1

Filed 11/3/14



## IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE , ) ) Plaintiff and Appellant, ) ) S 210545
v. ) ) Ct.App. 2 /5 B231411 KHRISTINE ELAINE ) EROSHEVICH et al. , ) ) Los Angeles County Defendants and Respondents. ) Super. Ct. No. BA353907

________________________________ ____ )

After a jury trial that resulted in defendant Howard K. Stern ‟s convictions on two counts of conspiracy, the trial court granted defendant‟s motion for a new
trial and dismissed the charges on the grounds that the evidence was insufficient to
establish that defendant intended to commit a crime. The Court of A ppeal
reversed , reinstating the jury‟s verdict, and ordered that the trial court could consider defendant‟s remaining grounds f or a new trial, but that double jeopardy precluded defendant from being retried. We granted review on the sole issue of
whether the state and f

ederal constitutional protections against double jeopardy
would preclude a retrial if defendant ‟s new trial motion is granted

. We conclude
that t he Court of Appeal erred when it ordered that double jeopardy precluded
defendant from being retried and hold that, if the trial court grants defendant a new trial on any of his remaining claims , he may be retried.2 I

. The People filed an 11

- count information against defendant Howard K.
Stern

. All of the charges arose out of allegations that defendant Stern and
codefendant Dr. Khristene Eros he vich had conspired to and did provide prescription drugs to Anna Nicole Smit h (also known as Vicki Lynn Marshall ) under a variety of false names. 1 The jury convi cted defendant on two counts of conspiracy (counts 1 and 3) to commit two target crimes

— obtaining a controlled substance by fraud, decei t, or misrepresentation in violation of Health and Safety Code section 11173, subdivision (a) , and giving a false name in a prescription for a controlled substance in violation of Health and Safety Code section 11174 ; one conspiracy was alleged to have occurred between September 11, 2006, and February 8, 2007 , and the other between June 5, 2004, and September 10, 2006.
Defendant was acquitted on the remaining nine counts

.

1 Although codefendant Eroshevich‟s name appears in the title of this case, our decision does not affect her. She was charged with the same 11 counts as defendant. The jury convicted her on the same two conspiracy charges, plus two additional charges. The trial court concluded that its dismiss al of the charges against defendant, the only other conspirator, foreclosed any conspiracy convictions against Eroshevich. Therefore, the trial court dismissed counts 1 and 3 , the conspiracy charges, against Eroshevich in furtherance of justice under sect ion 1385. The Court of Appeal reversed the trial court‟s dismissal of the conspiracy counts and concluded that Eroshevich could be retried if her retrial motion is granted . The Court of Appeal reasoned that because the trial court did not state that it f

ound the evidence insufficient to support Eroshevich‟s convictions under the substantial evidence standard, the dismissal did not amount to a legal acquittal of codefendant. (See People v. Lagunas (1994) 8 Cal.4th 1030, 1038, fn. 6.) The People‟s p etition for r eview did not take issue with any part of the Court of Appeal‟s ruling regarding Eroshevich.3

D efendant filed a motion for a new trial asserting several grounds pursuant to Penal Code section 1181 , 2 and a sked t he court to exercise its discretion to dismiss the charges under section 1385

. Based on the insufficiency of the evidence, t he trial court granted defendant ‟s motion for a new trial and also
dismissed the two conspiracy counts

. The trial court concluded that “no
reasonable trier of fact could find that Howard Stern had a specific intent to violat e either of these target crimes ” and that the evidence supported the conclusion that defendant had provided prescription drugs to Ms. Ma rshall under false names only to protect her privacy. After reviewing all the evidence, “in a light most favorable to upholding the ver dict,” the trial court found the evidence to be “ clea rly insufficient.” The People appealed and t he Court of Appeal , i n a published opinion, reversed the trial court‟s rulings on the motions

