People v. Comingore, Cr. 19855

CourtUnited States State Supreme Court (California)
Writing for the CourtCLARK; BIRD
Citation570 P.2d 723,141 Cal.Rptr. 542,20 Cal.3d 142
Parties, 570 P.2d 723 The PEOPLE, Plaintiff and Appellant, v. Gregory Allen COMINGORE, Defendant and Respondent.
Decision Date03 November 1977
Docket NumberCr. 19855

Page 542

141 Cal.Rptr. 542
20 Cal.3d 142, 570 P.2d 723
The PEOPLE, Plaintiff and Appellant,
v.
Gregory Allen COMINGORE, Defendant and Respondent.
Cr. 19855.
Supreme Court of California, In Bank.
Nov. 3, 1977.

[20 Cal.3d 143] John K. Van de Kamp, Dist. Atty., Donald J. Kaplan and Barry R. Levy, Deputy Dist. Attys., for plaintiff and appellant.

Wilbur F. Littlefield, Public Defender, Harold E. Shabo, Dennis A. Fischer and Laurance S. Smith, Deputy Public Defenders, for defendant and respondent.

[20 Cal.3d 144] CLARK, Justice.

Defendant was charged in count I of an information with grand theft auto (Pen.

Page 543

Code, § 487, subd. 3) 1 and in count II with unlawful driving or taking of a vehicle (Veh.Code, § 10851). 2 Upon defendant's entry of a plea of former conviction, the court found that he had been convicted in Oregon of unauthorized use of a vehicle (Ore.Rev.Stat. 164.135), 3 and that the Oregon conviction barred prosecuting him in California for the crimes charged in the information. Accordingly, the court dismissed the information on its own motion and in furtherance of justice. (§ 1385.) The People's appeal from the dismissal order lies. (§ 1238, subd. (a)(8).)

The facts are not in dispute. Defendant took the victim's car from her residence in Glendale, California, without her permission, and drove it to Salem, Oregon, where he was apprehended and charged with unauthorized use of a vehicle. He pleaded guilty to that charge and was ordered confined in the Marion County jail in Salem, Oregon, for an indeterminate period not to exceed six months. Four days after judgment was entered defendant was granted a bench parole on condition he obey all laws. Subsequently, defendant was arrested in California and charged with grand theft auto and unlawful driving or taking of a vehicle, charges arising out of the same incident that resulted in his Oregon conviction.

The sole question on appeal is whether defendant's former conviction in Oregon for unauthorized use of a vehicle constitutes a bar under the law of California to prosecuting him in this state for grand theft auto and unlawful driving or taking of a vehicle.

We conclude that the Oregon conviction does bar the California charges, and that the trial court therefore acted properly in dismissing the information.

20 Cal.3d 145

DISCUSSION

As principles declared therein control this case our recent decision in People v. Belcher (1974) 11 Cal.3d 91, 113 Cal.Rptr. 1, 520 P.2d 385 will be reviewed in some detail. In a narcotics "rip off," the defendant in Belcher robbed two undercover officers, one of them a federal agent, at gun point. Having previously been acquitted in federal court of assault with a deadly weapon upon a federal agent (18 U.S.C. § 111), the defendant was convicted in state court, on the basis of the same incident, of assault with a deadly weapon and by means of force likely to produce great bodily injury (§ 245, subd. (a)) and of two counts of first degree robbery (§ 211a). His principal contention on appeal was that he was denied his constitutional right to effective assistance of counsel because of trial counsel's failure to properly assert the defense of former acquittal. When a "crucial defense" is withdrawn because of counsel's lack of diligence or competence the trial is reduced to a "farce or sham," requiring reversal of the resultant conviction. (People v. Camden (1976) 16 Cal.3d 808, 815, 129 Cal.Rptr. 438, 549 P.2d 1110; People v. Stephenson (1974) 10 Cal.3d 652, 661, 111 Cal.Rptr. 556, 517 P.2d 820; People v. Ibarra (1963) 60 Cal.2d 460, 34 Cal.Rptr. 863, 386 P.2d 487.) The defense of former acquittal is a "crucial defense." Trial counsel did fail to adequately present it. Therefore, the question presented in Belcher was whether the defendant was entitled to the defense of former acquittal.

