O'Conner v. Super. Ct. CA3

Filed 4/14/21 O’Conner v. Super. Ct. CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Sacramento)
----

GRAHAM O’CONNER, C091557

Petitioner, (Super. Ct. No. 18FE001421)

v.

THE SUPERIOR COURT OF SACRAMENTO
COUNTY,

Respondent;

THE PEOPLE

Real Party in Interest.

On or about December 17, 2017, a burglary occurred at the home of A.L. wherein
multiple items were taken, including A.L.’s identification information. On January 3,
2018, following a search of Graham O’Conner and his tent, A.L.’s identification
information was recovered, along with burglary tools. Thereafter, on January 5, 2018,
the People charged O’Conner with multiple crimes arising from this search, including

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receiving/concealing stolen property (Pen. Code, § 496, subd. (a)),1 identity theft
(§ 530.5, subd. (c)(2)), and possession of burglary tools (§ 466). O’Conner was not
charged with burglary. This case was resolved via a plea bargain on January 10, 2018.
On January 11, 2018, the next day, authorities requested and received a fingerprint
match proving O’Conner had been inside A.L.’s apartment. As a result, the People
charged O’Conner with the December 17, 2017, burglary of A.L.’s apartment. O’Conner
unsuccessfully moved to dismiss this later action as barred under section 654.
We conclude that the trial court erred in denying O’Conner’s motion to dismiss
the later burglary case because there is no substantial evidence in the record supporting
that the People made reasonable efforts or acted with due diligence to discover that
O’Conner’s fingerprint matched a print left by the burglar prior to the settlement of the
first case against him. Absent an evidentiary showing of due diligence by the People,
O’Conner was entitled to dismissal of that latter action. Accordingly, we will grant
O’Conner’s petition.
I. BACKGROUND
A. The Investigation and Successive Complaints
On or about December 17, 2017, a burglary occurred at A.L.’s apartment wherein
multiple items were taken from her ransacked bedroom, including a cell phone, laptop,
identification information (including her social security card, passport, and nursing
student ID), banking documents, and jewelry. A dirty red cereal bowl not used by the
victim was located in the apartment, and investigators recovered two latent fingerprints
from that bowl. A crowbar apparently belonging to the burglar was left on the patio
behind a wooden fence gate.

1 Undesignated statutory references are to the Penal Code.

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 On January 3, 2018, park rangers were investigating reports of illegal camping.
One park ranger contacted O’Conner at his tent, which he claimed to share with another
individual. The ranger conducted a probation search of the tent and recovered, among
other things, a sawed-off shotgun and jewelry. Also recovered were identity cards and
property from several burglary victims, including a bag with A.L.’s passport, school ID,
and other paperwork in A.L.’s name. Lock picking tools were discovered on O’Conner
himself. O’Conner denied that he steals things and claimed to have found the paperwork
and ID’s in the garbage. He also admitted owning the baton found in camp, but denied
that the burglary tools or shotgun were his. A key fob for a Jeep was recovered from
inside a backpack that O’Conner admitted was his. Also recovered from the backpack
were bolt cutters and a crowbar.
On January 5, 2018, Park Ranger McGeorge spoke with A.L., who explained that
her home was burglarized between December 17 and December 19 and that fingerprints
had been recovered from a cereal bowl by the Sacramento Police Department. A.L.
promised to email the police report that had been generated. McGeorge noted A.L.’s
recovered items included: her passport, student ID, IRS tax forms, pay stub, education
loan documents, Costco card, MasterCard, AAA card, and Kaiser Permanente card. A.L.
confirmed the spare key fob for her Jeep had been stolen during the burglary.
Also on January 5, 2018, the People filed case No. 18FE000279 (the January 5
Case), which was a seven count complaint charging O’Conner with being a felon in
possession of a firearm (§ 29800, subd. (a)(1)—count one); possession of a short-barreled
shotgun (§ 33215—count two); possession of a billy club or blackjack (§ 22210—count
3); receiving/concealing stolen property (§ 496 subd. (a)—count four);2 identity theft
with a prior (§ 530.5, subd. (c)(2)—count five); possession of burglary tools (§ 466—

2 This count did not identify defendant’s victim beyond stating that the property belonged
to “Occupants of Rivercrest Apartments.”

