People v. Bonner

Opinion

KAUS, P. J.

On March 11, 1977, defendant was sentenced for violations of section 11351 of the Health and Safety Code. The court found that as charged in count 1 of the information defendant “possessed for sale one-half ounce or more of heroin within the meaning of Penal Code section 1203.07.” Defendant appealed. On August 30, 1978, we filed an opinion in which we affirmed the conviction on the issue of guilt but found that the record did not contain substantial evidence that the heroin in question weighed one-half ounce or more. We remanded therefore for the sole purpose of retrying the question of weight.

Defendant petitioned for a rehearing and drew our attention to

Burks

v.

United States

(1978) 437 U.S. 1 [57 L.Ed.2d 1, 98 S.Ct. 2141], and its impact on the retrial which we had ordered.

The defendant in

Burks

had been tried for robbery. The court of appeals reversed on the ground that the evidence was insufficient to support the verdict. It did not, however, terminate the prosecution but returned it to the district court with directions which made a further trial possible. Prohibiting any further proceedings, the Supreme Court held that the double jeopardy clause “forbids a second trial for the purpose of affording the prosecution another opportunity to supply evidence which it

[575]

failed to muster in the first proceeding. This is central to the objective of the prohibition against successive trials.”

(Id.,

p. 11 [57 L.Ed.2d at p. 9].)

As Bonner sees it, the court was talking about him. The limited retrial which we ordered could convert a probationable conviction into one for which state prison was mandated—provided, of course, that this time the People are able to prove what they were unable to show at the first trial—that defendant possessed a half-ounce of a substance containing heroin. (See Pen. Code § 1203.07, subd. (a).) The People deny that