Opinion
C075860
04-11-2017
THE PEOPLE, Plaintiff and Appellant, v. MICHAEL NUNALLY, Defendant and Respondent.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 12F07000)
The People appeal from the trial court's order granting defendant Michael Nunally's motion for a new trial based on juror misconduct. (Pen. Code, § 1238, subd. (a)(3).) The People concede that members of the jury engaged in misconduct by considering extraneous information--the contents of a cell phone that was mistakenly admitted into evidence--during their deliberations after being admonished not to do so, but argue that the trial court erred in concluding that defendant was prejudiced by the misconduct. We discern no abuse of discretion and shall affirm.
Further undesignated statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
An amended information charged defendant with the first degree murder of Kaster Tezino. (§ 187, subd. (a).) In addition, it was alleged that defendant personally and intentionally discharged a firearm which caused Tezino's death. (§ 12022.53, subds. (b), (c), (d).) Defendant pleaded not guilty, and the matter was tried to a jury.
A. The Prosecution
At approximately 8:37 p.m. on September 25, 2012, Tezino told a friend that he was on his way to Motel 6 to meet a woman for a date. Tezino's friend suspected the woman was a prostitute because she and Tezino had discussed money.
Margaret Kephart testified under a grant of immunity. On September 25, 2012, she was working as a prostitute, and defendant was her pimp. She got "appointments" through a website called "Redbook." On the afternoon of September 25, 2012, Tezino, whom Kephart knew as "Sal," called and texted Kephart requesting an appointment. She told him that she was at the La Quinta Inn on Madison Avenue near Interstate 80. Tezino came to her room, and when she opened the door, he put a gun to her head and pushed her back inside. He told her to take off her clothes and lie on the bed. She did as she was told, and Tezino rummaged through her things and asked where she kept her money. Tezino asked her if she had a pimp, and when she said she did not, he said they could make some good money together. When he began unbuttoning his pants, she asked him to "please . . . use a condom if you're going to rape me," and he laughed and said, "I'm not even going to fuck you. You can put your clothes back on." He then returned her property, told her he wanted to start over, asked her to have dinner with him, and left.
At trial, the parties stipulated that Tezino was on probation for transporting a minor over state lines for prostitution.
When Tezino left, Kephart called defendant at 916-666-5999, the only number she had for him. She told him that "somebody just came to the room and put a gun to my head and tried to rob me and rape me." Defendant came to the room with Darnell "Hyphe" Mitchell and another man Kephart believed was Caesar Williams. Kephart again told defendant what had happened, and he and the other men left.
About an hour later, defendant texted Kephart photographs of various men, and she identified one of them as the man who had come to her room. At some point later that day, defendant texted Kephart, "I'm going to kill that guy for what he did to you," and she responded, "Don't send me text messages like that."
Around 6:00 p.m., Tezino texted Kephart and asked her if she wanted to go to dinner. Kephart testified that she wanted to go, and that she had forgiven Tezino for what he had done. When Kephart told defendant about the text, he instructed her to tell Tezino to meet her at the Applebee's on Arden Way at Howe Avenue around 8:30 p.m., but for her not to show up. Kephart did as she was told. About 8:41 p.m., Kephart texted Tezino and asked him if he was coming. Five minutes later, she texted him, "You're lying. I don't see you." Tezino responded that he was "about to pull in." Kephart then contacted defendant and told him that "the dude was there." Defendant responded that he thought that he had seen him and told Kephart to tell him to go to Motel 6, which also was located at the corner of Arden Way and Howe Avenue. Kephart then called Tezino and invited him to join her in her room at Motel 6. Later that evening defendant instructed Kephart to get all of her stuff out of the La Quinta Inn. She did so and went to a friend's place. Early the next morning, she went to Williams's apartment.
Kephart testified that all of her phone and text communications with defendant that day were to or from the number 916-666-5999. She heard a police officer refer to defendant as "Money Mike," but had never heard anyone else call him by that name. She was not present when Tezino was shot and did not know who shot him. She had never seen defendant with a gun. She acknowledged that Williams set up and drove her to her first date and had "in effect, act[ed] as [her] pimp on that out-call."
Williams, who initially was charged with murder as a codefendant in this case and was allowed to plead no contest to a lesser offense in exchange for his truthful testimony, testified that he had been a pimp for two or three years, he was a long-time friend of defendant, and he and defendant were pimps together.
