P. v. Rhea

Filed 10/24/07 P. v. Rhea CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

APPEAL from an order of the Superior Court of Tulare County. Gary L. Paden, Judge.

Phillip J. Cline, District Attorney, Don Gallian and Carol B. Turner, Assistant District Attorneys, and Barbara J. Greaver, Deputy District Attorney, for Plaintiff and Appellant.

No appearance for Defendant and Respondent.

-ooOoo-

The People appeal from an order dismissing a complaint in Tulare County case No. 173003 against Megan Roberts Rhea. The trial court dismissed the complaint based on its finding that the complaint in No. 173003 arose from the same course of conduct that resulted in a guilty plea by Rhea in Tulare County case No. 168902. We reverse.

FACTS AND PROCEDURAL HISTORY

On August 13, 2006, Rhea was stopped for a traffic violation by a Visalia police officer. It was learned that she was driving on a suspended drivers license. She consented to a search of her vehicle. A purse was found in the car. The purse contained numerous checks belonging to several individuals and businesses. Rhea was arrested for possession of stolen property, as well as for driving with a suspended license. In addition, the arresting officer believed that Rhea was under the influence of methamphetamine.

On August 14, 2006, Rheas mother contacted the Visalia Police Department and reported that there was mail in her daughters bedroom that she believed did not belong to her daughter, as well as hypodermic syringes. The mother told the responding officer that her daughter was arrested the day before for driving under the influence and possession of stolen property and the mother was cleaning out Rheas bedroom when she found the items.

Based on the mothers complaint, a search warrant was obtained and Rheas bedroom was searched. Officers located two syringes. In addition, officers seized numerous items not belonging to Rhea, including 16 canceled business checks, bank statements, bills, personal checks, insurance policies, letters, a credit card, and a checkbook with checks. These items belonged to various unrelated victims.

Concerning Rheas activities of August 13, 2006, a complaint was filed on August 15, 2006, in case No. 168902 charging Rhea with receiving stolen property, driving under the influence of alcohol, being under the influence of a controlled substance, and driving with a suspended or revoked license. She was arraigned on that date. On August 24, 2006, Rhea pleaded guilty to possession of stolen property and driving under the influence of alcohol in case No. 168902. The imposition and execution of sentence was suspended on September 25, 2006, and she was granted formal probation with directions to enroll in drug court. (We grant the request to take judicial notice of the record in case No. 168902.)

A Visalia police officer had attempted to contact Rhea on August 28, 2006 at the Bob Wiley Detention Facility regarding the evidence found in her bedroom on August 14 but found that she had been released on a promise to appear. In a report dated September 12, 2006, a Visalia police officer stated he was going to forward the case to the Tulare County District Attorneys Office for its review and evaluation.

Later, Rhea gave a statement to a Visalia police officer. She admitted the possession of other peoples mail that was found in her bedroom but denied stealing it. She also admitted that she had gone through the process of actually altering some of the checks but she had never cashed any of them. She said she was interested in getting involved in identity theft. The officer forwarded a supplemental report to the district attorneys office.

On October 31, 2006, a felony complaint in No. 173003 was filed based on the evidence seized on August 14. Rhea was charged with receiving stolen property, four counts of forgery, and one count of unauthorized possession of a hypodermic needle or syringe.

Rhea filed a motion to dismiss pursuant to Kellett v. Superior Court (1966) 63 Cal.2d 822. She claimed that prosecution in this case was barred because of her previous plea in case No. 168902. She claims the new prosecution in No. 173003 amounted to multiple prosecutions for conduct committed or discovered in the same transaction.

The People filed opposition, claiming they were unaware of the charges against Rhea in No. 173003 when she was arraigned in the first case, No. 168902, and they did not receive the police report until almost a month after Rhea had pled in the first case.

The motion was heard on January 3, 2007. The People argued that the motion should be denied because the two cases did not involve the same course of conduct. The checks in each case involved different victims, and in the new case (No. 173003) Rhea had actually filled out the checks in her name and the checks had been endorsed. In addition, the new case alleged possession of a hypodermic needle.

The court granted Rheas motion as follows:

THE COURT: Everything you say makes sense to me, but my view is that essentially its the same course of conduct. Shes involved with this criminal activity and she gets arrested on one day and I think the next day they find the stuff at her mothers house or her house and had that all been known, we would have resolved -- it would have all been filed in case No. 168902 and it would have been resolved exactly the way 168902 has been resolved.

I have her on felony probation so while your points are well taken, Im going to grant the motion so case number 173003 will be dismissed in that Im granting the Peoples motion or the defendants motion under [Kellett].

