Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Kern County. Clarence Westra, Jr., Judge, No. MF007074A
Richard Power, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Lloyd G. Carter and Louis M. Vasquez, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
HILL, J.
Defendant appeals from the judgment entered against him after denial of his motion to dismiss on double jeopardy grounds and his subsequent entry of a no contest plea to count 1 of the information, which alleged a failure to register as a sex offender in violation of former Penal Code section 290, subdivision (a)(1)(D). Defendant contends the judgment should be reversed and the no contest plea should be nullified on the ground his further prosecution after a mistrial was granted was barred by the double jeopardy clauses of the Fifth Amendment to the United States Constitution and article I, section 15 of the California Constitution. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant was charged by information with (1) failure to register as a sex offender (former Pen. Code § 290, subd. (a)(1)(D)) and (2) annoying or molesting a child under age 18, after having been convicted of violation of Penal Code section 288, subdivision (a) (Pen. Code, § 647.6, subd. (c)(2)). The information alleged defendant had two prior felony convictions, both on July 2, 1990, of violation of section 288, subdivision (a), and violation of section 288a.
Former Penal Code section 290 was repealed and new sections 290 through 290.023 were enacted, effective October 13, 2007. (Stats. 2007, ch. 579, § 8.) The new sections include provisions similar to the provisions of section 290 that were in effect at the time of defendant’s offense. The registration requirements in issue are now found in section 290.012 and the penalties for violation are set out in section 290.018. Further references to section 290 in this opinion refer generally to the registration requirement and the elements of the offense of failing to register as they were contained in section 290 prior to its repeal and reenactment.
All further statutory references are to the Penal Code, unless otherwise indicated.
Prior to trial, the court granted a prosecution motion to be permitted to introduce evidence of the existence of defendant’s prior convictions, in order to prove an element of each count. The court also concluded that, if defendant testified and if the fact of the prior convictions was admitted to prove elements of the counts, the fact of the convictions could also be used to impeach defendant. In response to defendant’s motion to exclude evidence of the facts underlying the prior convictions, the prosecutor represented that she did not intend to introduce any of those facts, unless the defense made an issue of them by bringing in evidence of defendant’s good character; she stated her belief that the facts of the prior convictions showing bad character would then be relevant. The court recognized a potential that witnesses might have to be questioned about the facts underlying the convictions, through appropriate questions, but granted defendant’s motion to prevent such questioning during the prosecution’s case-in-chief. The court deferred ruling on whether potential character witnesses could be cross-examined about the facts underlying the prior convictions.
At trial, S., who was 11 at the time of the alleged events, testified that she was a friend of defendant’s daughter, J. S. and four other girls went to J.’s for a birthday slumber party in September 2004. At midnight, defendant took the girls, who were in their pajamas, to Jack in the Box. While they were in the garage, before they got in the truck to go, defendant “pantsed” S.; he pulled her pants down, and her underwear went down too, exposing her buttocks. Everyone, including defendant and S., laughed; S. testified it made her “feel kind of weird.”
On a prior occasion, when S. spent the night at J.’s, defendant took her and J. to Denny’s around 11:00 to get a newspaper or travel guide. J. got out and went to get the newspaper or travel guide. Defendant put his arm around S., pulled her over toward him, and started tickling her. He tickled her neck, then down her side to her ribs, then down a little below her hip, then back up. He hugged her, then J. came back.
On another occasion when S. slept over at J.’s, S. was lying on the fold-out couch in the living room with J. when defendant came and lay down behind her, with his front to her back; he rubbed his finger on the back of her neck. She felt something hard against her tailbone, like the waistband of his pants.
S.’s father, Charles, testified he had a phone conversation with defendant in which defendant admitted he had been convicted of a section 288 violation. Deputy Sheriff Steven Williams testified he investigated defendant for compliance with the registration requirements of section 290. He went to the last address at which defendant had registered, in Rosamond, and determined that defendant no longer lived there. He ran a computer check of the Department of Motor Vehicles (DMV) driver’s license records and found the Rosamond address for defendant; he then ran a vehicle registration check and found defendant had a vehicle registered at an address in Mojave. An employee of the Kern County Sheriff’s Department testified there was no record defendant registered as a sex offender in 1999, 2000, 2001, 2002, or 2003.
