People v. Westbrook
The PEOPLE, Plaintiff and Respondent, v. EARL FRANK WESTBROOK, Defendant and Appellant
- Area
- criminal
- Panel
- Don R. Work (author)
Analysis
The trial court denied Westbrook's motions to strike a sentencing enhancement and to vacate his conviction based on double jeopardy, sentencing him to ten years in prison. The Court of Appeal affirmed the judgment, holding that Westbrook's guilty plea precluded challenging the enhancement and that the dual state and federal proceedings did not violate double jeopardy protections.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of motion to strike the five-year sentencing enhancement under Health and Safety Code section 11379.8, subdivision (a)(2).“Westbrook admitted the weight allegation and stipulated the grand jury transcripts would provide the factual basis for his plea. Through these actions he precluded consideration of whether there was a factual basis for the enhancement.” | unclear | error | agree with court The court correctly applied the principle that a guilty plea constitutes a conclusive admission of guilt and that admissions of enhancements are subject to the same principles as guilty pleas. By admitting the weight allegation as part of a plea bargain, Westbrook waived the right to challenge the factual basis for the enhancement on appeal, as such challenges are limited to issues going to the legality of the proceedings resulting in the plea. |
Denial of motion to vacate conviction based on double jeopardy due to prior federal civil asset forfeiture actions.“The circumstances in Westbrook’s case do not indicate the state prosecution was conducted on behalf of federal authorities or that the federal forfeiture action was pursued by the state.” | de novo | not reached | agree with court The court correctly applied the dual sovereignty doctrine, which permits successive prosecutions by separate sovereigns (state and federal). The court properly rejected the 'sham separate sovereign' exception, noting that the affidavit from the Assistant U.S. Attorney demonstrated that the federal and state systems operated independently without overlap or direction from one sovereign to the other. |
Denial of motion to withdraw guilty plea based on disparate sentence compared to a codefendant.“Nothing in the transcript of the hearing or on the plea form indicates any understanding about a recommendation linked to a codefendant’s term.” | abuse of discretion | not reached | agree with court The court found no evidence in the record that the plea bargain included a promise that Westbrook would receive a sentence no longer than his codefendant's. Since Westbrook was informed of the maximum potential penalty and there was no indication of a specific agreement regarding the codefendant's sentence, the trial court did not err in refusing to allow withdrawal of the plea. |
Authorities
- relied: People v. West (1970) 3 Cal.3d 595 — Establishes the procedure for admitting enhancements or allegations as part of a plea bargain.
- relied: People v. Lobaugh (1987) 188 Cal.App.3d 780 — A plea of guilty is an admission to every element of the charged offense and constitutes a conclusive admission of guilt; admissions of enhancements are subject to the same principles as guilty pleas.
- relied: People v. Pinon (1979) 96 Cal.App.3d 904 — Issues cognizable on appeal following a guilty plea are limited to issues based on reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings resulting in the plea.
- relied: People v. DeVaughn (1977) 18 Cal.3d 889 — Supports the limitation on post-plea appeals to issues regarding the legality of the proceedings.
- relied: Heath v. Alabama (1985) 474 U.S. 82 — Prosecutions and convictions for the same offense by state and federal authorities are not barred by constitutional protections against double jeopardy.
- relied: U.S. v. Figueroa-Soto (1991) 938 F.2d 1015 — The 'sham separate sovereign' exception to the dual sovereignty doctrine is quite restricted and does not apply even when the same prosecutor conducts both state and federal prosecutions.
- relied: U.S. v. Faiz (1990) 905 F.2d 1014 — Allegations of cooperative law enforcement efforts, such as DEA involvement in state investigations or a state prosecutor serving as a special duty U.S. Attorney, do not establish that separate prosecutions are a sham.
- relied: U.S. v. $405,089.23 U.S. Currency (1994) 33 F.3d 1210 — Held that a civil forfeiture action constituted punishment triggering double jeopardy protections in the context of successive federal actions; distinguished here because it involved only federal courts.
- relied: People v. Belcher (1974) 11 Cal.3d 91 — Penal Code section 654 does not apply to successive prosecutions in separate jurisdictions; Penal Code section 656 bars state criminal proceedings after a criminal conviction or acquittal in another jurisdiction, but not after a civil forfeiture action.
