P. v. Sanchez
Filed 3/21/13
P. v. Sanchez 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
THE PEOPLE,
Plaintiff and
Respondent,
v.
JESUS JOSE SANCHEZ,
Defendant and
Appellant.
F063030
(Super.
Ct. No. CRM008288)
THE COURT
name="_ftnref1" title="">*
APPEAL from
a judgment of the Superior Court of
County. Ronald W. Hansen, Judge.
Jeff Cunan,
under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Michael P. Farrell, Assistant Attorney General, Larenda R. Delaini, Deputy
Attorney General, for Plaintiff and Respondent.
-ooOoo-
Defendant Jesus Jose Sanchez was
charged with felony evading arrest
(Veh. Code, § 2800.2, subd. (a); count 1), and misdemeanor driving on a
suspended license (Veh. Code, § 14601.1, subd. (a); count 2). A jury convicted Sanchez on count 2, but the
jury could not reach a verdict on count 1 and the trial court declared a
mistrial on that count. Sanchez was
immediately sentenced on count 2; the court placed him on 36 months summary
probation.
The People
thereafter filed a motion to amend the information to add one count of
misdemeanor reckless driving (Veh.
Code, § 23103, subd. (a)) as new count 2.
The trial court granted the motion after defense counsel submitted on it
without objection. A second jury trial
on the amended information ended in a mistrial after the jury was unable to
reach a verdict on both counts. A third
jury convicted Sanchez on both counts.
The trial court suspended imposition of sentence and admitted Sanchez to
36 months’ probation upon specified terms and conditions, including a jail
sentence of 180 days with 12 days’ custody and conduct credits, and payment of
various fines and fees.
Initially,
Sanchez’s appointed appellate counsel filed an
pertinent facts, with citations to the record, raised no issues, and asked that
this court independently review the record.
(People v. Wende (1979) 25
Cal.3d 436.) Thereafter, this court
invited the parties to submit briefing on the issue of whether the prosecution
of reckless driving violated the rule against multiple prosecutions of
transactionally related crimes committed at the same time as stated in
827 (Kellett).
In his
letter brief, Sanchez contends Kellett does
indeed bar his reckless driving conviction.
Under the longstanding rule of Kellett,
supra, 63 Cal.2d at p. 827, and Penal
Code section 654 (section 654), ordinarily a conviction and sentence bars a
prosecutor from pursuing new charges in successive prosecutions based on the
same acts and course of conduct. The
question framed by this appeal is whether a door for an amended information
with new charges otherwise banned under Kellett
is nevertheless opened because there was a mistrial on another count in the
first trial, the evading arrest count, which was properly subject to a second
prosecution. We conclude that in this
case, Kellett and section 654 did not
preclude the subsequent prosecution for reckless driving.
FACTS
On the
afternoon of February 25, 2010, California Highway Patrol (CHP) Officer John
Moran pursued a black sedan after he saw the vehicle traveling northbound on
State Route 99 at a high rate of speed he estimated to be 85 miles per
hour. The vehicle made a U-turn across
the center median and accelerated southbound.
Moran activated his red light and followed the vehicle. When he was unable to catch up to the
vehicle, he radioed other CHP units for assistance. A short time later, Moran saw the vehicle
ahead of him passing several other vehicles by driving in the center median at
a speed of 80 to 90 miles per hour. Moran
lost sight of the vehicle after it returned to the fast lane.
CHP Officer
Gregory Houser, responding to Moran’s call, saw a black Pontiac Grand Am
tailgating dangerously close to another car.
Houser tried to catch up to the vehicle; he activated his lights and
sirens. Houser saw the vehicle pass
big-rig trucks and other vehicles by driving on the right shoulder. Moran caught up to Houser and saw the vehicle
change lanes erratically, and use both the center median and the right-hand
shoulder to pass other vehicles.
The vehicle eventually slowed and
stopped after Houser drove next to the vehicle and attempted to overtake
it. Both Moran and Houser pulled over to
make an enforcement stop on the right hand shoulder. The driver, Sanchez, was arrested without
incident. After Sanchez was read a
Moran asked Sanchez why he was driving recklessly and trying to flee. Sanchez replied that his license was
suspended, his car had been impounded once, and he did not want it to be
impounded again. Moran recalled asking
Sanchez if that was why he made a U-turn across the freeway and Sanchez
responded, “oh, that was you,†and said he saw Moran on the overcrossing.
