The Bailey Doctrine

Many criminal practitioners are unaware of the Bailey Doctrine. This law states, “Whether a series of wrongful acts constitutes a single offense or multiple offenses depends upon the facts of each case, and a defendant may be properly convicted upon separate counts charging grand theft from the same person if the evidence shows that the offenses are separate and distinct and were not committed pursuant to one intention, one general impulse, and one plan.” (People v. Bailey 55 Cal. 2d. 514, 519 (1961)). The Bailey Doctrine frequently arises in embezzlement cases where employees engage in a series of small thefts under the same general scheme or plan.  Through aggregation, the dollar amounts of the various thefts can be combined to rise above the $950 felony threshold; thus allowing the prosecutor to seek harsher penalties by filing a felony charge instead of a misdemeanor.

Pursuant to CALCRIM 1802 and 1803, use of this rule is not limited to the prosecution. A defendant can assert that a multiple count indictment is improper. This is because all of the thefts, grand or petty, were committed with a single plan or scheme. This is true even if there are multiple victims.

For the law to be fair and just, it must apply equally to all participants in a legal case. It’s important for lawyers to recognize when a rule, normally utilized by the prosecution, can be used as a defense.

Visit The Law Offices of Ross Green for additional information on various defenses to theft related crimes.