Opinion
NOT TO BE PUBLISHED
ORIGINAL PROCEEDING; petition for a writ of prohibition. Super. Ct. No. BA346761, Dennis J. Landin, Judge. Petition granted.
Michael P. Judge, Public Defender of Los Angeles County, Albert J. Menaster, Trish Newman and Karen Nash, Deputy Public Defenders, for Petitioner.
No appearance for Respondent.
Steve Cooley, District Attorney of Los Angeles County, Roberta Schwartz, Phyllis C. Asayama and Gilbert S. Wright, Deputy District Attorneys, for Real Party in Interest.
MALLANO, P. J.
Christopher De La Rosa (defendant) entered a no contest plea in a misdemeanor prosecution. He later filed a motion under Kellett v. Superior Court (1966) 63 Cal.2d 822 (Kellett), seeking to dismiss a felony prosecution arising from what he asserted was the same incident. When the motion was denied, defendant filed a petition for a writ of prohibition in this court and we issued an order to show cause. Upon review, we conclude that the misdemeanor and felony cases involved the same incident, the deputy district attorney who filed the second case was or should have been aware of the first filing, and no other fact or circumstance of this case adequately supports denial of defendant’s motion. Accordingly, in adherence to the rule of Kellett (see Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455), we grant defendant’s petition for a writ of prohibition.
BACKGROUND
At the hearing on defendant’s motion for dismissal under Kellett, the trial court was presented with documents that established the following:
On September 23, 2008, a four-count complaint was filed against defendant in Department 5 of the East Los Angeles Courthouse of respondent court by real party in interest People of the State of California. (People v. Christopher De La Rosa, Super. Ct. L.A. County, No. BA346761.) The complaint alleged that on September 19, 2008, defendant committed the felonies of evading an officer while driving recklessly (Veh. Code, § 2800.2, subd. (a)), unlawfully taking or driving a vehicle (id., § 10851, subd. (a)), and receiving a stolen vehicle (Pen. Code, § 496d, subd. (a)). The complaint further alleged that one count of misdemeanor hit and run driving on the same date. (Veh. Code, § 20002, subd. (a).) Also on September 23, defendant, represented by a deputy public defender, was arraigned and entered a plea of not guilty. Defendant was denied release on his own recognizance and bail was set at $70,000. (Defendant did not make bail and has remained in custody throughout the proceedings under review here.)
On October 17, 2008, a misdemeanor complaint was prepared for filing, alleging that on September 19, 2008, defendant committed misdemeanor hit and run driving (Veh. Code, § 20002, subd. (a)) and misdemeanor driving without a valid license (id., § 12500, subd. (a)). (People v. Christopher De La Rosa, Super. Ct. L.A. County, No. 8EA12396.)
At the hearing on the Kellett motion, the People erroneously stated that the misdemeanor complaint was filed on the September 19 date.
On October 24, 2008, a preliminary hearing was held on the felony matter. At the hearing, Monterey Park Police Officer Tony Urich testified that while on patrol on the evening of September 19, he saw defendant driving a vehicle on which Urich ran a license plate check. Urich was told that the vehicle had been stolen. Urich attempted to effect a traffic stop but defendant, with Urich in pursuit, fled at high rates of speed, made illegal lane changes, and failed to yield at red lights. During the course of the chase, defendant struck one vehicle, apparently in the City of Monterey Park, and finally came to a stop when he collided with another vehicle that was parked on a street in the City of Montebello. Defendant attempted to flee on foot but was apprehended. The car chase lasted approximately nine minutes and covered five miles. Further evidence at the preliminary hearing established that upon being apprehended, defendant told officers he had been driving the car with permission but did not stop for the police because his license had been suspended and he was on probation. Defendant was held to answer on the four counts of the complaint.
On November 5, 2008, the two-count misdemeanor complaint, mentioned above, was filed against defendant in Department 4 of the East Los Angeles Courthouse of respondent court.
