People v. Walker, Cr. 39711

• Decision Date: 15 September 1981
• Docket Number: Cr. 39711
• Citation: 177 Cal.Rptr. 147,123 Cal.App.3d 981
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Glennon Dean WALKER, Defendant and Appellant.

Page 147

177 Cal.Rptr. 147

123 Cal.App.3d 981

PEOPLE of the State of California, Plaintiff and Respondent, v. Glennon Dean WALKER, Defendant and Appellant.

Cr. 39711.

Court of Appeal, Second District, Division 2, California.

Sept. 15, 1981.

Hearing Denied Dec. 2, 1981.

Paul T. Suzuki, Los Angeles, under appointment by the Court of Appeal, for defendant and appellant.

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Crim. Div., S. Clark Moore, Asst. Atty. Gen., William R. Pounders and Robert F. Katz, Deputy Attys. Gen., for plaintiff and respondent.

BEACH, Associate Justice.

Defendant pleaded guilty to robbery (Pen.Code, § 211) and using a gun in the commission of the offense (Pen.Code, §§ 12022.5 and 1203.06, subd. (a)(1)). The trial court sentenced defendant to state prison. Defendant applied for a certificate of probable cause (Pen.Code § 1237.5), which the trial court granted. This appeal followed. Defendant contends that because he had previously been convicted in Nevada of receiving stolen property, based on traveler's checks taken in an incident which also formed the basis of the present California prosecution for robbery, he was placed twice in jeopardy for the same offense. We reject the contention and affirm the judgment of conviction.

FACTS:

A. Substantive Offense

At noon on June 4, 1980, Elizabeth Knauer, an employee of American Express on Riverside Drive in Sherman Oaks, saw defendant point a gun at her colleague Dale Trader. Knauer heard defendant order Trader to give him all the money he had. Knauer then observed Trader handing defendant a bundle of traveler's checks. Knauer believed that at that time the drawer contained approximately $45,000 in traveler's checks.

After defendant had left, someone activated the alarm. Knauer gave the police a description of defendant, and later selected his photograph from a series of photographs shown to her by the police.

B. Nevada Conviction

On June 5, 1980, one day after the American Express robbery in California, defendant, apparently on the basis of a guilty plea, was convicted in Nevada of receiving stolen property. The conviction was based on defendant's possession of traveler's checks taken from the American Express office on June 4, 1980.

DISCUSSION:

Defendant contends that because his previous Nevada conviction was based on the same incident giving rise to the California prosecution, he was placed in jeopardy twice for the same offense.

Prosecution and conviction for the same act by two different states are not barred by the Fifth Amendment guarantee against double jeopardy. (People v. Comingore (1977) 20 Cal.3d 142, 145, 141 Cal.Rptr. 542, 570 P.2d 723.) Of course, a state is not precluded from providing greater double jeopardy protection than that afforded by the federal Constitution under decisions of the United States Supreme Court. (Ibid.; Bunnell v. Superior Court (1975) 13 Cal.3d 592, 601, 119 Cal.Rptr. 302, 531 P.2d 1086; People v. Belcher (1974) 11 Cal.3d 91, 97, 113 Cal.Rptr. 1, 520 P.2d 385.) The applicable California statute is Penal Code section 656, ¹ 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." (Emphasis added.) Thus, the question before us is whether the Nevada conviction was a "sufficient defense" to the California charge because it was based on the same "act."

The first case to interpret Penal Code section 656 was People v. Candelaria (1956) 139 Cal.App.2d 432, 294 P.2d 120. There the defendant robbed a national bank. That incident led to his conviction for robbery in a federal court. Federal jurisdiction was based on the fact that the national bank's deposits were federally insured. Thereafter, the state prosecuted and convicted the defendant for robbery of the same bank. On appeal, the court held that the federal conviction was a bar to the state prosecution because all the acts constituting the state offense of robbery were necessarily included in the federal offense and were necessary to constitute the federal offense. The only additional element in the federal offense was the fact that the money taken from the bank was federally insured. However, the status of title to or insurance on the money, which provided the federal court with jurisdiction in the case, did not pertain to any activity on the part of the defendant in committing the robbery. (Id. at p. 440, 294 P.2d 120.)

Thereafter, a new information was filed charging Candelaria with the offense of burglary based on the same incident plus the allegation that he entered the bank with intent to commit a theft. Again, the defendant asserted as a defense his prior federal conviction for robbery. This time, however, the Court of Appeal disagreed, holding that the state offense of burglary, that is, the entering of the building with the intent to commit a theft, was not the same act complained of in the federal court, namely, that he pointed a gun at the teller and by force and fear compelled her to hand money over to him. (People v. Candelaria, (1957) 153 Cal.App.2d 879, 884, 315 P.2d 386.)

In People v. Belcher, supra, 11 Cal.3d 91, 113 Cal.Rptr. 1, 520 P.2d 385, the defendant on one single occasion assaulted and robbed both a federal agent and a state agent. After the defendant's acquittal in the federal court for the assault on the federal agent, the state court convicted him of robbery of both agents and assault with a deadly weapon on the federal agent. The California Supreme Court held that the state prosecution for assault with a deadly weapon upon the federal agent was barred under Penal Code section 656 because the same "act" was involved in both the federal and state prosecutions. Citing Candelaria, the California Supreme Court held that the jurisdictional fact of the victim's status did not pertain to the defendant's conduct.

However, as to the defendant's convictions for robbery of the federal agent and the state agent, the Belcher court held the convictions were proper because they were not founded upon the same act for which the defendant had been acquitted in the federal court. As the court pointed out, a conviction for each of the robberies "requires at the very least proof of an important additional act by defendant the 'taking of personal property in the possession of another' (§ 211) that need not be proved to establish the federal offense of assault with a deadly weapon upon a federal officer." (People v. Belcher, supra, 11 Cal.3d 91, 100, 113 Cal.Rptr. 1, 520 P.2d 385.)

In People v. Comingore, supra, 20 Cal.3d 142, 141 Cal.Rptr. 542, 570 P.2d 723, the defendant took the victim's car from her residence in California, without her permission, and drove it to Oregon, where he was apprehended and charged with unauthorized use of a vehicle, to which he pleaded guilty. Thereafter, the defendant was arrested in California and charged with grand theft auto and unlawful driving or taking of a vehicle, based on the same incident that resulted in his Oregon conviction. The California Supreme Court, relying on Belcher and Candelaria held that the California prosecution was barred because it was based...