Sons v. Superior Court, F044541.

• Decision Date: 21 December 2004
• Docket Number: No. F044541.,F044541.
• Citation: 125 Cal.App.4th 110,22 Cal.Rptr.3d 647
• Parties: Bruce Lynn SONS, Petitioner, v. The SUPERIOR COURT of Kern County, Respondent; The People, Real Party in Interest.
• Court: California Court of Appeals Court of Appeals

22 Cal.Rptr.3d 647

125 Cal.App.4th 110

Bruce Lynn SONS, Petitioner, v. The SUPERIOR COURT of Kern County, Respondent The People, Real Party in Interest.

No. F044541.

Court of Appeal, Fifth District.

December 21, 2004.

Review Denied March 30, 2005.

Sullivan & Cromwell, Robert A. Sacks, Michael H. Steinberg, Los Angeles, Wendy P. Harper, Palo Alto, Justin P. Gurvitz, Los Angeles; and Michael E. Dellostritto, Bakersfield, for Petitioner.

No appearance for Respondent.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, Janis Shank McLean and David A. Rhodes, Deputy Attorneys General, for Real Party in Interest.

OPINION

VARTABEDIAN, Acting P.J.

Bruce Lynn Sons seeks a writ of prohibition to prevent retrial of murder charges against him after his federal habeas corpus petition succeeded in vacating his conviction based on the stipulation Sons had been denied his constitutional right to a fair trial. Petitioner Sons contends that, because the prosecutor knowingly failed to disclose material exculpatory evidence in the first trial, retrial is barred by the double jeopardy clauses of the federal and state Constitutions and by constitutional requirements of due process of law. We conclude retrial is not barred on any basis Sons has asserted. Accordingly, we deny the petition for writ of prohibition.

Facts and Procedural History

The summary of evidence contained in our opinion in Sons's direct appeal of his conviction comprises approximately 45 pages. (See People v. Sons (Mar. 23, 1999, F023776) [nonpub. opn.].) The further discussion of the various issues in that appeal comprises another 115 pages. No purpose would be served by an attempt here to provide a comprehensive summary of the underlying facts and the issues on appeal. For purposes of the present proceeding, an extremely brief summary will provide a sufficient basis for our discussion.

In 1994, California Highway Patrol Officer Richard Maxwell detained Sons for investigation of auto theft. The detention occurred after Maxwell followed Son's vehicle onto the residential premises of his father. The confrontation quickly escalated and Maxwell apparently opened fire on Sons. Sons shot back and killed Maxwell.

Sons was charged with murder; the prosecution sought the death penalty. The primary issue at the guilt phase trial was whether Maxwell was unjustified in opening fire on Sons and, therefore, whether Sons's shots in response were in self-defense. The state of the evidence at the guilt phase permitted the prosecutor to argue to the jury that Sons was aggressive in previous traffic stops conducted by other highway patrol officers, but that Maxwell was a "professional officer that everybody liked ... [and] was quiet, professional, did his job...."

The jury convicted Sons of first degree murder but found against the death penalty.

In a 2000 habeas corpus action in federal court, the Attorney General stipulated that the state "[would] not contest or deny that a violation of [Sons's] federal constitutional right to a fair trial had occurred. The parties do not agree on, and are free to contest, how the constitutional violation occurred, and the specific facts underlying the constitutional violation[.]" The federal court vacated the judgment, Sons remained in prison, and the matter was calendared for retrial.

As permitted by the stipulated judgment of the federal court, Sons moved the superior court to bar retrial of the case based on principles of double jeopardy and due process. The court held an extensive evidentiary hearing. It came to light that Maxwell had, on two occasions, been disciplined for drawing his weapon on civilians in inappropriate circumstances. His superior officer had determined that Maxwell was developing an unacceptable pattern of conduct in this regard and had placed a letter of reprimand in Maxwell's personnel file. It also came to light that the prosecutor knew this information at the time of trial and failed to disclose it to the defense.

The trial court concluded the original prosecutor had committed "serious and indefensible" misconduct in withholding exculpatory evidence at the original trial and exploiting the absence of such evidence in his argument to the jury. However, the court denied the motion to dismiss on double jeopardy grounds because Sons failed to prove the prosecutor's misconduct "was perpetrated with specific objective of avoiding an acquittal that the prosecutor viewed as likely," citing People v. Batts (2003) 30 Cal.4th 660, 695-696, 134 Cal. Rptr.2d 67, 68 P.3d 357 (hereafter Batts) and federal double jeopardy cases. The court denied the motion to dismiss on due process grounds because "the Defendant's Due Process Rights can be satisfied by virtue of a new trial."

