People v. Super. Ct. (Woodward)

Filed 3/14/24

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE, H051311

(Santa Clara County

Petitioner, Super. Ct. No. C2200594)

v.

THE SUPERIOR COURT OF SANTA

CLARA COUNTY;

Respondent;

JOHN KEVIN WOODWARD,

Real Party in Interest.

In this petition for extraordinary writ relief, we consider whether constitutional

prohibitions against double jeopardy bar the refiling of a murder charge after its dismissal

by court order in 1996 following two mistrials.

In 1992, John Kevin Woodward was charged with the murder of Laurie Houts.

The case proceeded to trial and twice resulted in deadlocked juries and declarations of

mistrial. After the second mistrial in 1996, the trial court dismissed the case pursuant to

Penal Code former section 1385.1 In a written order, the trial court explained the

dismissal was “in the furtherance of justice for insufficiency of the evidence.”

1

Unspecified statutory references are to the Penal Code.

Advancements in DNA technology led to new evidence against Woodward. In

2022, the Santa Clara County District Attorney (district attorney) refiled the murder

charge against him. Woodward moved to dismiss the complaint on double jeopardy

grounds. The trial court agreed that the 1996 dismissal of the case for insufficiency of

the evidence operated as an acquittal and dismissed the refiled complaint.

Petitioner district attorney brings this petition for writ of mandate. He asks this

court to order the trial court to vacate its dismissal order and enter a new order denying

real party in interest Woodward’s motion to dismiss. The district attorney disputes that

the murder charge against Woodward was dismissed due to legal insufficiency of the

evidence and contends the trial court erred in construing the 1996 dismissal order as an

acquittal.

We agree. Applying the standard articulated in People v. Hatch (2000) 22 Cal.4th

260 (Hatch), we decide the trial court’s section 1385 dismissal order does not clearly

indicate an intent to dismiss for legally insufficient evidence and preclude retrial. As

double jeopardy principles do not bar the refiling of the case against Woodward, we will

issue a peremptory writ directing the trial court to vacate its order dismissing the refiled

murder charge.

I. FACTS AND PROCEDURAL BACKGROUND

A. 1992–1996 Murder Prosecution

On September 5, 1992, Laurie Houts was found dead in her car, parked about one

mile from her place of work in Mountain View. She had been strangled with a rope

while seated in the driver’s seat. The rope had been pulled through her mouth like a gag,

knotted behind the neck, and left in place. The cause of death was strangulation.

Woodward was identified as a suspect. At the time, he lived with Houts’s

boyfriend Brent Fulmer. Woodward had reportedly displayed possessive behavior

toward Fulmer and became jealous when Houts began spending time with Fulmer. Two

latent fingerprints belonging to Woodward were recovered on the outside of Houts’s car,

2

and fibers collected from masking tape on the free end of the rope used to strangle Houts

showed characteristics similar to the outside of Woodward’s sweatpants. Woodward had

no alibi for the window of time in which Houts was killed. During a pretext phone call

between Woodward and Fulmer, Woodward never denied killing Houts. Based on these

and other circumstances and evidence, the district attorney charged Woodward with

Houts’s murder.

The first jury trial resulted in a hung jury, with the majority (8 to 4) voting for

acquittal. The prosecution elected to retry the case, resulting in a second jury deadlock

with the majority (7 to 5) again voting for acquittal. The same judicial officer presided

over both trials.

B. 1996 Dismissal of Case

At a posttrial hearing on August 7, 1996, the trial court ordered the murder case

dismissed pursuant to former section 1385.2 The court’s dismissal order is reflected in

two documents issued on August 7, 1996, a minute order3 and a written order signed by

the judge (“written decision”) (collectively the “1996 dismissal order”).

The minute order states as follows: “In open court at 9:49 [a.m.] with above-

named counsel and defendant present. [¶] The [c]ourt reads the written decision into the

record dismissing this case pursuant to Penal Code [s]ection 1385 based on insufficient

evidence. The written decision is ordered filed and defendant’s bail is ordered

exonerated.”

2

We refer to former section 1385 when referencing the version of section 1385 in

effect in 1996 when the trial court issued its dismissal order. (Former § 1385, as

amended (Stats. 1986, ch. 85, § 2, eff. May 6, 1986).)

3

The term “ ‘minute order’ ” generally refers to the written entry of a court’s

ruling into the minutes. (See Southwestern Law School v. Benson (2019) 42 Cal.App.5th

Supp. 1, 9.)

3

The written decision cites the relevant factors for dismissing a case “in furtherance

of justice” under former section 1385, subdivision (a) (hereafter former section 1385(a))

and describes the prosecution theories and evidence presented in both jury trials.

Regarding the evidence, it states that “[a] comparison of the first trial and the

second trial shows that the prosecution has presented no new evidence pointing to the

defendant’s guilt and there is no probability that new evidence will become available.

Absent new evidence there is no likelihood that a jury would be able to convict the

defendant of murder.” The decision critiques the quality of the evidence, noting that

while over 300 items of evidence and 30 witnesses were presented during each trial, “the

prosecution was not able to utilize the evidence to prove” guilt beyond a reasonable doubt

because “[t]he substantive quality of the evidence did not lend itself to proving the

prosecution’s contentions.” It explains, “This lack of quality meant that the prosecution

was limited to very little evidence with which to try its case. With the possible exception

of the fingerprints and the defendant’s apparent inconsistent statements, the vast majority

of the evidence does not point to the defendant’s guilt.”

The written decision also addresses the prosecution’s theory that Woodward killed

Houts out of jealousy, stating there was “insufficient proof that such a jealousy existed.”

Citing Tibbs v. Florida (1982) 457 U.S. 31 (Tibbs), it explains that a dismissal would

further the interests of justice “by preventing the prosecution from honing its trial

strategies and perfecting its presentation of the evidence through successive attempts at

conviction.” It further cautions, citing Tibbs, that “[r]epeated prosecutions would create a

risk of conviction through sheer governmental perseverance.”

The final two paragraphs of the written decision reiterate the trial court’s

reasoning for the dismissal order. It states, “The prosecution has not met its burden of

proof in two trials and absent new evidence it will be unable to do so in subsequent trials.

Another trial would only serve to harass the defendant. It is reasonable to believe that

society will not be endangered by this decision and the interest of justice will best be

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served by a dismissal. [¶] A dismissal of this case is not meant to criticize the work done

by the prosecution or deprive the victim’s family of an opportunity to see their daughter’s

killer brought to justice. There is simply a lack of evidence on which to convict

[Woodward]. Without new evidence, the result of this case will be the same at each

successive trial. Due to the lack of evidence in this case, a jury will never be able to

reach a unanimous verdict of guilty. It appears that justice would best be served if the

charges were dismissed.” The decision orders “that the case be dismissed in the

furtherance of justice for insufficiency of the evidence.”

C. 2022 Refiling of Murder Charge

In 2021, the district attorney, Mountain View police detectives, and the Santa

Clara County crime lab collaborated in follow up on the investigation into Houts’s

murder. According to the declaration of Mountain View Police Department Detective

Sergeant David Fisher, whose statement of facts accompanied the refiling of charges

against Woodward, new technology applied to evidence in the case supports a finding of

Woodward’s guilt. This evidence includes a DNA sample collected from the rope that

had been found on Houts and fibers collected from Woodward’s sweatpants, as well as

the discovery of additional latent fingerprints on the outside of Houts’s vehicle.4

In 2022, the district attorney refiled a felony complaint in the Santa Clara County

Superior Court charging Woodward with one count of murder, in violation of section

4

The evidence referenced in the declaration supporting the refiled complaint

includes the use of DNA technology to process a DNA sample collected from the end of

the rope that had been used to murder Houts. A Y-STR analysis of the sample

determined that Woodward’s DNA profile matched the DNA sample from the rope at all

25 markers, while a second DNA sample from the rope contained a mixture of at least

three male individuals and was unsuitable for comparison. Houts’s then-boyfriend

Fulmer and another male friend who had carpooled with Houts were both excluded as the

sources of the DNA. The 2021 follow up also identified two additional latent fingerprints

matching Woodward on the exterior of Houts’s car. In addition, new technology used by

the county crime lab to analyze the fibers from Woodward’s sweatpants showed the

fibers were indistinguishable from the fibers found on the rope.

5

187, subdivision (a). The complaint alleged, pursuant to section 1170, subdivision (b),

and California Rules of Court, rule 4.421(a)(1), (a)(3), (a)(8), (a)(11), and (b)(1),

respectively, that the crime involved great violence, threat of great bodily harm, or other

acts disclosing a high degree of cruelty, viciousness, or callousness; that the victim was

particularly vulnerable; that the crime involved planning, sophistication, or

professionalism; that Woodward took advantage of a position of trust or confidence to

commit the offense; and that Woodward had engaged in violent conduct that indicated a

serious danger to society.

D. Motion to Dismiss

Woodward moved in the trial court to dismiss the charges, arguing that the

prosecution violated his state and federal constitutional protections against double

jeopardy. Woodward’s motion invoked the Fifth and Fourteenth Amendments to the

United States Constitution and article I, section 15 of the California Constitution.

Woodward contended that under settled law as articulated by the California

Supreme Court in Hatch, supra, 22 Cal.4th 260, the 1996 dismissal order for

insufficiency of the evidence “serves the same function as an acquittal for double

jeopardy purposes” and bars retrial. In support of the motion to dismiss, Woodward

asked the trial court to take judicial notice of the 1996 dismissal order.

