Opinion
F085261
02-14-2024
THE PEOPLE, Plaintiff and Respondent, v. KEVIN RAY GUTIERREZ, Defendant and Appellant.
Maureen M. Bodo, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Lewis D. Martinez and Amanda D. Cary, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County, No. BF174085A Judith K. Dulcich, Judge.
Maureen M. Bodo, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Lewis D. Martinez and Amanda D. Cary, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
THE COURT [*]
Defendant Kevin Ray Gutierrez contends on appeal that the judgment must be reversed because the court erroneously denied his Kellett motion. The People disagree. We affirm.
Kellett v. Superior Court (1966) 63 Cal.2d 822 (Kellett).
PROCEDURAL SUMMARY
Case No. BM926425A
On October 2, 2018, the Kern County District Attorney filed a complaint charging defendant with one count of misdemeanor domestic violence (Pen. Code, § 243, subd. (e)(1); count 1). On October 2, 2018, defendant pleaded no contest and the trial court found him guilty. The court granted a criminal protective order for the victim and sentenced defendant to three years of court probation and suspended his sentence.
All statutory references are to the Penal Code.
The Kern County District Attorney filed a third case in case No. BF174495A, alleging the same charges included in both case Nos. BM926425A and BF174085A. During a hearing in case No. BF174085A on April 27, 2022, the trial court noted that case No. BF174495A contained the same charges as the other two cases. The People moved to dismiss case No. BF174495A because it was duplicative. The court granted the motion.
On June 10, 2019, the Kern County District Attorney filed an information charging defendant with arson of an inhabited structure (§ 451, subd. (b); count 1); two counts of arson of property with intent to defraud (§ 451, subd. (d); counts 2 &3); felony maiming of an animal (§ 597, subd. (a); count 4); and misdemeanor maiming of an animal (§ 597, subd. (a); count 5).
Defendant pleaded not guilty to all counts. On April 14, 2022, defendant filed a Kellett motion to dismiss the charges due to multiple prosecutions. The prosecution filed an opposition to defendant's motion.
On April 27, 2022, the trial court held a hearing on the Kellett motion and on May 2, 2022, denied the motion.
On May 13, 2022, defendant filed a motion to reconsider his Kellett motion. The prosecution filed an opposition.
On August 9, 2022, the trial court denied defendant's motion for reconsideration.
On September 21, 2022, defendant pleaded no contest to all counts on the condition that the court impose the indicated sentence of five years of felony probation with one year of private electronic monitoring, a 10-year criminal protective order, and restitution.
On November 9, 2022, the trial court placed defendant on formal probation for five years, with one year of electronic monitoring and various terms and conditions, and a 10-year criminal protective order.
On November 10, 2022, defendant filed a timely notice of appeal with a request for a certificate of probable cause. The request for a certificate of probable cause was granted on the same date.
The facts of the case are taken from the preliminary hearing transcript and the prosecution's opposition to defendant's Kellett motion.
In 2018, defendant and Tiffany were in a romantic relationship and living together.
Tiffany was alternately described in underlying proceedings as defendant's wife and fiancee.
On September 25, 2018, at approximately 8:30 p.m., Tiffany and defendant were upstairs in their house. They were arguing because defendant accused her of cheating on him. Defendant struck Tiffany in the side of her head with his fist.
As defendant continued to accuse her of being unfaithful, she told him she needed to use the restroom downstairs, but instead ran outside to neighbor James's house across the street to get away from defendant. At approximately 9:21 p.m., James called the police for Tiffany.
Tiffany reported to the responding officer, Bakersfield Police Officer Aaron Salinas, that defendant had been "confrontational" with her, and accused her of cheating on him. Salinas attempted to make contact with defendant at the house, but he refused to answer. As there were no exigent circumstances that would justify a forced entry by the officer, Tiffany arranged to stay elsewhere with a friend and she and Salinas left.
At approximately 10:20 p.m., shortly after leaving the scene, Salinas received updated information that defendant was making threats of suicide. Defendant's friend, John, told Salinas that defendant sent him a text message that he construed as suicidal, so he went to defendant's house and found him in the garage, hanging himself with an electrical cord. John found defendant" 'squirming'" and" 'turning blue.'" John had cut defendant down and pulled him out to the driveway. Defendant was taken to the hospital.
