Opinion
A148278
08-23-2017
THE PEOPLE, Plaintiff and Respondent, v. CALVIN JORDAN BAUSLEY, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Mendocino County Super. Ct. No. SCUK-CRCR-14-79-126)
Appellant Calvin Jordan Bausley pleaded no contest in Mendocino County Superior Court to one felony count of second degree robbery. His sole claim on appeal is that his trial attorney rendered ineffective assistance by withdrawing a motion to dismiss. According to Bausley, withdrawing the motion was improper because he had already been convicted in a different county (Sonoma) of a charge purportedly related to the Mendocino County robbery. (Pen. Code, § 654.) We conclude that Bausley has failed to sustain his burden of showing that his counsel was ineffective, and we therefore affirm.
All statutory references are to the Penal Code.
I.
FACTUAL AND PROCEDURAL
BACKGROUND
The appellate record is thin and contains only limited information describing the relationship between Bausley's conviction in this case and his prior conviction in Sonoma County. We know, however, that this case, which was brought after the Sonoma case, alleged that Bausley and three codefendants had participated in a robbery in Mendocino County on September 7, 2014. Specifically, Bausley was charged with kidnapping to commit robbery (§ 209, subd. (b)(1)) and first degree robbery perpetrated in concert of an inhabited dwelling (§§ 211, 212.5, 213, subd. (a)(1)(A)). The record indicates that among the property taken from the victim were unspecified "firearms and accessories." (Capitalization omitted.)
We also know that Bausley was charged in the earlier Sonoma case for having been found unlawfully possessing one or more firearms on September 10, 2014. Specifically, he was charged with three counts, two of which included an allegation that the firearms were stolen: (1) possession of a concealed firearm (§ 25400, subd. (a)(1)), a felony because of the allegation that Bausley knew the firearm was stolen (§ 25400, subd. (c)(2)); (2) carrying a loaded firearm in public (§ 25850, subd. (a)), also a felony because of the allegation that Bausley knew the firearm was stolen (§ 25850, subd. (c)(2)); and (3) possession of a loaded handgun (§ 25850, subd. (a)), with a penalty allegation that the handgun was not registered to him (§ 25850, subd. (c)(6)). Again, the record does little to describe the weapons involved in these charges. Other than the complaint's references to a "firearm" in the first two counts (with the allegations that the firearm was stolen) and to a "handgun" in the third count (alleging only that the handgun was unregistered), the only details in the record about any firearm that may have given rise to the charges against Bausley are in a Sonoma County Sheriff's Department report that states an "AR 15 rifle" was retrieved at the scene of the arrest. Bausley pleaded no contest to the third charge that he had possessed a loaded handgun, and the remaining two charges were dismissed.
On the basis of the Bausley's conviction in Sonoma, Bausley's trial attorney in this case filed a motion to dismiss the complaint under section 654, which bars multiple prosecution for the same act or omission. (Kellett v. Superior Court (1966) 63 Cal.2d 822 (Kellett).) We refer to this pleading as the Kellett motion. The Kellett motion mentioned only the counts in the Sonoma case that charged possession of a stolen firearm and did not mention the count for which Bausley was ultimately convicted: possession of an unregistered, loaded handgun. The motion assumed that the firearm or firearms in the Sonoma case had been taken from the robbery victim in this case. The motion argued that the charges in this case were therefore barred under section 654 because they arose from the same course of conduct that gave rise to the Sonoma case.
In making the Kellett motion, Bausley acknowledged that had he been convicted in the Sonoma case with "another crime such as possession of [a] concealed weapon not registered to [Bausley]," then his argument under section 654 "would not succeed" because the crimes would have required "separate proof." The prosecution responded by pointing out that Bausley's hypothetical was in fact "exactly the situation we have," since the third count in the Sonoma case charged Bausley with illegally possessing a handgun that was not registered to him. The prosecution argued that the "same act or course of conduct did not play a significant part with regard to each crime" because the two offenses took place at different times and in different places. The prosecution further argued that because Bausley's conviction in the Sonoma case did not require proof that the weapon was stolen, there was only minimal overlap with the charged robbery offenses. For reasons that do not appear in the appellate record, Bausley's trial attorney later withdrew the Kellett motion.
