written: “I wrote V hyphen, indicating victim, Hope Abrams testified at p-h, indicating preliminary hearing, that she made everything up because she wanted Defendant Abrams . . . to get in trouble since he had a new girlfriend. [¶] . . . [¶] . . . I wrote Ms. Abrams testified that she just wants all of this to go away. Ms. Abrams testified through her tears on the stand. Court found insufficient evidence to hold defendant to answer. Case dismissed. . . .”
After Wells testified about the prior withdrawn accusation against defendant, the trial court instructed the jury, “[W]hat you have just heard has been offered from the prosecution as what may be argued as uncharged misconduct on the part of the defendant. You may not receive such evidence of uncharged misconduct, if that’s what you choose to find that to be, for the purpose of showing that the defendant is a person of bad character or that he has a propensity to commit the charged offenses. You may not consider that evidence that you just heard for that purpose. [¶] Also, any statements attributable to Hope Abrams in the testimony of Ms. Wells just now are not to be received by you as proof of the truth of the content of those statements.”
At the end of trial, the trial court instructed the jury as follows: “If the defendant tried to create false evidence or obtain false testimony, that conduct may show that he was aware of his guilt. If you conclude that the defendant made such an attempt, it is up to you to decide its meaning and importance. However, evidence of such an attempt cannot prove guilt by itself.” The trial court further instructed the jury, “During the trial, certain evidence was admitted for a limited purpose. You may consider that evidence only for that purpose and for no other.”
2. Standard of Review
The trial court has broad discretion in determining the admissibility of evidence, and we review the trial court’s determination only for abuse of discretion. (People v. Crittenden (1994) 9 Cal.4th 83, 132 [trial court has discretion in determining relevance of evidence]; People v. Kelly (2007) 42 Cal.4th 763, 783 [trial court has discretion in determining whether to admit evidence under Evid. Code, § 1101]; People v. Branch (2001) 91 Cal.App.4th 274, 282 [trial court has discretion to admit or exclude evidence under Evid. Code, § 352].)
3. Analysis
a. Relevance
Defendant argues the challenged evidence should have been excluded because it was not relevant to any disputed issue. Only relevant evidence is admissible. (Evid. Code, § 350.) The test for relevance is whether the evidence tends “‘“logically, naturally, and by reasonable inference”’” to establish a disputed material fact. (People v. Scheid (1997) 16 Cal.4th 1, 13; Evid. Code, § 210.)
The trial court recognized that introduction of evidence of another case against defendant involved a certain amount of inherent prejudice. However, the court found that the extreme relevance and probative value of the evidence would outweigh that prejudice. We agree the evidence was relevant because it logically and by reasonable inference tended to show both that Riley’s confession was false, and that defendant had orchestrated the preparation and presentation of that confession and had demanded that Riley testify and take the blame. During several calls from jail, defendant referred to “Renee” and how her testimony led to the dismissal of the Los Angeles County case. During the calls, defendant exhorted Riley to do the same and exhorted Theresa to encourage Riley. The challenged evidence reasonably tended to identify the “Renee” who was referred to in defendant’s telephone calls as the “Renee” whose recantation of her accusations had led to charges being dropped in the earlier case. We conclude the trial court did not abuse its discretion in determining that the evidence was relevant.
b. Character evidence
Defendant next argues the prior withdrawn accusation was improper character evidence under Evidence Code section 1101. Under Evidence Code section 1101, subdivision (b), evidence of prior acts of the defendant may be introduced “when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, . . .) other than his or her disposition to commit such an act.” However, such evidence may not be offered to prove the defendant’s conduct on a particular occasion. (Evid. Code, § 1101, subd. (a).)
Defendant contends that the prosecutor used evidence of an uncharged purported act of dissuading a witness in the prior case to imply an uncharged alleged plan to suppress evidence in the present case. He argues the circumstances of the prior plan were too dissimilar from the facts of the current case for the prior plan evidence to be admissible.
