People v. Eroshevich

Filed 11/3/14

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE, )

)

Plaintiff and Appellant, )

) S210545

v. )

) Ct.App. 2/5 B231411

KHRISTINE ELAINE )

EROSHEVICH et al., )

) Los Angeles County

Defendants and Respondents. ) Super. Ct. No. BA353907

____________________________________)

After a jury trial that resulted in defendant Howard K. Stern‟s convictions

on two counts of conspiracy, the trial court granted defendant‟s motion for a new

trial and dismissed the charges on the grounds that the evidence was insufficient to

establish that defendant intended to commit a crime. The Court of Appeal

reversed, reinstating the jury‟s verdict, and ordered that the trial court could

consider defendant‟s remaining grounds for a new trial, but that double jeopardy

precluded defendant from being retried. We granted review on the sole issue of

whether the state and federal constitutional protections against double jeopardy

would preclude a retrial if defendant‟s new trial motion is granted. We conclude

that the Court of Appeal erred when it ordered that double jeopardy precluded

defendant from being retried and hold that, if the trial court grants defendant a new

trial on any of his remaining claims, he may be retried.

1

I.

The People filed an 11-count information against defendant Howard K.

Stern. All of the charges arose out of allegations that defendant Stern and

codefendant Dr. Khristene Eroshevich had conspired to and did provide

prescription drugs to Anna Nicole Smith (also known as Vicki Lynn Marshall)

under a variety of false names.1 The jury convicted defendant on two counts of

conspiracy (counts 1 and 3) to commit two target crimes — obtaining a controlled

substance by fraud, deceit, or misrepresentation in violation of Health and Safety

Code section 11173, subdivision (a), and giving a false name in a prescription for

a controlled substance in violation of Health and Safety Code section 11174; one

conspiracy was alleged to have occurred between September 11, 2006, and

February 8, 2007, and the other between June 5, 2004, and September 10, 2006.

Defendant was acquitted on the remaining nine counts.

1 Although codefendant Eroshevich‟s name appears in the title of this case,

our decision does not affect her. She was charged with the same 11 counts as

defendant. The jury convicted her on the same two conspiracy charges, plus two

additional charges. The trial court concluded that its dismissal of the charges

against defendant, the only other conspirator, foreclosed any conspiracy

convictions against Eroshevich. Therefore, the trial court dismissed counts 1 and

3, the conspiracy charges, against Eroshevich in furtherance of justice under

section 1385. The Court of Appeal reversed the trial court‟s dismissal of the

conspiracy counts and concluded that Eroshevich could be retried if her retrial

motion is granted. The Court of Appeal reasoned that because the trial court did

not state that it found the evidence insufficient to support Eroshevich‟s convictions

under the substantial evidence standard, the dismissal did not amount to a legal

acquittal of codefendant. (See People v. Lagunas (1994) 8 Cal.4th 1030, 1038,

fn. 6.) The People‟s petition for review did not take issue with any part of the

Court of Appeal‟s ruling regarding Eroshevich.

2

Defendant filed a motion for a new trial asserting several grounds pursuant

to Penal Code section 1181,2 and asked the court to exercise its discretion to

dismiss the charges under section 1385. Based on the insufficiency of the

evidence, the trial court granted defendant‟s motion for a new trial and also

dismissed the two conspiracy counts. The trial court concluded that “no

reasonable trier of fact could find that Howard Stern had a specific intent to violate

either of these target crimes” and that the evidence supported the conclusion that

defendant had provided prescription drugs to Ms. Marshall under false names only

to protect her privacy. After reviewing all the evidence, “in a light most favorable

to upholding the verdict,” the trial court found the evidence to be “clearly

insufficient.”

The People appealed and the Court of Appeal, in a published opinion,

reversed the trial court‟s rulings on the motions. The Court of Appeal held that the

evidence regarding defendant‟s knowledge and involvement in the provision of

drugs to Ms. Marshall in the names of other persons was sufficient such that “the

jury could reasonably conclude Mr. Stern, a lawyer, knowingly participated in the

ongoing illegal practice of securing illegal prescriptions.”