The appellate opinion: sound — The opinion is sound because it correctly applies established California and federal precedent regarding the finality of guilty pleas and the dual sovereignty doctrine. It effectively distinguishes the cited federal case involving civil forfeiture as inapposite to the state-federal context and relies on specific factual findings from an affidavit to reject the sham sovereign argument.
The trial court accepted Westbrook's People v. West plea to manufacturing methamphetamine with an admitted Health and Safety Code section 11379.8, subdivision (a)(2) weight enhancement, denied his motion to strike the enhancement, denied his motion to dismiss or vacate the conviction on double jeopardy and Penal Code sections 654/656 grounds based on prior federal civil forfeiture actions, and sentenced him to ten years. The Court of Appeal affirmed, holding the enhancement challenge was not cognizable after his admission, the dual sovereignty doctrine defeated the double jeopardy and statutory claims, and the record showed no plea understanding tied to a codefendant's sentence.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of motion to strike the section 11379.8, subdivision (a)(2) weight enhancement on the ground the seized substance was only seven and one-half gallons with no solid substance“Westbrook admitted the weight allegation and stipulated the grand jury transcripts would provide the factual basis for his plea. Through these actions he precluded consideration of whether there was a factual basis for the enhancement.” | de novo | correct | agree with court An admission of an enhancement is treated like a guilty plea and is a conclusive admission of its elements (Lobaugh); after a plea, only issues going to the legality of the proceedings leading to the plea are cognizable (DeVaughn, Pinon, Pen. Code, § 1237.5). Westbrook stipulated to the grand jury transcripts as the factual basis and never moved to withdraw the plea, so a sufficiency-of-the-evidence attack on the admitted enhancement is foreclosed. The court's refusal to reach the merits is consistent with those authorities, though it did not discuss whether a certificate of probable cause was obtained or address People v. Hoffard on factual-basis challenges. |
Denial of motion to dismiss or vacate the conviction as a violation of double jeopardy based on prior federal civil asset forfeiture actions“The prosecutions against Westbrook were conducted by two separate sovereigns. Thus, his double jeopardy rights were not violated.” | mixed | correct | agree with court Under Heath v. Alabama, successive prosecutions by separate sovereigns do not offend double jeopardy. The 'sham' exception is narrow, and the facts here (joint task force investigation, a deputy district attorney cross-designated as a special assistant United States Attorney) are comparable to those rejected in Figueroa-Soto and Faiz; the Houston affidavit supplied substantial evidence that the forfeiture actions were controlled by the United States Attorney. The court also properly distinguished $405,089.23 U.S. Currency as involving two federal proceedings. The reasoning is correct even without reaching whether civil forfeiture is punishment at all. |
Rejection of the claim that Penal Code sections 654 and 656 barred the state prosecution after the federal civil forfeiture actions“Here, the federal action involving Westbrook was a civil forfeiture action, not a criminal prosecution. Penal Code section 656 does not apply.” | de novo | correct | agree with court People v. Belcher holds section 654's bar on multiple prosecutions does not apply to prosecutions in different jurisdictions, and section 656 by its text requires a prior criminal prosecution ending in acquittal or conviction. A federal civil in rem forfeiture is neither, so the statutory interpretation is straightforward and correct. |
Refusal to permit withdrawal of the guilty plea based on an alleged understanding that the prosecution would recommend no more prison time than a codefendant received“Nothing in the transcript of the hearing or on the plea form indicates any understanding about a recommendation linked to a codefendant’s term.” | unclear | correct | agree with court Westbrook was advised of a 12-year maximum and the plea form and hearing transcript contain no term linking his sentence to a codefendant's, so the record does not support the claimed plea term. The court's conclusion follows from the record it describes, though the opinion is cursory, states no standard of review, does not cite authority, and does not say whether a motion to withdraw was actually made below or whether a certificate of probable cause was obtained. |
Authorities
- relied: People v. West (1970) 3 Cal.3d 595 — A defendant may enter a negotiated guilty plea without admitting factual guilt; the plea is nonetheless a valid conviction.
- relied: People v. Lobaugh (1987) 188 Cal.App.3d 780 — A guilty plea admits every element of the offense and is a conclusive admission of guilt; admissions of enhancements are governed by the same principles.
