Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 06F10238
Robie, J.
On June 4, 2008, a Shasta County jury found defendant Arthur Milton Colson guilty of possessing a stolen Toyota Celica, unlawfully driving or taking a Ford F-150, and unlawfully driving or taking a Chevrolet S-10. In a bifurcated proceeding, the trial court found that defendant had two strikes.
After denying defendant’s motion to dismiss one strike (People v. Superior Court (Romero) (1996) 13 Cal.4th 497), the trial court sentenced defendant to a state prison term of 75 years to life. The court also ordered a restitution fine of $15,000 and a parole revocation fine in the same amount, stayed.
Defendant contends: (1) the trial court erred by denying defendant’s pretrial motion to dismiss one count pursuant to Penal Code section 654 and Kellett v. Superior Court (1966) 63 Cal.2d 822; (2) the court abused its discretion by denying defendant’s Romero motion; and (3) the court erred by imposing restitution and parole revocation fines above the statutory maximum. We shall modify the judgment to correct the fines and affirm as modified.
All further section references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
On March 19, 2006, defendant stole a Toyota Celica from a trailer park near Cottonwood (Shasta County). On March 23, 2006, he drove the Celica to River City Pools, a business in Redding (Shasta County), and stole a Ford F-150 pickup from the equipment yard. He then abandoned the Celica.
On August 15, 2006, early in the morning, defendant and an accomplice stole a Ford F-450 flatbed truck belonging to River City Pools from its equipment yard. Later that day, they returned to River City Pools in the Ford F-450 and stole a Chevrolet S-10 pickup from the equipment yard; this truck was recovered the same day near the Cottonwood trailer park.
On August 16, 2006, a Lassen County deputy sheriff spotted defendant in Lassen County driving the Ford F-450, which had a headlight out. Defendant evaded the deputy’s attempted traffic stop and a chase ensued. After defendant was detained, the deputy learned that the truck had been reported stolen.
Defendant gave a taped statement in custody (played in redacted form for the jury), in which he claimed that the owner of a rival business had hired him to steal the trucks from River City Pools.
A
The Lassen County Charges
On August 17, 2006, the Lassen County District Attorney filed a complaint against defendant alleging five counts, all on or about August 16, 2006: unlawfully driving and taking the Ford F-450; receiving stolen property, namely items found on the truck; willfully evading a pursuing peace officer; driving with a suspended or revoked license; and resisting a peace officer. The complaint also alleged three strikes and one prior prison term.
On August 28, 2006, the Lassen County District Attorney filed an information alleging all of these counts (other than the charge of driving with a suspended or revoked license), along with the strikes and prior prison term.
B
Communications Between Lassen County And Shasta County
On October 11, 2006, Lassen County District Attorney Bob Burns e-mailed Lassen County Deputy Public Defender Rhea Giannotti (copied to Shasta County Deputy District Attorney Greg Gaul): “As you know, I spoke with Greg Gaul recently with Shasta Co DA’s office. He is in agreement with me that if Colson pleads to the charges here, admits two strike priors and receives a 25-life term with no alternatives[,] they will dismiss their filed cases against him to date and also will not file new cases against him.... [¶] Of course, these are the cases the government is aware of. We make no assurances about cases that we have no current knowledge of and they are not a part of this disposition. The only condition on this agreement is that Colson submit to an interview and that he be truthful in answers to questions regarding the location of stolen property from the burglary of February 13, 2006 [in Shasta County].... [¶] If our conclusion is, after interview, that Colson is being dishonest in his responses, we reserve the right to dishonor this disposition agreement and march forward towards trial with no deal on any cases, Lassen or Shasta. Moreover, the statement he gives could be used against him in any trial in which it is relevant.”
In fact, these “cases,” which included not only the vehicle thefts from River City Pools but an alleged burglary in February 2006, and an alleged attempted burglary in March 2006, had not yet been filed.
Defendant offered this e-mail and other documents to support his pretrial Kellett motion.
On the same date, Shasta County Deputy District Attorney Gaul informed Lassen County District Attorney Burns by e-mail that Shasta County had not filed charges against defendant and intended to hold off until they knew what he was going to do as to the Lassen County case.
On November 13, 2006, Gaul e-mailed Burns: “Hi Bob... do you have an update on COLSON? If it looks like he is dragging his heals [sic], I would like to go ahead and file our... case against him.”
