Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC963746
RUSHING, P.J.
I. STATEMENT OF THE CASE
Defendant David Lynn Witcraft pleaded no contest to causing a false or fraudulent insurance claim to be filed. (Pen. Code, § 550, subd. (a)(1).) On appeal from the judgment, he claims defense counsel provided ineffective assistance by failing to renew a motion to dismiss the charge.
All unspecified statutory references are to the Penal Code.
Defendant obtained a certificate of probable cause from the trial court to raise this claim despite his plea. (§ 1237.5, subd. (b).)
Defendant also filed a petition for a writ of habeas corpus in which he raises the same claim. We ordered that the petition be considered with the appeal, and we shall resolve both the appeal and petition in this decision.
We affirm the judgment on appeal and deny the petition for habeas corpus.
II. BACKGROUND
On February 5, 2009, defendant was driving a Ford Ranger when he rear-ended Mary Jo Greenlee, injuring her and damaging her car. Officer Manual Ochoa of the San Jose Police Department responded. Defendant presented a driver’s license and an expired proof of insurance card and advised Officer Ochoa that he had insurance. Defendant also gave his insurance information to Greenlee.
The license plate on the Ranger had been stolen from a van owned by defendant’s former employer. (Jud. Not, Exh. D, 14-17)
On February 6, Greenlee made a claim against defendant’s insurance policy. On February 7, Greenlee’s husband, Officer Stephen Greenlee of the San Jose Police Department, spoke to defendant’s insurer and was told that neither defendant nor the Ranger were covered by defendant’s insurance.
On February 9, a claims representative for the insurer called defendant to follow up on Greenlee’s claim. At that time, defendant said that he had been driving a rented vehicle, which, if true, would have been covered, and promised to forward the rental contract. However, he never did so. The Ranger was not covered by his insurance because defendant had allowed that coverage to expire.
On April 2, 2009, the Santa Clara County District Attorney (DA) filed a complaint (Case No. CC939004) charging defendant with receipt of stolen property (count 1), providing false identification to a peace officer (count 2), presenting a false registration card (count 3), and failing to provide proof of automobile insurance (count 4). (§§ 496, subd. (a), 148.9; Veh. Code, §§ 4462, 4462.5, 16028, subd. (a).) The preliminary hearing was held on May 19, count 2 was amended to allege providing false information—i.e., the proof of insurance and statements that the Ranger was covered—(Veh. Code, § 31), and on July 29, defendant pleaded no contest to the charges as amended.
On December 11, 2009, DA filed a complaint (Case No. CC963746) charging defendant with causing a false insurance claim to be filed. On April 29, 2010, defendant filed a motion to dismiss the complaint under section 654. On June 5, the trial court denied the motion, and on July 30, after the preliminary hearing, defendant was held to answer. On September 20, defendant pleaded no contest to the charge.
III. THE APPEAL
Defendant contends that defense counsel rendered ineffective assistance by not renewing the motion to dismiss after the preliminary hearing, an omission that resulted in a forfeiture of any claim that the subsequent prosecution should have been dismissed.
To obtain reversal due to ineffective assistance, a defendant must first show “that defense counsel’s performance fell below an objective standard of reasonableness, i.e., that counsel’s performance did not meet the standard to be expected of a reasonably competent attorney[.]” (People v. Cunningham (2001) 25 Cal.4th 926, 1003; Strickland v. Washington (1984) 466 U.S. 668, 688.) Second, the defendant must show that there is “a reasonable probability that defendant would have obtained a more favorable result absent counsel’s shortcomings.” (People v. Cunningham, supra, 25 Cal.4th at p. 1003.) “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” (Strickland v. Washington, supra, 466 U.S. at p. 694; People v. Staten (2000) 24 Cal.4th 434, 450-451.)
