213 Cal. App. 4th 999
Cal. Ct. App.2013Background
- Whitaker, Presley, and Whitaker III were charged with attempted premeditated murder and related offenses as members of the East Side Pirn gang for an assault on Melvin Weathers.
- A first jury was selected but not sworn; the court delayed swearing the jury while the People sought to locate key witnesses, then dismissed the case for insufficiency of evidence and later refiled the charges.
- Defendants moved to dismiss the refilled charges on double jeopardy and due process grounds; the trial court denied, and a second jury trial proceeded.
- Diligence hearings were held to determine whether the People had exercised reasonable diligence to locate Weathers and Robinson; the court ultimately found inadequate diligence and declined to admit prior testimony.
- The appellate court affirmed the convictions, held that double jeopardy and due process were not violated, and ordered corrected abstracts of judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did delaying the jury swear-in for reasons unrelated to jury selection abuse discretion? | Whitaker/Presley argue abuse of discretion | People contend good cause existed for delay | Assumed abuse but no reversible error |
| Does the pre-swearing delay implicate double jeopardy when charges were later dismissed and refiled? | Jeopardy attached at swearing; refiling barred | Jeopardy did not attach; refiling permissible | No double jeopardy violation; second trial proper |
| Did the defense have a right to be tried by the particular jury that was selected but not sworn? | Right to the chosen jury protected | Right applies only after jeopardy attaches; not here | Not applicable; jeopardy had not attached |
| Was the People’s conduct, announcing ready before witnesses were confirmed, prosecutorial misconduct requiring reversal? | Yes, prejudicial misconduct and manipulation | Not egregious; conduct not structural error | Not reversible; no structural error; no prejudice shown |
| Whether abstracts of judgment contained errors requiring correction. | Abstracts contain errors | Corrections are administrative | Judgments affirmed; corrected abstracts of judgment ordered |
Key Cases Cited
- Batts v. Superior Court, 30 Cal.4th 660 (Cal. 2003) (double jeopardy and due process standards; no per se reversal)
- Downum v. United States, 372 U.S. 734 (S. Ct. 1963) (unpreparedness and improper prosecutorial conduct pre-trial)
- Crist v. Bretz, 437 U.S. 28 (U.S. 1978) (jeopardy attaches when the jury is sworn; trial integrity)
- Auto Equity Sales, Inc. v. Superior Court, 57 Cal.2d 450 (Cal. 1962) (establishes standard for trial continuance and related procedures)
- Mendes v. Superior Court, 23 Cal.3d 847 (Cal. 1979) (limits of discretionary authority and due process in trial management)
- Perryman v. Superior Court, 141 Cal.App.4th 767 (Cal. App. 2006) (speedy trial and continuance considerations in pretrial rulings)