Stanford Law School - Robert Crown Law Library

Filed 5/19/03



I N T H E S U P R E M E C O U R T O F C A L I F O R N I A




THE PEOPLE,

Plaintiff and Respondent,

S101183

v.

Ct. App. 2/1 No. B139901

TRACY L. BATTS et al.

Los Angeles County

Defendants and Appellants.

Super. Ct. No. 38269

After an earlier joint trial on first degree murder indictments ended in mistrial as

the result of the prosecution’s intentional misconduct, defendants Tracy L. Batts and

Terrance McCrea were retried and convicted of those same charges. The Court of

Appeal reversed the convictions, holding that the trial court erred by failing to grant

defendants’ pretrial motions to dismiss on double jeopardy grounds, and remanding with

directions to enter judgments of dismissal as to each defendant. We granted review to

consider the circumstances under which a prosecutor’s intentional misconduct that results

in a mistrial precludes retrial on double jeopardy grounds under the Fifth and Fourteenth

Amendments to the federal Constitution, and under article I, section 15, of the California

Constitution.1


1

In this case, we have no occasion to address the proper application of the federal

or state double jeopardy clauses in the related but distinct circumstance in which
prosecutorial misconduct results not in a mistrial, but rather in the reversal of a
conviction on appeal.

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With regard to the federal constitutional double jeopardy issue, the United States

Supreme Court held in Oregon v. Kennedy (1982) 456 U.S. 667 (Kennedy) that under the

federal double jeopardy clause a retrial is prohibited following the grant of a defendant’s

mistrial motion only if the prosecution committed the misconduct with the intent to

provoke a mistrial. Applying this standard and deferring, as Kennedy instructs, to the

factual findings of the trial court, we conclude that the prosecution in the earlier trial in

this matter had no such intent, and that the Court of Appeal accordingly erred in

concluding that the trial court should have granted defendants’ motion to dismiss under

federal double jeopardy principles.

As we shall explain, however, the standard adopted by the federal high court in

Kennedy has been widely viewed as unduly narrow and as not fully protective of the

interest that the double jeopardy clause was intended to safeguard, and in the two decades

since Kennedy was decided a number of state courts have interpreted the double jeopardy

guarantee of their own state constitutions as embodying a broader protection. Although

the standards adopted in these more recent decisions vary somewhat from one another

and, in our view, have their own shortcomings, we agree with the basic conclusion of

these courts that instances in which a prosecutor commits misconduct with the intent to

provoke a mistrial do not exhaust the circumstances in which a prosecutor’s intentional

misconduct improperly may defeat the interest that the double jeopardy clause is intended

to safeguard.

Accordingly, with regard to the state constitutional double jeopardy issue, we

conclude that when prosecutorial misconduct results in a defendant’s successful motion

for mistrial, the double jeopardy clause of the California Constitution bars retrial in two

circumstances. First, as under the federal Constitution, retrial is barred by the state

double jeopardy clause when the prosecution intentionally commits misconduct for the

purpose of triggering a mistrial. Second, the state double jeopardy clause also may bar

retrial when the prosecution, believing (in view of events that occurred during trial) that a

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defendant is likely to secure an acquittal at that trial, knowingly and intentionally

commits misconduct in order to thwart such an acquittal. In the latter circumstance,

however, retrial is barred under the state double jeopardy clause only if a court, reviewing

all of the circumstances as of the time of the misconduct, finds not only that the

prosecution believed that an acquittal was likely and committed misconduct for the

purpose of thwarting such an acquittal, but also determines, from an objective

perspective, that the prosecutorial misconduct deprived the defendant of a reasonable

prospect of an acquittal.

In other words, we conclude that when the prosecution in a criminal case commits

misconduct that results in a mistrial, the double jeopardy clause of the state Constitution

bars retrial in some circumstances in which the federal Constitution, as construed in

Kennedy, supra, 456 U.S. 667, does not. It is important to recognize, however, that

although we conclude that the state double jeopardy standard is properly protective of a

broader range of double jeopardy interests than the standard set forth in Kennedy, as a

practical matter retrial is likely to be barred under the state double jeopardy standard only

in exceptional circumstances, because the standard we adopt requires not only that the

prosecutor subjectively believe that an acquittal was likely when he or she intentionally

committed misconduct, but also that a court determine from an objective perspective that

the misconduct actually deprived the defendant of the reasonable prospect of an acquittal.

The state double jeopardy standard is appropriately stringent, because the normal and

usually sufficient remedy for the vast majority of instances of prejudicial prosecutorial

misconduct that occur at trial is provided under the federal and state due process clauses,

and calls for either a declaration of mistrial followed by retrial, or a reversal of a

defendant’s conviction on appeal followed by retrial. 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. As we shall explain,

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we further conclude that, under the applicable standard, in this case retrial was not barred

by the state double jeopardy clause.

Because we conclude that retrial of defendants was not barred under either the

federal or state double jeopardy clause, we reverse the judgment of the Court of Appeal,

which set aside defendants’ subsequent convictions on double jeopardy grounds. In light

of the Court of Appeal’s conclusion on the double jeopardy issue, it did not reach or

resolve the additional issues raised by defendants on appeal regarding the conduct of their

subsequent trial, and we shall remand the matter to the Court of Appeal to permit it to

address those remaining claims.

I

This case was tried three times: in 1998 (a trial in which Batts was the sole

defendant, following which a new trial was granted); in late 1999 (a joint trial of both

defendants, Batts and McCrea, ending in mistrial); and finally in 2000 (again, a joint trial

of both defendants). The first and third trials resulted in first degree murder convictions.

Events at the second trial, which as noted ended in a mistrial, give rise to the double

jeopardy claim in the present appeal from the convictions and judgment rendered in the

third trial.

Brothers Benczeon Jones and Brian Jones were young members of the Atlantic

Drive Crips, a criminal street gang in Compton. On September 12, 1997, Benczeon was

washing his car in front of an apartment building when defendants Tracy Batts and

Terrance McCrea (both older members of the Atlantic Drive Crips gang) and a third man

approached him and told him to leave the area, “or something gonna happen.”2 Brian

came out of his apartment and, together with Benczeon, argued with defendants, who

then departed. But defendants soon returned, Batts with a gun in each hand, and McCrea


2

There is evidence suggesting that Batts and Benczeon may have been engaged in a

territorial dispute concerning the sale of illegal drugs.

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with a single weapon. They fired several shots, killing Brian and wounding Benczeon in

the leg.

Brian’s girlfriend, Sonique Steward, from her apartment, saw Batts arrive. When

she heard shots she ran outside and saw Brian dead and Benczeon prone and bleeding.

She testified that Benczeon told her that “Tracy” had shot him, and that she immediately

telephoned 911 and reported that Tracy had shot her boyfriend. Two men came upon the

scene and dragged Benczeon toward the back of a building. Benczeon told them that

defendants were the shooters.

Within hours of the shooting, Batts entered a hospital seeking treatment for a

gunshot wound to his right shoulder. Batts was evasive with the officer who interviewed

him, stating that he did not know where he had been when he was shot, and that he did

not know who shot him. He later told another officer that he had been shot in Long

Beach.3

When interviewed at the hospital, Benczeon told the police that defendants had

shot him. Benczeon also identified Batts from a photographic lineup, but further stated

that he was afraid for his family and did not want to testify or otherwise cooperate with

the police. Thereafter, Batts’s brother paid a visit to Benczeon in the hospital, leaving

Benczeon upset and crying. Benczeon stated that Batts’s brother had told him not to

testify and impliedly had threatened Benczeon’s family. In November 1997, Benczeon’s

10-year-old brother received a telephone call threatening Benczeon.

Several weeks after the shooting, Benczeon attended a photographic lineup and

identified McCrea and again identifed Batts. In January of 1998, McCrea’s wife, Leslie

Jones, contacted police to report a domestic assault. She informed an officer that McCrea


3

Benczeon denied that he or Brian were armed during the attack. But other

testimony, introduced at the 2000 trial, called Benczeon’s claim into doubt, suggesting
that he or his brother also were armed.

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had told her that he had killed persons before — including a “cousin in Compton” — and

that she was afraid of him.

In January of 1998, Benczeon was shot and wounded by an unknown person.

Benczeon believed that the shooting was related to his brother’s killing and to his own

involvement in the case against defendants. Nevertheless, Benczeon testified against

defendant Batts in the first trial in this case in June 1998, implicating both Batts and

McCrea in the September 12, 1997, shootings. (At that time, McCrea had not yet been

apprehended, and thus the prosecution had proceeded to trial against Batts alone.)

Defendant Batts was convicted at the first trial of murder, but subsequently was

granted a retrial based on newly discovered evidence — a confession of guilt from one

Richard Nava, who at that time was awaiting sentencing on another gang-related murder

and was housed in the same county jail module as defendant Batts.

In March 1999 — nine months after the 1998 trial — Benczeon was brutally

murdered after being chased and shot by assailants in two vehicles and then struck

several times by traffic on a Compton street, in territory controlled by the Atlantic Drive

Crips. No link between Benczeon’s murder and defendants ever was established.

Meanwhile, defendant McCrea had been apprehended. The People then went

forward with a second trial, this one a joint proceeding against both defendants, held in

late 1999. Benczeon’s testimony from the first trial was read to the jury at the second

trial.

Benczeon’s testimony was admissible against Batts under two provisions of the

Evidence Code: section 1291, permitting former testimony offered against a party to the

earlier proceeding, and section 1231, which under certain circumstances allows

admission of a decedent’s sworn statements regarding gang-related crimes. Because

McCrea was not a party to the first trial, Benczeon’s testimony was admissible against

McCrea under only the latter provision, section 1231.

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One of the requirements for admissibility under Evidence Code section 1231 is

that the decedent must have perished from other than natural causes. (Id., subd. (e).)

Section 1231.4 further provides: “If evidence of a prior statement is introduced pursuant

to this article, the jury may not be told that the declarant died from other than natural

causes, but shall merely be told that the declarant is unavailable.” (Italics added.)

Consistent with this statutory mandate, the trial court issued an order tracking the

statute’s directive and emphasized several times before and during the trial to both the

prosecution and the defense that counsel were not to mention Benczeon’s death in front

of the jury, and instead were to approach the bench should any such issue arise.


The events that led to termination of the second trial are as follows.

Prosecution witness Detective Marvin Branscomb, who had testified at the first

trial, recounted on cross-examination that he had interviewed Benczeon shortly after the

September 12, 1997, shooting, while Benczeon was in the hospital recovering from

gunshot wounds to his leg, and that at that time Benczeon was “noncooperative,”

frightened, and concerned for his mother and other family members. Branscomb

explained that he advised Benczeon of the district attorney’s “witness relocation

program,” and told him “that we could see to it that he was part of that.” Benczeon did

not respond to the offer, but Branscomb advised him that he would discuss the possibility

of the witness protection plan with Benczeon’s mother.

Branscomb further testified that he did “eventually” give Benczeon $1,500 in cash

from the witness protection program, to be used for first and last month’s rent for a new

apartment. But, Branscomb stated, he gave Benczeon that money on October 6, 1998 —

four months after Benczeon testified at the first trial.

Counsel for Batts, Stanley Granville, proceeded during the course of further cross-

examination to ridicule Branscomb’s testimony. Granville’s questions highlighted the

absence of documentary evidence that the cash actually was used for relocation rent, and

emphasized the four-month gap between Benczeon’s earlier testimony and the relocation

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payment. Finally, Granville asked Branscomb whether the funds truly were just a

“payoff” for Benczeon’s testimony. Granville also emphasized in his examination the

circumstance that, after the payment, Benczeon “never showed up” at various preliminary

hearings that were held in defendants’ cases. Of course, pursuant to article I, section 30,

subdivision (b), of the California Constitution (added by Proposition 115 in 1990),

Benczeon’s hearsay statements made to Detective Branscomb were admissible through

the detective, and hence he was not required to testify at those preliminary hearings. And

in any event, as to one of those hearings, it was impossible for Benczeon to attend,

because he had been murdered — a fact that, pursuant to the trial court’s earlier ruling,

was to be kept from the jury.

The two trial prosecutors were concerned that in light of defense counsel’s cross-

examination, the jury may have been left with the impression that the prosecution had

“paid off” Benczeon for his testimony and then had made sure that Benczeon was not

available to testify at subsequent preliminary hearings and before the jury in the second

trial.4 Seeking to rebut that implication, and deliberately ignoring the trial court’s order

that counsel not elicit testimony concerning the reason for Benczeon’s unavailability

without first discussing that matter with the court, the trial prosecutors took the following

action. They met with Detective Branscomb during a recess, advised him that he would

be asked on redirect examination why Benczeon did not appear at a specific preliminary

4

Two of the three preliminary hearings to which defense counsel had referred

occurred prior to Benczeon’s death. The other preliminary hearing to which defense
counsel referred occurred on May 10, 1999 — two months after Benczeon’s demise.
Regarding that preliminary hearing, however, defense counsel’s specific question to
Detective Branscomb referred to it as having occurred in 1998. Accordingly, defendant
Batts asserts in his answer to the brief of amicus curiae Los Angeles County District
Attorney, “for all [the jury] knew, [that hearing] was in 1998.” Nevertheless, taken as a
whole, the questioning by defense counsel clearly implied that Benczeon had been “paid
off” after his initial testimony and further implied that Benczeon had been available to
testify both at the subsequent hearings and before the jury in the second trial, but
nonetheless had not been required to testify.