- relied: People v. Pinon (1979) 96 Cal.App.3d 904 — After a guilty plea, appellate review is limited to constitutional, jurisdictional, or other grounds going to the legality of the proceedings resulting in the plea; sufficiency of the factual basis is not cognizable.
- relied: People v. DeVaughn (1977) 18 Cal.3d 889 — Issues cognizable on appeal following a guilty plea are limited to those going to the legality of the proceedings resulting in the plea (Pen. Code, § 1237.5).
- relied: Heath v. Alabama (1985) 474 U.S. 82 — Under the dual sovereignty doctrine, successive prosecutions for the same conduct by separate sovereigns do not violate the Double Jeopardy Clause.
- relied: U.S. v. Figueroa-Soto (1991) 938 F.2d 1015 — The sham separate sovereign exception is narrow; a state prosecution brought at federal request by the same prosecutor does not establish a sham.
- relied: U.S. v. Faiz (1990) 905 F.2d 1014 — Federal involvement in a state investigation and cross-designation of a state prosecutor as a special United States Attorney show only cooperative law enforcement, not a sham prosecution.
- relied: U.S. v. $405,089.23 U.S. Currency (1994) 33 F.3d 1210 — Distinguished: held a federal civil forfeiture and federal criminal prosecution for the same offense must be brought in one proceeding, but involved a single sovereign and so does not govern a state prosecution following federal forfeiture.
- relied: People v. Belcher (1974) 11 Cal.3d 91 — Penal Code section 654's bar on multiple prosecutions does not apply to successive prosecutions in different jurisdictions; section 656 bars a state prosecution only after a criminal conviction or acquittal elsewhere for the same act or omission.
- missed: People v. Hoffard (1995) 10 Cal.4th 1170 — A challenge to the adequacy of the factual basis for a negotiated guilty plea goes to the validity of the plea and is cognizable on appeal only with a certificate of probable cause under Penal Code section 1237.5.
The appellate opinion: sound with gaps — The court correctly applied the rule that an admitted enhancement cannot be attacked on factual-basis grounds after a plea, correctly applied the dual sovereignty doctrine and its narrow sham exception, and correctly read Penal Code sections 654 and 656 under Belcher. It did not, however, mention Bartkus v. Illinois as the source of the sham exception, did not address the certificate of probable cause requirement or the Supreme Court's then-recent decision in Hoffard, and disposed of the disparate-sentence claim in two sentences without authority or a stated standard.
Opinion — Work
Opinion
WORK, J.A grand jury indicted Earl Frank Westbrook on 24 counts of trafficking in, manufacturing and marketing methamphetamine. Count 23 of the indictment charged Westbrook and 10 other people with unlawfully *223 manufacturing methamphetamine (Health and Saf. Code, 1 § 11379.6, subd. (a)) between February 21 and 22, 1992. This charge included allegations the substance containing methamphetamine exceeded three gallons of liquid by volume (§ 11379.8, subd. (a)(1)) and ten pounds of solid substance by weight (§ 11379.8, subd. (a)(3)). Under the provisions of a plea bargain, Westbrook pled guilty under People v. West (1970) 3 Cal.3d 595 [91 Cal.Rptr. 385, 477 P.2d 409] to count 23 and admitted the “three pound weight allegation.” 2 He stated he understood as a consequence of his plea he could receive a maximum penalty of 12 years in prison and a $20,000 fine.
Westbrook later moved to dismiss or vacate his conviction based on a claim he had twice been put in jeopardy because of civil asset forfeiture cases brought against him by the federal government. The court denied the motion. The court also denied his motion to strike the enhancement, which he based on an argument the substance seized was less than 10 gallons.
The court sentenced Westbrook to a total ten-year term, five years for manufacturing methamphetamine, plus five years for the weight enhancement.
Westbrook contends the court erred by denying his motion to strike the sentence enhancement; by denying his motion to vacate his criminal conviction as a violation of guarantees against double jeopardy; and by imposing a sentence longer than that of a codefendant. We affirm.
Discussion
I. Enhancement Under Section 11379.8, Subdivision (a)(2)
Section 11379.8, subdivision (a)(2) states “[w]here the substance[ 3 ] exceeds 10 gallons by liquid volume or three pounds of solid substance by weight, the person shall receive an additional term of five years.” Westbrook asserts this sentencing enhancement is not applicable to his case because the substance seized was only seven and one-half gallons of liquid volume and no solid substance was seized at all.
