Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County, No. SWF028759, Dennis A. McConaghy, Judge. (Retired judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
Leonard J. Klaif, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, William M. Wood and A. Natasha Cortina, Deputy Attorneys General, for Plaintiff and Respondent.
RICHLI, J.
A jury found defendant and appellant David Alejandro Arevalo guilty of committing a forcible lewd act upon Jane Doe 1, a child under the age of 14 (Pen. Code, § 288, subd. (b)(1)). Defendant was thereafter sentenced to a total term of six years in state prison. On appeal, defendant contends prosecution of this case was constitutionally and statutorily barred by Penal Code section 654 and Kellett v. Superior Court (1966) 63 Cal.2d 822 (Kellett), because the People were aware of defendant’s involvement in this case at the time he pled guilty to committing another lewd act upon Jane Doe 2 in 2009 in case No. SWF027618, and the crimes were part of the same course of conduct. In the alternative, he argues his counsel was ineffective for failing to move to dismiss on the grounds now raised in this appeal. We reject these contentions and affirm the judgment.
All future statutory references are to the Penal Code unless otherwise stated.
We grant defendant’s request filed January 25, 2011, and take judicial notice of specified trial court records in case No. SWF027618. (Evid. Code, §§ 452, subd. (d), 459.)
I
FACTUAL AND PROCEDURAL BACKGROUND
A. Substantive Offense – Jane Doe 1
V.N. knew defendant through her church. Defendant and his then-wife, C., had conducted Bible studies at their home. On January 30, 2009, defendant watched V.’s three youngest girls, including seven-year-old Jane Doe 1, along with his own family, while V., C., and others attended a woman’s church outing.
While walking down a hallway of defendant’s home, defendant grabbed Jane 1 by the shoulder, turned her around, and grabbed her arm. He then touched Jane 1’s vagina over her clothes. He also put a hand over Jane 1’s mouth. Later that same evening, defendant grabbed Jane 1 a second time. As she was in a hallway, he grabbed Jane 1 by the hair, took her in a bedroom, and closed and locked the door. Defendant also kicked her in the bottom, apparently causing her to hit her head on a piece of furniture and cut her face. He put her on the bed, but she kicked him and ran out of the room to her sister. Jane 1 recalled crying and her sister asking her why, but she did not tell her what had happened because she was afraid.
When V. returned three or four hours later to pick up her girls, she noticed that Jane 1 had puffy and watery eyes as if she had been crying. In response to V.’s questioning, Jane 1 said that nothing had happened. She also observed a cut on Jane 1’s forehead.
The following morning, V. received a telephone call from her pastor, informing her that defendant had been arrested because something had happened between him and a young girl in his home. V. then asked her three girls if something had happened in defendant’s home. Upon questioning, Jane 1 began to cry and then told her mother what had happened. V. called the police.
Riverside County Sheriff’s Department Officer Doug Frey began investigating the case on February 3, 2009. Officer Frey set up an interview for Jane 1 to speak with a Riverside Child Assessment Team (RCAT) social worker. On March 16, 2009, Jane 1 spoke with an RCAT social worker and recounted the incident to the social worker.
The interview was played for the jury.
B. Evidence Code Section 1108 Evidence – Jane Doe 2
Jane Doe 2 lived with defendant and C. for about five or six years and referred to them as “Uncle David” and “Aunt C.” On January 30, 2009, while C. was away for the women’s outing, defendant sat down next to Jane 2 on the couch, placed a blanket over the two of them, and began rubbing Jane 2’s legs and vagina. Defendant then opened his pants and placed Jane 2’s hand on his penis. Jane 2 got up and ran outside; defendant followed her and apologized. He also told Jane 2 not to tell anyone. Jane 2, however, immediately told another adult who resided in the house. At the time of the incident, Jane 2 was 15 years old.
C. Procedural Background
Defendant was arrested in connection with committing a lewd act on Jane 2. On February 4, 2009, a complaint was filed, charging defendant with a lewd act on Jane 2, a child who is 14 or 15 years old where the perpetrator is at least 10 years older than that child (§ 288, subd. (c)(1)). On February 27, 2009, defendant pled guilty to that charge in exchange for a low term of one year in state prison. Defendant was sentenced in accordance with the plea agreement on April 1, 2010.
Law enforcement was notified on January 31, 2009, of defendant’s acts on Jane 1. Officer Frey, who was also investigating the case involving Jane 2, was assigned this case on February 3, 2009. Officer Frey thereafter made the arrangements for Jane 1 to submit to a RCAT interview with a social worker.
At a pretrial hearing on May 27, 2010, in this case, when the court inquired whether the parties had knowledge of the prior case involving Jane 2 (case No. SWF027618), defense counsel stated that defendant’s trial counsel in case No. SWF027618 had “some reference to a pending investigation, but there was no concrete information as to where that investigation stood or whether or not actual charges were going to be filed.” When the court asked whether the People knew about “this case at the time of the other case, ” the prosecutor responded, “No, we didn’t, your Honor.” The prosecutor explained: “It appears that there was a mishap at the San Jacinto Police Department. Because the RCAT of the victim in this case, I think, was performed on February or March 17.... How the People found out or -- actually, I investigated into the case. Was that at the sentencing of this defendant, the family came to speak and they mentioned another victim. And so, then, we found the initial report by Deputy Sandoval, then Detective Fr[e]y, then, who actually investigated the first report, and in the first case followed up and wrote a supplemental and the RCAT of this seven-year-old victim.” The court responded, “I really think that it’s unfortunate for everybody that this all wasn’t handled at the same time.” The court thereafter gave an indicated sentence of the low term; however, defendant requested the matter proceed to trial.
