Petition for Writ of Certiorari — John Kevin Woodward, Petitioner v. California, et al.

Supreme Court briefAug 27, 2024

Ask Donna

What actually matters in this document.

Text

No. 24-____

IN THE

Supreme Court of the United States

————

JOHN KEVIN WOODWARD,

Petitioner,

PEOPLE OF THE STATE OF CALIFORNIA,

Respondent.

————

On Petition for Writ of Certiorari to the

Supreme Court of the State of California

————

PETITION FOR WRIT OF CERTIORARI

————

DANIEL L. BARTON

Counsel of Record

EVAN GREENBERG

NOLAN BARTON OLMOS &

LUCIANO, LLP

600 University Avenue

Palo Alto, CA 94301

(650) 326-2980

DBarton@nbo.law

EGreenberg@nbo.law

Counsel for Petitioner

August 27, 2024

WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D.C. 20002

QUESTION PRESENTED

The Fifth Amendment’s Double Jeopardy Clause

bars retrial whenever a court’s order dismissing a

criminal case constitutes an “acquittal.” Under this

Court’s broad definition, an “acquittal” includes a

finding that the evidence is insufficient to convict and

also any other ruling which relates to the ultimate

question of guilt or innocence. The Supreme Court of

California excludes some of those rulings from its

definition of an “acquittal” under the Fifth Amendment.

The California Court limits an “acquittal” only to

circumstances where the record clearly shows that the

judge correctly applied the substantial evidence

standard. Does the Supreme Court of California’s

narrow test for an “acquittal” under the Fifth

Amendment conflict with this Court’s precedent?

(i)

RELATED PROCEEDINGS

People v. Superior Court (Woodward), Supreme

Court of California, No. S284711 (May 29, 2024).

People v. Superior Court (Woodward), Court of

Appeal of the State of California, Sixth Appellate

District, No. H051311 (March 14, 2024).

People v. Woodward, Court of Appeal of the State of

California, Sixth Appellate District, No. H051416

(appeal dismissed July 17, 2024).

People v. Woodward, Superior Court of California,

County of Santa Clara, No. C2200594 (August 22,

2023).

People v. Woodward, Superior Court of California,

County of Santa Clara, No. 167658 (ordered dismissed

August 7, 1996).

TABLE OF CONTENTS

Page

QUESTION PRESENTED ........................................... i

RELATED PROCEEDINGS ....................................... ii

TABLE OF AUTHORITIES ....................................... iv

OPINIONS BELOW .................................................... 1

JURISDICTIONAL STATEMENT ............................. 1

RELEVANT CONSTITUTIONAL PROVISION

AND STATUTE........................................................ 1

STATEMENT OF THE CASE .................................... 2

REASONS FOR GRANTING THE WRIT .................. 5

California’s Hatch rule conflicts with this

Court’s decisions on what constitutes an

acquittal for double jeopardy purposes ............ 5

II.

California’s Hatch standard also conflicts

with this Court’s precedent by creating

a presumption against applying the

double-jeopardy bar .......................................... 9

III. The question presented is an important

one, and this case presents an excellent

vehicle for addressing it.................................. 11

IV. The decision below is wrong and results

in a violation of Mr. Woodward’s federal

constitutional rights ....................................... 12

CONCLUSION .......................................................... 14

APPENDIX

(iii)

TABLE OF AUTHORITIES

CASES

Page(s)

Benton v. Maryland,

395 U.S. 784 (1969) ......................................... 11

Evans v. Michigan,

568 U.S. 313 (2013) ............................. 4-8, 10-12

Fong Foo v. United States,

369 U.S. 141 (1962) ............................... 8, 10, 11

Jackson v. Virginia,

443 U.S. 307 (1979) ........................................... 7

McElrath v. Georgia,

601 U.S. 87 (2024) .............................. 4-9, 12, 13

People v. Hatch,

22 Cal.4th 260 (2000) ................................... 3-12

People v. Superior Court (Woodward),

100 Cal.App.5th 679, 319 Cal.Rptr.3d

488 (March 14, 2024) ................. 1-4, 6, 9, 12, 13

Sanabria v. United States,

437 U.S. 54 (1978) ........................................... 10

United States v. Scott,

437 U.S. 82 (1978) ............................................. 7

United States v. Sisson,

399 U.S. 267 (1970) ......................................... 10

United States v. Wilson,

420 U.S. 332 (1975) ......................................... 10

TABLE OF AUTHORITIES—Continued

CONSTITUTION

Page(s)

U.S. Const. amend. V ........................... 1-4, 6, 8-11

U.S. Const. amend. XIV ....................................... 2

Cal. Const. art. I, § 15 .......................................... 2

STATUTES

28 U.S.C. § 1257(a) ............................................... 1

Cal. Penal Code § 1385 ..................................... 4, 5

Cal. Penal Code § 1385(a) .................................... 1

Cal. Penal Code § 1385(a) (1996) ......................... 1

PETITION FOR A WRIT OF CERTIORARI

Petitioner John Kevin Woodward respectfully petitions

for a writ of certiorari to review the decision of the

Supreme Court of California.

OPINION BELOW

The California Court of Appeal’s opinion is published

and reported at 100 Cal.App.5th 679, 319 Cal.Rptr.3d

488 (March 14, 2024) and reprinted in the Appendix to

the Petition (“Pet. App.”) at 2a-51a. The Supreme

Court of California’s order denying the petition for

review is unpublished and reprinted at Pet. App. 1a.

JURISDICTIONAL STATEMENT

The Supreme Court of California denied review on

May 29, 2024. This Court has jurisdiction under 28

U.S.C. § 1257(a).

RELEVANT CONSTITUTIONAL

PROVISION AND STATUTE

The Fifth Amendment to the Constitution of the

United States provides, in relevant part: “nor shall any

person be subject for the same offense to be twice put

in jeopardy of life or limb[.]”

There are two relevant versions of California Penal

Code section 1385(a): the 1996 version and the current

version. The statute in 1996 provided, in relevant

part: “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.”

Currently, the statute provides, in relevant part: “The

judge or magistrate may, either on motion of the court

or upon the application of the prosecuting attorney,

and in furtherance of justice, order an action to be

dismissed. The reasons for the dismissal shall be

stated orally on the record. The court shall also set

forth the reasons in an order entered upon the minutes

if requested by either party or in any case in which the

proceedings are not being recorded electronically or

reported by a court reporter.”

STATEMENT OF THE CASE

In the 1990s, Mr. Woodward was tried twice for

murder, with both trials ending in hung juries that

favored acquittal. Pet. App. 2a-4a. After the second

mistrial, Superior Court Judge Lawrence F. Terry dismissed the case for “insufficient evidence” on August 7,

1996. Pet. App. 71a. Twenty-five years later, in January

2022, the People refiled the same murder charge that

had been dismissed for insufficient evidence. Id. 7a.

Mr. Woodward moved to dismiss the refiled charge

on February 23, 2023, arguing that the new prosecution violated his rights against double jeopardy under

the Fifth and Fourteenth Amendments to the United

States Constitution and article I, section 15 of the

California Constitution. Pet. App. 8a (Woodward’s

motion argued “that the prosecution violated his state

and federal constitutional protections against double

jeopardy” and “invoked the Fifth and Fourteenth

Amendments to the United States Constitution”). The

People filed an opposition and Mr. Woodward filed a

reply, and both parties filed additional briefs. Id. 8a10a. The superior court held a hearing and took the

motion under submission on August 10, 2023.

The superior court granted the motion to dismiss on

August 22, 2023, holding that Judge Terry’s dismissal

from 1996 based on “insufficient evidence” operated as

an acquittal that barred retrial on “Double Jeopardy

grounds.” Id. 52a-67a, 67a. The superior court applied

this Court’s cases applying the Fifth Amendment’s

Double Jeopardy Clause. Id. 58a-59a.

The People sought relief by petition to the California

Court of Appeal, which on March 14, 2024, issued a

published opinion in the People’s favor. Id. 2a. The

majority opinion, signed by two justices, directed the

trial court to vacate its order dismissing the case and

enter a new order denying Mr. Woodward’s motion to

dismiss.