Westbrook, however, admitted the “three pound weight allegation” under People v. West, supra, 3 Cal.3d 595 as a part of a plea bargain. A plea of guilty is an admission to every element of the charged offense and constitutes a conclusive admission of guilt. (People v. Lobaugh (1987) 188 *224 Cal.App.3d 780, 785 [233 Cal.Rptr. 683].) “Admissions of enhancements are subject to the same principles as guilty pleas.” (Ibid.) Westbrook admitted the weight allegation and stipulated the grand jury transcripts would provide the factual basis for his plea. Through these actions he precluded consideration of whether there was a factual basis for the enhancement. (People v. Pinon (1979) 96 Cal.App.3d 904, 909-910 [158 Cal.Rptr. 425].) “ ‘Issues cognizable on an appeal following a guilty plea are limited to issues based on “reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings” resulting in the plea.’ ” (Id. at p. 910, quoting People v. DeVaughn (1977) 18 Cal.3d 889, 895 [135 Cal.Rptr. 786, 558 P.2d 872], & Pen. Code, § 1237.5.) The fact he raised the issue after the court had accepted his plea, but before he was sentenced is of no consequence. He never sought to withdraw his plea, but asked the court only to strike the weight enhancement. There is no indication in the record of an inequitable plea bargain or indication Westbrook did not receive the benefits of his bargain. Westbrook’s arguments the grand jury transcripts do not support the weight allegation does not raise an issue on appeal based on “reasonable constitutional, jurisdictional or other grounds going to the legality of the proceedings” resulting in the plea. We thus do not address his arguments on the merits.
II. Double Jeopardy Claim
Westbrook contends forfeiture of his interests in property under federal civil forfeiture actions for the same offenses for which he has been sentenced in this case constitutes a violation of his guarantees against double jeopardy. He also asserts the multiple prosecutions are forbidden by Penal Code sections 654 and 656.
His contentions fail. Prosecutions and convictions for the same offense by state and federal authorities are not barred by constitutional protections against double jeopardy. (Heath v. Alabama (1985) 474 U.S. 82, 88 [88 L.Ed.2d 387, 393-394, 106 S.Ct. 433].) The prosecutions against Westbrook were conducted by two separate sovereigns. Thus, his double jeopardy rights were not violated.
Westbrook alleges the sovereigns who prosecuted him were separate in name only. Claiming the second prosecution was a mere sham brought on behalf of the government which conducted the first prosecution, he seeks to invoke a narrow exception to the general rule that successive prosecutions by separate sovereigns are permissible. He argues federal Drug Enforcement Agency agents and local law enforcement officers participated in a task force which did the investigative work for the prosecutions in the state and federal courts, and a deputy district attorney was designated as a special assistant United States Attorney and appeared in the federal civil forfeiture *225 case. Although the “sham separate sovereign” exception has been recognized by some courts (see, e.g., U.S. v. Figueroa-Soto (9th Cir. 1991) 938 F.2d 1015, 1018-1019), it is quite restricted. For example, in Figueroa-Soto, the court refused to accept the argument even though the state had prosecuted at the request of federal authorities and the same prosecutor had conducted both the state and federal prosecutions. (Id. at pp. 1018-1020.) The court in U.S. v. Faiz (7th Cir. 1990) 905 F.2d 1014, ruled allegations that the United States Drug Enforcement Agency was actively involved in the state investigation and arrest of the defendant and that a state prosecutor was designated a special duty United States Attorney for purposes of the federal prosecution did not establish the separate prosecutions were a sham. (Id. at p. 1024.) There, the court stated, “[These facts] [a]t most . . . establish cooperative law enforcement efforts, efforts that are undeniably legal and, indeed, have been called ‘a welcome innovation.’ ” (Ibid.)
