[00:00:07] Speaker 02:
I'd like to reserve three minutes for my rebuttal.

[00:00:09] Speaker 02:
Please watch the comic.

[00:00:10] Speaker 02:
Thank you.

[00:00:13] Speaker 02:
The issue here, the central issue, is whether a trial judge, having just declared a mistrial because of a hung jury, can then turn around, immediately hold a hearing, consider all the evidence that was just presented to the jury, make a finding that the defendant not only wasn't in violation of probation but didn't commit the crime, and then

[00:00:37] Speaker 02:
after having previewed the weaknesses of the case for the state, pulled another jury trial, which of course ended in conviction.

[00:00:46] Speaker 02:
The important fact here is that the judge made a finding which was based on the sufficiency of the evidence.

[00:00:52] Speaker 02:
And under clearly established federal law, specifically Ash versus Swenson, that was an acquittal and retrial should have

[00:01:12] Speaker 01:
Jeopardy terminated with the conviction.

[00:01:15] Speaker 01:
But in this case, Jeopardy attached with the jury, but then there was no termination of that trial.

[00:01:23] Speaker 01:
There was a mistrial.

[00:01:25] Speaker 01:
So Jeopardy continued to the next case, correct?

[00:01:29] Speaker 01:
I know this was a separate civil probation revocation hearing.

[00:01:37] Speaker 02:
The fact that it was a civil

[00:01:47] Speaker 02:
cases say that it's a proceeding.

[00:01:49] Speaker 01:
It doesn't have to be part of the same criminal case.

[00:02:01] Speaker 01:
the civil trial on the same issues, and that's not barred by double jeopardy.

[00:02:07] Speaker 02:
But a probation revocation, Your Honor, is not just a civil matter.

[00:02:12] Speaker 02:
It's often referred to as a quasi-criminal matter.

[00:02:16] Speaker 02:
And just because it wasn't a new crime that was being tried, just because it was a probation revocation,

[00:02:27] Speaker 02:
to the jury under all the evidentiary standards of a jury trial and declared that he couldn't find a way to say that the defendant had committed the crime at all.

[00:02:36] Speaker 01:
So a juvenile proceeding has been determined to be criminal.

[00:02:41] Speaker 01:
Is there any case saying a probation replication hearing is criminal?

[00:02:46] Speaker 01:
I looked, Your Honor, and I do not find one, but I think the case suggests

[00:03:12] Speaker 01:
in which your honest face is civil and doesn't have the same standard approved as the preponderance, and there's no punishment.

[00:03:22] Speaker 01:
The issue is not whether they committed a crime.

[00:03:28] Speaker 01:
Why that was more criminal than civil?

[00:03:31] Speaker 02:
I think it comes down to what the issue was for the probation revocation.

[00:03:36] Speaker 02:
Probation revocations can be based on all sorts of things.

[00:03:39] Speaker 02:
Failed drug screen, failure to show up and meet with your probation officer, failure to take classes.

[00:03:44] Speaker 02:
Here, the only issue for the probation revocation was whether or not he committed the crime.

[00:03:50] Speaker 02:
That was the only issue.

[00:03:51] Speaker 02:
And just because there was no

[00:04:00] Speaker 02:
This does not mean that this wasn't an acquittal.

[00:04:03] Speaker 02:
An acquittal, there's no case that says that an acquittal is only something that ends in a conviction.

[00:04:09] Speaker 01:
Well, it's not an acquittal of a criminal proceeding.

[00:04:12] Speaker 01:
I mean, because for a criminal proceeding, you would have to attach, you have the jury trial, and there would be a conviction or acquittal.

[00:04:20] Speaker 01:
So the probation or vacation hearing wasn't involved.

[00:04:27] Speaker 02:
principles, Your Honor, I believe that because all of the facts necessary to resolve the matter between the parties, which was whether or not he was a felon in possession, were resolved by a ruling by the trial judge, that this was- Isn't that, sorry to interrupt- Yes.

[00:04:43] Speaker 00:
Is that really, really the crux of your argument really is a collateral stop law argument, not really a double jeopardy.

[00:04:49] Speaker 00:
I guess the problem for your client is the state court rejected the collateral stop law under state law saying there's a public policy exception.

