January 2, 2011 By Stephen Klarich

When a prosecutor abuses his authority with the intent to punish a criminal defendant for exercising (or attempting to exercise) a legal right, vindictive prosecution is said to have occurred. What typically happens in these situations is that the prosecutor decides to unfairly increase the severity of the existing charges for no other reason than to punish the defendant.

In the criminal justice system, prosecutors have broad discretion when it comes to deciding on what offenses to prosecute and what terms of punishment to impose. Since prosecutors have been appointed to represent the interests of the people, their decisions must be based on what would best serve society in terms of its health and safety. Therefore, prosecutors would typically pursue the severest penalties to match the most heinous crimes. However, a prosecutor is still bound to respect a defendant’s due process rights and recognize that they are entitled to the same protection of the law, which means his decisions cannot be based on unconstitutional motives or bad faith.

In a recent decision handed down by the California Courts of Appeal, 6th District, the lower trial court decision was reversed due to a finding of vindictive prosecution in a statutory rape case. The defendant Benjamin Puentes was a juvenile hall counselor who befriended the victim during her stay. When she was transferred to a group home in Fresno, Puentes told her to contact him by telephone. At some point, the victim ran away from the group home and contacted Puentes who arranged to pick her up at a 7-Eleven store. Puentes picked her up and drover her to his home where they drank beer, became intimate, and had sexual intercourse.

Puentes was charged with statutory rape (a felony) and contributing to the delinquency of a minor (a misdemeanor). After a mistrial, Puentes was tried again where the jury failed to reach a verdict on the felony count but convicted Puentes on the misdemeanor. Puentes was sentenced to one year in jail and ordered to register as a sex offender. The prosecution dismissed the felony count. Puentes, however, later appealed and successfully reversed the misdemeanor conviction. In preparation for a third trial, Puentes failed to get the newly reinstituted felony count dismissed on vindictive prosecution grounds and was later convicted found guilty of the felony by the third jury.

Puentes appealed the verdict with the contention that the prosecution reinstituted the felony charge as a punishment for exercising his right to appeal the misdemeanor conviction from the second trial. The 6th District agreed with Puentes, noting that he had only been subject to a misdemeanor before his appeal, but was later subject to both a misdemeanor and a felony afterwards. Under the circumstances, it appeared to the court that the prosecutor only added the felony charge because of Puentes’ success on appeal, which raised a strong presumption of vindictive prosecution.

The reality is that there is very little within the court system that keeps the conduct of the prosecution in check, which is why it is very important that you seek the legal assistance of an experienced criminal defense attorney. The only defense you have against possible prosecutorial misconduct or vindictive prosecution is your attorney. At Wallin & Klarich, our attorneys have been in practice for over 30 years protecting the rights and interests of our clients. Call us today at (877) 466-5245. We will be there for you.

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