Because the defendant bears this burden, “[a] reviewing court will indulge in a presumption that counsel’s performance fell within the wide range of professional competence and that counsel’s actions and inactions can be explained as a matter of sound trial strategy.” (People v. Carter (2003) 30 Cal.4th 1166, 1211.) Moreover, where the record on direct appeal “does not show the reason for counsel’s challenged actions or omissions, the conviction must be affirmed unless there could be no satisfactory explanation.” (People v. Anderson (2001) 25 Cal.4th 543, 569.) Under such circumstances, claims of ineffective assistance are generally rejected on direct appeal and more properly raised in a petition for habeas corpus, which can include declarations and other information outside the appellate record that reveal the reasons for the challenged conduct. (People v. Mayfield (1993) 5 Cal.4th 142, 188 [“tactical choices presented... on a silent record” are “better evaluated by way of a petition for writ of habeas corpus” and will be rejected on direct appeal].)
The record on appeal does not reveal why trial counsel failed to renew the motion to dismiss. However, defendant included an explanatory letter from counsel as an exhibit to the petition for habeas corpus.
Under the circumstances, we reject defendant’s claim on appeal and address it in connection with our review of the sufficiency of the petition.
IV. THE HABEAS PETITION
To warrant the issuance of an order to show cause, defendant bears the burden of stating a prima facie case for habeas relief. (In re Bower (1985) 38 Cal.3d 865, 872.)
In his letter, trial counsel explained that a colleague initially represented defendant and filed the motion to dismiss in which defendant claimed that the second case violated the prohibition against multiple prosecutions. After the preliminary hearing, counsel assumed responsibility for defendant’s case. He did not renew the motion because he thought the prior denial of the motion would preserve the issues raised in the motion for appeal.
Before trial court reunification, the failure to renew a previously denied motion in the superior court after the preliminary hearing resulted in a forfeiture of issues raised in the motion. (People v. Lilienthal (1978) 22 Cal.3d 891, 896-897 [suppression motion]; People v. Matthews (1986) 183 Cal.App.3d 458, 462-463 [motion for self-representation]; People v. Pendergrass (1986) 182 Cal.App.3d 63, 67 [motion to disclose confidential informant].) The rule has survived the unification of the trial court. (See People v. Hinds (2003) 108 Cal.App.4th 897, 900; People v. Hoffman (2001) 88 Cal.App.4th 1, 2-3; People v. Hart (1999) 74 Cal.App.4th 479, 485-486.)
Here, defendant’s claim of ineffective assistance hinges on the merits of the motion to dismiss. If it should have been granted, then counsel’s failure to renew it not only fell below an objective standard of professional reasonableness but it was also prejudicial, in that defendant could not have been prosecuted. Accordingly, we turn to the merits of the motion.
A. Applicable Principles
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 Kellett v. Superior Court (1966) 63 Cal.2d 822 (Kellett), the seminal case interpreting the statutory bar against multiple prosecutions, the Supreme Court held 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 is 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.) The purpose of the Kellett rule is to prevent needless harassment and the waste of public funds through multiple trials based on the same underlying facts. (Ibid.)
There is an exception to the Kellett rule “where 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.’ ” ’ ” (People v. Davis (2005) 36 Cal.4th 510, 558.) For this exception to apply, the prosecution must have exercised due diligence in searching for additional evidence. (Id. at p. 558.)
Moreover, “Kellett does not require, nor do the cases construing it, that offenses committed at different times and at different places must be prosecuted in a single proceeding.” (People v. Cuevas (1996) 51 Cal.App.4th 620, 624; People v. Ward (1973) 30 Cal.App.3d 130, 133, 136-137; People v. Douglas (1966) 246 Cal.App.2d 594, 596, 599.) Rather, the Kellett rule is limited to cases where the prosecutor has or can reasonably obtain sufficient evidence to sustain a conviction. (People v. Davis, supra, 36 Cal.4th at p. 558.) To “give practical meaning to the interpretation” of section 654 by Kellett, courts have developed and applied “an ‘evidentiary’ test as a guide to determining if the Kellett criterion (whether the same act or course of conduct plays ‘a significant part’ with respect to each crime) is met.... ‘[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 [Penal Code] sections 654 and 954, as explained in Kellett.’ More specifically, if 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 & fn. 1, quoting People v. Flint (1975) 51 Cal.App.3d 333, 338; accord People v. Valli (2010) 187 Cal.App.4th 786 (Valli).)
