The PEOPLE, Plaintiff and Appellant, v. Daniel William HATCH, Defendant and Respondent.
These consolidated appeals by the People arise out of their prosecution of defendant Daniel William Hatch for committing various sexual offenses on Doratee L. The first trial resulted in a deadlocked jury. The trial court declared a mistrial. After the prosecutor essentially stated she had no new significant evidence to introduce at a second trial, the court, pursuant to Penal Code section 1385,1 dismissed the case, finding “no reasonable jury would convict the defendant of the charges alleged in the information based on the evidence presented in court.” The People, pursuant to section 1387, refiled the charges against defendant. Defendant filed a habeas corpus petition, contending that double jeopardy barred any further prosecution. The trial court granted the petition. The trial court was correct. The prior section 1385 dismissal was based upon a finding that, as a matter of law, the People had produced insufficient evidence of guilt at the first trial. This finding constituted an implied acquittal of defendant. Jeopardy attached, thereby barring any new filing against defendant (Hudson v. Louisiana (1980) 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30; Mannes v. Gillespie (9th Cir.1992) 967 F.2d 1310 [cert. den. 506 U.S. 1048, 113 S.Ct. 964, 122 L.Ed.2d 121] ) as well as any appellate review of the trial court's section 1385 dismissal (People v. Smith (1983) 33 Cal.3d 596, 601, fn. 3, 189 Cal.Rptr. 862, 659 P.2d 1152). Accordingly, we affirm the trial court's grant of the habeas corpus petition and dismiss the appeal of the section 1385 dismissal order.
FACTUAL AND PROCEDURAL BACKGROUND
1. The First ProsecutionThe Evidence
By information in Case NA029743, the People charged defendant with having committed seven sex offenses on Doratee L. All of the charges arise out of an incident occurring on September 3, 1996.
The matter was tried to a jury in February 1997 before Judge Sheldon. To put the court's subsequent dismissal order into context, we recite the evidence presented at trial.
At the time of the events, Doratee L. was almost 16 years old, weighed 159 pounds and was five feet, three inches tall. Defendant was almost 21 years old, weighed 160 pounds and was five feet, nine inches tall.
Doratee L. testified she first met defendant in August 1996 at a mall. She telephoned him several times. She saw him again on September 1. During that encounter, she engaged in some sexual foreplay with him, told him she was a virgin, and successfully rebuffed his sexual advances, stating she did not wish to engage in anything more than kissing.
On September 3, Doratee L. invited defendant to come to her house at approximately midnight. Although her family was home, she did not tell them defendant was coming over. She met defendant outside of the house. Doratee L. testified that over the next 45 minutes, defendant, against her wishes, twice orally copulated her, twice placed his finger(s) in her vagina, and three times had intercourse with her. These actions occurred in the carport area. Doratee L. testified that during this period, she often told defendant to stop. Sometimes he did but more often than not he proceeded against her wishes. Toward the end of the 45-minute period, they each smoked a cigarette before defendant again forced himself upon Doratee L. Doratee L. testified that at various points during the 45-minute period she unsuccessfully struggled against defendant but was afraid to scream for help to her family who was awake in the adjacent house. In particular, she was fearful defendant would come after her and harm her or her family although she conceded he never threatened her or her family, never struck her, and never displayed a weapon. These events came to an end when Doratee L.'s father came outside and called her name. Defendant let go of her. She put on her shorts and ran inside of the house. She did not say anything to her father about what had happened.
Doratee L. entered a bathroom in the house and cried. Her sister came to speak to her. Although Doratee L. did not immediately tell her sister what had happened because she was afraid and embarrassed, she eventually recounted the facts of the assault. The police were notified and Doratee L. was taken to the hospital where she was examined.
Jeanie Zandstra, a forensic nurse and sexual assault examiner, examined Doratee L. The victim told Zandstra and Detective Katherine Watson about the sexual assault. In Zandstra's opinion, the victim's injuries, including blood loss, were consistent with a forced sexual assault. (The victim's clothes had blood on them.)
Detective Watson testified that she interviewed defendant and he claimed the encounter was entirely consensual. He said Doratee L. had told him that she was a virgin and that she wanted him to come over that night to have sexual intercourse. He claimed that during their encounter he repeatedly told her he would stop if she so desired but that she never asked him to stop. Later in the interview, defendant conceded that if Doratee L. told him to stop, he did not hear her and if that was so, he wished she would have screamed louder. When confronted with the fact that Doratee L. had bled, defendant claimed this was because she was a virgin and because his teeth cut her when he orally copulated her.
