Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIF129242. Richard E. Spann, Judge and Bambi J. Moyer, Temporary Judge.
Richard E. Spann is a retired judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution and Bambi J. Moyer is a temporary judge pursuant to California Constitution, article VI, section 21.
James M. Crawford, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Jeffrey J. Koch and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
King, J.
I. INTRODUCTION
In an amended information, defendant William Arthur Brown was charged in count 1 with the sale or transportation of a controlled substance, rock cocaine, for the benefit of a criminal street gang and with active gang participation in count 2. A jury found defendant guilty in count 1. The jury was unable to reach a verdict and a mistrial was declared on the gang allegation and active gang participation charge, and the allegation and charge were later dismissed.
Defendant waived his right to a jury trial on additional allegations that he had five prison priors and one prior strike conviction, and later admitted he had five prison priors. On this appeal, defendant concedes he admitted the five prison priors but claims the trial court failed to also secure his knowing and intelligent admission of his prior strike conviction. The People agree and argue the matter must be remanded for a further court trial on the strike prior, and for resentencing. We agree with the People.
Defendant was sentenced to six years in prison consisting of the low term of three years on count 1, doubled to six years based on the prior strike conviction. The trial court struck the five prison priors in the interest of justice. (Pen. Code, § 1385.) All further statutory references are to the Penal Code unless otherwise indicated.
Defendant further claims his sale or transportation conviction in count 1 must be reversed because the trial court erroneously denied his pretrial Kellett motion to dismiss the charge on the ground the charge should have been joined with a simple possession charge in case No. RIF128668, to which defendant pled guilty before the present charges were filed against him. We conclude the Kellett motion was properly denied.
Kellett v. Superior Court (1966) 63 Cal.2d 822 (Kellett).
We therefore remand the matter for a further court trial on the strike prior and for resentencing. In all other respects, we affirm the judgment.
II. FACTS AND PROCEDURAL HISTORY
A. The Evidence Presented at Trial on Count 1
On February 23, 2006, Detective Senon Saldana of the narcotics unit of the Riverside Police Department was working undercover in a drug purchase operation with the Moreno Valley Police Department. Around 3:20 p.m., while riding a bicycle along Indiana Street in Moreno Valley, the detective saw defendant and another man standing along a curb in front of a residence. The detective rode up to the men and asked defendant whether he knew where the detective could buy a “dub,” meaning $20 worth of rock cocaine. Defendant responded, “‘Yes, hold on.’”
Defendant walked up to the residence and knocked on the door, but no one answered. He then led the detective to a single-story apartment complex and asked him to wait outside while he entered the complex. Around 15 minutes later, defendant came out of the complex and led the detective to a nearby liquor store. Around five minutes later, a man and woman approached the store. Defendant made eye contact with them and followed them into the store.
Around three minutes later, defendant came out of the liquor store, pointed toward his buttocks (a common street sign indicating that drugs are hidden in that area), and held out his hand to ask the detective for money. In response, the detective handed defendant a $20 bill, and defendant walked back into the store. A few minutes later, the same man and woman walked out of the store, and the man dropped some items on the shelf of a nearby telephone booth. Defendant walked behind the couple and picked up the items from the shelf.
Detective Saldana approached defendant and asked, “‘Hey, did you get hooked up?’” Defendant said, “‘I already have the dope,’” opened his hand, and showed the detective two small red plastic baggies containing an off-white substance resembling rock cocaine. Defendant handed the detective one of the rocks and kept the other, apparently as payment.
At that point, Detective Saldana told defendant he had to leave, and returned to a predesignated location where he met with Deputy Sean Brown of the Riverside County Sheriff’s Department. The detective gave Deputy Brown the red plastic baggie he had purchased from defendant, which contained a rock of cocaine base weighing.42 grams. Throughout his encounter with defendant, the detective was wearing audio and video surveillance equipment. The videotape was played for the jury.