. T he Court of Appeal held that the evidence regarding defendant‟s knowledge and involvement in the provision of drugs to Ms. Marshall in the names of other persons was sufficient suc h that “the jury could reasonably conclude Mr. Stern, a lawyer, knowingly participated in the ongoing illegal practice of securing illegal prescriptions.”
T he Court of Appeal held that “the new trial and dismissal orders must be set aside; the verdicts as to c ounts 1 and 3 must be reinstated ; and, upon remittitur issuance, the trial court must proceed to rule on other new trial issues, dismissal grounds and , if appropriate, sentence [defendant] ; bu t under no circumstances may
he be retried. ” (Italics ad ded .) The Court of Appeal concluded that federal and

state double jeopardy protections prevent ed retrial of defendant , finding Hudson v.
Louisiana (1981) 450 U.S. 40, 44 , to be controlling

. The Court of Appeal

2 Unless otherwise noted, all statutory references are to the Penal Code.4

reasoned that b ecause the trial court grante d the new trial motion and dismissed the charges based on the in sufficiency of the evidence , the dismissal order had the legal effect of an acquittal ; t herefore, e ven though the trial court‟s order was
erroneous, that order barred retrial of defendant

. In light of its conclusion , the Court of Appeal discussed several avenues the trial court might consider upon remand : (1) deny the new trial motion and proceed to sentence defendant ; (2) deny the new trial motion, but dismiss the case on alternative secti on 1385 grounds; (3) grant the new trial motion using the “13th juror” standard, but
defendant would be barred from retrial; or (4) dismiss counts 1 and 3 on other grounds. T he Court of Appeal emphasized that “under no circumstances may a retrial occur.” We granted the People ‟s petition for review , which c ontend ed that the Court of Appeal erred in concluding defendant may not be retried should his
moti o n for new trial be granted by the trial court

. II

. The principles of double jeopardy are of federal and state constitutional origin. The Fifth Amendment of the U nited S tates Constitution provi des that

“ [n]o person shall

. . . be subject for the same offence to be twice put in jeopardy
of life or limb

. . . . ” (U.S. Const., 5th Amend.) Similarly, the Californ ia Constitution provides that “[ p ]ersons may not twice be put in jeopardy for the
same offense

. . . . ” (Cal. Const., art. I, § 15 .) Unless sound reason exist s , California courts will not interpret the California d ouble j e opardy clause more broadly tha n its federal counterpart

. ( Raven v. Deukmejian (1990) 52 Cal.3d 336, 353.) At its core, the double j eopardy clause “protect[s] an individual from being subjected to the hazards of trial and possible conviction more than once for an alleged offense.” ( Green v. United States (1957) 355 U.S. 184, 187.) The policy5

u nderlying the double j eopardy protection “is that the State with all its resources and power should not be allowed to make repeated attempt s to convict an
individual .

. . thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity.” ( I d. at
pp. 187

- 188. ) “The constitutional protection against double jeopardy unequi vo cally prohibits a second trial f

ollowing an acquittal,” because the “public interest in the
finalit y of criminal judgments is so strong that an acquitted defendan t may not be
retried even though „the acquittal was based upon an egregiously erroneous
foun dation.‟ ” (

Arizona v. Washington ( 1978 ) 434 U.S. 497 , 503.) Consequently, the People cannot appeal from a jury‟s verdict acquitting a defendant , seeking a
reversal in order to retry the defendant. 3 “This is justified on the ground that,
however mistake n the acquittal may have been, there would be an unacceptably high risk that the Government, with its superior resources, would wear down a defendant, thereby „ enhancing the possibility that even though innocent he may be found guilty.‟ ” ( United States v

. D iFrancesco (1980) 449 U.S. 117 , 130 .) Similarly, a trial court ‟s action amounting to the legal equivalent of an acquittal prior to the jury’s verdict cannot be appealed by the People because a successful appeal would result in a second trial, which would violate the protection against double jeopardy

. ( Evans v. Michigan (2013) 5 68 U.S. ___ [ 133 S.Ct. 1069, 1074 ] ( Evans ) .) The trial court‟s action is the legal equivalent of an

3 In California, t he People‟s ability to appeal is delineated in section 1238. Any appeal falling outside section 1238 is prohibited. ( People v. Salgado (2001) 88 Cal.App.4th 5, 11 .) Section 1238, subdivision (a)(8), allows the People to appeal “[a]n order or judgment dismissing or otherwise terminating all or any portion o f the action including such an order or judgment after a verdict or finding of guilty .

