Filed 5/16/13 P. v. Baribeau CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Appellant,                                        E056653

v.                                                                       (Super.Ct.Nos. FWV1002386 &
                                                                         FWV1102692)
ROBERT CHARLES BARIBEAU,
                                                                         OPINION
         Defendant and Respondent.



         APPEAL from the Superior Court of San Bernardino County. Sara S. Jones,

Judge. (Retired judge of the Orange Super. Ct. assigned by the Chief Justice pursuant to

art. VI, § 6 of the Cal. Const.) Reversed.

         Michael A. Ramos, District Attorney, and Brent J. Schultze, Deputy District

Attorney, for Plaintiff and Appellant.

         Jeffrey R. Lawrence for Defendant and Respondent.

         On October 28, 2010, defendant and appellant Robert Charles Baribeau pleaded

guilty to possession of a controlled substance for sale (Health & Saf. Code, § 11378) in

case No. FWV1002386 (the drug sales case). Approximately one year later, he was

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charged with three counts of possession of matter depicting a minor engaging in sexual

conduct (Pen. Code, § 311.11, subd. (a))1 in case No. FWV1102692 (the child

pornography case). Defendant moved to dismiss the child pornography case pursuant to

Kellett v. Superior Court (1966) 63 Cal.2d 822 (Kellett), on the ground that the

possession of a controlled substance and the possession of child pornography were all

part of a continuous course of conduct and should have been prosecuted together. The

trial court initially denied the motion, but later granted it after defendant moved for

reconsideration.

         The People now appeal and contend that the court erred in granting the motion to

dismiss under Kellett because the two crimes were not part of the same course of conduct,

and because additional investigation was needed before charges could be filed in the

child pornography case. We conclude that the child pornography case was not barred by

section 654 or Kellett, since defendant’s possession of child pornography was a separate,

distinct crime from his possession of a controlled substance for sale. Thus, we reverse

the order granting the motion to dismiss.

                      FACTUAL AND PROCEDURAL BACKGROUND

         On September 23, 2010, four juveniles were shoplifting, and three of the suspects

were apprehended by the police. Defendant was identified as the adult who had driven

the juveniles to the mall. The police contacted him and asked for his consent to search

his car for information to assist identifying the fourth suspect. Defendant agreed. A

         1   All further statutory references will be to the Penal Code, unless otherwise
noted.


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police officer searched his car and found a backpack, which contained a large bag of

marijuana. Defendant admitted that the backpack belonged to him. Further search of the

car yielded several additional containers of marijuana and ecstasy, two digital scales, a

package of small plastic bags, and a pay/owe sheet. The officer seized these items, as

well as defendant’s laptop computer, two thumb drives, and his cell phone.

       A police officer then searched defendant’s cell phone for evidence of drug sales

and saw images of what he believed to be child pornography, including pictures of

juvenile males, both nude and partially clothed. When the police interviewed defendant

at the police station, he waived his Miranda2 rights. He admitted to possession of the

various drugs, but denied that he was selling it. When asked for the password to his

computer, defendant became uneasy and said he wanted advice from an attorney.

       The next day, the police officer contacted the crimes against children detail and

informed a detective there about the images found on defendant’s cell phone. The

detective advised him to obtain a search warrant to search defendant’s residence. The

officer obtained one that day and executed the warrant. The police seized dozens of

pornographic DVD’s and DVD-R’s from defendant’s bedroom. All of defendant’s

electronic devices were sent to the San Bernardino County Sheriff’s Hi-Tech Detail to be

forensically examined.

       On October 10, 2010, a sergeant from the Hi-Tech Detail reported that he

forensically examined defendant’s cell phone and found images of nude young-looking


       2   Miranda v. Arizona (1966) 384 U.S. 436.


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males and females. On February 1, 2011, a detective in the Hi-Tech Detail reported that

he examined defendant’s computer, thumb drives, and media disks. He found images of

young-looking males who “may or may not be under the age of 18.” A copy of all the

images was sent to the National Center for Missing and Exploited Children (NCMEC) to

be compared to the known child porn victim database.

