Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 07F5031
Retired Associate Justice of the Court of Appeal, Third Appellant District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Following a drunken confrontation with deputies of the Shasta County Sheriff’s Department, defendant Christopher Chilton fled on foot through a patch of blackberry bushes, commandeered a Ford F-350 pickup from the Eagle Creek Ranch a quarter mile away, backed the truck through the garage door of a workshop on the ranch, loaded the truck bed with tools and equipment from inside the shop, rammed the truck into two other buildings on the ranch in an unsuccessful attempt to gain entry to those buildings, and ultimately sped off with the stolen truck and equipment. After crashing the truck into several trees and a fence just a few miles down the road, defendant again fled on foot.
Defendant was tried by jury and found guilty on one count of second degree burglary, two counts of attempted second degree burglary, and one count each of vandalism, grand theft, unlawfully taking or driving a vehicle, and hit and run. Defendant waived jury trial on a special allegation that he had previously served one prior prison term, an allegation the trial court found to be true. The trial court sentenced defendant to five years in state prison and imposed other orders.
On appeal, defendant contends that his convictions must be reversed because they violate section 654 of the Penal Code and Kellett v. Superior Court (1966) 63 Cal.2d 822 (Kellett). Defendant further contends that the evidence was insufficient to establish beyond a reasonable doubt that he was the perpetrator of the charged crimes. As will be explained more fully below, defendant is wrong on both counts. We will affirm the judgment.
All further statutory references are to the Penal Code unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
Incident at the Ono Store
On the evening of December 5, 2005, defendant arrived at the Ono Store, a combination store, bar and restaurant, in Shasta County. He was angry and intoxicated. He demanded gas money from the patrons of the store. When the patrons refused, he began to smash beer bottles against the floor. I.L., an employee at the store, called 911 and reported the incident to the Shasta County Sheriff’s Department. Sheriff’s Deputies Heberling and McDonald arrived at the scene and escorted defendant to a patrol car. Defendant began to move away from the car, informing the deputies: “I’m going to fuck you up.” Deputies McDonald and Heberling sprayed defendant with pepper spray in an unsuccessful attempt to subdue him. Defendant ran and escaped through a patch of blackberry bushes.
Burglary and Other Crimes at the Eagle Creek Ranch
Later that evening, defendant arrived at the Eagle Creek Ranch, located about a quarter mile from the Ono Store. He arrived on foot, commandeered a Ford F-350 pickup parked at the ranch, and crashed the truck through the garage door of the ranch’s workshop building. Defendant then loaded the back of the truck with several tools and other items from inside the shop. He also crashed the truck into the ranch house and barn in an unsuccessful attempt to gain entry to those buildings. Defendant then drove the truck to the ranch’s locked gate, cut the chain securing the gate with a fence-crimping tool stolen from the shop, and fled in the stolen pickup.
Defendant was unaware that James Latini and his son were parked roughly 65 yards from the ranch watching the events unfold. Latini lived a half mile south of Eagle Creek. He had received a phone call from I.L., who was also the ranch’s manager, informing him that defendant had caused a disturbance at the Ono Store and had fled from police in the ranch’s direction.
Latini and his son drove to the ranch, discovered the burglary in progress, and followed defendant after he fled. They followed defendant down Cloverdale Road for several minutes. At one point, defendant turned the F-350 around and drove straight at Latini’s truck. The two trucks stopped short of collision and squared off, front end to front end, in the middle of the road for about a minute before defendant again turned around and sped off in the stolen truck. Latini continued to follow, ultimately discovering the F-350 crashed on the side of the road. Defendant was gone.
The truck hit three trees and a fence prior to coming to rest on the side of Cloverdale Road. The property removed from the Eagle Creek Ranch was strewn about the road. Defendant was located and arrested the next day wearing the same clothes he had worn the night before. He had facial injuries from the crash and scratches on his face, arms, hands, and stomach from his encounter with the blackberry bushes. Blood on defendant’s shirt was a DNA match for that smeared on the hood of the truck and the driver’s side door handle.
