Opinion
A118489
8-6-2008
THE PEOPLE, Plaintiff and Respondent, v. DARYL LYNN JENKINS, Defendant and Appellant.
Not to be Published
Appellant Daryl Lynn Jenkins challenges his convictions for being a felon in possession of a firearm; being a convicted person in possession of ammunition; and possession of a short-barreled shotgun. He is adamant that under the longstanding rule of Kellett v. Superior Court (1966) 63 Cal.2d 822, 827 (Kellett) and the plain language of Penal Code section 654 (section 654), the trial court erred in denying his motion to dismiss the current charges because they should have been joined and prosecuted in an earlier proceeding. We agree and accordingly reverse the judgment.
I. BACKGROUND
A. Procedural Background
In November 2006, the Contra Costa County District Attorney filed an information charging appellant with the above three felonies, alleged to have occurred on July 1, 2006. Appellant pleaded not guilty and subsequently moved unsuccessfully to dismiss the charges under section 654 and Kellett.
Accompanying the motion to dismiss was a copy of an amended complaint filed July 5, 2006, charging appellant with being a convicted person possessing ammunition on July 1, 2006, and possession of methamphetamine, among other counts. Also accompanying the motion was the report of San Pablo Police Officer Perino illustrating that these counts stemmed from a traffic stop, arrest and car search on July 1, 2006, which led to discovery of methamphetamine and a pipe on the passenger floor board of the car appellant was driving, as well as a box of shotgun shells in the trunk. The moving papers further observed that pursuant to a negotiated disposition, appellant pleaded guilty in this first case to three counts, including possession of ammunition and methamphetamine on July 1, 2006. The court sentenced him to three years of formal probation and ordered him to serve one year in county jail.
The instant case proceeded to a jury verdict finding appellant guilty as charged on all three counts. The court sentenced him to prison for 16 months as follows: the midterm of eight months for felon possessing a firearm, a consecutive eight-month midterm for convicted person possessing ammunition, with sentencing on possession of a short-barreled shotgun stayed pursuant to section 654. This appeal followed.
B. Factual Background
Arrest, Search, Interview
At trial, Officer Perino testified that he stopped a car driven by appellant around 9:00 a.m. on July 1, 2006. The car had no license plates. The location of the stop was Chesley Avenue and Rumrill Boulevard in San Pablo. Appellant told the officer that his drivers license had been suspended, but provided his name and date of birth. Perino noticed that the ignition was "punched," with wires "hanging out." Appellant said the car was his, but it did not have an ignition and thus had to be hot-wired. A vehicle check revealed that the car was registered to Jose Eduardo Ortiz; it had not been reported stolen.
Perino arrested appellant for an outstanding warrant and searched the vehicle, finding a box of Federal Tri-Power 12-gauge three-inch magnum shotgun shells in the trunk.
Appellant had a cell phone which was taken and placed into evidence. Appellant gave his wife, Amanda Jenkins, as the emergency contact, provided the phone number and asked that Officer Perino give his money to his wife. Appellant said he did not know, or did not remember, his address.
Meanwhile, Officer Perino notified Detective Barajas of the arrest and the two met at the police station. Barajas, who knew appellant, scrolled down appellants cell phone to "Home" and obtained a phone number. He cross-referenced the number with Richmond records and obtained the address 731 Lucas Avenue in Richmond. He also called the number entered on the booking sheet that appellant had provided for Amanda Jenkins; it rang to appellants cell phone. Barajas directed Perino to confirm that the Lucas Street address was appellants residence and to secure the home.
When Perino arrived, Amanda Jenkins was on the street outside the house. She identified herself as appellants wife. He gave her the money and a property release form. Manuel Fernandez came outside and asked Perino "about the police coming in the house."
Amanda went inside the residence at 731-A Lucas Avenue, where she signed the release form; Perino followed. Amanda Jenkinss two children and Dedra Cook, appellants mother, were also there. Perino and another officer seized the residence, directing the occupants outside.
Barajas obtained a search warrant for 731-A Lucas Avenue which he and others executed at 7:45 p.m. Under the bed in the northeast bedroom they located a Browning 12-gauge double-barreled shotgun with one live round in it. In a small closet was a cloth bag containing shotgun ammunition matching the shell in the gun. In the living room the officers found a shotgun shell in a pair of jeans on the floor, and one in a dresser drawer. All ammunition recovered was the same type, namely Federal Tri-Power three-inch magnum shotgun shells for a 12-gauge shotgun.
At some point in the investigation, Barajas discovered that Fernandez was renting the single family home located at 731-A Lucas Avenue. Barajas testified that there did not appear to be any restrictions that would prevent Fernandez from accessing all rooms in the house.
The search of the bedroom also uncovered a purse with a wallet containing Amanda Jenkinss California identification card and a social security card, as well as a Kaiser medical card in appellants name; various articles of mens clothing; a notebook titled "Stuttas DVDs"; and a black knit hat and gloves.
