The opinion
Filed 2/10/22
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE, C093270
Plaintiff and Appellant, (Super. Ct. No. 04F11184)
v.
DANNY HAMPTON,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Sacramento County, Michael
P. Kenny, Judge. Affirmed.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Senior Assistant Attorney General, Eric L. Christoffersen,
Supervising Deputy Attorney General, Christopher J. Rench, Deputy Attorney General,
for Plaintiff and Appellant.
Sandra Gillies, under appointment by the Court of Appeal, for Defendant and
Respondent.
A jury found defendant Danny Hampton guilty of first degree murder and two
counts of robbery. The trial court sentenced defendant to an aggregate term of 33 years
to life. This court affirmed the judgment. (People v. Hampton (Dec. 29, 2009, C056867)
1
[nonpub. opn.] (Hampton).)1 The jury could not reach a verdict on the robbery-murder
special-circumstance allegation, and that allegation was dismissed on the People’s motion
for insufficient evidence.
Defendant filed a petition for resentencing under Penal Code2 section 1170.95 and
requested appointment of counsel. The trial court granted the petition finding the
dismissal of the special-circumstance allegation for insufficient evidence was equivalent
to an acquittal. The People appeal contending the dismissal of the special-circumstance
allegation was not an acquittal. We affirm the order granting the petition for
resentencing.
BACKGROUND
A
Relevant Facts Underlying Conviction
Defendant and three of his friends planned a robbery of defendant’s marijuana
dealer, Larry Elliott. Defendant did not want to participate in the robbery, but the
codefendants told him he had no choice. The plan included defendant setting up a
pretextual drug buy to determine how much marijuana Elliott had at his home.
Defendant and codefendant Camitt Doughton went to Elliott’s house and were there for
about eight minutes, smoking marijuana and listening to music with Elliott and his two
guests. Then, codefendants Edward Quintanilla and Deandre Scott burst into the garage,
wearing masks, all black clothing, and armed with firearms. They ordered everyone onto
the ground and pistol-whipped Elliott. Defendant pleaded with the codefendants to stop
assaulting the victims and tried to reassure the victims they were safe. Quintanilla and
Scott went into the home and searched for things to steal. Defendant remained in the
1 We granted defendant’s request to incorporate by reference the records in
defendant’s prior appeal. (Hampton, supra, C056879.)
2 Undesignated section references are to the Penal Code.
2
garage. He was not armed. When Scott came back into the garage from the house, he had
a shotgun and an assault rifle. Quintanilla and Scott ordered defendant to take a bucket
containing marijuana and leave the garage. Defendant did. As he was running from the
scene, he heard a gunshot. Doughton had shot Elliott in the back of the head. When
defendant met back up with codefendants, he received some of the marijuana, Quintalla
and Scott kept the money and guns. (Hampton, supra, C056867.)
There was also evidence that defendant knew his codefendants planned to be
armed, had handled one of the guns earlier on the day of the robbery, and that one of his
codefendants indicated a willingness to shoot the victims, if necessary.
B
Relevant Procedural Background Original Trial
At close of evidence, defendant made a motion to dismiss the special-circumstance
allegation under section 1118.1, contending there was insufficient evidence he acted with
reckless indifference to life. The trial court denied the motion stating: “[T]he evidence
presents that [defendant] was involved in a discussion with his confederates and that guns
were essentially brought out during that discussion, and that [defendant] actually handled
one of those guns in advance of going to Mr. Elliott’s home, and further discussion was
that they may not leave any witnesses, there is at least a pretty strong implication from
those set of facts that, in fact, the person is acting in reckless disregard.”
On the second day of deliberations, the jury indicated it had reached a verdict,
except as to the special-circumstance allegation. The court provided additional
instruction and allowed counsel to conduct additional argument focused on the issue the
jury had indicated it was divided on. After additional deliberation, the jury remained
unable to reach a verdict. They were split six to six. The court declared a mistrial as to
the special-circumstance allegation. The court asked the prosecutor what he wanted to do
regarding the allegation and the prosecutor requested the issue be put over to the time of
sentencing.
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The jury found defendant guilty of first degree murder and two counts of robbery.
