Opinion
F075009
11-07-2018
THE PEOPLE, Plaintiff and Appellant, v. TODD CHRISTOPHER HUNTER, Defendant and Respondent.
Laura L. Krieg, District Attorney, and Sarah A. Brooks, Deputy District Attorney, for Plaintiff and Appellant. Sandra Gillies, under appointment by the Court of Appeal, for Defendant and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. CRF47552)
OPINION
APPEAL from a judgment of the Superior Court of Tuolumne County. Douglas C. Boyack, Judge. Laura L. Krieg, District Attorney, and Sarah A. Brooks, Deputy District Attorney, for Plaintiff and Appellant. Sandra Gillies, under appointment by the Court of Appeal, for Defendant and Respondent.
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INTRODUCTION
In 2016, a jury trial commenced regarding two charges filed against respondent Todd Christopher Hunter: (1) recklessly causing a fire of forest land, a felony (Pen. Code, § 452, subd. (c); count I) and (2) unlawfully removing a shopping cart from a retail establishment, a misdemeanor (Bus. & Prof. Code, § 22435.2, subd. (a); count II). At the end of the prosecution's case, respondent's counsel moved for a judgment of acquittal pursuant to section 1118.1 (the motion) regarding the arson charged in count I. The trial court did not rule on the motion until after the case was submitted to the jury, which began deliberations. The court then denied the motion. Later that same day, however, the court revisited the issue, changed its mind, and granted the motion. The jurors were discharged. Respondent entered a guilty plea for the misdemeanor shopping cart theft (count II), and he was sentenced to credit for time served.
All future statutory references are to the Penal Code unless otherwise noted.
As to count I, the prosecution also alleged that respondent had prior convictions and he did not remain free of prison custody for a period of five years (§ 667.5, subd. (b)).
Appellant, the District Attorney for Tuolumne County, argues that the trial court's ruling was an abuse of discretion. Appellant contends this was a dismissal and not an acquittal so that retrial is not barred. We disagree. Based on the totality of the record, the trial court's ruling was an acquittal, prohibiting further prosecution. As such, we will dismiss this appeal.
BACKGROUND
I. The Relevant Trial Evidence.
The short trial involved two witnesses, the arresting Sonora police department officer and a CAL FIRE captain who responded. We provide a relevant summary of their collective testimony.
On June 24, 2015, at about 1:13 a.m., the police officer saw smoke while he was on patrol. He stopped about 30 yards away and saw flames. The officer alerted his dispatch to contact fire services because he thought this was a vegetation fire. The officer approached the flames and saw respondent lying on the ground with his feet up on a shopping cart. The officer was familiar with respondent from prior contacts, and he believed that respondent was homeless. Respondent put a shirt on the fire and laid back down. The flames stopped. The officer took respondent into custody and walked him back to the patrol vehicle.
Around that time, at about 1:15 a.m., a CAL FIRE captain responded to this fire, which was across the street from a tire store. The captain had been driving to another incident when he overheard the officer's broadcast. When the captain arrived at the scene, respondent was already in custody and in the back of the officer's patrol vehicle. Using a tool, the captain did a "scratch line around the fire." This prevented its further spread by scraping away flammable vegetation. At trial, however, the captain could not recall if there were any "actual flames" when he arrived on scene. He left the scene when no smoke was showing. He knew an engine from the local city's fire department was responding.
At trial, the officer agreed that he told dispatch to cancel calling the fire department.
Respondent admitted to the officer that he had stolen the shopping cart. When told about the danger of his fire, respondent said, "yeah" and something unintelligible. He said something like, "It wouldn't hurt if I just burned some of that shit," which the officer believed referred to vegetation. Respondent said he started the fire to warm some chicken.
The shopping cart contained miscellaneous debris, including cardboard, papers and empty bottles of alcohol. The officer did not see anything, such as lighter fluid, indicating how this fire was ignited.