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hearing, and that in reply Branscomb “should tell the truth.” The prosecutors also

cautioned the detective, however, that prior to answering their question, he was to “make

a significant pause,” in order to afford defense counsel an opportunity to object.

During the ensuing redirect examination, one of the deputy district attorneys,

Phillip Stirling, referred to the May 10, 1999 preliminary hearing that had been held for

defendant McCrea, and inquired whether Benczeon had testified at that hearing.

Detective Branscomb answered, “no.” The prosecutor asked, “Why not?” Branscomb

answered, “He was murdered.”

The court called a recess and, outside the presence of the rest of the jury,

questioned a juror who, the bailiff reported, had broken down in tears in response to

Branscomb’s answer. Both defendants moved for a mistrial. Thereafter the trial court

held an extensive hearing on those motions.

Deputy District Attorney Larry Droeger argued that defense counsel’s cross-

examination of Detective Branscomb deliberately had misled the jury concerning the

reason for Benczeon’s absence from the prior proceedings and the trial, by suggesting

that the prosecutors had paid off their witness after the first trial and then had taken

further action to ensure that the witness remained unavailable, all so that the present jury

would hear perjured testimony without subjecting Benczeon to cross-examination.

Droeger argued that the message inherent in the cross-examination, “if accepted by the

jury,” would “devastate” and “destroy” the credibility of both Benczeon and Branscomb,

and that it had impugned both prosecutors. Droeger continued: “How do we respond to

that? Do we sit there and allow our credibility, our reputation to be attacked, the witness’

credibility to be destroyed when it is a lie? I can’t imagine what else we’re supposed to

do and what else any lawyer would expect us to do after that kind of attack.” Finally,

Droeger asserted that Detective Branscomb had been instructed to pause, and that “there

was a significant pause,” and yet there was no objection. From that, Droeger argued, it

might be inferred that “they wanted this situation. They wanted the opportunity to ask for

a mistrial.”

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In response, defense counsel argued that there was no reason to object, because

defendants had a right to rely upon the trial court’s prior rulings, and counsel had no

reason to suspect that that the prosecutors or the witness would violate the court’s explicit

orders that the reason for Benczeon’s absence not be disclosed.

In ruling upon defendants’ motions for mistrial, the court observed that defense

counsel’s questioning “certainly could be interpreted as unfair questioning and unfair

inferences. The People argued that that did, in fact, provide to the jury an unfair picture.

And I’m inclined to think that it did.” But, the court continued, even conceding that the

prosecutors “did appropriately feel [that] they had been boxed in to an extent and perhaps

been taken unfair advantage of,” the prosecutors could and should have approached the

bench and asked to work out a solution, and that “[t]here were other ways to make that

jury absolutely clear that Benczeon Jones did not testify as a result of being paid off and

lacking interest but rather that there were other good, legitimate legal reasons why

Benczeon Jones wasn’t there.” The court noted that it was “shocked” and “stunned” by

both the prosecutor’s question and the answer. The court found that under the

circumstances there was no reasonable opportunity for defense counsel to object, and that

the prosecutors had acted in “reckless disregard [of] the rights of the defendants in posing

this question under the circumstances without it being screened.” The court concluded

that the prosecution “committed misconduct in presenting the question at issue. And

knowing what its response would be, the error caused by such conduct is too serious to be

corrected.”

The trial court granted the motions for mistrial and then explained to the jury that

it had done so, and the basis for its ruling. The court advised the parties that the matter

later would be assigned to a court for further proceedings, possibly back to himself.

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Eventually the case was reassigned to the same trial judge — Honorable Jack W.

Morgan — for retrial.5

Five weeks after the mistrial, and prior to the start of the third trial in this matter,

Attorney William Ringgold, new counsel for defendant Batts, moved to dismiss on the

basis that retrial was barred on double jeopardy grounds.6 The motion was based

exclusively upon Kennedy, supra, 456 U.S. 667, 676, in which the high court held that

retrial is barred following a defendant’s successful motion for mistrial if the prosecution

intended to cause a mistrial. At a hearing conducted by Judge Morgan, Ringgold argued

that retrial was barred because, in counsel’s view, the prosecution had intended, by its

misconduct, to cause a mistrial.

Although Ringgold’s motion relied upon only the federal Constitution, Attorney

Cedric Payne, McCrea’s counsel, in joining Ringgold’s motion, stated that he was

moving for dismissal under the double jeopardy provision of the California Constitution

as well as under the federal Constitution, and he asserted that he assumed Ringgold

would agree that the motion should be considered under both constitutional provisions.

Payne further asserted that the approach set out in Kennedy, supra, 456 U.S. 667,


5

At the hearing on the motions to dismiss, Judge Morgan disclosed that shortly

after the mistrial motions were granted (but prior to the reassignment of the matter to
himself), he had received an ex parte visit by Prosecutor Stirling, who “came in and, in
essence, apologized for his conduct and left.” The court recounted that “nothing
substantive was discussed at all in regard to the case. It was simply a statement by Mr.
Stirling that he apologized for his conduct, and he hoped it wouldn’t . . . cause him to
receive a bad reputation — I am paraphrasing — in the building. . . . [¶] I assured him
that I would be objective and . . . [that the matter was] history as far as that and not a
personal matter.” Upon being informed of this ex parte meeting, defense counsel did not
ask Judge Morgan to recuse himself.

6

Ringgold was Batts’s third counsel. Upon the granting of the mistrial, Stanley

Granville, who had been retained to conduct only the second trial, was allowed to
withdraw. Batts had been represented by yet another attorney at his first trial.

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“encompasses what the rules are not only [under] the United States Constitution but I

think California has somewhat adopted that position, as well.[7] And [that approach

requires a trial court to focus upon] whether or not, in the court’s view,” the prosecution

intended to cause a mistrial.8 The trial court proceeded to resolve the dismissal motion

by determining, under Kennedy, supra, 456 U.S. 667, “whether or not the misconduct

that occurred was in the view of the court caused by [the] prosecution’s desire to cause a

mistrial.”

After hearing defense counsel’s arguments, the trial court called upon trial

Prosecutor Larry Droeger. (Prosecutor Stirling was absent.) Droeger commenced by

noting that he was “in a position of arguing . . . something of which I have personal

knowledge,” namely his and Stirling’s respective intent when they met with Detective

Branscomb at the recess during the second trial, directed him to “tell the truth,” and then

proceeded to ask the detective, on redirect examination, why Benczeon had not been

present at a certain preliminary hearing proceeding. Droeger offered to give his

testimony under oath, but also added that any representation that he would make to the

court would be made “as if it were under oath.” Neither defense counsel asked that

Droeger actually take an oath.

Droeger told the court that when he and Stirling made their decisions concerning

their examination of Detective Branscomb, mistrial was “the farthest thing” from their


7

Counsel may have been referring to People v. Valenzuela-Gonzales (1987) 195

Cal.App.3d 728, 736-742, in which the court held that the Kennedy rule should be the
sole test applicable under the double jeopardy clause of California Constitution article I,
section 15.

8

Although in so moving, and in subsequent concluding remarks on the motion,

counsel Payne referred to the state and federal “confrontation clause,” when read in
context counsel’s statements clearly were intended to refer to the double jeopardy clause.
It is apparent that the trial court understood defendants’ motions and Counsel Payne’s
supplementary comments as raising state and federal double jeopardy issues.

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minds. Droeger asserted that in their private discussions preceding the misconduct, the

prosecutors had felt personally attacked, causing them to “let our emotional response

overcome our rational response to the circumstances.” He explained their belief that the

defense had opened the door to inquiry concerning the true reason for Benczeon’s

absence at trial, and that simply asking Branscomb the question, rather than first

proceeding to a sidebar discussion with the court and opposing counsel, was the

appropriate way to “seize the moment.” But, Droeger acknowledged, “that is where we

made our mistake.” Droeger further explained: “[The] one thing we thought we should

do [was] tell the detective don’t answer the question right away. They’ll object. And

then we’ll go argue it at sidebar at that time . . . . And that was really the way we felt it

was going to go down. We were perhaps as shocked as the court when the answer came

out and when they didn’t object. . . . [I]n our minds, we felt we were absolutely sure that

they were going to object when [Prosecutor Stirling] asked that question. . . . So in terms

of our intention, . . . neither of us intended that we obtain a mistrial. Neither of us

expected that a mistrial was going to be, in fact, granted until the court made its ruling.

And it wasn’t until then that we then started looking at it a little more rationally and in

hindsight realized that we did make a tactical mistake in how we proceeded.”

The trial court stated that, pursuant to its reading of Kennedy, supra, 456 U.S. 667,

it would consider “the conduct and the circumstances and everything . . . that was

involved in the trial . . . [i]n order to . . . make a determination as to whether or not, in

fact, the District Attorney not only committed misconduct . . . but [also] whether or not

that misconduct, in fact, was designed to cause a mistrial or whether it arose out of other

circumstances justifiable and unjustifiable.” The court noted it had observed the events

leading up to the mistrial and that it had “a reasonable recollection of what was said and

done.” The court stated that in determining whether the district attorney intended to

cause a mistrial, it would “look at the circumstances at [the time of the mistrial] in their

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totality . . . [a]nd from that, try to reason and judge whether the District Attorney would,

in fact, want a mistrial.”

Following that approach, the trial court first asserted that, until the time of the

mistrial, the case was “overall . . . going very well for the People.” The court recalled,

“when I was evaluating this for several hours the night before I made the ruling . . . I was

perplexed for among other reasons as to how this could occur when the District Attorney

had things going, in this court’s view, reasonably well from the People’s point of view a

strong case, strong evidence that had already been presented.” The court stated that its

“honest evaluation” was that “a District Attorney sitting in the circumstances that they

were sitting in at the time would want to proceed and have a decision.” The court

acknowledged that the cross-examination suggesting that the People had paid off

Benczeon, “if left without rebuttal . . . would have been a potential negative.” (Italics

added.) But, as the court previously had observed at the hearing on the mistrial motion,

the prosecution had offered rebuttal testimony, explaining “how [the witness protection]

process worked and how and why the money was given.” The court also acknowledged

that the defense cross-examination that immediately preceded the trial-ending misconduct

unfairly suggested that the prosecution had allowed Benczeon to absent himself from

later proceedings, but again noted, as the court had reasoned at the hearing on the mistrial

motion, “there was available to the District Attorney a procedure for handling the

problem” — specifically, the prosecution could have approached the bench in order to

work out acceptable means of correcting the false implication.9 Based upon these

9

The trial court commented: “Under the clearly described procedure that the court

had set forth . . . it was anticipated that there would be problems particularly in sensitive
areas. [¶] . . . [T]here was a way to [correct the unfair implication left by the defense
cross-examination]. And that was simply to say, Judge, can we come to sidebar. And
then say, Granville is pulling all kinds of things on us here. He has us backed in a corner.
He’s trying to make that jury believe we are paying off . . . that witness. That is
absolutely unfair. This man is dead. What can we do about it, Judge? What will you do

(footnote continued on following page)

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considerations, the court concluded that a reasonable prosecutor would not have felt that

the case would be lost merely because of the defense cross-examination. Nor, the trial

court added, did it believe that the prosecutors here actually thought that, based upon the

cross-examination, the case had been lost.10

The trial court mused that in attempting to discern the prosecutors’ intent, “the

only way to do it is circumstantially. We can’t open their minds. . . . And I have

attempted to do it that way. I do believe that I have objectively reviewed the situation

and . . . although as I have said their conduct was perplexing to me . . . I honestly do not

believe that their conduct occurred because they wanted a mistrial. I think their conduct

occurred because they let their emotions run far beyond where they should have [run].

And I think they realize that.” Having found that the prosecutors did not intend to

provoke a mistrial, the trial court concluded that under the high court’s decision in

Kennedy, supra, 456 U.S. 667, a retrial was not precluded, and hence the court denied the

motions to dismiss.

Defendants did not seek writ review of the trial court’s ruling on their double-

jeopardy claim, and instead proceeded to another joint trial — the third trial for Batts, and

the second for McCrea. At that trial, Richard Nava, whose earlier assertion of his own

(footnote continued from preceding page)

about it?”


The trial court proceeded to list options that could have been adopted to address

the problem. The court observed that it could have delivered to the jury an appropriate
cautionary instruction that there was “no reason” for the witness to have testified. Also,
the court stated, it “could have considered other alternatives and would have had an open
mind in terms of how best to handle this matter[,] recognizing that the People did have a
legitimate concern.”

10

Specifically, after acknowledging the negative impact of the cross-examination on

the prosecution’s case, the court stated: “I don’t see that it rises to a level that . . . a
reasonable evaluation of the case would be that you’re going to lose because of that, in
the District Attorney’s point of view. Nor do I believe that they thought that.”

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guilt in the underlying crimes had led to the vacating of Batts’s first murder conviction,

and who at the time of the third trial was serving a prison term of more than 130 years to

life for an unrelated murder, testified that on the morning on September 12, 1997, the

Jones brothers had robbed him of a kilo of cocaine, and that he later had returned with his

“homeboy” (whom he refused to name) to Jones’s apartment. Nava further testified that

at that time, he, and not defendant Batts, engaged in a shoot-out with the Jones brothers.