The two-justice majority held that Judge Terry’s

1996 dismissal did not satisfy the Supreme Court of

California’s test from People v. Hatch, 22 Cal.4th 260

(2000) for when a dismissal bars retrial on federal

double jeopardy grounds. Hatch narrowed the circumstances where the right against double jeopardy will

bar retrial following a judge’s dismissal. Hatch also

created a default presumption in favor of allowing

retrial and against criminal defendants’ constitutional

right against double jeopardy. Pet. App. 30a. Under

Hatch, a dismissal operates as an acquittal only when

“the record clearly indicates that the trial court

applied the substantial evidence standard,” meaning

“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.” Hatch, 22 Cal.4th at 273. Here, the

two-justice majority held that the 1996 dismissal did

“not clearly indicate an intent to dismiss for legally

insufficient evidence and preclude retrial,” Pet. App. 3a

(italics added), despite the superior court’s order

in 1996 expressly dismissing “based on insufficient

evidence.” Id. 71a. The Court of Appeal reasoned

that construing the 1996 dismissal as an acquittal

“would be inconsistent with Hatch,” and “particularly

[Hatch’s] articulation of the default presumption”

against applying a double jeopardy bar. Id. 24a, 30a.

In the end, the two-justice majority allowed retrial on

grounds “that the 1996 dismissal order does not satisfy

the rule articulated in Hatch for construing a section

1385 dismissal as an acquittal[.]” Id. 40a.

Justice Cynthia C. Lie’s concurring opinion explained

that the state-law rule from Hatch conflicted with this

Court’s cases construing the Double Jeopardy Clause,

particularly Evans v. Michigan, 568 U.S. 313 (2013)

and McElrath v. Georgia, 601 U.S. 87 (2024). Pet.

App. 42a, 50a. Justice Lie reasoned that this Court’s

decisions “have eroded the analytical foundations of

the rule announced in Hatch,” id. 42a, and “urge[d]”

the Supreme Court of California to reexamine Hatch

under this Court’s decisions in Evans and McElrath.

Id. 50a.

Justice Lie explained that she would

have ruled that double jeopardy barred retrial under

the federal Constitution if not for the duty, as an

intermediate appellate court, to follow and apply

Hatch. Id. 42a, 50a. Justice Lie reasoned that the

court’s “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.” Id. 48a.

On April 23, 2024, Mr. Woodward filed a petition for

review in the Supreme Court of California. Id. 78a112a. He argued that retrial was barred under the

federal Double Jeopardy Clause, id. 98a-99a, and that

the state-law standard from Hatch conflicted with this

Court’s double jeopardy cases. Id. 83a, 89a-102a. On

May 29, 2024, the Court denied the petition for review,

with one justice writing that the petition should be

granted. Id. 1a.

REASONS FOR GRANTING THE WRIT

I. California’s Hatch rule conflicts with this

Court’s decisions on what constitutes an

acquittal for double jeopardy purposes.

The conflict between Hatch and this Court’s cases

(Evans and McElrath and others discussed below)

concerns how to define an “acquittal” for doublejeopardy purposes, and specifically the rule governing

which dismissals bar retrial. California Penal Code

section 1385 authorizes trial courts to dismiss cases in

the interests of justice, and California law recognizes

that some, but not all, such dismissals constitute

acquittals that bar retrial on double jeopardy grounds.

In Hatch, the Supreme Court of California adopted

a narrow rule and held that a dismissal does not

serve as an acquittal unless “the record clearly

indicates that the trial court applied the substantial

evidence standard,” meaning “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.”

Hatch, 22 Cal.4th at 273. Under Hatch, retrial is

barred “only when a trial court clearly makes a finding

of legal insufficiency[.]” Id. at 274 (italics added). No

other circumstance will bar retrial under California’s

Hatch standard.

This Court, in contrast, applies a broader definition

of acquittal and does not condition an acquittal on

application of the substantial evidence standard. This

Court has even clarified that an “acquittal” includes a

finding of insufficient evidence and also includes

“any other ruling which relates to the ultimate

question of guilt or innocence.” Evans, 568 U.S. at 319

(italics added, cleaned up). As Justice Lie reasoned in

the published concurring opinion below, this Court’s

rulings in Evans and McElrath have “eroded the analytical foundations” of Hatch. Pet. App. 42a; id. 50a.

In Evans, this Court distinguished procedural dismissals (which allow retrial) from substantive dismissals (which bar retrial under the Double Jeopardy

Clause). Evans, 568 U.S. at 319. Procedural dismissals include rulings on questions “unrelated to factual

guilt or innocence,” such as errors with the indictment.

Id. Substantive dismissals, on the other hand, are

acquittals and “encompass any ruling that the prosecution’s proof is insufficient to establish criminal

liability for an offense.” Id. at 318. Thus, while an

“acquittal” includes a ruling by the court that the

evidence is insufficient to convict, it also includes other

circumstances, such as “a factual finding that necessarily establishes the criminal defendant’s lack of

criminal culpability, and any other ruling which

relates to the ultimate question of guilt or innocence.”

Id. at 319 (cleaned up).

This Court in Evans rejected the government’s

argument that an acquittal necessarily requires a

finding that there was a failure of proof on an element

of the offense. The government argued, “only if an

actual element of the offense is resolved can it be said

that there has been an acquittal of the offense[.]”

Evans, 568 U.S. at 323. This Court deemed that

proposition too narrow, explaining that the touchstone

of whether a judicial decision acts as an “acquittal”

depends on whether it relates to the defendant’s

“lack of criminal culpability,” and “not whether any

particular elements were resolved or whether the

determination of nonculpability was legally correct.”

Id. at 323-24.

That rule and analysis from Evans conflicts with

California’s Hatch rule. While this Court in Evans

established that the touchstone of an acquittal is

“not whether any particular elements were resolved,”

Evans, 568 U.S. at 323-24, the Hatch standard for an

acquittal requires a decision on whether particular

elements were resolved. Hatch requires a decision on

particular elements because that is an inherent part

of the substantial evidence test. The substantial

evidence standard asks “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.”

Jackson v. Virginia, 443 U.S. 307, 319 (1979) (second

italics added). Thus, Hatch says a dismissal is not an

acquittal unless the dismissing judge resolves an element

of the crime by applying the substantial evidence

standard. But that was precisely the government’s

argument in Evans that this Court rejected. Evans,

568 U.S. at 323. California’s Hatch rule therefore

conflicts with this Court’s ruling in Evans.

More recently, in McElrath v. Georgia, 601 U.S. at 94,

this Court expressly asked, “What, then, is an

acquittal?” and answered without any requirement to

apply the substantial evidence standard. This Court

noted that the ruling’s substance controls rather than

its label, and added, “In particular, we look

to whether the ruling’s substance ‘relate[s] to the

ultimate question of guilt or innocence.’” Id. (quoting

United States v. Scott, 437 U.S. 82, 98 n.11 (1978)).

McElrath’s answer to “What, then, is an acquittal?”

is broader than California’s rule from Hatch, which

always requires a clear application of the substantial

evidence standard.

The federal Constitution can bar further proceedings even when the judge certainly did not apply the

substantial evidence standard. In Fong Foo v. United

States, 369 U.S. 141 (1962), the district court interrupted the government’s case-in-chief, directed the

jury to return verdicts of acquittal, and later entered a

judgment of acquittal. Id. at 141. The district judge’s

“action was based upon one or both of two grounds:

supposed improper conduct on the part of the

[prosecutor], and a supposed lack of credibility [of the

prosecution’s witnesses so far].” Id. This Court held

that the Double Jeopardy Clause barred retrial even if

the district court’s decision rested on “an egregiously

erroneous foundation.” Id. at 143. This Court barred

retrial, but the Hatch rule would lead to the opposite

outcome—retrial would be allowed because the district

court did not apply the substantial evidence standard.

It does not matter that the district court in Fong Foo

labeled its decision as an “acquittal,” as this Court in

McElrath confirmed that “labels . . . do not control our

analysis in this context.” McElrath, 601 U.S. at 96

(cleaned up) (quoting Evans, 568 U.S. at 322). Even

the use of the word “acquit” “is not dispositive . . . ;

instead, an acquittal has occurred if the factfinder

‘acted on its view that the prosecution had failed to

prove its case.’” Id. (quoting Evans, 568 U.S. at 322).

