THE PEOPLE, Plaintiff and Respondent, v. JUJUAN ROBERT BELL et al., Defendants and Appellants.
No. F064909
Fifth Dist.
Oct. 15, 2015
315
[CERTIFIED FOR PARTIAL PUBLICATION*]
Charles M. Bonneau, under appointment by the Court of Appeal, for Defendant and Appellant Jujuan Robert Bell.
Cara DeVito, under appointment by the Court of Appeal, for Defendant and Appellant Deon Lavell Joseph.
Patricia J. Ulibarri, under appointment by the Court of Appeal, for Defendant and Appellant Lynell Travon Lewis.
Audrey R. Chavez, under appointment by the Court of Appeal, for Defendant and Appellant John Fitzgerald Williams.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Clara M. Levers, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
POOCHIGIAN, J.—When construing a statute, our job is “simply to ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted, or to omit what has been inserted....” (
The Penal Code provides for the right to a jury trial on factual issues underlying a plea of once in jeopardy. (
The Attorney General contends sections 1041, subdivision 3 and 1042 apply to some, but not all, pleas of once in jeopardy. We conclude that interpretation is clearly foreclosed by the plain language of the statutes.
Several implications of this conclusion are regrettable. Double jeopardy claims predicated on prosecutorial goading claims do not seem particularly
But “our hands are tied” (Oakes v. McCarthy Co. (1968) 267 Cal.App.2d 231, 257 [73 Cal.Rptr. 127]), and we must adhere to ” ‘the plain meaning of the actual words of the law, ” ‘whatever may be thought of [its] wisdom, expediency, or policy....’ ” ’ ” (People v. Loeun (1997) 17 Cal.4th 1, 8-9 [69 Cal.Rptr.2d 776, 947 P.2d 1313].)2
It is important to emphasize the nature of the issue we decide today. We would not, on a blank slate, create the right to a jury trial on pleas raising Kennedy-type3 claims. But that is not the question we face. Instead, the question we address is whether the Penal Code requires a jury trial on a once in jeopardy plea asserting a Kennedy-type claim. Both questions are important, but only one is ours to answer. (See
We conditionally reverse the judgment.4
STATEMENT OF THE CASE
1. Convictions
Defendants Lynell Travon Lewis (Lewis), Deon Lavell Joseph (Joseph), Jujuan Robert Bell (Bell), and John Fitzgerald Williams (Williams) were each
2. Enhancements
The jury found that all of these crimes were committed for the benefit of, or in association with, a criminal street gang with the specific intent to promote, further, or assist in criminal conduct by gang members (
The jury also found that, as to the robbery counts, each defendant was a principal and at least one principal personally used a firearm as alleged in the indictment.7 (
The jury found that Joseph, Lewis and Williams each personally used a firearm during the commission of the six counts of assault with a semiautomatic firearm and the two counts of active participation in a criminal street gang. (
3. Sentences
The court sentenced Bell to prison for 79 years four months; Lewis for 71 years; Williams for 64 years; and Joseph for 55 years four months.8
Williams‘s sentence was comprised of the following: The court imposed a base term of nine years on count 11 (assault with a semiautomatic firearm—
Joseph‘s sentence was comprised of the following: The court imposed a base term of nine years on count 11 (assault with a semiautomatic weapon—
FACTS
I. 2007 Crimes
In 2007 and 2008, defendants were each members of the Mona Park Compton Crips criminal street gang. Bell was an “O.G.” in the gang, which meant he was “higher-ranking” and “deserving of respect within the gang from his fellow gang members.” Lewis and Joseph each had tattoos demonstrating respect for Bell. Joseph also had a tattoo demonstrating respect for Lewis.
A. Hours Preceding Robbery of Golden West Casino
Bell had two children with Tameka Turner (Turner), his girlfriend of eight years.9 Turner testified under a grant of immunity, and this fact was made known to the jury.
In September 2007, Turner lived in Palmdale, California, while Bell was living in Compton, California. On September 12, 2007, Bell told Turner over the phone that he had “something to do” and would be coming to Palmdale.
When Turner came home from work late that night, defendant Bell was at her home with three other men. In a pretrial interview admitted into evidence,
Turner went to sleep around 2:00 or 2:30 a.m. the next morning.
B. The Robbery
At approximately 4:00 a.m. on September 13, 2007, David Ahrens was standing outside of the Golden West Casino in Bakersfield, California, when he noticed a nearby car traveling the wrong way. The red, four-door car pulled up near Ahrens, and several men exited carrying firearms. The men pointed their weapons at Ahrens and said, “Get up against the F‘ing wall and shut up.” The men led Ahrens into the casino, pushing him in the back with the barrel of an assault rifle. The men told Ahrens to lie down.
Four assailants eventually entered the casino, each wearing a face covering.11 One of the assailants wore dark clothing that covered his entire body and carried a type of firearm called an “SKS” rifle. The People contend this assailant was defendant Joseph.12 Another assailant, alleged to be defendant Lewis, wore a white face covering, and carried an “AK-47-type” weapon with a missing butt stock. A third assailant, alleged to be defendant Williams, wore dark clothing and carried a silver handgun. The last assailant, alleged to be defendant Bell, carried a bag.
Security guard Darren Forthman (Forthman) was standing near the door where defendants entered. Immediately after defendants entered the casino, Forthman dropped to his knees and put his hands behind his head. One of the card dealers at a nearby table, David Valle (Valle), also put his head down and hands up when the assailants entered.
Chris Akin was seated at the same table as Valle. Akin had a personal cell phone and a corporate cell phone placed on a nearby table. Akin was eventually ordered to get on the floor. When Akin eventually arose, he noticed both cell phones were gone.
Lewis stayed near the door where he had entered the casino. Bell entered the casino shortly after the other three assailants and was escorting Ahrens and a man named Robert Goldfisher. On the surveillance video, Lewis appears to point his firearm towards Valle on several occasions, and at Goldfisher at least once.
While Lewis stayed in the first area of the casino, Joseph and Williams proceeded farther, into a second card room. As Joseph entered the second card room, a man who had been sitting at a table began to run away. Joseph chased him and led him back at gunpoint.
Shortly after Joseph entered the second card room, security officer Deion Chester (Chester) got under a nearby table. Chester saw the assailants come in with guns “like AK-47s like you see on TV.”