Nava’s testimony, however, was thoroughly and compellingly impeached.

Defendants were convicted at the third trial of first degree murder and attempted

murder, various charged sentencing enhancements were found true, and they were

sentenced to terms of 88 years to life and 90 years to life respectively. On appeal from

that judgment, defendants contended in the Court of Appeal that the trial court lacked

authority to conduct the third trial, because the trial court assertedly had erred by failing

to grant defendants’ motions to dismiss the charges based upon double jeopardy grounds.

In the Court of Appeal, all parties argued the double jeopardy issue by focussing

exclusively upon the federal Constitution and the intent-to-cause-mistrial test set out in

Kennedy, supra, 456 U.S. 667. No party discussed whether the state provision (Cal.

Const., art. I, § 15) requires an analysis different from the high court’s intent-to-cause-

mistrial test.

After reviewing the record, the Court of Appeal found the trial court’s factual

findings unsupported, and determined from its own reading of the record that the

prosecutors did indeed intend to cause a mistrial by their misconduct at the second trial.

Accordingly, the Court of Appeal concluded that retrial was barred and that the third trial

should not have occurred. The Court of Appeal reversed defendants’ convictions and

ordered dismissal of the charges with prejudice. We granted the Attorney General’s

petition for review.

II

We initially address two procedural issues.

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First, the People observe that Penal Code sections 1016 and 1017 include, among

those defenses that should be specifically pleaded, a claim of “once in jeopardy.” The

People suggest that because defendants in this litigation never entered such a plea, they

have forfeited their double jeopardy claims. Courts long have observed, however, that “a

claim of double jeopardy is most appropriately raised by way of a pretrial motion to

dismiss the accusatory pleading or portion thereof allegedly barred by double jeopardy.”

(Stone v. Superior Court (1982) 31 Cal.3d 503, 509, fn. 1, and cases cited.)

We reject the People’s claim and agree with the Court of Appeal, which observed

that although an affirmative plea of “once in jeopardy” apparently was not entered,

defendants’ motions to dismiss, which were made on double jeopardy grounds and fully

litigated by the parties in the trial court, nevertheless “adequately covered this procedural

requirement” and preserved the issue for review.

The Court of Appeal on its own raised a second procedural issue: “A more

troubling question is why the defense did not seek a writ of prohibition after denial of the

motions to dismiss. Prohibition is the preferred remedy, rather than putting everyone

through the useless exercise of another trial. . . .” The Court of Appeal concluded,

however, that under existing case law, defendants were permitted to proceed as they did,

and raise their double jeopardy claims on appeal even though defendants did not first

seek writ review to address those claims. (See In re Lozoya (1956) 146 Cal.App.2d 702,

704 [double jeopardy issue may be raised on appeal]); In re McNeer (1959) 173

Cal.App.2d 530, 531-534 [double jeopardy issue may be raised on habeas corpus].)

Consistent with the Court of Appeal’s comment, we directed the parties to brief

the following issue: “When a trial court denies a defendant’s claim of double jeopardy,

should the defendant be required to seek timely review of the denial by a petition for

extraordinary writ as a condition to raising the double jeopardy claim on appeal?”

17

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The People argue that a defendant must timely seek a writ of prohibition in order

to preserve for appeal the issue of being placed twice in jeopardy. Defendants, on the

other hand, contend that although a writ of prohibition often may be the more appropriate

means of protecting a defendant’s double jeopardy rights, the timely filing of a petition

seeking such a writ should not be a prerequisite to raising the double jeopardy issue on

appeal. Defendant McCrea argues that a requirement that an extraordinary writ be sought

would burden the Courts of Appeal and defense counsel, “without any increase in judicial

economy”; defendant Batts argues that longstanding authority permits review of a ruling

on a double jeopardy claim by writ or by appeal, and that good reasons exist for retaining

that flexible approach.

Both defendants rely upon People v. Memro (1985) 38 Cal.3d 658 (Memro). In

that case we thoroughly discussed and rejected a similar procedural requirement —

whether review of the denial of discovery is available on appeal when the defendant fails

to seek writ review on that same question. We declined in Memro to impose a procedural

condition to raising that issue on appeal, reasoning as follows:

“While respondent correctly notes that pretrial review is appropriate in discovery

matters [citations], he fails to cite any authority for the proposition that such review is a

prerequisite to review of discovery error on appeal. Indeed, several courts on direct

appeal have entertained claims of erroneously denied discovery motions of the type

involved in this case. [Citations.]

“Respondent’s argument also fails to recognize the unwarranted consequences

which might result from a pretrial writ requirement. In addition to unnecessary delay and

added expense [citation], such a requirement would limit the exercise of this court’s

appellate jurisdiction, particularly in death penalty cases. [Citation.] This court’s

constitutional responsibility in such cases should not be so easily circumscribed by

procedural barriers, especially where the people of this state have not clearly spoken on

the issue.

18

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“It is also noteworthy that in analogous contexts California courts have declined to

impose barriers to appellate review where important rights are involved. For example,

the courts have sanctioned review on appeal of speedy trial rulings (People v. Wilson

(1963) 60 Cal.2d 139, 150), have held that no certificate of probable cause is required in

juvenile appeals (In re Joseph B. (1983) 34 Cal.3d 952, 959-960), and have rejected a

pretrial writ requirement as a condition to review of an unsuccessful pro se motion on

appeal (People v. Freeman [(1977)] 76 Cal.App.3d [302,] 310-311). Since discovery

rights are equally important, this court declines to impose a pretrial writ requirement as a

condition to review on appeal.” (Memro, supra, 38 Cal.3d 658, 675-676.)

Upon reflection, we agree that similar considerations apply here. In reaching this

conclusion, we also find persuasive the circumstance that, of the scores of federal and

out-of-state cases that we have reviewed (including Kennedy, supra, 456 U.S. 667),

addressing in the same or analogous procedural posture the identical type of double

jeopardy claim that we face here, we have not found any case suggesting that a defendant

must seek writ review as a condition to raising the double jeopardy issue on appeal. We

conclude that imposing such a procedural condition would be both unwarranted and

unprecedented.

Accordingly, we proceed to discuss the merits of defendants’ double jeopardy

claim.

III

The Fifth Amendment to the United States Constitution, which applies to the

states through the Fourteenth Amendment (Benton v. Maryland (1969) 395 U.S. 784,

793-796), protects defendants from repeated prosecution for the same offense (see, e.g.,

United States v. DiFrancesco (1980) 449 U.S. 117, 130 (DiFrancesco); United States v.

Jorn (1971) 400 U.S. 470, 479 (lead opn. by Harlan, J.) (Jorn)), by providing that no

person shall “be subject for the same offense to be twice put in jeopardy of life or

19

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limb. . . .” We proceed to address whether the motions to dismiss should have been

granted because, as defendants assert, retrial is barred under the Fifth Amendment’s

double jeopardy clause.

A

It is well established that the Fifth Amendment’s double jeopardy clause bars

reprosecution following a defendant’s acquittal. (Ball v. United States (1896) 163 U.S.

662, 669.)11 It follows that a criminal defendant who is in the midst of trial has an

interest, stemming from the double jeopardy clause, in having his or her case resolved by

the jury that was initially sworn to hear the case — and in potentially obtaining an

acquittal from that jury. (See Wade v. Hunter (1949) 336 U.S. 684, 689 [noting a

defendant’s “valued right to have his trial completed by a particular tribunal”].)12 It also

follows that in certain circumstances, conduct by the prosecution or the court that results

in mistrial, thereby terminating the trial prior to resolution by the jury, may impair that

aspect of a defendant’s protected “double jeopardy” interest.

The remedy for a violation of a defendant’s Fifth Amendment double jeopardy

right is strong medicine — dismissal of the charges and a permanent bar to retrial.

(Burks v. United States (1978) 437 U.S. 1, 11, fn. 6.) Over the years, the high court has


11

As the high court explained in Green v. United States (1957) 355 U.S. 184, 187-

188: “The underlying idea, one that is deeply ingrained in at least the Anglo-American
system of jurisprudence, is that the State with all its resources and power should not be
allowed to make repeated attempts to convict an individual for an alleged offense,
thereby subjecting him to embarrassment, expense and ordeal and compelling him to live
in a continuing state of anxiety and insecurity, as well as enhancing the possibility that
even though innocent he may be found guilty.”

12

See Ponsoldt, When Guilt Should be Irrelevant: Government Overreaching as a

Bar to Reprosecution Under the Double Jeopardy Clause After Oregon v. Kennedy
(1983) 69 Cornell L.Rev. 76, 81 (noting that the high court’s double jeopardy cases are
concerned with preservation of a defendant’s opportunity to obtain a favorable verdict
from the first tribunal he or she confronts).

20

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developed case law defining the circumstances in which a claim to such a remedy may be

raised, and the standards for establishing a double jeopardy violation.

In the event of a mistrial declared over the objection of the defendant, double

jeopardy principles bar retrial unless the mistrial was justified by “manifest necessity” —

for example, a hung jury. (DiFrancesco, supra, 449 U.S. 117, 130; Jorn, supra, 400 U.S.

470, 480-487.)

In the event of a mistrial declared at the urging of the defendant, however (the

situation we face in the case before us), the general rule is that the defendant’s request for

a mistrial constitutes consent that waives any double jeopardy claim, and hence there is

no bar to retrial. (DiFrancesco, supra, 449 U.S. 117, 130; United States v. Tateo (1964)
377 U.S. 463, 467.) The exception to this general rule is addressed in Kennedy, supra,
456 U.S. 667, to which we now turn.

B

The

defendant

in

Kennedy was charged with stealing a rug. The state called an

expert witness to testify concerning the value and identity of the rug. On cross-

examination, the defendant’s counsel impeached the witness by revealing to the jury that

the witness had filed a criminal complaint against the defendant, alleging fraudulent

advertising. On redirect examination, the prosecutor attempted to reveal the reasons why

the witness had filed a complaint against the defendant, but the trial court — perhaps

erroneously — barred such inquiry. Thereafter, the prosecutor asked the witness whether

he had “ever done business with [the defendant].” The witness responded that he had

not, and the prosecutor immediately asked: “Is that because he is a crook?” The trial

court granted the defendant’s subsequent request for a mistrial. (Kennedy, supra, 456

U.S. 667, 669; see also State v. Kennedy (Or.Ct.App. 1980) 619 P.2d 948, 949.)

The defendant moved under the Fifth Amendment’s double jeopardy clause to bar

the state’s subsequent attempt to retry him. “After a hearing at which the prosecutor

testified, the trial court found as a fact that ‘it was not the intention of the prosecutor in

21

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this case to cause a mistrial.’ ” (Kennedy, supra, 456 U.S. 667, 669.) On that basis, the

trial court rejected the defendant’s federal double jeopardy challenge and denied the

motion to dismiss. The defendant was retried and convicted.

On appeal from the resulting conviction, the defendant argued that the trial court

erred by failing to grant his motion to dismiss. The Oregon Court of Appeals agreed,

found a Fifth Amendment double jeopardy violation, and barred retrial. (State v.

Kennedy, supra, 619 P.2d 948, 949.) That court observed that it was “bound” to accept

the trial court’s finding that the prosecutor did not intend to cause a mistrial. (Ibid.) But,

relying on prior high court authority — United States v. Dinitz (1976) 424 U.S. 600, 611

(Dinitz), which stated that retrial is barred when a prosecutor’s misconduct is “undertaken

to harass or prejudice” the defendant, and Jorn, supra, 400 U.S. 470, 485, which

suggested that retrial would be barred if prosecutorial or judicial misconduct amounted to

“overreaching” — the Oregon appellate court concluded that retrial was barred under the

federal double jeopardy clause because “the prosecutor’s conduct in this case meets one

of the other forbidden criteria, viz., overreaching.” (State v. Kennedy, supra, 619 P.2d at

p. 949.) Upon review, the United States Supreme Court in turn reversed the Oregon

appellate decision, concluding that the federal double jeopardy clause did not bar a

retrial. (Kennedy, supra, 456 U.S. 667, 679.) The high court’s conclusion was

unanimous; its reasoning, however, was closely divided.

As suggested by the Oregon appellate court, prior high court decisions had stated

that retrial in such circumstances should be barred when a prosecutor’s misconduct was

intended to (i) cause a mistrial, or (ii) result in harassment or overreaching sufficient to

prejudice a defendant’s double jeopardy interests. (Lee v. United States (1977) 432 U.S.

23, 34; Dinitz, supra, 424 U.S. 600, 611; Jorn, supra, 400 U.S. 470, 485).13 The majority


13

In none of these cases, nor in any other high court case, however, did the court

find retrial to be barred by the broader “overreaching conduct” standard.

