Filed 11/27/19
                               CERTIFIED FOR PUBLICATION

                 IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                 SIXTH APPELLATE DISTRICT

 GORDON SHORT,                                         H046372
                                                      (Santa Clara County
            Petitioner,                                Super. Ct. No. B1475303)

            v.

 THE SUPERIOR COURT OF SANTA
 CLARA COUNTY

            Respondent;

 THE PEOPLE,

            Real Party in Interest.


        Petitioner Gordon Short was tried in 2017 for seven sex offenses allegedly
committed against his adopted daughter when she was a child. The jury convicted Short
of two counts, acquitted him of one, and was unable to reach a verdict on four. The
prosecutor moved to amend the information to add eight new, alternative charges based
on the conduct underlying the four counts on which the first jury hung. The trial court
permitted the amendment over Short’s objections that it was barred by Penal Code
section 654, subdivision (a)’s prohibition on successive prosecutions and was vindictive
in violation of his due process rights. 1 Short now challenges that ruling in this writ
proceeding.
        We are presented with what apparently is a question of first impression: whether
the bar on successive prosecutions bars the addition of new charges following a trial
where the jury acquitted on some counts, convicted on others, and could not agree on the

        1
            All further statutory references are to the Penal Code unless otherwise indicated.
remainder. We hold that the bar on successive prosecutions does not apply on the facts
of this case. We further conclude that the facts do not give rise to a presumption of
vindictiveness because the new charges are less serious, alternative charges that do not
increase Short’s exposure. We will deny the petition.
I.     BACKGROUND
       A.     Factual Summary 2
       Short and his wife adopted the victim when she was four years old.
       The victim had trouble sleeping and when she was a child Short would sit on her
bed until she fell asleep. When the victim was seven or eight years old, Short started
touching her breasts and vagina at bedtime. When she was nine or 10 years old, Short
first inserted his penis into her vagina. He did so four to six times a month until she was
12 years old. Short made the victim orally copulate him multiple times when she was
between the ages of about 9 and 12 years old. The victim believed that the sexual abuse
stopped when she was 12 years old, in part because she realized it was abuse after taking
Sex Ed in school, and she reacted by avoiding Short and figuratively pushing him away.
The victim disclosed the abuse when she was 14 or 15 years old.
       The Santa Clara County District Attorney charged Short by first amended
information with seven counts: one count of lewd or lascivious acts on a child under
14 years between September 29, 2005 and September 28, 2006 (when the victim was
six years old) (§ 288, subd. (a); count 1); four counts of sexual intercourse or sodomy
with a child 10 years old or younger between September 29, 2006 and September 28,
2010 (when the victim was between seven and 10 years old) (§ 288.7, subd. (a);
counts 2-5); one count of lewd or lascivious acts on a child under 14 between
September 29, 2010 and September 28, 2011 (when the victim was 11 years old) (§ 288,

       2
        Our factual summary is based on the victim’s testimony at Short’s first trial, at
which time she was 18 years old. We rely exclusively on her testimony because it is the
only evidence in the record.