On November 14, 2006, Burns replied: “Go ahead and file... he rejected his offer.... I am set for jury in January... with the climate of delay that exists here, it will probably be [F]eb[ruary] or [M]arch before we actually get to trial with delay for sentencing also.”
C
The Shasta County Charges
On November 29, 2006, Gaul filed a complaint against defendant in Shasta County, alleging six counts: the March 19, 2006, theft of the Toyota Celica; the March 23, 2006, theft of the Ford F-150 pickup; the August 15, 2006, unlawful driving or taking of the Ford F-450 flatbed truck; the August 15, 2006, receipt of stolen property (the Ford F-450); the August 15, 2006, receipt of stolen property (the Chevrolet S-10 pickup); and the August 15, 2006, unlawful driving or taking of the Chevrolet S-10. The complaint also alleged two strikes.
On December 28, 2006, Gaul memorialized a telephone call from Burns: “[Defendant] set for [jury trial] 1/17/06, but [Judge] Chandler unavailable that week, so Burns will request a continuance -- he thinks the judge will deny the request & [defendant] likely to be sent to Shasta Co. on our hold.”
On July 11, 2007, after defendant waived preliminary hearing in Shasta County, the complaint filed on November 29, 2006, was deemed an information.
D
The Original Kellett Motion
On January 30, 2008, defendant filed a section 995 motion in the Shasta County proceeding, asserting that the prosecution of closely related offenses in separate proceedings in the two counties violated due process. (Although the motion was not styled a Kellett motion, defendant cited Kellett.)
On March 10, 2008, the trial court (Judge Anthony Anderson) heard the motion. In addition to the e-mails cited above, defendant offered the declaration of Lassen County Assistant Public Defender Giannotti, stating: (1) she was defendant’s attorney of record in the Lassen County case; (2) after defendant withdrew his general waiver of time on October 17, 2006, the case was set for trial on January 17, 2007; (3) as she recalled, the Lassen County charge of unlawfully taking or driving a vehicle could have been tried in either Lassen or Shasta County, but each county decided to exercise its own jurisdiction; (4) she had proposed to the Lassen County District Attorney that all charges against defendant be dealt with in Shasta County, but neither county’s District Attorney considered that an option; and (5) on January 2, 2007, a dispositional conference was held in Lassen County. A first amended information was filed alleging a single count, to which defendant pled guilty. He received an aggregate state prison term of seven years (a three-year upper term, doubled for a strike, plus a year for a prior prison term).
Lassen County District Attorney Burns testified as follows:
As of October 11, 2006, his office and the Shasta County District Attorney’s Office were trying to “reach some form of global settlement” of all of defendant’s cases. He was offering defendant 25 years to life, with the Shasta County charges to be dismissed, if he pled to the Lassen County felony charge, admitted two strikes, and agreed to talk about the Shasta County burglary and attempted burglary allegations. Burns did not recall speaking with Assistant Public Defender Giannotti about dismissing his case and allowing Shasta County to proceed, but he would not have done that in any event.
Burns and the Shasta County District Attorney’s Office agreed that if he could wrap up his case, there would be a global settlement, and “[i]f not, then it’s a free-for-all.” The two offices never finally agreed that one jurisdiction should take control of all of defendant’s criminal activities that arose out of both counties.
On November 14, 2006, Burns urged the Shasta County District Attorney’s Office to file its charges because defendant had rejected Burns’s offer and the Lassen County case was set for January trial.
On January 3, 2007, after learning that his main witness could not appear on the date set for trial and the trial court was unlikely to grant a continuance, Burns withdrew his first offer to defendant and made his second offer, which defendant accepted.
E
The Trial Court’s Ruling
The trial court observed that the charge to which defendant pled guilty in Lassen County -- unlawfully taking and driving the Ford F-450 on or about August 16, 2006 -- was an act alleged (albeit one day earlier) in the present case. The court therefore granted defendant’s motion to dismiss as to that count. (The court also subsequently dismissed the charge of receiving the Ford F-450 as stolen property.) The court denied the motion as to the other counts, reasoning: “There’s nothing in there to show that there was an agreement to take over prosecution, that... Mr. Colson or his attorney knew that Lassen County would be dealing with a global resolution. As a matter of fact just the opposite was true, that there was no agreement, that the -- as a matter of fact, there was, Go ahead with charges in Shasta County.”
