People v. DePape

Filed 6/30/26 CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION TWO THE PEOPLE, Plaintiff and Respondent, A170759 v. DAVID WAYNE DEPAPE, (San Francisco County Super. Ct. No. 22012966) Defendant and Appellant. David Wayne DePape was charged in both federal and state court of offenses arising from an October 2022 attack on Paul Pelosi, the husband of then Speaker of the United States House of Representatives Nancy Pelosi. After he was convicted and sentenced in federal court, DePape sought dismissal of four of the eight counts in the state case pursuant to California’s statutory double jeopardy protections. The trial court granted the motion as to three counts. The People appeal. We affirm. 1  BACKGROUND I. Factual Background 1 Shortly after 2:00 a.m. on October 28, 2022, Paul Pelosi (Pelosi 2) was awakened by the sound of the door to his bedroom bursting open and saw a “very large man,” later determined to be DePape, standing with a hammer and some zip ties in his hand. DePape asked if he was Paul Pelosi; Pelosi said he was and DePape asked, “Where’s Nancy?” When Pelosi said she was in Washington, DePape said they would have to wait for her and he was going to tie Pelosi up. DePape said, “ ‘She’s second in line to be President, right?’ ” and “ ‘Well, we’re going to have to take them out.’ ” Pelosi got up and walked to the elevator that was just outside the bedroom, thinking he could use the phone in it to call 911, but DePape followed and held the door of the elevator open, so Pelosi returned to the bedroom. DePape was saying things like, “ ‘They’re all corrupt. You’ve got to take them out.’ ” Pelosi, trying to engage in conversation to de-escalate the situation, asked if he could “ ‘help in any way.’ ” Pelosi walked to the bathroom, where his phone was charging, put the phone on speaker and called 911. He tried to communicate his need for help without speaking too plainly, because DePape was standing right outside the bathroom, still holding the hammer, and Pelosi was afraid of what DePape might do. The call ended when DePape told Pelosi to hang up and give him 1 As will be explained, the trial court ruled on DePape’s motion to dismiss at the conclusion of the People’s case in chief. Accordingly, our recitation of the facts is based solely on the evidence presented by the People. 2For ease of reading, we will refer to Paul Pelosi by his surname only and use Nancy Pelosi’s full name when referring to her. 2 the phone, which Pelosi did. Pelosi did not know whether the police were being sent. DePape said he needed to sleep and was going to tie Pelosi up. Pelosi thought he would be safer on the ground floor, where he might be able to open the front door if the police came, and since DePape had said he had a backpack and “a bunch of stuff” downstairs, Pelosi suggested they go down for DePape to get his belongings and sleep there. DePape followed Pelosi down two flights of stairs and, as they stood in the front foyer, DePape said, “ ‘I have to take you out’ ” and “ ‘the police are going to be here, and it’s all over for me.’ ” Pelosi told him the police did not get the message and were not going to come, then the doorbell rang. Pelosi was able to open the door saw two police officers standing outside. DePape got “immediately behind” Pelosi, “off [his] right shoulder,” still holding the hammer. Pelosi was afraid DePape was going to hit him. Because the police officers did not seem to be doing anything, Pelosi reached out to put his hand on the hammer. The police said, “Drop the hammer,” DePape did not respond and Pelosi put his hand on the hammer, saw DePape “obviously going to hit [him],” then “just went out.” The two police officers testified that when the front door opened, they saw DePape and Pelosi holding the hammer between them, DePape holding the handle and Pelosi holding the metal head. Officer Willmes told them to drop the hammer and DePape said no, then pulled the hammer away, raised it above his head, swung it at Pelosi and hit Pelosi in the head with it. Willmes described DePape as using both hands to “rip” the hammer away from Pelosi; Officer Cagney testified that DePape was “using his body more so than his arms” and that he believed DePape struck Pelosi with the hammer two times. 3  The officers immediately rushed in and tackled DePape. Pelosi was lying face down, unconscious and bleeding from the head. Cagney testified that less than five seconds passed from when the officers first saw the hammer and when they tackled DePape. The incident was recorded on the officers’ body cameras and played in court as each officer was asked about the footage from his camera. Asked how he got into the house, DePape pointed to a hole in the glass door to the porch. He said his backpack was on the porch and the police found a large backpack there, along with a sleeping bag and a smaller backpack. 