Opinion
NOT TO BE PUBLISHED
Superior Court County Super. Ct. No. F390988 of San Luis Obispo Charles S. Crandall, Judge
Jerry D. Whatley, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Keith Borjon, Supervising Deputy Attorney General, John R. Gorey, Deputy Attorney General, for Plaintiff and Respondent.
YEGAN, J.
Jeffrey Paul Smith appeals from the judgment after pleading guilty to transportation of a controlled substance for sale (Health & Saf. Code, § 11379, subd. (a)) and admitting two prior felony convictions (Health & Saf. Code, § 11370.2, subdivision (c)). The trial court sentenced him to nine years state prison. Appellant contends that the trial court erred in denying his motion to dismiss pursuant to Kellett v. Superior Court (1966) 63 Cal.2d 822 (Kellett).
Facts and Procedural History
On July 25, 2006, the San Luis Obispo County Sheriff's Narcotics Task Force had appellant under surveillance for drug trafficking. Appellant was in violation of parole and left a motel, driving with a suspended license. Task force officers requested that the San Luis Obispo Police Department make a traffic stop.
Officers stopped appellant and found 46 grams of methamphetamine, a digital scale, 300 plastic baggies, cell phones, a glass smoking pipe, marijuana, bank slips, and $3,416 cash. He was arrested and interviewed by a Narcotics Task Force officer the next day. Appellant said that most of the money in the vehicle was "'from dealing dope" and that he was on his way to pick up another quarter pound of drugs for $2,600. Appellant said that he "usually picks up between a half pound and a quarter pound six days per week."
On July 27, 2006, the San Luis Obispo Police Department filed a misdemeanor complaint for driving with a suspended license. (Case No. M390868; Veh. Code, § 14601.1, subd. (a).) Appellant entered a plea of no contest at his first court appearance on July 28, 2006.
Later that day, Deputy District Attorney Charles V. Blair, Jr. received a request from the Narcotics Task Force to prosecute appellant for trafficking narcotics. On July 31, 2006, Blair filed a felony complaint for transportation of a controlled substance and driving with a suspended license.
Appellant moved to dismiss on the ground that the complaint was barred by his no contest plea in the misdemeanor action. (Pen. Code, § 654.) Deputy District Attorney Blair declared that the had no knowledge of the prior action and indicated that it was standard practice for police agencies to directly file complaints for vehicular violations without notifying the district attorney's office.
Citing In re Dennis B. (1976) 18 Cal.3d 687, the trial court denied the motion to dismiss.
Multiple Prosecutions
Penal Code section 654 prohibits multiple punishment and, in some cases, multiple prosecution. (Neal v. State of California (1960) 55 Cal.2d 11, 21.) "The prohibition against multiple punishment is designed 'to insure that the defendant's punishment will be commensurate with his criminal liability.' [Citation.] Multiple prosecution, on the other hand, is prohibited to avoid 'needless harassment and the waste of public funds. . . .' [Citation.]" "The prohibition comes into play 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, . . .' [Citation.] Either acquittal or conviction and sentence on one charge will bar the later prosecution." (People v. Flint (1975) 51 Cal.App.3d 333, 336, fn.3.)
Penal Code 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." (Emphasis added.)
In Kellett, supra, 63 Cal.2d 822, defendant was arrested for standing on a sidewalk with a pistol. He was charged with and paled guilty to misdemeanor brandishing of a firearm. Defendant was subsequently charged with unlawful possession of a firearm by a felon based on the same incident. Our Supreme Court held that the felony action was barred by Penal Code section 654. (Id., at pp. 827-828.) "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." (Id., at p. 827.)
Unlike Kellett, the prosecutor did not learn about the prior action until October 10, 2006, when appellant announced that he would move for a dismissal. The trial court concluded that the prosecution "should have known" of the prior action but found countervailing factors. First, the misdemeanor complaint for driving with a suspended license was a direct filing by the police department. The trial court found the direct filing procedure "is designed to expedite the handling of routine misdemeanor matters such that that the district attorney doesn't have to review those files before they are filed."
