Reported / Citable
Background
In October 2022, David Wayne DePape broke into the San Francisco home of Paul Pelosi — husband of then-House Speaker Nancy Pelosi — armed with a hammer and zip ties. DePape intended to hold Nancy Pelosi hostage and force a filmed confrontation; when he found only her husband, he detained Pelosi and waited. When Paul Pelosi called 911 from a bathroom and police arrived, DePape wrenched the hammer away and struck Pelosi in the head with full force, fracturing his skull and causing a serious brain injury requiring surgery to replace displaced bone fragments secured with plates and screws.
DePape was prosecuted in both federal and state court for offenses arising from the same attack. A federal jury convicted him in November 2023 of attempted kidnapping of a federal official (Nancy Pelosi) and assault on an immediate family member of a federal official (Paul Pelosi) using a dangerous weapon. After being federally sentenced in May 2024, DePape moved to dismiss four of eight state counts — attempted premeditated murder, residential burglary, elder injury, and assault with a deadly weapon — under Penal Code § 656, California’s statutory double jeopardy protection against successive federal and state prosecutions for the same conduct.
The trial court dismissed three of the four charges (attempted murder, elder injury, and assault) and denied dismissal of the burglary count. The People appealed the three dismissals to the First District Court of Appeal, which affirmed. DePape still faces five surviving state charges, including residential burglary, false imprisonment, aggravated kidnapping, and threatening a public official’s family member — each premised on conduct distinct from the hammer strike.
The Court’s Holding
Penal Code § 656 — California’s statutory analog to double jeopardy for successive federal prosecutions — bars a state charge when it is “founded on” the same act or omission that the defendant was already prosecuted for federally. California courts apply a conduct test drawn from People v. Homick (2012): the state charge is barred if proof of it necessarily requires proof of the same acts that were proved in the prior federal proceeding.
The court held that counts 1 (attempted premeditated murder), 3 (inflicting injury on an elder), and 4 (assault with a deadly weapon) were all “founded on” the hammer strike against Pelosi — the same act at the core of the federal assault conviction. The People argued that the California attempted murder charge required proof of additional elements (willfulness, premeditation, deliberation, and intent to kill) that the federal assault did not require. The court rejected that argument: those are “nonact” elements — mental states — and § 656’s conduct test focuses exclusively on the acts the defendant committed, not the defendant’s mental state during those acts. Additional mental-state requirements cannot save a state charge when the underlying physical act was necessarily proved in the prior federal case.
Burglary (count 2) survived because it rests on a different act — breaking into the home through a glass door — not on the hammer strike. A dissenting justice wrote separately to dispute the majority’s framing of the premeditation element but agreed with the ultimate result on the three dismissed counts. The attempted murder charge (count 1) remains dismissed, meaning DePape cannot be tried in state court for the hammer blow to Pelosi’s head.
Key Takeaways
- Penal Code § 656 bars a California prosecution when the conduct required to prove the state charge is the same conduct necessarily proved in a prior federal case — the test focuses on acts, not charges.
- Additional mental-state elements (like premeditation or intent to kill) do not save a state charge from § 656 dismissal if the underlying physical act was already a necessary element of the federal conviction.
- Prosecutors who want to preserve state charges alongside a federal prosecution must identify state offenses premised on distinct acts — not just distinct legal elements — from those at the center of the federal case.
- Defense counsel whose clients face parallel federal and state proceedings should map each state count against the specific conduct required by the anticipated federal charges to identify § 656 arguments early.
- DePape’s surviving state charges (burglary, false imprisonment, aggravated kidnapping, dissuading a witness, and threatening a public official’s family member) proceed to trial because they rest on different acts — breaking in, detaining Pelosi, and threatening Nancy Pelosi.
Why It Matters
California regularly pursues state charges against defendants who have already been federally convicted for offenses arising from the same incident — domestic violence, assaults on federal officers, fraud, and more. This decision clarifies that § 656 operates at the level of specific acts, not transactions or episodes. Prosecutors cannot avoid dismissal simply by pointing to additional mental-state requirements in the state charges; if the hammer blow was proved in federal court, it cannot anchor a state attempted murder charge too, regardless of how the state charge is labeled.
For criminal defense attorneys, the ruling is a practical guide: § 656 motions should focus on matching each state count to the specific conduct that was necessarily proved in the federal case. For the DePape prosecution, the case moves forward on five counts — including aggravated kidnapping and dissuading a witness — that will test the remaining legal theories at a state jury trial yet to be scheduled.