As Chester was ducking under the table, a woman named Becky Tam tried to leave the area. As she rounded a corner, she almost ran into Williams. Williams pointed his handgun towards Tam, and she got down onto the floor.13
A voice is heard on the surveillance video saying, “Gotti, come on Gotti.” “Gotti” is Bell‘s gang moniker.
Bell then entered the second card room area and jumped over a nearby counter into the casino‘s cash cage. Casino employee Belinda Soto was crouched down on the other side of the counter. After climbing through the counter window, Bell told Soto to “open the safe.” Soto told him that “security has the keys” to the safe and that security was “out front.” Bell told
Defendants eventually left the casino.
C. Postrobbery
1. Turner‘s House After the Robbery
At “maybe” 4:00 a.m., or 5:00 a.m., or 6:00 a.m., on September 13, 2007, Turner was awakened at her home by several male voices, including Bell‘s. Turner also “thought” she heard Joseph‘s voice. She heard “somebody” laughing and “saying something about [how] they had to chase somebody or something like that.”
Bell came into Turner‘s room while counting money. After a few hours, Bell left the house but not before giving Turner $2,500 and telling her to dispose of a bag on the living room floor. Turner did not move the bag for two days, after which she moved it into the garage. She did not touch the items inside the bag until October 31, 2007.
2. Recovery of the Red Pontiac
Near the casino, law enforcement located a red, four-door Pontiac. The vehicle engine was still hot, its passenger door was open, and there was a $100 bill on the road underneath the open door. The rearview mirror had a fingerprint that completely matched Williams‘s fingerprint. The vehicle had been stolen in Southgate, California, on September 2, 2007.14
3. Interactions Between Lewis, Turner and Bell
Lewis and Turner slept together at her home “a few weeks approximately after September 13th.”15 After Lewis removed his clothing, Turner placed some of the clothing items in a hamper. Turner gave Lewis new clothes that “could have been” Bell‘s.
4. Turner Empties the Contents of the Bag Bell Had Given Her Immediately After the Robbery
On October 31, 2007, Turner took the bag Bell had given her out of the garage and dumped its contents on the floor. Inside the bag Turner found “money wrappers,” plastic bottle containers, another bag containing a magazine for a firearm, and “some shirts.” Turner contacted law enforcement, and several deputies responded to her home and took custody of the bag. A responding deputy observed a pile of items on the floor with half of the items in the bag, and the other half of the items in a pile on the ground near the bag. Among the items were the following: several money bags identical to those used by Golden West Casino; cash wrappers dated “9/12/07” that had been ripped; Akin‘s stolen corporate cell phone; several items of clothing, including a black shirt tied into a knot; 7.62-caliber ammunition capable of being fired by either an SKS rifle or AK-47; and pants with black Nike gloves in the back pocket. One of the cash wrappers had a fingerprint that matched Bell‘s right middle finger. A deputy sheriff transported the items in the trunk of his car to the technical investigations division.
Law enforcement also took custody of an SKS rifle with a foldable bayonet found in Turner‘s garage closet. The gun had not been in the home before Bell had arrived, and Turner believed Bell had placed the gun there.
The prosecution offered contested evidence that various DNA samples taken from the contents of the bag in Turner‘s home matched defendants. This evidence included the following: A single-source DNA profile that matched Williams was obtained from a short-sleeved black shirt. A single-source DNA profile that matched Bell was obtained from a long-sleeved black shirt. Another long-sleeved black shirt had a mixture of DNA, with the major contributor matching Joseph. A white shirt had a mixture of DNA, with the major contributor matching Lewis.
The defense offered the testimony of a DNA consultant, which indicated that the deputy sheriff should have packaged items of evidence separately to prevent cross-contamination, and that it was possible for DNA to be transferred by touch.
A. Facts Surrounding Alleged Conspiracy to Rob Golden West Casino in March 2008
On March 27, 2008, Bell was at Turner‘s home, along with defendant Williams and a man named Michael Johnson. Bell told Turner he “needed another vehicle” because he “had something to do.” Turner arranged for an acquaintance to give her a vehicle and report it stolen. Turner went with Williams to retrieve the car, then brought the vehicle back to her house. As she returned home, Turner saw Joseph and Lewis pulling up in another car.
Bell called a woman named Aleshia Grayson (Grayson) and told her to meet him in Bakersfield.16 On March 29, 2008, Grayson drove to Bakersfield with a woman named Chan Mitchell, and rented two motel rooms at a Days Inn.17 That night, Grayson, Mitchell, Bell, Williams and Michael Johnson visited the Golden West Casino, but did not stay long.
The next day, March 30, 2008, Mitchell told Grayson that she had heard Bell and Williams talking about “something” that was “supposed to be going down out there.”18 Mitchell believed the men planned to commit a robbery. Grayson spoke to Bell about his plans. Bell told Grayson that “they were gonna be robbing something that night.”19 Bell told Grayson that the robbery would happen at 2:00 a.m. and that “everybody has to go to one table.” Grayson told Bell, “[T]hat is so crazy.” Bell was confident and told Grayson “he ha[d] done it before.”20
B. Phone Calls Placed on March 30, 2008
On the afternoon of March 30, 2008, Bell and Lewis spoke on the phone. Several slang words and phrases were used during the call and Kern County Sheriff‘s Deputy Lauro Cantu offered his opinion as to what those terms meant.
Lewis then asked whether Williams had their “whistles” which, according to Deputy Cantu, meant “guns.” Williams responded affirmatively and then the following exchange took place:
“Lewis: You got that one?
“Williams: Huh?
“Lewis: You got that one?
“Williams: Ah, three.
“Lewis: I say you got that one? That one I . . .
“Williams: Yeah.
“Lewis: And then that one, huh, like uh Uzi shit that one time.
“Williams: That and uh some other shit.”
Lewis told Williams, “Don‘t make a move without me, I‘ll be there.”
Later on the call, Lewis told Bell: “[G]ive me a low I‘m on my way.” Deputy Cantu testified that “give me a low” meant to acquire an inconspicuous vehicle.
Lewis also said he had his “own tools” and asked if Bell wanted him to bring “2, 3, 4, or 5, 6, 7.” Bell responded, “Nah, n[**]ga. Uno.” Deputy Cantu testified that “tools” commonly refers to firearms and that the numbers meant that Bell was asking if he should bring up to seven firearms.
On a separate call later that evening, Williams asked Lewis if he was “bringing a whistle?” Lewis responded, “Hell yeah, what you think I‘m gonna do and shit? Just come empty handed?” Later on the same call, Lewis asked Williams, “[H]ow far is it from here?” After confirming Lewis‘s question, Williams said, “The one. The same one.” Lewis then said, “We‘ve got a[]while man.”