[00:04:56] Speaker 00:
So it seems like it's really

[00:05:02] Speaker 02:
is embodied in the Fifth Amendment, and there are cases that follow ASH that... But the double jeopardy always involves two criminal proceedings.

[00:05:11] Speaker 00:
So it really is, this is really a collateral off-stop argument, and that makes sense, but the state court rejected that.

[00:05:17] Speaker 02:
Well, the state court rejected a partial claim that was, there was no double jeopardy claim under either the state constitution or the federal constitution, originally, if that's what you're,

[00:05:32] Speaker 02:
of Appeals said that all of the elements of collateral stop would have been satisfied.

[00:05:37] Speaker 02:
But because of this public policy exception that probation revocation hearings don't implicate double jeopardy in California, not as a question of federal law, that's why they rejected it.

[00:05:54] Speaker 02:
opinion that all the elements were met.

[00:05:56] Speaker 02:
And then when the double-debate claim is raised, there's no public policy exception for probation revocation here.

[00:06:04] Speaker 00:
So suppose DOJ investigates a company for antitrust violation, and they bring a civil lawsuit for bid rigging, but the government loses.

[00:06:15] Speaker 00:
Then a few months later, they continue their investigation, and they find just a treasure trove of evidence of bid rigging.

[00:06:21] Speaker 00:
Would DOJ

[00:06:26] Speaker 00:
criminal antitrust lawsuit against criminal, excuse me, criminal prosecution against the company?

[00:06:33] Speaker 02:
I would like to make sure that I understand your hypothetical before I start talking.

[00:06:37] Speaker 02:
So the first proceeding was a civil investigation?

[00:06:40] Speaker 00:
The civil suit, antitrust claim on bed rigging.

[00:06:42] Speaker 00:
The government loses.

[00:06:43] Speaker 00:
Later they find more evidence that they bring a criminal antitrust prosecution against the company.

[00:06:50] Speaker 00:
Would double jeopardy preclude that lawsuit?

[00:06:55] Speaker 02:
say it was certainty that it couldn't happen under, you know, collateral stable principles.

[00:07:02] Speaker 00:
Yeah, that's my point.

[00:07:03] Speaker 00:
It seems it's more collateral stable and not double jeopardy like in this case.

[00:07:07] Speaker 02:
But I think the important fact here again is that the probation revocation hearing came on the heels of the mistrial and then the judge found based on the sufficiency of all the state's evidence that he had not committed the crime.

[00:07:23] Speaker 01:
So we have to say that the state court's conclusion that a state felon possession conviction was not part of the Double Jump City Clause is an unreasonable application, I guess, of cash.

[00:07:41] Speaker 01:
Because there's no case directly on point.

[00:07:45] Speaker 01:
So under a deference.

[00:08:14] Speaker 02:
of committing the infraction, then the state came up with more evidence that suggested that he had lied about who he was.

[00:08:22] Speaker 01:
That was a nine circuit case, so we're only to look at Supreme Court cases for determining the evidence.

[00:08:30] Speaker 02:
Correct, but that was one case in which this court interpreted Ash to find.

[00:08:35] Speaker 03:
Can I suggest that I think your best case is Evans versus Michigan in the sense that an acquittal is

[00:08:49] Speaker 03:
court's finding of insufficient evidence also is equivalent of an acquittal.

[00:08:54] Speaker 03:
Those cases defining an acquittal as any kind of judgment by the court that the evidence isn't enough.

[00:08:59] Speaker 03:
It seems like you've gone off on the tangent away from what I think are your best cases.

[00:09:02] Speaker 03:
I'm not quite sure why.

[00:09:04] Speaker 03:
But so if we take the idea that your best argument is that this, the revocation to

[00:09:18] Speaker 03:
by a court that is not enough evidence could be an acquittal.

[00:09:21] Speaker 03:
I still kind of think you have a problem.

[00:09:23] Speaker 03:
So the problem that I see in your argument, with that being the argument, is that to actually do an acquittal, the judge has to look at all the evidence in the favor of the government.

[00:09:35] Speaker 03:
And I think this revocation determination was actually just the judge viewing the evidence whatever way the judge wanted to and not in the government's favor.

[00:09:45] Speaker 03:
Do you agree with that?

[00:09:49] Speaker 02:
I don't agree with that judge because the trial judge went through all of the evidence and considered how it fit in, did consider that there was some impeachment of a defense witness, did consider that there was some evidence that might not have been introduced.

