Supreme Court of California Justia
Docket No. S210545
People v. Eroshevich

Filed 11/3/14


Plaintiff and Appellant,
Ct.App. 2/5 B231411
Los Angeles County
Defendants and Respondents. )
Super. Ct. No. BA353907

After a jury trial that resulted in defendant Howard K. Stern‟s convictions
on two counts of conspiracy, the trial court granted defendant‟s motion for a new
trial and dismissed the charges on the grounds that the evidence was insufficient to
establish that defendant intended to commit a crime. The Court of Appeal
reversed, reinstating the jury‟s verdict, and ordered that the trial court could
consider defendant‟s remaining grounds for a new trial, but that double jeopardy
precluded defendant from being retried. We granted review on the sole issue of
whether the state and federal constitutional protections against double jeopardy
would preclude a retrial if defendant‟s new trial motion is granted. We conclude
that the Court of Appeal erred when it ordered that double jeopardy precluded
defendant from being retried and hold that, if the trial court grants defendant a new
trial on any of his remaining claims, he may be retried.

The People filed an 11-count information against defendant Howard K.
Stern. All of the charges arose out of allegations that defendant Stern and
codefendant Dr. Khristene Eroshevich had conspired to and did provide
prescription drugs to Anna Nicole Smith (also known as Vicki Lynn Marshall)
under a variety of false names.1 The jury convicted defendant on two counts of
conspiracy (counts 1 and 3) to commit two target crimes — obtaining a controlled
substance by fraud, deceit, or misrepresentation in violation of Health and Safety
Code section 11173, subdivision (a), and giving a false name in a prescription for
a controlled substance in violation of Health and Safety Code section 11174; one
conspiracy was alleged to have occurred between September 11, 2006, and
February 8, 2007, and the other between June 5, 2004, and September 10, 2006.
Defendant was acquitted on the remaining nine counts.

Although codefendant Eroshevich‟s name appears in the title of this case,
our decision does not affect her. She was charged with the same 11 counts as
defendant. The jury convicted her on the same two conspiracy charges, plus two
additional charges. The trial court concluded that its dismissal of the charges
against defendant, the only other conspirator, foreclosed any conspiracy
convictions against Eroshevich. Therefore, the trial court dismissed counts 1 and
3, the conspiracy charges, against Eroshevich in furtherance of justice under
section 1385. The Court of Appeal reversed the trial court‟s dismissal of the
conspiracy counts and concluded that Eroshevich could be retried if her retrial
motion is granted. The Court of Appeal reasoned that because the trial court did
not state that it found the evidence insufficient to support Eroshevich‟s convictions
under the substantial evidence standard, the dismissal did not amount to a legal
acquittal of codefendant. (See People v. Lagunas (1994) 8 Cal.4th 1030, 1038,
fn. 6.) The People‟s petition for review did not take issue with any part of the
Court of Appeal‟s ruling regarding Eroshevich.

Defendant filed a motion for a new trial asserting several grounds pursuant
to Penal Code section 1181,2 and asked the court to exercise its discretion to
dismiss the charges under section 1385. Based on the insufficiency of the
evidence, the trial court granted defendant‟s motion for a new trial and also
dismissed the two conspiracy counts. The trial court concluded that “no
reasonable trier of fact could find that Howard Stern had a specific intent to violate
either of these target crimes” and that the evidence supported the conclusion that
defendant had provided prescription drugs to Ms. Marshall under false names only
to protect her privacy. After reviewing all the evidence, “in a light most favorable
to upholding the verdict,” the trial court found the evidence to be “clearly
The People appealed and the Court of Appeal, in a published opinion,
reversed the trial court‟s rulings on the motions. The Court of Appeal held that the
evidence regarding defendant‟s knowledge and involvement in the provision of
drugs to Ms. Marshall in the names of other persons was sufficient such that “the
jury could reasonably conclude Mr. Stern, a lawyer, knowingly participated in the
ongoing illegal practice of securing illegal prescriptions.”
The Court of Appeal held that “the new trial and dismissal orders must be
set aside; the verdicts as to counts 1 and 3 must be reinstated; and, upon remittitur
issuance, the trial court must proceed to rule on other new trial issues, dismissal
grounds and, if appropriate, sentence [defendant]; but under no circumstances may
he be retried.” (Italics added.) The Court of Appeal concluded that federal and
state double jeopardy protections prevented retrial of defendant, finding Hudson v.
Louisiana (1981) 450 U.S. 40, 44, to be controlling. The Court of Appeal