Second, the trial court also found that appellant entered a quick plea at his first court appearance and that the plea was entered before the prosecutor received the Narcotics Task Force request to file the felony complaint. The prosecutor did not learn of the misdemeanor action until months later.
Third, the trial court found that the felony complaint was filed in good faith, that there was no harassment of appellant, and that the "equities don't warrant" dismissal of the felony complaint.
The trial court dismissed count 2 of the complaint for driving with a suspended license because appellant had already paled to it in the prior action.
The trial court correctly found that the felony complaint was not barred by Penal Code section 654 which "is designed to prevent harassment and to save both the state and defendants time and resources. [Citation.]" (In re Dennis B., supra, 18 Cal.3d at p. 692.)
In In re Dennis B.,a minor made an unsafe lane change and hit and killed a motorcyclist. The minor was found guilty of making an unsafe lane change and fined $10. Three weeks later, he was charged with vehicular manslaughter. The Supreme Court held that the manslaughter prosecution was not barred because "there is no evidence that a particular prosecutor actually knew of both offenses in time to prevent a multiplicity of proceedings. According to the uncontested affidavits of a deputy district attorney, at the time of defendant's first trial the district attorney's office played a limited role in the prosecution of routine traffic offenses in the Walnut Creek-Danville Municipal Court. Rather the police officer who issued the citation conducted the necessary investigation, arranged for witnesses to appear, and testified. In most instances, including the present proceeding, no deputy district attorney appeared for the People." (In re Dennis B. supra, 18Cal.3d at pp. 693-694.)
In re Dennis B. distinguished Kellett on the ground that the prosecutor did not have actual knowledge of the prior action. "The reference in Kellett to situations in which 'the prosecution is . . . aware of more than one offense' applies, however, only to intentional harassment, i.e., to cases in which a particular prosecutor has timely knowledge of two offenses but allows the multiple prosecution to proceed." (Id., at p. 693.)
The same principle applies here. Appellant could not enter a quick plea on the traffic matter and claim that the felony complaint for transporting drugs was barred. (See e.g, People v. Hart field (1970) 11 Cal.App.3d 1073, 1080-1081.) Appellant's citations are in apposite and involve cases in which the prosecutor was aware of the misdemeanor proceeding and failed to join or coordinate the actions. (People v. Bas (1987) 194 Cal.App.3d 878, 880-881 [prosecutor failed to consolidate felony and misdemeanor proceedings despite warning as to defense intentions]; Sanders v. Superior Court (1999) 76 Cal.App.4th 609, 616 [same].)
Appellant argues that the felony complaint should be dismissed to penalize prosecutors who authorize police agencies to directly file on traffic violations and minor misdemeanors. This practice, however, was approved in In re Dennis B., supra, 18 Cal.3d at page 695 because the state has a substantial interest in maintaining the summary nature of minor traffic court matters. (See also People v. Carlucci (1979) 23 Cal.3d 249, 258 [absence of prosecuting attorney at infraction trial does not violate defendant's right of due process and fair trial]; People v. Daggett (1988) 206 Cal.App.3d Supp. 1, 5 [same].) "[W]e cannot be insensitive to the equities of the state's position. There is an undeniable state interest in prosecuting serious misdemeanors and felonies. To permit defendant to be prosecuted only for a minor motor vehicle code infraction when his alleged crime was actually [trafficking drugs] 'would operate with gross unfairness to the State.' [Citation.] On balance, we believe the minimal potential for harassment and waste caused by defendant's multiple prosecution in the case at bar is outweighed by the state's interests in preserving the summary nature of traffic proceedings and insuring that a defendant charged with a felony or serious misdemeanor does not evade appropriate disposition. [Citation.]" (In re Dennis B., supra, 18 Cal.3d at p. 696.)
The judgment (order denying motion to dismiss) is affirmed.
We concur: GILBERT, P.J., PERREN, J.