The trial court sentenced defendant to a term of 25 years to life for the murder, plus one
year for the firearm enhancement, a consecutive midterm of six years on one robbery
conviction, plus one year for each firearm enhancement, and an identical term on the
other robbery conviction stayed under section 654, for an aggregate term of 25 years to
life plus eight years. He was granted 1,008 days of credit for time served.
After sentencing, the People stated: “With respect to the special circumstances
charge that the Court had declared a mistrial on . . . the People would move to dismiss
that for insufficient evidence.” The trial court responded: “All right. The special
circumstance charge will be dismissed for insufficient evidence.”
C
Section 1170.95 Petition
In 2019, defendant filed a petition for resentencing under section 1170.95. The
trial court reviewed the section 1170.95 petition, found defendant had made a prima facie
case, and set an order-to-show-cause hearing. The court requested briefing explicitly
addressing the effect of the trial court’s order dismissing the special-circumstance
allegation upon the jury’s inability to reach a verdict and at the request of the People.
Defendant argued the dismissal of the special-circumstance allegation for
insufficient evidence on the People’s motion barred any relitigation of the issue as a
violation of double jeopardy. Defendant also argued “the prosecution concluded, as a
matter of law, that there was insufficient evidence to sustain the special circumstance
allegation. They cannot now reverse course and assert the opposite.”
The People argued given the prior denial of the section 1118.1 motion, and the
record as a whole, it was clear neither the People nor the court considered the record in
the light most favorable to the People and concluded that no reasonable jury could find
defendant was a major participant acting with reckless indifference. Thus, the dismissal
was not an acquittal. The People also asserted when the prosecutor moved to have the
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allegation dismissed he “was not claiming that the evidence was legally insufficient to
prove the special circumstances allegation. Rather, the prosecutor was simply dismissing
the special circumstance so that the jury’s first degree verdict could stand. Whether the
evidence could be legally sufficient to meet the People’s burden was not actually litigated
to decision, thus it is incorrect to state as a matter of law the evidence was insufficient.”
In ruling on the section 1170.95 petition, the court considered the murder-robbery
jury instructions given and the People’s motion to dismiss the special-circumstance
allegation for insufficient evidence. The court concluded “that the dismissal of that
special circumstance for insufficient evidence is equivalent to a finding that the defendant
did not act with reckless indifference. Consequently the People have failed to carry their
burden of proving ineligibility.” The court then proceeded to resentencing, vacated the
murder conviction, and lifted the stays on the robbery convictions, leaving a sentence of
seven years.
DISCUSSION
I
General Legal Background
Senate Bill No. 1437 (2017-2018 Reg. Sess.) amended “the felony murder rule
and the natural and probable consequences doctrine, as it relates to murder, to ensure that
murder liability is not imposed on a person who is not the actual killer, did not act with
the intent to kill, or was not a major participant in the underlying felony who acted with
reckless indifference to human life.” (Stats. 2018, ch. 1015, § 1, subd. (f).) The bill
amended section 188, which defines malice, and section 189, which defines the degrees
of murder to address felony-murder liability. (Stats. 2018, ch. 1015, §§ 2 & 3.) It also
added section 1170.95, which provides a procedure by which those convicted of murder
premised on either a felony murder or natural and probable consequences theory can
petition for retroactive relief, if the changes in the law would affect their previously
sustained convictions; that is, if “[t]he petitioner could not be convicted of first or second
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degree murder because of changes to Section 188 or 189 made effective January 1,
2019.” (Stats. 2018, ch. 1015, § 4; § 1170.95, subd. (a).)
If the defendant makes a prima facie showing of eligibility for relief (§ 1170.95,
subds. (b) & (c)), the court must issue an order to show cause and hold an evidentiary
hearing to determine whether to vacate the murder conviction and resentence the
defendant on any remaining counts (§ 1170.95, subd. (d)(1)). At the hearing the
prosecution has the burden of proving beyond a reasonable doubt that the defendant is
ineligible for resentencing. (§ 1170.95, subd. (d)(3), as amended by Stats. 2021, ch. 551,
§ 2, eff. Jan. 1, 2022.)
As relevant here, since there is no dispute defendant was not the actual killer and
did not act with intent to kill, to now be convicted of murder the prosecution was required
to prove defendant “was a major participant in the underlying felony and acted with
reckless indifference to human life, as described in subdivision (d) of Section 190.2.”