On November 7, 2008, an information was filed in the felony matter. Defendant was arraigned and pleaded not guilty.
On November 20, 2008, defendant made his first appearance in the misdemeanor matter, represented by a different deputy public defender than the deputy who represented him on the felony matter. Defendant waived arraignment and entered a negotiated plea of no contest to misdemeanor hit and run driving. Defendant was placed on three years summary probation and ordered to serve 60 days in county jail and make restitution. The charge of driving without a valid license was dismissed.
On November 25, 2008, defendant filed the motion under review here, asking that the charges in the felony matter be dismissed under Kellett. As part of the motion, defendant attached a copy of a California Highway Patrol investigation report of the September 19 incident that referred only to the misdemeanor hit and run and driving without a valid license. The report listed Officer Urich as a witness. But attached to the investigation report was a traffic collision report and a narrative supplemental report. The latter report described defendant’s flight from Officer Urich in a car that had been reported stolen and included the collisions in both Monterey Park and Montebello.
Defendant’s motion was heard on December 29, 2008. The People did not file opposition. Defendant argued to the court that the case should be dismissed because the People had filed separate prosecutions arising out of the same incident and the other prosecution (the misdemeanor) had already been resolved. Defendant acknowledged that separate police agencies had filed reports on the incident, and both noted that both cases were filed in the same courthouse. The People countered that the matter should not be dismissed because it (the felony) was filed before the misdemeanor case, the misdemeanor case was filed “out of error” by a deputy district attorney who did not know of the felony filing, and when defendant entered his plea to the misdemeanor charge, he did so after having already been held to answer on the felony charges.
Defendant’s motion was denied. In making its ruling, court stated: “The way I read Kellett is there does [appear] to be a safety valve when the prosecutor... makes a mistake. I’m looking [at 63 Cal.2d at] page 828 where the court says, ‘There can be situations where a defendant could escape proper punishment if applied strictly.’” The court further stated: “Frankly, given the high speed chase and the other facts surrounding the case, it does seem to be very serious conduct warranting more than 60 days county jail.” Also as part of the ruling, the court dismissed the misdemeanor hit and run allegation that accompanied the three felony charges.
Following the trial court’s ruling, defendant filed a petition in this court for a writ of prohibition, seeking dismissal of the felony. We issued an order to show cause, placing the matter on calendar for hearing. The People later filed a return to the petition and defendant filed a response.
THE KELLETT RULE
Penal Code section 654, subdivision (a), provides: “An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision. An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other.” (Italics added; further section references are to the Penal Code.) Section 954 permits joinder of “two or more different offenses connected together in their commission, or different statements of the same offense or two or more different offenses of the same class of crimes or offenses.”
Interpreting these two statutes, the Supreme Court in Kellett noted a “growing concern that both criminal defendants and the public fisc are entitled to protection from successive prosecutions for closely related crimes.” (Kellett, supra, 63 Cal.2d at p. 826.) The court continued:
“If needless harassment and the waste of public funds are to be avoided, some acts that are divisible for the purpose of punishment must be regarded as being too interrelated to permit their being prosecuted successively. When there is a course of conduct involving several physical acts, the actor’s intent or objective and the number of victims involved, which are crucial in determining the permissible punishment, may be immaterial when successive prosecutions are attempted.
“When... the prosecution is or should be aware of more than one offense in which the same act or course of conduct plays a significant part, all such offenses must be prosecuted in a single proceeding unless joinder is prohibited or severance permitted for good cause. Failure to unite all such offenses will result in a bar to subsequent prosecution of any offense omitted if the initial proceedings culminate in either acquittal or conviction and sentence.
