Opinion
A156628
10-09-2019
Saqib ASLAM, Petitioner, v. The SUPERIOR COURT OF the CITY AND COUNTY OF SAN FRANCISCO, Respondent; The People, Real Party in Interest.
Riordan & Horgan, Dennis P. Riordan, Donald M. Horgan, San Francisco; Boersch & Shapiro, Boersch & Illovsky, Matthew Dirkes, for Petitioner. No appearance for Respondent. Xavier Becerra, Attorney General, Catherine Rivlin, Deputy Attorney General for Real Party in Interest.
Riordan & Horgan, Dennis P. Riordan, Donald M. Horgan, San Francisco; Boersch & Shapiro, Boersch & Illovsky, Matthew Dirkes, for Petitioner.
No appearance for Respondent.
Xavier Becerra, Attorney General, Catherine Rivlin, Deputy Attorney General for Real Party in Interest.
BROWN, J. A jury convicted defendant Saqib Aslam of offering a false document in violation of Penal Code section 115 but acquitted him of perjury under section 118. After trial, the trial court vacated the section 115 conviction on the ground that the prosecution should have charged defendant with violating a more specific statute, Vehicle Code section 20, and allowed the prosecution to amend the information to add that charge. We now decide whether the prosecution of defendant under the more specific statute violates double jeopardy protections or the statutory bar against successive prosecutions. On the facts here presented, we conclude it violates neither and will deny defendant's petition for writ of prohibition or mandate.
Unless otherwise noted, all statutory references are to the Penal Code.
BACKGROUND
In April 2016, the prosecution charged defendant with one count of offering a false document ( § 115, subd. (a) ), and one count of perjury ( § 118, subd. (a) ), both felonies. Both charges were based on defendant's alleged submission of a Department of Motor Vehicles (DMV) "Request for Confidentiality" form, which falsely stated that defendant's brothers were his children. A jury convicted defendant of offering a false document, but acquitted him of perjury.
Following trial, defendant moved to vacate his section 115 conviction, arguing that under In re Williamson (1954) 43 Cal.2d 651, 276 P.2d 593 ( Williamson ), the prosecution was required to charge defendant under Vehicle Code section 20, a more specific statute that makes it a misdemeanor to knowingly make a false statement in a document filed with the DMV. (See People v. Murphy (2011) 52 Cal.4th 81, 86, 127 Cal.Rptr.3d 78, 253 P.3d 1216 ["Under the Williamson rule, if a general statute includes the same conduct as a special statute, the court infers that the Legislature intended that conduct to be prosecuted exclusively under the special statute"].) The court agreed that Williamson applied and that the prosecution therefore should have charged defendant with violating Vehicle Code section 20. The court allowed the prosecution to add a count under Vehicle Code section 20 to the information, then vacated the Penal Code section 115 conviction.
Defendant did not contest the prosecution's ability to amend the information to add the Vehicle Code section 20 count. Nor has defendant argued in this writ proceeding that the amendment was impermissible.
Defendant moved to dismiss the Vehicle Code section 20 count, arguing it was charged beyond the five-year limitations period in Vehicle Code section 40004. The trial court denied defendant's motion. Defendant raised the same statute of limitations argument in a prior writ petition, which we denied. Defendant petitioned for review in the Supreme Court. The Supreme Court denied the petition for review, but did so "without prejudice to petitioner raising a claim pursuant to Kellett v. Superior Court (1966) 6[3] Cal.2d 822 [48 Cal.Rptr. 366, 409 P.2d 206] in [the] superior court."
In the trial court, defendant moved to dismiss the Vehicle Code section 20 count. Defendant argued that the constitutional protection against double jeopardy prohibited prosecution under Vehicle Code section 20 because Vehicle Code section 20 is a lesser included offense of perjury, a crime for which he had already been acquitted. Defendant also argued that prosecution under Vehicle Code section 20 contravened the Supreme Court's decision in Kellett , a case interpreting Penal Code section 654 ’s prohibition against successive prosecutions of offenses. ( Kellett , supra , 63 Cal.2d at p. 827, 48 Cal.Rptr. 366, 409 P.2d 206 (Kellett).) The trial court rejected both arguments and denied the motion.