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in Kennedy determined that the alternative standards under which retrial would be barred

in circumstances in which the prosecutor did not intend specifically to cause a mistrial

but instead intended merely to “harass” or “overreach,” were improperly overbroad and

unworkable in practice. (Kennedy, supra, 456 U.S. 667, 674-679.) Instead, the majority

in Kennedy held that when a defendant has moved for a mistrial because of the

prosecutor’s misconduct and the mistrial motion has been granted, the sole basis for

barring a retrial is a narrow one: retrial is barred only if the prosecutor intended by his or

her misconduct to produce a mistrial. (Id., at p. 679.) Applying that test, the majority

reversed the judgment of the state court of appeals, thereby upholding the trial court’s

denial of the defendant’s motion to dismiss.

Four members of the court signed Justice Stevens’ concurring opinion in Kennedy,

maintaining that the majority unnecessarily had abandoned the “harassment/overreaching”

aspect of the standard that it had articulated and applied in the prior cases cited above,

none of which resulted in the barring of a retrial. (Kennedy, supra, 456 U.S. 667, 681-684

(conc. opn. of Stevens, J. [joined by Brennan, Marshall, and Blackmun, JJ.]).) The

concurring justices asserted that the majority’s narrow standard, focussing solely upon the

prosecutor’s subjective intent to cause a mistrial, failed to address and protect interests at

the core of the double jeopardy clause (id., at p. 689), and these justices maintained that in

order to invoke the exception to the general rule permitting retrial after the defendant

successfully moves for mistrial for “overreaching” by the prosecutor, “a court need not

divine the exact motivation for the prosecutorial error. It is sufficient that the court is

persuaded that egregious prosecutorial misconduct has rendered unmeaningful the

defendant’s choice to continue or to abort the proceeding.” (Ibid., italics added.) The

concurring justices agreed, however, that this broader standard was not met on the facts of

the Kennedy case itself.14

14

The concurring opinion reasoned that the defendant’s double jeopardy rights were

not violated, because the prosecutor’s conduct at issue in Kennedy amounted to neither

(footnote continued on following page)

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Under the rule adopted by a majority of the high court in Kennedy, the federal

Constitution bars retrial if, but only if, the prosecution intended to cause a mistrial. (E.g.,

United States v. Gonzalez (10th Cir. 2001) 248 F.3d 1201, 1203-1205.)15 We proceed to

apply that standard.

C

In reviewing the record in order to assess evidence of intent by the prosecution to

induce a successful mistrial motion, we are mindful of the high court’s observation in

Kennedy, supra, 456 U.S. 667, that it is to be expected that appellate judges “will not

inexorably reach the same conclusion on a cold record at the appellate stage that they


(footnote continued from preceding page)

overreaching nor harassment and “could not have injected the kind of prejudice that
would render unmeaningful the defendant’s option to proceed with the trial.” (Kennedy,
supra, 456 U.S. 667, 693 (conc. opn. of Stevens, J.).) In reaching this determination, the
concurring opinion highlighted two general considerations that “follow from the rationale
for recognizing the exception” to the general rule permitting retrial after a defendant
successfully moves for mistrial. (Id., at p. 690.) Justice Stevens reasoned, “because the
exception is justified by the intolerance of intentional manipulation of the defendant’s
double jeopardy interests, a finding of deliberate misconduct normally would be a
prerequisite to a reprosecution bar.” (Ibid., fn. omitted.) Second, Justice Stevens
reasoned, “because the defendant’s option to abort the proceeding after prosecutorial
misconduct would retain real meaning for the defendant in any case in which the trial was
going badly for him, normally a required finding would be that the prosecutorial error
virtually eliminated, or at least substantially reduced, the probability of acquittal in a
proceeding that was going badly for the government.” (Ibid., fns. omitted.)

15

An extension of the Kennedy standard has been recognized by some lower courts

that have addressed the related issue of the proper application of the federal double
jeopardy clause in the context of prosecutorial misconduct that results not in a mistrial,
but instead in an appellate reversal of a tainted conviction. (See, e.g., United States v.
Wallach (2d.Cir. 1992) 979 F.2d 912, discussed post, pt. IV.D.) Neither party suggests
that a standard different from that articulated in Kennedy should be applicable to the
federal double jeopardy claim at issue in the present case. The high court has not
retreated from the standard set out in Kennedy, and we decline to address here whether
any other test is applicable to a federal double jeopardy claim following the granting of a
defendant’s motion for mistrial.

24

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might if any one of them had been sitting [on the matter] as a trial judge,” and that

“appellate judges [should] defer to the judgment of trial judges who are ‘on the scene’ in

this area.” (Id., at p. 676, fn. 7.)

Consistent with that approach, our appellate courts have upheld trial court findings

of a lack of intent on the part of the prosecution to induce a successful mistrial motion.

In Barajas v. Superior Court, supra, 149 Cal.App.3d 30, the court noted that although it

had “some discomfort with the trial court findings,” and suspected that the trial court

“may have had an overly benign view of the prosecutor’s naivete,” it nevertheless

determined that “because we are precluded from weighing the facts, we conclude [that]

substantial evidence supports the findings made by the trial court.” (Id., at p. 33, fn. 4;

accord, People v. Valenzuela-Gonzales, supra, 195 Cal.App.3d 728, 736 (Valenzuela-

Gonzales) [noting that the trial court’s “findings on the issue are supported by substantial

evidence, and, therefore, dispositive”].) In light of the holding in Kennedy, we shall

apply the same deferential approach here.

As observed earlier, the Court of Appeal determined from the cold record that the

prosecutors had intended to induce a successful mistrial motion. The court reasoned that

by advising Detective Branscomb during the recess to “tell the truth,” and then, upon

resumption of redirect examination, asking him why Benczeon did not testify at prior

hearings, the prosecutors must have intended to cause a mistrial. Defendants embrace

this view, arguing, among other things, that (i) under the circumstances the prosecutor’s

serious misconduct could have been intended only to terminate the second trial; (ii) the

record does not support the trial court’s findings that the prosecution’s case was, at the

time of mistrial, “overall . . . going very well for the People” and that “a District Attorney

sitting in the circumstances that they were sitting in at the time would want to proceed

and have a decision”; (iii) the planning that occurred during the recess proves that the

prosecutors wanted to terminate the second trial; and (iv) the prosecutors’ initial

assessment, articulated during the mistrial motion hearing, that the credibility of

Benczeon and Detective Branscomb had been “devastated” by the defense cross-

25

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examination, shows they believed that they were losing the case, and intended to abort

the trial in order to begin anew. Defendants also assert (v) that Prosecutor Droeger’s

accusations made during the dismissal hearing  that defense counsel had baited the

prosecutors and thereby forced the successful mistrial motion  demonstrated instead

that the prosecutors were “projecting” their own motives upon the defense, and in so

doing revealed their own intention. Finally, defendants stress (vi) that the prosecutors

gained various strategic advantages for the third trial by ending the second trial, and

defendants discount the prosecutors’ suggestions that retrial would have been risky for

the prosecution because of various problems with the prosecution’s witnesses.

We conclude that the Court of Appeal failed to accord proper deference to the trial

court’s factual findings. Indeed, a key passage of the Court of Appeal’s analysis rejecting

the trial court’s findings is itself based upon a misreading of the reporter’s transcript. The

Court of Appeal stated: “Our review of the record persuades us that there is insufficient

evidence to support the trial court’s conclusion as to the prosecutors’ intent. Indeed, the

record persuasively establishes their desire to cause a mistrial. In reaching this

conclusion, we agree with an earlier assessment by the trial court: ‘I think as soon as

those words were uttered, it was clear that a mistrial was going to occur. It wasn’t so

much, hey, let’s try to somehow gloss it over. Let’s try to somehow get to a point where

we can make a corrective ruling or make some type of statement to the jury to somehow

cure this mistake. It was obvious. And it was clear that when the district attorney,

through their actions, through their plan, had Detective Branscomb state that he was

murdered that meant that the case would be over.’ ” (Italics added.) The trial court,

however, never uttered the quoted words; they were instead defense counsel’s argument

to the trial court, and as noted above, the trial court ultimately reached the opposite

finding.16 Granting appropriate deference to the trial court’s actual findings based upon

16

Counsel for Batts, in his answer to the amicus curiae brief of the Los Angeles

County District Attorney, asserts that the Court of Appeal’s attribution of the above quote

(footnote continued on following page)

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its firsthand observations, we conclude that those findings — that the prosecutors did not

intend to cause a mistrial — are supported by substantial evidence.

The prosecutors instructed Detective Branscomb to provide a significant pause

before answering their fateful question. Prosecutor Droeger stated that he and Prosecutor

Stirling expected an objection prior to Branscomb’s answer, and that they were surprised

when no objection was made and the answer ensued. The record does, in fact, reflect that

Detective Branscomb paused significantly before giving his answer.

Although defendants assert that inconsistent testimony by various prosecution

witnesses at the 1999 trial rendered the prosecution’s case weak and that the cross-

examination of Detective Branscomb further weakened the prosecution’s case, the trial

court’s contrary assessment of the strength of the prosecution’s case is supported by

substantial evidence. Specifically, the former testimony of Benczeon identified both

defendants as the shooters, and he also positively identified the shooters from photo

arrays. Benczeon’s former testimony was corroborated by (i) Sonique Steward (Brian

Jones’s girlfriend), who stated that she saw defendant Batts arrive just prior to the

shootings and that Benczeon told her that Batts was one of the shooters; and by

(ii) testimony that McCrea’s wife, Leslie Jones, stated that she was afraid of McCrea

because he had killed persons before, including a cousin (Brian Jones) in Compton.

Viewed as a whole, the record amply supports the trial court’s finding that,

immediately prior to the declaration of mistrial, the evidence pointing to defendants as

the actual killers of Brian Jones on September 12, 1997, was quite strong, and that the

cross-examination of Detective Branscomb was not of a nature that would have left a


(footnote continued from preceding page)

to “the trial court” was a mere “typographical error,” and that actually the Court of
Appeal intended merely to assert its agreement with “the trial counsel.” Viewing the
Court of Appeal’s syntax in context, we cannot agree with defense counsel’s creative
reading.

27

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reasonable prosecutor with the belief that the case was lost and beyond rehabilitation.

This evaluation by the trial judge supports the trial court’s finding that the prosecutors did

not intend to induce a successful mistrial motion.

In sum, we conclude that the record supports the trial court’s determination that

the prosecutors did not intend to cause a mistrial, and we defer to that factual finding.17 It

follows that the Court of Appeal erred by declining to defer to the trial court’s supported

findings. The trial court properly concluded that retrial is not barred under the federal

Constitution, pursuant to the standard set out in Kennedy, supra, 456 U.S 667. (See ante,

fn. 15.)

IV

We turn to the state double jeopardy clause, article I, section 15, which, in

language similar to but still somewhat different from the Fifth Amendment, provides:

“Persons may not twice be put in jeopardy for the same offense . . . .” (Cal. Const., art I.

§15.) The People ask us to “clarify” that the “intent-to-cause-mistrial” standard adopted

by the high court in Kennedy, supra, 456 U.S. 667, also applies to and disposes of

defendants’ state constitutional double jeopardy claim. Defendants note that the scope of

protection afforded by the state constitutional provision was not addressed in the trial

court or in the Court of Appeal, but argue that if it becomes necessary to reach the issue

(that is, if  as we have concluded  their Fifth Amendment claim does not entitle them

to relief), we should conclude that article I, section 15, is more protective of double

jeopardy rights than the Fifth Amendment as construed by the high court.


17

In this regard, we agree with the observation of the Washington Court of Appeals:

“When adrenaline overcomes judgment and trial court rulings are ignored, the trial may
lose its civilized attributes and be reduced to the level of a dog chasing a cat. A mistrial
will often be the result, as it was here. But we cannot say the trial court erred in
characterizing the State’s conduct as insufficient to bar a retrial. . . .” (State v. Lewis
(Wash.Ct.App. 1995) 898 P.2d 874, 877.)

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A

When the double jeopardy clause was made part of the 1849 California

Constitution (1849 Cal. Const., art. I, § 8) it provided: “No person shall be subject to be

twice put in jeopardy for the same offence.” (Browne, Rep. of Debates in Convention of

Cal. on Formation of State Constit. (1850), appen., p. IV.) This language, which was

borrowed from the New York Constitution (see Browne, at p. 31), was endorsed by the

drafters of the 1849 Constitution without debate. (Id., pp. 30-31, 41.) Subsequently, the

drafters of the 1879 Constitution adopted similar language (“No person shall be twice put

in jeopardy for the same offense”) — again, without debate. (Cal. Const., art. I, former

§ 13, now § 15; see 3 Willis & Stockton, Debates and Proceedings, Cal. Const.

Convention 1878-1879, pp. 1188-1189, 1425-1426, 1491, 1509.) The parties have not

cited, nor have we discovered, any indication in these materials suggesting that the

drafters, or the electorate that adopted these provisions, considered the meaning of the

double jeopardy guarantee in the context presented in this case. Nor have we discovered

any evidence that the drafters of the 1974 constitutional revision of article I (the current

incarnation of the double jeopardy clause, article I, section 15) — or the electorate that

adopted it — considered the issue of the application of the double jeopardy guarantee in

the context presented.18 We must, nonetheless, determine the appropriate interpretation


18

(See Cal. Const. Revision Com., Article I (Declaration of Rights) Background

Study 4 (Dec. 1969) pp. 19, 24; Cal. Const. Revision Com., Article I (Declaration of
Rights) Rep. IV (Feb. 1970) pp. 6-10; Cal. Const. Revision Com., Proposed Revision,
Proposed Revision (pt. 5, 1971) p. 24; see generally Cal. Const. Revision Com., Rep.,
Materials Relating to Provisions in Cal. Const. Recommended or Endorsed by Com.
(Dec. 10, 1974) pp. 74-81.) We also have examined the materials that were placed before
the voters when the provision was amended in 1974. (Ballot Pamp., Gen. Elec. (Nov. 5,
1974) text of Prop. 7, pp. 26, 28-29.) We have found nothing in the ballot materials to
suggest that the voters’ attention was focussed upon the scope of the double jeopardy
guarantee as it relates to the issue we face here.

