Filed 9/28/18
                            CERTIFIED FOR PUBLICATION

                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                             FIRST APPELLATE DISTRICT

                                     DIVISION TWO


THE PEOPLE,
        Plaintiff and Respondent,
                                                 A140600
v.
PAIGE TILLIE LINVILLE,                           (Solano County
                                                 Super. Ct. No. FCR274989)
        Defendant and Appellant.


In re PAIGE TILLIE LINVILLE,
                                                 A147938
        on Habeas Corpus.

        Defendant Paige Linville was charged with two counts of murder in connection
with a brazen, drug-fueled killing spree carried out with her ex-boyfriend. Their victims
were two unsuspecting strangers, gunned down deliberately for sick thrills within 24
hours of each other. The first victim, transient Amber Chappell, was killed shortly after
midnight on a remote backroad in Cordelia, California after the couple picked her up for
a ride in Linville’s SUV. The second victim, Christina Baxley, was killed later the same
day in Dixon, California, in broad daylight, when the couple spotted her taking her dog
for a walk.
        A jury deadlocked on the murder charge against Linville concerning the first
victim, Amber Chappell, but found Linville guilty of first degree murder and conspiracy
to commit murder in the shooting death of the second victim, Christina Baxley.
        Linville now appeals, contending she should not have been prosecuted for either
murder because she had already been prosecuted for a crime related to the killings.
Previously, she pled guilty and was sentenced to a three-year prison term for being an


                                             1
accessory after the fact to the killings, for having disposed of the vehicle used in the
killings (by trading it for another car). She entered that plea while the homicide
investigation was at an early stage, at a time when she denied any involvement in either
shooting. Her accessory conviction was based on the premise her boyfriend had
committed the murders and Linville later got rid of the vehicle to help him evade
detection. Now she asserts that because her prior conviction and the present prosecution
involve the same murders, her murder prosecution for the two shooting deaths was
prohibited by Penal Code section 654’s ban on multiple prosecutions, because the
prosecution knew or should have known of the potential murder charges when it charged
her the first time.
       We disagree. While the accessory charge and the homicide charges involved the
same killings, the same course of conduct did not play a significant part in both
prosecutions and section 654 therefore does not apply. Accordingly, we affirm the
judgment on direct appeal and deny Linville’s related petition for a writ of habeas
corpus.1
                                      BACKGROUND
       Sometime after midnight, in the early morning hours of November 16, 2007,2
Linville and her boyfriend Mario Moreno drove in Linville’s SUV to the parking lot of a
shopping center in Vallejo, California to sell drugs, after having smoked
methamphetamine together. The two often dealt drugs to support their methamphetamine
habit. As they were driving out of the parking lot afterwards, a woman later identified as
Amber Chappell emerged from the sidewalk and flagged them down, asking for drugs
and a ride. Moreno, who was driving, declined to stop for her and they drove away. But
then Moreno asked Linville if she had ever thought about killing someone, and Linville
said yes. They turned around, went back and picked up the woman.

       1
          Previously we ordered that Linville’s petition for a writ of habeas corpus would
be considered with her direct appeal. We hereby consolidate the two now for purposes of
decision.
       2
           All dates are in that year unless otherwise specified.


                                               2
        According to Moreno, they did this intending to kill her. Moreno said she seemed
like an easy target. And, according to Moreno, he asked Linville if she wanted to kill the
woman and Linville said yes.
        The woman wasn’t very coherent when they picked her up, seemed high on drugs
and wanted more. She told them her name was Amber. They drove around with her for
an hour or two promising to find her some drugs, but then stopped at the end of a
secluded, dead-end road in Cordelia. According to Moreno, Linville pulled Amber out of
the car. Moreno then got out, walked over and shot her in the head, multiple times. He
and Linville then drove off.
        According to Linville, there was no plan to kill Amber Chappell. Moreno started
shooting out of the blue, and Linville was terrified and in shock after it happened as they
drove back to Vallejo. When Moreno had asked if she ever thought about killing
someone, she thought it was one of the ridiculous things he would often say and
responded “[s]ure, whatever Mario.” Linville had helped him get Chappell out of the
SUV because she had been touching and grabbing Moreno flirtatiously and he was
irritated.
        After the killing, they briefly stopped by the home of one of Moreno’s friends in a
nearby trailer park and Moreno told his friend about the killing. They then went to buy
cleaning supplies at a 24-hour Walmart and cleaned the inside of Linville’s SUV, and at
six or seven in the morning drove to a carwash in Vallejo and cleaned out the car again.
Next, they bought more ammunition and paper targets and went to a rural property in
Dixon that Moreno’s uncle owned and shot target practice. After that, they drove around
Dixon together, eventually parked and smoked more methamphetamine. When they
resumed driving, they saw a woman, later identified as Christina Baxley, walking a dog,
and Moreno stopped the car.
        Moreno testified Linville got out of the car and shot Baxley. She did this,
according to Moreno, after having told him during their target practice that she should
shoot someone too so Moreno wouldn’t have to worry about her telling on him.