F
The Renewed Kellett Motion
Immediately before trial, defendant renewed the Kellett motion as to the remaining charges. The trial court (Judge Stephen Baker) denied the motion on the following grounds:
Because defendant was acquitted in Shasta County of receiving stolen property (the Chevrolet S-10), his claim of Kellett error concerns only unlawfully taking or driving the Chevrolet S-10.
“[B]ased on my review of... the Lassen and Shasta cases, I don’t believe that the acts are so interrelated to... requir[e] a dismissal of the Shasta County actions.... Judge Anderson has already... achieved any objective that the Kellett line of decisions might have by eliminating the former Counts... relating to the F450; otherwise, the... remaining charges in Lassen and Shasta County, I think, are separated by jurisdiction, by the time of the offense, by the... actual crimes that are charged and by the evidence associated with those charges.
“So, I don’t think there is any unfairness in allowing the Prosecution to go forward on the remaining four counts in front of us right now. And I have to commend the Prosecution in [Lassen] County for making... a noble effort to achieve a global disposition although that effort was obviously... not ultimately successful. But nonetheless, the effort was made and I don’t see any reason to give the defendant a volume discount for allegedly engaging in the theft of numerous vehicles between -- and using those vehicles in two different counties. To the extent there remain any issues of fairness associated with the... prosecution in two counties, that’s something that I think should be considered when we and if we get to sentencing.”
DISCUSSION
I
The Trial Court Correctly Denied The Renewed Kellett Motion
Defendant contends that the trial court erred by refusing to dismiss the charges of unlawfully taking the Chevrolet S-10 from the River City Pools lot on August 15, 2006, and thereafter driving it. He claims that alleged offense was transactionally related to the count of unlawfully taking the Ford F-450 from the same place on the same date and thereafter driving it, which was dismissed on his original Kellett motion because it was part of a course of conduct for which Lassen County had already prosecuted him. According to defendant, because Shasta County was aware of the Lassen County charges well before it filed its own, and failed to exercise jurisdiction over the Lassen County charges as it was entitled to do, it knowingly caused defendant successive prosecutions for closely related offenses in violation of Kellett. We are not persuaded.
“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.” (Pen. Code, § 654, subd. (a).)
“An accusatory pleading may charge 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, under separate counts, and if two or more accusatory pleadings are filed in such cases in the same court, the court may order them to be consolidated.” (§ 954.)
Penal Code section 654’s ban on multiple prosecution is meant to guard against harassment. Because this purpose is distinct from that of the ban on multiple punishments, the rule against multiple prosecution may apply even where multiple punishments would be allowed. (Kellett v. Superior Court, supra, 63 Cal.2d at p. 825.) To the same end, as well as to help avoid needless expense and repetition of evidence, section 954 requires joinder of related offenses in a single prosecution. (Kellett, at p. 826.) Therefore, if “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.” (Id. at p. 827.)
It is true that Shasta County could have exercised jurisdiction over the Lassen County offenses so far as they were part of a continuous course of conduct beginning in Shasta County. (Pen. Code, § 781; People v. Gutierrez (2002) 28 Cal.4th 1083, 1118-1119; People v. Alvarado (2006) 144 Cal.App.4th 1146, 1149.) It does not follow, however, that Shasta County could not properly defer to Lassen County under the circumstances of this case or that Shasta County’s deference created a Kellett problem as to the charge at issue here.
Kellett applies only to multiple prosecutions for offenses arising out of the same act, incident, or course of conduct. (People v. Cuevas (1996) 51 Cal.App.4th 620, 624.) As the trial court found, defendant’s unlawful taking and driving of two different trucks, even though the thefts occurred on the same date and from the same place, did not form a single act, incident, or course of conduct. Defendant first stole the Ford F-450, then later stole the Chevrolet S-10, then disposed of that truck almost immediately but retained the first truck and drove it into Lassen County the next day. Thus, not only did the acts occur at different times, but they evinced different intents and objectives. Defendant’s claim that a rival business owner hired him to steal all the trucks (the truth of which the jury did not have to decide) did not turn these separate acts evincing separate intents and objectives into a single act or course of conduct.