Officer John Lembi interviewed defendant after Detective Watson. His testimony about defendant's statements essentially paralleled Detective Watson's testimony.
Defendant did not testify but presented several character witnesses, including a former girlfriend who testified that when she turned down his request for sexual intercourse, he complied with her wishes. Defendant also presented an expert witness, Deborah Kilgore, a registered nurse and qualified expert on sexual assault. In her opinion, Doratee L.'s injuries were not serious and were consistent with a first time consensual sexual encounter involving fear of being caught by others. (The defense theory, as set forth in a closing argument which attacked the victim's credibility in several ways, was that Doratee L. had consented.)
In rebuttal, the People called another expert witness, Dr. Deborah Stewart, who testified Doratee L.'s injuries were not consistent with consensual sex but instead indicated a sexual assault.
After deliberating over a period of several days, the jury informed the court it was deadlocked on all counts. On some counts, a majority vote was in favor of not guilty. On other counts, seven or eight jurors voted in favor of guilty. With the consent of the prosecutor and defense counsel, the court declared a mistrial.
The Section 1385 Dismissal 2
Later in the day after declaring the mistrial, the court resumed proceedings. The prosecutor indicated she had spoken with some of the jurors and that those who had voted not guilty were concerned because the victim never screamed or tried to run away. Defense counsel stated none of the jurors he spoke with believed the victim's “behavior was consistent with someone who was being pressured and forced into doing something against their will.”
The prosecutor asked that all counts be set for retrial. The court inquired as to what additional evidence she would offer at a second trial. Essentially, she offered nothing of significance. She merely stated she would introduce evidence that the victim and the victim's father each suffered a heart attack, allegedly as a result of defendant's actions; that in lieu of having Detective Watson testify, she would introduce a tape recording of her interview with defendant to demonstrate that “his attitude on the tape shows a disregard for what has been done”; and that she would call Dr. Stewart in the case-in-chief instead of the rebuttal phase.
The court responded:
“Let me say first I have done a lot of thinking about this case. I tried rape cases for twenty-three years on and off as I-I shouldn't say twenty-three years, I was a supervisor a lot of those years, but for many years as a deputy district attorney. I interviewed hundreds of people, child molesting, rape cases, I have some experience. I don't claim to have any better knowledge than anyone else, but I have some experience. First, let me say this was a particularly well tried case, tried a lot better than I tried a lot of my cases as a district attorney; tried well by the defense as well․ My impression though was smart jury, intelligent jury, jury that really put everything into it to try and decide this case properly the best they could. You happened to have a deputy-an ex-deputy city attorney on the case who ended up being foreman. That sometimes happens when somebody's a lawyer. But, usually that accrues more to the benefit of the prosecution than the defense, unless it's a case where that person has the knowledge to know there is a difference between a good rape and a bad rape case and a case that should or shouldn't be in the system. It was a very well tried case and, in my opinion, before some good jurors. They couldn't agree. I have no reason to believe that another jury would agree in this case and in justice, I have determined, after hearing everything, although I will tell you in fairness I had an idea before I came out here, but I had not made my final decision what I should do, I am not going to order a retrial because I feel there is no reason to believe another jury would reach a verdict in this case one way or the other. I'm going to order the prosecution at an end and the defendant, unless he has any other holds is going to be released․ Additionally, while if the defendant were convicted of some of these greater charges, those last four counts where the jury was hung seven to five in the last three counts, eight to four in favor of conviction more than acquittal or not guilty, this is not the reason why I'm doing it, but the truth is he has served a lot of time waiting this trial. I guess back since September until today with credits he would have served a lot of time. I understand, on the other hand, though, had he been convicted, it would have been a case where the district attorney would be and properly so arguing for substantial time in the Department of Corrections. Case is dismissed in the interest of justice as I see it․ [¶] I want[ ] to make the recording of my order [in] what I think is the most appropriate wording in that I think this is something I have done once before in my fifteen years. I want to make the finding that will go into the minute order to be part of this record, that the court feels that no reasonable jury would convict this defendant; that means twelve votes for guilty on any of the counts that were alleged against him in the information, the various charges in this case. That's all I wanted to add. I didn't say that quite the same way as I just said it before.” (Emphasis added.)