The circumstances in Westbrook’s case do not indicate the state prosecution was conducted on behalf of federal authorities or that the federal forfeiture action was pursued by the state. John A. Houston, an assistant United States Attorney for the Southern District of California and chief of the asset forfeiture unit, declared by affidavit that since 1986 a deputy district attorney from the narcotics division of the San Diego District Attorney’s office has been assigned to the asset forfeiture unit. Houston declared the deputy district attorney has been located in the United States Attorney’s office, reporting directly to him, and all decisions regarding asset forfeiture cases are under the direction of the United States Attorney. Houston stated there has been no overlap between the federal and state systems and discussions regarding the resolution of a criminal case in conjunction with a civil case is strictly forbidden. Houston specifically declared Westbrook’s criminal case was handled entirely in state court and the federal asset forfeiture cases were litigated solely under the direction of the United States Attorney. His affidavit shows Westbrook’s civil and criminal prosecutions were conducted by separate sovereigns, thus double jeopardy guarantees were not compromised.
Westbrook’s reliance on U.S. v. $405,089.23 U.S. Currency (9th Cir. 1994) 33 F.3d 1210, is to no avail. The Supreme Court has granted certiorari in that case in U.S. v. Ursery (1996) _ U.S. _ [133 L.Ed.2d 707, 116 S.Ct. 762] on January 12, 1996. Moreover, U.S. v. $405,089.23 U.S. Currency is inapposite. In that case the Ninth Circuit court ruled a civil forfeiture action constituted punishment which triggered double jeopardy protections, and, therefore, a federal civil forfeiture action and a federal criminal prosecution must be brought in the same proceeding. (33 F.3d at p. 1222.) Because U.S. v. $405,089.23 U.S. Currency dealt with successive actions both brought in federal court, the holding has no application to Westbrook’s case.
*226 The successive civil federal forfeiture action and state criminal prosecutions also are not precluded by Penal Code sections 654 and 656. Penal Code section 654 prohibits multiple punishment and multiple prosecutions. 4 It does not apply, however, to successive prosecutions in separate jurisdictions because while the state presumably is able to charge a defendant with all offenses which may arise out of a single course of conduct, this assumption is not applicable when one of the prosecutions occurs in a different jurisdiction. (P eople v. Belcher (1974) 11 Cal.3d 91, 97-98 [113 Cal.Rptr. 1, 520 P.2d 385].)
Penal Code section 656 bars a state criminal proceeding after a criminal conviction or acquittal in another jurisdiction of a charge involving the same act or omission. (People v. Belcher, supra, 11 Cal.3d at p. 97.) 5 Here, the federal action involving Westbrook was a civil forfeiture action, not a criminal prosecution. Penal Code section 656 does not apply.
III. Claim of a Disparate Sentence
Westbrook contends he should be allowed to withdraw his guilty plea because at the time of his plea he understood the government would recommend he be sentenced to no more prison time than a codefendant who pled guilty to the same charge, yet a 10-year sentence was recommended for him while his codefendant received only a 6-year term.
At the time of his plea, Westbrook was informed he could be sentenced to a term as long as 12 years. Nothing in the transcript of the hearing or on the plea form indicates any understanding about a recommendation linked to a codefendant’s term.
Disposition
The judgment is affirmed.
Kremer, P. J., and Haller, J., concurred.
All statutory references are to the Health and Safety Code unless otherwise specified.
The charging document alleges the substance exceeded three gallons of liquid by volume (§ 11379.8, subd. (a)(1)) (an additional three-year term) and ten pounds of solid substance by weight (§ 11379.8, subd. (a)(3)) (an additional ten-year term). Westbrook admitted the “three pound weight allegation” (§ 11379.8, subd. (a)(2)), which carries a five-year sentencing enhancement.
The word “substance” in his context means a “substance containing a controlled substance” (§ 11379.8, subd. (a)) such as methamphetamine (§ 11055, subd. (d)(2)).
Section 654 provides: “An act or omission which is made punishable in different ways by different provisions of this code may be punished under either of such provisions, but in no case can it be punished under more than one; an acquittal or conviction and sentence under either one bars a prosecution for the same act or omission under any other.”
Penal Code section 656 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.”
Cites, in this corpus
- Lesher Communications, Inc. v. Superior Court A051026 · 1990-10-16
- People v. Lobaugh Crim. 14937 · 1987-01-12
- People v. Pinon Crim. 33731 · 1979-09-13
- People v. DeVaughn Docket Nos. Crim. 19468, 19469 · 1977-01-25
- People v. Belcher Crim. 16902 · 1974-03-28
- People v. West Crim. 14453 · 1970-12-03
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