Double jeopardy is an American Constitutional principle that bars the government from trying a person more than once for the same conduct. It protects you from being prosecuted again for the same offense following an acquittal or a conviction. Double jeopardy also protects you from being subject to multiple punishments for the same crime.1
But double jeopardy in California doesn’t apply to all situations. For example, it doesn’t stop the D.A. from prosecuting you for DUI even if the DMV has already punished you by suspending your driver’s license.
- no prosecution after acquittal for the same offense,
- no double convictions for the same offense and,
- no multiple punishments for the same offense.
The double jeopardy clause of the United States Constitution has also been adopted into California state law through California Penal Code 687. 4
It is a deeply entrenched concept of criminal law that a State should not be allowed to make repeated attempts to convict an individual for an alleged offense. 5 The government possesses immense powers and resources. Repeated attempts at a criminal conviction subjects a person to undue embarrassment and expense. It also increases the chances that an innocent individual may be found guilty. 6
After certain junctures in the criminal court process, the government loses its power to re-prosecute a defendant for the same offense. When this happens, we say that the defendant was already “once in jeopardy” or that “jeopardy attaches.”
But when exactly does jeopardy attach? Below are the most common instances where jeopardy has attached and therefore the defense of double jeopardy applies:
You will be entitled to raise the double jeopardy defense if you can show you were previously placed on trial for the same offense. 7
It is not necessary that the case is concluded or even partially concluded. All that is required is that the trial has begun. Once the trial has begun a defendant is in jeopardy as to whatever charges he or she is being tried for. 8 This generally means he cannot be prosecuted again for those same charges.
In a jury trial, jeopardy attaches when
- the jury selection is completed and
- when the jury members are sworn in. 9
In a court trial (cases without a jury, tried to a judge) jeopardy attaches when the first witness is sworn in. 10
If either of these circumstances previously occurred in charge against you, you can raise the double jeopardy defense to prevent prosecution for that same charge (or an included offense) again.
Once a jury trial has begun, any unwarranted discharge of the jury without a defendant’s consent, gives rise to the defense of double jeopardy if retried. 11
However, if there is some “legal necessity” that required the jury to be discharged the case may be retried. 12 In these circumstances, the double jeopardy defense is not available.
Legal necessity may arise from
- a juror’s illness or other incapacity,
- A juror’s absence,
- the inability of the jurors to agree (hung jury), or
- the incapacity or absence of the defendant, defense counsel, or the judge. 13
The prosecution cannot appeal a judgment after an acquittal, no matter how wrong the judgment may appear. Thus double jeopardy will serve as a complete defense to an additional prosecution for the same offense in the same jurisdiction. 14
Not all dismissals will give rise to a double jeopardy defense. However, any dismissal based on the merits of the charge will give rise to a double jeopardy defense. 15
In addition, dismissals based on the following circumstances will attach jeopardy:
Discharge of a Defendant to become a witness
In a case where there are two or more defendants charged with an offense, the court may discharge a defendant at any time to become a witness for the prosecution. 16 A court may also conclude that there is insufficient evidence against one defendant. In this circumstance the court must discharge that defendant so that he can be a witness for the prosecution. 17
In both of these circumstances, the double jeopardy defense is available. 18
Dismissal of a Misdemeanor
Dismissals of misdemeanors for failure to bring the case to trial in time generally give rise to the double jeopardy defense. 19
However, if the misdemeanor is charged together with a felony in the same case, the defense may not be available. 20
Second Dismissal of Felony
A second dismissal of a felony for failure to bring a case to trial in time will generally give rise to the double jeopardy defense. 21
Like acquittals, a conviction of a particular offense gives rise to a complete double jeopardy defense to the subsequent identical charge. 22 In other words, once a criminal defendant has been convicted of a crime, the government cannot come around and try to prosecute him again for the same crime.