Defendant filed the instant petition for writ of prohibition or mandate, arguing, as he did in the trial court, that further prosecution of the Vehicle Code section 20 count violates both double jeopardy principles and section 654, as interpreted by Kellett . After receiving preliminary briefing from the parties, we issued an order to show cause.
DISCUSSION
I. Double Jeopardy
We begin with defendant's argument that the constitutional protections against double jeopardy prohibit prosecution of the Vehicle Code section 20 count because it is a lesser included offense of perjury.
The double jeopardy clauses of the United States and California Constitutions ensure a person shall not be placed twice "in jeopardy" for the same offense. ( U.S. Const., 5th Amend; Cal. Const., art I, § 15.) As relevant to this case, the proscription against double jeopardy "protects persons from being consecutively charged with violation of the same law or violation of laws so related that conduct prohibited by one statute is necessarily included within conduct prohibited by the other." ( In re Dennis B. (1976) 18 Cal.3d 687, 691, 135 Cal.Rptr. 82, 557 P.2d 514.) Section 1023 codifies the prohibition against consecutively charging included offenses, stating: "When the defendant is convicted or acquitted or has been once placed in jeopardy upon an accusatory pleading, the conviction, acquittal, or jeopardy is a bar to another prosecution for the offense charged in such accusatory pleading, ... or for an offense necessarily included therein , of which he might have been convicted under that accusatory pleading." ( § 1023, italics added; see also People v. Fields (1996) 13 Cal.4th 289, 305–306, 52 Cal.Rptr.2d 282, 914 P.2d 832 [explaining that § 1023 implements the "doctrine of included offenses"].)
Defendant's assertion that Vehicle Code section 20 is a lesser included offense of perjury is based on the so-called "accusatory pleading test." The accusatory pleading test "looks to whether ‘ " ‘the charging allegations of the accusatory pleading include language describing the offense in such a way that if committed as specified [some] lesser offense is necessarily committed.’ " ’ " ( People v. Montoya (2004) 33 Cal.4th 1031, 1035, 16 Cal.Rptr.3d 902, 94 P.3d 1098.) Defendant explains that in the original accusatory pleading, the prosecution charged him with perjury for making a false statement on a DMV "Request for Confidentiality" form. This same conduct served as the basis for the subsequent Vehicle Code section 20 count. Based on the language setting forth the charges against him, defendant contends the newer Vehicle Code section 20 count must be deemed included in the original perjury count.
The flaw in defendant's argument is that the accusatory pleading test does not apply to a double jeopardy analysis. Rather, the "appropriate yardstick" for determining if an offense is included in another for double jeopardy purposes is the "elements test," which is based on a statutory comparison of the elements for both crimes. ( People v. Scott (2000) 83 Cal.App.4th 784, 795–796, 100 Cal.Rptr.2d 70 ; see also People v. Spicer (2015) 235 Cal.App.4th 1359, 1371, 186 Cal.Rptr.3d 158 [elements test, not accusatory pleading test, applies to double jeopardy analysis]; United States v. Dixon (1993) 509 U.S. 688, 696, 113 S.Ct. 2849, 125 L.Ed.2d 556 [elements test, which "inquires whether each offense contains an element not contained in the other," applicable to double jeopardy analysis].) Under the elements test, "if the statutory elements of the greater offense include all of the statutory elements of the lesser offense, the latter is necessarily included in the former." ( People v. Reed (2006) 38 Cal.4th 1224, 1227, 45 Cal.Rptr.3d 353, 137 P.3d 184.) As applied here, the elements test reveals that Vehicle Code section 20 is not an included offense of perjury because each offense, as defined by statute, contains an element the other does not. Section 118, subdivision (a) defines perjury as willfully stating under oath or penalty of perjury any material matter which a person knows to be false. ( § 118, subd. (a).) Vehicle Code section 20 makes it a misdemeanor to knowingly make any false statement or knowingly conceal any material fact "in any document filed with the Department of Motor Vehicles." ( Veh. Code, § 20.) Based on these statutory definitions, the perjury statute requires a statement made under oath or penalty of perjury, but does not require that the statement be made in a document filed with the DMV. Vehicle Code section 20, by contrast, does not require that a statement be made under oath or penalty of perjury, but does require that the statement be provided to the DMV. For double jeopardy purposes, they are separate offenses.
