Opposition Brief — Gillespie v. Mannes

No. 92-467 | OFFICE OF THE CLERK

———

1992

—= ——

<==

In The

Supreme Court of the United States

October Term, 1992

.

JOHN V. GILLESPIE, SHERIFF,

Petitioner,

V.

DIANE HELEN MANNES,

Respondent.

7

Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

¢

BRIEF IN OPPOSITION

¢

Nei B. Quinn

Deputy Public Defender

(Counsel of Record)

Rosert DAHLSTEDT

Deputy Public Defender

KENNETH I. CLAYMAN

Public Defender

County of Ventura

800 S. Victoria, Room 207

Ventura California 93009

805-654-3199

Attorneys for Respondent

#6 COCKLE LE LAW Y BRIEF CO. 400) 225-6964

O# CALL COLLECT (402) 342-

i

TABLE OF CONTENTS

pr he gy 8. errr Ee

ris a Be | errr errr Terr rr re

REASONS WHY CERTIORARI SHOULD NOT BE

PST TTYL eee ETT TT TTT Cee eee

SUMMARY OF ARGUMENT. .............ccsceceee

ARGUMENT TO DENY CERTIORARI..............

II.

III.

IV.

NO REASON TO GRANT REVIEW HAS BEEN

SUGGESTED IN RELATION TO THE FIRST

TWO QUESTIONS PRESENTED, WHICH CON-

CERN THE APPLICATION OF THE DOUBLE

JEOPARDY CLAUSE, AND NO SUCH REA-

i inbn5 hence hes ndeeesbaansevenecs»

THE THIRD QUESTION, RELATING TO THE

STANDARD OF REVIEW, HAS BEEN WAIVED

BY FAILING TO ADEQUATELY PRESENT AND

PRESERVE THE ISSUE BELOW ...............

THIS CASE DOES NOT PRESENT THE TYPE

OF CONCERNS WHICH JUSTIFY A REEX-

AMINATION OF THE SETTLED RULE THAT

MIXED CONSTITUTIONAL QUESTIONS ARE

SUBJECT TO DE NOVO REVIEW IN A FED-

ERAL HABEAS CORPUS PROCEEDING ......