                                             2
subd. (a); count 6); and one count of lewd or lascivious acts on a child under 14 between
September 29, 2011 and September 28, 2012 (when the victim was 12 years old) (§ 288,
subd. (a); count 7). As to counts 1, 6, and 7, the first amended information alleged
substantial sexual contact between Short and the victim, meaning “penetration of the
vagina or rectum of either the victim or the offender by the penis of the other or by any
foreign object, oral copulation, or masturbation of either the victim or the offender.”
(§ 1203.066, subds. (a)(8), (b).)
       Short went to trial on all seven counts in 2017. A jury returned a not guilty verdict
on count 1 and guilty verdicts on counts 6 and 7; it hung on counts 2 through 5. 3 The
jury found true the allegations that Short had substantial sexual contact with the victim in
connection with counts 6 and 7. The trial court declared a mistrial on counts 2 through 5.
       Following unsuccessful plea negotiations regarding the four unresolved counts, the
District Attorney moved under section 1009 to amend the information to add eight
additional counts—four counts of aggravated sexual assault (rape by force, fear, or threat)
on a child under 14 years (§§ 269/261) and four counts of lewd or lascivious acts on a
child under 14 years by force or fear (§ 288, subd. (b)). The prosecutor argued that these
were alternative charges for the conduct underlying former counts 2 through 5, on which
the original jury had failed to reach a verdict. Initially the prosecutor sought to allege
that the eight additional counts occurred between September 29, 2006 and September 28,
2011, when the victim was between seven and 11 years old. That date range was one
year longer than the date range associated with former counts 2 through 5 and overlapped
with former count 6, of which Short was convicted. The prosecutor later changed the
date range associated with the eight additional counts to between September 29, 2006 and


       3
         That is, the jury acquitted Short of the offense alleged to have occurred when the
victim was six years old, failed to reach a verdict as to the offenses alleged to have
occurred when she was between seven and 10 years old, and convicted on the offenses
alleged to have occurred when she was 11 and 12 years old.

                                              3
September 28, 2010 to eliminate the overlap with former count 6 and thereby avoid any
double jeopardy issue.
       Short opposed the motion to amend on two grounds. Citing Kellett v. Superior
Court (1966) 63 Cal.2d 822 (Kellett), he argued that the bar on successive prosecutions
proscribed the filing of new charges based on the same course of conduct as the original
charges. He also asserted that the new charges constituted vindictive prosecution.
       The trial court found that no presumption of vindictiveness arose because the new
charges do not increase Short’s maximum exposure; the court declined Short’s request
for an evidentiary hearing on the issue. The court further concluded that Kellett did not
bar the proposed amendment. In doing so, the court noted the lack of any published case
law directly on point.
       On October 19, 2018, the trial court allowed the prosecution to file a third
amended information. The third amended information alleges the seven charges on
which defendant already was tried plus the eight new charges, for a total of 15 counts.
Specifically, it alleges four counts of sexual intercourse or sodomy with a child 10 years
old or younger between September 29, 2006 and September 28, 2010 (when the victim
was between seven and 10 years old) (§ 288.7, subd. (a); counts 1, 4, 7, and 10/former
counts 2-5); four counts of aggravated sexual assault of a child under 14 by rape between
September 29, 2006 and September 28, 2010 (when the victim was between seven and
10 years old) (§§ 269/261, subd. (a); counts 2, 5, 8, and 11); four counts of lewd or
lascivious acts on a child by force between September 29, 2006 and September 28, 2010
(when the victim was between seven and 10 years old) (§§ 288, subd. (b)(1); counts 3, 6,
9, and 12); one count of lewd or lascivious acts on a child under 14 years between
September 29, 2005 and September 28, 2006 (when the victim was six years old) (§ 288,
subd. (a); count 13/former count 1); one count of lewd or lascivious acts on a child
under 14 between September 29, 2010 and September 28, 2011 (when the victim was
11 years old) (§ 288, subd. (a); count 14/former count 6); and one count of lewd or