                                              3
According to Moreno, Linville donned a wig, they drove around Dixon looking for
someone to kill and ultimately she picked Baxley as their next victim.
        Linville testified it was Moreno who got out of the car and shot Baxley.
According to Linville, Moreno’s friend had said upon learning of the first killing that
only one person walks away from something like that, and so Moreno had been insisting
Linville would have to kill someone too or else he would kill her, and he had been
driving around looking for someone for her to shoot while she protested in fear. Linville
testified she was terrified by the second killing, and had no idea Moreno was planning to
do that. Afterwards, Moreno drove them back to Vallejo and dropped Linville off at
work.
        Approximately two to five days later, Linville drove her SUV to Richmond and
got rid of it by trading cars with a friend.
        A month later, acting on a hotline tip implicating both Moreno and Linville, police
arrested Moreno for both murders, on December 18. Moreno confessed to being present
at both crimes but told police Linville had committed the killings. The next day, Linville
was arrested for both murders too. She denied knowing anything about the killings and
asked for a lawyer.
        Moreno was charged in a felony complaint with two counts of murder on
December 20. The next day, the People filed a “notice of pending prosecution” stating
that no formal murder charges would be brought at that time against Linville, pending
further investigation. Five days later, on December 26, the People filed a second notice
stating the same thing, along with a felony complaint charging Linville with being an
accessory after the fact to murder by Moreno and possession of methamphetamine.
        A week and a half later, on January 4, 2008, Linville pled guilty to both counts
when the matter was called for a preliminary hearing. She believed that by doing so, she
could not later be charged with murder. The prosecutor said he didn’t object to the plea.
He also said he didn’t think Kellett v. Superior Court (1966) 63 Cal.2d 822 was
implicated, a reference to the leading California Supreme Court case construing



                                               4
section 654, but in any event would have four weeks until sentencing “in which to figure
it out for sure.”
       The Solano County Probation Department subsequently interviewed Linville, with
her counsel present, and she concocted a story about what had happened. According to
the probation report in her prior case, she told the probation officer she loaned her SUV
to Moreno, and when he returned it he told her to get rid of it because something bad had
happened in it. She felt intimidated by Moreno and agreed to swap the vehicle with a
friend in another county without knowing what had occurred. She found out about the
homicides a few days after they occurred but didn’t go to police because she felt
intimidated and thought it was best just to get rid of the vehicle. In a handwritten
statement attached to the probation report, she expressed “regret that nothing I could have
done could have prevented the crimes from taking place.”
       At the trial in this case, she admitted she was untruthful in the probation interview
and had been present at both killings. She testified her lawyer had advised her in the
prior case to limit her “discussion of what happened” with the probation department “to
only the circumstances regarding what I pled to, which was that my car was exchanged
with another car,” because her lawyer “thought it was in my best interest not to discuss
any of the details, the facts of the case that I told her, what she told me.”
       While awaiting sentencing, Linville wrote to an acquaintance that she had “pled
guilty quick, fast, [and] in a hurry” to the accessory charge, that at her next court
appearance the prosecution would either refile the murder charges against her or she
would be sentenced, and that “[i]f I get sentenced they won’t be able to refile later.” On
February 1, 2008, Linville was sentenced to the upper term of three years for the
accessory charge, and received a total prison term of three years and eight months. When
asked the factual basis for the plea, the prosecutor referred the court principally to the
contents of the probation report.3

       3
         The prosecutor also added that a shell casing had been discovered in the
windshield wiper of the SUV when they recovered the car in Richmond, that it was being
tested and that the prosecution expected it to match the shell casings found at both