29

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of article I, section 15 (“Persons may not twice be put in jeopardy for the same offense”)

as applied to the circumstances presented in this case.

As defendants observe, whereas the Fifth Amendment to the federal Constitution,

as construed by Kennedy, supra, 456 U.S. 667, establishes the minimum standards of

double jeopardy protection for criminal defendants, the California Constitution may

provide a higher level of double jeopardy protection. (Stone v. Superior Court, supra, 31

Cal.3d 503, 510; see also Raven v. Deukmejian (1990) 52 Cal.3d 336.) Indeed, in some

double jeopardy contexts our court has interpreted the double jeopardy safeguard in

article I, section 15, of the California Constitution as providing greater protection than the

double jeopardy clause of the federal Constitution. (See Curry v. Superior Court (1970)

2 Cal.3d 707, 716 [construing state double jeopardy provision to bar retrial after the

granting of a mistrial on the trial court’s own motion and without the defendant’s

consent, but for the defendant’s benefit, and declining to adopt the applicable federal

constitutional rule of Gori v. United States (1961) 367 U.S. 364, 369]; People v. Collins

(1978) 21 Cal.3d 208, 216 [construing state double jeopardy provision to bar imposition

of greater sentence on retrial after the defendant’s successful appeal, contrary to the

applicable federal constitutional rule of North Carolina v. Pearce (1969) 395 U.S. 711,

719-721].) In other circumstances, however, we have construed the state double jeopardy

provision consistently with its federal counterpart. (People v. Monge (1997) 16 Cal.4th

826, 844-845 (Monge) (lead opn. of Chin., J.) [neither state nor federal double jeopardy

clause applies to retrial of a prior conviction allegation that previously was reversed on

appeal for insufficient evidence].) The question is, which approach is appropriate in the

case now before us? As we observed in Monge, supra, 16 Cal.4th at p. 844, “ ‘ “cogent

reasons must exist” ’ ” before we will construe the double jeopardy clause of the state

Constitution differently from its federal counterpart. We proceed to explore whether

such reasons exist under the circumstances presented by the instant case.

30

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B

Sister state jurisdictions that have determined the proper interpretation of their

own state Constitution’s double jeopardy clause under similar circumstances have

divided between following the narrow Kennedy test, and a broader, more expansive test.19

We examine those two lines of cases below.

1

Based in large part upon its clarity and perceived ease of application, the narrow

“intent-to-cause-mistrial” test set out by the majority in Kennedy, supra, 456 U.S. 667,

has been adopted by the high courts of six states as the appropriate test under the double


19

Most state jurisdictions have not addressed the question, and many others

expressly have left it open. Indeed, this court itself has previously noted, and declined to
resolve, a related issue. In In re Martin (1987) 44 Cal.3d 1, a habeas corpus proceeding
in this court, the petitioner successfully argued that his convictions for conspiracy to
commit extortion, and second degree murder, should be set aside because at the
petitioner’s trial the prosecution interfered with the petitioner’s right to present the
testimony of three of his witnesses. (Id., at p. 52.) The petitioner in Martin also asserted
that in view of the misconduct, retrial — which, we observed, is the normal consequence
when it is determined on habeas corpus that a judgment is void — should be barred,
under the circumstances, by federal and state double jeopardy principles. (Id., at p. 53.)
We rejected the petitioner’s federal double jeopardy claim under Kennedy, supra, 456
U.S. 667, and then turned to the petitioner’s alternative contention, made under the state
Constitution, article I, section 15: “Specifically, [petitioner] derives a general ‘rule’ from
Justice Stevens’s concurring opinion in Kennedy, to the effect that the double jeopardy
clause bars retrial when the prosecution ‘engage[s] in “overreaching” or “harassment” ’
(456 U.S. at p. 683), i.e., misconduct that amounts to the ‘intentional manipulation of the
defendant’s double jeopardy interests’ (id., at p. 690 [conc. opn. of Stevens, J.]). He then
claims that this ‘rule’ constitutes the proper test for implementing the independent state
constitutional guarantee against double jeopardy. Finally, he concludes that under this
‘rule’ retrial is barred in this case.” (Martin, supra, 44 Cal.3d 1, 54.) We held that
“[e]ven if the ‘rule’ is sound and constitutes the proper test for implementing the
independent state constitutional guarantee, its application to the facts of this case does not
result in the outcome petitioner seeks. . . . [A]lthough petitioner has clearly demonstrated
that the prosecution engaged in prejudicial misconduct at his trial, he has simply failed to
show that it ‘intentional[ly] manipulat[ed] . . . [his] double jeopardy interests . . . .’ ”
(Ibid.)

31

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jeopardy clause of each jurisdiction’s constitution. (State v. Bell (Iowa 1982) 322

N.W.2d 93, 94; State v. Chapman (Me. 1985) 496 A.2d 297, 300; State v. Diaz (R.I.

1987) 521 A.2d 129, 133; State v. White (N.C. 1988) 369 S.E.2d 813, 815; Harris v.

People (Colo. 1995) 888 P.2d 259, 266, fn. 4; State v. Williams (Kan. 1999) 988 P.2d

722, 727-728.) The Kennedy test also has been endorsed as the appropriate standard

under article I, section 15, in one California Court of Appeal decision.20

Nevertheless, the intent-to-cause-mistrial test has been viewed as inadequate

because it protects only a very narrow range of a defendant’s legitimate double jeopardy

interests. (See Henning, Prosecutorial Misconduct and Constitutional Remedies (1999)

77 Wash.U. L.Q. 713, 803-808 (Constitutional Remedies); Ponsoldt, When Guilt Should

be Irrelevant: Government Overreaching as a Bar to Reprosecution Under the Double

Jeopardy Clause After Oregon v. Kennedy, supra, 69 Cornell L.Rev. 76, 94-99

(Government Overreaching); Rosenthal, Prosecutor Misconduct, Convictions, and

Double Jeopardy: Case Studies in an Emerging Jurisprudence (1998) 71 Temple L.Rev.

887, 892-895, 909-917, 961 (Emerging Jurisprudence); Thomas, Solving the Double


20

In Valenzuela-Gonzales, supra, 195 Cal.App.3d 728, the prosecutor asked a

witness a question relating to the defendant’s prior drug arrest, and in response the trial
court indicated that it would not allow questioning on that subject. Later, however, the
prosecutor asked another witness whether the defendant “has any problems with drugs.”
The defendant objected and moved for a mistrial, which the court granted, based upon the
prosecutor’s misconduct. (Id., at p. 732.) Thereafter the defendant entered a plea of once
in jeopardy and filed a motion to sustain that plea. The trial court denied the motion. In
detailed findings, the court concluded that the prosecutor did not intend to cause a
mistrial, but instead simply was attempting to obtain a conviction. (Id., at pp. 734-736.)
The Court of Appeal concluded that the trial judge’s findings were “supported by
substantial evidence, and, therefore, dispositive.” (Id., at p. 736.) Accordingly, the court
concluded that the Fifth Amendment’s double jeopardy bar did not apply. (Ibid.) The
Court of Appeal, considering the defendant’s arguments in support of construing the
California Constitution’s double jeopardy clause in a broader and more protective
fashion, acknowledged that at the time (1987), two states — Oregon and Arizona — had
adopted such an approach, but it declined to do so under article I, section 15.

32

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Jeopardy Riddle (1996) 69 So.Cal. L.Rev. 1551, 1563-1564 (Double Jeopardy Riddle);

Reiss, Prosecutorial Intent in Constitutional Criminal Procedure (1987) 135 U.Pa.

L.Rev. 1365, 1425-1428 (Prosecutorial Intent).) For example, as noted by Professor

Reiss in Prosecutorial Intent, supra, 135 U.Pa. L.Rev. page 1426: “When a defendant’s

‘valued right to have his trial completed by a particular tribunal’ is threatened by serious

prosecutorial misbehavior at trial, Kennedy does much to deny any protection of the right

. . . [because it] eliminates any double jeopardy concern with prosecutorial overreaching

prompted by improper motives other than the intent to provoke a mistrial. Thus, a

defendant faced with a prosecutor who is willing to commit reversible error for other

improper reasons . . . has no redress under the clause.”

The federal test’s application to the facts of this case (see ante, pt. III.C) illustrates

the narrow scope and limitations of that test. Had the prosecutors intentionally

committed their misconduct not to cause a mistrial, but instead to improperly prejudice

the jury to convict in order to avoid a likely acquittal, the prosecutors’ misconduct clearly

would implicate defendants’ double jeopardy interests, which, as we have seen, include a

defendant’s “ ‘ “valued right to have his trial completed by a particular tribunal.” ’ ”

(People v. Marshall (1996) 13 Cal.4th 799, 824 [construing federal and state double

jeopardy clauses]; see also Government Overreaching, supra, 69 Cornell L.Rev. 76, 81.)

And yet that aspect of a defendant’s double jeopardy interests lies outside the high

court’s narrow test, and is unprotected by it. Because the state double jeopardy clause is

implicated when a prosecutor, believing that a particular jury is likely to return an

acquittal, intentionally commits misconduct in order to improperly prejudice the jury and

obtain a conviction — and because the majority’s narrow test in Kennedy fails to protect

that aspect of a defendant’s double jeopardy interests — we conclude that the federal test,

standing alone, is insufficient to protect interests that our state Constitution’s double

jeopardy clause is intended to safeguard.

33

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2

Competing tests designed to more fully protect double jeopardy interests have

been adopted by the high courts of six states. (State v. Kennedy (Or. 1983) 666 P.2d

1316, 1326 (Kennedy II); Pool v. Superior Court (Ariz. 1984) 677 P.2d 261, 271-272

(Pool); Com. v. Smith (Pa. 1992) 615 A.2d 321, 325 (Smith); State v. Breit (N.M. 1996)

930 P.2d 792, 803 (Breit); Bauder v. State of Texas (Tex.Crim.App. 1996) 921 S.W.2d

696, 699 (Bauder); State v. Rogan (Hawaii 1999) 984 P.2d 1231, 1249 (Rogan).)

These broader tests, however, have been subject to criticism as well. The

standards adopted by Pennsylvania in Smith, supra, 615 A.2d 321, and by Hawaii in

Rogan, supra, 984 P.2d 1231, for example, bar reprosecution not only when prosecutorial

misconduct is intended to cause a mistrial, but also when a prosecutor’s conduct is

“intentionally undertaken to prejudice the defendant to the point of the denial of a fair

trial” (Smith, supra, 615 A.2d at p. 325)21 or is “so egregious that, from an objective

standpoint, it clearly denied a defendant his or her right to a fair trial.” (Rogan, supra,

984 P.2d at p. 1249, fn. omitted).22 These standards appear to blur inappropriately the

line between (i) the “normal” species of prejudicial prosecutorial misconduct that violates


21

The Pennsylvania Supreme Court held in Smith: “The double jeopardy clause of

the Pennsylvania Constitution prohibits retrial of a defendant not only when prosecutorial
misconduct is intended to provoke the defendant into moving for a mistrial, but also
when the conduct of the prosecutor is intentionally undertaken to prejudice the defendant
to the point of the denial of a fair trial.” (Smith, supra, 615 A.2d 321, 325, overruling
Com. v. Simons (Pa. 1987) 522 A.2d 537, 540-541, in which the court had adopted the
narrow test of Kennedy as the appropriate test under the state double jeopardy clause.)

22

The Supreme Court of Hawaii held in Rogan that under the state double jeopardy

clause, “reprosecution of a defendant after a mistrial or reversal on appeal as a result of
prosecutorial misconduct is barred where the prosecutorial misconduct is so egregious
that, from an objective standpoint, it clearly denied a defendant his or her right to a fair
trial. In other words, we hold that reprosecution is barred where, in the face of egregious
prosecutorial misconduct, it cannot be said beyond a reasonable doubt that the defendant
received a fair trial.” (Rogan, supra, 984 P.2d 1231, 1249, fns. omitted.)

