Petition — Veitch v. Superior Court, Santa Clara

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In the Supreme Court

OF THE

United States

Octoser Term, 1979

No. 79-119

MircoHeE.. G. VErrcH,

Petitioner,

vs.

Superior Court oF THE COUNTY OF

Santa Cuiara, STATE OF CALIFORNIA,

Respondent,

THE PEOPLE OF THE STATE OF CALIFORNIA,

Real Parties in Interest.

PETITION FOR A WRIT OF CERTIORARI

to the Court of Appeal of the State of California,

First Appellate District, Division Two

Rosert L. Mezzetrt

28 N. Ist Street - Suite 303

San Jose, California 95113

Telephone: (408) 279-8400

Counsel for Petitioner

BOWNE-PERNAU WALSH ¢ 1045 SANSOME ST. © S.F.,CAS4111 © (415) 981-7862

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SUBJECT INDEX

Page

I EE Se 1

re SA sy aan Abana 6:87) 9.0.01 Bs 2

NT pe STS Ee ee 2

ETS RE RS . 8

Deets e ccs c eevee 4

Reasons for allowance of the writ ..................6..0.0.5. ll

I eS ee ee 28

TABLE OF AUTHORITIES CITED

Cases

Federal:

Benton v. Maryland, 395 U.S. 784, 23 L.Ed.2d 707 ........ ll

Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 46 U.S.L.W.

ER A eae 7, 8, 9, 10,12, 13, 14, 15, 16, 19, 20, 24, 28

Green v. United States, 355 U.S. 184 (1957) ............. 25

Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 46 U.S.L.W.

EERE ES SS eee 8, 9, 14, 16, 18, 19

Kepner v. United States, 195 U.S. 100 .................. 25

Waller v. Florida, 397 U.S. 387, 25 L.Ed.2d 435 .......... ll

State:

Curry v. Superior Court, 2 C.3d 707, 87 Cal.Rptr. 361, 470

oe a 11, 28

EE ee 2 ee 21

People v. Cesena, 18 C.A.2d 727 ....................005. 23

— v. Henderson, 60 C.2d 482, 35 Cal.Rptr. 77, 386 P.2d ”

People v. Mattmueller, 25 C.A.2d 418 .................... 23

People v. Robarge, 41 C.2d 628, 262 P.2d14.............. 19

People v. Sarazzawski, 27 C.2d 7, 161 P.2d 934 ............ 24

People v. Serrato, 9 C.3d 753, 109 Cal.Rptr. 65, 512 P.2d 289 19

In the Supreme Court

Consti Page OF THE

United States Constitution: :

WIMMER to hese le 3, 11, 12 | United States

en ca eaves wa uate te tps 11 —

OctoBErR TERM, 1979

Statutes

California Penal Code: | _

ee Age a heh ena ae in od eRe eae Vee 4 No.

emer GA Eh NE PATTI Co cree 21

Se 4 ane rar rr re Pe rea 4

a's if nica ka «bd eww ee ened eT we ae 4 MircHeE tt G. VEITcH,

Be Ut, Seek ES AGS od. ee. IDA 4.20l 21 Petitioner,

EE hs GEE. oa eel ides codS VIE 4

EE 2) A AC SEAT oe eas ci ke SOK NEM ede PEAT 4 vs.

SS WA Se ee ee ae ee Ze 4 Sissies Cin C

Sees 288. BRAINS, AS 7 a eu a a Ow ae On

SI 5 oe ks ne capita 7 Santa Ciara, STATE oF CALIFORNIA,

IS Sea oss er, cae Ae Pera tk by eat 4 Respondent,

NT ooo cc chee a cas hes cane Pea eis hee oe 4

EES CREA EEN ROT ee cre peCmrt: 4 Tue Prope or THE State oF CaLiForNia,

eee 6052. ON ACLS ieee eis 4 Real Parties in Interest.

ES Coc Ln a au eee Re 5, 13,19

|) Sere ree ete kn) bk Bete 5

ee. an aera ae 15 PETITION FOR A WRIT OF CERTIORARI

Seotie BENS (4) (3) 0500s. BA OL 20 to the Court of Appeal of the State of California,

I 0 8 yee a oe eras 7 First Appellate District, Division Two

I Sets Sn re ty Ry eas ads at 4

Title 28, United States Code: INTRODUCTION

I ee ose nd be add SE hd dae opened on nhs 3 : . ’

Petitioner prays that a writ of certiorari issue to review

8: UChal, Rev. 508 (200k Text a | the decree of the Court of Appeal of the State of Cali-

saa intl it Scraieerae ae fornia, First Appellate District, Division Two, filed on

February 26, 1979.

OPINION BELOW

The opinion of the Superior Court of the State of Cali-

fornia is printed in Appendix A hereto.

Review of same was sought by way of petition for al-

ternative writ of mandate and/or prohibition in the Court

of Appeal of the State of California, First Appellate Dis-

trict, Division Two, and same was denied without issuance

of the alternative writ or order to show cause on October

25, 1978. A copy of said denial is printed in Appendix B

hereto.

A petition for hearing was then sought in the Supreme

Court of the State of California and said hearing was

granted. The matter was ordered transferred to the Cal-

ifornia Supreme Court and retransferred to the Court

of Appeal, First Appellate District, Division Two, with

directions to issue an alternative writ of prohibition to be

heard before that court when the proceeding was ordered

on calendar. The decree of the Supreme Court is printed

in Appendix C hereto.

The Court of Appeal of the State of California, First

Appellate District, Division Two, then ordered that an al-

ternative writ of prohibition issue as prayed for to be

heard on Tuesday, January 9, 1979 before that Court. Said

order is printed in Appendix D hereto. The alternative

writ of prohibition is printed in Appendix E hereto.

The opinion of the Court of Appeal of the State of Cali-

fornia, First Appellate District, Division Two is printed

in Appendix F hereto, and is reported at 89 C.A.3d 722,

tiie Cal.Rptr. .........

JURISDICTION

The decree printed in Appendix F hereto, which is sought

to be reviewed is dated February 26, 1979.

A rehearing by the Court of Appeal of the State of Cal-

ifornia, First Appellate District, Division Two, was denied

on March 28, 1979. Said denial is printed in Appendix G

hereto. A hearing by the California Supreme Court was

denied on April 26, 1979. Said denial is printed in Appen-

dix H hereto.

The jurisdiction of this court is invoked under Section

1257(3) of Title 28 of the United States Code.

QUESTIONS PRESENTED

Does a retrial of a defendant in a criminal proceeding

violate the double jeopardy provisions of the United States

Constitution when a jury has found the defendant guilty

of the charges as alleged, but the trial judge vacates the

verdict of the jury expressly and solely on the grounds

that it is contrary to the law and to the evidence and fur-

ther on the grounds of insufficiency of the evidence to sup-

port the verdict, and therefore orders a new trial?

The 5th Amendment to the Constitution of the United

States provides:

“No person shall be held to answer for a capital, or

otherwise infamous crime, unless on a presentment or

indictment of a grand jury, except in cases arising in

the land or naval forces, or in the militia, when in actual

service in time of war or public danger, nor shall any

person be subject for the same offense to be twice put

in jeopardy of life or limb; nor shall be compelled in

any criminal case to be a witness against himself, nor

be deprived of life, liberty, or property, without due

process of law; nor shall private property be taken

for public use without just compensation.”

STATEMENT OF CASE

Your Petitioner, MITCHELL G. VEITCH, is the defend-

ant in a certain criminal proceeding, Action 66600, now

pending before Respondent, SUPERIOR COURT IN AND

FOR THE COUNTY OF SANTA CLARA, STATE OF

CALIFORNIA, in which the Petitioner is charged with

multiple sex offenses.

On or about January 13, 1978 through February 3, 1978,

the Petitioner, MITCHELL G. VEITCH was prosecuted

in the SUPERIOR COURT IN AND FOR THE COUN-

TY OF SANTA CLARA for multiple offenses including

violations of California Penal Code sections 459 (burglary),

261, subdivisions 2, 3 (forcible rape and rape by threats),

459 (burglary), 220 (assault with intent to commit rape),

288A (forciable oral copulation), 264.1 (acting in con-

cert), and 12022 (armed with a deadly weapon). On Feb-

ruary 3, 1978, the jury empaneled to hear the said action

found your petitioner, MITCHELL G. VEITCH, guilty

as charged.

Immediately thereafter to wit, on March 1, 1978, your

Petitioner filed a Motion for New Trial pursuant to Penal

Code Section 1181. As specific grounds for a new trial

under said Penal Code Section, your Petitioner set forth

Subsection 2, that the jury had received evidence out of

court; Subsection 3, that the jury was guilty of misconduct

by which a fair and due consideration of the case was pre-

vented; Subsection 5, that the Court misdirected the jury

in a matter of law or erred in the decision of a question

of law arising during the course of the trial; Subsection 5,

that the District Attorney or other counsel prosecuting

the case was guilty of prejudicial misconduct during the

trial thereof before a jury; Subsection 6, that the verdict

was contrary to law or evidence; and finally, Subsection 8,

that new evidence had been discovered material to the

defendant and which he could not, with reasonable dili-

gence, have discovered and produced at trial. In support

of said motion, your Petitioner submitted a 28-page memo-

randum accompanied by supporting affidavits pointing out

each and every trial error which your Petitioner felt com-

pelled a new trial.

On April 24, 1978, said Motion for New Trial was heard

before the Honorable DAVID W. LEAHY, Judge of the

Superior Court In and For Santa Clara County, the same

judge who had presided at the trial of said action. After

substantial argument by counsel in which each and every

trial “error” was again urged upon the trial court, the

court stated the following:

“T don’t think so, Mr. Mezzetti. The Court intends

to grant the Motion for New Trial.

I want the record clear as to the reason why I’m

doing it. And I think that having you produce any

further evidence with regard to what the jurors might

have considered might make me feel better, but it

isn’t going to change anything. And there’s no sense

in fooling around with it.