                                               5
       Shortly after Linville was sentenced, several prison inmates came forward and
volunteered to authorities that she had made numerous incriminating, even boastful,
statements about participating in the murders and about getting away with it because
charges could not be refiled against her.4
       After sentencing, Linville also immediately began writing letters gloating about
the sentence she had received. The day she was sentenced, she wrote in one: “God is
good. I never thought I would be happy to get a prison term, but, hey, it’s looking real
cool right now.” In another letter the same day: “[S]o I just got back from court and they
sentenced me to three years, eight months. Praise God. He does work miracles. . . . I
never thought I’d be lucky to get a prison term, but it is what it is.” Two days later,


homicide scenes. The prosecutor also reported that the same weapon was used in both
shootings, but the firearm was never recovered.
       4
          Not all of them testified in Linville’s later murder trial. According to law
enforcement records attached to the prosecution’s opposition to Linville’s motion to
dismiss the later complaint charging her with murder, however, one inmate, Jamie
Anderson, told authorities Linville had said her co-defendant had “told on” both of them
and that if she had been arrested within 24 hours of the homicide the authorities would
have found gun residue all over her. Another inmate, Belle Peterson, overheard Linville
say on a transport bus to court that Moreno had “snitched” on her. Peterson also said
Linville was very angry with Moreno, and was telling everyone that Moreno had told the
police on her. Inmate Isabela Verela reported that Linville had said she wanted to see
what it felt like to kill someone, picked her victims randomly, had no feelings about the
killings, and laughingly told Verela “How do you want me to feel, I don’t know them, I
don’t care about them.” Verela reported that Linville would brag about committing the
murders and that she “got away” with it, and said she had been in Dixon driving around
with Moreno because they were on a mission to kill people. And Paula Moyer, who was
Linville’s cellmate while in county jail awaiting trial, reported extensive incriminating
statements by Linville, including that Linville admitted killing one of the victims and said
Moreno had killed the other one, the police would never find the gun, and that murder
charges could not be refiled against her. According to Moyer, after Linville was
sentenced on the accessory charge, Linville freely admitted killing one of the women and
would laugh about it. She bragged that she was sentenced to just three years and eight
months and had got away with murder. Moyer also reported that Linville became
infatuated with serial killer Richard Ramirez, and wrote him a letter boasting about the
murders.



                                              6
another letter to someone else: “God is wonderful. I got sentenced to three years, eight
months with half. The DA was so pissed and the detectives are hot too. But, hey, it’s not
what they hear. It’s what they can prove, right?” And on February 5, she reported in
another: “So I went to court and they didn’t refile. I got the three years, eight months.
God is good. [¶] The DA and detectives were pissed, but they couldn’t find the evidence
they needed to charge me again. And it’s not what they know. It’s what they can prove.”
       Less than three weeks after sentencing, Linville also wrote a fawning letter to
convicted serial killer Richard Ramirez displaying a morbid fascination with cold-
blooded murder and also discussing her case. She knew her mail was being searched.
Among other things, she told Ramirez the prosecution lacked evidence to prosecute her
for murder, “[s]o they threw an accessory after the fact charge at me, and I walked out of
the courtroom full of irate detectives and a furious DA with a sentence of three years,
eight months.” She asked Ramirez whether he liked “that look of terror in the eyes of
prey,” and told him she had always “been enthralled by True Crimes, but maybe my
breed of attraction stems from different roots than the casual fan.” And she told him, “I
never should have been arrested based on the absence of underlying evidence linking me
to my crimes, but was railroaded into accepting a guilty plea to a lesser charge to sidestep
the obviously corrupt attempts of law enforcement to gather evidence that can lead to
more serious charges.”
       Linville served less than two years in custody and in November 2009 was released
on parole.
       Shortly thereafter, in late March 2010, Moreno was scheduled to go to trial on the
murder charges against him but agreed to testify against Linville as part of a plea bargain,
memorialized and placed on the record on April 1, 2010. On March 30, 2010, Linville
was rearrested and charged with both murders, and with conspiracy to commit the second
murder.
       The defense contended before trial that the present prosecution was barred by
Penal Code section 654 (section 654) and Kellett. It did so in a motion to dismiss the
complaint filed shortly after Linville was rearrested and charged, again in a motion to set