After testifying about the purchase of the rock cocaine from defendant, Detective Saldana further testified that, in a drug purchase program, people caught selling drugs are typically not arrested immediately after the sale. This avoids revealing the identity of the undercover officer who purchased the drugs and allows the undercover officer to make additional purchases. However, other law enforcement officers typically stop the seller shortly after the sale in order to obtain a photo or a field identification for later use when the seller is charged with a crime.
B. The Evidence Presented on Defendant’s Pretrial Kellet Motion
Before trial, defendant filed a Kellett motion to dismiss the present charges for sale or transportation of a controlled substance and active gang participation, on the ground they were based on the same acts and course of conduct that resulted in his earlier guilty plea to simple possession in case No. RIF128668. The People opposed the motion.
The parties’ briefs filed in support of and in opposition to the motion reveal the following. On February 23, 2006, two uniformed sheriff’s deputies, R. Sanchez and L. Colmer, were assigned to the same drug purchase operation in which Detective Saldana was working undercover. Several minutes after the detective purchased the $20 worth of rock cocaine from defendant and rode away on his bicycle, the deputies arrested defendant for simple possession of rock cocaine.
The circumstances preceding the arrest were detailed in an incident report which Deputy Sanchez prepared on February 23. The report indicates that, around 4:00 p.m. on February 23, only several minutes after Detective Saldana purchased the rock cocaine base from defendant, Deputies Sanchez and Colmer approached defendant in their marked vehicle. As they did so, Deputy Colmer saw defendant throw a plastic baggie on the ground. Deputy Colmer retrieved the baggie and saw that it contained a white chalky substance consistent with rock cocaine. After defendant told the deputies he was on active parole, the deputies searched him and found a glass pipe commonly used for smoking rock cocaine. He was also exhibiting symptoms of being under the influence of a central nervous system stimulant.
The deputies arrested defendant for simple possession of rock cocaine. After waiving his Miranda rights, defendant told the deputies he had thrown the rock cocaine on the ground after he saw the deputies approaching him in their vehicle. He had purchased the cocaine base from an unknown male in a park for $20. He had smoked “a dime” of cocaine base around 3:00 p.m. that day and currently smoked cocaine base daily.
Miranda v. Arizona (1966) 384 U.S. 436.
Four days later, on February 27, a felony complaint was filed in case No. RIF128668, charging defendant with simple possession of rock cocaine. The complaint further alleged that defendant had three prison priors, one prior serious felony conviction, and one prior strike conviction. The incident report concerning the drug possession charge, which Deputy Sanchez prepared on February 23, did not mention the drug purchase operation or that defendant sold rock cocaine to Detective Saldana only minutes before his February 23 arrest for possessing rock cocaine. On March 6, defendant pled guilty to the simple possession charge, admitted the prior serious felony and prior strike conviction, and was sentenced to two years eight months in prison.
On February 23, a separate incident report was prepared concerning defendant’s sale of rock cocaine to Detective Saldana. The report was prepared by Deputy Brown, another officer involved in the drug purchase operation. The report states that after the sale, “officers maintained constant surveillance” of defendant, and Detective Saldana, while still riding his bicycle, watched as Deputies Colmer and Sanchez detained defendant to ensure they were detaining the “correct suspect.” The report further states that narcotics were discovered on defendant’s person and he was arrested for possession, but he was not charged for the sale “due to an on-going investigation.”
Following a hearing, the trial court denied defendant’s Kellett motion. Relying principally on People v. Hurtado (1977) 67 Cal.App.3d 633 (Hurtado), the court reasoned that the evidence underlying the possession charge was separate and distinct from the evidence underlying the present charges for sale or transportation and active gang participation. Moreover, the evidence supporting the possession charge did not supply proof of the present charges, and vice versa.