(Stats. 2018, ch. 15, § 3.) If there was a prior finding by a court or jury that defendant did
not act with reckless indifference to human life or was not a major participant in the
felony the court was required to vacate the conviction and resentence defendant.
(§ 1170.95, subd. (d)(2).)
II
Appealability
As a threshold issue, defendant contends the order granting the petition is not an
order the People are statutorily entitled to appeal.3 The People contend this order is
3 Also under the heading of appealability, defendant argues the appeal violates
double jeopardy because the dismissal for insufficient evidence was an acquittal. That
argument relies on the resolution of whether the dismissal was an acquittal, the
substantive issue raised in the People’s appeal. Accordingly, we will reach the merits of
that claim.
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appealable under section 1238, subdivision (a)(5) as an order after judgment affecting the
People’s substantial rights.
“The People’s right to appeal is statutory, and appeals that do not fall within the
exact statutory language are prohibited.” (People v. Salgado (2001) 88 Cal.App.4th 5,
11.) The statutory circumstances permitting a People’s appeal are specified in
section 1238. (People v. Chacon (2007) 40 Cal.4th 558, 564.) Section 1238,
subdivision (a)(5) permits a People’s appeal from “[a]n order made after judgment,
affecting the substantial rights of the people.” An order after judgment affecting the
substantial rights of the People is generally one that affects the judgment or its
enforcement, alters the defendant’s status, or hampers the prosecution’s ability to carry
out future prosecutorial duties. (People v. Benavides (2002) 99 Cal.App.4th 100, 105-
106.) Such cases include orders that affect the defendant’s sentence or the timing of his
release. (In re Anthony (2015) 236 Cal.App.4th 204, 211-212; People v. Douglas (1999)
20 Cal.4th 85, 88 [reducing a felony to a misdemeanor]; People v. Minjarez (1980) 102
Cal.App.3d 309, 311-312 [order erroneously granting a defendant credits against his or
her prison sentence]; People v. Maggio (1929) 96 Cal.App. 409, 410-411 [reducing a
judgment of imprisonment to a fine].)
The resentencing scheme of section 1170.95 is analogous to the provisions of
Proposition 36, the Three Strikes Reform Act of 2012, which “created a postconviction
release proceeding whereby a prisoner who is serving an indeterminate life sentence
imposed pursuant to the three strikes law for a crime that is not a serious or violent felony
. . . may have his or her sentence recalled and be sentenced as a second strike offender
unless the court determines that resentencing would pose an unreasonable risk of danger
to public safety. (§ 1170.126.)” (People v. Superior Court (Martinez) (2014)
225 Cal.App.4th 979, 984.) Under both resentencing schemes, after a multi-step process
that includes a hearing on the petition, the trial court determines if the defendant is
eligible for relief under the act and, if so, sets the matter for resentencing. (Id. at p. 986;
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People v. Lewis (2021) 11 Cal.5th 952, 960; § 1170.95, subds. (c) & (d)(3).) That is,
there is an initial determination of eligibility for relief and a separate resentencing
decision. Under both statutory schemes, an initial eligibility determination affects
whether the trial court will exercise resentencing discretion. This initial determination is
not “an idle exercise as far as the People are concerned” as such a determination shifts the
burden to the prosecution to establish defendant could still be convicted of murder; and,
if the prosecution does not carry its burden, resentencing necessarily follows “Thus, an
initial finding of eligibility affects enforcement of the judgment (in which the People
clearly have a substantial interest), and it affects the inmate’s status with relation to the
judgment already imposed.” (Martinez, at p. 987.)
Given the analogous processes, we conclude the Martinez court’s analysis applies
in the current situation and the People may appeal the trial court’s determination that
defendant is entitled to relief. The order was indisputably made “after judgment”;
judgment was imposed in defendant’s case when he was originally sentenced. It also
affects the People’s substantial rights in that it determines whether the trial court will
exercise its powers to recall the previous judgment and resentence defendant. (People v.