The Court of Appeal held that “the new trial and dismissal orders must be

set aside; the verdicts as to counts 1 and 3 must be reinstated; and, upon remittitur

issuance, the trial court must proceed to rule on other new trial issues, dismissal

grounds and, if appropriate, sentence [defendant]; but under no circumstances may

he be retried.” (Italics added.) The Court of Appeal concluded that federal and

state double jeopardy protections prevented retrial of defendant, finding Hudson v.

Louisiana (1981) 450 U.S. 40, 44, to be controlling. The Court of Appeal

2 Unless otherwise noted, all statutory references are to the Penal Code.

3

reasoned that because the trial court granted the new trial motion and dismissed

the charges based on the insufficiency of the evidence, the dismissal order had the

legal effect of an acquittal; therefore, even though the trial court‟s order was

erroneous, that order barred retrial of defendant. In light of its conclusion, the

Court of Appeal discussed several avenues the trial court might consider upon

remand: (1) deny the new trial motion and proceed to sentence defendant; (2)

deny the new trial motion, but dismiss the case on alternative section 1385

grounds; (3) grant the new trial motion using the “13th juror” standard, but

defendant would be barred from retrial; or (4) dismiss counts 1 and 3 on other

grounds. The Court of Appeal emphasized that “under no circumstances may a

retrial occur.”

We granted the People‟s petition for review, which contended that the

Court of Appeal erred in concluding defendant may not be retried should his

motion for new trial be granted by the trial court.

II.

The principles of double jeopardy are of federal and state constitutional

origin. The Fifth Amendment of the United States Constitution provides that

“[n]o person shall . . . be subject for the same offence to be twice put in jeopardy

of life or limb . . . .” (U.S. Const., 5th Amend.) Similarly, the California

Constitution provides that “[p]ersons may not twice be put in jeopardy for the

same offense . . . .” (Cal. Const., art. I, § 15.) Unless sound reason exists,

California courts will not interpret the California double jeopardy clause more

broadly than its federal counterpart. (Raven v. Deukmejian (1990) 52 Cal.3d 336,

353.)

At its core, the double jeopardy clause “protect[s] an individual from being

subjected to the hazards of trial and possible conviction more than once for an

alleged offense.” (Green v. United States (1957) 355 U.S. 184, 187.) The policy

4

underlying the double jeopardy protection “is that the State with all its resources

and power should not be allowed to make repeated attempts to convict an

individual . . . thereby subjecting him to embarrassment, expense and ordeal and

compelling him to live in a continuing state of anxiety and insecurity.” (Id. at

pp. 187-188.)

“The constitutional protection against double jeopardy unequivocally

prohibits a second trial following an acquittal,” because the “public interest in the

finality of criminal judgments is so strong that an acquitted defendant may not be

retried even though „the acquittal was based upon an egregiously erroneous

foundation.‟ ” (Arizona v. Washington (1978) 434 U.S. 497, 503.) Consequently,

the People cannot appeal from a jury‟s verdict acquitting a defendant, seeking a

reversal in order to retry the defendant.3 “This is justified on the ground that,

however mistaken the acquittal may have been, there would be an unacceptably

high risk that the Government, with its superior resources, would wear down a

defendant, thereby „enhancing the possibility that even though innocent he may be

found guilty.‟ ” (United States v. DiFrancesco (1980) 449 U.S. 117, 130.)

Similarly, a trial court‟s action amounting to the legal equivalent of an

acquittal prior to the jury’s verdict cannot be appealed by the People because a

successful appeal would result in a second trial, which would violate the

protection against double jeopardy. (Evans v. Michigan (2013) 568 U.S. ___ [133

S.Ct. 1069, 1074] (Evans).) The trial court‟s action is the legal equivalent of an

3 In California, the People‟s ability to appeal is delineated in section 1238.

Any appeal falling outside section 1238 is prohibited. (People v. Salgado (2001)

88 Cal.App.4th 5, 11.) Section 1238, subdivision (a)(8), allows the People to

appeal “[a]n order or judgment dismissing or otherwise terminating all or any

portion of the action including such an order or judgment after a verdict or finding

of guilty . . . .”

