PEOPLE v. GOOLSBY

Appellant’s Answer Brief on the Merits

Cal.November 18, 2014

SUPREME oe py epeePPE EE . ; JR! Saw, i g omy, $f a nn ha? 8216648 | NOV 18 2014 Mrank A Mer3uire Clerk IN THE SUPREME COURT OF CALIFORNIA Treenean ). Court.ofAppeal No. E052297 PEOPLE OF THE STATE OF ) ) San Bernardino County CALIFORNIA, - ). Superior Court No. FSB905099 Plaintiff and Respondent, )Vs. RICHARD GOOLSBY,, ) Defendant and Appellant _) ) ANSWERING BRIEF ON THE MERITS Appeal from the Judgmentofthe Superior Court of theState ofCalifornia forthe County ofSan Bernardino HONORABLEBRYANF. FOSTER, JUDGE Steven S. Lubliner (State Bar No. 164143) P.O. Box 750639 Petaluma, CA 94975-0639 Phone: (707) 789-0516. e-mail: sslubliner@comcast.net Attorney for Appellant By appointment ofthe California Supreme Court, Assisted by Appellate DefendersInc. TABLE OF CONTENTS PAGE INTRODUCTION 1 STATEMENTOF THE CASE 4 ARGUMENT 7 I. APPELLANT’S PENAL CODE SECTION 451(B) CONVICTION MAY NOT BE UPHELD ON THE GROUND HE COMMITTED THE UNCHARGED RELATED OFFENSE OF ARSON TO INHABITED PROPERTY. 7 A. Additional Procedural Background 7 1. Additional History re Charging and Settlement Offers. 7 2. Additional History Re Instruction on Lesser Offenses and Argumentat Trial. 10 B. The Merits 13 1. Arson to Inhabited Property is a Related | Offense to Arson to an InhabitedStructure. Whena Conviction is Reversed for Want of Substantial Evidence, a Modified Judgment May Only Be Entered for Lesser Included . Offenses, Not Related Offenses. 13 2. Even if This Court Theoretically Could Enter Judgment on Arsonto Inhabited Property, Doing so Here Would Deny Appellant Due Process ofLaw. The Prosecution Had Repudiated Any Intention of Convicting Appellant of thatCrime, and Appellant Had Refused'a Settlement Offer in Reliance on the Fact that this Charge was not in the Case. 16 TABLE OF CONTENTS(cont.) PAGE IL. THE CURRENTCASE MUST BE DISMISSED. THE FILING OF A NEW CASEIS BARRED BY PENAL CODE SECTION 654 AND KELLETT. A NEW PROSECUTION WOULD ALSOSUBJECT APPELLANT TO DOUBLE JEOPARDY. 19 A. Introduction 19 B. Respondent’s misleading and Incomplete Assessment ofDefense Counsel’s Strategy and the Prosecutor’s Actions. 20 C. The Only Appropriate Appellate Remedyin this Case Involving a Single Conviction Reversed for WantofSubstantial Evidence is Dismissal. 23 D. The Merits: A New Prosecution is Barred by Penal Code Section 654 andKellett. 24 E. Hadthe Trial Court Not Erred by Denying Appellant’s Motion for Acquittal, the Charge of Arson to Property-ofAnother Never Would Have AppearedintheCase, andit Wouldbe Undisputed that Refiling was Barred by Kellett. 32 F. Penal Code Section 1164 Has Nothing to Do With This Case. 34 G. Becausethe JuryWas DischargedWithout Reaching a Verdict on Arson to Property of Another a NewTrial is Also Barred by Double Jeopardy. 36 ‘CONCLUSION 50 CERTIFICATION Ul TABLE OF AUTHORITIES Cases Downum v. United States (1963) 372 U.S. 734 ....cccsccsscssscsseeseessesseseespassim Evans v. Michigan (2013) 133 S.Ct. 1069.......cccecssccessescesscssssesssseseasesees40 Fong Foo v. UnitedStates (1962)369 U.S. T4Loeecsssccsestecsesseseeseeesees40 Higgins v. Superior Court In and For Los Angeles County (1960) 185 Cal. App. 2d 37 occccsscsccescsersesessssssecsecsscsssssseeesesesesseasees 44, 45 In re Colford (1924) 68 Cal. App. 308 .......cccccscsscssccseesesssessesseseees 41, 42, 45 In re Hess (1955) 45 Cab.20 171 woeccccccccsccscssscessccsscssscsscscsssesscesccssssseeens 18 Kellett v. Superior Court(1966)63 Cal. 2d822.....ccccsccccsscsscseseeeeeeepassim Lafler v. Cooper (2012)132S.Ct. 1376 wc ccscesesseseescessessessesssesesssscssesses 18 Martinez v. Illinois (2014)134 S.Ct. 2070... ceccccssesseeseeesseesessssscsecespassim Orlina v. Superior Court (1999)73 Cal. App. 4" 258..........0.0. 29, 30, 31, 32 People v. Adams (1990)220 Cal. App. 3d 680.......ccccccescccesseeessecesssseses23 Peoplev. Birks (1998) 19 Cal. 4108 ...cc.ccccssecsesececssssscesesseseeesees 14, 15, 22 People v. Breverman (1998)19 Cal.4th 142o...cccccccccsccsssesssseesseees 15, 39 People v. Elize (1999) 71 Cal.App.4th 605.0... cccccccccscssscssssesessesseseeees 15 People v. Fields (1996)13 Cal. 4° 289 wooesecseessssssessseceececseeceesees 40, 45, 48 People v. Garcia (1984)36 Cal. 3d°539 .....ccsssssesesssssessesesssssssscsesacs 45, 46 People v. Ham Tong (1909) 155 Cal. 579 u...cceecsssssssescessessssssssetscesenes 42, 43 People v. Hatch (2000) 22Call. 4° 260 ..ecssssssssssesssssessesssecsseesssssessssessecen26 People v. Ho Sing (1907)6 Cal. App. 752 ....ccccccccsssessccsssecssscsssscsecasees 42, 43 People v. Lohbauer (1980)29Cal. 3d-364........cccscsscsscscsssscsscsssscssssscssseees 17 People v. Marks (1991)¥ Cal. 4" 56... .ccseccscsscsssssssssssesessesccscsssesssesseespassim People v. Parson (2008)44Cal. 4° 332.....ccscsscsssscssssscesceseesessssssecssessesseens 14 ili People v. Pierce (1979) 24 Cal. 3d 199...cesssscsssseseesssssssessessessecessnseeees23 Peoplev. Powell(2010)181 Cal. App. 4304 .ocuicccsssccesessececsesesceseees 33 People v. Reeves (2001) 91 Cal. App. 4°° 14 vcccccccsscscsssceecssssescssessesseseees 44 People v. Saunders (1993) 5 Cal. 4°" 580 .....cscessssessesssecssccesceeceesecsscsseeseeaes 35 Peoplev. Shirley (1982) 31 Cal. 3d 18...ccsssccssssssscsssessessesesseetseeses 45, 46 People v. Sullivan (2013) 217 Cal. App. 4° 242 v.ccsccsscsssssssssseseeeen 37, 38 People v. Toro (1989)47 Cal. 3d 966 ......cccsscsccsssessccsseseerscseees 28, 29, 44, 45 Peoplev. Valli (2010) 187 Cal. App. 4786....ccccesssssccescssssssssessseeresereeenes28 People v. West (1970) 3 Cal.3d 595 v...ccscscssesscessscsscsscsessccsssssesessescesssavene 18 Robert L. v. Superior Court (2003)30 Cal. 4" 894 oo. ccccscsccssesssssessecseeses43 Sanders v. Superior Court (1999):'76Cal. App. 4" 609........cscscecseseees 26, 27 Stone v. Superior Court(1982) 31 Cal. 3d:503°.......ccccccseeesscesssesssscessseesees 30 Stonev. Superior Court (1982) 31-Cal.3d:503>......cccessssssssscesceseoees 30, 31, 37 United States v Martin Linen Supply Co: (1977)430-U.S, 564 ...cccceeeeee 36 United States v. Perez (1824) 22 U.S. 579... .eccccccsscssssscscssesssesscescsersseeacs 37 Statutes Penal Code § 450 oocecscsesssssessesssscsssccsscsssssecssesssssssssssssossesscesesseecseeeaes 14 Penal Code § 451 oo.ccccesssssssssesseceseeseseeesstecsecateeesssesesnsessssssessesesQQSSUM Penal Code § 451.1 wciccseccsscscecssescssesssscssssesssasesesseresssessesscsseess 4,5, 7, 12 Penal Code § 452.1 eeeecessssesssssessssssssssesssssescsscssessesessecssssssssssatsssseeseseees 7 Penal Code § 594 oo. ccscsscsscsssesssssesecsssssessesesssscsscesssesssavssecsestacsaceassnsenss 16 Penal Code § 654 0... ccessscsssssscssscsscessnsscssscssscssceccescssscnsceesessseceseeaes 2, 6, 25 Penal Code § 667 .o......ccccecsscsssssssssscssscssccessescsseceescnscececsseccesecesaes 4,7, 9, 12 Penal Code § 667.5 oeccccccssscssssescsscssessessesssesesessserscsscesessssseceresatenseaes4,12 Penal Code § 954 ooo. cccssssssssessessesssssssessesescsssesscssessscsscsessacsacseseasassarens24 iv PenalCode -§ 1004 ooo... ccscscsscssssccsssstscessnscsecesessensesssececseesssseesersessesoees43 Penal Code § 1007 oo... ccsscssecrssercessressscssecscsessessssesseseessceessesteenssasenees43 Penal Code § 1023 oo...cescssccsstsccnecesseccsessessrccesecssscensecestesseeessesseesseecees 31 Penal Code §1025 ooo... eescccssreccsscecesesesessssseessesesneececeeeeseesecessssssceseeacs 34 Penal Code § 1054.71.00... ccscsscsssccssssssssccscecesseessssesscesseeessssecescseresssessssssscssecs8 Penal Code § 1118.1ecseeeceeeestceesceeeeeasseecsesecseesecesssseesensersees 32, 33- Penal Code § 1157 wo.eeeccscssscsceeseccesescesseceseaceseessesssonsseesaesuseees 34, 41 Penal Code§ 1160iccsscecsesseseccecescseesssesesecsecasesecesacessseesesesers 30, 31 Penal Code§ 1164occessccescseesscessesscesceseestersesssersaseees 34, 35, 36, 48 Penal Code§ 11800...cccesccscccsssessssesssesccsscessessssessseseseecacecseeessecsees 23, 24 Penal Code § 118k oo...eeecccsesccsesseeescecceesseececessececsssessosenness 1, 20, 23, 44 Penal Code § 1260-00... cescsescsscccnscessececsceecceceenscssecseeeseeseessssaeeeseensecees 23 Penal Code § 2933.10... .ccccsscssessssecssecssecesesecessscesscesseescesatessesesseesseseeeeses 12 Constitutional Provisions United States Constitution, 5" Amendment........c..cccccscccssesesscsececsecccsessssees23 INTRODUCTION When a conviction is reversed for want of substantial evidence, two potential appellate remedies present themselves. Oneis that the judgment may be reduced pursuant to Penal Code section 1181(6) to reflect a conviction of a lesser included offense. Fire crimes to “property” are not lesser included offensesto firecrimesto “structures,” inhabited or otherwise. Respondent has never wavered from this position. Therefore,a reduction to.either arson ofproperty or arson.of inhabitedproperty is not appropriate. The additional questions on which this Court requested briefing are simply another way of asking whether when.aconviction is reversed for want of substantial evidence, a conviction for a related offense maybe substituted. Under Penal Codesection 1181(6), it may not, no matter how guilty the defendant appears to be ofthe related offense. The answer does not change just because the tworelated offenses are set out in the samestatutory subsection. Evenifthere could becircumstances wherea contrary rule wouldapply, this wouldnotbe one ofthem. Once the prosecutor repudiated her intention to seek a conviction on arson of inhabited property, appellant lacked notice that he could ‘be convicted ofthat related offense. This affected his pre-trial negotiating posture. After the prosecutor withdrew the chargeofarsonof inhabitedproperty, thereby committing herself to the weak attempted murder charge and the novelarson theory that a motor homewasa building, appellant turned down a favorable settlementoffer. The record showsthat appellant would have takenthe offer if thecharge of arson to inhabited property hadstill been in the case. Where,ashere, there is no lesser included offenseto which appellant’s conviction may be reduced, the appellate remedyis outright dismissal. The appellate remedy of a newtrial is not authorized becauseit subjects the defendant to a newtrial on the offense on which he was acquitted in violation of Double Jeopardyprinciples. The question then