III. DISCUSSION
A. Defendant’s Kellett Motion Was Properly Denied
1. Applicable Law
Section 654 expressly prohibits multiple punishment and multiple prosecution for the same act or course of conduct. It provides, in pertinent part, that: “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 ommission under any other.” (§ 654, subd. (a).)
Kellett is the leading case interpreting the multiple prosecutions bar of section 654. (People v. Britt (2004) 32 Cal.4th 944, 954.) Kellett holds that a criminal defendant may not be charged in two or more prosecutions for crimes based on the same act or course of conduct. (Kellett, supra, 63 Cal.2d at p. 827.) The defendant in Kellett was arrested on a public sidewalk while holding a pistol. He was first charged with and pled guilty to exhibiting a firearm in a threatening manner (§ 417), a misdemeanor, and was later charged with being a felon in possession of a firearm (§ 12021), a felony. In an opinion written by Justice Traynor, a unanimous state Supreme Court held that section 654 barred the second prosecution because it was based on the same act or course of conduct as the first. (Kellett, supra, at pp. 824-827.)
Section 654’s proscriptions against multiple punishment and multiple prosecution are distinct and serve different purposes. (Kellett, supra, 63 Cal.2d at p. 825.) As one court has observed: “The prohibition against multiple punishment is designed to ensure that a defendant’s punishment is commensurate with his criminal liability. The proscription against multiple prosecution, on the other hand, is a procedural safeguard against needless harassment and the waste of public funds.” (People v. Martin (1980) 111 Cal.App.3d 973, 976, citing Kellett, supra, at p. 827.)
As the Kellett court further explained: “The rule against multiple prosecutions... is not necessarily related to the punishment to be imposed; double prosecution may be precluded even when double punishment is permissible.” (Kellett, supra, 63 Cal.2d at p. 825; accord, Neal v. State of California (1960) 55 Cal.2d 11, 21.) Here, defendant does not contend and did not argue in the trial court that section 654 barred his punishment for both the simple possession and sale or transportation charges. He only argues that the statute prohibited the People from prosecuting the two offenses in separate proceedings.
The Kellett court specifically held that the multiple prosecutions bar applies 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....” (Kellett, supra, 63 Cal.2d at p. 827.) In this event, “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.” (Ibid., fn. omitted.)
The multiple prosecutions bar thus does not apply when joinder is prohibited or there is good cause for severance. (Kellett, supra, 63 Cal.2d at p. 827; accord, People v. Britt, supra, 32 Cal.4th at p. 954 [“It would be absurd to hold that crimes must be tried together if they may not be tried together”].) Defendant does not argue, however, that the multiple prosecutions bar applies because joinder of all the charges was not prohibited, or that there would have been good cause for severance had the charges originally been joined. Instead, he argues only that the bar applies because the crimes were based on the same act or course of conduct.
2. Analysis
Defendant argues his Kellett motion was erroneously denied because the present prosecution for sale or transportation (Health & Saf. Code, § 11352, subd. (a)) was based on the same acts or course of conduct as the earlier charge for simple possession (Health & Saf. Code, § 11350), to which he pled guilty. We disagree. As the trial court observed in denying the motion, the separate prosecutions were based on separate and distinct evidence. The evidence supporting the sales charge did not support the possession charge, or vice versa. (Hurtado, supra, 67 Cal.App.3d at p. 636.)
Hurtado is instructive. There, the defendant was arrested for drunk driving after highway patrol officers observed him driving erratically and at an excessive speed, and the defendant failed a series of field sobriety tests. While the defendant was being handcuffed, he took a cigarette package from his jacket and placed it between his legs. The officers seized the package and found it contained “20 rolled balloons” filled with heroine. (Hurtado, supra, 67 Cal.App.3d at p. 635.) The defendant was charged with three narcotics offenses in one prosecution and with drunk driving in a separate prosecution. He pled guilty to the drunk driving charge. Thereafter, an information was filed charging him with the narcotics offenses, and he moved to dismiss the information pursuant to section 654. (Hurtado, supra, at pp. 635-636.)
