PEOPLE v. COMINGORE (1977)

The People appeal from an order dismissing an information against defendant Gregory Allen Comingore before he had been placed in jeopardy. The appeal lies. (Pen.Code, § 1238, subd. (a)(8).)

On April 15, 1975, defendant was charged in an information filed by the district attorney of Los Angeles County with Count I—Grand Theft Auto (Pen.Code, § 487, subd. (3)),¹ and Count II—Theft and Unlawful Driving or Taking of a Vehicle (Veh.Code, § 10851).² In the arraignment proceedings held on April 29, 1975, defendant pled not guilty and reserved the right to declare once-in-jeopardy at a later time. Defendant later entered a plea of former conviction.

After reviewing the evidence and all points and authorities submitted, the court found that defendant had suffered a prior conviction in Oregon for ‘Unauthorized Use of a Vehicle’ (O.R.S. § 164.135),³ and that pursuant to Penal Code sections 1023, 793, and 794, this prior Oregon conviction was a bar to further prosecution in California for (1) Grand Theft Auto and (2) Theft and Unlawful Driving or Taking of a Vehicle. The court, on its own motion and in furtherance of justice dismissed the information pursuant to the above statutes and Penal Code section 1385.

FACTS

The facts are not in dispute. On the morning of February 25, 1975, defendant and his girl friend were in the apartment of Miss Jean Marquette. At about 11:30 a. m., while Miss Marquette was asleep, defendant took Miss Marquette's car from her residence in Glendale, California, without her permission, and drove the car from Glendale, California to Salem, Oregon. Defendant was apprehended in the car in Oregon on the next day.

On February 28, 1975, an Oregon indictment was returned against defendant, charging him with the knowing, unlawful, and felonious operation of a vehicle, without the consent of its owner. (O.R.S. § 164.135.) Defendant, with counsel present, pled guilty to the charge in Oregon, and the plea was entered by the court on March 4, 1975. On March 6, 1975, the court ordered that defendant be confined in the Marion County Jail in Salem, Oregon, for an indeterminate period of time not to exceed six months. Judgment was entered on March 10, 1975. Four days later the court granted a bench parole from the remainder of the sentence previously imposed on the condition that defendant obey all laws and city ordinances.

While on parole, defendant was arrested and charged with Grand Theft Auto (Pen.Code, § 487, subd. (3)) and Theft and Unlawful Driving or Taking of a Vehicle (Veh.Code, § 10851) for the taking and driving of Miss Marquette's car in California.

The sole question on appeal is whether defendant's former conviction for ‘Unauthorized Use of a Vehicle’ in Oregon constitutes a bar, under the law of California, to prosecution in this state for (1) Grand Theft Auto and (2) Theft and Unlawful Driving or Taking of a Vehicle in California.

We conclude that it does and that the trial court was correct in dismissing the information.

DISCUSSION

The protection against double jeopardy, which generally prohibits a defendant from being tried more than once for the same offense, is established in this state by the federal and state Constitutions and by at least six statutes. (U.S.Const., Amend. V; Cal.Const., art. I, § 15; Benton v. Maryland (1969), 395 U.S. 784, 794, 89 S.Ct. 2056, 2062, 23 L.Ed.2d 707, 715–716; Pen.Code, §§ 656, 687, 793, 794 1023; Veh.Code, § 41400.⁴ ) Generally, the courts do not discuss why a particular statute applies in a particular case. Additionally, it often is unclear whether a decision is based on the state Constitution or on a state statute. (H. Packer, Federal Constitutional Requirements in State Proceedings, in California Criminal Law Practice (CEB 1964) 503, 528.)

We regard Penal Code section 793 as the relevant statute in the present case. It states: ‘When an act charged as a public offense is within the jurisdiction of another State or country, as well as of this State, a conviction or acquittal thereof in the former is a bar to the prosecution or indictment therefor in this State.’ The People, on the other hand, contend that the situation in this case is governed exclusively by Penal Code section 656⁵ under doctrine enunciated by our Supreme Court in People v. Belcher, 11 Cal.3d 91, 97, 113 Cal.Rptr. 1, 520 P.2d 385. In that case, section 656 was clearly the relevant statute. The case was concerned with successive convictions in two jurisdictions. The defendant there was actually appealing from his second conviction.

