Filed 5/16/13
                            CERTIFIED FOR PUBLICATION

           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                           SECOND APPELLATE DISTRICT

                                     DIVISION SIX


THE PEOPLE,                                              2d Crim. No. B241532
                                                       (Super. Ct. No. KA095567)
       Plaintiff and Appellant,                          (Los Angeles County)

v.

SERGIO JOSE LOPEZ,

     Defendant and Respondent.



         The grant of a defendant's motion to dismiss on double jeopardy principles
terminates the People's case. After the grant of a new trial, there is simply no authority
upon which such motion can be made or granted. Had it been made after a formal plea
of "once in jeopardy" had been entered and as contemplated by Penal Code section
1016, subdivision 5, 1 the People would have presumably filed written opposition.
Any trial court contemplating terminating the People's case should welcome the
opportunity to pause and reflect before making an informed ruling.



1
 All statutory references are to the Penal Code. In addition to count 7, the information
alleged that respondent had committed the following offenses: assault with a firearm
(count 1); threatening to commit a crime that will result in death or great bodily injury
(count 2); false imprisonment by violence (count 3); corporal injury to a cohabitant
(count 4); discharge of a firearm in a grossly negligent manner (count 6); and willful
disobedience of a court order, a misdemeanor (count 8). The information did not
include a count 5.


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       The People appeal from the trial court's order granting a new trial on the charge
of attempting to dissuade a witness as alleged in count 7. (Pen. Code, § 136.1, subd.
(a)(2).) They also appeal from the trial court's subsequent order dismissing this charge
and the accompanying "on bail" enhancement. (§ 12022.1.)2 The dismissal was
predicated on the theory that retrial is barred by double jeopardy principles.
       A jury acquitted respondent on counts 1, 2, 3, and 6. It returned guilty verdicts
on counts 7 and 8. It was unable to reach a verdict on count 4, which was dismissed.
For the misdemeanor offense of willful disobedience of a court order (count 8),
respondent was sentenced to 241 days in county jail. He was given credit for 241 days
of presentence confinement.
       For the charge of attempting to dissuade a witness count 7), the trial court
granted a new trial on the ground that the verdict was contrary to the evidence.
(§ 1181, subd. 6.) We affirm this order but reverse the trial court's subsequent order
dismissing count 7 because it was based on an erroneous application of double
jeopardy principles.
                              Facts and Procedural History
       Respondent, a practicing attorney, was Sirena Zavala's boyfriend. They lived in
Zavala's house. On September 16, 2011, Deputy Aaron Scheller interviewed Sirena
Zavala. Zavala stated as follows: During an argument with respondent the previous
day, she asked him to move out. Respondent grabbed Zavala by the throat and started
choking her. Zavala said that she would stay with respondent, and he "let go." Zavala
walked into the bedroom and sat on the bed. She was crying. Respondent asked her
"if they were okay." Zavala responded that "they were not okay." Respondent "pulled
her head out of her elbows where she was crying and brandished a silver handgun
revolver in his right hand." Respondent said, "I told you if you were ever going to
leave me, I will shoot you and shoot myself." Respondent inserted a single bullet into

2
 Appellant agreed to a bifurcated court trail on the "on bail" enhancement.
(§ 12022.1.) The court trial did not occur because the court dismissed count 7.

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the revolver's cylinder. He cocked the revolver and put the muzzle against his temple.
Zavala pleaded with him not to fire the weapon. Respondent repeatedly pointed the
revolver at her and then at himself. When respondent pointed the gun at Zavala, it was
only inches from her head. Respondent fired the revolver. The bullet struck the bed's
headboard and mattress. Zavala said that she was not going to leave respondent, and
he put the weapon down. Zavala walked out of the bedroom and told respondent that
she was going to take a break. Respondent replied, "[Y]ou're not going anywhere."
Zavala felt "an object hit her in the buttocks." Respondent had thrown a candle at her.
Respondent grabbed her by the shoulders, pulled her back into the bedroom, and threw
her onto the bed. For several minutes, he hit her with his fists in the face, body, arms,
and legs. Respondent stopped hitting her when she said that her children were going
to be home soon from school.
        Respondent's Porsche was parked at Zavala's house. Deputy Scheller searched
the vehicle and found a revolver that was registered to respondent. The revolver's
cylinder contained one expended cartridge and no live rounds.
        Under Zavala's bed, Deputy Scheller found a bullet fragment. There was a
bullet hole in a bed sheet. Zavala gave Scheller a bullet fragment that she had found
underneath the hole in the sheet. Scheller saw "an impact mark on the wood of the
headboard."
        A felony complaint was filed against respondent. On September 20, 2011, he
was arraigned on the complaint. The court issued a restraining order requiring him to
not have any contact with Zavala. A preliminary hearing was set for October 26,
2011.
        Deputy Greg Salcido was assigned to investigate the case. On September 21,
2011, he met Zavala at her house, but she refused to talk to him. Thereafter, Deputy
Salcido went to Zavala's house four or five times to serve her with a subpoena for the
preliminary hearing, but he was unable to locate her. Zavala saw Salcido come to her