Defendant presented testimony of others who were present at J.’s birthday party; some testified that S. was wearing very large pajama pants that night One testified S.’s waistband was tied in a knot because the pants were so big, and defendant walked past and jiggled the knot and teased S. about it, but her pants did not fall down. Some testified nothing unusual happened that night.
When asked whether anyone at a sleep over had ever come to her and claimed defendant had done something improper, defendant’s wife answered “not at all,” then testified that kids liked to come to their house, had a good time, and asked to come back. She also stated defendant participated in pillow fights and other games the kids played. On cross-examination, the following occurred.
“BY MRS. ROGERS [the prosecutor]:
“Q. Okay. Ms. Emrick, are you aware of your husband’s past?
“A. Yes, I am.
“Q. And do you believe the conduct that he engaged in with his nieces is something that is good for children?
“MR. BOYLE [defense counsel]: Objection, Your Honor. Calls for speculation and calls for opinion.
“THE COURT: Sustained. [¶] … [¶]
“BY MRS. ROGERS:
“Q. Ms. Emrick, knowing about your husband’s past conduct with his nieces, do you feel comfortable having other children under the age of 18 in your home around your husband?
“MR. BOYLE: Objection, Your Honor. Assumes facts not in evidence.
“THE COURT: On that basis of that objection, overruled.
“MR. BOYLE: Hearsay.
“THE COURT: Overruled.
“THE WITNESS: My husband does not have any nieces.
“BY MRS. ROGERS:
“Q. Cousins? Eight and ten-year old cousins from 1989?
“A. Could you repeat the question?
“Q. Knowing about his conduct with his eight and ten-year old cousins from 1989, do you feel comfortable having other children of that age in your house?
“A. Yes, definitely.
“MR. BOYLE: If the Court please, I’d like to make argument outside the presence of the jury.
“THE COURT: Is there an objection to that question? Sustained. Disregard that answer, ladies and gentlemen, it is not evidence in this case.”
A short time later, out of the presence of the jury, defense counsel (Boyle) moved for a mistrial, on the ground the prosecutor (Rogers) had brought out facts underlying defendant’s prior convictions. Rogers asserted the defense had elicited testimony from defendant’s wife about his good character and opened the door to evidence of his bad character. After some discussion, the court granted defendant’s motion and ordered a mistrial. Defendant subsequently moved to dismiss the information on double jeopardy grounds. The court denied the motion. Defendant later withdrew his not guilty plea, pled no contest to count 1, and admitted the prior convictions. Count 2 was dismissed. On appeal, he contends further prosecution of the charges against him after the mistrial was a violation of the constitutional guarantees against double jeopardy, and the judgment against him is therefore void.
DISCUSSION
The double jeopardy clause of the Fifth Amendment of the United States Constitution, which is applicable to the states through the Fourteenth Amendment, “protects a criminal defendant from repeated prosecutions for the same offense. [Citation.] As a part of this protection against multiple prosecutions, the Double Jeopardy Clause affords a criminal defendant a ‘valued right to have his trial completed by a particular tribunal.’” (Oregon v. Kennedy (1982) 456 U.S. 667, 671-672 (Kennedy).) “In the event of a mistrial declared over the objection of the defendant, double jeopardy principles bar retrial unless the mistrial was justified by ‘manifest necessity’ – for example, a hung jury.” (People v. Batts (2003) 30 Cal.4th 660, 679 (Batts).) But when a mistrial is declared at the behest of the defendant, “the general rule is that the defendant's request for a mistrial constitutes consent that waives any double jeopardy claim, and hence there is no bar to retrial.” (Id. at pp. 679-680.) There is a narrow exception to this rule: retrial is barred when the conduct of the prosecutor “giving rise to the successful motion for a mistrial was intended to provoke the defendant into moving for a mistrial.” (Kennedy, supra, at pp. 673, 679.)