Bausley thereafter pleaded no contest under a plea agreement to a new charge of second degree robbery (§ 212.5, subd. (c)), and the remaining charges were dismissed. The court sentenced Bausley to the agreed-upon five-year term. Bausley then filed a timely notice of appeal and later secured a certificate of probable cause permitting him to raise the issue of alleged ineffective assistance of counsel.
II.
DISCUSSION
Bausley contends that his trial attorney was ineffective for withdrawing the Kellett motion because the motion had merit. He argues that under Kellett, supra, 63 Cal.2d 822, he could not be charged in this case for the robbery offenses after he was charged in the Sonoma case with felonious possession of a stolen gun that " 'play[ed] a significant part' " in the robbery charge. We are not persuaded.
In a related petition for a writ of habeas corpus (No. A150396), Bausley likewise argues that he received ineffective assistance of counsel, and provides supporting declarations. We deny the petition today by separate order.
A. The Applicable Legal Standards.
The burden of proving ineffective assistance of counsel is on the defendant. (People v. Delgado (2017) 2 Cal.5th 544, 559.) To satisfy this burden, the defendant " ' "must show that counsel's performance was deficient, and that deficiency prejudiced the defense." ' " (People v. Martinez (2017) 10 Cal.App.5th 686, 716.) To establish deficient performance, the defendant must show that "counsel's representation fell below an objective standard of reasonableness." (Strickland v. Washington (1984) 466 U.S. 668, 687-688.) To establish prejudice, the defendant must show that there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (Id. at p. 694.)
Judicial scrutiny of counsel's performance must be "highly deferential" and "considering all circumstances." (Strickland v. Washington, supra, 466 U.S. at pp. 688-689.) No mechanical rules are appropriate in evaluating an ineffective assistance claim. (Id. at pp. 694-695.) A court should keep in mind that the "ultimate focus of inquiry must be on the fundamental fairness of the proceeding whose result is being challenged." (Id. at p. 696.) Counsel's withdrawal of a "futile or unmeritorious motion or request is not ineffective assistance." (People v. Szadziewicz (2008) 161 Cal.App.4th 823, 836.)
B. Bausley Has Failed to Establish that His Counsel Was Ineffective Because He Has Not Shown that the Kellett Motion Had Merit.
Section 654 provides that "an acquittal or conviction and sentence under any [provision] bars a prosecution for the same act or omission under any other." (§ 654, subd. (a).) 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 not allowed or is impractical. (Kellett, supra, 63 Cal.2d at p. 827, italics added.) Section 654 is intended to protect criminal defendants from needless harassment of successive prosecutions and to prevent waste of public funds. (Kellett, at p. 827.) " 'Section 654's preclusion of multiple prosecution is separate and distinct from its preclusion of multiple punishment. The rule against multiple prosecutions 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.' " (Id. at p. 825, quoting Neal v. State of California (1961) 55 Cal.2d 11, 21, Neal disapproved on another ground in People v. Correa (2012) 54 Cal.4th 331, 334, 336.) Failure to unite all 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.)
Bausley contends that the Kellett motion had merit, but he concedes that the judgment should be affirmed if we decide that it did not. The Attorney General argues that Bausley's trial counsel could have reasonably withdrawn the motion based on her belief that the motion lacked merit. We conclude that the record before us fails to show that the Kellett motion was meritorious.
Bausley's argument that the motion had merit is based on Kellett and the Supreme Court's more recent opinion in People v. Britt (2004) 32 Cal.4th 944 (Britt), but both cases are easily distinguishable. In Kellett, the defendant was arrested on a sidewalk with a pistol in his hand, and he was later charged with a exhibiting a firearm in a threatening manner. (Kellett, supra, 63 Cal.2d at p. 824.) After he pleaded guilty to the charge, he was again charged with possession of a concealable weapon. (Ibid.) He contended that exhibiting and possessing the pistol constituted "a single act or an indivisible course of criminal conduct." (Ibid.) The court agreed and granted a writ of prohibition. (Ibid.)