B. Discussion
Our summary of the facts reveals that on February 5, defendant rear-ended Greenlee’s vehicle, and he gave her false insurance information. On February 6, Greenlee used that information and filed a claim with defendant’s insurance company. On February 7, Greenlee’s husband, a Santa Clara County Police Officer, learned that the claim was no good because neither defendant nor his vehicle was insured.
In case No. CC963746, defendant was charged with a violation of section 550, subdivision (a)(1), which makes it unlawful to “Knowingly present or cause to be presented any false or fraudulent claim for the payment of a loss or injury, including payment of a loss or injury under a contract of insurance.” (§ 550, subd. (a)(1).)
Defendant claims that providing Greenlee with his insurance information after the accident was part of the same course of conduct that led to the charges in case No. CC939004 and doing so ultimately “caused” Greenlee to file what turned out to be a false or fraudulent claim and thus formed the basis for the charge in case No. CC963746. Thus, since the act of providing Greenlee with the insurance information was a significant part of both cases, the Kellett rule barred the subsequent prosecution.
In support of his claim, defendant cites People v. Britt (2004) 32 Cal.4th 944 (Britt). There, the defendant, a sex offender, was required to register with the appropriate law enforcement agency where he lived, notify the agency when he moved to another county, and register with the appropriate agency in the new county. Defendant failed to notify the agency that he moved and later he failed to register in the new county upon his arrival. Because the single course of conduct—i.e., an unreported move—played a significant part in both offenses, section 654 barred separate prosecutions for each offense in different counties. (Id. at pp. 954-956.)
Defendant likens providing his insurance information to Greenlee to the unreported move by the defendant in Britt.
The Attorney General argues that defendant is mistaken about the factual basis for the charge in the second case. That prosecution was not based on defendant’s course of conduct on February 5; rather, the charge was expressly based on the statements defendant made to the insurer’s claims representative several days later.
The record supports this argument. In his written opposition to defendant’s motion to dismiss case No. CC963746, the DA explained that while all of the charges in case No. CC939004 arose on February 5 and were part of a single course of conduct, the subsequent charge under section 550 was based on the conduct on February 9, when defendant spoke to the insurer’s claims representative and falsely asserted that he was driving a rented Ford van at the time of the accident.
At the hearing on the motion, the prosecutor again asserted that the subsequent prosecution was based on defendant’s false statement to the insurer’s representative on February 9.
In denying the motion, the court reasoned that the subsequent prosecution was based on defendant’s false statements to the representative, and therefore, the evidence necessary to prove the crimes arising out of the course of conduct on February 5 was not necessary or the same required to prove the subsequent charge.
After the motion was denied, the prosecutor reiterated the basis for the charge at the preliminary hearing. At that time, defense counsel focused on defendant’s act of providing Greenlee with his expired insurance information and argued that defendant did not do so with the expectation that she would make a claim or with the intent to defraud anyone. The prosecutor, however, again argued that defendant committed the crime because “he claimed that he had a vehicle that was rented that would have been covered, and it was not covered because he wasn’t driving a rented vehicle....”
Defendant notes that lying to the insurer’s representative a few days later is a violation of section 550, subdivision (b)(1), which proscribes knowingly presenting or causing to be presented any false or misleading information in support of a claim. However, defendant was charged with violating section 550, subdivision (a)(1), which proscribes presenting or causing to be presented a false claim, and the only claim that was presented to defendant’s insurer was the claim presented by Greenlee.
We conclude that the trial court properly denied the motion to dismiss. Given the factual theory underlying the subsequent prosecution, the Attorney General argues, and we agree, that the evidence required to prove the charges in the first case was not necessary or essential to prove the charge in the second case. To prove the former, the prosecution would have introduced testimony from Greenlee about the accident and the information defendant provided to her and the testimony from the arresting officer about what defendant said to him as well as evidence concerning the origin of the license plate on the Ford Ranger.
We acknowledge that some of that evidence from the first case may have come out in a later prosecution. However, the Kellett rule does not automatically apply just because there is some evidentiary overlap between separate cases.
