Short v. Superior Court of Santa Clara Cnty.

• Decision Date: 27 November 2019
• Docket Number: H046372
• Citation: 42 Cal.App.5th 905,255 Cal.Rptr.3d 832
• Court: California Court of Appeals Court of Appeals
• Parties: Gordon SHORT, Petitioner, v. The SUPERIOR COURT OF SANTA CLARA COUNTY Respondent; The People, Real Party in Interest.

42 Cal.App.5th 905

255 Cal.Rptr.3d 832

Gordon SHORT, Petitioner,

v. The SUPERIOR COURT OF SANTA CLARA COUNTY Respondent;The People, Real Party in Interest.

H046372

Court of Appeal, Sixth District, California.

Filed November 27, 2019

Daniel L. Barton, Nolan Barton & Olmos, Palo Alto, for Petitioner.

No appearance for Respondent.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Jeffrey M. Laurence, Senior Assistant Attorney General, Donna M. Provenzano, Supervising Deputy Attorney General, Melissa A. Meth, Deputy Attorney General, Sara Elizabeth Dabkowski, Office of the District Attorney, for Real Party in Interest.

ELIA, ACTING P. J.

Petitioner Gordon Short was tried in 2017 for seven sex offenses allegedly committed against his adopted daughter when she was a child. The jury convicted Short of two counts, acquitted him of one, and was unable to reach a verdict on four. The prosecutor moved to amend the information to add eight new, alternative charges based on the conduct underlying the four counts on which the first jury hung. The trial court permitted the amendment over Short's objections that it was barred by Penal Code section 654, subdivision (a)'s prohibition on successive prosecutions and was vindictive in violation of his due process rights.¹ Short now challenges that ruling in this writ proceeding.

We are presented with what apparently is a question of first impression: whether the bar on successive prosecutions bars the addition of new charges following a trial where the jury acquitted on some counts, convicted on others, and could not agree on the remainder. We hold that the bar on successive prosecutions does not apply on the facts of this case. We further conclude that the facts do not give rise to a presumption of vindictiveness because the new charges are less serious, alternative charges that do not increase Short's exposure. We will deny the petition.

I. BACKGROUND

A. Factual Summary²

Short and his wife adopted the victim when she was four years old.

The victim had trouble sleeping and when she was a child Short would sit on her bed until she fell asleep. When the victim was seven or eight years old, Short started touching her breasts and vagina at bedtime. When she was nine or 10 years old, Short first inserted his penis into her vagina. He did so four to six times a month until she was 12 years old. Short made the victim orally copulate him multiple times when she was between the ages of about 9 and 12 years old. The victim believed that the sexual abuse stopped when she was 12 years old, in part because she realized it was abuse after taking Sex Ed in school, and she reacted by avoiding Short and figuratively pushing him away. The victim disclosed the abuse when she was 14 or 15 years old.

The Santa Clara County District Attorney charged Short by first amended information with seven counts: one count of lewd or lascivious acts on a child under 14 years between September 29, 2005 and September 28, 2006 (when the victim was six years old) (§ 288, subd. (a); count 1); four counts of sexual intercourse or sodomy with a child 10 years old or younger between September 29, 2006 and September 28, 2010 (when the victim was between seven and 10 years old) (§ 288.7, subd. (a); counts 2-5); one count of lewd or lascivious acts on a child under 14 between September 29, 2010 and September 28, 2011 (when the victim was 11 years old) (§ 288, subd. (a); count 6); and one count of lewd or lascivious acts on a child under 14 between September 29, 2011 and September 28, 2012 (when the victim was 12 years old) (§ 288, subd. (a); count 7). As to counts 1, 6, and 7, the first amended information alleged substantial sexual contact between Short and the victim, meaning "penetration of the vagina or rectum of either the victim or the offender by the penis of the other or by any foreign object, oral copulation, or masturbation of either the victim or the offender." (§ 1203.066, subds. (a)(8), (b).)

Short went to trial on all seven counts in 2017. A jury returned a not guilty verdict on count 1 and guilty verdicts on counts 6 and 7; it hung on counts 2 through 5.³ The jury found true the allegations that Short had substantial sexual contact with the victim in connection with counts 6 and 7. The trial court declared a mistrial on counts 2 through 5.