First of all, I do not consider that there was any

prosecutorial misconduct, either in individual instances

or cumulatively. We have an adversary system.

I think both counsel in this case attempted to the

best of their ability and in what I perceive to be an

honest and sincere fashion to carry out their duties.

And I do not think that there was any prosecutorial

misconduct.

With regard to the overall conduct of the trial, that

gives me some pause, frankly. The case lengthened out

for a period of some three weeks. There was illness.

There were other problems. It did not go in in the nice

tight fashion that I would have preferred.

With regard to my rulings on the evidence they were

carefully considered, and I don’t consider that there

were any significant errors of law that would warrant

a reversal or new trial based upon these.

Particularly, I ruled that the corporal line-up was

unconstitutional, but that there was a basis for the

identification apart from that. I see no reason to

change that.

This case simply boils down to whether or not I can

perform my function as a judge and live with my con-

science. And it is the duty of a judge to weigh the

evidence independently, and if the judge comes to the

conclusion that the verdict of the jury is contrary to

the weight of the evidence, after giving it the weight

that I think is accorded the credibility of the witnesses,

their manner and appearance in testifying, then it is

the judge’s duty to speak.

The motion for new trial is granted on the grounds

of 1181-6 only.” (Emphasis added by counsel, Report-

er’s Transcript as attached to Petition for Alternative

Writ of Mandate and/or Prohibition, p. 25, lines 15-26,

p. 26, lines 1-24.)

Accordingly, by order dated April 26, 1978, your Peti-

tioner’s Motion for a New Trial was granted. A copy of

said Order was attached to your Petitioner’s Petition for

Alternative Writ of Mandate and/or Prohibition before the

Court of Appeal of the State of California. Said Order

specifically states:

“TT IS HEREBY ORDERED that the Motion for a

New Trial on behalf of the defendant, MITCHELL

VEITCH, is granted pursuant to California Penal

Code Section 1181(6), in that the Court finds that the

verdict of the jury is contrary to law and evidence.

IT IS FURTHER ORDERED that the verdict of

the jury is vacated and set aside, because it is con-

trary to the law and evidence and further on the

ground of insufficiency of the evidence to support the

verdict.”

The People having a statutory right to appeal from an

Order granting a New Trial (California Penal Code Sec-

tion 1283(3)) filed no appeal and after numerous motions

by your Petitioner, the matter" was assigned for trial.

On July 31, 1978, your Petitioner filed a Motion for

Hearing on Special Defense pleading Judgment of Acquit-

tal of Charges pursuant to Penal Code 1016(3) or Once in

Jeopardy, California Penal Code Section 1016(4). Said

motion simply stated:

“The defendant pleads he has been once in jeopardy

for the offenses charged herein, and that as a matter

of law, the claim of jeopardy bars a retrial.”

In support of this position, your Petitioner Referred the

Respondent Court to the June 14, 1978 decision enunciated

by this Court, the United States Supreme Court in Burks

v. United States, 4387 U.S. 1, 98 S.Ct. 2141, 46 U.S.L.W.

4632, which decision on the same date was held appliceble

to the State Courts in Greene v. Massey, 437 U.S. 19, 98

S.Ct. 2151, 46 U.S.L.W. 4636. Both decisions held that an

accused may not be subjected to a second trial when his

conviction at the first is reversed solely for lack of evidence

to sustain the jury’s verdict. This very court, the United

States Supreme Court, stated the new trial would be double

jeopardy.

On August 23, 1978, the Real Parties in Interest filed

their points and authorities in opposition to the Motion of

your Petitioner.

On September 7, 1978, the Respondent Court, the Hon-

orable James A. Wright presiding, made its order. (Appen-

dix A). In said order, the Respondent Court correctly

pointed out that the United States Supreme Court had

up until the time of the Burks decision held that a defend-

ant who requested a new trial could not then set up the de-

fense of double jeopardy and legally frustrate what he had

brought about by his request. However, the decision in

Burks the Respondent Court correctly assessed, changed

all this. Quoting the language from the Burks decision, the

Respondent Court continued: 4

“Nonetheless, as the discussion in Part IT supra, in-

dicates, our past holdings do not appear consistent

with what we believe the Double Jeopardy Clause com-

mands. A close re-examination of those precedents,

however, persuades us that they have not properly

construed the clause, and accordingly should no longer

be followed.”

The Respondent Court continued in its order, distin-

guishing as the Burks decision did between reversal for

trial error, in which case the double jeopardy clause does

not bar a second trial and reversal as a result of eviden-

tiary insufficiency. The Respondent Court then again quoted

language from Burks:

“The same cannot be said when a defendant’s con-

viction has been overturned due to a failure of preof

at trial, in which case the prosecution cannot complain

of prejudice, for it has been given one fair opportunity

to offer whatever proof it could assemble.” (Emphasis

added.)

After analyzing the Burks decision and the Greene deci-

sion, the Respondent Court stopped short of granting your

Petitioner the relief requested and distinguished those cases

from the case at bench by stating that if an Appellate Court

determines that the evidence is insufficient to sustain the ver-

dict of the jury, then jeopardy attaches and the defendant/

accused cannot be retried. However, the Respondent Court

felt that because in this situation it was the Trial Court

which had made such a determination, this determination

was somehow less sacrosanct and therefore, your Peti-

tioner could once again be placed in jeopardy.

Your Petitioner has no plain, speedy, and adequate rem-

edy in the ordinary course of the law, in that if this second

trial is allowed to proceed, it will frustrate the very thing

which your Petitioner seeks to avoid, and that is being

placed twice in jeopardy and tried twice for the very same

alleged offenses.

Accordingly, on September 22, 1978, your Petitioner filed

a Petition for Alternative Writ of Mandate and/or Pro-

hibition. On October 25, 1978, the Court of Appeal of the

State of California, First Appellate District, Division Two

denied the Petition for Alternative Writ of Mandate and/

or Prohibition.

Thereafter, to wit, on November 6, 1978, your Petitioner

filed a Petition for Hearing before Supreme Court of the

State of California. By order dated November 24, 1978,

said Petition for Hearing was granted, the matter was

transferred to the Court of Appeal with directions to issue

an Alternative Writ of Prohibition to be heard before that

Court when the proceeding was ordered on calendar.

On December 1, 1978, the Court of Appeal of the State

of California, First Appellate District, Division Two, is-

sued an Alternative Writ of Prohibition to be heard before

Division Two on January 9, 1979 at 10:00 a.m. On Janu-

ary 9, 1979, oral argument was presented to the Court of

Appeal, and on February 26, 1979, the Court of Appeal

filed its decision discharging the Alternative Writ and de-

nying the peremptory. The Court of Appeal in its decision,

drew the same distinction Respondent Court had drawn.

That is, the Court of Appeal concluded that Burks stands

only for the proposition that the Double Jeopardy Clause

will preclude retrial if a reversal by a reviewing court is

grounded on the fact that the evidence presented to the

jury is so insufficient that the defendant was entitled to a

judgment of acquittal.

With this limited interpretation, your Petitioner respect-

fully disagrees and submits to this Court that a retrial of

petitioner will constitute forbidden double jeopardy where,

as in his ease, the trial court expressly stated that the ver-

dict of the jury was contrary to law and evidence and

further, that the verdict of the jury was vacated and set

aside not only because it was contrary to the law and evi-

dence, but because there was insufficient evidence to sup-

port the verdict.

On March 13, 1979, your Petitioner filed a Petition for

Rehearing before the Court of Appeal. Said petition was

denied on March 28, 1979.

On April 9, 1979, your Petitioner filed a Petition for

Hearing in the Supreme Court of the State of California

and on April 26, 1979, said hearing was denied.

REASONS FOR ALLOWANCE OF THE WRIT

The California Supreme Court, in Curry v. Superior

Court, 2 C.3d 707, 87 Cal.Rptr. 361, 470 P.2d 345, in com-

menting upon the double jeopardy standards stated that

although the States must accord their citizens at least as

much protection against double jeopardy as is provided

under the Fifth Amendment, a State is not forbidden from

according a greater degree of such protection. That the

jeopardy provision of the Fifth Amendment is applicable

to the States through the Fourteenth Amendment is undis-

puted. (Benton v. Maryland, 395 U.S. 784, 23 L.Ed.2d 707;

Waller v. Florida, 397 U.S. 387, 25 L.Ed.2d 435). The Curry

Court, supra, went on to state:

“Both Benton (395 U.S. at pp. 795-796, 23 L.Ed.2d at

pp. 716-717) and our opinion in Gomez vs. Superior

Court (1958) 50 C.2d 640, 644 (328 P.2d 976) quote

with approval the statement that ‘The underlying idea

(of the portection against double jeopardy), one that is

deeply ingrained in at least the Anglo-American sys-

tem of jurisprudence, is that the State, with all its

resources and power, should not be allowed to make

repeated attempts to convict an individual for an al-

leged offense, thereby subjecting him to embarassment,

exp~sse and ordeal and compelling him to live m a

continuing state of anxiety and insecurity, as well as

enhancing the possibility that even though innocent,

he may be found guilty.” (emphasis added by counsel)

Your Petitioner’s first trial resulted in the trial judge

making it very explicit that he was granting the Peti-

tioner’s motion for a new trial solely on the grounds that

the verdict was contrary to the weight of the evidence and

because of the insufficiency of the evidence to sustain the

verdict. Now the State is being allowed a second crack at

your Petitioner to see if it can now produce sufficient evi-

dence to convict your Petitioner. The Real Parties in Inter-

est already had their chance. Your Petitioner has been sub-

jected to embarrassment, expense and ordeal.

In California, an accused can be afforded no less protec-

tion than that guaranteed under the Fifth Amendment to

the United States Constitution. In fact, California courts

have been very liberal in according defendants even greater

protections than those called for by the United States Su-

preme Court in holding that the Fifth Amendment applies

to the states.