Defendant relies on People v. Story (1985) 168 Cal.App.3d 849, 216 Cal.Rptr. 158 to support his argument that we should apply the accusatory pleading test. In Story , a defendant convicted of perjury argued on appeal that the trial court erred in failing to sua sponte instruct the jury on Vehicle Code section 20, which the defendant claimed was a lesser included offense. ( Id. at p. 854, 216 Cal.Rptr. 158.) Applying the accusatory pleading test, the appellate court concluded that Vehicle Code section 20 was included in the perjury offense "in this case," though ultimately the court found no error in the trial court's failure to instruct on Vehicle Code section 20 because the evidence showed that, if guilty at all, the defendant committed the greater crime of perjury. ( Ibid. )
Defendant's reliance on Story is misplaced because Story involved a different issue—a trial court's sua sponte duty to instruct a jury on an uncharged crime. The accusatory pleading test is appropriate in that situation, as the test "arose to ensure that defendants receive notice before they can be convicted of an uncharged crime." ( People v. Reed , supra , 38 Cal.4th at p. 1229, 45 Cal.Rptr.3d 353, 137 P.3d 184.) But the test has little utility in double jeopardy cases such as this one where the issue is not lack of notice of an uncharged offense, but whether a charged offense is "necessarily included within conduct" prohibited by a previously charged offense. ( In re Dennis B. , supra , 18 Cal.3d at p. 691, 135 Cal.Rptr. 82, 557 P.2d 514.) "[T]he accusatory pleading test has nothing to do with double jeopardy principles or section 1023, each of which applies when ‘a given crime, by definition, necessarily and at all times is included within another one.’ " ( People v. Scott , supra , 83 Cal.App.4th at p. 796, 100 Cal.Rptr.2d 70.)
Our conclusion is further supported by the Supreme Court's decision in People v. Reed , supra , 38 Cal.4th 1224, 45 Cal.Rptr.3d 353, 137 P.3d 184 where the court declined to apply the accusatory pleading test to the judicially created rule that prohibits multiple convictions based on necessarily included offenses charged in the same case. ( Id at p. 1227, 45 Cal.Rptr.3d 353, 137 P.3d 184.) The court explained that a test designed to ensure notice of an uncharged offense "has no relevance to deciding whether a defendant may be convicted of multiple charged offenses." ( Id. at p. 1229, 45 Cal.Rptr.3d 353, 137 P.3d 184.) " ‘[I]t makes no sense to look to the pleading, rather than just the legal elements, in deciding whether conviction of two charged offenses is proper. Concerns about notice are irrelevant when both offenses are separately charged.’ " ( Id. at pp. 1229–1230, 45 Cal.Rptr.3d 353, 137 P.3d 184.) The court's reasoning applies with equal force to the double jeopardy challenge raised in this matter, which, like Reed , concerns whether a charged offense is included in a separately charged offense.
In sum, prosecution of the Vehicle Code section 20 charge does not offend principles of double jeopardy. II. Section 654 and Kellett
Separate from his double jeopardy argument, defendant argues that prosecution under Vehicle Code section 20 contravenes Penal Code section 654 ’s bar against successive prosecutions.
Section 654 provides, in relevant part: "An acquittal or conviction and sentence under any one [provision of law] bars a prosecution for the same act or omission under any other." ( § 654, subd. (a).) In interpreting section 654, the Supreme Court in Kellett stated that 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, 48 Cal.Rptr. 366, 409 P.2d 206.) The Court explained that the successive prosecution bar is designed to prevent the needless harassment of a defendant and the waste of resources: "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." ( Ibid . ) Section 654 is distinct from the double jeopardy principles described above, in that section 654 bars prosecution of a later-charged offense even if it is not necessarily included in an earlier offense. (See id. at p. 825, fn. 2, 48 Cal.Rptr. 366, 409 P.2d 206.)
Defendant contends that Penal Code section 654 and Kellett compel dismissal of the Vehicle Code section 20 count. Defendant explains he was prosecuted for perjury under section 118 based on an allegedly false document provided to the DMV. After a jury acquitted him of perjury, the prosecution charged him with violating Vehicle Code section 20 based on the same false document that formed the basis of the perjury count. According to defendant, "[g]iven that the initial proceedings culminated in an acquittal of the charge under P[enal] C[ode] section 118, the prosecution's ‘failure to unite’ a V[ehicle] C[ode] section 20 charge with the felony charges prior to trial bars a subsequent prosecution under V[ehicle] C[ode] section 20. To authorize such a prosecution at this juncture would produce the very ‘needless harassment and the waste of public funds’ that Kellett prohibits."
