Cabrera
Filed 10/8/13 P. v. Cabrera
CA2/4
NOT TO BE PUBLISHED IN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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE,
Plaintiff
and Respondent,
v.
SILVESTRE CABRERA,
Defendant
and Appellant.
B244389
(Los Angeles County
Super. Ct. No. NA089940)
APPEAL from a
judgment of the Superior Court of
County, Richard R. Romero, Judge. Reversed.
Jennifer M.
Hansen, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Lance E. Winters, Assistant Attorney General, Victoria B. Wilson and Brendan
Sullivan, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant
Silvestre Cabrera forced his minor daughter, M.M., to download pornographic videos
on a computer and watch them with him.
He was initially charged with the misdemeanor offense of
Code, § 647.6, subd. (a), hereafter section 647.6),
to which he pled guilty. When the police
later discovered that the computer hard drive contained files depicting minors
engaged in sex acts, defendant was charged with felony possession of
matter depicting a minor engaging in sexual conduct (§ 311.11,
subd. (a), hereafter section 311.11).
Defendant moved to dismiss the section 311.11 charge under section 654
and Kellett v. Superior Court (1966)
63 Cal.2d 822 (Kellett), contending
that the charge arose from the same course of conduct as the section 647.6
conviction. The trial court denied the
motion, concluding that the prosecution had acted with due diligence in
discovering the existence of the child pornography on the computer. Later, in a bench trial, defendant was
convicted of violating section 311.11.
He was sentenced to three years in state prison and ordered to register
as sex offender under section 290.
On appeal from
the judgment of conviction, defendant contends that the trial court erred in
denying his motion to dismiss. We agree.
Substantial evidence does not support the trial court’s finding of due
diligence, and no exception to the bar of section 654 and Kellett applies. Therefore,
we reverse the judgment.
The Felony Complaint and Preliminary
Hearing
On March
3, 2011, the
Long Beach City Prosecutor charged defendant with violating section 647.6,
subdivision (a). Defendant pled guilty
to that charge on March 15, 2011.
In the instant
felony case, defendant was initially charged in a complaint filed on September
2, 2011 with
three counts: forcible rape (§ 261,
subd. (a)(2)), lewd act on a child (§ 288, subd. (c)(1)), and possession
of matter depicting a minor engaging in sexual conduct (§ 311.11, subd.
(a)).
provided by defendant’s 16-year-old daughter, M.M.
At the
preliminary hearing, M.M. testified that defendant had her type the name of a
website on her computer (the computer was a Christmas gift from him to
her). Defendant then “put on†a
pornographic video and watched it while sitting next to her. The video showed male parents sexually
abusing girls who looked to be 13 or 15.
M.M. told defendant that she did not want to see it, but he said she had
to see it. He touched her legs and
unbuttoned her blouse, and said that his penis was hard. M.M. went to her bed, and defendant tried to
lay down next to her. Defendant said
that she looked like her mother.
Defendant pushed her against the wall while she was on the bed. She tried to push defendant away. He told her that if she said something, no
one would believe her.
Long
Beach Detective Mark Steenhausen testified that Officers Sepulveda and
Ruvalcaba recovered a computer from defendant’s apartment on February
28, 2011 and
observed in the search history that a Playboy website had been accessed. They seized the computer. Detective Steenhausen obtained consent from
defendant to search the computer on March 1, 2011.
Detective Matt Archer of Computer Crimes performed the search, and on April
7, 2011,
gave Detective Steenhausen a report stating that he had found three child
pornography files. The three files were
downloaded on February 27, 2011.
On August
26, 2011,
Detective Steenhausen interviewed defendant at his apartment about the contents
of the computer. He said that he watched
a pornographic video on the internet of a father having sex with his young
daughter.
Although
before the preliminary hearing M.M. had told Detective Steenhausen and the
prosecutor that defendant had sexual intercourse with her, in her preliminary
hearing testimony she denied that intercourse occurred. Detective Steenhausen testified to her
earlier statements, and the magistrate held defendant to answer on all three
counts.