                                             4
lascivious acts on a child under 14 (when the victim was 12 years old) (§ 288, subd. (a);
count 15/former count 7). The third amended information alleged substantial sexual
contact as to counts 3, 6, 9, and 12 through 15 (§ 1203.066, subds. (a)(8), (b)). Finally,
the third amended information stated that “Short was previously found not guilty on
former Count 1 (§ 288(a), age 6), and he was previously found guilty on former Counts 6
and 7 (§ 288(a), ages 11 and 12), and the Special Allegations found true. These Counts
are now listed as 13, 14, and 15. The conduct alleged in Counts 1-12 in this Third
Amended Information is separate from the conduct in those three Counts.”
       Short challenged the trial court’s rulings by way of a petition for writ of
prohibition/mandate filed in this court in November 2018. This court stayed all trial
court proceedings in January 2019. After obtaining preliminary opposition and reply, we
issued an order to show cause.
II.    DISCUSSION
       A.     The Bar on Successive Prosecutions Does Not Apply Here
              1.     Legal Principles
                     a.     The Bar on Successive Prosecutions
       Section 654, subdivision (a) proscribes both multiple punishment and multiple
prosecutions. (People v. Linville (2018) 27 Cal.App.5th 919, 927 (Linville).) As to
multiple prosecutions, it states: “[a]n acquittal or conviction and sentence under any one
[provision of law] bars a prosecution for the same act or omission under any other
[provision of law].” (§ 654, subd. (a).) Kellett is the leading case on section 654,
subdivision (a)’s bar against successive prosecutions. There our Supreme Court held that
“[w]hen . . . the prosecution is or should be aware of more 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

                                              5
or conviction and sentence.” (Kellett, supra, 63 Cal.2d at p. 827.) The purpose of the bar
on successive prosecutions is to prevent “needless harassment” of criminal defendants
and to avoid “the waste of public funds . . . .” (Ibid.)
       “[T]he appellate courts have developed two different tests to determine if the same
course of conduct plays a significant part in multiple offenses for purposes of
section 654’s ban on multiple prosecutions. [Citation.] ‘Under one line of cases,
multiple prosecutions are not barred if the offenses were committed at separate times and
locations. . . . [¶] A second version of the test—the “evidentiary test”—looks to the
evidence necessary to prove the offenses. [Citation.] “[I]f the evidence needed to prove
one offense necessarily supplies proof of the other, . . . the two offenses must be
prosecuted together, in the interests of preventing needless harassment and waste of
public funds.” [Citation] “The evidentiary test . . . requires more than a trivial overlap of
the evidence. Simply using facts from the first prosecution in the subsequent prosecution
does not trigger application of Kellett.” ’ [Citation.]” (Linville, supra, 27 Cal.App.5th at
p. 931.)
       Ultimately, “[w]hat matters” in determining whether the bar against successive
prosecutions applies “is the totality of the facts, examined in light of the legislative goals
of section[] 654 . . . .” (People v. Flint (1975) 51 Cal.App.3d 333, 336.) Accordingly,
courts will decline to apply the bar on successive prosecutions where doing so will not
serve “the policies underlying section 654”—namely, “preventing harassment of the
defendant and the waste of public resources through relitigation of issues . . . .” (People
v. Davis (2005) 36 Cal.4th 510, 558 (Davis) [declining to apply the successive
prosecution bar where doing so would not have served the bar’s underlying purposes];
Linville, supra, 27 Cal.App.5th at p. 934 [where the defendant previously had been
convicted of being an accessory after the fact to two killings, holding that the defendant
could be prosecuted for murder for those same killings, noting that “the policies of
section 654 would not be served by prohibiting Linville’s murder prosecution”].)

