Opinion
E064047
01-04-2017
THE PEOPLE, Plaintiff and Respondent, v. ALFRED CARTER, Defendant and Appellant.
Kevin J. Lindsley, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Theodore M. Cropley, and Warren J. Williams, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. RIF1407221) OPINION APPEAL from the Superior Court of Riverside County. Becky Dugan, Judge. Affirmed. Kevin J. Lindsley, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Theodore M. Cropley, and Warren J. Williams, Deputy Attorneys General, for Plaintiff and Respondent.
I
INTRODUCTION
All statutory references are to the Penal Code except when otherwise stated. --------
Defendant Alfred Carter was charged with one count of being under the influence of methamphetamine (Health & Saf. Code, § 11550, subd. (a)), and a second count for bringing a controlled substance into jail (concealed anally). (§ 4573.) Defendant pleaded guilty to the first count and was sentenced to 91 days in jail and three years of probation. After defendant pleaded guilty on the second count to an amended charge of possession of drugs in jail (§ 4573.8), the court sentenced him to four years in prison.
On appeal defendant contends he could not be prosecuted for both drug offenses, as part of the same act and course of conduct, citing section 654 and Kellett v. Superior Court (1966) 63 Cal.2d 822 (Kellett). We conclude the two offenses are separately punishable and affirm the judgment.
II
FACTUAL AND PROCEDURAL BACKGROUND
The Underlying Offenses
On May 19, 2014, two Riverside patrol officers recognized defendant on a downtown street because they knew he was on supervised release with search terms. The officers stopped defendant, who exhibited symptoms consistent with being under the influence of drugs and later admitted to using methamphetamine. During a probation search, the officers found a bag of marijuana in defendant's pocket and arrested him. The officers transported defendant to jail, where he was booked and placed into custody. About two hours after his arrest and booking, defendant was strip-searched and a deputy discovered a plastic bag, hidden in defendant's anal cavity and containing 2.9 grams of methamphetamine, separated into individually-wrapped white plastic bags. The First Prosecution (Case No. RIM1406916)
A misdemeanor complaint, filed two days later on May 21, 2014, charged defendant with one count of being under the influence of a controlled substance. (Health & Saf. Code, § 11550, subd. (a)). That same day, defendant pleaded guilty and was sentenced to 91 days in jail and three years' probation.
On the same day, the probation department filed a petition to revoke defendant's postrelease community supervision (PRCS), alleging that defendant had violated the terms of his supervision by being under the influence of a controlled substance and by possessing methamphetamine, discovered during the strip-search conducted at the jail. On July 17, 2014, at a contested revocation hearing, defendant was found to have violated his PRCS and was sentenced to serve 180 days in county jail. The Second Prosecution (Case No. RIF1407221)
On June 5, 2014, a felony complaint charged defendant with one count of bringing a controlled substance into jail. (§ 4573.) In addition, the complaint alleged that defendant had suffered five prison term prior convictions (§ 667.5, subd. (b)) and a single felony "strike" prior conviction (§ 667, subds. (c) & (e)(l); § 1170.12, subd. (c)(l)). Defendant's Motion to Dismiss Pursuant to Kellett
Defendant moved to dismiss the felony charge pursuant to Kellett, supra, 63 Cal.2d 822, arguing that the second prosecution should be precluded because it arose from the same set of operative facts as the initial misdemeanor prosecution in case No. RJM 1406916, and that, when the prosecutor charged the initial misdemeanor case, he knew or should have known about the conduct that formed the basis for the subsequent felony prosecution. The prosecutor opposed the motion, arguing that defendant's conduct in the two cases was not a continuous course of conduct, citing People v. Howell (1966) 245 Cal.App.2d 787, 790-791. The prosecutor argued that the incidents were separated in time and that they required different proof.
After oral argument, the trial court denied defendant's motion, stating: "This is not a Kellett case. It is not the situation where in the field, two separate crimes occur and they only file one. For example, a person steals a car and then flees with it. That's a typical one. So you have a 2800.2 and an 10851. For some reason, they file a 2800.2 and a year later decide to file the 10851. That's clearly a Kellett problem.
"In this particular case, he is arrested for using drugs and under the influence and doesn't have anything obviously on his possession at the time they do a cursory search. They bring him into the jail — and I agree with you, it doesn't matter what agency did it, but it's a completely separate offense.
"He's committed the offense. He's arrested for 11550. He's brought into the jail. In the jail, they have all their posted signs about you need to tell us if you have drugs. It's a new separate criminal offense if you bring drugs in the jail. He fails to mention that he has some drugs in an inappropriate place, but eventually they find those drugs in his inappropriate place.
"It's a totally separate issue. If you went to trial on the 11550, no judge is going to let in the 4573 charge against him in the 11550. A jury would never hear it in that particular case. It's just not a Kellett case.
"So the Kellett is denied. . . ."
On July 7, 2015, defendant pleaded guilty to an amended count one, possession of drugs in jail (§ 4573.8) and admitted five prior prison convictions (§ 667.5, subd. (b)) and one prior felony strike conviction (§ 667, subds. (c) & (e)(l); § 1170.12, subd. (c)(l)). The court sentenced defendant to serve four years in state prison.
III
DENIAL OF THE KELLETT MOTION
Defendant's reliance on section 654 and Kellett is not appropriate because he was prosecuted for two separate crimes. His crime of being under the influence of a controlled substance was complete when the police confronted him in an alley. His subsequent act of bringing a concealed bindle of methamphetamine into the jail was a different crime.
Section 654 provides in relevant part: "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." This statute's prohibition against multiple punishment is separate and distinct from its prohibition against multiple prosecutions. (Kellett, supra, 63 Cal.2d at p. 825; Neal v. State of California (1960) 55 Cal.2d 11, 21.)
