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November 24, 2010

Can a court order the state court to enter judgment on a lesser included offense?

Filed under: Los Angeles Criminal attorney — Tags: , , , , — fayarfa @ 7:00 pm

Douglas v. Jacquez, No. 08-17478 (11-24-10) (Bea with Callahan; Graber dissenting).

This is an interesting decision as to whether a court, granting habeas relief, can order the state court to enter judgment on a lesser included offense.

This California state habeas was filed regarding a conviction for first degree murder during a robbery and a conviction for arson of an inhabited structure. The sentence of the arson conviction was consecutive. As the facts played out, the arson occurred hours after the murder when the petitioner returned to destroy the evidence.

The victim was dead by then. The district court granted relief because of the victim’s prior demise, and ordered a judgment on the lesser included of arson of an uninhabited structure. On appeal, the petitioner argued that the district court couldn’t so order because it violated double jeopardy.

The 9th found no double jeopardy violation, but that the court could not order the lesser entered; it was up to the state to so resentence. The court’s habeas power is limited to vacation or postpone of vacation for a reasonable period to allow the state to resentence. The state could resentence because of state law as to sentencing for lesser included offenses when the trial evidence indicates that the defendant is not guilty of the greater crime but is guilty of the lesser. Although the jury was not instructed on the lessers here, the jury had to find the lesser offense to convict on the greater. The district court should grant the relief and let the state resentence.

Graber, dissenting, argues that double jeopardy is implicated. The jury was not instructed on lesser offenses here. As such, the district court could only grant the unconditional habeas. Double jeopardy is implicated because the petitioner may have gone with an all or nothing strategy.

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November 15, 2010

The Supreme Court today handed down its opinion in Abbott v US

Filed under: California Defense Attorney — Tags: , , , , — fayarfa @ 6:20 pm

Abbott/Gould decision released today

SCOTUS adopts majority reading of 924(c) mandatory minimum provisions in Abbott

The Supreme Court today handed down its opinion in Abbott v. US, No. 09–479

(available here).

In one of three actions Monday on criminal law issues, the Supreme Court ruled unanimously that Congress did not intend in 1998 to spare individuals convicted of federal crimes from an extra sentence if they used a gun during a drug offense or a violent crime.  That was the first decision of the Term in an argued case.  The Court also added two new criminal cases to its docket for decision this Term, involving a new aspect of the “exclusionary rule” and a clarification of the proof needed under a federal murder law.

The Justices unaniminously (and unsurprisingly) adopted the government’s approach to the application of the mandatory minimum gun sentences set forth in 924(c).

Here is a key paragraph from the start of Justice Ginsburg’s opinion for the Court:

We hold, in accord with the courts below, and in line with the majority of the Courts of Appeals, that a defendant is subject to a mandatory, consecutive sentence for a § 924(c) conviction, and is not spared from that sentence by virtue of receiving a higher mandatory minimum on a different count of conviction.  Under the “except” clause as we comprehend it, a §924 (c) offender is not subject to stacked sentences for violating §924(c).  If he possessed,brandished, and discharged a gun, the mandatory penalty would be 10 years, not 22.  He is, however, subject to the highest mandatory minimum specified for his conduct in §924(c), unless another provision of law directed to conduct proscribed by §924(c) imposes an even greater mandatory minimum.

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