Murder conviction reversed on appeal

March 03, 2003 11:00 pm

By AMY LINDBLOM

A state appeals court has reversed the 2001 second-degree murder conviction of a Sonora woman after ruling that a Tuolumne County Superior Court judge wrongly removed a juror during deliberations.

The decision by the state Fifth District Court of Appeal in the murder trial of Brenda Warne means that, barring a California Supreme Court reversal of the appeals court ruling, Warne's case will return to Tuolumne County for retrial.

Warne, 38, was convicted of killing John Tocalino, 53, at his Willow Springs home in July 2000 by bludgeoning him to death. The presiding judge at the trial, Superior Court Judge Eric DuTemple, sentenced Warne to 15 years to life in prison. She is now incarcerated at Valley State Prison for Women in Chowchilla.

Immediately after Warne was sentenced, Sonora defense attorney David Axelrod filed an appeal based on what he called speculative evidence and because a juror was removed from the panel solely because she disagreed with other jurors pushing for a guilty verdict.

During the appeals process, Warne was represented by Los Angeles area appeals defense attorney Cara DeVito. DeVito called Friday's ruling a victory for Warne. Still, DeVito said she plans to file an appeal to the California Supreme Court so Warne's case will be in line to be overturned should a similar case currently under review by the high court set a precedent.

The high court is reviewing the case of People v. Cleveland. In that case, a juror was also dismissed. If overturned, the principles of double jeopardy could apply, DeVito said.

Double jeopardy — putting a person acquitted of crime on trial again for the same crime — is not allowed under the United States Constitution.

Additionally, the state Attorney General's Office may appeal the Fifth District ruling on the Warne case. Assistant Attorney General Robert Jibson said yesterday that his office has not yet reviewed the appeals court opinion, but would make a decision on an appeal in the next few days.