James, defendant's neighbor who called the police earlier for Tiffany, also called the police a second time when he heard glass breaking and looked outside. He told Salinas he saw an orange glow from the rear of defendant's residence, which he believed were flames.
After Tiffany arrived at her friend's house, she received a call from police or fire dispatch informing her of the fire, and was told to return to her house.
Tiffany had five pets in the house at the time of the fire: two birds and three dogs. There was no "doggy door" in the house. Firefighters found one of Tiffany's dogs, Stella, under a desk inside. Stella would not allow firefighters to get close to her, so the firefighters brought Tiffany inside to get her while they were still putting out the fire. Stella was covered in a black substance. After the fire, Stella needed sedatives for clinginess and nervousness and had a raspy bark for some time. Tiffany's birds died in the fire. Tiffany did not state to police whether she believed defendant knew the dogs were in the house at the time of the fire.
Victor Mabry of the Bakersfield Fire Department, Fire and Arson Investigation Division responded to the fire at defendant's house to investigate its source. When he arrived, Bakersfield Fire Department Captain Garrett Pacheco told him that he initially believed the fire was coming from the backyard, but then realized it was coming from inside the house and extending into the backyard.
Mabry investigated the fire, taking photographs of the scene. Mabry found burned cans of lighter fluid on the kitchen table and kitchen counter. Tiffany told him that when she left the house earlier that evening after defendant struck her, there were no lighter fluid cans inside the house. Mabry noted three distinct points of origin of the fire inside the house: the southeast corner of the living room; the bed in the primary bedroom; and the closet of the primary bedroom. After completing a physical examination of the house, Mabry spoke with Tiffany. She told him she and defendant had been having marital problems and that she left the house earlier that evening to stay with a friend. Mabry determined that the three fires were set in the house deliberately by defendant with an open-flame device, like a cigarette lighter or match, using ordinary combustibles, like CDs and DVDs, bed linens, and clothing. Mabry noted bird cages in the house but did not recall whether he observed any animals inside the house.
DISCUSSION
Defendant contends the judgment in case No. BF174985A must be reversed because the court erroneously denied his Kellett motion. He argues the arson-related offenses are barred by Kellett because those offenses and the domestic violence offense in case No. BF174985A involved a single course of conduct that occurred at the same location over a short period of time, and he had already been prosecuted for domestic violence in case No. BM926425A. He further argues the prosecution was aware of the arson-related charges when he was prosecuted for the misdemeanor domestic violence offense in case No. BM926425A. The People disagree. We agree with the People.
A. Law
Section 654 states, "An act or omission that is punishable in different ways by different provisions of law may be punished under either of such provisions, 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." (§ 654, subd. (a).) The preclusion of multiple punishment is "a procedural safeguard against harassment and is not necessarily related to the punishment to be imposed; double prosecution may be precluded even when double punishment is permissible." (Neal v. State (1960) 55 Cal.2d 11, 21, disapproved on other grounds in People v. Correa (2012) 54 Cal.4th 331, 341.)
In Kellett, the Supreme Court analyzed the meaning of substantially similar language in a former version of section 654. (Kellett, supra, 63 Cal.2d at p. 824, fn. 1.) Kellett held:
"[If] 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.)
In Kellett, the defendant was arrested while "standing on a public sidewalk with a pistol in his hand." (Kellett, supra, 63 Cal.2d at p. 824.) After being convicted of a misdemeanor brandishing offense, he challenged a separately filed felony gun possession charge based on the same incident. The second prosecution was held to violate the above quoted rule. The holding rested on two policy considerations: (1) the need for" 'a procedural safeguard against harassment'" of criminal defendants, and (2) protection of the "public fisc." (Id. at pp. 825, 826.) "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." (Id. at p. 827.)