                                             7
aside the information after the preliminary hearing, and then later in a renewed motion to
dismiss the information based on additional information obtained in discovery. The
prosecution argued the statute didn’t apply because the crimes didn’t involve the same
course of conduct, and furthermore it had insufficient evidence to charge her with murder
at the time of the initial prosecution, because it wasn’t until after she had been convicted
and sentenced that she made a number of incriminating admissions. All of Linville’s
motions were denied.
       The case proceeded to a jury trial. The jury deadlocked on the murder count as to
the first victim, Amber Chappell, and a mistrial was declared on that count. The jury
found Linville did not personally discharge a firearm in Christina Baxley’s killing,
acquitting her of the firearm enhancement for that homicide (Pen. Code, § 12022.53,
subd. (d)), but found her guilty of both first degree murder and conspiracy to commit
murder in the Baxley killing. The court sentenced Linville to twenty-five years to life in
prison, and this appeal and related habeas corpus petition followed.
                                      DISCUSSION
                                              I.
                                        Introduction
       Subdivision (a) of Penal Code section 654 proscribes both multiple punishment
and multiple prosecutions. It states: “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.” (Pen. Code,
§ 654, subd. (a).) The preclusion of multiple punishment is “separate and distinct” from
the preclusion of multiple prosecutions (Neal v. State (1960) 55 Cal.2d 11, 21,
disapproved on other grounds in People v. Correa (2012) 54 Cal.4th 331, 338), and only
the latter is at issue here. “The rule against multiple prosecutions is a procedural
safeguard against harassment and is not necessarily related to the punishment to be



                                              8
imposed; double prosecution may be precluded even when double punishment is
permissible.” (Neal, at p. 21.)
       Kellett v. Superior Court (1966) 63 Cal.2d 822 (Kellett) is the leading case
interpreting section 654’s bar against successive prosecutions. Kellett explained the
provision reflects the policy that “both criminal defendants and the public fisc are entitled
to protection from successive prosecutions for closely related crimes.” (Id. at p. 826.)
And because of that purpose, the proscription against multiple prosecutions is broader in
scope than section 654’s proscription against multiple punishment. According to Kellett,
“[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 too interrelated to permit
their being prosecuted successively.” (Id. at p. 827.) Kellett explained, “[w]hen 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.” (Ibid.)
Rather, under Kellett, “[w]hen . . . 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.” (Ibid., italics added.)
       The bar against successive prosecutions is subject to a judicially recognized
exception for unavailable evidence. Derived from constitutional double jeopardy
principles, the exception applies when 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.’ ”
(People v. Davis (2005) 36 Cal.4th 510, 558.)
       Linville argues that section 654 applies here, because the same course of conduct
played a significant part in both her conviction as an accessory to the Chappell and
Baxley murders and in the later murder charges against her, and the prosecution also was


                                              9
aware, and/or should have been aware, of potential murder charges when it charged her
as an accessory. She contends the unavailable evidence exception does not apply, in light
of the evidence the prosecution had at its disposal at the time it secured her conviction as
an accessory that implicated her in the actual murders. The latter point is developed at
greater length in Linville’s habeas petition, based on facts outside the record of her direct
appeal.
       The People contend Linville’s conviction as an accessory was not based on the
same course of conduct as the murder charges given the facts and circumstances of the
offenses, and that barring her murder prosecution would not be consistent with public
policy considered in light of section 654’s legislative goals. They also contend the
evidence the prosecution had at the time of Linville’s initial conviction as an accessory
about her involvement in the murders was circumstantial at best and not sufficient to
secure a conviction, and that it wasn’t until after her various later admissions that the
prosecution reasonably believed, in the exercise of its prosecutorial discretion, it had
sufficient evidence against her to gain a conviction—and even then, it failed to secure a
conviction on the first murder charge.
       The unavailable evidence exception is the subject of extensive briefing by the
parties, both as to the legal standard and the state of the evidence investigating authorities
possessed and/or could have obtained at the time of the first prosecution. It is
unnecessary to decide whether the exception applies, however, because we conclude the
same course of conduct did not play a significant part in both offenses. Kellett therefore
did not bar Linville’s prosecution for murder, notwithstanding her prior conviction as an
accessory.5




       5
        Our conclusion renders moot Linville’s habeas petition, which pertains solely to
the unavailable evidence exception.