. . .”6

acquittal if it constitutes a ruling that the prosecution‟s evidence was insufficient to support a conviction, regardless of whether that ruling is legally correct. ( Ibid

. [although trial court erred in directing verdict of acquittal at close of prosecution‟s case, defendant was acquitted for double jeopardy purposes and could not be retried] ; see, e.g., Smalis v. Pennsylvania (1986) 476 U.S. 140 [trial court‟s order granting defendant‟s demurrer after close of the prosecution‟s case on grounds that the evidence was insufficient constituted an acquittal for double jeopardy purp oses and barred appeal and retrial]; Sanabria v. United States (1978) 437 U.S. 54, 64 [trial court‟s order striking certain evidence and granting judgment of acquittal could not be appealed even if based on erroneous legal conclusions]; U nited S tates v. Martin Linen Supply Co. (1977) 430 U.S. 564 [double jeopardy clause barred appeal of trial court‟s judgment of acquittal, entered after jury was discharged because it had been unable to agree on a verdict ]; Fong Foo v. United States (1962) 369 U.S. 141 , 143 [trial court‟s order directing jury to return verdicts of acquittal, resulting in judgments of acquittal, barred retrial even if trial court was without power to direct acquittals under the circumstances of the case].) 4 On the other hand, if a trial court rules that evidence was insufficient to support a conviction after the jury has returned a verdict the People may appeal

4 Sometimes when a trial court grants a motion for new trial, it is unclear whether it found the evidence to be legally insufficient or whether it concluded,
r eviewing the evidence independently as the “13th juror,” that the jury‟s verdict was against the weight of the evidence. (See § 1181; People v. Lagunas , supra, 8 Cal.4th at p. 1038, fn. 6.) In such situations, the r eviewing court “must determine whether the ruling

. . . , 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

. , supra, 430 U.S. at p. 571.) In the present case , however, the record leaves no doubt that the trial court found the evidence to be legally insufficient.7

that ruling “ because reversal would result in reinstatement of the jury verdict of guilt , not a new trial.” ( Evans , supra , 568 U .S. at p.

___ [ 133 S.Ct. at p. 1081 , fn. 9 ] ; accord, United States v. Wilson (1975) 420 U.S. 332, 353 [prosecution may appeal from trial court‟s dismissal of indictment after a jury had returned its verdict]. ) “[W]here a Government ap peal presents no threat of succ essive prosecutions, the Double Jeopardy Clause is not offended.” ( United States v. Martin Linen Supply Co

. , supra , 430 U.S. at pp. 569

- 570.)
Under these decisions , in the present case, double jeopardy principles did not preclude the Peopl e from appealing the trial court‟s judgment dismissing the charges on the grounds that the evidence was insufficient. A successful appeal by the People under such circumstances would merely require reinstatement of the jury‟s verdict and would not result in a new trial. ( See Evans , supra , 568 U.S. at
p. ___, fn. 9 [ 133 S.Ct. at p. 1081 , fn. 9 ] .) The Court of Appeal found the evidence to be sufficient and reversed the trial court‟s ruling, thereby reinstating the jury‟s verdict of conviction; because the People‟s appeal and the appellate court‟s reversal did not require a new trial, neither implicated double jeopardy principles. The question remains whether, as the Court of Appeal concluded, double jeopardy principles would preclude a retrial if, on reman d, the trial court were to grant defendant‟s motion for a new trial or dismissal on defendant‟s remaining grounds other than insufficiency of the evidence. The double jeopardy rules are well known. The protection against d ouble jeopardy generally preclude s retrial for the sam e offense after a conviction or an acquittal . ( People v. Massie (1998) 19 Cal.4th 550, 563.) An exception to this rule applies if the judgment of conviction is reversed as a result of defendant‟s appeal, motion for new trial, or other challenge by a defendant to his or her
conviction. ( People v. Hernandez (2003) 30 Cal.4th 1, 6