At 8:20 p.m., Bell called Grayson. They discussed whether Bell should take a nap and for how long. The following discussion ensued:
“Grayson: You can sleep longer than that.
“BELL: Yeah. N[**]ga uh, we got butterflies, n[**]ga ain‘t. .
“Grayson: (laughter) I do too.
“BELL: For what?
“Grayson: I‘m like, I am not gonna be able to go . . . cuz, what do you mean for what? Worried about you.
“BELL: Play another song then silly. All Color Purple.
“Grayson: Uh, my stomach gonna be turning, am gonna be in knots by the time two o‘clock comes.”
C. Law Enforcement‘s Surveillance Activities on March 30–31, 2008
About two hours later, still on March 30, 2008, law enforcement began visual surveillance of Turner‘s residence. Sergeant Downey took over surveillance duties at around 10:40 p.m. He observed Turner‘s residence from about four to six houses down.
Sergeant Downey observed a dark-colored Camry back into Turner‘s garage. At around 11:15 or 11:20 p.m., three to five males exited Turner‘s house and drove away in a PT Cruiser. Lieutenant Kirkland followed the PT Cruiser to a Walmart. Inside the Walmart, Kirkland observed four males from the PT Cruiser purchase multiple items, including black gloves. Kirkland recognized one of the men as defendant Bell. The men then drove back to Turner‘s residence in the PT Cruiser.
Later, Sergeant Downey observed a hatchback vehicle21 back into the driveway at Turner‘s residence. Over the course of the next 20 minutes, three to five males went to and from the back of the hatchback. It appeared to Sergeant Downey that the men were “either taking items from the garage and putting them in the hatchback or taking items from the hatchback and putting them in the garage.” Around midnight, the hatchback (i.e., the white Pacifica) and the dark-colored Camry left together.
Law enforcement stopped the Camry and a Pacifica on Highway 58 near Towerline Road.22 Williams and Michael Johnson were removed from the Camry. Johnson had a Days Inn motel key in his back pocket.
Bell, Lewis and Joseph had been removed from the Pacifica. Several firearms were recovered from the Pacifica, including two shotguns, a silver nine-millimeter semiautomatic pistol, and an AK-47. The wooden butt of the AK-47 was missing, like the AK-47 used in the 2007 casino robbery. Various items of clothing were also recovered.
E. Williams‘s Interview with Law Enforcement
Detectives interviewed Williams, and he denied knowing of any crime other than the theft of the stolen car in which he was stopped.
While in a patrol car on the way to jail, Williams was read the charges against him. Williams paused for two to five minutes, and then said, “When do you think they‘ll offer us a deal? Will it be our first court appearance or second or what?”
Later, when a booking clerk read the charges, Williams made a comment. Williams said, “Kidnapping. It was only an attempted robbery.”
DISCUSSION
I. Defendants Had a Statutory Right to a Jury Trial on Their Plea of Once in Jeopardy
Defendants contend they were entitled to have a jury resolve their pleas of once in jeopardy. We agree.
1. 2010 Trial Proceedings
Defendants were initially tried in 2010, but that proceeding ended in a mistrial. Certain events from that first trial are pertinent to this issue and we recount them below.
Prior the first trial, the trial court ruled that the manner in which the Camry and Pacifica had been stopped will “need to [be] sanitize[d].” To that effect, the court excluded all evidence that the Camry and Pacifica had been stopped by a SWAT team, and that officers were wearing raid gear and had “M4” weapons. The court then asked Prosecutor Chad Louie: “Mr. Louie, am I clear with you on how we‘re going to proceed at the scene of the stop on Towerline?” The prosecutor responded, “You are.”
On November 1, 2010, the court read the charges to the jury and gave preliminary instructions. As of that date, the prosecutor was apparently unable to locate witness Turner.
On November 4, 2010, the prosecutor informed the court that he had originally planned to call Deputy Derek Brannan to testify about observing Williams and Michael Johnson exiting the Camry. However, the prosecutor had learned that Brannan had not personally observed that event. Rather, Deputy Bill Starr had observed the event.23 Consequently, the prosecutor asked that Starr be added to the witness list so that he could elicit direct observations rather than hearsay. The court asked if defense counsel had any objection to adding Starr to the witness list. No attorney objected.
Starr was eventually called as a witness and testified as follows:
“Q. Can you describe the vehicle that you saw on that date and that time, at that location?
“A. It was a dark blue Toyota Camry.
“Q. And did you see any occupants of that vehicle?
“A. Yeah.
“Q. Did you see the occupants exit that vehicle?
“A. I recall at least two occupants. I don‘t recall if there was [sic] more. “Q. At least two of the occupants exited?
“A. Yes.
“Q. Can you describe the occupants for us?
“A. The only thing I recall is they were black male adults.
“Q. Do you remember where they exited from?
“A. No, I don‘t.
“Q. Did you make—did you end up making contact with that vehicle?
“A. No. I was positioned in the turret of the armored personnel carrier.”
Defense counsel immediately moved for a mistrial based on the in limine ruling. The trial judge and all counsel had a chambers conference, which was not transcribed. The parties went back on the record outside the presence of the jury, and the court indicated it was leaning towards granting a mistrial. The prosecutor urged the court not to declare a mistrial “notwithstanding myself failing to inform this witness of that—because this is a last-minute witness.” Defense counsel then recounted that during the chambers conference, the prosecutor “admitted that he failed completely to advise this witness of the Court‘s rulings regarding the SWAT [sic].” The court granted a mistrial and discharged the jury.24
2. Defendants’ Plea and Motion Concerning Prior Jeopardy
After the mistrial was declared, defendants entered additional pleas of once in jeopardy.
Each defendant requested in writing for the issue to be resolved by way of a jury trial. Joseph also moved, in the alternative, to dismiss the indictment. The prosecution opposed these requests.
Judge Brownlee observed that “Mr. Louie [the prior prosecutor] had been in my court several times prior to this trial on general felony-type cases. Did a competent job on those cases. Those cases were not complicated and straightforward.” The court also observed that “Mr. Louie was overmatched against the four lawyers for the defense and needed additional assistance from his office. Though none was forthcoming. Nonetheless, he did the best he could.” The court also noted its belief that if the first trial had gone to the jury, there was no reasonable prospect of acquittal. The court further observed that “[Deputy] Starr provided [the offending] testimony not in response to a direct question, but offered it up on his own.” The court ultimately concluded that “Mr. Louie‘s conduct was not intentionally done for the purpose of triggering a mistrial” and denied the defense motions.