Here, however, the relevance of the evidence does not in any way depend upon whether the earlier charges were meritorious or even on whether “Renee” had been untruthful in her recantation of her accusations. Rather, the evidence was relevant to show that defendant was aware that a witness’s recantation at the preliminary hearing had led to the earlier charges being dropped. Thus, the evidence was relevant to show that defendant hoped Riley’s story of taking the responsibility on himself for ownership of the cocaine would lead to a similar result in the present case and to explain defendant’s numerous exhortations for Riley to follow through with the desired testimony. We therefore conclude the trial court did not abuse its discretion by admitting the evidence under Evidence Code section 1101, subdivision (b).
c. Prejudice under Evidence Code section 352
Finally, defendant contends the evidence should have been excluded because it was more prejudicial than probative.
Under Evidence Code section 352, “‘“prejudicial” is not synonymous with “damaging.”’” (People v. Karis (1988) 46 Cal.3d 612, 638.) Although, as the trial court recognized, evidence of a prior criminal case was damaging, the issue was whether that evidence tended “‘“to evoke an emotional bias against the defendant as an individual,”’” but had little effect on the issues. (Ibid.) As we have explained, the evidence was highly relevant in explaining the content and import of defendant’s telephone calls from the jail, which in turn reasonably and by logical inference tended to show defendant’s consciousness of guilt. And the challenged evidence was extremely brief and not likely to cause an emotional bias against defendant. We conclude the trial court’s resolution of the issue of prejudice was not arbitrary, irrational, or capricious, and we therefore affirm the trial court’s ruling. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125.)
d. Harmless error
Even if we were to assume for purposes of argument that the admission of the challenged evidence was an abuse of discretion, we would find any resulting error harmless. The trial court instructed the jury as to the limited purpose for which the evidence was admitted. We presume the jury followed the trial court’s instruction. (People v. Pride (1992) 3 Cal.4th 195, 226.)
B. Denial of Motion to Reveal Identity of Confidential Informant
Defendant contends the trial court erred in denying a motion to reveal the identity of a confidential informant, to hold an in camera hearing on the issue, or to dismiss the affected count. Defendant argues Riley’s sworn testimony that he, not defendant, was responsible for the drugs on the premises provided adequate evidence to support disclosure of the informant’s identity.
1. Background
The search warrant for defendant’s house was obtained on the basis of information provided by two confidential informants. Detective Silva’s affidavit in support of the search warrant stated that the first confidential informant (C.I. #1) was untested and was a user of cocaine. C.I. #1 told Detective Silva that he/she had purchased cocaine in the past from defendant and that defendant was selling cocaine from his residence. Detective Silva had caught the second confidential informant (C.I. #2) with cocaine after C.I. #2 left defendant’s house. C.I. #2 told Detective Silva he/she had bought cocaine from a Black woman at that house. The affidavit continued, “That C.I. #1 made a controlled buy of cocaine at 313 Barstow Rd. and C.I. #2 said he purchased the cocaine from [defendant] while inside the residence.” The search warrant affidavit also stated that Detective Silva had showed C.I. #1 a DMV photograph, and the informant had stated that the photograph was of defendant.
The search warrant and affidavit were not included in the record. Defendant quoted portions of the affidavit in his motion, and the trial court read other portions into the record at the hearing on the motion.
Defendant filed a motion for disclosure of the identity of C.I. #1. Defendant argued such disclosure was required because C.I. #1 was “reasonably a witness to the actual possession of the drugs within the residence, and may know specifically who actually handled the drugs.” Defendant argues the informant might have mistakenly identified defendant as the person from whom the informant bought drugs and thus the confidential informant was a material witness on the issue of guilt. The trial court denied the motion. The trial court noted that the events described in the affidavit had occurred at least 11 days before execution of the search warrant.
