Opposition Brief — John Kevin Woodward, Petitioner v. California, et al.

No. 24-227

In the Supreme Court of the United States

JOHN KEVIN WOODWARD,

Petitioner,

v.

STATE OF CALIFORNIA,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE CALIFORNIA COURT OF APPEAL, SIXTH DISTRICT

BRIEF IN OPPOSITION

ROB BONTA

Attorney General of California

MICHAEL J. MONGAN

Solicitor General

JEFFREY M. LAURENCE

Senior Assistant Attorney General

JOSHUA A. KLEIN

AARON D. PENNEKAMP*

Deputy Solicitors General

AMIT KURLEKAR

Deputy Attorney General

December 6, 2024

STATE OF CALIFORNIA

DEPARTMENT OF JUSTICE

1300 I Street, Suite 125

P.O. Box 944255

Sacramento, CA 94244-2550

(916) 210-6661

Aaron.Pennekamp@doj.ca.gov

*Counsel of Record

i

QUESTION PRESENTED

California law provides several statutory procedures by which a trial court can dismiss a criminal

charge. Under Penal Code Section 1118.1, for example, a trial court can dismiss a criminal charge only if

the court deems the evidence legally insufficient to

support a conviction, meaning that no reasonable juror could vote to convict even when viewing the evidence in the light most favorable to the prosecution.

Under Penal Code Section 1385, by contrast, a trial

court may dismiss a charge for a range of reasons, so

long as the dismissal is “in furtherance of justice.” The

question presented is:

Whether the California Court of Appeal erred

when it reviewed the record and held that the trial

court’s dismissal of a criminal charge under Section

1385 did not constitute an “acquittal” for purposes of

the Double Jeopardy Clause of the Fifth Amendment.

ii

TABLE OF CONTENTS

Page

Statement .................................................................... 1

Argument ..................................................................... 8

Conclusion.................................................................. 21

iii

TABLE OF AUTHORITIES

Page

CASES

Cutter v. Wilkinson

544 U.S. 709 (2005) .............................................. 21

Evans v. Michigan

568 U.S. 313 (2013) ........................ 9, 12, 13, 16, 20

Fong Foo v. United States

369 U.S. 141 (1962) .............................................. 16

Green v. United States

355 U.S. 184 (1957) ................................................ 9

Greene v. Massey

437 U.S. 19 (1978) ................................................ 18

Jackson v. Virginia

443 U.S. 307 (1979) ................................................ 1

Mannes v. Gillespie

967 F.2d 1310 (9th Cir. 1992) .............................. 19

Marshall v. Bristol Super. Ct.

753 F.3d 10 (1st Cir. 2014) .................................. 18

McElrath v. Georgia

601 U.S. 87 (2024) ................................ 9, 12, 13, 20

Nat’l Pork Producers Council v. Ross

598 U.S. 356 (2023) .............................................. 13

iv

TABLE OF AUTHORITIES

(continued)

Page

OBB Personenverkehr AG v. Sachs

577 U.S. 27 (2015) ................................................ 21

People v. Hatch

22 Cal. 4th 260 (2000) ....... 5, 6, 8, 12, 14, 15, 17-20

People v. Jablonski

37 Cal. 4th 774 (2006) .......................................... 14

People v. Johnson

47 Cal. 3d 1194 (1989)............................................ 1

People v. Tirado

12 Cal. 5th 688 (2022) ........................................ 1, 2

People v. Trevino

39 Cal. 3d 667 (1985).............................................. 1

Rivera v. Sheriff of Cook Cnty.

162 F.3d 486 (7th Cir. 1998) ................................ 18

Sanabria v. United States

437 U.S. 54 (1978) ................................................ 16

Smith v. United States

599 U.S. 236 (2023) .................................... 9, 10, 14

Tibbs v. Florida

457 U.S. 31 (1982) ................................ 10-16, 18-20

United States v. Campbell

977 F.2d 854 (4th Cir. 1992) ................................ 20

v

TABLE OF AUTHORITIES

(continued)

Page

United States v. Dodd

391 F.3d 930 (8th Cir. 2004) ................................ 20

United States v. Martin Linen Supply

Co.

430 U.S. 564 (1977) .............................................. 15

United States v. Robertson

110 F.3d 1113 (5th Cir. 1997) .............................. 20

United States v. Scott

437 U.S. 82 (1978) ............................................ 9, 14

United States v. Sisson

399 U.S. 267 (1970) .............................................. 16

United States v. Wilson

420 U.S. 332 (1975) .............................................. 16

Wheeler v. App. Div. of Super. Ct.