We noted at the outset that prosecution and conviction for the same act by both state and federal governments are not

Page 544

[570 P.2d 725] barred by the Fifth Amendment guarantee against double jeopardy. (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.) This rule, however, does not preclude a state from providing greater double jeopardy protection than is provided by the federal Constitution under decisions of the United States Supreme Court. (Bunnell v. Superior Court (1975) 13 Cal.3d 592, 601, 119 Cal.Rptr. 302, 531 P.2d 1086; Curry v. Superior Court (1970) 2 Cal.3d 707, 716, 87 Cal.Rptr. 361, 470 P.2d 345.)

The applicable California statute, we held, was 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 [20 Cal.3d 146] he is on trial, he has been acquitted or convicted, it is a sufficient defense." (Italics added.)

There was no question that Mr. Belcher...

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53 practice notes
  • People v. Fields, No. S044641
    • United States
    • United States State Supreme Court (California)
    • May 2, 1996
    ...guaranteed by this Constitution are not dependent on those guaranteed by the United States Constitution."]; People v. Comingore (1977) 20 Cal.3d 142, 145, 141 Cal.Rptr. 542, 570 P.2d 723; Bunnell v. Superior Court (1975) 13 Cal.3d 592, 601, 119 Cal.Rptr. 302, 531 P.2d 1086; Curry v. Superio......
  • People v. Vega-Robles, A137121
    • United States
    • California Court of Appeals
    • March 7, 2017
    ...double jeopardy protection by statute than that afforded by the federal Constitution. ( 9 Cal.App.5th 427People v. Comingore (1977) 20 Cal.3d 142, 145, 141 Cal.Rptr. 542, 570 P.2d 723 ; §§ 656, 793.)19 The trial court rejected defendant's state double jeopardy claim because "a conviction in......
  • People v. Davis, No. H036719.
    • United States
    • California Court of Appeals
    • December 27, 2011
    ...protection than is provided by the federal Constitution under decisions of the United States Supreme Court." (People v. Comingore (1977) 20 Cal.3d 142, 145, 141 Cal.Rptr. 542, 570 P.2d 723 (Comingore ). )The applicable California statutes are sections 656 and 793. Section 656 provides: "Whe......
  • Cel-Tech Communications, Inc. v. Los Angeles Cellular Telephone Co., CEL-TECH
    • United States
    • California Court of Appeals
    • November 20, 1997
    ...statute should be interpreted with reference to the whole system of law of which it is a part. [Citations.]" (People v. Comingore (1977) 20 Cal.3d 142, 147, 141 Cal.Rptr. 542, 570 P.2d By its express terms, section 17071's presumption of injurious intent applies to "all actions brought unde......
  • Request a trial to view additional results
53 cases
  • People v. Fields, No. S044641
    • United States
    • United States State Supreme Court (California)
    • May 2, 1996
    ...guaranteed by this Constitution are not dependent on those guaranteed by the United States Constitution."]; People v. Comingore (1977) 20 Cal.3d 142, 145, 141 Cal.Rptr. 542, 570 P.2d 723; Bunnell v. Superior Court (1975) 13 Cal.3d 592, 601, 119 Cal.Rptr. 302, 531 P.2d 1086; Curry v. Superio......
  • People v. Vega-Robles, A137121
    • United States
    • California Court of Appeals
    • March 7, 2017
    ...double jeopardy protection by statute than that afforded by the federal Constitution. ( 9 Cal.App.5th 427People v. Comingore (1977) 20 Cal.3d 142, 145, 141 Cal.Rptr. 542, 570 P.2d 723 ; §§ 656, 793.)19 The trial court rejected defendant's state double jeopardy claim because "a conviction in......
  • People v. Davis, No. H036719.
    • United States
    • California Court of Appeals
    • December 27, 2011
    ...protection than is provided by the federal Constitution under decisions of the United States Supreme Court." (People v. Comingore (1977) 20 Cal.3d 142, 145, 141 Cal.Rptr. 542, 570 P.2d 723 (Comingore ). )The applicable California statutes are sections 656 and 793. Section 656 provides: "Whe......
  • Cel-Tech Communications, Inc. v. Los Angeles Cellular Telephone Co., CEL-TECH
    • United States
    • California Court of Appeals
    • November 20, 1997
    ...statute should be interpreted with reference to the whole system of law of which it is a part. [Citations.]" (People v. Comingore (1977) 20 Cal.3d 142, 147, 141 Cal.Rptr. 542, 570 P.2d By its express terms, section 17071's presumption of injurious intent applies to "all actions brought unde......
  • Request a trial to view additional results

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