PEOPLE v. GOOLSBY

Respondent’s Reply to Answer to Petition for Review

Cal.March 24, 2014

Inu the Supreme Court of the State of California THE PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff& Respondent, v. RICHARD GOOLSBY, Defendant & Appellant. Case No. 8216648 SUPREME COURT rILED MAR 24 2014 Frank A. McGuire Clerk Deputy Fourth Appellate District, Division Two, Case No. E052297 San Bernardino County Superior Court, Case No. FSB905099 The Honorable BRYAN F. FOSTER,Judge REPLY TO APPELLANT’S ANSWER TO PETITION FOR REVIEW KAMALA D. HARRIS Attorney General of California DANE R. GILLETTE Chief Assistant Attorney General JULIE L. GARLAND Senior Assistant Attorney General STEVEN T. OETTING Deputy Solicitor General FELICITY SENOSKI Deputy Attorney General State Bar No. 195181 110 West A Street, Suite 1100 San Diego, CA 92101 P.O. Box 85266 San Diego, CA 92186-5266 Telephone: (619) 645-2607 Fax: (619) 645-2271 Email: Felicity.Senoski@doj.ca.gov Attorneysfor Respondent TABLE OF CONTENTS Page Reply to Appellant’s Answer to Petition for REVICW .........cseseseteeeeeetenees 1 COMCIUSION ........ccsccesrscsesscceeteceaceeseeecsaeecenseecnsdseadeasesesecseseseanenessesearesseeesaseees 6 TABLE OF AUTHORITIES Page CASES Downum v. United States (1963) 372 U.S. 734 [83 S.Ct. 1033, 10 L.Ed.2d 100]...eens 4 Fong Foo v. United States (1962) 369 U.S. 141 [82 S.Ct. 671, 7 L-Ed.2d 629] ooo ceceeeeeceees 4 Kellett v. Superior Court (1966) 63 Cal.2d 822 (Kellett)... ceccccceccscssssseeeseeseteeneneseaesenes 1, 2, 3,5 Ohio v. Johnson . (1984) 467 U.S. 493 [104 S.Ct. 2536, 81 L.Ed.2d 425]...eee5 People v. Birks (1998) 19 Cal.4th 108oeccesseresesscssessssessssesessseesseneressseeseseneeciees 3 People v. Guiuan (1998) 18 Cal.4th 558occsseceesessececssessseesenesssessenessenensaseseeteeneenenes 2 People v. Ramirez | (1987) 189 Cal.App.3d 603cccscesscsseeseeneeseseeneessnensaseeeeeeneey 2,3 People v. Russo (2001) 25 Cal.4th L124cececesesnssesesesssnesssesenseessssseseesererenenenens 2 People v. Sullivan (2013) 217 Cal.App.4th 242ccssseesssesersseseesseenesenesessseeserseenseseees 4 People v. Toro (1989) 47 Cal.3d 966 (TOr0)...ccceesesscsesessessesesescesessseasssenssenentenees 2,3 Richardson v. United States (1984) 468 U.S. 317 [104 S.Ct. 3081, 82 L.Ed.2d 242]........ Nessesesssreraee 3 Stone v. Superior Court (1982) 31 Cal.3d 503eeecceeeecsssescseseecesensssssenssessseneessessnensesetenensages 5 United States v. Perez - (1824) 22 U.S. 579 [9 Wheat. 579, 6 L.Ed. 165] (Perez) 0... 3,4 ii Wade v. Hunter (1949) 336 U.S. 684 [69 S.Ct. 834, 93 L.Ed. 974] oo.eeeeee 3,4, 5 CouRT RULES California Rulesof Court Rule 8.500(a) .......cccecccecccesseneeteessecceeceseeesecescesssusnseseuseeersesestecsssssnessseeseaesnees 5 ili REPLY TO APPELLANT’S ANSWER TO PETITION FOR REVIEW TO THE HONORABLE TANI CANTIL-SAKAUYE, CHIEF JUSTICE, AND TO THE HONORABLE ASSOCIATE JUSTICES OF THE CALIFORNIA SUPREME COURT: Review should grantedin this case to settle the question of whether retrial is barred when a defendant impliedly consents to add lesser related count to the charge against him, but the jury fails to return a verdict on that count by reason ofinstructional error. In his answer, appellant claims that retrial is barred because, notwithstanding the implicitly amended charge, the prosecutor did notoriginally charge the lesser offense anddid notinsist a verdict be returned on it. He relies on this Court’s opinion in Kellett v. Superior Court (1966) 63 Cal.2d 822 (Kellett), and in doing so, sets up an unprecedented expansion ofthis Court’s rule in that case. Appellant’s answerunderscoresthe need for review in this case; it is for this Court to ultimately decide the parametersofits case authority. In short, because this case does not raise the concerns expressed by this Court