THE VERY NATURE OF THE DOUBLE JEOP-

ARDY CLAIM PRESENTED HERE REQUIRES

THAT FEDERAL COURTS REVIEW THE ISSUE

WITHOUT DEFERENCE TO A STATE COURT

POPES WUFMMNTEs 6h kes dncccncedctceesncess

ii

TABLE OF CONTENTS - Continued

Page

V. THE ISSUE OF THE APPROPRIATE STAN-

DARD OF REVIEW IS NOT LIKELY TO BE

- REACHED BECAUSE THE JUDGMENT BELOW

IS PROPER REGARDLESS OF THE STANDARD

OF REVIEW HELD APPLICABLE............. 14

VI. PRACTICAL AND EQUITABLE CONSIDER-

ATIONS COUNSEL AGAINST A GRANT OF

og ee er rr Prey es yee 16

CAI SNORE 5b s:h 00's 050 dns dSan tee ele Ceeae ans 17

ili

TABLE OF AUTHORITIES

Page

CONSTITUTION

California Constitution Article VI, § 14............-. 11

Cases

Abney v. United States, 431 U.S. 651, 1 ree 12

Case v. Nebraska, 381 U.S. 336 (1965)..............- 10

Grady v. Corbin, 495 U.S. 508 (1990)...........++: 7, 16

Gray v. Lewis, 881 F.2d. 821 (9th Cir. Nee 7

Hartley v. Neely, 701 F.2d 780 (9th Cir. 1983)........ 12

Hudson v. Louisiana, 450 U.S. 40 (1981)......... Rekaas 4

Justices of Boston Municipal Court v. Lydon, 466

U.S. 294 (1984) 0... ccc cece ccccccececscceccccccees 12

Kowis v. Howard, 4 Cal.3d __, 92 Daily journal

D.A.R. 15009 (November 5, 1992) .........---++++- 11

Lewis v. Jeffers, 497 U.S. 764 (1990)...........+--. 6, 15

Miller v. Fenton, 474 U. S. 104 (1985) 88 L.Ed.2d

RP errr e eT tt TT ee ee 8, 9, 10

Moore v. Dempsey, 261 U.S. 86 (1923)........--++++- 10

People v. Medina, 6 Cal.3d 484 og: Sr 11, 12

Picard v. Connor, 404 U.S. 270 (1971) .........--55-: 12

Pitchess v. Davis, 421 U.S. 482 (1975) ...........++:- 12

Smalis v. Pennsylvania, 476 U.S. 140 (1986).......... 13

Teague v. Lane, 489 U.S. 288 (1989) ........----++++:- 9

Thigpen v. Roberts, 468 U.S. 27 (1984) .....-..--+--- 15

iv

TABLE OF AUTHORITIES - Continued

Page

Turner v. Compoy, 827 F.2d 526 (9th Cir. 1987)...... 12

United States v. Johnson, 268 U.S. 220 (1925)......... 5

United States v. Martin Linen Supply Co., 430 U.S.

Ne PTE ein 04.055 d0s Wee Ore ok banks haw oaieaens 13

United States v. Scott, 437 U.S. 82 ............... 13, 15

Vasquez v. Hillery, 474 U. S. 254 (1986)............. 11

Wright v. West, 505 U.S.___, (112 S.Ct. 2482) (June

See EN cae sk koe wed cada elena aaa 3, 8, 9, 14

Younger v. Harris, 401 U.S. 37 (1971) ............. 9, 10

Copes

A Fg See Toe reer ee errr oe 9

California Penal Code Section 1385.................. 14

Statement of the Case

Respondent Mannes stood trial in state court for

murder and other charges stemming from a vehicular

collision. After the jury convicted her on the other

charges but could not agree on the murder counts, the

trial judge dismissed those counts, making a written find-

ing of insufficiency of the evidence. The State did not

appeal the dismissal, but filed a new complaint alleging

the same murder charges.

Mannes, by motion, objected to the new prosecution

on Double jeopardy grounds. The Magistrate of the

Municipal Court orally denied the motion, upon the basis

that the finding regarding the insufficiency of evidence

was a “gratuitous” comment, not an acquittal. Mannes

sought discretionary pretrial review of this decision from

the Superior Court, the Court of Appeal, and the state

Supreme Court. Each petition was denied without com-

ment.

Mannes then petitioned the federal district court for

a writ of habeas corpus. The district court issued the writ,

finding that the trial judge’s ruling constituted an acquit-

tal within the meaning of the Double Jeopardy Clause.

The State appealed to the Ninth Circuit Court of Appeals,

contending that the district court should have abstained

because the state criminal proceeding was pending, and

further that there was no acquittal within the meaning of

the Double Jeopardy Clause. The Court of Appeals

affirmed, and the instant petition followed.

Subsequent to the filing of the petition, the Petitioner

sought and obtained a recall of the mandate of the Court

of Appeals, effecting a stay of the state court proceedings

1

pending review in this court. Mannes has served the

prison sentence suffered for the convictions obtained in

the first trial, and remains out of custody on parole

pending resumption of proceedings in the state court.

There is now pending in the California Court of

Appeal, Second District, Division Six, a petition for a

discretionary writ to require the Superior Court to dis-

miss the pending murder charges based upon denial of

state statutory speedy trial rights. The petition was filed

October 16, 1992, Number B070708, and has yet to be

acted upon.

REASONS WHY CERTIORARI

SHOULD NOT BE GRANTED

Summary of Argument

The Petition sets forth three questions. The first two,

concerning the Double Jeopardy Clause, involve nothing

more than the application of settled principles to the

particular facts at hand, hence do not warrant review by

this court.

The third question involves the broader issue of the

appropriate standard of review that federal courts should

utilize in habeas corpus proceedings. However, this case

is not an appropriate vehicle to re-examine such a far-

reaching issue for several reasons. First, this issue was

not adequately presented below, and should be deemed

waived as the Petitioner urged the Court of Appeals to

review the matter de novo.

More importantly, this is not a case which involves a

collateral attack on a conviction, or other final judgement,

so the reasons, as recently discussed in Wright v. West,

infra, for a “deferential” standard of review are absent.

