Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tuolumne County No. CRF29224. Douglas C. Boyack, Judge.
Derrick G. Rogers, in pro. per., for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
Before Vartabedian, Acting P.J., Dawson, J. and Kane, J.
STATEMENT OF THE CASE AND FACTS
Appellant is charged with several counts of lewd acts upon a child which allegedly occurred in Tuolumne County. The complaint covers the time frames of August 1, 2007 through August 31, 2007 (count 1), February 1, 2008 through February 29, 2008 (count 2), March 1, 2008 through March 31, 2008 (count 3), April 1, 2008 through April 30, 2008 (count 4), September 1, 2008 through September 30, 2008 (count 5), and November 1, 2008 through November 30, 2008 (count 6).
Appellant and the victim also resided in South Lake Tahoe, El Dorado County, presumably between May and August 2008. On September 18, 2008, the El Dorado County District Attorney’s office filed a criminal complaint against appellant for sex crimes committed on the victim in El Dorado County. The El Dorado County complaint stated a time period between July 24, 2007 through July 25, 2008, despite the fact the victim and appellant did not reside in El Dorado County during the time period. On January 9, 2009, appellant pled guilty to a misdemeanor violation as charged in El Dorado County.
Appellant moved to dismiss the Tuolumne County information pursuant to Penal Code section 654 and the case of Kellett v. Superior Court of Sacramento County (1966) 63 Cal.2d 822, claiming that appellant is protected from prosecution. Appellant stated that: “In this case El Dorado charged the defendant with unlawful sexual intercourse. Tuolumne County charged the defendant with lewd acts. The course of conduct is one and the same and both prosecutions and the acts are identical. There are no lewd acts describe in any of the discovery except the acts of sexual intercourse.”
The District Attorney responded that prosecution in El Dorado County addressed acts of sex that occurred in that County wherein appellant and victim resided there from May to August 2008. The current case relates to different acts of sex occurring both before and after this distinct time period in a different County. Therefore the acts cannot be the same acts. Tuolumne County never authorized El Dorado County to prosecute for what happened in Tuolumne County.
DISCUSSION
Appellant’s position is that double jeopardy comes within an exception of the final judgment rule as set forth in Abney v. United States (1977) 431 U.S. 651 (Abney).
In Abney, the Supreme Court held that an interlocutory order denying a motion to dismiss an indictment on double jeopardy grounds came under the “collateral order” exception to the final-judgment rule and, thus, was a “final decision” within the meaning of section 1291 of title 28 of the United States Code. (Abney, supra, 431 U.S. at p. 662.) The Supreme Court found that the order denying the defendants’ motion was a “fully consummated decision” (id. at p. 659); there were no further steps (other than moving for reconsideration) that could be taken in district court to avoid trial on double jeopardy ground; that the double jeopardy issue was collateral to and separable from the principal issue--whether defendant was guilty and that the rights conferred by the double jeopardy clause would be significantly undermined if the appeal were postponed. (The double jeopardy clause protects not only against being punished a second time but also “against being twice put to trial for the same offense.”) (Abney, supra, 431 U.S. at p. 661.)
Abney, however, is distinguishable. The court in Abney makes clear “there is no constitutional right to an appeal” and the right to an appeal in criminal cases “is purely a creature of statute.” (Abney, supra, 431 U.S. at p. 656.) Abney involved the interpretation of a federal statute which provided for appeal from “final decision” (28 U.S.C. § 1291). Penal Code section 1237 provides for appeal from a final judgment of conviction. California law does not provide for a right to appeal the denial of a motion to dismiss.
Of course denial of a motion to dismiss on double jeopardy grounds contemplates the protection of the constitutional right to protection against double jeopardy—including being twice put on trial for the same offense and consequently for the constitutional right to be protected, the defendant should be afforded review prior to being forced to go to trial. Appellant retains his remedy of filing for extraordinary relief.
The appeal in the above entitled action is dismissed.