                                              6
                     b.      Section 1009 and the Amendment of Accusatory Pleadings
       Section 1009 governs the amendment of accusatory pleadings. It provides, in
relevant part, that “[t]he court in which an action is pending may . . . permit an
amendment of an . . . information . . . for any defect or insufficiency, at any stage of the
proceedings . . . .” (§ 1009.) Courts have construed section 1009 as allowing the
addition of new charges after a mistrial “despite the statutory prohibition against multiple
punishment for a single course of conduct located in section 654 . . . .” (People v.
Williams (1997) 56 Cal.App.4th 927, 933.) “ ‘The question[] of whether the prosecution
should be permitted to amend the information . . . [is] within the sound discretion of the
trial court and its ruling will not be disturbed on appeal absent a clear abuse of
discretion.’ [Citations.]” (People v. Hamernik (2016) 1 Cal.App.5th 412, 424.)
              2.     Analysis
       In this case, the prosecutor sought to amend the information after a first trial that
resulted in an acquittal on one count, convictions on two others, and a mistrial on the
remaining four. We must decide which rule applies: section 654, subdivision (a)’s ban
on bringing new charges against a defendant after acquittal or conviction and sentencing
or the rule that new charges may be added after a mistrial.
       We agree with the trial court’s conclusion that Kellett and the bar against
successive prosecutions do not apply on these facts. As noted above, courts have
declined to apply the bar on successive prosecutions where its application will not serve
the underlying purposes of conserving public resources and protecting the defendant from
harassment. That is the case here. The section 288.7 charges on which the first jury hung
may be retried regardless of whether the new charges are permitted. And because the
new charges involve the same underlying conduct as the section 288.7 charges, their
addition will have minimal, if any, impact on the nature of the trial and, by extension, on
the public fisc. Accordingly, applying the rule of Kellett here will not promote judicial
efficiency or conserve public resources. Nor is application of Kellett necessary to protect

                                              7
Short from harassment, as section 1009 itself safeguards against unfair amendments. The
prosecutor was required by section 1009 to obtain court approval to amend the
information with the new charges. The trial court had the discretion to disallow those
amendments to the extent they were unfair. And “a failure to protect against such
harassing amendments would be an abuse of discretion” subject to challenge and reversal
under section 1009. (People v. Flowers (1971) 14 Cal.App.3d 1017, 1021.) Moreover,
“[h]ere, defendant’s interest in being free from the harassment of a [trial on the added
charges is] minimal given that he [will be] on trial for the . . . more serious [section
288.7(a)] charges” regardless. (Davis, supra, 36 Cal.4th at p. 558.)
       Sanders v. Superior Court (1999) 76 Cal.App.4th 609 (Sanders) and People v.
Goolsby (2015) 62 Cal.4th 360 (Goolsby), on which Short relies, are distinguishable. In
Sanders, the defendant’s convictions were overturned on appeal for insufficient evidence.
(Sanders, supra, at p. 616.) On remand, the prosecutor amended the information to add
new charges based on the same conduct as the original charges. The Court of Appeal
held that the defendant’s prosecution on the new information was barred by section 654,
subdivision (a) and Kellett. (Sanders, supra, at p. 617.) “[A]n appellate ruling of legal
insufficiency is functionally equivalent to an acquittal . . . .” (People v. Hatch (2000) 22
Cal.4th 260, 272.) Accordingly, the defendant in Sanders had effectively been acquitted
on all counts. Those acquittals “bar[red] a prosecution for the same act[s] . . . under any
other [provision of law].” (§ 654, subd. (a).) Sanders, therefore, involved a
straightforward application of section 654, subdivision (a) following across-the-board
acquittals.
       In Goolsby, the defendant was convicted of arson of an inhabited structure.
(Goolsby, supra, 62 Cal.4th at p. 362.) The Court of Appeal reversed for insufficient
evidence. (Ibid.) The prosecutor sought to retry the defendant for the lesser related
offense of arson of property. (Ibid.) Our Supreme Court stated that “Kellett . . . would
prohibit charging that crime for the first time now.” (Id. at p. 366.) But the Goolsby