15 Cal. 5th 1193 (2024) ...................................... 1, 2

Wilcox v. State

342 Ark. 388 (2000) .............................................. 20

STATUTES

Cal. Penal Code

§ 1118.1 ......................................................... 1, 3, 18

§ 1385 .................................................. 1-8, 11, 14-20

vi

TABLE OF AUTHORITIES

(continued)

Page

COURT RULES

Cal. R. Ct. 8.500(c)(1) .......................................... 14, 21

S. Ct. R. 14(1)(a) ........................................................ 14

1

STATEMENT

1. Several provisions of California law authorize

trial courts to dismiss a criminal charge. California

Penal Code Section 1118.1, for example, authorizes a

court—“at the close of the evidence . . . and before the

case is submitted to the jury”—to enter “a judgment of

acquittal of one or more of the offenses charged” if the

evidence is insufficient to support a verdict of guilty as

a matter of law. The standard governing whether evidence is legally insufficient is sometimes called the

“substantial evidence” standard. See People v. Trevino, 39 Cal. 3d 667, 695 (1985), disapproved in part

on other grounds by People v. Johnson, 47 Cal. 3d 1194

(1989). That standard tracks the standard described

in Jackson v. Virginia, 443 U.S. 307 (1979): California

courts “‘view[] the evidence in the light most favorable

to the prosecution’” and determine whether “‘any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’”

Trevino, 39 Cal. 3d at 695 (quoting Jackson, 443 U.S.

at 318-319).

In contrast, Penal Code Section 1385 provides trial

courts general discretion to dismiss a case “in furtherance of justice.” 1 A range of circumstances can support a dismissal under that “broad” standard. People

v. Tirado, 12 Cal. 5th 688, 696 (2022). One is that the

evidence presented by the prosecution is insufficient

as a matter of law (which would also support a Section

1118.1 dismissal). See Wheeler v. App. Div. of Super.

Ct., 15 Cal. 5th 1193, 1208 (2024). But dismissals under Section 1385 “often” do not reflect that rationale.

Id. (internal quotation marks omitted).

To the

1 The California Legislature has amended Section 1385 several

times during the relevant time period, but the statutory language

quoted in this brief has not changed.

2

contrary, where dismissal would promote the interests

of justice, a trial court may dismiss a charge under

Section 1385 “notwithstanding the fact that there is

sufficient evidence of guilt” to support a conviction. Id.

(internal quotation marks omitted). Examples of permissible interests-of-justice dismissals include cases

where “a trial or a retrial” of the defendant would

amount to “harassment,” id. (internal quotation

marks omitted); where a defendant is only minimally

culpable for a criminal charge “despite indications of

guilt,” id. at 1212; and where a prior conviction would

unjustly enhance punishment at sentencing, id. at

1207. See generally Tirado, 12 Cal. 5th at 696 (Section

1385 “permits dismissals in the interests of justice in

any situation where the Legislature has not clearly evidenced a contrary intent.”).

2. This case involves the murder of 25-year-old

Laurie Houts. See Pet. App. 4a; see also Exhibits to

Pet. for Writ of Mandate, People v. Woodward, No.

H051311 (Cal. Ct. App., 6th Dist.) (Mandate Pet.

Exs.), at 73. In 1992, Houts’s body was found “strangled with a rope” in the driver’s seat of her car. Pet.

App. 4a. Police investigating the murder found several items of evidence connecting petitioner John

Kevin Woodward to the crime. See id. For example,

Woodward lived with Houts’s boyfriend and “had reportedly displayed possessive behavior toward” the

boyfriend. Id. Woodward’s fingerprints were “on the

outside of Houts’s car.” Id. “[F]ibers 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.” Id. Moreover,

Woodward “had no alibi for the window of time in

which Houts was killed.” Id. And during a “pretext

phone call” placed by Houts’s boyfriend, Woodward

“never denied killing Houts.” Id. He instead asked

3

the boyfriend “what evidence the police had against

him and suggested they meet in a parking lot to discuss the matter.” Mandate Pet. Exs. 10.

Based on this and other evidence, the district attorney charged Woodward with Houts’s murder. See

Pet. App. 4a. At the close of evidence in Woodward’s

first trial in 1995, the court denied Woodward’s motion

under Section 1118.1 for judgment of acquittal based

on legal insufficiency of the evidence. See Trial

Minutes for Jun. 21, 1995, People v. Woodward, No.

167658 (Cal. Super. Ct., Santa Clara Cnty.), at 3 (indicating that the trial court denied Woodward’s “motion for dismissal under Penal Code Section 1118.1”);

see generally supra p. 1. The jury was unable to reach

a verdict, however, with four jurors voting to convict

and eight to acquit. See Pet. App. 4a. During Woodward’s second trial in 1996, the court once again denied Woodward’s motion at the close of the evidence

for judgment of acquittal pursuant to Section 1118.1.

See id. at 9a, 52a. But the second jury’s deliberations

also ended in deadlock; this time, five jurors voted to

convict and seven to acquit. See id. at 4a.

At a hearing after Woodward’s second trial, on August 7, 1996, the trial court dismissed the murder

charge under Penal Code Section 1385. See Pet. App.

4a-5a; id. at 71a (minute order). In its written order

explaining that dismissal, the court discussed “some

of the factors to be considered . . . in determining

whether to dismiss the charge in furtherance of justice,” including the “weight of [the] evidence indicative

of guilt or innocence,” the “nature of [the] crime involved,” and the “likelihood of new or additional evidence” at any subsequent trial. Id. at 73a. The trial

court judge explained that he was “in an excellent position to determine whether another trial would

4

further the interest[s] of justice,” because he “had the

opportunity to view the witnesses and hear the conflicting testimony” at the first two trials. Id.