Procedural History
Defendant was first tried for crimes relating to the incident at the Ono Store. Following a mistrial, defendant pled guilty to several misdemeanors: intimidating a business operator, petty theft, vandalism, unlawful public fighting, and resisting arrest.
More than one year after the trial on the Ono Store case, defendant was charged with several crimes relating to his actions at the Eagle Creek Ranch: one count of second degree burglary, two counts of attempted second degree burglary, and one count each of vandalism, grand theft, unlawfully taking or driving a vehicle, hit and run, and driving on a suspended license. The information also alleged that defendant had served a prior prison term for purposes of section 667.5, subdivision (b).
Defendant moved to dismiss the information under section 654 and Kellett, supra, 63 Cal.2d 822. The trial court denied defendant’s motion, and after a rehearing on the Kellett motion, again denied the motion. The court subsequently granted a prosecution motion to dismiss the driving on a suspended license charge. Following jury trial, defendant was convicted on the remaining seven counts. Defendant waived a jury trial on the special allegation of a prior prison term. The trial court found this allegation to be true, and sentenced defendant to five years in state prison.
Defendant filed a timely notice of appeal.
DISCUSSION
I
Defendant’s first contention is that his convictions must be reversed because the statutory bar against multiple prosecutions required dismissal of this case.
Section 654, subdivision (a) proscribes both multiple punishment and multiple prosecution. The bar against multiple prosecution states: “An acquittal or conviction and sentence under any one [provision of law] bars a prosecution for the same act or omission under any other.”
Section 654, subdivision (a) states in full: “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.”
In Kellett, supra, 63 Cal.2d 822, our Supreme Court held: “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.” (63 Cal.2d at p. 827.) Kellett was arrested while standing on the sidewalk with a gun in his hand. (Id. at p. 824.) He was initially charged with exhibiting a firearm in a threatening manner, a misdemeanor. (Ibid.) Kellett was subsequently charged in a separate case with felony possession of a concealable weapon by a person who has been convicted of a felony. (Ibid.) After pleading guilty to the misdemeanor charge, Kellett was sentenced to a 90-day jail term. (Ibid.) His subsequent motion to dismiss the felony offense under section 654 was denied by the trial court. (Ibid.)
The Supreme Court issued a writ of prohibition preventing Kellett’s trial because the same act or course of conduct (carrying the gun on the sidewalk) played a significant part in both the misdemeanor and felony offenses, and the misdemeanor offense resulted in conviction and sentence. (Kellet, supra, 63 Cal.2d at p. 827.) Consequently, failure to unite these offenses resulted in a bar to the subsequent prosecution. (Ibid.)
However, as the Court of Appeal explained in People v. Cuevas (1996) 51 Cal.App.4th 620, 624 (Cuevas): “Kellett does not require, nor do the cases construing it, that offenses committed at different times and at different places must be prosecuted in a single proceeding.” There, police purchased cocaine from Cuevas on two separate occasions. Her residence was subsequently searched, and cocaine and currency was seized. Cuevas was charged with possession of cocaine for sale, pled guilty, and served 90 days in the county jail. (Id. at p. 622.) A subsequent prosecution for the two prior cocaine sales was held to be permissible under section 654 and Kellett regardless of the fact that the prosecutor was aware of the prior sales at the time Cuevas was charged with possession for sale. (Id. at p. 623.)
Similarly, in People v. Ward (1973) 30 Cal.App.3d 130, 136 (Ward), the Court of Appeal held that the same course of conduct did not play a significant part in the commission of two sex offenses committed against separate victims despite the fact that both offenses occurred in the same car during the same night. There, Ward picked up the first victim at her residence, drove her to an alley, and forcibly raped her. (Id. at pp. 132-133.) He then placed her in the trunk and drove back to her residence to pick up her 17-year-old daughter, the second victim. (Id. at p. 133.) While driving, Ward forced the second victim to orally copulate him; he then pulled over and raped her. (Ibid.) Initially charged with oral copulation in San Bernadino County, defendant pled guilty and was sentenced. Subsequently charged with kidnapping and rape in Los Angeles County, the trial court denied Ward’s motion to dismiss under section 654 and Kellett. (Id. at p. 134.)