The court's minute order recites: “The court finds that no reasonable jury would convict the defendant of the charges alleged in the information based on the evidence presented in court.” The court ordered defendant released.
2. The Second Prosecution
The next day, the prosecution, pursuant to section 1387,3 refiled the charges against defendant as Case No. NA31502. The second case added nine new counts arising out of the events of September 3, 1996. Defendant was taken into custody but thereafter was released on bail.
After entering a plea of “once in jeopardy,” defendant filed a habeas corpus petition in the superior court alleging that the second prosecution was barred by double jeopardy. The petition was assigned to Judge Comparet-Cassani who issued an order to show cause. (The record does not explain why the matter was not heard by Judge Sheldon.)
After reviewing the parties' pleadings and the reporter's transcript of the hearing in which Judge Sheldon had dismissed the first case, Judge Comparet-Cassani ruled:
“I know the People's position with respect to what they claimed was the court's order and that it was insufficient and did not state the reasons for the order. In my opinion I think that you have to look at the transcript as a whole with respect to this proceeding. At the very beginning Judge Sheldon asked the People if there was any more evidence-let me get the exact language that Judge Sheldon used. Significant, and I think that's an important word. That's on page four. He asked Miss Lawrence [the prosecutor] whether or not if there was another trial would there be in any way a significant item of evidence, and then Miss Lawrence presented how she would present the case differently and what other evidence she would present. Then the court stated ․ that it was a very well tried case by both sides; number two, that it was a very smart jury; number three, that the defense also did an excellent job; and number five-or four, rather, that jurors as well when they responded to questions that were asked made very good statements as to their reasons for the way they felt the way they did. And additionally, the next reason the court stated was that the People had a bonus in that the foreman was a former-or was a city prosecutor. Then the court concluded-and I'm going to again read from the transcript on page seven-I'm going to order the prosecution at an end. Well, what does that mean? And then he continues. And the defendant, unless he has any other holds, is going to be released. And I don't want to hear any emotion from the courtroom. Well, it sure sounds to me like in the court's opinion, a, the People in their argument did not show the court that there was any substantial new evidence that would render a different result. Number two, when the court then went on later and said, I want to make the reporting of my order more specific and make the language exact, he then added as well that the court feels that no reasonable jury would convict this defendant. Again, that reminds me of the language in People v. Johnson [ (1980) 26 Cal.3d 557, 162 Cal.Rptr. 431, 606 P.2d 738] that in his opinion there was not sufficient evidence to convict the defendant. And in this court's opinion, [Judge] Sheldon's statement was a dismissal, and therefore double jeopardy attached. I can't come to any other conclusion. And I'm going to grant the petitioner's motion with regard to the retrial issue.”
3. The Appeals
The People have filed two appeals. The first is from Judge Sheldon's order, made pursuant to section 1385, dismissing the case after he declared a mistrial and found no reasonable jury would convict defendant. The second is from Judge Comparet-Cassani's order granting defendant's habeas corpus petition.
The Fifth Amendment to the federal Constitution guarantees that no person shall “be subject for the same offense to be twice put in jeopardy of life or limb.” This constitutional protection, of course, applies to the states. (Benton v. Maryland (1969) 395 U.S. 784, 794, 89 S.Ct. 2056, 23 L.Ed.2d 707.) The California Constitution contains a similar provision. Article I, section 15 provides: “Persons may not twice be put in jeopardy for the same offense.”
Both clauses primarily serve to restrain the courts and the prosecutors. “The underlying idea ․ is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.” (Green v. United States (1957) 355 U.S. 184, 187-188, 78 S.Ct. 221, 2 L.Ed.2d 199.) Consequently, the People have no right to appeal an acquittal rendered either by a jury or by the court no matter how egregiously erroneous the decision was. (United States v. Martin Linen Supply Co. (1977) 430 U.S. 564, 97 S.Ct. 1349, 51 L.Ed.2d 642 and cases cited therein; People v. Gottman (1976) 64 Cal.App.3d 775, 780, 134 Cal.Rptr. 834; see also Pen.Code, § 1118.2 [“A judgment of acquittal entered pursuant to the provisions of Section 1118 or 1118.1 shall not be appealable and is a bar to any other prosecution for the same offense”].)