It does not matter whether the defendant voluntarily plead guilty or whether he or she was convicted after a trial. Jeopardy attaches in both scenarios. 23
A prosecutor may expressly stipulate that a defendant will be convicted to a lesser degree or to a lesser offense that what they are charged with, as part of a plea deal. If you plead to this lesser offense as part of a plea deal, then the double jeopardy defense will be available to a subsequent case on the greater offense. 24
Let’s take a look at an example:
Example: Jason is charged with a DUI in California. As part of a plea deal he agrees to plead guilty to the lesser California wet reckless offense. Once he pleads guilty, double jeopardy will serve as a complete defense if the prosecution subsequently tries to charge him for a DUI again based on the same facts.
The double jeopardy defense is available in the following circumstance:
- The defendant is convicted of an offense at trial,
- the defendant appeals the conviction,
- the defendant’s appeal is granted, the judgment is reversed and the case is remanded for a new trial, and
- the prosecution at the new trial charges a greater offense than what was charged at the original trial.
Double jeopardy bars the prosecution from charging a greater offense at the new trial than what was charged at the original trial. 25 It also bars the imposition of a greater penalty at the new trial.
Let’s look at an example:
Example: Todd is charged and convicted of second degree murder. He appeals the conviction. The conviction is reversed and remanded for a new trial. At the new trial the prosecution seeks to charge Todd with first degree murder.
A double jeopardy defense would prevent the prosecution from charging Todd with first degree murder at the new trial. By convicting Todd of the lesser offense of second degree murder at the first trial, the jury impliedly acquitted Todd of the greater offense of first degree murder.
The defense of double jeopardy is available to subsequent charges of the same or included offenses. 26
A single act may give rise to multiple criminal offenses. Each California crime consists of several elements. In order to convict someone of a crime a prosecutor must prove each element of the crime beyond a reasonable doubt. 27
In California, a crime is a necessarily included offense of another crime if all its elements are also the elements of another crime. 28 A double jeopardy is a complete defense to a subsequent charge for an offense necessarily included in offense first charged. 29
Let’s see an example:
Example: Jeff gets into a fight with Mike outside of a bar. Jeff hits Mike over the head with a beer bottle. Jeff is arrested and charged with the California crime of assault with a deadly weapon per Penal Code 245(a)(1) PC (ADW) against Mike. Jeff is acquitted of the ADW charge. However, the prosecution subsequently charges Jeff with the California crime of simple assault per Penal Code 240 PC.
Jeff will be able to raise double jeopardy as a complete defense to the simple assault charge. Every element of Penal Code 420 assault is also an element of ADW. Thus assault is a necessarily included offense of ADW. Jeopardy attached to the battery charge and all its included offenses when Jeff was acquitted.
This principle also applies even if the first prosecution is for the lesser included offense. 30 If Jeff had first been charged with simple assault to begin with, and acquitted of that charge, the double jeopardy clause would still be a defense to a subsequent charge of assault with a deadly weapon per Penal Code 245(a)(1).
If he is not guilty of the lesser included offense of assault, he cannot be guilty of battery. Thus double jeopardy can be raised as a defense.
There are also a number of situations in California criminal law where people suspect that double jeopardy would apply, but in fact it does not. Let’s discuss some of these.
Double jeopardy only protects against repeated attempts at criminal prosecution. However, a prior civil court proceeding does not prevent a subsequent criminal prosecution, even though both cases may arise from the same events. 31
Example: David is driving while under the influence of alcohol. He runs a red light and hits Steven, a pedestrian. Steven dies from his injuries. Steven’s family sues David in civil court for damages on a wrongful death action. Steven’s family is awarded $1,000,000.00 in damages.
Subsequently the state charges David with gross vehicular manslaughter while intoxicated.
David will not be able to raise a double jeopardy defense against the gross vehicular manslaughter while intoxicated charge. This is because the previous civil proceeding did not attach jeopardy for the purposes of a criminal case against David.