Section 656 is in the Penal Code chapter on Crimes and Punishments while section 793 is in the chapter on Criminal Procedure. Consequently, we view section 793 as a procedural defense to bar the institution of a second prosecution while section 656 prevents conviction once that prosecution has been commenced. (45 Cal.L.Rev. 197, fn. 7 (1957).) In the present case, defendant raised the defense of double jeopardy before the second prosecution began. Hence the applicable statute is section 793.

We must next determine what prosecutions are barred by the legal effect of the plea of ‘Once in jeopardy.’ (See Pen.Code, § 1016.) Penal Code section 1023 reads: ‘When the defendant is convicted or acquitted or has been once placed in jeopardy upon an accusatory pleading, the conviction, acquittal, or jeopardy is a bar to another prosecution for the offense charged in such accusatory pleading, or for an attempt to commit the same, or for an offense necessarily included therein, of which he might have been convicted under that accusatory pleading.’ This provision is the statutory implementation of the state constitutional double jeopardy protection. (People v. Tideman, 57 Cal.2d 574, 582, 21 Cal.Rptr. 207, 370 P.2d 1007.)⁶

Under Penal Code section 1023 a second prosecution for the same offense, for an attempt to commit the same offense, or for a necessarily included offense is barred. This effect of the double jeopardy plea obtains regardless of what other statute applies in a particular case.⁷

We say this for several reasons. First, there is the importance of the constitutional policy involved. ‘The underlying idea [of the protection against double jeopardy], one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.’ (Green v. United States (1957) 355 U.S. 184, 187–188, 78 S.Ct. 221, 223 [2 L.Ed.2d 199, 204].) This policy is violated by successive prosecutions for the same offense whether these prosecutions be in the same state or in different states.

Second, we see no reason why the scope of the protection against double jeopardy should vary depending on whether the threatened or actual prosecutions are within the same jurisdiction or different ones. (See Coumas v. Superior Court, 31 Cal.2d 682, 684–685, 192 P.2d 449 (subsequent prosecution for murder in California was barred since the defendant had already been convicted of manslaughter in Greece).) In the present case, the first prosecuting state had jurisdiction to charge the greater offense. (See State v. Johnson (1864) 2 Or. 115, 116.)

Although Penal Code section 1023, literally construed, applies only where the prosecution for the greater offense is first in time, the cases interpreting it have not so limited it. (People v. Greer, 30 Cal.2d 589, 597, 184 P.2d 512; People v. McDaniels, 137 Cal. 192, 195, 69 P. 1006). “A conviction of the lesser is held to be a bar to [the] prosecution for the greater on the theory that to convict of the greater would be to convict twice of the lesser.' [Citation omitted.] If this were not the rule, section 1023 could be vitiated by the simple device of beginning with a prosecution of the lesser offense and proceeding up the scale.' (People v. Greer, supra, 30 Cal.2d at 597, 184 P.2d at 517.)

Under California law, ‘a necessarily included offense exists when the charged offense, either as defined by statute or as stated in the accusatory pleading, cannot be committed without also committing a [sic] lesser included offense.’ (People v. Tatem, 62 Cal.App.3d 655, 658, 133 Cal.Rptr. 265, 266; People v. Escarcega, 43 Cal.App.3d 391, 396, 117 Cal.Rptr. 595.) In the present case the Oregon indictment to which defendant pled guilty charged an offense necessarily included within the California theft charges. The Oregon statute is violated if an individual takes or operates a vehicle without the consent of its owner. The California statutes are violated by the same conduct, plus an intent to deprive the owner either permanently (Pen.Code, § 484) or temporarily (Veh.Code, § 10851) of the vehicle. Thus, defendant could not have violated the California statutes without also violating the Oregon statute. (Cf. People v. Pater, 267 Cal.App.2d 921, 924–927, 73 Cal.Rptr. 823.) Since defendant has already pled guilty to the lesser charge in Oregon, the prosecution in California for greater offenses is barred.