At trial, the jury saw photographs of the fire after it had been extinguished. This fire occurred on a flat area alongside a river bottom or creek. The fire was underneath a tree and about two feet from a paved trail that leads down to the fairgrounds. Other trees were in the area. There were dry and dead leaves, along with "other debris." The paved trail was between the fire and a hillside that had vegetation. The hillside was about seven to eight feet away. Several homes were located above that hillside. In addition, a tire store was located nearby, and a park was near that store. The park had several barbeque pits, which the officer knew respondent had used before.
At trial, the captain expressed concern that this fire could have spread and destroyed structures. Like any fire that is unchecked or without proper precautions, this fire had the potential to increase in size. While reviewing a photo of this incident, the captain said there was a transition from "oak litter" to grass, which had a slope. The fire could change depending on the change in slope and fuel types. While reviewing a photo, the captain saw what appeared to be respondent's "attempt to try and clear" around the fire, but it was "not a good attempt." Burnable fuels had been in the immediate vicinity of this fire.
The captain informed the jury that this fire occurred in the Mother Lode region, which is typically fire prone. Any ignition "within the wildland could potentially be problematic." However, the captain also explained that this fire occurred in the City of Sonora, which was not his designated area of responsibility. The local police and fire protection respond within the city. CAL FIRE has a "state responsibility area," which is the primary fire protection provided for the wildland.
The officer told the jury that he never saw respondent cooking chicken on the fire. According to the officer, this incident occurred on a day that was "quite dry" and the preceding days had been "quite hot." The officer agreed that this was not a vegetation fire.
The prosecutor asked the court to take judicial notice of the state of emergency that existed when this fire took place. The court took judicial notice of that fact. The court informed the jury that on January 17, 2014, and renewed on April 25, 2014, the Governor declared a state of emergency because of "extreme drought conditions" in the state.
II. The Procedural History Following Presentation Of The Trial Evidence.
After the prosecution rested, the defense moved for an acquittal regarding the arson charged in count I. Defense counsel argued that forest land had not been burned. This incident occurred within city limits near a creek and pavement. Further, no evidence established that respondent was aware that his actions presented a substantial and unjustifiable risk. The evidence showed "an attempt to clear some of the area around that fire. That wasn't a good attempt, but it was near the path that people walk on." Defense counsel asserted that respondent may have been negligent, but he was not reckless, and no grass was burned. Counsel asked the court to "grant my motion for judgment of acquittal. There's not substantial evidence received to bring this to the jury."
The defense presented no evidence at trial.
The prosecutor asserted that forest land "includes brush covered land, grasslands or woods." The prosecutor believed the photographs depicted the required conditions and even a small fire was enough for criminal liability. According to the prosecutor, even if respondent did not burn forest land, he still burned property, which would qualify under section 452. Drought conditions had been in effect since 2012 and this fire occurred in June 2015. This fire was not started in a fire ring or barbeque. According to the prosecutor, a reasonable person would know this posed a substantial and unjustifiable risk.
Under section 452, "[a] person is guilty of unlawfully causing a fire when he recklessly sets fire to or burns or causes to be burned, any structure, forest land or property." It is a misdemeanor to unlawfully cause a fire of property. (§ 452, subd. (d).) "Property" is defined as "real property or personal property, other than a structure or forest land." (§ 450, subd. (c).) Appellant, however, was charged with violation of section 452, subdivision (c), which imposes a felony for burning a structure or forest land. (§ 452, subd. (c).)
After hearing arguments from the prosecutor, the court took the matter under submission. The following morning, defense counsel asked the court to address the motion. The court said it would first instruct the jurors, who had been waiting for almost two hours, "and you already know what my ruling will be."
The trial court instructed the jury, and counsel gave closing arguments. The jury retired at about 11:24 a.m. to begin deliberations. The court then ruled on the motion, stating it was satisfied there was "substantial evidence" from which the jurors could conclude arson occurred. The court denied the motion.
