Filed 1/4/18 P. v. de la Corte CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO



THE PEOPLE,

Plaintiff and Respondent,

v.

MONIQUE DE LA CORTE,

Defendant and Appellant.


E066778

(Super.Ct.No. 16CR017317)

OPINION


APPEAL from the Superior Court of San Bernardino County. Stephan G. Saleson, Judge. Affirmed.
Heather L. Beugen, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Brendon W. Marshall, Deputy Attorneys General, for Plaintiff and Respondent.
FACTUAL AND PROCEDURAL HISTORY
A. PROCEDURAL HISTORY
On May 9, 2016, a felony complaint charged defendant and appellant Monique de la Corte with grand theft of an automobile under Penal Code section 487, subdivision (d)((1) (count 1); second degree commercial burglary under Penal Code section 459 (count 2); identity theft under Penal Code section 530.5, subdivision (a) (count 3); forgery relating to identity theft under Penal Code sections 470, subdivision (d), and 473, subdivision (a) (count 4); and possession of a forged driver’s license under Penal Code section 470b (count 5). The complaint further alleged that defendant had served eight prior prison terms under Penal Code section 667.5, subdivision (b).
On August 15, 2016, defendant entered into a plea agreement wherein she pled guilty to count 3, identity theft, and admitted two of the alleged prison priors. Thereafter, the court sentenced defendant to prison for a term of five years, and dismissed the remaining counts and allegations.
On October 6, 2016, defendant filed an amended notice of appeal, challenging the validity of her plea. The trial court granted defendant a certificate of probable cause.
B. FACTUAL HISTORY
On November 19, 2015, defendant went into a car dealership in San Bernardino to purchase a car. After finding the car she wanted, defendant filled out the initial documents using another person’s information, and gave the salesman a forged driver’s license. The salesman told defendant to return in a few days to finalize the paperwork and let defendant leave with the car. Defendant never returned.
On December 22, 2015, after the car dealership realized the fraud, an arrest warrant was issued for defendant.
On January 20, 2016, defendant was detained at Pechanga Casino in Riverside County for attempting to obtain a “Player’s Card” with a forged driver’s license. A Riverside County Sheriff’s Department deputy arrived on the scene and ultimately determined that the car defendant was seen driving at the casino was stolen from a dealership in San Bernardino. The deputy’s report stated that more information regarding the stolen vehicle could be found in “San Bernardino Sheriff’s Department case #031503699.” That specific case included police reports regarding the car theft from the car dealership and the forged driver’s license.
DISCUSSION
A. THE TRIAL COURT PROPERLY DENIED DEFENDANT’S KELLET MOTION
Defendant contends that the trial court erred in denying her motion under Kellett v. Superior Court (1966) 63 Cal.2d 822 (Kellett) as to the remaining charges for commercial burglary, identity theft, forgery relating to identity theft, and possession of a forged driver’s license. According to defendant, the Riverside County District Attorney’s Office in the Pechanga case knew or should have known about defendant’s actions at the dealership and consolidated the charges with those alleged in the San Bernardino case. Defendant, therefore, contends that the prosecutor in the current case was barred from prosecuting her pursuant to Penal Code section 654 and Kellett. For the reasons set forth below, we find that the trial court properly denied defendant’s motion.
1. ADDITIONAL PROCEDURAL BACKGROUND
Before defendant entered into a plea agreement in this case, she filed a motion pursuant to Penal Code section 654 and Kellett, supra, 63 Cal.2d 822, seeking to dismiss all of the charges because she had already been “punished” for the conduct relating to the stolen vehicle when she pled guilty and was sentenced to jail.
The prosecutor filed an opposition, arguing that the crimes committed in San Bernardino County and Riverside County were not transactionally related and the alleged victims were different. Moreover, the prosecutor argued that different prosecuting agencies were involved; they were unaware of each other’s actions. The prosecution, therefore, contended that it was not barred from prosecuting defendant on the current charges, with the exception of the grand theft auto charge.
At the hearing on the motion, after counsel for both sides argued, the trial court denied the motion. The court stated that “Kellett and 654 aren’t applicable[,]” and even if they were, “the exception relating to unavailability” would apply. Moreover, the grand theft auto charge (count 1) was dismissed after the parties agreed that prosecution of that charge was barred by Penal Code section 654.
2. LEGAL BACKGROUND
Penal Code section 654 provides in relevant part: “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.” This statute’s prohibition against multiple punishment is separate and distinct from its prohibition against multiple prosecutions. (Kellett, supra, 63 Cal.2d at p. 825; Neal v. State of California (1960) 55 Cal.2d 11, 21.) “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 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, at p. 827.)