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house, but she did not open the door. Zavala did not want to be served with a
subpoena.
        Between September 25 and 29, 2011, while Salcido was trying to find Zavala,
respondent and Zavala stayed in the same room at a hotel. Respondent signed the
hotel receipt and paid for the room with his law office's credit card. Zavala testified
that it was her idea to stay at the hotel. She explained that respondent had told her that
"he couldn't see [her] because of the restraining order." Zavala had responded, " 'We'll
stay at a hotel and nobody will know.' " However, Zavala later testified that she "had
[respondent] help [her] not be found [by law enforcement] by staying at a hotel with
him."
        At trial, Zavala testified that she and respondent had a verbal argument that did
not become violent. Respondent did not touch any part of her body. After the
argument ended, she was in the kitchen when she heard a gunshot inside her bedroom.
She went into the bedroom and saw respondent "kind of like in shock holding the
gun." Respondent said, "I'm sorry, you're going to be pissed off. I just totally ruined
your bed." Zavala denied telling Deputy Scheller that respondent had hurt her or had
fired a gun in her presence.
          Motion for New Trial and Dismissal On Double Jeopardy Principles
        On the charge of attempting to dissuade a witness, respondent orally moved for
a new trial on the ground that the verdict was contrary to the evidence. (§ 1181(6).)
Defense counsel asked the court to "exercise its independent judgment of the
evidence" pursuant to People v. Robarge (1953) 41 Cal.2d 628 (Robarge). Counsel
argued: "[A]fter [respondent] was released from custody, he did have contact with
[Zavala] and he did provide a hotel room. The clear inference in my view being that
he wanted to see her, not that he wanted to prevent her from testifying or help her from
not testifying. . . . And there's no evidence or insufficient evidence, I should say, from
which the court can infer that he did that for the purposes required to violate [section]
136[.1, subd. (a)(2)]."


                                             4
       In granting the motion for new trial, the trial court stated: "I've evaluated it [the
charge of attempting to dissuade a witness] in the context of Robarge and the cases
following [Robarge] and exercising my independent judgment of the evidence . . . find
there's insufficient evidence to support the verdict." Defense counsel said, "I'm asking
the court to dismiss that count [count 7] because he's been in jeopardy on this." The
court replied: "You're correct. Granted. He can't be retried based on the court's ruling
and finding based on insufficiency of the evidence . . . ." The court minutes state: "An
oral motion of [respondent] to dismiss the charge in count 7 is granted (once in
jeopardy)."
                       The Trial Court Did Not Err as a Matter of
                       Law in Granting the Motion for a New Trial
       The People contend: "Because the trial court blended two different, conflicting
standards of review together in ruling on the motion for a new trial . . . , the trial court
erred as a matter of law when it ruled on the motion for a new trial." The two different
standards are the Robarge standard and the standard used to determine whether the
evidence is legally sufficient to support a conviction.
       Pursuant to Robarge, "the court, on [an 1181(6)] motion for a new trial, should
consider the probative force of the evidence and satisfy itself that the evidence as a
whole is sufficient to sustain the verdict. [Citations.] . . . [I]t should consider the
proper weight to be accorded to the evidence and then decide whether or not, in its
opinion, there is sufficient credible evidence to support the verdict. [Citations.]"
(Robarge, supra, 41 Cal.2d at p. 633; see also Porter v. Superior Court (2009) 47
Cal.4th 125, 133 ["in ruling on an 1181(6) motion for new trial," the court
"independently examines all the evidence to determine whether it is sufficient to prove
each required element beyond a reasonable doubt to the judge, who sits, in effect, as a
'13th juror' "].) On the other hand, "[f]or challenges relating to the [legal] sufficiency
of the evidence, 'the reviewing court must examine the whole record in the light most
favorable to the judgment to determine whether it discloses substantial evidence—


