Metropolitan News-Enterprise


Tuesday, December 21, 2010


Page 1


C.A. Tosses Felony Charge Due to Vindictive Prosecution


By STEVEN M. ELLIS, Staff Writer


The Sixth District Court of Appeal yesterday threw out a former juvenile hall counselor’s felony statutory rape conviction, citing vindictive prosecution.

The panel held that the government failed to rebut a presumption of vindictiveness where a Santa Clara County prosecutor initially said justice was served following Benjamin Puentes’ misdemeanor conviction, but re-filed the felony charge after Puentes successfully appealed.

The state had argued that re-filing the charge merely reverted Puentes to the status quo ante, placing him “in the same position at the beginning of [a third] trial as he was at the beginning of his first two trials.”

Puentes was charged with statutory rape, a felony, and contributing to the delinquency of a minor, a misdemeanor, for his relationship with a young woman he befriended while she was staying in juvenile hall in San Jose.

The girl was transferred to a group home in Fresno, but ran away from the home and—following Puentes’ directions—called him at work identifying herself as “someone from the bank” to make arrangements for him to pick her up. Puentes met her at a 7-Eleven store and they returned to his South San Francisco home, where they drank beer and had sex.

Puentes’ first trial ended in a mistrial following a jury deadlock. On retrial, the jury again could not reach a result on the felony charge, but convicted Puentes of the misdemeanor, and the trial court sentenced him to one year in jail and ordered him to register as a sex offender.

The prosecution then dismissed the felony, but sought to reinstate it following the Court of Appeal’s May 2007 decision reversing Puentes’ misdemeanor conviction for instructional error.

On remand at a preliminary hearing, a magistrate found that the prosecution failed to prove all of the elements of the misdemeanor count, but denied Puentes’ motion to dismiss the felony count for vindictive prosecution.

Puentes appealed following a felony conviction at his third trial. He argued that dismissal after the second trial bound prosecutors not to re-file the charges absent new evidence. The state, however, contended that “the refilling was not an escalation of [the] misdemeanor charge, but rather the reinstatement of the previously dismissed felony offense in addition to the same misdemeanor offense that had been reversed and remanded on appeal.”

Writing for the court, Justice Eugene M. Premo agreed that the only charge Puentes faced following his first appeal was the same charge to which he had originally been subject. But the justice pointed out that the prosecution, in moving to dismiss the felony, implicitly accepted that dismissal was warranted “in furtherance of justice.”

He noted that the prosecutor who moved for dismissal of the felony explained her decision by telling the trial court that jurors would not convict Puentes, a law enforcement officer, of a felony that would lead to loss of his job, that it would be a waste of time to try the case a third time after failing twice, and that the misdemeanor conviction carried sufficient punishment.

But Premo said Puentes established a presumption of vindictiveness because the change gave the appearance that his successful appeal changed the prosecution’s idea about what was just.

“[A] a misdemeanor was on the table before the appeal and a misdemeanor and a felony were on the table after the appeal,” he wrote. “Under the circumstances, it appears that the successful appeal did in fact ‘up the ante.’ ”

Premo commented that the facts found by the magistrate did not show that prosecutors met their burden to dispel the presumption.

“[T]he prosecutor believed that justice had been served by the misdemeanor conviction only until defendant prevailed on appeal,” the jurist wrote. “That the magistrate found that the prosecutor was honest, serious, and acting in a good faith belief that she could prove the felony beyond a reasonable doubt does not overcome the undisputed fact that the prosecutor changed her mind about the interests of justice only after defendant prevailed on appeal.”

Presiding Justice Conrad L. Rushing and Justice Franklin D. Elia joined Premo in his opinion.

The case is People v. Puentes, H034546.


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