       On September 27, 2010, defendant was charged with three drug offenses in case

No. FWV1002386. He entered a plea agreement on October 28, 2010, and pleaded guilty

to one count of possession of a controlled substance for sale. (Health & Saf. Code,

§ 11378.) The court placed him on probation.

       Approximately one year later, on October 11, 2011, the People filed a felony

complaint alleging three counts of possession of matter depicting a minor engaging in

sexual conduct (case No. FWV1102692). (§ 311.11, subd. (a).)

       On February 28, 2012, defendant filed a motion to dismiss the child pornography

case under section 654 and Kellett. He asserted that section 654 and Kellett barred

multiple prosecutions where “the same act or course of conduct play[ed] a significant

part.” He argued that the same act or course of conduct played a significant part in the

drug sales case and the child pornography case, and that the prosecutor had actual

knowledge of both offenses at the outset; thus, the cases should have been joined in the

same proceeding. Defendant contended that the second case (child pornography) should

be barred because: (1) he consented to the search of his car and its contents; (2) he

simultaneously possessed the drugs and the pornographic photographs (collectively, the

contraband); (3) he possessed the contraband in one location—his backpack; (4) he


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possessed and controlled the contraband exclusively; (5) he admitted that he possessed

the drugs and the cell phone and computer containing pornographic photographs; and

(6) the officer was aware of the drugs and the pornographic photographs on the cell

phone at the time of the arrest. Defendant also referred to the officer’s affidavit for the

search warrant, and asserted that both felony complaints alleged the same dates for the

commission of both offenses.

       The People opposed the motion to dismiss and argued that the child pornography

case was not barred by the earlier prosecution since the Kellett rule only applies where

the offenses are transactionally related, and not just joinable. The People argued that the

act of obtaining child pornography had no relation to the drug possession offense. The

People further contended that, at the time the drug charges were brought, the prosecutor

was unable to move forward with the child pornography charges, since the evidence was

still being examined. Finally, the People asserted that the prosecutor was not “truly

aware” of the child pornography offenses at the time it filed the first case, because the

investigation into those offenses was incomplete, despite due diligence.

       After reviewing the papers and hearing arguments from the parties, the court

denied the motion to dismiss. The court noted that there was no indication that the

People filed the second action to harass defendant, and that the amount of time it took to

proceed with it was not the focus of the motion. The court also found that it was not

unreasonable for the People to take extra time to evaluate the electronic evidence

containing the pornographic images. The court further noted that, although the evidence




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“developed from the same moment in time,” and it was found in the same place

(defendant’s car), the evidence needed to support each case was different.

       Defendant filed a motion for reconsideration. He argued that the prosecution

showed a lack of due diligence, in that it had all the evidence of the pornographic pictures

on defendant’s cell phone, which the police seized on “day one.” The People asserted

that although the initial police report indicated that the police had found child

pornography, the evidence had to be sent off for analysis to be “absolutely sure.” In

reconsidering the motion to dismiss, the court focused on the probation report in the drug

sales case. The report showed that the probation department requested a probation

condition which “dealt with pornography.” The court noted that such request (which was

denied) gave it reason to believe that “in the public domain there was information which

would have alerted the prosecution.” The court believed that such information “would

have been sufficient to proceed.” Thus, the court found that the People had not shown

due diligence in bringing the possession of child pornography charges, and thereby

granted the defense motion to dismiss the child pornography case.

                                        ANALYSIS

  The Possession of Drugs for Sale and the Possession of Child Pornography Were Not

                        Part of the Same Act or Course of Conduct

       The People argue that, although evidence of defendant’s drug possession and

possession of child pornography was discovered on the same day, defendant did not

commit these crimes as part of a single course of conduct. Thus, the court erred in

dismissing the child pornography case under section 654 as construed in Kellett. In the


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alternative, the People contend that the exception to the joinder rule established in Kellett

applied, since the prosecution acted with due diligence, but was unable to proceed on the

child pornography case at the outset because it was still investigating those offenses. We

conclude that the court erred in dismissing the child pornography case.

       A. Relevant Law

       “Section 654 contains two separate provisions. The first precludes multiple

punishment where an act or omission is made punishable by different penal provisions.

