FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GORDON ANDREW DOUGLAS,
Petitioner-Appellant, No. 08-17478
v. D.C. No.
FRANCISCO JACQUEZ and ATTORNEY 2:97-cv-00775-FCD-
GENERAL OF THE STATE OF JFM
CALIFORNIA, OPINION
Respondents-Appellees.
Appeal from the United States District Court
for the Eastern District of California
Frank C. Damrell, Senior District Judge, Presiding
Argued and Submitted
August 12, 2010—San Francisco, California
Filed November 24, 2010
Before: Susan P. Graber, Consuelo M. Callahan, and
Carlos T. Bea, Circuit Judges.
Opinion by Judge Bea;
Dissent by Judge Graber
18827
18830 DOUGLAS v. JACQUEZ
COUNSEL
Barry L. Morris, Attorney at Law, Walnut Creek, California,
for the petitioner-appellant.
Edmund G. Brown, Attorney General of California, for the
respondents-appellees.
OPINION
BEA, Circuit Judge:
We are asked to decide whether a federal habeas court can
order a state court to re-sentence a defendant under a lesser-
included offense that was not considered by the jury.
Gordon Andrew Douglas was convicted by a California
jury of one count of first-degree murder in violation of Cali-
fornia Penal Code § 187, and a separate count of arson of an
inhabited structure in violation of California Penal Code
§ 451(b). The evidence at trial established that Douglas and
his brother broke into Jack Clark’s home to commit a robbery.
During the course of the robbery, Douglas stabbed Clark to
death. Several hours later after Clark was killed, Douglas and
his brother returned to the scene of their crime and set fire to
Clark’s house to destroy any fingerprints they might have left
behind. Douglas was sentenced to twenty-five years to life in
prison on the murder count, with a consecutive sentence of
eight years on the arson count. In April 1997, after Douglas’s
direct appeals and state habeas claims were exhausted, he
filed a habeas petition in federal district court.
In February 2008, the district court granted Douglas habeas
relief on a single ground: there was insufficient evidence to
support Douglas’s conviction for arson of an inhabited struc-
ture in violation of California Penal Code § 451(b). The state
DOUGLAS v. JACQUEZ 18831
has not appealed this ruling, and we make no ruling regarding
its validity. The only issue before us is the relief afforded. The
district court vacated Douglas’s conviction under § 451(b),
but remanded the case to the state court with instructions for
the state court to enter judgment against Douglas for violation
of § 451(c), arson of a structure.
On appeal, Douglas contends that the district court
exceeded its habeas powers when it directed the state court to
enter a judgment against him for a violation of § 451(c).
Douglas further contends that imposition of a sentence under
§ 451(c) would expose him to double jeopardy in violation of
the Fifth Amendment to the United States Constitution, incor-
porated as a limitation against the states by the Fourteenth
Amendment’s Due Process Clause. Benton v. Maryland, 395
U.S. 784, 794 (1969).
Indeed the district court did exceed its habeas powers when
it directed the state to modify Douglas’s sentence. However,
the Double Jeopardy Clause would not be implicated if the
state court, of its own accord, were to re-sentence Douglas
under § 451(c). We vacate the district court’s order, and
remand with instructions that Douglas be granted a condi-
tional writ of habeas corpus as to the arson count only.
I. The District Court’s Habeas Jurisdiction
Douglas was convicted of arson of an inhabited structure
under § 451(b). The district court, relying on People v.
Ramos, 60 Cal. Rptr. 2d 523, 525 (Cal. App. 1997), held
Clark’s house was not “inhabited” under California law,
because the sole resident was killed by Douglas before he set
the fire.1 California did not cross-appeal this ruling, so we are
1
We note, however, two distinctions between this case and Ramos. First,
Ramos was a burglary case, not an arson case. 60 Cal. Rptr. 2d 523. 524.
Second—and more importantly—the already-deceased occupant in Ramos
died of natural causes. Id. But here, Douglas murdered the inhabitant.