becomes whether the prosecution mayfile a new case tocharge arson of property. Respondent relies oncases holding that a defendant who acquiescesin the giving of instructions on related offenses may not complain if heis convicted. Those cases are irrelevant because appellant was not convicted of arsen ofproperty. Where, as here, the case is done, the jury is sent home, and the defendant’s convictionis reversed for want of substantial evidence,the equation changes. Becauseappellant has now been functionally acquitted ofthe charged crimeofarson to an inhabitedstructure,thefiling ofa new case _ charging arson of property is barred by Penal Code section 654 as ‘interpreted by this Court in Kellett v.Superior Court (1966) 63 Cal. 2d 822. The prosecution wasclearly aware ofthe facts and circumstancesthat wouldhave supported sucha charge, not only. as.an alternative to the charged crime but as the basis for a second conviction. It did not bring them before, and it may not bring them now. The sameresult follows for charges of arson to inhabited property, vandalism to Kathryn Burley’s property, or any other charge that might be groundedin appellant’s fire setting that night. Respondent’s invitationto this Court to recognize the new concept of “continuation of the original prosecution” ofneglected charges to skirt the commandsofKellett should be rejected. Retrial of thecharge of arson ofproperty is also barred by Double Jeopardy principles because thejury was discharged unnecessarily without reaching a verdict on thelesser related offense of arson of property. Ignorance of thelaw bythe trial court and the prosecutor does not create the kind of “manifest necessity” necessary to permit retrial. Contrary to respondent’s suggestion, the Court ofAppeal never repudiated reliance on Double Jeopardy principles. Because it reversed on state law Kellett grounds, it apparently did not deem it necessary to reach the constitutional issue on whichit had requested briefing. If this Court holds that Kellett bars the filing of a new case, it need not address Double Jeopardy either. The truth is, however, that both Kellett and Double Jeopardy principles prevent the prosecution from filing a new caseafter this case is dismissed. STATEMENT OF THE CASE Appellant was convicted by ajury of arson of an inhabited structure in violation of Penal Code section 451, subdivision (b). The jury also found that appellant had caused- multiple structures to burn within the meaning of Penal Code section 451.1, subdivision (a). The jury acquitted appellant of attempted murder. In a benchtrial, the trial court found that appellant had suffered three prior convictions that constituted “strikes” as well as serious felony priors within themeaningofPenal Code section 667, subdivision (a). The trial court also found that appellant had suffered three different convictions that constituted prison priors within the meaning of Penal Code section 667.5, subdivision (b). With enhancements, appellant received a Three Strikes sentence of 48 years to life. (2 RT 418-419; 2 CT 296-298, 311-314.)' He appealed. The case was briefed and arguedat the Court’s request. In its unpublished opinion of February 14, 2013, the Court of Appealrejected appellant’s argumentthat appellant had at most committed the lesser crime of unlawful fire rather than arson. It held that two of the three five year enhancements under Penal Code section 667(a) should not have been imposed because they were not broughtandtried separately.It also held that because the motor homesthat burned in this case are not ' RT=Reporter’s Transcript in two volumes.CT=Clerk’s Transcript in two volumes. RBOM=Respondent’s Briefonthe Merits. structures, appellant was improperly convicted of arson of an inhabited structure. It set aside the five-year enhancement imposed under Penal Code section 451.1 for burning multiple structures, and it reduced appellant’s conviction to arson of property. The effect of the first opinion was to reduce appellant’s sentence from 48to life to 33 to life. Appellant filed a timely petition for rehearing on four issues, including whether arson to property is a lesser included offense of arson of an inhabitedstructure so as to permit the. reduction of appellant’s convictionto that offense. On March8, 2013, the Court of Appeal granted rehearing, vacated its opinion and requestedletter briefs on the issue of _ whetherarson ofpropertywasa lesser included offense to arson of an inhabitedstructure. In its briefing, respondent concededthat arson of property was nota lesser included offense of arson of an inhabited structure to which appellant’s convictioncould be reduced. Respondent argued, however,that the Court of Appeal should order a newtrial on that charge. Appellantobtainedleaveto file a response to this new argumentanddid so. On April 30, 2013, the Court ofAppealfiled a published opinion holding that because arson ofproperty wasnota lesser included offense to arson of an inhabitedstructure, appellant’s conviction could not be reducedtothat offense.It held that a new trial was not a permitted remedy and ordered the case dismissed. Respondentthen filed a timely petition for rehearing, which the Court granted on May 20, 2013, vacating its published opinion. The Court requested furtherletter briefing on 1) the lesser included offense issue, 2) whetherretrial would be barred by Penal Code section 654 as construed in Kellett v. Superior Court (1966) 63 Cal. 2d 822, 3) whether retrial would be barred by Double Jeopardy principles, and 4) any other issue the parties deemed relevantto the disposition ofthe case. In the briefs, respondent adheredto its position that arson of property was not a lesser included offense of arson of an inhabited structure but thatretrial was the proper remedy. Appellant argued thatretrial was barred by both Kellett and Double Jeopardy. After the conclusionofbriefing, oral argument was held at the Court’s request on November5, 2013. On January 5, 2014, the Court filed the current published opinion. The Court continued to hold that appellant did not commit arson of an inhabited structure. (Opinion at 4-8.) Addressing remedy,it held that arson ofproperty wasnot a lesser included offense to which appellant’s conviction could be reduced andthat retrial was barred by Kellett. (Opinion at 8-10.) It did not address Double Jeopardy. It ordered the case dismissed. (Opinion at 11.) One justice dissented. This Court then granted respondent’s petition for review on the Kellett issue. Thereafter, it requested additional briefing on whetherthe jury’s verdict and Court ofAppeal’s opinion establish that appellantis guilty of violating Penal Code section 451(b) because he committed the crime of arson to inhabited property and, if so, whether the judgment should be affirmed onthatbasis. ARGUMENT I. APPELLANT’S PENALCODE SECTION 451(B) CONVICTION MAY NOT BE UPHELDONTHE GROUND HE COMMITTED THE UNCHARGED RELATED OFFENSE OF ARSON TO INHABITED PROPERTY. A. Additional Procedural Background The following additional proceduralhistory is relevant to both this issue and the Kellett issue on which this Court originally granted review. 1. Additional History Re Charging and Settlement Offers. The prosecution filed its complaint on December 1, 2009.It alleged that appellant had committed arson of“an inhabited structure and inhabited property” in violation of Penal Code section 451(b). The complaint alleged a multiple structure enhancement under Penal Code section 452.1(a).” It did notyetallege attempted murder. Most significantly, it did not yet allege appellant’s three priorstrikes, serious felony priors under Penal Code section 667(a) or prison priors under Penal Code section 667.5(b). (1 CT 1-3.) * Section452. 1(a)is actually the multiple structure enhancementfor unlawful fire. Presumably, the prosecutor meantto allege the enhancement under Penal Code section 451.1(a). Respondentcorrectly observes that the minutes for December 10, 2009 state that an offer was made to appellant in light ofhis total exposure and that he rejected the offer. (RBOM 19; 1 CT-8.) The terms of the offer are not part of the record on appeal. The offer was made both before the preliminary hearing and well before the prosecution would have been obligated to produce discovery pursuant to Penal Code section 1054.7. Appellant’s maximum exposure at this early stageofthe case. was adeterminate sentenceof 13 years servedat half time, not the 48 years to life he ultimately received. Further, the order recites that immediately prior to the settlement discussions in chambers, a new attorney from the Conflict Panel had been appointed to relieve the Public Defender. (1 CT 8.) The amended complaint wasfiled on December 11, 2009.It now alleged that appellant had committed arson of “an inhabited structure or inhabited property” in violation ofPenal Code section 451(b). It added the charge of attempted willful, deliberate and premeditated murder, corrected the statute authorizing the multiple structure enhancement and addedthreeprisonpriors.It still did not allege the strike priors or the serious felony priors. (1 CT 9-11.) On December 14, 2009, immediately prior to the preliminary hearing, appellant rejected an offer of eight years in prison. (1 CT 12, 21.) Atthis time, the case still was not a Three Strikes case. Appellant’s maximum exposure on the recently added attempted murder charge, the charge on which appellant was ultimately acquitted, was life. His maximum exposure on the arson count with the prison priors was 16 years, assuming upper term sentences. Middle term sentences would have yielded 12 years. Upper andmiddle term sentences on an unlawful fire conviction with an enhancementand prison priors would have been ten and eight years, respectively. After appellant was held to answer, the prosecution filed an information that wasidentical to the amended complaint.It still alleged that appellant had burned “an inhabited structure or inhabited property.”It still did not allege that this was a Three Strikes case. (1 CT 14-17.) On February 1, 2010, the prosecutionfiled its first amended information. This information deleted the reference to inhabited property in the arson charge, alleging only that appellant had burned “an inhabited structure.”It also made the case a Three Strikes case for the first time, alleging the three priorstrikes from 1976 andalleging that they also constituted three serious felonypriors under Penal Code section 667(a). (1 CT 69-73.) After abandoning the charge of arson to inhabited property, the prosecution madea final settlement offer. The minute order for June 4, 2010, which was approximately two weeksbeforetrial, recites that an offer was madeand rejected byappellant. The termsofthe offerare not recited, andthe transcript is not part of the record on appeal; however, given that appellant was apparently reminded that this was a Three Strikes case, the offer presumably was for a determinate term substantially less than what he faced, ultimately received and would nowreceiveifjudgment was entered against him on the abandoned chargeofarson to inhabited property. (1 CT 94.) Defense counsel later represented in court that the state of the arson charge was the only reason appellant took the casetotrial. (1 RT 233, 240.) 