Appellant was estopped from alleging double jeopardy where partial acquittal was obtained by concealing the victim-witness. Appellant was convicted of corporal injury of a cohabitant and assault with a deadly weapon for an attack on his ex-girlfriend, Samuels. Two counts for stalking and making criminal threats were dismissed after the prosecution case pursuant to Penal Code section 1118.1 because Samuels could not be found and did not testify at the trial. After the two counts were dismissed, defense counsel stated that appellant had been in touch with Samuels, and that she wanted to testify as a witness for the defense. The prosecution moved to reinstate the dismissed counts, and the court granted the motion, granting the prosecution leave to reopen. Samuels then denied that she was assaulted, threatened, or stalked. A police officer rebutted her testimony. The jury convicted on the assault and corporal injury counts, and acquitted on the stalking and criminal threats charges. Appellant raised a double jeopardy argument on appeal. The appellate court did not reach the merits of the argument, but held instead that appellant was estopped from asserting error on appeal that was induced by his own conduct. A defendant cannot conceal the victim-witness from the prosecution on certain counts, obtain a partial acquittal, and then produce the witness to testify as a defense witness on the remaining counts while retaining the benefits of the partial acquittal.
The trial court did not err by denying appellant’s mistrial motion after the prosecutor questioned the victim-witness about appellant’s criminal record. Appellant’s defense was that Samuels was the aggressor, and that he acted in self-defense. Samuels was questioned by the prosecution concerning appellant’s criminal record, in order to establish that she feared for the safety of her children when she used the knife to repel appellant’s attack. The appellate court found no error because Samuels’s fear of appellant and knowledge of his prior record was relevant and admissible to determine her state of mind.