In exchange for his truthful testimony, Williams was allowed to plead no contest to one count of accessory to murder and was sentenced to one year (time served) in county jail and four years' probation.
On the afternoon of September 25, 2012, Williams met defendant in the parking lot of the La Quinta Inn. Defendant told Williams that Kephart had been raped at gunpoint. Mitchell showed up shortly thereafter. About 7:30 p.m. that evening, defendant called Williams and told him that Kephart was going to meet the man who attacked her at Applebee's and asked Williams to "show up there with him." Williams was on his way to pick up dinner at Cheezer's Pizza when defendant called. After picking up his dinner, Williams had his girlfriend drop him off across the street from Applebee's. He did not want his girlfriend to stay because he was "pretty sure that there was going to be a confrontation." He did not know at the time whether defendant had a gun with him, but he assumed that defendant did because defendant always carried a gun.
Williams arrived at Applebee's at 8:26 p.m. and found defendant next to a bush talking on the phone. Williams saw his black Jaguar, which he had loaned to defendant two weeks earlier, parked by the movie theater adjacent to Applebee's. A guy named "Mike," an acquaintance of defendant, was in the driver's seat. Williams climbed in the front passenger seat and waited. About 10 minutes later, defendant got in the Jaguar, and they drove and parked in front of Applebee's. Defendant went inside and returned a few minutes later, stating that "the guy was there." Williams told defendant, "Don't do anything here," and defendant responded that "he would ride his own beef," which Williams interpreted to mean that defendant would take responsibility for his own actions if he got caught.
Meanwhile, the three men drove to the movie theater parking lot behind Applebee's and stopped near the southwest corner of Motel 6. Defendant and Williams changed shirts and got out of the car. Williams, who had changed into a long-sleeved, white shirt, sat down on a cable box near the motel's breezeway while defendant approached Tezino. After a brief exchange with defendant, Tezino turned and began walking through the motel's breezeway. As Tezino did so, defendant pulled out a gun and shot him in the back. Defendant and Williams then ran past the movie theater to Ethan Way where "Mike" picked them up. From there, they drove to Williams's apartment, where Williams and defendant changed clothes and switched cars. Williams loaned defendant his Cadillac and kept the Jaguar, and defendant left. Kephart showed up at Williams's apartment later that night or the following morning and stayed for around four days.
Sacramento County Sheriff's Detective Jeffrey Wallace testified that there was no such object in the area.
Around 9:00 p.m. on September 25, 2012, a Motel 6 security guard heard a gunshot from the back of the motel. When he looked in the direction of the shot, he saw a man, later identified as Tezino, running toward the front of the motel before collapsing. The security guard called the front desk and instructed the clerk to call 911. Paramedics and law enforcement officers arrived within minutes. Tezino died at approximately 10:30 p.m. from a vascular injury caused by the gunshot.
Sacramento County Sheriff's Deputy Christopher Britton arrived at the scene at 9:11 p.m. Tezino was conscious and stated that he had been shot in the rear of the motel but was unable to say who shot him. Britton took Tezino's wallet and a cell phone that was lying on or next to Tezino and gave them to Sacramento County Sheriff's Detective Tom McCue, who determined that the phone was not in service. Tezino's car keys and a second cell phone were found nearby.
On September 26, 2012, Williams got rid of the gun and the clothing he and defendant were wearing when Tezino was shot. He threw the clothes in a trash can and hid the gun at his cousin's house. On September 27, 2012, he got his Cadillac back from defendant. On September 28, 2012, while he was driving Kephart and his girlfriend to a double date, he was pulled over by police, and Kephart was taken in for questioning. Defendant's cell phone was in the car, and Williams destroyed it because there could have been damaging information on it. According to Williams, defendant had left his phone in the Cadillac when he returned the car the day before.
Detective Wallace viewed surveillance footage from Applebee's, the movie theater, and the La Quinta Inn, which showed the following: defendant and Mitchell driving the Jaguar in and out of the La Quinta Inn parking lot on September 23, 2012, through September 25, 2012; Tezino entering Applebee's at approximately 8:50 p.m. on September 25, 2012, and leaving at approximately 8:59 p.m.; defendant entering Applebee's at approximately 8:52 p.m. on September 25, 2012, and leaving at approximately 8:54 p.m.; defendant walking to the Jaguar after leaving Applebee's, and the Jaguar pulling out of a parking stall and driving westbound through the parking lot; and one person in a white, long-sleeve shirt running away after the shooting. Williams acknowledged to Detective Wallace that the person running in the video was him. A receipt for Cheezer's Pizza, dated September 25, 2012, and time stamped 7:49 p.m. was found underneath the passenger seat of the Jaguar.