As previously discussed, jeopardy does not attach to a criminal case until the defendant is placed on trial. 32
Thus, criminal proceedings that occur prior to the trial do not give rise to the double jeopardy defense.
Example: Brandon is arrested for the California crime of robbery per Penal Code 211, a felony. Brandon pleads not guilty at his criminal arraignment hearing. He then appears at his preliminary hearing. At the preliminary hearing, the judge finds that there is insufficient evidence to take the case to trial, and dismisses the Penal Code 211 case.
If the prosecution subsequently re-files the robbery charge against Brandon, he will not be able to assert a double jeopardy defense. Jeopardy does not attach during an arraignment hearing nor does it at a felony preliminary hearing. 33
The double jeopardy defense is designed to protect against the harassment of multiple trials. However, double jeopardy is inapplicable to acquittals, convictions, or dismissals of separate counts in a single trial. 34
Example: Debbie is charged with one count of battery and one count of assault. Both charges arose out of a fight Debbie had with Mona. The case goes to trial. The jury acquits her of the battery charge but deadlocks as to the assault charge. The judge declares a mistrial as to the assault charge.
If the state seeks to re-try Debbie as to the assault charge, she will not be able to assert a double jeopardy defense. This is because the battery and assault charge were separate counts in the same trial.
Disciplinary actions taken against prison inmates for violations of prison conduct, do not bar subsequent criminal prosecution for the same conduct. 35
Example: Nick is an inmate in a California state prison. He is punished with 20 days in solitary confinement after being found in possession of prison-made ‘shanks.’ He is subsequently charged and convicted of a violation of California Penal Code 4502 PC, possession or manufacture of a weapon in a penal institution.
Nick will not be able to assert a double jeopardy defense against the Penal Code 4502 charge.
The solitary confinement was a disciplinary measure for a violation of prison rules. Nick’s prison sentence was not extended. Jeopardy does not attach for mere administrative disciplinary measures.
A parole or probation revocation hearing is not a second criminal prosecution, as they are extensions of the original conviction. 36 Thus it is not subject to a double jeopardy defense.
Jeopardy does not attach to any proceeding unless there is a possibility of a valid conviction of the defendant. 37 If it found that a court does not have jurisdiction over a matter, any resulting conviction would be void. Jeopardy does not attach in a court that does not have jurisdiction. 38
Thus, a double jeopardy defense would not be available in a subsequent criminal prosecution in a court that does have valid jurisdiction over the matter. 39
If a defendant is convicted but the court then grants his motion for new trial, or if the judgment of conviction is reversed on appeal, the new trial is treated as if there had been no previous trial. 40 Thus double jeopardy will not be a defense at the new trial.
If a case is dismissed as a result of a legal necessity, double jeopardy will generally not bar a subsequent prosecution. 41
Legal necessity arises from a juror’s illness or other incapacity, juror’s absence, inability of the jurors to agree (hung jury), incapacity or absence of the defendant, defense counsel, or the judge. 42
Everyone is entitled to a California DMV hearing after DUI arrest to challenge whether a driver’s license suspension should be imposed. The DMV calls these hearings “Administrative Per Se” hearings or APS.
However, jeopardy does not attach during APS proceedings. Thus, double jeopardy will not be a bar to a subsequent criminal prosecution even if a defendant has received a determination on his driver’s license suspension at an APS hearing.
States are considered “separate sovereigns” from the federal government in the United States. This means that the states are considered largely independent government entities that have given up certain rights to the federal government
Jeopardy only attaches to prosecutions of the same criminal acts by the same sovereign. 43 Thus a state may prosecute individuals for a crime which they stood trial for in federal court. Federal authorities may also prosecute individuals for crimes they stood trial for in state court. The double jeopardy defense does not apply to either of these actions.
Some of those same officers were later charged and convicted in federal court for violating Rodney King’s civil rights.
