THE PEOPLE, Plaintiff and Appellant, v. DANNY HAMPTON, Defendant and Respondent.
C093270
(Super. Ct. No. 04F11184)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)
Filed 2/10/22
CERTIFIED FOR PUBLICATION
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Eric L. Christoffersen, Supervising Deputy Attorney General, Christopher J. Rench, Deputy Attorney General, for Plaintiff and Appellant.
Sandra Gillies, under appointment by the Court of Appeal, for Defendant and
A jury found defendant Danny Hampton guilty of first degree murder and two counts of robbery. The trial court sentenced defendant to an aggregate term of 33 years to life. This court affirmed the judgment. (People v. Hampton (Dec. 29, 2009, C056867) [nonpub. opn.] (Hampton).)1 The jury could not reach a verdict on the robbery-murder special-circumstance allegation, and that allegation was dismissed on the People‘s motion for insufficient evidence.
Defendant filed a petition for resentencing under
BACKGROUND
A
Relevant Facts Underlying Conviction
Defendant and three of his friends planned a robbery of defendant‘s marijuana dealer, Larry Elliott. Defendant did not want to participate in the robbery, but the codefendants told him he had no choice. The plan included defendant setting up a pretextual drug buy to determine how much marijuana Elliott had at his home. Defendant and codefendant Camitt Doughton went to Elliott‘s house and were there for about eight minutes, smoking marijuana and listening to music with Elliott and his two guests. Then, codefendants Edward Quintanilla and Deandre Scott burst into the garage, wearing masks, all black clothing, and armed with firearms. They ordered everyone onto the ground and pistol-whipped Elliott. Defendant pleaded with the codefendants to stop assaulting the victims and tried to reassure the victims they were safe. Quintanilla and Scott went into the home and searched for things to steal. Defendant remained in the garage. He was not armed. When Scott came back into the garage from the house, he had a shotgun and an assault rifle. Quintanilla and Scott ordered defendant to take a bucket containing marijuana and leave the garage. Defendant did. As he was running from the scene, he heard a gunshot. Doughton had shot Elliott in the back of the head. When
There was also evidence that defendant knew his codefendants planned to be armed, had handled one of the guns earlier on the day of the robbery, and that one of his codefendants indicated a willingness to shoot the victims, if necessary.
B
Relevant Procedural Background Original Trial
At close of evidence, defendant made a motion to dismiss the special-circumstance allegation under
On the second day of deliberations, the jury indicated it had reached a verdict, except as to the special-circumstance allegation. The court provided additional instruction and allowed counsel to conduct additional argument focused on the issue the jury had indicated it was divided on. After additional deliberation, the jury remained unable to reach a verdict. They were split six to six. The court declared a mistrial as to the special-circumstance allegation. The court asked the prosecutor what he wanted to do regarding the allegation and the prosecutor requested the issue be put over to the time of sentencing.
The jury found defendant guilty of first degree murder and two counts of robbery. The trial court sentenced defendant to a term of 25 years to life for the murder, plus one year for the firearm enhancement, a consecutive midterm of six years on one robbery conviction, plus one year for each firearm enhancement, and an identical term on the other robbery conviction stayed under
After sentencing, the People stated: “With respect to the special circumstances charge that the Court had declared a mistrial on ... the People would move to dismiss that for insufficient evidence.” The trial court responded: “All right. The special circumstance charge will be dismissed for insufficient evidence.”
Section 1170.95 Petition
In 2019, defendant filed a petition for resentencing under
Defendant argued the dismissal of the special-circumstance allegation for insufficient evidence on the People‘s motion barred any relitigation of the issue as a violation of double jeopardy. Defendant also argued “the prosecution concluded, as a matter of law, that there was insufficient evidence to sustain the special circumstance allegation. They cannot now reverse course and assert the opposite.”
