On December 2, 2015, Santa Barbara County Superior Court Judge Pauline Maxwell dismissed the Penal Code § 149 (assault under color of authority) allegations against former County Custody Deputies Chris Johnson and Robert Kirsch — charges that stemmed from the same facts that resulted in their acquittals in federal court after two trials this past summer, as previously reported in the PORAC Law Enforcement News. In moving to dismiss the felony actions it filed two years ago, the prosecution advised that it was not likely to achieve a more favorable result than in the federal cases.
Regardless, under the rare circumstances of this case, any attempt to pursue state charges would likely have been barred by the application of Penal Code sections 656, 793 and 794, which collectively forbid the pursuit of an action based on the same facts that were previously litigated to an acquittal or conviction in any state or federal court. The protections of these statutes, duly enacted in 1872, are distinguishable from those flowing from the double jeopardy clauses of the California and U.S. constitutions, which only forbid multiple prosecutions of charges already litigated to an acquittal or conviction when both prosecutions are within the same system, state or federal.
Since the federal acquittals, even based on virtually identical facts, were obviously rendered in a different system, the double jeopardy clauses did not protect the deputies from being retried in the California state court, but the noted statutes would appear to block any attempt to do so.
With the state charges now behind them, the former deputies look forward to their Civil Service appeals.
In all proceedings, Michael P. Stone, Muna Busailah and Robert Rabe of Stone Busailah, LLC, represented Chris Johnson, while Bill Hadden and Ken Yuwiler of Silver, Hadden, Silver & Levine represented Robert Kirsch.
About the Author
Ken Yuwiler is a partner in Rains Lucia Stern St. Phalle & Silver. He has represented public safety employees in civil and administrative cases for more than 20 years and often writes or lectures on related legal issues.