PEOPLE v. VALLI

In People v. Ward (1973) 30 Cal.App.3d 130 [ 105 Cal.Rptr. 67] ( Ward), the defendant kidnapped a woman, raped her and placed her in the trunk of his car. He then returned to her residence and convinced her daughter to go with him to the mother. During the ride, he orally copulated the daughter. The defendant was charged in San Bernardino County with sex perversion upon the daughter, to which he pled guilty. He was subsequently charged with kidnapping and rape upon the mother in Los Angeles County. He unsuccessfully moved to dismiss, claiming failure to join all offenses barred the subsequent prosecution. ( Id. at p. 133.) The court found Kellett not applicable. "The crimes were committed at different locations, at different times, against different victims, and with different objectives." ( Id. at p. 136.) The court also noted there were jurisdictional problems as different counties were involved. ( Id. at pp. 136-137.)

In People v. Cuevas (1996) 51 Cal.App.4th 620 [ 59 Cal.Rptr.2d 146] ( Cuevas), a conviction for possession of cocaine for sale did not bar subsequent prosecution for two prior cocaine sales occurring on different dates. The court reduced the Douglas test to a simple formulation. " 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." ( Id. at p. 624, original italics.)

The Attorney General relies on this formulation and argues that since the murder and the evading occurred on different days in different places, Kellett does not apply. At trial, the prosecutor argued the "different time/different place" formulation was black letter law.

While we agree with the results in Douglas, Ward and Cuevas, we believe Kellett is not necessarily a simple "different time/different place" limitation. In People v. Britt, supra, 32 Cal.4th 944, a sex offender who moved from El Dorado County to Sacramento failed to register his move in either place. He pled no contest to failure to register in Sacramento and then was prosecuted in El Dorado and found guilty. The Supreme Court reversed, holding there was but a single course of conduct — one unreported move. ( Id. at pp. 954-955.) Even though the offenses occurred on separate occasions and in different counties, successive prosecution was barred.

A second test was set forth in People v. Flint (1975) 51 Cal.App.3d 333 [ 124 Cal.Rptr. 269] ( Flint), where a prosecution for grand theft auto and felony joyriding was barred after a prosecution for driving under the influence of alcohol. The court found various cases on Kellett could be harmonized by considering the totality of the facts and whether separate proofs were required for the different offenses. ( Flint, supra, at pp. 337-338.) "Neither the purpose of the 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." (Id. at p. 336, fn. omitted.) The court found "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." ( Id. at p. 338.)

This evidentiary test was restated in People v. Hurtado (1977) 67 Cal.App.3d 633, 636 [ 136 Cal.Rptr. 774] ( Hurtado): "More specifically, if the evidence needed to prove one offense necessarily supplies proof of the other, we concluded that the two offenses must be prosecuted together, in the interests of preventing needless harassment and waste of public funds." In Hurtado, the defendant's plea to driving under the influence of alcohol did not bar prosecution for narcotics charges, based on balloons of heroin found when he was stopped after speeding and swerving erratically. "Evidence in the two cases, was for the most part mutually exclusive, the only common ground being the fact that defendant was in the moving automobile in possession of the heroin at the same time that he was under the influence of alcohol. Such a trivial overlap of the evidence, however, under Kellett and Flint does not mandate the joinder of these cases." ( Id. at p. 637.)

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. In Douglas, testimony concerning the robberies was admitted in the murder trial to show motive, and a transcript of certain testimony in the murder case relating to the robberies was introduced as substantive evidence in the subsequent robbery trial. ( Douglas, supra, 246 Cal.App.2d at p. 596.) The defendants argued the use of evidence against them in one trial precluded its use in another trial; using the same evidence for more than one prosecution was fundamentally unfair. The Douglas court rejected this argument. "This argument has no more than a surface plausibility, for evidence is merely proof of a fact, and a fact may be introduced into any proceeding to which it appropriately relates. To prove a fact the same evidence may be introduced in any number of proceedings, civil or criminal, in which the fact is relevant and material to any issue in the case." ( Id. at p. 597.)

In this case, successive prosecution for felony evading after the trial on murder does not meet the evidentiary test set forth in Flint and Hurtado. Different evidentiary pictures are required — one of a shooting at night and the other of police pursuits in the following days. Different witnesses would testify to the events.

