PEOPLE v. BRADFORD (1975)

Eugene Bradford appeals from a judgment of conviction, entered upon jury verdicts, of assault with a deadly weapon upon a peace officer (Pen.Code, § 245, subd. (b)), exhibiting a firearm (Pen.Code, § 417), and possession of a concealable firearm by a former felon. (Pen.Code, § 12021.) The jury also found that appellant used a firearm in assaulting the peace officer. (Pen.Code, § 12022.5.) The appeal lies. (Pen.Code, § 1237, subd. (1).)

Appellant urges several grounds for reversal. Disposition of his appeal, however, requires consideration of only one of those grounds. Appellant contends that he was subjected to multiple prosecutions in violation of Penal Code section 654 as construed in Kellett v. Superior Court, 63 Cal.2d 822, 48 Cal.Rptr. 366, 409 P.2d 206. We agree and reverse.

FACTS

On December 21, 1973, around 11:45 a. m., appellant and his cohort robbed the West Oxnard Branch of the Bank of America, located in Ventura County. Some 15 minutes later, Officer Reynolds Patrick of the highway patrol spotted a Mustang travelling southbound on Pacific Coast Highway in excess of 90 m. p. h. Patrick, in uniform, was driving a marked car. He pursued and made a traffic stop.

Appellant, the driver, got out. As he and Patrick stepped to the side of the patrol car, appellant turned on Patrick and grabbed the officer's service revolver. Patrick attempted to escape, but he was struck by a car driven by Alma Reinke and pinned under the left front wheel. Appellant fired several shots at Patrick that narrowly missed him, pointed the revolver at Alma Reinke, fired a shot at her car, then drove away. Patrick freed himself, radioed for help, and set off in pursuit.

The chase continued for some 26 miles at speeds of up to 120 m. p. h. and ended in Los Angeles County, where appellant was involved in a traffic accident. During the chase, appellant's cohort fired several shots at Officers Olmstead and Douglas of the Los Angeles County Sheriff's Department, who attempted to halt the escape of the robbers.

Appellant was prosecuted and convicted in federal court of bank robbery; in Los Angeles County of two counts of assault with a deadly weapon against a peace officer (Officers Olmstead and Douglas); and in Ventura County of assault with a deadly weapon against a peace officer (Officer Patrick), exhibiting a firearm (Alma Reinke), and possession of a concealable firearm by a former felon. This appeal is taken from the judgment in the Ventura County proceeding.

DISCUSSION

In Kellett v. Superior Court, supra, our Supreme Court held that a single prosecution is required for all offenses in which the same act or ‘course of conduct’ plays a significant part,¹ unless joinder is prohibited. The purpose of this rule is to avoid needless harassment of the defendant and waste of time and money on the part of the People and the defendant. Failure to abide by the rule results in a bar to any subsequent prosecution of offenses omitted in the initial proceedings, whether those proceedings culminate in an acquittal or a conviction. (63 Cal.2d at pp. 826–827, 48 Cal.Rptr. 366, 409 P.2d 206.)

In the instant case, appellant was prosecuted seriatim in Los Angeles and Ventura counties for acts he committed during the course of his flight after the bank robbery in Oxnard. While different offenses were charged and different incidents were involved, there was a significant overlap in the evidence presented in these two proceedings.² Moreover, while appellant was able to afford private counsel to represent him in the Los Angeles County proceeding, he was indigent at the time of the Ventura County proceeding and had to rely on the services of the public defender. This case thus provides a textbook example of the waste that essentially duplicate prosecutions can cause.

The Attorney General contends, however, that separate proceedings were required in this case because joinder was prohibited under section 777 of the Penal Code, which provides that jurisdictional venue, generally, is limited to the county in which the crime was committed. In other words, the Attorney General contends that Los Angeles County never had jurisdictional venue to try appellant for the acts he committed in Ventura County; joinder was prohibited, and therefore the Kellett rule was not violated.

While the Attorney General is entirely correct as to the general rule, section 783 of the Penal Code establishes an exception to the rule, and provides, in pertinent part, as follows: ‘When a public offense is committed . . . on a . . . motor-vehicle . . . prosecuting its trip, the jurisdiction [of such offense] is in any competent court, through . . . the jurisdictional territory of which the . . . motor vehicle . . . passes in the course of its . . . trip, or in the jurisdictional territory of which the . . . trip terminates.’ If this section is applicable, the Attorney General's contention necessarily fails, for the offenses committed in Ventura County could have been tried in Los Angeles County as the jurisdictional territory in which the trip terminated.