Defendants challenged the trial court‘s ruling in a writ petition to this court. We denied the petition summarily.
After we denied the writ petition, all defendants renewed their objection in the trial court as to proceeding without a jury trial on the once in jeopardy plea.
B. Double Jeopardy Claims Under Kennedy
The double jeopardy clause of the United States Constitution protects a criminal defendant from repeated prosecutions for the same offense. (Kennedy, supra, 456 U.S. at p. 671.) The double jeopardy clause also affords a defendant the right “to have his trial completed before the first jury empaneled to try him . . .”25 (Kennedy, supra, at p. 673.) Consequently, once a mistrial is declared over the defendant‘s objection, retrial will only be permitted if the mistrial was declared as the result of a “‘manifest necessity,‘” such as a hung jury. (Id. at p. 672.)
However, when the defendant requests the mistrial, “different principles come into play. . . .” (Kennedy, supra, 456 U.S. at p. 672.) When the
The determination of whether a prosecutor intentionally goaded the defense into moving for a mistrial is one that necessarily “‘requires making inferences. . . .‘” (Jacob v. Clarke (8th Cir. 1995) 52 F.3d 178, 181-182.) The threshold issue in this case is whether a defendant who pleads once in jeopardy is entitled to have a jury make those inferences and ultimately determine the prosecutor‘s intent.
C. Disputed Issues of Fact Underlying a Plea of Once in Jeopardy Must Be Tried to a Jury
Under California law, a defendant may not mount a double jeopardy defense of any kind under a plea of not guilty. (
Once the defense of former jeopardy has been raised by special plea, it is generally “an issue of fact . . . which the jury alone possesse[s] the power to pass upon.” (People v. Bennett (1896) 114 Cal. 56, 59 [45 P. 1013].)
This rule is enshrined in two adjacent provisions of the Penal Code:
The relationship between these two provisions is clear: “Penal Code, section 1041, specifies how an issue of fact arises and section 1042 sets forth how it shall be tried. . . .” (People v. Johns (1959) 173 Cal.App.2d 38, 43 [343 P.2d 92].) Consequently, when these statutes are read together, they plainly require that issues of fact arising upon a plea of once in jeopardy be tried to a jury. (
That a jury must resolve pleas of former jeopardy is also reflected in
Not surprisingly, California courts have long observed that “it undoubtedly is the law that where the issue of jeopardy is based on questions of fact, it is for the jury to decide [citations].” (People v. Hess (1951) 107 Cal.App.2d 407, 426 [237 P.2d 568], italics omitted; see Stone v. Superior Court, supra, 31 Cal.3d at p. 509, fn. 1; People v. Bennett, supra, 114 Cal. at
California courts have held that the determinative inquiry regarding the right to a jury trial on a plea of once in jeopardy is whether or not the plea raises an issue of fact. And, usually, a plea of once in jeopardy does present an issue of fact. (People v. Mason (1962) 200 Cal.App.2d 282, 285 [19 Cal.Rptr. 240]; see People v. Bechtel (1953) 41 Cal.2d 441, 445 [260 P.2d 31].) As a result, the issue of jeopardy is ordinarily submitted to the jury. (1 Witkin & Epstein, Cal. Criminal Law (4th ed. 2012) Defenses, § 205(5), p. 681.)
However, like many other questions of fact, the jeopardy determination can become a question of law when (1) the underlying facts are undisputed and (2) there is only one reasonable inference to be drawn from those undisputed facts. (People v. Mason, supra, 200 Cal.App.2d at p. 285.)30 Such questions of law may be resolved by the court on a motion to strike the jeopardy plea. (200 Cal.App.2d at p. 285.)
The Supreme Court succinctly summarized the law on this issue in Stone v. Superior Court, supra, 31 Cal.3d 503: “The determination of the validity of a claim of double jeopardy is a matter for the trial judge in the first instance. 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.)
The Attorney General contends that
1. The Plain Language of Sections 1041, Subdivision 3 and 1042 Does Not Support the Distinction Urged by the Attorney General
The Attorney General argues the cases discussing the right to a jury trial on jeopardy defenses are distinguishable because they involve jeopardy pleas that centered on “whether the defendant was previously tried for the same crime(s)” whereas the jeopardy pleas in the present case are based on alleged “prosecutorial goading to a mistrial.” As we explain more fully below, we are unable to adopt this distinction in light of the undifferentiated language of
When interpreting statutes, we must remain “‘mindful of this court‘s limited role in the process of interpreting enactments from the political branches of our state government. In interpreting statutes, we follow the Legislature‘s intent, as exhibited by the plain meaning of the actual words of the law, “‘“whatever may be thought of the wisdom, expediency, or policy of the act.“‘” ‘[Citation.]” (People v. Loeun, supra, 17 Cal.4th at pp. 8-9.) Consequently, when construing “any statute, we may not broaden or narrow the scope of the provision by reading into it language that does not appear in it or reading out of it language that does. ‘Our office . . . is simply to ascertain and declare’ what is in the relevant statutes, ‘not to insert what has been omitted, or to omit what has been inserted.’ [Citation.]” (Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 545 [67 Cal.Rptr.3d 330, 169 P.3d 559].) We “may not, ‘under the guise of construction, rewrite the law or give the words an effect different from the plain and direct import of the terms used.’ [Citation.] Further, ‘“[w]e must assume that the Legislature knew how to create an exception if it wished to do so . . . .” [Citation.]’ [Citation.]” (DiCampli-Mintz v. County of Santa Clara (2012) 55 Cal.4th 983, 992 [150 Cal.Rptr.3d 111, 289 P.3d 884].)
The Attorney General‘s contention would have us contravene these principles of statutory construction by injecting a distinction into the statutes that contradicts their plain, undifferentiated language. Together,
While it seems most sensible and efficient for a judge to determine the goading issue, there is simply no statutory basis for treating once in jeopardy pleas based on a “traditional” double jeopardy theory (i.e., prior conviction or acquittal of the same offense) differently than those asserting Kennedy-type claims.