Again, we proceed under the district court’s interpretation of California
law. The extension of Ramos to these facts strikes us as problematic, but
not problematic enough to affect the ground for decision.
18832 DOUGLAS v. JACQUEZ
constrained to proceed under the district court’s interpretation
of California law. See Greenlaw v. United States, 128 S. Ct.
2559, 2564 (2008) (under an “unwritten but longstanding rule,
an appellate court may not alter a judgment to benefit a non-
appealing party”); id. (“it takes a cross-appeal to justify a
remedy in favor of an appellee.”). Under the district court’s
interpretation, Clark should have been charged with arson of
a structure under § 451(c) instead of arson of an inhabited
structure under § 451(b). Section 451(c) is a lesser-included
offense of § 451(b).2
[1] Nonetheless, the district court exceeded its habeas
jurisdiction when it instructed the state court to revise its
judgment to enter a sentence for arson of a structure. The
power of a federal habeas court “lies to enforce the right of
personal liberty.” Fay v. Noia, 372 U.S. 391, 430 (1963),
overruled on other grounds by Wainwright v. Sykes, 433 U.S.
72, 87 (1977). As such, a habeas court “has the power to
release” a prisoner, but “has no other power[.]” Id. at 431.
“[I]t cannot revise the state court judgment; it can act only on
the body of the petitioner.” Id.
[2] Here, the district court impermissibly attempted to
revise the state court judgment when it ordered the state to re-
sentence Douglas under § 451(c). The district court’s power
under habeas corpus was either immediately to vacate the
prisoner’s arson sentence, or to postpone such relief for a rea-
sonable period to allow the state court properly to sentence
the prisoner.3 See, e.g., Hilton v. Braunskill, 481 U.S. 770,
775 (1987).
2
Compare Cal. Penal Code § 451(b) (“Arson that causes an inhabited
structure or inhabited property to burn is a felony punishable by imprison-
ment in the state prison for three, five, or eight years.”) with Cal. Penal
Code § 451(c) (“Arson of a structure or forest land is a felony punishable
by imprisonment in the state prison for two, four, or six years.”).
3
Of course, Douglas would not have been eligible to be released from
prison in any event, because he had not yet served his sentence for the
murder conviction.
DOUGLAS v. JACQUEZ 18833
[3] Under California law, a trial court can modify a jury
verdict when the trial evidence establishes that the defendant
is not guilty of the charged crime, but is guilty of a lesser
included offense. Cal. Penal Code § 1181(6).4 The only differ-
ence between an arson conviction under § 451(b) and a con-
viction under § 451(c) is whether the burned structure was
inhabited. The district court found that although there was
insufficient evidence of inhabitation, the jury necessarily
found all the facts essential to convict Douglas for a violation
of § 451(c) when it found him guilty of a violation of § 451(b).5
Hence, a California state trial court can modify the judgment
from a conviction under § 451(b) to a conviction under
§ 451(c). See People v. Jones, 199 Cal. App. 3d 543, 549-50
(Cal. App. 1988) (modifying a judgment of conviction for
arson of an inhabited structure under § 451(b) to arson of an
uninhabited structure under § 451(c) where there was insuffi-
cient evidence that the building Jones burned down was
inhabited). Because the state has the power to correct the con-
stitutional error of a criminal conviction based on insufficient
evidence,6 it should be given the opportunity to do so. See
Chioino v. Kernan, 581 F.3d 1182, 1186 (9th Cir. 2009)
(“[H]abeas remedies should not unnecessarily infringe on
competing interests such as a state’s interest in the administra-
tion of criminal justice.”) (internal quotation marks and cita-
tion omitted).
4
California Penal Code § 1181(6) provides, “[w]hen the verdict or find-
ing is contrary to law or evidence, but if the evidence shows the defendant
to be not guilty of the degree of the crime of which he was convicted, but
guilty of a lesser degree thereof, or of a lesser crime included therein, the
court may modify the verdict, finding or judgment accordingly without
granting or ordering a new trial, and this power shall extend to any court
to which the cause may be appealed[.]” A California court can also modify
a judgment of conviction to a lesser included offense when that judgment
is collaterally attacked in habeas proceedings. See In re Bower, 700 P.2d
1269, 1278 (Cal. 1985).