The district attorney opposed the motion to dismiss. The district attorney argued

that a dismissal under section 1385 is not an acquittal for double jeopardy purposes under

Hatch unless the trial court clearly intended to exercise that power and applied the

substantial evidence standard, viewing the evidence in the light most favorable to the

prosecution, in deciding no reasonable jury could convict. (See Hatch, supra, 22 Cal.4th

at pp. 271, 273.) The district attorney disputed that the 1996 dismissal order offered any

clear indication that the trial court had intended the dismissal to serve as an acquittal or

applied the substantial evidence standard in deciding to dismiss the charges.

6

The district attorney attached documents in support of its opposition, though it did

not request judicial notice of the items. These included Woodward’s motion for

judgment of acquittal, filed pursuant to section 1118.1 during the second trial, the

opposition thereto, and a minute order showing the trial court denied the motion for

judgment of acquittal, as well as a copy of an unfiled “motion to dismiss after deadlocked

jury” that “presumably” had been filed by Woodward’s deputy public defender after the

second mistrial (but was not found in the trial court’s review of its files). The district

attorney argued that the trial court’s denial of the acquittal motion, in which the parties

had expressly identified substantial evidence as the standard for acquittal based on

insufficient evidence, stood in contrast with the court’s later decision to dismiss the case

pursuant to section 1385. This, according to the district attorney’s opposition, illustrated

that the trial court “clearly knew what was required for a dismissal for insufficient

evidence as a matter of law” but elected instead to apply the standard for dismissal in

furtherance of justice.

The opposition also attached a declaration of the prosecuting attorney for both

trials that expressed his recollection of the trial judge’s statements at the dismissal

hearing regarding refiling of the case; a contemporaneous newspaper article from the San

Jose Mercury News, dated August 22, 1996, covering the dismissal of charges and

statements by the prosecutor and defense counsel regarding the likelihood of refiling

charges; and an excerpt of Woodward’s motion to set bail in response to the refiled

charges. The district attorney argued that these materials further demonstrated that the

1996 dismissal order was not intended to preclude a later refiling of the case in the event

the district attorney obtained additional evidence against Woodward.

In reply, Woodward countered that under former section 1385, only the minute

order (and not the concurrently filed written decision) should be used to determine the

effect of the dismissal. Woodward argued that the district attorney’s proffer of other

extrinsic evidence, such as the prosecutor’s declaration and the newspaper article, was

7

improper. Woodward argued the trial court should not consider the evidence and should

order it stricken. Woodward maintained that the district attorney’s argument failed to

recognize the 1996 dismissal order’s citation (in the written decision) to the United States

Supreme Court’s decision in Tibbs, which explains why a dismissal for insufficient

evidence bars a retrial. Both parties submitted additional briefing.

At the hearing on the motion to dismiss, the trial court indicated it had carefully

considered all the briefing and had made several attempts to find “any and all portions

of” the original court file. It explained that “[a]fter a very thorough and diligent search”

the court was unable to find any other portions of the trial court record.

On August 22, 2023, the trial court issued a written order granting Woodward’s

motion to dismiss. It granted Woodward’s request for judicial notice of the 1996

dismissal order but rejected the argument that it should consider only the minute order

and not the written decision. The court declined to consider the unfiled, unsigned copy of

the “motion to dismiss after deadlocked jury” that arguably prompted the 1996 dismissal

order, since there was no file stamp or any indication that the motion had been filed, and

similarly declined to consider the declaration of the prosecutor, the newspaper article

regarding the 1996 dismissal, and the bail motion. The court reasoned that the section

1118.1 acquittal motion and opposition were of minimal relevance, insofar as they served

to contrast the discussion of substantial evidence with the absence of any reference to that

standard in the unfiled motion to dismiss but noted it would consider the acquittal motion

and opposition “to contrast their content with the standards articulated” in the written

decision.

On the merits, the trial court evaluated the 1996 dismissal order under Hatch. It

found that while the 1996 dismissal order did not expressly apply the substantial evidence

standard, “the minute order clearly evidenced an intent to dismiss based on the

insufficiency of the evidence.” The court emphasized that the written decision cites

Mannes v. Gillespie (9th Cir. 1992) 967 F.2d 1310 (Mannes), in which the Ninth Circuit

8

Court of Appeals held that “ ‘ “[i]nsufficient evidence” ’ ” is a term of art, the use of

which courts have found to mean—absent contrary indication—insufficient as a matter of

law. (Id. at p. 1315.) While noting the written decision does not cite Mannes for that

proposition, the court found the citation to Mannes suggests the trial court was aware of

that use of the term “ ‘insufficient evidence.’ ” The court further reasoned that insofar as

former section 1385 required the reasons for the dismissal to appear in the minute order,

it was “telling” that the minute order listed only insufficiency of the evidence. The court

rejected the district attorney’s position that the dismissal was “in furtherance of justice”

based on the written decision’s invocation of those factors, since “all dismissals under

section 1385 were required to be in the interest of justice.”

E. Writ Proceedings in this Court

Shortly after the trial court issued its dismissal order, the district attorney filed in

this court a petition for writ of mandate and request for stay of order of dismissal

(petition). The district attorney requested that this court stay the trial court’s dismissal

order and “[i]ssue an alternative writ of mandate, and thereafter a peremptory writ,

commanding respondent court to vacate its order dismissing the complaint, and enter a

new order denying [r]eal [p]arty’s motion to dismiss; [or] [¶] . . . [¶] [] any other

appropriate relief.”

This court issued a stay of the trial court’s order and requested that Woodward (as

real party in interest) file a preliminary opposition to the petition. After Woodward filed

his preliminary opposition, the district attorney filed a notice of appeal seeking appellate

review of the same dismissal order at issue in this writ proceeding. The appeal is pending

in this court (No. H051416) and currently awaits briefing.

This court subsequently issued an order to show cause why a peremptory writ

should not issue, as requested by the district attorney. In his return, Woodward contends

there is no basis for granting writ relief because the 1996 dismissal order for

“ ‘insufficient evidence’ ” indicates the trial court deemed the evidence insufficient as a

9

matter of law, barring retrial. Woodward also challenges the petition on procedural

grounds, arguing in his demurrer that the petition fails to allege specific facts showing

entitlement to relief, including because the district attorney has not alleged the absence of

a plain, speedy, and adequate remedy justifying writ review.

We analyze those objections below before turning to the merits of the petition.

II. DISCUSSION

A. Propriety of Writ Relief and Demurrer

Woodward disputes the propriety of writ review in this case. He demurs to the

petition on the ground that it fails to state a claim showing entitlement to relief by not

explicitly alleging any error in the trial court’s August 22, 2023 dismissal of the charges.

He also contends that the petition fails to allege the lack of a plain, speedy, and adequate

remedy at law.

We overrule the demurrer as to both grounds.

A proceeding in mandamus is generally subject to the rules of pleading governing

civil actions. (Chapman v. Superior Court (2005) 130 Cal.App.4th 261, 271 (Chapman),

citing Gong v. City of Fremont (1967) 250 Cal.App.2d 568, 573; Code Civ. Proc.,

§ 1109.) A petition that fails to allege specific facts showing entitlement to relief may be

subject to general demurrer. (Chapman, at p. 271.) We independently determine

whether the petition states a cause of action as a matter of law. (Jones v. Omnitrans

(2004) 125 Cal.App.4th 273, 277 (Jones).) In so doing, “[w]e give the petition a

reasonable interpretation, reading it as a whole and viewing its parts in context. We

deem to be true all material facts that were properly pled, as well as all facts that may be

inferred from those expressly alleged. [Citation.] We also accept as true all recitals of

evidentiary facts contained in exhibits attached to the petition. [Citation.] We interpret

the petition’s allegations liberally, with a view toward substantial justice between the

parties.” (Id. at pp. 277–278.)

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To be entitled to relief, the petitioner must show that the respondent has a clear,

present, and ministerial duty, and that the petitioner has a correlative right to performance

of that duty entitling him to a writ of mandate. (Kavanaugh v. West Sonoma County

Union High School Dist. (2003) 29 Cal.4th 911, 916; accord People v. Picklesimer

(2010) 48 Cal.4th 330, 340; In re Dohner (2022) 79 Cal.App.5th 590, 597.) The

petitioner also must demonstrate “no ‘plain, speedy, and adequate’ alternative remedy

exists (Code Civ. Proc., § 1086).” (Picklesimer, at p. 340.)

The district attorney’s verified petition meets these criteria. While the petition

does not explicitly aver that the respondent trial court erred, it alleges that the prosecution

opposed dismissal of the murder charge and attaches exhibits demonstrating the district

attorney’s opposition to dismissal of the charges against Woodward.

Giving the petition a reasonable interpretation, it is apparent that the district

attorney is challenging the respondent court’s dismissal order as an erroneous application

of the law. The allegations imply a duty that the trial court is obligated to perform in a

prescribed manner required by law when a given state of facts exists. (Jones, supra, 125

Cal.App.4th at p. 278.) We decline to sustain the demurrer for failure to state a claim.

(See Chapman, supra, 130 Cal.App.4th at p. 272.)

We further conclude that writ review is proper under the circumstances presented.

Typically, mandamus relief will not issue if there is “a plain, speedy, and adequate

remedy” at law. (Code Civ. Proc., § 1086.) Thus, “a judgment that is immediately

appealable is not subject to review by mandate or other extraordinary writ.” (Powers v.

City of Richmond (1995) 10 Cal.4th 85, 112.) However, an exception may arise “when

the remedy by appeal would be inadequate or the issues presented are of great public

importance and must be resolved promptly. [Citations.] A remedy by immediate direct

appeal is presumed to be adequate, and a party seeking review by extraordinary writ

bears the burden of demonstrating that appeal would not be an adequate remedy under the

particular circumstances of that case.” (Id. at p. 113.)