The Information and the Motion to
Dismiss
The Los
Angeles County District Attorney filed an information charging defendant with
the three counts on which he was held to answer: forcible rape (§ 261, subd. (a)(2)),
lewd act on a child (§ 288, subd. (c)(1), and possession of matter
depicting a minor engaging in sexual conduct (§ 311.11). Defendant pled not guilty. For reasons not fully explained in the
record, the prosecutor moved to dismiss the rape and lewd act counts “due to
recantation and issues with that.†The trial
court granted the motion and dismissed those counts, leaving only the section
311.11 count, possession of matter
depicting a minor engaging in sexual conduct.
The
defense moved to dismiss that charge under section 654 and Kellett, supra, 63 Cal.2d 822.
The basis of defendant’s motion to dismiss was that defendant had
already been convicted of, and sentenced for, a misdemeanor violation of
section 647.6 based on the same course of conduct underlying the section 311.11
charge.
Relying
on undisputed facts, defendant’s motion stated that on March 1, 2011, Detective
Steenhausen received a voice mail from the Long Beach City Prosecutor informing
him that defendant would be charged with one count of violating section 647.6,
subdivision (a), and asking that he have the computer that had been seized by
Officers Sepulveda and Ruvalcaba from defendant’s apartment searched. Detective Steenhausen requested Detective
Archer of Computer Crimes to analyze the computer. On March 3, 2011, the Long Beach City Prosecutor
charged defendant with violating section 647.6, subdivision (a). Defendant pled guilty to that charge on March
15, 2011. On April 7, 2011, Detective
Archer informed Detective Steenhausen that the computer contained three child
pornography files. Defendant was charged
by felony complaint with, inter alia, violating section 311.11 on September 2,
2011.
The
prosecutor did not file a written opposition to the motion, and produced no
evidence. At the hearing on the motion,
the prosecutor argued that the conduct underlying the section 647.6 charge
related to defendant showing his daughter a pornographic video. However, the basis underlying the section
311.11 charge was revealed by subsequent investigation, namely, that there was
child pornography on the computer. The
prosecutor conceded that the child pornography on the computer was the same
pornography defendant showed to his daughter.
But the prosecutor argued that the police had used due diligence in
searching the computer. The prosecutor
stated, “[T]o be quite candid, analysis of a computer for this type of evidence
can sometimes take months due to the availability of resources. So they really did everything they could
every step of the way. They got it cued
up as soon as possible. . . . The
defendant just beat them to the punch in pleading to the misdemeanor.†The trial court agreed that the police had
acted with due diligence, finding that “a computer analysis takes a longer
period of time,†and denied the motion.
The Bench Trial
The
case was tried to the court sitting without a jury. At trial, Long Beach Police Officer Javier
Sepulveda testified that around 5:15 p.m. on February 28, 2011, he and his
partner, Officer Sergio Ruvalcaba, responded to the apartment in Long Beach
where defendant lived with his daughter M.M.
After speaking with M.M., he seized a laptop computer, which was later
transported to the station.
Officer
Ruvalcaba testified that he told defendant that they were investigating
possible child abuse. Defendant replied,
“You’re here because of the porno.â€
After advising defendant of his Miranda
rights, Officer Ruvalcaba asked defendant to tell him what the porno was
about. Defendant said that he had his
daughter look up specific web sites for him showing white women having sex so
he could watch it on her computer. He
had M.M. click through pictures for about 20 minutes, and later asked her to
find a video of white women having sex.
She did, and they watched about a 10 minute video. He told M.M. that he was sexually aroused,
and asked if she was. M.M. said she was
not. Defendant went into the bathroom
and masturbated.
title="">[4]
Defendant
pointed out the computer that was used.
Officer Ruvalcaba looked at the search history, noticed the display of
“Playboy.comâ€, and took the computer
into evidence.
Detective
Steenhausen testified that on March 1, 2011, the City Prosecutor told him to
have the computer analyzed. He knew that
the City Prosecutor would be filing charges.
That same day, he interviewed defendant in custody and obtained his
consent to search the computer.
Detective Steenhausen then delivered the computer to Detective Matt
Archer of Computer Crimes and asked him to search the computer for
pornography.
On
April 7, 2011, Detective Archer contacted him.
Detective Steenhausen did not then know that defendant had already been
convicted of the misdemeanor charge.
Because other information came to light, he continued to investigate the
case and he spoke to defendant again on August 26, 2011, at defendant’s
residence.
