Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County Nos. VCF212700, VCF220922 James W. Hollman, Judge.
Meredith J. Watts, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Leanne LeMon, Lloyd G. Carter, and Lewis Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
DAWSON, Acting P.J.
Chad Michael Edwards (appellant) was charged on October 23, 2008, with seven counts stemming from the possession and use of stolen property. On October 27, 2008, he pled no contest to three of those counts, and the remaining counts were dismissed. A week later, appellant was charged with, inter alia, residential burglaries with a person present (Pen. Code, §§ 459, 460, subd. (a)). Appellant now contends that the trial court erred when it denied his motion pursuant to section 654 and Kellett v. Superior Court (1966) 63 Cal.2d 822 (Kellett) for dismissal of his burglary convictions because, at the time he pled no contest in the first case, the prosecutor “knew or should have known that appellant was a primary suspect in the burglaries” alleged in the subsequent case. He also contends that the court’s denial placed him in double jeopardy. We disagree and affirm.
Further statutory references are to the Penal Code unless otherwise indicated.
FACTS AND PROCEDURAL HISTORY
On the night of October 20-21, 2008, there were at least four residential burglaries at Sierra Village, a senior citizens neighborhood of Visalia. Officers responded the morning of the 21st to interview the victims.
Officer A. Souza interviewed Harold Jones, who awoke to find the screen of his garage access door cut during the night and a bicycle missing. The bicycle was later found outside and, although his car had been ransacked, nothing appeared to be missing. Officers dusted the car and door for fingerprints.
Officer Ruben Cabatic interviewed Gertrude Kroes who stated that, sometime during the night, her purse was taken from her dresser while she slept. Her purse contained credit cards, currency, script, her driver’s license, and her cell phone. The screen of her garage access door had been cut, a window was open, and the door unlocked. Kroes gave Detective Somavia, who was also investigating the burglaries, information she had received about attempts to use her credit cards. Purchases on the stolen credit cards were reported in the amount of $22.66 at an area Walgreens drug store and in the amount of $1 at a 7 Eleven convenience store, both within eight hours of the burglary. Three attempts were also made to use Kroes’s credit card at gas stations.
Officer G. DeJong interviewed Edward and Marjorie Fikse. Earlier, Fikse had surprised two burglars inside his home and a scuffle had ensued. The burglars had fled the scene. Fikse’s cell phone, a college class ring, and a silver watch were missing. The suspects appeared to have gained entry by cutting a window screen to the garage access door, opening the window, reaching in to unlock the door, and from there entering the home.
Detectives Gonzales, Canto, and Somavia went to the Walgreens, where appellant was identified by the store manager as the person who used the stolen credit cards within eight hours of the burglary. Appellant, who happened to be in the store at the time, was detained. He had Fikse’s cell phone on him. Appellant claimed he purchased the phone “off of the street.” Appellant was arrested and transported to the police department where he was interviewed by Detectives Young and Canto. While being transported to jail, appellant told officers he had been given the credit cards by Odilon Ramos and Felix Estrella, who told appellant they had stolen them during burglaries.
Later that day, Detectives Gonzales, Canto, and Somavia went to conduct a parole search of Estrella, whom appellant had identified as being involved in the burglaries. The officers also had information from an anonymous source that property from the burglaries, including paperwork belonging to Adrian Diepersloot, was at the Estrella residence. Estrella was not home, but officers arrested Ramos, the other person identified by appellant as being involved in the burglaries.
Detective Young contacted Diepersloot, who discovered his car had been ransacked and the glove compartment opened. He then confirmed that the found paperwork, including bank statements that may have been in the glove box of his car, belonged to him.
Appellant gave consent to search his residence and Detectives Somavia and Gonzales went to appellant’s apartment. A woman at the residence, Natasha Laird, said she went to Walgreens with appellant to buy cigarettes, but that the credit cards they tried to use were declined. The officers took appellant to a mall, where he showed them where he had discarded the cards.
On October 24, 2008, Officer Young, who had earlier interviewed appellant when he admitted using the stolen credit cards at Walgreens, filed a supplemental report in which he stated that he informed appellant on October 23, 2008, that his fingerprints were found at one of the burglary victim’s homes. At that point, appellant confessed that he had perpetrated the burglaries with his friends Estrella and Ramos. The report contains a checkmark indicating “copies to district attorney” on each page.