                                             10
                                             II.
                                          Analysis
       The California Supreme Court has provided some guidance as to when “the same
act or course of conduct” is involved in multiple offenses for purposes of section 654’s
preclusion of successive prosecutions. Kellett involved a defendant arrested for the
single act of standing on the sidewalk with a pistol in his hand. He was charged with and
pled guilty to a misdemeanor charge of exhibiting a firearm in a threatening manner, and
later separately prosecuted for felony possession of a concealable weapon. The Supreme
Court held that the felony prosecution was barred by section 654, notwithstanding the
possibility the defendant had possessed the firearm for some time before he was observed
brandishing it. (See Kellett, supra, 63 Cal.2d at pp. 824–825.) The offenses were too
“interrelated,” in other words, to permit separate prosecutions. (See id. at p. 827.) Kellett
also gave as an example that “[a] conviction and sentence for petty theft would therefore
bar a subsequent prosecution for burglary of premises entered with intent to commit that
theft, since only a single act within the meaning of section 654 would be involved.” (Id.
at p. 828.)
       In the decades since Kellett, the California Supreme Court has addressed the
multiple prosecution issue on a few occasions. In People v. Goolsby (2015) 62 Cal.4th
360, 366, the court expressed “no doubt” that Kellett would prohibit a new prosecution on
the lesser charge of arson of property if the defendant had been tried and, by way of
appeal, acquitted of the charge of arson of an inhabited structure and the jury had never
been presented with the lesser charge. (The court held section 654 did not preclude
retrial of a defendant on that lesser charge after his conviction on the greater charge was
reversed on appeal, because the jury had been instructed on the lesser charge at the prior
trial.) In People v. Carpenter (1999) 21 Cal.4th 1016, by contrast, the defendant argued
that two murders in Santa Cruz and one in Marin County should have been tried together,
and that trying him separately for the crimes in each county violated section 654. (Id. at
p. 1038.) The court disagreed, distinguishing Kellett. Whatever the scope of that
decision, “the murder of separate victims on separate days in separate counties is not a


                                             11
single act or even ‘course of conduct’ [citation] requiring a single prosecution.” (Ibid.)
This was so even though the prosecution of defendant for the Marin murders presented
much of the same evidence about defendant’s earlier crimes and convictions presented at
the earlier trial for the Santa Cruz murders. (See id. at pp. 1030–1031; accord, People v.
Marlow (2004) 34 Cal.4th 131, 144.)
       The Supreme Court most recently applied the “same course of conduct” standard
in People v. Britt (2004) 32 Cal.4th 944 (Britt), where it held section 654 barred
successive prosecutions for two violations of mandatory sex offender reporting
requirements that arose from a single change of residence. In Britt, the defendant moved
between two counties and in so doing committed two crimes, by failing to notify law
enforcement officials in the county of his former residence of his move (former Pen.
Code, § 290, subd. (f)(1)) and also failing to report it to law enforcement officials in the
county of his new residence (id., subd. (a).) (Britt, at pp. 949–950, 952.) Britt held the
second prosecution, undertaken in the county of his new residence, was barred by his
prior conviction in the county of his former residence. Although the two offenses were
distinct, the court reasoned that “a single unreported move within California . . . played a
significant part in both omissions.” (Id. at p. 954.) Britt cautioned its opinion was
limited to “a single move directly from one jurisdiction to another,” and did not address
“how section 654 would apply to other facts, such as multiple moves or the maintenance
of multiple residences.” (Britt, at p. 951, fn. 4.) The court also stated that the bar against
multiple prosecutions “must be determined on a case-by-case basis.” (Id. at p. 955.)
       In the wake of Kellett, the appellate courts have developed two different tests to
determine if the same course of conduct plays a significant part in multiple offenses for
purposes of section 654’s ban on multiple prosecutions. (People v. Ochoa (2016)
248 Cal.App.4th 15, 28.) “Under one line of cases, multiple prosecutions are not barred
if the offenses were committed at separate times and locations. . . . [¶] A second version
of the test—the ‘evidentiary test’—looks to the evidence necessary to prove the offenses.
[Citation.] ‘[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


                                              12
preventing needless harassment and waste of public funds.’ [Citation] ‘The evidentiary
test . . . 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.’ ”
(Id. at pp. 28–29.)
       Linville argues the “different time/different place” formulation is not an
established standard under Kellett and/or has been disapproved by Britt. She contends
that what matters instead is whether multiple offenses are “related, such that the same
course of conduct played a significant part in both offenses,” a question answered by
examining the degree of evidentiary overlap between them under the evidentiary test.
       It unnecessary to decide whether the different time/different location test retains
continuing vitality under section 654, at least as a stand-alone test. (Compare, e.g.,
People v. Valli (2010) 187 Cal.App.4th 786, 798 (Valli) [Britt reflects that “Kellett is not
necessarily a simple ‘different time/different place’ limitation”] with People v. Marlow,
supra, 34 Cal.4th at pp. 143–144 [Kellett held inapplicable to murders argued to be
related by common motive but carried out at different times in different locations].)
Here, Linville’s offenses were committed at different times in different places. The
murders were committed on November 16, 2007, in Vallejo and Dixon, which are in
Solano County, whereas Linville disposed of the vehicle days later in Richmond, which
is in Contra Costa County.6 But there is more. Examining “the totality of the facts” in