2. Standard of Review
We review the trial court’s ruling on issues concerning the disclosure of the identity of an informant under the abuse of discretion standard. (See People v. Hobbs (1994) 7 Cal.4th 948, 976.) “‘[G]reat weight should be afforded the trial court’s determination.’” (Williams v. Superior Court (1974) 38 Cal.App.3d 412, 421.)
3. Analysis
Under Evidence Code section 1041, subdivision (a), a public entity has a privilege to refuse to disclose the identity of a person who has furnished information purporting to disclose a violation of a law. However, “the prosecution must disclose the name of an informant who is a material witness in a criminal case or suffer dismissal of the charges against the defendant. [Citation.]” (People v. Lawley (2002) 27 Cal.4th 102, 159.) The defendant must show, through some evidence that “‘rise[s] above the level of sheer or unreasonable speculation’” that the informant is a material witness. (People v. Luera (2001) 86 Cal.App.4th 513, 526 .) Thus, the defendant must show that the informant was in a position to perceive “‘the commission or the immediate antecedents of the alleged crime.’” (People v. Fried (1989) 214 Cal.App.3d 1309, 1315 (Fried).)
“(a) Except as provided in this section, a public entity has a privilege to refuse to disclose the identity of a person who has furnished information as provided in subdivision (b) purporting to disclose a violation of a law of the United States or of this state or of a public entity in this state, and to prevent another from disclosing such identity, if the privilege is claimed by a person authorized by the public entity to do so and:
In People v. Hardeman (1982) 137 Cal.App.3d 823 (Hardeman), the trial court ordered dismissal of drug possession charges when the prosecutor refused to disclose the identity of a confidential informant whose information had formed the basis for the issuance of a search warrant. On appeal, the court reversed, holding that the informant’s observations had been made at least eight days before the defendant’s arrest, and that the sale described by the informant had been made by a single individual, the defendant. (Id. at p. 829.) The court held that when an informant is neither a participant nor an eyewitness to the specific events for which the defendant is charged, the informant is not a material witness to the issue of guilt unless the evidence shows an articulable actual relationship to the commission of the offense or an unbroken chain of events preceding the commission of the offence. (Ibid.) The court stated, “[W]here the defendant is charged with constructive possession of narcotics which is imputed by police discovery of contraband in a certain location, the disclosure of a nonparticipating, noneyewitness informant is required only if such an informant has experienced a ‘very recent observation of contraband on those same premises . . . [and] if the evidence shows that persons other than the defendant were on the premises when the informer observed the contraband and that the defendant was not then present or may have been not present.’” (Ibid.)
Here, the circumstances were similar to those of Hardeman. As the trial court pointed out, the events described in the search warrant affidavit took place at least 11 days before the execution of the search warrant. Thus, the information provided by the informant had an attenuated nexus, at best, to the circumstances for which defendant was arrested, specifically, the presence of cocaine in a jar next to the bed in which defendant was sleeping when the officers arrived. Thus, the evidence did not show an articulable relationship between the informant’s observations and the commission of the offense.
Defendant next argues the trial court erred by failing to hold an in camera hearing on the issue of disclosure of the confidential informant’s identity.
Evidence Code section 1042, subdivision (d) sets forth the procedures for a defendant’s motion to compel disclosure of a confidential informant. Evidence Code section 1042 requires an in camera review only when the defendant has shown the informant is in the position to give possible testimony that will aid the defendant on the issue of guilt. (People v. Oppel (1990) 222 Cal.App.3d 1146, 1152-1153.)