The second part of section 654 provides that ‘an acquittal or conviction and sentence

under either one bars a prosecution for the same act or omission under any other.’ This

second aspect of section 654 is a safeguard against harassment and is not necessarily

related to the punishment to be imposed.” (People v. Turner (1985) 171 Cal.App.3d 116,

123, fn. omitted (Turner).)

       The leading case is the Supreme Court’s decision in Kellett. In that case, the

defendant pled guilty to a misdemeanor offense of exhibiting a firearm in a threatening

manner (§ 417), and was later charged with being a felon in possession of a firearm

(former § 12021, now § 29800). (Kellett, supra, 63 Cal.2d at p. 824.) Both charges arose

out of the defendant’s arrest on a sidewalk while holding a pistol. (See People v. Davis

(2005) 36 Cal.4th 510, 557 (Davis).) The defendant contended that exhibiting and

possessing a pistol constituted a single act and, thus, his prosecution for violating former

section 12021 was barred by his earlier conviction of violating section 417. (Kellett,

supra, 63 Cal.2d at p. 824.) The Supreme Court “considered the policy factors

underlying the statute and concluded that in order to avoid needless harassment of the


                                              7
defendant and the waste of public funds section 654 should be construed to prohibit

successive prosecutions where the first prosecution results in acquittal or conviction and

sentence, and the prosecution was or should have been aware of more than one offense in

which the same act or course of conduct played a significant part. [Citation.]” (Turner,

supra, 171 Cal.App.3d at p. 123, italics added.) The Supreme Court concluded that the

second prosecution in that case was barred, stating: “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.) “Thus the offenses must be transactionally related, and not

just joinable, before the Kellett rule applies. [Citation.] ‘[The] Kellett rule requiring

joinder of all offenses . . . [is] applicable only where the offenses arise out of the same

act, incident, or course of conduct; if the acts or conduct are unrelated, multiple

prosecutions are permissible. . . . [Citation.]” (Turner, supra, 171 Cal.App.3d at p. 129.)

       B. The Kellett Rule Does Not Apply

       Kellett bears no similarity to the instant case. In Kellett, the two offenses the

defendant was charged with were exhibiting a firearm in a threatening manner (§ 417)

and being a felon in possession of a firearm (former § 12021). (Kellett, supra, 63 Cal.2d

at p. 824.) Both charges arose out of the defendant’s arrest on a sidewalk while holding a

pistol. (Davis, supra, 36 Cal.4th at p. 557.) The second prosecution was barred because


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the same act of holding the same pistol played a significant part in both offenses.

(Kellett, supra, 63 Cal.2d at p. 827.) In the instant case, the two offenses defendant was

charged with were the possession of a controlled substance for sale and the possession of

matter depicting a minor engaging in sexual conduct. These two offenses are unrelated,

as they did not arise out of the same act or course of conduct. (See Turner, supra, 171

Cal.App.3d at p. 129.)

       Defendant contends that his possession of drugs for sale and possession of child

pornography were “significantly related in that evidence of both crimes was discovered in

the same place at the same time and, as such, they both have a great deal of overlapping

proof required to meet the elements of these crimes of possession.” However, the fact

that defendant possessed these two types of “contraband” (as he refers to them) at the

same time does not make the possession of them a single act. In People v. Wasley (1966)

245 Cal.App.2d 383 (Wasley I), the defendant was a passenger in a car that the police

pulled over. The police found a guitar case on the rear seat that contained a sawed-off

shotgun. They also found a pistol under the front seat on the passenger’s side. (Id. at

pp. 385-386.) The defendant had previously been convicted of a felony. (Id. at p. 386.)

A jury found him guilty of possession of a sawed-off shotgun (former § 12020, now

§ 17170) and of being a convicted felon in possession of a concealable firearm (former

§ 12021). (Wasley I, at p. 385.) On appeal, the defendant argued that he suffered double

punishment for a single act, in violation of section 654. (Wasley I, at p. 386.) The

appellate court noted that two separate weapons were possessed, and that the purpose of

former section 12020 was to outlaw a class of instruments normally used for criminal


                                             9
purposes (e.g., a sawed-off shotgun). However, the purpose of former section 12021 was

to bar a class of persons from possessing concealable weapons. (Wasley I, at p. 386.)