In Kellett, the California Supreme Court commented: "Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. [Citation.]" (Kellett, supra, 63 Cal.2d at pp. 824-825; accord, People v. Britt (2004) 32 Cal.4th 944, 951-952.) Furthermore, "[w]hen . . . 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." (Kellett, at p. 827; fn. omitted.) "[I]f an act or course of criminal conduct can be punished only once under section 654, either an acquittal or conviction and sentence under one penal statute will preclude subsequent prosecution in a separate proceeding under any other penal statute. [Citation.]" (Id. at p. 828.)
Neither section 654 nor Kellett applies: "'Although the fundamental fairness test prevents prosecutors from attempting to harass defendants by multiple indictments and successive trials for the purpose of wearing them down [citations], this test only applies to multiple prosecutions for offenses arising out of the same act, the same incident, or the same course of conduct.'" (People v. Cuevas (1996) 51 Cal.App.4th 620, 624, quoting People v. Douglas (1966) 246 Cal.App.2d 594, 598.) Kellett itself only compels joint prosecution of all offenses "in which the same act or course of conduct plays a significant part" and then only if the prosecution knows or should know about the crimes. (Kellett, supra, 63 Cal.2d at p. 827.) Prosecutors are not required to try a defendant simultaneously for known crimes that are unrelated to one another simply to protect against the possibility of harassment. (People v. Ochoa (2016) 248 Cal.App.4th 15, 28.)
Defendant's two crimes were separately committed at different times and locations and did not overlap. Defendant was under the influence of methamphetamine in an alley when he was confronted by the police. Defendant's effort to smuggle packaged methamphetamine is distinct from the crime of being under the influence, as recognized by the trial court: "In the jail, they have all their posted signs about you need to tell us if you have drugs. It's a new separate criminal offense if you bring drugs in the jail. He fails to mention that he has some drugs in an inappropriate place, . . ."
The misdemeanor crime of being under the influence of a controlled substance was complete the moment defendant was confronted by the police in an alley. His subsequent decision to bring methamphetamine into jail does not entitle him to the protection of section 654's proscription against multiple prosecutions.
Defendant's reliance on Barriga v. Superior Court (2012) 206 Cal.App.4th 739 and People v. Flint (1975) 51 Cal.App.3d 333 is misplaced. In Barriga, the police stopped a car that had been reported as carjacked. The defendant, a minor, was a passenger, and his cell phone was found in the car when he was arrested. The defendant was not initially implicated in the carjacking and he entered a negotiated disposition, in which he admitted one count of resisting a peace officer and another unrelated count, in exchange for dismissal of the remaining allegations. (Barriga, at pp. 742-743.) Several weeks later the police discovered text messages implicating defendant in the carjacking and the prosecution charged the defendant with robbery and carjacking. The trial court denied the defendant's motion under Kellett to dismiss the criminal charges. (Barriga, at pp. 744-745.) The appellate court disagreed, noting, "[t]here . . . is no dispute that, when they charged [defendant] in the juvenile case, and when they entered into the plea agreement with him in that case, the People were unaware of the evidence they later uncovered—specifically, the text messages on [his] cell phone—implicating him in the robbery and the carjacking. The question here is whether the People should have been aware of that evidence, or, as stated in Davis, whether the People were unable to discover that evidence despite reasonable efforts and due diligence." (Id. at p. 747.) The court found that no substantial evidence supported a finding of due diligence. (Id. at p. 748.)
Unlike Barriga, this case involved two separate incidents, in different locations, at different times. Defendant's act of being under the influence of methamphetamine in an alley was not the "same act or course of conduct" as smuggling methamphetamine into jail. In Barriga, by contrast, the defendant was arrested and charged with unlawfully taking or driving a vehicle before he was charged with carjacking. The defendant's actions underlying the carjacking offense and the unlawful taking of a vehicle were part of the same act and were essentially indivisible from the carjacking. Hence, Barriga offered no valid justification for multiple prosecutions.
In Flint, the police arrested defendant who was occupying a stolen car, straddling some railroad tracks. Defendant was immediately charged with driving under the influence. Three days later, defendant was charged with grand theft auto and joy riding. A month later, the defendant entered a guilty plea to the driving under the influence charge. When the defendant was subsequently held to answer on the grand theft and joy riding charges, he brought a motion to dismiss on the ground of multiple prosecutions. The motion was granted and the People appealed. (People v. Flint, supra, 51 Cal.App.3d at p. 335.) In affirming the dismissal, the Flint court concluded that the same incident—sitting in a stolen car—provided proof of both driving under the influence and the auto theft charges. (Id. at p. 338.)
Defendant also contends the two prosecutions were part of the same continuous course of conduct because evidence of the 2.9 grams of methamphetamine concealed in his rectum offered proof that he was under the influence of a controlled substance at the time of his arrest. However, although the individually wrapped bindles would support a finding that defendant intended to sell the methamphetamine, they did not supply proof defendant was under the influence of a controlled substance. The evidence did not necessarily supply proof of both crimes. (People v. Hurtado (1977) 67 Cal.App.3d 633, 636.)
Defendant's two crimes did not involve the same course of conduct. Not only did he bring the methamphetamine into the jail without notifying the authorities, he actively attempted to conceal the methamphetamine. His earlier arrest for being under the influence of a controlled substance was not part of the same act or course of conduct as his later decision to smuggle methamphetamine into the jail. The trial court properly denied defendant's motion to dismiss the felony prosecution.
IV
DISPOSITION
We affirm the judgment.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J. We concur: HOLLENHORST
Acting P. J. McKINSTER
J.