Aslam v. City of S.F.

• Decision Date: 09 October 2019
• Docket Number: A156628
• Court: California Court of Appeals Court of Appeals
• Parties: Saqib ASLAM, Petitioner, v. The SUPERIOR COURT OF the CITY AND COUNTY OF SAN FRANCISCO, Respondent; The People, Real Party in Interest.

41 Cal.App.5th 1029

254 Cal.Rptr.3d 717

Saqib ASLAM, Petitioner,

v. The SUPERIOR COURT OF the CITY AND COUNTY OF SAN FRANCISCO, Respondent;The People, Real Party in Interest.

A156628

Court of Appeal, First District, Division 4, California.

Filed October 9, 2019

As Modified on Denial of Rehearing November 8, 2019

Riordan & Horgan, Dennis P. Riordan, Donald M. Horgan, San Francisco; Boersch & Shapiro, Boersch & Illovsky, Matthew Dirkes, for Petitioner.

No appearance for Respondent.

Xavier Becerra, Attorney General, Catherine Rivlin, Deputy Attorney General for Real Party in Interest.

BROWN, J.

A jury convicted defendant Saqib Aslam of offering a false document in violation of Penal Code ¹ section 115 but acquitted him of perjury under section 118. After trial, the trial court vacated the section 115 conviction on the ground that the prosecution should have charged defendant with violating a more specific statute, Vehicle Code section 20, and allowed the prosecution to amend the information to add that charge. We now decide whether the prosecution of defendant under the more specific statute violates double jeopardy protections or the statutory bar against successive prosecutions. On the facts here presented, we conclude it violates neither and will deny defendant's petition for writ of prohibition or mandate.

BACKGROUND

In April 2016, the prosecution charged defendant with one count of offering a false document ( § 115, subd. (a) ), and one count of perjury ( § 118, subd. (a) ), both felonies. Both charges were based on defendant's alleged submission of a Department of Motor Vehicles (DMV) "Request for Confidentiality" form, which falsely stated that defendant's brothers were his children. A jury convicted defendant of offering a false document, but acquitted him of perjury.

Following trial, defendant moved to vacate his section 115 conviction, arguing that under In re Williamson (1954) 43 Cal.2d 651, 276 P.2d 593 ( Williamson ), the prosecution was required to charge defendant under Vehicle Code section 20, a more specific statute that makes it a misdemeanor to knowingly make a false statement in a document filed with the DMV. (See People v. Murphy (2011) 52 Cal.4th 81, 86, 127 Cal.Rptr.3d 78, 253 P.3d 1216 ["Under the Williamson rule, if a general statute includes the same conduct as a special statute, the court infers that the Legislature intended that conduct to be prosecuted exclusively under the special statute"].) The court agreed that Williamson applied and that the prosecution therefore should have charged defendant with violating Vehicle Code section 20. The court allowed the prosecution to add a count under Vehicle Code section 20 to the information, then vacated the Penal Code section 115 conviction.²

Defendant moved to dismiss the Vehicle Code section 20 count, arguing it was charged beyond the five-year limitations period in Vehicle Code section 40004. The trial court denied defendant's motion. Defendant raised the same statute of limitations argument in a prior writ petition, which we denied. Defendant petitioned for review in the Supreme Court. The Supreme Court denied the petition for review, but did so "without prejudice to petitioner raising a claim pursuant to Kellett v. Superior Court (1966) 6[3] Cal.2d 822 [48 Cal.Rptr. 366, 409 P.2d 206] in [the] superior court."

In the trial court, defendant moved to dismiss the Vehicle Code section 20 count. Defendant argued that the constitutional protection against double jeopardy prohibited prosecution under Vehicle Code section 20 because Vehicle Code section 20 is a lesser included offense of perjury, a crime for which he had already been acquitted. Defendant also argued that prosecution under Vehicle Code section 20 contravened the Supreme Court's decision in Kellett , a case interpreting Penal Code section 654 ’s prohibition against successive prosecutions of offenses. ( Kellett , supra , 63 Cal.2d at p. 827, 48 Cal.Rptr. 366, 409 P.2d 206 (Kellett).) The trial court rejected both arguments and denied the motion.

Defendant filed the instant petition for writ of prohibition or mandate, arguing, as he did in the trial court, that further prosecution of the Vehicle Code section 20 count violates both double jeopardy principles and section 654, as interpreted by Kellett . After receiving preliminary briefing from the parties, we issued an order to show cause.

DISCUSSION

I. Double Jeopardy

We begin with defendant's argument that the constitutional protections against double jeopardy prohibit prosecution of the Vehicle Code section 20 count because it is a lesser included offense of perjury.