This Court’s broad standard for assessing an

“acquittal” for double-jeopardy purposes conflicts with

the narrower standard from Hatch, which excludes

from double jeopardy protection some circumstances

in which this Court has barred retrial. Whereas Hatch

conditions a finding of acquittal on application of the

substantial evidence standard, this Court does not.

Instead, the question is whether the dismissal “relates

to the ultimate question of guilt or innocence.”

McElrath, 601 U.S. at 94 (cleaned up).

In sum, California’s narrow test for what constitutes

an acquittal for purposes of the federal Double

Jeopardy Clause conflicts with this Court’s precedent.

California construes the federal right more narrowly

than this Court’s precedents require, creating a

conflict that this Court should resolve.

II. California’s Hatch standard also conflicts

with this Court’s precedent by creating a

presumption against applying the doublejeopardy bar.

Hatch created a “default presumption” against

applying double jeopardy to bar retrial, a presumption

the defendant must overcome by showing that “the

record clearly indicates the trial court applied the

substantial evidence standard.” Pet. App. 30a (quoting

Hatch, 22 Cal.4th at 273). This Court’s decisions do

not reference a presumption in favor of the government, and “whether an acquittal has occurred for

purposes of the Double Jeopardy Clause is a question

of federal, not state, law.” McElrath, 601 U.S. at 96.

State courts may not add barriers to the application of

a federal constitutional right, but that is what the

Hatch presumption does; it adds an additional requirement to construing a court ruling as an “acquittal.”

The Hatch presumption also conflicts with federal

law because it reviews whether a trial court, in entering

an acquittal for insufficient evidence, correctly applied

the correct legal standard for the acquittal. Under

Hatch, a dismissal will not operate as an acquittal

unless the record “clearly indicates” the trial court

applied the substantial evidence standard and “viewed

the evidence in the light most favorable to the

prosecution[.]” Hatch, 22 Cal.4th at 273. Federal law,

in contrast, bars retrial after a court-decreed acquittal

even when “the legal rulings underlying the acquittal

were erroneous.” Sanabria v. United States, 437 U.S.

54, 64 (1978); see also Fong Foo, 369 U.S. at 143; Evans,

568 U.S. at 318. Consider United States v. Sisson, 399

U.S. 267, 278, 289-290 (1970), where the jury convicted

defendant but then the district court granted what it

termed an “arrest in judgment” holding that the

defendant could not constitutionally be convicted of

the offense. Id. at 269-70. The government appealed,

but this Court dismissed the appeal for lack of

jurisdiction after concluding that the district court’s

decision was “not an arrest of judgment but instead

[was] a directed acquittal.” Id. at 270. This Court

noted that, under the Double Jeopardy Clause, the

“acquittal” barred retrial after the dismissal of the

appeal. Id. at 289-90 & n.18; see also United States v.

Wilson, 420 U.S. 332, 351 (1975) (reiterating that the

“acquittal” in Sisson barred retrial on double jeopardy

grounds, while clarifying that the only barrier to the

appeal in Sisson was statutory, not constitutional).

The “acquittal” in Sisson demonstrably did not arise

from applying the substantial evidence standard and

viewing the evidence in the light most favorable to the

prosecution. To the contrary, the district court in

Sisson made credibility findings that favored defendant,

explaining that “Sisson’s demeanor on the [witness]

stand convinced the court of his sincerity.” Sisson, 399

U.S. at 273. Sisson establishes that a judge may enter

an “acquittal” for double jeopardy purposes without

applying the substantial evidence standard, in

direct conflict with Hatch’s rule that always requires

applying that standard.

The Hatch presumption exempts one type of legal

error—an error regarding the standard for holding the

evidence to be insufficient—from this Court’s rule that

an acquittal bars retrial even if the acquittal is

factually erroneous or based on a mistake of law. This

Court has broadly applied the principle that any

acquittal bars retrial, “even if the acquittal is ‘based

upon an egregiously erroneous foundation.’” Evans,

568 U.S. at 318 (quoting Fong Foo, 369 U.S. at 143. The

Hatch presumption conflicts with that principle

because it not only allows retrial if the acquittal is

based upon an erroneous foundation (failing to apply

the substantial evidence standard, or failing to apply

it correctly), it allows retrial unless the record clearly

demonstrates the correctness of the acquittal. Thus,

Hatch conflicts with federal law by allowing retrial

when the record establishes an erroneous acquittal or

when the record is merely silent.

III. The question presented is an important

one, and this case presents an excellent

vehicle for addressing it.

Because of Hatch, the Double Jeopardy Clause

applies with less force in California than it does in

other states and in federal courts. The prohibition on

double jeopardy is a fundamental right protected by

the Constitution. See Benton v. Maryland, 395 U.S.

784, 794 (1969) (“[T]he double jeopardy prohibition of

the Fifth Amendment represents a fundamental ideal

in our constitutional heritage.”). Under Hatch and the

decision below, California presumptively allows retrial

following a judicial acquittal, in stark contrast to this

Court’s cases and the principles underlying the Double

Jeopardy Clause. The most populous state in the

country affords its residents a weakened, narrowed

version of their constitutional right against being

placed twice in jeopardy.

This case presents a clean vehicle to address the

question presented and resolve the conflict. There is a

dismissal expressly based on “insufficient evidence.”

Pet. App. 71a; id. 77a (“insufficiency of the evidence”).

There is a renewed prosecution for the same charge

that was dismissed. Id. 2a-3a. Mr. Woodward presented the federal double jeopardy claim to the trial

court, to the intermediate appellate court, and to the

Supreme Court of California. Id. 8a, 24a-25a, 78a102a. The intermediate appellate court published its

opinion, and Justice Lie wrote a concurring opinion

highlighting the ways that Hatch conflicts with this

Court’s decisions on federal law. The relevant facts

come from court records, so there are no disputed facts

or concerns about erroneous factual findings. The

federal claim is important, preserved, based on an

objective factual record, and is dispositive to the outcome below. Under this Court’s precedent, the 1996

dismissal in this case “is an acquittal that bars retrial

under Evans and McElrath,” as Justice Lie concluded

below. Id. 50a. The only reason California refused to

recognize it as an acquittal, and decided to allow

another trial, was the state-law test from Hatch.

IV. The decision below is wrong and results in

a violation of Mr. Woodward’s federal

constitutional rights.

If this Court resolves the conflict and holds that

Hatch does not accurately define an acquittal under

the federal Constitution, then Mr. Woodward has

already been acquitted and any retrial will violate his

constitutional rights.

Judge Terry’s dismissal in 1996 operates as an

acquittal under federal law because the substance of

the dismissal “relates to the ultimate question of guilt

or innocence.” See McElrath, 601 U.S. at 94 (cleaned

up). In Judge Terry’s recitation of the governing law,

he noted a duty to consider the “evidence indicative of

guilt or innocence.” Pet. App. 73a. After reciting the

governing law for nearly two pages, the very first

paragraph specific to this case discussed the

prosecution’s inability “to prove the defendant guilty

beyond a reasonable doubt” at two trials, with both

juries favoring acquittal. Id. 74a. Judge Terry noted

that “the vast majority of the evidence does not point

to the defendant’s guilt.” Id. 75a. Multiple times,

Judge Terry called the evidence “insufficient” or a

variation of that term. Id. 74a (“lacks the sufficiency”),

75a (“evidence is insufficient”), 75a-76a (“there is

insufficient proof”), 76a (“There is simply a lack of

evidence on which to convict the defendant.”), 77a

(dismissing case for “insufficiency of the evidence”). In

short, Judge Terry’s dismissal “relates to the ultimate

question of guilt or innocence,” so it is an acquittal

under this Court’s cases. McElrath, 601 U.S. at 94

(cleaned up).

In the concurring opinion below, Justice Lie agreed

that Judge Terry’s dismissal “is an acquittal as defined

by the United States Supreme Court.” Pet. App. 48a.

If Justice Lie is correct, then Mr. Woodward’s federal

constitutional right against double jeopardy prohibits

any future trial and the case must be dismissed. Thus,

this Petition presents an important question of law

with broad application, but this Court’s review is also

warranted because the issue is dispositive here.