Why, then, is Petitioner’s case the exception? Why, when

his conviction was reversed based on insufficiency of the

evidence to sustain the verdict, is he required to be once

again in jeopardy when the Burks decision, infra, states

this is exactly the kind of case where a defendant should

not be subjected to such an ordeal?

As stated earlier, your Petitioner was granted a new

trial after he had been convicted by a jury of violations of

various California Penal Code Sections, including burglary,

forcible rape and rape by threats, forcible oral copulation,

and assault with intent to commit a felony. The trial judge,

the Honorable DAVID W. LEAHY, stated that he had

weighed the evidence independently and had come to the

conclusion the verdict of the jury was contrary to the evi-

dence and that he was therefore granting your Petitioner

a new trial on the grounds of Penal Code Section 1181.6

only. He questioned whether he could perform his function

as a judge and live with his conscience otherwise. His order

read that your Petitioner was granted a new trial on the

grounds that the verdict of the jury was contrary to the

law and evidence and that there was insufficiency of the

evidence to support the verdict.

This is precisely the type of situation which the United

States Supreme Court in its decision of June 14, 1978 held

bars a new trial for the same offenses! This court, the

United States Supreme Court in Burks v. United States,

437 U.S. 1 began by distinguishing “trial error” from “evi-

dentiary insufficiency” when a conviction is reversed. The

court ruled:

“Tn short, reversal for trial error, as distinguishing

from evidentiary insufficiency, does not constitute a

decision to the effect that the government has failed

to prove its case. As such, it implies nothing with

respect to the guilt or innocence of the defendant.

Rather, it is a determination that a defendant has

been convicted through a judicial process which is de-

fective in some fundamental respect, e.g., incorrect

receipt or rejection of evidence, incorrect instructions,

or prosecutorial misconduct. When this occurs, the

accused has a strong interest in obtaining a fair re-

adjudication of his guilt free from error, just as society

maintains a valid concern for insuring that the guilty

are punished...

. . «Ihe same cannot be said when a defendant’s

conviction has been overturned due to a failure of

proof at trial, in which case the prosecution cannot

complain of prejudice, for it has been given one fair

opportunity to offer whatever proof it could assemble

... Since we necessarily afford absolute finality to a

jury’s verdict of acquittal—no matter how erroneous

its decision—tt is difficult to conceive how society has

any greater interest in retrying a defendant when, on

review, it is decided as a matter of law that the jury

could not properly have returned a verdict of guilty

. . . Since we hold today that the Double Jeopardy

Clause precludes a second trial once the reviewing

Court has found the evidence legally insufficient, the

only ‘just’ remedy available for that Court is the direc-

tion of a judgment of acquittal.” (emphasis added)

The Court of Appeal in its decision interpreting Burks

began by stating that your Petitioner contends that Burks

and Greene stand for the proposition that the Double Jeop-

ardy Clause precludes a second trial once a trial court has

granted a motion for a new trial on the ground of insuffi-

ciency of the evidence. That was not your Petitioner’s con-

tention. Your Petitioner contends that a second trial is

precluded by the double jeopardy clause once any court

has granted a motion for new trial on the ground of insuffi-

ciency of the evidence. The evidence at the first trial was

insufficient to convict the defendant.

The Burks Court stated that where double jeopardy

clause is applicable, its sweep is absolute and there are no

equities to be balanced, for the clause is declared a consti-

tutional policy based on grounds which are not open to

judicial examination. It is interesting to note that in Burks,

the petitioner had actually made a motion for acquittal

before the case was submitted to the jury, and said motion

was denied. After the jury found petitioner guilty as

charged in Burks, he made a motion for a new trial on the

ground that the evidence was insufficient to support the

verdict and that motion was denied. Thereafter, the Court

of Appeal held that the Government had failed to rebut

petitioner’s proof and it was as a result of this decision

that the United States Supreme Court held that a new trial

was precluded by the double jeopardy provisions of the

Constitution.

Getting back to the case at bench, if an appellate reversal

as argued by the Court of Appeal in its decision (Appendix

A) is to be equated with a trial court’s judgment of

acquittal, and the same standard is to be employed by the

reviewing court as the trial court employs in ruling on

a motion for acquittal (Penal Code 1118.1), then how can

it be explained that in Burks, the trial court had before it

a motion for acquittal which it denied and the appellate °

court, employing the exact same standard, held there was

insufficient evidence to support the verdict and reversed?

The District Court, in Burks, on Petitioner’s motion for a

new trial, held that Petitioner’s challenge to the sufficiency

of the evidence was “utterly without merit.” Then, the

Court of Appeal, employing its “higher” and more “strin-

gent” standard of review, agreed with Petitioner’s claim

that the evidence was insufficient to support the verdict.

The distinction drawn by the Court of Appeal of the State

of California in your Petitioner’s case, when placed in the

light of what actually happened in the Burks case, is pat-

ently invalid.

The Appellate Court of the State of California, First

Appellate District, Division Two, continued in its decision

with an analysis of Greene v. Massey, 437 U.S. 19, 98 S.Ct.

2151. That case held that the principles enunciated the

same day in Burks, supra, were equally applicable to state

courts. Specifically, Greene held that a state may not retry

an accused after a conviction has been reversed by an ap-

pellate court on the ground that the evidence introduced

at the prior trial was insufficient as a matter of law, to sus-

tain the jury’s verdict. In that case, unlike the case at

bench, although the per curiam opinion in which four jus-

tices joined stated that “the evidence was definitely lacking

in establishing beyond a reasonable doubt that the defend-

ants committed murder in the first degree”, and that the

“interests of justice required a new trial”, three of the

justices who had joined the per curiam also filed a “special

concurrence” which, though concerned only with trial error,

concluded that “for the reasons stated the judgments should

be reversed and remanded for a new trial, so we have

agreed to the Per Curiam order doing so.”

This court, the Supreme Court of the United States held

that the special concurrence left open the possibility that

three of the justices that joined in remand did so solely to

give the defendants an error-free trial . . . even though

they were satisfied that the evidence was sufficient to sup-

port the verdict (The three justices had been concerned

that the trial court had improperly ruled on a question

concerning a subpoena duces tecum, the result of which

was that the defense may have been deprived of evidence

to which it was entitled and further, the three justices

were concerned with the improper admission of certain

hearsay evidence which the concurring justices felt had

“potential probative force.”). Because it was unclear

whether these three concurring justices felt a new trial was

necessary due to insufficiency of the evidence or whether

they felt it was necessary because of trial error as sug-

gested by their concurrence, the Supreme Court remanded.

There was no question as the Court of Appeal in the

case at bench states in its decision as to whether under the

language of the per curiam opinion it could reasonably be

said that the concurring justice thought that the legally

competent evidence adduced at the first trial was insufficient

to prove guilt. It was the concurring opinion, and that ques-

tion was raised only because the three concurring justices

had found substantial trial error in which case a reversal

on those grounds would not preclude a new trial because of

the double jeopardy clause. In fact, the Supreme Court of

the United States expressly acknowledged:

“Tf we were confronted only with the per curiam

opinion of the Florida Supreme Court, reversal in this

case would follow. The per curiam disposition, stand-

ing by itself, leaves no room for interpretation by us

other than the majority of the State Supreme Court

was ‘of the view that the evidence was definitely lack-

ing establishing beyond a reasonable doubt that the

defendants committed murder in the first degree ..

By using a precise terminology ‘lacking in establish-

ing beyond a reasonable doubt’, the highest court in

Florida seems to have clearly said that there was in-

sufficient evidence to permit the jury to convict peti-

tioner at his first trial. The dispositive per curiam

opinion makes no reference to the trial errors raised

on appeal. Viewed in this manner, the reasoning enun-

ciated in Burks would obviously compel the conclusion

that Greene’s second trial violated the Double Jeop-

ardy Clause.”

In the case at bench, there is no doubt at all or whatso-

ever that your Petitioner was granted a new trial solely on

the ground of evidentiary insufficiency. In fact, the trial

judge, the Honorable DAVID W. LEAHY, specifically

stated he wanted to make it clear that that was the only

reason he was granting same. There is nothing unclear or

ambiguous in his order, as there was in the Greene, supra,

437 U.S. 19, 98 S.Ct. 2151, case. He specifically ruled out

each and every ground of trial error your petitioner had

asserted.

In the case at bench, it was the Trial Judge who found

the evidence legally insufficient, but what difference does

that make? In either case, whether it is an appellate court

who reviews the decision or the trial judge who sets the

verdict aside, the prosecution cannot complain if the basis

of said action was due to the insufficiency of evidence. In

either case, the prosecution cannot complain of prejudice,

for it has been given one fair opportunity to offer whatever

proof it could assemble.

The case cited by the Real Parties in Interest, People v.

Serrato, 9 C.3d 753, 109 Cal.Rptr. 65, 512 P.2d 289, and

relied upon by the Appellate Court, is no longer control-

ling. This court, the United States Supreme Court has

specifically stated that when a conviction is reversed be-

cause of insufficiency of the evidence, the People have no

interest in reprosecuting the defendant.

The Respondent Court hinged its decision on the fact that

it was a reviewing appellate court in Burks, supra, and

Greene, supra, that found the evidence to be insufficient to

sustain the verdict, rather than the trial judge and accord-

ingly denied your Petitioner’s motion. This distinction is

without merit.

The California case of People v. Robarge, 41 C.2d 628,

262 P.2d 14, states that in a jury trial, the defendant is

entitled to two decisions on the evidence: One by the Jury

and another by the judge in ruling on a motion for a new

trial under California Penal Code 1181(6). The judge act-

ing on the motion has been called “the thirteenth juror”,

but neither procedurally nor in function does he occupy

any such status. He does not deliberate with the jury

in reaching the verdict, but makes an independent determi-

nation of his own. The trial judge does not review the

jury’s determination but weighs the evidence himself and

exercises an independent judgment, as if there were no

jury at all.