“We recognize that in many places felonies and misdemeanors are usually prosecuted by different public law offices and that there is a risk that those in charge of misdemeanor prosecutions may proceed without adequately assessing the seriousness of a defendant’s conduct or considering whether a felony prosecution should be undertaken. When the responsibility for the prosecution for the higher offense lies with a different public law office there is also the risk that a well advised defendant may plead guilty to a misdemeanor to foreclose a subsequent felony prosecution the misdemeanor prosecutor may be unaware of or may choose to ignore. Cases may also arise in which the district attorney is reasonably unaware of the felonies when the misdemeanors are prosecuted. In such situations the risk that there may be waste and harassment through both a misdemeanor and felony prosecution may be outweighed by the risk that a defendant guilty of a felony may escape proper punishment. Accordingly, in such cases section 654 does not bar a subsequent felony prosecution except to the extent that such prosecution is barred by that section’s preclusion of multiple punishment.” (Kellett, supra, 63 Cal.2d at pp. 827–828, fn. omitted.)
“The net result of the quoted language is to require the courts to engage in a balancing process to be undertaken in light of the enunciated objectives of the rule. Thus each case is to be decided on its own facts and circumstances.” (People v. Eckley (1973) 33 Cal.App.3d 91, 95.)
DISCUSSION
Defendant’s petition for a writ of prohibition raises essentially the same arguments as were raised below, supported by exhibits comprised of his written motion, documents from the misdemeanor and felony files, and a transcript of the hearing on his dismissal motion. In the return, the People offer as exhibits the declarations of the deputy district attorney in charge of the East Los Angeles Area Office, the deputy who filed the misdemeanor case, the calendar deputy for the court in which defendant was first scheduled to appear on the misdemeanor case, the deputy who was present when defendant entered his plea in the misdemeanor case, and the deputy who filed the felony case, as well as various documents from the prosecutor’s file in the misdemeanor case. The People state that the purpose of the exhibits is to establish that the misdemeanor case was filed with reasonable unawareness of the felony prosecution. In defendant’s response to the return, he objects to our consideration of the People’s exhibits on the ground that they contain information that was not presented to the trial court.
Defendant’s objection to the People’s new evidence is well taken. (See People v. Superior Court (Hartway) (1977) 19 Cal.3d 338, 350, fn. 6.) But even if it were to be considered, we note that the declaration of the deputy district attorney who filed the misdemeanor states that in the California Highway Patrol reports submitted in support of the filing of misdemeanor charges,“[t]he only mention of a stolen vehicle and an evading pursuit was in the first paragraph of the report. It was conclusionary in terms in that this report was about what happened after the pursuit.” Given that the misdemeanor and felony charges were filed in the same courthouse and the misdemeanor case was filed by a deputy who acknowledged her awareness that the misdemeanor also involved an arrest related to “a stolen vehicle and an evading pursuit,” this case must be considered one where “the prosecution is or should be aware of more than one offense in which the same act or course of conduct plays a significant part.” (Kellett, supra, 63 Cal.2d at p. 827, italics added.)
The paragraph to which the deputy district attorney appears to be referring provides: “After the collision P-1 fled the scene in V-1 and continued e/b on Beverly Blvd. from Atlantic Blvd. V-1 had been reported stolen to Montebello P.D. by its owner on 09/09/2008 and P-1 was being pursued by Monterey Park P.D. at the time of the collision. W-1 (T. Urich) is a Monterey Park P.D. officer and had initiated the pursuit of V-1 in the City of Monterey Park. After the collision, W-1 continued chasing after P-1 who continued fleeing through several unincorporated streets and into the City of Montebello. P-1 was subsequently involved in another collision on Maple Ave. s/of Olympic Blvd. and after a short foot pursuit, he was taken into custody by Officer Urich. P-1 was subsequently turned over to Montebello P.D. who booked him for charges related to the pursuit and the stolen vehicle (V-1).”