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“When the petitioner may immediately appeal, his remedy is considered adequate

and writ relief is precluded, unless the petitioner ‘can show some special reason why it is

rendered inadequate by the particular circumstances of his case.’ ” (Baeza v. Superior

Court (2011) 201 Cal.App.4th 1214, 1221 (Baeza).) “The adequacy of an appellate

remedy depends on the circumstances of the case, vesting a large measure of discretion in

the appellate court to grant or deny a writ.” (City of Oakland v. Superior Court (1996) 45

Cal.App.4th 740, 750.)

The district attorney acknowledges that he has a right to appeal the dismissal order

(§ 1238, subd. (a)(8)) and has, in fact, noticed an appeal after filing the writ petition.

Nevertheless, the district attorney argues the right to an appeal does not preclude writ

relief because the circumstances here warrant expedited review of the trial court’s ruling.

We agree that the factors asserted in the petition establish the inadequacy of the

remedy in the direct appeal. Specifically, the district attorney asserts there is a need to

ensure that Woodward remains subject to the court’s jurisdiction pending appellate

review of the dismissal order. Without such a retention of jurisdiction, Woodward might

be able to return to his primary place of residence outside the United States, risking a

potential delay of several years in extradition efforts to retrieve him if review were to

proceed successfully by direct appeal.5

In addition to maintaining jurisdiction over Woodward, other considerations

render the right of appeal inadequate. These include the age of the case and the risk of

5

The petition includes exhibits related to this issue and to the district attorney’s

initial request to the trial court to stay its dismissal order until the writ petition was filed.

The declaration of Mountain View Police Department sergeant and primary investigator

for the case explains that Woodward’s primary residence and business are in the

Netherlands. Woodward was arrested “opportunistically” (not based on a voluntary

surrender) on the current charge during a vacation to New York in 2022 and is currently

residing out of custody on house arrest with a GPS monitor and living in a family home

in Modesto. According to the investigator, a dismissal and discharge from the court’s

jurisdiction will enable Woodward to return to his home and work in the Netherlands,

where any future extradition process would likely take several years.

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loss of evidence (including aging witnesses) for both parties, the public’s interest and

victim’s family’s interest in the right to a speedy trial (Cal. Const., art. I, §§ 28, subds.

(b)(9), (e), 29 [providing the victim’s immediate family and the People the constitutional

right to a speedy trial]), and the interest in minimizing the duration of pretrial restraints

on Woodward. Woodward’s state and federal constitutional speedy trial rights (U.S.

Const., 6th Amend.; Cal. Const., art. I, § 15, cl. 1) attached in this case as of the time of

the 2022 refiling of the murder charge. (People v. Nelson (2008) 43 Cal.4th 1242, 1250.)

Given the seriousness of the charge and date of the crime more than 30 years ago, further

delaying adjudication of the dismissal for double jeopardy only aggravates the potential

hardship for all parties awaiting resolution, including Woodward. (See U.S. v. Marion

(1971) 404 U.S. 307, 320 (Marion).)

Woodward counters that the remedy of an appeal is not inadequate merely because

it might take longer than pursuing relief by extraordinary writ. (Duke v. Superior Court

(2017) 18 Cal.App.5th 490, 498.) Citing People v. Superior Court (Kaulick) (2013) 215

Cal.App.4th 1279, he also questions the district attorney’s assertion that maintaining

jurisdiction is provided by writ review and a stay, but not by appeal. However, Kaulick

does not assist Woodward. In that case, the appellate court determined that an appeal

would not provide a speedy and adequate remedy where the defendant “was scheduled

for imminent release” from prison. (Id. at p. 1296.) The court reasoned that even if it

stayed the matter while an appeal was pending, the matter required speedy resolution,

including because any delay in resolving an appeal would leave the defendant

unnecessarily incarcerated, contrary to his own interest as well as to the interest of the

“public fisc.” (Ibid., fn. 16.)

Similarly in this case, even assuming a mechanism to retain court jurisdiction over

Woodward pending appeal, the age of the case, risk of evidence becoming lost or

growing more stale, interest of the victim’s immediate family as well as the people of

California in obtaining a speedy trial and resolution, and interest in not prolonging

13

Woodward’s pretrial restraint and home monitoring, together confirm that a direct appeal

in the ordinary course of law would be neither speedy nor adequate. (See U.S. Const.,

6th Amend.; Cal. Const., art. I, §§ 15, cl. 1, 28, subds. (b)(9), (e), 29; Marion, supra, 404

U.S. at p. 320.) We conclude that under the unusual circumstances of this case, the

prospect of a direct and immediate appeal of the dismissal order is inadequate to serve the

interests of the parties and the public. (Baeza, supra, 201 Cal.App.4th at p. 1221.) We

overrule the demurrer and turn to the merits of the petition.

B. Standard of Review

Where the question presented is one of law on undisputed facts, we exercise de

novo review and are not bound by the findings of the trial court. (Ghirardo v. Antonioli

(1994) 8 Cal.4th 791, 799.) Deference to trial court findings of fact does not extend to

rulings on questions of law. (People v. Aldridge (1984) 35 Cal.3d 473, 477.) Just as

courts determine the meaning and effect of a judgment “according to the rules governing

the interpretation of writings generally” (Rancho Pauma Mutual Water Co. v. Yuima

Municipal Water Dist. (2015) 239 Cal.App.4th 109, 115), we apply the same principles to

our review of the 1996 dismissal order. Because the underlying facts are undisputed, our

review of the trial court’s ruling on the operation of the 1996 dismissal order is de novo.

C. Principles Governing Double Jeopardy After a Section 1385 Dismissal

The constitutional principle of double jeopardy prohibits a defendant from being

“twice put in jeopardy” for the same offense. (U.S. Const., 5th & 14th Amends.; see also

Cal. Const., art. I, § 15.) It “ ‘serves principally as a restraint on courts and

prosecutors.’ ” (People v. Fields (1996) 13 Cal.4th 289, 298.) Under both the federal

and state Constitutions, the double jeopardy clause protects against a second prosecution

for the same offense after acquittal. (United States v. Wilson (1975) 420 U.S. 332, 342–

343; Hatch, supra, 22 Cal.4th at p. 271.) In applying double jeopardy protections,

California courts take guidance from “those decisions interpreting the double jeopardy

clauses of both the United States and California Constitutions.” (Hatch, at p. 271.)

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Under both federal and California law, the double jeopardy clause precludes retrial

if a court determines the evidence at trial was insufficient to support a conviction as a

matter of law. (Hatch, supra, 22 Cal.4th at p. 271, citing Burks v. United States (1978)

437 U.S. 1, 18; People v. Pierce (1979) 24 Cal.3d 199, 210.) A determination of legal

insufficiency of the evidence—whether made at the trial or appellate level—serves as a

constitutional bar to retrial for that offense. (Hatch, at p. 272; see Hudson v. Louisiana

(1981) 450 U.S. 40, 42–43.)

On the other hand, “[w]here a court merely ‘disagrees with a jury’s resolution of

conflicting evidence and concludes that a guilty verdict is against the weight of the

evidence,’ [] a reversal or dismissal on that ground does not bar retrial.” (Hatch, supra,

22 Cal.4th at p. 272, quoting Tibbs, supra, 457 U.S. at p. 42.) The same exception

applies under California’s double jeopardy clause. “[T]he reversal of a conviction based

on a reweighing of evidence does not bar retrial under the California Constitution.”

(Hatch, at p. 272.)

A reversal based on legal insufficiency of the evidence has the same double

jeopardy effect as an acquittal “because it means that no rational factfinder could have

voted to convict the defendant.” (Tibbs, supra, 457 U.S. at p. 41.) By contrast, a

determination based on the weight of the evidence “does not mean that acquittal was the

only proper verdict.” (Id. at p. 42.) Instead, the court “sits as a ‘thirteenth juror’ and

disagrees with the jury’s resolution of the conflicting testimony.” (Ibid.) As in the case

of a deadlocked jury, a court’s disagreement about the weight of the evidence “does not

result in an acquittal barring retrial under the Double Jeopardy Clause.” (Ibid.)

The trial court dismissed Woodward’s case pursuant to section 1385. Since its

codification in 1872, section 1385 has authorized California courts to dismiss actions in

furtherance of justice. (§ 1385(a); People v. Bonnetta (2009) 46 Cal.4th 143, 149.)

The trial court’s authority under section 1385 is “broad” but not “absolute.”

(People v. Orin (1975) 13 Cal.3d 937, 945 (Orin).) It is “limited by the amorphous

15

concept which requires that the dismissal be ‘in furtherance of justice.’ As the

Legislature has provided no statutory definition of this expression, appellate courts have

been faced with the task of establishing the boundaries of the judicial power conferred by

the statute as cases have arisen challenging its exercise. . . . [¶] From the case law,

several general principles emerge. Paramount among them is the rule ‘that the language

of that section, “furtherance of justice,” requires consideration both of the constitutional

rights of the defendant, and the interests of society represented by the People, in

determining whether there should be a dismissal.’ ” (Id. at p. 945, italics omitted.)

As our Supreme Court has observed, “section 1385 dismissals often are not based

on the insufficiency of the evidence as a matter of law.” (Hatch, supra, 22 Cal.4th at

p. 273.)6 Nevertheless, trial courts may acquit pursuant to section 1385 for legal

insufficiency of the evidence. (Ibid.) Because dismissals under section 1385 are “often

[] not based” on insufficiency of the evidence, but sometimes are, courts reviewing such

dismissals for double jeopardy purposes much determine whether to construe the

dismissal as an acquittal. (Ibid.)