5

acquittal if it constitutes a ruling that the prosecution‟s evidence was insufficient

to support a conviction, regardless of whether that ruling is legally correct. (Ibid.

[although trial court erred in directing verdict of acquittal at close of prosecution‟s

case, defendant was acquitted for double jeopardy purposes and could not be

retried]; see, e.g., Smalis v. Pennsylvania (1986) 476 U.S. 140 [trial court‟s order

granting defendant‟s demurrer after close of the prosecution‟s case on grounds that

the evidence was insufficient constituted an acquittal for double jeopardy purposes

and barred appeal and retrial]; Sanabria v. United States (1978) 437 U.S. 54, 64

[trial court‟s order striking certain evidence and granting judgment of acquittal

could not be appealed even if based on erroneous legal conclusions]; United States

v. Martin Linen Supply Co. (1977) 430 U.S. 564 [double jeopardy clause barred

appeal of trial court‟s judgment of acquittal, entered after jury was discharged

because it had been unable to agree on a verdict]; Fong Foo v. United States

(1962) 369 U.S. 141, 143 [trial court‟s order directing jury to return verdicts of

acquittal, resulting in judgments of acquittal, barred retrial even if trial court was

without power to direct acquittals under the circumstances of the case].)4

On the other hand, if a trial court rules that evidence was insufficient to

support a conviction after the jury has returned a verdict the People may appeal

4 Sometimes when a trial court grants a motion for new trial, it is unclear

whether it found the evidence to be legally insufficient or whether it concluded,

reviewing the evidence independently as the “13th juror,” that the jury‟s verdict

was against the weight of the evidence. (See § 1181; People v. Lagunas, supra, 8

Cal.4th at p. 1038, fn. 6.) In such situations, the reviewing court “must determine

whether the ruling . . . , 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. at p. 571.) In the present case,

however, the record leaves no doubt that the trial court found the evidence to be

legally insufficient.

6

that ruling “because reversal would result in reinstatement of the jury verdict of

guilt, not a new trial.” (Evans, supra, 568 U.S. at p. ___ [133 S.Ct. at p. 1081,

fn. 9]; accord, United States v. Wilson (1975) 420 U.S. 332, 353 [prosecution may

appeal from trial court‟s dismissal of indictment after a jury had returned its

verdict].) “[W]here a Government appeal presents no threat of successive

prosecutions, the Double Jeopardy Clause is not offended.” (United States v.

Martin Linen Supply Co., supra, 430 U.S. at pp. 569-570.)

Under these decisions, in the present case, double jeopardy principles did

not preclude the People from appealing the trial court‟s judgment dismissing the

charges on the grounds that the evidence was insufficient. A successful appeal by

the People under such circumstances would merely require reinstatement of the

jury‟s verdict and would not result in a new trial. (See Evans, supra, 568 U.S. at

p. ___, fn. 9 [133 S.Ct. at p. 1081, fn. 9].) The Court of Appeal found the

evidence to be sufficient and reversed the trial court‟s ruling, thereby reinstating

the jury‟s verdict of conviction; because the People‟s appeal and the appellate

court‟s reversal did not require a new trial, neither implicated double jeopardy

principles. The question remains whether, as the Court of Appeal concluded,

double jeopardy principles would preclude a retrial if, on remand, the trial court

were to grant defendant‟s motion for a new trial or dismissal on defendant‟s

remaining grounds other than insufficiency of the evidence.