The double jeopardy clause of the California Constitution (article I, section 15) affords broader protection than that of the Fifth Amendment. “[W]hen prosecutorial misconduct results in a defendant’s successful motion for mistrial, the double jeopardy clause of the California Constitution bars retrial in two circumstances. 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.” (People v. Batts, supra, 30 Cal.4th at pp. 665-666.) “The state double jeopardy standard is appropriately stringent, because the normal and usually sufficient remedy for the vast majority of instances of prejudicial prosecutorial misconduct that occur at trial is provided under the federal and state due process clause, and calls for either a declaration of mistrial followed by retrial, or a reversal of a defendant's conviction on appeal followed by retrial. The remedy mandated by the double jeopardy clause – an order barring retrial and leading to the dismissal of the criminal charges against the defendant without trial – is an unusual and extraordinary measure that properly should be invoked only with great caution.” (Id. at p. 666.)
In reviewing a trial court’s ruling on a double jeopardy issue, the appellate court must give deference to the trial court’s factual determinations, and accept them if they are supported by substantial evidence. (People v. Batts, supra, 30 Cal.4th at pp. 682-683; Barajas v. Superior Court (1983) 149 Cal.App.3d 30, 32.) “Because ‘subjective’ intent often may be unknowable, [the trial court] should rely primarily upon the objective facts and circumstances of the particular case.” (Oregon v. Kennedy, supra, 456 U.S. at p. 679-680 (conc. opn. of Powell, J.).)
I. Intention to Provoke Defendant to Move for a Mistrial
Under both the Fifth Amendment and the California Constitution, retrial is barred when the mistrial was the result of prosecutorial misconduct that was intended to goad the defendant into moving for a mistrial.
During trial, in the discussion of defendant’s motion for a mistrial, the court questioned the prosecutor about her reasons for asking defendant’s wife, Cindy, about defendant’s cousins. Rogers expressed her understanding, based on discussions of the motions in limine, that if the defense brought up defendant’s good character, the prosecution would be able to introduce evidence of defendant’s bad character. She indicated she interpreted Cindy’s statements about children loving to be around defendant, playing games with him, and running to him to be evidence of his good character, suggesting to the jury that children had no reason to fear him and he would not harm them. The court pointed out that, under the Evidence Code, defendant could elicit reputation or opinion evidence of defendant’s good character, but not evidence of specific instances of good conduct, so Rogers could have objected to defense counsel’s questions. The court noted that evidence of specific instances of bad conduct was also inadmissible. Rogers argued that if her questioning was improper, the error did not rise to a level requiring a mistrial.
The court stated that the facts underlying defendant’s prior convictions were prejudicial and the questioning “brought to the attention of the jury … an allegation, at least, that the prior conviction was based on interaction between Mr. Emrick and children of the ages of eight and nine [sic] and children who were his cousins.” The court concluded the questions were “highly prejudicial” on count 2, and it would be impossible for the jurors to disregard the suggestion that children, as to whom defendant held a position of trust, were involved in the offenses underlying the prior convictions. On that basis, the court granted a mistrial.
A. Violation of in limine orders
In his motion to dismiss on double jeopardy grounds, defendant argued that the prosecutor intentionally committed misconduct in order to cause a mistrial. He asserted the court’s in limine order unambiguously precluded questioning about the facts underlying his prior convictions, and the prosecutor continued to question defendant’s wife improperly, despite defense counsel’s objections.
While defendant objected to some of the prosecutor’s questions, the bases of those objections were unrelated to the in limine orders. The objections did not alert the prosecutor that the defense perceived her questions to be a violation of the in limine orders.
The trial court’s in limine order precluded any mention, in the prosecution’s case-in-chief or in its impeachment of defendant, of the facts underlying the prior convictions. The court expressly deferred ruling on whether potential character witnesses could be cross-examined about those facts. Throughout the trial, Rogers consistently represented that she did not intend to introduce evidence of the facts underlying the prior convictions unless the defense made them an issue by bringing in evidence of defendant’s good character. The court did not assert that the facts underlying his convictions would be inadmissible for that purpose; it did indicate it would have to determine prior to cross-examination whether a particular witness had expressed an opinion about defendant’s character and whether “that type of impeaching question [could] be asked.”