Based on his view of the previous trials, the judge

concluded that the “interest[s] of justice w[ould] best

be served by a dismissal,” because “a jury will never

be able to reach a unanimous verdict of guilty” without

additional evidence, and thus “[a]nother trial would

only serve to harass the defendant.” Pet. App. 76a,

77a. Although the court recognized that Woodward’s

“fingerprints and [his] apparent inconsistent statements” arguably “point[ed] to the defendant’s guilt,”

the court also noted certain weaknesses in the prosecution’s case. Id. at 74a-75a. For example, Woodward’s fingerprints “were only found on the outside of

the car,” he “was never found in possession of the type

of rope used in the killing,” and he “cooperated fully

with the police during questioning and also allowed

them to search his car and apartment without objection.” Id. at 75a. The court also considered the prosecution’s “theory that [Woodward] killed [Houts] out of

jealousy” to be “not . . . credible.” Id. at 75a-76a. After

reading into the record its written order describing

this rationale, the court issued a minute order “dismissing th[e] case pursuant to Penal Code Section

1385 based on insufficient evidence.” Id. at 71a.

3. In the ensuing years, the investigation of

Houts’s murder continued. Detectives examined a

DNA sample collected from the rope that had been

used to murder Houts and determined that “Woodward’s DNA profile matched the DNA sample from the

rope at all 25 markers.” Pet. App. 7a & n.4. The

county crime lab used new technology to analyze fibers

found on Woodward’s sweatpants and concluded that

“the fibers were indistinguishable from the fibers

5

found on the rope” used in the murder. Id. at 7a n.4.

And the investigation revealed “additional latent fingerprints matching Woodward on the exterior of

Houts’s car.” Id. In 2022, the district attorney refiled

the murder charge against Woodward. See id. at 7a8a; see also Mandate Pet. Exs. 9-11.

Woodward moved to dismiss the charge on the

ground that it violated the state and federal constitutional protections against double jeopardy. See Pet.

App. 8a. Invoking the California Supreme Court’s decision in People v. Hatch, 22 Cal. 4th 260 (2000), he

argued that the 1996 dismissal order under Section

1385 “‘serves the same function as an acquittal for

double jeopardy purposes’ and bars retrial.” Pet. App.

8a. In his reading, Hatch established that a Section

1385 dismissal “acts as an acquittal, and bars a retrial, when ‘the record clearly indicates the trial court

applied the substantial evidence standard.’” Mandate

Pet. Exs. 55 (quoting Hatch, 22 Cal. 4th at 273). And

as he parsed the record here, that standard prohibited

his retrial, because the written and minute orders describing the Section 1385 dismissal “repeatedly rul[ed]

the evidence ‘insufficient.’” Id.

The trial court granted Woodward’s motion. See

Pet. App. 52a-68a. 2 It followed Hatch as the relevant

precedent. See id. at 58a-60a. In the court’s view, the

minute order’s one-sentence explanation was “unambiguous that the reason for the dismissal was insufficiency of the evidence.” Id. at 60a. And the court

reasoned that the separate written order did not undermine the minute order’s clarity: “although the

2 The trial judge who presided over Woodward’s two trials and

entered the 1996 dismissal order retired before the district attorney refiled the murder charge in 2022. Woodward’s motion was

therefore heard by a new trial judge. See Pet. App. 68a.

6

court’s discussion of the evidence . . . might be construed as weighing it, the court does not expressly

mention the weight of the evidence, only its sufficiency.” Id. at 63a. Because the court read the Section

1385 order as a dismissal based on insufficient evidence as a matter of law, it ruled that the Double Jeopardy Clause prohibited another trial. See id. at 67a.

4. The California Court of Appeal granted the district attorney’s petition for a writ of mandate. See Pet.

App. 2a-40a. Once again, the parties’ arguments centered on whether the 1996 dismissal was an acquittal

under Hatch. See, e.g., Verified Answer to Pet. for

Writ of Mandate, People v. Woodward, No. H051311

(Cal. Ct. App., 6th Dist.) (Woodward Mandate Answer), at 18-19 (arguing that the trial court “correctly

applied” Hatch). Applying Hatch to the record in this

case, the court of appeal held that the trial court had

misinterpreted the 1996 dismissal order. See Pet.

App. 3a. Although “trial courts may acquit pursuant

to section 1385 for legal insufficiency of the evidence,”

the court of appeal noted, such dismissals “‘often are

not based’” on that rationale. Id. at 20a, 21a (quoting

Hatch, 22 Cal. 4th at 273). And “because section 1385

dismissals are often based on factors other than insufficiency of the evidence,” the California Supreme

Court had instructed state appellate courts not to construe a dismissal under that provision as an acquittal

for legal insufficiency unless the record clearly indicates that the trial court applied the substantial evidence standard. See id. at 21a (citing Hatch, 22 Cal.

