PEOPLE of the State of California, Plaintiff and Respondent, v. Vercil Leon BELCHER, Defendant and Appellant.
Defendant Vercil Leon Belcher appeals from a judgment of conviction entered on jury verdicts finding him guilty of two counts of first degree robbery and one count of assault with a deadly weapon likely to produce great bodily injury.
At approximately 8 p.m. on October 28, 1970, Arthur Johnson, a special agent with the Federal Bureau of Narcotics and Dangerous Drugs (‘Johnson’), together with one James Norton, a volunteer worker for the police (‘Norton’), embarked on a narcotics purchase errand in an effort to uncover a narcotics ring. They were told on the telephone that they would be picked up by ‘Joe,’ driving a Cadillac, and be taken to the place of purchase. Pursuant to this arrangement, they were picked up at about 9:20 p.m. in front of a house located at El Monte and Ney, Oakland. There were two men in the Cadillac, its driver and another man occupying the front passenger seat. Johnson and Norton entered the car, Johnson seating himself behind the front seat passenger, Norton behind the driver. Near the intersection of 82nd and Partridge Avenues, the driver pulled off the street and stopped the car. He asked who had the money, and Johnson replied that he did. Thereupon the driver produced a sawed-off shotgun and the front seat passenger exhibited an automatic pistol. The driver said: ‘This is a rip. Don't move or you've had it’ then added, ‘give us the money.’ Johnson gave $400 of federal funds to the man in the front passenger seat. The robbers then demanded the victims' wallets which were also surrendered. Pursuant to the robber's orders, Johnson and Norton exited the car and began walking toward the nearby intersection. When the Cadillac drove away and made a left turn, Johnson ran to view its license number. In this moment he saw a gun muzzle flash come from the passenger side of the Cadillac. He returned the fire three times.
It was established by testimony of both Norton and Johnson, and by a stipulation as well, that a man named Walter Sheets was the driver of the Cadillac. Norton and Johnson identified appellant as the other robber. Both were positive of their identifications and gave detailed accounts of the opportunities they had to view appellant's face during the ride in the Cadillac.
Appellant testified on his own behalf and provided an alibi defense, stating that during the time of the robbery he was at a party on 76th Avenue in Oakland. His testimony was also corroborated by Chris Satterfield, a witness for the defense. During cross-examination, appellant admitted an acquaintance with Sheets. He also admitted that he had seen Sheets either on the 27th or 28th of October, 1970. Appellant conceded that until six months prior to the trial he had worn a pierced earring in his left ear. The earring was one of the identifying characteristics that both Norton and Johnson had mentioned in their testimony.
On April 28, 1971, the Alameda County District Attorney filed an amended information charging appellant with robbery of Johnson (Pen.Code, § 211): robbery of Norton (Pen.Code, § 211): and assault upon Johnson with a deadly weapon and by means of force likely to produce great bodily injury (Pen.Code, § 245). The information further charged that at the time of the commission of the offenses, appellant was armed with a deadly weapon and used said weapon in the commission of the offenses. A jury trial began on June 22, 1971. On the first day of trial, appellant's counsel moved to dismiss the information on the ground that appellant had once been placed in jeopardy. The basis for this motion was appellant's previous acquittal of charges brought in the United States District Court for the Northern District of California. After hearing the argument, the court denied the motion without prejudice. Upon the evidence introduced at the trial appellant was found guilty on all three charges, and the jury also found the arming and use allegations to be true.
Appellant's main argument on appeal is that the judgment of conviction must be reversed because his right to effective assistance of counsel was denied. This argument is predicated upon the contention that his acquittal in federal court created a valid double jeopardy defense to the state prosecution. He contends that his attorney failed to enter a plea of former jeopardy, thereby withdrawing a crucial defense from his case.