34

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a defendant’s due process right to a fair trial and hence warrants the granting of a mistrial

or the reversal of any conviction and a retrial of the offense, and (ii) the exceptional form

of prosecutorial misconduct that warrants not only a mistrial or reversal of any resulting

conviction, but also dismissal of the charges and a prohibition of any reprosecution of the

defendant for the offense.23

The standards adopted in Oregon, Arizona, New Mexico, and Texas exhibit

similar problems. The Oregon Supreme Court, in Kennedy II, supra, 666 P.2d 1316,

construed the Oregon Constitution’s double jeopardy clause as barring retrial “when

improper official conduct is so prejudicial to the defendant that it cannot be cured by

means short of a mistrial, and if the official knows that the conduct is improper and

prejudicial and either intends or is indifferent to the resulting mistrial or reversal.” (Id.,


23

In Smith, supra, 615 A.2d 321, the Pennsylvania court barred retrial in a double

murder case because of extensive, pervasive, and outrageous misconduct by the
prosecution, including the presentation of knowingly false testimony. In Rogan, supra,
984 P.2d 1231, the Hawaii court barred retrial in a sexual assault case after the
prosecutor, at closing argument, made a single, but wholly inappropriate, remark that
invited the jury to exercise racial prejudice. In both cases, it may be assumed that
flagrant due process violations occurred, and that the defendant in each instance was
deprived of a fair trial. But in neither case did the reviewing court clearly articulate
independent reasons for its conclusion that a double jeopardy violation, triggering
dismissal and a bar to reprosecution, also occurred. Instead, it appears that in each case,
the reviewing court was so offended by the misconduct that it concluded that the normal
remedy — reversal and retrial — was inadequate. As a dissenting justice observed in a
subsequent Pennsylvania Supreme Court case extending Smith, “a double jeopardy
standard focussing upon the prosecutor’s generalized culpability as it relates to fairness
lacks appropriate constraints.” (Com. v. Martorano (Pa. 1999) 741 A.2d 1221, 1226 (dis.
opn. of Saylor, J.).) In a similar vein, Professor Henning, in Constitutional Remedies,
supra, 77 Wash.U. L.Q. 713, 813, has criticized the tendency of courts to “respond[] to
the superficial allure of the double jeopardy remedy which automatically prohibits a
retrial, because the severity of the sanction appear[s] to punish the prosecutor for his
misconduct in a way that a new trial [would] not. Yet, double jeopardy is neither another
form of the due process protection ensuring the propriety of the criminal trial nor a means
to protect against outrageous government conduct.”

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at p. 1326, italics added.) The Arizona Supreme Court has adopted a similar standard,

finding retrial barred under the Arizona Constitution “when a mistrial is granted on

motion of defendant or declared by the court under the following conditions: [¶] 1.

Mistrial is granted because of improper conduct or actions by the prosecutor; and [¶] 2.

such conduct is not merely the result of legal error, negligence, mistake, or insignificant

impropriety, but, taken as a whole, amounts to intentional conduct which the prosecutor

knows to be improper and prejudicial, and which he pursues for any improper purpose

with indifference to a significant resulting danger of mistrial or reversal; and [¶] 3. the

conduct causes prejudice to the defendant which cannot be cured by means short of a

mistrial.” (Pool, supra, 677 P.2d 261, 271-272, italics added, fn. omitted.) The New

Mexico Supreme Court has adopted a modified version of the Oregon standard, finding

retrial barred under the New Mexico Constitution “when improper official conduct is so

unfairly prejudicial to the defendant that it cannot be cured by means short of a mistrial or

a motion for a new trial, and if the official knows that the conduct is improper and

prejudicial, and if the official either intends to provoke a mistrial or acts in willful

disregard of the resulting mistrial, retrial, or reversal.” (Breit, supra, 930 P.2d 792, 803,

italics added.)

In our view, each of these tests (and a similar formulation from Texas)24 is less

than satisfactory, because none articulates explicitly the precise double jeopardy basis for

a conclusion that the principles underlying a defendant’s double jeopardy interest have

been violated. Accordingly, as applied to different factual settings, each test improperly


24

Pursuant to Texas law, “a successive prosecution is jeopardy barred [under the

Texas Constitution’s double jeopardy clause] after declaration of a mistrial at the
defendant’s request, not only when the objectionable conduct of the prosecutor was
intended to induce a motion for mistrial, but also when the prosecutor was aware but
consciously disregarded the risk that an objectionable event for which he was responsible
would require a mistrial at the defendant’s request.” (Bauder, supra, 921 S.W.2d 696,
699, italics added.)

36

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may mandate double jeopardy relief (that is, barring any trial) for instances of

prosecutorial misconduct that more appropriately should be remedied by reversal and

retrial. (See Constitutional Remedies, supra, 77 Wash.U. L.Q. 713, 813 [criticizing

application of the New Mexico standard as affording a double jeopardy remedy for a due

process violation].)

C

As noted above, we have concluded that a narrow test, focussing solely upon

whether the prosecutor intended to induce a successful mistrial motion, fails to protect

fully the legitimate interest of a defendant in securing a resolution (and possible acquittal)

in the pending trial, and hence inadequately protects double jeopardy interests set out in

California Constitution article I, section 15. Accordingly, we conclude that “cogent

reasons . . . exist” for construing the double jeopardy clause of the state Constitution

differently from its federal counterpart (Monge, supra, 16 Cal.4th 826, 844) and that a

broader test is required in order to more fully protect double jeopardy interests

guaranteed under our state Constitution.25

At the same time, the standard that we adopt should not be so broad as to lead to

the imposition of the double jeopardy bar — with its drastic sanction prohibiting

retrial — in circumstances in which such a sanction is unwarranted. What is needed is a

standard that sufficiently protects double jeopardy interests, but also retains and enforces

a distinction between “normal” prejudicial prosecutorial misconduct that violates a

defendant’s due process right to a fair trial and warrants reversal and retrial, and the form

of prosecutorial misconduct that not only constitutes a due process violation but also a

double jeopardy violation, and hence warrants not only reversal but dismissal and a bar to

reprosecution.


25

To the extent it is inconsistent with this conclusion, Valenzuela-Gonzales, supra,

195 Cal.App.3d 728, is disapproved.

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D

In formulating such a standard, we find helpful a line of decisions stemming from

the decision of the Second Circuit Court of Appeals in United States v. Wallach, supra,
979 F.2d 912 (Wallach II), a decision that considered the double jeopardy consequences

not of a mistrial based upon prosecutorial misconduct, but instead of a reversal of a

conviction on appeal because of prosecutorial misconduct at trial. The decision in

Wallach II followed the Second Circuit’s earlier decision in United States v. Wallach (2d

Cir. 1991) 935 F.2d 445 (Wallach I), and we begin with a brief summary of the first

Wallach decision.


At the criminal trial at issue in Wallach I, supra, 935 F.2d 445, a key prosecution

witness, who previously testified that he had forsworn gambling after a certain time, was

impeached with documentary evidence (gambling markers) suggesting that, during the

relevant time, the witness in fact had continued to engage in gambling. This

impeachment was wholly collateral to the case against the defendant (Wallach), but it

clearly reflected on the witness’s credibility. On redirect examination by the prosecution,

the witness offered an innocent explanation for the gambling documentation, asserting,

for example, that in fact he had obtained $50,000 in chips but had given them to a friend

and had not used them himself. (Id., at pp. 453-456.) Wallach was convicted, and

thereafter additional evidence surfaced, making it clear that the prosecution witness

indeed had lied concerning his own gambling. At that point the government prosecuted

and convicted the witness for perjury. Wallach’s subsequent motion for a new trial was

granted, his convictions were reversed on the ground of prosecutorial misconduct (the

court concluding that the government “should have known” that the witness was

committing perjury when he claimed to have stopped gambling), and a new trial was

ordered. (Id., at p. 457.)

Prior to the commencement of retrial on reduced counts, Wallach moved to

dismiss on double jeopardy grounds, asserting that retrial was barred. The district court

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denied that motion, and upon review the Second Circuit, in Wallach II, supra, 979 F.2d

912, affirmed the district court’s ruling, concluding that retrial was not barred.

Addressing Wallach’s contention that under the rationale of the high court’s decision in

Kennedy, supra, 456 U.S. 667, the federal double jeopardy clause “ ‘bars a second

prosecution when the prosecutor engages in serious misconduct with the intention of

preventing an acquittal’ ” (Wallach II, supra, 979 F.2d at p. 915, italics added), the

circuit court agreed that “there is force to Wallach’s argument for some sort of extension”

of Kennedy in the context before it, but reasoned that “[e]very action of a prosecutor in

the course of a trial is taken ‘with the intention of preventing an acquittal.’ [Citation.] If

the rationale of Kennedy were as broad as claimed by Wallach, the Double Jeopardy

Clause would bar retrial of every defendant whose conviction is reversed because of

intentional misconduct on the part of a prosecutor. For example, knowing use of perjured

testimony that ‘could have affected the judgment of the jury’ would result not only in

reversal of a conviction, [citation] but also in a bar to retrial on jeopardy grounds. The

Supreme Court could not possibly have mandated that result in Kennedy. Such a result

would obliterate the precise distinction drawn in Kennedy between misconduct that

merely results in a mistrial and misconduct undertaken for the specific purpose of

provoking a mistrial.” (Id., at p. 916.)

The court in Wallach II continued: “If any extension of Kennedy beyond the

mistrial context is warranted, it would be a bar to retrial only where the misconduct of the

prosecutor is undertaken, not simply to prevent an acquittal, but to prevent an acquittal

that the prosecutor believed at the time was likely to occur in the absence of his

misconduct.” (Wallach II, supra, 979 F.2d 912, 916, italics added.) The court explained:

“The prosecutor who acts with the intention of goading the defendant into making a

mistrial motion presumably does so because he believes that completion of the trial will

likely result in an acquittal. That aspect of the Kennedy rationale suggests precluding

retrial where a prosecutor apprehends an acquittal and, instead of provoking a mistrial,

avoids the acquittal by an act of deliberate misconduct. Indeed, if Kennedy is not

39

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extended to this limited degree, a prosecutor apprehending an acquittal encounters the

jeopardy bar to retrial when he engages in misconduct of sufficient visibility to

precipitate a mistrial motion, but not when he fends off the anticipated acquittal by

misconduct of which the defendant is unaware until after the verdict. There is no

justification for that distinction.” (Ibid.)

The court in Wallach II concluded, however, that even under this broader

standard, no double jeopardy violation was demonstrated in that case, because “[t]he

evidence against Wallach and his co-defendants was quite strong,” giving the prosecution

“every reason to anticipate a conviction” (Wallach II, supra, 979 F.2d 912, 916), and

because the record supported the trial court’s finding that the prosecutors did not know of

the perjury. (Id., at p. 917.) Accordingly, the court determined, “the factual predicate”

for finding a double jeopardy violation — “deliberate prosecutorial misconduct

undertaken to avoid an acquittal that the prosecutors believed was likely in the absence of

their misconduct — is totally lacking.” (Ibid.)

Because we need consider in the present case only the proper standard under the

state double jeopardy clause for prosecutorial misconduct that triggers a defendant’s

successful mistrial motion, we need not, and do not, determine whether Wallach II

articulates a proper test — under either the federal or state constitutional double jeopardy

clauses — for misconduct that results in reversal on appeal or in relief on habeas corpus.

(See ante, fns. 15 & 19.)26 Our sole concern in this case is the proper test under our state

26

The test set out in Wallach II has been reaffirmed by the Second Circuit, and

endorsed by the First Circuit Court of Appeals and various state jurisdictions. (United
States v. Pavloyianis (2d Cir. 1993) 996 F.2d 1467, 1473-1475 (Pavloyianis) [finding no
double jeopardy bar]; United States v. Gary (1st Cir. 1996) 74 F.3d 304, 315 [same];
State v. Colton (Conn. 1995) 663 A.2d 339, 344-348 (Colton) [remanding for Wallach II
findings under federal double jeopardy clause]; State v. Lettice (Wis.Ct.App. 1998) 585
N.W.2d 171, 180-181 [imposing double jeopardy bar]; State v. Chase (Me. 2000) 754
A.2d 961, 964 [finding no double jeopardy bar]; State v. Marti (N.H. 2001) 784 A.2d
1193, 1196-1197 [same].) Other jurisdictions have declined to adopt the approach set out
in Wallach II, supra, 979 F.2d 912 (e.g., State v. Swartz (Iowa Ct.App. 1995) 541

(footnote continued on following page)

40

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Constitution’s double jeopardy clause for intentional prosecutorial misconduct that

produces not a reversal on appeal, but a mistrial. In formulating such a test, we find the

decision in Wallach II to be helpful because it illuminates a double jeopardy interest

beyond the narrow one recognized in Kennedy, supra, 456 U.S. 557. Wallach II

recognizes that a defendant’s double jeopardy rights are implicated not only when a

prosecutor intends to and does provoke a mistrial, but also when a prosecutor

intentionally commits misconduct in order to deprive the defendant of an acquittal that

the prosecutor believed, in light of the events at trial (including reactions and demeanor

of the jury), was likely to occur in the absence of the misconduct. Because we believe

the decision in Wallach II accurately identifies the scope of interests that the California

double jeopardy clause is intended to protect, we find that opinion useful in crafting an

appropriate state double jeopardy standard. (See Emerging Jurisprudence, supra, 71

Temple L.Rev. 887, 909 [Wallach II test “open[s] the way to a double

jeopardy/misconduct jurisprudence that is far more satisfactory than the narrow holding

of Kennedy,” because it is “tied directly to the principles and rationale underlying the

double jeopardy protection in the first place”].)