The leading case in California for determining when the exercise of the broad

dismissal authority under section 1385 triggers application of the double jeopardy bar is

Hatch, supra, 22 Cal.4th 260. Hatch explained that because section 1385 dismissals are

often based on factors other than insufficiency of the evidence, they “should not be

construed as an acquittal for legal insufficiency unless the record clearly indicates the

trial court applied the substantial evidence standard. Specifically, the record must show

that the court viewed the evidence in the light most favorable to the prosecution and

concluded that no reasonable trier of fact could find guilt beyond a reasonable doubt.”

6

This feature distinguishes a dismissal pursuant to section 1385 from the Georgia

statutory scheme examined by the United States Supreme Court in McElrath v. Georgia

(2024) 601 U.S. ___ [144 S.Ct. 651]), which constituted a “verdict of acquittal under

state law” and therefore engaged the double jeopardy bar. (Id. at p. 659.)

16

(Id. at p. 273, fn. omitted.) The court further reasoned that “[a]bsent such a showing, we

will assume the court did not intend to dismiss for legal insufficiency and foreclose

reprosecution.” (Ibid.)

Under Hatch, the distinction between a decision based on legal insufficiency of

the evidence and one based on a reweighing of the evidence (or other factors applicable

to a section 1385 dismissal), lies in the application of the substantial evidence standard.

A court “must apply the substantial evidence standard when making” a determination of

legal insufficiency. (Hatch, supra, 22 Cal.4th at p. 272.) Under this standard, courts

“must review ‘the whole record in the light most favorable to the judgment’ and decide

‘whether it discloses substantial evidence . . . such that a reasonable trier of fact could

find the defendant guilty beyond a reasonable doubt.’ ” (Ibid.) “ ‘[T]he relevant question

is whether, after viewing the evidence in the light most favorable to the prosecution, any

rational trier of fact could have found the essential elements of the crime beyond a

reasonable doubt.’ ” (Ibid.)

At the same time, the court in Hatch cautioned that it did “not intend to impose

rigid limitations on the language trial courts may use to dismiss for legal insufficiency of

the evidence pursuant to section 1385.” (Hatch, supra, 22 Cal.4th at p. 273.) Instead, it

offered the following guidance: “[C]ourts need not restate the substantial evidence

standard or use certain ‘magic words’ whenever they determine that the evidence is

insufficient as a matter of law” but should “make their rulings clear enough for reviewing

courts to confidently conclude they viewed the evidence in the light most favorable to the

prosecution and found that no reasonable trier of fact could convict.” (Ibid.)

The court in Hatch explained that by construing a section 1385 dismissal as an

acquittal for legal insufficiency only when the record clearly indicates the trial court

applied the substantial evidence standard, the reviewing court “properly balances the

competing interests embodied in the constitutional prohibitions against double jeopardy.”

(Hatch, supra, 22 Cal.4th at p. 273.) This balance, on the one hand, seeks to ensure

17

against “repeated prosecutions [which] unfairly burden a defendant and increase the risk

of conviction through sheer perseverance” (ibid.), while on the other hand acknowledging

“the ‘important public interest in finally determining whether [a defendant] committed’

an offense.” (Id. at p. 274.) The court concluded that “barring retrial only when a trial

court clearly makes a finding of legal insufficiency” enables courts to abide by these

governing principles. (Ibid.)

Applying its rule to the facts of the case, the court in Hatch concluded retrial was

permitted because the record did “not clearly show an intent by the trial court to dismiss

for legal insufficiency of the evidence.” (Hatch, supra, 22 Cal.4th at p. 274.) Among the

factors the high court considered, it noted the trial court’s minute order “merely states

that ‘no reasonable jury would convict . . . based on the evidence presented in court.’ ”

(Ibid.) It observed that the language of the minute order did not indicate the court had

viewed the evidence in the light most favorable to the prosecution, especially given that

its “use of the word ‘would’ rather than ‘could’ suggests a reweighing of evidence rather

than an application of the substantial evidence standard.” (Ibid.) The court stated it was

“impossible” considering these “ambiguities” to conclude the trial court intended to

dismiss for lack of sufficient evidence as a matter of law. (Ibid.)

The Hatch court found further support for its interpretation of the minute order in

the reporter’s transcript, which gave no indication that the trial court had viewed the

evidence in the light most favorable to the prosecution. (Hatch, supra, 22 Cal.4th at

p. 274.) Instead, it viewed the court’s inquiries about additional evidence, its remarks on

the quality of the trial presentations and the apparent pro-prosecution bent of the jury (id.

at pp. 274–275), and its comments on the improbability of a unanimous verdict of guilt,

as “an assessment of the strength of the evidence.” (Id. at p. 275.) The court in Hatch

thus declined to construe the section 1385 dismissal as an acquittal for double jeopardy

purposes. (Ibid.)

18

D. The 1996 Dismissal Order Does Not Bar Retrial of the Murder Charge

Applying the rule of Hatch to the 1996 dismissal order, we conclude the record

does not clearly indicate that the trial court applied the substantial evidence standard,

viewing the evidence in the light most favorable to the prosecution, in dismissing the

case. We recognize the consequences of this determination are significant. Nevertheless,

we believe construing the 1996 dismissal order as an acquittal would be inconsistent with

Hatch. That decision provides that, unless the record clearly indicates the court applied

the substantial evidence standard in deciding the evidence was legally insufficient to

prove guilt beyond a reasonable doubt, “we will assume the court did not intend to

dismiss for legal insufficiency and foreclose reprosecution.” (Hatch, supra, 22 Cal.4th at

p. 273.)

Woodward contends that the respondent trial court correctly concluded the minute

order was clear and unambiguous in stating that the reason for the 1996 dismissal was

insufficiency of the evidence. He argues that the minute order’s use of the term

insufficient evidence is significant because, at the time the court issued the 1996

dismissal order, former section 1385 required the reasons for dismissal to be set forth in

the minute order.7

Woodward points out that the trial court both quoted the statute in its written

decision and cited extensively to People v. Andrade (1978) 86 Cal.App.3d 963

(Andrade), which devotes an entire section of the opinion to the requirement that the

reasons for a section 1385 dismissal must be set forth in the minutes. (Id. at p. 975.)

Because the trial court knew the law and included only one reason for dismissal in the

minute order—that of insufficient evidence—Woodward asserts the use of the term

7

The current language of section 1385 requires “[t]he reasons for the dismissal

[to] be stated orally on the record.” (§ 1385(a).) However, former section 1385 in effect

at the time of the 1996 dismissal order, as well as when the Supreme Court decided

Hatch, required “[t]he reasons for the dismissal [to] be set forth in an order entered upon

the minutes.” (Former § 1385(a); see Hatch, supra, 22 Cal.4th at p. 274.)

19

“insufficient evidence” controls. Even if the minute order is construed as a shorthand

reference to the reasons for dismissal stated in the written decision, Woodward points out

that the written decision similarly cites “ ‘insufficiency of the evidence’ ” as the basis for

the dismissal. Furthermore, because the written decision also cites the Ninth Circuit’s

decision in Mannes, in which the Ninth Circuit Court of Appeals construed “insufficient

evidence” as a term of art meaning insufficient as a matter of law, Woodward argues the

trial court used the term with that same intended meaning, barring retrial.

The district attorney counters that Woodward places improper weight and

significance on the minute order over that of the written decision. He argues that despite

both sides’ agreement that Hatch does not require that a court use specific language to

engage the bar on retrial, Woodward attempts to place just such significance on the trial

court’s use of the term “insufficient evidence.” The district attorney contends that

because there is no clear indication in the 1996 dismissal order that the trial court viewed

the evidence in the light most favorable to the prosecution and found the evidence legally

insufficient, the 1996 dismissal order is ambiguous and may not be construed as an

acquittal.

We agree with the district attorney that the 1996 dismissal order may not be

construed solely based on the minute order or on a presumed understanding of the trial

court’s intended meaning for its use of the term “insufficient evidence.” Instead, in

construing the 1996 dismissal order, we will review the entire available record of the

court’s decision, including the minute order and written decision, considering the

language of former section 1385, contemporaneous case authority on dismissals “in

furtherance of justice,” and the Supreme Court’s guidance in Hatch.

Former section 1385 frames the 1996 dismissal order. The minute order states

that the dismissal is “pursuant to Penal Code [s]ection 1385,” and the written decision

quotes subdivision (a) of former section 1385 and discusses the statutory requirements for

a section 1385 dismissal according to contemporaneous case authority. Former section

20

1385 states, “The judge or magistrate may, either of his or her own motion or upon the

application of the prosecuting attorney, and in furtherance of justice, order an action to be

dismissed. The reasons for the dismissal must be set forth in an order entered upon the

minutes.”

The trial court undoubtedly understood the requirement that it set forth the reasons

for dismissal in the minute order. In Orin, supra,13 Cal.3d 937, the California Supreme

Court reiterated it was “settled law” that the requirement under former section 1385(a) to

set forth the reasons for dismissal in the minute order was “mandatory and not merely

directory,” (Orin, at p. 944) and that the failure to do so was enough to invalidate the

dismissal. (Id. at p. 945.) The high court explained the purpose of the mandatory

requirement was to insure against “ ‘improper or corrupt’ ” dismissals and “to impose a

purposeful restraint upon the exercise of judicial power.” (Id. at p. 944.) The court in

Orin thus rejected the trial court’s purported exercise of authority under former section

1385, where the trial court had “merely check[ed] a box” on a printed form and neither

specified any reasons to justify its dismissal of the charges nor provided any statement

“which by clear incorporation or reference” could be deemed to be the reasons set forth

in a minute order. (Ibid.)