The Hurtado court applied an “evidentiary test” in determining whether the same act or course of conduct played “a significant part” in the narcotics charges and the drunk driving charge. Relying on its prior decision in People v. Flint (1975) 51 Cal.App.3d 333, 336, the court said: “[I]f the evidence needed to prove one offense necessarily supplies proof of the other... the two offenses must be prosecuted together, in the interests of preventing needless harassment and waste of public funds.” (Hurtado, supra, 67 Cal.App.3d at p. 636.)
More generally, the Hurtado court reasoned that, in determining whether the multiple prosecutions bar applies, “‘[w]hat matters, [rather than abstract definitions of the elements of the respective crimes or the precise moment when one crime was completed] is the totality of the facts, examined in light of the legislative goals of sections 654 and 954, as explained in Kellett.’” (Hurtado, supra, 67 Cal.App.3d at p. 636.)
Applying this “evidentiary test” or “practical” interpretation of when the multiple prosecutions bar applies, the Hurtado court concluded the drunk driving and narcotics charges were properly charged and prosecuted separately. (Hurtado, supra, 67 Cal.App.3d at p. 636.) The court reasoned that “the evidentiary pictures which had to be painted to prove the drunk driving and narcotics offenses were sufficiently distinct so as to permit separate prosecutions....” (Id. at pp. 636-637.) The court explained: “Proof of the drunk driving charge was supplied primarily by the observations of the highway patrol officers made after defendant was stopped and given certain sobriety tests. Proof of the heroin charges hinged upon the discovery of the cigarette package filled with heroin, which occurred after the arrest for drunk driving had been made. 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, under Kellett and Flint does not mandate the joinder of these cases. [Citation.]” (Id. at p. 637.)
Here too, proof of the simple possession charge and the sale and possession charge was sufficiently distinct to permit the separate prosecutions of the two offenses. Proof of the simple possession charge was based on defendant’s admission to the deputies that, when he saw the deputies approaching him in their marked vehicle, he threw a baggie of rock cocaine on the ground in order to avoid being caught with it in his possession. This occurred after defendant sold a baggie of rock cocaine to Detective Saldana. Likewise, the sale or transportation charge was based solely on Detective Saldana’s purchase of $20 worth of rock cocaine from defendant, and had nothing to do with defendant’s later act of throwing a baggie of rock cocaine on the ground.
Thus here, and as the trial court ruled, the same act or course of conduct did not play “a significant part” in the two prosecutions. (Kellett, supra, 63 Cal.2d at p. 827.) And even though the two drug-related offenses occurred in close temporal proximity, proof of one did not supply proof of the other. Instead, the evidence supporting the two offenses was distinct, even mutually exclusive. (Hurtado, supra, 67 Cal.App.3d at p. 636; People v. Flint, supra, 51 Cal.App.3d at p. 338.)
Defendant maintains that the simple possession charge was based on the evidence that he kept one of the two baggies of rock cocaine he showed to Detective Saldana. This is not the case, however, as the evidence presented on the Kellett motion shows. The February 23 incident report which was prepared by Deputy Sanchez and which details the evidence underlying the simple possession charge did not mention the drug purchase operation or that defendant had just sold a baggie of rock cocaine to Detective Saldana and kept one of two baggies he showed the detective. Instead, the report explained that defendant threw a baggie of rock cocaine on the ground when he saw the uniformed deputies approaching him and admitted doing so in order to avoid being caught with the contraband. Thus, defendant’s act of throwing a baggie of rock cocaine on the ground was the basis for the simple possession charge, not the evidence he had a second baggie of rock cocaine in his possession when he sold another one to Detective Saldana.
Defendant further argues that the prosecution should have known that additional charges based on the same act or course of conduct were pending against him or were at least under consideration when the simple possession charge was filed on February 27. He argues that “this Court should impute awareness of the multiple offenses to the prosecutor,” because the deputies who arrested him for simple possession were working in the drug purchase operation which resulted in his later arrest for the sale or transportation and active gang participation charges. We disagree.