Benavides, supra, 99 Cal.App.4th at p. 105.) Ultimately, the order resulted in a
substantial modification of the original judgment. (People v. Gilbert (1944) 25 Cal.2d
422, 444 [order is “obviously” appealable when its effect is “to modify substantially the
judgments originally entered”].) Thus, the trial court’s order determining defendant is
entitled to relief qualifies as “[a]n order made after judgment, affecting the substantial
rights of the people,” and is appealable under section 1238, subdivision (a)(5).
We are not persuaded by defendant’s argument, relying on People v. Rivera
(1984) 157 Cal.App.3d 494, that the court did not issue an order, but rather entered a new
judgment that is not appealable as an order after judgment. The statutory resentencing
scheme at issue in Rivera, under former section 1170, subdivision (f)(1), did not require a
multi-step process in the trial court, including an initial finding of eligibility. Rather, in
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Rivera, the initial determination of eligibility for resentencing was made by the Board of
Prison Terms referring a case back to the trial court because the sentence imposed was
“disparate in comparison with the sentences imposed in similar cases.” (Rivera, at
p. 496, fn. 1.) Upon receiving that referral from the Board of Prison Terms, the trial court
“scheduled a hearing, recalled the previously ordered sentence and commitment order,
and resentenced” the defendant. (Id. at p. 496.) Importantly, there was no order of the
trial court prior to the resentencing; rather, as required by the statute, the court simply
recalled the initial sentence and resentenced defendant. The sentence imposed at the
resentencing thus became the judgment. (Id. at p. 497.) That is, the appeal was, in effect,
an appeal from the judgment, not from an order after judgment and as such, was not
permitted under section 1238, subdivision (a)(5). (Rivera, at p. 497.)
Moreover, in Rivera, the substance of the appeal was directed at the resentencing
decision; that is, the new judgment itself. Specifically, the appeal challenged whether a
portion of the sentence should run consecutively rather than concurrently. (People v.
Rivera, supra, 157 Cal.App.3d at p. 495.) Here, on the other hand, the People challenge
the trial court’s conclusion that the dismissal for insufficient evidence acted as an
acquittal, a decision that then required the court to vacate the murder conviction and
resentence defendant. Thus, the People in this instance are challenging an order made
after judgment, rather than the new judgment itself. Thus, we conclude the trial court’s
order finding defendant entitled to relief under section 1170.95 is appealable under
section 1238, subdivision (a)(5).4
4 Because we determine section 1238, subdivision (a)(5) applies, we need not
consider the parties’ arguments as to subdivision (a)(6).
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III
Dismissal For Insufficient Evidence
The People contend the record here does not clearly indicate that the dismissal was
based on insufficient evidence. Specifically, they argue the use of the language
“insufficient evidence,” without more, does not clearly reflect that the court applied the
substantial evidence test. Defendant claims the People are estopped from raising the
issue. Defendant also argues the record is unambiguous and the dismissal served as an
acquittal.
A
Procedural Bar -- Judicial Estoppel, Invited Error, And Forfeiture
Defendant argues if the original trial court erred in dismissing the matter for
insufficient evidence, the People cannot challenge that ruling under principles of judicial
estoppel, invited error, or forfeiture. Since these claims raise procedural bars that, if
applicable, would obviate the need to address the merits, we consider them first and
conclude none apply.
Judicial estoppel is intended to protect the integrity of the judicial process, by
preventing a party from asserting a position in a legal proceeding that is contrary to a
position previously taken in the same or an earlier proceeding. (Jackson v. County of Los
Angeles (1997) 60 Cal.App.4th 171, 181.) With respect to judicial estoppel, initially it is
unclear whether the doctrine can be applied to the prosecution, but in any event, the
People’s “earlier concession of a legal point does not constitute the successful assertion
of a position.” (People v. Suff (2014) 58 Cal.4th 1013, 1061, fn. 12.) In addition, the
doctrine of judicial estoppel cannot be invoked where the first position was taken as a
result of ignorance or a good faith mistake (Jackson, at pp. 181-182), rather than as part
of a scheme to mislead the court, an intentional wrongdoing (Levin v. Ligon (2006) 140
Cal.App.4th 1456, 1484).
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“The doctrine of invited error is designed to prevent an accused from gaining a
reversal on appeal because of an error made by the trial court at his behest. If defense
counsel intentionally caused the trial court to err, the appellant cannot be heard to
complain on appeal.” (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 49.) Again,
assuming this doctrine also applies to the prosecution, under the doctrine, it must be clear
that counsel intentionally caused the trial court to err, and that counsel acted for tactical
reasons and not out of ignorance or mistake. (Ibid.)