Here, the trial court not only specified in the minute order that it had “read[] the

written decision into the record” but also expressly directed the concurrent filing of the

written decision. The minute order couched the reason stated for dismissal in terms of its

reading the written decision into the record: “The [c]ourt reads the written decision into

the record dismissing this case pursuant to Penal Code [s]ection 1385 based on

insufficient evidence.” This language suggests an intent to include in the minute order, or

incorporate by reference, the more detailed written decision. (See Orin, supra, 13 Cal.3d

at p. 944.)

A contrary interpretation of the record would artificially limit this court’s

understanding of the basis for the 1996 dismissal order to the sparse statement in the

21

minute order, contrary to the language of the minute order itself. Such a restrictive

approach would be inconsistent with the California Supreme Court’s analysis in Hatch,

which considered the reporter’s transcript in relation to the minute order under review

and found the transcript bolstered its conclusion. (Hatch, supra, 22 Cal.4th at pp. 274–

275; see also People v. Salgado (2001) 88 Cal.App.4th 5, 10 (Salgado) [citing trial

court’s minute order based on insufficient evidence as well as its repeated reference to

“insufficient evidence” during the hearings]; Andrade, supra, 86 Cal.App.3d at p. 975

[noting “[m]inutes have been interpreted to include a filed and signed written

memorandum opinion intended to be and in fact filed as part of the court minutes”].)

As in Hatch, the written decision in this case is not inconsistent with the minute

order and does not require an attempt to reconcile the minutes with contradictory

statements elsewhere in the record. (Cf. People v. Smith (1983) 33 Cal.3d 596, 599

[rejecting a mechanical rule and seeking to harmonize, if possible, discrepancies between

the minute order and reporter’s transcript].) It is therefore appropriate to consider both

the language of the minute order and the concurrently filed written decision in construing

the 1996 dismissal order.8

Together, the minute order and written decision reflect the trial court’s analysis of

the factors relevant to a section 1385 dismissal and its determination that a dismissal of

the case against Woodward would be “ ‘in the furtherance of justice for insufficiency of

8

We decline to consider the other documents submitted by the district attorney in

support of its opposition to Woodward’s motion to dismiss the refiled charge on double

jeopardy grounds. These include the unfiled copy of the defense “motion to dismiss after

deadlocked jury,” the declaration of the prosecutor regarding his recollections of the trial

court’s statements to counsel at the dismissal hearing, and the news article referring to

statements of the prosecutor and defense counsel after the 1996 dismissal. We agree with

Woodward that the district attorney has forfeited any argument that this evidence should

be considered by having failed to allege error in its writ petition based on the trial court’s

ruling that it would not consider these documents. We likewise decline to consider

Woodward’s motion to set bail in response to the refiling of charges as irrelevant to the

interpretation of the prior dismissal.

22

the evidence.’ ” The parties dispute the extent to which these aspects of the trial court’s

decision define the nature of its dismissal order by rendering it an acquittal based on legal

insufficiency of the evidence or a dismissal in the furtherance of justice.

However, these options are not mutually exclusive. As the California Supreme

Court explained in Hatch, “trial courts historically have had the power to acquit for legal

insufficiency of the evidence pursuant to section 1385.” (Hatch, supra, 22 Cal.4th at

p. 268.) The power to acquit for legal insufficiency of the evidence does not depend on

the stage of the case (i.e., before submission to the jury under § 1118.1, or after

submission to the jury under § 1385) or on the “ ‘the form of the judge’s action.’ ” (Id. at

p. 270.) Rather, it depends on “ ‘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.’ ” (Ibid., quoting United States v. Martin Linen Supply Co. (1977)

430 U.S. 564, 571.) Thus, neither the trial court’s identification of insufficient evidence

as the reason for the 1996 dismissal order, nor the court’s analysis of various “interest of

justice” factors relevant to a section 1385 dismissal, is determinative unless the record

demonstrates the court intended to exercise its power to acquit. Hatch is unambiguous on

this point: while the trial court has the power to dismiss for insufficient evidence as a

matter of law pursuant to section 1385, the reviewing court “will not construe its

dismissal as an acquittal for double jeopardy purposes absent clear evidence the court

intended to exercise this power.” (Hatch, supra, 22 Cal.4th at p. 271.)

Woodward contends the dismissal meets the standard for acquittal under Hatch

because the minute order and written decision expressly cite “insufficiency of the

evidence” as the basis for the dismissal. He argues that because all dismissals under

section 1385 must be in furtherance of justice, the trial court’s discussion of factors

relevant to that determination, based on cases like Andrade and People v. Bracey (1994)

21 Cal.App.4th 1532 (Bracey), demonstrates compliance with former section 1385 but

23

does not indicate the court meant the dismissal for insufficient evidence “to actually be

for some other reason not stated in the minutes.”

This argument overlooks several critical points elucidated in Hatch, particularly its

articulation of the default presumption. The default presumption, absent clear evidence

to the contrary, is that a dismissal pursuant to section 1385 is not based on application of

the substantial evidence standard. (Hatch, supra, 22 Cal.4th at p. 273 [“Because section

1385 dismissals often are not based on the insufficiency of the evidence as a matter of

law, we believe these dismissals should not be construed as an acquittal for legal

insufficiency unless the record clearly indicates the trial court applied the substantial

evidence standard.”].) Further, that courts “need not restate the substantial evidence

standard or use certain ‘magic words’ whenever they determine that the evidence is

insufficient as a matter of law” (ibid.) does not change the underlying requirement that,

for purposes of an acquittal, the dismissal must be based on the application of that

standard. The ruling must be “clear enough for reviewing courts to confidently conclude

[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.) Moreover, not all dismissals

based on an evaluation of the evidence engage the double jeopardy bar. Hatch contrasts

the distinction between a ruling based on legal insufficiency of the evidence that is

functionally equivalent to an acquittal with a dismissal based on a reweighing of the

evidence or other justice-related factors that do not preclude retrial. (Id. at p. 272.)

Applying these points to the 1996 dismissal order, we observe that although the

trial court articulated “insufficient evidence” as the primary basis for its dismissal in

furtherance of justice under section 1385, the record does not “clearly indicate[]” that the

court applied the substantial evidence standard to conclude the evidence was insufficient

as a matter of law to support a conviction. (Hatch, supra, 22 Cal.4th at p. 273.) Further,

there is no indication the trial court viewed the evidence in the light most favorable to the

prosecution. On the contrary, the court’s reasoning suggests it independently assessed

24

the strength and weight of the evidence and deemed the available evidence insufficient to

justify retrying Woodward given the relevant interest of justice factors.

Citing Bracey and Andrade, the trial court framed its analysis of the case against

Woodward in terms of the requirements and relevant considerations for a dismissal in

furtherance of justice under former section 1385. In Bracey, the court defined a dismissal

“ ‘in furtherance of justice’ ” as requiring “consideration of the constitutional rights of the

defendant and the interests of society represented by the People.” (Bracey, supra, 21

Cal.App.4th at p. 1541; see Orin, supra, 13 Cal.3d at p. 945.) In Andrade, the court listed

factors relevant to this consideration, including the weight of the evidence indicative of

guilt or innocence, the nature of the crime involved, whether the defendant is or has been

incarcerated awaiting trial and length of incarceration, the possibility of harassment, the

likelihood of new or additional evidence at trial, and the effect on public safety if the

defendant should actually be guilty. (Andrade, supra, 86 Cal.App.3d at pp. 976–977.)

The trial court used the framework of these decisions to compare the public

interest in providing the prosecution with a full and fair opportunity to convict

Woodward against the likelihood of the prosecution obtaining a conviction in the absence

of new evidence. It considered that having had two opportunities to convict Woodward,

the prosecution in both instances “has been unable to prove the defendant guilty beyond a

reasonable doubt” and had produced hung juries “with the majority of jurors voting for

acquittal.” The court linked these results to the “lack of quality” evidence and observed

that despite the volume of evidence presented by the prosecution, its “substantive quality

. . . did not lend itself to proving the prosecution’s contentions.”

Specifically, the trial court viewed the hair and fingerprint evidence as

“insufficient to convict [Woodward] of murder” because the fingerprints were found on

only the outside of the car and “lack[ed] the evidentiary strength usually attributable” to

that evidence, while the prosecution could not “conclusively show” the hair found in the

victim’s car was Woodward’s. The court reasoned that “[a]bsent more compelling

25

evidence that places the defendant in the car at the time of the murder, the hair evidence

taken together with the fingerprint evidence is insufficient to convict [Woodward] of

murder.” The court cited other weaknesses in the prosecution’s evidence, including the

prosecutor’s struggle to “cast any doubt on [Woodward]’s veracity” after his testimony in

the second trial, and found the theory that Woodward killed Houts out of jealousy was

“not [] credible” given there was insufficient proof of jealousy so great that it would have

led Woodward to kill Houts.