The People argued given the prior denial of the
In ruling on the
I
General Legal Background
Senate Bill No. 1437 (2017-2018 Reg. Sess.) amended “the felony murder rule and the natural and probable consequences doctrine, as it relates to murder, to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life.” (Stats. 2018, ch. 1015, § 1, subd. (f).) The bill amended
If the defendant makes a prima facie showing of eligibility for relief (
As relevant here, since there is no dispute defendant was not the actual killer and did not act with intent to kill, to now be convicted of murder the prosecution was required to prove defendant “was a major participant in the underlying felony and acted with reckless indifference to human life, as described in subdivision (d) of
Appealability
As a threshold issue, defendant contends the order granting the petition is not an order the People are statutorily entitled to appeal.3 The People contend this order is appealable under
“The People‘s right to appeal is statutory, and appeals that do not fall within the exact statutory language are prohibited.” (People v. Salgado (2001) 88 Cal.App.4th 5, 11.) The statutory circumstances permitting a People‘s appeal are specified in
The resentencing scheme of
Given the analogous processes, we conclude the Martinez court‘s analysis applies in the current situation and the People may appeal the trial court‘s determination that defendant is entitled to relief. The order was indisputably made “after judgment“; judgment was imposed in defendant‘s case when he was originally sentenced. It also affects the People‘s substantial rights in that it determines whether the trial court will exercise its powers to recall the previous judgment and resentence defendant. (People v. Benavides, supra, 99 Cal.App.4th at p. 105.) Ultimately, the order resulted in a substantial modification of the original judgment. (People v. Gilbert (1944) 25 Cal.2d 422, 444 [order is “obviously” appealable when its effect is “to modify substantially the judgments originally entered“].) Thus, the trial court‘s order determining defendant is entitled to relief qualifies as “[a]n order made after judgment, affecting the substantial rights of the people,” and is appealable under
We are not persuaded by defendant‘s argument, relying on People v. Rivera (1984) 157 Cal.App.3d 494, that the court did not issue an order, but rather entered a new judgment that is not appealable as an order after judgment. The statutory resentencing scheme at issue in Rivera, under former
Moreover, in Rivera, the substance of the appeal was directed at the resentencing decision; that is, the new judgment itself. Specifically, the appeal challenged whether a portion of the sentence should run consecutively rather than concurrently. (People v. Rivera, supra, 157 Cal.App.3d at p. 495.) Here, on the other hand, the People challenge the trial court‘s conclusion that the dismissal for insufficient evidence acted as an acquittal, a decision that then required the court to vacate the murder conviction and resentence defendant. Thus, the People in this instance are challenging an order made after judgment, rather than the new judgment itself. Thus, we conclude the trial court‘s order finding defendant entitled to relief under
III
Dismissal For Insufficient Evidence
The People contend the record here does not clearly indicate that the dismissal was based on insufficient evidence. Specifically, they argue the use of the language “insufficient evidence,” without more, does not clearly reflect that the court applied the substantial evidence test. Defendant claims the People are estopped from raising the issue. Defendant also argues the record is unambiguous and the dismissal served as an acquittal.
A
Procedural Bar -- Judicial Estoppel, Invited Error, And Forfeiture
Defendant argues if the original trial court erred in dismissing the matter for insufficient evidence, the People cannot challenge that ruling under principles of judicial estoppel, invited error, or forfeiture. Since these claims raise procedural bars that, if applicable, would obviate the need to address the merits, we consider them first and conclude none apply.
Judicial estoppel is intended to protect the integrity of the judicial process, by preventing a party from asserting a position in a legal proceeding that is contrary to a position previously taken in the same or an earlier
“The doctrine of invited error is designed to prevent an accused from gaining a reversal on appeal because of an error made by the trial court at his behest. If defense counsel intentionally caused the trial court to err, the appellant cannot be heard to complain on appeal.” (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 49.) Again, assuming this doctrine also applies to the prosecution, under the doctrine, it must be clear that counsel intentionally caused the trial court to err, and that counsel acted for tactical reasons and not out of ignorance or mistake. (Ibid.)
In moving for dismissal on the grounds of insufficient evidence, the prosecutor conceded a legal point; that concession is not the same as an assertion of a position. Nothing in the record suggests there was any intent on the prosecutor‘s part to make the concession as part of a scheme to mislead the court to gain an unfair advantage or to deliberately induce the court to err for tactical reasons. Nor is there any indication in the record that the prosecution‘s motion to dismiss for insufficient evidence was not the result of mistake in offering that as the reason for the dismissal or ignorance that dismissal on that basis would effectively act as an acquittal. Defendant does not claim otherwise. Accordingly, although this motion was granted in the language of the People‘s motion, we cannot rely on the doctrines of judicial estoppel or invited error, to resolve this claim.
