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In California How Many Times Can You Be Prosecuted For The Same Offense?

Almost everyone has heard of Double Jeopardy. The Constitution prevents you being tried twice for the same offense. There even was at least one movie called Double Jeopardy. However, what happens when you are arrested for one offense, plead guilty, and then the police discover evidence of a second offense and want to try you for that later discovered crime?

The recent case of People v. Barriga gives us the answer. Mr. Barriga was a passenger in a car that had been carjacked (a violation of Penal Code Section 215). One who is convicted of violating Penal Code Section 215 can be sent to State Prison for up to nine years. It is also a Strike violation under California’s Three Strike Law. Now Mr. Barriga didn’t want to get arrested so he resisted arrest, violating Penal Code Section 148(a). A violation of Penal Code Section 148(a) is a misdemeanor and is only punishable by up to one year in County Jail. Since Mr. Barriga was a passenger in the stolen car, he was only charged with violating Penal Code Section 148(a). He immediately pleaded guilty to the resisting arrest. The difference for Mr. Barriga in the possible sentence between carjacking and resisting arrest was huge.

Following Mr. Barriga’s guilty plea the police discovered cell phone calls that incriminated him in the carjacking itself. Of course, the prosecutors didn’t want to let Mr. Barriga off so easily so they now charged him with carjacking even though he had pleaded guilty to resisting arrest. It wasn’t double jeopardy because carjacking is a different crime than resisting arrest and he wasn’t being charged twice for the same thing. Can the DA get away with this?

The answer is no, the DA cannot charge Mr. Barriga with the carjacking, no matter how guilty of it he is. The court in Kellet 63 C2d822 bars the carjacking prosecution. The carjacking and the resisting arrest were the same course of conduct. The DA should have been aware of evidence of the carjacking and with reasonable efforts and due diligence could have discovered the evidence linking Mr. Barriga to the carjacking. If the DA was aware of the evidence linking the Defendant to the greater crime (carjacking) or could have gotten the evidence with reasonable efforts and due diligence they must charge the greater crime and not come after the Defendant in multiple prosecutions for the same course of conduct.

Every defense attorney must know about the Kellet decision because it prevents the Defendant from being prosecuted over and over for the same course of conduct even if it doesn’t go so far as to qualify for the Double Jeopardy exception. Therefore the DA can’t attack the Defendant over and over with big or small charges multiple times for the same thing until the Defendant doesn’t have the resources to defend himself anymore.

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