PEOPLE v. BROWN

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Court of Appeal, Third District, California.

The PEOPLE, Plaintiff and Respondent, v. Bruce Eric BROWN et al., Defendants and Appellants.

C001044.

Decided: November 02, 1987

Duncan G. Wright, Sacramento, Bobbie Stein, Susan G. Townsend, San Francisco, Daryl B. Katcher, Sacramento, and Larry A. Morse, San Francisco, under appointments by the Court of Appeal, for defendants and appellants. John K. Van de Kamp, Atty. Gen., J. Robert Jibson and Cynthia G. Besemer, Deputy Attys. Gen., for plaintiff and respondent.

Defendants Bruce Eric Brown, Robert Lorin Andersen, Ronald Ray Parcell, Gail Lizabeth Dippel, and Cheryl Elaine Hadley appeal from judgments entered after the trial court found them guilty of one count of burglary.  (Pen.Code, § 459.) 1

In March 1983, defendants Parcell and Anderson attended meetings in Nevada where they planned to burglarize a jewelry store in Grass Valley, California.   Unbeknowst to defendants, another man attending the meetings was an F.B.I. informant who alerted the F.B.I.

On April 3, 1983, all the defendants held a last-minute planning session and then traveled to Grass Valley.   They were arrested in the vicinity of the jewelry store shortly after defendants Anderson and Brown entered the store to steal jewelry.

Defendants were convicted in federal district court in Nevada of conspiring to transport in interstate commerce stolen property valued in excess of $5,000.   (18 U.S.C. §§ 371, 2314.)

Defendants were then prosecuted for burglary (§ 459) in Nevada County Superior Court.   Each entered a plea asserting any conviction in California was barred by section 656.2  After a court trial, defendants were found guilty of burglary.

On appeal defendants assert a variety of errors.3  In this published portion of the opinion, we reject defendants' contention their California convictions were barred by section 656.   We conclude the trial court could reasonably find defendants failed to meet their burden of proving, by a preponderance of the evidence, that the act of burglary was necessary to prove the federal conspiracy offense.   In an unpublished portion of this opinion we conclude an amended abstract of judgment must be prepared for defendant Parcell but the remainder of defendants' contentions are without merit.   We therefore affirm the judgments.

DISCUSSION

IDefendants' convictions for burglary were not barred by section 656.

 The prohibition on double jeopardy in the federal Constitution does not bar prosecution and conviction for the same act by both federal and state governments.  (Abbate v. United States (1959) 359 U.S. 187, 194–195, 79 S.Ct. 666, 670–71, 3 L.Ed.2d 729, 734;  Bartkus v. Illinois (1959) 359 U.S. 121, 136, 79 S.Ct. 676, 685, 3 L.Ed.2d 684, 694;  People v. Belcher (1974) 11 Cal.3d 91, 96–97, 113 Cal.Rptr. 1, 520 P.2d 385;  see Heath v. Alabama (1985) 474 U.S. 82, 88, 106 S.Ct. 433, 437, 88 L.Ed.2d 387, 394;  People v. Comingore (1977) 20 Cal.3d 142, 144–145, 141 Cal.Rptr. 542, 570 P.2d 723.)

Nonetheless, in California, protection from dual convictions in state and federal courts for the same act is afforded by section 656.  (Comingore, supra, 20 Cal.3d at pp. 145–146, 141 Cal.Rptr. 542, 570 P.2d 723;  Belcher, supra, 11 Cal.3d at p. 97, 113 Cal.Rptr. 1, 520 P.2d 385;  People v. Walker (1981) 123 Cal.App.3d 981, 984, 177 Cal.Rptr. 147.)   Under section 656, “a defendant may not be convicted after a prior acquittal or conviction in another jurisdiction if all the acts constituting the offense in this state were necessary to prove the offense in the prior prosecution [citation];  however, a conviction in this state is not barred where the offense committed is not the same act but involves an element not present in the prior prosecution.”  (Belcher, supra, 11 Cal.3d at p. 99, 113 Cal.Rptr. 1, 520 P.2d 385;  emphasis added;  followed in Comingore, supra, 20 Cal.3d at p. 146, 141 Cal.Rptr. 542, 570 P.2d 723.)   Thus, a defendant convicted of robbery in federal court cannot be later convicted of the same robbery in state court.  (People v. Candelaria (1956) 139 Cal.App.2d 432, 440, 294 P.2d 120;  approved in Belcher, supra, 11 Cal.3d at pp. 98–99, 113 Cal.Rptr. 1, 520 P.2d 385.)   However, the same defendant, convicted of robbery in federal court, can later be convicted of burglary in state court, because “The burglary act ․ that is, the entering of the building with the intent to commit a theft, is not the same act complained of in the federal court, namely, that he pointed a gun at the teller and by force and fear compelled her to deliver over to him certain monies.”  (People v. Candelaria (1957) 153 Cal.App.2d 879, 884, 315 P.2d 386;  approved in Belcher, supra, 11 Cal.3d at p. 99, 113 Cal.Rptr. 1, 520 P.2d 385.)