2. Additional Procedural History Re Instruction on Lesser Offenses and Argumentat Trial. Atthe preliminary hearing, the prosecutor askedits arson expert, “What was the damage that was caused to the occupied motor home?” (1 CT 34-35.) The expert replied, “The damage that was-it was almost completely consumedbyfire. You couldstill see the exterior wall to the weststill intact, and all of her belongings werestill intact and some of them were discernible.” (1 CT 35.) No witness,including Katherine Burley herself, testified at the preliminary hearing that Burley’s personal property wasburned. | Attrial, Burley testified that she had clothes, personal papers and other property in the motor home. (1 RT 45.) The arson investigator testified that when she investigated the motor home in which Katherine Burley lived, she saw burned personal property. (1 RT 207.) Neither witness testified explicitly that Katherine Burley’s property was burned. 10 In the midst oftrial, the parties had a lengthy argument about whether the jury should be allowed to find that a motor homeisa structure and, if so, under whatinstruction. (1 RT 228-241.) Thetrial court concludedthat it would not rule as a matter of law that a motor home was not a building and therefore not a structure. It deemedthe issue a factual question for thejury. (1 RT 241.) Defense counsel then observedthat in light of the just-concluded discussion, a motion for acquittal under Penal Code section 1118.1 wouldprobably befutilebutthat he mightfile one anyway. (1 RT 241.) At the close of evidence, appellantdidfile a pro forma motion for acquittal of the arson charge, whichthetrial court denied in reliance on its earlier statements. (2 RT 326.) During the conference on instructions, the court and counsel discussedthe lesser included offense instructions that would be given. The prosecutor acceded to the trial court’s proposals-but did not expressly request lesser included offense instructions.(2 RT 284-288.) Defense counselstated that he hadnot anticipated someofthe proposedinstructions and would haveto revise his closing argument over lunch as he assumed the prosecutor would. (2 RT 285-286.) The prosecutorreplied, “I know whatI’m going to argue for.” (2 RT 286.) Thetrial court instructed on the following allegedly lesser- included offenses:arson of a structure, arson to property of another, unlawful fire to an inhabited structure, unlawfulfire to a structure, and 11 unlawfulfire to property of another. (2 RT 315-319; 2 CT 130-134.) Defense counsel argued that appellant was guilty of, at most, unlawfulfire to property of another. (2 RT 354-356, 367.) The-prosecutor never even hinted, even during rebuttal, that if the jury disagreed with the premise that amotor homewas a building, itshould at least convict appellant of arson of property. (2 RT 330-351; 369-375.) At the time she made her closing argument, the prosecutor presumably understoodthat convicting appellantof arson of an inhabited structure as opposed to arsontoproperty of another would have affected appellant’s Three Strikes sentence in two ways. It would have increasedit _ from 43-to-life to 48-to-life because of the multiple structure enhancement set out in Penal Codesection 451.1(a).? It also would have limited appellant’s good time presentence credit to 15 percent of actual time under Penal Code section 2933.1 because arson of an inhabited structure is a violent felony while arson of property is not. (Pen. Code § 667.5, subd. (c)(10).) Appellant wasin his fifties at the time of the incident in 2009. (2 CT 299.) 3 As noted, the Court ofAppealstruck twoofthe three five-year priors under Penal Code section 667(a) that were charged and found true because all three convictions came out of the same case. They are factored in here because the prosecutor would have expected them tobe imposed. 12 B. The Merits 1. Arson to Inhabited Property is a Related Offense to Arson to an Inhabited Structure. When a Conviction is Reversed for Want of Substantial Evidence, a Modified Judgment MayOnly Be EnteredforLesser Included Offenses, Not Related Offenses. Respondent accuses the Court of Appealof failing to affirm the judgment on this new theory for which respondent never argued. (RBOM 13.) Invoking principles ofjudicial estoppel, respondent accuses appellant in advance.ofplaying inappropriate. games by refusing to be convictedof a charge that the prosecution expressly repudiated. Respondentis the one playing a game.It is a game in which only the outcome, not the rules, seems to matter. The rules dictate that a judgment for the related offense of arson to inhabited property may not be entered. In responseto this Court’s question, the jury’s verdict does not establish that appellant committed the related offense of arson to inhabited property. As respondenthas consistently argued and as the Court ofAppealheld, property, along with structures and forest land are the three discrete things that Penal Code section 451 criminalizes the burning of. The jury’s verdict establishes that he burned oneofthese three things, not either of the other two. Assuming without conceding that appellant committed arson, the evidence at trial seems to show that he committed the related offense of arson to inhabited property. It also shows that he committed the related 13 offense of misdemeanor vandalism to Katherine Burley’s property. There maybe others. The judgment may not be modified to reflect a conviction for any of these related offenses. There are two types of“lesser” offenses in the law: lesser included offenses and lesser related offenses. There are twotests for whether an offense is a lesser included offense. “An unchargedoffense is included in a greater chargedoffenseifeither (1) the greater offense, as defined by statute, cannot be committed without also committing the lesser (the elementstest), or (2) the language ofthe accusatory pleading encompassesall the elements of the lesser offense (the accusatory pleadingtest). (People v. Parson (2008) 44 Cal. 4" 332, 349.) A lesser related offense is an offense that, though not necessarily included in the charged offense, “bear[s] some conceptual and evidentiary ‘relationship’ thereto.” (People v. Birks (1998) 19Cal. 4" 108, 112.) The crime of arson of inhabited property under section 451, subdivision (b), is not a lesser included offense within arson of an inhabited structure. This is true because the statutory scheme defining the two offenses expressly providesthat a “structure” and “property”are mutually exclusive. Section 450, subdivision (c), provides: “Property meansreal property or personal property other than a structure or forest land.” (emphasis added.) Thus, under the statutory schemea structureis not a type _ of property, butrather an alternative to property. From this it is apparent 14 that one who commits arson of an inhabitedstructure does not also commit arson of inhabited property. Accordingly, arson of inhabited property is a related offense, not an included offense within arson of an inhabited structure. The fact that both related offenses are set out in Penal Code section 451(b) and have the same punishmentis irrelevant. The crimes of arson to a structure and arson to forest land are both set out in Penal Code section 451(c) and are punished identically. No one would saythata failure to prove one ofthese offenses established proofofthe other. The conclusionthat an offense is a related offense and not an included offense carries important consequences. Thetrial court must instruct sua sponte on lesser-included offenses when the evidenceraises a question whetherall of the elements of the charged offense are present. (People v. Breverman (1998) 19 Cal.4th 142, 154; People v. Elize (1999) 71 Cal.App.4th 605, 615.) It may not instruct sua sponte on lesser related offenses because bringing the greater charge does not give the defendant notice of related offenses consistent with due process. (People v. Birks, supra, 19 Cal. 4" at p. 112.) Ofgreater pertinence here, when ajudgmentis reversed for want of substantial evidence, the reviewing court may enter judgment against the defendant on lesser included offense. (Pen. Code § 1186(6).) It may not enter judgmenton a related offense. (People v. Guion (2013) 213 15 Cal. App. 4" 1426, 1435-1436.) Like arson of property, arson to inhabited property is a related offense to arson of an inhabited structure. Therefore, eventhoughthis offense, like the related offense-ofvandalism in violation of Penal Code section 594, would have been supported by the evidence, this Court may not enterjudgment against appellantonit. Arguing to the contrary, respondent.cites anumberofcases supporting what respondentcalls the doctrine of concession. (RBOM 13- 16.) None ofthesecases is on point. Each case involves circumstances under which an admission orstipulation to an element ofthe charge before the court may be implied from the defendant’s conductor positions taken. Noneofrespondent’s cases stand for theproposition that if a defendant does not dispute evidence thathappens to prove up an unchargedrelated offense, the trial court may enter judgmentonthe related offense or a reviewing court may do so if the charge on which the defendant was convicted is not supported by substantial evidence. 