3 DePape told one of the officers at the scene that he had come to Pelosi’s house “to have a little chat with his wife” because he was sick of the “lies coming out of Washington D.C.” and told Pelosi to stop “escalating things” or DePape would have to “go through him.” DePape said hurting Pelosi was not his “goal” but he was on a “suicide mission” and because Pelosi “forced the issue,” DePape “attacked” Pelosi “[r]ight in front of the cops.” DePape said, “There’s no denying what I did.” DePape’s statements in an interview at the hospital 4 several hours later, a recording of which was played at trial, were to the same effect. DePape talked about “all the fucking lies” coming out of Washington, with Nancy Pelosi “the fucking leader of the pack,” and said the “record breaking crime spree” the Democratic party was on “originate[d] with Hillary” but Nancy Pelosi “ran with the lying as much or more than anyone.” He said he 3 The contents of the backpacks included a sledgehammer, various electronic devices and accessories, two body cameras, duct tape, latex gloves, a passport and other documents in DePape’s name, over $9,000 cash, two unicorn costumes, vitamins and food items. 4 DePape was treated for a dislocated shoulder and a cut that required stitches. 4 planned to hold Nancy Pelosi hostage, film her while talking to her, let her go if she told the truth and “break her knee caps” if she lied, which he knew “beyond a doubt” she would do. He wanted Nancy Pelosi and the other “corrupt” politicians to realize there is “a fucking consequence for being the most evil fucking people on the planet.” DePape said that Pelosi was not a target but Pelosi was “pushing [DePape] into a corner” and DePape could not let Pelosi stop him from going after his other targets. 5 DePape did not leave the house despite knowing the police were coming because he intended to “fight tyranny” and not “surrender.” In DePape’s view, his interaction with Pelosi had been “pretty amicable overall” but he got angry and hit Pelosi with the hammer when he realized Pelosi thought he was going to surrender to the police—“it’s like, if you stop me from coming after evil, you will take the punishment instead.” DePape did not know how many times he hit Pelosi but he “definitely” hit him and “[i]t was not a tap. It was full force.” In a portion of DePape’s testimony at the federal trial that was read into evidence, DePape acknowledged that he hit Pelosi with the hammer with “full force,” and that he knew exactly what he was doing. Pelosi suffered two lacerations on the right side of his scalp with corresponding skull fractures. The more serious of these was a jagged injury through the scalp down to the bone, where the skull was broken and the broken piece was pushed downward, its edge wedged underneath the rest of 5 These included Gayle Rubin, a professor DePape believed wanted to turn schools into “pedophile molestation factories” and encourage kids to become transgender, hate society and want to overthrow it; Gavin Newsom, for signing a bill restricting guns; Tom Hanks, who DePape believed had been identified as a pedophile; and Hunter Biden, to get him to “confess” and implicate President Biden. 5 the skull. The surgery to repair this injury required drilling around the fracture fragment to remove a piece of the skull and lift the fragment back into place, then secure it with small plates and screws. The second cut was in the scalp above the ear; a muscle that helps with chewing was torn and the skull was fractured but not pushed down as much as the first fracture. In addition to the lacerations and fractures, Pelosi suffered a concussion, a brain injury that can have long-term effects including headaches, dizziness, difficulty with concentration or memory and depression or “psychological disturbances.” Pelosi testified that initially he got headaches “all the time” and needed frequent naps; 18 months later, these problems were lessening but he was not fully recovered. He was still going to therapy for balance and walking and continued to experience dizziness and head pain. II. Procedural Background DePape was charged by information filed on December 23, 2022, with six felony offenses: Willful, deliberate and premeditated attempted murder (Pen. Code, 6 §§ 664/187) (count 1); first degree residential burglary (§ 459) (count 2); inflicting injury on an elder likely to cause great bodily injury (§ 368, subd. (b)(1)) (count 3); assault with a deadly weapon (§ 245, subd. (a)(1)) (count 4); false imprisonment of an elder (§ 368, subd. (f) (count 5); and threatening a family member of a public official (§ 76, subd. (a)) (count 6). It was alleged that DePape personally used a deadly weapon (§ 12022, subd. (b)(1)) in the commission of all counts except count 4; that he personally inflicted great bodily injury on a person 70 years of age or older (§ 12022.7, subd. (c)) in the commission of counts 1, 4 and 6; and, in 6Further statutory references will be to the Penal Code unless otherwise specified. 