The double jeopardy rules are well known. The protection against double

jeopardy generally precludes retrial for the same offense after a conviction or an

acquittal. (People v. Massie (1998) 19 Cal.4th 550, 563.) An exception to this

rule applies if the judgment of conviction is reversed as a result of defendant‟s

appeal, motion for new trial, or other challenge by a defendant to his or her

conviction. (People v. Hernandez (2003) 30 Cal.4th 1, 6-7.) Like other

constitutional guarantees, double jeopardy protections are not absolute, and may

7

be waived by a defendant. A defendant who files a motion for a new trial, like a

defendant who moves for a mistrial, waives state and federal double jeopardy

protections. (Porter v. Superior Court (2009) 47 Cal.4th 125, 136; see Oregon v.

Kennedy (1982) 456 U.S. 667, 672-673.) By seeking reversal of a judgment of

conviction on appeal, “ „in effect, [a defendant] assents to all the consequences

legitimately following such reversal, and consents to be tried anew.‟ ” (People v.

Sachau (1926) 78 Cal.App. 702, 706; see People v. Hernandez, supra, at p. 7

[double jeopardy does not bar retrial when conviction is reversed because of a trial

court‟s erroneous replacement of a juror]; Tibbs v. Florida (1982) 457 U.S. 31, 42

[state appellate court‟s reversal because of the weight of the evidence, rather than

the insufficiency of the evidence, does not bar retrial].) Additionally, two policy

considerations support allowing retrial in this situation. First, “society would pay

too high a price „were every accused granted immunity from punishment because

of any defect sufficient to constitute reversible error in the proceedings leading to

conviction.‟ [Citation.]” (Tibbs, supra, at p. 40.) “Second, the Court has

concluded that retrial after reversal of a conviction is not the type of governmental

oppression targeted by the Double Jeopardy Clause.” (Ibid.)

There is an exception to the rule permitting retrial after the defendant‟s

successful challenge to his conviction: the defendant may not be retried if the

judgment is reversed because, as a matter of law, the evidence was insufficient to

support a conviction. “[W]hen a reversal rests upon the ground that the

prosecution has failed to produce sufficient evidence . . . , the Double Jeopardy

Clause bars the prosecutor from making a second attempt at conviction.” (Tibbs v.

Florida, supra, 457 U.S. at p. 42.) When the evidence is legally insufficient, it

means that “ „the government‟s case was so lacking that it should not have even

been submitted to the jury.‟ ” (Id. at p. 41, citing Burks v. United States (1978)

437 U.S. 1, 16.) Furthermore, when the defendant seeks a reversal on appeal

8

based on insufficient evidence, or moves for acquittal in the trial court, the

defendant does not consent to a disposition that contemplates retrial and therefore

does not waive double jeopardy protections. (Evans, supra, 568 U.S. at p. ___

[133 S.Ct. at p. 1079].) Even if the defendant moves for a new trial, retrial will

nevertheless be barred if the defendant‟s motion was granted on grounds that the

evidence was insufficient to support the conviction. (See Burks, supra, at p. 17

[“[i]n our view it makes no difference that a defendant has sought a new trial as

one of his remedies, or even as the sole remedy”].)

In the present case, the Court of Appeal contemplated that, on remand, the

trial court could consider the defendant‟s remaining grounds for his motion for a

new trial and could consider dismissal under section 1385 on grounds other than

the insufficiency of the evidence. As the above discussion makes clear, double

jeopardy principles would not preclude a retrial if defendant were successful in

obtaining a new trial or a dismissal of charges, because in seeking to overturn his

conviction on grounds other than insufficiency of the evidence he would impliedly

waive double jeopardy protections and consent to be retried. (See Porter v.

Superior Court, supra, 47 Cal.4th at p. 136.)

Although these rules seem clear and well established, the Court of Appeal‟s

conclusion that defendant cannot be retried under any circumstances was based on

an oft-quoted passage from our decision in People v. Hatch (2000) 22 Cal.4th 260:

“ „If a trial court rules the evidence is insufficient as a matter of law, then the

ruling bars retrial even if it is patently erroneous or the court has no statutory

authority to make it. (See Sanabria v. United States[, supra,] 437 U.S. [at p.] 64

[a trial court finding of legal insufficiency based on an erroneous foundation is

still an acquittal for double jeopardy purposes]; People v. Valenti (1957) 49 Cal.2d

199, 203, 209 [a trial court dismissal for legal insufficiency made without statutory

authorization bars retrial under the California Constitution], disapproved on other

9

grounds in People v. Sidener (1962) 58 Cal.2d 645, 647; see also Fong Foo v.