4th at 273).

The court of appeal disagreed with Woodward’s

contention that the dismissal order reflected a finding

that “the evidence was insufficient as a matter of law

to support a conviction.” Pet. App. 31a. The dismissal

7

order contained “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 [were] dismissed.” Id. at 38a (internal quotation marks omitted). The trial “court’s

reasoning suggest[ed] 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.” Id. at 31a. In contrast, there was “no indication

the trial court viewed the evidence in the light most

favorable to the prosecution.” Id. Given the written

order, the court of appeal found it “impossible . . . to

conclude that the [trial] court intended to dismiss

[Woodward’s case] for lack of sufficient evidence as a

matter of law.” Id. at 38a. As a result, the Section

1385 dismissal order was not an “acquittal,” and the

Double Jeopardy Clause did not bar the district attorney’s refiled murder charge. See id. at 40a. 3

Justice Lie concurred in the judgment while expressing certain reservations. See Pet. App. 42a-50a.

She agreed that the court of appeal’s “dutifully exacting scrutiny of the trial court’s dismissal order” suggested that the order was not based on insufficient

evidence as a matter of law. Id. at 50a. In her opinion,

3 In reaching this conclusion, the court of appeal found it unnecessary to consider certain additional evidence bearing on the

meaning of the 1996 dismissal order—including a declaration

from the prosecuting attorney concerning statements from the

trial judge about the possibility of refiling the case and a contemporaneous newspaper article that quoted “statements by the

prosecutor and defense counsel regarding the likelihood of refil[ed] charges.” Pet. App. 9a-10a; see also Mandate Pet. Exs. 138142. The trial court had found these documents to be “irrelevant,” and the district attorney’s writ petition did not challenge

that relevancy determination. Pet. App. 56a; see id. at 28a n.8.

8

however, the trial court’s Section 1385 order might

nevertheless function as an acquittal for double jeopardy purposes because it was a “ruling which relates

to the ultimate question of guilt or innocence.” Id. at

43a (emphasis, internal quotation marks, and brackets omitted); see id. at 50a. Although Woodward had

not mentioned it, Justice Lie also raised the possibility

that Hatch had been superseded by later cases from

this Court. See id. at 42a.

5. Woodward filed a petition for review in the California Supreme Court. See Pet. App. 78a-112a. For

the first time, Woodward argued that Hatch—the case

on which he principally relied in the lower courts—

conflicted with this Court’s double jeopardy jurisprudence. See id. at 83a. The California Supreme Court

denied Woodward’s petition, with Justice Evans indicating that she would have granted the petition. See

id. at 1a.

ARGUMENT

The court of appeal determined that the Section

1385 dismissal in this case was based on the trial

court’s assessment—given the weight of the evidence

in 1996—that future trials would lead to more hung

juries. Under this Court’s precedent, that weight-ofthe-evidence determination does not constitute an “acquittal” that bars retrial under the Double Jeopardy

Clause. Woodward offers no persuasive reason for this

Court to second-guess the court of appeal’s fact-bound

interpretation of the trial court record. He does not

allege that the decision below implicates any conflict

of authority among lower courts. And his argument

that California’s double jeopardy precedent contravenes this Court’s precedent is not only incorrect, but

also unpreserved: it was not raised before the trial

court or before the court of appeal, whose judgment

9

Woodward asks this Court to review. The petition for

a writ of certiorari should be denied.

1. The court of appeal faithfully applied this

Court’s double jeopardy precedent to the unique record before it.

“It has long been settled under the Fifth Amendment that a verdict of acquittal is final, ending a defendant’s jeopardy, and . . . is a bar to a subsequent

prosecution for the same offence.” Green v. United

States, 355 U.S. 184, 188 (1957). This Court has “defined an acquittal to encompass any ruling that the

prosecution’s proof is insufficient to establish criminal

liability for an offense.” Evans v. Michigan, 568 U.S.

313, 318 (2013). For example, “a jury’s verdict of acquittal is inviolate.” McElrath v. Georgia, 601 U.S. 87,

94 (2024). The same is true when a court enters a directed verdict of acquittal based on its view that the

prosecution’s evidence “was legally insufficient to sustain a conviction.” Evans, 568 U.S. at 320 (internal

quotation marks omitted). And an acquittal also occurs when a court makes certain “substantive” rulings

that “‘relate[] to the ultimate question of guilt or innocence,’” such as a “factual finding [that] necessarily establish[es] the criminal defendant’s lack of criminal

culpability.” Id. at 319 (quoting United States v. Scott,

437 U.S. 82, 98 n.11 (1978)).

In contrast, “a defendant who has been released by

a court for reasons required by the Constitution or

laws, but which are unrelated to factual guilt or innocence,” has not been acquitted for purposes of the Double Jeopardy Clause. Scott, 437 U.S. at 98 n.11. A

“retrial is permissible” in those circumstances because

“the termination of proceedings is perfectly consistent

with the possibility that the defendant is guilty of the

charged offense.” Smith v. United States, 599 U.S.

