Skip to content
Name: People v. Lopez
Case #: B241532
Court: CA Court of Appeal
District 2 DCA
Division: 6
Opinion Date: 05/16/2013

An order granting a new trial pursuant to Penal Code section 1181 (6) is the equivalent of a mistrial caused by a hung jury and does not implicate double jeopardy for the purpose of retrial. Following a guilty verdict by the jury of Penal Code section 136.1 (attempting to dissuade a witness), the court granted appellant’s motion for new trial on the grounds that the verdict was contrary to the evidence (Pen. Code, sec. 1181(6)). In granting the motion, the court stated that it found “insufficient evidence to support the verdict.” The court then granted appellant’s request to dismiss the count on the grounds that he “has been in jeopardy on this.” Reversed. In ruling on an 1118(6) motion for new trial, the judge must be satisfied that the evidence as a whole is sufficient to sustain the verdict. A trial court’s ruling on the motion is within its complete discretion and will be upheld absent a clear abuse of discretion. Here, the appellate court rejected the People’s contention that the court used the wrong standard in ruling on the motion for new trial (i.e., whether the evidence was legally sufficient to support a conviction). Despite the trial court’s reference to insufficient evidence, it is presumed that it applied the correct standard in granting the motion. However, the court did err when it then dismissed the charge because the grant of a section 1181(6) motion is the equivalent of a mistrial caused by a hung jury, with the judge acting as a 13th juror who is a “holdout” for acquittal. This rule permits trial court oversight of the verdict but ensures that the People have a right to have the charges resolved by a jury. In this case, the error in dismissing the charge was not harmless. Evidence was presented that appellant’s employee told the victim not to leave her house. It was reasonable to find that he did so at appellant’s instruction so that the victim would avoid service of a subpoena. “Advising a witness to conceal himself for the purpose of avoiding service of a subpoena is in violation of section 136.1.” (In re Holmes (1983) 145 Cal.App.3d 934, 942.)