CONCLUSION

For the foregoing reasons, this Court should grant

the petition for a writ of certiorari.

Respectfully submitted,

DANIEL L. BARTON

Counsel of Record

EVAN GREENBERG

NOLAN BARTON OLMOS &

LUCIANO, LLP

600 University Ave

Palo Alto, CA 94301

(650) 326-2980

DBarton@nbo.law

EGreenberg@nbo.law

Counsel for Petitioner

August 27, 2024

APPENDIX

APPENDIX TABLE OF CONTENTS

Page

APPENDIX A: ORDER, California Supreme

Court (May 29, 2024) ...........................................

APPENDIX B: OPINION, California Court of

Appeals for the Sixth Appellate District

(March 14, 2024) .................................................

APPENDIX C: ORDER GRANTING MOTION

TO DISMISS ON DOUBLE JEOPARDY

GROUNDS, California Superior Court, Santa

Clara County (August 22, 2023) .........................

52a

APPENDIX D:

POST TRIAL HEARING

CONTINUED FROM 7/22/96, California

Superior Court, Santa Clara County (August 7,

1996) .....................................................................

71a

APPENDIX E: ORDER, California Superior

Court, Santa Clara County (August 7, 1996) .....

72a

APPENDIX F: REAL PARTY IN INTEREST’S

PETITION FOR REVIEW, California Supreme

Court (April 23, 2024)..........................................

78a

APPENDIX A

IN THE SUPREME COURT OF CALIFORNIA

En Banc

————

Court of Appeal, Sixth Appellate District No. H051311

S284711

————

THE PEOPLE,

Petitioner,

SUPERIOR COURT OF SANTA CLARA COUNTY,

Respondent;

JOHN KEVIN WOODWARD,

Real Party in Interest.

————

The petition for review is denied.

Evans, J., is of the opinion the petition should be

granted.

/s/ GUERRERO

Chief Justice

APPENDIX B

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF

THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

[Filed 3/14/2024]

————

H051311

(Santa Clara County Super. Ct. No. C2200594)

————

THE PEOPLE,

Petitioner,

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.”

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.

Unspecified statutory references are to the Penal Code.

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, 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. The court’s dismissal order is

reflected in two documents issued on August 7, 1996, a

minute order 3 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.”

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

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).)

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.)

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

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

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.

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 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.

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

10a

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 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.

11a

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 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

12a

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 “‘insuffi-

13a

cient evidence’” indicates the trial court deemed the

evidence insufficient as a 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 o 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

14a

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.)

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.)

15a

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.)

“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) 4

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.

16a

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

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

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.

17a

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 Woodward’s pretrial restraint and

18a

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.

19a

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.)

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,

20a

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

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

21a

Cal.4th at p. 273.) 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.” (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

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.)

22a

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

against “repeated prosecutions [which] unfairly burden a

23a

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

24a

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.)

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

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

25a

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 “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

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.)

26a

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 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

27a

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 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

28a

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

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.

29a

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 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.)

30a

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 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

31a

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 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

32a

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 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

33a

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

34a

evidence presented in court.’” (Ibid.) The minute order

stated that “‘no 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

35a

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.)

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

36a

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 [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

37a

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.)

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

38a

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 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

39a

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,

40a

Hatch specifically recognized the relevance of this

factor to a section 1385 dismissal. (Hatch, supra, 22

Cal.4th at p. 273.)

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.

Danner, Acting P. J.

41a

I CONCUR:

Bromberg, J.

H051311

People v. Superior Court (Woodward)

42a

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

43a

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

44a

section 1385 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”].)

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

Undesignated statutory references are to the Penal Code.

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 (§

45a

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 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

1118.1) and authorized to dismiss in the interest of justice (§

1385).

46a

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 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

47a

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

48a

section 1385 to independently assess the trial evidence

of Woodward’s culpability. 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

49a

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

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

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 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.

50a

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 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.

Lie, J.

51a

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)

52a

APPENDIX C

ORDER ON SUBMITTED MATTER

SUPERIOR COURT OF CALIFORNIA

COUNTY OF SANTA CLARA

————

[Filed: Aug 22 2023]

No. C2200594

————

PEOPLE OF THE STATE OF CALIFORNIA,

Plaintiff,

JOHN KEVIN WOODWARD,

Defendant.

————

ORDER GRANTING MOTION TO DISMISS ON

DOUBLE JEOPARDY GROUNDS

INTRODUCTION

In 1992, Laurie Houts was murdered. Defendant

John Kevin Woodward was charged with her murder

and the case proceeded to trial but the jury deadlocked.

The parties agreed that the case should be dismissed.

Thereafter, the People recharged Defendant with the

same crime in Docket 167658. The case again proceeded to trial. At the close of evidence, prior to the

submission of the case to the jury, Defendant filed a

motion for judgment of acquittal under Penal Code

section 1118.1. 1 The motion was denied. The jury

All further undesignated statutory references are to the

Penal Code.

53a

again deadlocked and the court declared a mistrial.

After the jury deadlocked, Defendant moved to

dismiss the case under section 1385. The court

dismissed the case.

After discovering new evidence they believed

supported Defendant’s guilt in 2021, the People refiled

the murder charge in the instant Docket, C2200594.

On February 23, 2023, Defendant filed a motion to

dismiss the case alleging that double jeopardy bars

his retrial. The People filed an opposition and

Defendant filed a reply. Thereafter, the Court heard

oral argument and permitted the filing of sur-replies

by both parties.

ANALYSIS

Defendant argues that the court’s order dismissing

the case (Docket 167658) was based on the court’s

finding that the evidence was legally insufficient to

support a conviction and, therefore, the dismissal

operates as an acquittal. The People counter that the

dismissal was one in furtherance of justice, not based

on a finding that the evidence was insufficient as a

matter of law under the substantial evidence standard.

I. The Court May Consider the Entire Trial Court

Record in Making its Ruling

In his motion to dismiss, Defendant requested that

the court take judicial notice of (1) the trial court’s

written order dismissing the case in Docket 167658

and (2) the minute order from the date of the

dismissal. The Court GRANTS the request for judicial

notice under Evidence Code section 452, subdivision

(d) as these orders are undoubtedly relevant to the

outcome of the instant case.

54a

The People urge the court to consider multiple other

documents but do not explicitly request judicial

notice. The People have provided to the Court: (1) A

statement by Mountain View Police Detective Sergeant

David Fisher detailing the new evidence that is now

available (People’s Opposition, Exhibit A), (2) a minute

order showing that Defendant’s motion for judgment

of acquittal was denied (People’s Opposition, Exhibit

B), (3) Defendant’s motion for judgment of acquittal

(People’s Opposition, Exhibit C), (4) The People’s opposition to Defendant’s motion for judgment of acquittal

(People’s Opposition, Exhibit D), (5) a minute order

showing that Defendant testified at trial (People’s

Opposition, Exhibit E), (6) a minute order showing

that the jury deadlocked and the court declared a

mistrial (People’s Opposition, Exhibit F), (7) an unified,

unsigned defense motion to dismiss under section

1385 (People’s Opposition, Exhibit G), (8) the minute

order dismissing the case (People’s Opposition,

Exhibit H), (9) the written order dismissing the case

(People’s Opposition, Exhibit I), (10) a declaration of

the trial prosecutor (People’s Opposition, Exhibit J),

(11) a contemporaneous news article discussing the

dismissal with statements from both the trial

prosecutor and defense counsel (People’s Opposition,

Exhibit K), and (12) a portion of the defense bail

motion filed in this case on March 16, 2023 (People’s

Opposition, Exhibit L).

The Court may consider the court documents from

the time of trial in determining whether the trial

court’s dismissal order served as an acquittal for

Double Jeopardy purposes. (See People v. Salgado

(2001) 88 Cal.App.4th 5, 10, citing People v. Smith

(1983) 33 Cal. 3d 596, 599 [entire record may be

considered in interpreting the minute order].)