Evidence Code section 1042, subdivision (d) provides: “When, in any such criminal proceeding, a party demands disclosure of the identity of the informant on the ground the informant is a material witness on the issue of guilt, the court shall conduct a hearing at which all parties may present evidence on the issue of disclosure. Such hearing shall be conducted outside the presence of the jury, if any. During the hearing, if the privilege provided for in Section 1041 is claimed by a person authorized to do so or if a person who is authorized to claim such privilege refuses to answer any question on the ground that the answer would tend to disclose the identity of the informant, the prosecuting attorney may request that the court hold an in camera hearing. If such a request is made, the court shall hold such a hearing outside the presence of the defendant and his counsel. At the in camera hearing, the prosecution may offer evidence which would tend to disclose or which discloses the identity of the informant to aid the court in its determination whether there is a reasonable possibility that nondisclosure might deprive the defendant of a fair trial. . . . The court shall not order disclosure, nor strike the testimony of the witness who invokes the privilege, nor dismiss the criminal proceeding, if the party offering the witness refuses to disclose the identity of the informant, unless, based upon the evidence presented at the hearing held in the presence of the defendant and his counsel and the evidence presented at the in camera hearing, the court concludes that there is a reasonable possibility that nondisclosure might deprive the defendant of a fair trial.” (Evid. Code, § 1042.)
As the court explained in People v. Walker (1991) 230 Cal.App.3d 230, “In determining whether to uphold the privilege, the trial court is required to engage in a balancing process under [Evidence Code] section 1040, subdivision (b)(2) which provides that a governmental privilege will be upheld ‘where the necessity for confidentiality “outweighs the necessity for disclosure in the interest of justice,” . . .’ [Citation.] [Evidence Code] [s]ection 1040 does not, however, ‘license fishing trips. By calling for disclosure in the interest of justice, it compels the claimant to throw into the balance some showing of . . . “plausible justification” . . . .’ [Citation.]” (Id. at p. 236.)
In Fried, the court held that, although an in camera hearing had been held, there in fact had been no need for such a hearing as to whether the identity of a confidential informant should be disclosed when the defendant had not shown that the informant would “be in a position to give possible testimony which will aid the defendant on the issue of guilt.” (Fried, supra,214 Cal.App.3d at pp. 1314-1315.) The defendant had argued on information and belief in his motion for disclosure that the informant might have been on the premises within 24 hours of the defendant’s arrest and might have left contraband on the living room table where it was found in a search of defendant’s house. (Id. at p. 1312.) The court noted, however, that “[t]he assertion that the informant may have been on the premises shortly before the search and planted the contraband where it would later be uncovered by the police was supported by nothing more than counsels’ ‘information and belief.’ It was never once suggested that this hypothesis had any basis in fact nor that defendants believed it to be true.” (Id. at p. 1315.) The court further noted that “the record conclusively demonstrates that the informant was a nonparticipant, noneyewitness to the charged offense of constructive possession of cocaine” because the evidence established that the “informant’s observations occurred at least five days prior to [the] search and that defendants were dealing in narcotics at that time.” (Id. at p. 1316.)
In People v. Alderrou (1987) 191 Cal.App.3d 1074 (Alderrou), the court noted that “it is important to bear in mind what offense appellant was found to have committed. He was charged and convicted of possessing cocaine for sale in violation of Health and Safety Code, section 11351. He was not convicted of selling cocaine or transporting it or giving it away. Appellant was not being charged nor was he convicted of the particular sale—or any sale—which he may have made to the confidential informant or which the confidential informant may have witnessed.” (Id. at p. 1081.) The court noted that the prosecution had established the defendant’s guilt based on the quantity of cocaine and the paraphernalia associated with sales found in the defendant’s possession and the conclusive evidence of his dominion and control of the cocaine. (Ibid.)
As in Alderrou, we “would have to engage in wild speculation about convoluted improbable plots to come up with a scenario which would produce testimony from this confidential informant tending to exonerate” defendant of the offenses of which he was convicted. (Alderrou, supra, 191 Cal.App.3d at p. 1083.) As in Fried, the informant’s observations took place too many days prior to the search for the informant to have been a participant or an eyewitness. (Fried, supra, 214 Cal.App.3d at p. 1315.) We conclude the trial court did not err in failing to hold an in camera hearing because there was no showing that nondisclosure might deprive defendant of a fair trial. Because we find no error, we also reject defendant’s contention that the charge against him should have been dismissed.