This leads to an interesting point which did not escape

the Respondent Court’s attention. The Respondent Court

at the oral hearing asked the attorney for the People,

if he did not agree, if the trial judge had presided over this

trial without a jury and then reached the conclusion he did

reach, would that not then be a bar to further trial. The

district attorney agreed it would. Continuing with the Re-

spondent Court’s reasoning then, when the trial judge

weighs the evidence himself and exercises an independent

judgment as if there were no jury at all, how is that so

different from the situation where there is no jury at

all? In the latter case, a second trial is without a doubt

precluded. Why should it not be precluded in the first

instance?

Secondly, the distinction drawn by the Respondent Court

in deciding that the bar of double jeopardy did not apply,

because in the case at bench, it was the trial judge instead

of an appellate court who reversed Petitioner’s conviction

based on insufficiency of the evidence is highly superficial.

If the People, Real Party in Interest, had chosen to appeal

from the order granting the new trial and setting the ver-

dict aside, and then the Court of Appeal had affirmed the

trial judge’s decision, then would the Respondent Court

agree that the bar to a second trial because of having been

once in jeopardy applied?

The People had a right to appeal from the order grant-

ing the new trial. (California Penal Code Section 1238(a)

(3)). They did not. Your Petitioner could not force them to

do so. If they had appealed and the Appellate Court had

ruled that the trial judge was correct, there was insufficient

evidence to sustain the verdict, then would Burks apply?

Because the People did not appeal, and there is not the

benefit of an appellate decision, is the Petitioner to be

placed in the position of being retried for the same offense

simply because the Real Party in Interest did not appeal

when the former verdict was set aside?

The cases of People v. Henderson, 60 C.2d 482, 35 Cal.

Rptr. 77, 386 P.2d 677, and In re Ferguson, 233 C.A.2d 79,

demonstrate the closeness of function between appellate

reversal and trial court reversal. People v. Henderson,

60 C.2d 482, holds that after reversal on appeal, a defend-

ant cannot be subjected to a different punishment. The

court held this was a special form of jeopardy. In re

Ferguson, 233 C.A.2d 79, 43 Cal.Rptr. 325, holds the same

rule applies to retrial after a new trial motion is granted...

In that case, a jury recommended under Penal Code Sec-

tion 264, that the defendant be punished for statutory rape

(Penal Code Section 261, subdivision 1) by imprisonment

in a county jail. A new trial was granted, and at the second

trial, he was convicted of a felony and sentenced to state

prison.

The Appellate Court held that the constitutional prohibi-

tion against double jeopardy prevented the imposition of a

more severe sentence on retrial. The court reasoned that in

the case before them, the petitioner had obtained a retrial

as a result of a motion in the trial court rather than by

appeal. The Ferguson Court then stated that it was his

right to make that motion, and under the Henderson, 60

C.2d 482, doctrine, he should not be required to take the

risk of a long prison term to exercise that right. Thus, it

is not true that when a trial court grants a motion for a new

trial that the parties are placed in the same position as if no

trial had been had. The California courts have already

held that a special form of jeopardy attaches at both the

trial and appellate levels, and that that form of jeopardy

prevents the imposition of a more severe punishment at

retrial.

The People argued in opposition to the Petition that the

function gf, the trial judge in ruling on a motion for a new

trial and granting said motion because of insufficiency of

the evidence, and that of an appellate court reversing a

conviction based on insufficiency of the evidence are dras-

tically different. Your Petitioner contends that if, for some

reason, there is a heavier burden when the Court of Appeal

reverses a conviction and remands for trial based on in-

sufficiency of the evidence than when the trial judge re-

verses a conviction and grants a new trial, that difference

is wholly accountable for by what the trial judge has before

him in ruling on the motion for new trial as opposed to

what the Appellate Court has before it when it reverses

a conviction.

The trial judge has personally observed every one of the

witnesses. He’s heard their testimony. He’s heard the argu-

ment of counsel. He observed and heard the defendant. No

one is more familiar with the facts and legal issues in-

volved than he. When he rules on a motion for a new trial

and grants the new trial based on insufficiency of the evi-

dence to sustain the conviction, he has the tremendous ben-

efit of having personally been there and of having seen and

heard everything that took place. .

On the other hand, if there is a weightier burden to be

met in inducing an appellate reviewing court to reverse a

conviction and remand for trial, that is due in large part to

the equities of the situation. The reviewing court has not

observed any witnesses, it has not heard nor observed the

arguments of counsel, and has not heard nor observed the

demeanor of either the prosecutrix or of the accused. If the

burden is heavier in the one case than in the other, it is

accountable for and balanced by the entire situation.

This very distinction has been illustrated by a number of

California cases. The case of People v. Mattmueller, 25

C.A.2d 418 states the following:

“Even though the reader of the cold record might

conclude that the evidence was ample to sustain the

conviction, reversal of the order granting a retrial is

not warranted. The judge who presided at the trial of

the cause and who had the opportunity of observing

the demeanor and manner of witnesses as they testi-

fied and of discovering the motives that may have ani-

mated them in giving their testimony and the interest,

if any, which they had in the outcome of the case oc-

cupied a superior position to that which a reviewing

tribunal occupies in deciding whether or not a retrial

is justified. For all that appears the trial judge may

have disbelieved the testimony offered by appellant’s

witnesses or he may have concluded that the explana-

tion given by respondent and his witnesses raised a

reasonable doubt of respondent’s guilt. These were

matters which were confided to his discretion, and it

may not be declared from the record here presented

that he abused such discretion.”

The case of People v. Cesena, 18 C.A.2d 727, carries this

analysis one step further wherein it states that if the trial

judge is not satisfied that the evidence as a whole was suf-

ficient to sustain the verdict, the granting of a new trial

is not merely a proper exercise of legal discretion, rather it

is a duty incumbent upon the trial judge by virtue of the

office which he holds.

Finally, the case cited by the Appellate Court, to wit,

People v. Sarazzawskt, 27 C.2d 7, 161 P.2d 934, for the

proposition that a trial court can grant a motion for a new

trial where the evidence is legally sufficient and even where

the only evidence is that of the prosecution needs to be ex-

plained. In that case, the court did in fact find that there

was legally sufficient evidence which amply supported the

verdict and judgment but in the Supreme Court’s words,

“regrettably, we find in the record several incidents which

should not have occurred in a fair and orderly trial. At

least two of such incidents are matters of such grave

moment as to amount to substantial departures from the

established elements of a fair trial, to which every person

charged with crime, no matter how rich or poor, virtuous or

debased, is entitled.” In that case even though there was

legally competent evidence, there was such substantial trial

error that the judgment had to be reversed. Evidence can

be legally sufficient, but it should come as no great surprise

that reversal is nonetheless mandated because of substan-

tial and prejudicial trial error.

In conclusion, petitioner refers this court to the article

cited by this court, the Supreme Court of the United States

in the Burks decision, Note, Double Jeopardy: A New Trial

After Appellate Reversal for Insufficient Evidence, 31

U.Chi.L. Rev. 365 (1964). Compare the reasoning of the

author therein to the reasons now advanced by your Peti-

tioner in support of his double jeopardy defense as a result

of a trial court reversal for insufficient evidence. That ar-

ticle presents each one of the arguments which prior to

Burks compelled the United States Supreme Court to deny

a defendant’s double jeopardy pleas when a new trial was

ordered after appellate reversal for insufficient evidence.

The “waiver” rationale was discredited, the article points

out, in Green v. United States, 355 U.S. 184 (1957). A choice

between jail and second jeopardy hardly makes for a

“knowing relinquishment of a right” the article continues

in its analysis and points out that in fact, “usually no

waiver is expressed or thought of.” Kepner v. United

States, 195 U.S. 100.

Likewise, the theory that a new trial after a conviction

has been reversed is really a continuation of the first and

that since the jeopardy continues, the defendant has not

been placed in second jeopardy is without merit, because

adherence to this theory would permit the prosecution to

appeal from an acquittal, a result which has been rejected

by the Supreme Court. Kepner v. United States, 195 U.S.

100.

Finally, the author reasoned, “equally unacceptable is the

notion that a reversal wipes out the previous jeopardy.”

The author’s reasoning was as follows:

“The double jeopardy clause is meaningful only if

every jeopardy counts. There would never be a second

jeopardy if only the last counted. If the appellate court

had not reversed, the defendant would have been pun-

ished. He therefore was in jeopardy.”

Applying that analysis to the case at bench, if the Honor-

able DAVID W. LEAHY had not vacated and set aside the

verdict of the jury, would not have your Petitioner been

punished? He therefore was in jeopardy.

Next, the author proceeded to weigh the equities in an

appellate reversal due to trial error and an appellate rever-

sal where there was insufficient evidence to sustain the ver-

dict. The author offered these thoughts which are equally

applicable to the situation where a trial court vacates a con-

viction and grants a new trial due to insufficiency of the

evidence as opposed to trial error:

“The burdens on the defendant which the amendment

was designed to prevent must be balanced against the

public interest in protecting society from those guilty

of crimes. When this balancing concept is applied to

the problem of a new trial after appellate reversal, the

practice of permitting new trials where the reversal

was due to error can be justified. But a new trial after

a reversal for insufficient evidence cannot be justified

“. . . Underlying the idea that the objective of pro-

tecting society from those guilty of crime would be

substantially frustrated by releasing those defendants

whose convictions have been reversed for error is the

belief that errors which courts hold to be reversible

may have little or no relation to the issue of guilt or

innocence. When a jury weighs the evidence and con-

cludes that a defendant is guilty, the prosecution has

probably met its burden of proof even if reversible

errors marred the trial. At least there is a good chance

that the defendant is guilty that to release him without

a trial would substantially impair the efficiency of the

criminal law. The definition of reversible error pro-

vides support for this thesis. A conviction must be re-

versed if an appellate court feels that an error has had

substantial influence upon the jury or if one cannot say,

with fair assurance, that the judgment was not sub-

stantially swayed by error. Kotteakos v. U.S., 328 U.S.