Defendant does not argue that the district attorney’s office or any particular prosecutor was actually aware, at the time defendant was charged with simple possession on February 27, that additional charges were pending or under consideration.
The incident report concerning the simple possession charge did not mention that the deputies were working in the drug purchase operation which resulted in the additional charges against defendant. Nor did the report mention that Detective Saldana had purchased rock cocaine from defendant only minutes before the deputies arrested him for simple possession. Moreover, there is no indication when the other incident report concerning the additional charges—which did mention defendant’s February 23 arrest for simple possession—was forwarded to the district attorney’s office. (See In re Dennis B. (1976) 18 Cal.3d 687, 693-695 [separately charged offenses of making unsafe lane change, an infraction, and vehicular manslaughter, a felony, were based on the same act and were therefore “susceptible of discovery in time to avoid multiplicity problems”; still, there was insufficient evidence the prosecution either knew or should have known of the multiple charges in time to prevent multiple prosecutions].)
Nevertheless, we are mindful that the purpose of the multiple prosecutions bar is to avoid “needless harassment” of criminal defendants and the wasting of public funds on unnecessary or largely duplicative prosecutions. (Kellett, supra, 63 Cal.2d at p. 827.) When viewed solely from these two policy perspectives, the separate prosecution of the simple possession charge presents cause for concern. As defendant points out, all of the charges were closely connected in their commission, and it appears that the baggie of rock cocaine that defendant threw on the ground and was charged with possessing was in his possession minutes earlier, when Detective Saldana purchased another baggie of rock cocaine from him. The simple possession charge could have easily been detailed in the same incident report and charged with sale or transportation and active gang participation charges. And the simple possession charge could have been based on the evidence the defendant kept one of the two baggies he showed to the detective, or on the evidence that defendant threw a baggie on the ground as he saw the deputies approaching him, or both.
Furthermore, it appears that the officers involved in the drug purchase operation prepared two separate incident reports—one on the simple possession charge and another on the additional charges—perhaps with the intention of representing that the simple possession charge was unrelated to the drug purchase operation, in order to ensure that the possession charge would be separately prosecuted. Because the report on the simple possession charge does not mention the drug purchase operation or Detective Saldana’s purchase of rock cocaine from defendant, the report makes it appear as though defendant’s arrest for simple possession was an isolated occurrence in which the deputies happened to be driving in Moreno Valley and happened to see defendant throw what appeared to be a baggie of rock cocaine on the ground. This was clearly not the case, however.
This circumstance makes it a closer question whether the officers’ awareness of the multiple offenses should be imputed to the district attorney’s office. On this record, however, we believe the evidence presented on the Kellett motion is insufficient to warrant imputing that awareness to the district attorney’s office. (See In re Dennis B., supra, 18 Cal.3d at pp. 693-695.)
B. There Must Bea Further Court Trial on the Prior Strike Conviction
Defendant waived his right to a jury trial on the additional allegations that he had five prison priors and one prior strike conviction. Defendant also concedes that, at the time of sentencing, he admitted his five prison priors. He now claims, however, that the court failed to also secure his knowing and intelligent admission of his prior strike conviction. The People agree and argue that the matter must be remanded for a further court trial on the prior strike conviction and for resentencing. We agree with the People.
At the time of sentencing, the trial court sought admissions from defendant that he suffered the alleged five prison priors. The court appears to have assumed that, by admitting he had five prison priors, defendant was also admitting he had a strike prior. In any event, the court did not obtain defendant’s knowing and intelligent admission of his strike prior. Instead, the court proceeded to hear and deny defendant’s Romero motion to strike the strike prior. It then imposed the low term of three years on count 1, doubled to six years for the strike prior. It struck the prison priors in the interest of justice. (§ 1385.)