It is true the People relied on the evidence of the felony evading to prove the murder charge. Many of the witnesses to the evading, both civilian and police, testified in the murder trial. While there were additional civilian witnesses in the evading trial, there was "a recycling of much of the same evidence which the People had to support the earlier prosecutions." ( Flint, supra, 51 Cal.App.3d at p. 338.) In attempting to prove murder by establishing defendant's flight and consciousness of guilt, the People did more than simply use facts of defendant's evading the police; the People proved felony evading. Nonetheless, the People's decision to use the evading offenses to help prove murder did not meet the evidentiary test as stated in Hurtado: "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." ( Hurtado, supra, 67 Cal.App.3d at p. 636.) Here, the evidence needed to prove murder — that defendant was the shooter — did not supply proof of evading. Evidence of the evading showed at most a consciousness of guilt as to the murder; as the acquittal shows, it was insufficient to supply proof of the murder. There was little evidentiary overlap between the murder and the evading offenses; the People simply used the evidence of evading to show consciousness of guilt, much as the People used evidence of the robberies to show motive for the murder in Douglas.

Part of the recycled evidence in the evading trial was defendant's testimony in the murder trial about the pursuits, which was read to the jury in the second trial. Defendant argues he was lulled into waiving his Fifth Amendment right against self-incrimination because the People failed to charge felony evading even though the facts of those offenses were fully known and Aguila had been charged and convicted for the November 26 incident.

It is a general rule of evidence that a defendant's testimony at a former trial may be used against him at a subsequent trial. (See Harrison v. United States (1968) 392 U.S. 219, 222 [ 20 L.Ed.2d 1047, 1051, 88 S.Ct. 2008].) Further, the content of defendant's testimony can be used as the basis for a new prosecution. ( U.S. v. Baker (9th Cir. 1988) 850 F.2d 1365, 1370 [permitting government to obtain superseding indictment based on defendant's testimony at trial which ended in mistrial did not violate defendant's privilege against self-incrimination].) Thus, defendant had no reasonable basis to believe he was immunizing himself from prosecution for other criminal acts simply by testifying at his murder trial. We reject the notion that defendant chose to testify and admit the evading only because he believed the People had decided to forgo prosecution on those crimes. Rather, since the evidence of the evading was overwhelming, defendant's decision to admit the evading was a reasonable tactical decision designed to bolster his credibility before the jury so he could convince the jury the identification of him as the shooter was flawed. The People's ability to use defendant's testimony against him at a later trial certainly burdened his decision to testify. Not every burden on a defendant's decision to testify, however, is impermissible. ( Ibid.)

(7) The decision as to appropriate charges is a matter of prosecutorial discretion. "[P]rosecutorial discretion is basic to the framework of the California criminal justice system. [Citations.] This discretion, though recognized by statute in California, is founded upon constitutional principles of separation of powers and due process of law." ( People v. Jerez (1989) 208 Cal.App.3d 132, 137 [ 256 Cal.Rptr. 31].) We refuse to require prosecutors to proceed against a defendant on all known charges simultaneously. We share the concern of the Douglas court that such a requirement "would tend to aggravate the very harassment it was designed to alleviate by impelling a prosecutor filing on one charge to throw the book at the defendant in order to prevent him from acquiring immunity against other potential charges and to protect the prosecutor from accusations of neglect of duty." ( Douglas, supra, 246 Cal.App.2d at p. 599.) Rather, we adhere to the rule of Kellett: "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, supra, 63 Cal.2d at p. 827, fn. omitted.) Here, although the People relied in part on proof of the evading in order to prove the murder, the necessary interrelation of murder and evading is missing; the same act or course of conduct did not play a significant role in each.

Defendant argues Kellett must be applied in this case to prevent an abuse of power, relying on Sanders v. Superior Court (1999) 76 Cal.App.4th 609 [ 90 Cal.Rptr.2d 481]. In Sanders, after the defendant's conviction on 10 counts of grand theft was reversed, the People charged him with 10 counts of forgery and 10 counts of presenting false or forged documents for recording based on the same conduct. The appellate court granted a writ of mandate dismissing the subsequent information. ( Id. at p. 617.) The court commented: "If Kellett principles are not applied to a case such as this, the resultant injustice would be manifest. The People, knowing several charges could be filed, could choose to file only one and see how that turns out. If the defendant is convicted, the other charges are rendered unnecessary. But if the defendant prevails, either at trial or on appeal on the ground of insufficiency of the evidence, the People could then file a new charge and keep doing that until a conviction is finally had. It is just such conduct which Kellett and its progeny seek to prevent." ( Id. at pp. 616-617.)