The Court of Appeal affirmed. As the court explained: “Kellett is expressly limited to cases in which ‘the same act or course of conduct plays a significant part’ in more than one offense. [Citation.] . . . Here, it cannot be said that ‘the same act[s] or course[s] of conduct [committed against the first victim] played a significant part’ in the sexual offense against the second victim. The crimes were committed at different locations, at different times, against different victims, and with different objectives. The mere fact that they occurred in defendant’s vehicle during the same night does not connect them as parts of a continuous course of conduct. [Citation.]” (Ward, supra, 30 Cal.App.3d at p. 136.)
In this case, defendant’s course of conduct at the Ono Store (demanding gas money, smashing beer bottles, and resisting arrest) did not play a significant part in the offenses perpetrated against the owners of the Eagle Creek Ranch. Nor did defendant’s course of conduct at the Eagle Creek Ranch (stealing a pickup and burglarizing a workshop) play a significant part in the Ono Store incident. As was the case in Ward, supra, 30 Cal.App.3d 130, defendant’s crimes were committed at different times, at different locations, against different victims, and with different objectives. The objective of the Ono Store incident was to intimidate store patrons into giving defendant gas money. When sheriff’s deputies arrived, the objective shifted to escaping from law enforcement. By the time defendant reached the Eagle Creek Ranch, a quarter mile away and over two hours later, his objective was much different: steal a pickup, break into ranch buildings, load the pickup with as much stolen property as possible, and escape undetected. The mere fact that defendant perpetrated the crimes at the Eagle Creek Ranch the same night that he harassed patrons of the Ono Store and resisted arrest does not connect the two events as a continuous course of conduct. Consequently, defendant’s subsequent prosecution for the crimes perpetrated at the Eagle Creek Ranch was not barred by section 654 or Kellett.
Defendant asserts that his course of conduct at the Ono Store did play a significant part in the offenses at the Eagle Creek Ranch because the two cases “had a number of witnesses and potential witnesses in common,” and his “placement . . . at the Ono Store was crucial in identifying [defendant] as the perpetrator in the ranch case.” Defendant misunderstands the relevant analysis. While defendant’s presence at the Ono Store did supply some evidence that he was the perpetrator of the crimes at Eagle Creek, the relevant question is not whether defendant’s presence at the Ono Store was helpful in establishing his identity, but whether “the evidence needed to prove one offense necessarily supplies proof of the other.” (People v. Hurtado (1977) 67 Cal.App.3d 633, 636 (Hurtado).)
In Hurtado, the Court of Appeal held that separate prosecutions for drunk driving and possession of heroin were not barred by section 654 regardless of the fact that police discovered 20 balloons of heroin between Hurtado’s legs when he was stopped for drunk driving. (Hurtado, supra, 67 Cal.App.3d at p. 637.) As the court explained: “[T]he evidentiary pictures which had to be painted to prove the drunk driving and narcotics offenses were sufficiently distinct so as to permit separate prosecutions of the two offenses. . . . Evidence in the two cases, was for the most part mutually exclusive, the only common ground being the fact that defendant was in the moving automobile in possession of the heroin at the same time that he was under the influence of alcohol. Such a trivial overlap of the evidence, however, . . . does not mandate the joinder of these cases. [Citation.]” (Id. at pp. 636-637.)
Similarly, here, the evidence needed to establish the offenses committed at the Ono Store did not necessarily supply proof of the offenses at Eagle Creek. Stated differently, the fact that defendant harassed the patrons of the Ono Store and resisted arrest immediately thereafter was not necessary to prove that he subsequently stole the F-350 pickup parked at the Eagle Creek Ranch, broke into the workshop, loaded the truck bed with stolen equipment, and ultimately crashed the truck on the side of Cloverdale Road. The only overlap in evidence between the two cases concerned defendant’s presence at the Ono Store prior to commission of the offenses at Eagle Creek. Such a trivial overlap does not mandate joinder. This is so regardless of the fact that defendant’s presence at the Ono Store supplied some evidence that he committed the crimes at the Eagle Creek Ranch later in the evening. (People v. Martin (1980) 111 Cal.App.3d 973, 978 [Martin stole a shotgun during a burglary; first prosecuted for possession of the (now sawed-off) shotgun; subsequent prosecution for burglary upheld despite the fact that possession of the shotgun supplied some evidence that Martin had committed the burglary].)