10

236, 253 (2023). “For example, the Double Jeopardy

Clause is not triggered when a trial ends in juror deadlock.” Id. Nor does an acquittal occur when a court

“set[s] aside a conviction on the ground that the

[jury’s] verdict was against ‘the weight of the evidence,’” such as when the judge “disagrees with the

jury’s resolution” of “conflicting testimony.” Tibbs v.

Florida, 457 U.S. 31, 32, 42 (1982). Determining the

basis of the judicial decision that terminated a prosecution may require a “close reading” of the decision.

Id. at 46.

The court of appeal below understood the difference between a judicial dismissal based on legally insufficient evidence (where no reasonable trier of fact

could find guilt beyond a reasonable doubt), and a dismissal based on other factors like a jurist’s personal

view of the weight of the evidence (where reasonable

minds could disagree on a verdict). See Pet. App. 19a20a; Tibbs, 456 U.S. at 41-42. And the court examined

the record in this case to determine whether the 1996

dismissal was based on a determination that the evidence presented at Woodward’s trial was legally insufficient, or whether it was based instead on the trial

judge’s assessment of other factors—such as the “interests of justice” and the judge’s individual perceptions about “conflicting” evidence. Tibbs, 457 U.S. at

46, 47; see Pet. App. 24a-40a.

As the court of appeal recognized, the dismissal order here falls in the latter category. Although Woodward emphasizes a single sentence in the minute

order referencing “insufficient evidence,” Pet. 2, 12

(citing Pet. App. 71a), he largely ignores the trial

court’s written explanation of that minute order, see

Pet. App. 72a-77a. That explanation nowhere stated

that the prosecution’s evidence was legally insufficient

11

to support a guilty verdict. Instead, the trial court reviewed the factors relevant to an “interests of justice”

determination under Section 1385—including the

“weight of [the] evidence indicative of guilt or innocence,” the “possibility of harassment,” and the “likelihood of new or additional evidence at trial.” Id. at 73a.

The trial court’s analysis of those factors was

grounded in its own view of the evidence. For example, it acknowledged the existence of evidence (like

Woodward’s fingerprints and inconsistent statements)

“point[ing] to [Woodward’s] guilt.” Id. at 74a-75a. But

it also perceived shortcomings in the credibility of certain testimony. See id. at 75a-76a. And based on its

overall assessment of the nature and extent of the

prosecution’s evidence, the court concluded that an additional trial would not result in “a unanimous verdict

of guilty.” Id. at 76a-77a (emphasis added).

Under these circumstances, the court of appeal

properly construed the dismissal order as one based

not on the legal sufficiency of the evidence, but on the

weight of that evidence. This Court has long recognized that a judge’s decision to set aside a jury’s verdict based on the judge’s own assessment of “the

weight, rather than the sufficiency,” of the evidence

“permits the State to initiate a new prosecution.”

Tibbs, 457 U.S. at 32; see id. at 46-47. The same principle applies with equal force to a judge’s decision to

dismiss a charge based on his view of the “weight of

[the] evidence indicative of guilt or innocence.” Pet.

App. 73a.

2. Woodward does not discuss or even cite Tibbs,

but he nevertheless contends that allowing another

trial would contravene this Court’s double jeopardy jurisprudence. See Pet. 5-12. That is incorrect.

12

a. Woodward first argues that Evans and

McElrath require a “broader definition” of “what constitutes an acquittal for double jeopardy purposes,” encompassing the weight-of-the-evidence dismissal in

this case. Pet. 5; see id. at 12-13. But neither decision

purported to overrule the Court’s earlier holding in

Tibbs that dismissals based on evidentiary weight do

not bar retrial. See supra pp. 10-11. And neither decision casts doubt on that holding.

The circumstances in both cases unquestionably

involved acquittals that implicated the Double Jeopardy Clause. In McElrath, this Court held that inconsistencies between a jury’s acquittal and conviction

verdicts on various charges did not allow retrial on the

charges for which the jury voted to acquit. 601 U.S. at

89-90. In Evans, the trial court had “evaluated the

[State’s] evidence and determined that it was legally

insufficient to sustain a conviction”—a determination

that remained an “acquittal” even if “it was predicated

upon a clear misunderstanding of ” the state-law elements of the crime. 568 U.S. at 320 (internal quotation marks omitted). So neither decision had any

occasion to explore the line between dismissals based

on a judge’s view about the weight of the evidence and

those based on a determination that the evidence is

legally insufficient.

Woodward nonetheless contends that those decisions conflict with the California precedent that he invoked in the courts below. See supra pp. 5-8. He notes

that, under People v. Hatch, 22 Cal. 4th 260 (2000),

“retrial is barred ‘only when a trial court clearly makes

a finding of legal insufficiency.’” Pet. 5 (brackets omitted). In his view, that conflicts with Evans and

McElrath, which establish “that an ‘acquittal’ includes

a finding of insufficient evidence and also includes

13

‘any other ruling which relates to the ultimate question

of guilt or innocence.’” Id. at 5-6 (quoting Evans, 568

U.S. at 319 (emphasis altered)); see also id. at 9 (quoting McElrath, 601 U.S. at 94).