5
The jury was not instructed on the lesser included offense, but the ele-
ments are exactly the same except the burned structure need not have been
inhabited at the time of the arson.
6
See Jackson v. Virginia, 443 U.S. 307, 324 (1979).
18834 DOUGLAS v. JACQUEZ
[4] Instead of directing the trial court to enter a judgment
under § 451(c), the district court should have granted a condi-
tional writ of habeas corpus and ordered that Douglas’s con-
viction under § 451(b) be vacated only if the state court did
not re-sentence him within a reasonable time, such as 90 days.
The state court would thus have an opportunity to correct its
own constitutional error.
II. The Double Jeopardy Clause
[5] Douglas contends that were he re-sentenced under
§ 451(c), he would be subject to double jeopardy in violation
of the Fifth Amendment to the United States Constitution,
incorporated as a limitation against the states by the Four-
teenth Amendment’s Due Process Clause. Benton, 395 U.S. at
794. This contention is without merit. In general, if a convic-
tion is overturned on appeal on sufficiency of evidence
grounds, “[t]he Double Jeopardy Clause forbids a second
trial.” Burks v. United States, 476 U.S. 1, 11 (1978). To per-
mit a second trial after a conviction is overturned on appeal
would “afford[ ] the prosecution another opportunity to sup-
ply evidence which it failed to muster in the first proceeding.”
Id. Here, though, the government presented sufficient evi-
dence in the trial proceeding to convict Douglas of a violation
of § 451(c), and the jury found Douglas guilty of all the nec-
essary elements of § 451(c). In these circumstances, the Dou-
ble Jeopardy Clause is not offended by entry of judgment on
the lesser-included offense. All of the essential elements of
§ 451(c), a lesser-included offense of § 451(b), were necessar-
ily found by the jury based on Douglas’s initial prosecution.
[6] Although Douglas’s jury was not instructed on the
lesser-included offense, judgment may still be entered on a
charge of violation of § 451(c), because Douglas was con-
victed, not acquitted, of the greater offense. In United States
v. Gooday, 714 F.2d 80 (9th Cir. 1983), this court held “[i]f
no instructions are given on lesser included offenses . . . an
acquittal on [a greater] charge necessarily implies an acquittal
DOUGLAS v. JACQUEZ 18835
on all lesser offenses included within that charge. An acquittal
on the explicit charge therefore bars subsequent indictment on
the implicit lesser included offenses.” Id. at 82 (emphasis
added) (citations omitted). The Gooday rule makes sense. If
a jury is not separately instructed on a lesser included offense,
an acquittal on the greater offense may imply acquittal on one
or more of the elements necessary for a conviction under the
lesser offense. In such a case, the jury might have found proof
lacking of essential elements contained in both the greater and
lesser charges. If the jury did acquit based on a finding of lack
of proof of elements of the lesser-included offense, any subse-
quent indictment on the lesser offense would indeed violate
the Double Jeopardy Clause. But, unlike in Gooday, Douglas
was convicted of the greater offense. On the way to finding
him guilty of arson of an inhabited structure, the jury had nec-
essarily found adequate proof that Douglas committed arson
of a structure. Thus, whether the jury was instructed on the
lesser included offense is irrelevant.
Contrary to the dissent’s contention, our decision does not
grant the prosecution “another bite at the apple.” In this cir-
cumstance, the prosecution necessarily already proved the
elements of a lesser-included offense. Thus, our decision sim-
ply permits the state court to carve a smaller slice from a bite
which the prosecution has already taken.
Nor does United States v. Vasquez-Chan, (9th Cir. 1992),
hold that the Double Jeopardy Clause is implicated by a trial
court’s failure to instruct the jury on a lesser-included charge.