Case No. 211936
On October 23, 2008, appellant was charged in case No. 211936 (hereafter Case 1) in count 1, a felony, with unauthorized use of personal identifying information of 10 or more persons, to wit, Kroes (§ 530.5, subd. (c)(3)); in counts 2, 3, and 4, all felonies, with receiving stolen property (§ 496, subd. (a)), including a credit card (count 2), a cell phone (count 3), and bank statements (count 4); in counts 5 and 6 with second degree commercial burglary (§ 459), namely, Walgreens (count 5) and 7-Eleven (count 6); and in count 7, a felony, petty theft with a prior theft conviction (§ 666), use of a stolen credit card at a 7-Eleven store.
On October 27, 2008, appellant entered a no contest plea in Case 1 to counts 1, 2, and 5, with a Harvey waiver. The remaining charges were dismissed and appellant was sentenced to 185 days in jail, five years’ formal probation, and a suspended sentence of three years eight months. When taking appellant’s plea, the trial court asked appellant if he committed “the residential burglaries that are underlying all of these several thefts.” Appellant replied, “No, I didn’t.” At the time of the plea, appellant was on probation in two earlier theft-related cases. Probation was terminated and sentence imposed on those two cases as well.
Count 1 was changed to a violation of section 530.5, subdivision (a), use of another person’s identifying information.
People v. Harvey (1979) 25 Cal.3d 754.
Case Nos. 212700 and 220922
On November 4, 2008, a felony complaint was filed in case No. 212700 (hereafter Case 2) charging appellant in count 1 with burglary of the occupied Jones residence and in count 2 of the burglary of the occupied Fikse residence (§§ 459, 460, subd. (a)). It was further alleged that both counts were serious (§ 1192.7, subd. (c)) and violent (§ 667.5, subd. (c)) felonies. Appellant was charged in count 3 with conspiracy to commit burglary (§ 182, subd. (a)(1)). Appellant pled not guilty to all counts.
Thereafter, on December 12, 2008, appellant filed a motion to dismiss the charges in Case 2 pursuant to section 654 and Kellett, supra, 63 Cal.2d 822. At the hearing on the motion on December 23, 2008, the prosecutor stated that, at the time of appellant’s plea in Case 1, he was not in possession of Officer Young’s supplemental report, which related that, when appellant was confronted with fingerprints tying him to the burglaries, he confessed to having committed them. The prosecutor also explained that, at the time appellant pled in Case 1, appellant claimed that he had purchased the cell phone from someone else.
Defense counsel argued that Officer Young had “submitted” two reports implicating appellant (including appellant’s confession) to the district attorney’s office on October 22 and 24, 2008, allowing the prosecutor “several days in which to amend the complaint.…” Defense counsel argued that, because the report was in Young’s possession, “it was reasonably in the possession of the District Attorney’s Office.”
The trial court responded:
“[T]he problem is the course of conduct of receiving stolen property is significantly different than going in on a first degree burglary with a person present. The conduct isn’t anywhere near the same, and they’re not 654 of each other. [¶] … [¶] … It could be the same property. I don’t know if it’s the same course of conduct. That’s my concern, is it could be the same property, but I don’t know that it’s 654, and I don’t know that Kellett applies. My feeling is certainly a consecutive sentence wouldn’t be appropriate, but I don’t think 654 applies, which is I think what Kellett addresses.”
The prosecutor argued that “you don’t have to necessarily commit a 459 to be in possession of stolen property. You can commit one without committing the other.… And in the 496, he’s in possession of it … a day later after the burglary takes place, so the offenses happen on two separate dates.” The trial court agreed that receiving stolen property and entering a residence in which a person was present were “completely separate act[s]” and denied the motion.
On January 29, 2009, appellant filed a motion for reconsideration of the December 23, 2008, ruling. On February 18, 2009, the motion for reconsideration was heard and denied.
On April 2, 2009, an amended felony complaint was filed in Case 2 alleging in count 1 the home invasion robbery of Fikse (§ 211), in counts 2, 3, 4, and 5, first degree burglary with a person present (§§ 459, 460, subd. (a)), specifically Fikse in count 2, Kroes in count 3, Jones in count 4, and Diepersloot in count 5. Appellant was subsequently bound over for trial on counts 2, 3, and 5; counts 1 and 4 were dismissed.
On May 6, 2009, a felony complaint in case No. 220922 (hereafter Case 3) was filed charging appellant with one count of first degree burglary with a person present, Jones (§§ 459, 460, subd. (a)). On May 12, 2009, the complaint in Case 3 was amended to add a count of first degree burglary with a person present, Diepersloot (§§ 459, 460, subd. (a)).