The prosecutor explained during the hearing of defendant’s motion for mistrial that she believed defendant’s wife was testifying to his good character, and she asked the witness questions which included general facts from defendant’s prior offenses in order to counter that character evidence. The prosecutor should not have proceeded to question the witness in a way that disclosed some of the underlying facts of defendant’s prior convictions without obtaining a ruling on the unresolved issues: whether the prosecutor could use those facts in cross-examination of defense character witnesses and whether defendant’s wife had become a character witness. However, substantial evidence supports the trial court’s conclusion that “the evidence of the circumstances at trial, and the weight of the evidence during the hearing on motion only establish that Ms. Rogers circumvented the court’s in limine ruling after she incorrectly concluded that Mr. Boyle was circumventing that ruling or the evidence code.” It also supports the court’s conclusion the prosecutor did not ask the questions with the intention of causing a mistrial.
B. Witness perjury
Defendant also contended the prosecutor’s intention to cause a mistrial was demonstrated by her reaction to defendant’s suggestion that two of the prosecution’s witnesses had committed perjury.
1. Deputy Williams
On Friday, September 22, 2006, Deputy Williams testified to his efforts to locate defendant, who was not at the address at which he had previously registered. Williams stated he checked the DMV driver’s license records, which reflected defendant’s old address in Rosamond; Williams then checked the DMV’s vehicle registration records and found defendant’s current Mojave address.
Defendant contends that Williams’ testimony was false, and when Rogers was advised of this, she threatened to reveal to the jury what defendant had done to “those little girls.” In support of the motion to dismiss, defendant presented the declaration and the testimony of Paul Tremaine, a private investigator working for defendant. Tremaine stated that, on Monday, September 25, 2006, the last day of trial, prior to commencement of trial proceedings; Tremaine approached Rogers as she was arriving at the courthouse. As they walked together, and in the courtroom prior to commencement of the day’s proceedings, Tremaine advised Rogers that Williams had given false testimony. He told her that Williams could not have run the driver’s license check as he had testified, because defendant’s driver’s license showed his Mojave address. Tremaine testified that he had obtained defendant’s current and expired driver’s licenses from defendant’s wife, and both contained the Mojave address; the older license showed it had been renewed in 1999. Tremaine conceded he had not checked the same database Williams had checked, because he did not have the ability to do so. Tremaine testified he showed Rogers the driver’s licenses before trial commenced that morning, and she became agitated and hostile; she said if he was going to say the deputy lied, she would tell the jury what his client did to those little girls. Tremaine’s declaration in support of defendant’s motion to dismiss concludes: “Shortly thereafter, Ms. Rogers made good on her threat and a mistrial was declared.”
At the hearing of defendant’s dismissal motion, Rogers testified Tremaine first approached her as she was hurrying to get to an 8:30 court appearance. After her court appearance and in the brief time before the proceedings in this case began, Tremaine told her he had documentation he believed proved Williams had perjured himself. Rogers responded that she did not think Williams lied and she did not think the documents showed that, but the defense could put on whatever evidence it wanted. She testified Williams’ investigation took place a year and a half before her conversation with Tremaine, and Tremaine’s recent discovery would not indicate what was present when Williams conducted his investigation. She denied making any statement that, if the defense was going to say Williams lied, she would let the jury know what defendant did to those little girls.
The evidence was conflicting regarding whether Rogers threatened, on the morning of the last day of trial, to reveal to the jury what defendant had done “to those little girls” if the defense introduced evidence that Williams had given false testimony. The trial court is in the best position to resolve such conflicts and we will defer to its determination. The trial court implicitly rejected the evidence as demonstrating that Rogers intentionally caused a mistrial.