 To our knowledge, no California case has discussed how the burden of proving the section 656 bar should be allocated.   We think it clear, however, a defendant has the burden of proving by a preponderance of the evidence his conviction is barred by section 656.

Section 656 expressly provides that if its conditions are satisfied, “․ it is a sufficient defense.”   Under Evidence Code section 500, a party ordinarily “has the burden of proof as to each fact the existence or nonexistence of which is essential to the ․ defense that he is asserting.”

However, in the criminal law, some defenses—self-defense, for example—tend to negate the existence of an element necessary to commit the crime.   Where such a defense is at issue, a defendant has the burden merely of producing evidence sufficient to raise a reasonable doubt whether the defendant has committed the offense.  (People v. Tewksbury (1976) 15 Cal.3d 953, 963–964, 127 Cal.Rptr. 135, 544 P.2d 1335;  People v. Roe (1922) 189 Cal. 548, 550, 564, 209 P. 560;  People v. Adrian (1982) 135 Cal.App.3d 335, 340, 185 Cal.Rptr. 506.)  “There are, however, other instances of defenses asserted by an accused which raise factual issues collateral to the question of the accused's guilt or innocence and do not bear directly on any link in the chain of proof of any element of the crime.   Among such defenses are those which raise no challenge to the sufficiency of the prosecution's proof of any element of the crime charged but for reasons of public policy insulate the accused notwithstanding the question of his guilt.  [Citation.]  Entrapment is one of such public policy defenses [citation] and the collateral question whether an accused was entrapped must be proved by him by a preponderance of the evidence.”  (Tewksbury, supra, 15 Cal.3d at p. 964, 127 Cal.Rptr. 135, 544 P.2d 1335.)   In such cases the provisions of Evidence Code section 501, which subjects statutory burdens of proof in criminal cases to the reasonable doubt standard of section 1096, do not apply.  (People v. Moran (1970) 1 Cal.3d 755, 760, 83 Cal.Rptr. 411, 463 P.2d 763.)

Section 656 does not speak to a defendant's guilt but establishes a defense apparently premised on the unfairness of subjecting a California citizen to multiple punishments in state and federal forums for the same act.   Section 656 protects against a kind of double jeopardy—a specie of defense traditionally characterized as a public policy defense requiring proof by the defendant.  (See People v. Burkhart (1936) 5 Cal.2d 641, 643, 55 P.2d 846;  People v. Newell (1923) 192 Cal. 659, 667, 221 P. 622;  People v. Mason (1962) 200 Cal.App.2d 282, 285, 19 Cal.Rptr. 240;  1 Witkin, Cal.Evidence (3d ed. 1986) § 152, p. 131;  Witkin, Cal.Criminal Procedure (1963) § 343, p. 335.)   We therefore conclude defendant has the burden of proving the defense premised on section 656.

 Evidence Code section 115 provides in pertinent part, “Except as otherwise provided by law, the burden of proof requires proof by a preponderance of the evidence.”   There being no law otherwise providing, we conclude defendant has the burden of proving the defense supplied by section 656 by a preponderance of the evidence.  (See People v. Tewksbury, supra, 15 Cal.3d at p. 964, 127 Cal.Rptr. 135, 544 P.2d 1335.)

This leaves the question whether the trial court erred in concluding the section 656 defense had not been proved.

Ordinarily, whether a double jeopardy defense has been proved is a question of fact within the exclusive province of the trier of fact.  (People v. Newell, supra, 192 Cal. at p. 667, 221 P. 622.)   Here, defendants must contend the evidence proved the defense as a matter of law.   However, it did not.