The proposed “deferential” standard is inappropriate

where, as here, there is no written nor binding opinion

from the state courts to guide or inform the federal court.

Furthermore, in habeas petitions based upon the cir-

cumstances presented in this case, the standard of review

is settled. Federal courts cannot “defer” to state court

characterizations of whether a particular ruling consti-

tutes an acquittal without abdicating enforcement of the

Double Jeopardy Clause.

Additional practical and equitable reasons suggest

that certiorari should be denied. Because alternate

grounds supporting the judgement below exist, it is

unlikely that this Court would reach the question con-

cerning the review. The equities of the case do not favor

the State, since it seeks by this petition to avoid not only

the ruling of the federal district court, but also the judge-

ment of the state trial judge, who determined that a

“retrial on murder charges would not be in the interests of

justice. There is also a possibility that the case could

become moot based upon a currently pending application

in the state appellate court for a dismissal based on a

violation of state statutory speedy trial rights.

¢

ARGUMENT TO DENY CERTIORARI

I. NO REASON TO GRANT REVIEW HAS BEEN

SUGGESTED IN RELATION TO THE FIRST TWO

QUESTIONS PRESENTED, WHICH CONCERN

THE APPLICATION OF THE DOUBLE JEOPARDY

CLAUSE, AND NO SUCH REASONS EXIST

Other than to argue that the result below was wrong,

the brief of Petitioner does not even attempt to assert any

reasons why certiorari should be granted with respect to

the first two questions, which concern the application of

the Double Jeopardy Clause. This omission is under-

standable because the opinion below does not conflict

with decisions of other circuits or of this Court, and does

not announce any new or previously unsettled principle

of law.

The controlling question presented in this case is

whether the written finding of the state court trial judge

of “insufficient evidence” of malice, made in support of

his decision to dismiss those charges after a hung jury,

constituted an acquittal under the Double Jeopardy

Clause. The principles applicable in this context have

been firmly established in Hudson v. Louisiana, 450 U.S. 40

(1981). The Petitioner appears to concede that the rule is

clearly established and does not urge this court to recon-

sider its previous holdings:

“Case law explains that a dismissal will be con-

sidered to be an implied acquittal barring retrial

only if the court concludes that the evidence

was insufficient as a matter of law.” (Petition,

page 7, italics in original.)

Because the controlling principle of law is con-

cededly established, this case involves nothing more than

the application of that rule to the particular facts at hand,

hence does not warrant review by this court. United States

v. Johnson, 268 U.S. 220, 227 (1925). The district court

magistrate, the district court judge, and three judges of

the Court of Appeals have all reasonably found that the

rule of Hudson, supra, was invoked by the trial court’s

written finding of “insufficient evidence”, and this court

should not disturb their findings.

II. THE THIRD QUESTION, RELATING TO THE

STANDARD OF REVIEW, HAS BEEN WAIVED BY

FAILURE TO ADEQUATELY PRESENT AND PRE-

SERVE THE ISSUE BELOW

Petitioner urges that this case presents the broad

question whether federal courts on habeas corpus should

defer to state court rulings interpreting state court orders.

The rule that Petitioner proposes is apparently that the

federal court is bound by the state court’s characteriza-

tion of a ruling if the state court’s “conclusion is a reason-

able interpretation of the record.” (Petition, page 20)

Petitioner wishes to apply the rule to the Municipal Court

Magistrate’s oral ruling where the Magistrate charac-

terized the trial judge’s written findings as “gratuitous”

and not a “finding as a matter of law that there was

insufficient evidence.” (Petition, Appendix E) This propo-

sition is advanced for the first time here.

In the Return to the Petition for Habeas Corpus, the

Petitioner filed lengthy points and authorities arguing

against the issuance of the writ. No assertion was made

that the District Court was bound by the Municipal Court

Magistrate’s characterization if it was a “reasonable” one.

The only direct reference to the Municipal Court ruling

came at the bottom of page 23, where it was argued:

“In denying the motion to dismiss, the Munici-

pal Court aptly characterized the trial judge’s

comments as ‘gratuitous’ (Record, p. 120, Ins.

13-14). Just as dicta is not binding as precedent,

gratuitous comments by the trial court should

be of no legal effect.”