Unlike in Kellett, however, here the charges in the two cases have not been shown to have arisen out of a single act or indivisible course of conduct. To begin with, the crimes occurred on different days and in different counties. This alone is enough to support the withdrawal by Bausley's trial counsel of the Kellett motion. But in addition, the two cases have not been shown to have arisen out of a single act or indivisible course of conduct because, contrary to defense counsel's insistence at oral argument, the record does not establish that the weapons in the two cases were the same.
Bausley's appellate counsel contended at oral argument there was "no question" the firearm that was the basis of Bausley's conviction for possession of an unregistered firearm in the Sonoma case was a gun taken in the Mendocino County robbery. But the citation to the record he provided in support of the contention was merely the prosecutor's short opposition papers, which assumed that the firearms were the same. In turn, the prosecutor's opposition papers cited only to the complaint in the Sonoma case and the minute order summarizing Bausley's plea, neither of which described the firearms with any specificity. The prosecutor's assumption that the firearms were the same does not establish that they in fact were the same.
Britt also is unhelpful to Bausley. In that case, the defendant sex offender moved but failed to report his new location to two different law enforcement agencies. (Britt, supra, 32 Cal.4th at p. 949.) The court held that the bar on multiple prosecutions prohibited a second prosecution in a second county because the prosecutions arose from "the same act or course of conduct—a single unreported move within California." (Id. at pp. 954.) But again, and unlike in Britt, the offenses here, which occurred on different dates in different counties, have not been shown to have arisen from the same act or course of conduct. Accordingly, we cannot conclude that the prosecution of this case constituted harassment or waste of public funds. (People v. Hurtado (1977) 67 Cal.App.3d 633, 636 [court should evaluate "the totality of the facts" in light of the legislative goals of § 654—preventing needless harassment and waste of public funds—rather than dwelling on technical elements of crimes].)
People v. Martin (1980) 111 Cal.App.3d 973 (Martin) is directly on point. In Martin, the defendant was charged with burglary after he had already pleaded guilty in a separate case to a misdemeanor charge of unlawful possession of a shotgun. (Id. at p. 976.) Although the shotgun had been taken in the burglary, the misdemeanor conviction did not include allegations that the firearm was stolen. (Id. at pp. 976, 978.) Martin held that the defendant's subsequent burglary conviction did not violate section 654 because "the sawed-off shotgun was not an instrumentality in the commission of the burglary," and defendant's possession of the sawed-off shotgun a week after the burglary thus "constituted an offense separate from the burglary in time, place and character." (Martin, at p. 978.) The two crimes demanded separate proofs, where the burglary charge required evidence of "a forced entry of the victim's home and the removal therefrom of various items," whereas the shotgun charge was simply supported by possession of a sawed-off shotgun. (Ibid.) Like the crimes in Martin—illegal possession of a shotgun and burglary, the crimes for which Bausley was convicted here—illegal possession of an unregistered firearm and robbery—demanded separate and distinct proofs. (Ibid.)
If section 654 was no bar to the subsequent burglary charge in Martin, it is even less of a bar to the robbery charge here. Martin focused on the evidence that underpinned each prosecution and the fact that the charges demanded separate proofs. (Martin, supra, 111 Cal.App.3d at p. 978.) Here, we similarly have charges that demanded separate proofs, since proof that Bausley possessed an unregistered firearm in Sonoma County on one day is irrelevant for proving that he participated in the robbery in Mendocino County days earlier. While Martin would compel us to reject Bausley's appeal for this reason alone, the circumstances here present an even stronger case for the inapplicability of section 654 because, unlike in Martin (at p. 978), it has not been established that the guns in the two cases were the same. (Ante, fn. 3.) Bausley dismisses the relevant passages in Martin as mere dicta because it was undisputed that the two prosecutors were unaware of each other's case. (Martin, at p. 977.) But the holding in Martin did not turn on this point. To the contrary, Martin stressed that subsequent prosecution is barred 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 (id. at p. 978)—something that has not been established here. The case turned, in other words, on the evidence underlying the charges, not the prosecutors' awareness of each other's case.