in Kellett related to successive prosecutions it should not preventretrial. Additionally, the nature of the error that occurredattrial neither prevents retrial, nor offends constitutional principles of double jeopardy. In his answer, appellant contends that the Court of Appeal majority wascorrect in holding that Ke/lett barsretrial of the lesser related offense of arson of property in this case because the prosecutor was awareof the facts that gaverise to the offense, but did not charge it. He further contends that retrial is barred by Kellett because the prosecutorfailed to obtain a verdict on that offense. (Ans. at pp. 11-15.) Appellant concedes, as he must, that the arson ofproperty count was added to the charge by jury instruction. (Ans. at p. 7.) A defendant consents to a conviction of an uncharged lesser count when he requests or acquiesces in an instruction on the lesser count or urges conviction on the lesser. (People v. Toro (1989) 47 Cal.3d 966, 976 (Toro), disapproved on another ground in People v. Guiuan (1998) 18 Cal.4th 558, 568, fn. 3; People v. Ramirez (1987) 189 Cal.App.3d 603, 623, disapproved on another point in People v. Russo (2001) 25 Cal.4th 1124, 1137.) Appellant impliedly agreed to an instruction on a lesser offense and urgedthat the jury convict him ofa lesser offense. (2 RT 285, 354-356, 358, 368-369.) In keeping with the majority’s opinion, appellant nevertheless claims that because the prosecutor did not initially charge the lesser related offense, application ofthe rule in Kellett is warranted. His claim mustbe rejected. Therule of Kellett relates to barring new and separate prosecutions of offenses that were never before considered by a jury, but are based on the sameact or conduct for which an earlier prosecution failed. The concern articulated by this Court in Kellett - unreasonable harassment - is not present in a case where the charge was before the jury in the original prosecution, as it was here. (Kellett, supra, 63 Cal.2d at p. 827.) Nordoesthe rule in Kellett require a prosecutorto insist upon a verdict. (Ans. at 14.) Appellant would make this a requirement under Kellett for his self-serving purpose of avoiding retrial because the jury did not return a verdict on the arson of property count. An instructional error occurred that mischaracterized the arson of property countas a lesser included offense. This instructional error rendered the arson of property count unresolved when the jury convicted appellant of the greater count. Regardlessofthis error, appellant refers to the unresolved count as a product of “the prosecutor’s neglect” and ignorance. (Ans.at p. 8.) Appellant’s characterization aside, as previously discussed, this Court’s decision in Kellett is concerned with preventing the prosecution of a new and separate charge based on the same facts as a prior prosecution. Stated differently, Kellett is not concerned with preventingretrial of a count because the jury was misinstructed on that countandleft it unresolved. Appellant’s protestations to the contrary, the unresolved count remains open for retrial by reason ofthe instructional error. Kellett cannot be read to encompassordinary trial error. In short, the Ke//ett case does not apply to prevent resolution of the arson of property count. It is significant that appellant consented by tacit agreementto the lesser count. (People v. Birks (1998) 19 Cal.4th 108, 136, fn. 19; Toro, supra, 47 Cal.3d at p. 976-977; People v. Ramirez, supra, 189 Cal.App.3d at p. 623.) Appellant’s tactical reasons for placing himself in jeopardy of the lesser count are clear-he could have escaped not only the multiple structure enhancement, but potentially the Three Strikes sentence to which he was ultimately sentenced. More importantly, in agreeing he could be