- 7.) Like other constitutional guarantees, double jeopardy protections are not absolute, and may8

be waived by a defendant. A defendant who files a mo tion for a new trial, like a defendant who moves for a mistrial, waives state and federal double jeopardy protections. ( Porter v. Superior Court (2009) 47 Cal.4th 125, 136 ; see Oregon v. Kennedy ( 1982 ) 456 U.S. 667, 672

- 673 .) By seeking reversal of a jud gment of
conviction on appeal , “ „ in effect, [ a defendant] assents to all the consequences legitimately following such reversal, and consents to be tried anew. ‟ ” ( People v.
Sachau (1926) 78 Cal.App. 702, 706 ; see People v. Hernandez , supra, at p. 7 [doub le jeopardy does not bar retrial when conviction is reversed because of a trial
court‟s erroneous replacement of a juror ] ; Tibbs v. Florida (1982) 457 U.S. 31, 42 [state appellate court‟s reversal because of the weight of the evidence, rather than
the insu fficiency of the evidence, does not bar retrial] .) Additionally, two policy considerations support all owing retrial in this situation. F irst, “society would pay

too high a price „were every accused granted immunity from punishment because of any defect sufficient to constitute reversible error in the proceedings leading to
conviction

. ‟ [ C itation.] ” ( Tibbs , supra, at p. 40.) “Second, the Court has
concluded that retrial after reversal of a conviction is not the type of governmental oppression targeted by the Double Jeopardy Clause.” ( I bi d .) There is an exception to the rule permitting retrial after the defendant‟s successful challenge to his conviction: the defendant may not be retried if the judgment is reversed because, as a matter of law, the evi dence was insuf ficient to support a conviction. “[W]hen a reversal rests upon the ground that the prosecution has failed to produce sufficient evidence .

. . , the Double Jeopardy Clause bars the prosecutor from making a second attempt at conviction.” ( T ibbs v. Florida , supra , 457 U.S. at p. 42.) When the evidence is legally insufficient, it
means that “ „ the government‟s case was so lacking that it should not have even been submitted to the jury. ‟ ” ( Id. at p. 41, citing Burks v. United States (1978)
4 37 U.S. 1, 1 6 .) Furthermore, when the defendant seeks a reversal on appeal9

based on insufficient evidence, or moves for acquittal in the trial court, the defendant does not consent to a disposition that contemplates retrial and therefore
does not waive double jeopardy protections . ( Evans , supra , 568 U.S. at p.

___ [ 133 S.Ct. at p. 1079 ] .) Even if the defendant moves for a new trial, retrial will nevertheless be barred if the defendant‟s motion was granted on grounds that the
evidence was insufficient t o support the conviction. (See Burks , supra , at p. 17 [“ [i]n our view it makes no difference that a defendant has sought a new trial as
one of his remed ies, or even as the sole remedy ”].) In the present case, t he Court of Appeal contemplated that, on rema nd, the
trial court could consider the defendant‟s remaining grounds for his motion for a new trial and could consider dismissal under section 1385 on grounds other than the insufficiency of the evidence. As the above discussion makes clear, double jeopar dy principles would not preclude a retrial if defendant were successful in obtaining a new trial or a dismissal of charges, because in seeking to overturn his
conviction on grounds other than insufficiency of the evidence he would impliedly waive double je opardy protections and consent to be retried. ( See Porter v. Superior Court , supra , 47 Cal.4th at p. 136.) Although these rules seem clear and well established , the Court of Appeal‟s
conclusion that defendant cannot be retried under any circumstances was based on

an oft

- quoted passage from our decision in People v. Hatch (2000) 22 Cal.4th 260 :