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count six); and possession of a weapon in a county park (Sac. County Code, § 9.36.060—
count seven).
Discovery associated with this case was provided to O’Conner’s attorney on
January 9, 2018. It included a report written by Ranger McGeorge, which noted,
“Throughout the search, I found items that appeared could be related to burglaries or
other similar crimes (see notes at the end of this report for more details).” This report
later emphasized: “***NOTE*** Rangers found multiple pieces of personal
identifying information during the probation search. Rangers believe the items may
be linked to recent burglaries. Follow-up will be conducted and supplemental
reports and/or additional charges may follow the original report.”
On January 10, 2018, O’Conner resolved the case by pleading no contest to
possession of a firearm by a felon and possession of burglary tools in exchange for five
years felony probation and 210 days in county jail. O’Conner was sentenced
immediately, and the remaining counts were dismissed in the interest of justice.
The next day on January 11, 2018, Detective Valdez requested fingerprint analysis
of latent print lifts one through three recovered from A.L.’s apartment and that same day
a latent fingerprint from the red cereal bowl from A.L.’s apartment was matched to
O’Conner. A comparison report memorializing this discovery was created January 16,
2018, and reflected that a supervisor confirmed the fingerprint match.
Thereafter, on January 25, 2018, the People filed a complaint in case
No. 18FE001421 (the January 25 Case) charging O’Conner with a single count of
burglary (§ 459) of A.L.’s apartment alleged to have occurred on December 17, 2017.
B. O’Conner’s Motion to Dismiss the January 25 Case
On July 23, 2019, O’Conner filed a motion to dismiss the January 25 Case as an
improper successive prosecution of the January 5 Case pursuant to section 654 and
Kellett v. Superior Court (1966) 63 Cal.2d 822 (Kellett). Attached to this motion were
police reports associated with A.L.’s report of burglary, including the fingerprint

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analysis, as well as sheriff department reports regarding O’Conner’s arrest at his illegal
encampment.
The People opposed O’Conner’s motion, arguing the receiving/concealment of
stolen property count from the January 5 Case did not arise from the same conduct as the
charged burglary because they occurred on different dates. The People alternatively
argued an exception to the prohibition on successive prosecution applied because
O’Conner pled quickly and there was a “justifiable lack of prosecutorial awareness of the
more serious charge.” The People did not offer any independent evidence in support of
their opposition.
O’Conner’s reply brief in support of his motion argued the burglary and stolen
property charges were related as a matter of law and that O’Conner accepted the People’s
offer to settle the January 5 Case because it was an unusually low offer in light of his
prior strike. Attached to O’Conner’s reply were additional police reports that had been
provided to O’Conner’s attorney prior to the plea deal in the January 5 Case. The reply
highlighted that the investigating rangers believed the property recovered was linked to
recent burglaries and that follow-up with possible additional charges would be conducted.
It argued authorities knew about the fingerprints from A.L.’s apartment and that
supplemental investigation was occurring, but the People had provided no explanation for
why they did not wait for a fingerprint comparison prior to entering into the plea bargain.
Thus, similar to the petitioner in Barriga v. Superior Court (2012) 206 Cal.App.4th 739
(Barriga), O’Conner argued his complaint must be dismissed.
C. The Trial Court Denies O’Conner’s Motion
By the hearing on O’Conner’s motion, the parties had narrowed the issues,
exclusively arguing over whether the exception articulated in People v. Davis (2005)
36 Cal.4th 510 (Davis) applied or whether, consistent with Barriga, supra,
206 Cal.App.4th 739, authorities had not demonstrated the exercise of due diligence
requiring dismissal. O’Conner argued the true question was why the People did not