Having determined that the same course of conduct did not play a significant part in the Ono Store offenses and the Eagle Creek offenses, subsequent prosecution for the offenses at the Eagle Creek Ranch was permissible regardless of whether the prosecution was aware or should have been aware of both incidents. (See Cuevas, supra, 51 Cal.App.4th at p. 623.) Similarly, subsequent prosecution was permissible regardless of whether the prosecutor demonstrated good cause for severance of the offenses. (See Kellett, supra, 63 Cal.2d at p. 827 [good cause for severance is an exception to the subsequent prosecution bar which only arises if the same course of conduct plays a significant part in more than one offense].) We, therefore, decline to address defendant’s contentions that: (1) the prosecution knew of the Eagle Creek offenses at the time of charging him with the Ono Store offenses; (2) the prosecution should have rushed the DNA analysis in order to bring the Eagle Creek charges at the same time as the Ono Store charges; and (3) the prosecution failed to demonstrate good cause for severance. Because the same course of conduct did not play a significant part in both incidents, there simply was no duty on the part of the prosecution to join the incidents into a single prosecution.
II
Defendant’s final contention is that the evidence was insufficient to establish beyond a reasonable doubt that he was the perpetrator of the charged crimes. This contention is likewise without merit.
“In assessing the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] Reversal on this ground is unwarranted unless it appears ‘that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].’ [Citation.]” (People v. Bolin (1998) 18 Cal.4th 297, 331.) “The standard of appellate review is the same when the evidence of guilt is primarily circumstantial. ‘Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court which must be convinced of the defendant’s guilt beyond a reasonable doubt. “‘If the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment.’”’ [Citations.]” (People v. Holt (1997) 15 Cal.4th 619, 668.)
In his opening brief, defendant accurately, although incompletely, cites the circumstantial evidence establishing his identity as the perpetrator of the charged offenses at the Eagle Creek Ranch: (1) defendant’s presence at the Ono Store, a quarter mile from the Eagle Creek Ranch, less than three hours before the commission of the crimes, wearing blue jeans and a hooded sweatshirt; (2) James Latini’s description of the perpetrator as a white male, medium build, standing about six- feet four-inches tall, wearing blue jeans and a heavy coat; (3) defendant’s capture the next day in the vicinity of the ranch wearing the same clothes he wore the night before; and (4) blood on defendant’s shirt was a DNA match for blood found on the exterior of the Ford F-350 pickup. To defendant’s list of circumstantial evidence establishing his identity, we must add the following: (1) the fact that defendant is a white male, medium build, standing six-feet five-inches tall; and (2) when defendant was arrested the following day, he had a split lower lip, a cut and swollen eye, and his nose was also swollen, injuries consistent with the accident given the fact that the driver’s side of the pickup sustained relatively little damage.
According to defendant, “it is apparent that the evidence was insufficient as a matter of law that [he] was the person responsible for the crimes committed at the Eagle Creek Ranch.” Not so. In People v. Daya (1994) 29 Cal.App.4th 697, at pages 708, 709, we explained: “In a case built solely on circumstantial evidence, none of the individual pieces of evidence ‘alone’ is sufficient to convict. The sufficiency of the individual components, however, is not the test on appeal. Rather, in reviewing an attack on the sufficiency of the evidence, we need only determine whether a reasonable trier of fact, considering the circumstantial evidence cumulatively, could have found defendant guilty . . . beyond a reasonable doubt.”
The circumstantial evidence in this case, viewed cumulatively, amply supports the jury’s finding that defendant was the perpetrator of the crimes at the Eagle Creek Ranch.
DISPOSITION
The judgment is affirmed.
We concur: ROBIE, Acting P. J., CANTIL-SAKAUYE, J.