At the time of sentencing, the following colloquy occurred:
“[B]efore a court accepts an accused’s admission that he has suffered prior felony convictions, [Boykin and Tahl require that the court convey to the defendant] express and specific admonitions as to the constitutional rights waived by an admission. The accused must be told that an admission of the truth of an allegation of prior convictions waives, as to the finding that he has indeed suffered such convictions, the same constitutional rights waived as to a finding of guilt in case of a guilty plea.” (In re Yurko (1974) 10 Cal.3d 857, 863; see also People v. Adams (1993) 6 Cal.4th 570, 577 [discussing importance of obtaining defendant’s knowing and intelligent waiver of his constitutional rights before he admits truth of prior conviction allegation].) Here, defendant neither admitted he had a strike prior nor was he advised of the constitutional rights he was waiving before the court purported to take his admission.
Boykin v. Alabama (1969) 395 U.S. 238.
In re Tahl (1969) 1 Cal.3d 122.
As the People point out, there is an additional problem. Although defendant concedes he admitted he suffered five prison priors, or five felony convictions resulting in separate prison terms for purposes of section 667.5, he did not admit that one of these prior convictions was a 1990 robbery conviction. If he had, he would have effectively admitted that his 1990 robbery conviction was a serious felony for purposes of the “Three Strikes” law. (§ 667, subds. (c) & (e)(1), 1192.7, subd (c)(19) [“serious felony” for purposes of Three Strikes law includes robbery]; see, e.g., People v. Rodriquez (1998) 17 Cal.4th 253, 261-262 [fact of prior conviction, without more, proves least adjudicated elements of conviction].)
As the People also point out, the appropriate remedy for this error is to remand the matter to the trial court for a further court trial on defendant’s prior strike conviction. (People v. Monge (1997) 16 Cal.4th 826, 837-839 [failure of proof on prior conviction allegation does not constitute acquittal for double jeopardy purposes in noncapital case], affirmed in Monge v. California (1998) 524 U.S. 721, 728-729, 734; see also People v. Scott (2000) 85 Cal.App.4th 905, 921-922 [doctrine of collateral estoppel does not bar retrial on prior conviction allegation].)
IV. DISPOSITION
The matter is remanded for a further court trial on defendant’s alleged prior strike conviction and for resentencing. In all other respects, the judgment is affirmed.
We concur: Ramirez, P.J., Gaut, J.
“THE COURT: [¶]... [¶] He does have five prior—prison priors that are alleged and he’s put that over till today. Does he wish to admit them or does he want to show them to me?
“[DEFENSE COUNSEL]: If I may have a moment, Your Honor?
“THE COURT: Sure. [¶] I assume you do have them [the section 969b packets] with you?
“[PROSECUTOR]: I do, Your Honor.
“THE COURT: Okay. [Defendant], you do realize you do have the right to—you’ve already waived your right for the jury to determine them, but you have the right to have me read what the People have brought and see whether you were validly convicted or not. And is it your desire to give up and waive that right and admit that you do have five prison priors?
“THE DEFENDANT: Yes, Your Honor.
“THE COURT: Counsel join?
“[DEFENSE COUNSEL]: Yes, Your Honor.
“THE COURT: Okay. Now, at this point with that admission, do you wish to argue at this point regarding sentencing?
“[DEFENSE COUNSEL]: Yes, Your Honor.
“THE COURT: Okay.
“[PROSECUTOR]: Your Honor, if I could, I apologize. I just want to make sure in the admission the Court just took, one of those, there’s five [section] 667.5 priors, one of which is also the strike.
“THE COURT: Yes.
“[PROSECUTOR]: Okay.
“THE COURT: That’s correct. And he does have a strike.
“[PROSECUTOR]: Yes.
“THE COURT: Which, of course, is the basis for the [People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero)] motion here, in as much as this would be his second strike.”