Double Jeopardy Bars Conviction for Criminal Threats

The Double Jeopardy Clause of the Fifth Amendment to the U.S. Constitution is often a purely academic concept taught in law school, but never having any application once one leaves the ivory towers of academia.

In a Nutshell:  In the following Orange County case, a prosecutor was found in flagrant violation of the double jeopardy clause by “unabashedly” prosecuting a man twice for criminal threats on the same set of facts.

In fact, the author of this case can count only one case in twenty-one years of practice wherein this concept barred prosecution and the judge handling the duplicative matter dismissed the case once we brought this issue to his attention.  In doing so, the judge remarked how unusual it was to see duplicative prosecution.

The Double Jeopardy Clause 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 alleged victims.


In his first trial, he was convicted of all five counts.  He appealed the judgment and the Fourth Appellate District reversed, partly because a reporter’s transcript was lost and partly because the appellate 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, a suburban neighborhood 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 by two five year terms that ran consecutive under Penal Code § 667(a)(1) due to Wensinger having two prior serious convictions (five years for each prior serious felony).

Fourth Appellate District Court in Orange County

The Fourth Appellate District in Santa Ana, in People v. Dale Frank Wensinger (2012 DJDAR 3081), strongly agreed with Wensinger.  The appellate court noted that the Orange County 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 warned here that were she to do so, she would violate the good faith and the professional responsibilities of a 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 if the prosecution believes it can present stronger evidence later, the appellate 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.

Contact Greg Hill & Associates