What is the test for a motion to dismiss a motion for a retrial after a mistrial?

The propriety of the order dismissing the action is a separate question. In the event of a mistrial at the urging of the defendant, the general rule is that defendant's request constitutes consent to a retrial that waives any double jeopardy claim. (People v. Batts (2003) 30 Cal.4th 660, 679-680.) Under the federal Constitution, retrial is barred only where the governmental conduct in question is intended to provoke the defendant to moving for a mistrial. (See Oregon v. Kennedy (1982) 456 U.S. 667, 679 [102 S.Ct. 2083, 72 L.Ed.2d 416].)

However, under the double jeopardy clause of the California Constitution, article I, section 15, when prosecutorial misconduct results in a defendant moving for and obtaining a mistrial, retrial is barred (1) if the prosecutor intentionally committed misconduct in order to trigger a mistrial, or (2) if he or she, believing the defendant was likely to obtain an acquittal, knowingly and intentionally committed misconduct to thwart that acquittal. (People v. Batts, supra, 30 Cal.4th at pp. 665-666.) The trial court is required to find, as an objective matter, that the prosecution's misconduct deprived the defendant of a reasonable or realistic prospect of acquittal. (Id. at p. 696; see also, Sons v. Superior Court (2004) 125 Cal.App.4th 110, 116.)