C. Rejection of Plea of Once in Jeopardy
Defendant contends the trial court erred by rejecting defendant’s plea of once in jeopardy without submitting the disputed questions of fact to the jury.
1. Background
On December 15, 2006, a jury was sworn for defendant’s joint trial with then codefendant Riley. On January 5, 2007, out of the presence of the jury, and before any witnesses had been called to testify, the prosecutor moved to dismiss the case against Riley on the ground of insufficient evidence. The trial court granted the motion.
Defendant moved for a mistrial on the ground that the dismissal of the case against Riley prejudiced him because voir dire had been a “joint enterprise.” The trial court granted the motion for mistrial.
Before his second trial, defendant entered a plea of once in jeopardy, arguing that a jury should decide whether retrial was barred due to prosecutorial misconduct that had led him to request a mistrial. The trial court held that the issue was one of law for the court to decide. The trial court ruled that no prosecutorial misconduct had occurred and struck defendant’s plea of once in jeopardy for insufficiency.
2. Analysis
A criminal defendant has a right under the federal and state Constitutions not to be placed twice in jeopardy for the same offense. (U.S. Const., 5th and 14th amends.; Cal. Const., art. I, § 15; Oregon v. Kennedy (1982) 456 U.S. 667, 671; People v. Fields (1996) 13 Cal.4th 289, 297-298.) Discharging a jury without legal necessity or consent after jeopardy has attached, but before a verdict has been reached, is the legal equivalent of an acquittal and bars a retrial. (See People v. Gibbs (1986) 177 Cal.App.3d 763, 765-766.) However, the protection against double jeopardy may be waived when the defendant successfully has moved for a mistrial in the first prosecution. (Oregon v. Kennedy, supra, at pp. 672-673; People v. McNally (1980) 107 Cal.App.3d 387, 390.) “The remedy mandated by the double jeopardy clause—an order barring retrial and leading to the dismissal of the criminal charges against the defendant without trial—is an unusual and extraordinary measure that properly should be invoked only with great caution.” (People v. Batts (2003) 30 Cal.4th 660, 666 (Batts).)
Under the California Constitution, retrial is barred “(1) when the prosecution intentionally commits misconduct for the purpose of triggering a mistrial, and also (2) when the prosecution, believing in view of events that unfold during an ongoing trial that the defendant is likely to secure an acquittal at that trial in the absence of misconduct, intentionally and knowingly commits misconduct in order to thwart such an acquittal—and a court, reviewing the circumstances as of the time of the misconduct, determines that from an objective perspective, the prosecutor’s misconduct in fact deprived the defendant of a reasonable prospect of an acquittal. [Citations.]” (Batts, supra, 30 Cal.4th at pp. 695-696.) Defendant argues that “[t]he actions of the prosecutor facially constituted at least some evidence of misconduct intended to thwart an acquittal of [defendant].”
It has been stated that a “plea of once in jeopardy usually presents ‘an issue of fact . . . which the jury alone possesse[s] the power to pass upon.’” (People v. Severance (2006) 138 Cal.App.4th 305, 316.) However, if the facts are undisputed, the question is one of law to be decided by the trial court. (People v. Angeloni (1995) 40 Cal.App.4th 1267, 1270-1271 [holding it was a question of law for the trial court whether, based on prior nonjudicial forfeiture proceedings, jeopardy had attached as to drug charges].)