Vasquez-Chan was convicted in federal court of conspiracy to
possess, with the intent to distribute, five grams of cocaine.
Id. at 548. On direct appeal from the federal conviction, we
held the evidence was insufficient to support the conviction.
Id. at 553. The government contended the court was permitted
to enter judgment on the lesser offense of misprision of a felony.7
7
Misprision of a felony criminalizes a person’s failure to report knowl-
edge of a felony to the appropriate civil or military authorities. 18 U.S.C.
§ 4.
18836 DOUGLAS v. JACQUEZ
Id. In response, we laid out three “conditions necessary to the
entry of such a judgment.” Id. at 554. One condition was “the
jury must have been expressly instructed that it could find the
defendant guilty of the lesser-included offense and must have
been properly instructed on the elements of that offense.” Id.
But Vazquez-Chan does not control this case. Vazquez-
Chan arose on direct appeal, not on an appeal from a habeas
petition. Id. at 549. We reviewed Vazquez-Chan in the exer-
cise of this court’s supervisory power over district courts’
procedures. 978 F.2d 546, see 28 U.S.C. § 1291. Because
Vazquez-Chan did not arise on an appeal from a denial of a
writ of habeas corpus, we had no occasion to consider
whether a conditional writ should issue. Moreover, the claim
of possible violation of the Double Jeopardy Clause never
arose in Vasquez-Chan. Indeed, the Double Jeopardy Clause
was not raised as a ground of appeal, nor was the Double
Jeopardy Clause mentioned in the opinion. Vasquez-Chan
thus spoke only to the question of whether and in what
circumstances—as a matter of federal procedural law—a cir-
cuit court can modify a conviction from a greater offense to
a lesser included offense. Hence, Vasquez-Chan does not pre-
vent the California state court from entering a conviction for
Douglas under § 451(c) under a conditional writ of habeas cor-
pus.8
8
The dissent contends that the “procedural distinction” between this
case and Vasquez-Chan is “irrelevant,” because the “pertinent holding in
Vasquez-Chan rests on federal constitutional grounds.” This conclusion is
inaccurate. As noted, Vasquez-Chan did not mention the Double Jeopardy
clause even once, and we reject the dissent’s conclusion that Vasquez-
Chan “implicitly” imputed the Double Jeopardy Clause because it cited
two cases (in a footnote) which involved double jeopardy. But even if
Vasquez-Chan implicitly imported a double jeopardy analysis, the two
cases cited in Vasquez-Chan (and in the dissent) are distinguishable from
this one. The first case cited in Vasquez-Chan is Gooday, which we have
already distinguished. Supra at pp. 18834-36. The rule in Gooday is that
an acquittal on a greater charge bars subsequent indictment on a lesser-
included offense. Gooday, 714 F.2d at 82. The second case, Forsberg v.
DOUGLAS v. JACQUEZ 18837
[7] The district court’s order is VACATED. We
REMAND Douglas’s habeas petition to the district court, and
instruct the district court to issue a conditional writ of habeas
corpus if the state court does not re-sentence Douglas within
90 days. The California state court may, in its discretion, enter
a conviction for Douglas under § 451(c).
VACATED and REMANDED.
GRABER, Circuit Judge, dissenting:
I respectfully dissent. In my view, granting only a condi-
tional writ of habeas corpus so that the state court may alter
Defendant’s conviction to reflect a lesser-included offense—
when the jury was never instructed on that charge—violates
Defendant’s rights under the Double Jeopardy Clause.
Because there was insufficient evidence to support Defen-
dant’s conviction on the greater offense, in the circumstances
the proper remedy is an unconditional writ of habeas corpus.
