Double Jeopardy Prevents Conviction for Criminal Threats Involving Rottweiler

The Double Jeopardy Clause of the Fifth Amendment to the U.S. Constitution forbids a second trial to allow the prosecution a second, redundant opportunity to supply evidence which it failed to introduce in the first trial.  In other words, the prosecution cannot make repeated attempts to convict an individual for an alleged offense if it fails to do so on its original attempt.

Dale Wensigner was charged with two counts of assault by means of force likely to produce great bodily injury (Penal Code § 245(a)(1)) and three counts of making criminal threats (Penal Code § 422).  There were two victims.

In his first trial, he was convicted of all counts.  He appealed the judgment and the Fourth Appellate District reversed, partly because a reporter’s transcript was lost and partly because the court found there was insufficient evidence to support a conviction as to the second victim.

The underlying facts involved two victims, both in Lily King Park in Orange County.  Both victims experienced Wensinger unleashing his Rottweiler in 2003 with orders that it “attack, attack” while Wensinger yelled obscenities at the victims as the dog gave chase.  Wensinger would also allow the dog, while leashed, to jump up at the victims and snap its jaws just inches from their faces.  The Rottweiler did bite one of the victims, a sixty-five year  old man.

As to the second victim, it was alleged that Wensinger threatened him with his dog as well.  At the first trial, however, the second victim said that he was only “seventy percent” sure that Wensinger was the dog’s owner.  On appeal, this was found insufficient to support the conviction.

At the second trial, Wensinger was convicted of all counts pled in the first trial.  He was sentenced to nineteen years and four months in state prison.  The sentence was enhanced under Penal Code § 667(a)(1) due to two prior convictions.

Wensinger appealed the second conviction on multiple grounds, including that his conviction related to the second victim was barred by principles of double jeopardy.

The Fourth Appellate District, in People v. Dale Frank Wensinger (2012 DJDAR 3081), strongly agreed with Wensinger.  The Court noted that the prosecutor at the first trial agreed the evidence presented was insufficient at the first trial, but she stated she believed she could present additional evidence in the second trial.  The appellate court noted that the trial judge made comments about the bad faith and the professional responsibility of the prosecutor.

Moreover, in the opposing brief to the appeal, the prosecution agreed that the evidence in the first trial was insufficient to support the conviction.  Calling the Double Jeopardy Clause a bedrock principle that does not simply disappear, the Court found that the prosecutor in the second action “unabashedly” attempted to violate this principle.  In fact, on remand, the trial court should have dismissed the count related to the second victim.

Accordingly, the appellate court granted Wensinger’s appeal and dismissed the second conviction based on double jeopardy principles.

For more information about criminal threats, click on the following articles:
  1. What Are Criminal Threats and the Defenses to This Charge?
  2. Are Criminal Threats Protected Speech Under the First Amendment?  
  3. Immigration Consequences of a Plea to Misdemeanor Criminal Threats Are Not Grounds to Vacate a Judgment
For case summaries of selected cases our firm has handled, click here.

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