Defendant's argument ignores that he was prosecuted for a second offense—offering a false document in violation of section 115. Prosecution of that offense did not implicate section 654 and Kellett because it did not "culminate in either acquittal or conviction and sentence." ( Kellett , supra , 63 Cal.2d at p. 827, 48 Cal.Rptr. 366, 409 P.2d 206.) Petitioner certainly was not acquitted of violating section 115, as a jury convicted him of that offense before the trial court vacated the conviction under Williamson . (See People v. Monterroso (2004) 34 Cal.4th 743, 777, 22 Cal.Rptr.3d 1, 101 P.3d 956 [acquittal requires disposition based upon a determination of the merits]; United States v. Scott (1978) 437 U.S. 82, 97, 98 S.Ct. 2187, 57 L.Ed.2d 65 [acquittal requires resolution in defendant's favor " ‘of some or all of the factual elements of the offense charged’ "].) And although a jury convicted defendant of violating section 115, the trial court never sentenced him. Since defendant was neither acquitted nor convicted and sentenced under Penal Code section 115, Penal Code section 654 did not prohibit the prosecution from charging defendant with violating Vehicle Code section 20 to replace the section 115 count. The jury's acquittal of defendant in a separately charged count for perjury did not affect the prosecution's ability to prosecute defendant under Vehicle Code section 20. In People v. Tideman (1962) 57 Cal.2d 574, 21 Cal.Rptr. 207, 370 P.2d 1007 ( Tideman ), our Supreme Court explained that "[i]n a single criminal action (pleading any number of counts), no plea of guilty to, or order of dismissal or acquittal of, any separately pleaded offenses, included or otherwise, will bar the progress of that prosecution as to the other counts. The prosecution on such other counts may continue until each, on its own merits, has been severally and finally disposed of by bringing the defendant to conviction and sentence or to acquittal." ( Id. at p. 583, 21 Cal.Rptr. 207, 370 P.2d 1007.) Applying this canon to the case before it, the Court in Tideman concluded that double jeopardy principles did not bar the prosecution of a second charged crime after the defendant had pleaded guilty to the first crime charged in the same prosecution that arose from the same criminal act. ( Ibid. ) And although the Court was responding to Tideman's double jeopardy argument, it extended that reasoning to its analysis under section 654, holding that there would be no statutory bar to prosecution of the second charged crime because "there has been but one prosecution; i.e., a single criminal action." ( Id. at p. 585, 21 Cal.Rptr. 207, 370 P.2d 1007.) Tideman compels us to conclude that the jury's acquittal on the perjury charge does not bar the prosecution of the false document charge, which was charged initially as a violation of Penal Code section 115 in the same prosecution, then replaced with a violation of Vehicle Code section 20 based on Williamson .
To ignore Tideman and reach a contrary holding would create an anomalous result that is inconsistent with the purpose of section 654. Had the prosecution charged defendant at the outset only with filing a false document in violation of Penal Code section 115, there is little dispute that the prosecution, facing an adverse Williamson ruling after trial, could have substituted in a Vehicle Code section 20 count without running afoul of section 654. That result should not change because the prosecution chose to join a charge for perjury, thereby furthering Kellett ’s admonition that prosecutors should "unite" all offenses that are based on the "same act or course of conduct." ( Kellett , supra , 63 Cal.2d at p. 827, 48 Cal.Rptr. 366, 409 P.2d 206.) The prosecution suffered the consequence of its Williamson violation when the trial court vacated the conviction on the felony section 115 count that was improperly charged. The prosecution's effort to comply with Kellett by joining the perjury charge should not now be used as a sword to impose a second consequence that prevents the prosecution from proceeding on the Williamson -compliant misdemeanor charge. In arguing that prosecution of the Vehicle Code section 20 charge is now barred, defendant effectively seeks to extract a double benefit from a single Williamson violation.
Defendant asserts the prosecution "intentionally" charged Penal Code section 115 instead of Vehicle Code section 20, and suggests the prosecution knew from the outset that Williamson barred the section 115 charge. In our view, an equally (if not more) reasonable reading of the record is that the charging prosecutor believed, incorrectly, that charging section 115 was proper under Williamson . But even assuming petitioner is correct, we are aware of no authority holding or even suggesting that an "intentional" Williamson violation entitles a defendant to a complete dismissal, rather than prosecution under the Williamson -compliant offense.