When he
told defendant that a search of the computer had revealed pornography between
men and children, defendant said the night before he was arrested, he had
watched the video with M.M. showing a man having sex with a girl between 10 and
12 years of age. M.M. was 15. Defendant was 63.
Detective
Matthew Archer testified that he was assigned to the Computer Crimes
Detail. He made a copy of the computer
hard drive, examined it with forensic software, and exported the video
files. He compared the digital
fingerprint, or “hash value,†of each file to a database of child pornography
files compiled by the FBI. There were
two matches, as well as a third child pornography video that Detective Archer
identified. All three files were
accessed and downloaded on February 27, 2011, around 12:00 a.m. and in the
minutes thereafter.
Defendant
contends that the trial court erred in denying his motion to dismiss the
section 311.11 charge under section 654 and Kellett,
supra, 63 Cal.2d 822. We agree.
“Section 654,
subdivision (a) provides that when ‘[a]n act or omission . . . is punishable in
different ways by different provisions of the law,’ ‘[a]n acquittal or
conviction and sentence under any one bars
a prosecution for the same act or omission under any other.’ This provision thus bars multiple
prosecutions for the same act or omission where the defendant has already been tried and acquitted, or
convicted and sentenced.†(
556 (Davis).) Construing section 654 in
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.)
In the
instant case, it is clear that the section 647.6 violation, which was based on
defendant’s forcing M.M. to download and watch pornography on the computer with
him, was part of the same course of conduct on which the section 311.11
violation was based: the child
pornography defendant was charged with possessing was the same pornography he
forced M.M. to download and watch.
Respondent contends that it is unclear whether the two crimes were
committed at the same time and place.
However, at the hearing on the motion, the prosecutor conceded that the
child pornography on the computer was the same pornography defendant showed
M.M.
testified that one video she was forced to watch showed male parents sexually
abusing girls who looked 13 or 15.
Further, defendant was arrested on February 28, and he told Detective
Steenhausen that the night before he was arrested, he had watched a video with
M.M. showing a man having sex with a girl between 10 and 12 years of age. At trial, Detective Archer testified that the
three child pornographic videos were accessed and downloaded around the same
time -- on February 27, 2011, around 12:00 a.m. and in the minutes
thereafter. Thus, the section 647.6 and
section 311.11 crimes occurred at the same time and place.
Relying
on People v. Hurtado (1977) 67
Cal.App.3d 633, respondent argues that even if the crimes occurred at the same
time and place, the conduct underlying the 647.6 violation did not “play[] a
significant part†within the meaning of Kellett
in the commission of the section 311.11 violation. In Hurtado,
the court held that section 654 did not bar separate prosecutions for
driving under the influence and possession of heroin, even though the police
discovered 20 balloons of heroin in the car when the defendant was stopped for
driving under the influence. (Id.
at p. 637.) The court explained: “[T]he evidentiary pictures which had to be
painted to prove the drunk driving and narcotics offenses were sufficiently
distinct so as to permit separate prosecutions of the two offenses. . . . 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 . . . does not mandate the
joinder of these cases.
[Citation.]†(
By
contrast, in the present case, the overlap of evidence was hardly
“trivial.†The 647.6 misdemeanor and the
section 311.11 felony were closely linked:
as we have explained, the section 647.6 charge was based on defendant’s
having M.M. download and watch pornographic videos with him on the computer;
the section 311.11 charge was based on the presence of those videos in the
computer hard drive. Thus, the conduct
on which the misdemeanor was based (forcing M.M. to download and watch the
videos) necessarily provided significant evidence tending to prove the section
311.11 charge (the presence of those videos on the computer under defendant’s
control).
Respondent
next relies on an exception to the Kellett
rule, which applies “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.Չۉ۪
[Citations.] Thus, for example,
section 654 does not preclude prosecuting a defendant for the murder of a
victim who dies only after an earlier prosecution for attempted murder. [Citation.]
Similarly, section 654 will not bar a later prosecution when the
government, despite reasonable efforts, has been unable to discover the facts
necessary to sustain a conviction on the more serious crime. [Citation.]
But this exception applies only when the government ‘acted with due
diligence at the outset but was unable to discover the additional facts
necessary to sustain the greater charge.’