But the “relates to the ultimate question of guilt or

innocence” language from Evans and McElrath cannot

bear the weight of Woodward’s argument. “[T]he language of an opinion is not always to be parsed as

though we were dealing with language of a statute.”

Nat’l Pork Producers Council v. Ross, 598 U.S. 356,

373 (2023) (internal quotation marks omitted). Instead, Evans and McElrath “dispose[d] of discrete

cases and controversies and . . . must be read with a

careful eye to context.” Id. at 373-374.

In Evans, for example, the Court emphasized that

it had “defined an acquittal to encompass any ruling

that the prosecution’s proof is insufficient to establish

criminal liability for an offense.” 568 U.S. at 318. The

passage cited by Woodward observes that a dismissal

based on a finding of legally insufficient evidence as to

an element that is erroneous or nonexistent still resolves the question of criminal culpability and thus

amounts to an acquittal—just like a dismissal based

on legally insufficient evidence as to “an actual element” (Pet. 6) of the charged offense. Evans, 568 U.S.

at 319-320; see also McElrath, 601 U.S. at 94 (verdict

of not guilty by reason of insanity was an acquittal because it determined “that the prosecution’s proof is insufficient to establish criminal liability”). Understood

in context, the language quoted by Woodward does not

undermine Tibbs or bear on the weight-of-the-evidence dismissal at issue here.

And a more recent decision of this Court confirms

that the dismissal in this case falls outside the category of orders that “relate[] to the ultimate question of

14

guilt or innocence” within the meaning of this Court’s

double jeopardy jurisprudence. In Smith, the Court

noted that retrial after a jury deadlock does not constitute double jeopardy because the first trial “terminate[d] ‘on a basis unrelated to factual guilt or

innocence of the offence of which [the defendant] is accused.’” 599 U.S. at 253 (quoting Scott, 437 U.S. at 99

(emphasis added)). To be sure, a jury’s inability to

reach a unanimous verdict reflects individual jurors’

assessment of things that “relate to” guilt or innocence

in some colloquial sense—but not in the sense that

matters for the Double Jeopardy Clause, because a

hung jury “is perfectly consistent with the possibility

that the defendant is guilty of the charged offense.”

Id. The same is true of weight-of-the-evidence dismissals, which “do[] not mean that acquittal was the only

proper verdict” and “no more signif[y] acquittal than

does a . . . deadlocked jury.” Tibbs, 457 U.S. at 42. 4

b. Woodward next criticizes Hatch’s methodology

for interpreting ambiguous Section 1385 dismissal orders. That methodology examines whether the trial

court “‘applied the substantial evidence standard,’

4 The concurring opinion below suggested that Tibbs applies only

to the reversal of a conviction based on a judge’s assessment of

the weight of the evidence, instead of a weight-of-the-evidence

dismissal following a mistrial like the one at issue here. See Pet.

App. 47a-48a. Woodward has forfeited that argument by not

timely raising it in this petition or in the courts below. See S. Ct.

R. 14(1)(a); Cal. R. Ct. 8.500(c)(1); People v. Jablonski, 37 Cal. 4th

774, 823 (2006). In any event, the argument would fail. From

the standpoint of the Double Jeopardy Clause, there is no difference between a weight-of-the-evidence determination after a jury

convicts and an identical determination after a jury hangs. In

either situation, the court’s order “d[oes] not adjudicate [the defendant’s] culpability,” and “thus does not trigger the Double

Jeopardy Clause.” Smith, 599 U.S. at 254.

15

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.’” Pet. 5 (quoting Hatch, 22 Cal.

4th at 273). There is nothing improper about that

methodology: Tibbs recognized that the same standard is what defines “the difference between” a court’s

findings based on “evidentiary weight” and those

based on “evidentiary sufficiency”—the dispositive issue in determining whether a dismissal constitutes an

acquittal. Tibbs, 457 U.S. at 38 n.11; see also id. at 46

(reviewing a lower court decision for the “hallmark[s]

of review based on evidentiary weight, not evidentiary

sufficiency”).

Woodward argues that Hatch improperly requires

courts to “review[] whether a trial court, in entering

an acquittal for insufficient evidence, correctly applied

the correct legal standard for the acquittal.” Pet. 9.

But that argument misunderstands Hatch. As the

California Supreme Court recognized, a court’s task

when reviewing a Section 1385 dismissal order is not

to determine whether the trial court’s dismissal was

“correct.” Hatch, 22 Cal. 4th at 270. Instead, the court

must “‘determine whether the ruling of the judge,

whatever its label, actually represents a resolution,

correct or not, of some or all of the factual elements of

the offense charged.’” Id. (quoting United States v.

Martin Linen Supply Co., 430 U.S. 564, 571 (1977)

(emphasis added)). “If a trial court rules the evidence

is insufficient as a matter of law” under Section 1385,

“then the ruling bars retrial even if it is patently erroneous or the court has no statutory authority to make

it.” Id. at 270-271 (emphasis added).