                                              5
evidence that is reasonable, credible and of solid value—such that a reasonable trier of
fact could find the defendant guilty beyond a reasonable doubt. [Citation.]'
[Citation.]" (People v. Lewis (2001) 26 Cal.4th 334, 365.)
       The People argue that the trial court "blended" the two standards together
because the court said it was relying on Robarge, but then went on to state that "there's
insufficient evidence to support the verdict." The People maintain that the words
"insufficient evidence" show that the court found the evidence to be legally
insufficient under the substantial evidence test. The People assert: "[T]he trial court's
ruling that there was 'insufficient evidence' inherently conflicts with its statement that
it examined the evidence under Robarge . . . since the two standards of review are
entirely different." "[T]he trial court erred as a matter of law when it used an incorrect
standard of review to grant the motion for a new trial."
       " 'A judgment or order of the lower court is presumed correct. All intendments
and presumptions are indulged to support it on matters as to which the record is silent,
and error must be affirmatively shown.' " (Denham v. Superior Court (1970) 2 Cal.3d
557, 564.) Furthermore, "[i]t is a basic presumption indulged in by reviewing courts
that the trial court is presumed to have known and applied the correct statutory and
case law in the exercise of its official duties. [Citations.] [¶] Absent evidence to the
contrary, that presumption justifies a finding in this case that the trial court" properly
applied the Robarge standard. (People v. Mack (1986) 178 Cal.App.3d 1026, 1032.)
The use of the words "insufficient evidence" does not establish that the trial court
applied the wrong standard.
       " 'A trial court's ruling on a motion for new trial is so completely within that
court's discretion that a reviewing court will not disturb the ruling absent a manifest
and unmistakable abuse of that discretion. [Citation.]' [Citation.]" (People v. Lewis,
supra, 26 Cal.4th at p. 364; People v. Andrade (2000) 79 Cal.App.4th 651.) The
People do not contend that, under the Robarge standard, the trial court abused its



                                             6
discretion. Accordingly, we uphold the trial court's order granting a new trial on the
charge of attempting to dissuade a witness.
                     The Trial Court's Erroneous Jeopardy Ruling
       As indicated at the outset of the opinion, the trial court entertained an oral
motion to dismiss after granting a new trial on a jeopardy theory. This is procedurally
erroneous. The Penal Code contemplates the entry of a plea of "once in jeopardy."
(§§ 1016, subd. 5, 1017, subd. 4.) Both the defendant and the People have a right to
jury trial on this issue. (People v. Frank (1933) 134 Cal.App.. 211. 214, see 1 Wikin
and Epstein, Cal. Criminal Law, Defenses (3d Ed. 2000) § 185, pp. 543-544.) The
trial court's summary adjudication of thais issue is at variance with the Penal Code.
       The trial court dismissed the charge of attempting to dissuade a witness because
respondent "can't be retried based on the court's ruling and finding based on
insufficiency of the evidence." This was substantially erroneous.      Our Supreme
Court has "repeatedly held that an order granting a new trial under section 1181(6) is
not an acquittal and does not bar retrial on double jeopardy grounds. [Citations.]"
(Porter v. Superior Court, supra, 47 Cal.4th at p. 133.) In these circumstances, "the
judge acts as a 13th juror who is a 'holdout' for acquittal. Thus, the grant of a section
1181(6) motion is the equivalent of a mistrial caused by a hung jury. [Citation.]"
(Ibid.) "Whereas a jury must acquit if it finds the evidence insufficient, a trial court
ruling on an 1181 motion may only grant the defendant a new trial if it is not
convinced of guilt beyond a reasonable doubt. [Citation.] This rule permits trial court
oversight of the verdict but ensures that the People, like the defendant, have the
charges resolved by a jury." (Ibid.)
       Respondent contends that the People forfeited their claim of error because they
failed to object in the trial court. We disagree. The forfeiture rule does not apply to
constitutional challenges that present pure questions of law. (In re Sheena K. (2007)
40 Cal.4th 875, 884, 888-889.) The People argue that, as a matter of law, the dismissal
denied them their constitutional right to a jury trial. "The People have a fundamental


