People v. Belcher

• Decision Date: 28 March 1974
• Docket Number: Cr. 16902
• Citation: 113 Cal.Rptr. 1,11 Cal.3d 91,520 P.2d 385
• Court: California Supreme Court
• Parties: , 520 P.2d 385 The PEOPLE, Plaintiff and Respondent, v. Vercil Leon BELCHER, Defendant and Appellant.

Page 1

113 Cal.Rptr. 1

11 Cal.3d 91, 520 P.2d 385

The PEOPLE, Plaintiff and Respondent, v. Vercil Leon BELCHER, Defendant and Appellant.

Cr. 16902.

Supreme Court of California In Bank.

March 28, 1974.

Paul R. DePasquale, Oakland, under appointment by the Supreme Court, for defendant and appellant.

Evelle J. Younger, Atty. Gen., Herbert L. Ashby, Chief Asst. Atty. Gen., William E. James, Asst. Atty. Gen., Joyce F. Nedde, Eugene Kaster and W. Eric Collins, Deputy Attys. Gen., for plaintiff and respondent.

SULLIVAN, Justice.

Defendant Vercil Leon Belcher was charged by amended information with two counts (first and second counts) of robbery (Pen.Code, § 211) and one count (third count) of assault with a deadly weapon and by means of force likely to produce great bodily injury. (Pen.Code, § 245, subd. (a)). ¹ The amended information also charged that at the time of the commission of said offenses defendant was armed with a deadly weapon. A jury found him guilty as charged and determined that the robberies were of the first degree. (§ 211a.) Defendant was sentenced to state prison for the term prescribed by law. He appeals from the judgment of conviction.

On the evening of October 28, 1970, Arthur Johnson, a federal narcotics agent, and James Norton, an undercover agent of the Oakland Police Department, made arrangements for a narcotics purchase. As agreed upon, they were picked up at a specified address by a man named 'Joe' driving a Cadillac automobile to be taken to the place of purchase. Joe was accompanied by a passenger in the front seat whom the officers later identified as defendant. The agents entered the car and sat in the rear seat.

A short time later, the driver stopped the car at a place where ostensibly the purchase was to be made. After inquiring as to the money, the driver produced a sawed-off shotgun and defendant an automatic pistol. Agent Johnson was forced to hand over to them $400 in federal funds; both agents were forced to surrender their wallets. The robbers then drove away.

On the first day of trial, before the prospective jurors were examined, defendant moved to dismiss the information on the ground of prior jeopardy, specifying no statutory basis therefor. In essence, the basis of his motion was that he had been tried on, and acquitted of, substantially similar charges in the United States District Court for the Northern District of California arising out of the incident involving federal agent Johnson. In support of the motion, defendant presented to the court certified copies of the federal indictment and of the judgment of acquittal. ² The trial judge pointed out that the federal indictment charged an assault on Johnson committed with a sawed-off shotgun but that the amended information charged defendant as having been armed with an automatic pistol. Defendant argued in response that both charges were nevertheless based on the same event of October 28, 1970. The court denied the motion without prejudice on the ground that the documents presented to it did not show that the federal and state offenses involved the same offense or transaction.

Defendant's defense was alibi. The jury found him guilty on all three counts and also found that at the time of the commission of all three offenses he was armed with a deadly weapon and that in their commission he used a firearm.

Defendant's principal contention is that his conviction was obtained in violation of his constitutional right to the effective assistance of counsel. This contention is based on the charge that his court-appointed counsel at trial (who is not his present counsel) failed to properly assert the defense of former acquittal.

In In re Saunders (1970) 2 Cal.3d 1033, 1041--1042, 88 Cal.Rptr. 633, 638, 472 P.2d 921, 926, we said: 'The constitutional right to the assistance of counsel in a criminal case (citations) includes the guarantee that such assistance be 'effective.' (Citations.) That 'effective' counsel required by due process, however, is not Errorless counsel; rather, it is counsel 'reasonably likely to render, And rendering reasonably effective assistance.' (Citations.)

'Although the determination of whether the demands of due process have been met in a particular case is always 'a question of judgment and degree' to be answered in light of all of the circumstances and with a view to 'fundamental fairness' (citations), certain general standards have evolved for the aid of the court making this determination. Fundamental among these is that which places upon counsel the duty to conduct careful factual and legal investigations and inquiries with a view to developing matters of defense in order that he may make informed decisions on his client's behalf both at the pleading stage (citations) and at trial (citations). If counsel's 'failure (to undertake such careful inquiries and investigations) results in withdrawing a crucial defense from the case, the defendant has not had the assistance to which he is entitled.' (Citations.)' (Fn. omitted; original italics.)