                                              8
court concluded that the subsequent prosecution was not barred because the defendant
had originally been prosecuted for the lesser related offense. Goolsby, like Sanders,
stands for the straightforward proposition that the bar on successive prosecutions applies
following a straight acquittal (or its equivalent, a reversal for insufficient evidence).
       Following an acquittal or a reversal for insufficient evidence, retrial on the same
charges is not permitted. In that circumstance, prohibiting a new trial on new charges
promotes section 654, subdivision (a)’s policies of preventing harassment and conserving
public resources. As discussed above, the same cannot be said here, where a retrial on
the hung charges is permitted.
       B.      Vindictive Prosecution
       Short contends the prosecutor’s decision to add charges following the first trial
and unsuccessful plea negotiations regarding the four unresolved counts raises a
presumption of vindictive prosecution. The Attorney General says no such presumption
arises because the added charges did not increase Short’s maximum exposure. We agree
with the Attorney General.
               1.     Legal Principles
       The due process clauses of the state and federal Constitutions prohibit prosecutors
from punishing criminal defendants for exercising their constitutional rights. (People v.
Jurado (2006) 38 Cal.4th. 72, 98.) “The constitutional protection against prosecutorial
vindictiveness is based on the fundamental notion that it ‘would be patently
unconstitutional’ to ‘chill the assertion of constitutional rights by penalizing those who
choose to exercise them.’ ” (In re Bower (1985) 38 Cal.3d 865, 873 (Bower).) “In
vindictive prosecution cases it is the Government’s attempt or threat to ‘up the ante’ by
bringing new or more serious charges in response to the exercise of protected rights that
violates the due process guarantee.” (United States v. Robison (9th Cir. 1981) 644 F.2d
1270, 1273.)



                                               9
       A vindictive prosecution claim may be established “ ‘by producing direct evidence
of the prosecutor’s punitive motivation’. . . .” (United States v. Brown (9th Cir. 2017)
875 F.3d 1235, 1240.) In the absence of direct evidence of vindictiveness, a criminal
defendant may raise a rebuttable presumption of vindictiveness “ ‘by showing that the
circumstances establish a “reasonable likelihood of vindictiveness.” ’ ” (Ibid.) When a
presumption of vindictiveness exists, “the burden shifts to the government to present
‘objective evidence justifying the prosecutor’s action.’ ” (Ibid.)
       “[A]n inference of vindictive prosecution is raised if, upon retrial after a
successful appeal, the prosecution increases the charges so that the defendant faces a
sentence potentially more severe than the sentence he or she faced at the first trial.”
(People v. Ledesma (2006) 39 Cal.4th 641, 731.) A presumption of vindictiveness
likewise is raised where the prosecutor adds additional charges, which subject the
defendant to a greater potential penalty, after a mistrial. (Twiggs v. Superior
Court (1983) 34 Cal.3d 360, 368-369; see Bower, supra, 38 Cal.3d at p. 873 [“the due
process prohibition against prosecutorial vindictiveness bars the People from increasing
the severity of the potential charges against [a criminal defendant] after he [or she]
move[s] for a mistrial”].)
       The California Supreme Court has not determined the standard of review to be
applied to a claim of vindictive prosecution. (See People v. Ayala (2000) 23 Cal.4th 225,
299 [rejecting defendant’s claim of vindictive prosecution “under any standard of
review”].) This court has treated the issue as a mixed question of fact and law, reviewing
the trial court’s factual findings for substantial evidence and its legal determination as to
whether the facts create a presumption of vindictiveness de novo. (People v. Puentes
(2010) 190 Cal.App.4th 1480, 1487.)
              2.     Analysis
       Here, after a partial mistrial, the prosecutor added new charges based on the
conduct originally charged in the four counts on which the first jury hung. Those new

                                              10
charges are less serious than the original charges. 4 And the new charges do not increase
Short’s potential sentence. Because they were added as alternative charges, the jury on
retrial presumably will be instructed that it cannot find Short guilty of more than one
alternative charge for each underlying act. (See CALCRIM No. 3516.) But even if Short
is convicted of multiple counts for the same underlying conduct, he can be punished
under only one provision of law. (§ 654, subd. (a).) Under these circumstances, we
cannot conclude that the prosecutor “upped the ante.”
       As Short notes, courts occasionally have used language suggesting that an increase
in the number of charges alone raises a presumption of vindictiveness. (E.g., Bower,
supra, 38 Cal. 3d, at p. 872 [“the possibility that increased or additional charges violated
due process . . .”]; United States v. Kent (9th Cir. 2011) 649 F.3d 906, 912
[“ ‘A prosecutor violates due process when he seeks additional charges solely to punish a
defendant for exercising a constitutional or statutory right’ ”].) Of course, in the usual
run of cases, more charges means more potential prison time. Significantly, Short cites
no case finding that a presumption of vindictiveness was raised by the addition of less
serious charges that did not increase the defendant’s exposure, and we are aware of none.
       The cases on which Short relies do not support his position. For example, in
Hardwick v. Doolittle (5th Cir. 1977) 558 F.2d 292, 300, the Fifth Circuit Court of
Appeals concluded that the petitioner had made out a prima facie case of vindictive
prosecution where a second indictment added new charges that “doubled” the petitioner’s
“ ‘potential period of incarceration.’ ” In United States v. Jamison (D.C. Cir. 1974) 505