Although we have found no decision directly on point with this case, our conclusion finds support in cases holding that there was no section 654 violation in analogous circumstances. The result we reach is consistent with prior decisions allowing the prosecution to add new charges when the originally charged crimes had not culminated in either acquittal or a conviction and sentence. (See In re R.L. (2009) 170 Cal.App.4th 1339, 1342, fn. 2, 1344, 88 Cal.Rptr.3d 854 [after juvenile admitted original charge of unlawfully possessing a "billy" club, § 654 did not preclude new charges for assault, vandalism, and burglary, since juvenile had not yet been sentenced on billy club charge]; People v. Brown (1973) 35 Cal.App.3d 317, 323, 110 Cal.Rptr. 854 [after mistrial declared on multiple charged sex offenses, § 654 did not bar prosecution from recharging the same offenses, plus two new counts for unlawful sexual intercourse].) Our conclusion is also consistent with decisions holding that an acquittal or conviction and sentence on certain counts does not prohibit the prosecution of other offenses charged in the same case that have not culminated in an acquittal or conviction and sentence. (See Tideman , supra , 57 Cal.2d at p. 583, 21 Cal.Rptr. 207, 370 P.2d 1007 ; People v. Simmons (1978) 82 Cal.App.3d Supp. 1, 4–5, 147 Cal.Rptr. 481 [citing Tideman to conclude that acquittal of battery count did not bar retrial of count for annoying or molesting a child following jury's inability to reach a verdict on that count].) Likewise, other cases have made clear that section 654 ’s " ‘proscription against multiple prosecution does not apply where there has been but one prosecution, i.e., a single criminal action; it prohibits only a subsequent prosecution for the same act or omission, which, of course, means the filing and pressing of a new criminal action.’ " ( People v. Solis (2015) 232 Cal.App.4th 1108, 1124, 181 Cal.Rptr.3d 877, quoting People v. Seiterle (1963) 59 Cal.2d 703, 712, 31 Cal.Rptr. 67, 381 P.2d 947.) Here, there was no "subsequent prosecution" within the meaning of Penal Code section 654 and Kellett , as the Vehicle Code section 20 charge was added by amendment to the original information.
Kellett , by contrast, unquestionably involved a subsequent prosecution—a misdemeanor charge filed in municipal court on October 15, 1964, followed by a felony charge based on the same conduct filed in superior court on November 17, 1964. (Kellett, supra, 63 Cal.2d at p. 824, 48 Cal.Rptr. 366, 409 P.2d 206.)
The circumstances of this case are also distinguishable from decisions concluding that section 654 prohibits the prosecution from adding new charges after the offenses originally charged were dismissed based on insufficient evidence. (E.g. People v. Hamernik (2016) 1 Cal.App.5th 412, 428, 204 Cal.Rptr.3d 649 [dismissal of count for possession of a controlled substance based on insufficient evidence precluded retrial for attempted possession]; Sanders v. Superior Court (1999) 76 Cal.App.4th 609, 616–617, 90 Cal.Rptr.2d 481 [appellate reversal on several counts of grand theft based on insufficient evidence precluded new charges for forgery and presenting a false or forged document].) These cases come within the ambit of section 654 and Kellett because a dismissal or reversal based on insufficient evidence is tantamount to an acquittal. ( Sanders , at p. 616, 90 Cal.Rptr.2d 481 ; accord People v. Hatch (2000) 22 Cal.4th 260, 272, 92 Cal.Rptr.2d 80, 991 P.2d 165 ["an appellate court's ruling of legal insufficiency is functionally equivalent to an acquittal and precludes a retrial"].) Here, the section 115 count was not dismissed for insufficient evidence. Rather, it was dismissed (following a conviction) based on a procedural error under Williamson . Such a dismissal is not the equivalent of an acquittal.