We hold that section 738 is applicable to the situation before us. To begin with, as this court indicated in People v. Ward, 30 Cal.App.3d 130, 135, 105 Cal.Rptr. 67, 70, the phrase ‘in the course of its . . . trip’ has never been defined in any reported decision, but the intent and objective of the defendant and the facts surrounding the movement of the vehicle would appear to be decisive considerations. In the instant case, appellant's single objective from the moment he left the bank was to escape apprehension, and all of the movements of his vehicle were directed toward that end. Moreover, the roadside assault on Officer Patrick was directly connected with appellant's flight. We thus have no difficulty in concluding that this incident in Ventura County occurred ‘in the course of’ a ‘trip’ following the robbery.

We have somewhat greater difficulty describing this incident as an offense committed ‘on’ a motor vehicle. Nevertheless, we do not believe that the statute should be read so literally. To do so would make its application turn, in a case like this one, on the happenstance of whether the assaulted officer had asked the driver to step outside the vehicle, or had approached him while he remained armed and seated inside. We therefore believe the word ‘on’ in section 783 must be construed so as to include situations, like this one, where the vehicle stops momentarily and the offense is committed by one of its occupants in the immediate vicinity of the vehicle.³

The Attorney General also contends that the Kellett rule does not apply because the incidents in Ventura and Los Angeles counties were not part of the same ‘course of conduct,’ but were committed at different times, at different locations, against different victims, and with different objectives. (People v. Ward, supra, 30 Cal.App.3d at 136, 105 Cal.Rptr. 67.)

We disagree. These two incidents were obviously part of the same chain of events, and appellant's single objective during both incidents was to escape apprehension. The record before us discloses a single ‘course of conduct,’ indivisible for purposes of the Kellett rule., (Cf. In re Grossi, 284 Cal.App.2d 315, 321–322, 56 Cal.Rptr. 375.)

The Attorney General does not contend that any of the recognized exceptions to the Kellett rule are applicable, and we see no basis for concluding that the facts of this case fit one of those exceptions. (63 Cal.2d at 827–829, 48 Cal.Rptr. 366, 409 P.2d 206.)

DISPOSITION

The judgment is reversed.

FOOTNOTES

1.  The Court specifically stated that some acts that are divisible for purposes of punishment must nevertheless be regarded as too interrelated to permit multiple prosecutions. (63 Cal.2d at p. 827, 48 Cal.Rptr. 366, 409 P.2d 206.) Thus, the rule against multiple prosecutions is broader in scope than the rule against multiple punishment.

2.  The record in this case indicates that Officers Patrick and Milton, Deputy Selken and Lieutenant Douglas all testified concerning the events that took place in Los Angeles County, even though the only offenses before the trier of fact for decision were those committed in Ventura County.We have also obtained and taken judicial notice of a transcript of the Los Angeles County proceedings (2 Crim. No. 26051) pursuant to Evidence Code section 452, subdivision (d), and section 459. The transcript of those proceedings indicates that Officer Patrick appeared as a witness and testified extensively concerning the events that took place in Ventura County, even though, similarly, the offenses committed there were not before that trier of fact for decision.

3.  We recognize that an argument can be made for a narrower construction of section 783 on the theory that the sole purpose of venue statutes of this type is to eliminate the uncertainty that would otherwise exist if an offense committed inside a rapidly moving vehicle had to be prosecuted in the county in which it took place. Obviously, the possible uncertainty as to the county in which venue lies is minimal in a case like this one, where the vehicle was stopped and the offense was committed outside the vehicle at an identifiable spot along the highway. Nevertheless, courts have long held that venue statutes of this type apply even when the vehicle in question was stopped (Commonwealth v. Stefanowicz (1938) 133 Pa.Super. 501, 3 A.2d 22, 23), and even when the county in which the offense took place is known. (Commonwealth v. Hainds (1972) 448 Pa. 67, 292 A.2d 337.) Unlike the statute involved in these cases (19 Penn.Stats., § 525) neither section 738 nor its precursors contain any preamble or limiting statements of purpose. (Stats.1851, ch. 29 § 89, p. 221 amended by Code Am. 1875–76, ch. 31, § 1, p. 116; Stats.1945, ch. 941, § 1, p. 1775; and Stats.1951, ch. 1674, § 13, p. 3832.)More importantly, we believe that a significant purpose served by these statutes is to allow convenience to dictate where the prosecution will be held in situations where rapid movement makes the specific locale in which the offense took place largely a matter of chance. Thus, for instance, it requires little imagination to picture a high speed chase, like this one, spilling over into half a dozen counties, instead of two, involving assaults against peace officers in each of those counties, with some of the assaults occurring while the chase is in progress and others while the vehicle is momentarily at rest and the occupants standing alongside. Any rational system of criminal procedure would allow for the joinder of all such offenses in a single proceeding and would allow convenience to dictate the county along the way in which the prosecution is brought. We, therefore, believe that section 783 should be interpreted with this consideration in mind, and that too narrow a construction would condemn the People to waste scarce resources needlessly on multiple proceedings when a single proceeding would suffice.

COBEY, Acting Presiding Justice.

ALLPORT and POTTER, JJ., concur.