Trial Court: Santa Clara County Superior Court Superior Court No. CC773331 Trial Judge: Hon. Marc Poche
The opinion of the court was delivered by: Premo, J.
CERTIFIED FOR PUBLICATION
(Santa Clara County Super. Ct. No. CC773331)
A jury convicted defendant Benjamin Puentes of statutory rape of someone more than three years younger. The trial court suspended imposition of sentence and placed defendant on felony probation for three years. On appeal, defendant contends that (1) he was subjected to vindictive prosecution, (2) the conviction violates the proscription against multiple prosecution set forth in Penal Code section 654*fn1 as construed by Kellett v. Superior Court (1966) 63 Cal.2d 822, (3) the felony punishment violates the state Constitution's double jeopardy clause, and (4) venue in Santa Clara County was improper. We agree with defendant's vindictive-prosecution point. Since the point is dispositive, we will reverse the judgment and direct a dismissal without addressing defendant's secondary claims.
factual and procedural background
Defendant was a juvenile hall counselor. He befriended the victim during her stay in juvenile hall. When he learned that the victim was to be transferred to a group home in Fresno, he told the victim to telephone him at juvenile hall when she left the home and identify herself as someone "from the bank." At some point, the victim ran away from the group home and returned to San Jose. She contacted defendant and arranged to meet him at a 7-Eleven store. Defendant picked her up at the store and drove her to his home in South San Francisco. The two went inside, drank beer, became intimate, and had sexual intercourse.
The People charged defendant with statutory rape (felony) and contributing to the delinquency of a minor (misdemeanor). The jury failed to reach a verdict, and a mistrial resulted. On retrial, the jury failed to reach a verdict on the felony and a mistrial resulted. But it convicted on the misdemeanor. The trial court sentenced defendant to one year in jail and ordered him to register as a sex offender. The People then successfully moved to dismiss the felony. On appeal, we reversed defendant's misdemeanor conviction for instructional error. (People v. Puentes (Mar. 29, 2007) H029010 [nonpub. opn.].) On remand at a preliminary hearing, the magistrate found that the People had failed to prove all elements of the misdemeanor count, denied defendant's motion to dismiss the felony count grounded upon vindictive prosecution, double jeopardy, and improper venue, and held defendant to answer the felony only. In response to the information in the trial court, defendant again unsuccessfully moved to dismiss the felony count.*fn2
When defendant moved to dismiss at the preliminary hearing held before the third trial, the prosecutor testified that her motivation for moving to dismiss the felony count after the second trial was (1) "jurors told [her] that they just couldn't convict him [of a felony] because of what he did for a living [a law enforcement officer who would lose his job]," and (2) "defendant had received the maximum, [and] turned down probation, had been remanded into custody [and] . . . would lose his job and not have access to the juveniles again." She continued: "And because of the most compelling reason, that he was now in custody and got a year and was told he had to register, I was comfortable in coming back and telling his counsel and Court that we would forego further prosecution."
Defendant urges that he was punished for exercising his right of appeal after the second trial because the prosecutor reinstituted the felony charge.
The concept of a vindictive prosecution applies not only to vindictiveness by a bench officer (North Carolina v. Pearce (1969) 395 U.S. 711 (Pearce)), but also to conduct of a prosecutor (Blackledge v. Perry (1974) 417 U.S. 21 (Perry)). "Pearce and Perry dealt with post-conviction action by the state in response to the defendant's exercise of statutory rights. The central notion underlying the rule of those cases is that a person who has suffered a conviction should be free to exercise his right to appeal, or seek a trial de novo, without apprehension that the state will retaliate by 'upping the ante' with more serious charges or a potentially greater sentence." (People v. Bracey (1994) 21 Cal.App.4th 1532, 1543.) "To punish a person because he has done what the law plainly allows him to do is a due process violation 'of the most basic sort.' [Citation.] In a series of cases beginning with North Carolina v. Pearce and culminating in Bordenkircher v. Hayes [(1978) 434 U.S. 357], the Court has recognized this basic--and itself uncontroversial--principle. For while an individual certainly may be penalized for violating the law, he just as certainly may not be punished for exercising a protected statutory or constitutional right." (United States v. Goodwin (1982) 457 U.S. 368, 372.) Goodwin distinguished the situation, however, in which a defendant exercises a pretrial right from one in which the prosecutor acts after the defendant has exercised a post-conviction right. In the pretrial situation, no presumption of vindictiveness arises. A presumption of vindictiveness arises only if the prosecutor "ups the ante" after exercise of a post-conviction right. "While a defendant's exercise of some pretrial procedural right may present an opportunity for vindictiveness, 'a mere opportunity for vindictiveness is insufficient to justify the imposition of a prophylactic rule.' " (People v. Bracey, supra, at p. 1544.)
In Perry, the defendant was originally charged and convicted of a misdemeanor. He exercised his right to a trial de novo in a court of general jurisdiction. The prosecutor then obtained an indictment on felony charges, based on the same facts as those in the misdemeanor trial. The United States Supreme Court granted a habeas corpus petition, holding that "it was not constitutionally permissible for the State to respond to [the defendant's] invocation of his statutory right to appeal by bringing a more serious charge against him prior to the trial de novo." (Perry, supra, 417 U.S. at pp. 28-29.)
In Twiggs v. Superior Court (1983) 34 Cal.3d 360, the defendant's first trial resulted in a hung jury. Before the retrial, the prosecutor added five prior felony conviction allegations which had not been alleged in the first trial. The existence of the prior convictions was known at the time of the first trial. The amendment of the information to add the prior conviction allegations was presumptively vindictive. The California Supreme Court remanded for a hearing to determine whether the filing of the allegations was in fact retaliatory. (Id. at p. 375.)
In the case of In re Bower (1985) 38 Cal.3d 865, the defendant was originally charged with second degree murder. He successfully moved for a mistrial after jeopardy had attached. Upon retrial, the prosecutor increased the severity of the charges to first degree murder. The California Supreme Court held that the defendant was properly convicted at the ...