Unless otherwise noted, all statutory references are to the Penal Code.

reasoned that because the trial court granted the new trial motion and dismissed
the charges based on the insufficiency of the evidence, the dismissal order had the
legal effect of an acquittal; therefore, even though the trial court‟s order was
erroneous, that order barred retrial of defendant. In light of its conclusion, the
Court of Appeal discussed several avenues the trial court might consider upon
remand: (1) deny the new trial motion and proceed to sentence defendant; (2)
deny the new trial motion, but dismiss the case on alternative section 1385
grounds; (3) grant the new trial motion using the “13th juror” standard, but
defendant would be barred from retrial; or (4) dismiss counts 1 and 3 on other
grounds. The Court of Appeal emphasized that “under no circumstances may a
retrial occur.”
We granted the People‟s petition for review, which contended that the
Court of Appeal erred in concluding defendant may not be retried should his
motion for new trial be granted by the trial court.
The principles of double jeopardy are of federal and state constitutional
origin. The Fifth Amendment of the United States Constitution provides that
“[n]o person shall . . . be subject for the same offence to be twice put in jeopardy
of life or limb . . . .” (U.S. Const., 5th Amend.) Similarly, the California
Constitution provides that “[p]ersons may not twice be put in jeopardy for the
same offense . . . .” (Cal. Const., art. I, § 15.) Unless sound reason exists,
California courts will not interpret the California double jeopardy clause more
broadly than its federal counterpart. (Raven v. Deukmejian (1990) 52 Cal.3d 336,
At its core, the double jeopardy clause “protect[s] an individual from being
subjected to the hazards of trial and possible conviction more than once for an
alleged offense.” (Green v. United States (1957) 355 U.S. 184, 187.) The policy

underlying the double jeopardy protection “is that the State with all its resources
and power should not be allowed to make repeated attempts to convict an
individual . . . thereby subjecting him to embarrassment, expense and ordeal and
compelling him to live in a continuing state of anxiety and insecurity.” (Id. at
pp. 187-188.)
“The constitutional protection against double jeopardy unequivocally
prohibits a second trial following an acquittal,” because the “public interest in the
finality of criminal judgments is so strong that an acquitted defendant may not be
retried even though „the acquittal was based upon an egregiously erroneous
foundation.‟ ” (Arizona v. Washington (1978) 434 U.S. 497, 503.) Consequently,
the People cannot appeal from a jury‟s verdict acquitting a defendant, seeking a
reversal in order to retry the defendant.3 “This is justified on the ground that,
however mistaken the acquittal may have been, there would be an unacceptably
high risk that the Government, with its superior resources, would wear down a
defendant, thereby „enhancing the possibility that even though innocent he may be
found guilty.‟ ” (United States v. DiFrancesco (1980) 449 U.S. 117, 130.)
Similarly, a trial court‟s action amounting to the legal equivalent of an
acquittal prior to the jury’s verdict cannot be appealed by the People because a
successful appeal would result in a second trial, which would violate the
protection against double jeopardy. (Evans v. Michigan (2013) 568 U.S. ___ [133
S.Ct. 1069, 1074] (Evans).) The trial court‟s action is the legal equivalent of an