[Citation.] Whether the
government exercised due diligence is a question of fact. [Citation.]â€
(Davis, supra, 36 Cal.4th at
p. 558.) We review the trial court’s
finding for substantial evidence. (
Cal.App.4th 739, 748 (Barriga).)
Here,
at the hearing on the Kellett motion,
the trial court concluded that, because “a computer analysis takes a longer
period of time,†the prosecution acted with due diligence in developing evidence
of the section 311.11 charge. However,
the prosecution presented no evidence of due diligence to support that
finding. Rather, the prosecutor simply
argued, without any evidentiary support, that “analysis of a computer for this
type of evidence can sometimes take months due to the availability of
resources. So they really did everything
they could every step of the way.â€
Argument is not evidence, and we cannot say that delay in computer
analysis due to the lack of resources in the Long Beach Police Department was
such a commonly known, undisputed fact such that no evidence of it was
required. Nor does the record of the
preliminary hearing or trial contain any such evidence. Thus there was no evidence on which to base a
finding that the lack of resources in the Long Beach Police Department
prevented an examination of the computer being completed before defendant pled
guilty to the misdemeanor charge.
In this
regard, the present case is analogous to Barriga
v. Superior Court, supra, 206 Cal.App.4th 739. There, on November 28, the police stopped a
car that had been carjacked by three Hispanic males earlier in the
afternoon. When stopped, the car had
five occupants (two females and three males), among whom was Barriga, a
passenger. (Id. at p. 742.) Barriga
refused an officer’s order to stay in the car and he was taken into custody
along with the two other males. On the
floor of the car the police found a cell phone that belonged to Barriga, and
under his seat found a bag containing methamphetamine. (Id.
at p. 742-743.) Later that night, the
victim of the carjacking identified the other two male occupants as having
participated in the crime, but told the police that Barriga was not involved. (Id.
at p. 743.)
Two
days later, on November 30, the District Attorney’s office filed a juvenile
wardship petition against Barriga alleging five counts arising out of his
conduct on November 28, and four counts from an unrelated incident. It was not alleged that he had committed the
November 28 carjacking. On December 16,
Barriga entered a negotiated disposition, in which he admitted one count from
November 28, resisting a peace officer, and another unrelated count, in
exchange for dismissal of the remaining allegations. (Barriga,
supra, 206 Cal.App.4th at p. 743.)
In late
December, the police obtained a search warrant for Barriga’s cell phone, and
for the first time discovered text messages implicating him in the November 28
carjacking. The District Attorney then
filed a criminal complaint charging Barriga with robbery, carjacking, and other
crimes. At the preliminary hearing, the
magistrate denied Barriga’s motion under Kellett
to dismiss the criminal charges, and held him to answer. The trial court later denied a renewed
motion. The prosecution offered no
evidence as to why a search warrant for Barriga’s phone was not obtained until
two weeks after he had entered the negotiated disposition in the juvenile
case. (Barriga, supra, 206 Cal.App.4th at pp. 744-745.)
The
Court of Appeal issued a writ of
prohibition directing the lower court not to proceed further on the
criminal case. The court noted that
“There . . . is no dispute that, when they charged Barriga in the juvenile
case, and when they entered into the plea agreement with him in that case, the
People were unaware of the evidence they later uncovered—specifically, the text
messages on Barriga’s cell phone—implicating him in the robbery and the
carjacking. The question here is whether
the People should have been aware of
that evidence, or, as stated in Davis,
whether the People were unable to discover that evidence despite reasonable
efforts and due diligence.†(
The
court found that no substantial evidence supported a finding of due
diligence: “[T]he People do not draw our
attention to any evidence,
substantial or otherwise, that explains why they could not have, with
reasonable efforts, and in the exercise of due diligence, obtained a search
warrant for Barriga’s cell phone and uncovered the incriminating text messages
case and entered into a plea agreement with him in that case. They assert that they ‘could not proceed on
the carjacking and robbery charges [initially] because the victim . . .
specifically stated that [Barriga] was not involved.’ We do not disagree with that assertion, but
it fails to address the critical point in this case. The question here is why they did not manage
to discover the evidence that was in their possession before they proceeded
with the juvenile case against Barriga.
