People v. Bivens

• Decision Date: 24 June 1991
• Docket Number: No. B048904,B048904
• Citation: 231 Cal.App.3d 653,282 Cal.Rptr. 438
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Marcus BIVENS, Defendant and Appellant.

Page 438

282 Cal.Rptr. 438

231 Cal.App.3d 653

The PEOPLE, Plaintiff and Respondent, v. Marcus BIVENS, Defendant and Appellant.

No. B048904.

Court of Appeal, Second District, Division 7, California.

June 24, 1991.

Review Denied Oct. 17, 1991.

[231 Cal.App.3d 655] Charles H. Clark, Jr., Los Angeles, for defendant and appellant.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Edward T. Fogel, Jr., Sr. Asst. Atty. Gen., Carol Wendelin Pollack, Supervising Deputy Atty. Gen., and David F. Glassman, Deputy Atty. Gen., for plaintiff and respondent.

LILLIE, Presiding Justice.

After waiving his right to a jury trial, the court found defendant guilty of first degree murder of Kenneth Williams (count 1; Pen.Code, § 187, subd. (a)) and that proceedings on count 2, second degree robbery of Kenneth Williams (Pen.Code, § 211), were barred by the proscription against double jeopardy. Defendant was sentenced to state prison for a term of 25 years to life. He appeals from the judgment contending that the proscription against double jeopardy bars his prosecution in superior court for murder after he had admitted allegations of robbery (Pen.Code, § 211) and assault by means of force likely to produce great bodily injury (Pen.Code, § 245, subd. (a)(1)) on Kenneth Williams, in a juvenile court petition.

FACTUAL AND PROCEDURAL BACKGROUND

At trial, defendant submitted the cause on the reporter's transcript of the testimony taken at his preliminary hearing, as well as the transcript of the preliminary hearing of a codefendant, the police reports, defendant's motion to dismiss on the ground of former jeopardy, defendant's petition for writ of prohibition to the court of appeal, and the record of defendant's juvenile court proceedings. ¹

The autopsy report on Kenneth Williams, admitted into evidence at defendant's preliminary hearing, stated that Williams died on February 20, 1988 after being in a persistent vegetative state since October 26, 1986, when he was assaulted and kicked about the head; Williams was taken to the hospital in a coma and remained in a coma until his death. The report attributed Williams's death to cranio-cerebral injuries due to blunt force trauma to the head.

Gretta Varner was coming home from work at about 12:30 a.m. on October 26, 1986 when she saw three Black males, who looked like they were 14, 16, and 18 years of age, talking with a white male next to her apartment; the white male had some money in his hand; she identified the defendant as the youngest Black male; she did not know defendant's name, but previously had seen him in her neighborhood.

After Varner parked her car and got out, she saw all four people fighting; the Black males had beaten the white man to the ground where defendant and the other two were kicking him; the older two males were robbing the victim while defendant hit and kicked him. Varner crossed the street and yelled to leave him alone, but they did not stop fighting the victim (Williams). After the three Black males ran away, Varner walked over to Williams and saw him bleeding from his mouth and nose; she asked him if he was okay, but Williams never responded, but just moaned like he was in pain. Varner's sister called the police.

On February 11, 1987, a three-count petition under section 602 of the Welfare and Institutions Code was filed against Marcus Bivens in juvenile court, alleging that he was born on September 2, 1970, that on October 26, 1986, when he was 16 years of age, he committed the felonies of attempted murder of Kenneth Williams (count I), assault upon Williams with a deadly weapon and by means of force likely to produce great bodily injury (count II; Pen.Code, § 245, subd. (a)(1)), and robbery of Williams (count III; Pen.Code, § 211). Bivens was detained in juvenile hall pending further proceedings; on March 6, 1987, Bivens admitted the allegations of counts II and III; count I (attempted murder of Williams) was dismissed.

On March 20, 1987, the court declared Bivens a ward of the court under Welfare and Institutions Code section 602 and ordered him committed to the California Youth Authority for a period not to exceed five years, eight months. ²

After Kenneth Williams died (on February 20, 1988), a new juvenile court petition was filed against Bivens on August 4, 1988, charging him with Williams's murder; on August 30, 1988, the court found Bivens unfit for juvenile proceedings; the juvenile petition was dismissed without prejudice and the matter was referred to the district attorney for prosecution.