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right to jury trial, secured by article I, section 16 of the California Constitution which
provides that trial by jury is an inviolate right and shall be secured to all, and may be
waived in a criminal case only ' "by the consent of both parties . . . ." ' [Citations.]"
(People v. Partner (1986) 180 Cal.App.3d 178, 182-183.)
                   Substantial Evidence Could Support a Conviction
                          of Attempting to Dissuade a Witness
       Respondent maintains that any error by the trial court was harmless because the
evidence is legally insufficient to support the conviction of attempting to dissuade a
witness. As previously discussed, the test is "whether from the evidence, including
reasonable inferences to be drawn therefrom, there is any substantial evidence of the
existence of each element of the offense charged [citations].' [Citations.]" (People v.
Lines (1975) 13 Cal.3d 500, 505.) As we explain, the inferences that can easily be
drawn against respondent are compelling. As Presiding Justice Roth so eloquently
indicated: "There is, of course, no talismanic requirement that a defendant must say
'Don't testify' or words tantamount thereto . . . ." (People v. Thomas (1978) 83
Cal.App.3d 511, 514.)
       Respondent acknowledges that Zavala "stayed with [him] at a hotel for four
nights in September." But he contends that the People failed "to prove [he] knew the
prosecution was attempting to subpoena Zavala and that he specifically intended to
help her evade service." (Italics omitted.) Respondent asserts, "It is simply not
reasonable to believe that respondent's staying with his girlfriend for four nights in a
local hotel a full month before the preliminary hearing establishes a specific intent to
dissuade her from testifying at the hearing."
       A reasonable trier of fact could find that respondent arranged for Zavala to stay
at the hotel so that law enforcement authorities would be unable to locate her and serve
her with a subpoena for the preliminary hearing. Zavala knew that the police were
trying to find her. Deputy Salcido went to her house four or five times to serve her
with a subpoena. Zavala saw Salcido come to the house, but she did not open the


                                             8
door. It is reasonable to infer that Zavala informed respondent of these attempts to
contact her. As an attorney, he should have realized that the police were trying to
serve her with a subpoena for the preliminary hearing. Except for count 8
(disobedience of the restraining order), Zavala was the only witness to the events
underlying the charges. Zavala testified that she "had [respondent] help [her] not be
found by staying at a hotel with him." The hotel receipt was in respondent's name, and
he paid for the room with his law office's credit card.
       An incident that occurred on October 4, 2011, five days after respondent and
Zavala had left the hotel, provides additional support for the jury's finding that
respondent was complicit in Zavala's efforts to evade service of a subpoena. On that
date Deputy Salcido arrested respondent while he was driving Zavala's daughter home
from school. The daughter telephoned Zavala and left a message on her answering
machine. Zavala sent a text message to Jessie Wong, who worked as a paralegal for
respondent. The text message stated: "They arrested [respondent] again. Please call
me back. They also took custody of my daughter and won't return her unless I go to
the station." Wong texted back to Zavala, "Don't leave your house." Zavala texted to
Wong: "Okay. I'm afraid they [the police] are tracking me." Zavala never picked up
her daughter from the station. The daughter's father picked her up six hours later.
Zavala admitted that she was "trying to avoid being served with a subpoena."
       It is reasonable to infer that Wong told Zavala not to leave her house because
Wong was concerned that Zavala would be served with a subpoena if she went to the
station to pick up her daughter. Since Wong was respondent's employee, it is also
reasonable to infer that Wong was acting pursuant to respondent's instructions that
Zavala avoid contact with law enforcement.
       We reject respondent's contention that, "even if the evidence were sufficient to
show that [he intentionally] assisted Zavala in her ongoing attempt to evade service[,]
he was not guilty of dissuading a witness." In In re Holmes (1983) 145 Cal.App.3d
934, 942, the appellate court concluded: "Advising a witness to conceal himself for


                                            9
the purpose of avoiding service of a subpoena is in violation of Penal Code section
136.1 . . . ." The Holmes court reasoned: "[O]ur Supreme Court in People v.
Carpenter (1902) 136 Cal. 391, 393 . . . , found that a person who advised a witness,
prior to trial, to conceal himself for the purpose of avoiding the service of a subpoena
was guilty of Penal Code section 136, which at that time provided: 'Every person who
willfully prevents or dissuades any person who is or may become a witness, from
attending upon any trial, proceeding, or inquiry, authorized by law, is guilty of a
misdemeanor.' [Citation]. . . . The slight differences in language between the 1902
statute and the more recent one . . . would not seemingly change the interpretation of
the statute by our Supreme Court in Carpenter, supra." (Ibid.)
                                       Disposition
       The order granting a new trial on count 7 is affirmed. The subsequent order
dismissing count 7 is reversed.
       CERTIFIED FOR PUBLICATION

                                                         YEGAN, J.

       We concur:


              GILBERT, P.J.



              PERREN, J.




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                                     Tia Fisher, Judge

                          Superior Court County of Los Angeles

                           ______________________________


             Jackie Lacey, District Attorney of Los Angeles County, Phyllis
Asayama, Patrick D. Moran and Scott D. Collins, Deputy District Attorneys, for
Appellant.


      David Andreasen, under appointment by the Court of Appeal, for Defendant
and Respondent.




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