Following its assessment of the evidence, the trial court identified other factors

that supported a dismissal in furtherance of justice. The court explained, citing Tibbs,

that dismissal would “further the interests of justice by preventing the prosecution from

honing its trial strategies and perfecting its presentation of the evidence” and thus “create

a risk of conviction through sheer governmental perseverance.” It noted that “[a]nother

trial would only serve to harass [Woodward]” and found it “reasonable to believe that

society will not be endangered by this decision.” The court concluded its explanation by

stating, “There is simply a lack of evidence on which to convict the defendant. Without

new evidence, the result of this case will be the same at each successive trial. Due to the

lack of evidence in this case, a jury will never be able to reach a unanimous verdict of

guilty. It appears that justice would best be served if the charges were dismissed. [¶] It

is therefore the order of this [c]ourt that the case be dismissed in the furtherance of justice

for insufficiency of the evidence.”

The trial court’s discussion of the evidence bears comparison to Hatch, which

involved a dismissal under former section 1385 after several days of jury deliberations

resulted in a deadlock on all counts. (Hatch, supra, 22 Cal.4th at p. 266.) The trial court

in Hatch stated in dismissing the case that “ ‘there is no reason to believe another jury

would reach a verdict in this case one way or the other’ ” and “ ‘[t]he court finds that no

reasonable jury would convict the defendant of the charges alleged in the information

based on the evidence presented in court.’ ” (Ibid.) The minute order stated that “ ‘no

26

reasonable jury would convict the defendant of the charges alleged in the information

based on the evidence presented in court.’ ” (Ibid.) In reviewing both the minute order

and reporter’s transcript of the section 1385 dismissal, the high court found no indication

that the trial court had viewed the evidence in the light most favorable to the prosecution

and thus intended to dismiss for lack of sufficient evidence as a matter of law. (Id. at

p. 274.)

The trial court’s findings in the 1996 dismissal order that “the result of this case

will be the same at each successive trial” and “[d]ue to the lack of evidence . . ., a jury

will never be able to reach a unanimous verdict of guilty” are comparable to those

statements assessed by the California Supreme Court in Hatch as not implicating the bar

on successive prosecution. Like in Hatch, the trial court considered and weighed the

evidence presented and concluded it was insufficient to support a unanimous verdict.

The trial court’s assessment of the substantive quality of the evidence and likelihood that

a jury would be able to convict Woodward in the absence of new evidence “suggests a

reweighing of evidence rather than an application of the substantial evidence standard.”

(Hatch, supra, 22 Cal.4th at p. 274.)

Indeed, in the absence of any indication in the minute order or reporter’s transcript

that the trial court in Hatch had applied the substantial evidence standard, the California

Supreme Court characterized the court’s “inquiries about additional evidence and . . .

remarks on the quality of the trial presentations” (Hatch, supra, 22 Cal.4th at p. 274) as

“an assessment of the strength of the evidence.” (Id. at p. 275.) The Supreme Court also

rejected an argument that the trial court’s “comments on the improbability of an

unanimous verdict of guilt” (id. at p. 275) supplied the requisite standard for a finding of

legal insufficiency of the evidence, since “the mere likelihood of disagreement among

rational men ‘is not in itself equivalent to a failure of proof by the State.’ ” (Ibid.; see

also Tibbs, supra, 457 U.S. at p. 42, fn. 17.)

27

So, too, in this case the trial court’s determination that “a jury will never be able to

reach a unanimous verdict of guilty” does not imply that no reasonable trier of fact could

find the defendant guilty beyond a reasonable doubt. Rather, it suggests the trial court

believed that retrial would likely produce yet another non-unanimous result. It further

explains the court’s finding that “[t]he prosecution has not met its burden of proof in two

trials and absent new evidence it will be unable to do so in subsequent trials. Another

trial would only serve to harass [Woodward].” In addition, nowhere does the decision

state that the trial court viewed the evidence in the light most favorable to the

prosecution—a critical consideration articulated in Hatch.

Woodward contends the 1996 dismissal order is distinguishable from Hatch

because it specifically identifies “ ‘insufficient evidence’ ” as the basis for dismissal. By

contrast, the dismissal order in Hatch did not use the term “ ‘insufficient evidence’ ”—a

fact noted by the California Supreme Court in addressing whether the Ninth Circuit’s

holding in Mannes would alter the high court’s double jeopardy analysis. (Hatch, supra,

22 Cal.4th at p. 276.) Woodward argues Mannes is germane because, unlike Hatch, it

specifically addresses use of the term “ ‘insufficient evidence’ ” in context of a section

1385 dismissal. He maintains that by citing to Mannes in its written decision, the trial

court in this case implicitly adopted its holding and used the term “ ‘insufficient

evidence’ ” knowing it was a term of art that functioned as an acquittal.

Woodward further points out that courts since Mannes have treated the phrase as a

term of art with an established meaning. (See People v. Hampton (2022) 74 Cal.App.5th

1092, 1105 (Hampton) [noting that while there are no “ ‘magic words’ ” to establish legal

insufficiency, there appears to be no published case wherein a court dismissed for

“ ‘insufficient evidence’ ” and the dismissal was not found to operate as an acquittal]; see

also People v. Pedroza (2014) 231 Cal.App.4th 635, 646 (Pedroza) [affirming double

jeopardy bar where trial court explicitly stated it found the evidence insufficient as a

matter of law and had not ruled as a 13th juror]; Salgado, supra, 88 Cal.App.4th at p. 10

28

[concluding the trial court applied substantial evidence standard in finding (albeit

incorrectly) there was “ ‘not legally sufficient evidence to support a conviction for the

carjacking’ ” and “ ‘really no evidence to’ ” establish aiding and abetting the

carjacking].)

Although we recognize the force of these arguments, we decide that Mannes is not

dispositive here. California courts are not bound by decisions of the lower federal courts,

even on federal questions. (People v. Avena (1996) 13 Cal.4th 394, 431.) Although the

California Supreme Court in Hatch recognized the Ninth Circuit’s holding in Mannes, it

distinguished it as inapplicable and did not opine on its reasoning. (Hatch, supra, 22

Cal.4th at p. 276.) Because Hatch did not directly address whether a trial court’s

dismissal for insufficient evidence, in the absence of contrary indication, necessarily

implies application of the substantial evidence standard, we are not bound to follow the

reasoning of Mannes. Nevertheless, we do not view Hatch and Mannes as entirely

irreconcilable under the circumstances of this case.

In Mannes, the trial court dismissed murder charges pursuant to section 1385 after

a mistrial. (Mannes, supra, 967 F.2d at p. 1312.) The trial court based the dismissal on

“insufficient evidence” of certain elements of the charges (such as that the defendant

acted with “ ‘implied malice,’ ” and that she was aware at the time of driving drunk that

her act carried a high probability of death to herself or others). (Id. at p. 1314.) In

concluding the dismissal was an acquittal for purposes of double jeopardy, the Ninth

Circuit noted there was no indication the trial judge had resolved questions of credibility

and rejected the argument that the dismissal was based on “ ‘weight,’ ” rather than

“ ‘sufficiency’ ” of the evidence. (Id. at p. 1315.) It explained that “ ‘insufficient

evidence’ is a term of art” that—absent clear indication to the contrary—means “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.’ ” (Ibid.)

29

The presumption articulated in Mannes differs from our Supreme Court’s direction

to not presume application of the substantial evidence standard unless the dismissal under

section 1385 clearly evidences an intent by the trial court to dismiss for legal

insufficiency of the evidence. (Hatch, supra, 22 Cal.4th at p. 273.) We are, of course,

bound by the standard articulated by our Supreme Court. (People v. Perez (2020) 9

Cal.5th 1, 13.) Applying the Hatch rule, we decline to impute application of the

substantial evidence standard into the trial court’s dismissal decision based solely on the

presumption that it employed “ ‘insufficient evidence’ ” as a term of art. (Hatch, at

p. 276.)

Furthermore, the 1996 dismissal order contains indication to the contrary,

including language pertaining to the “weight” of the evidence, the likelihood of new

evidence at trial, the possibility of harassment, and the effect on public safety if the

charges are dismissed. (See Andrade, supra, 86 Cal.App.3d at pp. 976–977.) Because

Mannes treated “ ‘insufficient evidence’ ” as a term of art only in the absence of contrary

indication (Mannes, supra, 967 F.2d at p. 1315), it appears consistent with both cases to

refrain from assuming application of the term of art here. In this context, the variety of

considerations that factored into the 1996 dismissal order, including the trial court’s

examination of factors not relevant to a dismissal for legal insufficiency of the evidence,

inject ambiguity into the record as to the intended basis for the section 1385 dismissal.

Notwithstanding the court’s use of the term insufficient evidence, these “ambiguities” in

the 1996 dismissal order provide “clear indication to the contrary” (Mannes, at p. 1315)

and “make it impossible for us to conclude that the court intended to dismiss for lack of

sufficient evidence as a matter of law.” (Hatch, supra, 22 Cal.4th at p. 274.)

This outcome is also consistent with other decisions cited by Woodward, including

Hampton, Pedroza, and Salgado. In Hampton, like in Mannes, there was nothing in the

record to suggest a contrary indication for the meaning attributable to the court’s use of

the term insufficient evidence. The record simply showed that the trial court dismissed

30

the robbery-murder special-circumstance allegation for “insufficient evidence” on the

prosecutor’s request after the jury convicted the defendant for first degree murder and

robbery but could not reach a verdict as to the allegation. (Hampton, supra, 74

Cal.App.5th at pp. 1096, 1097.) The same is true for Pedroza and Salgado. Both cases

involved express findings of legal insufficiency, with the trial court in Pedroza going so

far as to reject the prosecutor’s argument that it “sat as a 13th juror when ruling on the

new trial motion” and explaining its conclusion that it found “there was insufficient

corroboration as a matter of law” and retrial was barred under United States Supreme

Court precedent. (Pedroza, supra, 231 Cal.App.4th at p. 643.)

