P. v. Rios

Filed 9/27/06 P. v. Rios CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

APPEAL from a judgment of the Superior Court of Los Angeles County, Darlene Schempp, Judge. Affirmed.

Cheryl Barnes Johnson, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Ana R. Duarte and Catherine Okawa Kohm, Deputy Attorneys General, for Plaintiff and Respondent.

________________

INTRODUCTION

Defendant Pete Rios appeals from the judgment entered after he pled no contest to second degree commercial burglary (Pen. Code, § 459[1]) and admitted one prior strike conviction (§§ 667, subds. (b)-(i), 1170.12). Having obtained a certificate of probable cause (§ 1237.5), defendant contends that the trial court erred in denying his motion to dismiss this case pursuant to Kellett v. Superior Court (1966) 63 Cal.2d 822 (Kellett). We affirm the judgment.

BACKGROUND

Pre-Preliminary Hearing Motion to Dismiss

Prior to the preliminary hearing, defendant made a motion pursuant to Kellett to dismiss this case on the ground of multiple prosecutions. The evidence at that hearing disclosed the following:

Around noon on October 28, 2004, defendant burglarized a commercial establishment, A.T.A. Custom, located at 21402 Wyandotte. Defendant, who stole a camera from that business, fled on foot. The owner of the business, Sal Yehudi (Yehudi), and other individuals chased after defendant. When the police arrived, witnesses informed them that defendant last had been seen in the area of Owensmouth and Valerio, going over a fence. The witnesses later regained sight of defendant when he again jumped over a fence and entered an alley. A scuffle ensued followed by defendant’s arrest.

The police file regarding defendant’s burglary of A.T.A. Custom was sent to the Los Angeles City Attorney’s Office for review. There was nothing in the file to indicate that a second burglary had occurred. On November 1, defendant pled guilty to misdemeanor burglary stemming from the A.T.A. Custom incident.

On November 1, 2004, Rochanda Romero (Romero) went to the West Valley Police Station where she spoke with Detective Galleria in the presence of Detective Greg De Rousseau. Romero advised Detective Galleria that her “home” on Owensmouth had been burglarized and that various items, including a camera and orange sweatshirt, were missing. Romero also stated that a neighbor had told her about an “incident” that had happened in the neighborhood. Romero thought that perhaps the “incident” was related to the disappearance of her property. Romero did not shed any light on what the incident was, however.

Detective Galleria did not have a point of reference, in that Romero’s name was not mentioned in any police reports. When the detective ran Romero’s address through the computer, he discovered that at 10:00 p.m. on October 28, 2004, a woman named Martha Phelps (Phelps) had made a police report about a crime that had been committed at the address Romero mentioned. Specifically, Phelps reported that a camera and set of keys had been taken from her “detached office.” Phelps also reported finding a blue sweatshirt in the yard in front of the office.

Phelps was the owner of the property. Romero rented the guesthouse in the rear of the main residence. According to Detective De Rousseau, the office from which Romero’s property was stolen was located inside the guesthouse. The incident number listed on the report given by Phelps was not the same as the number listed on the report pertaining to the A.T.A. Custom’s incident. Thus, there was no way for the police department’s “table coordinator” to connect the two incidents.

It was only at this juncture that Detective Galleria began to put two and two together. He reviewed “his books” and realized for the first time that defendant may have had something to do with the burglary of Romero’s property. Detective Galleria remembered that Yehudi had called to say that the camera the police returned to him was not his.

At this point, Detective De Rousseau was assigned to follow up. When Detective De Rousseau showed Romero a photograph of defendant, Romero said, “That’s my orange sweater taken from my home.” Romero also viewed a picture of a camera, which she positively identified as hers. This was the camera that initially had been given to Yehudi.

