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Name: Brown v. Superior Court
Case #: B221980
Court: CA Court of Appeal
District 2 DCA
Division: 1
Opinion Date: 08/31/2010

Generally, a defendant bears the burden of establishing a defense of double jeopardy. But, in the unique circumstance where the prosecution’s strategic charging decisions and trial theory are inconsistent with the specificity of the evidence presented at trial, then the prosecution has the burden of proving the charges to be retried involved different offenses than those involved in the jury’s convictions or acquittals. This case involved the issue-preclusion aspect of double jeopardy. Petitioner was charged with committing 23 sex offenses spanning months against two minors. At trial, the court dismissed two counts. The jury convicted of a lesser included offense of one count, acquitted appellant of three counts, and hung on the remaining counts. The court declared a mistrial on those counts. The prosecutor sought to retry petitioner over a double jeopardy objection. The court allowed retrial on five counts and petitioner filed a writ of mandate. The appellate court held all the charges were barred by double jeopardy. As a preliminary matter, the court found the burden on the issue of double jeopardy shifted to the prosecution because the inability of appellant to prove the defense was “attributable to a deliberate decision by the prosecution to charge, argue, and support instructions to the jury that were inconsistent with the specificity of the evidence presented.” As to count 13 against the first victim, the prosecution argued retrial was permissible because it was based on an incident occurring on March 8th. But the information charged a range of dates and neither the instructions or the verdict forms limited that count to the events occurring on March 8th. And even though at trial the prosecutor argued he was of the “mindset” that count 13 applied to the incident on March 8, that argument was not an adequate election by the prosecutor, and the jury was free to disregard that view of the charges. Since the prosecution could not show that none of the acquittals pertained to the March 8 incident, double jeopardy precludes retrial of that count. In regards to the remaining four counts against the second victim (counts 19-22 charging lewd acts), retrial of those was precluded because they were subsumed by count 23, which charged continuous sexual abuse of the minor by unlawfully engaging in three or more acts of substantial sexual conduct, in light of the fact that the prosecutor relied on the same testimony to establish counts 19 through 22 and count 23, and the range of dates for the crimes was the same. The question is whether the commission of a lewd act necessary to convict in counts 19-22 was an ultimate fact for count 23. (See Yeager v. U.S. (2009) 129 S.Ct. 2360.) In this case, the answer is yes; the acquittal in count 23 means that the jury found petitioner did not commit a lewd act or substantial sexual conduct against the second victim during the applicable date range. So, double jeopardy precludes retrial of those offenses too.