[00:10:07] Speaker 02:
that would help the officer out, if I remember it correctly.

[00:10:12] Speaker 03:
And I guess my question is, in making the credibility determination, so to actually direct a verdict in a criminal trial, the court would have to say, even assuming that the jury believes the government's side of all of the credibility determinations, it would still not be enough evidence.

[00:10:38] Speaker 03:
the revocation determination, I don't think it has this, like, all evidence in favor of the government concept, does it?

[00:10:45] Speaker 02:
Well, I think that brings us back to IAC, Ronna, if that's the case, because trial counsel should have objected at some point along the line here and should have asked for a directed verdict.

[00:10:56] Speaker 02:
That would have been one way to solve this problem.

[00:10:58] Speaker 02:
I think if trial counsel had asked for a directed verdict in that

[00:11:10] Speaker 01:
On the criminal case.

[00:11:12] Speaker 01:
In the criminal case.

[00:11:13] Speaker 01:
So you're saying that there was a mistrial, and the attorney heard not saying the bringing of sufficiency of the evidence claim.

[00:11:24] Speaker 01:
Is that your argument?

[00:11:26] Speaker 01:
I'm sorry, could you repeat that?

[00:11:27] Speaker 01:
No, there was a mistrial.

[00:11:29] Speaker 01:
And you're saying after the mistrial or before the mistrial, the attorney heard by not moving for

[00:11:45] Speaker 01:
what you're thinking should have happened.

[00:11:47] Speaker 02:
I just, I, I, the, the judge was, just to go back to Judge Friedland's question, because I think this will answer yours as well, um, the trial judge held this hearing, weighed all the evidence, and made a finding that he hadn't committed the crime.

[00:12:00] Speaker 01:
You're talking about the probationary?

[00:12:01] Speaker 01:
Yes.

[00:12:02] Speaker 01:
Yes.

[00:12:02] Speaker 01:
I mean, it could have been a completely separate proceeding before a different magistrate judge.

[00:12:11] Speaker 01:
you know, is something you'd note, but I don't see how that has legal significance.

[00:12:16] Speaker 02:
But the crux of it is that it's between the parties.

[00:12:21] Speaker 02:
You're right, I think it doesn't matter that it was the same judge.

[00:12:25] Speaker 02:
That's just a fact of this really unusual case.

[00:12:29] Speaker 02:
It could have been in front of a different judge, but if the parties were there and the court made a ruling that the defendant didn't commit the crime, then that presents a double jeopardy problem.

[00:12:56] Speaker 04:
Good morning and may it please the court, Los Angeles County Deputy District Attorney Elizabeth Marks will respond in this matter.

[00:13:05] Speaker 04:
There's no question that the Fifth Amendment guarantee against double jeopardy protects against further prosecution after a merits-based acquittal of a crime charged.

[00:13:18] Speaker 04:
Petitioner asserts that petitioner was in fact acquitted

[00:13:23] Speaker 04:
of the primary charge in this case of being a felon in possession of a firearm after his first trial when the court decided not to violate his probation on a separate earlier case for felony resisting in which he had already been convicted because the doctrine of collateral estoppel applied.

[00:13:49] Speaker 04:
However, as this court has noted already this morning,

[00:13:53] Speaker 04:
probation violation hearings simply do not trigger the protections of double jeopardy.

[00:14:00] Speaker 04:
And that is because probation violation hearings in a different case cannot form the basis of an acquittal in a current criminal case.

[00:14:10] Speaker 03:
So that's usually true.

[00:14:12] Speaker 03:
But what happened here, as I understand it, is there was a criminal trial.

[00:14:16] Speaker 03:
If there had been a not guilty verdict, that definitely would have meant there couldn't be another trial, right?

[00:14:25] Speaker 03:
At the end of that trial, the judge who watched the evidence said, I don't think you committed the crime.

[00:14:33] Speaker 03:
There are cases, although I'm not sure why they didn't really cite them, but there are cases that say that any ruling that the prosecution's proved is insufficient to establish criminal liability for an offense is an acquittal, no matter what the judge calls it.

[00:14:46] Speaker 03:
So why isn't this an acquittal?

[00:14:50] Speaker 03:
to Evans specifically just as an example.