 The only evidence of the federal prosecution before the trial court was the indictment.   At a minimum, defendants had an obligation to produce evidence showing a conviction or an acquittal.  (People v. Newell, supra, 192 Cal. at p. 667, 221 P. 622.)

 Nonetheless, the Attorney General does not dispute that defendants were previously convicted of the federal conspiracy offense.   Moreover, the record shows the trial court assumed defendants had been previously convicted of the federal charge.   Even assuming the fact of conviction was before the court, the evidence falls short of establishing the defense as a matter of law.

The only evidence shedding light on defendants' federal conviction is the indictment.   It alleged five separate overt acts undertaken in furtherance of the conspiracy:  (1) Parcell and Andersen made approximately 26 trips to Grass Valley to case the jewelry store;  (2) Andersen and Parcell recruited a person to pick the lock of the jewelry store;  (3) all five defendants met at the Airport Plaza Hotel in Reno to finalize plans for the burglary;  (4) all defendants traveled from Reno to Auburn where another planning meeting was held;  and (5) defendants traveled to the jewelry store where Andersen and Brown entered the jewelry store while Parcell, Hadley, and Dipple acted as lookouts.

Under applicable federal conspiracy law, the commission of a single overt act by one of the conspirators in furtherance of the conspiracy is sufficient to complete the offense.  (Jung Quey v. United States (9th Cir.1915) 222 F. 766, 771;  see United States v. McCarty (8th Cir.1979) 611 F.2d 220, 223, cert. den. 445 U.S. 930, 100 S.Ct. 1319, 63 L.Ed.2d 764.)   Consequently, defendants could have been convicted upon proof of commission of any one of the overt acts alleged.   Under California law the crime of burglary is committed when one enters a place described in section 459 with the intent to commit larceny or any felony.  (People v. Brady (1987) 190 Cal.App.3d 124, 133, 235 Cal.Rptr. 248.)   Only the fifth overt act in the federal indictment describes the crime of burglary.   No evidence was introduced showing the federal conviction was premised on the burglary.   Indeed, no evidence was introduced in this case showing even that proof of the burglary was adduced at the federal trial.   On this record, the trial court could reasonably conclude defendants had failed to carry their burden under section 656 of proving the act of burglary was necessary to prove the federal offense.  (People v. Belcher, supra, 11 Cal.3d at p. 99, 113 Cal.Rptr. 1, 520 P.2d 385;  People v. Candelaria, supra, 153 Cal.App.2d at p. 884, 315 P.2d 386;  cf. People v. Dukes (1934) 2 Cal.App.2d 698, 38 P.2d 805.)

The trial court properly rejected defendants' defense under section 656.

Defendant Brown argues his prosecution and conviction were barred by section 654 as well as by section 656.   However, in Belcher, our Supreme Court concluded section 654 does not apply in the context of successive prosecutions in federal and state jurisdictions.  (Belcher, supra, 11 Cal.3d at p. 98, 113 Cal.Rptr. 1, 520 P.2d 385.)   Neither defendant's prosecution nor his conviction was barred by section 654.  (Ibid.)

II–VIII **

DISPOSITION

As to each defendant, the judgment is affirmed.   As to defendant Parcell, the trial court is directed to prepare an amended abstract of judgment in accordance with rule 451(b) and to forward a copy to the Department of Corrections.

FOOTNOTES

1.   Statutory references are to the Penal Code unless otherwise indicated.

2.   Section 656 provides:  “Whenever on the trial of an accused person it appears that upon a criminal prosecution under the laws of another State, Government, or country, founded upon the act or omission in respect to which he is on trial, he has been acquitted or convicted, it is a sufficient defense.”

3.   Andersen and Parcell contend their convictions must be reversed because the prosecution failed to provide information about a material witness at trial.   Andersen contends he should have been permitted to offer evidence he was susceptible to entrapment.   Brown contends he was unlawfully entrapped by an F.B.I. agent and an informant.   Parcell contends his motion to strike the testimony of a rebuttal witness should have been granted, and his case must be remanded for resentencing.   Hadley contends the evidence is insufficient to sustain her conviction.   Dippel contends her case must be remanded for resentencing because the trial court failed to state reasons for making her sentence to county jail, imposed as a condition of probation, consecutive to the term imposed for her federal conviction.

FOOTNOTE.   See footnote *, ante.

SIMS, Associate Justice.

EVANS, Acting P.J., and BLEASE, J., concur.

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