In moving for dismissal on the grounds of insufficient evidence, the prosecutor
conceded a legal point; that concession is not the same as an assertion of a position.
Nothing in the record suggests there was any intent on the prosecutor’s part to make the
concession as part of a scheme to mislead the court to gain an unfair advantage or to
deliberately induce the court to err for tactical reasons. Nor is there any indication in the
record that the prosecution’s motion to dismiss for insufficient evidence was not the
result of mistake in offering that as the reason for the dismissal or ignorance that
dismissal on that basis would effectively act as an acquittal. Defendant does not claim
otherwise. Accordingly, although this motion was granted in the language of the
People’s motion, we cannot rely on the doctrines of judicial estoppel or invited error, to
resolve this claim.
Nor does forfeiture bar the People’s claim. Forfeiture is the failure to make a
timely assertion of a right. (United States v. Olano (1993) 507 U.S. 725, 733.) When the
legal effect of the dismissal became an issue in dispute, the People timely raised their
objection to the conclusion the dismissal was the equivalent of an acquittal. That
argument preserved this issue for appeal.
B
Dismissal
Section 1385 dismissals should not be construed as an acquittal for legal
insufficiency unless the record clearly indicates the trial court applied the substantial
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evidence standard. (People v. Hatch (2000) 22 Cal.4th 260, 271, 273 (Hatch).) There
are no “magic words” the court must use to demonstrate it has applied the substantial
evidence standard, and the court need not restate the substantial evidence standard.
(Ibid.) But, the record must make it clear for the reviewing court that the trial court
viewed the evidence in the light most favorable to the prosecution and found that no
reasonable trier of fact could convict. (Ibid.) Whatever label the ruling is given, the
appellate court “ ‘must determine if the ruling 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. (1977) 430 U.S. 564, 571].)” (Id. at p. 270.)
“Insufficient evidence” is a term of art and -- absent a contrary indication -- means
the evidence was insufficient to support a conviction as a matter of law. (Hatch, supra,
22 Cal.4th at p. 276; Mannes v. Gillespie (9th Cir. 1992) 967 F.2d 1310, 1315 (Mannes).)
If the jury has not been able to reach a verdict and the trial court rules the evidence is
insufficient as a matter of law to sustain a conviction, the ruling bars retrial even if the
ruling is patently erroneous or the court has no statutory authority to make it. (Hatch, at
pp. 270-271; see Sanabria v. United States (1978) 437 U.S. 54, 75 [there is no exception
permitting retrial once the defendant has been acquitted, no matter if the acquittal is
egregiously erroneous.].)
We note, we are not called on here to determine whether the trial court correctly
dismissed the case for insufficient evidence, because even when a case is wrongly
dismissed for insufficient evidence, that dismissal will act as an acquittal. (Hatch, supra,
22 Cal.4th at pp. 270-271, and cases cited therein.) Thus, we are only required to
determine if the dismissal was, in fact, a determination that there was insufficient
evidence as a matter of law to sustain a true finding on the enhancement.
In Hatch, following a jury deadlock, the court declared a mistrial. (Hatch, supra,
22 Cal.4th at p. 266.) Following argument from the parties, the trial court dismissed the
case in the interest of justice, because it concluded no reasonable jury would find the
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defendant guilty. (Ibid.) The court did not state it was dismissing the case for
insufficient evidence. Our Supreme Court noted while a court is allowed to dismiss for
insufficient evidence under section 1385, it usually does not. Because such dismissals
are not usually based on insufficiency of the evidence as a matter of law, and the trial
court had not stated that as the grounds for the dismissal, the Supreme Court concluded
the record must show the court intended to dismiss for insufficiency. (Hatch, at pp. 273-
274.)