The record reveals that while defense counsel moved to dismiss the charges against appellant on the ground of prior jeopardy and collateral estoppel,1 and in support of his motion he offered certified copies of certain documents,2 he did not enter a plea of former jeopardy and thereby waived this legal defense (People v. Barry (1957) 153 Cal.App.2d 193, 200, 314 P.2d 531). Since the plea of former jeopardy is a crucial defense whenever it is applicable, appellant was denied adequate representation by counsel if the defense of double jeopardy was available in his case.
In determining the applicability of double jeopardy to the case at bench, we must point out that when an act constitutes different offenses, one against the United States and one against the state, a state prosecution may follow a federal prosecution without violating the federal Constitution (Bartkus v. Illinois (1959) 359 U.S. 121, 79 S.Ct. 676, 3 L.Ed.2d 684; People v. Candelaria (1956) 139 Cal.App.2d 432, 437, 294 P.2d 120). Therefore, under this general rule, California would not be precluded from prosecuting the offense even if founded on the same act. However, pursuant to an explicit statutory mandate, a defendant in California is protected against double jeopardy based upon the same act or omission. Penal Code, section 656, provides that ‘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.’ (Emphasis added.)
While the foregoing statutory language tends to suggest that in resolving the applicability of the doctrine of double jeopardy the crucial test is whether the federal and state's charges are based upon the same facts, closer scrutiny reveals that the statute does not contemplate a mere neutral act which, in the absence of mens rea, does not constitute a crime (cf. In re Hayes (1969) 70 Cal.2d 604, 609, 451 P.2d 430, 75 Cal.Rptr. 790), but a criminal offense which is the proper subject of a criminal prosecution. It is, of course, elementary that a criminal offense can come about only through the joint operation of an act and criminal intent or criminal negligence (mens rea) (1 Witkin, Cal. Crimes (1963), §§ 52, 60; Pen.Code, § 20). It follows, therefore, that the real test of double jeopardy is the identity of the offenses of which the mental element is an indispensable part, and not the identity of the occurrence, transaction, 3 or physical facts from which they arise. Consequently, a defendant may be convicted of separate offenses arising out of the same transaction when each charge is separately stated and the offenses differ in their elements (Rodriguez v. Superior Court (1946) 27 Cal.2d 500, 501, 165 P.2d 1; People v. Hoyt (1942) 20 Cal.2d 306, 317, 125 P.2d 29); and double jeopardy does not lie unless all of the elements of one crime are included in the other (People v. Candelaria (1957) 153 Cal.App.2d 879, 884, 315 P.2d 386). It has also been held that whether or not a single act violating two statutes may be punished under one or both statutes depends on whether each statute requires a proof of fact additional to those involved in the other (People v. Candelaria, supra at p. 885, 315 P.2d 386; In re Application of O'Connor (1927) 80 Cal.App. 647, 252 P. 730).
Examining the record in the light of these principles, we first note that in the case at bench the federal and state charges are not coextensive. While in the federal indictment4 appellant was charged with one crime only, that is, assault on special agent Johnson, in the state information he was also charged with a different crime (robbery against Johnson) and a crime against a different person (robbery on Norton). It goes without saying that in assessing the applicability of double jeopardy this circumstance bears special significance.
Turning to the individual charges contained in the state information, we observe that the assault charge is included in both the federal and state indictments. Both specify October 28, 1970 as the date of the offense, Johnson as the victim of the assault, and County of Alameda as the place of the commission of the crime. A further examination of the charges in question discloses, however, that despite the fact that they grew out of the same episode, occurrence or transaction, the offenses included therein are markedly different. Whereas assault under the state law is defined as ‘an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another’ (Pen.Code, § 240, emphasis added), the federal statute, 18 U.S.C., section 111,5 requires that the victim be a federal officer engaged in the performance of his duties. It follows, therefore, that, under the test laid down before, the offenses here charged differ in their elements, and all the ingredients of the federal offense are not included in the state offense. Consequently, they may not be regarded as the same offenses from the viewpoint of the double jeopardy doctrine (see Rodriguez v. Superior Court, supra; People v. Candelaria, supra, 153 Cal.App.2d at p. 884, 315 P.2d 386).