750. Moreover, an error may be reversible even if there

is enough other evidence, properly admitted, to sustain

a conviction. Under such a standard, it seems quite

likely that many convictions are reversed even though

the prosecution has satisfied its burden of proof and

even though the absence of the error would not have

changed the verdict of the jury.

“Tf the possibility of a new trial after reversal were

constitutionally barred, there would be serious and det-

rimental consequences from either of two courses ap-

pellate courts might follow. Criminals would escape

punishment if errors that now are cause for reversal

became cause for acquittal since reversible error may

often have little relation to innocence .. .

“.. In contrast, the considerations which justify a

new trial after a reversal for error are lacking where

the reversal is for lack of evidence. Instead of a pre-

sumption that the burden of proof of the prosecution

has probably been met, the appellate court is specifi-

cally holding that the burden has not been met. Society

should have no more fear of releasing such a defendant

than if releasing a defendant who has been acquitted

by a jury, perhaps even less since a jury acquittal

may be based on error or on an improper weighing of

the evidence. Yet in the federal system and in most

states, no appeal is allowed the state after an acquit-

tal. Kepner v. U.S., 195 U.S. 100 (1904)...

“.. No undue burden is imposed on society by re-

leasing those defendants whose convictions have been

reversed for lack of evidence. The oppression and har-

assment which the double jeopardy clause was designed

to prevent is clearly present in a new trial following

a reversal for insufficient evidence. For in the insufh-

cient evidence case, an appellate court is in essence

saying, ‘well, the prosecution did not prove you guilty

this time, but they can have another chance.’”

In either case, it cannot be said that the prosecution can

complain of prejudice, “for it has been given one fair op-

portunity to offer whatever proof it could assemble . . .”

Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141. Having

failed to produce sufficient evidence to sustain a conviction,

should the prosecution now be given another opportunity

to bring in new witnesses and new evidence in an attempt

to convict an accused on the same charges once again? As

quoted hereinabove, “the State with all its resources and

power should not be allowed to make repeated attempts

to convict an individual for an alleged offense, thereby sub-

jecting him to embarrassment, expense and ordeal and com-

pelling him to live in a continuing state of anxiety and

insecurity as well as enhancing the possibility that even

though innocent, he may be found guilty.” (Curry v. Supe-

rior Court, 2 C.3d 707, 87 Cal.Rptr. 361, 470 P.2d 345).

That is exactly what the State proposes to do in the

ease at bench, and unless prohibited from doing so, will

proceed in direct violation of your Petitioner’s constitu-

tional rights.

CONCLUSION

For the foregoing reasons, it is respectfully submitted

that this petition for a writ of certiorari should be granted.

July 23, 1979

Rosert L. Mezzett1

Counsel for Petitioner

(Appendices Follow)

Appendices

APPENDIX A

In the Superior Court of the State of California

In and for the County of Santa Clara

No. 66600

The People of the State of California, i

Plaintiff,

VS.

Mitchell G. Veitch,

Defendant. q

ORDER OF COURT

After trial by jury, defendant was convicted of violations

of California Penal Code Sections 459 (Burglary), 261.2-

261.3 (Forcible Rape and Rape by Threats), 459 (Bur-

glary), 220 (Assault with Intention to Commit a Felony),

288A (Forcible Oral Copulation), 264.1 (Acting in Concert)

and the use of a deadly weapon. The jury returned the

verdict on February 3, 1978.

Defendant moved for a new trial and on April 26, 1978,

the Trial Judge made an order granting a new trial. The

order granting the new trial contained the following lan-

guage: “It is hereby ordered that the motion for new trial

on behalf of defendant Mitchell Veitch is granted pursuant

to California Penal Code Section 1181(6), in that the Court

finds that the verdict of the jury is contrary to law and

evidence ;

“Tt is further ordered that the verdict of the jury is

vacated and set aside, because it is contrary to the law

A-2

and evidence and, further, on the grounds of insufficiency

of the evidence to support the verdict”.

The People having a statutory right to appeal from an

order granting a new trial (Penal Code Section 1238(3)

filed no appeal and, after numerous motions by the defend-

ant, the matter was assigned for trial. |

On July 31, 1978, defendant filed a motion for hearing on

special defense pleading judgment of acquittal of charges

pursuant to Penal Code Section 1016(3) or once in jeop-

ardy Penal Code Section 1016(4). At the request of the

People, defendant’s motion was continued for hearing until

August 24, 1978. In the interim period, the People filed

points and authorities in opposition to defendant’s motion.

Argument was presented and the matter was submitted

on August 24, 1978.

Defendant contends that the case cannot again be tried

and that a retrial is prevented by reason of certain deci-

sions of the United States Supreme Court, decided June

14, 1978. Those decisions are Burks v. United States, 437

U.S., and Greene v. Massey, 437 U.S. The full text of said

opinions are reported in “The United States Law Week”,

46 LW 4632 and 46 LW 4636.

At the time that defendant’s motion for new trial was

presented and granted, the law of California and the

United States was clear. A defendant who made a motion

for a new trial impliedly waived any objection to being

retried. As the Court stated in People v. Serrato (9 C3 753

at 759) “It is a familiar principle that a defendant who has

succeeded in having his conviction set aside impliedly

waives any objection to being retried on the charge of

A-3

which he was convicted.” As authority, the Court relied

upon Forman v. United States, 361 U.S. 416.

The Serrato Court (page 761) further held: “If the

Trial Court, after hearing the motion under Section 1181,

grants a new trial upon the ground that the verdict is con-

trary to the evidence, the decision is not an acquittal and

is not a bar to a retrial for the offense of which the defend-

ant has been convicted. This is so even though the decision

may imply that the Trial Court has reweighed the evi-

dence and has found that it does not establish the defend-

ant’s guilt of any offense.”

The United States Supreme Court had consistently held

that a defendant who requested a new trial could not then

set up the defense of double jeopardy and legally frustrate

what he had brought about by his request. A discussion of

the Supreme Court’s previous holdings is a central issue

in the decision in Burks v. United States. After such dis-

cussion, the Court held “Nonetheless, as the discussion in

Part II, supra, indicates, our past holdings do not appear

consistent with what we believe the Double Jeopardy Clause

commands. A close re-examination of those precedents,

however, persuades us that they have not properly con-

strued the clause, and accordingly should no longer be

followed.” After distinguishing “trial error” from “evi-

dentiary insufficiency”, the Court ruled “Jn short, reversal

for trial error, as distinguished from evidentiary insuff-

ciency, does not constitute a decision to the effect that the

government has failed to prove tts case. (Emphasis added.)

As such, it implies nothing with respect to the guilt or

innocence of the defendant. Rather, it is a determination

A-4

that a defendant has been convicted through a judicial

process which is defective in some fundamental respect,

e.g., incorrect receipt or rejection of evidence, incorrect

instructions, or prosecutorial misconduct. When this oc-

curs, the accused has a strong interest in obtaining a fair

readjudication of his guilt free from error, just as society

maintains a valid concern for insuring that the guilty

are punished. See Note, Double Jeopardy: A New Trial

After Appellate Reversal for Insufficient Evidence, 31 U.

Chi. L. Rev. 365, 370 (1964).

“The same cannot be said when a defendant’s conviction

has been overturned due to a failure of proof at trial, in

which case the prosecution cannot complain of prejudice,

for it has been gwen one fair opportunity to offer what-

ever proof it could assemble. (Emphasis added.) Moreover,

such an appellate reversal (emphasis added) means that

the Government’s case was so lacking that it should not

have even been submitted to the jury. Since we necessarily

afford absolute finality to a jury’s verdict of acquittal—

no matter how erroneous its decision—tt is difficult to con-

cewe how society has any greater interest in retrying a

defendant when, on review, it 1s decided as a matter of law

that the jury could not properly have returned a verdict

of guilty. (Emphasis added.)

“The importance of a reversal on grounds of evidentiary

insufficiency for purposes of inquiry under the Double Jeop-

ardy Clause is underscored by the fact that a Federal

Court’s role in deciding whether a case should be con-

sidered by the jury is quite limited. Even the Trial Court,

which has heard the testimony of witnesses first-hand, is

not to weigh the evidence or assess the credibility of wit-

A-5

nesses when it judges the merits of a motion for acquittal.

See United States v. Wolfenberger, 426 F.2d 992, 994 (CA6

1970) ; United States v. Nelson, 419 F. 2d 1237, 1241 (CA9

1969) ; McClard v. Umted States, 386 F. 2d 495, 497 (CA8

1968); Curley v. United States, 160 F. 2d 229, 232-233, 81

U.S. App. D.C. 389, 392 (cert. denied, 331 U.S. 837 (1947) ).

The prevailing rule has long been that a District Judge is

to submit a case to the jury tf the evidence and inferences

therefrom most favorable to the prosecution would war-

rant the jury finding the defendant guilty beyond a reason-

able doubt. (Emphasis added.) See C. Wright, Federal

Practice and Procedure, Section 467, at 259-260; e.g. Powell

v. United States, 418 F. 2d 470, 473, 185 U.S. App. D.C.

254, 257 (1969); Crawford v. United States, 375 F. 2d 332,

334, 126 U.S. App. D.C. 156, 158 (1967). Obviously, a Fed-

eral Appellate Court applies no higher a standard, rather

it must sustain the verdict if there is substantial evidence,

viewed in the light most favorable to the Government, to

uphold the jury’s decision. See Glasser v. United States,

315 U.S. 60, 80 (1942). While this is not the appropriate

occasion to re-examine in detail the standards for appellate

reversal on grounds of insufficient evidence, it is apparent

that such a decision will be confined to cases where the

prosecution’s failure is clear. (Emphasis added.) Given the

requirements for entry of a judgment of acquittal, the pur-

poses of the Clause would be negated were we to afford

the Government an opportunity for the proverbial ‘Second

bite at the apple.’