On May 13, 2009, an information was filed in Case 2 charging appellant in counts 1 and 2 with burglary with a person present at home, namely, Fikse and Kroes (§§ 459, 460, subd. (a)), and in count 3 with second degree burglary of a commercial building occupied by Diepersloot (§§ 459, 460, subd. (b)). Appellant denied the charges and filed another motion to dismiss pursuant to Kellett.
At the Kellett motion, held June 25, 2009, the trial court stated that it had reconsidered and determined that it should dismiss the Kroes burglary (count 2 in Case 2), because appellant could not “be convicted of both receiving stolen property and burglary of the same property.” The trial court then clarified that “the jury can find him guilty of both, but at time of sentencing one’s gotta be dismissed.” Defense counsel repeated his earlier argument that the prosecutor knew or should have known that appellant was involved in the burglaries at the time of his plea in Case 1. The prosecutor, who was then sworn, testified under oath that Detective Young’s supplemental report was not received at the district attorney’s office “system” until October 31, four days after appellant entered his plea. The trial court accepted the prosecutor’s testimony as his declaration, stating that “the fact that it happened within a short period of time tends to have me believe that [the prosecutor]’s telling the truth. I mean, they filed it within another week and then brought him in on these charges.” At the conclusion of the hearing, the trial court granted the motion only as to count 2, the Kroes burglary, and denied it as to the remainder of the counts.
At a subsequent trial setting hearing on June 29, 2009, the trial court formally dismissed count 2 in Case 2, and count 3 in Case 2 was dismissed on motion of the prosecutor. Thereafter, the prosecutor filed a motion to consolidate Cases 2 and 3.
On July 6, 2009, an information was filed in Case 3 charging appellant in counts 1 and 2 with burglary with a person present at home, Jones and Diepersloot (§§ 459, 460, subd. (a)).
The motion to consolidate Cases 2 and 3 was granted on July 13, 2009, and both cases would henceforth be known as Case 2.
On July 24, 2009, a first amended information was filed in Case 2 charging appellant with three counts of burglary with a person present (§§ 459, 460, subd. (a)) in count 1 of the Fiske home, in count 2 of the Diepersloot home, and in count 3 of the Jones home. At a pretrial hearing on August 12, 2009, appellant entered a double jeopardy plea to all counts.
A handwritten notation on the first amended information says “count 3 changed to 459 1B from 459/F2.” There is no subdivision (b) in section 459. There is no reporter’s transcript of this hearing in the record.
On September 22, 2009, following two weeks in which the parties attempted to work out a disposition, appellant again entered “pleas of once in jeopardy to all counts.” Bench trial then commenced. Two days later, the trial court announced that it had read all of the pertinent documents and invited argument from counsel. Defense counsel again asked for an acquittal based on “Kellett objections” and double jeopardy grounds. Following argument, the court determined that Kellett and double jeopardy principles did not apply to the three burglaries at issue because they were “completely different victims with different residences and were charged after completely different, independent evidence was established. Therefore, the Court is finding that [appellant] was not previously placed in jeopardy for these three burglaries.” The court then found appellant guilty of the three counts of first degree burglary with a person present.
The trial court committed appellant to a state prison term of eight years eight months. Execution of sentence was suspended and appellant placed on probation for six years subject to conditions that he serve one year in jail, waive all presentence credits, and participate in a drug treatment program when released from jail. Various fees and fines were imposed.
DISCUSSION
Section 654’s Proscription Against Multiple Prosecutions
Section 654 provides in relevant part:
“(a) 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 prosecution. The latter prohibition is a procedural safeguard against harassment and is not necessarily related to the punishment to be imposed. Thus, even when double punishment is permissible, double prosecution may be proscribed. (Kellett, supra, 63 Cal.2d at p. 825; Neal v. State of California (1960) 55 Cal.2d 11, 21.)
The California Supreme Court interpreted section 654’s bar against multiple prosecutions in Kellett. In that case, police officers were dispatched to the scene of a “disturbance.” Upon arrival, they saw the defendant standing on the sidewalk holding a pistol. Officers arrested the defendant, who was charged that same day with exhibiting a firearm in a threatening manner, a misdemeanor. A month later he was charged in a second case with being a convicted felon in possession of a weapon capable of being concealed, a felony. Two months after that, the defendant entered a plea of guilty to the misdemeanor and was sentenced to a 90-day jail term. (Kellett, supra, 63 Cal.2d at p. 824.) The California Supreme Court concluded the second prosecution was barred by section 654. Chief Justice Traynor, writing for a unanimous court, stated the rationale as follows:
“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, as here, 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, supra, 63 Cal.2d at p. 827.)