Later that same day, however, the trial court had "second thoughts" and revisited its ruling while the jury continued to deliberate. The court agreed that the fire had posed some risk of escalation. However, according to the court, appellant "had a campfire" that did not get out of control and he did not burn forest land.
The prosecutor objected to calling this a campfire. He argued this fire occurred in forest land under a tree, it burned leaves, and it could have done more damage.
The trial court asked if the prosecutor could appeal if it granted the motion. The prosecutor tentatively agreed an appeal was possible but expressed concern an appeal would require a lot of work. The following exchange occurred.
"THE COURT: Yeah, I know. But if I—if I make a mistake here and allow this to go to a jury, even though an appellate court would say looking at all of this there's no substantial evidence that that was on forestland. The evidence is this was by a creek. It was by a—by an asphalt walkway. There was a little bit of clearing. What was burned was leaves and twigs. It's too late by that time. Well, I suppose—
"[THE PROSECUTOR]: It could go either way.
"THE COURT: —a conviction, I guess you could appeal the lack of—appellate court would be hard pressed to find beyond a reasonable doubt, even though there was no substantial evidence of it. So anyway, it's a—it's a conundrum for me.
"Let me look at it one more time. I will grant the motion. I just don't think that what he did is what is contemplated by [section 452, subdivision (c)]....
"[¶] ... [¶]
"THE COURT: ... [Respondent] had a personal fire going for whatever reason, and that's the end of it."
The jury was brought into the courtroom and the trial court explained what had happened. The court said it had the province to review the evidence. "If the Court determines that there is not substantial evidence of one of the charges, the Court can dismiss that charge on its own. It's an appealable order, which the Court will do that as to Count One." The court stated the prosecutor could appeal its order, and if the court was incorrect, "then the matter can be brought back again another day in front of another jury." The judge acknowledged that respondent may have acted recklessly, but "I am not satisfied there's substantial evidence" that he burned, set fire to, or caused "the burning of brush covered land, cut-over land, forest, grasslands or woods."
Before excusing the jury, the trial court again stated that the arson count "is ordered dismissed. It's an appealable order the People can appeal on." The court also told the jury, "sometimes the hardest thing for a judge is having to decide a case by yourself, and I just looked at this more and more. I looked at this, and the more—I thought am I doing my job; I am not being true to myself if I think there's substantial evidence for you to consider that he did, in fact, burn the forest." The judge commented that he was not "convinced at the end there was substantial evidence" that respondent recklessly burned forestland even though respondent "did something which was risky which could have gotten away." According to the judge, the prosecution could have charged respondent with other provisions of unlawful burning.
One juror asked how the trial court reached its determination. The court said if the jury had returned a guilty verdict, "I would have felt somewhat guilty for letting it go that far. I think I could have stopped this before it went that far." In response to another juror's comment, the judge said "we don't have a burning of forestland."
After the jury left, the following exchange occurred:
"[DEFENSE COUNSEL]: Your Honor, just in case there's any problem with your 1118.1 motion, just because it was after it was submitted to the jury, there is case law that says the court can still dismiss on its own motion under [section] 1385. I am just pointing that out.
"THE COURT: I see.
"[DEFENSE COUNSEL]: After it's submitted to a jury.
"THE COURT: I think I can. I think. That's something that I could be wrong, but we need [respondent] back.
"THE BAILIFF: We have about six or seven jurors who need verification for their employer.
"THE COURT: Why don't you do that. We will get [respondent] back, and if—I don't know. I just assume it would be no problem any time before. Once the jury comes back with a verdict it's too late.
"[DEFENSE COUNSEL]: I know [section] 1385 can be done after submission to a jury so . . .[.]"