The fact that Shasta County knew of the Lassen County charges but did not exercise jurisdiction over them does not create a Kellett issue. Lassen County, where defendant was arrested, was the logical venue to start proceedings against him. The Lassen County District Attorney, who kept in touch with the Shasta County District Attorney, knew of Shasta County’s pending charges against defendant and sought a way to resolve them all in the Lassen County proceeding. If defendant had accepted the Lassen County District Attorney’s original offer, which included the promise that Shasta County would dismiss its charges, there would have been no second prosecution. By refusing that offer in the knowledge that Lassen County could not prosecute him on the Shasta County charges, defendant created the situation of which he now complains.
Finally, defendant cannot show prejudice from the successive prosecutions. If Shasta County had exercised jurisdiction over the Lassen County offenses and prosecuted them along with the Shasta County offenses, defendant might well have received a heavier total sentence than he actually did. The trial court did not err by denying defendant’s renewed Kellett motion.
II
The Trial Court Properly Denied Defendant’s Romero Motion
Defendant contends that we must remand for resentencing because the trial court’s ruling denying defendant’s Romero motion shows that the court was unaware of its discretion to strike one of his strikes as to one count but not another. We disagree.
Defendant, age 47 at the time of his latest offenses, filed a Romero motion requesting the trial court dismiss his first strike, a 1984 burglary conviction. (He did not request the dismissal of his second strike, a 1990 spousal abuse conviction. As he acknowledged, when he pled to that offense the 1984 strike was stricken as part of the plea bargain.)
Defendant argued: The 1984 strike was remote. He was immature and suffered from lack of parental guidance at that time. His present offenses were nonviolent theft crimes. His methamphetamine addiction caused the state of mind in which he committed the present offenses, but he was now “done with methamphetamine and ready for treatment.” He had made amends with his loved ones and was able to work.
Opposing the motion, the People asserted: Defendant committed his first strike after being paroled from the California Youth Authority. He was sentenced to six years in prison for that offense. Three years after being paroled, he committed spousal abuse with great bodily injury. Within two years after receiving probation for that crime, he committed a misdemeanor theft offense. In 1994, his probation was terminated and he was sentenced to five years in prison after conviction of two more counts of felony spousal abuse. If the first of those counts had not been dismissed as part of his plea, it would have been a three strikes case. After release from his latest custody, defendant repeatedly violated parole. He was discharged from parole at the statutory maximum in 2002. In 2003, he committed two acts of misdemeanor spousal abuse and received a year in jail. In 2006, he was convicted of a felony drug possession charge where his strikes were either stricken or not alleged; he got probation. Less than a month later, he was convicted of driving on a suspended license. His latest offenses led to his arrest in August 2006.
In short, according to the People, defendant’s criminal history since his first strike was increasingly serious and violent, his performance on probation and parole was “dismal,” and he had already had the benefit of having strikes stricken more than once. He was exactly the kind of recidivist for whom the three strikes law was intended.
The trial court stated its tentative decision as follows: “The Romero motion, I have to say, having read the People’s brief,... I strongly favor their position in the case. Mr. Colson appears to me to be the poster child for the three strikes law. We have a long, continuing history... of criminal behavior and he’s proven himself unsuccessful on probation and parole.” The court also noted that because defendant had received the benefit of getting a strike stricken in a prior plea negotiation, he knew the danger of having a strike on his record, yet thereafter committed another serious felony “despite having been given all these opportunities. Probation, parole, a plea negotiation where a prior strike was stricken; so, he’s had so many opportunities. It appears that the three strikes law was written for this defendant.”
At the sentencing hearing, defense counsel argued: The 1984 burglary, committed when defendant had lost his parents and was living on the streets at age 20, was an unsophisticated offense in which defendant simply walked into a residence where no one was home. His only violence was perpetrated against his wife or fiancée back in 1990 and 1994. Defendant had been forthright and honest with the police, and had explained to the probation officer that he had been at a low ebb due to his addiction but had skills in construction work which he could put to use if he got drug treatment. A sentence of 75 years to life would be extremely harsh for defendant’s offenses and was unnecessary to protect society. In conclusion, the court should strike one strike. (Counsel did not ask the court to strike the strike as to one count but not another.)