United States[, supra,] 369 U.S. [at p.] 143 [a ruling by a trial court acquitting a

defendant bars retrial even if the ruling is “egregiously erroneous” and the court

lacks the power to make the ruling].)‟ (People v. Hatch, supra, 22 Cal.4th at pp.

270-271).” (Citing also Evans v. Michigan, supra, 568 U.S. at p. ___ [133 S.Ct. at

p. 1075]; Mannes v. Gillespie (9th Cir. 1992) 967 F.2d 1310, 1313-1316.)

This principle, although often stated unequivocally, does not apply in the

context of the present case. All of the cases cited in the quotation from Hatch,

upon which the Court of Appeal relied, involved rulings by the trial court before

the jury returned a verdict. In such cases, the prosecution cannot appeal the trial

court‟s ruling even if it is erroneous because a successful appeal would require a

retrial, which is barred by double jeopardy. (See Sanabria v. United States, supra,

437 U.S. at pp. 59-60 [trial court granted defendant‟s motion for acquittal after

presentation of the defense case but before the case went to the jury]; People v.

Valenti, supra, 49 Cal.2d at pp. 203, 209 [trial court dismissed the information in

the middle of trial]; Fong Foo v. United States, supra, 369 U.S. at p. 143 [trial

court directed jury to return verdicts of acquittal]; see also Evans, supra, 568 U.S.

at p. ___ [133 S.Ct. at p. 1073 [trial court directed verdict of acquittal at close of

prosecution‟s case]; Mannes v. Gillespie, supra, 967 F.2d at pp. 1313-1316 [after

jury was dismissed because it deadlocked on murder charge, trial court dismissed

the charges on the grounds that the evidence was insufficient].)

Arizona v. Rumsey (1984) 467 U.S. 203, upon which defendant relies, is

distinguishable for the same reason. In Rumsey, the high court held that the trial

court‟s judgment imposing a life sentence rather than the death penalty was the

equivalent of an acquittal on the merits and precluded defendant from being

resentenced to death after the state supreme court reversed the trial court‟s

decision for legal error. In Rumsey, there was no jury; the trial court in that case

10

was the “sole decisionmaker” in the proceeding. (Id. at p. 211.) Thus, “there was

no verdict of „guilty‟ for the appellate court to reinstate.” (Id. at p. 212.)

Consequently, the appellate reversal in Rumsey would have subjected the

defendant to a second sentencing trial, in violation of double jeopardy principles.

In contrast, in the present case reversal of the trial court‟s judgment of “acquittal”

will allow reinstatement of the jury‟s guilty verdict.

The Court of Appeal relied on two additional cases for the proposition that

an order granting a new trial motion on the ground of insufficient evidence bars

retrial even if the trial court erred: Hudson v. Louisiana, supra, 450 U.S. 40, and

Freer v. Dugger (11th Cir. 1991) 935 F.2d 213.5 These cases are similarly

inapposite because, in each, the trial court‟s ruling regarding the insufficiency of

the evidence was never reversed and stood as a final judgment. In Hudson, the

trial court granted the defendant‟s motion for retrial on grounds that the evidence

was legally insufficient to support the verdict. The state did not appeal that ruling,

but simply retried the defendant, presented evidence that had not been presented in

the first trial, and obtained a conviction. The high court held that the double

jeopardy clause barred the retrial, just as it would if an appellate court had

reversed the defendant‟s conviction because of insufficient evidence. (Hudson,

supra, at p. 43; see Burks v. United States, supra, 437 U.S. 1 [double jeopardy

precluded retrial after the reviewing court held the evidence insufficient to sustain

the jury‟s verdict of guilty].) In Freer, a state trial court granted the defendant‟s

5 The Court of Appeal also cited People v. Lagunas, supra, 8 Cal.4th at

page 1038, footnote 6, but that case is not on point. In Lagunas we cited Hudson

v. Louisiana, supra, 450 U.S. 40, for the rule that double jeopardy bars retrial if

the trial court determines that the prosecution‟s evidence was legally insufficient,

but we concluded that the trial court had not determined the evidence to be

insufficient in that case.