Although there are no “magic words” the court must use, we have not found, and
the People have not cited, any authority where the trial court has used the language
“insufficient evidence” in its dismissal and the dismissal was not found to be the
equivalent of an acquittal. (See People v. Salgado, supra, 88 Cal.App.4th at p. 10 [trial
court stated insufficient evidence was as a matter of law to show the defendant aided and
abetted carjacking]; People v. Pedroza (2014) 231 Cal.App.4th 635, 642 [trial court
stated there was insufficient corroboration of accomplice testimony as a matter of law,
and retrial barred by double jeopardy]; Mannes, supra, 967 F.2d at p. 1314 [trial court
stated there was insufficient evidence for implied malice or conscious disregard and no
likelihood retrial would result in unanimous verdict].)
The trial court and the prosecutor each explicitly stated the matter was being
dismissed for “insufficient evidence.” While the prosecutor may have mistakenly offered
that as the basis for the dismissal or been unaware that such a dismissal would be the
equivalent of an acquittal, we cannot presume both the prosecutor and the trial court
intended the dismissal to be on some other, unmentioned, grounds. The People offer
various speculative reasons as to what the prosecutor might have meant when he used the
language “insufficient evidence.” We will not engage in this speculation to suppose the
prosecutor meant something other than what he said. Moreover, none of these reasons
explains why, if the prosecutor did not mean “insufficient evidence,” he would not have
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simply used the language of section 1385 and requested dismissal in furtherance of
justice.
Even more importantly, what the prosecutor meant when he used the phrase
“insufficient evidence” is not the controlling consideration. What matters is what the trial
court intended when it dismissed the allegation.
Section 1385 requires the trial court to state reasons for the dismissal. The court’s
stated reason for dismissing the allegation “is the strongest evidence of the grounds for
the dismissal.” (Mannes, supra, 967 F.2d at p. 1315.) The trial court stated it was
dismissing the special-circumstance allegation based on insufficient evidence. There is
no authority that the trial court was required to state anything more than that to
demonstrate its intent to dismiss for insufficiency. The People claim that concluding the
use of the phrase “insufficient evidence” demonstrates the trial court found the evidence
insufficient as a matter of law would be a “hyper-technical” use of “magic words.” The
phrase “insufficient evidence” is not “magic words.” Rather, it is a legal term of art.5
And, presuming the trial court intended that legal term of art to carry its ordinary and
accepted meaning is not a hyper-technical application of the phrase.
Absent any contrary indication, we must presume the trial judge intended the
phrase to carry its accepted, and precise, meaning -- that the evidence presented at the
trial was not legally sufficient to support a conviction for the crime charged. There is no
contrary indication. Although the trial judge previously denied defendant’s motion for
acquittal under section 1118.1, that ruling does not act as a bar to later reconsideration by
5 “ ‘Terms of art are words having specific, precise meaning in a given specialty.
Having its origins in Lord Coke’s vocabula artis, the phrase term of art is common in law
because the legal field has developed many technical words whose meanings are locked
tight. . . .’ (Garner, Dict. of Legal Usage (3d ed. 2011) p. 883; see also People ex rel.
Lungren v. Superior Court (1996) 14 Cal.4th 294, 302.)” (People v. Gonzales (2017) 2
Cal.5th 858, 871, fn. 12.)
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the trial court of the sufficiency of the evidence. (See Mannes, supra, 967 F.2d at
p. 1315, fn. 5.) The Attorney General has not shown that in stating it was dismissing the
case for insufficient evidence, the trial court failed to understand the legal import of the
words used or that it meant some other words that it did not use. The words “insufficient
evidence” were not required to effectuate a dismissal under section 1385. This dismissal
being on the People’s motion, all that was required was that the dismissal be “in
furtherance of justice,” with reasons given. (See People v. Johnson (2015) 61 Cal.4th
734, 769.) The trial court did not give, or even suggest, any other reason for dismissal.
Instead, the court explicitly stated the dismissal was due to insufficient evidence. The
most reasonable interpretation of this record is that the court used the specific language of
insufficient evidence, given its accepted meaning, to convey that it had weighed the
evidence in the light most favorable to the People and found it lacking. That is, that the
court knew the legal import of its words and meant what it said. Because the original
trial court dismissed the case for insufficient evidence, this dismissal acted as the
equivalent of an acquittal and the court properly granted the petition for resentencing
under section 1170.95.
DISPOSITION
The order granting defendant’s section 1170.95 petition for resentencing is
affirmed.
/s/
Robie, J.
We concur:
/s/
Raye, P. J.
/s/
Hull, J.
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