Nor are we persuaded that the trial court’s citation of the United States Supreme

Court’s decision in Tibbs indicates the section 1385 dismissal was for legal insufficiency

of evidence based on application of the substantial evidence standard. The written

decision cites Tibbs as support for the trial court’s decision that dismissing the murder

charge would further the interests of justice by preventing successive attempts at

conviction and risking “conviction through sheer governmental perseverance.” (Tibbs,

supra, 457 U.S. at p. 41.) While it is true that the passages of the opinion cited by the

trial court come under the United States Supreme Court’s discussion of double jeopardy

and the principle that the prosecution cannot be afforded “ ‘another opportunity to supply

evidence which it failed to muster in the first proceeding’ ” (ibid.), the trial court’s

written decision mentions only those passages in Tibbs that discuss the risks of repeated

prosecution. These references equally support a decision based on furthering the interests

of justice, since “the possible harassment and burdens imposed upon the defendant by a

retrial” is among the factors in furtherance of justice that courts consider under section

1385. (Orin, supra, 13 Cal.3d at p. 946; see Andrade, supra, 86 Cal.App.3d at p. 977.)

Indeed, Hatch specifically recognized the relevance of this factor to a section 1385

dismissal. (Hatch, supra, 22 Cal.4th at p. 273.)

31

We decide that the 1996 dismissal order does not satisfy the rule articulated in

Hatch for construing a section 1385 dismissal as an acquittal based on a finding of

insufficient evidence as a matter of law. The reasons for the dismissal as set forth in the

trial court’s minute order and written decision suggest the court found insufficient

evidence to reach a unanimous verdict and justify retrial under section 1385’s broad

standard for dismissal, based on factors including the poor quality of evidence,

unlikelihood that new evidence would be presented at another trial, risk of wearing down

Woodward through repeated prosecutions, and harassment of Woodward. There is no

clear indication in the record that the trial court viewed the evidence in the light most

favorable to the prosecution and concluded that no rational trier of fact could have found

the defendant guilty beyond a reasonable doubt. (Hatch, supra, 22 Cal.4th at p. 273.)

We therefore cannot construe the section 1385 dismissal order as an acquittal. We

conclude the constitutional protection against double jeopardy does not bar the refiling of

the murder charge against Woodward.

III. DISPOSITION

Let a peremptory writ of mandate issue directing respondent superior court to

vacate its August 22, 2023 order granting the motion to dismiss on double jeopardy

grounds and to enter a new order denying the motion. Upon issuance of the remittitur,

this court’s stay order is vacated.

32

______________________________________

Danner, Acting P. J.

I CONCUR:

____________________________________

Bromberg, J.

H051311

People v. Superior Court (Woodward)

Lie, J., Concurring:

I join the court in its application of People v. Hatch (2000) 22 Cal.4th 260

(Hatch). Our adherence to Hatch is compelled by Auto Equity Sales, Inc. v. Superior

Court (1962) 57 Cal. 2d 450. The California Supreme Court has observed that on

questions of federal law, however, a state high court “operate[s] as an intermediate court

and not as a court of last resort.” (People v. Lopez (2019) 8 Cal.5th 353, 366 (Lopez).)

“ ‘When emergent [United States] Supreme Court case law calls into question a prior

opinion of [a state] court, that court should pause to consider its likely significance before

giving effect to [its] earlier decision.’ [Citation.] This is so even when the high court’s

decision does not directly address the continuing validity of the [state court’s] rule . . .;

the high court’s guidance may nonetheless erode the analytical foundations of the old rule

or make clear that the rule is substantially out of step with the broader body of relevant

federal law.” (Id. at pp. 366–367.) I write separately to explain my concern that

decisions of the United States Supreme Court have eroded the analytical foundations of

the rule announced in Hatch.

As Justice Ketanji Brown Jackson wrote this term for a unanimous United States

Supreme Court, “it is well established that whether an acquittal has occurred for purposes

of the [Fifth Amendment’s] Double Jeopardy Clause is a question of federal, not state,

law.” (McElrath v. Georgia (2024) 601 U.S. ___ [144 S.Ct. 651, 659] (McElrath).) For

double jeopardy purposes, federal law has long defined an acquittal broadly. (Evans v.

Michigan (2013) 568 U.S. 313, 318 (Evans); see id. at p. 320 [holding that defendant was

acquitted by the trial court’s “determination that the State had failed to prove its case,”

despite errors of law informing the directed verdict].) When the state has failed its

“ ‘ “one complete opportunity to convict” ’ ” (Sattazahn v. Pennsylvania (2003) 537 U.S.

101, 115), “an ‘acquittal’ includes ‘a ruling . . . that the evidence is insufficient to

convict,’ a ‘factual finding [that] necessarily establish[es] the criminal defendant’s lack of

criminal culpability,’ and any other ‘rulin[g] which relate[s] to the ultimate question of

guilt or innocence’ ” (Evans, at p. 319, italics added, quoting United States v. Scott

(1978) 437 U.S. 82, 98, fn. 11 (Scott).) “These sorts of substantive rulings stand apart

from procedural rulings that may also terminate a case midtrial.” (Evans, at p. 319.)

“[T]he relevant distinction is between judicial determinations that go to ‘the criminal

defendant’s lack of criminal culpability,’ ” which bar retrial, “and those that hold ‘that a

defendant, although criminally culpable, may not be punished because of a supposed’

procedural error,” which do not. (Id. at pp. 323–324.) “Culpability (i.e., the ‘ultimate

question of guilt or innocence’) is the touchstone . . . .” (Id. at p. 324.) Even the lone

dissenter in Evans agreed that “the Court’s ‘double-jeopardy cases have consistently’

defined an acquittal as a decision that ‘ “actually represents a resolution, correct or not, of

some or all of the factual elements of the offense charged.” ’ ” (Id. at p. 336 (dis. opn. of

Alito, J.).) Notably absent from the breadth of the constitutional definition of “acquittal”

is any requirement that the court making the ruling find the evidence insufficient as a

matter of law, drawing all inferences in favor of the prosecution.

Under controlling federal law, it is immaterial that the trial court’s evaluation of

the evidence here was a dismissal “in the interest of justice” under Penal Code

section 13851 and not a directed verdict under section 1118.1. “ ‘[L]abels’—including

those provided by state law—‘do not control our analysis . . . .’ [Citation.] Thus, it is not

dispositive whether a factfinder ‘incanted the word “acquit” ’; instead, an acquittal has

occurred if the factfinder ‘acted on its view that the prosecution had failed to prove its

case.’ ” (McElrath, supra, 601 U.S. at p. ___ [144 S.Ct. at p. 660], quoting Evans, supra,

568 U.S. at pp. 322, 325; see also United States v. Sisson (1970) 399 U.S. 267, 270, 288

(Sisson) [treating “arrest of judgment” as an acquittal because “bottomed on factual

conclusions . . . made on the basis of evidence adduced at the trial”].)

1

Undesignated statutory references are to the Penal Code.

2

It is also immaterial—given the jury’s inability here to return a guilty verdict—

that the trial court did not rule that the evidence was insufficient as a matter of law. A

final judicial determination that the evidence was insufficient as a matter of law is of

course sufficient to constitute an acquittal. (See, e.g., Sisson, supra, 399 U.S. 267

[dismissing appeal for lack of jurisdiction, where trial court’s arrest of judgment after

jury’s guilty verdict was in essence a directed acquittal based on the trial evidence].) It

does not follow, however, that a determination of legal insufficiency is constitutionally

necessary to an acquittal.2 Only after a conviction has the United States Supreme Court

conditioned the Double Jeopardy bar on a judicial determination that the evidence was

“legally insufficient.” (See Tibbs v. Florida (1982) 457 U.S. 31, 45–47 (Tibbs) [holding

that reversal of a conviction based on a reviewing court’s disagreement with the jury’s

weighing of the evidence does not bar retrial under the Double Jeopardy Clause unless

the evidence were insufficient as a matter of law].)

Against this backdrop, the Hatch court understood that it was announcing a new

rule—reflecting the court’s “belie[f] [that section 1385] dismissals should not be

construed” to foreclose retrial “unless the record clearly indicates that the trial court

applied the substantial evidence standard” and its “proper[] balanc[ing of] the competing

interests embodied in the constitutional prohibitions against double jeopardy.” (Hatch,

supra, 22 Cal.4th at p. 273.) The innovation of Hatch was to presumptively authorize

2

A number of United States Supreme Court precedents examining district court

rulings under rule 29 of the Federal Rules of Criminal Procedure naturally address the

district court’s application of rule 29’s legal insufficiency standard. But this is a matter

of federal rule and not constitutional doctrine, the Federal Rules of Criminal Procedure

having no equivalent to section 1385. California courts, on the other hand, are at once

obligated (like federal district courts under rule 29) to direct a verdict of acquittal when

the evidence is insufficient as a matter of law (§ 1118.1) and authorized to dismiss in the

interest of justice (§ 1385).

3

retrial after a section 1385 acquittal when the prosecution at trial had failed to secure a

conviction. (Ibid.) A defendant could overcome the presumption that “the court [despite

its dismissal] did not intend to . . . foreclose reprosecution” by demonstrating that the

court “viewed the evidence in the light most favorable to the prosecution and found that

no reasonable trier of fact could convict.” (Ibid.) And Hatch required the trial court in

dismissing the proceeding to “make [its ruling] clear enough for reviewing courts to

confidently conclude [it] viewed the evidence in the light most favorable to the

prosecution and found that no reasonable trier of fact could convict.” (Ibid.) In making

legal insufficiency (or at least a trial court’s view of it) the linchpin under the Double

Jeopardy Clause, the Hatch court extrapolated from Tibbs, supra, 457 U.S. 31 that

“[w]here a court merely ‘disagrees with a jury’s resolution of conflicting evidence and

concludes that a guilty verdict is against the weight of the evidence,’ . . . a reversal or

dismissal on that ground does not bar retrial.” (Hatch, supra, 22 Cal.4th at p. 272.)