On the other hand, if a jury deadlocks and the trial court determines that further deliberations are not reasonably likely to result in a verdict, a mistrial may be declared, the jury discharged, and the matter reset for trial. In that circumstance, called manifest necessity in the federal courts and legal necessity in California, the double jeopardy clauses of the state and federal Constitutions do not bar a retrial. (People v. Fields (1996) 13 Cal.4th 289, 299-300, 52 Cal.Rptr.2d 282, 914 P.2d 832.) This means that had Judge Sheldon merely declared a mistrial and reset the case for trial, double jeopardy would not have barred a second trial. That, however, is not what happened, because Judge Sheldon subsequently dismissed the case after finding that “no reasonable jury would convict the defendant ․ based on the evidence presented in court.” Consequently, the People err in relying upon cases which merely hold that double jeopardy does not bar a retrial after legal necessity results in declaration of a mistrial. The legal significance of Judge Sheldon's finding about the evidence on the People's right to refile is best understood by examining federal precedent.
Hudson v. Louisiana, supra, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30
Hudson was convicted by jury of first degree murder. He moved for a new trial on the basis of insufficient evidence. The trial court granted the motion, stating: “I heard the same evidence the jury did; I'm convinced that there was no evidence, certainly not evidence beyond a reasonable doubt, to sustain the verdict․” (Id. at p. 41, 101 S.Ct. 970.) In the second trial, the prosecutor presented an eyewitness who had not testified at the first trial. The jury convicted Hudson.
Hudson sought habeas corpus relief on the basis that double jeopardy barred the second trial. Hudson relied on the United States Supreme Court's then recent holding in Burks v. United States (1978) 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 that if an appellate court reverses a conviction based upon the conclusion that there is legally insufficient evidence to sustain the conviction, double jeopardy bars a retrial. The Burks court had reasoned that the prosecution “has been given one fair opportunity to offer whatever proof it could assemble. [S]uch an appellate reversal means that the government's case was so lacking that it should not have been submitted to the jury. Since we necessarily afford absolute finality to a jury's verdict of acquittal-no matter how erroneous its decision-it is difficult to conceive how society has any greater interest in retrying a defendant when, on review, it is decided as a matter of law that the jury could not properly have returned a verdict of guilty.” (Id. at p. 16, 98 S.Ct. 2141; italics in original, fn. omitted.) Essentially, Hudson argued that it did not matter that in his case the trial court, instead of an appellate court, found the evidence to be insufficient as a matter of law when it granted his new trial motion.
A unanimous United States Supreme Court found merit to Hudson's double jeopardy claim. It wrote: “Our decision in Burks controls this case, for it is clear that [Hudson] moved for a new trial on the ground that the evidence was legally insufficient to support the verdict and that the trial judge granted [his] motion on that ground. In the hearing on the motion, [Hudson's] counsel argued to the trial judge that ‘the verdict of the jury is contrary to the law and the evidence.’ After reviewing the evidence put to the jurors, the trial judge agreed with [Hudson] ‘that there was no evidence, certainly not evidence beyond a reasonable doubt, to sustain the verdict․” (Hudson v. Louisiana, supra, 450 U.S. at pp. 43-44, 101 S.Ct. 970.) The court rejected the state's argument that the trial judge granted the motion as a “13th juror” because he had personal doubts about the verdict. Reviewing the record, the court concluded: “The trial judge granted the new trial because the State had failed to prove its case as a matter of law, not merely because he, as a '13th’ juror, would have decided it differently from the other 12 jurors. Accordingly, there are no significant facts which distinguish this case from Burks, and the Double Jeopardy Clause barred the State from prosecuting [Hudson] a second time.” (Id. at pp. 44-45, 101 S.Ct. 970, fns. omitted.)
Mannes v. Gillespie, supra, 967 F.2d 1310
In Mannes v. Gillespie, supra, 967 F.2d 1310, the federal Court of Appeals applied the analysis of Hudson v. Louisiana, supra, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30, to a procedural fact pattern identical to this case.
Mannes was charged in California state court with three counts of murder arising out of driving while intoxicated. The jury was unable to reach a verdict on the charges. The trial court declared a mistrial and discharged the jury. Two weeks later, the trial court dismissed the murder charges pursuant to section 1385. The court's minute order dismissing the charges stated there was insufficient evidence Mannes acted with implied malice; insufficient evidence Mannes was aware her act carried a high probability of death; insufficient evidence Mannes was aware of the risk but consciously decided to do the act; and no likelihood a retrial would result in a unanimous verdict. (Id. at p. 1314.)