The trial court then addressed issues pertaining to jurors. Shortly thereafter, respondent changed his plea in count II to guilty, which the court accepted. Along with a fine, the court sentenced respondent on count II to six months in county jail with credit for time served. No other mention was made of section 1385 before the court proceedings concluded. Before concluding, the trial court informed respondent that he was "certainly guilty of careless and perhaps even reckless conduct, but I didn't feel there was substantial evidence that you were guilty of burning forestland, grassland, woodlands, cut-over land, et cetera. But you were certainly guilty of carelessness or recklessness with the—with the—with the setting or the starting of that fire, campfire, warming fire, whatever it was."
DISCUSSION
In count I, appellant was charged with violating section 452, subdivision (c), which makes it a felony to cause a fire of a structure or forest land. Upon conviction, a person may be imprisoned for 16 months, two or three years. (§ 452, subd. (c).) "Forest land" is defined as "any brush covered land, cut-over land, forest, grasslands, or woods." (§ 450, subd. (b).)
The parties disagree whether the trial court's ruling was an acquittal or a dismissal. They further dispute other issues, including whether the court had authority to grant the motion because the case had been submitted to the jury, and whether this appeal is barred.
The parties agree that the section 1118.1 motion was timely because it was made before the case was presented to the jury.
Appellant contends the court "misapplied the appropriate standard" and improperly dismissed the arson count. According to appellant, retrial is not barred because respondent waived jeopardy, and this court should overturn the trial court's dismissal of the arson count. In contrast, respondent contends the court could have granted an acquittal under section 1118.1 even though the case had been submitted to the jury. Respondent further asserts the court acquitted him of arson regardless how the order is characterized. He also argues he did not waive jeopardy and this appeal must be dismissed.
We need not address most of the parties' disputed issues. As we explain below, regardless of when the court made its ruling and how the ruling is characterized, the court resolved a factual element favorable to respondent. Thus, this was an acquittal. (Evans v. Michigan (2013) 568 U.S. 313, 318-319 (Evans) [an acquittal is "any ruling that the prosecution's proof is insufficient to establish criminal liability for an offense"].) Because the trial court ruled that the evidence was insufficient as a matter of law, regardless of its label, then retrial is barred even if the decision was erroneous. (People v. Hatch (2000) 22 Cal.4th 260, 270-271 (Hatch); see also Fong Foo v. United States (1962) 369 U.S. 141, 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].)
I. The Distinctions Between Section 1118.1 And Section 1385.
Sections 1118.1 and 1385 can have profound differences regarding potential retrial and double jeopardy. The granting of a motion for judgment of acquittal pursuant to section 1118.1 bars another prosecution for the same offense. (Porter v. Superior Court (2009) 47 Cal.4th 125, 132-133 ["Because the prosecution had a full opportunity to prove the facts necessary for a conviction but failed to do so, double jeopardy bars a second bite at the apple."].) In contrast, a trial court usually does not apply the substantial evidence standard when dismissing pursuant to section 1385. "Indeed, the standard for dismissal under section 1385 is quite broad and permits dismissal under a variety of circumstances." (Hatch, supra, 22 Cal.4th at p. 273.) Because section 1385 dismissals often are not based on the insufficiency of the evidence as a matter of law, these dismissals should not be construed as an acquittal "unless the record clearly indicates that the trial court applied the substantial evidence standard." (Hatch, supra, at p. 273.) II. Evans And Hatch Are Instructive.
Two opinions, Evans, supra, 568 U.S. 313, and Hatch, supra, 22 Cal.4th 260, provide guidance in this situation. Under these authorities, the trial court's ruling was an acquittal.