Moreover, it is equally apparent that the federal statute calls for a proof of fact additional to those involved in the state statute (In re Application of O'Connor, supra). While it has been held that knowledge of the official status of the victim of a forcible assault is not an element of the offense charged under 18 United States Code, section 111, and it is not necessary to prove such knowledge (United States v. Kartman (9th Cir. 1969) 417 F.2d 893, 894; McEwen v. United States (9th Cir. 1968) 390 F.2d 47), this only serves to exonerate the federal prosecutor from proving that that the defendant knew of the status of the officer, but leaves untouched the prosecutor's general duty of establishing every element of the crime, including the one that the officer was engaged in the performance of his duties when the assault against him was committed. Appellant's contention notwithstanding, it is not at all unlikely that the jury's general verdict of acquittal was not predicated upon believing or disbelieving appellant's alibi defense but on the very circumstance that the federal prosecutor failed to sustain his burden of proof that at the time of the commission of the offense Johnson was engaged in the performance of his official duties. The instant case thus clearly falls within the rule pronounced in In re Application of O'Connor, supra, 80 Cal.App. at page 652, 252 P. at page 732: ‘While a single act may be an offense against two statutes, and thus constitute two crimes, if each statute requires proof of a fact additional to those involved in the other, an acquittal or conviction of either does not result in the defendant having been in jeopardy for the other.’ (Emphasis added.)
Appellant's double jeopardy claim with regard to the two other charges is even less founded. It calls for no detailed discussion that the offense of robbery, by definition,6 requires an additional physical act (taking of personal property in the possession of another) which is not included in the crime of assault, and a differing mental state (specific intent to steal). Consequently, under the test set forth above, the robbery charge clearly falls outside the protection of double jeopardy in the instant case.
The very same, and more, can be said about the robbery charge involving Norton, the second victim. With regard to this charge the double jeopardy defense must be held unavailable for the additional reason that the prohibition against multiple punishment is not applicable where one act has two results, each of which is an act of violence against a separate individual (People v. Beamon (1973) 8 Cal.3d 625, 638, fn. 10, 105 Cal.Rptr. 681, 504 P.2d 905; People v. Ridley (1965) 63 Cal.2d 671, 47 Cal.Rptr. 796, 408 P.2d 124; Neal v. State of California (1960) 55 Cal.2d 11, 20–21, 9 Cal.Rptr. 607, 357 P.2d 839; People v. Garrison (1966) 246 Cal.App.2d 343, 357, 54 Cal.Rptr. 731).
Robbery is a crime of violence (In re Ford (1967) 66 Cal.2d 183, 57 Cal.Rptr. 129, 424 P.2d 681; In re Wright (1967) 65 Cal.2d 650, 56 Cal.Rptr. 110, 422 P.2d 998; People v. Ridley, supra). As stated in Neal v. State of California, supra, 55 Cal.2d at page 20, 9 Cal.Rptr. 607, 357 P.2d 839, the purpose of the protection against multiple punishment is to insure that the defendant's punishment will be commensurate with his criminal liability, and a defendant who commits an act of violence with the intent to harm more than one person is more culpable than a defendant who harms only one person. Although the above rule has been set forth with regard to Penal Code, section 654, its rationale is equally applicable to the double jeopardy defense under Penal Code, section 656.
The foregoing reasons compel the conclusion that the double jeopardy defense was not available to appellant in the present case. Consequently, appellant cannot claim that he was inadequately represented by counsel because his attorney failed to invoke a defense to which he was not entitled as a matter of law.
Modification of Judgment
Appellant contends in the alternative that even if the judgment is not to be reversed, it must be modified to correct certain clerical and legal errors. Thus, he first claims that the recitation of infliction of bodily injury in the judgment was a clerical error and must be stricken. We agree.