The People did not appeal the dismissal order but instead refiled the murder charges pursuant to section 1387. Mannes objected, arguing that retrial would violate double jeopardy. After Mannes exhausted her state remedies, she sought a writ from the federal district court enjoining the prosecution. The court granted her relief. The People appealed. The Court of Appeals affirmed the granting of the writ prohibiting any further prosecutions.
The nub of Mannes' double jeopardy claim was that the section 1385 dismissal was equivalent to an acquittal, thereby preventing any retrial. In order to resolve that contention, the appellate court stated the dispositive point was the reason for the dismissal. Relying upon Hudson v. Louisiana, supra, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30, the Mannes court found that if the dismissal was based upon a finding that the evidence was legally insufficient to support verdicts of guilty, then retrial was barred. That is, if the trial court had determined the People had failed as a matter of law to prove its case, double jeopardy principles barred any more attempts to convict. The Mannes court analogized, as had the Hudson court, to the situation in which double jeopardy bars a retrial after an appellate court reverses a conviction based upon the conclusion that there is insufficient evidence to sustain the finding of guilt. (Mannes v. Gillespie, supra, 967 F.2d at p. 1314.) The Mannes court juxtaposed the matter before it to a case in which the trial court sets aside a jury's verdict based upon its finding that it is not supported by the weight of the evidence, noting that a “[r]eversal of a conviction [based upon] the weight, rather than the sufficiency, of the evidence does not prevent retrial [citations]․” (Mannes v. Gillespie, supra, 967 F.2d at p. 1315; accord: People v. Veitch (1982) 128 Cal.App.3d 460, 466-468, 180 Cal.Rptr. 412 [if the trial court grants a motion for a new trial on the basis “the verdict ․ is contrary to ․ evidence” (§ 1181, subd. (6)), that decision is not an acquittal and is not a bar to a retrial because the judge is independently weighing the evidence rather than determining the legal sufficiency of the evidence].) 4
The Mannes court noted that the dismissal order under review “does not say the trial judge resolved any questions of credibility, a feature common to decisions based on weight rather than sufficiency․ Nor does the order support the state's suggestion the trial judge was acting as a '13th juror'-the order does not refer to the opinion of the judge as to guilt․” (Id. at p. 1315.) Instead, the trial court found there was insufficient evidence of implied malice-a required element of a guilty verdict-and no likelihood a retrial would result in a unanimous verdict of guilt.
The federal appellate court concluded: “In this context, the phrase ‘insufficient evidence’ is a term of art. In the absence of a clear indication to the contrary, we must assume the trial judge intended the phrase to carry its accepted meaning that the evidence presented at the trial was not legally sufficient to support a conviction for the crime charged, rather than that the judge ‘entertained personal doubts about the verdict.’ [Citations.] (‘ “Insufficient” evidence is a legal term of art, indicating that there was no evidence which would enable a reasonable jury to find the defendant guilty.’) ․ [¶] The trial judge's ruling that the evidence presented at trial was insufficient to convict [Mannes] of murder was an acquittal for the purposes of the Double Jeopardy Clause․ A judgment of acquittal entered after a deadlocked jury is dismissed terminates jeopardy and prevents retrial.” (Id. at pp. 1315-1316.)
Given the holdings in Hudson v. Louisiana, supra, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30, and Mannes v. Gillespie, supra, 967 F.2d 1310, the dispositive issue in this matter is whether Judge Sheldon's section 1385 dismissal constitutes an implied acquittal, thereby barring any further attempt to prosecute defendant. We conclude that it does.
The minute order implementing the section 1385 dismissal recites: “The court finds that no reasonable jury would convict the defendant of the charges alleged in the information based on the evidence presented in court.” 5 This language essentially tracks the language used by appellate courts in evaluating whether substantial evidence sustains a conviction. For instance, in People v. Reilly (1970) 3 Cal.3d 421, 425, 90 Cal.Rptr. 417, 475 P.2d 649, the California Supreme Court explained that an “appellate court must determine whether a reasonable trier of fact could have found the prosecution sustained its burden of proving the defendant guilty beyond a reasonable doubt.” (Emphasis added.) In People v. Johnson (1980) 26 Cal.3d 557, 578, 162 Cal.Rptr. 431, 606 P.2d 738, decided after the United States Supreme Court clarified the constitutional requirements for reviewing a sufficiency of the evidence claim in Jackson v. Virginia (1979) 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560, the court wrote that a reviewing court must determine if the record “discloses substantial evidence ․ such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (Emphasis added.) If the record does not contain substantial evidence to permit a reasonable jury to find the defendant guilty, the conviction is reversed for insufficient evidence and double jeopardy bars a retrial. (Burks v. United States, supra, 437 U.S. 1, 15-18, 98 S.Ct. 2141, 57 L.Ed.2d 1.)