The Petitioner also failed to urge this point in the

objections filed to the federal magistrate’s report recom-

mending the issuance of the writ. (Petition, Appendix I)

No mention is made of the Municipal Court Magistrate’s

ruling in those objections filed Jan. 16, 1991. The notice

accompanying the federal magistrate’s report included

the warning “Failure to so object within the time limit

specified shall be deemed a consent to the recommenda.

tion and a waiver of any appeal.”

The motion to amend the judgement and for rehear-

ing filed by Petitioner in the District Court on February

15, 1991, is also devoid of any reference to the purpor-

tedly binding effect of the ruling of the Municipal Court

Magistrate.

In Petitioner’s opening brief to the Court of Appeals,

page 14, under the heading “The comments of the trial

judge did not constitute an implied acquittal”, it was

urged that the Court of Appeals review the matter de

novo: “Thus the issue should be decided de novo, and no

presumption of correctness should be afforded the con-

clusion below [citations omitted].” Later, at page 20, Peti-

tioner in a single paragraph cited Lewis v. Jeffers, 497 U.S.

___, (1990) 111 L.Ed.2d 606, 622-624, 110 S.Ct. 3092, for

the proposition that “[t]he District Court was bound to

accept state court interpretations of state law” (emphasis

added), referencing the Municipal Court magistrate’s rul-

ing, but never suggested that the District Court or the

Court of Appeals was required to defer to the state court

ruling on the mixed constitutional question of whether

the trial judge’s ruling constituted an acquittal within the

meaning of the Double Jeopardy Clause.

The reply brief below is also devoid of reference to

the proposition that the federal court was required to

defer to the Municipal Court Magistrate’s ruling. The

Court of Appeals reviewed the matter de novo, citing

Gray v. Lewis, 881 F.2d. 821, 822 (9th Cir. 1989) (Opinion,

page 6883). Petitioner never sought rehearing, even

though Wright v. West, 505 U.S.__, 112 S.Ct. 2482 (June

19, 1992), now relied on by Petitioner, was decided prior

to the issuance of the opinion below.

The State, just as the prisoner, must adequately raise

and preserve issues below, if it is to seek redress from this

court. The State successfully prevented the respondent

from raising her claim under Grady v. Corbin, 495 U.S. 508

(1990) (Opinion, note 6), having urged that “Petitioner

may not raise a new issue on Appeal” (Reply Brief on

Appeal, page 10, heading). The same rule should apply to

the State.

III. THIS CASE DOES NOT PRESENT THE TYPE OF

CONCERNS WHICH JUSTIFY A REEXAMINA-

TION OF THE SETTLED RULE THAT MIXED

CONSTITUTIONAL QUESTIONS ARE SUBJECT

TO DE NOVO REVIEW IN A FEDERAL HABEAS

CORPUS PROCEEDING

Petitioner urges this court to answer the question left

unanswered in Wright v. West, 505 U.S.__, 112 S.Ct. 2482,

(1992), regarding the proper standard of review in federal

habeas corpus proceedings, yet the reasons suggested in

that case as cause for reexamination of the holding in

Miller v. Fenton, 474 U.S. 104, 112 (1985) confirming the de

novo review standard, are absent in the context of this

case.

In Wright v. West, supra, the habeas petition was a

collateral attack on a final judgement of conviction, alleging

that the evidence was insufficient to support a conviction.

Ten years after his conviction by a jury, the habeas peti-

tion was filed in federal district court, after two rejections

upon the merits of the claim by the State Supreme Court.

The district court denied the writ, and the Court of

Appeals reversed upon reviewing all the evidence pre-

sented to the jury.

Here, there is no final judgement of conviction, there

has been no rejection of the claim upon the merits by any

state appellate court, and no request made of the federal

court to review evidence submitted to a jury to determine

its sufficiency.