II
DISCUSSION
Defendant contends that prosecution was barred by section 654 and Kellett, supra, 63 Cal.2d 822, because the crimes in this case and case No. SWF027618 were part of the same course of conduct, and the People were aware or should have been aware of defendant’s involvement in this case at the time he pled guilty to committing a lewd act upon Jane 2. He also generally argues that prosecution of this case violated his state and federal constitutional rights to due process and proscription against double jeopardy. In the alternative, he argues his counsel was ineffective for failing to move to dismiss this case based on the grounds now asserted.
In order to forestall defendant’s ineffective assistance of counsel claim, we will address defendant’s claim on the merits.
Section 654, subdivision (a) prohibits both multiple punishment and multiple prosecution, providing in pertinent part as follows: “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.” The prohibition against multiple punishment ensures that a defendant’s punishment is commensurate with his or her criminal liability whereas the proscription against multiple prosecution protects against needless harassment and the waste of public funds. (Kellett, supra, 63 Cal.2d at p. 827.)
Kellett is the leading case on the application of the statute’s bar of multiple prosecutions under section 654. In Kellett, the defendant was standing on a sidewalk holding a pistol. He pleaded guilty to exhibiting a firearm in a threatening manner. Defendant was later charged with possessing a concealable weapon by a felon based on the same facts. (Kellett, supra, 63 Cal.2d at p. 824.) The court stated, “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, fn. omitted.)
However, as the Court of Appeal explained in People v. Cuevas (1996) 51 Cal.App.4th 620, 624: “Kellett does not require, nor do the cases construing it, that offenses committed atdifferent 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 were 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. (Cuevas, at p. 623.)
Similarly, in People v. Ward (1973) 30 Cal.App.3d 130, 136, 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, the defendant 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, the defendant forced the second victim to orally copulate him; he then pulled over and raped her. (Ibid.) Initially charged with oral copulation in San Bernardino County, defendant pled guilty and was sentenced. Subsequently charged with kidnapping and rape in Los Angeles County, the trial court denied the defendant’s motion to dismiss under section 654 and Kellett. (Ward, 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 [acts] or [courses] 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.” (People v. Ward, supra, 30 Cal.App.3d at p. 136, last brackets added.)
Likewise, here it cannot be said that the same act or course of conduct committed against Jane 2 played a significant part in the commission of defendant’s lewd acts against Jane 1. The crimes were committed against different victims, at different locations in the house, and at different times. The crimes were completely separate acts that were only linked by the fact that they were committed on the same night in defendant’s home. They were committed in separate places, against different victims, and constituted distinct acts, neither relying on the other to obtain a conviction.
Defendant asserts that his course of conduct involving Jane 2 did play a significant part in the offense against Jane 1 because evidence of Jane 2’s “molestation was proof, not only motive, intent, etc., but proof that [defendant] had a predilection to molest minors and thus committed the crime against [Jane 1].” Defendant misunderstands the relevant analysis. While defendant’s acts against Jane 2 did supply evidence of defendant’s intent and disposition, there was little or no evidentiary overlap between the two offenses. The relevant question is whether “the evidence needed to prove one offense necessarily supplies proof of the other....” (People v. Hurtado (1977) 67 Cal.App.3d 633, 636.)
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 in the car when Hurtado was stopped for drunk driving. (People v. 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... does not mandate the joinder of these cases. [Citation.]” (Id. at pp. 636-637.)
Similarly, here, the evidence needed to establish the offense committed against Jane 2 did not necessarily supply proof of the lewd act against Jane 1. The language of section 654, which references only “the same act or omission, ” does not suggest that multiple prosecutions are barred when offenses involving different acts are part of the same pattern. Stated differently, the fact that defendant committed a lewd act on Jane 2 was not necessary to prove that he molested Jane 1. The only overlap in evidence between the two cases was that they both occurred the same night, while defendant watched children at his house. Such a trivial overlap does not mandate joinder. This is so regardless of the fact that defendant’s acts against Jane 2 supplied evidence of defendant’s intent or disposition.
Another approach to the question whether the offenses are too interrelated to be prosecuted separately examines whether the crimes in question have a distinct beginning, duration, and end. (People v. Douglas (1966) 246 Cal.App.2d 594, 599.) If none of these overlap, then simultaneous prosecution is not required. (Ibid.) The fact that a single offense against Jane 2 can be fit into a broader pattern of acts against Jane 1 does not mean that the offenses overlap for purposes of the approach used in Douglas and thus are too interrelated to be tried separately. The lewd acts involving Jane 1 had a distinct beginning, duration, and end that did not overlap with any of the beginning, duration, or end of any of the acts to which defendant pled guilty involving Jane 2. Therefore, multiple prosecutions are permitted under the approach taken in Douglas.
Having determined that the same course of conduct did not play a significant part in the offense against Jane 1 and the offense against Jane 2, subsequent prosecution for the offense involving Jane 1 was permissible regardless of whether the prosecution was aware or should have been aware of both incidents. (See People v. 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 “the prosecution, by the police, was aware that more than one offense in which a ‘course of conduct’ played a significant part was involved....” 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.
Defendant also generally argues that multiple prosecutions violated the proscription against double jeopardy. The double jeopardy clauses of the Fifth Amendment to the United States Constitution and article I, section 15 of the California Constitution guarantee that a person shall not be placed twice “in jeopardy” for the “same offense.”
Here, the charge that defendant molested Jane 2 is not the same offense as that involving defendant’s molestation of Jane 1. Defendant was therefore not placed in jeopardy for the charge against him involving Jane 1, after he had pled guilty to the offense involving Jane 2. Accordingly, the present charge does not offend either the federal or state double jeopardy clause.
III
DISPOSITION
The judgment is affirmed.
We concur: HOLLENHORST, Acting P.J., CODRINGTON, J.