In California, the People‟s ability to appeal is delineated in section 1238.
Any appeal falling outside section 1238 is prohibited. (People v. Salgado (2001)
88 Cal.App.4th 5, 11.) Section 1238, subdivision (a)(8), allows the People to
appeal “[a]n order or judgment dismissing or otherwise terminating all or any
portion of the action including such an order or judgment after a verdict or finding
of guilty . . . .”

acquittal if it constitutes a ruling that the prosecution‟s evidence was insufficient
to support a conviction, regardless of whether that ruling is legally correct. (Ibid.
[although trial court erred in directing verdict of acquittal at close of prosecution‟s
case, defendant was acquitted for double jeopardy purposes and could not be
retried]; see, e.g., Smalis v. Pennsylvania (1986) 476 U.S. 140 [trial court‟s order
granting defendant‟s demurrer after close of the prosecution‟s case on grounds that
the evidence was insufficient constituted an acquittal for double jeopardy purposes
and barred appeal and retrial]; Sanabria v. United States (1978) 437 U.S. 54, 64
[trial court‟s order striking certain evidence and granting judgment of acquittal
could not be appealed even if based on erroneous legal conclusions]; United States
v. Martin Linen Supply Co. (1977) 430 U.S. 564 [double jeopardy clause barred
appeal of trial court‟s judgment of acquittal, entered after jury was discharged
because it had been unable to agree on a verdict]; Fong Foo v. United States
(1962) 369 U.S. 141, 143 [trial court‟s order directing jury to return verdicts of
acquittal, resulting in judgments of acquittal, barred retrial even if trial court was
without power to direct acquittals under the circumstances of the case].)4
On the other hand, if a trial court rules that evidence was insufficient to
support a conviction after the jury has returned a verdict the People may appeal

Sometimes when a trial court grants a motion for new trial, it is unclear
whether it found the evidence to be legally insufficient or whether it concluded,
reviewing the evidence independently as the “13th juror,” that the jury‟s verdict
was against the weight of the evidence. (See § 1181; People v. Lagunas, supra, 8
Cal.4th at p. 1038, fn. 6.) In such situations, the reviewing court “must determine
whether the ruling . . . , whatever its label, actually represents a resolution, correct
or not, of some or all of the factual elements of the offense charged.” (United
States v. Martin Linen Supply Co., supra,
430 U.S. at p. 571.) In the present case,
however, the record leaves no doubt that the trial court found the evidence to be
legally insufficient.

that ruling “because reversal would result in reinstatement of the jury verdict of
guilt, not a new trial.” (Evans, supra, 568 U.S. at p. ___ [133 S.Ct. at p. 1081,
fn. 9]; accord, United States v. Wilson (1975) 420 U.S. 332, 353 [prosecution may
appeal from trial court‟s dismissal of indictment after a jury had returned its
verdict].) “[W]here a Government appeal presents no threat of successive
prosecutions, the Double Jeopardy Clause is not offended.” (United States v.
Martin Linen Supply Co., supra, 430 U.S. at pp. 569-570.)
Under these decisions, in the present case, double jeopardy principles did
not preclude the People from appealing the trial court‟s judgment dismissing the
charges on the grounds that the evidence was insufficient. A successful appeal by
the People under such circumstances would merely require reinstatement of the
jury‟s verdict and would not result in a new trial. (See Evans, supra, 568 U.S. at
p. ___, fn. 9 [133 S.Ct. at p. 1081, fn. 9].) The Court of Appeal found the
evidence to be sufficient and reversed the trial court‟s ruling, thereby reinstating
the jury‟s verdict of conviction; because the People‟s appeal and the appellate
court‟s reversal did not require a new trial, neither implicated double jeopardy
principles. The question remains whether, as the Court of Appeal concluded,
double jeopardy principles would preclude a retrial if, on remand, the trial court
were to grant defendant‟s motion for a new trial or dismissal on defendant‟s
remaining grounds other than insufficiency of the evidence.
The double jeopardy rules are well known. The protection against double
jeopardy generally precludes retrial for the same offense after a conviction or an
acquittal. (People v. Massie (1998) 19 Cal.4th 550, 563.) An exception to this
rule applies if the judgment of conviction is reversed as a result of defendant‟s
appeal, motion for new trial, or other challenge by a defendant to his or her
conviction. (People v. Hernandez (2003) 30 Cal.4th 1, 6-7.) Like other
constitutional guarantees, double jeopardy protections are not absolute, and may

