Mannes v. Gillespie

• Decision Date: 22 June 1992
• Docket Number: No. 91-55336,91-55336
• Citation: 967 F.2d 1310
• Parties: Diane Helen MANNES, Petitioner-Appellee, v. John V. GILLESPIE, Sheriff, Respondent-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1310

967 F.2d 1310

Diane Helen MANNES, Petitioner-Appellee, v. John V. GILLESPIE, Sheriff, Respondent-Appellant.

No. 91-55336.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Dec. 3, 1991.

Decided June 22, 1992.

Michael D. Schwartz, Deputy Dist. Atty., Ventura, Cal., for respondent-appellant.

Neil B. Quinn, Deputy Public Defender, Ventura, Cal., for petitioner-appellee.

Appeal from the United States District Court for the Central District of California.

Before: BROWNING, BOOCHEVER and REINHARDT, Circuit Judges.

JAMES R. BROWNING, Circuit Judge:

The district court issued a writ of habeas corpus "forever prohibiting" the retrial of petitioner Diane Helen Mannes on three murder charges. The state argues the district court should have abstained, and, alternatively, that the court erred in ruling retrial of Mannes for the three murders was barred by the Double Jeopardy Clause. We affirm.

I

While driving under the influence of alcohol, Mannes struck five pedestrians, killing three and injuring two others. She was charged with three counts of murder (Cal.Pen.Code § 187(a)), one count of driving under the influence and causing injury (Cal.Veh.Code § 23153(a)), and one count of driving with a blood alcohol level of .10 percent or more and causing injury (Cal.Veh.Code § 23153(b)).

The charges were tried in Superior Court. The jury found Mannes guilty of both charges of driving under the influence and deadlocked on the three murder charges. The trial judge accepted the guilty verdicts, declared a mistrial on the murder charges, and discharged the jury. ¹ Mannes was sentenced to four years in prison on the driving under the influence counts.

Two weeks after discharging the jury, the judge, acting on his own motion, dismissed the murder charges pursuant to Cal.Pen.Code § 1385, granting trial judges broad authority to dismiss cases "in furtherance of justice." ²

The district attorney re-filed the murder charges in Municipal Court. Mannes objected on the ground retrial for murder would violate the Double Jeopardy Clause. The Municipal Court judge bound Mannes over for trial. Mannes' petition to the Superior Court for a writ of prohibition, her petition to the Court of Appeal for a writ of mandate, and her petition for review to the California Supreme Court were all denied without comment.

Mannes then sought a writ of habeas corpus from the court below. The district court granted the writ, enjoining California from prosecuting Mannes for the murders. The state appealed.

II

Since Mannes exhausted state remedies on her double jeopardy claim, the district court had jurisdiction to hear her petition under 28 U.S.C. § 2254. See Justices of Boston Mun. Court v. Lydon, 466 U.S. 294, 300-03, 104 S.Ct. 1805, 1809-11, 80 L.Ed.2d 311 (1984). A claim that a state prosecution will violate the Double Jeopardy Clause presents an exception to the general rule of Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), requiring federal courts to abstain from interfering with pending state criminal proceedings. The Fifth Amendment's protection against double jeopardy--"nor shall any person be subject for the same offense to be twice put in jeopardy of life and limb"--"is not against being twice punished, but against being twice put in jeopardy," United States v. Ball, 163 U.S. 662, 669, 16 S.Ct. 1192, 1194, 41 L.Ed. 300 (1896); Abney v. United States, 431 U.S. 651, 661, 97 S.Ct. 2034, 2041, 52 L.Ed.2d 651 (1977). Because full vindication of the right necessarily requires intervention before trial, federal courts will entertain pretrial habeas petitions that raise a colorable claim of double jeopardy. Hartley v. Neely, 701 F.2d 780, 781 (9th Cir.1983) ("[P]retrial habeas corpus review is appropriate in those cases where, as here, all other state remedies were exhausted."); Greyson v. Kellam, 937 F.2d 1409, 1412-13 (9th Cir.1991).

The state contends, however, that the district court should have abstained because, as in Doe v. Donovan, 747 F.2d 42 (1st Cir.1984), even if Mannes' petition were granted she could be retried for manslaughter, though not for murder, ³ and would remain in custody serving her sentence on the convictions for driving under the influence.

In Doe, the petitioner sought a writ of habeas corpus to prevent a Massachusetts juvenile court from trying her for murder, claiming trial on that charge would violate the Double Jeopardy Clause. Id. at 43. The court acknowledged the general rule that "a colorable double jeopardy claim may constitute the threat of injury necessary to fall within the exception to the Younger abstention principle," id. at 44, but held the exception inapplicable. The court explained that the petitioner would in any event be "subjected to the ordeal of a trial" for manslaughter, and "[b]ecause of the unique jurisdictional posture of this case," she would not suffer significantly greater injury if required to stand trial for murder rather than manslaughter, even if trial for the murder charges were subsequently found to have been barred by the Double Jeopardy Clause. Id. at 44-45. Trial for murder involved no greater risk to petitioner than trial for manslaughter. Petitioner was to be tried in juvenile court, would reach age 18 in less than a year; she could not be held in custody beyond that date whether she was convicted of murder or manslaughter. Id. at 45. This was the "[m]ost important" reason the court regarded abstention as appropriate. Id.