Detective De Rousseau then went to the Van Nuys courthouse lockup to see defendant. Defendant waived his Miranda[2] rights and explained that while he was trying to get away from the people pursuing him, he entered Romero’s “house.” In an effort to disguise himself, he changed his clothes. Specifically, he took off his blue sweatshirt, which he left in the yard, and put on an “orange shirt.” Defendant then told Detective De Rousseau that the police had given the camera to the wrong person. Defendant had taken the camera from the Owensmouth property. Romero thereafter identified her house and car keys in the property bag purportedly holding defendant’s belongings.

The police contacted the Los Angeles City Attorney’s Office and informed it about the discovery of the second burglary. By this time, however, defendant already had entered a plea of guilty to misdemeanor burglary stemming from the A.T.A. Custom incident. Upon being apprised about the Romero burglary,[3] the Los Angeles District Attorney’s Office instituted this prosecution against defendant.

The trial court denied defendant’s Kellett motion, concluding that the police were unaware of the connection between the A.T.A. Custom and Romero burglaries and were not on “constructive notice” that the two incidents occurred “at about the same time.” By the time the police discovered the connection, defendant already had plead to the misdemeanor. The court further cited Stackhouse v. Municipal Court (1976) 63 Cal.App.3d 243 for the proposition that any possible harassment from separate prosecutions was outweighed by the risk that defendant would escape prosecution for what it perceived to be a more serious burglary.

Post-Preliminary Hearing Motion to Dismiss

After the preliminary hearing, defendant renewed his motion to dismiss based on new evidence adduced at the preliminary hearing. This new evidence was supplied by Romero, who did not testify at the hearing on defendant’s first motion to dismiss.

According to Romero, on October 28, 2004, she “lived” on Owensmouth in a guesthouse that she rented. She also rented an office on the same property, but the office was separate from the guesthouse. When Romero left around 7:30 a.m., her camera and orange shirt were in her office. The door to her office was closed but not locked. Romero locked only the carport that led to the back of the property. Romero did not give anyone permission to enter, or to remove items from, her office.

Romero returned home at 5:00 p.m. to find a navy blue sweatshirt on the outdoor fireplace. Later, she spoke to a neighbor who told her that earlier in the day the police had arrested someone with a camera in the alley. Romero returned to her office to discover that her Minolta camera and orange sweatshirt were missing. Romero thereafter called the police. By 7:00 p.m., an officer came out to talk to Romero. She made a report about her camera and gave the officer the blue sweatshirt.

The “next day” an officer (perhaps Detective De Rousseau) called Romero and told her they had connected the two cases and had given her camera to the wrong person. On October 30, 2004, Romero got her keys and sweatshirt back. She got her camera back at a later date.

Detective De Rousseau testified, as he had at the hearing on defendant’s initial motion to dismiss, that Romero came to the West Valley police station on November 1, 2004. It was not until this date that the police put two and two together and realized that the person who had burglarized A.T.A. Custom on October 28, 2004 also was responsible for the burglary of the Owensmouth property.

The trial court denied defendant’s renewed dismissal motion stating: “Well, there certainly is no waste of judicial resources or any strain on the system. The defendant pled guilty at his arraignment to the misdemeanor two days after his arrest. He pled on November 1. And so the language that I think out of the Stackhouse case that the risk that petitioner will escape proper punishment far outweighs the risk of strain on judicial resources, of which I’ve said there is none, because of the lack that he would not be convicted of a felony. A residential burglary is much more serious than the misdemeanor that he pled to so I am going to deny the Kellett motion.” When defense counsel pointed out that the burglary of Romero’s office, which was separate from the guesthouse in which she lived, was not a residential burglary, the court did not change its ruling.

DISCUSSION

Defendant contends that the trial court should have granted his motion to dismiss pursuant to Kellett, supra, 63 Cal.2d 822. The People, in turn, assert that the trial court properly denied defendant’s motion to dismiss under Stackhouse v. Municipal Court, supra, 63 Cal.App.3d 243. We agree with the People.