Wallace agreed with the prosecutor that "[f]rom watching [the video], you cannot tell whether somebody's running on his right, parallel with him."
B. The Defense
The defense did not call any witnesses at trial. The defense's theory was that Williams, not defendant, was Kephart's pimp and shot Tezino. The defense argued, "Margaret Kephart set it up. Caesar Williams, not only was he there, he's the one that perpetrated it." The defense based its theory in part on the following: Williams acted as Kephart's pimp before and after the shooting; only one person can be seen in the surveillance video running from the scene and Williams acknowledged that he was that person; and the fact that Williams wound "up with the vehicle [(Jaguar)], the prostitute [(Kephart)], the gun, and the cell phone [(916-666-5999)]" after the shooting. The defense also argued that the calls and texts Kephart testified that she received from defendant were actually from Williams, and that the phone number 916-666-5999, which Williams and Kephart testified belonged to defendant, in fact belonged to Williams, noting that, "He had it after the fact. He's the one that destroyed it."
C. The Deliberations
As detailed below, unbeknownst to the parties, their attorneys, the court, or the jurors, People's exhibit No. 51, which had been identified at trial as the out-of-service cell phone found on or next to Tezino, was in fact a cell phone seized from Mitchell when he was arrested on September 28, 2012. The cell phone seized from Mitchell was inadvertently booked into evidence as the cell phone found on or next to Tezino, and as a result, Mitchell's cell phone was erroneously produced at trial and admitted into evidence as the phone found on or next to Tezino.
We alternatively refer to People's Exhibit 51 as "Exhibit 51" and "Mitchell's cell phone."
During deliberations, the jury asked, "Exhibit 51 Phone Ownership PLS confirm." The trial court responded, "Exhibit 51 was the cell phone that Deputy Britton testified was found on the victim's person or next to him at the scene." The following day, the jury asked, "Article 51 Can we take into consideration all contents of the phone[,] gmail, videos, contacts, text messages regardless if it was not discussed/presented in Court?" Before the court could respond, the jury asked for read back of Detective Wallace's testimony regarding Exhibit 51 and for a charger for Exhibit 51. The trial court directed the jury to "render your decision based on the evidence and testimony that was presented at trial. If no evidence was presented regarding the content of Exhibit 51 - it is not within the juror's purview for consideration during your deliberations." The trial court also advised the jury that the transcript did not reveal any testimony from Detective Wallace regarding Exhibit 51. The next and last day of deliberations, the jury asked for read back of testimony from Detective McCue and Deputy Britton concerning Exhibit 51, but rendered its verdict before the court could provide read back of the requested testimony. The jury found defendant guilty of first degree murder but found the firearm enhancement allegations not true.
D. Defendant's Motion for a New Trial
After the jury returned its verdict, Juror No. 1 and Juror No. 7 expressed concern to the prosecutor and defense counsel about "the fact that they had seen and been exposed to information contained on a cell phone that was marked as Exhibit 51." Juror No. 7 stated that the cell phone appeared to belong to Mitchell and that it contained "lots" of information. After further investigation, defense counsel filed a motion for a new trial on the ground of juror misconduct. Defendant asserted that the jury had engaged in misconduct by considering extraneous information - namely, the contents of Exhibit 51—after the trial court admonished it not to do so. In support of the motion, defendant submitted affidavits from Juror No. 1 and Juror No. 4, both of whom declared in pertinent part that: during deliberations some jurors accessed information contained on Mitchell's cell phone; Mitchell's cell phone contained "a lot of information, including photos, text messages, and specifically some facebook [sic] information which indicated that the phone number '666-5999' belonged to 'Money Mike,' which we knew was the nickname of defendant"; information on the cell phone indicated that it belonged to Mitchell, not Tezino; the cell phone continued to be used for several days after the shooting; and jurors continued to reference the information contained on the cell phone after the trial court admonished them not to do so. Defendant argued that because the jury had engaged in misconduct, prejudice was presumed.
