Is a finding of insufficient evidence sufficient to overturn a finding that the Defendant has been found guilty of a lesser-included charge of sexual assault?
The following excerpt is from Douglas v. Jacquez, 626 F.3d 501 (9th Cir. 2010):
Here, Defendant was exposed to punishment for the greater offense alone. He now has been acquitted. See Burks v. United States, 437 U.S. 1, 11, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978) (holding that a reviewing court's finding of insufficient evidence acts as an acquittal). Allowing the state court to revise the judgment by entering a conviction on the lesser-included offensewhen the jury was never given an opportunity to convict on that chargeeffectively exposes the Defendant a second time to the threat of punishment for the same conduct. Accordingly, I would vacate the district court's decision and remand
[626 F.3d 509]
with instructions to issue an unconditional writ of habeas corpus.[626 F.3d 509]
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