For similar reasons, the Supreme Court's decision in People v. Goolsby (2015) 62 Cal.4th 360, 196 Cal.Rptr.3d 726, 363 P.3d 623, is not dispositive. In Goolsby , the Supreme Court held that reversal of a conviction for arson of an inhabited structure based on insufficient evidence did not preclude a new trial for arson of property, since the defendant was effectively charged with arson of property when the court instructed the jury on that offense. (Id. at pp. 366–367, 196 Cal.Rptr.3d 726, 363 P.3d 623.) Although the Court in Goolsby concluded, as we do, that further prosecution did not violate section 654 and Kellett , Goolsby is not on point because the dismissal there was based on insufficient evidence, while the dismissal here was based on a procedural defect that did not amount to an acquittal.
Our conclusion that section 654 and Kellett do not require dismissal of the Vehicle Code section 20 count on these facts is also consistent with Penal Code section 654 ’s purposes of preventing the "needless harassment" of a defendant and the "waste of public funds." ( Kellett , supra , 63 Cal.2d at p. 827, 48 Cal.Rptr. 366, 409 P.2d 206.) The prosecution's erroneous decision to charge a general statute instead of a specific one in contravention of Williamson can be (and often is) corrected in the early stages of a case. (E.g. People v. Jenkins (1980) 28 Cal.3d 494, 498–499, 170 Cal.Rptr. 1, 620 P.2d 587 [ Williamson issue raised in motion to dismiss information]; Hudson v. Superior Court (2017) 7 Cal.App.5th 999, 1006, 213 Cal.Rptr.3d 227 [ Williamson issue raised in § 995 motion to set aside indictment].) Indeed, defendant could have raised the Williamson issue well before trial instead of waiting until after trial. A defendant's ability to identify and correct a Williamson issue early in a case mitigates the risk that the prosecution will harass a defendant and waste public resources by charging him with the wrong offense.
To conclude, neither double jeopardy principles nor section 654 bar the prosecution from prosecuting defendant for violating Vehicle Code section 20.
DISPOSITION
The petition for writ of prohibition and/or mandate is denied. The stay issued by this court on March 14, 2019 shall expire as soon as this decision is final.
Pollak, P. J., and Streeter, J., concurred.
Concur by: Pollak, P. J.
Concur
POLLAK, P. J. Concurring
I concur in both the analysis and the conclusion reached in the lead opinion. Nonetheless, the conclusion is troubling. Defendant now faces trial on a misdemeanor charge based on the same conduct for which he was found not guilty of committing a felony offense. The logic of the decisions cited in the lead opinion compels this result, and I do not necessarily quarrel with the reasoning of those decisions. The problem, it seems to me, arises from the fact that defendant's contention that under In re Williamson (1954) 43 Cal.2d 651, 276 P.2d 593, for his alleged misconduct he could be charged only with violating Vehicle Code section 20 and not Penal Code section 115, was not raised until after a jury had found him guilty of violating Penal Code section 115. Had the contention been made before trial, when it was fully ripe for consideration and decision, this dilemma would never have arisen. Had the issue been raised pretrial and defendant correctly charged and tried for violating Vehicle Code section 20, at most there would have been seemingly inconsistent verdicts, as there in fact were under the charges that were tried. In that case the conviction would have been upheld under well-recognized principles. (E.g., People v. Avila (2006) 38 Cal.4th 491, 600, 43 Cal.Rptr.3d 1, 133 P.3d 1076.) But defendant would not have been forced to trial for the same conduct underlying a more serious charge on which he had already been acquitted.
In the writ proceedings before us, no party has questioned the correctness of the trial court's order setting aside the guilty verdict of violating Penal Code section 115 on the ground that defendant forfeited the contention by failing to assert it prior to trial. While subsequent decisions applying In re Williamson may not support such a contention (see, e.g., People v. Murphy (2011) 52 Cal.4th 81, 127 Cal.Rptr.3d 78, 253 P.3d 1216 ), I am not aware that the issue has ever been litigated and there may well be sound reasons for judicially adopting such a rule. The issue turns solely on the terms of the statutory provisions in question and therefore is susceptible to determination by a pretrial motion. Defendant should not get two bites at the apple by withholding the contention until learning the outcome of trial on the incorrectly charged offense. However, the question is not now before us. We are in no position to address the issue in the current posture of this case, but I suggest the question is worthy of consideration if presented in future cases.
Streeter, J., concurred.
A petition for a rehearing was denied November 8, 2019, and the opinion was modified to read as printed above. Petitioner's petition for review by the Supreme Court was denied January 29, 2020, S259160.