The federal charges and convictions arose out of the same incident as the previous state case in Ventura County Superior Court. However, because the state of California and the federal government are separate sovereigns, double jeopardy did not bar the prosecution of those officers in federal court.
Call us for help
If you or a loved one is charged with double jeopardy and you are looking to hire an attorney for representation, we invite you to contact us at Shouse Law Group. We can provide a free consultation in office or by phone. We have local offices in Los Angeles, the San Fernando Valley, Pasadena, Long Beach, Orange County, Ventura, San Bernardino, Rancho Cucamonga, Riverside, San Diego, Sacramento, Oakland, San Francisco, San Jose and throughout California.
Additionally, we have law offices located in Reno and Las Vegas. For information relating to Nevada’s legal defenses, we invite you to contact a Nevada criminal defense attorney at one of our local Nevada law offices.
1U.S. v. Halper, 490 U.S. 435, 440 (1989) ‘[T]he Double Jeopardy Clause protects against three distinct abuses:  a second prosecution for the same offense after acquittal;  a second prosecution for the same offense after conviction; and  multiple punishments for the same offense.’
2 Our California criminal defense attorneys have local Los Angeles law offices in Beverly Hills, Burbank, Glendale, Lancaster, Long Beach, Los Angeles, Pasadena, Pomona, Torrance, Van Nuys, West Covina, and Whittier. We have additional law offices conveniently located throughout the state in Orange County, San Diego, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities. Please contact us at Shouse Law Group with any questions.
3 U.S. Const. amend. V. – “nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb.”
4 California Penal Code 687- “No person can be subjected to a second prosecution for a public offense for which he has once been prosecuted and convicted or acquitted.”
5Green v. United States 355 U.S. 184, 78 (1957) – “The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.”
6 Same as above.
7Smith v. Superior Court 5 Cal. App. 3d 260, 264 (1970)- “However, the essence of the Fifth Amendment proscription against a person being placed twice in jeopardy for the same offense is that he must have been placed on trial for the Same charge which is the basis for his claim of former jeopardy. Cases articulating the term ‘placed on trial’ speak in terms of the trial being ‘entered upon’.”
8 Same as above.
9People v. Finch 119 Cal.App.2d Supp. 892, 895 (1953)
10Richard M. v. Superior Court 4 C.3d 370, 376 (1971).
11Jackson v. Superior Court 10 Cal.2d 350, 357 (1937)
12 California Penal Code 1141 – “In all cases where a jury is discharged or prevented from giving a verdict by reason of an accident or other cause, except where the defendant is discharged during the progress of the trial, or after the cause is submitted to them, the cause may be tried again.”
13 People v. Fields 52 Cal.Rptr.2d 282 (1996).
14 California Penal Code 1023 – “When the defendant is convicted or acquitted or has been once placed in jeopardy upon an accusatory pleading, the conviction, acquittal, or jeopardy is a bar to another prosecution for the offense charged in such accusatory pleading, or for an attempt to commit the same, or for an offense necessarily included therein, of which he might have been convicted under that accusatory pleading.”
15 California Penal Code 1385 – “(a) The judge or magistrate may, either of his or her own motion or upon the application of the prosecuting attorney, and in furtherance of justice, order an action to be dismissed. The reasons for the dismissal must be set forth in an order entered upon the minutes. No dismissal shall be made for any cause which would be ground of demurrer to the accusatory pleading. (b) This section does not authorize a judge to strike any prior conviction of a serious felony for purposes of enhancement of a sentence under Section 667. (c)(1) If the court has the authority pursuant to subdivision (a) to strike or dismiss an enhancement, the court may instead strike the additional punishment for that enhancement in the furtherance of justice in compliance with subdivision (a). (2) This subdivision does not authorize the court to strike the additional punishment for any enhancement that cannot be stricken or dismissed pursuant to subdivision (a).”