Nor does forfeiture bar the People‘s claim. Forfeiture is the failure to make a timely assertion of a right. (United States v. Olano (1993) 507 U.S. 725, 733.) When the legal effect of the dismissal became an issue in dispute, the People timely raised their objection to the conclusion the dismissal was the equivalent of an acquittal. That argument preserved this issue for appeal.
Dismissal
“Insufficient evidence” is a term of art and -- absent a contrary indication -- means the evidence was insufficient to support a conviction as a matter of law. (Hatch, supra, 22 Cal.4th at p. 276; Mannes v. Gillespie (9th Cir. 1992) 967 F.2d 1310, 1315 (Mannes).) If the jury has not been able to reach a verdict and the trial court rules the evidence is insufficient as a matter of law to sustain a conviction, the ruling bars retrial even if the ruling is patently erroneous or the court has no statutory authority to make it. (Hatch, at pp. 270-271; see Sanabria v. United States (1978) 437 U.S. 54, 75 [there is no exception permitting retrial once the defendant has been acquitted, no matter if the acquittal is egregiously erroneous.].)
We note, we are not called on here to determine whether the trial court correctly dismissed the case for insufficient evidence, because even when a case is wrongly dismissed for insufficient evidence, that dismissal will act as an acquittal. (Hatch, supra, 22 Cal.4th at pp. 270-271, and cases cited therein.) Thus, we are only required to determine if the dismissal was, in fact, a determination that there was insufficient evidence as a matter of law to sustain a true finding on the enhancement.
In Hatch, following a jury deadlock, the court declared a mistrial. (Hatch, supra, 22 Cal.4th at p. 266.) Following argument from the parties, the trial court dismissed the case in the interest of justice, because it concluded no reasonable jury would find the defendant guilty. (Ibid.) The court did not state it was dismissing the case for insufficient evidence. Our Supreme Court noted
Although there are no “magic words” the court must use, we have not found, and the People have not cited, any authority where the trial court has used the language “insufficient evidence” in its dismissal and the dismissal was not found to be the equivalent of an acquittal. (See People v. Salgado, supra, 88 Cal.App.4th at p. 10 [trial court stated insufficient evidence was as a matter of law to show the defendant aided and abetted carjacking]; People v. Pedroza (2014) 231 Cal.App.4th 635, 642 [trial court stated there was insufficient corroboration of accomplice testimony as a matter of law, and retrial barred by double jeopardy]; Mannes, supra, 967 F.2d at p. 1314 [trial court stated there was insufficient evidence for implied malice or conscious disregard and no likelihood retrial would result in unanimous verdict].)
The trial court and the prosecutor each explicitly stated the matter was being dismissed for “insufficient evidence.” While the prosecutor may have mistakenly offered that as the basis for the dismissal or been unaware that such a dismissal would be the equivalent of an acquittal, we cannot presume both the prosecutor and the trial court intended the dismissal to be on some other, unmentioned, grounds. The People offer various speculative reasons as to what the prosecutor might have meant when he used the language “insufficient evidence.” We will not engage in this speculation to suppose the prosecutor meant something other than what he said. Moreover, none of these reasons explains why, if the prosecutor did not mean “insufficient evidence,” he would not have simply used the language of
Even more importantly, what the prosecutor meant when he used the phrase “insufficient evidence” is not the controlling consideration. What matters is what the trial court intended when it dismissed the allegation.
Absent any contrary indication, we must presume the trial judge intended the phrase to carry its accepted, and precise, meaning -- that the evidence presented at the trial was not legally sufficient to support a conviction for the crime charged. There is no contrary indication. Although the trial judge previously denied defendant‘s motion for acquittal under
The order granting defendant‘s
/s/
Robie, J.
We concur:
/s/
Raye, P. J.
/s/
Hull, J.