New trial motion was improperly granted where there was sufficient evidence for a jury to convict appellants of conspiracies. Appellants were the attorney (Stern) and doctor (Eroshevich) for Vicki Lynn Marshall (Anna Nicole Smith), who died with an above therapeutic level of a controlled substance in her blood. They were convicted by a jury of conspiracy to commit two crimes, obtaining controlled substances by fraud, and giving false names in prescriptions for controlled substances. Eroshevich was also convicted of two other Health and Safety Code violations. After the verdicts were returned, the trial court granted Stern’s new trial motion on the grounds that the evidence was insufficient as a matter of law, and dismissed the charges pursuant to section 1385. It also dismissed the charges against Eroshevich because she could not act alone as a member of a conspiracy. The prosecutor appealed. The appellate court held that the trial court incorrectly granted Stern’s new trial motion. There was sufficient evidence for a rational jury to convict Stern of the conspiracies. He was involved in the procuring and dispensing of medication to Ms. Marshall over an extended period of time. He was involved in an arrangement which allowed Eroshevich to provide Marshall with controlled substances in a quantity beyond that prescribed by her physicians. However, the former jeopardy effect of the erroneous order granting Stern’s new trial motion is the same as an acquittal. Therefore, the trial court could take up the remaining grounds specified in the new trial motion that it did not address, dismiss on other grounds pursuant to section 1385, or impose sentence. However, it may not order Stern retried. There are no double jeopardy grounds barring Eroshevich’s retrial.

[Editor’s note: In an opinion following rehearing, the court concluded that Evans v. Michigan (2013) 568 U.S. __, which addressed double jeopardy, did not warrant a change in the court’s previous analysis in this case.]