convicted ofthe lesser related offense of arson of property, appellant entered into a concomitant agreementthat the jury would resolve the count, either by conviction or acquittal. Appellant’s agreement does not carry any less force or validity because an instructional error occurred requiring retrial of that count for final resolution of it. Because the countis unresolved, appellant’s original jeopardy remains intact. The constitutional prohibition against double jeopardy is not implicated when a defendantis placed in jeopardy and jeopardy has not terminated. (Richardson v. United States (1984) 468 U.S. 317, 325 [104 S.Ct. 3081, 82 L.Ed.2d 242].) Appellant claims that no manifest or legal necessity existed for the trial court to discharge the jury without returning a verdict on the arson of property count. (Ans. at pp. 15-16.) Appellant’s reliance on the rule of manifest or legal necessity is misplaced. Manifest necessity originated as the “guiding rule” in cases wheretrial courts had to determine “whentrials should be discontinued”and the jury discharged without rendering its verdict. (Wade v. Hunter (1949) 336 U.S. 684, 689 [69 S.Ct. 834, 93 L.Ed. 974], citing United States v. Perez (1824) 22 U.S. 579 [9 Wheat. 579, 6 L.Ed. 165] (Perez).) Therule vests the trial court with the authority to interfere with thetrial process and abort it when “there is manifest necessity for the act, or the ends of public justice would otherwise be defeated.” (Perez, supra, 22 U.S. (9 Wheat.) at p. 580.) Such authority must be exercised with great discretion so that retrial does not violate the guarantee against being twice placed in jeopardy. (See, e.g., Downum v. United States (1963) 372 USS. 734, 737-738 [83 S.Ct. 1033, 10 L.Ed.2d 100] [Retrial improper followingfirst trial where jury dischargedat prosecution’s request because oneofits key witnesses was absent and had not been found and the prosecutor allowed the jury to be selected and sworn under these circumstances]; Fong Foo v. United States (1962) 369 U.S. 141, 143 [82 S.Ct. 671, 7 L.Ed.2d 629] [Although criticized as being based upon an “egregiously erroneous foundation,” directed verdict of acquittal wasfinal andretrial barred by double jeopardy].) In the present case, there was no reasonforthetrial court to contemplate exercising its discretion to discontinuethe trial. Appellant’s consent to be placed in jeopardy for the amended chargeandthetrial court’s mistaken instruction that allowed the jury to not return a verdict if it foundguilt on the greater offense, whichit did, justified the discharge without a verdict. (Peoplev. Sullivan (2013) 217 Cal.App.4th 242, 256 [“Once jeopardy has attached, discharge ofthe jury without a verdict is tantamountto an acquittal and preventsretrial, unless the defendant consented to the discharge or legal necessity requiredit.”].) Asin this case, circumstances sometimesarise during the course of trial that preventthe return of the jury’s verdict, but that do not implicate the “oppressive practices” that the double jeopardy clause was designed to protect against. (Wade v. Hunter, supra, 336 U.S. at p. 689.) It cannotbe said that a retrial of the unresolved count may be counted among the “oppressive practices” forbidden by the double jeopardy clause. Continuing prosecution on unresolved charges does not amountto “governmental overreaching.” (Ohio v. Johnson (1984) 467 U.S. 493, 501 [104 S.Ct. 2536, 81 L.Ed.2d 425].) Appellant agreed he may be convicted of the lesser offense of arson of property. Thus, he “has no constitutional interest in preventinghis retrial” for arson, and “there is an important public interest in finally determining whether he committed that offense.” (Stone v. Superior Court (1982) 31 Cal.3d 503, 522.) Simply put, an instructional error