Bausley also insists that Britt, supra, 32 Cal.4th 944, a Supreme Court case that was decided after Martin but did not mention it, overrules Martin. Bausley's argument is based in part on the fact that the appellate court in Britt relied on Martin to conclude that section 654 was not implicated, and the Supreme Court implicitly overruled that analysis in reversing the court of appeal's decision. But Bausley does not explain why we should look to the lower court's now depublished analysis of Martin in construing the Supreme Court's subsequent opinion that does not even cite to Martin.
At oral argument, Bausley's appellate counsel directed us to Barriga v. Superior Court (2012) 206 Cal.App.4th 739 (Barriga), claiming that it mandates a reversal of the judgment here. Again, we are not persuaded. In Barriga, the defendant was a passenger in a car that was pulled over for expired plates, and the officer discovered that the car had been taken in a carjacking. (Id. at p. 742.) During the stop, Barriga challenged the officer, and he was later charged with, and entered a plea to, resisting arrest. (Id. at p. 743.) The carjacking victim had told police he was certain Barriga was not involved in the carjacking. (Id. at pp. 742-743.) But after the plea of resistance was entered, police searched Barriga's phone and read text messages that implicated him in the carjacking. The district attorney then filed a complaint charging him with the underlying carjacking. (Id. at pp. 743-744.) Barriga argued, and the appellate court agreed, that the second prosecution was barred under section 654 and Kellett. (Barriga, at p. 745.)
Unlike here, in Barriga it was undisputed that the defendant's participation in the two crimes was part of the same course of conduct. (Barriga, supra, 206 Cal.App.4th at p. 747.) Absent such a stipulation, we might question whether it actually was. Barriga's encounter with the officer took place at least four hours after the carjacking and was unrelated to it. (Id. at p. 742.) The officer stopped the car for the separate reason that it had expired plates, meaning the prosecution presumably could have proven the resistance charge without any evidence of the earlier carjacking. (Barriga, at p. 742.) Bausley's reliance on the case is misplaced because, as a result of the stipulation, Barriga did not analyze whether the two crimes were part of the same course of conduct or whether, if they were, the second prosecution was barred. The case solely analyzed whether the police exercised due diligence in charging all relevant offenses in the first prosecution, not whether the offenses were part of the same course of conduct. (Id. at pp. 747-749.) In contrast to the circumstances in Barriga, here Bausley has not established that the prosecution was or should have been "aware of more than one offense in which the same act or course of conduct play[ed] a significant part." (Id. at pp. 746, italics added.)
The other cases upon which Bausley relies are likewise inapposite. In People v. Flint (1975) 51 Cal.App.3d 333, 338, "the same incident which furnished the evidence that defendant was driving in an intoxicated condition, also supplied proof that what he was driving was an automobile he had stolen," whereas here the two crimes occurred in different counties and involved separate incidents. (See also People v. Wasley (1970) 11 Cal.App.3d 121, 123-124 [prosecutor "knew every fact necessary" to prosecute defendant for one crime when defendant was prosecuted for separate crime where same set of facts involved in both prosecutions].) --------
We decline to hold under the circumstances presented in the record that Bausley's plea to the firearms charge in the Sonoma case immunized him from liability for the robbery that occurred in a different county three days earlier, such that his Kellett motion had merit. The facts leading to these separate prosecutions have not been shown to have arisen as part of the same act or course of conduct, and this is especially the case since nothing in the record establishes that the guns involved in the two crimes were the same. Bausley has failed to sustain his burden of establishing that his trial counsel provided ineffective assistance because a failure to pursue a "futile or unmeritorious motion or request is not ineffective assistance." (People v. Szadziewicz, supra, 161 Cal.App.4th at p. 836.)
III.
DISPOSITION
The judgment is affirmed.
/s/_________
Humes, P.J.
We concur:
/s/_________
Margulies, J.
/s/_________
Dondero, J.