To that question, the People offer no answer. Instead, they merely assert, ipse dixit, that
substantial evidence supports a finding of due diligence. [¶] In
the absence of any explanation of why they waited to search Barriga’s cell
phone until after they had charged
him in the juvenile case and entered
into a plea agreement with him in that case, we cannot agree that an implied
finding of due diligence by the trial court is supported by substantial
evidence.†(Barriga, supra, 206 Cal.App.4th at p. 748.)
Similarly,
in the present case, respondent can point to no evidence that explains why the
police could not have discovered the existence of the child pornography on the
computer before defendant pled guilty to the section 647.6 misdemeanor. Thus, the trial court’s finding of due
diligence cannot be upheld on appeal.
Citing
behind the section 654 bar on successive prosecutions would not be served here. But Davis
provides no support for the trial court’s ruling. In Davis,
the victim reported being kidnapped and robbed of his car by three men, but
neither he nor any witness could identify the persons involved in the robbery
and kidnapping. (Davis, supra, 36 Cal.4th at pp. 556-557.) Four days later, defendant was apprehended
driving the victim’s car. Defendant was
initially charged only with the misdemeanor of unlawful taking of the victim’s
vehicle (Veh. Code, § 10851, subd. (a)), to which he pled guilty. After serving his sentence for the
misdemeanor, he admitted to a witness his involvement in the kidnapping and
robbery. Based on his admission, he was
charged with those offenses, and he was later convicted of them in the same
trial in which he was convicted of two unrelated special-circumstance murder
charges and sentenced to death. (
With
respect to the kidnapping and robbery charges, before trial the defendant moved
under Kellett and section 654 to
preclude prosecution based on the earlier misdemeanor conviction. The Supreme Court upheld the trial court’s
ruling denying the motion, concluding that substantial evidence supported the
trial court’s finding that even with reasonable diligence, the prosecution
could not have proceeded on the kidnapping and robbery charges earlier, because
there was no evidence identifying defendant as one of the perpetrators until
defendant admitted participating in those crimes. (Davis,
supra, 36 Cal.4th at p. 558.) The
Supreme Court also noted that the policy reasons underlying section 654 –
preventing harassment and avoiding waste through relitigation of issues – would
not be served by barring prosecution of the robbery and kidnapping charges,
because: (1) the defendant’s interest in
not being harassed by a second trial was minimal, given that he was already on
trial for the unrelated murders; and (2) defendant’s guilty plea to the
misdemeanor of unlawful driving of a vehicle dispensed with the a need for a
trial on that charge. (
the public’s weighty interest in prosecuting and punishing defendant for the
serious crimes of robbing and kidnapping [the victim].†(Ibid.)
substantial or otherwise, supporting the trial court’s finding that the
prosecution could not have discovered the pornographic videos on the computer
earlier with reasonable diligence.
Moreover, unlike Davis, defendant’s
interest in not being harassed was more than minimal: the sole charge on which defendant was facing
trial was the charge of possessing child pornography; he was not charged with
other crimes on which he would have faced trial anyway. Also, although defendant’s plea to the
misdemeanor of annoying a child dispensed with the need for a trial on that
crime, Davis does not suggest that
such a circumstance is sufficient, in itself, to defeat the bar on successive
prosecutions.
Furthermore,
while we do not mean to downplay the seriousness of possessing child
pornography, it is not apparent that the public’s interest in prosecuting a
violation of section 311.11 substantially outweighs defendant’s interest in
avoiding harassment when the prior 647.6 conviction arises from his conduct in
having his daughter download and watch the pornography he is later charged with
possessing. Moreover, the difference in
permissible punishment between a violation of section 647.6 and section 311.11
is not particularly drastic. As a
misdemeanor, section 647.6 carries a maximum punishment of one year in the county jail and a $5,000
fine. (§ 647.6, subd. (a)(1).) As a felony, section
311.11 is punishable alternatively by one year in the county jail and a $2,500
fine (a lesser fine than section 647.6), or by imprisonment for 16 months, two
or three years. (§§ 311.11, subd.