2. Even if This Court Theoretically Could Enter Judgment on Arson to Inhabited Property, Doing so Here Would Deny Appellant Due Process of Law. The Prosecution Had Repudiated Any Intention of Convicting Appellant of that Crime, and Appellant Had Refused a Settlement Offer inReliance on the Fact that this Charge was not in the Case. Respondent argues at length that it is not unfair to enter judgmentagainst appellant on the charge of arson to inhabited property because 1) he did not meaningfully contest at trial either that that the motor 16 home was property or that it was inhabited and 2) he refused certain settlement offers when the charge ofarson to inhabited property was still part of the case. (RBOM 17-26.) This argument misses the mark because there is no equitable exceptionto the rule that, in reversing for want of substantial evidence, an appellate court may not enter judgmentagainst the defendant for a related offense shownby the evidence. It does not matter that the current record suggests that appellant would not have defended a chargeof arsonto inhabited property any differently. It would still be a denial of due processto enterjudgment against him on that uncharged offense. This Court has stated: “It may be very difficult to ascertain from developments which occur during trial whether a defendantis ‘misled to his prejudice’ and ‘preventedfrom preparing an effective defense.’ It may never be known with any confidence after a conviction what defenses might have been asserted had defendant been given adequate and advancenotice of the possible offenses for which he was criminally vulnerable.” (People v. Lohbauer (1980) 29 Cal. 3d 364, 370.) Respondentis also grossly mistaken about the settlement context of this case. Actual prejudice lies in the fact that appellant rejected a settlement offer and wentto trial after the prosecution had abandonedthe chargeofarson to inhabited property, which was its best supported theory of guilt, and had committeditself solely to an ambitious attempted murder charge and an overreaching, ifnot absurd, theory of arsonliability. 17 Respondent’s recitation of the settlement history of this case ignores this final settlementoffer. It also ignores the fact that while appellant rejected settlement offers while the charge of arson to inhabited property wasstill in the case, these offers occurred extremely early in the case, before the preliminary hearing, before the case was a Three Strikes case and immediately after new counsel had been appointed. Nothing about the timing of the making andrejection ofthese extremely early settlement offers demonstrates that appellant was committed to fighting a charge of arson to inhabited property to the bitter end. Defense counsel’s statements at trial prove that this was not the case. “Due process of law requires that an accused be advised of the charges against him in order that he may have a reasonable opportunity to prepare and present his defense and not be taken by surprise by evidence offered at his trial.” (People v. West (1970) 3 Cal.3d 595, 612; In re Hess (1955) 45 Cal.2d 171, 175.) Preparation for trial necessarily includes a defendant’s opportunity to make informed settlement decisionspriortotrial to minimize his exposure. This principle is validated in other contexts as well. A defendant who is misadvised during the settlement stage and turns down a favorable plea bargain mayseek relief for ineffective assistance of counsel if he is convicted even aftera fair trial and receives a harsher sentence. (Lafler v. Cooper (2012) 132 S.Ct. 1376, 1387-1388.) Given the charging andsettlement historyin this case, to enterjudgmentagainst 18 appellant on arson to inhabited property now would be unfair in the extreme and a denial of due process. Il. THE CURRENT CASE MUST BE DISMISSED. THE FILING OF A NEW CASEIS BARRED BY PENAL CODE SECTION 654 AND KELLETT. ANEW PROSECUTION WOULD ALSO SUBJECT APPELLANT TO DOUBLE JEOPARDY. A. Introduction Respondenttakes inconsistent positions on the effect of the charge of arson to property of another having been submitted to the jury as a lesser included offense. For Kellett purposes, respondent argues that because the charge wasin the case, a new prosecution would simply be a continuing prosecution. For Double Jeopardy purposes, however, respondent argues that the charge was neverreally in the caseatall. ‘This Court need not choose betweenlegalfictions. The statutory and decisional law is overwhelmingly against respondent. Respondentfailsto cite a single case that either compels or even comes close to persuading that there is such a thing as an “open charge” of a related offense that can be revisited after the prosecutor declined to charge it and then, when thetrial court instructed on it, ignorantly failed to see it throughto verdict. This Court should hold that a new prosecution alleging arson of property to another is barred both by Kellett and by Double Jeopardy. 19 B. Respondent’s Misleading andIncomplete Assessment of Defense Counsel’s Strategy and the Prosecutor’s Actions. Respondentobservesthat defense counsel did not object to the giving ofthe instruction on arson of property of another. (RBOM 32- 33.) Respondentstates that from the outset, “[a]ppellant’s trial strategies allowed him to rebut the sentence enhancementallegation and admit some level of culpability, which was reasonable underthe circumstances, but argue for the jury to convict him ofthe least offense of recklessly causing a fire of property.” (RBOM 25.) Respondent has mischaracterized the defense strategy. The only reason the arson charge was worth trying was to obtain a complete acquittal on the theory that a motor home was not a building and therefore not a structure as charged and that there were no lesser included offenses to which such a convictionmight be reduced under Penal Code section 1181(6). The crime ofarson to property is a straight felony and would have subjected appellant to a Three Strikes sentence. Every other lesser offense on whichthetrial court instructed, except unlawfulfire to property, wasat least a wobbler, which almost certainly would have beentreated as a felony. (Pen. Code §§ 451, subds. (c)-(d); 452, subds. (b)-(d).) Thus, as the case was ultimately submitted to the jury, to escape a Three Strikes sentence, appellant would have had not only to get the jury to agree that a motor home was nota building, he would also 20 have to get them to agree that notwithstanding all of appellant’s elaborate machinations with the second motor home,he was only guilty of acting recklessly. Going to trial in the belief that appellant had only committed unlawful fire would itselfhave been an act ofrecklessness. Contrary to respondent’s assumptions, defense counsel’s strategy for avoiding a Three Strikes sentence was not enhanced oncethe trial court indicated that it would instruct on arson to property, it was undermined. Defense counsel stated that some of the proposed instructions had surprised him and he would have hadto revise his argument. (2 RT 285-286.) The instructions on unlawful fire generally could not have both surprised him andrequired revision of his closing argument nor could the instruction on an uninhabited structure because the structure issue was already in the case. The only instructions that could have surprised him were the instructions on arson to property of another and unlawfulfire to property of another. Perhaps these instructions surprised him because the burning of Katherine Burley’s property seemed not to have been clearly proved either at the preliminary hearingorat trial. Perhaps they surprised him because he did not believe fire crimes to property to be lesser included offenses to the charged crime becauseofthe additional element that property of another be burned. For whichever reason, he was surprised, and the giving ofthese 21 instructions did not make it easier for appellant to avoid a Three Strikes sentence; it made it harder. Respondent generally assumes that counsel knew that arson to property ofanother was lesser related offense and that he attempted to exploit an unexpected windfall ofinstructional error. Thatmaybe. However,as noted above, defense counsel’s argumentattrial was not a windfall. Rather, it was making the best of a badsituation after the trial court unexpectedly had allowed the issue of whether a motor homeis a building to go to the jury. Respondent understandably downplays the prosecutor’s actions here. However, they bear summarizing. By amending the information, the prosecutorfirst repudiated any interest in a conviction for arson to inhabited property. She never attemptedto reinstate this charge, either as an includedoffense or as a related offense. When the trial court was discussing lesser included offenses and correctly omitted arson to inhabited property, the prosecutor did not request an instruction on that offense. The prosecutordidnot object, as she was entitled to do, to the instruction on the lesser offense of arson to property of another on the theory that it was a related offense, not an included offense.* The prosecutoralsodid not ask that the information be amendedto charge arson * A defendantis not entitled to an instruction on lesser related offenses unless the prosecution consents. (People v. Birks, supra, 19 Cal. 4" at p. 136.) 22 to property of another in addition to the charge before the court. At argument, the prosecutor said absolutely nothing about arson to property of another eventhough she wouldhave understoodit to require a sentenceof 43 yearsto life. Respondentclings to this related offense now,but as far as the prosecutor was concernedat trial, it wasnever in the case. C. The Only Appropriate Appellate Remedyinthis Case Involving a Single Conviction Reversed for Want of Substantial Evidence is Dismissal. The Double Jeopardy Clause ofthe Fifth Amendmentto the United States Constitution bars retrial of a criminal defendant after reversal of his conviction for want of substantial evidence. (People v. Pierce (1979) 24 Cal. 3d 199, 209-10.) Such a reversal is equivalent to an acquittal or a directed verdict of acquittal at trial. (/bid., citing Burks v. United States (1978) 437 US. 1, 10-11, 16.) Amongits permitted remedies after reversing a judgment, a reviewing court in California may order a newtrial. (Pen. Code § 1260.) The general powers set out in section 1260 are subject to specific limitations in other statutes. (People v. Adams (1990) 220 Cal. App. 3d 680, 688.) Adamsheld that the general powerset out in section 1260 of an appellate court to reduce and modify judgments subject to the specific limitation in section 1 181(6) that such modifications may only be to lesser included offenses. (/bid.) Similarly then, the general power to grant a new trial is subject to the specific limitations ofPenal Code section 1180. 