Our use of section 1023 in this case has led us to the same result that we would reach were we to apply instead the test of double jeopardy our Supreme Court stated in Belcher, supra. There the court said, in effect, double jeopardy occurs ‘if all the acts constituting the offense in this state were necessary to prove the offense in the prior prosecution.’ (People v. Belcher, supra, 11 Cal.3d at 99, 113 Cal.Rptr. at 6, 520 P.2d at 390. See also People v. Candelaria, 139 Cal.App.2d 432, 440, 294 P.2d 120.)

In the present case, as previously noted, the only difference between the Oregon and California offenses lies in whether a specific intent is required. It is required only for the California offenses. But the act required for all three offenses is the same and intent is merely an additional element of the crime which does not pertain to any activity of the defendant in committing the crime. (See People v. Belcher, supra, 11 Cal.3d at 100.)

DISPOSITION

The order of the trial court is affirmed.

FOOTNOTES

1.  Section 487, in relevant part, reads:‘Grand theft is theft committed in any of the following cases:‘. . .‘3. When the property taken is an automobile, . . ..’

2.  Section 10851, in relevant part, reads:‘Any person who drives or takes a vehicle not his own, without the consent of the owner thereof, and with intent either permanently or temporarily to deprive the owner thereof of his title to or possession of the vehicle, whether with or without intent to steal the same . . . is guilty of a public offense . . ..’

3.  Section 164.135, in relevant part, reads:‘(1) A person commits the crime of unauthorized use of a vehicle when:‘(a) He takes, operates, exercises control over, rides in or otherwise uses another's vehicle, boat or aircraft without consent of the owner; . . ..’

4.  Vehicle Code section 41400 states:‘Whenever any person is charged with a violation of this code, it is a sufficient defense to such charge if it appears that in a criminal prosecution in another state or by the Federal Government, founded upon the act or omission in respect to which he is on trial, he has been convicted or acquitted.’Since appellant was charged with a Vehicle Code violation in this case, this statute is specifically applicable. The language of this statute does not differ significantly from the Penal Code sections and, therefore, it is unnecessary for us to interpret this statute separately. (See Pen.Code, §§ 656, 793.) The analysis which applies to the Penal Code sections applies to this statute.

5.  Penal Code section 656 states:‘Foreign conviction or acquittal. 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.’

6.  Even though the federal Constitution does not bar successive prosecutions by different jurisdictions (see Abbate v. United States (1959) 359 U.S. 187, 194–195, 79 S.Ct. 666, 670, 3 L.Ed.2d 729, 733–734; Bartkus v. Illinois (1959) 359 U.S. 121, 136, 79 S.Ct. 676, 685, 3 L.Ed.2d 684, 694; United States v. Lanza (1922) 260 U.S. 377, 382, 43 S.Ct. 141, 142, 67 L.Ed. 314, 317), a state may provide greater double jeopardy protection than is available under the federal Constitution through either its own constitution or a statute. (Curry v. Superior Court, 2 Cal.3d 707, 716, 87 Cal.Rptr. 361, 470 P.2d 345; People v. Belcher, supra, 11 Cal.3d at 97, 113 Cal.Rptr. 1, 520 P.2d 385.)

7.  Although the California Supreme Court has held that Penal Code section 654 does not apply to successive prosecutions under different sovereignties (People v. Belcher, supra, 11 Cal.3d at 97–98, 113 Cal.Rptr. 1, 520 P.2d 385), the same rationale is not applicable to Penal Code section 1023. Section 654 requires joinder of all offenses in which the same act or course of conduct plays a significant part, unless joinder is prohibited for good cause. (Kellett v. Superior Court, 63 Cal.2d 822, 827, 48 Cal.Rptr. 366, 409 P.2d 206.) The types of prosecutions which are barred under section 1023 are narrower. While a different sovereignty might not have the opportunity to charge all offenses that arise out of a single course of criminal conduct as required under section 654, a sovereignty would be able to prosecute a defendant for the two additional offenses which are barred under Penal Code section 1023: an attempt to commit the charged offense and a necessarily included offense.

COBEY, Acting Presiding Justice.

ALLPORT and POTTER, JJ., concur.