(a); 18, subd. (a).) Significantly, both offenses carry the consequence of having
to register as a sex offender for life under section 290. (See § 290, subd. (c); see also
1470, 1482 [duty to advise of registration consequence before guilty plea is
based in part on that fact that “the ignominy and the duration of the
registration requirement make it a particularly harsh sanctionâ€].) In short, while Davis involved offenses of greatly disparate seriousness (unlawful
driving or taking of a vehicle on the one hand, and robbery and kidnapping on
the other), the instant case does not.
Respondent
further contends that Kellett does
not apply to this case, because two prosecutorial agencies were involved: the Long Beach City Prosecutor filed the
section 647.6 charge, while the District Attorney filed the section 311.11
charge. In Kellett, the court stated:
“We recognize that in many places felonies and misdemeanors are usually
prosecuted by different public law offices and that there is a risk that those
in charge of misdemeanor prosecutions may proceed without adequately assessing
the seriousness of a defendant’s conduct or considering whether a felony
prosecution should be undertaken. When
the responsibility for the prosecution for the higher offense lies with a
different public law office there is also the risk that a well advised
defendant may plead guilty to a misdemeanor to foreclose a subsequent felony
prosecution the misdemeanor prosecutor may be unaware of or may choose to
ignore. Cases may also arise in which
the district attorney is reasonably unaware of the felonies when the
misdemeanors are prosecuted. In such
situations the risk that there may be waste and harassment through both a
misdemeanor and felony prosecution may be outweighed by the risk that a
defendant guilty of a felony may escape proper punishment. Accordingly, in such cases section 654 does not
bar a subsequent felony prosecution except to the extent that such prosecution
is barred by that section’s preclusion of multiple punishment.†(Kellett,
supra, 63 Cal.2d at pp. 827–828.)
Application
of this exception to the Kellett rule
– that is, a determination whether the risk of waste and harassment outweighs
the risk that a defendant guilty of a felony may escape proper punishment – is
determined “on a case-by-case basis†(People
v. Britt (2004) 32 Cal.4th 944, 955), based on a balancing of factors. Two decisions illustrate the point: In re
Dennis B. (1976) 18 Cal.3d 687 (Dennis
B.) and People v. Eckley (1973)
33 Cal.App.3d 91 (Eckley).
In
defendant (a minor) inflicted fatal injuries on a motorcyclist while making an
unsafe lane change. (
guilty of an infraction for the unsafe lane change and sentenced to pay a $10
fine. (Id. at p. 695.) Thereafter,
the District Attorney filed a juvenile wardship petition against him alleging
that he committed vehicular manslaughter and the juvenile court sustained the
petition. (Ibid.)
On
appeal from the wardship finding, the Supreme Court rejected the contention
that under Kellett, the infraction
case barred prosecution of the wardship petition alleging
have known of the two offenses from the outset, the court looked to the
following factors. First, the court
noted the disparity in gravity between the two crimes (an infraction with a $10
fine as compared to vehicular manslaughter) strongly favored permitting the
wardship proceeding to go forward.
“Whatever anxiety a defendant charged consecutively with a minor traffic
offense and a felony or serious misdemeanor is likely to experience will result
solely from the latter charge, not from [harassment by] the multiplicity of
prosecutions.†(Dennis B., supra, 18 Cal.3d at p. 695.)
Second,
the court the stated that “the state’s substantial interest in maintaining the
summary nature of minor motor vehicle violation proceedings would be impaired
by requiring the prosecution to ascertain for each infraction the possibility
of further criminal proceedings.†(
695.) Third, the court was not
“insensitive to the equities of the state’s position. There is an undeniable state interest in
prosecuting serious misdemeanors and felonies.
To permit defendant to be prosecuted only for a minor motor vehicle code
infraction when his alleged crime was actually manslaughter ‘would operate a
gross unfairness to the State.’
[Citation.] On balance, we
believe the minimal potential for harassment and waste caused by defendant’s
multiple prosecution in the case at bar is outweighed by the state’s interests
in preserving the summary nature of traffic proceedings and insuring that a
defendant charged with a felony or serious misdemeanor does not evade
appropriate disposition.
