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Court of Appeal, Third District, California.

The PEOPLE, Plaintiff and Respondent, v. Christopher Michael BROWN, Defendant and Appellant.

No. C048147.

Decided: March 17, 2006

Robert Derham, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, Stan Cross and J. Robert Jibson, Deputy Attorneys General, for Plaintiff and Respondent.

An information alleged that defendant Christopher Brown committed battery with serious bodily injury, abuse of an elder, and assault by means of force likely to produce great bodily injury;  the latter count also alleged personal infliction of great bodily injury.  (Pen.Code, §§ 243, subd. (d), 368, subd. (b)(1), 245, subd. (a)(1), 12022.7, subd. (a).) 1  All charges stemmed from a fight with a 69-year-old victim.

In his first trial, the jury acquitted the defendant of the charged offense of elder abuse.   It also returned verdicts that purported to acquit him of lesser offenses to that count on which the court had instructed:  simple battery, simple assault, and misdemeanor elder abuse. (§§ 242, 240, 368, subd. (c).)  In returning these verdicts, the jury announced it was not able to reach a verdict on either of the remaining charged counts of aggravated battery and assault, and the trial court consequently declared a mistrial.

On retrial, a second jury found defendant guilty of both remaining counts as charged, and sustained the allegation of great bodily injury.   The trial court suspended imposition of sentence and placed the defendant on probation.

On appeal, the defendant contends that the verdicts of acquittal for elder abuse and the included offenses of battery and assault barred his retrial because the included offenses are elements of the remaining charges.   He concludes that we must reverse the convictions and order their dismissal.   The defendant also claims the trial court erred in ordering him to pay for his legal fees without complying with notice and hearing requirements.   The People concede that the defendant could not be retried, but urge us to remand the matter for a hearing on the defendant's payment of his legal fees.

We requested supplemental briefing on whether the crimes of assault and battery are necessarily included in the crime of elder abuse, and the effect on the retrial issue if they are not.   In their supplemental briefs, both parties acknowledge that neither assault nor battery are included within the crime of elder abuse.   Both parties agree that this circumstance has no effect on the retrial issue.

 We agree that neither battery nor assault are lesser offenses included in elder abuse, because (whether as a matter of statutory definition or the pleadings in the present case) elder abuse may be committed solely by inflicting mental suffering.   We disagree, however, that either constitutional or statutory protections against double jeopardy barred the retrial for assault and battery.   We also conclude that the acquittals do not have any preclusive effect on the issues on retrial.   As a result, we reject the People's concession and will affirm the judgment.   We will remand the matter for further proceedings on the issue of reimbursement for the defendant's legal fees.



 According to the parties, two principles barred the People from seeking to retry the defendant.   They first assert that the constitutional prohibition against double jeopardy (U.S. Const., 5th Amend.;  Cal. Const., art. I, § 15) 2 and its statutory equivalent (§ 1023) bar retrial because simple battery and assault are respectively elements of the charged offenses of battery with great bodily injury and assault by means of force likely to produce great bodily injury.3  Second, they claim section 654, subdivision (a) 4 bars retrial because the jury acquitted the defendant of elder abuse, and all three of the charges arose out of the same indivisible course of conduct, i.e., a fist fight.

 We conclude that neither the constitutional protection against double jeopardy nor the cited statutes support these arguments.   The parties miss a key point:  the constitutions and statutes apply only to successive prosecutions, and not (as here) a continued prosecution in a second trial after a jury is unable to reach a verdict on certain counts.   (Richardson v. United States (1984) 468 U.S. 317, 323, 104 S.Ct. 3081, 82 L.Ed.2d 242;  Stone v. Superior Court (1982) 31 Cal.3d 503, 516, 183 Cal.Rptr. 647, 646 P.2d 809.)   That a jury has returned a verdict of acquittal on one of several counts is immaterial.  “In a single criminal action (pleading any number of counts), no plea of guilty to, or order of dismissal or acquittal of, any separately pleaded offenses, included or otherwise, will bar the progress of that prosecution as to the other counts.   The prosecution on such other counts may continue until each, on its own merits, has been severally and finally disposed of by bringing the defendant to conviction and sentence or to acquittal.”  (People v. Tideman (1962) 57 Cal.2d 574, 583, 21 Cal.Rptr. 207, 370 P.2d 1007;  accord, §§ 954, 1160;  People v. Simmons (1978) 147 Cal.Rptr. 481, 82 Cal.App.3d Supp. 1 [acquittal of one count involving same course of conduct does not bar retrial under § 654 on second count].)   Since this case presents only a continuing prosecution and not successive prosecutions, neither constitutional nor statutory protections against double jeopardy prohibit retrial on the two counts.