“In our view it makes no difference that a defendant

- has sought a new trial as one of his remedies, or even as

the sole remedy. It cannot be meaningfully said that a per-

A-6

son ‘waives’ his right to a judgment of acquittal by moving

for a new trial. See Greene v. United States, 355 U.S., at

191-198. Moreover, as Forman, supra, at 425, has indicated,

an Appellate Court is authorized by Section to ‘go beyond

the relief sought’ in order to provide that relief which

would be ‘just under the circumstances.’ Since we hold

today that the Double Jeopardy Clause precludes a second

trial once the reviewing Court has found the evidence

legally insufficient, the only ‘just’ remedy available for that

Court is the direction of a judgment of acquittal. (EKm-

phasis added.) To the extent that our prior decisions

suggest that by moving for a new trial, a defendant waives

his right to a judgment by acquittal on the basis of evi-

dentiary insufficiency, those cases are overruled.

“Accordingly, the judgment of the Court of Appeals is

reversed and the case remanded for proceedings consistent

with this opinion.”

Contemporaneous with the opinion filed in Burks v.

United States, the Supreme Court filed its opinion in

Greene v. Massey, 437 U.S. The Court stated: “We granted

certiorari to decide whether a State may retry a defendant

after conviction has been reversed by an Appellate Court

(emphasis added) on the ground that the evidence intro-

duced at the prior trial was insufficient, as a matter of law,

to sustain the jury’s verdict.”

Defendant Greene was found guilty of murder in the first

degree and sentenced to death. On appeal to the Florida

Supreme Court, the judgment was reversed and a new trial

ordered. The case was remanded for new trial, the Supreme

Court of Florida having found that the evidence was lack-

A-7

ing to establish beyond a reasonable doubt that defendant

committed murder in the first degree. Before the new trial,

defendant Greene unsuccessfully sought a writ of prohibi-

‘tion claiming the new trial would violate the Double Jeop-

ardy Clause of the Federal Constitution. The Florida Dis-

trict Court of Appeal denied the writ—“Considering the

case in this posture, the Court indicated that it could find

no precedent in Florida law which would bar a retrial on

double jeopardy grounds.” The Florida Supreme Court de-

nied certiorari without comment.

After retrial and conviction of first degree murder and

a life sentence, the defendant Greene applied for a writ of

habeas corpus in the United States District Court which

denied the application, and thereafter appealed to the Dis-

trict Court of Appeals which held that a new trial had been

a constitutionally permissible remedy. The United States

Supreme Court granted certiorari to review the judgment

of the United States Court of Appeals.

The Greene Court ruled: “In Burks v. United States,

ante at 437 U.S., decided today we have held that the

Double Jeopardy Clause precludes a second trial once a

reviewing Court (emphasis added) has determined that the

evidence introduced at trial was insufficient to sustain the

verdict. Since the constitutional prohibition against double

jeopardy is fully applicable to State criminal proceedings, :

Benton v Maryland, supra, we are bound to apply the

standard announced in Burks to the case now under re-

view.”

“Tf we were confronted only with the per curiam opinion

of the Florida Supreme Court, reversal in this case would

follow. The per curiam disposition standing by itself leaves

no room for interpretation by us other than that a majority

of the State Supreme Court was of the view that the evi-

dence was definitely lacking in establishing beyond a rea-

sonable doubt that the defendants committed murder in the

first degree. By using the precise terminology ‘lacking in

establishing beyond a reasonable doubt’, the highest Court

in Florida seems to have clearly said that there was insuffi-

cient evidence to permit the jury to convict petitioner at

his first trial. The dispositive per curiam opinion makes

no reference to the trial errors raised on appeal. Viewed

in this manner, the reasoning enunciated in Burks would

obviously compel the conclusion that Greene’s second trial

violated the Double Jeopardy Clause.”

Because of various interpretations that could be placed

on the actions of the several Florida Appellate Courts, the

case was remanded to the Court of Appeals for reconsider-

ation in light of the Court’s opinion and decision in Burks

v. United States. :

In a concurring opinion, Mr. Justice Rehnquist states:

“For the reasons stated by Mr. Justice Powell in Crest v.

Bretz, No. 76-1200, I do not agree with the Court’s premise

ante p. 5, that ‘the constitutional prohibition against double

jeopardy is fully applicable to State criminal proceedings.’

Even if I did agree with that view, I would want to empha-

size more than the Court does in its opinion the varying

practices with respect to motions for new trial and other

challenges to the sufficiency of the evidence both at the trial

level and on appeal in the 50 different States of the Union.

Thus to the extent that the Florida practice in this regard

differs from practice in the Federal system, the impact of

A-9

the Double Jeopardy Clause may likewise differ with re-

spect to a particular proceeding. I, therefore, concur only

in the Court’s judgment.”

It is clear from the majority opinion that “the consti-

tutional prohibition against double jeopardy is fully appli-

cable to State criminal proceedings”. To be fully applicable,

however, the State criminal proceedings must clearly fall

within the ambit of the law comanded by Burks and Greene.

It would certainly come as a surprise to a California

Trial Judge that an order granting a new trial was an order

preventing a new trial or a judgment of acquittal. As the

law appeared on April 26, 1978, such would not be a con-

templated result and it must'be seen whether or not such a

result now emerges. It is conceded that judicial surprise is

not a matter of great moment and has no persuasive ef-

fect, however, when that surprise is due to the requested

abandonment of sound legal principles and departure from

existing California law, it must be carefully examined.

Defendant’s argument equates a decision of a Trial Judge

in California in granting a motion for a new trial on the

ground of insufficiency of the evidence with the action of

the Appellate Courts of Florida and the United States.

There is no authority for this position other than an “ipse

dixit”.

The California law as stated in People v. Serrato (supra)

indicates that an order granting a new trial by a Trial

Judge is not a judgment of acquittal and does not bar a

retrial even if the decision implies that the Trial Court has

reweighed the evidence and found that it does not establish

the defendant’s guilt of any offense. In Burks and Greene,

A-10

the Supreme Court is not concerned with Trial Court

action but that of appellate review and by the appellate

standards. Neither Burks or Greene stand for the propo-

sition that an order granting a new trial by a Trial Judge

is tantamount to a judgment of acquittal nor do they refer

to or analyze the distinctions inherent in that action. In

California, Penal Code Section 1118.1 encompasses the ex-

clusive statutory authority for the rendition of a judgment

of acquittal by a Court and not Penal Code Section 1181(6).

As pointed out in Serrato, supra (page 761), “Though the

Trial Court, by reason of its greater familiarity with the

trial proceedings, may grant a new trial under circum-

stances which an Appellate Court would refuse to act, each

Court is exercising a reviewing function when it exercises

its power under subdivision 6. The consequences of a ruling

made under the authority of this section must necessarily

be limited to those contemplated by the statute.” (Emphasis

added.)

While the decision in Burks may remove any further re-

liance upon the principle of Forman v. United States, ie.,

“that the defendant who succeeds in having his conviction

set aside impliedly waives any objection to being retried on

the same charge of which he was convicted”, it does not

address nor reach the precise issue before this Court. Nor

does Greene.

In both cases it is apparent that the Trial Court had

refused to grant the requested relief to the defendant. In

each case the Courts of review made a finding that the Trial

Court was in error and, after review by appellate stand-

ards, granted the relief requested. It was then, and only

then, that the high Court announced the rule of law which

nan AA

A-11

precludes retrial after an appellate finding on the insuf-

ficiency of the evidence.

The case at bench illustrates the disparate functions of

appellate review and Trial Court action and points clearly

to the inapplicability of Burks and Greene to the issue

here. In California—as in Florida (Florida Rules of Crim-

inal Procedure Rule 3.580, Rule 3.600, and Rule 3.380), pro-

vision is made for judgment of acquittal and for motions

for new trials upon various grounds. In California, Section

1811(6) of the Penal Code is a statute enacted solely for

the protection of the accused. If convicted, the defendant

can make application for a new trial and the Trial Judge

is vested with discretion in the grant or denial of that mo-

tion. If relief is denied, the sufficiency of the evidence to

sustain the conviction is subject to appellate review. If the

Appellate Court determines, under appellate standards,

that the evidence is insufficient and that the Trial Court was

in error, it is now clear under Burks and Greene that the

case cannot be tried again. Defendant’s argument that the

granting of a new trial by the Trial Judge is equivalent in

law to the procedure just outlined is erroneous. To so hold

would emasculate the provisions of Penal Code Section

1181(6) and render this valuable judicial tool impotent.

Such a result, in my view, is not commanded by Burks or

Greene, by California law, or by justice.

Defendant’s motions are denied.

DATED: This 7th day of September, 1978.

JAMES A. WRIGHT

Judge of the Superior Court

APPENDIX B

In the Court of Appeal

of the

State of California

Division Two

1 Civil No. 45108

Santa Clara

Superior Court No. 66600

Mitchell G. Veitch, i

Petitioner,

vs.

_- F

Superior Court, County of Santa Clara,

Respondent,

People of the State of California,

Real Party in Interest.

[Filed October 25, 1978]

BY THE COURT:

The petition for alternative writ of mandate and/or pro-

hibition is denied. (P.C. sec. 1180, People v. Serrato (1973)

9 Cal.3d 753, 761; Auto Equity Sales, Inc. v. Superior

Court (1962) 57 Cal.2d 450, 455.)

Dated, October 25, 1978

TAYLOR, P. J.

APPENDIX C

[st Civil No. 45108

In the Supreme Court of the State of California

In Bank

Veitch

The Superior Court of Santa Clara County

[Filed November 24, 1978]

Petition for hearing granted. The matter is transferred

to this court and retransferred to the Court of Appeal,

First District, Division Two, with directions to issue an

alternative writ of prohibition to be heard before that

court when the proceeding is ordered on calendar.

