Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County. No. F08901959 W. Kent Hamlin, Judge.
Elizabeth Egan, District Attorney, E. Terrence Woolf and Blake Julian Gunderson, Deputy District Attorneys, for Plaintiff and Appellant.
No appearance for Defendant and Respondent.
OPINION
Wiseman, Acting P.J.
Procedural and factual histories
On May 20, 2006, Stanley Willie Hill was arrested for driving under the influence (DUI), possession of an open container of alcohol, possession of marijuana in a vehicle, possession of a controlled substance, and use of a loud vehicle sound system. At the time he was arrested, Hill gave his brother’s name and birthday as his own. He also used his brother’s name and birth date when processed at the Fresno Police Department. Three days later, the arresting officer was informed of Hill’s true name and identity. Hill was charged with the drug- and alcohol-related offenses, but not for any offense related to giving his brother’s name. Pursuant to a negotiated plea agreement, Hill entered a guilty plea on September 26, 2006, to a violation of Vehicle Code section 23152, subdivision (a), and the other counts were dismissed. Hill was sentenced on October 25, 2006.
In early 2007, Hill’s brother contacted the Fresno Police Department to report that, despite efforts by the department to correct the arrest records, the brother had been notified by the Department of Motor Vehicles that his driver’s license had been suspended due to the DUI arrest. A second phone call to the police department was made in the fall of 2007. In March 2008, Hill was charged with one count of identity theft, a violation of Penal Code section 530.5, subdivision (a).
All further references are to the Penal Code.
Hill moved to have the charge dismissed on the ground that the complaint was an impermissible multiple prosecution of offenses transactionally related and committed at the same time, citing Kellett v. Superior Court (1966) 63 Cal.2d 822 (Kellett). The trial court agreed and dismissed the complaint. The People have appealed. Hill, although provided notice of the appeal and his right to have appointed counsel represent him, has not appeared.
Discussion
The People raise a single issue on appeal: Did the trial court correctly conclude that the prosecution for the identity theft violated the rule against multiple prosecutions of transactionally related crimes committed at the same time? The analysis rests on the interpretation and application of Kellett, supra, 63 Cal.2d 822.
In Kellett, the Supreme Court considered the policy factors underlying section 654. Section 654 contains two separate provisions. The first precludes multiple punishments where an act or omission is made punishable by different penal provisions. The second bars multiple prosecutions and is a safeguard against harassment of a defendant by successive prosecutions. It is not necessarily related to the punishment to be imposed. (Neal v. State of California (1960) 55 Cal.2d 11, 21.) The court in Kellett concluded that section 654 prohibited successive prosecutions in order to avoid (1) needless harassment of the defendant and (2) the waste of public funds where the prosecution was or should have been aware of more than one offense in which the same act or course of conduct played a significant part. (Kellett, supra, 63 Cal.2d at pp. 826-827.) Failure to unite all these offenses results in a bar to subsequent prosecution of any offense omitted in the initial proceedings that resulted in a conviction and sentence. (Id. at p. 827.)
In Kellett, the defendant was arrested under section 417 for brandishing a firearm. At a preliminary hearing, it was proven that the defendant previously had been convicted of a felony. The prosecutor later filed an information alleging that the defendant had violated section 12021, being a felon in possession of a concealable weapon. The defendant pled guilty to a misdemeanor charge of brandishing a firearm and was sentenced. He subsequently filed a motion to dismiss the information. The California Supreme Court held that the defendant was entitled to a dismissal of the felony gun-possession charge given section 654’s bar against multiple prosecutions. The court concluded “that both criminal defendants and the public fisc are entitled to protection from successive prosecutions for closely related crimes.… [¶] 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 pp. 826-827.)
As we have stated, the Kellett rule seeks to prevent harassment of defendants, avoid needless repetition of evidence, and conserve the resources and time of both the state and the defendant. (People v. Tirado (1984) 151 Cal.App.3d 341, 354, disapproved on another ground in People v. Mendez (1999) 19 Cal.4th 1084.) In order for the ruleto apply, however, the offenses must be transactionally related and not just joinable. The offenses must arise out of the same act, incident, or course of conduct. (People v. Turner (1985) 171 Cal.App.3d 116, 129.) Kellett is expressly limited to cases in which the same act or course of conduct plays a significant part in more than one offense. (People v. Ward (1973) 30 Cal.App.3d 130, 136.) The existence of a single course of conduct as required by Kellett has been found where two prosecutions involved possession of the same gun (Kellett, supra, 63 Cal.2d at p. 824); thefts were committed at the same time (Sanders v. Superior Court (1999) 76 Cal.App.4th 609, 612, 615); the defendant committed and aided and abetted the same robbery (In re Benny G. (1972) 24 Cal.App.3d 371, 374-376); and the defendant drove under the influence in a vehicle that he was charged with having stolen (People v. Flint (1975)51 Cal.App.3d 333, 335-336).