The lack of a final judgement is an important distinc-

tion because all members of the court in Wright v. West,

supra, seemed to agree that, whatever the genesis of the

rule, the Court has “gradually come to treat as settled the

rule that mixed constitutional questions are ‘subject to

plenary federal review’ on habeas. Miller v. Fenton, 474

U.S. 104, 112 (1985)”. Wright, supra, 112 S.Ct. at 2489. Yet

it is urged that the decision in Teague v. Lane, 489 U.S. 288

(1989) conflicts with the de novo review rule. While the

merits of this reasoning may be argued (see opinions of

Justice O’Connor and Justice Kennedy in Wright, supra), it

cannot be disputed that Teague itself can have no applica-

tion where there is no final judgement, as the rule under

Teague is that “a habeas petitioner generally cannot bene-

fit from a new rule of criminal procedure announced after

his conviction has become final on direct appeal.” Wright,

supra, 112 S.Ct 2484, 2489, (emphasis added). Even if

Teague is to cause a modification of the Miller rule in

certain circumstances, those circumstances cannot be pre-

sent where, as here, there is no final judgment.

Where there is no final judgment, there can be no

diminution of the “State’s significant interest in repose

for concluded litigation” (Wright, supra, 112 S.Ct. at 2491),

hence a lessened concern for “deference” exists. Neither

is any concern for res judicata or law of the case impli-

cated where federal courts properly intervene prior to a

final judgement.!

1 This is not to say that other concerns are not present when

a federal court interferes with a state court criminal proceeding.

These concerns are well-embodied in the exhaustion of

remedies requirement under 28 U.S.C. 2254 and the abstention

doctrine of Younger v. Harris, 401 U.S. 37 (1971). However, Peti-

tioner has conceded that Mannes exhausted her state court

remedies, and has now abandoned the claim formerly made,

and resolved against them, that the District Court should have

10

A final criminal judgement also implies that a judge

has ruled on any legal questions presented by the case,

and that those rulings have been subject to some type of

corrective process or review regarding the merits of those

rulings (absent some procedural default). Implicit in the

thesis that final state court judgements should be treated

with deference is the foundational requirement that

alleged state court errors in applying federal law have

been subject to a “full and fair” hearing by a state review-

ing court. See Moore v. Dempsey, 261 U.S. 86, 91, 92. Yet in

this case, no state appellate court has even reviewed the

Municipai Court Magistrate’s ruling on the merits of the

Double Jeopardy claim. Where the state has failed to

provide an adequate corrective process, (see Case v.

Nebraska, 381 U.S. 336 (1965), it can hardly complain that

the federal court determines the matter de novo.

Petitioner would equate the “considered conclusions

of a co-equal state judiciary” (Miller v. Fenton, supra 474

U.S. at 112), with the perfunctory, unreasoned and unre-

viewed ruling of a Municipal Court Magistrate. There is

simply no articulable reason to do so. Even under state

law, if Mannes were ever to be convicted of murder, the

state appellate courts will subject the Double Jeopardy

claim to full review.? There is no reason why the federal

abstained under Younger v. Harris, id. (See opinion below, page

6881)

2 Under California law, the denial of a pretrial petition for

writ of prohibition or mandate is neither law of the case, nor res

judicata when the petition is summarily denied without opin-

ion. “When the court denies a writ petition without issuing an

alternative writ, it does not take jurisdiction over the case; it

does not give the legal issue full plenary review.” Kowis v.

a

11

courts must defer to a ruling that the state appellate

courts must review de novo. Here there is no written

opinion by the state court which can serve to guide or

inform the federal courts, even though the California

Constitution, Article VI, § 14, requires written decisions

on appellate causes. And, contrary to the assertion of the

Petitioner, the question involved has nothing to do with

the interpretation of state law, but to the interpretation of

written findings, and their legal significance under the

Double Jeopardy Clause. The federal courts are in a better

position to attach the correct constitutional significance to

the ruling than are state court magistrates.

Because the rule of de novo review of mixed constitu-

tional questions has been firmly established, Petitioner

bears “the heavy burden of persuading the Court that

changes in society or in the law dictate that the values

served by stare decisis yield in favor of a greater objec-

tive”. Vasquez v. Hillery, 474 U.S. 254, 266 (1986). While

future cases may present circumstances where this bur-

den may be borne, this case does not present concerns

sufficient to cause this Court to undertake to examine

settled law.