2. The Fact That Sections 1041 and 1042 Were Originally Enacted Before Kennedy-type Claims Were Recognized Does Not Alter Our Interpretation of Those Statutes
The Attorney General argues that the Legislature could not have intended to require a jury trial here because the theory of prosecutorial goading did not exist when
“Old laws apply to changed situations. The reach of [an] act is not sustained or opposed by the fact that it is sought to bring new situations under its terms. . . .” (Browder v. United States (1941) 312 U.S. 335, 339-340, fns. omitted; accord, Souza v. Lauppe (1997) 59 Cal.App.4th 865, 874 [69 Cal.Rptr.2d 494].) Statutes are “not to be confined to the ‘particular application[s] . . . contemplated by the legislators.’ [Citations.]” (Diamond v. Chakrabarty (1980) 447 U.S. 303, 315-316; accord, Souza v. Lauppe, supra, 59 Cal.App.4th at p. 874.) Instead, they are interpreted as embracing everything that “subsequently fall within [their] scope. . . .” (De Lima v. Bidwell (1901) 182 U.S. 1, 197.) As a result, if the statute‘s language fairly brings a given situation within its terms, “it is unimportant that the particular application may not have been contemplated. . . .” (Barr v. United States (1945) 324 U.S. 83, 90; accord, Khajavi v. Feather River Anesthesia Medical Group (2000) 84 Cal.App.4th 32, 51 [100 Cal.Rptr.2d 627] (Khajavi); see Los Angeles Unified School Dist. v. Garcia (2013) 58 Cal.4th 175, 192 [165 Cal.Rptr.3d 460, 314 P.3d 767] (Garcia).)
These rules of statutory construction reflect several considerations.
First, legislatures “likely cannot . . . anticipate all circumstances in which a general policy must be given specific effect.” (United States v. Haggar Apparel Co. (1999) 526 U.S. 380, 392.) Consequently, most statutes “are written in general terms and do not undertake to specify all the occasions that they are meant to cover . . . .” (Gilbert v. Commissioner (2d Cir. 1957) 248 F.2d 399, 411.)
Second, even when a legislature likely would have enacted a differently worded law had it foreseen future developments, any statutory revision reflecting that reality must come from that legislature, not the judiciary. (See Seminole Tribe of Fla. v. Florida (1996) 517 U.S. 44, 76.)
Courts have applied these interpretive methods in countless cases, refusing to read an exception into a statute merely because a particular application was likely unanticipated by the enacting legislature. (See, e.g., U.S. v. Southwestern Cable Co. (1968) 392 U.S. 157, 172-173; Barr v. United States, supra, 324 U.S. at p. 90; U.S. v. Underwriters Assn. (1944) 322 U.S. 533, 556-557, superseded by statute on another point as noted in Department of Treasury v. Fabe (1993) 508 U.S. 491, 499; Puerto Rico v. Shell Co. (1937) 302 U.S. 253, 257; Pickhardt v. Merritt (1889) 132 U.S. 252, 257; Newman v. Arthur (1883) 109 U.S. 132, 137-138; Garcia, supra, 58 Cal.4th at p. 192; Apple Inc. v. Superior Court (2013) 56 Cal.4th 128, 136; O’Grady v. Superior Court (2006) 139 Cal.App.4th 1423, 1461; Smith v. Pan Air Corp. (5th Cir. 1982) 684 F.2d 1102, 1113; Standard Electrica, S.A. v. Hamburg Sudamerikanische Dampfschiffahrts-Gesellschaft (2d Cir. 1967) 375 F.2d 943, 946-947; Cain v. Bowlby (10th Cir. 1940) 114 F.2d 519, 522-523; Jerome H. Remick & Co. v. American Automobile Accessories Co. (1925) 5 F.2d 411, 411; cf. Browder v. United States, supra, 312 U.S. at pp. 339-340; Trs. of Dartmouth College v. Woodward (1819) 17 U.S. 518, 644-645.)
Put another way, the legislative decision to which we are deferring is not a choice to consciously include Kennedy-type claims within the scope of
It remains entirely possible that if the Legislature had anticipated the emergence of Kennedy-type claims, it would have excepted them from the statutory right to a jury trial in
3. The Plain Language of Sections 1041 and 1042 Is Not in Conflict with Section 1141
The Attorney General argues our interpretation of
The true conflict is not between
4. The Foreign Decisions Cited by the Attorney General Do Not Compel a Different Conclusion
The Attorney General cites the decisions of several foreign jurisdictions and notes that many have provided for judicial determinations of prosecutorial intent.32 But the Attorney General fails to explain how those decisions should bear on our interpretation of California statutes. It is true that a foreign opinion interpreting a “similarly worded statute[], although not controlling, can provide valuable insight” when construing a California law. (In re Joyner (1989) 48 Cal.3d 487, 492 [256 Cal.Rptr. 785, 769 P.2d 967].) But none of the foreign cases cited by the Attorney General interpreted any relevant statutes whatsoever, much less ones that are similarly worded to
And even if foreign courts had decided that their own states’ statutory schemes do not require a jury trial in this context, it would not change our conclusion. (Cf. Foster v. Vehmeyer (1901) 133 Cal. 459, 461 [65 P. 974] [“It is unnecessary to review the many cases cited by appellant from other states, for each state has its own statute bearing upon the procedure to be followed, and it is upon the construction of these various and different statutes that the contrariety of decision has arisen.“].) The Attorney General‘s “contention concerning the practice of other jurisdictions is better addressed to the Legislature, which can evaluate the benefit of joining these other jurisdictions. . . .” (Grafton Partners v. Superior Court (2005) 36 Cal.4th 944, 965 [32 Cal.Rptr.3d 5, 116 P.3d 479].)
a. People v. Betts
In People v. Betts (2005) 34 Cal.4th 1039 [23 Cal.Rptr.3d 138, 103 P.3d 883] (Betts), the Supreme Court considered whether issues of venue and territorial jurisdiction are to be decided by a judge or a jury. (Id. at p. 1043.)
In Betts, the Supreme Court observed that
The Attorney General cites this reasoning from Betts. Also, the trial court in this case relied on the “procedural issue versus matter of guilt” distinction in determining the double jeopardy issue need not be submitted to a jury. We, however, find this reasoning inapplicable.