Rogers denied making the threat. The testimony defendant was attempting to prove false was so peripheral to the issues in the case that there would have been no reason for Rogers to be upset by the prospect of impeachment. Williams testified that he could not obtain defendant’s current address through driver’s license records, but was able to do so through vehicle registration records. The issue in count 1 was not whether defendant could be located by law enforcement, or whether he was hiding, as defendant seemed to suggest. The issue was whether defendant had registered as a sex offender as required by section 290. Violation of section 290 requires a willful failure to register within the required time period. It is a general intent offense (People v. Johnson (1998) 67 Cal.App.4th 67, 72), which requires actual knowledge of the duty to register and a purpose or willingness to make the omission (People v. Cox (2002) 94 Cal.App.4th 1371, 1375). Concealment or an intent to avoid law enforcement is not an element of the offense. Another law enforcement employee, Stephanie Kennedy, testified that defendant registered in 1995, 1997, 1998, and 2004, but did not register from 1999 through 2003. Thus, impeachment of Williams would not have affected the evidence showing that defendant failed to register annually under section 290. There was substantial evidence to support the trial court’s finding that Rogers did not intend to cause a mistrial.
2. Charles B.
S.’s father, Charles, testified at trial that, in a telephone conversation with defendant, defendant admitted he had a prior conviction of “Penal Code Section 288.” According to the declaration and testimony of Victor Vevea, a legal assistant and investigator for defense counsel, on Monday, September 25, 2006, he also approached Rogers before trial commenced. He discussed with her his belief Charles may have perjured himself, because in the transcript of the recording of the phone conversation between Charles and defendant, defendant did not admit to his conviction. Vevea testified Rogers became upset, and said she realized that, but had to sculpt his testimony to stay within the in limine orders; she said if the defense tried to impeach Charles, she would bring in the entire recording to show his past convictions.
Rogers testified Vevea said something about Charles perjuring himself. Vevea discussed attempting to introduce the transcript of the phone conversation, and she stated that the transcript mentioned defendant’s prior bad acts with children; she said if the defense brought in part of the transcript, the whole transcript would come in, based on her understanding of the Evidence Code. She testified she did not indicate to Vevea that she believed Charles had committed perjury.
At trial, Charles testified as follows:
“Q. And during the course of that phone call, … did you ask Mr. Emrick if he had been convicted of – let me strike that. Did you ask him if he had been convicted of a Penal Code Section 288 in the past?
“A. Yes.
“Q. And what did – did he admit that to you?
“A. Yes.”
At the hearing of the motion to dismiss, defense counsel read from the transcript of the phone call, as follows:
“[Charles] is apparently speaking. I don’t know. I’m still wondering what happened. There’s different sections of the Penal Code for lighter charges and big time charges. 288 is what it says on the website and that’s pretty heavy duty charge, man. That tells me something happened.
“Mr. Emrick, let me tell you this, okay. There was no penetration, no sodomy, no bondage. More or less something stupid I did. I can’t, I can’t go into it, I’m sorry. You have a right to know, but I can’t go into it.”
Defense counsel then questioned Rogers:
“Q. Now having read the transcript of the trial and the knowledge of the pretext phone call, Mr. Emrick did not admit to having the 288; did he?
“A. Yes, he did.
“Q. And that’s your opinion?
“A. Yes, it is.”
Defendant testified at the hearing of the motion to dismiss. He was asked by defense counsel:
“Q. At any time during the pretext phone call with [Charles], did you admit that you had committed a 288 when he asked you that question?
“A. I did not admit – I did not admit a 288 as in saying 288, no.”
Deputy District Attorney Murray followed up that testimony:
“Q. What is it that you did admit, if you didn’t admit 288?
“A. I admitted that there was an act that I did.”
There was substantial evidence to support the trial court’s rejection of this evidence as demonstrating Rogers intentionally caused a mistrial. The trial court had before it both the relevant statements from the transcript of the telephone call and Charles’ trial testimony. It could review for itself defendant’s statements and determine whether they amounted to an implied admission of the section 288 conviction. We believe a reasonable person could conclude, from the words spoken by defendant in the phone conversation, as quoted above, that defendant admitted the conviction, but declined to provide details of the offense. The trial court also had before it Rogers’ testimony that she interpreted defendant’s statements in the phone conversation as an admission of the section 288 conviction. There was substantial evidence, both subjective and objective, supporting a conclusion that Rogers did not believe Charles misrepresented the content of the telephone conversation and that she did not intentionally cause a mistrial in order to avoid having his testimony discredited.
Accepting the trial court’s factual findings, which are supported by substantial evidence, we find no error in the denial of the motion to dismiss.