occurred that has delayed resolution of the lesser related count. Appellant claimsretrial to resolveit is foreclosed by double jeopardy principles. “The double-jeopardy provision of the Fifth Amendment, however, does not meanthat every time a defendant is putto trial before a competenttribunalheis entitled to go free if the trial fails to end in a final judgment.” (Wade v. Hunter, supra, 336 US.at p. 689.) Because appellant’s original jeopardy has not terminated, retrial for resolution of the lesser related offense is proper. Review should be granted to clarify that instructional error of the nature that occurred here does not preventretrial either under Ke//ett or principles of double jeopardy. Appellant raises an additional issue in his answer to respondent’s petition. This Court should deny appellant’s request for review of whether the evidence sufficiently established he harbored the malice required for arson. (Ans. at pp. 20-29.) This issue was fully briefed in the Court of Appealand that court rejected it in its first opinion filed on February 14, 2013. However, the issue was not addressed in Court of Appeal’s published opinion,filed January 14, 2014, the operative opinion on which respondentis seeking review by this Court. (Cal. Rules of Ct., rule 8.500(a).) CONCLUSION Respondent respectfully requests that the petition for review be granted. | Dated: March 20, 2014 Respectfully submitted, KAMALAD. HARRIS Attorney General of California DANER.GILLETTE Chief Assistant Attorney General JULIE L. GARLAND Senior Assistant Attorney General STEVEN T. OETTING Deputy Solicitor General Deputy Attorney General Attorneysfor Respondent FS:swm $D2011700511 70843745.doc CERTIFICATE OF COMPLIANCE I certify that the attached REPLY TO APPELLANT’S ANSWER TO PETITION FOR REVIEW usesa 13-point Times New Romanfont and contains 1,634 words. Dated: March 20, 2014 KAMALA D. HARRIS Attorney General of California FELICITY SENOSKI Deputy Attorney General Attorneysfor Respondent DECLARATION OF SERVICE BY U.S, MAIL Case Name: People v. Richard James Goolsby No.: S$216648 I declare: I am employed in the Office of the Attorney General, whichis the office of a memberofthe California State Bar, at which member's direction this service is made. I am 18 years ofage or older and nota party to this matter. I am familiar with the business practice at the Office of the Attorney Generalfor collection and processing of correspondence for mailing with the United States Postal Service. In accordance with that practice, correspondenceplacedin the internal mail collection system at the Office of the Attorney General is deposited with the United States Postal Service with postage thereon fully prepaid that same dayin the ordinary course of business. On March 21, 2014, I served the attached REPLY TO APPELLANT’S ANSWER TO PETITION FOR REVIEW,byplacing true copy thereof enclosed in a sealed envelope in the internal mail collection system at the Office of the Attorney General at 110 West A Street, Suite 1100, P.O. Box 85266, San Diego, CA 92186-5266, addressed as follows: STEVEN S LUBLINER CLERK OF THE COURT ATTORNEY AT LAW FOR HON BRYAN F FOSTER PO BOX 750639 SAN BERNARDINO CO SUPER COURT PETALUMA CA 94975-0639 401 N ARROWHEAD AVE Attorneyfor Appellant SAN BERNARDINO CA 92415-0063 Richard James Goolsby (2 Copies) APPELLATE SERVICES UNIT OFFICE OF THE DISTRICT ATTORNEY 412 WHOSPITALITY LN 1ST FLR SAN BERNARDINO CA 92415-0042 KEVIN J LANE CLERK DIV TWO FOURTH APP DIST CALIFORNIA COURT OF APPEAL - 3389 TWELFTH ST RIVERSIDE CA 92501 I declare underpenalty of perjury underthe lawsof the State of California the foregoingis true and correct and that this declaration was executed on March21, 2014, at San Diego, California. STEPHEN MCGEE S/n Declarant Aignathre $D2011700511 70843741 .doc