The People opposed the motion, arguing that the jury had not engaged in misconduct because the cell phone had been admitted into evidence without any limitations and without objection, and even if the jury had engaged in misconduct, it was the People, not defendant, who had been prejudiced by the jury's consideration of the information contained on the cell phone. In support of their motion, the People submitted a declaration from Detective McCue, who explained that "[w]hen booking the victim's two cell phones and wallet . . . I inadvertently booked the Huawei cellular phone seized from Darnell Mitchell instead of the Samsung phone given to me by Deputy Britton." McCue also declared that he had reviewed the information forensically downloaded from Mitchell's phone and described the information as follows: "[T]he phone contained 77 photos depicting Darnell Mitchell and various young women who appeared to be prostitutes, posing for the camera; the phone contained 45 contacts, two of which were 'Moneymike' with phone number 916-666-5999 and 'Ceezer' with the phone number 916-225-8347; the phone contained 85 text messages; none of them were to and from 'Moneymike' and none of them contained any information about the murder of Kaster Tezino; all of the text message were generated after 3:27 p.m. on 09/29/12; the phone contained 123 incoming phone calls; 12 of those calls were from 'Moneymike'; the phone contained 298 outgoing calls; 25 of those calls were to 'Moneymike'; the phone contained 79 missed calls; 6 of those were from 'Moneymike'; the phone calls made to and from the phone started at 11:40 a.m. on 09/24/12 and ended on 12:37 p.m. on 09/29/12."
The trial court granted defendant's motion for a new trial. It determined that the jury had engaged in misconduct by considering the contents of Exhibit 51 after being admonished not to do so, and thus, presumed defendant had been prejudiced thereby. The court explained, "Whether the misconduct worked to the benefit of the defendant or not, the Court has an obligation to protect the process itself. [¶] If the process is compromised or tainted in some way, it has been presumptively prejudiced." The court then turned to the issue of prejudice, stating, "If it appears substantially likely that a juror is actually bias[ed], the verdict must be set aside. This is even so if the Court is convinced that an unbias[ed] jury would have reached the same verdict." The court found that Mitchell's cell phone contained "references and information involving the defendant," some jurors considered the information after being admonished not to do so, "[t]he information on the cell phone was not within the purview of the evidence presented . . . at trial," and "the defense had no ability to view it, to get discovery on it, authenticate it, cross-examine the witnesses about it or put a case on as it relates to the information on the phone." The court concluded that "based on all that information, I do feel that the process was compromised and tainted in some way, and because of that, I do believe that . . . the prejudicial effect of the juror misconduct has not been overcome . . . ."
DISCUSSION
The People contend that "[t]he trial court erred by granting [defendant's] motion for a new trial because [defendant] did not suffer prejudice as a result of juror misconduct." They assert that "considering the entire record, including the nature of the misconduct and the surrounding circumstances, the People demonstrated that there was no substantial likelihood that [defendant] suffered actual harm." Defendant responds that the contents of Mitchell's cell phone, which showed that the number 916-666-5999 belonged to defendant, was inherently prejudicial because it bore on a significant issue at trial, contradicted his defense, and corroborated Kephart's and Williams's testimony that the number 916-666-5999 belonged to defendant and that defendant orchestrated Tezino's murder. Defendant argues that the jury's consideration of such evidence deprived him of his right to an impartial jury and to confront the evidence against him.
"An accused has a constitutional right to a trial by an impartial jury. [Citations.] An impartial jury is one in which no member has been improperly influenced [citations] and every member is ' "capable and willing to decide the case solely on the evidence before it" ' [citations]." (In re Hamilton (1999) 20 Cal.4th 273, 293-294.)
A motion for a new trial may be granted on the ground of juror misconduct, including the jury's receipt of "out of court" evidence. (§ 1181, subds. 2, 3.) "In ruling on a request for a new trial based on jury misconduct, the trial court must undertake a three-step inquiry. [Citation.] First, it must determine whether the affidavits supporting the motion are admissible. (Evid. Code, § 1150.) If the evidence is admissible, the trial court must determine whether the facts establish misconduct. [Citation.] Lastly, assuming misconduct, the trial court must determine whether the misconduct was prejudicial. [Citations.]" (People v. Dorsey (1995) 34 Cal.App.4th 694, 703-704.) Misconduct "raises a presumption of prejudice '[which] the prosecution must rebut . . . by demonstrating "there is no substantial likelihood that any juror was improperly influenced to the defendant's detriment." ' " (In re Boyette (2013) 56 Cal.4th 866, 892.)