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discover the evidence, and like Barriga, the fingerprints could have been analyzed
quickly and thus the People were not diligent. O’Conner further argued that authorities
knew about his possible connection to the burglary on Friday, January 5, but waited six
days, until Thursday, January 11, to request the fingerprint comparison, which only took
a phone call. The People disagreed, arguing that Barriga was distinguishable, as the time
between when police had reason to suspect O’Conner and the discovery of the evidence
was much shorter than the month in Barriga, thus demonstrating due diligence.
The trial court first determined that the applicable standard was articulated in
Davis, supra, 36 Cal.4th 510, quoting that case for the record: “ ‘We have recognized an
exception to the multiple prosecution bar where the prosecutor is, quote, “unable to
proceed on a more serious charge at the outset because the additional facts necessary to
sustain that charge have not occurred or have not been discoverable—that have not been
discovered despite the exercise of due diligence.” Section 654 will not bar 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, 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. Whether the
government exercised due diligence or not is a question of fact.’ ”
The court then determined that Barriga was distinguishable because authorities in
that case had the cell phone in question the entire time and could have obtained a warrant
from a judge at any time, but did not do so for at least a month. Here, however,
authorities initially had a latent print, but nothing to compare it to. Weeks later,
O’Conner was found to be in possession of stolen property. Authorities then matched
O’Conner to the latent print within eight days, which the court remarked was “light speed
in the government.” The court stated, “How they even were able to get somebody to
respond to look at a latent print within a week is—I don’t know how they did it in this
case, but it happened.” The court determined a latent print match within eight days

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demonstrated “reasonable diligence” and concluded, “because the government in this
case could not have proceeded on that burglary [charge] without the latent match which
was pursued and received within a very reasonable time” the Davis exception applied.
D. The Proceedings in This Court
On February 26, 2020, O’Conner filed a petition for writ of mandate, prohibition,
and other appropriate relief seeking a stay of his impending trial in the January 25 Case
and an order directing the trial court to dismiss that action. This court granted the stay
request on March 5, 2020, and following informal briefing from the real party in interest,
granted an alternative writ of mandate on May 18, 2020.
II. DISCUSSION
O’Conner contends his prosecution in the January 25 case violates section 654’s
prohibition on multiple prosecutions because the evidence that would be used to show he
committed a burglary of A.L.’s home would substantially overlap with the evidence
needed to establish that he received/concealed A.L.’s stolen property. O’Conner
continues that the Davis exception to this prohibition does not apply here because the
record contains no explanation why the district attorney entered into a plea bargain on the
January 5 case without waiting for the ranger’s supplemental investigation. The real
party in interest disagrees, arguing this case does not fall within the two tests that have
developed to determine whether a subsequent prosecution violates Kellet, and that in any
event, matching O’Conner’s fingerprints within eight days of his apprehension shows the
exercise of due diligence under Davis. For the reasons explained herein, we concur with
O’Conner.
A. The Law Against Multiple Prosecutions
Section 654 provides in pertinent 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

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sentence under any one bars a prosecution for the same act or omission under any other.”
(§ 654, subd. (a).)
Section 654’s prohibitions on multiple punishment and multiple prosecutions are
separate, with “ ‘different purposes and different rules of prohibition.’ ” (People v.
Ochoa (2016) 248 Cal.App.4th 15, 27.) “The rule against multiple prosecutions is a
procedural safeguard against harassment and is not necessarily related to the punishment
imposed; double prosecution may be precluded even when double punishment is
permissible.” (Neal v. State of California (1960) 55 Cal.2d 11, 21 (Neal), disapproved on
other grounds as stated in People v. Correa (2012) 54 Cal.4th 331.)
In the California Supreme Court’s seminal decision on multiple prosecution, the
court explained: “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 actor’s 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, supra, 63 Cal.2d at p. 827.)
“Appellate courts have adopted two different tests under Kellett to determine
whether multiple offenses occurred during the same course of conduct. [Citation.]
Under one line of cases, multiple prosecutions are not barred if the offenses were
committed at separate times and locations.” (Ochoa, supra, 248 Cal.App.4th at pp. 28-
29.) This test is commonly referred to as the “ ‘time and place test.’ ” (Id. at p. 29.)

