Monday, February 7, 2011
Increased Sentence After Retrial Not Double Jeopardy, Court of Appeal Rules
Different Rule Applies Where Defendant Convicted of Additional Offense, Panel Says
By KENNETH OFGANG, Staff Writer
A defendant was not deprived of due process, nor placed in double jeopardy, when his sentence was increased following a successful appeal, the Fourth District Court of Appeal ruled Friday.
Div. One said the state constitutional rule against increasing sentences when the accused wins a new trial does not apply where the defendant is convicted of an additional offense on which the first jury deadlocked.
Justice Cynthia Aaron’s Jan. 20 opinion was certified Friday for partial publication.
The ruling upholds Exodus Bolton’s convictions and nine year, eight month prison term on charges arising from two attacks on fellow trolley passengers in San Diego in October 2006.
In the first incident, a passenger, Christian Munoz, testified that Bolton approached him, without provocation. He was carrying a knife and suggested her was a gang member who “takes lives and souls,” the witness, who said he feared for his life, testified.
Bolton then slapped the man in the face three times. Munoz and his friend got off the trolley at the next stop and called police.
In the second incident, which occurred a few days later, passenger Reyedward Harris said that Bolton was harassing another passenger, using anti-gay slurs. After that passenger got off, the witness said, he told Bolton he was offended, and Bolton responded by spitting on him and hitting him repeatedly.
When another man, Victor Mendoza, came to the passenger’s aid, Bolton pulled out a knife and stabbed him in the chest, causing him to bleed profusely. Bolton and a companion ran from the train at the next stop, but were detained a few blocks away.
Police obtained identifications from the victims and other witnesses, and found a knife in Bolton’s pocket. Bolton struggled with the officers, according to their testimony, and one officer’s finger was cut.
The victim of the first attack, Munoz, later identified Bolton from a photographic array.
Bolton testified on his own behalf. He claimed that in the first incident, Munoz took his seat after Bolton got up to say hello to a friend, and that when he asked for his seat back, Munoz replied that he was a “black belt.”
Bolton denied threatening him.
In the second incident, Bolton claimed he was upset because someone had brushed against his girlfriend and not apologized, and the two got into an incident. Harris, the defendant testified, then came up and started calling him names, and then pushed him, which led Bolton to “pop [Harris] on his head.”
Mendoza, Bolton said, then attacked him with a knife. Bolton said he then took out his own knife, which he carried because he was a construction worker, and used it to try to get Mendoza to leave him alone.
Jurors found Bolton guilty of assault with a deadly weapon with enhancements of personally using a deadly weapon and inflicting great bodily injury; mayhem, with a deadly weapon enhancement; two counts of battery, and resisting an officer. They deadlocked on a charge of making a criminal threat.
The judge found that Bolton, who represented himself at trial, was subject to three prior-prison-term enhancements, and sentenced him to nine years in prison. Bolton appealed, and the Court of Appeal reversed in People v. Bolton (2008) 166 Cal.App.4th 343.
The panel ruled that the trial judge erroneously forced the defendant to choose between his right to counsel and right to speedy trial, when the judge erroneously allowed Bolton’s court-appointed private lawyer to withdraw based on a claimed conflict, even though the defendant objected to a delay of the trial and the judge’s questioning of the lawyer did not establish that his withdrawal was necessary.
The case was retried before a different jurist, San Diego Superior Court Judge John M. Thompson. Jurors this time found Bolton guilty on all counts, and all enhancements were found true.
Thompson sentenced Bolton to nine years on the five counts of which he was previously convicted, plus eight months on the criminal threats charge.
On the second appeal, the defense argued that the additional eight-month term violated California Supreme Court rulings that hold—contrary to the federal rule—that a sentence may not be increased when the defendant is convicted on retrial after winning an appeal.
The argument is without merit, Aaron explained, because the prosecution could have retried Bolton independent of his appeal, and any sentence he received could have been made to run consecutive to the nine-year term imposed on the other counts after both trials.
There is no reason to use a different rule when all of the charges are retried at the same time, the justice said.
“The trial court was prohibited by principles of double jeopardy from imposing a greater sentence with respect to the charges of which Bolton was first convicted and from which he successfully appealed,” she explained, but not from imposing an additional sentence on the additional count.
To rule otherwise, she said, would either result in unnecessary multiple retrials or give defendants who win on appeal a “windfall” in the event prosecutors chose not to retry them on deadlocked counts in the event they were convicted on other charges.
In an unpublished opinion, the justice said it was not an abuse of discretion to deny the defense motion to sever the charges growing out of the two incidents. They were the same type of crime, the evidence of each would have been admissible at the trial of the other to prove intent, and this was not an instance of prosecutors bolstering their chances of conviction by joining a strong case with a weak one, Aaron explained.
The case is People v. Bolton, D055655.
Copyright 2011, Metropolitan News Company