“ „ I f a trial court rules the evidence is insufficient as a matter of law, then the ruling bars retrial even if it is patently erroneous or the court has no statut ory authority to make it. (See Sanabria v. United States [ , supra, ] 437 U.S. [at p.] 64 [a trial court finding of legal in sufficiency based on an erroneous foundation is still an acquittal for double jeopardy purposes]; People v. Valenti (1957) 49 Cal.2d
1 99, 203, 209 [a trial court dismissal for legal insufficiency made without statutory authorization bars retri a l under the California Constitution ] , disapproved on other10

grounds in People v. Sidener (1962) 58 Cal.2d 645, 647; see also Fong Foo v.
United Sta tes [ , supra, ] 369 U.S. [at p.] 143 [a ruling by a trial court acquitting a defendant bars retrial even if the ruling is “egregiously erroneous ” and the court lacks the power to make the ruling ]. )‟ ( People v. Hatch , supra , 22 Cal.4th at p p

. 270

- 271 ).” (Citing also Evans v. Michigan , supra , 5 68 U.S. at p.

___ [133 S.Ct. at
p. 1075 ] ; Mannes v. Gillespie (9th Cir. 1992) 967 F.2d 1310, 1313

- 1316.) This principle, although often stated unequivocally , does not apply in the context of the present case. All of the cases cited in the quotation from Hatch , upon which the Court of Appeal relied , involved rulings by the trial court before the jury re tu rned a verdict

. In such cases, the prosecution can not appeal the trial
court‟s ruling even if it is erroneous b ecause a successful appeal would re quire a retrial , which is barred by double jeopardy. (See Sanabria v. United States , supra , 437 U.S. at pp. 59

- 6 0 [ trial court granted defendant‟s motion for acquittal after presentation of the defense case but before the case went to the jury ]; People v.
Valenti , supra , 49 Cal.2d at p p

. 203, 209 [ trial court dismissed the information in
the middle of trial ]; Fong Foo v. United States , supra , 369 U.S. at p. 143 [ trial court directed jury to return verdicts of acquittal ] ; see also Evans , supra , 5 68 U.S. at p. ___ [133 S.Ct. at p. 1073 [trial court directed verdict of acquittal at close of prosecution‟s case] ; Mannes v. Gillespie , supra , 967 F.2d at pp. 1313

- 1316 [after jury was d ismissed because it deadlocked o n murder ch arge, trial court dismissed the charges on the grounds that the evidence was insufficient].) Arizona v. R u msey (1984) 467 U.S. 203, upon which defendant relies, is distinguishable for the same reason. In R u msey , the high court held that the trial
court‟ s judgment imposing a life sentence rather than the death penalty was the equivalent of an acquittal on the merits and precluded defendant from being resentenced to death after the state supreme court reversed the trial court‟s decision for legal error. I n R u msey , t here was no jury; the trial court in that case11

was the “sole decisionmaker” in the proceeding. ( Id. at p. 211.) Thus, “there was no verdict of „guilty‟ for the appellate court to reinstate.” ( Id. at p. 212.) Consequently, the appellate reversal in R u msey would have subjected the defendant to a second sentencing trial, in violation of double jeopardy principles. In contrast, in the present case reversal of the trial court‟s judgment of “acquittal”
will allow reinstatement of the jury‟s guilty verdict. The Court of Appeal relied on two additional cases for the proposition that an order granting a new trial motion on the ground of insufficient evidence bars
retrial even if the trial court erred : Hudson v. Louisiana , supra, 450 U.S. 40 , and Freer v. Dugger (11th Cir. 1991) 935 F.2d 213. 5 These cases are similarly inapposite because, in each, the trial court‟s ruling regarding the insufficiency of
the evidence was never reversed and stood as a final judgm ent. In Hudson , the trial court granted the defendant‟s motion for retrial on grounds that the evidence was legally insufficient to support the verdict. The state did not appeal that ruling, but simply retried the defendant, presented evidence that had n ot been presented in the first trial, and obtained a conviction. The high court held that the double jeopardy clause barred the retrial, just as it would if an appellate court had
reversed the defendant‟s conviction because of insufficient evidence. ( Hud son,
supra , at p. 43; s ee Burks v. United States , supra, 437 U.S. 1 [double jeopardy precluded retrial after the reviewing court held the evidence insufficient to sustain the jury‟s verdict of guilty]. ) In Freer , a state trial court granted the defendant‟s