Section 654, subdivision (a) provides: “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.” (Italics added.) This statute’s prohibition against multiple punishment is separate and distinct from its prohibition against multiple prosecution. The latter prohibition is a procedural safeguard against harassment and is not necessarily related to the punishment to be imposed. Thus, even when double punishment is permissible, double prosecution may be proscribed. (Kellett, supra, 63 Cal.2d at p. 825; Neal v. State of California (1960) 55 Cal.2d 11, 21.)

In Kellett, supra, 63 Cal.2d 822, the California Supreme Court observed that “[w]hen . . . 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.) “[I]f an act or course of criminal conduct can be punished only once under section 654, either an acquittal or conviction and sentence under one penal statute will preclude subsequent prosecution in a separate proceeding under any other penal statute. [Citation.]” (Id. at p. 828.) “Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. [Citation.]” (Id. at pp. 824-825; accord, People v. Britt (2004) 32 Cal.4th 944, 951-952.)

In Stackhouse v. Municipal Court, supra, 63 Cal.App.3d 243, the court held “that the rule against multiple prosecutions is inapplicable where . . . such prosecutions occur because of the lack of a common prosecutor and the risk of waste and harassment of multiple prosecutions is outweighed by the risk that a defendant guilty of a felony will escape proper punishment.” (At p. 247.)

The parties’ briefs are devoted, in large part, to a discussion of whether the police knew or should have known about the Romero burglary before defendant’s plea and conviction of misdemeanor burglary stemming from the A.T.A. Custom burglary and whether the exception discussed in Stackhouse is applicable. Neither of these issues need be resolved.

As far as we are concerned, neither section 654 nor Kellett is applicable to this case. “‘Although the fundamental fairness [test] prevents prosecutors from attempting to harass defendants by multiple indictments and successive trials for the purpose of wearing them down [citations], this test only applies to multiple prosecutions for offenses arising out of the same act, the same incident, or the same course of conduct.’” (People v. Cuevas (1996) 51 Cal.App.4th 620, 624, quoting People v. Douglas (1966) 246 Cal.App.2d 594, 598.) Kellett itself only compels joint prosecution of all offenses “in which the same act or course of conduct plays a significant part” and then only if the prosecution knows or should know about the crimes. (Kellett, supra, 63 Cal.2d at p. 827.) Thus, prosecutors are not required to try a defendant simultaneously for known crimes that are unrelated to one another simply to protect against the possibility of harassment. (Douglas, supra, at p. 599.)

In this case, defendant committed two separate and distinct burglaries at two separate and distinct locations. The crimes themselves did not overlap in anyway. As the Court of Appeal aptly observed in People v. Cuevas, supra, 51 Cal.App.4th 620: “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.” (At p. 624, italics omitted.)

That the two crimes were committed in temporal and spatial proximity to one another does not compel the conclusion that they were part of a course of conduct. (People v. Ward (1973) 30 Cal.App.3d 130, 136.) As previously noted, whether a course of criminal conduct is divisible and gives rise to more than one act within the meaning of section 654 depends on the defendant’s intent and objective. (Kellett, supra, 63 Cal.2d at pp. 824-825.)

The burglary of A.T.A. Custom was complete the moment defendant entered the establishment with the requisite intent to commit a felony therein. His subsequent decision to burglarize another structure on a different street does not in any way entitle him to the protection of section 654’s proscription against multiple prosecutions. Defendant’s decision to burglarize Romero’s office was an afterthought, the objective of which, in part, was to avoid apprehension. We therefore conclude that the trial court properly denied defendant’s motion to dismiss.

The judgment is affirmed.

NOT TO BE PUBLISHED

JACKSON, J.*

We concur:

VOGEL, Acting. P. J.

ROTHSCHILD, J.

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[1] All statutory references hereinafter are to the Penal Code.

[2] Miranda v. Arizona (1966) 384 U.S. 436.

[3] For ease of reference, we refer to the commercial burglary in this case as the Romero burglary, observing that the People actually charged defendant with the burglary of a “commercial building occupied by” Phelps.

* Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.