IV. THE VERY NATURE OF THE DOUBLE JEOP-

ARDY CLAIM PRESENTED HERE REQUIRES

THAT FEDERAL COURTS REVIEW THE ISSUE

WITHOUT DEFERENCE TO A STATE COURT

PRETRIAL RULING

The Double Jeopardy Clause protects against multi-

ple trials, as well as double punishment. Pretrial review

Howard, 4 Cal.3d ___, 92 Daily Journal D.A.R. 15009, (November

5, 1992), People v. Medina, 6 Cal.3d 484 (1972).

12

of colorable double jeopardy claims is therefore necessary

to fully vindicate the constitutional right. Abney v. United

States, 431 U.S. 651 (1977); Hartley v. Neely, 701 F.2d. 780,

(9th Cir. 1983). Where state remedies are exhausted, fed-

eral courts will properly entertain a pretrial habeas peti-

tion presenting a colorable double jeopardy claim. Justices

of Boston Municipal Court v. Lydon, 466 U.S. 294 (1984).

The exhaustion requirement is satisfied “once [a] fed-

eral claim has been fairly presented to the state courts”.

Picard v. Connor, 404 U.S. 270, 275 (1971). It is not neces-

sary that the state appellate courts actually rule on the

merits of the issue, as it is sufficient that the state courts

simply have had the opportunity to rule on the merits,

but declined to do so.?

The result of these rules is that pretrial habeas peti-

tions based upon Double Jeopardy claims constitute a

special class of cases wherein the federal district court

will sometimes be required to adjudicate the prisoner’s

Double Jeopardy rights prior to any state appellate

review. “Deference” to the state appellate process is sim-

ply inapplicable where that process has not taken place.

3 Petitioner miscites Turner v. Compoy, 827 F.2d 526, 529 (9th

Cir. 1987) for the proposition that the denial of a pretrial petition

is presumed to be on the merits. To the contrary, “The denial of

an application for writ of prohibition does not constitute, and

cannot be fairly read as, an adjudication on the merits of the

claim presented.” Pitchess v. Davis 421 U.S. 487, 488. See also

People v. Medina, 6 Cal.3d. 484, 490-492. Turner, supra, simply

stands for the proposition that an unexplained denial of a writ

will not be deemed to be based upon a procedural default.

13

“Deference” is also inapplicable where the question

concerns whether a particular ruling constitutes an

acquittal for federal Double Jeopardy purposes. A state

court may well find, as a matter of state law, that a ruling

was not an acquittal. However the rule is settled that this

Court is not bound by such a determination. Smalis v.

Pennsylvania, 476 U.S. 143, 144, fn. 5 (1986). The reason is

that the label given to the ruling under state law is simply

irrelevant if “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.” United

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

“We of course accept the Pennsylvania Supreme

Court’s definition of what the trial judge must

consider in ruling on a defendant’s demurrer.

But just as ‘the trial judge’s characterization of

his own action cannot control the classification

of the action [under the Double Jeopardy

Clause],’ United States v. Scott, 437 U.S. 82, 96,

(1978), (citation omitted), so too the Pennsylva-

nia Supreme Court’s characterization, as a mat-

ter of double jeopardy law, of an order granting

a demurrer is not binding upon us.” Smalis, 476

U.S. 143, 144, fn. 5.

Since the characterization of a ruling under state law

as other than an acquittal is irrelevant under federal

Double Jeopardy doctrine, the concept of “deference” to

that characterization is inappropriate. When the charac-

terization to which deference is sought is an unreviewed

determination of a Municipal Court Magistrate, the thesis

suffers further.

14

V. THE ISSUE OF THE APPROPRIATE STANDARD

OF REVIEW IS NOT LIKELY TO BE REACHED

BECAUSE THE JUDGEMENT BELOW IS PROPER

REGARDLESS OF THE STANDARD OF REVIEW

HELD APPLiCABLE

In Wright v. West, supra, 505 U.S.__, 112 S.Ct 2482,

(1992) the question concerning the appropriate standard

of review was not reached because the court determined

that under any standard, the result below was wrong. In

this case, the result below was right, under any standard,

and the issue of deference would again evade review.