However, "the offenses must be transactionally related, and not just joinable, before the Kellett rule applies." (People v. Valli (2010) 187 Cal.App.4th 786, 796 (Valli); People v. Turner (1985) 171 Cal.App.3d 116, 129.) Whether the offenses are transactionally related under Kellett depends on whether they are factually "too interrelated to permit their being prosecuted successively." (Kellett, supra, 63 Cal.2d at p. 827; see also People v. Flint (1975) 51 Cal.App.3d 333, 336.)
Two different tests have been developed for determining whether the Kellett rule has been violated: a" 'time and place test'" and an" 'evidentiary test.'" (E.g., People v. Ochoa (2016) 248 Cal.App.4th 15, 28-29.) The "time and place" "line of cases finds Kellett not applicable where the offenses are committed at separate times and locations." (Valli, supra, 187 Cal.App.4th at pp. 797-798.) The crucial test is whether "the same act or course of conduct play[ed] a significant part" in the two prosecutions. (Kellett, supra, 63 Cal.2d at p. 827; People v. Linville (2018) 27 Cal.App.5th 919, 928 (Linville); Valli, at pp. 796-797.)
However, "Kellett is not necessarily a simple 'different time/different place' limitation." (Valli, supra, 187 Cal.App.4th at pp. 797-798.) Rather, in the second category of cases, which tend to involve closer questions of interrelatedness, reviewing courts have focused on "the evidence necessary to prove the offenses." (People v. Ochoa, supra, 248 Cal.App.4th at p. 29.) "[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." (People v. Hurtado (1977) 67 Cal.App.3d 633, 636.) The test "requires more than a trivial overlap of the evidence," and "[s]imply using facts from the first prosecution in the subsequent prosecution does not trigger application of Kellett." (Valli, at p. 799.) The test requires "examining the totality of facts in light of section 654's legislative goals." (Linville, supra, 27 Cal.App.5th at p. 934, citing Valli, at p. 799.) "Accordingly, courts will decline to apply the bar on successive prosecutions where doing so will not serve 'the policies underlying section 654'-namely, 'preventing harassment of the defendant and the waste of public resources through relitigation of issues ...'" (Short v. Superior Court (2019) 42 Cal.App.5th 905, 912, quoting People v. Davis (2005) 36 Cal.4th 510, 558 and citing Linville, at p. 934.)
Additionally, "[t]he bar against successive prosecutions is subject to a judicially recognized exception for unavailable evidence." (Linville, supra, 27 Cal.App.5th at p. 928.) "[T]he exception applies when the prosecutor '"' "is unable to proceed on the more serious charge at the outset because the additional facts necessary to sustain that charge have not occurred or have not been discovered despite the exercise of due diligence." '" '" (Ibid., quoting People v. Davis, supra, 36 Cal.4th at p. 558.)
Furthermore, a defendant "will not be deemed 'harassed' under ... section 654[ ] where the claimed harassment 'may be said to result from his own conduct.'" (In re Troglin (1975) 51 Cal.App.3d 434, 439.)
However, while "[a]n accusatory pleading may charge two or more different offenses connected together in their commission, or different statements of the same offense or two or more different offenses of the same class of crimes or offenses, under separate counts," pursuant to section 954, "[w]e refuse to require prosecutors to proceed against a defendant on all known charges simultaneously," where the "necessary interrelation of [the offenses] is missing." (Valli, supra, 187 Cal.App.4th at pp. 795, fn. 2, 801.)
Section 954 states: "An accusatory pleading may charge two or more different offenses connected together in their commission, or different statements of the same offense or two or more different offenses of the same class of crimes or offenses, under separate counts, and if two or more accusatory pleadings are filed in such cases in the same court, the court may order them to be consolidated. The prosecution is not required to elect between the different offenses or counts set forth in the accusatory pleading, but the defendant may be convicted of any number of the offenses charged, and each offense of which the defendant is convicted must be stated in the verdict or the finding of the court; provided, that the court in which a case is triable, in the interests of justice and for good cause shown, may in its discretion order that the different offenses or counts set forth in the accusatory pleading be tried separately or divided into two or more groups and each of said groups tried separately. An acquittal of one or more counts shall not be deemed an acquittal of any other count." (§ 954.)