[00:14:52] Speaker 04:
Evans or Richardson.

[00:14:53] Speaker 04:
Okay, so in Evans there was actually an acquittal because the court had found, I'm sorry, it was based on the judge's mistake and belief.

[00:15:01] Speaker 04:
That's my recollection in Evans, correct?

[00:15:03] Speaker 03:
It's either Richardson or Evans, yes.

[00:15:06] Speaker 03:
One of them is the mistake about the law that applied and the judge thought that the person was

[00:15:22] Speaker 04:
which is not essentially criminal.

[00:15:23] Speaker 03:
But the oddity of these facts, it's true that there could have been a whole separate hearing and it would definitely not matter.

[00:15:30] Speaker 03:
But the oddity here is there was no new evidence.

[00:15:32] Speaker 03:
It's the same judge.

[00:15:33] Speaker 03:
It's immediately after.

[00:15:34] Speaker 03:
And basically, the determination that the person didn't commit this offense was exactly on the criminal trial presentation.

[00:15:43] Speaker 03:
So in that weird situation that happened here,

[00:15:55] Speaker 03:
or whatever the judge calls it.

[00:15:57] Speaker 04:
The issue here is that the court did not issue a directed verdict.

[00:16:03] Speaker 04:
We talked a little bit about this when counsel was arguing.

[00:16:06] Speaker 04:
The court absolutely could have done that.

[00:16:08] Speaker 04:
The first trial ended in a hung jury, seven to five, four acquittal, and there was a mistrial declared.

[00:16:15] Speaker 04:
Now at that point,

[00:16:18] Speaker 04:
its responsibilities and what it is unable to do and it could have issued a directed verdict of acquittal.

[00:16:25] Speaker 03:
How do we know that the judge knew that?

[00:16:27] Speaker 03:
I mean, I think that is the better, I think that the argument should be that the effective thing to do by counsel here would have been to ask for a directed verdict despite the hung jury, right?

[00:16:39] Speaker 03:
How do we know that the judge considered doing that and it wasn't

[00:16:49] Speaker 04:
or not pointing it out, because even though the judge has the ability to do that and the power to do that, it doesn't mean the judge necessarily intended to do that or wanted to do that.

[00:17:00] Speaker 04:
And in this case, the court actually immediately reset this case for a second trial.

[00:17:05] Speaker 04:
So I think that that is determinative on that issue at this point.

[00:17:08] Speaker 04:
And I would like to point out as well that there is no United States Supreme Court case, any precedent,

[00:17:17] Speaker 04:
that encounters this exact factual scenario, as Your Honor points out, it is unique.

[00:17:23] Speaker 04:
However, we do know that jeopardy in the federal context denotes risk.

[00:17:31] Speaker 04:
And that is the risk of being prosecuted repeatedly for the same offense.

[00:17:36] Speaker 04:
And the hardship that goes along with that, the stress and the unpredictability that goes along with that, and that risk

[00:17:51] Speaker 04:
revocation hearing, which is essentially not criminal in nature.

[00:17:56] Speaker 01:
Okay, so you say no Supreme Court case on point.

[00:17:59] Speaker 01:
How does that fit into our EDPA analysis?

[00:18:03] Speaker 04:
Well, I think in terms of the EDPA analysis, we need to look as to whether the state court decision is directly contrary to or an unreasonable application of clearly established federal law.

[00:18:19] Speaker 04:
And it's abundantly clear that it is not because there is no case directly on point.

[00:18:26] Speaker 04:
And I know that counsel primarily, I know there are other cases cited as well, but Ash is the primary case that's cited on the doctrine of collateral estoppel.

[00:18:38] Speaker 04:
But I would offer to this court that the doctrine of collateral estoppel is an ingredient

[00:18:47] Speaker 04:
jeopardy.

[00:18:48] Speaker 04:
It is not the end-all and it is not determinative.

[00:18:52] Speaker 04:
And in fact, Ash squarely held that while collateral estoppel is ingredient embodied in the guarantee against double jeopardy,

[00:19:04] Speaker 04:
It only applies insofar as necessary to safeguard against the risk of double jeopardy.

[00:19:10] Speaker 04:
That risk simply doesn't come up in this context of a probation violation hearing, and that is because there's no additional punishment that goes along with a probation violation.