For example, in Valli, supra, 187 Cal.App.4th 786, the defendant was tried for murder and attempted murder. At the trial, the prosecution introduced evidence that the day after those alleged offenses were committed, the police stopped a car in which the defendant was a passenger, and he then took the car and escaped. A week later, police spotted the defendant again in another car and stopped it. Again, the defendant and the driver took off. After a chase, the car stopped, and defendant fled. He was later caught and arrested. (Id. at p. 791-792.) After defendant was acquitted on the murder and attempted murder charges, he was prosecuted for evading arrest. (Id. at p. 793.)
On appeal, the court rejected a claim that section 654 and the Kellett rule barred the subsequent prosecution. The court first found that the prosecutor knew or should have known about the evading charges when he prosecuted the defendant for murder and attempted murder. (Valli, supra, 187 Cal.App.4th at p. 796.) Thus, the critical question was whether the same course of conduct played a significant part in the prosecution for both sets of offenses. (Id. at pp. 796-797.)
The court acknowledged that separate prosecutions had been allowed for crimes that occurred on separate dates and in separate locations. (Valli, supra, 187 Cal.App.4th at pp. 797-798.) However, the court declined to extract from those cases a simple “different time[s]” “different location[s]” limitation on the Kellett rule. Indeed, the court noted that in Britt, supra, 32 Cal.4th 944, the court barred separate prosecutions for failing to notify authorities in one county about a change in address and a failure to register in the new county even though the two offenses occurred at different times and places. (Valli, supra, 187 Cal.App.4th at p. 798.) Rather, the court focused on whether proving separate sets of charges required different evidence. The court observed that in the case before it, “[d]ifferent evidentiary pictures are required—one of a shooting at night and the other of police pursuits in the following days.” (Id. at p. 799.)
The court acknowledged that many of the witnesses to the evading testified at the murder trial, at which the prosecution did more than simply establish the fact of the evading but actually proved felony evading. Nevertheless, mere use of the evading evidence to establish consciousness of guilt in the murder trial did not bar the subsequent prosecution because the evidence needed to prove the murder and attempted murder charges did not supply the proof of evading, and there was little, if any, evidentiary overlap. (Valli, supra, 187 Cal.App.4th at p. 800.)
Here too, the evidence necessary to prove receipt of stolen property, providing false information, presenting a false registration card, and failing to provide proof of automobile insurance would not have been necessary to prove the subsequent charge; rather, as noted, the subsequent charge was based on conduct that occurred at another time and place, and the critical evidence would have been the testimony of the insurer’s representative to whom defendant lied about having driven a rental vehicle as well as documentary evidence in the insurer’s file on the claim.
Finally, concerning defendant’s assertion that his false statements to the insurer’s representative more appropriately constituted a violation of section 550, subdivision (b)(1) than subdivision (a)(1), which he was charged with, we note that the court properly could have allowed the prosecutor to amend the information to allege a violation of the former instead of the latter subdivision up to the close of a trial on the latter charge because the evidence presented at the preliminary hearing provided adequate notice of that offense. (People v. Arevalo–Iraheta (2011) 193 Cal.App.4th 1574, 1580-1581.) Defendant implicitly concedes that had he been charged with that offense, section 654 and the Kellett rule would not have barred a separate prosecution. However, the case did not proceed to trial, and defendant’s decision to plead no contest to the charge obviated the need for such an amendment.
It is clear from the prosecutor’s repeated statements in opposition to the motion to dismiss and later at the preliminary hearing that the criminal conduct that defendant was being prosecuted for in the second case was his act of providing false information to the insurer. Under the circumstances, section 654 and the Kellett rule did not bar a subsequent prosecution for that conduct.
Given our analysis and discussion, we conclude that defendant cannot establish that defense counsel’s failure to renew the motion was prejudicial. More specifically, counsel’s omission does not undermine our confidence in the judgment because we do not find a reasonable probability that the motion would, or should, have been granted had counsel renewed it. Accordingly, defendant has failed to state a prima facie case for habeas relief.
V. DISPOSITION
The judgment is affirmed. The petition for a writ of habeas corpus is denied.
WE CONCUR: PREMO, J., ELIA, J.