First, the controlling statute in Betts was
This distinction between the statutes at issue in Betts and the present case highlights the core flaw in the trial court‘s reasoning in this case.35 The trial court concluded that the issue of prosecutorial intent did not need to be submitted to the jury because it involved “a procedural matter . . . and not one of guilt or innocence.” But that is true of all pleas of once in jeopardy. The trial court‘s reasoning would mean that no once in jeopardy plea (even those based on a “classic” double jeopardy theory) would ever be tried to a jury. Such a result would be impossible to square with
Moreover,
We are not dissuaded by Betts‘s observation that trial courts “routinely” decide “whether the prosecution‘s misconduct that results in a mistrial bars retrial, a decision that requires findings as to the prosecutor‘s intent [citation] . . . .” (Betts, supra, 34 Cal.4th at pp. 1049-1050, fn. omitted; see id. at pp. 1049-1050, fn. 3.) Unlike the Supreme Court in Betts (and Batts, discussed below), we have been expressly called upon by the parties to determine whether this practice—even if routine—complies with
The Attorney General also cites to dictum from our Supreme Court expressing “grave doubts that . . . factual questions regarding the prosecution‘s intent in committing misconduct are appropriate for resolution by a jury rather than by the court . . . .” (Batts, supra, 30 Cal.4th at p. 697, fn. 28.) The footnote goes on to say that “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 [citation].”37 (Batts, supra, at p. 697, fn. 28, original italics; but see Collins v. State, supra, 640 S.W.2d at pp. 290-291.) The court concluded the footnote by observing: “We have no occasion to decide that issue in the present case, however, because none of the parties raised the issue in the trial court.” (Batts, supra, at p. 697, fn. 28.)
We have several observations regarding this language.
First, we note that the footnote is clearly dictum, and essentially identifies itself as such. (Batts, supra, 30 Cal.4th at p. 697, fn. 28 [noting court had “no occasion to decide” the issue]; cf. People v. Wiley (1995) 9 Cal.4th 580, 588 [38 Cal.Rptr.2d 347, 889 P.2d 541] [prior Supreme Court decision‘s brief mention of state constitutional right to a jury trial not a “considered decision” determining scope of California constitutional right to a jury trial].)
Second, we share the Supreme Court‘s doubts that these factual questions are “appropriate for resolution by a jury.” (Batts, supra, 30 Cal.4th at p. 697, fn. 28.) But this case has us deciding not whether a jury trial is “appropriate,” but instead whether it is required by the Penal Code.
Third, though this is not made explicit in the text, we think the footnote may best be read as an expression of doubt only as to whether the United States and California Constitutions—rather than the Penal Code—compel a jury trial in this context.38 The Batts opinion is almost entirely concerned
Moreover, the only case cited in the relevant portion of the footnote is the United States Supreme Court‘s decision in Kennedy. Such a citation would be unusual if used to support the notion that the Penal Code does not provide for a jury trial, yet entirely appropriate if done to show that a jury trial is not compelled by the United States Constitution.
6. The Fact That Policy Considerations May Favor Judicial Resolution of Some Issues of Fact Raised by Once in Jeopardy Plea Is Irrelevant Given the Plain Language of the Applicable Statutes
To say, as we do, that there is no statutory basis for treating Kennedy-based pleas differently is not to suggest that other approaches are meritless or even inferior.39 The Attorney General credibly argues that having a judge decide disputed issues of fact regarding prosecutorial intent in this context is “the better rule” because the judge will have witnessed the prosecutor‘s actions and demeanor during trial and will be familiar with the
While the Attorney General‘s policy arguments may well be quite valid, they have been presented in the wrong forum. “It is not our function to ‘inquir[e] into the “wisdom” of underlying policy choices.’ [Citation.] ‘[O]ur task here is confined to statutory construction.’ [Citation.]” (Bonnell v. Medical Board (2003) 31 Cal.4th 1255, 1263 [8 Cal.Rptr.3d 532, 82 P.3d 740].)
7. The Plain Meaning of Sections 1041, Subdivision 3 and 1042 Is Not Absurd, So as to Warrant Judicial Rewriting of the Statutes
The Attorney General argues that adhering to the literal meaning of
“‘The literal meaning of the words of a statute may be disregarded to avoid absurd results . . . .’ [Citations.]”41 (Unzueta v. Ocean View School Dist. (1992) 6 Cal.App.4th 1689, 1698 [8 Cal.Rptr.2d 614] (Unzueta).) But the absurdity doctrine should only be used in “‘extreme cases . . . .‘” (People v. Schoop (2012) 212 Cal.App.4th 457, 470 [151 Cal.Rptr.3d 200], original italics; see People v. Pecci (1999) 72 Cal.App.4th 1500, 1507 [86 Cal.Rptr.2d 43]; Unzueta, supra, 6 Cal.App.4th at p. 1698.) There are several reasons courts are reluctant to employ the doctrine.
First, we are largely powerless to perform legislative functions. (See
Second, “[t]here are few, if any, sources guiding an appellate court on how to apply the absurdity exception to the ‘plain meaning rule.‘” (People v. Harbison (2014) 230 Cal.App.4th 975, 986-987 (dis. opn. of Yegan, J.).) This lack of guidance is dangerous, since “[a]bsurdity . . . is in the eye of the beholder.” (Unzueta, supra, 6 Cal.App.4th at p. 1698Ibid.; see People v. Pecci, supra, 72 Cal.App.4th at p. 1507.)
The Attorney General makes several attempts to clear the high bar set by this state‘s absurdity jurisprudence. Most of these contentions concern the burden jeopardy jury trials will place on trial courts and the anticipated difficulty of managing the proceedings. But “[m]ere inconvenience resulting from a construction according to the clear meaning of a statute will not justify the courts in ignoring its terms.” (58 Cal.Jur.3d (2012) Statutes, § 108, p. 521, fn. omitted.) For the reasons explained below, we conclude that we may not rewrite the statutes under the absurd consequences doctrine.
Evidentiary Issues
The Attorney General argues the scope of the evidence presented at the jeopardy proceeding would be “unwieldy.” Below we address the specific hypotheticals and examples posed by the Attorney General. But first, we note as a general matter that the trial judge has authority to limit the “evidence and the argument of counsel to relevant and material matters. . . .” (
Calling the First Prosecutor to Testify
The Attorney General notes that at the type of jury trial contemplated here, prosecutors would likely be called to testify regarding the allegations of misconduct underlying a defendant‘s plea. We do not see this eventuality as undesirable. To the contrary, the prosecutor‘s testimony concerning his or her own state of mind would likely be highly relevant to any Kennedy-type claim.
