Valenzuela-Gonzales

Victor Valenzuela-Gonzales (Gonzalez) appeals his conviction of two counts of robbery (Pen. Code, § 211) and two counts of kidnapping by force (§ 207, subd. (a)) following a court trial based on the transcripts and documents of previous proceedings in the case. The trial court also found Gonzales used a deadly weapon in the commission of each offense within the meaning of section 12022, subdivision (b). The court trial followed a mistrial granted because of prosecutorial misconduct and a subsequent jury trial in which the trial court granted a new trial because of instructional error.

Gonzales contends the federal double jeopardy clause should have barred his retrial because the prosecutorial misconduct in his first trial was intended to provoke him into moving for a mistrial. Gonzales also asks us as a matter of first impression to interpret the state’s double jeopardy clause as a bar to retrial where the prosecutor consciously engages in prejudicial misconduct and either intends or is indifferent to the resulting mistrial.

Facts

College students Matthew Carey and Kathleen Earley arrived in San Diego on Thanksgiving Day, November 24, 1983. After dining in Tijuana,…