       6
          Linville disputes that different locations were involved. She argues in her reply
brief that venue for the accessory charge would have been proper in Solano County only
if the offense took place there. (See § 791.) We disagree. It is true that section 791
requires accessories to be charged in the venue where “the offense of the accessory was
committed, notwithstanding the principal offense was committed in another jurisdictional
territory.” However, Linville’s accessory offense was committed in more than one
jurisdiction because Linville drove her SUV from Solano County to Contra Costa County
to hide it and help Moreno evade detection. Under section 781, venue was proper in
either county. (See § 781; cf. People v. Simon (2001) 25 Cal.4th 1082, 1109 [venue for
assault charges proper in county where car chase began]; People v. Buono (1961)
191 Cal.App.2d 203, 223–224 [where car trip was overt act in furtherance of robbery
conspiracy, venue proper in county where car trip began]; see also People v. Mitten
(1974) 37 Cal.App.3d 879 [defendant properly charged as accessory to murders in county

                                             13
light of section 654’s legislative goals (People v. Flint (1975) 51 Cal.App.3d 333, 336),
and focusing on the conduct Linville herself committed, the offenses were not so
“interrelated” (Kellett, supra, 63 Cal.2d at p. 827) as to prohibit the state from pursuing a
separate prosecution against Linville, after she pled guilty to being an accessory, for the
much more serious murder charges.
       The main overlap between the two prosecutions was, of course, the two killings.
And we acknowledge that if there had been no murders, Linville could not have been
prosecuted as an accessory. But what is relevant for Kellett purposes are “the facts of
defendant’s conduct underlying the charged offenses.” (People v. Ochoa, supra,
248 Cal.App.4th at p. 32, italics added.) Implicit in section 654’s proscription against
multiple prosecutions is criminally charging the defendant more than once for something
the defendant allegedly did. Linville’s initial prosecution as an accessory, however, was
based on the theory that someone else, namely Moreno, committed the murders.7 Her
conviction as an accessory to those two murders did not require proof, nor was it alleged,
that she was involved in either killing. Since the accessory conviction did not require
and, indeed, was not predicated on an allegation that she committed the murders, it did
not involve the same course of conduct as her later murder prosecution.
       The fact that both prosecutions involved the same killings does not by itself
warrant a conclusion that the same course of conduct played a significant part in both.
The closest analogy the parties have cited is People v. Valli, supra, 187 Cal.App.4th 786,
which held that section 654 did not bar a defendant who had been acquitted of murder
from later being prosecuted for evading police, even though the evidence of his evading
police several days after the murder had been introduced in his murder trial to show his

where killings took place, despite having helped bury murder victims in different county,
because multiple accessories were involved].)
       7
         Penal Code section 32 defines an accessory as one who “after a felony has been
committed, harbors, conceals or aids a principal in such felony, with the intent that said
principal may avoid or escape from arrest, trial, conviction or punishment, having
knowledge that said principal has committed such felony or has been charged with such
felony or convicted thereof . . . .”


                                             14
consciousness of guilt. (Valli, at pp. 790–791.) In concluding that the same act or course
of conduct did not play a significant part in both prosecutions, Valli reasoned that,
“[d]ifferent 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.”
(Id. at p. 799.) “[A]lthough the People relied in part on proof of the evading to prove the
murder,” it said, “the necessary interrelation of murder and evading is missing.” (Id. at
p. 801.) As we have explained, the same is true here.
       Linville argues Valli is distinguishable, principally because in that case the lesser
charge (evading) “could be proven without any reference at all to the murder,” whereas in
this case, “conviction of accessory required proof of the underlying murder.” In addition,
she argues, here “murder would be proven in part based on [her] ownership of the car
used to commit the killings, and based on her trading of this car (in which was found a
casing matching casings at the two crime scenes) for another because it was ‘hot.’ ” But
this distinction ignores what Valli said, which is equally true in this case: “the evidence
needed to prove murder—that defendant was the shooter—did not supply proof of [the
lesser charge].” (Valli, supra, 187 Cal.App.4th at p. 800, italics added.) Valli also
reasoned that evidence of the lesser charge, like here, “showed at most a consciousness of
guilt as to the murder” but was itself “insufficient to supply proof of the murder.” (Ibid.)
In addition, proof of Linville’s ownership of the car used in both killings did not supply
proof that she had committed murders; indeed, Linville’s presence at the scene of both
killings was not in dispute in the murder trial—she merely denied responsibility for the
victims’ deaths. Further, any overlap in the evidence as between the two prosecutions
concerning her ownership of the SUV would have been “trivial” (Valli, at p. 799), given
extensive additional evidence introduced during the murder trial.8
       The authorities Linville cites do not compel a conclusion that the same course of
conduct was involved in both prosecutions either. For example, the only authority she