Hatch and the decision below are therefore consistent with the decisions invoked by Woodward

16

concerning “court-decreed acquittal[s]” based on “legal

rulings” that were “erroneous.” Pet. 10 (internal quotation marks omitted); see also id. at 8. In those cases,

this Court held that a trial court’s decision to enter a

judgment of acquittal remained an “acquittal” for double jeopardy purposes, even if it was later determined

to be the product of a legal error. See Evans, 568 U.S.

at 315; Sanabria v. United States, 437 U.S. 54, 77-78

(1978); Fong Foo v. United States, 369 U.S. 141, 143

(1962). Those cases say nothing about the situation

presented here, where the court of appeal did not review the trial court’s Section 1385 dismissal order for

errors, but instead merely analyzed the order to determine whether it was meant to be an “acquittal.” See

Pet. App. 31a-40a.

Woodward’s argument (Pet. 10) based on United

States v. Sisson, 399 U.S. 267 (1970), is similarly unpersuasive. That pre-Tibbs case addressed whether a

trial court’s order “holding that [the defendant] could

not be criminally convicted” for the charged offense

qualified as “an arrest of judgment” under the Criminal Appeals Act, which “narrowly limits the Government’s right to appeal in criminal cases to certain

types of decisions.” Sisson, 399 U.S. at 270. A plurality held that the trial court’s order was not appealable,

and that the appeal should have been dismissed for

lack of jurisdiction. Id. at 270; see also id. at 280. That

holding sheds no light on the issue here. The general

discussion of double jeopardy principles in Sisson related to a “hypothetical” scenario, “not to the order entered by the trial court in Sisson itself.” United States

v. Wilson, 420 U.S. 332, 350 (1975). Indeed, it would

have been “inappropriate” for the Court to have fully

resolved the double jeopardy effect of the trial court’s

order in Sisson instead of the statutory question that

was actually before the Court. Id. at 351 n.18.

17

c. Woodward also contends that Hatch “conflicts

with this Court’s precedent by creating a presumption

against applying the double jeopardy bar.” Pet. 9 (emphasis omitted). That misunderstands both Hatch

and this Court’s precedent.

Hatch recognized and squarely reaffirmed the

principle “that the Fifth Amendment precludes retrial

if a court determines the evidence” is “insufficient to

support a conviction as a matter of law.” Hatch, 22

Cal. 4th at 271; see also id. at 270 (“‘[W]hat constitutes

an ‘acquittal’ is not to be controlled by the form of the

judge’s action.’”); id. at 273 (no need for “‘magic

words’”). The Court also acknowledged an interpretive difficulty arising from California’s unique statutory scheme. “[T]he standard for dismissal under

section 1385 is quite broad and permits dismissal under a variety of circumstances,” some of which “may

not even ‘involve a consideration of the merits of the

cause.’” Id. at 273. That can create “future confusion”

(id. at 274) about whether a dismissal is “based on the

insufficiency of the evidence as a matter of law.” Id.

at 273. The Court therefore made a “simple request”

of trial judges: “We merely ask trial courts to 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.” Id. When that

is not clear, appellate courts “will assume that the

[trial] court did not intend to dismiss for legal insufficiency.” Id.; see id. at 271 (similar).

Although Woodward criticizes Hatch’s instructions

for how California appellate courts should construe

ambiguous Section 1385 orders, this Court has recognized in a related context that “the meaning attached

to an ambiguous prior reversal is a matter of state

18

law” that generally “binds this Court” in conducting a

double jeopardy inquiry. Tibbs, 457 U.S. at 46-47 &

n.24 (citing Greene v. Massey, 437 U.S. 19, 26 n.8

(1978)); see also Marshall v. Bristol Super. Ct., 753

F.3d 10, 18-19 (1st Cir. 2014). As Judge Easterbrook

put it, “[n]o rule of federal law tells state courts how

to interpret ambiguous judicial statements.” Rivera v.

Sheriff of Cook Cnty., 162 F.3d 486, 489 (7th Cir.

1998). Of course, as Tibbs recognized, there is an exception if the state court’s interpretive methodology

“conflict[s] with the Due Process Clause.” 457 U.S. at

46. But Woodward does not (and could not) contend

that the California Supreme Court’s approach to interpreting ambiguous Section 1385 dismissals violates

due process.

In any event, this is not a case where Hatch’s interpretive instructions could have affected the outcome. Even setting aside California’s requirement

that a Section 1385 dismissal order must “clearly indicate[] 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” for it to

constitute an acquittal, Hatch, 22 Cal. 4th at 273,

there would be no sound basis for concluding that the

1996 dismissal order was a determination about the

legal sufficiency of the evidence. Among other considerations, the same judge that entered that order had

recently denied Woodward’s motions under Section

1118.1 to find the evidence legally insufficient at the

close of evidence in both trials. See supra p. 3. The

Section 1385 dismissal order did not suggest that

those prior rulings were wrong, or that the jurors who

voted to convict in the first two trials did so without a

permissible basis. See Pet. App. 72a-77a. Instead, the

order suggested that the trial court “independently assessed the strength and weight of the evidence and

19

deemed the available evidence insufficient to justify

retrying Woodward given the relevant interest of justice factors,” which include considerations “not relevant to a dismissal for legal insufficiency of the

evidence.” Pet. App. 31a, 38a; see supra pp. 3-4. 5

3. None of the other considerations bearing on this

Court’s exercise of certiorari supports granting this

petition.