A. Evans , supra , 568 U.S. 313.
In Evans, supra, 568 U.S. 313, it is undisputed that the trial court erred and entered a directed verdict of acquittal after erroneously believing the state had not proven a required element. This element, however, was not actually required for conviction. (Id. at p. 315.) Even though the trial court had erred, the United States Supreme Court determined this was an acquittal for double jeopardy purposes, barring retrial. (Id. at pp. 315-316.) Even a mistaken acquittal invokes double jeopardy. (Id. at p. 318.) An acquittal is "any ruling that the prosecution's proof is insufficient to establish criminal liability for an offense." (Ibid.) The trial court's ruling was not a dismissal on procedural grounds but was a determination that the prosecution had failed to prove its case. (Id. at p. 320.) Although there was "no question" the trial court erred, that error did not affect the essential character of the determination, only its accuracy. (Ibid.) It is "the substance" of a court's decision that controls the analysis, and not its label. (Id. at p. 322.) Because the trial court resolved the question of the defendant's guilt or innocence based on the sufficiency of the evidence, further prosecution was barred, along with the state's appeal. (Id. at p. 324.)
The Evans court further determined that the defendant did not induce the trial court's error, resulting in a waiver of jeopardy. "It is true that when a defendant persuades the court to declare a mistrial, jeopardy continues and retrial is generally allowed. [Citation.]" (Evans, supra, 568 U.S. at p. 326.) However, the defendant could not be penalized for requesting a ruling on the merits of the state's case. (Id. at p. 327.) "There is no question that a jury verdict of acquittal precludes retrial, and thus bars appeal of any legal error that may have led to that acquittal. [Citation.]" (Id. at p. 328.) If a trial court makes legal error and grants a judgment of acquittal, the result is still an acquittal. (Id. at p. 329.)
B. Hatch , supra , 22 Cal.4th 260.
In Hatch, supra, 22 Cal.4th 260, the California Supreme Court considered whether double jeopardy barred retrial after a dismissal under section 1385. Under its facts, Hatch held that a retrial was not barred. (Id. at p. 263.) The defendant was charged with multiple counts of sex crimes against a teenaged girl. (Id. at pp. 263-264.) At the close of trial testimony, the defendant did not move for a judgment of acquittal pursuant to section 1118.1. (Id. at p. 266.) After several days of deliberation, the jury was deadlocked on all counts and the trial court declared a mistrial. (Ibid.) The prosecutor requested a retrial. The court, however, disagreed and " 'dismissed' the case 'in the interest of justice' because 'there is no reason to believe another jury would reach a verdict in this case one way or the other.' " (Ibid.) According to the trial court, " 'no reasonable jury would convict this defendant; that means twelve votes for guilty on any of the counts that were alleged against him in the information . . . .' " (Ibid.) The minute order stated " 'no reasonable jury would convict the defendant of the charges alleged in the information based on the evidence presented in court.' " (Ibid.)
On appeal, the Supreme Court disagreed with the People's claim that section 1118.1 is the exclusive statutory basis for court-ordered acquittals. Hatch also rejected the argument that section 1385 does not permit dismissals for legal insufficiency of the evidence. (Hatch, supra, 22 Cal.4th at p. 268.) The high court confirmed that dismissals under section 1385 may be done before, during and after trial. (Hatch, supra, 22 Cal.4th at p. 268.)
According to the Supreme Court, section 1118.1 governs a trial court's power to acquit for legal insufficiency of the evidence before the case is submitted to the jury, but nothing in that section eliminates a court's power under section 1385 to acquit for legal insufficiency after the case is submitted to the jury. (Hatch, supra, 22 Cal.4th at p. 269.) "As such, when a trial court rules that the evidence is insufficient as a matter of law should not determine whether that ruling operates as a bar to double jeopardy. [Citation.]" (Id. at p. 270.)
Hatch held that a trial court has "the power to dismiss for insufficient evidence as a matter of law after submission to the jury," but its dismissal should not be construed as an acquittal for double jeopardy purposes absent "clear evidence the court intended to exercise this power." (Hatch, supra, 22 Cal.4th at p. 271.) This standard is not met if a court merely disagrees with a jury's resolution of conflicting evidence. Retrial is not barred if a court only concludes that a guilty verdict is against the weight of the evidence. (Id. at p. 272.)