However, the Court will not consider the unfiled,

55a

unsigned copy of the defense motion to dismiss as the

People have not provided any basis for the court to do

so. 2 The unfiled, unsigned motion is not a court

document within the meaning of Evidence Code

section 452, subdivision (d), because there is no file

stamp or anything showing that the document was

ever filed with the court.

Defendant appears to argue in reply that the Court

should not consider the trial court’s written order

dismissing the case because at the time the case was

dismissed, section 1385 provided, “The reasons for the

dismissal must be set forth in an order entered upon

the minutes.” (Former § 1385, subd. (a).) As Defendant

points out, “‘it has been said: “The statement of reasons is

not merely directory, and neither trial nor appellate

courts have authority to disregard the requirement. It

is not enough that on review the reporter’s transcript

may show the trial court’s motivation; the minutes

must reflect the reason ‘so that all may know why this

great power was exercised.’” [Citation.]” (People v.

Orin (1975) 13 Cal.3d 937, 944 (Orin).)

However, this does not mean that the Court cannot

consider the trial court’s written order dismissing the

case in making its ruling on the motion to dismiss.

(See People v. Hatch (2000) 22 Cal.4th 260, 274-275

(Hatch) [trial court’s statements in reporter’s transcript

bolstered Supreme Court’s conclusions regarding the

minute of the minute order dismissing the case].)

Additionally, Defendant expressly asked the Court to

The unfiled, unsigned copy of the motion is attached to the

People’s opposition to the motion as Exhibit G. Defendant

appears to dispute whether this motion was ever filed. The filed,

signed copy does not appear anywhere in the court record. But,

the minute order from the date of the dismissal indicates that

the court granted Defendant’s motion to dismiss.

56a

take judicial notice of the written order in his motion

and made multiple arguments relying on it. To the

extent Defendant is arguing that the Court may

consider only the minute order and not the written

order dismissing the case, the Court rejects that

argument.

With respect to the declaration of the trial prosecutor, the contemporaneous news article, and the bail

motion, the Court declines to consider these documents, which were not part of the record before the

trial court. The declaration and the news article both

present the views of the attorneys involved in the case

in the 1990s. They appear to indicate that Judge Terry,

the trial judge, believed that the case could be refiled.

But, this is irrelevant. In Mannes v. Gillespie (9th Cir.

1992) 967 F.2d 1310, 1316 (Mannes), on which both

parties rely, the Ninth Circuit Court of Appeal

explained, “The trial judge in this case believed retrial

would be possible. Nevertheless, whether the Double

Jeopardy Clause bars a prosecution is not determined

by the characterization of a dismissal under state law,

nor by the trial judge’s personal understanding in this

regard. [Citations.] What matters is whether the ruling in

[defendant’s] favor was actually an ‘acquittal’ even if

state law or the trial court may have labeled it otherwise.”

The motion for judgment of acquittal and the

opposition are also of limited evidentiary value. These

motions did not prompt the court to enter its order

dismissing the case; in fact, the court denied the

motion for judgment of acquittal. The People attempt

to use these filings to contrast them with the unfiled,

unsigned motion to dismiss after hung jury. The People

contend that the parties discussed the substantial

evidence standard in connection with the motion for

judgment of acquittal but that the defense did not

57a

make any mention of the substantial evidence standard

in the motion to dismiss, which allegedly prompted

the trial court to issue its dismissal order. 3 Although

the motion for judgment of acquittal and the opposition

are filed court documents properly subject to judicial

notice, the People ask the Court to consider the motion

for judgment of acquittal and opposition solely for the

purposes of comparing them to the unsigned, unfiled

motion to dismiss, which the Court declines to consider.

Thus, the motion for judgment of acquittal and

opposition are of extremely minimal, if any, relevance.

Nonetheless, the Court will consider the motion for

judgment of acquittal and opposition thereto in order

to contrast their content with the standards

articulated in the court’s written dismissal order. The

minute orders the People provide (excepting the one

in which dismissal was entered) are similarly of

minimal relevance to the court’s decision. The Court

declines to consider the minute orders as they do not

reflect the court’s dismissal decision or otherwise

illustrate the reasoning of the court or the parties in

the context of that decision.

II. Merits of the Motion

Here, it is undisputed that the trial court dismissed

the case under section 1385. At the time of the dismissal, that section provided, “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 discussion of the substantial evidence standard is

pertinent because, in Hatch, supra, 22 Cal.4th at p. 273, the

California Supreme Court held that a court dismissing under

section 1385 for insufficiency of the evidence should make clear

that it considered the evidence in the light most favorable to the

prosecution under the substantial evidence standard.

58a

The reasons for the dismissal must be set forth in an

order entered upon the minutes. No dismissal shall be

made for any cause which would be ground of demurrer

to the accusatory pleading.” (Former § 1385, subd. (a).)

Defendant argues that the dismissal was one based

on the legal insufficiency of the evidence such that the

dismissal operates as an acquittal and he may not be

subject to retrial on Double Jeopardy grounds. The

People, on the other hand, argue that the dismissal

was one made in furtherance of justice, which would

not operate as an acquittal, allowing the People to

retry Defendant now using the new evidence they now

possess. The Court concludes that the dismissal was

made based on insufficiency of the evidence and

operates as an acquittal. 4

As explained in Hatch, supra, 22 Cal.4th at pp. 271272, “the United States Supreme Court held that the

Fifth Amendment precludes retrial if a court determines the evidence at trial was insufficient to support

a conviction as a matter of law. (Burks v. United States

(1978) 437 U.S. 1, 18.) Thus, an appellate ruling of

legal insufficiency is functionally equivalent to an

acquittal and precludes a retrial. (See id. at pp. 16-17.)

An analogous trial court finding is also an acquittal

Although the People argue that they possess new evidence of

Defendant’s guilt, they cite to no authority that provides that a

defendant may be retried after an acquittal even with new

evidence. This is because, where the defendant has been

acquitted, he cannot be retried. (People v. Romero (1982) 31

Cal.3d 685, 689.) Further, the California Supreme Court has

explained that double jeopardy principles include, inter alia,

“precluding the government from retrying the defendant armed

with new evidence and knowledge of defense tactics[.]” (People v.

Hernandez (2003) 30 Cal.4th 1, 8, italics added.) Thus, double

jeopardy bars retrial after an acquittal even if the People are now

in possession of new evidence.

59a

for double jeopardy purposes. ([Hudson v. La. (1981)

450 U.S. 40, 42]; [United States v. Martin Linen Supply

Co. (1977) 430 U.S. 564, 571].) Where 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,’ however, a reversal or dismissal

on that ground does not bar retrial. (Tibbs v. Florida

(1982) 457 U.S. 31, 42, 45-46, fn. 22 (Tibbs).)”

“Although a trial court may apply the substantial

evidence standard when dismissing pursuant to

section 1385, it usually does not. Indeed, the standard

for dismissal under section 1385 is quite broad and

permits dismissal under a variety of circumstances.”

(Hatch, supra, 22 Cal.4th at p. 273.) “Section 1385

dismissals should not be construed as an acquittal for

legal insufficiency unless the record clearly indicates

the trial court applied the substantial evidence

standard. (People v. Hatch (2000) 22 Cal.4th 260, 271,

273 [].) 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 . . . 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.” [Citation.]’ (Id. at p. 270.)” (People v. Hampton

(2022) 74 Cal.App.5th 1092, 1104 (Hampton).)

In other words, “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.

60a

[Citation.] Absent such a showing, [the court] will

assume the court did not intend to dismiss for legal

insufficiency and foreclose reprosecution.” (Hatch,

supra, 22 Cal.4th at p. 273, italics in original.)

As explained in Hatch, the court’s analysis starts

with the minute order because, at the time, the

reasons for dismissal had to be stated in the minutes.

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

order stated, “The Court reads the written decision

into the record dismissing this case pursuant to Penal

Code Section 1385 based on insufficient evidence. The

written decision is ordered filed and defendant’s bail

is ordered exonerated.” (See Motion, Exhibit B, italics

added.) Thus, the Minute order expressly states that

the basis for the dismissal was insufficiency of the

evidence. The minute order is clear and unambiguous

that the reason for the dismissal was insufficiency of

the evidence.

In Hatch, the minute order stated “that ‘no reasonable jury would convict . . . based on the evidence

presented in court.’” The court reasoned, “This order

does not indicate that the court viewed the evidence

in the light most favorable to the prosecution.