Tobriner, Justice

Mosk, Justice

Clark, Justice

Richardson, Justice

Manuel, Justice

Newman, Justice

A I sh ont ~

APPENDIX D

In the Court of Appeal

of the

State of California

First Appellate District

Division Two

1 Civil No. 45108

Mitchell G. Veitch, ;

Petitioner,

V8.

Superior Court of the County of Santa >

Clara, State of California,

Respondent.

People of the State of California,

Real Parties in Interest...

[Filed December 1, 1978]

BY THE COURT:

Let an alternative writ of prohibition issue as prayed

for, to be heard before Division Two of this court on

Tuesday, January 9, 1979, at 10:00 a.m. The alternative

writ is to be issued, served and filed on or before Decem-

ber 8, 1978. The written return, if any, to the alternative

writ is to be served and filed on or before December 28,

1978.

Dated, December 1, 1978

TAYLOR, P. J.

a tr

APPENDIX E

In the Court of Appeal

of the

State of California

First Appellate District

Division Two

1 Civil No. 45108

Mitchell G. Veitch, '

Petitioner,

vs.

Santa Clara County Superior Court, 7

Respondent,

People of the State of California,

Real Party in Interest. ;

[Filed December 7, 1978]

ALTERNATIVE WRIT OF PROHIBITION

The People of the State of California to the Superior

Court of the State of California, County of Santa Clara,

Greeting:

The petition for a writ of prohibition on file herein hav-

ing been considered and good cause appearing for the

issuance of this alternative writ of prohibition,

WE DO COMMAND YOU that pending further order

of this Court you desist and refrain from taking any fur-

ther action including further trials with regard to the

E-2

charges of which petitioner has already been placed once

in jeopardy in Santa Clara County Superior Court Action

No. 66600, People v. Mitchell G. Veitch,

and that you show cause before Division Two of this Court

on Tuesday, January 9, 1979, at 10:00 a.m. in its courtroom

in the State Building, San Francisco, California, why you

should not be permanently restrained from doing so.

The written return, if any, to this alternative writ is to

be served and filed on or before December 28, 1978.

Witness the Honorable Wakefield Taylor, Presiding Jus-

tice of the Court of Appeal of the State of California, First

Appellate District, Division Two.

Attest my hand and the Seal of this Court this lst day

of December, 1978.

(Seal) Clifford C. Porter, Clerk

By D. J. Gulliford, Deputy Clerk

APPENDIX F

Certified for Publication

In the Court of Appeal

of the

State of California

First Appellate District

Division Two

1 Civil No. 45108

Mitchell G. Veitch, }

Petitioner,

vs.

Superior Court of the County of Santa |

Clara, State of California,

Respondent.

People of the State of California,

Real Party in Interest.

[Filed Feb. 26, 1979]

Petitioner, aggrieved by an order of respondent court

rejecting his pleas of former judgment of acquittal (Pen.

Code, $1016, subd. 4) and once in jeopardy (Pen. Code,

§ 1016, subd. 5), petitioned this court for a writ of pro-

hibition to prevent his retrial (Gomez v. Superior Court

(1958) 50 Cal.2d 640, 653). We summarily denied relief.

Petitioner thereupon sought a hearing in the Supreme

Court. The Supreme Court, by order dated November 24,

1978, granted the petition for hearing and directed this

court to issue an alternative writ of prohibition.

F-2

On February 3, 1978, after a trial by jury, a verdict was

rendered against petitioner finding him guilty of violations

of California Penal Code sections 459 (burglary), 261, sub-

divisions 2, 3 (forcible rape and rape by threats), 459 (bur-

glary), 220 (assault with intention to commit rape), 228a

(forcible oral copulation), 264.1 (acting in concert), and

12022 (armed with a deadly weapen. On April 26, 1978, upon

petitioner’s application, respondent court granted a new

trial pursuant to the provisions of Penal Code section 1181,

subdivision 6, on the ground that the verdict was contrary

to law and evidence, “further, on the grounds of insuffi-

ciency of the evidence to support the verdict.” Thereafter,

on June 14, 1978, the United States Supreme Court decided

Burks v. United States (1978) 437 U.S. 1 [98 S.Ct. 2141]

and Greene v. Massey (1978) 437 U.S. 19 [98 S.Ct. 2151].

Burks held that the Double Jeopardy Clause precludes a

second trial once a reviewing court has determined that the

evidence introduced at trial was insufficient to sustain the

verdict. Greene applied the standard announced in Burks to

a Florida state court proceeding.

On July 31, 1978, after becoming aware of these new

cases, petitioner filed a “Motion For Hearing On Special

Defense Pleading Judgment of Acquittal of Charges Pur-

suant to P.C. 1016(3) Or Once In Jeopardy P.C. 1016(4).’”

On August 24, 1978, the motion was argued and respondent

court issued its opinion denying the motion on September

7, 1978.

1Penal Code section 1016 provides: “There are six kinds of pleas

to an indictment or an information... .

“4. i former judgment of conviction or acquittal of the offense

“5. Once in jeopardy.”

Petitioner contends that Burks and Greene stand for the

proposition that the Double Jeopardy Clause precludes a

second trial once a trial court has granted a motion fer new

trial on the ground of insufficiency of the evidence. Re-

spondent court, after examining the comprehensive nature

of California’s statutory scheme relating to motions for

judgment of acquittal and motions for new trial and the

manner in which California practices differ from the prac-

tices employed in the federal courts and Florida, concluded

that motions for new trial (Pen. Code, § 1181, subd. 6) may

not be equated with motions for judgment of acquittal

(Pen. Code, § 1118.1), and that to so hold would render

impotent a valuable judicial tool, enacted for the protection

of the accused. We agree.

A motion for new trial is a legislatively established pro-

cedure which may be invoked by any convicted defendant

(People v. Sarazzawski (1945) 27 Cal.2d 7, 17). The power

of a California trial court to hear and decide a motion for

new trial in a criminal case is strictly limited to the author-

ity granted by Penal Code section 1181 (People v. Serrato

(1973) 9 Cal.3d 753, 760; People v. Amer (1907) 151 Cal.

303, 305).

“By case law it is established that the standard of review

by a trial court acting under this section is different from

the standard used by an appellate court under the same

section. In ruling upon a motion for a new trial, the trial

court is required to independently weigh the evidence, but

*Penal Code section 1181 provides in relevant part: “When a

verdict has been rendered or a finding made against the defendant,

the court may, upon his application, om a new trial, in the fol-

lowing cases only: ... [{] 6. When verdict or finding is con-

trary to law or evidence... .”

F-4

an appellate court will not ... set aside the verdict if

there is any substantial evidence to support it. [Cita-

tions, ]” (People v. Serrato, supra, p. 761; emphasis added.)

In Serrato, the Supreme Court, examining the conse-

quences of ruling made under the authority of this section,

concluded that “If the trial court, after hearing the motion

under section 1181, grants a new trial upon the ground

that the verdict is contrary to the evidence, the decision

ts not an acquittal and is not a bar to a retrial for the

offense of which the defendant had been convicted. This

is so even though the decision may imply that the trial

court has reweighed the evidence and has found that it

does not establish the defendant’s guilt of any offense”

(People v. Serrato, supra, p. 761; emphasis added). The

court went on to state: “The function of a jury, when it

finds the evidence insufficient, is to acquit. By contrast, the

function of the court, ruling on a motion for new trial is

to grant a new trial if it finds the evidence insufficient.

A court reviewing the verdict under section 1181 has no

authority to acquit the defendant expressly, impliedly or

inadvertently” (p. 762; emphasis added).

The foregoing authority accords with the statutory com-

mand of Penal Code section 1180, which provides that “The

granting of a new trial places the parties in the same posi-

tion as if no trial had been had. All the testimony must

be produced anew, and the former verdict or finding can-

not be used or referred to, either in evidence or in argu-

ment, or be pleaded in bar of any conviction which might

have been had under the accusatory pleading’ (emphasis

added). Thus, the granting of a new trial has the same

effect as a mistrial.

F-5

The granting of a motion for judgment of acquittal

pursuant to the provisions of section 1118.1, on the other

hand, has entirely different consequences. These conse-

quences flow from different standards employed by the

trial court in ruling upon a motion for judgment of acquit-

tal. “The ‘test to be applied by the trial court under

[§ 1181.1] is... the same test applied by an appellate court

im reviewing a conviction: whether from the evidence, in-

cluding reasonable inferences to be drawn therefrom, there

is any substantial evidence of the existence of each element

of the offense charged [citations].’” (Emphasis added.)

(People v. Lines (1975) 13 Cal.3d 500, 505.)* The People

concede that the granting of a motion for judgment of

acquittal pursuant to the provisions of section 1118.1 would

bar another prosecution for the same offenses ; indeed, such

a result is compelled by statute (Pen. Code, § 1118.2;

People v. Moran (1973) 33 Cal.App.3d 724, 728).*

It is readily apparent that the statutory procedures gov-

erning motions for new trial differ from the procedures

governing motions for judgment of acquittal and that dif-

sAdded to the Penal Code in 1967 and replacing the procedure

under former section 1118 ag, for the court’s nonbinding ad-

vice to the jury to acquit, section 1118.1 provides: “In a case tried

before a jury, the court on motion of the defendant or on its own

motion, at close of the evidence on either side and before the

case is submitted to the jury for decision, shall order the entry of

a judgment of acquittal of one or more of the offenses charged in

the accusatory pleading if the evidence then before the court is in-

sufficient to sustain a conviction of such offense or offenses on ap-

peal. If such a motion for judgment of acquittal at the close of

evidence offered by the prosecution is not granted, the defendant

may offer evidence without first having reserved that right.” (Em-

phasis added.

‘Section 1118.2, in pertinent part, provides: A judgment of ac-

quittal entered pursuant to the provisions of Section . . . 1118.1 shall

not be iiptalabie and is a bar to any other prosecution for the

same offense.”