23 Section 1180provides that the granting of a newtrial: “places the parties in the same position as ifno trial had been had. All the testimony must be produced anew,and the formerverdict or finding cannotbe usedorreferred to, either in evidence or in argument, or be pleaded in bar of any conviction which might have been had under the accusatory pleading.” (Pen. Code § 1180 [emphasis added].) Undersection 1180, new trials are only granted with respect to charges on which there have been verdicts and findings. In this case, the only charge on whichthere has been a verdict is being reversed for want of substantial evidence. Retrial on that chargeis barred. There is no other charge on which a newtrial may be granted. Because there has been no verdict or finding on the charge of arson to property of another, the appellate remedy of a newtrial to pursue that charge is not appropriate. This case must be dismissed. The Kellett and Double Jeopardy inquiries address whether a new case maybefiled. D. The Merits: A New Prosecution is Barred by Penal Code Section 654 and Kellett. “An accusatory pleading may charge two or more different offenses connected together in their commission, or different statements ofthe same offense or two or more different offenses of the same class of crimes or offenses, under separate counts, and if two or more accusatory pleadings are filed in such cases in the same court, the court may order them to be consolidated. . . . “ (Pen. Code § 954.) 24 “An act or omission that is punishable in different ways by different provisions of law shall be punished underthe provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision. An acquittal or conviction and sentence under any onebars aprosecutionfor the sameact or omission under any other.” (Pen. Code § 654, subd. (a). [emphasis added]) The second sentence of section 654, read in light of the liberal joinder rule of section 954, bars successive prosecutions of transactionally related charges of which the prosecution was or should have been aware during the prior case. (In re Kellett (1966) 63 Cal. 2d 822, 827.) “When,as here, the prosecution is or should be aware ofmore than one offense in which the same act or course of conduct plays a significant part, all such offenses must be prosecuted in a single proceeding unless joinder is prohibited or severance permitted for good cause. Failure to unite all such offenses will result in a bar to subsequent prosecution of any offense omitted if the initial proceedings culminate in either acquittal or conviction and sentence.” ([bid.) For purposes of determining whether a new prosecutionis barred, it does not matter if multiplepunishments would have been permitted under section 654 if the charges had initially been joined. (/d. at p. 825.) “The rule against multiple prosecutions is a procedural safeguard against harassmentandis not necessarily related to the punishmentto be imposed[.] (/bid.) Through section 654 andthe liberal joinder provisions of 25 section 954, “the Legislature has demonstrated its purpose to require joinderofrelated offenses in a single prosecution.” (/d. at p. 826.) The Kellett rule was applied in Sanders v. Superior Court (1999) 76 Cal. App. 4° 609 undercircumstancessimilar to those here. In Sanders, the defendant’s original convictions for ten counts of grand theft were reversed for want of substantial evidence. (/d. at pp. 613, 616.) The prosecution then filed multiple new charges of forgery and presenting false documents. (/d. at p. 612.) The evidence underlying these charges had figured prominently in the grand theft case. (/d. at p. 613.) Thus, the prosecution clearly was aware ofthe basis for the new charges.(/d. at p. 616.) The Court ofAppeal issued a writ barring the new prosecution and ordering the information dismissed. (/d. at p. 617.) A similar result is required here. The reversal for want of substantial evidenceis functionally equivalent to an acquittal. (Burks v. United States (1978) 437 U.S. 1, 16-17; People v. Hatch (2000) 22 Cal. 4 260, 272.) Thus, as in Sanders, the reversal here triggers the application of section 654 and Kellett. The alleged burning of Katherine Burley’s property wastransactionally related to the crime of arson of an inhabited structure | that the prosecutor did charge. The charge of arson to property of another simply involves slightly different consequences of the fire that the defendant was charged with setting. Thus, after this case is reversed and 26 dismissed, the prosecution maynot file a new case charging appellant with arson of property. Noneof respondent’s arguments dictate a contrary result. Respondentfirst purports to distinguish Sanders, arguing that Kellett was violated because the prosecutor’s failure to charge the disputed crimes had madeit “legally impossible” for the jury to convict Sanders ofany ofthose crimes. (RBOM 30-31.) The argument lacks merit. This case is no different from respondent’s characterization of Sanders. The prosecutor’sfailure to recognize that arson to inhabited property was a related offense that belongedin this case, if at all, as a related offense that charged a second crime, also made it legally impossible for the jury to convict appellant of that chargeif it convicted appellant of the greater charged offense. As the prosecutor saw the matter, this charge wasneverin the case. The same Kellett bar would follow if appellant’s conviction for arson to an inhabited structure had been affirmed or had gone unappealed.In that situation, if the prosecutor were to wake up one morning having realized that arson to property of another was a related offense rather than an included offense, section 654 and Kellett would prevent her from filing a new case to chargethat crime in search of a second conviction. 27 Respondent’s other arguments are equally unavailing. Respondentdiscusses People v. Valli (2010) 187 Cal. App. 4" 786 at some length for reasons that are not apparent. (RBOM at 31-32.) Respondent appears to be suggesting either that Ke//ett is not implicated in this case because the charges at issue are not sufficiently related or because prudential concerns about separation of powers and prosecutorial charging discretion should trumpsection 654 and Kellett. Thefirst argumentis not supported by the record here. The second finds no support in Kellett. Indeed, invocations of prosecutorial charging discretion hardly serve respondent’s cause. The prosecutor did not chargethe related offense ofarson to property ofanotherin the first instance. Undersection 654 and Kellett, her discretionary charging decision will be affirmed. Respondent’s consent theory fares no better. Respondent relies on People v. Toro (1989) 47 Cal. 3d 966, 975-975, disapproved on other grounds in People v. Guiuan (1998) 18 Cal. 4" 558, 568, fn.3, and similar cases, which hold or observe that where a defendant requests, agrees to, or does not object to instructions on lesser related offenses at his trial, he may not afterwards complain aboutlack ofnotice if he is convicted ofoneofthose offenses. (RBOM 33-38.) Appellant agrees thatifhe had been convicted ofarson to property ofanother, he could not argue on appeal that he lacked notice ofthe chargeorthat the charge had not been 28 put before the jury. That has nothing to do with a casethat is in the current posture. The consent or acquiescencein the Toro casesis not global consent to be convicted of a related offense in any manner in which the prosecution might elect now or in the future, however often the prosecutor might elect it. If a defendant’s “consent” to be convicted at trial trumpedall other considerations, then a defendant who did not demurto an original charge and was ultimately acquitted could be retried because,afterall, his lack of legal objection to the charge was an eternal consent to allow the prosecution to convict him, notwithstanding Double Jeopardy and however long it took. Nothing in the Toro cases compels such absurdity. Indeed, with the exception of the Orlina case, which will be discussed below, none of the Toro cases has anything to do with the circumstances in which the granting of a newtrialor the filing of a new case is permitted. Nothing in the Toro cases compels the logical leap that a prosecutor may ignorantly and indifferently refuse to request that the jury resolve a charged related offense and then get a second chance on the novel theory that the neglected charge remains “open.” TheOrlina case also does not support the concept ofthe “open” charge that went undecided due to prosecutorial neglect. (RBOM 35-36.) In Orlina v. Superior Court (1999) 73 Cal. App. 4" 258, the 29 defendant requested and received instructions on voluntary manslaughter, a crimethatall parties and thetrial court understood to be a lesser related offense to the charged crime. (/d. at pp. 260-261.) The jury was urged to reach a verdicton it. It acquitted the defendant on the charged crime but deadlocked on the charge ofvoluntary manslaughter. Thetrial court declared a mistrial on that charge. (/d. at p. 260.) Atissue in Orlina was whetherretrial of the lesser related offense was permitted underthe rationale ofStone v. Superior Court (1982) 31 Cal. 3d 503. Ud. at pp. 262-263.) Stone had held that when the jury acquits a defendantof a greater offense but deadlocks on a lesser included offense on whichit had beeninstructed, resulting in a mistrial, retrial of the lesser included offense does not offend California law or Double Jeopardy principles. (Stone v. Superior Court, supra, 31 Cal. 3d at pp. 517, 522.) Orlina held thatretrial of the lesser related offense was permitted. Though it had not been initially charged, the lesser related offense becamepart of the case, the jury had deadlockedonit, and a mistrial had been declared. Retrial, therefore, was permitted. (Orlina v. Superior Court, supra, 73 Cal. App. 4"at pp. 262-264.) Orlina provides no support for retrying or recharging an “open