Metropolitan News-Enterprise


Friday, July 24, 2009


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S.C.: Enhancement Allegation Retrial Not Double Jeopardy




Retrial of an enhancement allegation after a jury finds the defendant guilty but deadlocks on the enhancement, or after a new trial motion is granted only as to the enhancement, does not constitute double jeopardy, the state Supreme Court unanimously ruled yesterday.

The justices upheld a Sacramento man’s conviction and sentence of 36 years to life in state prison, including an enhancement under the “One-Strike Law,”  which mandates a sentence of 15 years to life or 25 years to life in prison for certain sex crimes.

The enhancement was imposed on Barry Lane Anderson after a second jury found that he had kidnapped his victim, an allegation on which the first jury deadlocked.

In a companion case, the high court reversed the Sixth District Court of Appeal and held that a man convicted of crimes resulting from an allegedly gang-related shooting may be retried on enhancement allegations, based on the trial judge’s grant of a motion for new trial, with no effect on his convictions for the underlying crimes.

In the One-Strike case, Anderson was convicted in Sacramento Superior Court of molesting a 5-year-old girl, and attempting to molest another, at a Sacramento apartment complex, and of a number of counts of possessing child pornography.

At his first trial, jurors found Anderson guilty of committing a lewd and lascivious act upon a minor but deadlocked on the special kidnapping allegation. At a second trial, the special allegation was found true, making the One-Strike Law applicable.

The Third District Court of Appeal upheld the conviction and sentence, and the high court yesterday affirmed, rejecting the contention that retrial of the kidnapping allegation constituted double jeopardy.

The justices also ruled that it was proper to retry Anderson on the special allegation alone and not on the underlying charge.

Justice Carol Corrigan, writing for the court, cited People v. Fields (1996) 13 Cal.4th 289, in which the court held that where a jury expressly deadlocks on the charged offense but finds the defendant guilty of a lesser offense, the conviction on the lesser offense is not an implied acquittal of the greater, under either the U.S. or the California Constitution.

“Thus, defendant’s conviction of the underlying lewd act offense cannot be construed as an implied acquittal of the One Strike allegation because the jury expressly declared it was unable to reach a verdict on the allegation,” she wrote.

The result is the same under California’s statutory version of the double jeopardy protection, Penal Code Sec. 1023, which codifies the “implied acquittal” rule in the absence of an express deadlock, Corrigan said.

Justice Carlos Moreno, while joining in Corrigan’s opinion for the unanimous court, wrote separately to express concern that telling a jury that a defendant has already been convicted of an underlying offense might prejudice his or her ability to defend against the enhancement allegation on retrial.

“Whether current standard jury instructions are adequate to safeguard the presumption of innocence in this situation, or a new instruction is needed, remains to be determined,” Moreno wrote.

In the companion case, the justices unanimously overturned a writ of mandate barring the retrial of Anthony Porter.

 A Monterey Superior Court jury found Porter guilty of two counts of attempted murder and made true findings as to special allegations that the crimes were premeditated and were committed for the benefit of a street gang.

The trial judge allowed the guilty verdicts to stand, but granted a new trial on the special allegations, finding them contrary to the evidence. That ruling was not tantamount to an acquittal for double jeopardy purposes, Corrigan wrote.

The cases are People v. Anderson, 09 S.O.S. 4481, and Porter v. Superior Court, 09 S.O.S. 4492.


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