6 connection with count 3, that the victim suffered great bodily injury (§ 368, subd. (b)). The offense in count 2 was alleged to be a violent felony (§ 667.5, subd. (c)(21)). The information alleged five aggravating circumstances relating to the crimes (Cal. Rules of Court, 7 rule 4.421(a)(1), (2), (3), (7) & (8)) and one aggravating circumstance relating to the defendant (rule 4.421(b)(1)). DePape pleaded not guilty to all counts, denied all allegations and waived his right to a speedy trial. On November 16, 2023, DePape was found guilty in federal court of offenses arising from the incident underlying the offenses in the present case: attempted kidnapping of a federal officer (Nancy Pelosi) (18 U.S.C. § 1201(a)(5), (d)) and assault on an immediate family member of a federal official (Pelosi) (id. § 115(a)(1)(A)), with use of a dangerous weapon. In January 2024, DePape asserted his right to a speedy trial in the present case. On April 19, 2024, the parties stipulated that trial commenced that day.8 The court and counsel met to discuss scheduling and other trial matters on April 22 and 29, and the case was continued to May 7 for trial. Following pretrial motions, jury selection began on May 10 and continued over several days. The jury was sworn in on May 24. Meanwhile, on May 17, 2024, DePape was sentenced in the federal case. DePape immediately moved to dismiss counts 1-4 in the present case on grounds of double jeopardy (§§ 656, 793), sending the motion electronically on May 17 and formally filing it on May 21. DePape requested judicial notice of court records in the federal case: The indictment, the final jury 7 Further references to rules will be to the California Rules of Court unless otherwise indicated. 8 The time limit for beginning the trial had been extended after a defense request for a continuance was granted. 7 instructions, the jury verdict, DePape’s motion for a new trial, the order denying that motion, and the court’s minutes for the May 17, 2024 sentencing hearing. DePape stated that in addition to his plea of not guilty, he was entering a plea pursuant to sections 1016(4) and 1017(3) that he had “ ‘already been convicted of the offense charged.’ ” On May 21, 2024, the People moved to amend the information to add two counts: aggravated kidnapping resulting in bodily harm (§ 209, subd. (a)) (count 7), with an allegation of deadly weapon use (§ 12022, subd. (b)(1)); and preventing or dissuading a witness by force or threat (§ 136.1, subd. (c)(1)) (count 8). Both counts alleged personal use of a deadly weapon. (§ 12022, subd. (b)(1).) The court granted the People’s request to amend the information and DePape entered pleas of not guilty to counts 7 and 8. The court denied a defense request for a continuance. The People opposed the motion to dismiss as untimely as well as on the merits. At a hearing on May 28, the court discussed concerns with the timing of the motion and the evidentiary basis for the parties’ arguments and concluded it would not rule until after the prosecution presented its case in chief. Presentation of the case to the jury began on May 29, 2024, and the People rested on June 4. On June 5, the court granted DePape’s unopposed request for judicial notice.9 DePape argued for dismissal of counts 1 through Prior to addressing the double jeopardy motion, the court granted the 9 People’s motion to amend the information by adding great bodily injury enhancement allegations to counts 2, 3 and 5 and removing that allegation from count 6. The second amended information was filed and DePape entered pleas of not guilty and once in jeopardy to each of the charges and denied all the allegations. 8 4 and 7 on the basis that they charged offenses arising from the identical acts for which he had been tried and convicted in federal court. On June 6, 2024, the court granted the motion to dismiss counts 1, 3 and 4 (attempted murder, injuring elder and assault charges) and denied it as to all other counts. At the request of both parties, the court stayed the trial for one week to enable them to seek writ relief. The parties each filed writ petitions and stay requests, which this court denied on June 13, 2024. The People’s notice of appeal from the June 6 order was filed on June 7, 2024. DISCUSSION I. People’s Right To Appeal Section 1238, subdivision (a)(8) provides that the People may appeal from “[a]n order or judgment dismissing or otherwise terminating all or any portion of the action including such an order or judgment after a verdict or finding of guilty or an order or judgment entered before the defendant has been placed in jeopardy or where the defendant has waived jeopardy.” 