charge” that went neglectedat trial. The outcome in Orlina was grounded in Penal Codesection 1160, which providesin pertinentpart, 30 “Where two or more offenses are charged in any accusatory pleading,ifthe jury cannot agree upona verdictas to all of them, they may rendera verdict as to the charge or charges upon which they do agree, and the charges on which they do not agree maybetried again.” The decision in Orlina took Stone’s interpretation of section 1160 full circle. In Stone, this Court noted that section 1160 provides that the jury may renderverdicts on the counts on whichit agrees and that the counts on whichit is deadlocked mayberetried. (Stone v. Superior Court, supra, 31 Cal. 3d at p. 517.) The novelty in Stone was extendingthis rule to lesser included offenses on which the jury was deadlocked notwithstanding Penal Code section 1023, which provides that an acquittal of a greater offense is a bar to a subsequent prosecution for a lesser included offense. (Id. at pp. 520-522.) At the end ofthe day, Orlinais a straightforward application of Penal Code section 1160 because lesser related offenses are nothing more than non-included charges. Section 1160 does not apply in appellant’s case because there was no deadlock on arson of property. The statutory languageisclear.It has nothing to do with open or forgotten charges. It authorizes rendition of a partial verdict andretrial on charges on which the jury is deadlocked.It does not authorizeretrial or the filing of a new case on charges that, due to 31 prosecutorial ignorance and neglect, the jury never considered. Respondent has cited neither statute nor case law that does. E. Had the Trial Court Not Erred by Denying Appellant’s Motion for Acquittal, the Charge of Arson to Property of Another Never Would Have Appeared in the Case, andit Would be Undisputed that Refiling was Barred by Kellett. A section ofrespondent’s brief is entitled “Appellant’s Trial Strategy Depended Uponthe Jury’s Consideration of the Lesser Offense.” (RBOM 38-39.) Respondent’s focus is too narrow. As shown earlier, the lesser related offense instruction on unlawfulfire to property of another- as opposed to arson to property of another-only becameusefulafter the trial court denied appellant’s motion to acquit on the charge of arson to an inhabited structure. Respondentfails to appreciate the significance of the trial court’s error. A motion for acquittal under Penal Code section 1118.1 should be granted when “the evidence then before the court is insufficient to sustain a conviction of such offense or offenses on appeal.” The Court of Appeal’s reversal of appellant’s conviction for arson to an inhabited structure on substantial evidence groundsestablishes that the trial court should have granted appellant’s motion for acquittal on that charge under Penal Codesection 1118.1.° ° Respondent may argue that the defendantin Orlina was acquitted of the charged greater offense. The situations are not identical. There is a 32 Had that happened, one oftwo things would have followed. Either the trial court would have entered judgment for appellant on the arson count, or it would have substituted one or more chargesoflesser included offenses that were supported by the evidence. (People v. Powell (2010) 181 Cal. App. 4" 304, 311.) There was, however, no such charge to be substituted. Fire crimes to property are not lesser included offenses, and fire crimes to uninhabited structures would have lacked evidentiary support because a motor homeis not a building. Any motion at that stage to amend the information to add related offenses would have been objectionable on notice groundsin light of the charging and settlement history ofthe case. Therefore, if the trial court had properly granted the motion for acquittal, the arson prosecution would have endedright there. Thefiling of a new case charging related arson offenses would then have been barred by Kellett. The currentsituation may lack this clarity, butit is functionally the same. To the extent it appears otherwise, the fault lies with the trial court, not appellant or his counsel. difference between a jury verdict of acquittal and ajudgmentof acquittal as a matter of law under Penal Code section 1118.1. 33 F. Penal Code Section 1164 Has Nothing to Do With This Case. Respondent argues that because appellant did not object to the discharge of the jury without reaching a verdict on the charge of arson to property of another, he has forfeited any claim of error under Penal Code section 1164.° (RBOM 40-44.) Because appellant has made noclaim under section 1164, he has forfeited nothing. Section 1164 does not applyto this case. Penal Code section 1164 provides in pertinentpart: “Nojury shall be discharged until the court has verified on the record that the jury has either reached a verdict or has formally declaredits inability to reach a verdict on all issues before it, including, but not limited to, the degree of the crime or crimes charged, and the truth of any alleged prior conviction whetherin the same proceedingor in a bifurcated proceeding.” (Pen. Code § 1164, subd.(b).) The duties laid out in this subsection complementthe statutory commands set out in Penal Code sections 1025 and 1157. The former requires that prior conviction allegations be tried to the jury that tried the question of guilt. (Pen. Code § 1025, subd. (b).) The latter provides that if the jury fails to specify the degree of a conviction, judgment shall be entered for the crimeofthe lesser degree. (Pen. Code § 1157.) ° In making this argument, respondent once again relegates the prosecutor to the role of potted plant with no apparent responsibility to comprehend the legal nuancesofthe People’s case orsee it responsibly through to completion. 34 Section 1164 was not violated here. The jury resolvedall the issues that it was instructed to resolve. Unlike in People v Saunders (1993) 5 Cal. 4" 580, which respondentdiscusses at length, (RBOM 41-42,) the trial court did not discharge the jury and then empanel a newjury to decide prior conviction allegations or other unresolved charges while appellantsat silently waiting to sandbag the opposition on appeal. Appellant has no claim of error under section 1164. There was nothing for him to forfeit. Respondent seemsto be arguing that because appellant did not clarify that arson to property of another wasa related offense and demandthat the jury convict him ofthat also before it was discharged, he has by analogy forfeited any right to object to this Court allowing the prosecutorto file a new case. (RBOM 42-43.) This argumentis meritless for several reasons. Neither section 1164 nor Saunders dictates what the remedy is when a case is reversed for want of substantial evidence. Neither says anything about Kellett. Saunders does, however, confirm that its holding that an objection is required to preserve claims under section 1164 does not extend to Double Jeopardy claims. (People v. Saunders, supra, 5 Cal. 4" at p. 589, fn. 5.) Saunders also confirms that respondent’s analogy is unwarranted. The case involved a confused back and forth discussion about whether the defendant would waive jury trial in bifurcated proceedings on 35 his prior convictions. Perhaps unintentionally, the defendantlet thetrial jury be discharged, and a secondjury was convenedto try the prior convictions. (/d. at pp. 586-587.) In affirming, this Court respondedto the dissent’s concern that its holding required defendants to help prosecutors convict them. “[O]ur conclusion does not require the defense to remind the prosecution to presentits evidence in a timely manner, but merely requires the defense to object to the discharge of the jury in the event it wishes to assert its statutory right to have the samejury that found defendant guilty also determinethe truth of the prior conviction allegations.” (/d. at p. 591, fn. 7.) Section 1164 has nothing to say aboutthis case. G. Because the Jury Was DischargedWithout Reachinga Verdict on Arson to Property of Another, a New Trial is Also Barred by Double Jeopardy. The Double Jeopardy clause of the Fifth Amendmentto the United States Constitution provides, “nor shall any person be subject for the same offense to be twice put in jeopardy oflife or limb[.]” Jeopardy attaches in a case whenthe jury is sworn. (Martinez v. Illinois (2014) 134 S.Ct. 2070, 2075; United States v Martin Linen Supply Co. (1977) 430 U.S. 564, 569; Downum v. United States (1963) 372 U.S. 734, 737.) Here, a jury was sworn, and the charge of arson to property of another was submitted to it. Jeopardy clearly attached as to that charge. 36 Whenjeopardy has attached, and the jury is discharged without reaching a verdict, retrial is barred by the Double Jeopardy clause unless there is a “manifest necessity”or “legal necessity” for the discharge. (United States v. Perez (1824) 22 U.S. 579, 580; Stone v. Superior Court (1982) 31 Cal.3d 503, 516; People v. Sullivan (2013) 217 Cal. App. 4 242, 246.) The typical scenario constituting a manifest necessity is the mistrial situation where the jury has been unable to agree on a verdict. (Downum v. United States, supra, 372 U.S.at p. 736.) The existence of a mistrial or other legal necessity is critical. If the trial court simply fails to receive a - verdict on certain charges after deliberations are complete,retrial is barred. . (Stone v. Superior Court, supra, 31 Cal. 3d at p. 517; People v. Sullivan, supra, 217 Cal. App. 4"at p. 246.) Respondent argues that by not objecting to the instruction on arson to property of another, appellant consented to resolution of the charge either by conviction or acquittal, no matter how long it might take. (RBOM 48.) As observed before, appellant also “consented” to be convicted of arson to an inhabited structure by not demurring to the charge. That does not mean he waivedthe protections ofthe Double Jeopardy Clause. Respondent’s theory that the Double Jeopardy protections are not triggered unless there has been a conviction or an acquittal is incorrect. In Downum,the trial court discharged the jury because the prosecution had been unable to proceed and had not sought a continuance. The Supreme 37 Court held that this barred retrial and that the defendant’s conviction by a new jury was unconstitutional. (Downum v. United States, supra, 372 U.S. at pp. 737-738.) In Sullivan,the trial court had refused to accept a verdict on a robbery charge because the jury had declared itselfhopelessly deadlocked on a great bodily injury enhancement. (People v. Sullivan, supra, 217 Cal. App. 4" at pp. 244-245.) In addressing arguments of ineffective assistance of counsel, the Court held that the subsequent robbery prosecution should have been barred by Double Jeopardy. Becausethetrial court should have accepted the verdict on the robbery charge and declared a mistrial on the enhancement, there was no legal necessity for the mistrial. (Id. at pp. 246-247.) Mostrecently, in Martinez, the U.S. Supreme Court held that the granting of a directed verdict of acquittal after the prosecution was unwilling to participate in the trial barred further prosecution. (Martinez v. Illinois, supra, 134 S.Ct. at pp. 2076-2077.) Although Martinez involved an acquittal, which is a resolution on the merits, an acquittal is not necessary to bar retrial following an unjustified discharge of the jury. Downum and Sullivan, which did not involve acquittals in connection with the discharge of the jury, establish this. Citing Downum, Martinez observedthat even if the jury had been discharged pursuant to an order of dismissal or mistrial, Double Jeopardy probably would also bar retrial. (Jd. at p. 2076, fn. 4.) 