Woodward does not allege that the decision below

conflicts with any decision of another lower court. See

generally Pet. 5-13. And the State is not aware of any

relevant conflict on the constitutional question Woodward seeks to present; instead, courts have consistently applied the rule announced in Tibbs to

distinguish between orders dismissing charges based

on legally insufficient evidence and orders dismissing

charges based on the weight of the evidence. See 457

5 Applying the Ninth Circuit’s decision in Mannes v. Gillespie,

967 F.2d 1310 (9th Cir. 1992), would not lead to a different outcome. See Pet. App. 37a-38a. In Mannes, the Section 1385 dismissal order repeatedly found that there was “insufficient

evidence in this case” about specific elements of the charged offense and did “not refer at all to the ‘weight’ of the evidence.” 967

F.2d at 1314, 1315. In the absence of any clear indication that

the trial judge was weighing the evidence himself, the Ninth Circuit “assume[d] the trial judge intended” the repeated invocation

of the phrase “insufficient evidence” to “mean[ ] that the evidence

presented at the trial was not legally sufficient to support a conviction for the crime charged, rather than that the judge ‘entertained personal doubts about the verdict.’” Id. at 1315. Here, the

record does provide “clear indication” that the trial court was

weighing the evidence and did not intend to dismiss the murder

charge based on legal insufficiency of the evidence. See Pet. App.

38a; see also id. at 31a-35a. Moreover, although the decision below characterized Hatch and Mannes as articulating “presumption[s]” that “differ[ ],” Pet. App. 37a, neither of those decisions

actually described their approach in terms of a presumption.

20

U.S. at 44 (noting that “trial and appellate judges commonly distinguish between the weight and the sufficiency of the evidence”); see also, e.g., United States v.

Dodd, 391 F.3d 930, 935-936 (8th Cir. 2004) (holding

that an order granting a motion for a new trial was not

based on a finding of legally insufficient evidence, and

thus the Double Jeopardy Clause did not bar retrial);

Wilcox v. State, 342 Ark. 388, 396-397 (2000) (similar);

United States v. Robertson, 110 F.3d 1113, 1117-1118,

1120 (5th Cir. 1997) (similar); United States v. Campbell, 977 F.2d 854, 860 (4th Cir. 1992) (similar).

This case also would be a poor vehicle for resolving

the issues Woodward now seeks to raise. Woodward’s

trial-court and court-of-appeal briefs did not contest

that Tibbs’ analytical framework applied to the 1996

dismissal order, and those briefs did not claim that Evans and McElrath established new standards for judging the double jeopardy implications of such an order.

Nor did they argue that the methodology described in

Hatch for interpreting ambiguous Section 1385 orders

is unconstitutional. See, e.g., Pet. App. 8a, 12a-13a;

Woodward Mandate Answer 18-30; Mandate Pet. Exs.

51-59. Instead, Woodward argued that the trial and

appellate courts should apply Hatch, and that he

ought to prevail under a faithful application of that

precedent. See Pet. App. 24a-40a (discussing and dismissing each of Woodward’s arguments on appeal); id.

at 53a, 58a-67a (discussing Woodward’s trial-court arguments); see also Woodward Mandate Answer 24 (arguing that the trial court’s “dismissal . . . satisfies the

Hatch standard”); Mandate Pet. Exs. 55 (claiming that

the dismissal order “bars retrial under . . . the rules

set forth in Hatch” (emphasis omitted)).

Woodward did not raise the arguments he seeks to

present here until he filed his petition for review in the

21

California Supreme Court—when it was too late. See

Cal. R. Ct. 8.500(c)(1) (California Supreme Court “normally will not consider an issue that the petitioner

failed to timely raise in the Court of Appeal”); Pet.

App. 83a-111a (petition for review). That deprived the

lower courts of an opportunity to consider how his current arguments about the Double Jeopardy Clause apply in the context of California’s statutory scheme and

the unique record below. And Woodward offers no

compelling reason why this Court should address

those case-specific arguments in the first instance.

See OBB Personenverkehr AG v. Sachs, 577 U.S. 27,

398 (2015) (“Absent unusual circumstances . . . we will

not entertain arguments not made below.”); Cutter v.

Wilkinson, 544 U.S. 709, 718 n.7 (2005) (“[W]e are a

court of review, not of first view.”]).

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted,

ROB BONTA

Attorney General of California

MICHAEL J. MONGAN

Solicitor General

JEFFREY M. LAURENCE

Senior Assistant Attorney General

JOSHUA A. KLEIN

AARON D. PENNEKAMP

Deputy Solicitors General

AMIT KURLEKAR

Deputy Attorney General

December 6, 2024