Sons filed a petition for writ of prohibition, seeking dismissal on the two grounds asserted in the trial court. This court eventually issued an order to show cause why the petition should not be granted. The parties have filed further briefing and have presented oral argument. Proceedings in the trial court have been stayed pending our consideration of the petition.

Discussion

A. Double Jeopardy.

Sons acknowledges there are no California cases barring retrial in the circumstances before us. He argues, however, that the same principles that prohibit retrial when the prosecutor intentionally causes a mistrial should prohibit retrial when the prosecutor intentionally procures a conviction through misconduct. (See State v. Minnitt (2002) 203 Ariz. 431, 55 P.3d 774.)

The California Supreme Court recently addressed the mistrial situation in Batts, supra. In that case, a prosecution witness had been murdered between the first trial and the retrial of the case. There was an order barring the prosecution from mentioning the cause of death in conjunction with its presentation of the witness's testimony from the first trial. The jury simply was informed the witness was unavailable. On cross-examination of a police witness, however, defense counsel successfully implied the witness was unavailable because the police had paid him to go away. On redirect, the prosecutor intentionally violated the court's earlier order by soliciting the true cause of the witness's unavailability. (Batts, supra, 30 Cal.4th at p. 670, 134 Cal.Rptr.2d 67, 68 P.3d 357.)

The defendant moved for a mistrial. The prosecutor opposed the motion, contending his actions had been justified by the conduct of defense counsel. The trial court granted the mistrial. (Batts, supra, 30 Cal.4th at pp. 671-672, 134 Cal.Rptr.2d 67, 68 P.3d 357.)

When the case again was brought for trial, defense counsel moved for dismissal on double jeopardy grounds. The trial court denied the motion because, under Oregon v. Kennedy (1982) 456 U.S. 667, 102 S.Ct. 2083, 72 L.Ed.2d 416, retrial is prohibited only where the prosecutor has acted with the intent to provoke a mistrial. In the case before it, the trial court concluded, the state of the evidence favored the People and the prosecutor did not want a mistrial—he merely wanted to rebut the false impression created during cross-examination. Accordingly, the court permitted retrial and the defendant was convicted. (Batts, supra, 30 Cal.4th at pp. 674-675, 134 Cal.Rptr.2d 67, 68 P.3d 357.)

The Court of Appeal reversed, holding that retrial was barred on double jeopardy grounds. (Batts, supra, at p. 676, 134 Cal.Rptr.2d 67, 68 P.3d 357.) On petition for review, the Supreme Court reversed the Court of Appeal. In doing so, it addressed in detail the double jeopardy clause of the federal and the state Constitutions.

The Supreme Court held that the California Constitution, article I, section 15, provides double jeopardy protection somewhat broader than that provided by the Fifth Amendment to the federal Constitution: "First, as under the federal Constitution, retrial is barred by the state double jeopardy clause when the prosecution intentionally commits misconduct for the purpose of triggering a mistrial. Second, the state double jeopardy clause also may bar retrial when the prosecution, believing (in view of events that occurred during trial) that a defendant is likely to secure an acquittal at that trial, knowingly and intentionally commits misconduct in order to thwart such an acquittal. In the latter circumstance, however, retrial is barred under the state double jeopardy clause only if a court, reviewing all of the circumstances as of the time of the misconduct, finds not only that the prosecution believed that an acquittal was likely and committed misconduct for the purpose of thwarting such an acquittal, but also determines, from an objective perspective, that the prosecutorial misconduct deprived the defendant of a reasonable prospect of an acquittal." (Batts, supra, 30 Cal.4th at p. 666, 134 Cal.Rptr.2d 67, 68 P.3d 357.) The court found the evidence in the case before it did not satisfy either requirement and remanded the matter to the Court of Appeal. (Id. at p. 697, 134 Cal.Rptr.2d 67, 68 P.3d 357.)

In an introductory footnote to the Batts opinion, the court stated: "In this case, we have no occasion to address the proper application of the federal or state double jeopardy clauses in the related but distinct circumstance in which prosecutorial misconduct results not in a mistrial, but rather in the reversal of a conviction on appeal." (Batts, supra, 30 Cal.4th at p. 665, fn. 1, 134 Cal.Rptr.2d 67, 68 P.3d 357.) In its discussion of the issues before it, however, Batts clearly sets forth the path we must take in resolving the issue reserved in Batts, one version of which is squarely presented by the present case.

To determine the scope of the state Constitution's double jeopardy clause, the Batts court examined the approach taken by other states that have expanded the protection beyond that afforded under the federal Constitution. (Batts, supra, 30 Cal.4th at pp....