[00:19:24] Speaker 04:
A probation violation hearing comes up after a defendant, in this case, petitioner,

[00:19:33] Speaker 04:
And the court has granted them the leniency of not imposing sentence.

[00:19:39] Speaker 04:
They suspend the imposition of sentence.

[00:19:42] Speaker 03:
Am I right that in that context, the court does not have to view all of the evidence in the government's favor?

[00:19:49] Speaker 04:
Your Honor, I cannot answer you one way or another.

[00:19:52] Speaker 04:
I believe that is the case.

[00:19:53] Speaker 04:
But I wouldn't want to tell you yes, because I can't say that with certainty.

[00:20:03] Speaker 03:
the judge probably just has to weigh the evidence de novo or whatever without any sort of slant.

[00:20:11] Speaker 03:
And if so, then I don't think it's equivalent to an acquittal because you couldn't direct a verdict without having this kind of in the government's favor slant.

[00:20:20] Speaker 03:
So I think this isn't equivalent to an acquittal even kind of on

[00:20:29] Speaker 04:
in the situation, and that is because there's no attachment of jeopardy.

[00:20:34] Speaker 04:
There's no new punishment to be had.

[00:20:36] Speaker 03:
Well, so I disagree with you about that.

[00:20:37] Speaker 03:
Say the jeopardy would be because this really was essentially a ruling about what had just happened in a criminal trial where that would be a jeopardy situation.

[00:20:45] Speaker 03:
So if the question is, is this ruling really equivalent to a directed verdict, then I guess the question is, was the analysis that needed to go into the revocation decision

[00:20:55] Speaker 03:
go into a directed verdict.

[00:20:57] Speaker 03:
I think the answer is no, but it sounds like you don't know for sure.

[00:20:59] Speaker 04:
I wouldn't, again, Your Honor, because I don't have a case to point to the court or anything of that nature, I want to leave that alone.

[00:21:07] Speaker 04:
I don't want to mislead this court in any way.

[00:21:11] Speaker 00:
I think everyone agrees, I think everyone agrees that if the probation or revocation was a separate proceeding, there would be no double jeopardy.

[00:21:20] Speaker 00:
weird thing here, I think Judge Friedland, you know, talked about it as it was the, in some ways, you know, the same proceeding, same evidence, same judge, kind of occurred the same thing.

[00:21:29] Speaker 00:
I mean, is it truly a distinct proceeding, given that the judge considered the exact same evidence?

[00:21:38] Speaker 00:
And that's probably, you know, this type of fact pattern probably won't ever happen again, or it would be very, very rare, but it's just that that's the one that gives me pause here.

[00:21:45] Speaker 04:
It is distinct, and I would like to point out to the court that

[00:21:49] Speaker 04:
just how it's noteworthy how far the court's findings during the course of the probation revocation hearing really were from an acquittal.

[00:22:00] Speaker 04:
I think it shows the court's state of mind, and I say that because we know the first trial on the felon in possession charge ended in a hung jury.

[00:22:09] Speaker 04:
We all agree.

[00:22:10] Speaker 04:
Council agrees as well.

[00:22:11] Speaker 04:
There was a mistrial.

[00:22:13] Speaker 04:
It was set for a second trial.

[00:22:15] Speaker 04:
Now, with regard to the probation violation,

[00:22:20] Speaker 04:
The court's action, the court's comments, I should say, the words that the court used were really meant to keep things status quo in the case in the probation violation proceeding.

[00:22:35] Speaker 04:
The court took no dispositive action in that proceeding.

[00:22:39] Speaker 04:
In fact, the court expressly stated

[00:22:42] Speaker 04:
all make clear on the record that the court has not decided anything.

[00:22:47] Speaker 04:
And that was after the court stated, I sat through this trial, I've heard all of the evidence, and I believe by a preponderance that the standard wasn't met.

[00:23:00] Speaker 04:
But the court then said, again, all make clear on the record the court has not decided anything.

[00:23:06] Speaker 04:
This action simply cannot be said to amount to a judgment of acquittal.

[00:23:16] Speaker 04:
on an entirely different charge, a criminal charge, of which the court had just declared a mistrial.

[00:23:24] Speaker 04:
And if I can, because I see that I'm going to run out of time fairly soon, turn to petitioners in effective assistance of counsel claim.