"On appeal, we review factual determinations under the deferential substantial evidence test, viewing the evidence in the light most favorable to the People. [Citation.] We review de novo the legal question of whether section 654 applies." (Valli, supra, 187 Cal.App.4th at p. 794.)
B. Analysis
Here, prosecution of the arson-related offenses are not barred by Kellett. Neither defendant's conduct relating to, nor the evidence necessary to prove, the domestic violence offense is sufficiently interrelated to his conduct relating to, or evidence necessary to prove, the arson-related offenses for Kellett to require simultaneous prosecution. Accordingly, while the prosecution was aware of the arson-related offenses when he was prosecuted for the domestic violence offense, it was not required by section 654 and Kellett to proceed against defendant on the arson-related charges at the same time.
Defendant first argues the court erred by denying his Kellett motion because "all of [defendant]'s actions were close in time and were part of what appears to have been a psychological and emotional breakdown."
However, while defendant may have been having a breakdown throughout the evening of the incidents, the course of action constituting the domestic violence offense had a distinct beginning, duration, and end that terminated before the course of action constituting the arson-related offenses began. While both the domestic violence incident and arson-related incident happened close in time to each other at the same house, they did not overlap. (See People v. Douglas (1966) 246 Cal.App.2d 594, 599 (Douglas).)
In Douglas, supra, 246 Cal.App.2d 594, after committing a series of robberies "on various dates from June 29, 1958, to October 10, 1958," two defendants engaged in a "gunfight" with police officers who were attempting to arrest them for the robberies. The gunfight, which happened on October 20, 1958, resulted in the death of an officer. (Id. at pp. 595-596.) "[The defendants] were indicted for the murder of the officer, and, after two trials, . . . [one defendant] was acquitted and [the other defendant] was convicted of second-degree murder ._" (Id. at p. 596.) In a subsequent prosecution, both defendants were convicted of robbery and assault based on events preceding the homicide. (Ibid.)
On appeal, the defendants argued "there was something unfair or unconstitutional in the initiation of a prosecution against them for earlier robberies and assaults after they had stood trial for a later murder." (Douglas, supra, 246 Cal.App.2d at p. 598.) The appellate court quoted the Kellett holding before rejecting the claim, stating:
"[The Kellett] rule is designed to cover prosecutions for offenses arising out of the same act. But in the present case defendants were prosecuted for unrelated offenses arising from separate physical acts performed at different times. A murder, a robbery, an assault, like every other action, normally has a beginning, a duration, and an end, and where, as here, none of these overlap, simultaneous prosecution is not required under any present theory of jurisprudence. The offenses found too closely related in Kellett to be prosecuted separately arose at the same moment in time and were based on a single act-brandishing a pistol-whence came both the charge of exhibiting a firearm in a threatening manner and the charge of possession of a concealable weapon by a felon." (Douglas, supra, 246 Cal.App.2d at p. 599, italics added.)
As in Douglas, defendant's acts here consisted of two separate courses of action and separate physical acts. Although the events here occurred in close succession on the same evening, the same acts or course of conduct did not play a significant role in both sets of offenses. The domestic violence offense consisted of an argument with Tiffany at approximately 8:30 p.m., culminating in defendant striking her in the head with his fist. After defendant struck Tiffany, she left the house. James contacted police for her at approximately 9:21 p.m. Salinas responded to the 911 call and spoke to Tiffany, but she and Salinas left the scene when defendant did not answer his door, because there were no exigent circumstances. This ended the course of action related to the domestic violence offense.
However, the course of action constituting the arson-related offenses did not begin until after Tiffany and Salinas left defendant's house. Sometime shortly after Tiffany and Salinas's departure, defendant lit three fires throughout his house and then attempted to hang himself in his garage. Police received an emergency call at approximately 10:20 p.m. about defendant's attempted suicide, and the neighbor, James, also called police at some point during that time period when he noticed flames in defendant's backyard.
While these events all occurred on the same evening at defendant's house, the domestic violence offense had already concluded and Tiffany was no longer present before defendant embarked on the course of conduct of the arson-related offenses. Accordingly, the same act or course of conduct in the domestic violence offense did not "play[ ] a significant part" in the arson-related offenses. (See Kellett, supra, 63 Cal.2d at p. 827.)
