A and B are kicked out of a nightclub for disorderly conduct. They immediately re-enter the club through a back door by breaking the lock. They then proceed to the manager’s office, located in the back of the club. No one is in the office just then, so A rifles through the office’s filing cabinets. Several minutes later, the manager returns to his office and finds A and B. Upon noticing the manager, A brandishes a pocket knife and begins walking toward the manager. The manager calls out for help, and several bodyguards appear in the office. The bodyguards tackle and restrain A, but one bodyguard, C, suffers cuts from A’s pocket knife. This state has these criminal laws:
Penal Code Section 100 (Burglary in the First Degree). A person is guilty of burglary in the first degree when he enters a building without consent and with intent to commit a crime, or enters a building without consent and commits a crime while in the building if: (a) the burglar possesses, when entering or at any time while in the building, a dangerous weapon, or (b) the burglar assaults a person within the building.
Penal Code Section 110 (Assault in the First Degree). A person is guilty of assault in the first degree if: (a) he intentionally causes serious physical injury to another person, or (b) he wantonly causes serious physical injury to another person by means of a dangerous weapon.
Penal Code Section 120 (Criminal Conspiracy). A person who agrees, conspires, combines, or confederates with another person or persons to commit any offense commits the offense of criminal conspiracy.
Under Penal Code § 110(b), A is indicted (Indictment 1) on one count of assault in the first degree for assaulting C, on the grounds that A “wantonly caused serious physical injury to another person by means of a dangerous weapon.” At trial, on cross-examination, C states that the cut on his hand was minor. During closing arguments, A’s counsel argues that, based on C’s testimony, the physical injury caused to C was not serious within the meaning of Penal Code § 110(b). After deliberating for twenty minutes, the jury finds A not guilty.
Subsequently, prosecutors bring another indictment (Indictment 2) against A, charging A with three counts. Count I charges burglary in the first degree under Penal Code § 100(a), on the basis that A “entered a building without consent and committed a crime while in the building” and that he “possessed, while entering or at any time while in the building, a dangerous weapon.” Under Penal Code § 120, count II charges that A conspired with B to commit assault in the first degree against C.
Based on newly discovered information, Count III charges A with assault in the first degree under Penal Code § 110(b) for the assault of C, on the basis that A “wantonly caused serious physical injury to another person by means of a dangerous weapon.” Two weeks after the conclusion of the first trial (in which A was acquitted), police investigators learned that C had to seek emergency medical treatment for the cut A inflicted on his hand. Although an investigator thoroughly questioned C, C did not inform the investigator of his treatment. Count III thus alleges that the resulting injury to C was serious under § 110(b), citing the medical treatment.
- If A moves to dismiss Counts I, II, and III in Indictment 2 under the Fifth Amendment’s Double Jeopardy Clause, arguing only that the offenses in Indictment 2 are all the same offense as that in Indictment 1, how should the trial court rule? Explain, analyzing each count separately and applying only the same-elements test from Blockburger v. United States.