Under Kellett’s interpretation of section 654, the district attorney may not bring the second case against appellant if three conditions exist. First, the same course of conduct played a significant part in the offenses charged in each case. Second, the prosecution was or should have been aware of the offense charged in the second case while the first case was pending. Third, all of the offenses charged could have been joined in a single case. (Kellett, supra, at pp. 827-828.) Here, the issue is whether the second condition, namely that the prosecution was or should have been aware of the offense charged in Case 2 at the time charges were filed in Case 1, has been shown.
A. Standard of Review
The parties’ briefs are devoted, in large part, to a discussion of whether the district attorney knew or should have known about appellant’s participation in the burglaries before his plea and conviction in Case 1. The parties disagree as to the standard of review to be used. We agree with respondent that we are to construe the evidence in the light most favorable to the finder of fact and uphold factual findings that are supported by substantial evidence. (See, e.g., People v. Davis (2005) 36 Cal.4th 510, 558 [substantial evidence supported the trial court’s finding that government made reasonable efforts to discover additional facts during initial prosecution].)
B. Prosecutorial Awareness and Due Diligence
In People v. Turner (1985) 171 Cal.App.3d 116, the defendant pled guilty to felony inhumane corporal punishment on a child. He was subsequently charged with sexual offenses. In the course of this second prosecution, it was discovered that the defendant had committed some of the sex offenses against the same victim on the same day as the crime for which he had been earlier prosecuted. (Id. at pp. 121-122.) The defendant filed a motion to dismiss the second prosecution.
In support of the motion, the defendant’s former counsel filed a declaration stating that, on the day of the preliminary hearing in the first case, the deputy district attorney informed him that there might be added allegations of sexual fondling because there may have been an indication of that in the past, and if such charges would be filed, the deputy district attorney would inform counsel of such. (People v. Turner, supra, 171 Cal.App.3d at p. 122.) The record showed that, before the defendant pled guilty to the corporal punishment charge, a probation officer contacted the deputy district attorney and expressed concern that the defendant might be sexually abusing the child. The probation officer’s concern arose from a battery of the child that occurred five years earlier when there had also been a report of molestation. The prosecutor filed his own declaration in which he stated that the defendant had been suspected of sexually abusing his daughter some years earlier, but that there was no current evidence to establish a basis for any possible recent sexual abuse. According to the prosecutor, nothing further developed up to the defendant’s plea that would have led the prosecutor to initiate further criminal charges against the defendant. (Ibid.)
The trial court found, and the appellate court agreed, that there was no evidence the prosecuting attorney was either aware, or should have been aware, of any sexual crimes at the time of the first plea. (People v. Turner, supra, 171 Cal.App.3d at p. 122.) As stated in Turner, “A prosecutor is not a policeman and his duty is to prosecute crimes, not ferret them out. In the absence of any investigation or pending prosecution of the sexual crimes, there was no reason why the prosecutor should have been aware of them.” (Id. at p. 130.)
Here, after a review of the record, we find there is substantial evidence to sustain the trial court’s conclusion that the prosecutor was not aware of appellant’s participation in the burglaries before his plea. At the time of appellant’s arrest, he told officers that the stolen items in his possession were either bought or received from others. Appellant specifically told the trial court at his plea hearing that he was not involved in the underlying burglaries. In addition, the prosecutor testified at the June 25, 2009, Kellett hearing that he received Detective Young’s supplemental report, directly implicating appellant in the burglaries, on October 31, 2008—four days after appellant pled on the charges in Case 1. The trial court stated that it believed the prosecutor, particularly because of his quick response in filing the additional charges as soon as they were known. And while defense counsel insisted that the police report noted on each page that it was sent to the district attorney’s office on October 24, 2008, the court found that this did not necessarily mean it was received by the office on that date. It is not our task to reweigh the evidence, nor are we permitted to make credibility decisions. (People v. Johnson (1980) 26 Cal.3d 557, 577.) And although the trial court made no express finding that the police report was received after appellant entered his no contest pleas, we are required to infer such a finding on appeal. (People v. Stansbury (1995) 9 Cal.4th 824, 831.) Thus, we will not decide whether it is receipt by the prosecuting district attorney or receipt by his office that is pertinent here.