A trial court's finding of prejudice warranting a new trial is reviewed for abuse of discretion, a standard of review more deferential than is the standard of review for an order denying a motion for new trial. (People v. Ault (2004) 33 Cal.4th 1250, 1271-1272 (Ault).) "[T]he long-established rule of deference to trial court orders granting new trials recognizes that those courts are best positioned to determine whether errors or irregularities in proceedings before them were prejudicial." (Id. at p. 1271.) Thus, "the trial court's order granting a new trial will not be disturbed if fairly debatable, even if the reviewing court itself, addressing the issues de novo, would not have found a basis for reversal." (Id. at p. 1263.)
The People assert that "[t]he question of whether prejudice arose from juror misconduct . . . is a mixed question subject to an appellate court's independent determination," citing People v. Nesler (1997) 16 Cal.4th 561, 582 and Ault, supra, 33 Cal.4th at pages 1261-1262. While the court so held in Nesler, unlike the present case, Nesler involved the review of an order denying a motion for a new trial. (Nesler, at p. 582.) In Ault, the People urged, as they do here, "that an identical standard should apply on their appeal from an order granting a new criminal trial on grounds of prejudicial juror misconduct." (Ault, at p. 1264.) The court declined to apply a de novo standard of review in that case, stating, "In our view, the rule of independent appellate review need not apply to a trial court determination that conceded juror misconduct was prejudicial, thus warranting a new trial, even if the prejudice issue is a mixed question of law and fact." (Id. at p. 1265.)
Here, as the People concede, there was misconduct. Jurors continued to reference the contents of Exhibit 51 during their deliberations after being admonished by the trial court not to do so. (See People v. Avila (2009) 46 Cal.4th 680, 726.) A juror's misconduct raises a presumption of prejudice which the People were required to rebut by demonstrating that there is no substantial likelihood that any juror was improperly influenced to defendant's detriment. (Boyette, supra, 56 Cal.4th at p. 892.) Having examined the entire record, we find the trial court did not abuse its discretion in concluding that the People failed to rebut the presumption.
The People attempted to carry their burden by asserting that "defendant benefitted from" the jury's consideration of the contents of Mitchell's cell phone. Specifically, the People claimed that information that Mitchell's cell phone was found on or next to Tezino's body "left the jury with a clear indication that Darnell Mitchell was at the murder scene," which "tragically impeached the testimony of Caesar Williams, as he made no mention of Darnell Mitchell being present at the scene of the crime. Consequently, the jury did not find the gun enhancement true, in direct contradiction to Caesar Williams'[s] testimony."
The gun enhancement alleged that defendant personally and intentionally discharged a firearm which caused Tezino's death. While the jury reasonably could have inferred from the extraneous information before it that Mitchell, not defendant, shot Tezino and thus found the gun enhancement not true, it does not appear that it did so here. Although the jury found the gun enhancement allegation not true, it nevertheless found defendant guilty of first degree murder. The People's only theory for the first degree murder charge was that defendant was the shooter. The People did not rely on an aiding and abetting theory at trial, and the jury was not so instructed. If, as the People appear to suggest, the jury inferred from the contents of Mitchell's cell phone that Mitchell, not defendant, was the shooter, why didn't the jury also conclude that defendant was not guilty of murder? The bottom line is we do not know what inferences the jury drew from the contents of Mitchell's cell phone. Indeed, information that Mitchell's cell phone was found on or next to Tezino's body undercut both the People's theory that defendant was the shooter, and the defense's theory that Williams was the shooter. And, the information was false. Mitchell's cell phone was not found on or next to Tezino, it was seized from Mitchell when he was arrested on September 28, 2012. While it is unclear what effect such information had on the jury's verdict, the fact that members of the jury continued to reference such information after being instructed not to do so, strongly suggests that it had some impact, as the trial court found.