38 Here, appellant was placed in jeopardy on the charge of arson to property of another. The jury did not return a verdict onit. Thetrial court did not declare a mistrial on it. The prosecutor never argued for a conviction on that charge in addition to a conviction on the charge of arson to an inhabited structure. Thus, no manifest or legal necessity permits retrial of that charge. Respondent arguesthat retrial is permitted because by not objecting to the instructions and the outcome, appellant “consented”to discharge of the jury without its having returned a verdict on arson to property of another. (RBOM 49-50.) The argumentis meritless. It is worth noting that respondentfails to posit a coherent alternative scenario. The trial court was obligated to instruct on lesser included offenses it believed to be supported by the evidence. (People v. Breverman (1998) 19 Cal.4th 142, 154.) If, while the prosecutor presumably said nothing, appellant had objected that arson to property of another wasa related offense and been overruled, this case would be in the exact same posture except that respondent would be heaping more blameonthetrial court. If appellant had succeededin getting the charge out of the case, jeopardy might not have attachedto it, but the Kellett bar would be unmistakable. The consent argumentis also legally unsound. The defendants in Martinez, Downum and Sullivan all consented to the termination of their respective cases. None of these cases hold that a defendant must request to 39 be prosecuted further to obtain the benefits of the Double Jeopardy Clause. The fact thatthe trial court may have made a mistakeof law here is also irrelevant and did not impose a duty on appellant to object. (See, ¢.g., Evans v. Michigan (2013) 133 S.Ct. 1069, 1075-1076; Fong Foov. United States (1962) 369 U.S. 141, 143.) This Court has squarely rejected the view that defendants forfeit Double Jeopardy protections in cases suchas this by failing to weakentheir position by objecting. As respondent acknowledges, (RBOM 46-48,) if the prosecution wants to avoid the consequence of a Double Jeopardy bar, the prosecutorbears the burden of objecting to an incomplete verdict at trial, a burden that encompasses making informed choices to maximize whatthe prosecution hopesto get out of the case. (People v. Fields(1996) 13 Cal. 4" 289, 311.) Respondent suggeststhis obligation only applies in cases involving lesser included offenses, not lesser related offenses, but the posited distinction makes no sense. (RBOM 48.) The prosecution must know the law andits case. This Court was even more adamanton the subject in the earlier case ofPeople v. Marks (1991) 1 Cal. 4" 56. In Marks, the defendant’s murder conviction was deemedto be second degree murder by operation of Penal Codesection 1157 becausethefirst jury had not specified the degree of the murder. The second degree murder conviction was reversed on appeal. This Court held that Double Jeopardy barred the 40 state from retrying the defendantforfirst degree murder. (/d. at pp. 71, 74- 76.) Pertinent here, this Court held specifically that the defendant had not forfeited Double Jeopardy protections by failing to remindthetrial court that the jury had not specified the degree of his murder conviction.(/d. at p. 77, fn. 20.) It observed generally that whena trial court proposes to discharge a jury without legal necessity, the defendant has no duty to object to the discharge. (/bid.) None of respondent’s California case law dictates a contrary result. The case ofJn re Colford (1924) 68 Cal. App. 308 (RBOM 50) held that when the jury fails to fix the degree of a robbery conviction, the verdict is void and the defendant mayberetried to determine the degree ofhis offense without offending Double Jeopardy principles. (/d. at p. 311.) Colford treated the jury’s mistake as a speciesoftrial error, to which the defendant was obligated to object if he wanted to preserve his Double Jeopardy protections. (/bid.) The case is outdated, not on point and contradicted by this Court’s opinion in Marks. The verdict and judgmentin appellant’s case were not void for uncertainty. Further, Colford was decided well before the 1949 amendmentto Penal Code section 1157 added the sentence providing that the failure to fix the degree of the conviction requires entry ofjudgmentfor the crime of the lowest degree.It is reasonable to think this enactment was promptedat least in part by Double Jeopardy concerns. Finally, this Court 41 madeit clear in Marks that the defendant’s silence in such situations is not a waiver of Double Jeopardy protections. Rather, it is the prosecution’s responsibility to get the maximum value outof its case the first time around. Respondentalso relied on People v. Ham Tong (1909) 155 Cal. 579. (RBOM 48-49.) In addition to not being on point, that case, like Colford, has been rendered outdated by legislation that calls into question its conclusions about Double Jeopardy. It does not support respondent’s position. Respondent’s recitation of the procedural posture ofHam Tong is incorrect. Respondentstates that “the trial court erroneously determinedthe information charged robbery, whenit actually charged larceny.” (RBOM 48.) While Ham Tong’s procedural summary is not a modelofclarity, the case did not involve a formal pleading of larceny that was allowed to languish without meaningfully being set before the jury as respondent characterizes the charge of arson to property of anotherhere. According to Ham Tong, the posture there was identical to that in a Court of Appeal case, People v. Ho Sing (1907) 6 Cal. App. 752, which apparently involved a co-defendant. (People v. Ham Tong, supra, 155 Cal. at. p. 180.) Ho Sing makesit clear that the information in the case charged robbery and only robbery. The defendant was convicted ofthat offense. (People v. Ho Sing, supra, 6 Cal. App. at p. 752.) The pleading 42 was legally insufficient to charge robbery but wouid havesufficed to plead larceny ifthat charge had been brought. (People v. Ho Sing, supra, 6 Cal. App.at pp. 753-754.) Ham Tong disagreed with Ho Sing’s holding that Double Jeopardy barred a newtrial on the larceny charge, deeming such a result unfair to the prosecution. (People v. Ham Tong, supra, 155 Cal. at p. 584-585.) Assuming Ham Tong wascorrect, it is distinguishable. Unlike the charge of arson to property here, the charge of larceny was never formally pled or submitted to the jury, which means jeopardy would not have attached on it. Ham Tong does not support respondent’s view that the prosecutor can bring a charge into a case, have jeopardy attach onit, neglect to see it through to a verdict and then get a second chance. A case like Ham Tong could neverarise today. A judgment of conviction would not be overturned on the grounds that the trial court erred in overruling a demurrer alleging that a charge did not state a public offense. (Pen. Code § 1004(4).) Review of such trial court action is typically by petition for writ ofmandamus.(See, e.g., Robert L. v. Superior Court (2003) 30 Cal. 4 894, 898.) This is appropriate because when a demurreris sustained, the prosecution is allowed to amendits pleading. (Pen. Code § 1007.) In this way, a case like Ham Tong would wind up properly charged andtried. 43 Additionally, Ham Tong was decidedprior to the 1927 amendments to Penal Code section 1181(6) that authorized reduction of a conviction not supported by substantial evidenceto a lesser included offense. Theft is a lesser included offense to robbery. (People v. Reeves (2001) 91 Cal. App. 4" 14, 51.) Today, if a defendant argued on appeal that his demurrer to robbery should have beensustained, the reviewing court would hold that the issue was not appealable. If the defendant also made a substantial evidence argument, and if the evidence introduced actually did not prove up a robbery,it would reduce the conviction to theft, thereby obviating any Double Jeopardy problems. Ham Tong does not support the remedy respondent seeks. | Higgins v. Superior Court In and For Los Angeles County (1960) 185 Cal. App. 2d 37, 42 is also not on point. (RBOM 50.)In Higgins, the defendant was charged with robbery. Without objection, the trial court instructed on assault by meanslikely to produce great bodily injury, apparently believing it to be a lesser included offense. The defendant wasconvicted ofthat charge and was ultimately granted a newtrial onit. The Court ofAppealheld, correctly given current case law, but for reasons that do not seem clear, that the defendant could beretried on that offense without offending Double Jeopardy. (/d. at pp. 38-39.) Atleast in its result, Higgins is unremarkable in that it seems to foreshadow Toro.If a defendant, believing an offense to be an included 44 offense, does not object to instructions on whatis actually a lesser related offense, he may not complain whenheis convicted ofthat crime. As with any conviction, the defendant may have it overturnedfortrial error and get a new trial without offending Double