11

motion for a new trial on grounds that the evidence was insufficient, the

prosecution appealed that ruling, and the state appellate court affirmed.

Subsequently, the defendant was retried and again convicted. (Freer, supra, at

p. 215.) On habeas corpus, the federal appellate court held that the retrial violated

the defendant‟s double jeopardy rights. (Id. at p. 222.)

Under these authorities, the trial court‟s order in the present case would

have precluded a retrial had the People chosen not to appeal it or had it been

affirmed on appeal. But the People did appeal and the Court of Appeal reversed

the trial court‟s ruling and reinstated the jury verdict. “It is well settled that the

reversal of a judgment or order ordinarily leaves the proceeding in the same

situation in which it stood before the judgment or order was made.” (Odlum v.

Duffy (1950) 35 Cal.2d 562, 564; see 9 Witkin, Cal. Procedure (5th ed. 2008)

§ 869, p. 928 [reversal of an order granting a new trial “leaves the judgment as if

no such order had been made, i.e., as if the motion had been denied”].) “When an

order has been reversed the effect is that „it no longer ha[s] any vitality or

force . . . .‟ ” (Estate of Pusey (1918) 177 Cal. 367, 371, quoting Estate of

Mitchell (1899) 126 Cal. 250.) The effect of the Court of Appeal‟s order barring a

retrial upon remand was to improperly give legal force and effect to a ruling of the

trial court that it had reversed.

12

III.

The judgment of the Court of Appeal is reversed to the extent that it bars

defendant from being retried should the trial court grant his motion for a new trial

or dismissal on grounds other than the insufficiency of the evidence.

CANTIL-SAKAUYE, C. J.

WE CONCUR:

BAXTER, J.

WERDEGAR, J.

CHIN, J.

CORRIGAN, J.

LIU, J.

CORNELL, J.*

* Associate Justice of the Court of Appeal, Fifth Appellate District, assigned

by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

13

See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Eroshevich

__________________________________________________________________________________

Unpublished Opinion

Original Appeal

Original Proceeding

Review Granted XXX 214 Cal.App.4th 1335

Rehearing Granted

__________________________________________________________________________________

Opinion No. S210545

Date Filed: November 3, 2014

__________________________________________________________________________________

Court: Superior

County: Los Angeles

Judge: Robert J. Perry

__________________________________________________________________________________

Counsel:

Steve Cooley and Jackie Lacey, District Attorneys, Irene T. Wakabayashi, Head Deputy District Attorney,

Brentford J. Ferreira, Shirley Sui-Nin Sun, Natasha Cooper, Gilbert Wright, Phyllis C. Asayama and

Serena R. Murillo, Deputy District Attorneys, for Plaintiff and Appellant.

Janyce Keiko Imata Blair, under appointment by the Supreme Court, for Defendant and Respondent

Khristine Elaine Eroshevich.

Peter Gold, under appointment by the Supreme Court, for Defendant and Respondent Howard Kevin Stern.

1

Counsel who argued in Supreme Court (not intended for publication with opinion):

Serena R. Murillo

Deputy District Attorney

320 West Temple Street, Suite 540

Los Angeles, CA 90012

(213) 893-0632

Janyce Keiko Imata Blair

321 Richmond Street, Suite A

El Segundo, CA 90245

(310) 606-9262

Peter Gold

5758 Geary Boulevard, #160

San Francisco, CA 94121

(510) 872-6305

2