The issue of whether a federal court should give

deference to state court rulings in this case is a false one,

since the Court of Appeals did give “deference” to the

state court ruling. The opinion below clearly shows that

the Court of Appeals did give careful consideration to the

ruling of the Municipal Court Magistrate. The opinion

quoted the oral ruling and noted that the State had

adopted the Magistrate’s characterization of the findings

as “gratuitous” as part of its argument (Opinion, page

6886). Confronted with the issue of whether the written

finding was indeed “gratuitous”, the Court of Appeals

“deferred” to the California Supreme Court for guidance

on whether reasons for a dismissal under the Penal Code

Section at issue (Section 1385) are necessary. The indispu-

table answer is that the statute itself requires that the

reasons be entered in the minutes and the California

Supreme Court has held this requirement to be manda-

tory (Opinion, page 6886). Thus the Magistrate’s charac-

terization of the trial judge’s findings as “gratuitous” was

simply wrong under any standard.

15

Because the trial judge’s finding of “insufficient evi-

dence” was not gratuitous, but was the reason for his

dismissal, no reasonable judge could find that the ruling

could constitute anything other than an “acquittal” for

federal Double Jeopardy purposes.

Additionally, beyond the fact of the implied acquittal,

other aspects of the Double Jeopardy Clause mandate

that retrial for murder is barred. Because Mannes pre-

vailed below, she is entitled to urge these meritorious

grounds on review, even though they were not passed

upon by the Court of Appeals, because they rest on the

same facts. See Thigpen v. Roberts, 468 U.S. 27 (1984), Lewis

v. Jeffers, 497 U.S.__ 110 S.Ct. 3092, 3105, fn. 3 (1990) UJ.

Blackmun dissenting). Each additional ground rests on

undisputed facts contained in the record, and is sufficient

of itself to support the issuance of the writ without refer-

ence to the standard of review.

Without attempting to argue the merits, the addi-

tional grounds are summarized as follows. Even if the

trial judge’s ruling can be characterized as based upon

the weight rather than the sufficiency of the evidence,

retrial is still barred as a successive prosecution because

the order of dismissal terminated the jeopardy that

unquestionably attached at the inception of the trial (and

which was not terminated merely by the declaration of a

mistrial). While the State could have appealed the deci-

sion of the judge to dismiss the murder charges as long as

it was not held to constitute an acquittal (United States v.

Scott, 437 U.S. 82 (1978)), it did not. Thus any new

attempt to institute a new criminal proceeding is an

impermissible successive prosecution.

16

Retrial is also barred under Grady v. Corbin, 495 U.S.

508 (1990), in that Mannes was convicted in the first trial

for drunk driving causing injury arising out of the same

collision. Thus she has been convicted based upon the

same conduct which underlies the pending murder

charges. She has now completed her prison sentence

received for the previous conviction, and further punish-

ment, imposed in a separate proceeding, for the same

conduct, violates the Double Jeopardy Clause.

VI. PRACTICAL AND EQUITABLE CONSIDER-

ATIONS COUNSEL AGAINST A GRANT OF

CERTIORARI

It would be inequitable to grant certiorari in this case

simply to reach the standard of review issue. All five

federal judicial officers who have given this matter full

review have come to the unanimous decision that the

Double Jeopardy Clause bars retrial for murder. The state

appellate courts could yet agree. It would be unjust and

frustrate the purpose of the Double Jeopardy Clause to

require Mannes to once more “run the gauntlet” in these

circumstances.

It must also be considered that the trial judge unde-

niably believed that the interests of justice did not require

a conviction at the level of murder for the acts committed

(see Petition, Appendix D, page 2). The State seeks not

justice, but the raw power to attempt to achieve a result

which has already been judicially determined to be

against the interests of justice.

The possibility exists that the matter may become

moot in the future. The petition for a writ of mandate/

17

prohibition, presently pending in the state Court of

Appeal, based upon violation of state Statutory speedy

trial rights, would, if granted, result in dismissal of the

currently pending murder charges.

*

CONCLUSION

For the reasons stated above, Respondent Mannes

respectfully urges this Court to deny the petition for

certiorari, giving her the protection that the Double Jeop-

ardy Clause promises.

Respectfully Submitted,

Ne B. Quinn,

Deputy Public Defender

(Counsel of Record)

RoBert DAHLSTEDT

Deputy Public Defender

KENNETH I. CLAYMAN

Public Defender

County of Ventura

800 S. Victoria, Room 207

Ventura, California, 93009