According to Barajas, appellant stutters when he is nervous, hence the nickname "Stutta Box."
When interviewed at the police station, appellant initially told the officers he lived with his grandmother on 37th Street. Then he clarified he didnt live with his grandmother, but her house was his home; he lived on the streets. Appellant also indicated his family lived on 8th Street and he had been staying there from time to time, less than a month, about two or three weeks. They had a room in the house with Manuel and his "chick."
B. Testimony of Armand Johnson
In June 2006, Armand Johnson contacted Barajas through a deputy at the Martinez jail. Barajas spoke with Johnson on several occasions, At the time of trial Johnson was in custody on unrelated charges. Johnson testified that he had known appellant for two or three years. They were "play brothers" who saw each other almost daily in 2006. In March 2006, Johnson picked up appellant in Richmond. Appellant had a sawed-off shotgun. Johnson saw him assemble the gun. He identified Peoples exhibit 1 as the shotgun appellant was carrying. Johnson did not see appellant load the shotgun. Johnson thought appellant took the gun with him when he left, but after he received a phone call he learned it was still in his car. Amanda Jenkins retrieved the shotgun from Johnson.
A criminalist testified that the shotgun was considered a sawed-off shotgun under California law. He tested the weapon and reported that it was functioning.
C. Stipulations
The court advised the jury that the parties stipulated as follows: "During the trial certain evidence was admitted for a limited purpose. You may consider that evidence only for . . . that purpose and for no other. [¶] In this case, you have heard evidence that Mr. Jenkins possessed ammunition in the trunk of the car he was driving on July 1st, of 06. This evidence, if believed, was presented for the limited purpose of evidence of his knowledge and/or identity as the person in possession of the ammunition at 731 Lucas Avenue. Evidence of the ammunition in the car was not admitted for and cannot be used as a basis of a verdict, if any, for Count II." Similarly, the court alerted the jury to the stipulation that evidence that appellant possessed the shotgun and/or ammunition in March 2006 was received for the limited purpose of showing appellants knowledge of and/or identity of the person possessing the shotgun and ammunition at 731 Lucas Avenue on July 1, 2006. Such evidence could not be used as a basis for any verdict in counts 1, 2 or 3.
II. DISCUSSION
Appellant maintains that at the time of the first trial, the prosecution had knowledge that the shotgun and ammunition had been recovered from his residence, but failed to bring additional charges at that time. Instead, appellant argues that he was tried separately in this case for offenses arising from a single, indivisible course of conduct, in violation of Kellett and section 654. We are persuaded.
A. Governing Law
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."
Over 40 years ago, our Supreme Court reiterated that the ban on multiple prosecution announced in section 654 " `is a procedural safeguard against harassment and is not necessarily related to the punishment to be imposed; double prosecution may be precluded even when double punishment is permissible. [Citation.]" (Kellett, supra, 63 Cal.2d at p. 825.) Thus, "[i]f 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 . . . 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." (Id. at p. 827, fn. omitted.)
In Kellett, the defendant was creating a disturbance by standing on a public sidewalk with a pistol in his hand. He was charged with exhibiting a firearm in a threatening manner, a misdemeanor, and pleaded guilty to the same. Meanwhile, it became apparent that the defendant had been convicted of a felony. Thereafter he was charged with felony possession of a concealable weapon by a convicted felon. The defendant sought a writ of prohibition to prevent his felony trial; the Supreme Court granted the writ. (Id. at p. 824.)
The preclusion by section 654 of multiple punishment for an act or course of criminal conduct has the same effect: "[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." (Kellett, supra, 63 Cal.2d at p. 828.)
The Kellett court also alluded to Penal Code section 954 (section 954), describing the statute as providing for joinder in a single accusatory pleading of two or more crimes "connected in their commission or having a common element of substantial importance in their commission." (Id. at p. 825.) As the court explained, over the years the Legislature has amended section 954 in ways that "greatly expanded the scope of permissible joinder," thereby demonstrating "its purpose to require joinder of related offenses in a single prosecution." (Id. at p. 826, fn. omitted.)
B. Analysis
Here, two separate accusatory pleadings were pursued against appellant that arose from the same factual nexus—possession of a sawed-off shotgun and ammunition—that was developed over the course of a single investigation beginning with a car stop and ending with a warrant-backed search of appellants home. Appellant was first prosecuted, in a separate trial, for the ammunition uncovered during the traffic stop, notwithstanding that matching ammunition and weapon were recovered during the same-day search of appellants home.
Officer Perino stated in his police report that appellant was transported to the police station for booking. Perino contacted Detective Barajas, who was involved in an ongoing murder investigation in which appellant was a possible suspect. Thereafter Barajas "took control of the investigation." Barajas forthwith ordered seizure of appellants residence and obtained the search warrant which resulted in recovery of the weapon and additional, matching ammunition which formed the basis of the charges in the current case. Officer Perinos police report, and Detective Barajass supplemental report, were both authored under the same case number. A copy of Officer Perinos report, dated July 1, 2006, was sent to the district attorney. The end of the report stated: "Case Closed . . . Route to DAs office for prosecution." Detective Barajass report, dated July 5, 2006, was also sent to the district attorneys office. Detective Barajas requested at the end of his report that appellant and his wife be charged with possession of a dangerous weapon, possession of a concealable firearm by a felon, and violation of probation.