The double jeopardy clauses of the United States and California Constitutions ensure a person shall not be placed twice "in jeopardy" for the same offense. ( U.S. Const., 5th Amend; Cal. Const., art I, § 15.) As relevant to this case, the proscription against double jeopardy "protects persons from being consecutively charged with violation of the same law or violation of laws so related that conduct prohibited by one statute is necessarily included within conduct prohibited by the other." ( In re Dennis B. (1976) 18 Cal.3d 687, 691, 135 Cal.Rptr. 82, 557 P.2d 514.) Section 1023 codifies the prohibition against consecutively charging included offenses, stating: "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 offense necessarily included therein , of which he might have been convicted under that accusatory pleading." ( § 1023, italics added; see also People v. Fields (1996) 13 Cal.4th 289, 305–306, 52 Cal.Rptr.2d 282, 914 P.2d 832 [explaining that § 1023 implements the "doctrine of included offenses"].)

Defendant's assertion that Vehicle Code section 20 is a lesser included offense of perjury is based on the so-called "accusatory pleading test." The accusatory pleading test "looks to whether ‘ " ‘the charging allegations of the accusatory pleading include language describing the offense in such a way that if committed as specified [some] lesser offense is necessarily committed.’ " ’ " ( People v. Montoya (2004) 33 Cal.4th 1031, 1035, 16 Cal.Rptr.3d 902, 94 P.3d 1098.) Defendant explains that in the original accusatory pleading, the prosecution charged him with perjury for making a false statement on a DMV "Request for Confidentiality" form. This same conduct served as the basis for the subsequent Vehicle Code section 20 count. Based on the language setting forth the charges against him, defendant contends the newer Vehicle Code section 20 count must be deemed included in the original perjury count.

The flaw in defendant's argument is that the accusatory pleading test does not apply to a double jeopardy analysis. Rather, the "appropriate yardstick" for determining if an offense is included in another for double jeopardy purposes is the "elements test," which is based on a statutory comparison of the elements for both crimes. ( People v. Scott (2000) 83 Cal.App.4th 784, 795–796, 100 Cal.Rptr.2d 70 ; see also People v. Spicer (2015) 235 Cal.App.4th 1359, 1371, 186 Cal.Rptr.3d 158 [elements test, not accusatory pleading test, applies to double jeopardy analysis]; United States v. Dixon (1993) 509 U.S. 688, 696, 113 S.Ct. 2849, 125 L.Ed.2d 556 [elements test, which "inquires whether each offense contains an element not contained in the other," applicable to double jeopardy analysis].) Under the elements test, "if the statutory elements of the greater offense include all of the statutory elements of the lesser offense, the latter is necessarily included in the former." ( People v. Reed (2006) 38 Cal.4th 1224, 1227, 45 Cal.Rptr.3d 353, 137 P.3d 184.)

As applied here, the elements test reveals that Vehicle Code section 20 is not an included offense of perjury because each offense, as defined by statute, contains an element the other does not. Section 118, subdivision (a) defines perjury as willfully stating under oath or penalty of perjury any material matter which a person knows to be false. ( § 118, subd. (a).)

Vehicle Code section 20 makes it a misdemeanor to knowingly make any false statement or knowingly conceal any material fact "in any document filed with the Department of Motor Vehicles." ( Veh. Code, § 20.) Based on these statutory definitions, the perjury statute requires a statement made under oath or penalty of perjury, but does not require that the statement be made in a document filed with the DMV. Vehicle Code section 20, by contrast, does not require that a statement be made under oath or penalty of perjury, but does require that the statement be provided to the DMV. For double jeopardy purposes, they are separate offenses.

Defendant relies on People v. Story (1985) 168 Cal.App.3d 849, 216 Cal.Rptr. 158 to support his argument that we should apply the accusatory pleading test. In Story , a defendant convicted of perjury argued on appeal that the trial court erred in failing to sua sponte instruct the jury on Vehicle Code section 20, which the defendant claimed was a lesser included offense. ( Id. at p. 854, 216 Cal.Rptr. 158.) Applying the accusatory pleading test, the appellate court concluded that Vehicle Code section 20 was included in the perjury offense "in this case," though ultimately the court found no error in the trial court's failure to instruct on Vehicle Code section 20 because the evidence showed that, if guilty at all, the defendant committed the greater crime of perjury. ( Ibid. )

Defendant's reliance on Story is misplaced because Story involved a different issue—a trial court's sua sponte duty to instruct a jury on an uncharged crime. The accusatory pleading test is appropriate in that situation, as the test "arose to ensure that defendants receive notice before they can be convicted of an uncharged crime." ( People v. Reed , supra , 38 Cal.4th at p....