We find Sanders distinguishable because in that case the same evidence established both grand theft and forgery or presenting false documents; the same conduct was at issue in both prosecutions. While we find Sanders distinguishable, we share some of its concerns about the People's decision to try the murder and evading separately. The separate trials implicate the concerns of harassment and waste of public funds noted by the Kellett court. ( Kellett, supra, 63 Cal.2d at p. 827.) Here, the People were able to raise the felony evading evidence twice against defendant and, by prosecuting the evading charges after the murder prosecution failed, they were able to use defendant's testimony in the murder case against him. Despite these concerns, because the same act or course of conduct did not play a significant role in both the murder and the evading, neither section 654 nor Kellett bars the subsequent prosecution for two counts of evading.

Defendant contends the trial court erred in denying his posttrial motion to dismiss based on vindictive prosecution. Defendant contends the timing of the People's decision to prosecute him for the evading raises a presumption of vindictive prosecution — that he was prosecuted as punishment for testifying in his defense at the murder trial.

The Attorney General responds that defendant has forfeited this contention by failing to move to dismiss on the basis of vindictive prosecution before trial. ( People v. Edwards (1991) 54 Cal.3d 787, 827 [ 1 Cal.Rptr.2d 696, 819 P.2d 436].) Because defendant's posttrial motion was based on a new case, and because defendant contends if his motion was untimely he was denied effective assistance of counsel, we decline to resolve this issue on procedural grounds. Instead, we will address it on the merits.

The gravamen of a vindictive prosecution is the increase in charges or a new prosecution brought in retaliation for the exercise of constitutional rights. ( North Carolina v. Pearce (1969) 395 U.S. 711, 723-726 [ 23 L.Ed.2d 656, 668-670, 89 S.Ct. 2072], overruled on other grounds in Alabama v. Smith (1989) 490 U.S. 794 [ 104 L.Ed.2d 865, 109 S.Ct. 2201].) It is "patently unconstitutional" to "chill the assertion of constitutional rights by penalizing those who choose to exercise them." ( United States v. Jackson (1968) 390 U.S. 570, 581 [ 20 L.Ed.2d 138, 147, 88 S.Ct. 1209].)

"Where the defendant shows that the prosecution has increased the charges in apparent response to the defendant's exercise of a procedural right, the defendant has made an initial showing of an appearance of vindictiveness. [Citation.]" ( Twiggs v. Superior Court (1983) 34 Cal.3d 360, 371 [ 194 Cal.Rptr. 152, 667 P.2d 1165].) "[O]nce the presumption of vindictiveness is raised the prosecution bears a heavy burden of rebutting the presumption with an explanation that adequately eliminates actual vindictiveness. In this regard, the trial court should consider the prosecutor's explanation in light of the total circumstances of the case in deciding whether the presumption has been rebutted." ( Id. at p. 374.)

"[T]he presumption of unconstitutional vindictiveness is a legal presumption which arises when the prosecutor increases the criminal charge against a defendant under circumstances which . . . are deemed to present a `reasonable likelihood of vindictiveness.'" ( In re Bower (1985) 38 Cal.3d 865, 879 [ 215 Cal.Rptr. 267, 700 P.2d 1269].) "In order to rebut the presumption of vindictiveness, the prosecution must demonstrate that (1) the increase in charge was justified by some objective change in circumstances or in the state of the evidence which legitimately influenced the charging process and (2) that the new information could not reasonably have been discovered at the time the prosecution exercised its discretion to bring the original charge." ( Ibid.)

Defendant contends this case is analogous to Jenkins, supra, 504 F.3d 694, in which a presumption of vindictiveness arose after the government filed additional charges against defendant only after she admitted them while testifying in her defense in another case. The Attorney General responds that Jenkins is distinguishable and this case is analogous to U.S. v. Esposito (3d Cir. 1992) 968 F.2d 300 ( Esposito).

In Jenkins, the trial court dismissed an indictment for alien smuggling on the basis of vindictive prosecution because the charges were brought only after the defendant exercised her right to testify in a separate marijuana smuggling case. The Ninth Circuit affirmed. ( Jenkins, supra, 504 F.3d at p. 697.) At trial in the marijuana case, the defendant testified she did not know the van contained marijuana because she believed she was smuggling undocumented aliens. She had met the woman who paid her to drive across the border through a man who had previously paid her to smuggle aliens. A special agent testified Jenkins had told him she had previously attempted to smuggle aliens. The same day as the defendant's testimony, while the jury was deliberating, the government filed a complaint charging the defendant with alien smuggling. ( Id. at p. 698.)