Moreover, the contents of Mitchell's cell phone did not simply reveal to whom the phone belonged, it connected defendant to the number 916-666-5999. The People argued that "the fact that the phone contained the defendant's phone number under his nick-name, 'Money Mike,' is of little consequence" because "[t]hat evidence was already before the jury in the form of testimony from Kephart, Williams, and detectives Wallace and Swisher . . . ." Williams and Kephart both had credibility problems. In addition to lying to police, both were involved in the murder, and as the trial court noted in its ruling, Kephart testified under a grant of immunity, and Williams was allowed to plead guilty to a lesser offense in exchange for his testimony. Moreover, neither Detective Wallace nor Detective Stanley Swisher corroborated Kephart's and Williams's testimony that the 916-666-5999 number belonged to defendant, or Williams's testimony that defendant was the shooter. Swisher's testimony concerning defendant's involvement in the murder was based solely on what Kephart told him. Wallace's testimony placed defendant at the scene of the murder and tied him to the Jaguar, but it did not connect him to the number 916-666-5999 or otherwise establish that he was the shooter.
On appeal, the People acknowledge that "the contact for 'Money Mike' in Exhibit 51 provided some corroboration" for Kephart's and Williams's testimony, but assert that "Kephart and Williams's testimony was corroborated by other substantial evidence that made defense counsel's theory implausible." The evidence cited by the People included the following: a call from 916-666-5999 "hit" on the Foothill Farms cell tower on Walnut Avenue at 8:02 p.m. on September 25, 2012, while a receipt recovered from the Jaguar showed that Williams was at Cheezer's Pizza near Howe and Arden at 7:49 p.m.; and Williams testified that his phone number was 916-225-8347, and there were calls and text messages between 916-225-8347 and 916-666-5999.
There is no question that there was ample evidence in the record, apart from the contents of Mitchell's cell phone, to support a finding that the phone number 916-666-5999 belonged to defendant, not Williams, and that the calls and texts from that phone were attributable to defendant. The trial court could have determined, however, that none of that evidence was as powerful as Mitchell's cell phone, which contained "contacts" attributing 916-666-5999 to Money Mike, defendant's nick name, and 916-225-8347 to "Ceezer," aka Caesar Williams. While the defense's theory may have been weak without the content of Mitchell's cell phone, it was virtually eviscerated with it. That Mitchell was a close friend of defendant made the information more credible, and defendant was never given the opportunity to challenge it.
We reject the People's assertion that the trial court failed to examine the entire record when ruling on the motion for a new trial. The trial court presided over the trial, received and responded to the jury's questions, read the parties' briefs on the motion for a new trial, and heard argument on the motion. The People erroneously claim that the trial court "ma[d]e no reference to the evidence presented at trial or the contents of Exhibit 51." In ruling on the motion, the trial court cited to evidence presented at trial, the parties' theories of the case, and the contents of Mitchell's phone, including the fact that "[i]t showed the number 666-5999 belonged to Money Mike, which was the defendant's nickname."
As defendant notes, "[t]he question of who had possession of the 916-666-5999 cell phone was a key issue during trial, because whoever Kephart contacted at that number was likely her pimp and likely the murderer." Mitchell's cell phone contained information linking defendant to that number, and jurors continued to consider the contents of the phone after being admonished not to do so.
Mindful of the trial court's " 'first person vantage' [citation] on the effect of trial errors or irregularities on the fairness of the proceedings in that court" (Ault, 33 Cal.4th at p. 1267), we cannot say on the record before us that the trial court abused its discretion in concluding that the People failed to rebut the presumption of prejudice and that it is substantially likely that a juror was improperly influenced to the defendant's detriment. (Boyette, supra, 56 Cal.4th at p. 892; see also Ault, supra, 1261 ["Review is limited to the inquiry whether there was any support for the trial judge's ruling, and the order will be reversed only on a strong affirmative showing of abuse of discretion."].)
In their opposition to defendant's motion for a new trial, the People claimed, without any citation to legal authority, that should the trial court grant the motion, the gun enhancement allegation, which the jury had found not true, can no longer be alleged because "jeopardy has attached." That claim is incorrect. While the protection against double jeopardy generally precludes retrial for the same offense after a conviction or an acquittal, "[a]n exception to this rule applies if the judgment of conviction is reversed as a result of a defendant's appeal, motion for new trial, or other challenge by a defendant to his or her conviction. [Citation.] Like other constitutional guarantees, double jeopardy protections are not absolute, and may be waived by a defendant. A defendant who files a motion for a new trial, like a defendant who moves for a mistrial, waives state and federal double jeopardy protections. [Citations.]" (People v. Eroshevich (2014) 60 Cal.4th 583, 590-591.) --------
DISPOSITION
The order granting a new trial is affirmed.
/s/_________
Blease, Acting P. J. We concur:
/s/_________
Robie, J.
/s/_________
Butz, J.