DISCUSSION
Sanchez
contends that when he was convicted and sentenced in his first trial for
driving on a suspended license, the Kellett
rule barred future prosecution for any transactionally related crimes not
originally charged. He reasons that
because the reckless driving charge he was convicted of in the third trial was
“unquestionably transactionally related†to his conviction for driving on a
suspended license, the reckless driving charge and conviction should have been
barred by Kellett as that charge was
not alleged in the first trial.
Recognizing that the issue may be forfeited because defense counsel did
not object to the amendment below, Sanchez asserts he was denied effective
assistance of counsel when his attorney failed to make this argument on the
motion to amend. He also asks us to
exercise our discretion to consider the issue.
(People v. Williams (1998) 17
Cal.4th 148, 161-162, fn. 6.)
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.â€
Nearly 50 years ago, our Supreme
Court reiterated that section 654’s ban on multiple prosecution “‘is a
procedural safeguard against harassment
and is not necessarily related to the punishment to be imposed; double prosecution
may be precluded even when double punishment is permissible.’†(Kellett,
supra, 63 Cal.2d at p. 825.) Thus, “[i]f 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 . . . 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
acquittal or conviction and sentence.â€
(Id. at p. 827, fn. omitted,
italics added.)
Section 654’s preclusion of
of criminal conduct has the same effect:
“[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.†(Kellett,
supra, 63 Cal.2d at p. 828, italics
added.)
Here, the jury in the first trial
convicted Sanchez of driving on a suspended license. If this were the only charge upon which
Sanchez was tried, we might agree with his contention that Kellett bars his subsequent trial and conviction for reckless
driving. Sanchez, however, was also
charged with evading arrest; on that count, the trial court declared a mistrial
after the jury could not reach a verdict on it.
As the Attorney General points out, the Kellett rule does not prohibit the amendment of an information to
add new charges after a mistrial. (See
107, 1019-1021 (Flowers) [amendment
to add new charges after mistrial was within court’s discretion; mistrial means
a case’s status is the same as if no trial had occurred and thus the
prosecutor’s right to amend is the same as at any other time after plea or
demurrer is sustained]; People v. Brown
(1973) 35 Cal.App.3d 317, 323 [where prosecutor adds new charges in amended
information following total mistrial, Flowers,
not Kellett, controls; there is no
issue of multiple prosecutions because first trial resulted in mistrial, not
acquittal or conviction; status of case is the same as if there had been no
trial; therefore the defendant is not the victim of harassment or successive
prosecution]; People v. Williams
(1997) 56 Cal.App.4th 927, 933 [following mistrial, district attorney properly
may amend information to bring additional charges despite section 654’s
prohibition against multiple punishment for single course of conduct].)
Nevertheless, Sanchez argues the
his first trial did result in a conviction and sentence on one count, which is
necessary to trigger Kellett’s
protections against multiple prosecutions.
We are not persuaded. Although a
conviction was obtained against Sanchez on one of the original counts, the
conviction did not result in the culmination of the proceeding within the
meaning of Kellett. (Brown,
supra, 35 Cal.App.3d at p. 323.) Because the evading arrest charged in count 1
resulted in a mistrial due to the jury’s inability to agree on a verdict, the
“status of [that count] was the same as if there had been no trial.†(Ibid;
see also People v. Crooms (1949) 66
Cal.App.2d 491, 499 [where a jury convicted the defendant of one count and
could not reach a decision on a second count, resulting in a mistrial on that
count, status of second count was the same as if there had been no trial]
Hence, it was proper to amend the information, and Sanchez “was not the
victim of harassment or successive prosecution.†(Brown,
supra, 35 Cal.App.3d at p. 323.)
Accordingly, had Sanchez’s trial
counsel opposed the motion to amend by arguing Kellett applied, his argument would have been properly rejected,
and thus his counsel was not ineffective for failing to make it. (Strickland
v. Washington (1984) 466 U.S. 668, 694 [to prevail on ineffective
assistance of counsel claim, defendant must establish prejudice by showing
there is a reasonable probability that but for trial counsel’s errors, the
result of the proceeding would have been different].)
The judgment is affirmed.
Franson, J.
v. Arizona (1966) 384 U.S. 436.
