Batts

*665 Opinion

After an earlier joint trial on first degree murder indictments ended in mistrial as the result of the prosecution’s intentional misconduct, defendants Tracy L. Batts and Terrance McCrea were retried and convicted of those same charges. The Court of Appeal reversed the convictions, holding that the trial court erred by failing to grant defendants’ pretrial motions to dismiss on double jeopardy grounds, and remanding with directions to enter judgments of dismissal as to each defendant. We granted review to consider the circumstances under which a prosecutor’s intentional misconduct that results in a mistrial precludes retrial on double jeopardy grounds under the Fifth and Fourteenth Amendments to the federal Constitution, and under article I, section 15, of the California Constitution.

With regard to th $ federal constitutional double jeopardy issue, the United States Supreme Court held in Oregon v. Kennedy (1982) 456 U.S. 667 [ 102 S.Ct. 2083 , 72 L.Ed.2d 416 ] (Kennedy) that under the federal double jeopardy clause a retrial is prohibited following the grant of a defendant’s mistrial motion only if the prosecution committed the misconduct with the intent to…

I join in the majority’s holding that the double jeopardy clause of the California Constitution provides slightly broader protection than its federal counterpart. I write separately because, in my view, the Court of Appeal was correct that retrial is barred in the present case under the double jeopardy clause of the federal Constitution.

In Oregon v. Kennedy (1982) 456 U.S. 667 [ 102 S.Ct. 2083 , 72 L.Ed.2d 416 ], the high court held that when a defendant successfully moves for a mistrial based upon prosecutorial misconduct, the double jeopardy clause of the Fifth Amendment bars a retrial only if “the conduct giving rise to the successful motion for a mistrial was intended to provoke the defendant into moving for a mistrial.” (Id. at p. 679 [ 102 S.Ct. at p. 2091 ].) Despite the trial court’s contrary finding, I agree with the Court of Appeal that there is no doubt the prosecutors knew their intentional misconduct would provoke a mistrial.

As the majority opinion recounts in greater detail, defendant Tracy Batts was tried in 1998 for the murder of Brian Jones in a gang-related shooting. The victim’s brother, Benczeon Jones, was wounded during the attack and identified the…

After an earlier joint trial on first degree murder indictments ended in mistrial as the result of the prosecution's intentional misconduct, defendants Tracy L. Batts and Terrance McCrea were retried and convicted of those same charges. The Court of Appeal reversed the convictions, holding that the trial court erred by failing to grant defendants' pretrial motions to dismiss on double jeopardy grounds, and remanding with directions to enter judgments of dismissal as to each defendant. We granted review to consider the circumstances under which a prosecutor's intentional misconduct that results in a mistrial precludes retrial on double jeopardy grounds under the Fifth and Fourteenth Amendments to the federal Constitution, and under article I, section 15, of the California Constitution. [1]

With regard to the federal constitutional double jeopardy issue, the United States Supreme Court held in Oregon v. Kennedy (1982) 456 U.S. 667 , 102 S.Ct. 2083 , 72 L.Ed.2d 416 ( Kennedy ) that under the federal double jeopardy clause a retrial is prohibited following the grant of a defendant's mistrial motion only if the prosecution committed the misconduct with the intent to…