While the defendant argued that possession of the two weapons was a single act, the court

reasoned that possession was not truly an “act.” (Ibid.) The court did note that if

possession of the two weapons was a “course of conduct,” the proscription against double

punishment would apply. However, the record in that case presented “no suggestion of

any single intent or objective in possession of the two very different weapons.” (Id. at

p. 387.) In concluding that section 654 did not prohibit punishment under both sections,

the court explained the following: “The weapons were of distinct types. They were

carried in distinct sections of the automobile. Their possession was proscribed by

separate statutes, serving distinct public purposes. The fact that they were possessed at

the same time by one man does not reduce that possession to a single act or a single

course of conduct. Defendant’s argument, logically extended, would bar separate

punishments for him if he had carried in the same pocket a pistol, a bindle of heroin, and

a stolen gem, separately acquired, thus violating three statutes [citations]. We find no

basis for such an extension of the rule.” (Wasley I, at p. 387.)

       The reasoning of Wasley I applies in the instant case. The contraband here was of

two distinct types (drugs and child pornography). Their possession was proscribed by

separate statutes. The simple fact that the same person possessed the drugs and child

pornography at the same time did not “reduce that possession to a single act or a single

course of conduct.” (Wasley I, supra, 245 Cal.App.2d at p. 387.)




                                             10
       Moreover, the two crimes in the instant case have different and unrelated

elements. The possession of drugs for sale charge required proof that defendant

possessed one or more of the controlled substances listed in Health and Safety Code

section 11378, and that he possessed it for the purpose of selling it. (Health & Saf. Code,

§ 11378; see People v. Allen (1967) 254 Cal.App.2d 597, 603.) The possession of child

pornography required proof that defendant knowingly possessed or controlled any matter

depicting a person under the age of 18 personally engaging in or simulating sexual

conduct. As the People point out, these two offenses have little in common, other than

the word “possession.” The crimes themselves and the evidence regarding their

commission were different. “The evidentiary pictures which had to be painted to prove

[the offenses] were sufficiently distinct so as to permit separate prosecutions of the two

offenses.” (People v. Martin (1980) 111 Cal.App.3d 973, 978 (Martin).)

       Defendant claims that People v. Wasley (1970) 11 Cal.App.3d 121 (Wasley II), a

different case than Wasley I, and People v. Flint (1975) 51 Cal.App.3d 333 (Flint) are

similar to the instant case. Those two cases, however, are factually distinguishable from

the present case. In Wasley II, the court held that the defendant, an ex-convict, could not

be separately prosecuted for armed robbery and possession of the weapon used in that

robbery. (Wasley II, at pp. 122-124.) In Flint, the court held that a defendant who was

arrested for drunk driving while driving a stolen car could not, after he pleaded guilty to

drunk driving, be subjected to a subsequent prosecution for grand theft of the car and joy

riding. (Flint, at pp. 335-338; see Martin, supra, 111 Cal.App.3d at p. 977.) In both

Wasley II and Flint, the same instrument was used in the commission of both crimes


                                             11
charged: the gun in Wasley II and the stolen car in Flint. Here, unlike the situation in

both Wasley II and Flint, there was no common instrument used in the commission of

both crimes.

       In sum, “[d]ouble prosecution is prohibited 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 . . . . [Citation.]” (Martin, supra, 111 Cal.App.3d at p. 978.) Since “‘the

same act or course of conduct’” did not play “‘a significant part’” with regard to the

crimes here, the Kellett rule requiring joinder of all offenses was not applicable. (Turner,

supra, 171 Cal.App.3d at p. 129.) The conduct was unrelated and, therefore, multiple

prosecutions were permissible. (Ibid.) We also note that there is no indication in the

record that the prosecution intended to harass defendant by filing the second prosecution.

(See Id. at p. 123.)

       In light of our conclusion that multiple prosecutions were permissible here, we

need not address the People’s alternative argument that the exception to the Kellett rule

applied.




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                                  DISPOSITION

      The order granting defendant’s motion to dismiss case No. FWV1102692 is

reversed.

      NOT TO BE PUBLISHED IN OFFICIAL REPORTS



                                                         HOLLENHORST
                                                                   Acting P. J.


We concur:


MILLER
                       J.


CODRINGTON
                       J.




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