[Citation.] Accordingly, juvenile
proceedings arising from the unsafe lane change are not barred by defendant’s
traffic conviction.†(
The
rationale of Dennis B. does not apply
to the instant case. Here, as we have
explained, there is no gross disparity of seriousness between the section 647.6
and section 311.11 charges. Moreover,
given the overlap in evidence -- both cases arose from the same embarrassing
and depraved conduct of having defendant’s daughter download on the computer
and watch pornography – it cannot be said that whatever anxiety defendant might
experience from multiple prosecutions would be caused solely by the latter
felony and not by the earlier misdemeanor.
Finally, the instant case does not involve a state interest comparable
to that of maintaining the summary nature of traffic cases.
The
second illustrative case, Eckley, supra, 33
Cal.App.3d 91, is similarly distinguishable.
There, the defendant pled nolo contendere to a misdemeanor charge of
practicing medicine without a license, filed by the City Attorney. Later investigation revealed that this
incident was part of a much larger course of conduct involving Medi-Cal
fraud. The grand jury returned a felony
indictment charging, inter alia, grand theft, conspiracy to defraud and to commit
grand theft, and practicing medicine without a license. In holding that under Kellett the misdemeanor conviction prosecuted by the City Attorney
did not bar the prosecution of the grand jury indictment by the District
Attorney, the court relied on the following factors: (1) the indictment “did not deal with the
same act, course of conduct or quality of crimes as that of the misdemeanor
prosecution,†in that the misdemeanor was a single instance of practicing medicine
without a license “while the indictment encompassed misconduct which differed
as to the number of separate criminal acts, the types of offenses and the
relationships of the parties involved†(id.
at p. 97); (2) each instance of the many in the indictment involving
practicing medicine without a license was a separate violation divisible in
time, and the defendant entertained multiple criminal objectives and committed
multiple criminal acts (ibid.); and
(3) because the City Attorney was unaware of the “massive fraud†and the
District Attorney was unaware of the misdemeanor charge until after the plea,
the case was not one in which the prosecutor “harass[ed] a defendant with
multiple prosecutions for closely related offenses because of dissatisfaction
with the punishment previously meted out or because of previous failure to
convict†(id. pp. 97-98). Under these circumstances, “[t]he risk that
defendant . . . may escape punishment for very serious felony crimes as the
result of the premature filing of a relatively minor misdemeanor charge, far
outweighs the risk of possible harassment or waste of public funds.†(Id.
at p. 98.)
Unlike the
instant case, Eckley was not one in
which, as required by Kellett, “the
same act or course of conduct play[ed] a significant part†in each
prosecution. (Kellett, supra, 62 Cal.2d at p. 827.) To the contrary, the misdemeanor in
much larger, overarching felony course of conduct involving many different
criminal acts committed at many different times. Further, in Eckley the disparity of seriousness between the single misdemeanor
on the one hand, and the felony fraud and grand theft on the other, was
significantly wider than the disparity of seriousness between the felony and
the misdemeanor in the present case.
Thus, Eckley does not support
the trial court’s ruling here.
In sum, no
substantial evidence supports the trial court’s finding that the prosecution
acted with due diligence in not discovering the child pornography on the
computer in police possession before defendant pled guilty to the section 647.6
violation. Further, no other exception
to the bar of section 654 and Kellett applies. Therefore, the trial court erred in denying
defendant’s motion to dismiss the section 311.11 charge.
The
judgment is reversed.
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS
WILLHITE,
J.
We
concur:
EPSTEIN,
P. J.
SUZUKAWA,
J.
undesignated section references are to the Penal Code.
311.11 provides in relevant part:
“(a) Every person who knowingly
possesses or controls any matter, representation of information, data, or
image, including, but not limited to, any film, filmstrip, photograph,
negative, slide, photocopy, videotape, video laser disc, computer hardware,
computer software, computer floppy disc, data storage media, CD-ROM, or
computer-generated equipment or any other computer-generated image that
contains or incorporates in any manner, any film or filmstrip, the production
of which involves the use of a person under the age of 18 years, knowing that
the matter depicts a person under the age of 18 years personally engaging in or
simulating sexual conduct, as defined in subdivision (d) of Section 311.4, is
guilty of a felony and shall be punished by imprisonment in the state prison,
or a county jail for up to one year, or by a fine not exceeding two thousand
five hundred dollars ($2,500), or by both the fine and imprisonment.â€