No similar circumstance is present here. Moreover, an accused has a strong interest, which the court in Doe did not consider, in not being faced with murder charges even if a manslaughter trial is possible. The inclusion of a greater charge barred by double jeopardy can prejudice the ability of the accused to defend against a lesser charge. The prejudice may be so great as to require that a conviction on the lesser charge be overturned. Price v. Georgia, 398 U.S. 323, 331-32, 90 S.Ct. 1757, 1762, 26 L.Ed.2d 300 (1970); Morris v. Mathews, 475 U.S. 237, 245-46, 106 S.Ct. 1032, 1037, 89 L.Ed.2d 187 (1986). Because the accused already has been subjected to the ordeal of trial, overturning such a conviction is not a complete remedy for the double jeopardy violation. Further, the Supreme Court has recognized that, contrary to the apparent assumption of the court in Doe,

[t]here is a significant difference to an accused whether he is being tried for murder or manslaughter. He has reason for concern as to the consequences in terms of stigma as well as penalty. He must be prepared to meet not only the evidence of the prosecution and the verdict of the jury but the verdict of the community as well.

Price v. Georgia, 398 U.S. at 331 n. 10, 90 S.Ct. at 1762 n. 10.

Doe involved unique facts and its reasoning has not been followed by any subsequent case. Because Mannes faced the possibility of irreparable injury if forced to stand trial on murder charges that might be barred by the Double Jeopardy Clause, the district court properly heard her petition.

III

We decide de novo whether retrial of Mannes for the murders is barred by the Double Jeopardy Clause. Gray v. Lewis, 881 F.2d 821, 822 (9th Cir.1989).

Jeopardy attached when the jury was sworn. United States v. Martin Linen Supply Co., 430 U.S. 564, 569, 97 S.Ct. 1349, 1353, 51 L.Ed.2d 642 (1977). Jeopardy did not terminate when the trial judge declared a mistrial after the jury deadlock. Accordingly, California was free to retry Mannes. Richardson v. United States, 468 U.S. 317, 326, 104 S.Ct. 3081, 3086, 82 L.Ed.2d 242 (1984). Mannes argues, however, that the trial judge's sua sponte dismissal of the murder charges pursuant to Cal.Pen.Code § 1385 two weeks after the mistrial was equivalent to an acquittal, terminating jeopardy and preventing retrial. ⁴

Section 1385 provides that a trial judge may, either on the judge's own motion or that of the prosecutor, order an action dismissed "in furtherance of justice." An action may be dismissed under section 1385 before, during, or after trial. People v. Orin, 13 Cal.3d 937, 120 Cal.Rptr. 65, 71, 533 P.2d 193, 199 (1975). A trial judge has broad but not unlimited discretion to dismiss under section 1385, id.; the court must consider "the constitutional rights of the defendant, and the interests of society represented by the People, in determining whether there should be a dismissal. At the very least, the reason for dismissal must be that which would motivate a reasonable judge." Id. (citations and emphasis omitted).

The impact of a section 1385 dismissal upon the application of the Double Jeopardy Clause depends on the reason for the dismissal. The relevant principles are discussed in Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981). After conviction by a jury, Hudson moved for a new trial, which the trial judge granted. Id. at 41, 101 S.Ct. at 971. Louisiana law allowed the trial judge to order a new trial if "[t]he verdict is contrary to the law and the evidence," Id. at 41 n. 1, 101 S.Ct. at 971 n. 1. The Supreme Court concluded that the trial judge "granted the new trial because the State had failed to prove its case as a matter of law, not merely because he, as a '13th juror' would have decided it differently." Id. at 44, 101 S.Ct. at 973. What mattered for the purposes of the Double Jeopardy Clause was the ground for the trial judge's order; because the judge determined that the state had failed to prove its case, retrial was barred.

An analogous situation is presented when an appellate court reverses a conviction. If the conviction is reversed for trial error there is no bar to retrial, but if reversal is based on insufficiency of the evidence presented at trial, retrial is precluded by the Double Jeopardy Clause. Burks v. United States, 437 U.S. 1, 15-18, 98 S.Ct. 2141, 2149-51, 57 L.Ed.2d 1 (1978); Greene v. Massey, 437 U.S. 19, 24-26, 98 S.Ct. 2151, 2154-55, 57 L.Ed.2d 15 (1978)....