16 California Penal Code 1099
17 California Penal Code 1100
18 California Penal Code 1101 – The order mentioned in Sections 1099 and 1100 is an acquittal of the defendant discharged, and is a bar to another prosecution for the same offense.
19 California Penal Code 1381
20 California Penal Code 1387
21 Same as above.
22 California Penal Code 1023 – “When the defendant is convicted or acquitted or has been once placed in jeopardy upon an accusatory pleading, the conviction, acquittal, or jeopardy is a bar to another prosecution for the offense charged in such accusatory pleading, or for an attempt to commit the same, or for an offense necessarily included therein, of which he might have been convicted under that accusatory pleading.”
23People v. Mims 136 Cal.App.2d 828, 289 (1955).
26 California Penal Code 1023 – “When the defendant is convicted or acquitted or has been once placed in jeopardy upon an accusatory pleading, the conviction, acquittal, or jeopardy is a bar to another prosecution for the offense charged in such accusatory pleading, or for an attempt to commit the same, or for an offense necessarily included therein, of which he might have been convicted under that accusatory pleading.”
27 Cal. Pen. Code § 1096
28People v. Thomas 59 Cal.App.2d 585, 587 (1943).
29 California Penal Code 1023
30People v. Krupa 64 Cal.App.2d 592, 598 (1944) – “Where prosecution for the included offense is first, and there is an acquittal, the defendant may not thereafter be tried for the greater, for if he is not guilty of the lesser included offense he cannot be guilty of the greater. A conviction of the lesser is held to be a bar to prosecution for the greater on the theory that to convict
31People v. Batey 183 Cal.App.3d 1281, 1289 (1986).
32People v. Finch 119 Cal.App.2d Supp. 892, 895 (1953)
33People v. Uhlemann 9 Cal. App.3d 662, 668 (1973) – Fifth Amendment does not bar further prosecution after dismissal at preliminary hearing.
34 California Penal Code 954 – An accusatory pleading may charge two or more different offenses connected together in their commission, or different statements of the 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. The prosecution is not required to elect between the different offenses or counts set forth in the accusatory pleading, but the defendant may be convicted of any number of the offenses charged, and each offense of which the defendant is convicted must be stated in the verdict or the finding of the court; provided, that the court in which a case is triable, in the interests of justice and for good cause shown, may in its discretion order that the different offenses or counts set forth in the accusatory pleading be tried separately or divided into two or more groups and each of said groups tried separately. An acquittal of one or more counts shall not be deemed an acquittal of any other count.
35In re Davis 25 C.3d 384, 394 (1979) – hearing on disciplinary segregation of prisoners does not foreclose criminal prosecution for same conduct.
36In re Coughlin, 16 C.3d 52, 60 (1976) and In re Gullatt, 69 C.2d 395, 398 (1968).
37 California Penal Code 1023 – “When the defendant is convicted or acquitted or has been once placed in jeopardy upon an accusatory pleading, the conviction, acquittal, or jeopardy is a bar to another prosecution for the offense charged in such accusatory pleading, or for an attempt to commit the same, or for an offense necessarily included therein, of which he might have been convicted under that accusatory pleading.”
38People v. Zadro 20 C.A.2d 320, 323 (1937) – [I]t is elementary that legal jeopardy does not arise where the court has no jurisdiction.”
39 Same as above.
40 California Penal Code 1180 – The granting of a new trial places the parties in the same position as if no trial had been had. All the testimony must be produced anew, and the former verdict or finding cannot be used or referred to, either in evidence or in argument, or be pleaded in bar of any conviction which might have been had under the accusatory pleading.
41 California Penal Code 1141 – “In all cases where a jury is discharged or prevented from giving a verdict by reason of an accident or other cause, except where the defendant is discharged during the progress of the trial, or after the cause is submitted to them, the cause may be tried again.”
42 People v. Fields 52 Cal.Rptr.2d 282 (1996).
43Bartkus v. Illinois, 359 US 121 (1959).