be waived by a defendant. A defendant who files a motion for a new trial, like a
defendant who moves for a mistrial, waives state and federal double jeopardy
protections. (Porter v. Superior Court (2009) 47 Cal.4th 125, 136; see Oregon v.
Kennedy (1982) 456 U.S. 667, 672-673.) By seeking reversal of a judgment of
conviction on appeal, “ „in effect, [a defendant] assents to all the consequences
legitimately following such reversal, and consents to be tried anew.‟ ” (People v.
Sachau (1926) 78 Cal.App. 702, 706; see People v. Hernandez, supra, at p. 7
[double jeopardy does not bar retrial when conviction is reversed because of a trial
court‟s erroneous replacement of a juror]; Tibbs v. Florida (1982) 457 U.S. 31, 42
[state appellate court‟s reversal because of the weight of the evidence, rather than
the insufficiency of the evidence, does not bar retrial].) Additionally, two policy
considerations support allowing retrial in this situation. First, “society would pay
too high a price „were every accused granted immunity from punishment because
of any defect sufficient to constitute reversible error in the proceedings leading to
conviction.‟ [Citation.]” (Tibbs, supra, at p. 40.) “Second, the Court has
concluded that retrial after reversal of a conviction is not the type of governmental
oppression targeted by the Double Jeopardy Clause.” (Ibid.)
There is an exception to the rule permitting retrial after the defendant‟s
successful challenge to his conviction: the defendant may not be retried if the
judgment is reversed because, as a matter of law, the evidence was insufficient to
support a conviction. “[W]hen a reversal rests upon the ground that the
prosecution has failed to produce sufficient evidence . . . , the Double Jeopardy
Clause bars the prosecutor from making a second attempt at conviction.” (Tibbs v.
Florida, supra, 457 U.S. at p. 42.) When the evidence is legally insufficient, it
means that “ „the government‟s case was so lacking that it should not have even
been submitted to the jury.‟ ” (Id. at p. 41, citing Burks v. United States (1978)
437 U.S. 1, 16.) Furthermore, when the defendant seeks a reversal on appeal

based on insufficient evidence, or moves for acquittal in the trial court, the
defendant does not consent to a disposition that contemplates retrial and therefore
does not waive double jeopardy protections. (Evans, supra, 568 U.S. at p. ___
[133 S.Ct. at p. 1079].) Even if the defendant moves for a new trial, retrial will
nevertheless be barred if the defendant‟s motion was granted on grounds that the
evidence was insufficient to support the conviction. (See Burks, supra, at p. 17
[“[i]n our view it makes no difference that a defendant has sought a new trial as
one of his remedies, or even as the sole remedy”].)
In the present case, the Court of Appeal contemplated that, on remand, the
trial court could consider the defendant‟s remaining grounds for his motion for a
new trial and could consider dismissal under section 1385 on grounds other than
the insufficiency of the evidence. As the above discussion makes clear, double
jeopardy principles would not preclude a retrial if defendant were successful in
obtaining a new trial or a dismissal of charges, because in seeking to overturn his
conviction on grounds other than insufficiency of the evidence he would impliedly
waive double jeopardy protections and consent to be retried. (See Porter v.
Superior Court, supra, 47 Cal.4th at p. 136.)
Although these rules seem clear and well established, the Court of Appeal‟s
conclusion that defendant cannot be retried under any circumstances was based on
an oft-quoted passage from our decision in People v. Hatch (2000) 22 Cal.4th 260:
“ „If a trial court rules the evidence is insufficient as a matter of law, then the
ruling bars retrial even if it is patently erroneous or the court has no statutory
authority to make it. (See Sanabria v. United States[, supra,] 437 U.S. [at p.] 64
[a trial court finding of legal insufficiency based on an erroneous foundation is
still an acquittal for double jeopardy purposes]; People v. Valenti (1957) 49 Cal.2d
199, 203, 209 [a trial court dismissal for legal insufficiency made without statutory
authorization bars retrial under the California Constitution], disapproved on other

