Filed 6/29/21 P. v. Rubio 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(Yolo)
----
THE PEOPLE,
Plaintiff and Appellant, C090921
v. (Super. Ct. No. CRF180292)
ROBERT ALCATRAZ RUBIO,
Defendant and Respondent.
The People charged defendant Robert Alcatraz Rubio with committing a
carjacking in Sacramento County and a carjacking in Yolo County on the same day.
Defendant pleaded no contest to the Sacramento County charge and moved to dismiss the
Yolo County case pursuant to Penal Code section 6541 and Kellett v. Superior Court
(1966) 63 Cal.2d 822 (Kellett). The trial court granted the motion and dismissed the
Yolo County case.
1 Undesignated statutory references are to the Penal Code.
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The People appeal, arguing among other things that the alleged Yolo County
offense was separated by time and distance from the Sacramento County offense and
involved different victims, and should not have been dismissed. Agreeing with the
People, we will reverse the trial court’s order.
BACKGROUND
Jose R. testified at a preliminary hearing in Yolo County that on August 18, 2017,
he was performing home improvements at a house in West Sacramento. When he was
near his truck in the house’s driveway, a man approached him, punched him in the face,
and drove off with his truck.
The parties in the Yolo County case stipulated that a police officer would testify
that on the same day in August 2017, defendant subsequently carjacked S.F. on Auburn
Boulevard in Sacramento and that Jose R.’s truck was discovered at the scene of the
Sacramento carjacking.
Defendant pleaded no contest in Sacramento County to the carjacking of S.F., and
defendant admitted a prior strike allegation. The Sacramento trial court sentenced
defendant to 10 years in prison.
The People also charged defendant in Yolo County with the carjacking of
Jose R. (§ 215, subd. (a).) It was alleged that defendant had two prior strikes (§§ 667,
subds. (b)-(i), 1192.7, subd. (c)) and two prior convictions within the meaning of
section 667, subdivision (a)(1), and that he had served four prior prison terms (§ 667.5).
On July 29, 2019, defendant filed a Kellett motion to dismiss the Yolo County
case pursuant to section 654. He argued Sacramento County’s failure to join the two
alleged carjacking cases triggered a prosecutorial bar in Yolo County. On October 31,
2019, the trial court found it “a textbook Kellett motion” and dismissed the case “due to
multiple prosecutions.” The People timely appealed.
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DISCUSSION
The People argue prosecution of the carjacking in Yolo County did not violate
section 654. They concede the Yolo carjacking could have been joined with the
Sacramento County case, and the prosecution was, or should have been, aware of both
offenses. Nevertheless, they assert the same act or course of conduct did not play a
significant part in each offense under any applicable test. Defendant counters that the
two carjackings were a single course of conduct, a fact confirmed by the use of evidence
from the Sacramento County case to establish defendant’s identity in the Yolo County
case.
A
Section 654 prohibits multiple punishments for the same act or omission and also
multiple prosecutions for the same act or omission where there has been an acquittal or
conviction and sentence. (§ 654, subd. (a).) “The separate concerns have different
purposes and different rules of prohibition.” (People v. Valli (2010) 187 Cal.App.4th
786, 794 (Valli).) The bar on multiple punishments is “to insure that a defendant’s
punishment will be commensurate with his culpability.” (People v. Perez (1979)
23 Cal.3d 545, 551.) Whereas “ ‘[t]he rule against multiple prosecutions 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.)
The defendant in Kellett was arrested for standing on a public sidewalk with a
pistol. He was charged with exhibiting a firearm in a threatening manner and then later
charged with being a felon in possession of a firearm. He pleaded guilty to the exhibiting
charge and moved to dismiss the possession charge. (Kellett, supra, 63 Cal.2d at p. 824.)
In construing section 654 and section 954, the permissible joinder statute, our Supreme
Court stated: “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
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interrelated to permit their being prosecuted successively. . . . 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.” (Id. at p. 827.)
As this court has summarized, “ ‘[t]he Kellett rule, while seeking to prevent
harassment of defendants, was bottomed in large part on a concern for avoiding needless
repetition of evidence, and for conserving the resources and time of both the state and the
defendant.’ [Citation.] Thus the offenses must be transactionally related, and not just
joinable, before the Kellett rule applies. [Citation.] [¶] The Kellett rule applies only
where ‘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.’ ” (Valli, supra, 187 Cal.App.4th at
p. 796.)
Two tests have been applied to determine whether the same act or course of
conduct played a significant part in both offenses. The first looks at the timing and
location of the crimes and whether they are “unrelated offenses arising from separate
physical acts performed at different times.” (People v. Douglas (1966) 246 Cal.App.2d
594, 599; see People v. Ward (1973) 30 Cal.App.3d 130, 136 (Ward) [“The crimes were
committed at different locations, at different times, against different victims, and with
different objectives”].) The second is an evidentiary test: “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.” (People v. Hurtado (1977) 67 Cal.App.3d 633, 636 (Hurtado).)
Ultimately, what matters “is the totality of the facts, examined in light of the legislative
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goals of sections 654 and 954, as explained in Kellett.” (People v. Flint (1975)
51 Cal.App.3d 333, 336.)
“Whether Kellett applies must be determined on a case-by-case basis.” (Valli,
supra, 187 Cal.App.4th at p. 797.) “We review factual determinations under the
deferential substantial evidence test, viewing the evidence in the light most favorable to”
defendant. (People v. Ochoa (2016) 248 Cal.App.4th 15, 29.) “We review de novo the
legal question of whether Section 654 applies.” (Ibid.)