Second, the evidence supporting the domestic violence offense does not "necessarily suppl[y] proof of the" arson-related offenses. While there is some "trivial overlap" in the witnesses and the offenses occurred at the same house, "[s]imply using facts from the first prosecution in the subsequent prosecution does not trigger application of Kellett." (Valli, supra, 187 Cal.App.4th at p. 799.)
A notable case from the "evidence" category of decisions is People v. Flint (1975) 51 Cal.App.3d 333 (Flint), which involved successive prosecutions for misdemeanor drunk driving and felony "theft and joy riding violations." (Id. at p. 335.) Police found the defendant in the driver's seat of a Corvette, "which was straddling railroad tracks," at approximately 2:20 a.m. (Ibid.) The car had recently been stolen. There was evidence the theft may have occurred the previous day, but a court finding placed the times of the offenses within a window of 20 minutes. (Id. at pp. 334-335 & fn. 1.)
In Flint, the People appealed from a dismissal "based on the prohibition against multiple prosecution contained in section 654." (Flint, supra, 51 Cal.App.3d at p. 334.) The order of dismissal was affirmed, primarily because "the same incident which furnished the evidence that defendant was driving in an intoxicated condition, also supplied proof that what he was driving was an automobile he had stolen. [Citation.] Further, it was obviously the impounded car which, when matched against the victim's crime report, triggered the theft prosecution." (Id. at p. 338.) The Flint court stated:
"Neither the purpose of the [Kellett] rule-prevention of needless harassment and waste of public funds; nor the criterion for its applicability-whether the same act or course of conduct plays 'a significant part' with respect to each crime-suggests that its applicability in a particular case depends on abstract definitions of the elements of the respective crimes or on the precise moment when, as a matter of law, one crime was completed. What matters, rather, is the totality of the facts, examined in light of the legislative goals of sections 654 and 954, as explained in Kellett." (Flint, supra, 51 Cal.App.3d at p. 336, fn. omitted, italics added.)
Here, the evidence supporting the domestic violence offense, had it gone to trial, would have likely consisted of testimony by Tiffany, Salinas, and James, the neighbor who called 911 for Tiffany, about Tiffany and defendant's argument and defendant striking her.
However, the evidence that would have been used to prove the arson-related offenses, had they gone to trial, would have consisted of James's testimony about the fire in defendant's backyard, John's testimony about defendant's text and finding him hanging in his garage, Salinas's testimony about returning to the scene in response to updated information about defendant threatening suicide and speaking to John and James, the firefighters' testimony about the fire and the rescue of Stella the dog, Tiffany's testimony about returning to the house to rescue Stella, Mabry's testimony about his investigation into the source of the fire, and any physical evidence related to the fire or the condition of the animals harmed in it.
Although there is some overlap in the witnesses, looking at the totality of the facts, the evidence related to the domestic violence offense is mostly unrelated to and not necessary to prove the arson-related offenses. While Tiffany's testimony would provide both evidence of the domestic violence offense and the offenses related to the animals being harmed by the fire, her testimony for the domestic violence offense would be about their argument and defendant striking her, while her testimony about the arson-related offenses would only supply evidence of how many animals were in the house before the fire, and Stella's rescue and recovery. However, her testimony would not prove how the fires started or who started them. Nor would Salinas's testimony about the domestic violence incident prove how the fires started or who started them, as there was a break in time between that incident and the arson incident, during which he left the scene, and only returned sometime after in response to receiving updated information about defendant's attempted suicide.
Further, while the arson-related offenses occurred on the same evening as the domestic violence offense, they had different victims. The victim of the domestic violence offense was Tiffany, while the victims in the arson were the animals in the house.
Looking at the totality of facts, the two offenses are not interrelated enough to be required to be prosecuted at the same time by Kellett. Accordingly, the trial court did not err by denying defendant's Kellett motion.
DISPOSITION
The judgement is affirmed.
[*] Before Detjen, Acting P. J., Pena, J. and Snauffer, J.