As a result, we do not have any concern with the analysis of lesser included offenses.   This is a relevant concern only in the context of applying the rules of double jeopardy.  (People v. Bright (1996) 12 Cal.4th 652, 660-661, 49 Cal.Rptr.2d 732, 909 P.2d 1354.)   It does not play any part in applying principles of issue preclusion (United States v. Bailin (7th Cir.1992) 977 F.2d 270, 281 (Bailin )), which we next discuss.


 Although double jeopardy itself does not apply, we must consider the doctrine of issue preclusion (the modern term for collateral estoppel).   While “analytically distinct from double jeopardy,” issue preclusion is a “component” of it that bars the relitigation of previously adjudicated issues of fact (People v. Santamaria (1994) 8 Cal.4th 903, 912, 35 Cal.Rptr.2d 624, 884 P.2d 81, fn.   3 (Santamaria )) 5 where the same parties seek to retry an “issue of ultimate fact” that is identical to an issue actually and necessarily decided in a prior final adjudication on the merits (Ashe v. Swenson (1970) 397 U.S. 436, 443, 90 S.Ct. 1189, 25 L.Ed.2d 469 (Ashe );  Santamaria, supra, 8 Cal.4th at pp. 912, 916, 35 Cal.Rptr.2d 624, 884 P.2d 81).  “An ‘issue of ultimate fact’ is a fact that must be proven beyond a reasonable doubt at trial, including each of the essential elements of the charged offense.”  (In re Cruz (2003) 104 Cal.App.4th 1339, 1345, 129 Cal.Rptr.2d 31.)   Neither the federal nor state Supreme Court, nor any other California court has directly ruled whether issue preclusion applies in a retrial after a jury fails to reach a verdict.  (People v. Barragan (2004) 32 Cal.4th 236, 253-254, 9 Cal.Rptr.3d 76, 83 P.3d 480;  Santamaria, supra, 8 Cal.4th at p. 915, fn. 5, 35 Cal.Rptr.2d 624, 884 P.2d 81;  People v. Morales (2003) 112 Cal.App.4th 1176, 1187, 5 Cal.Rptr.3d 615 [declining to address squarely whether issue preclusion applied to retrial of issues from prior trial because necessary criterion of the doctrine was absent in any event];  People v. Mitchell (2000) 81 Cal.App.4th 132, 147-148, 96 Cal.Rptr.2d 401;  Bailin, supra, 977 F.2d at p. 272.)

 Bailin, agreeing with several other circuits, found it was appropriate to apply issue preclusion under that circumstance.  (977 F.2d at pp. 276-277 [using the term “direct estoppel” to distinguish it from issue preclusion in separate actions].)   In assessing the preclusive reach of a prior partial adjudication, a court must look to the entire record to determine whether it is possible that a rational jury could have grounded its verdict on an issue other than the one the criminal defendant seeks to foreclose.  (Id. at p. 280.)   Thus, it is the defendant's burden to establish that an acquittal necessarily foreclosed the issue on retrial.  (Id. at pp. 280-281;  cf.   Dowling v. United States (1990) 493 U.S. 342, 350, 110 S.Ct. 668, 107 L.Ed.2d 708 [issue preclusion in separate action].)

The defendant in the present case has provided only the clerk's transcript of the first trial.   This prevents us from fulfilling our obligation to examine the entire record for the possible factual basis of the general verdict of acquittal, an odious task under the best of circumstances.  (Bailin, supra, 977 F.2d at p. 282.)   For example, the only contested issue on the count of elder abuse may have been the defendant's knowledge that the victim was indeed an “elder” within the meaning of the statute;  if the assault and battery charges were uncontested, then the superfluous acquittals on the erroneously provided lesser included offenses could be explained as mere jury confusion over the proper manner of returning its verdict on elder abuse.   Thus, the defendant has not satisfied his burden of establishing that the acquittals necessarily resolved the ultimate issues in the present proceeding.  (Cf. Dowling, supra, 493 U.S. at p. 352, 110 S.Ct. 668 [“As the record stands, ․ nothing ․ persuasively indicates that the question of identity was at issue and was determined in Dowling's favor at the prior trial”;  indication in colloquy between prior trial court and counsel that in fact identity conceded on burglary charge but intent to commit felony disputed (id. at p. 351, 110 S.Ct. 668) ].)   The lack of the reporter's transcript also fails to satisfy his duty as an appellant to provide an adequate record to support his claim.  (Mountain Lion Coalition v. Fish & Game Com. (1989) 214 Cal.App.3d 1043, 1051, fn. 9, 263 Cal.Rptr. 104.)

