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Name: People v. Bell
Case #: F064909
Court: CA Court of Appeal
District 5 DCA
Opinion Date: 10/15/2015

Plea of former jeopardy based on prosecutorial goading must be tried to a jury unless the facts are uncontested and there is only one reasonable inference to draw from them. A group of gang members robbed a casino using assault weapons. One of their girlfriends informed the police, who began monitoring the gang and discovered that they were planning to rob the casino again. A SWAT team intercepted the gang en route. At their trial for various offenses, a prosecution witness violated an in limine ruling and the trial court granted a defense motion for a mistrial. After the mistrial, the defendants entered additional pleas of once in jeopardy, arguing that the prosecutor goaded them into requesting a mistrial because he had been unable to secure the attendance of a key witness—the girlfriend who became an informant. The defendants requested that the issue be resolved by way of a jury trial. The trial court refused to provide a jury trial, reasoning that double jeopardy issues were questions of law for the court to decide, and concluded that the prosecutor did not goad the defense into requesting a mistrial. At the retrial, the jury convicted the defendants and they appealed. Held: Conditionally reversed and remanded. When the prosecution goads a defendant into requesting a mistrial, the double jeopardy clause bars retrial. (Oregon v. Kennedy (1982) 456 U.S. 667.) Applying rules of statutory construction, the Court of Appeal concluded that Penal Code sections 1041 and 1042 apply to pleas of once in jeopardy that assert Kennedy-type claims and that the plain language of the statues require the determination of the issue to be made by a jury unless a jury is waived, or the facts are uncontested and there is only one reasonable inference to be drawn from them. On motion by the prosecution, a trial court may also strike a jeopardy plea that is not supported by proof.