Furthermore, the language in Judge Sheldon's minute order closely resembles the language used by the trial judge in Hudson v. Louisiana, supra, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30, language which the United States Supreme Court unanimously found was the functional equivalent of a finding that the prosecutor's evidence was legally insufficient to support the verdict. The Hudson judge stated: “I heard the same evidence the jury did; I'm convinced there was no evidence, certainly not evidence beyond a reasonable doubt, to sustain the verdict․” (Id. at p. 41, 101 S.Ct. 970.) At bench, Judge Sheldon found: “[N]o reasonable jury would convict the defendant of the charges alleged in the information based on the evidence presented in court.”
In view of these authorities, we construe the trial court's section 1385 finding that “no reasonable jury would convict the defendant ․ based on the evidence presented in court” to be a finding that as a matter of law the People produced insufficient evidence of guilt. Judge Sheldon's careful use of this language belies the People's cursory argument that he “was acting as a 13th juror and ․ dismissed this case ․ based on the ‘weight’ rather than on the ‘sufficiency’ of the evidence.” Furthermore, the concept of weighing the evidence cannot apply in this fact pattern because no verdict was reached. “A reversal based on the weight of the evidence ․ can occur only after the State both has presented sufficient evidence to support conviction and has persuaded the jury to convict.” (Tibbs v. Florida, supra, 457 U.S. 31, 42-43, 102 S.Ct. 2211, 72 L.Ed.2d 652.) Here, the trial court rendered its decision after the jury deadlocked. It is therefore apparent that Judge Sheldon determined as a matter of law that the prosecution failed to prove its case because no reasonable jury could find defendant guilty based upon the evidence presented in court. Judge Sheldon's ruling brings the case squarely within the principles enunciated in Mannes v. Gillespie, supra, 967 F.2d 1310: an implied acquittal barring any further retrial.
The People's brief pays scant attention to the holding of Mannes v. Gillespie and none at all to Hudson v. Louisiana. The People attempt to distinguish Mannes v. Gillespie from the present matter with the following argument. “In the present case, there are no specific statements by the trial court, in either the minute order or during the hearing, on the sufficiency of the evidence as to any count or any element of the crimes alleged. There is only a statement which represents the trial court's belief or opinion that ‘no reasonable jury would convict this defendant.’ [Citation.] Only specific findings by the trial court that the evidence was insufficient as a matter of law can render a dismissal equivalent to an acquittal [citing Mannes v. Gillespie, supra ]. It is not possible, based on the record in this case, to reach a conclusion that the evidence was insufficient as a matter of law or that an acquittal occurred.”
This argument is not persuasive because it takes far too crabbed of a view of the holding of Mannes v. Gillespie. While it is true that in Mannes v. Gillespie, the trial court made express findings, nothing in the appellate court's opinion suggests that such findings are a condition precedent to finding an implied acquittal. As the United States Supreme Court has explained: “[W]e have emphasized that what constitutes an ‘acquittal’ is not to be controlled by the form of the judge's action. [Citations.] Rather, we must determine whether the ruling of the judge, whatever its label, actually represents a resolution, correct or not, of some or all of the factual elements of the offense charged.” (United States v. Martin Linen Supply Co., supra, 430 U.S. 564, 571, 97 S.Ct. 1349, 51 L.Ed.2d 642; italics added.) That, in fact, was the approach the United States Supreme Court took in Hudson v. Louisiana, supra, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30, when it concluded that a grant of a new trial was the functional equivalent of a finding that the prosecutor had failed to prove its case as a matter of law. And as the Mannes court noted several times in its opinion, “what matters is the reason for the decision.” (Mannes v. Gillespie, supra, 967 F.2d at p. 1314.) If the dismissal is based upon insufficient evidence presented at trial, then the dismissal is deemed an implied acquittal barring any retrial. (Id. at p. 1316.) To determine the basis of a section 1385 dismissal, an appellate court examines the reasons for the dismissal set forth in the minute order. (Id. at p. 1315.) In Mannes v. Gillespie, the trial court's minute order stated there was insufficient evidence of three elements of the offense and no likelihood a retrial would result in a guilty verdict. The appellate court interpreted those findings to equate with a finding that “the evidence presented at the trial was not legally sufficient to support a conviction for the crime charged․” (Ibid.) Hence, it is clear that the focus of any appellate analysis must be an interpretation of the trial court's reasons as set forth in the minute order. In this case, the minute order states: “The court finds that no reasonable jury would convict the defendant ․ based on the evidence presented in court.” Because this finding utilizes the language traditionally used by an appellate court to conclude the evidence produced at trial is insufficient to sustain the verdict-no reasonable trier of fact could find defendant guilty-this is the functional equivalent of a finding that the evidence is insufficient as a matter of law. We therefore reject the People's argument “that the Mannes holding is restricted to a narrow factual situation where the trial court makes express findings under section 1385 that the evidence presented at trial was insufficient as a matter of law” and instead conclude that Judge Sheldon's dismissal order constitutes an implied acquittal.