However, I am authorizing the District Attorneys Office if they determine that theres any restitution issues from these new victims, probation -- the District Attorneys Office is authorized to file a request for modification of probation that would include any restitution in case number 168902 with regards to victims in case number 173003.

The People filed a timely notice of appeal.

DISCUSSION

In Kellett v. Superior Court, supra, 63 Cal.2d 822, petitioner Kellett was arrested after he was found standing on a public sidewalk with a pistol in his hand. He was charged with exhibiting a firearm in a threatening manner, a misdemeanor. A month later, the prosecutor learned Kellett had been convicted of a felony, and he was charged with possession of a weapon by a felon, a felony. He pled guilty to the exhibiting a firearm count and was sentenced to a term in jail. He then moved to dismiss the information charging him with the felony possession of the weapon. The motion was denied. (Id. at p. 824.)

Kellett petitioned the California Supreme Court, seeking a writ of prohibition to prevent his trial on the possession count. He claimed that the possession charge was barred by his conviction for the exhibition of a weapon and the subsequent prosecution was barred by Penal Code section 654. (Kellett v. Superior Court, supra, 63 Cal.2d at p. 824.)

The California Supreme Court found that the purpose of joinder of related offenses in a single prosecution is to prevent harassment, to avoid the needless repetition of evidence, and to save the state and the defendant time and money. (Kellett v. Superior Court, supra, 63 Cal.2d at p. 826.)

The court granted Kelletts writ of prohibition. 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. When there is a course of conduct involving several physical acts, the actors intent or objective and the number of victims involved, which are crucial in determining the permissible punishment, may be immaterial when successive prosecutions are attempted.

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. (Kellett v. Superior Court, supra, 63 Cal.2d at p. 827.)

Relying on Kellett, the trial court here granted Rheas motion to dismiss. The People have appealed and claim the evidence was insufficient to support a finding that the People were or should have been aware of the acts comprising the charges in the instant case and the evidence was insufficient to support a finding that the acts of Rhea were part of the same course of conduct. Rhea has failed to file a brief.

We agree with the People. First, there was no evidence in the record that the prosecutors office did know or should have known of the subsequent charges arising from August 14. Although the Visalia Police Department was the agency who wrote the report for the August 13 arrest and the August 14 search of Rheas bedroom, the incidents were not connected. The Visalia Police Department did not go to Rheas residence on August 14 to further investigate the activities they discovered on August 13. The only connection was that Rheas mother decided to clean out Rheas room after she was arrested on the 13th and independently called the police department to report what she found. The Visalia Police Department report of the evidence found on August 14 was not forwarded to the prosecutor until September, after Rhea had already entered her plea on August 24 based on her August 13 arrest. There was no reason for the prosecutor to know or suspect that Rhea had engaged in additional criminal activity or to know that the police were aware of it.

[T]he fact that the prosecution could have known of the multiple offenses does not necessarily lead to the conclusion that it did know or should have known. [Citation.] (People v. Britt (2004) 32 Cal.4th 944, 955.) In its ruling the trial court referred to the evidence from August 14 and prefaced its remarks by stating, [h]ad that all been known. This shows the trial courts belief that the district attorney did not know of the August 14 evidence when Rhea entered her plea for the August 13 activities. There is no evidence in the record to support a finding that the prosecution did know, and furthermore we find nothing in the evidence to support a finding that the prosecutor should have known, of the previous incident. Thus, the trial courts ruling was erroneous under Kellett, having failed to meet the first portion of the Kellett test.

In addition, we find the evidence does not support the trial courts ruling that essentially its the same course of conduct. While the possession of stolen checks on August 13 was a similar type of criminal behavior to the possession of stolen mail on August 14, that is where the similarities end. The checks in Rheas purse were from a different person than all of the mail found in her bedroom from various victims. The checks in Rheas purse were found while she was in her car away from home. The checks in Rheas purse were found on a completely separate occasion and separate location from the mail found in her bedroom. The items found in Rheas bedroom included letters, checks, credit cards, insurance policies and other miscellaneous items encompassing a much broader range of stolen items than simply checks. Rhea had attempted to alter the checks found in her bedroom, while the checks in her purse were not altered. [T]he offenses must be transactionally related, and not just joinable, before the Kellett rule applies. (People v. Turner (1985) 171 Cal.App.3d 116, 129.) The evidence was not sufficient to support a finding that the offenses were transactionally related.

Because we have found the evidence is not sufficient to support the trial courts ruling, we need not and do not discuss whether Kellett applies when sentence has been suspended and not actually imposed.

DISPOSITION

The judgment is reversed.

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VARTABEDIAN, Acting P. J.

WE CONCUR:

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CORNELL, J.

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DAWSON, J.

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