Moreover, the use of the word ‘would’ rather than

‘could’ suggests a reweighing of evidence rather than

an application of the substantial evidence standard.

[Citation.] Taken together, these ambiguities 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.) The Hatch

court indicated that the reporter’s transcript supported

that conclusion. (Ibid.) “Like the minute order,” the

court stated, “nothing in the reporter’s transcript

indicates the trial court viewed the evidence in the

light most favorable to the prosecution. Rather, the

61a

court’s inquiries about additional evidence and its

remarks on the quality of the trial presentations and

the apparent pro-prosecution bent of the jury suggest

an assessment of the strength of the evidence. The

court’s comments on the improbability of a unanimous

verdict of guilt do not suggest otherwise. Indeed, the

mere likelihood of disagreement among rational men

‘is not in itself equivalent to a failure of proof by the

State . . . . [Citations.]” (Id. at pp. 274-275.) The court

“decline[d] to construe the section 1385 dismissal in

this case as an acquittal for double jeopardy purposes.”

(Id. at p. 275.)

Here, while the minute order does not indicate that

the court considered the evidence in the light most

favorable to the prosecution or that the court

employed the substantial evidence standard, the

minute order clearly evidenced an intent to dismiss

based on the insufficiency of the evidence. In contrast,

in Hatch, “the trial court in this case never used the

term ‘insufficient evidence.’” (Hatch, supra, 22 Cal.4th

at p. 276.) Although the written order includes

language indicating the court was dismissing the case

in the interest of justice, it notably also dismissed due

to the “insufficiency of the evidence.” (Motion, Exhibit

A, at p. 6 of 6.)

“‘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.

62a

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.].)” (Hampton,

supra, 74 Cal.App.5th at p. 1104.) Importantly, the

trial court here cited to Mannes, which explained that

insufficient evidence is a term of art and that invocation of that term indicated that a dismissal would be

considered an acquittal. Although the court did not

cite Mannes for that proposition, the citation to

Mannes suggests that the trial court was aware of the

proper use of the term “insufficient evidence.”

As explained by the Hatch court, “[i]n Mannes, the

trial court dismissed murder charges pursuant-to

section 1385 after a mistrial. In dismissing these

charges, the court stated there was ‘insufficient evidence’

to establish certain elements of the crime and ‘no

likelihood that a retrial on these charges will result in

a unanimous verdict of guilty of murder.’ (Mannes,

supra, 967 F.2d at p. 1314.) Concluding that the

phrase ‘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, the Ninth Circuit Court of Appeals held that the

dismissal was equivalent to an acquittal and barred

retrial under the Fifth Amendment. (Id. at pp. 13151316.)” (Hatch, supra, 22 Cal.4th at p. 276.)

In concluding that the dismissal order in that case

constituted an acquittal, the Mannes court reasoned,

“The order does not refer at all to the ‘weight’ of the

evidence but refers several times to ‘insufficient

evidence.’ As the Supreme Court has noted, ‘trial and

appellate judges commonly distinguish between the

weight and the sufficiency of the evidence.’ [Citation.]

Further, there was no occasion to set aside a verdict

63a

as ‘against the weight’ of the evidence, since no verdict

was reached. ‘A reversal based on the weight of the

evidence . . . can occur only after the State both has

presented sufficient evidence to support conviction

and has persuaded the jury to convict.’ [Citation.]”

(Mannes, supra, 967 F.2d at p. 1315.) Here, similarly,

although the court’s discussion of the evidence in the

written order might be construed as weighing it, the

court does not expressly mention the weight of the

evidence, only its sufficiency. And, the court did not

have occasion to determine that the jury’s verdict was

against the weight of the evidence because the jury

did not reach a verdict.

In Hampton, the court explained, “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].)” (Hampton, supra, 74 Cal.App.5th at p. 1105.)

The People correctly point out that the trial court’s

written order also expressly states that it is dismissing in furtherance of justice and it refers to People v.

Andrade (1978) 86 Cal.App.3d 963 and the furtherance of justice dismissal factors listed in that case.

64a

But, Defendant correctly argues that the court likely

believed that it must dismiss in furtherance of justice

and that it was required to consider those factors. The

court stated at the beginning of the order, “A dismissal

not made in furtherance of justice is an abuse of

discretion that requires reversal. [Citation.]” Thus, it

appears that the trial court believed that the dismissal

must be in the interest of justice to be valid. (See Orin,

supra, 13 Cal.3d at p. 945 [“The trial court’s power to

dismiss an action under section 1385, while broad, is

by no means absolute. Rather, it is limited by the

amorphous concept which requires that the dismissal

be ‘in Furtherance of justice.’”].) In other words, the

trial court would not have seen a contradiction in

dismissing both in the interest of justice and due to

insufficiency of the evidence because all dismissals

under section 1385 were required to be in the interest

of justice. (See Hatch, supra, 22 Cal.4th at p. 273 [“a

trial court may apply the substantial evidence standard

when dismissing pursuant to section 1385”].)

The People also point out that the court cited to

certain cases and used certain language that may be

read as invoking the “broad standard of justice.” (See

People v. Superior Court of Marin County (1968) 69

Cal.2d 491, 504.) But, that case did not involve the

question of whether a dismissal operated as an acquittal

and the trial court in that case referred to the

insufficiency of the evidence despite dismissing in the

interest of justice. (Ibid.) Furthermore, the trial court’s

written order in this case also cited cases that clearly

discuss the distinction between a dismissal resulting

in an acquittal and one that does not. (See Tibbs,

supra, 457 U.S. 31; Mannes, supra, 967 F.2d 1310.)

Additionally, the trial court noted at the very outset

of its written order that the reasons for the dismissal

65a

must appear in the minute order. As mentioned above

the only reason mentioned in the minute order was

the insufficiency of the evidence. At the time the trial

court entered its dismissal order, a statement of

reason in the minutes was “mandatory and not merely

directory.” (Orin, supra, 13 Cal.3d at p. 944.) Thus, the

fact that the minute order mentions only the

insufficiency of the evidence is telling.

Further, the trial court’s written order repeatedly

referred to the lack of evidence to convict Defendant.

The court stated, “There is simply a lack of evidence

on which to convict the defendant” and “Due to the

lack of evidence in this case, a jury will never be able

to reach a unanimous verdict of guilty.” Further, the

Court stated, “It is therefore the order of this Court

that the case be dismissed in the furtherance of justice

for insufficiency of the evidence.”

The People contend that contemporaneous evidence

indicates that Judge Terry believed the case could be

reified if they provided new evidence. As discussed

above, Judge Terry’s views in that respect are irrelevant.

In Mannes, supra, 967 F.2d at p. 1316, on which both

parties rely, the Ninth Circuit Court of Appeal

explained, “The trial judge in this case believed retrial

would be possible. Nevertheless, whether the Double

Jeopardy Clause bars a prosecution is not determined

by the characterization of a dismissal under state law,

nor by the trial judge’s personal understanding in this

regard. [Citations.] What matters is whether the

ruling in [defendant’s] favor was actually an ‘acquittal’

even if state law or the trial court may have labeled it

otherwise.”

The People also argue that they are entitled to a

jury trial on any questions of material fact raised in

66a

connection with the instant motion. 5 Specifically, they

contend that Defendant has challenged the credibility

of the contemporaneous statements made by the

prosecutor and defense counsel. The Court has already

declined to consider these statements as irrelevant.

Accordingly, the request for a jury trial on this issue

is moot.

As set forth above, the People contend that the

motion for judgment of acquittal Defendant filed and

the opposition to same both invoke the substantial

evidence standard while the trial court’s written

dismissal order does not. “A motion under section

1118.1 seeks a judgment of acquittal for insufficient

evidence.” (Porter v. Superior Court (2009) 47 Cal.4th

125, 132, italics removed.) “In ruling on an 1118.1

motion for judgment of acquittal, the court evaluates

the evidence in the light most favorable to the prosecution. If there is any substantial evidence, including

all inferences reasonably drawn from the evidence, to

support the elements of the offense, the court must

deny the motion.” (Ibid.) Thus, the parties invoked the

correct standard in discussing the motion for judgment of

They rely on Stone v. Superior Court (1982) 31 Cal.3d 503,

509, fn. 1 (Stone), in which the California Supreme Court stated,

“We note that a claim of double jeopardy is most appropriately

raised by way of a pretrial motion to dismiss the accusatory

pleading or portion thereof allegedly barred by double jeopardy.