The People's reliance upon People v. James (1980) 102 Cal.App.3d 108, 214 Cal.Rptr. 1 6 to support a contrary conclusion is misplaced. There, a jury was unable to reach a verdict on a murder charge. The court subsequently dismissed the case, pursuant to section 1385, stating that it believed it would be impossible to obtain a verdict in the case and that after having heard all of the evidence, it had a reasonable doubt as to the defendant's guilt. (Id. at p. 110, 214 Cal.Rptr. 1.) The People, pursuant to section 1387, refiled the case. The defendant entered a plea of “once in jeopardy.” The trial court sustained the plea and dismissed the (refiled) case. The People appealed the dismissal of the refiled case. Relying upon the provisions of section 1387 which permit the People to refile a felony matter, the Court of Appeal concluded that double jeopardy did not bar the second prosecution. This conclusion does not assist the People in this case given the limited scope of the Court of Appeal's opinion.7 For one thing, the defense did not raise the doctrine of implied acquittal. That is, the defense never urged the section 1385 dismissal constituted a finding by the trial court that insufficient evidence had been produced and therefore barred a second filing. For another thing, the Court of Appeal did not mention, let alone analyze, the impact of the United States Supreme Court's opinion rendered 20 months prior in Burks v. United States, supra, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1, that retrial is constitutionally barred if a conviction is reversed on appeal for insufficient evidence. Consequently, the James court had no occasion to consider and pass upon the legal issues posed in this matter. “It is axiomatic ․ that a decision does not stand for a proposition not considered by the court.” (People v. Harris (1989) 47 Cal.3d 1047, 1071, 255 Cal.Rptr. 352, 767 P.2d 619.)
We turn now to the disposition of the pending appeals.
In case B112073, the People appeal from Judge Comparet-Cassani's order granting defendant's petition for a writ of habeas corpus to bar the People from prosecuting him on the second case filed against him (No. NA031502).8 Because double jeopardy bars that second prosecution, we will affirm Judge Comparet-Cassani's order.
In case No. B112071, the People appeal from Judge Sheldon's section 1385 dismissal of the first case filed against defendant (No. NA029743). The thrust of the People's appeal is that Judge Sheldon abused his discretion in dismissing the case. We cannot and do not reach the merits of that contention because jeopardy bars the People from prosecuting that appeal.
The People's right to appeal is solely statutory. (People v. Drake (1977) 19 Cal.3d 749, 754, 139 Cal.Rptr. 720, 566 P.2d 622.) Section 1238, subdivision (a)(8) permits the People to appeal from “[a]n order or judgment dismissing or otherwise terminating the action before the defendant has been placed in jeopardy or where the defendant has waived jeopardy.” (Emphasis added.) This means that “merits of the appeal may be reached only if it is determined that jeopardy did not attach.” (People v. Smith, supra, 33 Cal.3d 596, 601, fn. 3, 189 Cal.Rptr. 862, 659 P.2d 1152.) Consequently, “the proper procedure is to consider first the preliminary question whether the defendant was placed in jeopardy.” (Ibid.) As we have explained above, jeopardy has attached because the dismissal based upon insufficient evidence was an implied acquittal.
