When a trial court dismisses a case following a jury verdict based on its conclusion that the evidence was insufficient as a matter of law, double jeopardy bars retrial. A jury convicted Pedroza of murdering and conspiring to murder his fellow gang member, Schubert. During his trial, another gang member, Ahumada, testified that he helped Pedroza carry out a plan to murder Schubert. After the verdict, Pedroza moved for a new trial pursuant to Penal Code section 1181, subdivision (6). The trial court granted his motion after reasoning that there was insufficient evidence as a matter of law to corroborate Ahumada’s accomplice testimony as required by Penal Code section 1111. Pedroza then filed a motion to dismiss the case based on double jeopardy, which the trial court granted, citing Hudson v. Louisiana (1981) 450 U.S. 40. The People appealed. Held: Affirmed. A defendant’s motion for a new trial under section 1181, subdivision (6) essentially invites the court to reweigh the evidence as a 13th juror. If the trial court grants the motion it has the same effect as a mistrial caused by a hung jury and double jeopardy does not bar retrial. However, under Penal Code section 1385, the trial court can dismiss a case for insufficient evidence as a matter of law, which has the effect of an acquittal and precludes retrial. (Burks v. United States (1978) 437 U.S. 1, 18.) Here, although the court granted Pedroza’s new trial motion under section 1181, subdivision (6), it specifically stated that it was not reweighing the evidence as a 13th juror, but had found that there was insufficient evidence as a matter of law. The trial court does not need to use “magic words” to invoke its discretion under section 1385; stating that it had found insufficient evidence “as a matter of law” was sufficient. The trial court’s ruling constituted an acquittal and retrial was barred.
Post-verdict acquittals are subject to appellate review. Although double jeopardy bars appellate review of a mid-trial acquittal, “[i]f a court grants a motion to acquit after the jury has convicted, there is no double jeopardy barrier to an appeal by the government from the court’s acquittal, because reversal would result in reinstatement of the jury verdict of guilt, not a new trial.” (Evans v. Michigan (2013) 133 S.Ct. 1069.)
There was insufficient evidence to corroborate an accomplice’s testimony as required by Penal Code section 1111 where the non-accomplice evidence did not link the defendant to the commission of the crime. Penal Code section 1111 provides: “A conviction can not be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense . . . .” Here, other than Ahumada’s accomplice testimony, there was no other evidence that connected Pedroza to Schubert’s murder. There was non-accomplice evidence that Pedroza and Schubert were both in a gang where “unspecified members killed other members for unspecified reasons” and that Pedroza was seen with one admitted perpetrator of Schubert’s murder (i.e, Ahumada) three hours after Schubert was killed. However, this evidence did not “tend to connect” Pedroza with Schubert’s murder.