The Attorney General next claims that the judge who presides over the mistrial might be called as a witness in a subsequent jeopardy trial. However, that possibility is foreclosed by statute. (See
“The rules for determining the competency of witnesses in civil actions are applicable also to criminal actions and proceedings, except as otherwise provided” in the Penal Code. (
Therefore, the judge who presided over the mistrial could not be called to testify at a later jeopardy trial as to “any statement, conduct, decision, or ruling, occurring at or in conjunction with” the mistrial. (
Pretrial Rulings
The Attorney General next claims that the jeopardy jury would need to hear evidence about “all” of the in limine proceedings leading up to the mistrial. We disagree. The jury would only need to consider evidence of the in limine proceedings relevant to the prosecutorial goading inquiry. For example, if this case proceeds to a jeopardy trial on remand, the jury would need to consider the in limine ruling concerning evidence of defendants’ arrest, which the prosecutor failed to convey to Deputy Starr. In other contexts, we ask juries to determine whether someone “willfully violated [a] court order” (CALCRIM No. 2700), which necessarily requires that the jury consider evidence of the court order, determine its scope, and identify the relevant conduct it prohibits or requires. We see no meaningful distinction between that circumstance and a jeopardy jury‘s consideration of the pretrial ruling in this case.
The Attorney General also notes the jeopardy jurors would need to hear evidence admitted at the first trial up to the point a mistrial was declared.43
But there is nothing absurd or even uncommon about this circumstance in the double jeopardy context. Evidence from prior trials relevant to a jeopardy determination is often admitted at a subsequent jury trial. (See, e.g., People v. Warren (1940) 16 Cal.2d 103, 108 [104 P.2d 1024]; People v. James (1893) 97 Cal. 400, 400-402 [32 P. 317]; People v. Majors, supra, 65 Cal. at pp. 139-140; People v. McDougal (2003) 109 Cal.App.4th 571, 576 [135 Cal.Rptr.2d 160]; People v. Finch (1963) 213 Cal.App.2d 752, 760 [29 Cal.Rptr. 420]; People v. Demes (1963) 220 Cal.App.2d 423, 433-434 [33 Cal.Rptr. 896], disapproved on other grounds in People v. Collie (1981) 31 Cal.3d 43, 64, fn. 19 [177 Cal.Rptr. 458, 634 P.2d 534]; People v. Dukes (1934) 2 Cal.App.2d 698, 699-700 [38 P.2d 805]; People v. Kelly (1933) 132 Cal.App. 118, 119-122 [22 P.2d 526]; People v. Clinton (1926) 78 Cal.App. 451, 453 [248 P. 929]; People v. Castilla (1915) 28 Cal.App. 190, 191-192 [151 P. 746].)
The Attorney General argues that a Kennedy/Batts jury trial is more onerous than other types of double jeopardy trials. But “more onerous” is not synonymous with “absurd.” And while we are sensitive to any additional burdens on our trial courts, we do not see the contrast with other jeopardy trials being as stark as the Attorney General suggests.
To make this point, the Attorney General provides the example of a jury considering a plea of former acquittal. In that context, the Attorney General argues, the jury would merely be required “to review conviction records in conjunction with guilt-phase evidence to determine whether the defendant was acquitted in the prior case and whether that conviction was for the same conduct at issue in the current trial.” (Italics added.) But that inquiry, especially the second prong of the Attorney General‘s formulation, may pose many of the same problems faced here. To determine whether the defendant‘s prior conviction was based on the same conduct at issue in the current trial, the jury would have to go through the evidence admitted at the first trial. And
Greer
In a similar vein, consider the actual case of Greer, supra, 30 Cal.2d 589. In that case, the defendant was charged with lewd and lascivious conduct with a minor under the age of 14 and statutory rape of a minor under the age of 18. Both charges arose from a single incident where the defendant had forced himself upon his 13-year-old stepdaughter.
In a previous trial, the defendant had been charged with the same two charges he currently faced, plus a charge of contributing to the delinquency of a minor under the age of 21. (Greer, supra, 30 Cal.2d at p. 595.) The prior jury convicted the defendant on the charge of contributing to the delinquency of a minor but failed to reach a verdict on the statutory rape and lewd and lascivious conduct charges. (Ibid.)
The defendant “pleaded double jeopardy” before his second trial.44 (Greer, supra, 30 Cal.2d at p. 595.) However, the trial court ruled that the defendant could not introduce evidence of the previous prosecution at trial. (Id. at pp. 596, 600.) The defendant claimed this was error and the Supreme Court agreed.
The Supreme Court first observed that the conviction of a lesser included offense is a bar to prosecution for a greater offense. (Greer, supra, 30 Cal.2d at p. 597, quoting People v. Krupa (1944) 64 Cal.App.2d 592, 598 [149 P.2d 416].) The court then held that contributing to the delinquency of a minor under the age of 21 is a lesser included offense of both statutory rape of a minor under the age of 18 and lewd and lascivious conduct with a minor under the age of 14. (Greer, supra, at pp. 597-598.)
However, the court also observed that even though one offense was necessarily included in the two others, the defendant could nonetheless be convicted of all three, but only “if separate acts served as the basis of each count . . . .” (Greer, supra, 30 Cal.2d at p. 600.) The Supreme Court said the determination of whether the counts were based on separate acts was “a question for the jury . . . .” (Ibid., italics added.) Therefore, the Supreme
Many of the arguments the Attorney General asserts against jury trials on Kennedy-type claims apply with similar force to Greer‘s requirement that the issue of separate acts underlying a jeopardy claim must be submitted to a jury.
Under the specific facts of Greer, the new jury on remand would have needed to determine whether the first jury‘s conviction for contributing to the delinquency of a minor was based on the same act as the current charges of statutory rape and lewd and lascivious conduct. This would necessarily require introducing most or all of the evidence from the first trial.
And, requiring submission of the “separate acts” issue to a jury would put a greater strain on judicial resources than the pretrial ruling procedure used by the Greer trial judge.
Moreover, a strong argument could be made that the trial judge at the Greer defendant‘s first trial would be better situated to compare the evidence from the first trial to the allegations in the post-mistrial information.
Nonetheless, Greer requires jury determination of the issue.
Surely there would be differences between a jury trial on a Kennedy-type double jeopardy claim and a jury trial on a double jeopardy claim under Greer. But none of those differences are substantial enough to justify declaring one absurd and the other not.