In the instant case defendant's counsel failed to advise him to enter a plea of former acquittal (§ 656); defendant's failure to do so, as with other pleas of former jeopardy (see In re Harron (1923) 191 Cal. 457, 467--468, 217 P. 728; People v. Barry (1957) 153 Cal.App.2d 193, 200, 314 P.2d 531, cert. denied, 355 U.S. 956, 78 S.Ct. 542, 2 L.Ed.2d 532), constituted a waiver of this legal defense. (In re Lozoya (1956) 146 Cal.App.2d 702, 703--704, 304 P.2d 156.) Instead, counsel waited until the first day of trial when he moved to dismiss the information on an unspecified ground of former jeopardy. Neither did counsel request that a plea of former acquittal be ordered Nunc pro tunc as of the time of the original plea, despite the trial court's denial of his motion without prejudice. (People v. Candelaria (1957) 153 Cal.App.2d 879, 881, 315 P.2d 386.) If such a plea had merit and counsel's failure resulted 'in withdrawing a crucial defense from the case, the defendant has not had the assistance to which he is entitled. (Citations.)' (People v. Ibarra (1963) 60 Cal.2d 460, 464, 34 Cal.Rptr. 863, 866, 386 P.2d 487, 490.)

We must determine therefore whether, on the record presented to us, defendant's defense based upon prior acquittal is a 'crucial defense' the withdrawal of which reduced his trial to a farce or sham. If indeed defendant was entitled to the defense which he claims should be a bar to his conviction, then the defense was crucial and the failure of counsel to adequately present it must result in reversal of that conviction.

We note at the outset that prosecution and conviction for the same act by both state and federal governments are not barred by the constitutional protection against double jeopardy. ³ (Abbate v. United States (1959) 359 U.S. 187, 194--195, 79 S.Ct. 666, 3 L.Ed.2d 729; Bartkus v. Illinois (1959) 359 U.S. 121, 136, 79 S.Ct. 676, 3 L.Ed.2d 684; United States v. Lanza (1922) 260 U.S. 377, 382, 43 S.Ct. 141, 67 L.Ed. 314.) ⁴ This rule, however, does not preclude a state from providing greater double jeopardy protection than the United States Supreme Court has determined to be available under the Fifth Amendment of the United States Constitution. (Curry v. Superior Court (1970) 2 Cal.3d 707, 716, 87 Cal.Rptr. 361, 470 P.2d 345.) Accordingly, a number of states have adopted statutes which provide at least some protection against successive prosecutions in different jurisdictions for offenses arising out of the same act. (Model Pen.Code, § 1.11, com., p. 61 (Tent.Draft No. 5, 1956) (list of state statutes).)

The relevant statute in California is Penal Code section 656, which 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.' (Italics added.)

It is important to keep in mind the scope of protection provided by this section. Section 656 establishes a bar to a state criminal proceeding after a conviction or acquittal in another jurisdiction of a charge involving the same act or omission. Thus it provides some protection against successive prosecutions in separate jurisdictions where, because of the Lanza-Bartkus-Abbate rule, constitutional protections are absent.

To be distinguished from the above section is the proscription against multiple prosecutions under section 654. ⁵ The latter section, which prohibits multiple punishment (Neal v. State of California (1960) 55 Cal.2d 11, 19, 9 Cal.Rptr. 607, 357 P.2d 839, cert. denied, 365 U.S. 823, 81 S.Ct. 708, 5 L.Ed.2d 700) as well as multiple prosecution (Kellett v. Superior Court (1966) 63 Cal.2d 822, 827, 48 Cal.Rptr. 366, 409 P.2d 206), does not apply in the context of successive prosecutions in separate jurisdictions. (People v. Williams (1971) 18 Cal.App.3d 925, 928--929, 96 Cal.Rptr. 291.) There exists good reason for declining to apply section 654 to successive federal and state prosecutions. (See Model Pen.Code, § 1.11 (Tent.Draft No. 5), com., at p. 60.) Under the section, all offenses in which the same act or course of conduct plays a significant part must normally be prosecuted in a single proceeding, unless joinder is prohibited or severance permitted for good cause. (Kellett v. Superior Court, Supra, 63 Cal.2d 822, 827, 48 Cal.Rptr. 366, 409 P.2d 206.) This rule is based on the assumption that the state has the opportunity to charge all offenses that may arise out of a single course of criminal conduct. Clearly, the assumption cannot be made where, as here, one of the prosecutions occurred in another jurisdiction.

Having made these preliminary observations, we now turn to the application of section 656 to the facts of this case. There is no question that, in the words of the statute, defendant 'has been acquitted' or that...