Like other circuits, we have held that we may “direct a
lower court to enter a judgment of conviction on a lesser
offense after finding a jury’s verdict insufficient to support its
guilty verdict on a greater offense.” United States v. Vasquez-
Chan, 978 F.2d 546, 553-54 (9th Cir. 1992), overruled on
other grounds by United States v. Nevils, 598 F.3d 1158 (9th
Cir. 2010) (en banc). In Vasquez-Chan, however, we cabined
that general principle. One of “the conditions necessary to the
entry of such a judgment” is that “the jury must have been
United States, 351 F.2d 242, 247-48 (9th Cir. 1965), surveys cases which
held that a conviction on a lesser-included charge implies an acquittal on
the greater charge. Neither Gooday nor Forsberg implicates the issue here:
whether a court may enter a conviction on a lesser charge when the jury
necessarily found the defendant guilty of the lesser charge on its way to
finding him guilty of the greater charge.
18838 DOUGLAS v. JACQUEZ
explicitly instructed that it could find the defendant guilty of
the lesser-included offense.” Id. at 554. We explained that,
“[i]f no such lesser-included offense instruction is given, the
acquittal (whether at trial or on appeal) on the greater offense
precludes a conviction on a lesser offense.” Id. at 554 n.5. In
so holding, we relied on two double jeopardy cases: United
States v. Gooday, 714 F.2d 80, 81-83 (9th Cir. 1983); and
Forsberg v. United States, 351 F.2d 242, 247-48 (9th Cir. 1965).1
Thus, although we did not describe the theoretical source of
our holding, by relying on double jeopardy cases Vasquez-
Chan implicitly held that modifying a conviction when the
jury was not separately instructed on the lesser-included
offense violates the Double Jeopardy Clause. That is precisely
the situation here, and Vasquez-Chan controls.
The majority maintains that Vasquez-Chan is distinguish-
able because it came to us on direct appeal, rather than as a
habeas petition. But, because the pertinent holding in
Vasquez-Chan rests on federal constitutional grounds, that
procedural distinction is irrelevant.
Even assuming that Vasquez-Chan does not govern, the
Double Jeopardy Clause, of its own force, precludes modify-
ing the judgment unless the jury received an instruction that
it could convict on the lesser-included offense. Such a rule
promotes the principle that a defendant cannot be subject to
successive prosecutions for the same conduct. It is axiomatic
that the government enjoys prosecutorial discretion to charge
the defendant with the greater or the lesser offense. See, e.g.,
United States v. Armstrong, 517 U.S. 456, 464 (1996) (“In the
ordinary case, so long as the prosecutor has probable cause to
1
The majority contends that Gooday and Forsberg are distinguishable
from this case. I agree. But I do not rely on those cases directly. Rather,
I look to Vasquez-Chan, which requires a separate jury instruction in the
circumstances presented by this case. I mention Vasquez-Chan’s citation
to Gooday and Forsberg only to establish that double jeopardy concerns
animated our holding in Vasquez-Chan.
DOUGLAS v. JACQUEZ 18839
believe that the accused committed an offense defined by stat-
ute, the decision whether or not to prosecute, and what charge
to file or bring before a grand jury, generally rests entirely in
his discretion.” (internal quotation marks omitted)). When the
prosecution decides to pursue a conviction on the greater
offense and stands idly by while the jury receives no instruc-
tion on the lesser-included offense, the prosecution has staked
its all on the greater. If the prosecution then presents insuffi-
cient evidence to convict on the greater offense, it cannot
receive another “bite at the apple” through a modification of
the judgment.
Similarly, defense counsel might prefer to pursue the strate-
gic position that a client is guilty of the greater crime or noth-
ing, thereby taking the chance of conviction, acquittal, or a
hung jury on the higher offense, in preference to a compro-
mise verdict on the lesser offense. See 5 B.E. Witkin et al.,
California Criminal Law § 611 (3d ed. 2000) (noting such
defense strategy and the California courts’ duty, under certain
circumstances, to instruct sua sponte on the lesser-included
charge). If a defendant takes such a gamble and wins, either
at trial or on appeal, subjecting the defendant to punishment
on the lesser-included offense violates principles of double
jeopardy.
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 (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 offense—when the jury was
never given an opportunity to convict on that charge—
effectively 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 with instruc-
tions to issue an unconditional writ of habeas corpus.