Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 08F06188
SCOTLAND, P. J.
After his motion to dismiss the prosecution was denied, defendant Mickey Leon Betti, Jr., entered a negotiated plea of no contest to being a convicted felon in possession of a semiautomatic handgun and admitted a related gang enhancement. In accordance with the agreement, he was placed on probation with conditions including that he serve one year in the county jail.
Having obtained a certificate of probable cause to raise the issue on appeal, defendant renews the argument he made in the trial court in support of his motion to dismiss the case. He contends the prosecution violated the prohibition against successive prosecutions for offenses arising out of the same act or course of conduct. (Pen. Code, § 654; Kellett v. Superior Court (1966) 63 Cal.2d 822 (hereafter Kellett). We disagree and shall affirm the judgment (order of probation).
FACTS AND PROCEDURAL BACKGROUND
When a police gang detective and other officers went to the family residence of a probationer to conduct a probation search, they were directed to another residence where the probationer may have been renting a room. There, the officers found the probationer along with defendant, defendant’s wife, and another cohabitant of the home.
Defendant, the probationer, and the other cohabitant were members of the same subset of a criminal street gang. Officers found a.22-caliber semiautomatic handgun in a kitchen cabinet along with ammunition. Additional.22-caliber ammunition was found inside a couch in the garage. The garage was locked, and defendant had the key. A sock containing.32-caliber ammunition was found in an upstairs bedroom occupied by defendant and his wife.
When questioned about the gun, the cohabitant admitted he was aware of its presence, denied owning it, and said that the fingerprints of everyone present would be found on the gun. Defendant, who had two prior convictions involving guns, denied any knowledge of the.22-caliber handgun found in the kitchen cabinet, but said the.32-caliber bullets found in the bedroom were his.
The detective could not remember if he submitted the gun for fingerprinting, and his report did not include results of fingerprint tests. In his mind, the fact there was.22-caliber ammunition in the garage to which defendant had a key was sufficient to prove that he possessed the.22-caliber handgun found in the kitchen. However, the intake deputy district attorney concluded there was insufficient evidence to prove defendant owned or possessed the gun. Thus, only a misdemeanor complaint (which is not part of the record on appeal) was filed charging defendant, a convicted felon, with unlawfully possessing the.32-caliber ammunition found in the bedroom. (Pen. Code, § 12316, subd. (b)(1); further section references are to the Penal Code.) Defendant pled guilty to the misdemeanor possession of ammunition and served 30 days in county jail.
Thereafter, the detective discovered new evidence connecting defendant to the handgun found in the kitchen. As he did on a weekly basis, the detective reviewed MySpace websites looking for information connecting account holders with gang activity. Looking through photographs on web sites of new MySpace members, he recognized a picture that included the probationer and defendant. He had not seen it previously. In the photograph, defendant is holding a gun in the air. The gun appeared identical to the.22 semiautomatic handgun found during the probation search. According to the detective, gang members display such photographs on their MySpace websites to “advertise” that they are dangerous, thus helping them to continue their criminal conduct by “mak[ing] the community afraid to work with the police to stop the street gang.”
Based on the photograph, the detective sought an arrest warrant for defendant and renewed a request to prosecute him for possessing the.22-caliber semiautomatic handgun. After defendant’s arrest, his wife told the detective that the photograph included two of her sisters, taken at one of their birthday parties in November or December 2007.
Defendant was charged with being a felon in possession of a firearm (§ 12021, sub. (a)(1)), participating in a criminal street gang (§ 186.22, subd. (a)), and a criminal street gang enhancement (§ 186.22, subd. (b)(1)).
He moved to dismiss the charges on the ground they “arose out of the same course of conduct from which a prior prosecution against [him] was brought and to which [he] pled guilty and was sentenced.” At the hearing in superior court on the motion, the prosecutor argued that, although it would have been conceivable to have previously accused defendant of the gun crime on a theory of joint possession, his office believed the evidence was too weak at that time to meet the burden of proof beyond a reasonable doubt. The People also elected not to prosecute at that time because the gun crime was “distinct from the felon in possession of bullets case.”
Denying the motion to dismiss, the trial court concluded that section 654 and the decision in Kellett, supra, 63 Cal.2d 822 did not apply because the gun offense was distinct from the ammunition offense. In any event, the court held, even if the crimes arose out of the same course of conduct, the prosecution was unable to proceed on the gun charge at that time because it lacked sufficient evidence to prove the charge beyond a reasonable doubt, and the photo could not have been found with the exercise of due diligence.
DISCUSSION
Section 654 prohibits both multiple punishment and multiple prosecution for separate offenses arising out of a single act or omission, or a course of conduct pursuant to a single objective. (People v. Britt (2004) 32 Cal.4th 944, 951-952, 954.) “‘Section 654’s preclusion of multiple prosecution [“acquittal or conviction and sentence under any [provision of law making an act or an omission punishable as a crime] bars a prosecution for the same act or omission under any other [such provision of law]”] is separate and distinct from its preclusion of multiple punishment....’ [Citation.]” (Id. at p. 950; People v. Bellacosa (2007) 147 Cal.App.4th 868, 875, fn. 2.)
“The rule against multiple prosecutions is a procedural safeguard against harassment” (Kellett, supra, 63 Cal.2d at p. 825);when a defendant commits an act or engages in a course of conduct that gives rise to multiple charges, “[i]t would constitute wholly unreasonable harassment... to permit trials seriatim until the prosecutor is satisfied with the punishment imposed.” (Id. at pp. 825-826.) “In addition to preventing harassment, joinder avoids [the] needless repetition of evidence and saves the state and the defendant time and money.” (Id. at p. 826.)