Our Supreme Court has not yet ruled on the specific issue whether the jury must determine questions concerning the prosecutor’s intent, but the court has signaled its doubts about whether such a procedure is required. In Batts, the court noted that an amicus curiae had argued that “‘a jeopardy defense premised upon a prosecutor’s intent presents a question of fact for the jury.’ In support, amicus curiae relies upon the concluding sentences of an extensive footnote in Stone v. Superior Court [(1982)] 31 Cal.3d 503. After mentioning that ‘[t]he determination of the validity of a claim of double jeopardy is a matter for the trial judge in the first instance,’ THE FOOTNOTE CONTINUES: ‘If there is no material issue of fact, the judge rules on the double jeopardy claim. If, however, a material issue of fact exists, then it is for the jury to resolve.’ (Id., at p. 509, fn. 1, italics added.) [¶] We have grave doubts that, under the double jeopardy standard set forth above, factual questions regarding the prosecution’s intent in committing misconduct are appropriate for resolution by a jury rather than by the court—as far as we are aware, all courts that have addressed similar double jeopardy issues have assumed that the court, rather than a jury, would make the relevant determination (see, e.g., [Oregon v.] Kennedy, supra, 456 U.S. 667, 675 [102 S.Ct. 2083, 2089] [‘a standard that examines the intent of the prosecutor . . . merely calls for the court to make a finding of fact’]). We have no occasion to decide that issue in the present case, however, because none of the parties raised the issue in the trial court.” (Batts, supra, 30 Cal.4th at p. 697, fn. 28, emphasis in original.)
Even more recently, our high court stated, “In Batts, we noted but did not decide the argument of amicus curiae . . . that a double jeopardy defense based upon a prosecutor’s intent presents a question of fact for the jury. [Citation.] That argument was based on a footnote in Stone v. Superior Court[, supra,] 31 Cal.3d 503, . . . that attempted to reconcile the rule that a writ of prohibition is an appropriate remedy to prevent retrial on a claim of former jeopardy with earlier cases that required a jury finding on factual issues raised by a plea of former jeopardy. [Citations.] We commented, however, that we had ‘grave doubts’ that factual issues involving the prosecution’s intent, in the context of a double jeopardy issue, should be decided by a jury rather than by a judge. [Citation.]” (People v. Betts (2005) 34 Cal.4th 1039, 1050, fn. 3.)
In our view, the better rule is for the trial court to make the determination as to the prosecutor’s intent. As our Supreme Court noted in Batts, supra, 30 Cal.4th at page 688, that is the procedure followed by most jurisdictions to have considered the issue. (See, e.g., State v. Kennedy (1983) 295 Ore. 260, 275 fn. 13 [666 P.2d 1316, 1325 fn. 13]; State v. Michael J. (2005) 274 Conn. 321, 334 [875 A.2d 510, 519-520]; Byrd v. State (2006) 277 Ga.App. 397, 398 [626 S.E.2d 598, 599]; State v. Major (1987) 84 N.C.App. 421, 425 [352 S.E.2d 862, 865]; State v. Hull (R.I. 2000) 754 A.2d 84, 87; but see Collins v. State (Tex.Crim.App. 1982) 640 S.W.2d 288, 291 [under Texas statutes, jeopardy plea is to be determined by the jury].) We believe our Supreme Court has clearly signaled that, if faced squarely with the issue, it would similarly rule that the issue is for the trial court’s determination, consistent with the overwhelming weight of authority. We therefore conclude the trial court did not err in rejecting defendant’s plea of once in jeopardy without submitting the disputed questions of fact to the jury.
IV. DISPOSITION
The judgment is affirmed.
We concur: RAMIREZ P.J., GAUT J.
“(1) Disclosure is forbidden by an act of the Congress of the United States or a statute of this state; or
“(2) Disclosure of the identity of the informer is against the public interest because there is a necessity for preserving the confidentiality of his identity that outweighs the necessity for disclosure in the interest of justice; but no privilege may be claimed under this paragraph if any person authorized to do so has consented that the identity of the informer be disclosed in the proceeding. In determining whether disclosure of the identity of the informer is against the public interest, the interest of the public entity as a party in the outcome of the proceeding may not be considered.” (Evid. Code, § 1041, subd. (a).)