With respect to whether the charges against defendant had to be prosecuted in a single proceeding, defendant relies on People v. Flint (1975) 51 Cal.App.3d 333. In Flint, the defendant was arrested in the early morning hours for driving while intoxicated after he was observed sitting in a Corvette parked on railroad tracks and failed a field sobriety test. He told officers that the car had been borrowed from a friend, but in fact it had been stolen 20 minutes earlier from a parking lot a few miles away. A misdemeanor complaint for driving under the influence was filed on the day of the defendant’s arrest. The defendant pleaded not guilty. Three days later, after the vehicle theft had been discovered, a complaint charging felony theft and joyriding was filed against the defendant by a different prosecutor in a different courthouse. Defendant later pleaded guilty to the driving under the influence charge and moved to dismiss the felony prosecution. The motion was granted. (Id. at p. 335.)
The People, conceding that the prosecutor on the vehicle theft case should have been aware of the prior filing, argued that the dismissal was improper because “although the dual prosecutions were inadvertent, they could have deliberately chosen to prosecute defendant in two proceedings.” (People v. Flint, supra, 51 Cal.App.3d at p. 335.) The argument was rejected. The court began its analysis by noting: “Neither the purpose of the [Kellett] rule—prevention of needless harassment and waste of public funds; nor the criterion for its applicability—whether the same act or course of conduct plays ‘a significant part’ with respect to each crime—suggests that its applicability in a particular case depends on abstract definitions of the elements of the respective crimes or on the precise moment when, as a matter of law, one crime was completed. What matters, rather, is the totality of the facts, examined in light of the legislative goals of sections 654 and 954, as explained in Kellett.” (Flint, at p. 336, fn. omitted.) The Flint court rejected the People’s argument, concluding that although the car had been stolen before the defendant was found in it, “the same incident which furnished the evidence that defendant was driving in an intoxicated condition, also supported proof that what he was driving was an automobile he had stolen.” (Id. at p. 338.)
The People in this case argue that Flint is distinguishable and the outcome here should be controlled by People v. Howell (1966) 245 Cal.App.2d 787. We disagree.
In Howell, the defendant was involved in a hit and run accident in the City of Monrovia, which was in the then-Santa Anita Judicial District of the County of Los Angeles. The defendant continued driving into the City of Duarte, where he was involved in a second accident with a car driven by one Hagan. The defendant fled from that accident but was pursued by Hagan into the City of Azusa, which was in the then-Citrus Judicial District. Azusa police arrived in response to a radio call and, in Azusa, arrested the defendant for driving under the influence. As a result of this incident, two separate misdemeanor complaints were filed against the defendant. One, in the then-Santa Anita Judicial District, for hit and run driving. The other, in the then-Azusa Judicial District, for driving under the influence. The defendant pleaded no contest in the hit and run case, then moved to dismiss the driving under the influence case under Kellett. The motion was granted. (People v. Howell, supra, 245 Cal.App.2d at pp. 788–790.)
On the People’s appeal, the Howell court reversed, concluding that Kellett did not bar separate prosecutions. After noting that a hit and run offense was complete in Monrovia, the court continued: “Although there was a continuous act of driving, we think the drunk driving charge could properly be based upon the subsequent conduct of defendant, as observed by Hagan..., occurring after the collision with Hagan’s car in Duarte and his apprehension in Azusa, which conduct was separated in time and place from that involved in the Monrovia incident. The conduct giving rise to the two offenses was divisible.” (People v. Howell, supra, 245 Cal.App.2d at p. 792.)
Neither Flint nor Howell precisely mirrors the facts of this case. The People are correct that the Flint court, having concluded that a single incident was involved, did not engage in an extensive weighing analysis of other facts and circumstances of that case. But unlike the Howell hit and run incidents, only the second of which provoked a chase (during which the defendant was observed to be driving under the influence), the incident in this case began with a chase, during the entire course of which defendant evaded an officer while driving recklessly and engaged in hit and run conduct. (See People v. Garcia (2003) 107 Cal.App.4th 1159, 1163 [“Here the evading was an uninterrupted single course of conduct, i.e., one continuous act of driving lasting 30 minutes.”].) Accordingly, the “same act or course of conduct play[ed] a significant part” under the rule of Kellett. (Kellett, supra, 63 Cal.2d at p. 827.)