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 “A second version of the test—the ‘evidentiary test’—looks to the evidence
necessary to prove the offenses.” (Ochoa, supra, 248 Cal.App.4th at p. 29.) “ ‘[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.’ ” (Ibid.) However, the overlap of evidence must be more
than trivial. “ ‘Simply using facts from the first prosecution in the subsequent
prosecution does not trigger application of Kellett.’ ” (Ibid.)
Further, as explained by the Supreme Court in Davis, there is an exception to the
multiple prosecution bar “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.’ ” ’
[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.’ ” (Davis, supra, 36 Cal.4th at
p. 558.)
Due diligence does not require “extraordinary” measures. (See People v. Spicer
(2015) 235 Cal.App.4th 1359, 1375-1376 [analyzing authority cited by Davis which
recognized “extraordinary” efforts were not required in order to establish due diligence];
accord People v. Witcraft (2011) 201 Cal.App.4th 659, 672.) It has been recognized in an
analogous context that “ ‘[d]ue diligence is “ ‘[s]uch a measure of prudence, activity, or
assiduity, as is properly to be expected from, and ordinarily exercised by, a reasonable
and prudent [person] under the particular circumstances; not measured by any absolute
standard, but depending on the relative facts of the special case.’ ” ’ ” (Barriga, supra,

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206 Cal.App.4th at p. 748.) We review the legal question of whether section 654 applies
de novo. (People v. Valli (2010) 187 Cal.App.4th 786, 794.) Whether the government
exercised due diligence is a question of fact (Davis, supra, 36 Cal.4th at p. 558), for
which the People bear the burden of proof. (Barriga, supra, at pp. 747-748.) We review
factual questions for substantial evidence. (Id. at p. 748, citing Davis, supra, at p. 558.)
B. Application
As we shall explain, there is substantial overlap in the evidence the People would
present to show that O’Conner burglarized A.L.’s home and concealed stolen property
taken in that burglary. Accordingly, we will find the evidentiary test is met. Having
reached that conclusion, we find it unnecessary to conduct the time and place test.
Finally, we review the trial court’s Davis conclusion and find that it was not supported by
substantial evidence.
1. The Evidentiary Test
Section 459 advises “[e]very person who enters any . . . apartment . . . with intent
to commit grand or petit larceny or any felony is guilty of burglary.” Thus, to establish
O’Conner committed burglary, the People would have to show that he entered A.L.’s
apartment with the intent to commit a felony therein (§ 459), here, the theft of A.L.’s
property. This would require the presentation of evidence of O’Conner’s entry into
A.L.’s home, to wit, his fingerprint on the cereal bowl in that home. It would also require
evidence of his intent to steal, here, that he was found to be in possession of multiple
items taken from A.L.’s home. This would be established by presenting A.L.’s testimony
concerning what had been taken in the burglary and law enforcement testimony
concerning A.L.’s property that had been recovered from defendant.
Further, California law defines concealing stolen property as: “Every person . . .
who conceals, sells, withholds, or aids in concealing, selling, or withholding any property
from the owner, knowing the property to be so stolen or obtained.” (§ 496, subd. (a).)
Thus, in order to establish that O’Conner concealed stolen property, the prosecution

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would have to provide evidence not only that he had A.L.’s items taken during the
burglary, which would require the aforementioned presentation of evidence from both
A.L. and law enforcement, but also that O’Conner knew the items were stolen. (Ibid.)
To establish this knowledge, the People would present evidence that it was O’Conner
who took the items during the burglary of A.L.’s apartment, again requiring testimony
placing O’Conner at the scene of the burglary via the fingerprint analysis.
Thus, we find substantial overlap in the evidence necessary to establish burglary
and concealment of stolen property crimes. This is so because the evidence necessary to
show the entry of A.L.’s home to commit theft supplies the felony for the burglary and
the burglary in turn supplies the evidence that defendant knew the property he was
concealing was stolen. These requirements would be established by offering the same
witnesses and physical evidence. Under these circumstances, we find the evidentiary test
is met.3 (See Ochoa, supra, 248 Cal.App.4th at pp. 19, 29, 36-38 [evidence to support
conviction for conspiracy to distribute methamphetamine overlapped substantially with
evidence to support conviction for gang participation because Ochoa acted as middleman
obtaining methamphetamine from suppliers and selling it to the street gang]; cf. People v.
Britt (2004) 32 Cal.4th 944, 954 [Britt could not be separately prosecuted for two
violations of sex offender reporting requirements; although the two offenses were
distinct, the court found that “a single unreported move within California . . . played a
significant part in both omissions”].)