5 The Court of Appeal also cited People v. Lagunas , supra, 8 Cal.4th at page 1038, footnote 6, but that case is not on point. In Lagunas we cited Hudson v. Lou isiana, supra, 450 U.S. 40, for the rule that double jeopardy bars retrial if the trial court determines that the prosecution‟s evidence was legally insufficient, but we concluded that the trial court had not determined the evidence to be insufficient in t hat case.12

motion for a new trial on grounds that the evidence was insufficient, the prosecution appealed that ruling, and the state appellate court affirmed. Subsequently, the defendant was retried and again convicted

. ( Freer , supra , at
p. 215.) On ha beas corpus, t he federal appellate court held that the retrial violated
the defendant‟s double jeopardy rights. ( Id. at p. 222.) Under these authorities, the trial court‟s order in the present case would have precluded a retrial had the People chosen not to appeal it or had it been affirmed on appeal . But the People did appeal and t he Court of Appeal reversed
the trial court ‟s ruling and reinstated the jury verdict. “It is well settled that the reversal of a judgment or order ordinarily leaves the procee ding in the same situation in which it stood before the judgment or order was made.” ( Odlum v. Duffy (1950) 35 Cal.2d 562, 564; see 9 Witkin, Cal

. Procedure (5th ed. 2008) § 869, p. 928 [ reversal of an order granting a new trial “ leaves the judgment as if no such order had been made, i.e., a s if the motion had been denied” ].) “When an order has been reversed the effect is that „it no longer ha[s] any vitality or
force

. . . . ‟ ” ( Estate of Pusey (1918) 177 Cal. 367, 371, quoting Estate of
Mitchell (1899) 126 Cal. 250 .) The effect of the Court of Appeal ‟s order barring a retrial upon remand was to improperly give legal force and effect to a ruling of the
trial court that it had reversed.13 I II

. T he judgment of the Court of Appeal is reversed to t he extent that it bars defendant from being retried should the tr ial court grant his motion for a new trial

or dismissal on grounds other than the insufficiency of the evidence.
CANTIL

- SAKAUYE, C. J.
WE CONCUR:
BAXTER, J. WERDEGAR, J. CHIN, J. CORRIGAN, J. LIU, J. CORNELL, J. *

* Associate Justice of the Court of Appeal, Fifth Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.1

See next page for addresses and telephone numbers for counsel who argued in Supreme Court. Name of Opinion People v. Eroshevich

__________________________________________________________________________________ Unpublished Opinion Original Appeal Origina l Proceeding Review Granted XXX 214 Cal.App.4th 1335 Rehearing Granted

__________________________________________________________________________________ Opinion No. S210545 Date Filed: Novem

ber 3 , 2014

___________________________________________________ _______________________________ Court: Superior County: Los Angeles Judge: Robert J. Perry

__________________________________________________________________________________ Counsel: Steve Cooley and Jackie Lacey, District Attorneys, Irene T. Wakabayas hi, Head Deputy District Attorney, Brentford J. Ferreira, Shirley Sui

- Nin Sun , Natasha Cooper, Gilbert Wright, Phyllis C. Asayama and Serena R. Murillo, Deputy District Attorneys, for Plaintiff and Appellant. Janyce Keiko Imata Blair, under appointment by the Supreme Court, for Defendant and Respondent Khristine Elaine Eroshevich. Peter Gold, under appointment by the Supreme Court, for Defendant and Respondent Howard Kevin Stern.2

Counsel who argued in Supreme Court (not intended for publication wi th opinion):

Serena R. Murillo Deputy District Attorney 320 West Temple Street, Suite 540 Los Angeles, CA 90012 (213) 893

- 0632 Janyce Keiko Imata Blair 321 Richmond Street, Suite A El Segundo, CA 90245 (310) 606

- 9262

Peter Gold 5758 Geary Boulevard, # 160 San Francisco, CA 94121 (510) 872

- 6305