At oral argument, appellant’s counsel argued a new theory that the earlier filed police reports were sufficient to support the Kellett motion in that they put the prosecutor on notice that the district attorney should charge appellant with the burglaries along with the charges of receiving stolen property, etc. This argument was never raised below, nor was it raised in appellant’s briefing. We do not address issues raised for the first time at oral argument. (People v. Harris (1992) 10 Cal.App.4th 672, 686 [“contentions raised for the first time at oral argument are disfavored and may be rejected solely on the ground of their untimeliness”].)
C. Same Course of Conduct
But even were we to find that the prosecutor knew or should have known that appellant participated in the burglaries prior to his plea in Case 1, we find that the rule against multiple prosecutions does not apply here because the burglaries at different homes at different times do not comprise the “same course of conduct” as appellant’s later attempts to use a stolen credit card, commit personal identity theft, or commit commercial burglary.
The Kellett opinion implies that there are two ways to demonstrate the offenses involved the same course of conduct. The first “depends on the intent and objective of the actor” (Kellett, supra, 63 Cal.2d at p. 825) and is the same test used to determine if multiple punishments are prohibited by section 654. The second way is derived from the court’s statement that “some acts that are divisible for the purpose of punishment must be regarded as being too interrelated to permit their being prosecuted successively.” (Kellett, at p. 827.)
Here, it cannot be said that appellant’s intent and objective was the same in Case 1 (unauthorized use of personal identifying information, receiving stolen goods, and commercial burglary) as it was in Case 2 (burglary of three homes while people were present). Nor can it be said that the acts committed by appellant were too interrelated to permit separate prosecutions.
In People v. Martin (1980) 111 Cal.App.3d 973, 977-978, the bar against multiple prosecutions was held not to apply when the defendant was prosecuted for possessing a sawed-off shotgun that had been taken in a burglary, and later prosecuted for the burglary itself. As to the burglary charge, evidence was presented that various items, including a shotgun which was subsequently found in the defendant’s possession, were taken following a forced entry of the victim’s home. Evidence was also presented of the defendant’s presence at the home at the time of the burglary. As explained by the Martin court, the shotgun offense would have been supported by evidence of the defendant’s possession, without regard to where he had acquired it.
“Evidence in the two cases, therefore, was for the most part mutually exclusive, the only common ground being the fact that the sawed-off shotgun found in [the defendant]’s possession had been taken in the burglary committed a week earlier. Under these circumstances, this minimal overlap in the evidence did not require a joinder of these cases.” (People v. Martin, supra, at p. 978.)
In contrast, in People v. Wasley (1970) 11 Cal.App.3d 121, the court held that the defendant could not be separately prosecuted for armed robbery and possession of a weapon used in that robbery. (Id. at p. 122.) And in People v. Flint (1975) 51 Cal.App.3d 333, the court held that the defendant, arrested for drunk driving while driving a stolen car, could not, after his guilty plea to driving while intoxicated, be subjected to a subsequent prosecution for grand theft of the automobile and joy riding. (Id. at p. 338.)
Here, as in People v. Martin, the fact that appellant was illegally in possession of various stolen items which he attempted to use at a store supported his conviction of the counts in Case 1, regardless of where he acquired the items, and did not establish that he had committed the burglaries of which he was convicted in Case 2. The evidence that would be used to establish the allegations in Case 1 would not be redundant to the evidence that would establish the allegations in Case 2. The charges concerning Case 1 are not so interrelated with the charges in Case 2 that the same course of conduct played a significant part in all of the offenses. Thus, section 654’s proscription against multiple prosecutions is not implicated.
D. Double Jeopardy
Finally, we address appellant’s complaint that his conviction placed him in double jeopardy. The double jeopardy clauses of the Fifth Amendment to the United States Constitution, applicable to the states through the Fourteenth Amendment, and article I, section 15 of the California Constitution, guarantee that a person shall not be placed twice “in jeopardy” for the “same offense.”
Here, the charges alleged in Case 1 were not the same offenses as those alleged in Case 2. Therefore, we conclude that appellant was not placed in jeopardy for the offenses in Case 2 by the charges to which he pled guilty in Case 1. Accordingly, the present convictions do not offend either the federal or state double jeopardy clause.
DISPOSITION
The judgment is affirmed.
WE CONCUR: KANE, J., POOCHIGIAN, J.