 Furthermore, we should not apply issue preclusion as freely in the criminal context as in the civil context, in light of the restrictions on a prosecutor's ability to challenge the evidence through directed verdict or motions for a new trial or to appeal adverse rulings.   (See Santamaria, supra, 8 Cal.4th at p. 915, fn. 5, 35 Cal.Rptr.2d 624, 884 P.2d 81;  People v. Aguilera (1993) 82 N.Y.2d 23, 30, 603 N.Y.S.2d 392, 623 N.E.2d 519.)   A significant limitation on issue preclusion in at least the civil context is where the “issues are determined but the judgment is not dependent upon the determination,” in which case “relitigation of those issues in a subsequent action between the parties is not precluded” because the prior adjudications “have the characteristics of dicta, and may not ordinarily be the subject of an appeal by the party against whom they were made.   In these circumstances, the interest in providing an opportunity for a considered determination, which if adverse may be the subject of an appeal, outweighs the interest in avoiding the burden of relitigation.”  (Rest.2d Judgments, § 27, com. h, p. 258.)   In the present case, the prior jury's acquittals on the improperly provided lesser offenses were superfluous once it had returned its verdict on the greater offense.   Considering that the People had absolutely no mechanism by which to contest these derelict findings, there is even a stronger rationale for refusing to apply preclusive effect to such dicta in the context of a criminal action.

As a result, even if we were squarely to hold that issue preclusion of the “direct estoppel” species is available in a criminal action in California, the defendant cannot properly invoke it in the present case.   We thus reject his claim that he could not be retried, and the People's concession of it.


The defendant contends the trial court erred in imposing an obligation to reimburse $2,600 in legal fees pursuant to section 987.8 without holding a hearing on his ability to pay.   In pertinent part, the statute provides, “(b) In any case in which a defendant is provided legal assistance, either through the public defender or private counsel appointed by the court, upon conclusion of the criminal proceedings in the trial court, or upon the withdrawal of the public defender or appointed counsel, the court may, after notice and a hearing, make a determination of the present ability of the defendant to pay all or a portion of the cost thereof.”  (Italics added.)

 Absent such notice and hearing, an order to reimburse legal fees is invalid.  (People v. Flores (2003) 30 Cal.4th 1059, 1068, 135 Cal.Rptr.2d 63, 69 P.3d 979.)   Here, as the People concede, the court failed to comply with these requirements.   Therefore, we must remand for a proper determination.


The judgment is affirmed.   The matter is remanded to the trial court for a determination of legal fees in compliance with section 987.8.


1.   Further undesignated section references are to the Penal Code.

2.   In some circumstances, the state protections against double jeopardy have a broader reach than their federal counterpart.  (People v. Monge (1997) 16 Cal.4th 826, 844, 66 Cal.Rptr.2d 853, 941 P.2d 1121.)   Here, as we note below, they are in accord.

3.   Prior to his retrial, defendant failed to enter a plea of once in jeopardy.   This failure generally forfeits the issue for purposes of review on appeal.  (People v. Belcher (1974) 11 Cal.3d 91, 96, 113 Cal.Rptr. 1, 520 P.2d 385.) However, defendant also contends, in the alternative, that if this failure precludes review, then he received ineffective assistance of counsel.   Since we cannot conceive of any tactical reason for failing to enter a plea of once in jeopardy, we shall review this contention.

4.   In pertinent part, section 654, subdivision (a), provides, “An acquittal or conviction and sentence under any [provision of criminal law] bars a prosecution for the same act or omission under any other.”

5.   Bailin noted that it is unclear to what extent this is constitutional principle as opposed to a rule of federal common law.   (977 F.2d at p. 274, fn. 3.)

DAVIS, Acting P.J.

We concur:  NICHOLSON and ROBIE, JJ.