Judge Sheldon's implied acquittal of defendant is as insulated from appellate review as would be a jury's verdict of not guilty, a finding by the court of not guilty following a bench trial, or a grant of a statutory motion for acquittal. In other words, just as the appellate courts which evaluated the double jeopardy contention in Hudson v. Louisiana, supra, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30, and Mannes v. Gillespie, supra, 967 F.2d 1310, could not review the merits of the trial court rulings that the prosecutor had failed as a matter of law to produce sufficient evidence of guilt, we cannot examine and pass upon the merits of Judge Sheldon's ruling. We therefore dismiss the appeal in case B112071 as being taken from a nonappealable order.
The appeal in case No. B112071 is dismissed. The order appealed from in case No. B112073 is affirmed.
1. All subsequent statutory references are to the Penal Code.
2. Section 1385, subdivision (a) provides, in pertinent part: “The judge ․ may [on] his ․ own motion ․ and in furtherance of justice, order an action to be dismissed.”
3. Section 1387 permits the People to file a felony prosecution a second time after the first filing has been dismissed pursuant to section 1385. However, as will be explained, that statutory provision does not apply if the section 1385 dismissal is construed as an implied acquittal of the charges. In other words, in some situations the double jeopardy clause trumps the People's statutory right to refile a case.
4. Tibbs v. Florida (1982) 457 U.S. 31, 102 S.Ct. 2211, 72 L.Ed.2d 652 held that double jeopardy does not bar a retrial when a reversal of a jury's verdict is based upon the weight as opposed to the sufficiency of the evidence. In that instance, the Florida Supreme Court reversed a death penalty conviction based upon the weight of the evidence. It relied upon a Florida Appellate Rule directing an appellate court in capital cases to “ ‘review the evidence to determine if the interests of justice require a new trial, whether the insufficiency of the evidence is a ground of appeal or not.’ ” (Id. at p. 36, fn. 8, and p. 46, 102 S.Ct. 2211.) The United States Supreme Court reasoned: “A reversal on this ground, unlike a reversal based on insufficient evidence, does not mean that acquittal was the only proper verdict. Instead, the appellate court sits as a “ ‘thirteenth juror’ ” and disagrees with the jury's resolution of the conflicting testimony. This difference of opinion no more signifies acquittal than does a disagreement among the jurors themselves․ [A]n appellate court's disagreement with the jurors' weighing of the evidence does not require the special deference accorded verdicts of acquittal.” (Id. at p. 42, 102 S.Ct. 2211.)
5. Section 1385 provides, in part: “The reasons for the dismissal must be set forth in an order entered upon the minutes.” This provision is mandatory. (People v. Orin (1975) 13 Cal.3d 937, 944, 120 Cal.Rptr. 65, 533 P.2d 193.) “It is not enough that on review the reporter's transcript may show the trial court's motivation; the minutes must reflect the reason ‘so that all may know why this great power was exercised.’ [Citations.]” (People v. Beasley (1970) 5 Cal.App.3d 617, 85 Cal.Rptr. 501; italics in original.) “[T]he terms of the minute order control in our examination of the validity of the order of dismissal.” (People v. Superior Court (1971) 20 Cal.App.3d 684, 686, fn. 3, 97 Cal.Rptr. 886.)In this matter, the minute order adequately sets forth Judge Sheldon's reason for dismissing the case and the People do not contend to the contrary. The People's claim, raised for the first time at oral argument, that a conflict exists between Judge Sheldon's comments set forth in the reporter's transcript of the hearing in which he dismissed the action and the minute order implementing that dismissal is meritless.
6. The California Supreme Court disapproved an unrelated portion of People v. James in People v. Smith, supra, 33 Cal.3d at page 601, footnote 3, 189 Cal.Rptr. 862, 659 P.2d 1152.
7. As set forth in the opinion, the sole issue, as raised by the People, was whether “the constitutional prohibitions against double jeopardy are ․ applicable when a '1385 dismissal' follows a mistrial which has arisen in consequence of the jury's inability to agree upon a verdict.” (People v. James, supra, 102 Cal.App.3d at p. 110, 102 Cal.App.3d 108.)
8. Section 1506 provides, in pertinent part: “An appeal may be taken to the court of appeal by the people from a final order of a superior court made upon the return of a writ of habeas corpus discharging a defendant or otherwise granting all or any part of the relief sought․”
CHARLES S. VOGEL, Presiding Justice.
EPSTEIN and COOPER,* JJ., concur.