In contrast, Kellett’s bar of multiple prosecutions has been found not to apply to kidnap-rapes where the first victim was driven from her residence to an isolated location and the defendant later returned to the residence and kidnapped the second victim, driving her to a different isolated location on the same night (People v. Ward, supra, 30 Cal.App.3d at pp. 132-133, 136); to separate cocaine transactions undertaken on separate days (People v. Cuevas (1996) 51 Cal.App.4th 620, 623-624, cited with approval in People v. Carpenter (1999) 21 Cal.4th 1016, 1038); where the defendant was prosecuted for possessing a sawed-off shotgun that had been taken in a burglary and later prosecuted for the burglary itself (People v. Martin (1980) 111 Cal.App.3d 973, 977-978); where a defendant was charged with hit-and-run and reckless driving and later with possession of less than an ounce of marijuana discovered in the car (Stackhouse v. Municipal Court (1976) 63 Cal.App.3d 243, 247); and where a defendant was stopped for DUI and tried to hide a cigarette package containing 20 balloons of heroin between his legs (People v. Hurtado (1977) 67 Cal.App.3d 633). Connection in time or physicality does not control. The issue is whether the crimes are so intertwined that separate prosecution should not be allowed. (Kellett, supra, 63 Cal.2d at p. 827.)
One test that has been used to determine whether Kellett is applicable is whether the evidentiary showing needed to prove one offense necessarily supplies proof of the other. (People v. Flint, supra, 51 Cal.App.3d at p. 338; People v. Hurtado, supra, 67 Cal.App.3d at p. 636.) Another test is to determine whether the crimes in question have a distinct beginning, duration, and end. If they do, and there is no overlap, simultaneous prosecution is not required even though joinder may be permitted under section 954. (People v. Douglas (1966) 246 Cal.App.2d 594, 599.)
Section 954 allows the prosecution to charge two or more different offenses connected in their commission, or having a common element of substantial importance in their commission, under a separate count. This is a permissive-joinder statute, not a mandatory statute. (People v. Leney (1989) 213 Cal.App.3d 265, 269.)
After applying the applicable law to this case, we conclude that the trial court erred in dismissing the identity-theft charge. The crimes are not so interrelated as to require joint prosecution. Although the evidence of the offenses is recorded in the same police report (although more accurately an initial police report memorializes the DUI/drug charges and its supplemental reports record the false identity theft), the factual evidence required to prove the DUI and drug charges is distinct from the evidence needed to prove the false-identity charge. All that is needed to prove the identity theft is proof that Hill was arrested and that, at the time of the arrest, he willfully gave a false name for an unlawful purpose without the consent of his brother. (§ 530.5, subd. (a).) The circumstances of the arrest are not relevant to the identity-theft charge. In contrast, the evidence needed to prove the DUI and drug charges does not include evidence of Hill’s false identification. Hill’s true identity was not discovered until several days after his arrest and has no bearing on whether he was guilty of the DUI and drug charges. Factually, the crimes are completely distinct, sharing no common elements or evidence.
In addition, the identity offense has a separate and distinct beginning, duration, and end. It began only after the DUI and drug offenses had been discovered and ended with Hill’s arrest. (People v. Douglas, supra, 246 Cal.App.2d at p. 599.) The false-identity crime did not start until Hill was arrested, continued until booking, and was fueled by a different motive—the desire to avoid penal consequence for the DUI and drug charges. (Neal v. State of California, supra, 55 Cal.2d at p. 19 [whether course of criminal conduct is divisible giving rise to more than one act within meaning of § 654 depends on intent and objective of actor].) There is no overlapping act or objective tying the crimes together, unlike the facts in Kellet. Here, there is no same act or course of conduct playing a significant part in both the latter and earlier offenses.
We conclude there is nothing unfair in allowing Hill to enter a no contest plea to the DUI charges, with the remaining drug charges being dismissed, not knowing that he would be prosecuted for the identity theft. Hill obtained the full benefit of his bargain; the drug charges were dismissed. The fact that Hill entered a plea to the earlier prosecution does not change the nature of the charges brought in the later prosecution or the rule in Kellett. Other cases have recognized that allowing a defendant to pled guilty to one charge and then claim a subsequent prosecution is barred because of the early plea is likely to lead to tactical maneuvering by a defendant who has committed more than one crime and wishes to avoid punishment for all. (See People v. Hurtado, supra, 67 Cal.App.3d 633.)
Further, there is another strong policy at stake here, that of prosecutorial discretion. “[P]rosecutorial discretion is basic to the framework of the California criminal justice system. [Citations.] This discretion, though recognized by statute in California, is founded upon constitutional principles of separation of powers and due process of law.” (People v. Jerez (1989) 208 Cal.App.3d 132, 137-138; see also Gov. Code, § 26501; People v. Wallace (1985) 169 Cal.App.3d 406, 408-411.) Charging discretion includes a determination of whether the evidence warrants prosecution, a determination of the appropriate charges, and a determination of whether there is an alternative to formal criminal prosecution. (People v. Jerez, supra, at pp. 137-138.) Here, the prosecutor for whatever reason decided not to charge the false-identity count until later. Whether the reason was the persistence of the victim, a new recognition of the extent of his harm, the addition of new prosecutorial staff as a result of additional funding, or a change in office policy, it does not matter; the decision whether to prosecute rests within the charging discretion of the district attorney.
There is nothing unfair about allowing the later charge. As the trial court pointed out, there is a great public harm in allowing these crimes to go unprosecuted. (See Stackhouse v. Municipal Court, supra, 63 Cal.App.3d at p. 247; see also People v. Turner, supra, 171 Cal.App.3d at p. 129 [requiring charging of all possible crimes in single prosecution, regardless whether transactionally related, encourages prosecutors to throw book at defendant to prevent defendant from gaining immunity].)
Since it was error to dismiss the charge, the order of dismissal is reversed.
DISPOSITION
The trial court’s order dismissing the identity-theft charge is reversed and criminal proceedings are reinstated.
WE CONCUR: Gomes, J., Dawson, J.