Meanwhile, on July 5, 2006, the district attorney filed an amended complaint charging appellant with possession of the ammunition and methamphetamine that Officer Perino found when he stopped appellants vehicle that morning, along with other crimes. Appellant appeared in court on July 13, 2006, and entered a plea in that docket number. While there may have been some overlap between the time this complaint was lodged and Detective Barajass report was received by the prosecutors office, certainly prior to the time appellant entered his plea the prosecutor had both police reports in hand. Thus there was ample time to amend the July 5 complaint to add the additional and intricately related charges concerning the ammunition and weapon found at appellants home. Instead, disposition in the first case was entered on July 27, 2006.
Thereafter, in September 2006, the district attorney filed a new complaint charging the crimes that are at issue in this case relating to the possession of the firearm and ammunition found on Lucas St. The preliminary hearing took place on October 20, 2006, followed by the filing of the November 1, 2006 information.
Denying the motion to dismiss, the trial court concluded that the offenses were "largely independent of one another." The court underscored that the emphasis is on defendants course of conduct, not that of the state actors. We agree that Kellett appropriately focuses on the acts of a defendant, some of which may be severable for purposes of punishment but nevertheless deemed "too interrelated" to tolerate successive prosecutions. Thus, "[w]hen there is a course of conduct involving several physical acts, the actors 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." (Kellett, supra, 63 Cal.2d at p. 827.) Neither the technical definition of the respective crimes nor the precise moment when one crime is completed controls applicability of the rule of Kellett in a particular case. Rather, what matters is the "totality of the facts" examined in light of the legislative goals of sections 654 and 954. (People v. Flint (1975) 51 Cal.App.3d 333, 336.)
With a proper spotlight on appellants course of conduct, it is apparent that his possession of a shotgun and ammunition for that weapon on the same day constitutes a single course of conduct threaded throughout both prosecutions. That the incriminating items were found in two different places is of no consequence. Both places were under the control of appellant; he was stopped in the car barely a mile from his residence; the ammunition found in both places was of the same type and manufacture for a 12-gauge shotgun, one round of which was in the sawed-off shotgun; and the items were found and seized on the same day. To pursue multiple prosecutions under the totality of these facts makes no sense. The offenses were so closely interrelated as to form a single course of conduct within the meaning of Kellett.
The People characterize this case as involving two discrete offenses committed by appellant in two separate places, requiring separate proofs. Thus they argue that joinder is not required and there is no bar to multiple prosecutions, citing People v. Martin (1980) 111 Cal.App.3d 973 (Martin).
Martin does not advance this argument. There, the defendant was first prosecuted and pleaded guilty to possession of a sawed-off shotgun found in his car after a traffic stop and search. Subsequently he was prosecuted for the burglary in which the shotgun had been stolen. Upholding the denial of the motion to dismiss, the reviewing court concluded that there was no indication in the record that the prosecutor had knowledge of the defendants involvement in the burglary when he pleaded guilty to the possession charge. (Martin, supra, 111 Cal.App.3d at p. 977.) Nor, as the defendant argued, should the prosecutor have been charged with such knowledge. The sawed-off shotgun was not an instrumentality in the commission of the burglary. By the time the defendant was found in possession of the weapon a week later, such possession was a separate offense from the burglary in time, place and character. Further, the two crimes demanded separate proofs and the evidence in each was "for the most part mutually exclusive." The minimal overlap of evidence thus did not require joinder. (Id. at p. 978.)
Unlike Martin, in the present case there is little question that the state actors were aware of all the offenses as the first case proceeded. And, to reiterate, the possession offenses here form an indivisible course of conduct. Moreover, the overlap in evidence was not minimal—it was substantial in regard to time, location and the factual foundation for the crimes. The reporters transcript in this case contains 38 pages of testimony from Officer Perino. His testimony was crucial to establish appellants "knowledge and/or identity as the person in possession" of the ammunition found at 731 Lucas Avenue. The trial court specifically instructed the jury on this crucial factual connection. Joinder of all offenses stemming from a single investigation on a single day relating to the same weapon and ammunition would avoid needless repetition of police testimony and harassment of appellant, and conserve court resources.
Finally, the People complain that because the charges arising from discovery of the ammunition during the car search were joined with offenses committed by appellant in February 2006, "there would have been two proceedings under any circumstances." Not so. If charges relating to the ammunition discovered in the car could be joined with the February 2006 offenses, so could charges relating to possession of the weapon and ammunition found the same day in appellants residence.
III. DISPOSITION
The judgment of conviction is reversed.
We concur:
Sepulveda, J.
Rivera, J.