       8
        We presume the parties’ familiarity with the extensive trial record, which is
summarized in Linville’s opening brief and is unchallenged by the People, and which we
accept as accurate without the need for repetition.


                                             15
cites addressing whether section 654 bars successive prosecutions as an accessory and as
a principal in the underlying offense, is distinguishable. (See In re Benny G. (1972)
24 Cal.App.3d 371 [delinquency petition charging minor as an accessory to armed
robbery held barred under section 654 by minor’s exoneration on underlying armed
robbery charge in prior petition], superseded by statute on other grounds in In re Michael
B. (1980) 28 Cal.3d 548, 556, fn. 3.) That case involved a single incident on a single
evening (i.e., the minor was present at the scene of a robbery), the prosecutor conceded
the two charges “involved basically the same facts and circumstances,” and the same
witnesses testified to the same facts at both hearings. (See Bennie G., at pp. 373, 376.)
Moreover, Benny G. arose in the juvenile delinquency context, where the policies against
successive prosecutions have additional weight because the basic policy of juvenile
delinquency favors “expeditious handling of all formal proceedings and the minimization
of detention of the minor incident to them.” (Id. at pp. 376–377.) Nor had Linville
planned to hide her SUV as part of the murderous spree; she decided to do so only
afterwards. (See In re Farr (1976) 64 Cal.App.3d 605, 616 [news reporter who obtained
information protected by criminal gag order by promising to maintain source’s
confidentiality could not be successively held in contempt for obtaining the information
and then for refusing to divulge source’s identity].) Unlike the single move at issue in
Britt, or the single act of gun possession in Kellett, Linville’s participation in the killings
and her subsequent cover-up were distinct in time, and one was carried out with the
objective of killing (apparently for its own sake), while the other was carried out with the
distinct objective of avoiding detection. (Compare People v. Hartman (1985) 170
Cal.App.3d 572, 583 [dictum that Kellett barred murder prosecution of suspect in
robbery-homicide who was previously convicted of forgery after using victim’s stolen
checks and credit cards the day after victim’s death]; Farr, at p. 616.) Nor were her
actions part of a single, continuing incident that supplied proof of both offenses (see, e.g.,
People v. Flint, supra, 51 Cal.App.3d at p. 338 [successive prosecutions on charges for
drunk driving, in a stolen car].)



                                              16
       Finally, examining the totality of facts in light of section 654’s legislative goals
(see Valli, supra, 187 Cal.App.4th at p. 799), we are satisfied the policies of section 654
would not be served by prohibiting Linville’s murder prosecution. One factor we may
weigh, while not dispositive, is that Linville entered a quick guilty plea to the much less
serious accessory charge, without a trial or even a preliminary hearing. In that
circumstance, “the public’s interest in avoiding the waste of resources through relitigation
was minimal,” whereas “the public’s weighty interest in prosecuting and punishing [her]
for the serious crime[]” of murder was great.9 (See People v. Davis (2005) 36 Cal.4th
510, 558–559.)
       Another consideration is the relative seriousness of the charges. Given the gravity
of the new murder charges against Linville, the risk of waste and harassment from a
second prosecution following her guilty plea clearly was “outweighed by the risk that a
defendant guilty of a felony may escape proper punishment.” (Kellett, 63 Cal.2d at
p. 828; see also Britt, supra, 32 Cal.4th at p. 954, fn. 5 [Kellett “recognized possible
exceptions . . . when the original prosecution was for a less serious crime than the later
prosecution”]; In re Dennis B. (1976) 18 Cal.3d 687, 696 [discussing state’s “undeniable
state interest” in prosecuting serious offenses as factor weighing in favor of permitting
successive prosecution, where there was “minimal potential for harassment and waste”];
People v. Eckley (1973) 33 Cal.App.3d 91, 98; Stackhouse v. Municipal Court (1976)
63 Cal.App.3d 243, 247.)
       And finally, it is obvious on the rather unique facts of this record, that Linville’s
murder prosecution did not in any real sense “harass” her, as might have been the case,
for example, had she reasonably expected that the initial charges pressed against her
would be the last. To put it bluntly, Linville knowingly tried to “get off on a


