What is the ''Bailey Rule'' ?

In 1961, the California Supreme Court decided People v. Bailey (1961) 55 Cal.2d 514. There, the defendant committed welfare fraud and received a number of payments, none of which alone sufficed to constitute grand theft, but collectively they did. The court decided that defendant was properly convicted of grand theft rather than a series of petty thefts. It authorized the aggregation of separate acts of theft into a single offense for the purpose of bringing a felony allegation when the thefts were committed pursuant to a single intent, impulse and plan. (Id. at pp. 518-519.) This holding has become known as the Bailey rule. The Bailey rule has been extended to prevent a defendant from being convicted of more than one count of grand theft where the takings were committed against a single victim and the evidence discloses only one general intent. (People v. Richardson (1978) 83 Cal.App.3d 853, 858; People v. Packard (1982) 131 Cal.App.3d 622, 626; People v. Kronemyer (1987) 189 Cal.App.3d 314, 324, 363-364.) For the next 47 years, the Bailey rule was limited to theft cases. (People v. Neder (1971) 16 Cal.App.3d 846, 852 not extended to forgery; People v. Drake (1996) 42 Cal.App.4th 592, 596 not extended to fraud; People v. Washington (1996) 50 Cal.App.4th 568, 575, 577-578 not extended to burglary.) In In re David D. (1997) 52 Cal.App.4th 304, the Court was presented with the question whether the Bailey rule was properly extended to the non-theft crime of vandalism. The Court decided that the lower court erred by allowing aggregation of 34 separate acts of vandalism into a single count felony count. Our decision identified "an additional factor which the previous authorities have not emphasized, but which we think is important--whether the count involved crimes against a single victim or multiple victims." (Id. at p. 309.) Application of the Bailey rule "has been limited not only to the crime of theft, but generally to thefts involving a single victim." (Ibid..) Relying on People v. Church (1989) 215 Cal.App.3d 1151 and People v. Garcia (1990) 224 Cal.App.3d 297, the Court concluded that "one limitation of the Bailey doctrine is its inapplicability to offenses involving multiple victims." (David, supra, 52 Cal.App.4th at p. 310.) The Bailey rule did not apply because David "and his friends drove throughout the city, tagging property they happened upon which appeared isolated and safe from witnesses." (Id. at p. 311.) Thus, his "crimes did not arise out of the 'same transaction'; they arose out of 34 'transactions,' one occurring each time he or a co-perpetrator sprayed an item of property." (Id. at pp. 310-311.) People v. Tabb, supra, 170 Cal.App.4th at page 1149 cited David in support of the proposition that the Bailey rule "has also generally been limited to thefts involving a single victim." In re Arthur V. (2008) 166 Cal.App.4th 61 was decided by Division One of the Fourth Appellate District. The Arthur decision diverged from the line of authority limiting the Bailey rule to theft crimes. There, the minor broke the victim's car windshield. Then he kicked the escaping victim, which caused the victim to drop his cell phone and it broke on impact. The minor was found to have committed one count of felony vandalism; on appeal, he argued that the evidence supported two counts of misdemeanor vandalism. The appellate court rejected the reasoning and result in David, supra, 52 Cal.App.4th 304. It acknowledged that "the modern case law demonstrates a clear trend toward limiting the Bailey doctrine to theft cases" and recognized that "the potential hardness of this result--allowing multiple convictions in circumstances that might be viewed as a single crime--is mitigated by the application of section 654, which 'limits the punishment for separate offenses committed during a single transaction.' " (Arthur, supra, 166 Cal.App.4th at p. 67.) Nonetheless, the court found "that the rule announced in Bailey applies with equal force to the offense of vandalism." (Ibid.) In the court's "view, the principal analytical distinction to be drawn in applying Bailey is not between theft and nontheft crimes (the rough distinction that has arisen in the case law), but rather between offenses that can be aggregated to create a felony offense, such as petty theft and misdemeanor vandalism, and those that cannot, such as burglary." (Ibid..) Based on this reasoning, it held that "the Bailey rule ... has application whenever, as here, a defendant is charged with a felony offense based on an aggregation of multiple misdemeanor offenses." (Id. at pp. 67-68.) In People v. Carrasco (2012) 209 Cal.App.4th 715, Division Four of the Second Appellate District applied the analysis in Arthur, supra, 166 Cal.App.4th 61 and held "that where a defendant commits multiple acts of vandalism pursuant to a single general impulse, intention or plan, the fact that the damage is to property owned by more than one victim does not preclude aggregation resulting in an offense of felony vandalism." (Carrasco, supra, at p. 717.)