Citing People v. Hartfield (1970) 11 Cal.App.3d 1073, the People further argue that defendant should not receive the benefit of Kellett because “his act of pleading no contest to the misdemeanor offense misled the court.” Again, we disagree.
In Hartfield, on June 1, 1969, the defendant drove his car in a manner intentionally to strike an officer from the Garden Grove Police Department, fled with an officer from the Westminster Police Department in pursuit, and was finally stopped by a third officer, who cited the defendant for reckless driving with an appearance date of June 16. Thereafter, the defendant was separately charged with felonious assault on a peace officer, on which a preliminary hearing was conducted and the defendant was held to answer on June 13. The defendant made a timely appearance on the misdemeanor citation in propria persona, pleaded not guilty, and trial was set for July 15. On July 11, the defendant was arraigned in superior court on the assault charge and, represented by counsel, pleaded not guilty. On July 15, the defendant appeared in the municipal court on the citation, represented by the same attorney. He withdrew his plea on the citation and entered a plea of guilty to reckless driving. Ultimately, trial on the felony was set for September 22. On September 18, the defendant and his attorney appeared in the municipal court on the citation and had the pronouncement of judgment advanced to that date and was sentenced. On September 22, the defendant moved in the superior court to have the assault charges dismissed under Kellett. The motion was granted. (People v. Hartfield, supra, 11 Cal.App.3d at pp. 1075–1078.)
On appeal by the People, the order of dismissal was reversed. In so doing, the Hartfield court noted that “on September 18, with trial of the felony charges only four days away, defendant and his attorney appeared in the municipal court, had the pronouncement of judgment advanced on calendar and procured the pronouncement of judgment. That defendant did so for the express purpose of avoiding prosecution on the felony charges is demonstrated by the fact that on that same day he obtained certified copies of the municipal court’s minute sheets and probation order for presentation to the superior court four days later. Undoubtedly, if defendant had disclosed to the court the pendency of the felony charges, the imminency of their trial and his purpose in requesting that the pronouncement of judgment be advanced on calendar, the court would have denied the advancement and withheld pronouncement of judgment pending trial of the felony charges. Further, there is nothing in the record indicating that the district attorney was notified of the advancement of the pronouncement of judgment on calendar or that he was represented at that proceeding.” (People v. Hartfield, supra, 11 Cal.App.3d at p. 1081.) “[T]he operative fact (pronouncement of judgment) giving rise to defendant’s claim of harassment from double prosecution as prohibited by Penal Code, section 654 was procured by defendant himself by connivance and concealment, and he may not claim the benefit of the statute. [Citations.]” (Hartfield, at pp. 1081–1082.)
In contrast, there is nothing in the record of this case to substantiate the position taken by the People in the return that defendant “misled the court” when he pleaded guilty to the misdemeanor. Rather, “the affirmative conduct of defense counsel in Hartfield is... of a different character than the mere silence of the defendant here.” (Crayton v. Superior Court (1985) 165 Cal.App.3d 443, 450.)
Finally, the People rely on what the trial court characterized as Kellett’s “safety valve,” contrasting the seriousness of defendant’s felony conduct of evading an officer while driving recklessly with his misdemeanor hit and run. By definition, felonies are more serious than misdemeanors, even in this case where the three felonies with which defendant was charged are alternate misdemeanors. But if we were to allow this difference to excuse the improper multiple filings in this case, the rule of Kellett would have been swallowed by its exceptions. The facts and circumstances of this case do not support such an approach here.
DISPOSITION
Let a peremptory writ of prohibition issue directing respondent court to vacate its order of December 29, 2008, in Los Angeles Superior Court case No. BA346761, entitled People v. Christopher De La Rosa, and to enter a new and different order granting defendant’s motion to dismiss that action.
We concur: ROTHSCHILD, J., FERNS, J.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.