       9
          We do not suggest section 654 has a “guilty plea” exception; as Linville points
out, Kellett itself involved a guilty plea. (See Kellett, supra, 63 Cal.2d at p. 824; see also,
e.g., Britt, supra, 32 Cal.4th at p. 949 [no contest plea].) Rather, it is a factor our
Supreme Court has considered in applying the statute. (See Davis, supra, 36 Cal.4th at
pp. 558–559.)


                                              17
technicality.” She pled guilty to a far less serious charge, lied about her involvement to
the probation department before sentencing on that charge, and then immediately turned
around and began bragging openly that she had been involved in the killings but could
not be recharged and had “got[ten] away with murder.”
       Whatever the scope of protection against prosecutorial harassment section 654 is
intended to provide, we are confident that pressing murder charges against Linville in
these circumstances is not the type of harassment the Legislature intended to thwart. “An
accused will not be deemed ‘harassed’ under Penal Code section 654, where the claimed
harassment ‘may be said to result from his own conduct.’ ” (In re Troglin (1975)
51 Cal.App.3d 434, 439; see also, e.g., People v. Winchell (1967) 248 Cal.App.2d 580,
593.) In particular, section 654 “cannot be employed to mislead the court. . . . [I]f a
greater violation is concealed in order to gain ‘immunity’ by prosecution for a lesser
crime, section 654 will not apply.” (In re Hayes (1969) 70 Cal.2d 604, 610, fn. 11
[dictum], overruled on other grounds in People v. Jones (2012) 54 Cal.4th 350, 358;
accord, People v. Hartfield (1970) 11 Cal.App.3d 1073, 1081 [defendant who obtained
previous judgment on lesser offense by “connivance and concealment” to avoid
prosecution on greater offense “may not claim the benefit of the statute”]; see also People
v. Malveaux (1996) 50 Cal.App.4th 1425, 1440–1443 [accused who previously lied about
age in order to be adjudicated as juvenile rather than adult offender not barred from being
retried as an adult]; Gail v. Municipal Court (1967) 251 Cal.App.2d 1005, 1008
[defendant who previously gave false explanation about driver’s license to law
enforcement and pled guilty to lesser charge could be re-prosecuted on more serious
charge]; Hampton v. Municipal Court (1966) 242 Cal.App.2d 689, 693 [defendant who
previously entered false guilty plea on lesser charge to avoid prosecution on more serious
charges not protected by section 654]); compare Crayton v. Superior Court (1985)
165 Cal.App.3d 443, 452 [defendant who pled guilty to misdemeanor charge but made no
affirmative misrepresentations, “in no manner manipulated the proceedings” and was not
“on notice or believed that the [prosecution] was ignorant of the fact of dual prosecution”
could not be separately prosecuted for felony charge based on same conduct); People v.


                                             18
Bas (1987) 194 Cal.App.3d 878 [similar].) Linville argues there is no “connivance” here
because she made false statements to the probation department only after she pled guilty
to the accessory charge. But it is the fact of her sentencing on the prior charge, not her
plea, that matters for purposes of a claim of successive prosecution. (See Hartfield, at
p. 1080.) Section 654’s protections are equally unavailable to a defendant who connives
and conceals after pleading guilty to a prior charge but before the pronouncement of
judgment. (See Hartfield, at p. 1081.) That is what Linville did.
                                      DISPOSITION
       The judgment is affirmed. The petition for writ of habeas corpus is denied.




                                             19
                   STEWART, J.



We concur.




KLINE, P.J.




MILLER, J.




              20
People v. Linville; In re Linville on Habeas Corpus (A140600, A147938)




                                         21
Trial Court: Solano County Superior Court

Trial Judge: Hon. Allan P. Carter

Counsel:

Laura S. Kelly, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief
Assistant Attorney General, Jeffrey M. Laurence, Senior Assistant Attorney General,
René A. Chacón, Supervising Deputy Attorney General, David M. Baskind, Deputy
Attorney General, for Plaintiff and Respondent.




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