The judgment of conviction states that appellant was convicted ‘of the offenses of the crimes of felonies, to wit, two counts or Robbery, a violation of Section 211 Penal Code of California, fixed at 1st degree on each count and the defendant was armed and used a deadly weapon as charged in the 1st & 2nd counts of the Amended Information; a violation of Section 245 of the Penal Code of California and the defendant did inflict bodily injury and was armed and used a deadly weapon as charged in the 3rd count of the Amended Information.’ (Emphasis added.)
As respondent admits, the amended information did not charge appellant with having actually inflicted bodily injury, nor did the jury find infliction of bodily injury. Consequently, the italicized portion of the judgment is totally unsupported and must be stricken (People v. Shirley (1970) 10 Cal.App.3d 268, 275, 88 Cal.Rptr. 853; People v. Chavez (1968) 268 Cal.App.2d 381, 386, 73 Cal.Rptr. 865).
Appellant's second claim that the recitation of arming in the judgment is incorrect is also well taken. Appellant properly contends that since the fact of being armed was essential to the convictions here, the arming clause cannot be used to increase his minimum term under Penal Code, section 3024 or to augment his sentence under Penal Code, section 12022 (People v. Floyd (1969) 71 Cal.2d 879, 883–884, 80 Cal.Rptr. 22, 457 P.2d 862; People v. Hogan (1969) 71 Cal.2d 888, 893, 80 Cal.Rptr. 28, 457 P.2d 868).
Respondent, in the other hand, contends that the sentence should be augmented under Penal Code, section 12022.5,7 and the judgment be modified to show that appellant used a firearm within the meaning of that section. We agree.
‘In view of the fact that the lower courts have had some difficulty determining under what circumstances section 12022.5 properly may be applied,’ the Supreme Court has recently reviewed and outlined the pertinent criteria (People v. Najera (1972) 8 Cal.3d 504, 508, 105 Cal.Rptr. 345, 503 P.2d 1353).
First, the formal charges contained in the information or indictment should give defendant notice that application of section 12022.5 will be sought. In the instant case, this requirement is met by the direct allegation in the amended information that ‘the defendant used a firearm, to wit: an automatic pistol, in the commission of the offenses charged in this amended Information.’
Secondly, ‘Section 12022.5 . . . requires a jury determination of the factual question whether or not defendant used a firearm in the commission of the underlying offense’ (People v. Najera, supra at p. 510, 105 Cal.Rptr. at p. 350, 503 P.2d at p. 1358). In the instant case, immediately prior to jury voir dire, the amended information was read by the trial judge to the entire panel. They were thus advised that the ‘arming’ and ‘use’ charges were alleged and that defendant denied them.
In the course of his charge to the jury, the trial judge instructed that: ‘To use a firearm, within the meaning of this instruction, means that the firearm be in the physical possession of the defendant at the time of the commission of the offenses, and that such firearm be displayed with menace during the course of the offenses.'8 (Emphasis added.)
The instruction clearly satisfies the broad definition of the term ‘use’ as contemplated by the Legislature in adopting section 12022.5. ‘Although the use of a firearm connotes something more than a bare potential for use, there need not be conduct which actually produces harm but only conduct which produces a fear of harm or force by means or display of a firearm in aiding the commission of one of the specified felonies. ‘use’ means, among other things, ‘to carry out a purpose or action by means of,’ to ‘make instrumental to an end or process,’ and to ‘apply to advantage.’ (Webster's New Internat. Dict. (3d ed. 1961).) The obvious legislative intent to deter the use of firearms in the commission of the specified felonies requires that ‘uses' be broadly construed.’ (People v. Chambers (1972) 7 Cal.3d 666, 672, 102 Cal.Rptr. 776, 779, 498 P.2d 1024, 1027; emphasis added.) In Chambers, the defendant ‘pointed a gun at the victim and demanded money’ (p. 672, 102 Cal.Rptr. p. 780, 498 P.2d p. 1028). This was, the court unanimously held, ‘more than sufficient to support a finding that defendant used a firearm within the meaning of section 12022.5 . . .’ (p. 673, 102 Cal.Rptr. p. 780, 498 P.2d p. 1028).