10 After the People filed their opening brief, DePape moved to dismiss the appeal as unauthorized. The People opposed the motion and we denied it The court also heard and denied motions DePape had filed the day before to dismiss count 7 pursuant to section 995 and to dismiss counts 7 and 8 for vindictive prosecution. 10 The “jeopardy” at issue here is jeopardy in the present case (i.e., the start of trial), not the jeopardy from the federal trial pertinent to the merits of DePape’s double jeopardy claim. (See People v. McDougal (2003) 109 Cal.App.4th 571, 580-581 [merits of double jeopardy claim arising from first trial distinct from issue of jeopardy at second trial relevant to People’s right to appeal].) “[I]t is settled that a defendant who seeks dismissal before the jury has rendered a verdict consents to the dismissal and by that consent waives any argument that jeopardy has attached so as to bar an appeal.” (McDougal, at p. 581, italics added.) 9 with the following order: “Respondent DePape’s opposed motion to dismiss the appeal is denied. Under the circumstances, we conclude DePape waived jeopardy by filing a motion to dismiss on the eve of trial. Consequently, the People may appeal the trial court’s order granting the motion pursuant to Penal Code section 1238, subdivision (a)(8).” DePape revisits the issue in his respondent’s brief, challenging our conclusion that he waived jeopardy. As noted, DePape filed his motion to dismiss subsequent to the stipulated first day of trial, during jury selection. Relying on Jackson v. Ryder Truck Rental, Inc. (1993) 16 Cal.App.4th 1830, 1848, he argues that although the timing of his double jeopardy motion caused it to be heard after jeopardy attached, the trial court’s independent reason for ruling on the motion when it did operated as a superseding cause that broke the “chain of causation.” DePape urges that the trial court acknowledged he had a valid legal reason for waiting until the federal court issued its judgment before filing the double jeopardy motion; the motion could have been decided prior to jeopardy attaching if the court had granted his request for a continuance; and the court instead chose to defer ruling on the motion until after the prosecution’s case in chief because the court wanted a better understanding of the People’s “version of the story.” DePape’s characterization of the circumstances is inaccurate. The trial court acknowledged that DePape’s decision to wait for the federal judgment was “a defensible legal position, maybe not the only legal approach to this topic, but defensible on the face of it.” 11 But the court emphasized DePape’s 11 DePape maintained that his motion was timely because, under section 1017, subdivision (3), a “plea of former conviction requires a ‘judgment’ ” and he was filing the motion at the first opportunity after the district court rendered judgment. Section 1017, subdivision (3) provides that a plea of former conviction must be “substantially” in the form, “ ‘The 10 failure to make any mention of the motion despite how much time passed since the federal jury verdicts, 12 commented that the motion was too lengthy, “well researched” and “well argued” to have been written a day or two before it was filed, and expressed the view that “the defense maintained an element of surprise by not mentioning a motion to dismiss . . . but finally offering it in the first instance on May 17th.” The court then explained its decision to defer ruling on the motion until after the prosecution’s case in chief in terms of both assisting the court and addressing the People’s objection that the late filing of the motion violated the governing local rules. As to the former, the court explained that deferring decision would put the court in a better position to decide the merits of the motion, as the double jeopardy analysis required it to “focus on acts,” “[a]cts are established by evidence,” and “although I have a preliminary hearing transcript and I have representations by both sides in your papers, I don’t have the government’s case in chief.” As to the latter, the court believed that waiting to rule on the motion “essentially cures the government’s objection here on timelines” by giving the prosecution the opportunity to present evidence that “might[] . . . vindicate their opposition to the motion to defendant pleads that he or she has already been convicted . . . of the offense charged, by the judgment of the court of __________ (naming it), rendered at __________ (naming the place), on the __________ day of __________.’ ” The People argued that a judgment is not required, citing People v. Goldstein (1867) 32 Cal. 432, 433 (“Nor is it necessary that a judgment should have been pronounced upon the conviction to make the plea of former conviction good”). DePape in turn argued that Goldstein predated the Penal Code. 12 The court recited the chronology in some detail, observing that the case was assigned for trial five months after the federal jury verdicts, then over the course of the next month the court and counsel had multiple discussions, pretrial hearings were held and jury selection began. 11 dismiss.” The court believed its approach was the “better course of action . . . consistent with law and . . . basic fairness to both sides.” Overall, the court’s remarks indicate that its wish for a better understanding of the prosecution’s theory of the case was not the independent driving force that DePape attempts to portray. Additionally, while DePape did request a continuance, which would have delayed the selection and swearing of jurors, he did so directly in response to the People’s motion to amend the information, arguing that the new charge “significantly affects how we may or may not defend this case” and “[w]e need time to restrategize our defense. In any event, we dismissed DePape’s motion to dismiss on the ground that he waived jeopardy in the face of an argument that does not fundamentally differ from the one he now offers. The motion to dismiss argued DePape did not waive his double jeopardy rights in part because the point at which jeopardy attached was determined by the trial court’s “independent” action in concluding it “could only rule” on the motion after the facts were developed at trial. His present argument differs only in his framing of it in terms of “superseding cause.” But this framing imposes an even more imposing hurdle, as the superseding cause analysis amounts to a more stringent form of the same point. The superseding cause test is quite stringent: “In law, the term ‘superseding cause’ means ‘an independent event [that] intervenes in the chain of causation, producing harm of a kind and degree so far beyond the risk the original [wrongdoer] should have foreseen that the law deems it unfair to hold him responsible.’ (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 573, fn. 9.)” (People v. Sanchez (2001) 26 Cal. 4th 834, 855, (conc. opn. of Kennard, J.).) “ ‘[I]n order to be “independent” the intervening cause must be “unforeseeable . . . an 12 extraordinary and abnormal occurrence, which rises to the level of an exonerating, superseding cause.” ’ ” (People v. Cervantes (2001) 26 Cal.4th 860, 871.) To the extent these principles apply in the context of court and counsel’s actions in law and motions proceedings—a point the People question—we are not persuaded they warrant reconsideration of our denial of the motion to dismiss this appeal. II. Double Jeopardy Analysis A. Governing Principles Section 656 provides: “Whenever on the trial of an accused person it appears that upon a criminal prosecution under the laws of the United States, or of another state or territory of the United States based upon the act or omission in respect to which he or she is on trial, he or she has been acquitted or convicted, it is a sufficient defense.” 13 “ ‘Under this section, a defendant may not be convicted after a prior acquittal or conviction in another jurisdiction if all the acts constituting the offense in this state were necessary to prove the offense in the prior prosecution [citation]; however, a conviction in this state is not barred where the offense committed is not the same act but involves an element not present in the prior prosecution.’ ” (People v. Homick (2012) 55 Cal.4th 816, 842 (Homick), quoting People v. Belcher (1974) 11 Cal.3d 91, 99.) “ ‘[E]lement’ in this formulation refers only to conduct required to prove the 13 “[P]rosecution and conviction for the same act by both state and federal governments are not barred by the Fifth Amendment guarantee against double jeopardy,” but this rule “does not preclude a state from providing greater double jeopardy protection than is provided by the federal Constitution under decisions of the United States Supreme Court.” (People v. Comingore (1977) 20 Cal.3d 142, 145 (Comingore).) 