F-6

ferent consequences flow from each procedure. California’s

statutory procedures thus vary from the federal procedures

considered in Burks and the state procedures considered

in Greene, supra, 437 U.S. 19.

In Burks, supra, 437 U.S. 1, the United States Supreme

Court was squarely presented with the question of whether

a defendant may be tried a second time when a reviewing

court has determined that in a prior trial the evidence was

insufficient to sustain the verdict of the jury (p. 5). The

court re-examined its holding in Forman v. United States

(1960) 361 U.S. 416, wherein, without distinguishing

between a reversal due to trial error and a reversal result-

ing solely from evidentiary insufficiency, the court held that

a new trial did not involve double jeopardy (p. 8). The

court concluded that its prior cases were correct in allowing

a new trial to rectify trial error (p. 14); however, it con-

cluded that the rule was otherwise when a defendant’s con-

viction had been overturned due to a failure of proof at

trial, as follows: “In short, reversal for trial error, as dis-

tinguished from evidentiary insufficiency, does not consti-

tute a decision to the effect that the government has failed

to prove its case. As such, it implies nothing with respect to

the guilt or innocence of the defendant. Rather, it is a de-

termination that a defendant has been convicted through a —

judicial process which is defective in some fundmental re-

spect, e.g., incorrect receipt or rejection of evidence, in-

correct instructions, or prosecutorial misconduct. When

this occurs, the accused has a strong interest in obtaining

a fair readjudication of his guilt free from error, just as

society maintains a valid concern for insuring that the

guilty are punished... .

F-7

“The same cannot be said when a defendant’s conviction

has been overturned due to a failure of proof at trial, in

which case the prosecution cannot complain of prejudice,

for it has been given one fair opportunity to offer what-

ever proof it could assemble.’ (Pp. 15-16.)

The court pointed out in Burks, however, that “. . . such

an appellate reversal means that the Government’s case

was so lacking that it should not have even been submitted

to the jury. Since we necessarily afford absolute finality to

a jury’s verdict of acquittal—no matter how erroneous its

decision—it is difficult to conceive how society has any

greater interest in retrying a defendant when, on review, it

is decided as a matter of law that the jury could not prop-

erly have returned a verdict of guilty.

“The importance of a reversal on grounds of evidentiary

insufficiency for purposes of inquiry under the Double

Jeopardy Clause is underscored by the fact that a federal

court’s role in deciding whether a case should be consid-

ered by the jury is quite limited. Even the trial court, which

has heard the testimony of witnesses first hand, is not to

weigh the evidence or assess the credibility of witnesses

when it judges the merits of a motion for acquittal. [Cita-

tions.] The prevailing rule has long been that a district

judge is to submit a case to the jury if the evidence and in-

ferences therefrom most favorable to the prosecution would

warrant the jury’s finding the defendant guilty beyond a

reasonable doubt. [Citations.] Obviously a federal appel-

“10Tn holding the evidence insufficient to sustain Lp. om a

late court determines that the prosecution has failed to prove ean

beyond a reasonable doubt. See American Tobacco Co. v. United

States, 328 U.S. 781, 787 n. 4 (1946).”

F-8

late court applies no higher a standard; rather, it must sus-

tain the verdict if there is substantial evidence, viewed in

the light most favorable to the Government, to uphold the

jury’s decision. [Citations.] ... Given the requirements for

entry of a judgment of acquittal, the purposes of the Clause

would be negated were we to afford the Government an op-

portunty for the proverbial ‘second bite at the apple.’”

(Pp. 16-17; emphasis added.)

It is significant that petitioner does not argue, as the

defendant did in Burks, that petitioner was entitled to a

judgment of acquittal, i.e., that the People’s case “was so

lacking that it should not have even been submitted to the

jury” (p. 16). Although Burks made it clear that a defend-

ant entitled to a judgment of acquittal will not be deprived

of relief by the appellate court because he failed to ma}.

such a motion in the trial court or because he moved instea:!

for a new trial, we conclude that Burks stands for the

proposition that the Double Jeopardy Clause will preclude

retrial only if a reversal by a reviewing court is grounded

on the fact that the evidence presented to the jury is so

insufficient that the defendant was entitled to a judgment

of acquittal.

Our conclusion is fortified by the action taken by the

Supreme Court in Greene, supra, 437 U.S. 19. There, the

issue was whether the per curiam opinion of the Florida

state Supreme Court was “tantamount to a finding that

the trial court should have directed a verdict of not guilty

and hence a second trial for first-degree murder would

constitute double jeopardy” (p. 22). Because there was

some question whether, under the language of the per

curiam opinion it could reasonably be said that the con-

F-9

curring Justices thought that the legally competent evi-

dence adduced at the first trial was insufficient to prove

guilt, the matter was remanded to the Court of Appeals

for reconsideration to resolve this question (p. 26). More-

over, Justice Rehnquist, in his concurring opinion, noted

the varying practices with respect to motions for new trial

and other challenges to the sufficiency of the evidence, both

at the trial level and on appeal, in the 50 different states,

and cautioned that “to the extent that Florida practice in

this regard differs from practice in the federal system, the

impact of the Double Jeopardy Clause may likewise differ

with respect to a particular proceeding” (p. 27).

In Burks, supra, 437 U.S. 1, the government, by failing

to cross-petition for certiorari on the question of whether

the Court of Appeals was correct in holding that the gov-

ernment had failed to meet its burden of proof with respect

to the defendant’s claim of insanity, in effect conceded that

in the prior trial the evidence was insufficient to sustain

the verdict of the jury (see p. 5).° There is no such con-

cession by the People here.°

Although no transcript of the testimony taken at the

trial is available to us in these proceedings, the evidence in

‘Although the People are entitled to a from an order grant-

ing a new trial (Pen. Code, § 1238, subd. (a)(3)), it cannot be

said that by failing to appeal the People concede that the evidence

was insufficient to support the verdict. The People do not so con-

cede; rather, they argue that an — from the order —- a

new trial, given the wide latitude allowed to trial courts on a

motion, would have been futile, since reviewing courts are reluc-

tant to interfere with a decision granting a motion for new trial

unless there is a clear showing of an abuse of discretion (see People

v. Robarge (1953) 41 Cal.2d 628, 633).

*In their opposition to petitioner's motions in the triai court and

in these appellate p ings, the People have continued to assert

that the verdict of the jury was supported by substantial evidence.

F-10

the five-week-long trial appears to have been conflicting. It

is apparent from the record that respondent court, applying

the standards applicable to motions for new trial, judged

the credibility of the witnesses, resolved conflicts in the

testimony, independently weighed the evidence, and drew

factual inferences opposed to those drawn by the jury. In

passing upon a motion for new trial, the trial court has

very broad discretion and is not bound by conflicts in the

evidence (People v. Robarge, supra, 41 Cal.2d, pp. 633-

635). A trial court can grant a motion for new trial where

the evidence is legally sufficient and even where the only

evidence is that of the prosecution (People v. Sarazzawski,

supra, 27 Cal.2d, p. 16). The granting of a motion for new

trial, where the trial court has independently weighed the

evidence, cannot be equated with the granting of a motion

for judgment of acquittal, where the trial court must apply

the same test applied by an appellate court in reviewing

a conviction.

In summary, after a trial by jury, a verdict was rendered

against petitioner finding him guilty as charged of numer-

ous felonies. Upon petitioner’s application, the trial judge

granted a motion for new trial, pursuant to the provisions

of Penal Code section 1181, subdivision 6, on the ground

of insufficiency of the evidence to support the verdict. The

grant of the motion for new trial, by a trial court not

bound by the jury’s decision as to conflicts in the evidence

or inferences to be drawn therefrom and under a duty to

give defendant the benefit of its independent conclusion as

to the sufficiency of credible evidence to support the verdict,

was not the equivalent of a judgment of acquittal autho-

rized pursuant to Penal Code section 1118.1, upon which

retrial is barred (Pen. Code, $ 1118.2). We hold that peti-

F-11

tioner may be retried for the same offenses of which he

has been convicted (Pen. Code, § 1180), and that a second

trial will not violate constitutional guarantees against

double jeopardy (U.S. Const., 5th Amend.; Cal. Const., art.

I, § 15).

The alternative writ is discharged and the peremptory

writ is denied.

CERTIFIED FOR PUBLICATION.

Taylor, P. J.

WE CONCUR: ;

Kane, J.

Rouse, J.

Attorney for Petitioner:

M. Jean Starcevich

Law Offices of Robert L. Mezzetti

28 North First Street, Suite 303

San Jose, California 95113

Attorneys for Real Party in Interest:

Office of the Attorney General

Jack R. Winkler, Chief Assistant

Attorney General—Criminal Division

Edward P. O’Brien

Assistant Attorney General

Derald KE. Granberg

Deputy Attorney General

Stan M. Helfman

Deputy Attorney General

F-12

6000 State Building

San Francisco, California 94102

Veitch v. Superior Court

(People of the State of California)

1 Civil No. 45108

APPENDIX G

In the Court of Appeal

of the

State of California

First Appellate District

Division Two

1 Civil No. 45108

Superior Court No. 66600

Mitchell G. Veitch,

Petitioner,

"V8.

Superior Court, County of Santa Clara,

Respondent,

People of the State of California,

Real Party in “sual

[Filed March 28, 1979}

BY THE COURT:

The petition for rehearing filed in the above entitled

cause is hereby denied.

Dated, March 28, 1978

TAYLOR, P. J.

APPENDIX H

CLERK’S OFFICE, SUPREME COURT

4250 STATE BUILDING

SAN FRANCISCO, CALIFORNIA 94102

APR 26 1979

I have this day filed Order

HEARING DENIED

In re: 1 Civ No. 45108

Veitch

vs.

Superior Court-Santa Clara

Respectfully,

G. E. BISHEL

Clerk

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.