On August 31, 1988, a felony complaint was filed against defendant charging him with murder and second degree robbery of Kenneth Williams. After preliminary hearing on October 4, 1988, defendant was held to answer. At the time of arraignment in superior court, defendant entered a plea of not guilty and also a plea of once in jeopardy, and on December 20, 1988 filed a motion to dismiss both counts of the criminal prosecution on the ground of former jeopardy; the district attorney filed opposition to the motion. After hearing on February 9, 1989, the court denied the motion. On April 10, 1989, defendant filed petition for writ of prohibition. Division Two of this court issued a May 2, 1989 order denying the petition. ³

At the time of trial to the court, defendant renewed his motion to dismiss. The prosecutor conceded that the motion was well taken as to the charge of robbery (count 2). The court found the prosecution of the robbery to be barred, the defendant having been "placed once in jeopardy" on that count. ⁴ As to count 1, the court found the defendant guilty of murder, "that is murder in the first degree and murder being committed in the course of a robbery."

The principal issue on this appeal is whether the prohibition of double jeopardy barred appellant's prosecution for murder of Kenneth Williams. Relying heavily on In re Bryan (1976) 16 Cal.3d 782, 129 Cal.Rptr. 293, 548 P.2d 693, appellant contends that because the acts that caused Williams's death were the same acts that formed the basis for the juvenile court adjudications as to the counts for robbery and assault of Williams, jeopardy attached when he admitted the robbery and assault in juvenile court, and he subsequently could not be prosecuted for murder.

I DOUBLE JEOPARDY

"Both the United States and California Constitutions provide that a person may not be twice placed in jeopardy for the same offense. (U.S. Const., 5th Amend.; Cal. Const., art. I, § 15.) The double jeopardy clause of the Fifth Amendment applies to the states through the due process clause of the Fourteenth Amendment. [Citation.] The protection against double jeopardy in the California Constitution is the same as that in the federal Constitution." (In re Saul S. (1985) 167 Cal.App.3d 1061, 1064, 213 Cal.Rptr. 541.)

In California, the "constitutional guarantee has been codified by [Penal Code] section 1023, which provides: '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....' A guilty plea is equivalent to a conviction and bars a subsequent prosecution for the same offense. [Citations.]" (Ellsworth v. Superior Court (1985) 170 Cal.App.3d 967, 971-972, 216 Cal.Rptr. 589.)

"To determine whether a subsequent prosecution is barred by the Double Jeopardy Clause, a court must first apply the traditional Blockburger test." (Grady v. Corbin (1990) 495 U.S. 508, ----, 110 S.Ct. 2084, 2090, 109 L.Ed.2d 548, 561.) Blockburger v. United States (1932) 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306, was interpreted by the Court in Grady to mean "that the Double Jeopardy Clause of the Fifth Amendment prohibits successive prosecutions for the same criminal act or transaction under two criminal statutes whenever each statute does not 'requir[e] proof of a fact which the other does not.' " (495 U.S. at p. ----, 110 S.Ct. at p. 2087, 109 L.Ed.2d at p. 557; fn. omitted.) "If application of that test reveals that the offenses have identical statutory elements or that one is a lesser included offense of the other, then the inquiry must cease, and the subsequent prosecution is barred. [Citation.]" (Id., at p. ----, 110 S.Ct. at p. 2090, 109 L.Ed.2d at p. 561.)

However, "a subsequent prosecution must do more than merely survive the Blockburger test. As we suggested in Vitale [Illinois v. Vitale (1980) 447 U.S. 410 [100 S.Ct. 2260, 65 L.Ed.2d 228]], the Double Jeopardy Clause bars any subsequent prosecution in which the government, to establish an essential element of an offense charged in that prosecution, will prove conduct that constitutes an offense for which the defendant has already been prosecuted." (495 U.S. at p. ----, 110 S.Ct. at p. 2093, 109 L.Ed.2d at p. 564.) ⁵

The court in Grady recognized an exception to the above principles: "We recognized in Brown v. Ohio, 432 U.S. 161, 169, and n 7, 53 L Ed 2d 187, 97 S Ct 2221 [2227, and n. 7] (1977), that when application of our traditional double jeopardy analysis would bar a subsequent prosecution, '[a]n exception may exist where the State is unable to proceed on the more serious charge at the outset because the additional facts necessary to sustain that charge have not occurred or have not been discovered despite the exercise of due diligence. See Diaz v. United States, 223 US 442, 448-449 [32 S.Ct. 250, 251, 56 L.Ed. 500] (1912); Ashe v. Swenson, [397 U.S. 436, 453, n. 7 [90 S.Ct. 1189, 1199, n. 7 25 L Ed 2d 469] (1970) ] (Brennan, J., concurring.)' " (Grady v. Corbin, supra, 495 U.S. at p. ----, fn. 7, 110 S.Ct. at p. 2090, fn. 7, 109 L.Ed.2d at p. 561, fn. 7.) This exception did not apply in Grady because the assistant district attorney was informed of the victim's death on the night of the accident. (Ibid.)

Although appellant does not expressly address Blockburger or...