II. Misconduct for the Purpose of Thwarting an Acquittal
The double jeopardy clause of the California Constitution bars retrial after a mistrial not only when the prosecutor intentionally provokes defendant to request a mistrial, but also when the prosecutor knowingly and intentionally commits misconduct in order to thwart an anticipated acquittal. In the latter situation, retrial is barred only if the court finds the prosecution subjectively believed an acquittal was likely, and an objective review of the circumstances at the time of the misconduct indicates defendant was deprived of a reasonable prospect of an acquittal.
The trial court ruled that, from an objective perspective, there was no reasonable prospect of an acquittal at the time of the misconduct. It concluded the prosecution had presented “a strong and convincing case as to Count 1,” because the evidence established defendant had registered for three years, then failed to register for five years, then re-registered just before his arrest. The court concluded the prospect of acquittal on count 1 was “virtually non-existent.” The court stated that the evidence on count 2 was believable and, at the time of the misconduct, defendant’s presentation had not addressed the most serious testimony against him: that when he lay behind S. on the fold-out couch, she felt something hard against her back. The court concluded there was “a reasonable prospect for conviction or a possible hung jury on Count 2, but only a remote prospect of acquittal.” The court also found that the evidence did not show Rogers “personally believed that ongoing events during the trial created the likelihood of acquittal.”
A violation of section 647.6, annoying or molesting a child under age 18, “does not require a touching [citation] but does require (1) conduct a ‘“normal person would unhesitatingly be irritated by”’ [citations], and (2) conduct ‘“motivated by an unnatural or abnormal sexual interest”’ in the victim [citations].” (People v. Lopez (1998) 19 Cal.4th 282, 289.) “[T]he words ‘annoy’ and ‘molest’ … are synonymous and generally refer to conduct designed to disturb, irritate, offend, injure, or at least tend to injure, another person.” (Ibid.) “[T]o determine whether the defendant’s conduct would unhesitatingly irritate or disturb a normal person, we employ an objective test not dependent on whether the child was in fact irritated or disturbed.” (Id. at p. 290.)
The prosecution presented evidence defendant “pantsed” S. during J.’s slumber party, exposing her buttocks, hugged and tickled her while they were alone in the pickup, and lay down behind her on the fold-out couch in such a way she felt something hard against her tailbone. Adult witnesses testified they did not see defendant pull S.’s pants down, but S. testified this occurred when only defendant and the girls were present; the adults who testified were not present when S. said this occurred. The other girls at the party were not asked whether they saw defendant pull S.’s pants down, although two of them testified nothing unusual or upsetting happened during the party.
As to the tickling in the pickup, J. testified she was gone for less than a minute getting the travel guide at Denny’s and, when she returned, defendant and S. were just sitting in the pickup. The defense also offered evidence of the size of the fold-out couch or futon, attempting to show it was too small for S., J., and defendant to lie on together.
Substantial evidence supports the trial court’s factual findings. As the trial court found, at the time of the misconduct, there was strong and uncontradicted evidence supporting count 1. Although the evidence on count 2 was less strong, S.’s testimony was not directly contradicted or impeached. Defendant argues strenuously that the elements of annoying or molesting a minor were not proven because S. herself was not bothered by defendant’s conduct until her father questioned her about it. An objective test is used to determine annoyance or molestation; the child’s individual reaction is not dispositive. Additionally, as discussed in part I.B above, defendant’s accusations of perjury against prosecution witnesses did not seriously undermine the prosecution’s case.
The trial court’s findings that, from an objective perspective, defendant did not have a reasonable prospect of an acquittal at the time of the prosecutorial misconduct, and that Rogers did not subjectively believe, based on occurrences during trial, that defendant was likely to be acquitted, justify the denial of defendant’s motion to dismiss. Under Batts, both a subjective belief by the prosecutor and an objective determination by the trial court that an acquittal was likely are necessary in order to bar retrial on the ground the prosecution intentionally engaged in misconduct to thwart an acquittal. In light of the trial court’s factual findings that neither existed, defendant’s motion to dismiss on that ground was properly denied.
DISPOSITION
The judgment is affirmed.
WE CONCUR: WISEMAN, Acting P.J., LEVY, J.