The standard of review to determine legal insufficiency is the same for both trial and appellate courts. (Hatch, supra, 22 Cal.4th at p. 272.) "Specifically, both trial and appellate courts must review 'the whole record in the light most favorable to the judgment' and decide 'whether it discloses substantial evidence ... such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.' [Citation.] Under this standard, the court does not ' "ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt." [Citation.] Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' [Citation.]" (Ibid.) "Specifically, the record must show that the court viewed the evidence in the light most favorable to the prosecution and concluded that no reasonable trier of fact could find guilt beyond a reasonable doubt. [Citation.] Absent such a showing, we will assume the court did not intend to dismiss for legal insufficiency and foreclose reprosecution." (Id. at p. 273.)
Hatch, however, did not impose "rigid limitations" on a trial court regarding the language it may use to dismiss for legal insufficiency of the evidence under section 1385. "Certainly, courts need not restate the substantial evidence standard or use certain 'magic words' whenever they determine that the evidence is insufficient as a matter of law. We merely ask trial courts to make their rulings clear enough for reviewing courts to confidently conclude they viewed the evidence in the light most favorable to the prosecution and found that no reasonable trier of fact could convict." (Hatch, supra, 22 Cal.4th at p. 273.)
III. The Trial Court's Ruling Was An Acquittal For Double Jeopardy Purposes.
It is undisputed that respondent made a timely motion pursuant to section 1118.1 before this matter was submitted to the jury, a point which appellant concedes. In making the motion, defense counsel asked for a judgment of acquittal based on insufficient evidence. Although the trial court initially denied the motion, the court reversed itself shortly thereafter and granted it.
The trial court's ruling was not a dismissal on procedural grounds. The jury was not deadlocked when the court acted. The court did not declare a mistrial. Instead, this was a determination that the prosecution had failed to prove its case. (See Evans, supra, 568 U.S. at p. 320.) The court repeatedly stated that, although respondent had acted carelessly or recklessly, forest land had not been burned. The court made clear that "substantial evidence" did not support this charge. Even if the trial court erred, as appellant contends, that alleged error did not impact the essential character of the determination, only its accuracy. (Evans, supra, at p. 320.) It is "the substance" of a court's decision that controls the analysis. (Id. at p. 322.)
It is immaterial that the trial court referred to its order as a dismissal rather than an acquittal. It is also immaterial that the court invited the prosecution to appeal. The court's ruling, regardless of its label or correctness, represented resolution of a factual element of the arson charge. (See Hatch, supra, 22 Cal.4th at p. 270; see also United States v. Martin Linen Supply Co. (1977) 430 U.S. 564, 571.) Because the court resolved the question of respondent's guilt based on the sufficiency of the evidence, this was an acquittal that bars further prosecution. (See Evans, supra, 568 U.S. at p. 324.)
We reject appellant's claim that the court's ruling merely represented a disagreement with the jury's "predicted" verdict or the "weight" of the evidence. To the contrary, the court took this issue away from the jurors' consideration and did not allow the jury to render a verdict in count I. The court also expressed concern that an appellate court would not find substantial evidence and the appellate court "would be hard pressed" to find guilt beyond a reasonable doubt. This record clearly shows an intent to dismiss for legal insufficiency of the evidence. (See Hatch, supra, 22 Cal.4th at p. 274.) As such, because the court's ruling was an acquittal, we need not address the parties' dispute whether the court acted under section 1118.1 or section 1385. The court had authority to dismiss this charge for insufficient evidence even after submission to the jury. (Hatch, supra, 22 Cal.4th at p. 271.)
Our Supreme Court has held "that the reversal of a conviction based on a reweighing of evidence does not bar retrial under the California Constitution. [Citations.]" (Hatch, supra, 22 Cal.4th at p. 272.)
We disagree with appellant's assertion that respondent waived jeopardy. Respondent may not be penalized for requesting a ruling on the merits of the People's case. (Evans, supra, 568 U.S. at p. 327.) If a trial court makes legal error and grants a judgment of acquittal, the result is still an acquittal. (Id. at p. 329.)