The trial court ruled:
“Well, let me say this about your arguments: The court is not unsympathetic about Mr. Colson’s family history and drug problems; I consider those very carefully. And you know, I think it’s always in the best interests of society if there’s an opportunity to rehabilitate someone and... do whatever we can to make [him] a productive citizen who does not engage in crime; that’s a very important objective that the justice system seeks to accomplish in sentencing. Very important objective. And if I were in your shoes, [defense counsel], I’d make the same two argument[s]; I would discuss the defendant’s background and the punishment not fitting the crime.
“I don’t deny that a potential 75 to life sentence is a very harsh punishment for the conduct in which Mr. Colson engaged on this particular occasion. I agree with that argument; however, I’m required to follow California law and I think the Legislature has spoken with the three strikes scheme. And as I said, Mr. Colson, perhaps more than many defendants we see, falls squarely within the three strikes scheme here especially in light of the fact that he’s already benefited from having strikes stricken in the past and he’s already had warning shots over the bow, so to speak. But his criminal behavior... is not [an] anomaly, it’s a continuous course of conduct which jeopardizes the property and safety of California citizens and the Legislature constructed the three strikes scheme to address this particular type of defendant.
“It is a harsh sentence, no doubt about it, but... it’s made that way based upon the defendant’s prior history and here we have an extensive prior history. If I felt confident that Mr. Colson was a good rehabilitation candidate I might view this different, but his history proves otherwise and his engagement in criminal conduct has not only been continuous but, as pointed out by the DA and the probation report,... it’s elevated over the years to more and more serious conduct. So, as I see the three strikes scheme, it’s incumbent upon me to impose three strikes sentencing.”
We review the trial court’s decision not to strike a strike for abuse of discretion. (People v. Carmony (2004) 33 Cal.4th 367, 376.) A court abuses its discretion only if its decision is “so irrational or arbitrary that no reasonable person could agree with it.” (Id. at p. 377.) If the court is unaware of its discretion or if it used impermissible factors in refusing to strike a strike, reversal for abuse of discretion is justified. (Id. at p. 378.) But the court may properly strike a strike only if it finds that the defendant is outside the spirit of the three strikes law, which would be a truly extraordinary finding where the defendant is a career criminal, as here. (Ibid.; People v. Williams (1998) 17 Cal.4th 148, 161.)
Defendant asserts that the trial court failed to understand its discretion to strike a strike with respect to one count but not another. (People v. Garcia (1999) 20 Cal.4th 490, 500.) Because defendant never sought this relief below, the contention is forfeited. (See People v. Scott (1994) 9 Cal.4th 331, 356-357.) But even if properly before us, the contention fails because defendant cannot show abuse of discretion under the Carmony test.
Contrary to defendant’s view, the trial court did not rule that the three strikes law per se forced the sentencing choice the court made. Rather, the court carefully weighed the applicable factors under Romero and concluded that defendant fell squarely within the spirit of the three strikes law because he was an inveterate recidivist who had had many opportunities to change his course, including the prior striking of strikes, and had squandered them all. This finding was not irrational or arbitrary.
Nor do we see any possibility that the trial court would have made a different sentencing choice had defendant asked the court to strike the strike as to less than all counts or had the court expressly considered that option. Therefore, remanding with directions that the court do so, as defendant asks now, would be pointless.
III
The Restitution And Parole Revocation Fines Must Be Corrected
Defendant contends the trial court erred by imposing fines under sections 1202.4 and 1202.45 which exceed the statutory maximums. The People agree. We shall modify the judgment accordingly.
The trial court imposed fines of $15,000 under both provisions, basing them on the calculation of $200 per year times 75 years. However, section 1202.4, subdivision (b)(1), expressly sets the maximum restitution fine for a felony at $10,000, and section 1202.45 specifies that the fine under that provision is to be “in the same amount” as that under section 1202.4, subdivision (b).
Under our authority to correct an unauthorized sentence (People v. Blackburn (1999) 72 Cal.App.4th 1520, 1534), we modify the judgment to reduce the fines under both provisions to $10,000 each.
DISPOSITION
The judgment is modified to reduce the fines as stated. The trial court is directed to prepare a corrected abstract of judgment reflecting the reduced fines and to forward a certified copy of the abstract to the California Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.
We concur: BLEASE, Acting P. J., CANTIL-SAKAUYE, J.