Various cases are illustrative. In Ward, supra, 30 Cal.App.3d 130, the defendant
kidnapped and raped a woman, then put her in the trunk of his car and drove to her
residence, convinced the women’s daughter to drive with him to meet her mother, and
then sexually assaulted the daughter. The defendant pleaded guilty to sexual perversion
against the daughter in San Bernardino County, and was also charged with the
kidnapping and rape of the mother in Los Angeles County. (Id. at p. 133.) Kellett did not
bar the Los Angeles County prosecution because “[t]he crimes were committed at
different locations, at different times, against different victims, and with different
objectives. The mere fact that they occurred in defendant’s vehicle during the same night
does not connect them as parts of a continuous course of conduct.” (Ward, at p. 136.)
In Hurtado, supra, 67 Cal.App.3d 633, the defendant failed field sobriety tests
after driving erratically, and officers discovered heroin on him. Defendant pleaded guilty
to driving under the influence (DUI) but moved to dismiss the narcotics charges in a
separate case. (Id. at pp. 635-636.) The court held that the evidence to prove the DUI
and narcotics offenses were sufficiently distinct to permit separate prosecutions of the
two offenses. (Id. at pp. 636-637.)
In People v. Britt (2004) 32 Cal.4th 944, a defendant with prior sex-crime
convictions moved from Sacramento County to El Dorado County without informing
either county. (Id. at p. 949.) The People charged the defendant in Sacramento County
with failing to report the move and in El Dorado County with failing to register. He
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pleaded no contest in Sacramento County and moved to dismiss the El Dorado County
case under section 654. (Id. at pp. 949-950.) The California Supreme Court held that
both offenses involved the single unreported move within California. (Id. at p. 954.) The
Court further explained that the “[d]efendant’s commission of each crime was essential to
the successful commission of the other, and he had the same objective when he
committed both crimes.” (Id. at p. 952.)
In Valli, supra, 187 Cal.App.4th 786, after a witness identified the defendant as
the killer in a murder, the defendant temporarily evaded police following a car chase. (Id.
at pp. 791-792) During the murder trial, the prosecutor argued defendant’s flight showed
guilt. (Id. at p. 792.) The jury acquitted the defendant of murder but on the day of the
acquittal, the defendant was arrested for felony evasion. (Id. at pp. 792-793.) At the
evading trial, witnesses from the murder trial testified and the jury found the defendant
guilty of the charges. (Id. at p. 793.) On appeal, this court held that section 654 and
Kellett did not bar the evasion prosecution, noting that the evidentiary test required more
than a trivial overlap of the evidence, and that simply using facts from one prosecution in
another prosecution does not trigger the application of Kellett. (Valli, at p. 799.) Even
though the prosecution referenced the evasion in seeking a conviction for murder, and
even though several witnesses testified in both cases, different evidentiary pictures were
required: one of a shooting at night and the other of police pursuits in the following days.
The evidence needed to prove murder did not supply proof of evading. And the evidence
of evading showed at most a possible consciousness of guilt as to the murder. (Id. at
pp. 799-800.)
Finally, in People v. Hendrix (2018) 20 Cal.App.5th 457, police found the
defendant intoxicated after he ran a red light. (Id. at p. 460.) The defendant paid the fine
for the red light infraction and then moved to dismiss the DUI case under section 654 and
Kellett. (Hendrix, at p. 460). Relying on Hurtado, this court concluded the evidence
required to prove the red light infraction was sufficiently distinct from that required to
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prove the charges in the DUI case so as to permit separate prosecutions. (Hendrix, at
pp. 464-465.)
B
Here, the two carjackings were distinct crimes in different locations at different
times with different victims. Proof of the crimes would require different evidence, and
proof of guilt as to one crime would not establish guilt as to the other crime.
It is true that the prosecutor in the Yolo County case relied on police testimony in
the Sacramento County case to establish defendant’s identity at the Yolo County
preliminary hearing. But such minimal overlap is not sufficient to bar the Yolo County
prosecution. In Valli, several witnesses testified in both cases, and the evasion was used
to establish guilt in the murder, yet this court held the overlap was trivial because the
evidence needed to prove murder did not supply proof of evading. (Valli, supra,
187 Cal.App.4th at p. 800.)
Defendant notes that at a certain point in time, the vehicles involved in each
carjacking crime were located in the same place at the same time. But that is just one
part of the evidentiary picture required to prove guilt. The carjackings occurred in
different counties at different times with different victims. Some temporal proximity of
successive crimes does not necessarily establish a single course of conduct. As the court
held in Ward, the mere fact that the crimes occurred in the same vehicle on the same
evening still did not connect them as part of a continuous course of conduct. (See Ward,
supra, 30 Cal.App.3d at p. 136.) Here, unlike in Ward, the crimes involved different
vehicles.
Defendant also points to Britt, supra, 32 Cal.4th 944, a case involving crimes in
two counties on the same day. But Britt involved a single act: a sex-offender moving
from Sacramento County to El Dorado County without informing either county. Here,
defendant committed two distinct acts, and his travel from one county to another was not
an element of either offense.
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In addition, defendant relies on Barriga v. Superior Court (2012) 206 Cal.App.4th
739. But in that case there was no dispute that the two offenses were part of the same
course of conduct, so this court did not analyze that issue. (Id. at p. 747.) “ ‘It is
axiomatic that cases are not authority for propositions not considered.’ ” (Howard Jarvis
Taxpayers Assn. v. Newsom (2019) 39 Cal.App.5th 158, 169.)
Prosecuting defendant for his distinct carjacking in Yolo County is not
inconsistent with, and is not barred by, the protections afforded under section 654 and
Kellett.
DISPOSITION
The order granting defendant’s motion to dismiss is reversed. The matter is
remanded to the trial court for further proceedings.
/S/
MAURO, J.
We concur:
/S/
HULL, Acting P. J.
/S/
HOCH, J.
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