Following unsuccessful plea negotiations regarding the four unresolved counts, the District Attorney moved under section 1009 to amend the information to add eight additional counts—four counts of aggravated sexual assault (rape by force, fear, or threat) on a child under 14 years (§§ 269/261) and four counts of lewd or lascivious acts on a child under 14 years by force or fear (§ 288, subd. (b)). The prosecutor argued that these were alternative charges for the conduct underlying former counts 2 through 5, on which the original jury had failed to reach a verdict. Initially the prosecutor sought to allege that the eight additional counts occurred between September 29, 2006 and September 28, 2011, when the victim was between seven and 11 years old. That date range was one year longer than the date range associated with former counts 2 through 5 and overlapped with former count 6, of which Short was convicted. The prosecutor later changed the date range associated with the eight additional counts to between September 29, 2006 and September 28, 2010 to eliminate the overlap with former count 6 and thereby avoid any double jeopardy issue.

Short opposed the motion to amend on two grounds. Citing Kellett v. Superior Court (1966) 63 Cal.2d 822, 48 Cal.Rptr. 366, 409 P.2d 206 ( Kellett ), he argued that the bar on successive prosecutions proscribed the filing of new charges based on the same course of conduct as the original charges. He also asserted that the new charges constituted vindictive prosecution.

The trial court found that no presumption of vindictiveness arose because the new charges do not increase Short's maximum exposure; the court declined Short's request for an evidentiary hearing on the issue. The court further concluded that Kellett did not bar the proposed amendment. In doing so, the court noted the lack of any published case law directly on point.

On October 19, 2018, the trial court allowed the prosecution to file a third amended information. The third amended information alleges the seven charges on which defendant already was tried plus the eight new charges, for a total of 15 counts. Specifically, it alleges four counts of sexual intercourse or sodomy with a child 10 years old or younger between September 29, 2006 and September 28, 2010 (when the victim was between seven and 10 years old) (§ 288.7, subd. (a); counts 1, 4, 7, and 10/former counts 2-5); four counts of aggravated sexual assault of a child under 14 by rape between September 29, 2006 and September 28, 2010 (when the victim was between seven and 10 years old) (§§ 269/261, subd. (a); counts 2, 5, 8, and 11); four counts of lewd or lascivious acts on a child by force between September 29, 2006 and September 28, 2010 (when the victim was between seven and 10 years old) (§§ 288, subd. (b)(1); counts 3, 6, 9, and 12); one count of lewd or lascivious acts on a child under 14 years between September 29, 2005 and September 28, 2006 (when the victim was six years old) (§ 288, subd. (a); count 13/former count 1); one count of lewd or lascivious acts on a child under 14 between September 29, 2010 and September 28, 2011 (when the victim was 11 years old) (§ 288, subd. (a); count 14/former count 6); and one count of lewd or lascivious acts on a child under 14 (when the victim was 12 years old) (§ 288, subd. (a); count 15/former count 7). The third amended information alleged substantial sexual contact as to counts 3, 6, 9, and 12 through 15 (§ 1203.066, subds. (a)(8), (b)). Finally, the third amended information stated that "Short was previously found not guilty on former Count 1 (§ 288(a), age 6), and he was previously found guilty on former Counts 6 and 7 (§ 288(a), ages 11 and 12), and the Special Allegations found true. These Counts are now listed as 13, 14, and 15. The conduct alleged in Counts 1-12 in this Third Amended Information is separate from the conduct in those three Counts."

Short challenged the trial court's rulings by way of a petition for writ of prohibition/mandate filed in this court in November 2018. This court stayed all trial court proceedings in January 2019. After obtaining preliminary opposition and reply, we issued an order to show cause.

II. DISCUSSION

A. The Bar on Successive Prosecutions Does Not Apply Here

1. Legal Principles

a. The Bar on Successive Prosecutions

Section 654, subdivision (a) proscribes both multiple punishment and multiple prosecutions. ( People v. Linville (2018) 27 Cal.App.5th 919, 927, 238 Cal.Rptr.3d 492 ( Linville ).) As to multiple prosecutions, it states: "[a]n acquittal or conviction and sentence under any one [provision of law] bars a prosecution for the same act or omission under any other [provision of law]." ( § 654, subd. (a).) Kellett is the leading case on section 654, subdivision (a)'s bar against successive prosecutions. There our Supreme Court held that "[w]hen ... the prosecution is or should be aware of more than one offense in which the same act or course of conduct plays a significant part, all such offenses must be prosecuted in a single proceeding unless joinder is prohibited or severance permitted for good cause. Failure to unite all such offenses will result in a bar to subsequent prosecution of any offense omitted if the initial proceedings culminate in either acquittal or conviction and sentence." ( Kellett , supra , 63 Cal.2d at p. 827, 48 Cal.Rptr. 366, 409 P.2d 206.) The purpose of the bar on successive prosecutions is to prevent "needless harassment" of criminal defendants and to avoid "the waste of public funds ...." ( Ibid. )

"[T]he appellate courts have developed two different tests to determine if...