Finally, although the trial court never stated that it viewed the evidence in the light most favorable to the prosecution, the court was not required to use "magic words" in making its ruling. (Hatch, supra, 22 Cal.4th at p. 273.) In any event, the court's comments establish that it viewed the evidence favorably for the prosecution. The court agreed that respondent had started a fire, which burned "some leaves and twigs." The court acknowledged the risk that this fire posed because it could have spread. However, the court determined that this was "a personal fire ... and that's the end of it."
Both the United States Supreme Court and our high court have held that " 'what constitutes an "acquittal" is not to be controlled by the form of the judge's action.' " (Hatch, supra, 22 Cal.4th at p. 270, quoting United States v. Martin Linen Supply Co., supra, 430 U.S. at p. 571.) Based on this record, the trial court viewed the evidence in the light most favorable to the prosecution and found that no reasonable trier of fact could convict. The court determined that respondent had not burned forest land, preventing criminal liability under section 452, subdivision (c). The ruling was an acquittal. Because the trial court applied the substantial evidence standard, retrial is barred. (See Hatch, supra, at p. 273.)
IV. This Appeal Must Be Dismissed.
The People have no right of appeal except as provided by statute. (People v. Alice (2007) 41 Cal.4th 668, 680.) Section 1238, subdivision (a)(8), permits the People to appeal from "an order or judgment dismissing or otherwise terminating the action before the defendant has been placed in jeopardy or where the defendant has waived jeopardy." (People v. Smith (1983) 33 Cal.3d 596, 600.) This means the merits of an appeal may be reached only if jeopardy did not attach. (Id. at p. 601, fn. 3.) Jeopardy attaches when a defendant is placed on trial in a court of competent jurisdiction from a valid accusatory pleading before a duly impaneled and sworn jury. (Curry v. Superior Court of San Francisco (1970) 2 Cal.3d 707, 712.) If the jury is discharged without a verdict, that "is equivalent in law to an acquittal and bars a retrial, unless the defendant consented thereto or legal necessity required it. [Citations.]" (Ibid.)
Double jeopardy prohibits a second trial following an acquittal even if the acquittal was in error. (People v. Eroshevich (2014) 60 Cal.4th 583, 588-589.) "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. [Citation.]" (Id. at p. 589; see also Evans, supra, 568 U.S. at p. 330; Smith v. Massachusetts (2005) 543 U.S. 462, 467 [double jeopardy prohibits reexamination of acquittals by either the court or jury].)
Here, appellant has failed to establish sufficient statutory grounds authorizing appeal of the trial court's order. As such, this appeal must be dismissed for lack of jurisdiction. (In re Anthony (2015) 236 Cal.App.4th 204, 216.) In addition, double jeopardy prohibits reexamination of the trial court's acquittal. (See People v. Eroshevich, supra, 60 Cal.4th at p. 589; Evans, supra, 568 U.S. at p. 330.) Accordingly, we will dismiss this appeal.
Appellant has not requested that we treat the People's appeal as a petition for an extraordinary writ of mandate. Accordingly, we express no opinion whether the issues raised in this appeal would be reviewable in a writ proceeding. (See generally People v. Superior Court (Stanley) (1979) 24 Cal.3d 622, 625-626 ["If the prosecution has not been granted by statute a right to appeal, review of any alleged error may be sought by a petition for writ of mandate only when a trial court has acted in excess of its jurisdiction and the need for such review outweighs the risk of harassment of the accused." (Fn. & italics omitted)]; see also In re Anthony, supra, 236 Cal.App.4th at p. 216, fn. 6.) --------
DISPOSITION
The appeal is dismissed.
/s/_________
LEVY, Acting P.J. WE CONCUR: /s/_________
DETJEN, J. /s/_________
SNAUFFER, J.