3 This overlap in evidence distinguishes this matter from People v. Martin (1980) 111
Cal.App.3d 973, 978, which allowed separate prosecutions for burglary and for
possession of a shotgun taken in the burglary. Unlike Martin, where it was the character
of the shotgun itself that made its possession illegal (ibid.), here, the stolen character of
the property is squarely at issue requiring significant overlap in the presentation of
evidence.

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 The real party in interest argues there is no substantial overlap in evidence because
O’Conner was discovered with stolen property from numerous individuals, not just A.L.
However, the Real Party in Interest has not shown, nor have we have uncovered, any
authority that would excuse the substantial overlap between the concealment of A.L.’s
stolen property and the subsequent burglary prosecution merely because O’Conner had
also been found to be in the possession of personal property belonging to other
individuals.
2. The Davis Exception
We further find that substantial evidence does not support the trial court’s
conclusion that authorities acted with due diligence, but still failed to discover the
fingerprint match necessary for the burglary charge prior to settling the January 5 case on
January 10. (See Davis, supra, 36 Cal.4th at p. 558 [reviewing for substantial evidence a
determination that “the government, despite reasonable efforts, has been unable to
discover the facts necessary to sustain a conviction on the more serious crime”].) This is
because the People offered no evidence regarding why they were unable to match
O’Conner’s fingerprints prior to making a plea deal with him. On the contrary, the
record discloses that investigating officers were aware as of January 5 that fingerprints
had been recovered in the burglary, that discovery provided to defense counsel on
January 9 warned officials that the stolen property was likely connected to recent
burglaries which were being investigated, and that the same day authorities requested the
fingerprint analysis (January 11), a fingerprint from A.L.’s home was matched to
defendant. This lack of evidence detailing why authorities failed to discover the
fingerprint match prior to the plea deal puts this case squarely within Barriga’s purview.
In Barriga, we recognized it was the People’s burden to provide evidence
explaining why with reasonable efforts authorities could not have obtained the missing
evidence prior to case resolution, and that in the absence of such a showing, there was no
substantial evidence supporting the trial court’s due diligence determination. (Barriga,

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supra, 206 Cal.App.4th at p. 748; see also People v. Witcraft, supra, 201 Cal.App.4th at
pp. 674-676 [no due diligence where district attorney had reason to suspect and
investigate the latter offense, which could have been easily confirmed prior to the plea
deal].) The same analysis applies here.
Moreover, there is no substantial evidence supporting the trial court’s
determination that a fingerprint match within eight days was “light speed in the
government.” There is no evidence in the record concerning any backlog in the
processing of fingerprint analysis or the typical timing required for such analysis. The
only evidence in the record on this subject shows that the same day authorities requested
the fingerprint analysis, a match was made. This suggests there was no backlog, further
supporting that without an explanation as to the reasonable efforts taken by authorities,
there is no substantial evidence supporting the trial court’s due diligence finding.
We conclude the trial court erred in denying O’Conner’s motion to dismiss the
January 25 Case. Accordingly, we will direct the issuance of a writ of prohibition.

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 III. DISPOSITION
The petition is granted. Let a peremptory writ of prohibition issue directing the
respondent court to refrain from any further proceedings against petitioner Graham
O’Conner in Sacramento Superior Court case No. 18FE001421. Having served its
purpose, the alternative writ is discharged and the stay is lifted.

/S/

RENNER, J.

We concur:

/S/

BLEASE, Acting P. J.

/S/

HULL, J.

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