But the United States Supreme Court’s much broader definition of an acquittal

later reaffirmed in Evans and most recently in McElrath makes clear that the procedural

posture of Tibbs was critical to the United States Supreme Court’s holding in that case.

The jury in Tibbs returned a guilty verdict from which the defendant obtained relief based

not on the legal insufficiency of the evidence but the weight of that evidence—“ ‘a

determination . . . that a greater amount of credible evidence supports one side of an issue

or cause than the other.’ ” (Tibbs, supra, 457 U.S. at pp. 37–38.) The Florida Supreme

Court’s reversal of the conviction under state law represented mere “disagree[ment] with

[the] jury’s resolution of conflicting evidence” on the convicted defendant’s appeal. (Id.

at p. 42; see also id. at pp. 37–38 [distinguishing “weight of the evidence” reversal under

Florida law from reversal for “insufficient evidence”].) The Tibbs court accordingly

framed its holding as grounded in the conviction and the defendant’s election to

challenge that conviction by an appeal necessarily contemplating retrial: “[T]he Double

Jeopardy Clause does not prevent an appellate court from granting a convicted defendant

4

an opportunity to seek acquittal through a new trial.” (Id. at p. 45, italics added; see also

id. at p. 45, fn. 22 [analogizing a defendant’s motion for new trial following guilty

verdict]; cf. Evans, supra, 568 U.S. at p. 326 [distinguishing a defendant’s mistrial

motion, which effectively “consents to a disposition that contemplates reprosecution,”

unlike a defendant who moves for acquittal]; People v. Eroshevich (2014) 60 Cal.4th

583.) The court in Tibbs derived its holding from the long-standing rule that “a criminal

defendant who successfully appeals a judgment against him ‘may be tried anew . . . for

the same offence of which he had been convicted.’ ” (Tibbs, at pp. 39–40, italics added,

quoting United States v. Ball (1896) 163 U.S. 662, 672; see Tibbs, at p. 40, citing North

Carolina v. Pearce (1969) 395 U.S. 711, 721 [explaining “the premise that the original

conviction has, at the defendant’s behest, been wholly nullified and the slate wiped

clean”].) Tibbs distinguished the high court’s contrary decisions in Burks v. United

States (1978) 437 U.S. 1 and Greene v. Massey (1978) 437 U.S. 19 as representing “a

narrow exception from the understanding that a defendant who successfully appeals a

conviction is subject to retrial” where “ ‘the reviewing court has found the evidence

legally insufficient’ to support conviction.” (Tibbs, at pp. 40–41.) The Florida high

court’s reversal based on the weight of the evidence rather than its sufficiency did not

meet that narrow exception. (Id. at pp. 37–38.) In short, Tibbs arose from a distinct

strand of Double Jeopardy jurisprudence focused not on acquittals but on convictions and

on the assent to retrial—unless acquittal on retrial could be assured as a matter of law—

presumed by a convicted defendant’s appeal. (Id. at pp. 42–43.)

“ ‘A reversal based on the weight of the evidence’ ” as in Tibbs, however, “ ‘can

occur only after the State both has presented sufficient evidence to support conviction

and has persuaded the jury to convict.’ ” (Mannes v. Gillespie (9th Cir. 1992) 967 F.2d

1310, 1315, italics added (Mannes).) Tibbs is thus inapplicable here, where the People

failed twice to secure a guilty verdict, leading the trial court to exercise its discretion

under section 1385 to independently assess the trial evidence of Woodward’s culpability.

5

Here, unlike in Tibbs, Woodward was not “a convicted defendant” appealing for “an

opportunity to seek acquittal through a new trial.” (Tibbs, supra, 457 U.S. at p. 45, fn.

omitted.) “[T]here was no occasion to set aside a verdict as ‘against the weight’ of the

evidence, since no verdict was reached.” (Mannes, supra, 967 F.2d at p. 1315, quoting

Tibbs, supra, 457 U.S. at pp. 42–43.) Absent a conviction followed by an appeal or

motion for new trial that would implicate Tibbs, I respectfully submit that Evans and

McElrath, in reaffirming post-Hatch the broad definition of acquittal first articulated in

Scott, would have us assess only whether the trial court’s dismissal under section 1385

“ ‘relate[s] to the ultimate question of guilt or innocence.’ ” (Evans, supra, 568 U.S. at

p. 319; McElrath, supra, 601 U.S. at p. ___ [144 S.Ct. at p. 658].)

At bottom, our application of Hatch is no more than a determination that the trial

court’s dismissal—expressly based on “the insufficiency of the evidence”—failed to

conform to a state-law standard even though it is an acquittal as defined by the United

States Supreme Court. To my mind, this makes the acquittal here indistinguishable from

those in Evans (where the trial court based its dismissal on the erroneous belief that the

charged offense required proof of another element) and McElrath (where the jury’s

acquittal on one count was nullified, along with a conviction on another count, under

state law “repugnancy doctrine”). Even where the trial court is “egregiously” wrong, its

error does not exempt the acquittal from the double jeopardy bar. (Evans, supra, 568

U.S. at p. 318.) “[T]he fact that ‘the acquittal may result from erroneous evidentiary

rulings or erroneous interpretations of governing legal principles,’ . . . affects the

accuracy of that determination, but it does not alter its essential character.” (Scott, supra,

437 U.S. at p. 98.)3 McElrath made explicit that the states’ “ ‘primary authority for

3

For example, the trial court’s dismissal of sexual assault charges in Hatch

followed defense argument that no jury would believe 15-year-old “Doratee L.’s

‘behavior [to be] consistent with someone who was being pressured and forced into doing

something against their will’ ” (Hatch, supra, 22 Cal.4th at p. 266)—an argument that

betrays some incomprehension of both juvenile executive functioning and the nuance of

6

defining and enforcing the criminal law’ and ‘. . . regulat[ion of] procedures under which

[their] laws are carried out’ ” did not extend to “whether the Double Jeopardy Clause

recognizes an event as an acquittal.” (McElrath, supra, 601 U.S. at p. ___ [144 S.Ct. at

p. 660].)

That the acquittal here was by a judge and not, as in McElrath, by a jury is

constitutionally irrelevant, given the juries’ inability to convict. In United States v.

Martin Linen Supply Co. (1977) 430 U.S. 564, for example, the high court rejected the

government’s contention “that only a verdict of acquittal formally returned by the jury

should absolutely bar further proceedings and that ‘[o]nce the district court declared a

mistrial and dismissed the jury, any double jeopardy bar to a second trial dissolved.’ ”

(Id. at p. 572.) As the court instructed, “ ‘The constitutional requirement of a jury trial in

criminal cases is primarily a right accorded to the defendant.’ [Citations.] Any

Government right to demand a jury verdict is limited to that afforded by [federal rule]

(jury trial waivable with the consent of the Government) and, of course, can be qualified

by authority granted the trial judge” by rule. (Id. at pp. 574–575, fn. 13; see also Sisson,

supra, 399 U.S. at p. 288.)

I agree that the court’s dutifully exacting scrutiny of the trial court’s dismissal

order here yields “contrary indications” vitiating the otherwise unambiguous

“insufficiency of the evidence” conclusion—suggesting that the trial court did not

uniformly view the evidence in the light most favorable to the prosecution. But beyond

Evans and McElrath, it bears noting how foreign our examination is to our customary

appellate function: Under Hatch, we apply a presumption in favor of a petitioner for

extraordinary relief and not in favor of the respondent court’s 2023 judgment or

coercion within otherwise consensual relationships. And joining the court’s application

of Hatch here, I have no reason to believe that the trial court in 1996—had it anticipated

the new evidence that now prompts the petitioner to reprosecute—would have intended to

foreclose retrial.

7

1996 acquittal; and we accord no deference to the respondent court’s contrary finding on

the trial court’s “intent.” Consequently, our decision today turns on how deeply and

transparently the trial judge chose to scrutinize the trial evidence, with the through-the-

looking-glass result that rote adoption of a party’s “insufficiency of the evidence” recital

is necessarily an acquittal (see, e.g., People v. Hampton (2022) 74 Cal.App.5th 1092,

1097), while the painstaking critique of evidence presented to two deadlocked juries is

not.

But for our continuing duty to follow Hatch, I would instead conclude the

section 1385 dismissal here is an acquittal that bars retrial under Evans and McElrath.

Because Evans and McElrath “erode the analytical foundations” of Hatch (Lopez, supra,

8 Cal.5th at p. 367), I respectfully urge the California Supreme Court to reexamine the

continuing vitality of Hatch’s narrow definition of an acquittal under federal double

jeopardy principles.

8

Lie, J.

H051311

People v. Superior Court (Woodward)

Trial Court: County of Santa Clara

Trial Judge: Hon. Shella Deen

Counsel: Jeffrey F. Rosen, District Attorney, Kaci R. Lopez, Supervising

District Attorney, and David R. Boyd, Deputy District Attorney for

Petitioner.

No appearance for Respondent.

Nolan Barton Olmos & Luciano, LLP, Daniel L. Barton and Evan C.

Greenberg for Real Party in Interest.

H051311

People v. Superior Court (Woodward)