“Appellate courts have adopted two different tests under Kellett to determine whether multiple offenses occurred during the same course of conduct. ([People v.] Valli [(2019)] 187 Cal.App.4th [786,] 797 [(Valli)].) Under one line of cases, multiple prosecutions are not barred if the offenses were committed at separate times and locations. (People v. Douglas (1966) 246 Cal.App.2d 594, 599, . . . [no bar to multiple prosecution where each offense had a separate beginning, duration, and end, none of which overlapped]; People v. Ward (1973) 30 Cal.App.3d 130, 136, . . . [no bar to multiple prosecution where crimes were committed at different locations, at different times, against different victims, and with different objectives]; People v. Cuevas (1996) 51 Cal.App.4th 620, 624, . . . [no bar to multiple prosecution for offenses committed at different times and at different places]; cf. People v. Britt (2004) 32 Cal.4th 944, 955, . . . [multiple prosecutions barred where registered sex offender moving from one county to another failed to notify both counties of his change in residence].) We will refer to this as the ‘time and place test.’ [¶] A second version of the test—the ‘evidentiary test’—looks to the evidence necessary to prove the offenses. (People v. Flint (1975) 51 Cal.App.3d 333[.]) ‘[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 evidentiary test of Flint and Hurtado requires more than a trivial overlap of the evidence. Simply 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[.])” (People v. Ochoa (2016) 248 Cal.App.4th 15, 28-29, fn. omitted.)
Determination of whether a subsequent prosecution should be barred by Penal Code section 654 is made on a case-by-case basis. (People v. Ochoa, supra, 248 Cal.App.4th at pp. 28-29.) On appeal, factual determinations are reviewed under the deferential substantial evidence test, viewing the evidence in the light most favorable to the People. (Valli, supra, 187 Cal.App.4th at p. 794.) Whether Penal Code section 654 applies is a legal question reviewed de novo. (Ibid.)
3. ANALYSIS
Under the time and place test, defendant’s argument fails. The offenses in the current case occurred on November 19, 2015, at a San Bernardino car dealership. The Pechanga crimes occurred two months later, on January 20, 2016, at a different location, Pechanga Casino in Riverside County. Based solely on a time and place analysis, Penal Code section 654 did not bar the subsequent prosecution of defendant for the burglary and fraudulent acts in this case.
Moreover, under the evidentiary test, it cannot be concluded that the evidence necessary to prove the Pechanga crimes “necessarily supplies proof” of the crimes in the current case. (See Valli, supra, 187 Cal.App.4th at p. 799.) First, evidence that defendant provided false information to law enforcement had no effect on defendant’s guilt for the crimes in the present case. Moreover, evidence that defendant used a fraudulent driver’s license in an attempt to obtain a “Player’s Card” from Pechanga Casino did not necessarily supply proof that she used a forged driver’s license to obtain a vehicle from the San Bernardino dealership or committed any other crimes in the current case. Although the fraudulent license may be tangentially related in both cases, assuming defendant used the same forged license, it cannot be said that this mere overlap leads to the conclusion that there was a singular course of conduct that played a “significant part” with respect to each prosecution. (Id. at p. 798, citing People v. Flint, supra, 51 Cal.App.3d at p. 336.) Furthermore, evidence that defendant unlawfully took or drove a vehicle in violation of Vehicle Code section 10851, did not necessarily provide proof of crimes in the current case either. That offense requires that defendant took or drove someone else’s vehicle without the owner’s consent, and when the defendant did so, she intended to deprive the owner of possession or ownership of the vehicle for any period of time. Therefore, evidence to prove those two elements would not be relevant to the commercial burglary, identity theft, or the forgery offenses in the current case. None of those charges require defendant to take or drive a vehicle without consent with the intent to deprive the owner. The evidence “was for the most part mutually exclusive.” (People v. Hurtado, supra, 67 Cal.App.3d at p. 637.)
In her opening brief, defendant fails to discuss either of the two applicable tests. Instead, she focuses solely on whether the prosecution in the Pechanga case “should have known” about the acts leading to the crimes charged in the present case, and therefore, should have consolidated the charges. Even if the prosecution should have known about the criminal acts in question, the prosecution must still derive from the same course of conduct in order to fall within the purview of Kellett. Here, because the two prosecutions involved two entirely different courses of conduct—separated by both time and place—the trial court correctly found that the instant prosecution was not barred by Kellett, notwithstanding some potential overlap in proof as to the forged driver’s license. (Cf. Valli, supra, 187 Cal.App.4th at p. 800 [separate prosecutions for murder and felony evading permissible where evidence of evading used to show consciousness of guilt for murder]; People v. Douglas, supra, 246 Cal.App.2d at p. 599 [separate prosecutions for murder and robbery permissible where People used evidence of robberies to show motive for the murder].)
DISPOSITION
We affirm the judgment.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS


MILLER
Acting P. J.


We concur:


SLOUGH
J.


FIELDS
J.