In the case at bench, the evidence, as we have pointed out, is without conflict that the robbers used firearms in perpetrating the underlying crimes.
The judgment is modified by striking therefrom the following language: ‘and the defendant was armed and used a deadly weapon as charged in the 1st & 2nd counts of the Amended Information’ and ‘and the defendant did inflict bodily injury and was armed and used a deadly weapon as charged in the 3rd count of the Amended Information,’ and by inserting therein the following language: ‘and the defendant used a firearm in the commission of the offenses charged in the First, Second and Third Counts of the Amended Information.’ As so modified, the judgment is affirmed.
1. Presumably relying on Ashe v. Swenson (1970) 397 U.S. 436, 453–454, 90 S.Ct. 1189, 25 L.Ed.2d 469, which makes collateral estoppel inapplicable where state and federal courts are involved, appellant has abandoned the collateral estoppel theory and pursues his appeal solely on the basis of double jeopardy.
2. Appellant attached to his opening brief the respective copies of the federal indictment and judgment of acquittal. Since these documents are records of a court of the United States, pursuant to Evidence Code, section 452, subdivision (d), they are proper subject of judicial notice. Accordingly, we take judicial notice of the aforementioned documents. However, the federal public defender's affidavit also attached to appellant's opening brief was not considered by the trial court, and consequently may not be considered on appeal (People v. Gardner (1969) 71 Cal.2d 843, 849, 457 P.2d 575, 79 Cal.Rptr. 743; People v. Marriam (1967) 66 Cal.2d 390, 396–397, 426 P.2d 161, 58 Cal.Rptr. 1).
3. The transaction test as the criterion for double jeopardy, suggested by the minority of the United States Supreme Court, was impliedly rejected by the court. (See Ashe v. Swenson, supra; State of Oregon v. Miller (1971), Or.App., 484 P.2d 1132, cert. den. in Miller v. Oregon (1972) 405 U.S. 1047, 92 S.Ct. 1321, 31 L.Ed.2d 590 (Justices Brennan, Douglas and Marshall dissenting).)
4. The pertinent part of the federal indictment reads as follows:‘COUNT ONE: (18 U.S.C. Section 111)‘The Grand Jury charges: THAT‘On or about October 28, 1970, in the City of Oakland, County of Alameda, State and Northern District of California,VERGIL L. BELCHER and WALTER L. SHEETS,defendants herein, did unlawfully and forcibly assault, oppose, intimidate and interfere with Special Agent Arthur A. Johnson, of the Bureau of Narcotics and Dangerous Drugs, while Agent Johnson was engaged in and on account of the performance of his official duties, and in commission of such acts defendants used a deadly or dangerous weapon, to wit, a sawed-off shotgun.'
5. 18 United States Code, section 111, provides that ‘Whoever forcibly assaults, resists, opposes, impedes, intimidates, or interferes with any person designated in section 114 of this title while engaged in or on account of the performance of his official duties, shall be fined not more than $5,000 or imprisoned not more than three years, or both.‘Whoever, in the commission of any such acts uses a deadly or dangerous weapon, shall be fined not more than $10,000 or imprisoned not more than ten years, or both.’ (Emphasis added.)
6. Robbery is defined as ‘the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear’ (Pen.Code, § 211; People v. Sheasbey (1927) 82 Cal.App. 459, 463, 255 P. 836). The ‘felonious' taking requires a specific intent to deprive the owner permanently of his property (People v. Sheasbey, supra; 1 Witkin, Cal.Crimes (1963), § 441).
7. Penal Code, section 12022.5, enacted following People v. Floyd, supra, provides for a minimum sentence of five years if the person committing the crime used a firearm. The code section specifically sets forth that it shall apply even if the use of a weapon is an element of the offense.
8. This instruction is contained in the addendum to reporter's transcript which we ordered included in the record following oral argument.
KANE, Associate Justice.
TAYLOR, P. J., and ROUSE, J., concur.