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Name: People v. Scott
Case #: D033131
Court: CA Court of Appeal
District 4 DCA
Division: 1
Opinion Date: 09/12/2000
Subsequent History: Review denied 1/10/01

While appellant’s claims of double jeopardy were waived because he failed to raise them in the trial court, the Court of Appeal nonetheless disposed of the double jeopardy claims on the merits within appellant’s claim that his trial attorney was ineffective for failing to raise the double jeopardy bar in the trial court. The Court of Appeal found that the convictions were not double jeopardy barred and that trial counsel was not ineffective for failing to raise the double jeopardy bar. A mistrial had been declared in the first trial as to the forcible sex offenses, and the jury had convicted appellant of non-forcible sex offenses. Appellant was tried again on the forcible sex offenses and this time convicted. Because the non-forcible sex offenses of which appellant was convicted in the first trial were not lesser included offenses of the forcible sex crimes of which he was convicted in his second trial under the “elements” test or under the “accusatory pleading” test, there was no “implied acquittal.” Accordingly there was no double jeopardy bar. Justice McDonald dissented. Distinguishing People v. Hernandez (1964) 61 Cal.2d 529 as dealing with statutory rape, and finding People v. Olsen (1984) 36 Cal.3d 638, which dealt with lewd and lascivious conduct with a child under the age of 14, to be controlling, the Court of Appeal held that the trial court did not err in refusing to instruct the jury that appellant’s reasonable belief that his victim was 16 years old was a defense to the non-forcible sex crimes charged. Justice McDonald dissented.