13 charges, not to criminal intent or other nonact elements.” (Homick, at p. 843.) “[S]ection 656 applies when the physical conduct required for the California charges has previously been the subject of an acquittal or conviction in another jurisdiction, regardless of whether the two charges have different requirements as to intent or other nonact elements. (Comingore, supra, 20 Cal.3d at pp. 146-148; Belcher, supra, 11 Cal.3d at pp. 99-100.)” (Homick, at p. 840.) A few cases help illustrate the parameters. Homick addressed the requirement that the act upon which a double jeopardy claim is based be necessary for the earlier conviction. Homick rejected the defendant’s claim that his federal court convictions of interstate murder for hire barred subsequent convictions in California for first degree murder with a special circumstance of lying-in-wait because the latter required proof of conduct that was not necessary for proof of the former. (Homick, supra, 55 Cal.4th at pp. 837-838.) Homick explained, “The lying-in-wait special circumstance (§ 190.2, subd. (a)(15)) requires proof the killer concealed his or her purpose, watched and waited a substantial time for the opportunity to act, and thereafter launched a surprise attack on the victim from a position of advantage. (People v. Bonilla (2007) 41 Cal.4th 313, 330.) No such conduct was required under title 18 United States Code former section 1952A, which was satisfied by proof defendant traveled between states in order to commit a murder for hire, and death resulted.” (Id. at p. 844.) Moreover, Homick found it of no significance that the federal prosecutor in fact proved conduct constituting lying in wait. (Homick, supra, 55 Cal.4th at p. 844.) The court emphasized, “Nor did the federal indictment against defendant charge any of the conduct constituting lying in wait . . . . That the federal prosecutor, like the state prosecutor afterward, proved 14 defendant ambushed and killed the [victims] in their garage [citation] is of no import, as proof of an ambush was not ‘necessary to prove the offense in the prior prosecution.’ ” (Ibid.) Belcher illustrates the distinction between an act necessary for conviction and a nonact element of the offense. Belcher held the defendant’s acquittal in federal court of assault with a deadly weapon on a federal officer was a defense to conviction in state court for assault with a deadly weapon but not to counts of robbery arising from the same incident. (Belcher, supra, 11 Cal.3d at p. 99.) As to the assault, the People argued the federal acquittal did not bar a state conviction because the federal offense required proof that the assault was on a federal officer, an element not required for the state offense. (Id. at pp. 99-100.) Belcher rejected this argument because “conviction of the federal offense required proof of no additional act on the part of defendant; it merely required proof of the status of the victim for jurisdictional purposes.” (Id. at p. 100.) The robbery convictions, however, were not barred because they required “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.” (Ibid.) Belcher used two cases involving the same defendant and underlying incident to “demonstrate the meaning to be given to the terms ‘act or omission’ as they are used in section 656.” (Belcher, supra, 11 Cal.3d at p. 99.) In People v. Candelaria (1956) 139 Cal.App.2d 432 (Candelaria I), the defendant’s federal court conviction for robbery of a national bank barred a subsequent state conviction for robbery of the same bank. (Belcher, at p. 98.) “ ‘The physical act or conduct of defendant in taking the money was the same whether the robbery be considered as a federal offense or a state offense. All 15 the acts constituting the state offense were included in the federal offense and were necessary to constitute the federal offense. It is clear that, within the meaning of said section 656, the federal conviction was “founded upon the act” in respect to which the defendant was tried in the present case.’ ” (Belcher, at pp. 98-99, quoting Candelaria I, at p. 440.) By contrast, in People v. Candelaria (1957) 153 Cal.App.2d 879 (Candelaria II), the court held the federal bank robbery conviction did not bar a subsequent state prosecution for burglary committed as part of the same incident. (Belcher, at p. 99.) “ ‘The burglary act complained of in the present case, that is, the entering of the building with the intent to commit a theft, is not the same act complained of in the federal court, namely, that [the defendant] pointed a gun at the teller and by force and fear compelled her to deliver over to him certain monies.’ ” (Ibid., quoting People v. Candelaria II, 153 Cal.App.2d at p. 884.) Comingore, supra, 20 Cal.3d 142 further illustrates the distinction between the physical conduct required to prove an offense and additional nonact elements, in that case, the required mental state. The defendant took a car without permission in California and drove it to Oregon, where he was apprehended and convicted of unauthorized use of a vehicle. (Id. at p. 144.) The People conceded that the grand theft charges brought in California were based on the same physical conduct as the unauthorized use of a vehicle charge to which he had pled guilty previously in Oregon. (Id. at pp. 144, 146.) Thus, the sole question on appeal was whether the defendant’s former conviction operated as a bar to his current one. (Id. at p. 144.) The People argued the Oregon conviction did not bar subsequent prosecution in California for grand theft auto and unlawful driving or taking of a vehicle because the California offenses required proof of intent to deprive the owner of the vehicle, which was not required for the Oregon offense. (Id. at p. 146.) 16 Comingore rejected the view that intent is an element of “act” as used in section 656, explaining that because every crime requires a “joint operation of act and intent” (§ 20), intent “is an element of a crime or public offense, not of an act.” (Comingore, at p. 148.) The California prosecution was barred by the Oregon conviction because the California offenses did not require proof of any additional physical act. (Id. at pp. 148-149.) B. Standard of Review “When the double jeopardy question requires the trial court to resolve disputed facts, the appellate court reviews the case under the substantial evidence standard. (People v. Batts (2003) 30 Cal.4th 660, 682-683 [double jeopardy issue turned on question whether prosecution in previous trial intended to induce a successful mistrial motion].) But, when the facts are uncontradicted and different inferences cannot be drawn, the question of former jeopardy is one of law for the court to decide. (People v. Vigghiany (1960) 181 Cal.App.2d 621, 631 [defendant is entitled to a jury trial on question of former jeopardy].) Moreover, determination of whether double jeopardy applies in a case involving separate prosecutions of the same or similar conduct in different jurisdictions requires the court to compare and construe the applicable criminal statutes from both jurisdictions. (See, e.g., Comingore, supra, 20 Cal.3d at pp. 144, 146 & fns. 1-3; [People v.] Lazarevich [(2001)] 95 Cal.App.4th [416,] 422-423.) The construction of a statute is also a question of law. (People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 432.) On appeal, we review questions of law de novo. (In re Corrine W. (2009) 45 Cal.4th 522, 529.)” (People v. Davis (2011) 202 Cal.App.4th 429, 438.) Here, the disputed issues are questions of law and we review them independently. 17  C. Evidence Concerning the Federal Conviction DePape’s motion to dismiss required the trial court to determine and compare what physical conduct was necessary to prove the assault DePape was found guilty of in the federal case and what physical conduct would be necessary to prove the California offenses with which he was charged in present case. This determination necessarily required comparison of the statutory elements of each offense. (See, e.g., Homick, supra, 55 Cal.4th at p. 844 [discussing elements of federal and California offenses]; Comingore, supra, 20 Cal.3d at pp. 144, 146 [comparing elements of Oregon and California offense]; Belcher, supra, 11 Cal.3d at pp. 99-100 and fn. 7 [noting element required for California offense but not federal offense]; People v. Bellacosa (2007) 147 Cal.App.4th 868, 878 [comparing Nevada and California offenses].) It further required the court to consider the charging documents, jury instructions and verdicts in the federal case to identify the physical conduct relied upon to satisfy the statutory elements of the offense. (See, e.g., Homick, supra, 55 Cal.4th at pp. 838-839 [describing federal indictment, jury instructions and verdict]; Belcher, at p. 94 and fn. 2 [describing federal indictment and judgment]; Candelaria I, supra, 139 Cal.App.2d at pp. 434- 435 [describing federal indictment].) The court then had to identify the physical conduct the California charges were founded upon. (See, e.g., Bellacosa, at p. 878 [describing People’s theory as indicated in stipulated facts]; Candelaria I, at pp. 434-435 [describing information].) The People argue the trial court had no competent evidence to determine what physical acts were the basis of the federal assault conviction. It was DePape’s burden to establish the facts necessary to prove he was placed in former jeopardy. (People v. Gonzalez (2015) 241 Cal.App.4th 1103, 1108.) To do so, DePape asked the trial court to take judicial notice of 18 documents from the federal case that he submitted as exhibits to his