Jeopardy. That is not this case. Respondentcites Higgins for the same waiver point that Colford was cited: a defendant’s failure to object to a defective verdict waives Double Jeopardy protections. (RBOM 50.) The defectin the two cases wasdifferent. In Higgins, the waiver was alongthelines ofthat in Toro: not objecting to instructions on the charge on which the defendant was ultimately convicted. Again, that is not this case. Also again, appellant’s general view that a defendant must object in some unspecified wayat the conclusionofhis case to preserve Double Jeopardy protections is contradicted by Marks and Fields. Respondentcites People v. Garcia (1984)36 Cal. 3d 539, 558 fn. 13 and People v. Shirley (1982) 31 Cal. 3d 18, 71. BOM 50-51.) Both citations suffer from the same flaw. Respondent suggests that the cases stand for the proposition that“trial error does not trigger application of the rule against double jeopardy.” (RBOM 50.) This abstract proposition does not derive from either case or apply to appellant’s case. Asrespondentnotes, in Garcia, this Court orderedretrial of a special circumstancefor instructionalerror, noting in passing that the proof that the prosecution had introducedattrial on the issue “may be 45 insufficient.” (People v. Garcia, supra, 36 Cal. 3d at p. 558, fn. 13.) This Court did not, however, hold that the proof wasinsufficient, which clearly would havebarredretrial. In the same vein, this Court held in Shirley that the admission of the only evidence on an issue was contrary to law. Rather than reverse on substantial evidence grounds, it ordered retrial. (People v. Shirley, supra, 31 Cal. 3dat p. 71.) Nothing relevant to appellant’s case happened in Garcia or Shirley. This Court granted newtrials on issues as a remedyfortrial court error. Neither case supports respondent’s position that the unjustified dischargeofthe jury without reaching a verdict on a chargeis just another speciesoftrial error. This view is contradicted by the U.S. Supreme Court’s decisions in Downum and Martinez. Respondent focuses on the fact that the jury was instructed not to render a verdict on arson to property of anotherif it convicted appellant of arson to an inhabited structure. (RBOM 50.) This is essentially an argument that Double Jeopardy is not offended because, practically speaking, appellant was notat “risk of conviction.” Martinez explicitly rejected such an argument. “The Illinois Supreme Court’s error was consequential, for it introduced confusion into what wehaveconsistently treatedas a bright- line rule: A jury trial begins, and jeopardy attaches, when the jury is sworn. We have never suggested the exception perceived by the Iilinois Supreme Court-that jeopardy may not 46 have attached where, underthe circumstances of a particular case, the defendant was not genuinely at risk of conviction. Martinez was subjected to jeopardy because the jury in his case was sworn.” (Martinez v. Illinois, supra, 134 S.Ct. at p. 2075.) The Court then rejected Illinois’s related argument that because the defendant was never meaningfully at risk of conviction, the disposition of the case was ofno consequence for Double Jeopardy purposes. (Jd. at pp. 2076-2077.) Here, too, respondent inappropriately attempts to absolve the prosecutor of any responsibility for what occurred. Respondent suggests that the “true nature” of the charge of arson of property was “overlooked.” (RBOM50.) Respondent is much more forgiving here than in cases where defense counsel has overlooked something. Such oversights are usually condemnedas waiver, forfeiture and even invited error. Respondent distinguishes this case from Downum and Martinez, noting that this was not a case wherethe prosecutor proceeded without having her witnesses and evidence ready. (RBOM 51.) That is true. The prosecutor’s sin here was different; it was not knowingor, perhaps, not caring to know,the applicable law and the maximum value ofthe prosecution’s case. Double Jeopardy jurisprudenceis not forgiving of prosecutorial sloppiness. In Martinez, the Court stated, “On the day oftrial, the court was acutely aware ofthe significance of swearing a jury.It 47 repeatedly delayed that act to give the State additional timeto find its witnesses. It had previously granted the State a number of continuancesfor the same purpose. See supra at ___, 188 L. Ed. 2d, at 1114. And,critically, the court told the State on the day oftrial thatit could ‘move to dismiss[its] case’ before the jury was sworn.Tr. 3. Had the State accepted that invitation, the Double Jeopardy Clause would not have barredit from recharging Martinez. Instead, the State participated in the selection ofjurors and did not ask for dismissal before the jury was sworn. When the State declined to dismissits case, it “took a chance[,] ... enter[ing] upon thetrial ofthe case without sufficient evidence to convict.”” Downum v. United States, 372 U.S. 734, 737, 83 S. Ct. 1033, 10 L. Ed. 2d 100 (1963). Here, the State knew, or should have known, that an acquittal foreverbars the retrial of the defendant whenit occurs after jeopardy has attached.” (Martinez v. Illinois, supra, 134 S.Ct. at pp. 2076-2077.) This Court in Fields puts the burden of ensuring desired convictions on the prosecution. It was even more emphatic in Marks. “We perceive no unfairness to the People in our holding. The prosecution is not deprivedofits ‘one complete opportunity to convict those who have violated [the] laws.’ Whenthe verdictis ‘deemedofthe lesser degree’ by operation of law, the prosecution bearsat least partial responsibility. The consequencesofan irregular verdict are well settled, and nothing precludes the prosecution from calling the deficiency to the court's attention beforeit discharges the panel. (See § 1161-1164.) Since any failure to do so results from neglect rather than lack of notice and opportunity to be heard, the People's right to due process is accordingly not offended. The United States Supreme Court has repeatedly counseled against subjecting a 48 defendant to further proceedingsto allow the prosecution the opportunity to ameliorate trial deficiencies, evidentiary or procedural, that could have been otherwise timely corrected.” (People v. Marks, supra, 1 Cal. 4" at p. 77 [citations and footnotes omitted].) Asin Marks,if the prosecutor wanted to obtain or preservethe ability to obtain a conviction for arson to property of another in the eventofreversal, it was her burdento do so. While, as respondent notes, Double Jeopardy cases do speak of concern with harassment and oppressive practices, controlling cases such as Martinez and Downum establishthatthe rule is really quite mechanical. Where the Double Jeopardy clause applies, “its sweep is absolute. There are no ‘equities’ to be balanced, for the Clause has declared a constitutional policy, based on grounds which are not open to judicial examination.” (Burks v. United States (1978) 437 U.S. 1, 11, fn. 6.) In many cases, a secondtrial might not look like harassment with a capital H, but for constitutional purposes,it is still harassment, andit is still forbidden. The Court in Martinez deemedthe Illinois Supreme Court’s attempt to find a way aroundthe constitutional bar “understandable, given the significant consequenceofthe State’s mistake, but it runs directly counter to our precedents and to the protection conferred by the Double Jeopardy Clause.” (Martinez v. Illinois, supra, 134 S.Ct. at p. 2077.) The same mustbe said here. 49 CONCLUSION For the foregoing reasons, this Court should affirm the Court of Appeal’s judgment reversing appellant’s conviction and sentence.It should order this case dismissed and hold thatthe filing of a new case charging arson to property of another or any othertransactionally related offense is barred. Dated: November 17, 2014 LUAY Steven S. Lubliner P.O. Box 750639 Petaluma, CA 94975 Phone: (707) 789-0516 e-mail: sslubliner@comcast.net 50 CERTIFICATION Pursuant to Rule 8.520(c)(1) of the California Rules of Court, I hereby certify that the foregoing answerto a petition for review is producedin a proportional font (Times New Roman)of 13 point type and utilizes doubleline spacing, except.in footnotes and extended quotations. which are single-spaced. Ifurther certify that; according to the word count ofthe wordprocessing system usedto prepare thebrief, the brief includes 12,055 words (exclusive of the table of contents, the table of authorities, the proofofservice andthis certificate). Dated: November 17, 2014 SES CE. STEVEN S. LUBLINER - Attorney for Appellant Richard James Goolsby PROOF OF SERVICE BY MAIL (Cal. Rules of Court, rules 1.21, 8.50) Re: People v. Richard Goolsby, Case No. S216648 I, the undersigned, declare that I am over 18 years of age and am not a party to the within cause. My business address is P.O. Box 750639, Petaluma, CA 94975. I served a true copy ofthe attached ANSWERINGBRIEF ON THE MERITS on each ofthe following, by placing samein an envelope(s) addressed as follows: Hon.Bryan F. Foster Richard Goolsby San Bernardino Cty. Sup. Ct. [appellant] 351 N. Arrowhead Drive San Bernardino, CA 92415 Karen Khim, Esq. Richard L. Farquhar, Esq. Office of the District Attorney Suite 101B 316 N. Mountain View Avenue 1200 NevadaStreet San Bernardino, CA 92415 Redlands, CA 92374 Office of the Clerk California Court of Appeal 3389 Twelfth Street Riverside, CA 92501 I then sealed each envelope and, with the postage thereon fully prepaid, I placed each for deposit in the United States Postal Service this same day at my business address shown above, following ordinary business practices. PROOF OF SERVICE BY ELECTRONIC SERVICE (Cal. Rules of Court, rules 2.251(i)(1)(A)-(D) & 8.71(£)(1)(A)-(D) Furthermore, I, Steven S. Lubliner, declare I electronically served from myelectronic service address of sslubliner@comcast.net the same referenced above document(s) on November 17, 2014 at 1:00 p.m.to the following entities: Felicity Senoski, Esq., Office of the Attorney General (Respondent) ADIEService@doj.ca.gov Neil Auwarter, Esq., Appellate Defenders, Inc. eservice-criminal@adi-sandiego.com I further declare that I have filed an electronic submission of this documentin this Court at the web address of ww.courts.ca.gov/24590.htm. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on November 17, 2014 at Petaluma, California. SELL.