The court found an appearance of vindictiveness because the government already knew about the alien smuggling, including the defendant's previous admissions before trial, but did not press charges until "Jenkins asserted a reasonably credible defense . . ." to the marijuana charges. ( Jenkins, supra, 504 F.3d at p. 700.) "The government itself recognizes that it brought the alien smuggling charges only because Jenkins admitted to them during the marijuana importation trial." ( Id. at p. 701.) The government failed to rebut the presumption of vindictiveness because the government already had sufficient evidence to bring the alien smuggling charges before Jenkins testified; the new charges were not justified by independent reasons or intervening circumstances. ( Ibid.)

In Esposito, the court found no vindictive prosecution where the new charges followed an acquittal. The government indicted a defendant on substantive drug offenses after the defendant had been acquitted in an earlier RICO (Racketer Influenced and Corrupt Organizations Act; 18 U.S.C. § 1961 et seq.) trial where the same drug transactions had been listed as predicate acts. ( Esposito, supra, 968 F.2d at pp. 301-302.) The defendant claimed that this constituted a vindictive prosecution, asserting that the government punished him for exercising his right to trial and thereby deterred his right to plead not guilty. ( Id. at p. 303.) The Third Circuit disagreed, concluding that there is no presumption of vindictiveness when the government chooses to indict a defendant on individual acts that arose out of the same nucleus of facts which resulted in an earlier acquittal. ( Id. at pp. 303-307.) The government "did not react because Esposito invoked or exercised a constitutional right; he was simply acquitted by a jury." ( Id. at p. 305.) The court found that the earlier acquittal is a legitimate prosecutorial consideration, because the government is not punishing the defendant for exercising a right but rather for the crimes he committed. ( Id. at p. 304.)

The Esposito court declined to apply a presumption of vindictiveness where the government's conduct is attributable to legitimate reasons. ( Esposito, supra, 968 F.2d at p. 305.) "We will not apply a presumption of vindictiveness to a subsequent criminal case where the basis for that case is justified by the evidence and does not put the defendant twice in jeopardy. Such a presumption is tantamount to making an acquittal a waiver of criminal liability for conduct that arose from the operative facts of the first prosecution. It fashions a new constitutional rule that requires prosecutors to bring all possible charges in an indictment or forever hold their peace. [Citation.] We reject such a proposition for it undermines lawful exercise of discretion as well as plain practicality." ( Id. at p. 306.)

We find this case governed by Esposito, not Jenkins; defendant has failed to establish a presumption of vindictiveness. The timing of the People's decision to charge defendant with evading indicates it was a response to the acquittal, not to defendant testifying at trial. In arguing for dismissal, defense counsel claimed the prosecutor announced the subsequent prosecution as the verdicts of acquittal were being read in the murder trial. On appeal, defendant argues his arrest immediately after acquittal, "strongly suggests the People would not have brought the evasion charges had the jury not acquitted him." Defendant points to no evidence suggesting the People were punishing him for testifying in his defense. Numerous courts have held new charges after an acquittal on separate charges does not, without more, give rise to a presumption of vindictiveness. ( U.S. v. Johnson (2d Cir. 1999) 171 F.3d 139, 141; U.S. v. Wall (10th Cir. 1994) 37 F.3d 1443, 1449; U.S. v. Rodgers (8th Cir. 1994) 18 F.3d 1425, 1430-1431; Esposito, supra, 968 F.2d at p. 306.)

Moreover, even if we found a presumption of vindictiveness because the decision to file evading charges came after defendant testified, the acquittals would serve as an "objective change in circumstances" "which legitimately influenced the charging process," and which "could not reasonably have been discovered at the time the prosecution exercised its discretion to bring the original charge." ( In re Bower, supra, 38 Cal.3d at p. 879.) Thus, the presumption would be rebutted. ( Ibid.)

Pursuant to this court's miscellaneous order No. 2010-002, filed March 16, 2010, we deem defendant to have raised the issue of whether amendments to section 4019, effective January 25, 2010, apply retroactively to his pending appeal and entitle him to additional presentence credits. We conclude that the amendments do apply to all appeals pending as of January 25, 2010. (See In re Estrada (1965) 63 Cal.2d 740, 745 [amendment to statute lessening punishment for crime applies "to acts committed before its passage provided the judgment convicting the defendant of the act is not final]"; People v. Hunter (1977) 68 Cal.App.3d 389, 393 [applying the rule of Estrada to amendment allowing award of custody credits]; People v. Doganiere (1978) 86 Cal.App.3d 237 [applying Estrada to amendment involving conduct credits].) We conclude, however, that since defendant has prior convictions for serious felonies, he is not entitled to additional credit. (Pen. Code, § 4019, subd. (b)(2); Stats. 2009, 3d Ex. Sess., ch. 28, § 50.)

The judgment is affirmed.

Raye, J., concurred.