E

Without attempting to articulate a double jeopardy test that will be applicable in

all circumstances, we conclude that the double jeopardy clause of California Constitution


(footnote continued from preceding page)

N.W.2d 533, 538-540 [but also noting that, on the facts before it, the court would find
retrial not barred under the Wallach II approach]; Ex Parte Mitchell (Tex.Crim.App.
1997) 977 S.W.2d 575, 579-580; State v. Keenan (Ohio 1998) 689 N.E.2d 929, 940).
Still other jurisdictions that initially expressed skepticism have since spoken positively of
the Wallach II approach. (Compare United States v. Doyle (7th Cir. 1997) 121 F.3d
1078, 1085 (per Posner, J.) with United States v. Catton (7th Cir. 1997) 130 F.3d 805,
807-808 (per Posner, J.).) See generally Emerging Jurisprudence, supra, 71 Temple
L.Rev. at pages 926-933.

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article I, section 15 bars retrial following the grant of a defendant’s mistrial motion

(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. (See Kennedy II,

supra, 666 P.2d 1316, 1326; Wallach II, supra, 979 F.2d 912, 916-917; Emerging

Jurisprudence, supra, 71 Temple L.Rev. 887, 916.)

In our view, the latter aspect of the test, which requires a court to find, as an

objective matter, that the prosecution’s misconduct in fact deprived the defendant of a

reasonable or realistic prospect of acquittal, is appropriate to guard against an

unwarranted imposition of the double jeopardy bar. If, despite a prosecutor’s subjective

belief that an acquittal was likely to occur in the absence of misconduct, the court

determines that, from an objective perspective, an acquittal was not a realistic prospect, a

bar of retrial, permanently relieving such a defendant of any criminal responsibility for

his or her charged conduct, would constitute a windfall for the defendant. In our view,

when such prosecutorial misconduct has not deprived a defendant of a reasonable

prospect of an acquittal, double jeopardy interests are not unfairly compromised if a

defendant who successfully moves for a mistrial remains subject to retrial.27


27

We recognize, of course, that the United States Supreme Court in Kennedy, supra,
456 U.S. 667, attached no similar objective component to its standard barring retrial
whenever the prosecution commits misconduct with the intent to produce a mistrial, and
we similarly have not included such an objective component in the first (intent-to-
provoke-mistrial) prong of the proposed state constitutional standard. When the
prosecution acts for the specific purpose of provoking a mistrial, and thereby
intentionally and directly subverts the defendant’s right not to be subjected to repeated

(footnote continued on following page)

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Applying the foregoing test to the present case, it is apparent that the misconduct

was intentional, and that its prejudicial impact was sufficient to justify the trial court’s

decision to grant a mistrial. As noted ante, part III.C, however, the trial court’s findings

amply support its conclusion that the misconduct was not committed with the intent to

induce a mistrial. Accordingly, in this case, the state constitutional double jeopardy

guarantee would bar retrial only if the deliberate misconduct was intended by the

prosecution to prevent an acquittal that the prosecution subjectively believed at the time

was likely to occur in the absence of the misconduct, and acquittal was, in fact, an

objectively reasonable prospect absent the misconduct.

Although the trial court did not have in mind the subjective intent standard that we

now articulate, and hence did not expressly consider whether the prosecutors’ deliberate

misconduct was intended by them to prevent an acquittal that they believed at the time

was likely to occur in the absence of the misconduct, the trial court did find that, despite

the negative impact of the cross-examination upon the People’s case, the prosecutors

never actually believed the case was lost. The court stated: “I don’t see that it rises to a

level that . . . a reasonable evaluation of the case would be that you’re going to lose

because of that, in the District Attorney’s point of view. Nor do I believe that they

thought that.” (Italics added.) Based upon these findings, we conclude that the

prosecutors did not subjectively believe at the relevant time that, absent their misconduct,

an acquittal was likely to occur — and hence we need not remand for a further hearing to

resolve that factual question.

Furthermore, even if the record were viewed as ambiguous on the question of the

prosecutors’ subjective intent, we would find no violation of defendants’ state


(footnote continued from preceding page)

prosecutions for the same offense, we believe that prohibiting retrial is an appropriate and
proportional sanction, whether or not acquittal was a realistic prospect.

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constitutional double jeopardy rights here, because we conclude that the objective

component of the test is not satisfied. As explained in part III.C, ante, the record

demonstrates that even after the defense cross-examination of Detective Branscomb (in

other words, immediately prior to the misconduct that induced a successful mistrial

motion), the People’s case still was quite strong and, from an objective perspective, the

prosecutorial misconduct did not deprive defendants of a reasonable prospect of an

acquittal. It follows that the trial court did not err in denying defendants’ motions to

dismiss on state double jeopardy grounds.

V

We wish to emphasize that we agree completely with the trial court’s finding in

the 1999 trial that the misconduct of the prosecutors during that trial was indefensible and

violated defendants’ due process rights to a fair trial. The proper remedy for such a due

process violation was, and remains, the declaration of a mistrial, followed by a retrial.

For the reasons set out above, we conclude that neither defendants’ federal nor their state

double jeopardy rights were violated in this case.28


28

The Los Angeles District Attorney, appearing as amicus curiae, argues 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, supra, 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., Kennedy, supra, 456
U.S. 667, 675 [“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.

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Accordingly, the judgment of the Court of Appeal is reversed and the matter is

remanded to that court for resolution of the remaining issues raised on appeal.

GEORGE, C.J.

WE CONCUR:

KENNARD, J.
BAXTER, J.
WERDEGAR, J.
CHIN, J.
BROWN, J.



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CONCURRING AND DISSENTING OPINION BY MORENO, J.




I join in the majority’s holding that the double jeopardy clause of the California

Constitution provides slightly broader protection than its federal counterpart. I write

separately because, in my view, the Court of Appeal was correct that retrial is barred in

the present case under the double jeopardy clause of the federal Constitution.

In Oregon v. Kennedy (1982) 456 U.S. 667, the high court held that when a

defendant successfully moves for a mistrial based upon prosecutorial misconduct, the

double jeopardy clause of the Fifth Amendment bars a retrial only if “the conduct giving

rise to the successful motion for a mistrial was intended to provoke the defendant into

moving for a mistrial.” (Id. at p. 679.) Despite the trial court’s contrary finding, I agree

with the Court of Appeal that there is no doubt the prosecutors knew their intentional

misconduct would provoke a mistrial.

As the majority opinion recounts in greater detail, defendant Tracy Batts was tried

in 1998 for the murder of Brian Jones in a gang-related shooting. The victim’s brother,

Benczeon Jones, was wounded during the attack and identified the shooters as Batts and

Terrance McCrea, who had not been apprehended. Batts was convicted but was granted a

new trial based upon newly discovered evidence. Prior to the retrial, Benczeon was

murdered in March, 1999.

Also prior to the retrial, McCrea was apprehended. At the second trial against

both defendants, Benczeon’s testimony at the first trial was admitted as to Batts alone

under Evidence Code section 1291, which permits the former testimony of an unavailable

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witness to be admitted against a party to the earlier proceeding. Benczeon’s former

testimony also was admitted as to both defendants under Evidence Code section 1231,

which under specified circumstances allows admission of a decedent’s prior statements in

a gang-related prosecution if the decedent “died from other than natural causes.”

Evidence Code section 1231.4 provides: “If evidence of a prior statement is

introduced pursuant to this article, the jury may not be told that the declarant died from

other than natural causes, but shall merely be told that the declarant is unavailable.”

Accordingly, the trial court instructed the attorneys on several occasions prior to and

during trial that the jury would not be informed that Benczeon was dead. Instead, the

jury would be told only that he was unavailable. The prosecutors were told to instruct

their witnesses not to mention that Benczeon was dead.

Prosecution witness Detective Marvin Branscomb testified on cross-examination

that he visited Benczeon in the hospital hours after Benczeon had been shot and his

brother had been killed. Benczeon was reluctant to cooperate with the police out of fear

for the safety of his family. Detective Branscomb told Benczeon that the witness

relocation program would pay the cost of the first and last month’s rent if his family

wished to relocate to a residence in another neighborhood. Defense counsel established

that Benczeon testified on June 8, 1998 at Batts’s first trial. Four months later on

October 6, 1988, Detective Branscomb gave Benczeon a check for $1500 under the

witness relocation program. Cross-examination included the following exchange:

“[Defense counsel] Well, you didn’t give him this money, is that correct, until

October 6th, 1998, right?

“[Detective Branscomb] Yes.

“Q . . . It is after he already testified then, right?

“A Right.

“Q That is the only time he testified in connection with any of these cases, right?

“A Yes.

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“Q He never showed up and testified at Tracy Batts’ preliminary hearing, right?

. . .

“A Correct.

“Q He didn’t show up and testify in Terrance Mc Crea’s first preliminary hearing.

. . .

“A Correct.

“Q And he didn’t testify in Terrance Mc Crea’s preliminary hearing on May 10,

1988. . . .

“A Correct. [¶] . . . [¶]

“Q At the time you give him this $1500 cash he testified just one time, right?

“A Yes.

“Q And then four months after he testifies you pay him $1500 cash?

“A Yes. [¶] . . . [¶]

“Q Isn’t it true that you guys gave him this $1500 as a payoff?

“A No.”

On redirect examination, the prosecutor returned to the subject of the witness

relocation program. After having Detective Branscomb describe how the program

operates, the following exchange took place:

“[Prosecutor] . . . Before I go on, why relocate a witness?

“[Detective Branscomb] Because witnesses get murdered.

“Q Relocation has some affect upon that?

“A Yes.”

A short time later, following a brief recess, the crucial exchange took place:

“[Prosecutor] . . . On May 10th, 1999, there was another preliminary hearing; is

that correct?

“[Detective Branscomb] Yes.

“Q On that date, did Benczeon Jones testify? Did he testify? Simply that.

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“A No.

“Q Why not?

“A He was murdered.”

Defense counsel asked to approach the bench and suggested that the jury be

excused for the day. After the jury had left the courtroom, the bailiff reported that one

juror “broke down,” saying “this is too much for her.” This juror was examined outside

the presence of the other jurors and said she had cried because of the “comment that was

made about the death or the murder of Benczeon.”

After all the jurors had left for the day, the following proceedings took place:

“The Court: . . . Now, let me ask, first of all, just preliminary of the district

attorney when you asked that question, did you expect that answer?

“[Prosecutor]: Yes, your honor.

“The Court: All right.

“[Prosecutor]: The answer – I said if I ask you this question, I want you to tell the

truth as to why he was not there. I said before he answered the question, make a

significant pause to see if counsel wanted to object to the question. If they don’t object to

the question, then answer truthfully as to why it was he was not there.”

When asked by the court for any other reason the information about Benczeon’s

death was elicited, the prosecutor stated: “[Defense counsel] opened the door and

specifically implied that Benczeon did not show up and . . . that it was intentional.”

Defendants moved for a mistrial and, the following day, one of the prosecutors

argued that they had been forced to respond to defense counsel’s implication that

Benczeon had been paid for his testimony and then intentionally failed to appear to testify

because “this attack essentially if accepted by the jury completely devastates any

credibility that Benczeon Jones’ testimony has. It destroys any credibility of this

detective in testifying in this matter, and it impugns both of us as prosecutors in this case

suggesting that we have not only paid the witness off in the first trial but then are taking

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further actions to present the jury that is perjured testimony that is bought and paid for

testimony and making sure the witness isn’t here.” Reiterating that the detective was

instructed to, and did in fact pause before answering, the prosecutor argued that defense

counsel did not object because “[t]hey wanted the opportunity to ask for a mistrial.”

In granting defendants’ motion for mistrial, the court observed that defense

counsel’s cross-examination of Detective Branscomb might have given the jury the

mistaken impression that Benczeon had chosen not to appear to testify, but the

prosecutors easily could have addressed this problem by approaching the bench and

asking the court to instruct the jury. The trial court then stated: “Now what is most

perplexing of all in this analysis as I went through it for hours last night and hours this

morning, I kept asking myself one thing. Why? Why? Why on earth – why on earth

would the district attorney in this circumstance not come before the court and follow that

procedure? Although I painfully struggled with that question, I have absolutely no

insight into that as I sit here today. None. I can’t imagine that such a thing could have

happened under any reasonable scenario. . . . I was shocked. I sat there stunned when I

heard it. . . . I have come to the conclusion that there was reckless disregard to the rights

of the defendants in posing this question under the circumstances without it being

screened. . . . That is where it went wrong and irretrievably wrong, defying the order of

the court, specifically defying the orders of the court.”

Prior to the retrial, defendants moved to dismiss on double jeopardy grounds

before the same judge that had presided over the mistrial. One of the prosecutors who

had represented the People at the mistrial argued his “tactical decision” to instruct the

witness to reveal that Benczeon had been murdered was a “mistake” and admitted he had

acted emotionally, but asserted that causing a mistrial was “the farthest thing from [his]

mind.” He believed the trial had been going “extremely well” and the prosecution “had a

good chance of obtaining a conviction.”

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The trial court denied the motion to dismiss, noting that “the case was going very

well for the People.” The court added: “although as I have said their conduct was

perplexing to me . . . I honestly do not believe that their conduct occurred because they

wanted a mistrial. I think their conduct occurred because they let their emotions run far

beyond where they should have ran. And I think they realize that.”