grounds in People v. Sidener (1962) 58 Cal.2d 645, 647; see also Fong Foo v.
United States[, supra,] 369 U.S. [at p.] 143 [a ruling by a trial court acquitting a
defendant bars retrial even if the ruling is “egregiously erroneous” and the court
lacks the power to make the ruling].)‟ (People v. Hatch, supra, 22 Cal.4th at pp.
270-271).” (Citing also Evans v. Michigan, supra, 568 U.S. at p. ___ [133 S.Ct. at
p. 1075]; Mannes v. Gillespie (9th Cir. 1992) 967 F.2d 1310, 1313-1316.)
This principle, although often stated unequivocally, does not apply in the
context of the present case. All of the cases cited in the quotation from Hatch,
upon which the Court of Appeal relied, involved rulings by the trial court before
the jury returned a verdict. In such cases, the prosecution cannot appeal the trial
court‟s ruling even if it is erroneous because a successful appeal would require a
retrial, which is barred by double jeopardy. (See Sanabria v. United States, supra,
437 U.S. at pp. 59-60 [trial court granted defendant‟s motion for acquittal after
presentation of the defense case but before the case went to the jury]; People v.
Valenti, supra, 49 Cal.2d at pp. 203, 209 [trial court dismissed the information in
the middle of trial]; Fong Foo v. United States, supra, 369 U.S. at p. 143 [trial
court directed jury to return verdicts of acquittal]; see also Evans, supra, 568 U.S.
at p. ___ [133 S.Ct. at p. 1073 [trial court directed verdict of acquittal at close of
prosecution‟s case]; Mannes v. Gillespie, supra, 967 F.2d at pp. 1313-1316 [after
jury was dismissed because it deadlocked on murder charge, trial court dismissed
the charges on the grounds that the evidence was insufficient].)
Arizona v. Rumsey (1984) 467 U.S. 203, upon which defendant relies, is
distinguishable for the same reason. In Rumsey, the high court held that the trial
court‟s judgment imposing a life sentence rather than the death penalty was the
equivalent of an acquittal on the merits and precluded defendant from being
resentenced to death after the state supreme court reversed the trial court‟s
decision for legal error. In Rumsey, there was no jury; the trial court in that case

was the “sole decisionmaker” in the proceeding. (Id. at p. 211.) Thus, “there was
no verdict of „guilty‟ for the appellate court to reinstate.” (Id. at p. 212.)
Consequently, the appellate reversal in Rumsey would have subjected the
defendant to a second sentencing trial, in violation of double jeopardy principles.
In contrast, in the present case reversal of the trial court‟s judgment of “acquittal”
will allow reinstatement of the jury‟s guilty verdict.
The Court of Appeal relied on two additional cases for the proposition that
an order granting a new trial motion on the ground of insufficient evidence bars
retrial even if the trial court erred: Hudson v. Louisiana, supra, 450 U.S. 40, and
Freer v. Dugger (11th Cir. 1991) 935 F.2d 213.5 These cases are similarly
inapposite because, in each, the trial court‟s ruling regarding the insufficiency of
the evidence was never reversed and stood as a final judgment. In Hudson, the
trial court granted the defendant‟s motion for retrial on grounds that the evidence
was legally insufficient to support the verdict. The state did not appeal that ruling,
but simply retried the defendant, presented evidence that had not been presented in
the first trial, and obtained a conviction. The high court held that the double
jeopardy clause barred the retrial, just as it would if an appellate court had
reversed the defendant‟s conviction because of insufficient evidence. (Hudson,
supra, at p. 43; see Burks v. United States, supra, 437 U.S. 1 [double jeopardy
precluded retrial after the reviewing court held the evidence insufficient to sustain
the jury‟s verdict of guilty].) In Freer, a state trial court granted the defendant‟s