Jury Instructions
The Attorney General also contends the instructions to the jeopardy jury will be novel. It is true that California does not currently have applicable pattern jury instructions, given that there is no published case recognizing that
Separate Juries for Jeopardy and Guilt Determinations
In a request for supplemental briefing we raised the possibility of needing to have separate juries for guilt and jeopardy since evidence of the mistrial-inducing misconduct would be highly relevant to the jeopardy determination but also highly prejudicial to the guilt determination. The Attorney General agreed that separate guilt and jeopardy juries will often be required and argues that the strain on judicial resources this will cause is too great.46
First, we note that the Attorney General acknowledges that in this case, only one jury would need to be empaneled on remand.
Second, we observe that a similar argument was made against permitting bifurcation of jury trials on prior conviction enhancements from the underlying charges. (See People v. Calderon (1994) 9 Cal.4th 69, 77 [36 Cal.Rptr.2d 333, 885 P.2d 83].) Yet, the Supreme Court rejected the argument, concluding that “the state‘s legitimate interest in conserving judicial resources is insufficient to justify denying a defendant‘s request to bifurcate the trial when having the jury determine the truth of a prior conviction allegation concurrently with the defendant‘s guilt of the currently charged offense would
15.4 as allowing “a jury to be empaneled to determine the factual question whether the prosecutor‘s actions in the first trial were intended to provoke the defendant into moving for a mistrial“].)
Proposed Procedure, Applicable in Certain Circumstances, to Mitigate Burdens on Trial Court and Juror Pool
Given the substantial burden today‘s holding will place on trial courts and juror pools, we have considered alternative procedures that might mitigate these burdens in future cases while adhering to statutory mandates. We set forth one of those possible alternatives below.
When a defendant makes a meritorious request for a mistrial on the basis of prosecutorial error or misconduct, the court could simply allow the defendant to interpose a plea of once in jeopardy and have the Kennedy issue submitted to the current jury before they are discharged. The jury would be instructed to return a verdict only on the issue of jeopardy, and a mistrial would then be declared as to all substantive counts and allegations.
This procedure would serve several interests. First, it would obviate the need to empanel two separate post-mistrial juries. Second, the “mistrial jury” would presumably be in a far better position than a subsequently empaneled jury to determine the likelihood of acquittal at the time of the alleged misconduct. The “mistrial jury” will have observed the proceedings firsthand, including the conduct and demeanor of counsel and witnesses and the introduction of evidence.
The suitability of this procedure may depend on several considerations, including how much of the trial has been conducted and whether the jury actually witnessed the alleged misconduct of the prosecutor. Since this proposal is impossible to implement here we simply raise it as a possibility for courts to consider in the future in the hope it can mitigate the burdens that may be imposed by today‘s holding.
E. Trial Courts May Strike a Defendant‘s Plea of Once in Jeopardy in Certain Circumstances
On a motion by the prosecution,48 a jeopardy plea may be struck pretrial when the defendant fails to support the plea with proof, or the facts
Here, the trial court employed the wrong standard for determining whether a judge, rather than a jury, could adjudicate defendants’ once in jeopardy pleas. The trial court concluded that because defendants’ jeopardy pleas did not present an issue of guilt or innocence, they could be adjudicated by a judge. As explained above, that is not the applicable standard. Instead, the correct standard is whether the evidence concerning defendants’ pleas is undisputed and gives rise to only one reasonable inference (i.e., whether the pleas present solely an issue of law). Therefore, on remand, the prosecution or trial court may move to strike defendants’ pleas without submitting them to a jury. The court may only grant the motion if (1) defendants are first given an opportunity to present evidence concerning the goading issue (e.g., the testimony of the prosecutor at the first trial, and Deputy Starr) and (2) the court thereafter determines that the facts are undisputed and give rise to only one reasonable inference.50 Otherwise, the issue must be submitted to a jury.
Therefore, consistent with a long line of cases and clear statutory directives, we hold that whenever any plea of once in jeopardy presents a question of material fact, it must be resolved by a jury, unless a jury trial is waived. (
Other circumstances related to the plea—such as the specific theory of double jeopardy on which the plea is based—are not independently relevant to whether a jury trial is required under the undifferentiated language of
Remedy
“‘[W]hen the validity of a conviction depends solely on an unresolved or improperly resolved factual issue which is distinct from issues submitted to the jury, such an issue can be determined at a separate post-judgment hearing and if at such hearing the issue is resolved in favor of the People, the conviction may stand.’ [Citation.]” (People v. Gaines (2009) 46 Cal.4th 172, 180 [92 Cal.Rptr.3d 627, 205 P.3d 1074].) We conclude that such a disposition is appropriate for the error we have identified here.51 Consequently, we will conditionally reverse the judgment and remand for proceedings consistent with this opinion.
On remand, the trial court may strike defendants’ pleas without submitting them to a jury only if (1) defendants are first afforded an opportunity to present evidence in support of their pleas and (2) the trial court concludes thereafter that defendants have raised no question of fact (i.e., the facts concerning the pleas are undisputed and there is only one reasonable inference to be drawn from those undisputed facts). If the court strikes defendants’ pleas, it shall then reinstate the convictions and true findings (except the conviction on count 22).52
II.-XIII.*
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
DISPOSITION
The convictions of defendants Bell, Joseph, Williams and Lewis for conspiracy to commit assault with a semiautomatic weapon (count 22) are reversed and retrial of that charge is prohibited.
The judgment and all defendants’ other convictions and enhancements are conditionally reversed.
On remand, the prosecution or trial court may move to strike defendants’ pleas of once in jeopardy. If such a motion is made, defendants shall be afforded an opportunity to present evidence. Thereafter, if the court concludes that defendants have raised no issue of fact (i.e., the facts concerning the pleas are undisputed and there is only one reasonable inference to be drawn from those undisputed facts), the court may strike defendants’ pleas of once in jeopardy and reinstate the convictions, except the conviction on count 22. If, however, the court concludes there is any issue of fact presented with respect to defendants’ jeopardy pleas (or if no motion to strike is made by the prosecution or the trial court), a jury trial must be held on defendants’ pleas of once in jeopardy. (See Discussion, pt. I.E., ante.) At such a trial,
* See footnote, ante, page 315.
If any convictions are reinstated after the jury trial on defendants’ pleas of once in jeopardy, the trial court shall resentence defendants in a manner “that does not violate
Kane, Acting P. J., and Smith, J., concurred.
A petition for a rehearing was denied November 2, 2015, and the opinion was modified to read as printed above. The petitions of both appellants and respondents for review by the Supreme Court were denied January 27, 2016, S230458.