The determination of the validity of a claim of double jeopardy is

a matter for the trial judge in the first instance. If there is no

material issue of fact, the judge rules on the double jeopardy

claim. If, however, a material issue of fact exists, then it is for the

jury to resolve.” As Defendant points out, the California Supreme

Court later expressed “grave doubts” about this aspect of Stone,

explaining that courts routinely decide factual questions of the

prosecutor’s intent in committing misconduct for double jeopardy

purposes. (People v. Batts (2003) 30 Cal.4th 660, 697, fn. 28.)

67a

acquittal. But, that fact has no bearing on the court’s

dismissal order, which was not prompted by the

motion for judgment of acquittal.

Again, it is not clear that the unsigned, unfiled copy

of the motion is the same motion, if any, that

Defendant filed prompting the court to dismiss the

case. And, the fact that that unfiled motion might not

have mentioned the substantial evidence standard

does not imply that the court utilized the wrong

standard in reaching its decision to dismiss the case.

Further, the fact that the court’s order does not

mention the substantial evidence standard is not

dispositive because Hatch, which held that courts

dismissing due to insufficient evidence should make it

clear that that standard was employed, did not come

out until 2000, four years after the court issued its

dismissal order. 6

For the above reasons, the Court concludes that the

dismissal order operates as an acquittal and Defendant

may not be retried, based on Double Jeopardy

grounds. The motion to dismiss is GRANTED. The

case is ordered DISMISSED.

IT IS SO ORDERED.

With this statement, the Court does not suggest that the trial

court’s order need not comply with the requirements of Hatch to

operate as an acquittal. The Court merely notes that the trial

court could not be expected to expressly invoke the substantial

evidence standard without Hatch’s guidance. And, as discussed

above, Hatch does not require the court to expressly refer to that

standard in dismissing for insufficiency of the evidence. (Hatch,

supra, 22 Cal.4th at p. 273 [“courts need not restate the

substantial evidence standard”].)

68a

Dated: August 22, 2023

/s/ Shella Deen

HON. SHELLA DEEN

JUDGE OF THE SUPERIOR COURT

cc: Defendant’s Attorney (Daniel Barton)

District Attorney (Barbara Cathcart)

Research (F)

69a

SUPERIOR COURT OF CALIFORNIA

COUNTY OF SANTA CLARA

————

Habeas No. C2200594

Trial Ct. No.

————

Plaintiff:

THE PEOPLE OF THE STATE OF CALIFORNIA

Defendant:

JOHN KEVIN WOODWARD

————

FILED

Date: August 22, 2023

REBECCA FLEMING

Chief Executive Officer Clerk

Superior Court of CA County of Santa Clara

By: /s/ T. Abdul-Ghanee

T. Abdul-Ghanee, Deputy

————

PROOF OF SERVICE BY MAIL OF: ORDER

GRANTING MOTION TO DISMISS ON

DOUNBLE JEOPARDY GROUNDS

CLERK’S CERTIFICATE OF SERVICE: I certify that

I am not a party to this case and that a true copy of

this document was sent: electronically, inter-office

mail or mailed first class, postage fully prepaid, in a

sealed envelope addressed as shown below and the

document was mailed at SAN JOSE, CALIFORNIA

on: August 22, 2023.

Rebecca Fleming, Chief Executive Officer/Clerk

70a

BY: /s/ T. Abdul-Ghanee, Deputy

T. Abdul-Ghanee

Research (F)

crimresearch@scscourt.org

Via E-Mail

DISTRICT ATTORNEY

ATTN: Barbara Cathcart

Office Of the District Attorney

70 West Hedding Street, West Wing

San Jose, CA 95110

bcathcart@dao.sccgov.org

Via E- Mail

Nolan Barton Olmos & Luciano LLP

Attn: Daniel Barton

600 University Ave.

Palo Alto, CA 94301

dbarton@nbo.law

Via E-Mail

CJIC/ODY

Via Inter Office Mail

Proof of Service

Clerk’s Certificate of Service

71a

APPENDIX D

IN THE SUPERIOR COURT OF

THE STATE OF CALIFORNIA IN AND

FOR THE COUNTY OF SANTA CLARA

————

CASE # 167658

————

TITLE:

PEOPLE OF THE STATE OF CALIFORNIA,

Plaintiff,

vs.

JOHN KEVIN WOODWARD,

Defendant.

————

DATE: AUGUST 7, 1996

HON. LAWRENCE F. TERRY

REPORTER: MARIE SUGINO

CLERK: INGRID STEWART

BAILIFF: CHUCK McCOY

COUNSEL PRESENT:

RANDY HEY, DEPUTY D.A.

GREG PARASKOU, DEPUTY P.D.

TYPE OF PROCEEDING: POST TRIAL HEARING

CONTINUED FROM 7/22/96

In open court at 9:49A.M. with above-named counsel

and defendant present.

The Court reads the written decision into the record

dismissing this case pursuant to Penal Code Section

1385 based on insufficient evidence. The written decision

is ordered filed and defendant's bail is ordered exonerated.

Court stands in recess.

72a

APPENDIX E

IN THE SUPERIOR COURT OF

THE STATE OF CALIFORNIA

IN AND FOR THE COUNTY OF SANTA CLARA

————

[FILED: Aug-7 1996]

Case No. 167658

————

PEOPLE OF THE STATE OF CALIFORNIA,

Plaintiff,

JOHN KEVIN WOODWARD

Defendant.

————

ORDER

California Penal Code section 1385, subdivision (a),

provides:

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

reason for the dismissal must be set forth in

an order entered upon the minutes. No dismissal

shall be made for any cause which would be

ground of demurrer to the accusatory pleading.

The term “furtherance of justice” was discussed in

People v. Bracey (1994) 21 Cal.App.4th 1532. The court

stated that the term requires the trial court to consider

both the constitutional rights of the defendant and

interests of society represented by the people. (Bracey

73a

at 1541). “At the very least, the reason for dismissal

must be that which would motivate a reasonable

judge.” (Mannes v. Gillespie 967 F.2d 1310, 1314 (9th

Cir. 1992)). A dismissal not made in furtherance of

justice is an abuse of discretion that requires reversal.

(Bracey at 1541).

In People v. Andrade (1978) 150 C.A.3d 963, the

court discussed some of the factors to be considered by

the trial court in determining whether to dismiss the

charge in furtherance of justice. Among the facts to be

looked at are: weight of evidence indicative of guilt or

innocence, nature of crime involved, whether defendant is

or has been incarcerated awaiting trial or has been

sentenced in related or similar case, length of incarceration, possibility of harassment, likelihood of new

or additional evidence at trial, effect on protection to

society in case defendant should actually be guilty, and

probability of greater incarceration upon conviction of

the other offense.

The trial judge is in an excellent position to

determine whether another trial would further the

interest of justice. (People v. Superior Court (1968) 69

C.2d 491, 504). The court has had the opportunity to

view the witnesses and hear the conflicting testimony.

The legislature has given the trial court the power to

dismiss under the broad standard of justice and justice

will best be served if such discretion is recognized.

(Superior Court at 505).

When the balance falls clearly in favor of the

defendant, a trial court should exercise the powers

granted to it by the legislature and grant a dismissal

in the interests of justice. (People v. Superior Court

(1968) 69 C.2d 491).

74a

The purpose of the criminal justice process is the

administration of justice for the public interest. The

public interest is served when the prosecution is given

full and fair opportunity to convict a defendant

charged with a crime. The prosecution can’t serve the

public interest in the enforcement of criminal laws

unless the trial court provides the prosecution with the

opportunity to present the admissible evidence.

In this case the prosecution has been given two

opportunities to convict the defendant and serve the

public interest. In both instances the prosecution has

been unable to prove the defendant guilty beyond a

reasonable doubt. Both trials have resulted in hung

juries, with the majority of jurors voting for acquittal.