motion to dismiss. The People did not object, noting the documents were official records filed in federal court, and the trial court took judicial notice of them. Based on these documents, as will be further discussed, DePape argues the federal assault conviction was founded on his act of striking Pelosi in the head with the hammer. As we will see, the People maintain the federal conviction establishes no more than that DePape swung the hammer toward Pelosi, not necessarily that the hammer actually struck Pelosi. “ ‘Judicial notice is the recognition and acceptance by the court, for use by the trier of fact or by the court, of the existence of a matter of law or fact that is relevant to an issue in the action without requiring formal proof of the matter.’ (2 Jefferson, Cal. Evidence Benchbook [(3d ed. 1997)] § 47.1, at pp. 1064-1065.)” (Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 882.) “ ‘The court may in its discretion take judicial notice of any court record in the United States. [Citation.] This includes any orders, findings of facts and conclusions of law, and judgments within court records. [Citations.] However, while courts are free to take judicial notice of the existence of each document in a court file, including the truth of results reached, they may not take judicial notice of the truth of hearsay statements in decisions and court files.’ ” (In re Vicks (2013) 56 Cal.4th 274, 314, quoting Lockley, at p. 882.) The People argue that the judicially noticed documents were “not necessarily” part of the record because DePape did not move to admit them “as evidence.” Although the parties’ competing arguments muddy the issues,14 the dispute comes down to whether the judicially noticed documents 14DePape’s response to the People’s argument that the documents were not put into evidence—that he did not have to follow the “formalities” 19 were used in violation of hearsay rules. The People’s suggestion that the documents were not admitted into evidence appears to address their objection to the contents of the documents being used for their truth; DePape’s response—that the documents did not need to be admitted in the manner of evidence at trial—stems from his position that the documents’ contents were not used for their truth. 15 The People acknowledge that pursuant to Evidence Code section 452.5, subdivision (b), which has been interpreted as creating an exception to the hearsay rule (People v. Duran (2002) 97 Cal.App.4th 1448, 1461), “a certified required for “introducing material evidence at the main trial” in seeking judicial notice—triggered a lengthy argument from the People to the effect that the Evidence Code is fully applicable to criminal cases and DePape’s motion to dismiss was not subject to any statutory provision for relaxed evidentiary standards. This response is beside the point: Judicial notice is “ ‘a substitute for formal proof.’ ” (Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1564, quoting 1 Witkin Cal. Evidence (3d ed. 1986) § 80, p. 74) and DePape simply argues the documents were being used in keeping with the proper parameters of judicial notice. The parties’ dispute over whether the People forfeited hearsay objections by failing to identify portions of the judicially noticed material they believed to be inadmissible is irrelevant if DePape is correct that the documents were used for nonhearsay purposes. 15 The People assert that exhibits to a motion are not part of the record unless expressly admitted by the court, citing In re Rosenkrantz (2002) 29 Cal.4th 616, 675. Rosenkrantz explained that exhibits to the petition, return and traverse in a habeas corpus proceeding “do not constitute evidence, but rather supplement the allegations to the extent they are incorporated by reference.” If the petitioner’s entitlement to relief depends on resolution of disputed issues of fact, there is an evidentiary hearing at which the exhibits to the pleadings “are subject to admission into evidence in accordance with generally applicable rules of evidence.” (Ibid.) But Rosenkrantz addressed an entirely different type of pleading. Since judicial notice substitutes for formal proof (Sosinsky v. Grant, supra, 6 Cal.App.4th at p. 1564), once a request for judicial notice is granted, the judicially noticed exhibits do not need to be formally admitted into evidence. 20 official record of conviction is admissible to prove not only the fact of a conviction, but also that the offense reflected in the record occurred.” 16 They argue, however, that the jury verdict and judgment supply no “act evidence” and the conviction establishes only that DePape swung the hammer toward Pelosi because an assault does not require that the defendant ac