The United States Supreme Court in Oregon v. Kennedy, supra, 456 U.S. 667,

676, footnote 7, recognized that appellate courts should grant deference to a trial court’s

findings concerning a prosecutor’s intent, stating: “It seems entirely reasonable to

expect, therefore, that appellate judges will continue to defer to the judgment of trial

judges who are ‘on the scene’ in this area, and that they will not inexorably reach the

same conclusion on a cold record at the appellate stage that they might if any one of them

had been sitting as a trial judge.” The majority in the present case acknowledges this

standard, but then erroneously relies upon two Court of Appeal decisions that apply a far

more stringent standard. (Maj. opn. ante, at pp. 24-25.)

The court in Barajas v. Superior Court (1983) 149 Cal.App.3d 30, 33, footnote 4,

without citation to authority, admitted to “some discomfort with the trial court findings”

that the prosecutor had not intended to cause a mistrial, but held: “Nonetheless, because

we are precluded from weighing the facts, we conclude substantial evidence supports the

findings made by the trial court.” Relying upon this footnote in Barajas, the court in

People v. Valenzuela-Gonzales (1987) 195 Cal.App.3d 728, 736, stated that the trial

court’s “findings on the issue are supported by substantial evidence, and, therefore,

dispositive.”

The Courts of Appeal in Barajas and Valenzuela-Gonzales misstate the standard

of review established in Oregon v. Kennedy, supra, 456 U.S. 667, 676, footnote 7. As the

high court held, we must defer to the trial court’s findings but, as we have noted in other

contexts, deference is not abdication. (People v. Dennis (1998) 17 Cal.4th 468, 541.)

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In the present case, as the Court of Appeal correctly noted, there is no doubt the

prosecutors knew their misconduct would provoke a mistrial. Several factors make this

case unusual. First, the prosecutor’s misconduct was deliberate and calculated. This was

not a rash decision or improper question blurted out in the heat of battle. During a recess,

the prosecutor instructed a police officer witness to disregard a direct court order that had

been reiterated several times.

Second, the prosecutor’s deliberate misconduct violated not only a direct court

order, but a statute. Evidence Code section 1231.4, of which the prosecutor was aware,

requires that when a decedent’s statement is admitted under Evidence Code section 1231,

as was Benczeon’s prior testimony, “the jury may not be told that the declarant died from

other than natural causes, but shall merely be told that the declarant is unavailable.”

Third, it was obvious that this revelation would be a bombshell. The trial court

stated it was “shocked” and “sat there stunned.” A juror broke down in tears upon

hearing that Benczeon had been murdered.

Finally, although the trial court concluded that the prosecutor did not intend to

cause a mistrial, it admitted that it could not understand the prosecutor’s intentions.

Before granting the mistrial, the court questioned why the prosecutor did not approach

the bench to discuss the issue, rather than instruct the witness to disobey the court order,

stating: “Why? Why? Why on earth – why on earth would the district attorney in this

circumstance not come before the court and follow that procedure? Although I painfully

struggled with that question, I have absolutely no insight into that as I sit here today.

None. I can’t imagine that such a thing could have happened under any reasonable

scenario. . . .” Prior to denying the motion to dismiss, the court repeated that the

prosecutor’s conduct “was perplexing to me.”

Under these circumstances, I have no doubt that the prosecutor intentionally

violated both the trial court’s order and Evidence Code section 1231.4 knowing it would

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provoke a mistrial. Accordingly, retrial is barred by the double jeopardy clause of the

federal Constitution.

MORENO, J.

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See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Batts
__________________________________________________________________________________

Unpublished Opinion XXX NP opn. filed 8/24/01 - 2d Dist., Div. 1
Original Appeal
Original Proceeding
Review Granted
Rehearing Granted

__________________________________________________________________________________

Opinion No. S101183
Date Filed: May 19, 2003
__________________________________________________________________________________

Court: Superior
County: Los Angeles
Judge: Jack W. Morgan

__________________________________________________________________________________

Attorneys for Appellant:

Chris R. Redburn, under appointment by the Supreme Court, for Defendant and Appellant Tracy L. Batts.

Barbara A. Smith, under appointment by the Supreme Court, for Defendant and Appellant Terrance McCrea.



__________________________________________________________________________________

Attorneys for Respondent:

Bill Lockyer, Attorney General, David P. Druliner and Robert R. Anderson, Chief Assistant Attorneys General,
Carol Wendelin Pollack and Pamela C. Hamanaka, Assistant Attorneys General, John R. Gorey, Margaret E.
Maxwell and David A. Wildman, Deputy Attorneys General, for Plaintiff and Respondent.

Steve Cooley, District Attorney (Los Angeles), George M. Palmer, Head Deputy District Attorney, Roderick
Leonard and Matthew G. Monforton, Deputy District Attorneys, as Amici Curiae on behalf of Plaintiff and
Respondent.



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Counsel who argued in Supreme Court (not intended for publication with opinion):

Chris R. Redburn
Law Offices of Chris R. Redburn
Post Office Box 27332
San Francisco, CA 94127
(415) 512-7601

Barbara A. Smith
Post Office Box 25
Spring Valley, CA 91976
(619) 670-0675

David A. Wildman
Deputy Attorney General
300 South Spring Street
Los Angeles, CA 90013
(213) 897-2359


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Opinion Information

Date:	Docket Number:
Mon, 05/19/2003	S101183

Disposition
May 19 2003	Opinion: Reversed

Dockets
Oct 3 2001	Petition for review filed   respondent The People
Oct 5 2001	Record requested
Oct 9 2001	Received Court of Appeal record   1 doghouse
Oct 22 2001	Answer to petition for review filed   by counsel for appellant Terrance Mc Crea (filed in San Diego)
Oct 23 2001	Answer to petition for review filed   by counsel for appellant Tracy L. Batts
Nov 13 2001	Received Court of Appeal record   4 doghouses o/n
Nov 28 2001	Petition for Review Granted (criminal case)   votes to grant: George CJ,Baxter,Werdegar,Brown,Moreno JJ. Chin, J., was absent and did not participate.
Nov 29 2001	Note:   Grant letters to both counsel prepared
Dec 4 2001	Received letter from:   Allen Davis attaching various letters from other persons (non-parties)
Dec 10 2001	Note: Mail returned and re-sent   Terrance McCrea at his current address provided by Aty Barbara Smith. Correct address noted herein.
Dec 12 2001	Additional issues ordered   The court directs the parties to include in their briefs a discussion of the following issue: When a trial court denies a defendant's claim of double jeopardy, should defendant be required to seek timely review of the denial by a petition for extraordinary writs as a condition to raising the double jeopardy claim on appeal? (See 1 Witkin & Epstein, Cal. Criminal Law (3rd. Ed. 2000) Defenses, Section 186. p. 544; In re Lozoya (1956) 146 Cal.App.2d 702, 704.) If the court were to determine that the answer is "yes," should such a ruling apply retroactively, or should it apply prospectively only?
Dec 19 2001	Request for extension of time filed   to file respondent's opening brief/merits faxed to SF @ 415 865 7196
Dec 19 2001	Received:   faxed extension request and sent to staff [request granted to 1/27/2002 -- order prepared]
Dec 20 2001	Counsel appointment order filed   Chris Redburn for appellant Tracy L. Batts. Appellant's brief on the merits shall be served and filed on or before thirty (30) days from the date respondent's opening brief on the merits is is filed
Dec 20 2001	Counsel appointment order filed   Barbara Smith for appellant Terrence McCrea. Appellant's brief on the merits shall be served and filed on or before thirty (30) days from the date respondent's opening brief on the merits is filed.
Dec 20 2001	Extension of time granted   respondent (People) to and including January 27, 2002, to file the opening brief on the merits.
Jan 3 2002	Note: Mail returned and re-sent
Jan 28 2002	Opening brief on the merits filed   resp (people)
Feb 19 2002	Request for extension of time filed   by appellant to file the answer brief on the merits on 3/29/2002.
Feb 25 2002	Extension of time granted   appellant (Batts) to 3/29/2002 to file the answer brief on the merits
Feb 25 2002	Request for extension of time filed   by counsel for appellant McCrea for an additional 30 days to file the answer brief on the merits.
Feb 27 2002	Extension of time granted   appellant McCrea to and including 3/29/2002 to file the answer brief on the merits
Mar 21 2002	Request for extension of time filed   (second) by counsel for Appellant Batts for a 31-day extension to and including 4/29/2002 to file the answer brief on the merits.
Mar 26 2002	Extension of time granted   On application of appellant Tracy L. Batts and good cause appearing , it is ordered that the time to serve and file both appellants' answer briefs on the merits to and including 4/29/2002.
Apr 19 2002	Request for extension of time filed   (Third) by appellant Batts for an additional 30 days, to 5/29/2002.
Apr 23 2002	Extension of time granted   (both) appellants to and including 5/29/2002, to file the answer briefs on the merits.
May 29 2002	Answer brief on the merits filed   by counsel for Appellant Terrance McCrea
May 29 2002	Received:   Apellant Batts' Answer Brief on the Merits (oversized -73 pages)
May 29 2002	Received:   Application for leave to file oversize brief (appellant Batts' answer brief on the merits)
May 29 2002	Answer brief on the merits filed   Appellant Tracy Batts' [ PERM ]
Jun 18 2002	Reply brief filed (case fully briefed)   by respondent People
Jul 18 2002	Received application to file amicus curiae brief; with brief   District Attorney of Los Angeles supports respondent the People
Jul 23 2002	Opposition filed   (faxed) by Aty Chris Reburn, counsel for appellant Batts, to amicus application by the L.A. District Attorney
Jul 24 2002	Permission to file amicus curiae brief granted   District Attorney of Los Angeles County in support of respondent. Answer by any party due within 20 days of the filing of the brief.
Jul 24 2002	Amicus Curiae Brief filed by:   District Attorney of Los Angeles County in support of respondent.
Aug 2 2002	Request for extension of time filed   by appellant Batts for a 30-day extension until 9/12/2002, in which to file response to amicus brief by the District Attorney of Los Angeles County Extension granted to 9/12/2002 -- order prepared
Aug 6 2002	Note: Mail returned and re-sent   to David A. Wildman, Deputy AG-LA .
Aug 6 2002	Extension of time granted   On application of appellant Batts and good cause appearing, it is hereby ordered that the time to serve and file appellants' responses to the amicus curiae brief of the Los Angeles District Attorney extended to and including September 12, 2002.
Aug 28 2002	Compensation awarded counsel   Atty Smith
Sep 12 2002	Response to amicus curiae brief filed   by appellant Tracy L. Batts - response to amicus curiae brief by the Los Angeles District Attorney.
Oct 17 2002	Received letter from:   pro per Terrence McCrea letter dated 10-10-02
Oct 23 2002	Received letter from:   Terrence McCrea in pro per>>letter dated 10-14-02
Nov 12 2002	Received:   handwritten document from Terrence McCrea (original)
Nov 13 2002	Compensation awarded counsel   Atty Redburn
Jan 28 2003	Filed letter from:   aplt's counsel re availability for oral argument
Feb 3 2003	Case ordered on calendar   3-13-03, S.F.
Feb 27 2003	Argument rescheduled   to March 13 at 9am. (was 1:30)
Mar 13 2003	Cause argued and submitted
May 19 2003	Opinion filed: Judgment reversed   and the matter is remanded to the C/A for resolution of the remaining issues raised on appeal. Majority opinion by George, C.J. ------ joined by Kennard, Baxter, Werdegar, Chin, Brown, JJ. C & D opinion by Moreno, J.
Jun 3 2003	Rehearing petition filed   by counsel for appellant (Tracy L. Batts)
Jun 9 2003	Time extended to consider modification or rehearing   to and including August 18, 2003
Jul 30 2003	Rehearing denied   George, C.J., and Brown, J., were absent and did not participate.
Jul 30 2003	Remittitur issued (criminal case)   and two certified copies of the opinion transmitted to Second Appellate District, Division One.
Aug 4 2003	Received:   Receipt for remittitur from Second District, Division One, via L. A. Office
Aug 5 2003	Returned record   to Second District, Division One C/O Pat Quinn, L. A. Office.
Oct 27 2003	Received letter from:   U.S.S.C. dated 10/22/2003 -- the application for extension of time to file a petition for writ of certiorari was presented to Justice O'Connor who extended the time to and including 11/27/2003.
Dec 10 2003	Compensation awarded counsel   Atty Redburn
Dec 16 2003	Received letter from:   U.S.S.C. dated 12-9-2003, writ of certiorari filed 11-19-2003 and placed on the docket 12-9-2003 as No. 03-7788.
Mar 1 2004	Received:   Letter from U.S.S.C. dated 2-23-2004, order entered - writ of certiorari denied.
Mar 5 2004	Received:   Letter from U.S.S.C. dated 2-23-2004, order entered - writ of certiorari denied.
May 12 2004	Compensation awarded counsel   Atty Smith

Briefs
Jan 28 2002	Opening brief on the merits filed
May 29 2002	Answer brief on the merits filed
May 29 2002	Answer brief on the merits filed
Jun 18 2002	Reply brief filed (case fully briefed)
Jul 24 2002	Amicus Curiae Brief filed by:
Sep 12 2002	Response to amicus curiae brief filed

If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website