1DCA Division 2 Oral Argument - 2026/4/21 - Apr 21, 2026

argument

1DCA Division 2 Oral Argument - 2026/4/21

California First District Court of Appeal 3h 56m 8 chapters transcribed 1 month ago official recording ↗

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Transcript generated automatically by AI and may contain errors.

What cases are on the docket and who is appearing?

Unknown 0:00

I will call the cases in the order in which they will be heard, but I will preface that by saying we have one panel change this morning. After the first case, which has the panel that you see before you, Justice Miller will leave us and Justice Richmond, who is appearing remotely today, will be part of the panel. So I'll call the cases, and if counsel will state their names and appearances as I call your case, I would appreciate it. The first one is People v. DePape.

Unknown 0:50

Good morning, Your Honor. The second case is People v. McClintock. Thank you. And is Mr. Somerville and Mr. Vandergriff with us? Ah, sorry.

Michael Vandergriff 1:13

Good morning, Your Honors.

Unknown 1:15

Wait.

Michael Vandergriff 1:17

Apologies.

Unknown 1:17

No, go ahead, please.

Michael Vandergriff 1:19

Oh, okay. Michael Vandergriff, certified law student under the supervision of Deputy Attorney General Kelly Steiger for Respondent.

Unknown 1:26

Thank you. The third case is Cardenas versus

Nicholas Wood 1:33

Solorzano.

Unknown 1:54

Thank you. And the last case on our calendar this morning is Raptors versus CropLife America.

Unknown 2:15

Thank you. All right. We will now hear people be depop. and you'll fix my pronunciation if I had it wrong. Not the pape, the pap. The pape.

Ms. Fuchs 2:45

Thank you, that's good.

Unknown 2:48

Recording in progress.

Ms. Fuchs 2:54

Good morning, Your Honors. May it please the court. On behalf of appellant, the people of the state of California, we ask this court to reverse the trial court's order dismissing the charges of attempted murder, elder abuse, and assault with a deadly weapon against respondent David Wayne DePape. Reversal is necessary here for three reasons. First, even assuming the defendant met their evidentiary burden, which we do not concede, the trial court should have denied the motion to dismiss. The state charges against Mr. DePape require proof of additional physical act evidence not necessary for the federal prosecution. Second, the record was defective here. The trial court could not have determined, in fact said it did not know, what physical acts were necessary for the federal conviction in order to determine that those are the same acts which underlie the state prosecution.

Ms. Fuchs 3:51

Third, even if the record was sufficient to support a plea of once in jeopardy, then it was a question for the jury to resolve, not the trial court. California's double jeopardy provision forecloses a subsequent prosecution of a defendant who has previously been acquitted or convicted in another jurisdiction if all the acts constituting the offense in California's case were necessary to prove the offense in the prior prosecution. But a prosecution in California is not barred where the offense committed is not the same acts or involves acts not present in the prior prosecution.

Unknown 4:30

So let's just get right to the heart of that issue, counsel. And you argue in your briefs that the acts that the constituted evidence of intent, the intent element of the attempted murder charge were additional acts that were required to be proven in the meaning of the jeopardy statute.

Ms. Fuchs 4:58

Well, taking attempted murder specifically, the charge of attempted murder was charged by California as attempted murder with the enhancement that such attempted murder was willful, deliberate, and premeditated. And willful, deliberate, and premeditated can be proven as a specific intent. crime with conduct. But in this case specifically, we were positing that Mr. DePape's conduct, his prior planning, for example, was the evidence that the people and the act evidence that people were relying on.

Unknown 5:33

Well, what, I mean, it seems to me that that argument is squarely, it would essentially eviscerate the holding of Holmick and Commingore and the cases that say that intent and the intent element of a crime is not part of the act. So why is it that, I mean, if every time, you almost always prove intent by circumstantial evidence. How does that make an intent element an act?

Ms. Fuchs 6:04

Well, taking Common Gore for example, in that case, the prosecution conceded that the charge in California and the charge in Oregon were the same physical acts and the Supreme Court was only addressing whether the specific intent in that case to permanently deprive was a distinguishing feature such that the California prosecution survived double jeopardy.