       4
          The first jury failed to reach verdicts on four counts of sexual intercourse or
sodomy with a child 10 years old or younger in violation of section 288.7,
subdivision (a). Each of those counts exposes Short to a potential prison sentence of
25 years to life. The prosecutor added four counts of violating section 269,
subdivision (a)(1), each of which exposes Short to a potential prison sentence of 15 years
to life. (§ 269, subd. (b).) The new charges also include four counts of violating
section 288, subdivision (b)(1), each of which exposes Short to a potential prison
sentence of between five and 10 years.

                                             11
F.2d 407, 408, the prosecutor sought to indict appellants for first degree murder following
a mistrial under an earlier indictment for second degree murder. The D.C. Circuit
concluded that those facts raised a presumption of vindictiveness. Jamison is
distinguishable because first degree murder is a more serious charge than second degree
murder, whereas the new charges in this case were less serious than the existing charges.
Moreover, the Jamison court found “ample difference in terms of length of sentence
alone between second and first degree murder,” noting that second degree murder carried
a sentence of “ ‘life or not less than twenty years,’ ” whereas first degree murder carried a
mandatory life sentence. (Id. at p. 415.) Here, the original charges each carry a sentence
of 25 years to life, while the new charges carry sentences of 15 years to life and five,
eight, or 10 years.
       Defendant contends that the addition of less serious charges may impact the
chances of conviction at a retrial. But, “[i]n the absence of a prospect of exposure to
increased punishment, we do not believe that a defendant’s right to move for a mistrial
[or a defendant’s right to a retrial following a mistrial] is realistically chilled by the
possibility of facing additional charges on retrial.” (Lane v. Lord (2d Cir. 1987) 815 F.2d
876, 879.)
III.   DISPOSITION
       The petition is denied and the previously ordered temporary stay of the trial court
proceedings is dissolved effective upon the issuance of remittitur.




                                               12
                                  _________________________________
                                  ELIA, ACTING P. J.


WE CONCUR:




_______________________________
BAMATTRE-MANOUKIAN, J.




_______________________________
MIHARA, J.




Short v. Superior Court
H046372
 Trial Court:                          Santa Clara County Superior Court
                                       Superior Court No. B1475303


 Trial Judge:                          Hon. Allison M. Danner
                                       Hon. Charles E. Wilson, II


 Counsel for Petitioner:               Daniel L. Barton
 GORDON SHORT                          Nolan Barton & Olmos

 Counsel for Respondent:               No appearance for Respondent
 SUPERIOR COURT OF SANTA
 CLARA COUNTY

 Counsel for Real Party in Interest:   Xavier Becerra
 THE PEOPLE                            Attorney General

                                       Gerald A. Engler
                                       Chief Assistant Attorney General

                                       Jeffrey M. Laurence
                                       Senior Assistant Attorney General

                                       Donna M. Provenzano
                                       Supervising Deputy Attorney General

                                       Melissa A. Meth,
                                       Deputy Attorney General

                                       Sara Elizabeth Dabkowski
                                       Office of the District Attorney




Short v. Superior Court
H046372