(First trial eight to four for acquittal, second trial

seven to five for acquittal.) 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 evidence presented by the prosecution lacks the

sufficiency needed to find the defendant guilty. While

over 300 pieces of evidence were available at both

trials and over 30 witnesses were called during each

trial, the prosecution was not able to utilize the

evidence to prove the defendant guilty beyond a

reasonable doubt. The substantive quality of the

evidence did not lend itself to proving the prosecution’s

contentions. 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

75a

statements, the vast majority of the evidence does not

point to the defendant’s guilt.

The defendant’s fingerprints found on the victim’s

car were the strongest pieces of evidence presented by

the prosecution. While fingerprints are usually a

highly reliable way of determining who the perpetrator of

a crime was, in this case the prints are of an uncertain

origin and were only found on the outside of the car.

The defendant’s fingerprints were not found inside the

car, the scene of the murder. Because of this the

fingerprints lack the evidentiary strength usually

attributable to them.

The prosecution also presented evidence of hair that

was found in the victim’s car. However, they were

unable to conclusively show that the hair was the

defendant’s. Absent more compelling 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 the

defendant of murder. Further, the defendant was never

found in possession of the type of rope used in the

killing, nor was he found with the victim’s missing car

keys or American Express card. The defendant

cooperated fully with the police during questioning

and also allowed them to search his car and apartment

without objection. In the first trial, the tape recorded

interrogation of the defendant taken in violation of his

Miranda rights, was admitted into evidence by

stipulation. In the second trial it was not admitted,

based upon the prosecution’s objection. The defendant

thereafter chose to testify in the second trial. During

the defendant’s testimony, the prosecution was unable

to cast any doubt on the defendant’s veracity.

The prosecution’s theory that the defendant killed

the victim out of jealousy is not a credible one. There

76a

is insufficient proof that such a jealousy existed.

Further, no evidence was offered to show that such a

jealousy was so great that it lead the defendant to kill

the victim. In the first trial the prosecution sought to

buttress its theory of motive by introduction of

evidence that the defendant is gay. However, the

prosecution failed to show any connection between the

defendant’s homosexuality and the theory of motive.

The prosecution’s theory concerning the defendant’s

motive to kill the victim was not proven by the

evidence it presented.

By dismissing the charge against the defendant the

court would also 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.

(Tibbs . Florida (1982) 102 S.Ct.2211, 2218)). Repeated

prosecution would create a risk of conviction through

sheer governmental perseverance. (Tibbs at 2218). The

government must not risk convicting an innocent

citizen by wearing down the defendant through repeated

trials while it perfects its case.

The decision to dismiss the case against the

defendant appears to be in the furtherance of justice.

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 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 the defendant. Without new

77a

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 Court that the case

be dismissed in the furtherance of justice for insufficiency

of the evidence.

DATED: August 7, 1996

/s/ Lawrence F. Terry

LAWRENCE F. TERRY

Judge of the Superior Court

78a

APPENDIX F

IN THE SUPREME COURT OF

THE STATE OF CALIFORNIA

————

Case No.

Sixth District Court of Appeal No. H051311

————

THE PEOPLE,

Petitioner,

THE SUPERIOR COURT OF SANTA CLARA COUNTY,

Respondent;

JOHN KEVIN WOODWARD,

Real Party in Interest.

————

Santa Clara County Superior Court

Case No. C2200594

The Honorable Shella Deen, Superior Court Judge

————

REAL PARTY IN INTEREST’S

PETITION FOR REVIEW

79a

NOLAN BARTON OLMOS &

LUCIANO, LLP

*Daniel Barton (SBN 135806)

Evan Greenberg (SBN 271356)

600 University Ave

Palo Alto, CA 94301

Tel: (650) 326-2980

Fax: (650) 326-9704

Email: DBarton@nbo.law

Email: EGreenberg@nbo.law

Attorneys for Real Party in

Interest John Kevin Woodward

TABLE OF CONTENTS

TABLE OF AUTHORITIES ........................................ 4

STATEMENT OF ISSUES PRESENTED

FOR REVIEW .......................................................... 6

REASONS FOR GRANTING REVIEW...................... 7

STATEMENT OF THE CASE ................................... 11

STATEMENT OF FACTS ......................................... 13

ARGUMENT .............................................................. 13

I. Review is necessary to decide the important

question of whether Hatch remains good

law considering intervening decisions

of the United States Supreme Court

that erode the analytical foundations of

Hatch. .............................................................. 13

A. Hatch narrowly defined an “acquittal”

for federal double-jeopardy purposes

and conditioned an “acquittal” on application of the substantial evidence

standard. .................................................... 14

80a

B. The United States Supreme Court

defines an “acquittal” more broadly

than Hatch did, and Supreme Court

decisions since Hatch have eroded the

analytical foundations of Hatch. ............... 15

C. The conflict between the United States

Supreme Court’s broad definition of

“acquittal” and the narrow definition

from Hatch affects the outcome here

and results in a violation of Mr.

Woodward’s federal constitutional

rights. ......................................................... 22

II. Review is warranted because the default

presumption in Hatch against applying

double-jeopardy protections conflicts

with federal law by creating a barrier to

double-jeopardy protections that does not

exist under federal law. .................................. 24

III. Even under Hatch, review is warranted

to secure uniformity of decision and

decide the important question of law

whether a dismissal for “insufficient

evidence” bars retrial on double-jeopardy

grounds and whether the prosecution of

Mr. Woodward violates his state and

federal constitutional rights against

double jeopardy. .............................................. 27

A. The opinion below misapplied Hatch

in a manner that creates a split of

authority that merits this Court’s

review. ........................................................ 28

81a

B. Review is also warranted to give trial

courts guidance on which section 1385

dismissals will and will not bar

retrial. ........................................................ 34

CONCLUSION .......................................................... 37

CERTIFICATE OF WORD COUNT ......................... 38

PROOF OF SERVICE ............................................... 39

TABLE OF AUTHORITIES

Cases

Auto Equity Sales, Inc. v. Superior Court

(1962) 57 Cal.2d 450 ....................................... 12

Delap v. Dugger

(11th Cir. 1989) 890 F.2d 285.......................... 28

Evans v. Michigan

(2013) 568 U.S. 313 ..................................passim

Fong Foo v. United States

(1962) 369 U.S. 141 .......................... 9, 18, 19, 27

Hicks v. Oklahoma

(1980) 447 U.S. 343 ......................................... 33

In re United States

(1st Cir. 1961) 286 F.2d 556 ............................ 18

Jackson v. Virginia

(1979) 443 U.S. 307 ......................................... 17

Mannes v. Gillespie

(9th Cir. 1992) 967 F.2d 1310...................passim

McElrath v. Georgia

(2024) 601 U.S. 87 ....................................passim

People v. Andrade

(1978) 86 Cal.App.3d 963.......................... 35, 36

82a

People v. Hampton

(2022) 74 Cal.App.5th 1092 ........... 10, 11, 28, 30

People v. Hatch

(2000) 22 Cal.4th 260...............................passim

People v. Johnston

(2003) 113 Cal.App.4th 1299 .......................... 30

People v. Lopez

(2019) 8 Cal.5th 353.................................... 8, 13

People v. Pedroza

(2014) 231 Cal.App.4th 635 ............................ 28

People v. Salgado

(2001) 88 Cal.App.4th 5 .................................. 28

Sanabria v. United States

(1978) 437 U.S. 54 ............................................. 9

Tibbs v. Florida

(1982) 457 U.S. 31 ....................................passim

United States v. Bennett

(8th Cir. 1995) 44 F.3d 1364............................ 26

United States v. Jones

(4th Cir. 2017) 858 F.3d 221............................ 26

United States v. Rigas

(3d Cir. 2010) 605 F.3d 194 ............................. 26

United States v. Scott

(1978) 437 U.S. 82 .................................... 16, 17

United States v. Sisson

(1970) 399 U.S. 267 ..................................... 9, 10

Statutes

Pen. Code, § 1118.1 ............................................. 36

Pen. Code, § 1385 .........................................passim

83a

Con

This text is long and has been trimmed here. Open the source document for the complete record.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.