“If needless harassment and the waste of public funds are to be avoided, some acts that are divisible for the purpose of punishment must [nonetheless] be regarded as being too interrelated to permit their being prosecuted successively”;accordingly,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.” (Kellett, supra, 63 Cal.2d at p. 827 [italics added]; compare People v. Cuevas (1996) 51 Cal.App.4th 620, 624-626 [the prosecution’s awareness of independent offenses does not require a single prosecution of all]; People v. Ward (1973) 30 Cal.App.3d130, 136.)
Interpretations of section 654 and Kellett allow successive prosecutions when “the practicalities of the two crimes demanded separate proofs,” as opposed to “a recycling of much of the same evidence” as would occur in proving a defendant’s theft of a car in which he was driving under the influence of alcohol. (People v. Flint (1975) 51 Cal.App.3d333, 337-338; compare, People v. Martin (1980) 111 Cal.App.3d973, 978 [proof of a culprit’s participation in a burglary overlaps minimally with proof of his possession of a shotgun that the culprit took in the burglary and later sawed off; the burglary “did not play ‘a significant part’” in the crime of having sawed off the shotgun and possessed it in the illegal form]; People v. Hurtado (1977) 67 Cal.App.3d633, 636-637.)
Even where the proof of the offenses is entwined, section 654 does not apply where the prosecutor is unable to charge one of the crimes at the outset because facts essential to sustain the charge have not yet occurred or not yet been discovered by the prosecutor despite the exercise of due diligence. (People v. Davis (2005) 36 Cal.4th 510, 558.) Whether this exception applies is a question of fact. (Ibid.)
We do not need to decide whether the simultaneous possession of a.22-caliber handgun and unrelated.32-caliber ammunition is not an interrelated course of conduct involving the recycling of the same evidence--which would preclude successive prosecution even though separately punishable. Such a determination is unnecessary because substantial evidence supports the trial court’s finding that the prosecution lacked sufficient evidence to plead and prove the gun charge at the outset, and that the photograph which later provided the necessary evidence could not have been found with the exercise of due diligence. In other words, this subsequent prosecution on the gun charge falls within the exception to section 654 articulated in People v. Davis, supra, 36 Cal.4th at page 558.
Defendant disagrees, relying in part on the cohabitant’s comment to investigating officers that the fingerprints of everyone in the house would be found on the handgun. But such speculation (by a gang member who undoubtedly would assert his right against self-incrimination and not testify at trial) was insufficient to charge defendant with the gun offense. Defendant also relies on the detective’s opinion the evidence at the outset was sufficient to support the gun charge as well as the ammunition charge. However, it is the district attorney’s office, not the investigating officer, which makes the determination whether it has sufficient evidence to file charges that can be proved beyond a reasonable doubt.
In light of the number of gang members residing at the house, the difference between the caliber of the ammunition that was found in defendant’s bedroom and the caliber of the gun that was found elsewhere, and the place in which the gun was found (a kitchen cabinet where others in the residence could have put the gun), the district attorney’s office acted reasonably--indeed commendably--in concluding the gun crime should not be filed against defendant at the outset because there was a lack of sufficient evidence to prove beyond a reasonable doubt that he was guilty of the crime. In fact, to file a charge the prosecution feels it cannot prove is unethical overcharging that would “aggravate the very harassment [that section 654] was designed to alleviate”; thus, we decline to construe the statute as “impelling a prosecutor filing on one charge to throw the book at the defendant in order to prevent him from acquiring immunity against other potential charges and to protect the prosecutor from accusations of neglect of duty. Such a rule would radically alter the provisions now governing permissive joinder of offenses in a single accusatory pleading, by compelling an indiscriminate joinder of all offenses [regardless of how weak the evidence is to support them].” (People v. Douglas (1966) 246 Cal.App.2d 594, 599.)
Simply stated, rather than harass defendant by withholding the gun charge, the prosecution chose not to harass defendant by charging a crime the prosecution felt it could not prove beyond a reasonable doubt. This action advanced, rather than undermined, the purpose of section 654 to prevent harassment of a person accused of committing crimes. (Kellett, supra, 63 Cal.2d at p. 825.)
We also reject defendant’s attack on the trial court’s finding that due diligence by the detective would not have revealed the photograph of defendant holding the.22 semiautomatic handgun while standing with the probationer and another gang member. Defendant faults the detective for not finding the photograph until two months after defendant’s arrest. However, there is no evidence that the November 2007 photograph was available any earlier than its discovery in April 2008. The detective regularly checked the Internet for gang-related evidence, but did not encounter the photograph until it was part of the web page of a new user. This evidence supports a reasonable inference that, if the photograph had been accessible to the detective at the time of defendant’s arrest, he would have found it. Defendant also faults the detective for not having the gun checked for fingerprints. But, other than speculation, there is nothing to support a conclusion that fingerprint analysis would have revealed defendant’s prints on the gun.
In sum, the evidence supports the trial court’s finding that evidence essential to the successful prosecution of defendant on the gun possession was lacking at the outset and would not have been discovered through due diligence. Hence, this case comes within the exception to section 654 articulated in People v. Davis, supra, 36 Cal.4th at page 558, and the trial court correctly denied defendant’s motion to dismiss the case.
DISPOSITION
The judgment (order of probation) is affirmed.
We concur: SIMS , J., BUTZ , J.