[00:23:35] Speaker 04:
there cannot be a Sixth Amendment violation for failing to object to the setting of the second trial after the hearing on the probation violation if there was no Fifth Amendment violation to begin with.

[00:23:51] Speaker 04:
The court in that situation had no obligation to object because there was no reason to object, no reasonable belief that any different outcome would occur.

[00:24:05] Speaker 03:
And in terms of the EDPA review, and we've touched on this a little bit, but looking at this case overall, petitioner has not demonstrated that the state court's- Can I just ask, given that the judge said, I cannot say that it is more likely than not that Mr. Ochoa on the facts that I have before the court at this time committed the crime, if the lawyer had said, I would like to request a directed verdict, you think the judge would have denied it?

[00:24:31] Speaker 03:
I tend to think the judge would have denied it.

[00:24:33] Speaker 04:
It was very clear in this case that the court wasn't intending to take any further action in this case at all.

[00:24:42] Speaker 04:
The court left it all for another day and for another judge.

[00:24:46] Speaker 04:
That seemed very clear from the record.

[00:24:49] Speaker 03:
It seems like there are inconsistent things, though, that the judge is saying, because that sentence sounds like if the lawyer had said, please give me a directed verdict, then the judge would be in a bit of a bind.

[00:25:01] Speaker 04:
I agree with this court.

[00:25:02] Speaker 04:
This is a very unique set of facts.

[00:25:05] Speaker 04:
But the attorney did not say that.

[00:25:07] Speaker 04:
The court.

[00:25:08] Speaker 04:
And so why isn't that an effective assistance of counsel?

[00:25:12] Speaker 04:
Well, if I could point out to the court, that wasn't even the issue that was briefed by the petitioner.

[00:25:18] Speaker 04:
The issue was based on the probation violation hearing.

[00:25:22] Speaker 04:
It wasn't counsel was ineffective because he failed to ask for a directed verdict.

[00:25:27] Speaker 04:
That wasn't even briefed by either side because it wasn't brought up.

[00:25:35] Speaker 04:
Here, there were clear-cut reasons based on both the Fifth and the Sixth Amendment of the United States Constitution to deny relief.

[00:25:44] Speaker 04:
And for that reason, respondent believes, respectfully requests that the court deny petitioner the request of relief.

[00:25:53] Speaker 04:
And I say that because he was not acquitted after the first trial by jury or by the court's findings on the probation violation.

[00:26:00] Speaker 04:
Nothing about this case

[00:26:07] Speaker 04:
violation occurred here and unless the court has any further questions for me I will submit.

[00:27:08] Speaker 02:
larger scheme of the whole IAC claim that was pled, that's part of it.

[00:27:14] Speaker 02:
And we've been talking about it today, so I thought I would address it.

[00:27:18] Speaker 02:
I'd also like to talk about what happened at the probation violation hearing with the language that was used.

[00:27:25] Speaker 02:
The standard was preponderance of the evidence much lower than what the government or what the state had

[00:27:38] Speaker 02:
This is at 3ER-442, after discussing what Officer Ortega said about what he witnessed, said, I found him to be credible.

[00:27:50] Speaker 02:
So he is crediting the prosecution's evidence.

[00:28:27] Speaker 01:
taking the light in the x and y most favorable to the

[00:28:57] Speaker 02:
Well, I'm sorry, I lost my train of thought.

[00:29:01] Speaker 02:
You're running out of time, so I need to wrap up.

[00:29:06] Speaker 02:
Okay, two things that the state said regarding new punishment.

[00:29:11] Speaker 02:
It's not required to prove a double jeopardy claim that there's a new punishment that's happening.

[00:29:16] Speaker 02:
We have a lot of cases that don't have a new punishment involved in the triggering proceeding.

[00:29:24] Speaker 02:
for risk of double jeopardy not being present in this case.

[00:29:26] Speaker 02:
It was absolutely present in this case because the judge heard all the evidence that the state had.

[00:29:31] Speaker 02:
This was a short trial.

[00:29:33] Speaker 02:
There wasn't a lot of evidence to weigh.

[00:29:35] Speaker 02:
The judge heard it all.

[00:29:36] Speaker 02:
It was presented again at the second trial.

[00:29:38] Speaker 02:
After the judge had gone through and weighed all this evidence and told the prosecutor basically where the weaknesses were in their case and then of course that's how we