The Court of Appeal also cited People v. Lagunas, supra, 8 Cal.4th at
page 1038, footnote 6, but that case is not on point. In Lagunas we cited Hudson
v. Louisiana, supra,
450 U.S. 40, for the rule that double jeopardy bars retrial if
the trial court determines that the prosecution‟s evidence was legally insufficient,
but we concluded that the trial court had not determined the evidence to be
insufficient in that case.

motion for a new trial on grounds that the evidence was insufficient, the
prosecution appealed that ruling, and the state appellate court affirmed.
Subsequently, the defendant was retried and again convicted. (Freer, supra, at
p. 215.) On habeas corpus, the federal appellate court held that the retrial violated
the defendant‟s double jeopardy rights. (Id. at p. 222.)
Under these authorities, the trial court‟s order in the present case would
have precluded a retrial had the People chosen not to appeal it or had it been
affirmed on appeal. But the People did appeal and the Court of Appeal reversed
the trial court‟s ruling and reinstated the jury verdict. “It is well settled that the
reversal of a judgment or order ordinarily leaves the proceeding in the same
situation in which it stood before the judgment or order was made.” (Odlum v.
Duffy (1950) 35 Cal.2d 562, 564; see 9 Witkin, Cal. Procedure (5th ed. 2008)
§ 869, p. 928 [reversal of an order granting a new trial “leaves the judgment as if
no such order had been made, i.e., as if the motion had been denied”].) “When an
order has been reversed the effect is that „it no longer ha[s] any vitality or
force . . . .‟ ” (Estate of Pusey (1918) 177 Cal. 367, 371, quoting Estate of
Mitchell (1899) 126 Cal. 250.) The effect of the Court of Appeal‟s order barring a
retrial upon remand was to improperly give legal force and effect to a ruling of the
trial court that it had reversed.


The judgment of the Court of Appeal is reversed to the extent that it bars
defendant from being retried should the trial court grant his motion for a new trial
or dismissal on grounds other than the insufficiency of the evidence.


Associate Justice of the Court of Appeal, Fifth Appellate District, assigned
by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Eroshevich

Unpublished Opinion

Original Appeal
Original Proceeding
Review Granted
XXX 214 Cal.App.4th 1335
Rehearing Granted


Opinion No.

Date Filed: November 3, 2014


County: Los Angeles
Judge: Robert J. Perry



Steve Cooley and Jackie Lacey, District Attorneys, Irene T. Wakabayashi, Head Deputy District Attorney,
Brentford J. Ferreira, Shirley Sui-Nin Sun, Natasha Cooper, Gilbert Wright, Phyllis C. Asayama and
Serena R. Murillo, Deputy District Attorneys, for Plaintiff and Appellant.

Janyce Keiko Imata Blair, under appointment by the Supreme Court, for Defendant and Respondent
Khristine Elaine Eroshevich.

Peter Gold, under appointment by the Supreme Court, for Defendant and Respondent Howard Kevin Stern.


Counsel who argued in Supreme Court (not intended for publication with opinion):

Serena R. Murillo
Deputy District Attorney
320 West Temple Street, Suite 540
Los Angeles, CA 90012
(213) 893-0632

Janyce Keiko Imata Blair
321 Richmond Street, Suite A
El Segundo, CA 90245
(310) 606-9262

Peter Gold
5758 Geary Boulevard, #160
San Francisco, CA 94121
(510) 872-6305


Opinion Information
Date:Docket Number:
Mon, 11/03/2014S210545