Filed 10/8/13 P. v. Cabrera CA2/4
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   SECOND APPELLATE DISTRICT

                                                DIVISION FOUR


THE PEOPLE,                                                          B244389

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                      Super. Ct. No. NA089940)
         v.

SILVESTRE CABRERA,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County,
Richard R. Romero, Judge. Reversed.
         Jennifer M. Hansen, under appointment by the Court of Appeal, for
Defendant and Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Lance E. Winters, Assistant Attorney General, Victoria B.
Wilson and Brendan Sullivan, Deputy Attorneys General, for Plaintiff and
Respondent.


         Defendant Silvestre Cabrera forced his minor daughter, M.M., to download
pornographic videos on a computer and watch them with him. He was initially
charged with the misdemeanor offense of annoying or molesting a child (Pen.
Code, § 647.6, subd. (a), hereafter section 647.6),1 to which he pled guilty. When
the police later discovered that the computer hard drive contained files depicting
minors engaged in sex acts, defendant was charged with felony possession of
matter depicting a minor engaging in sexual conduct (§ 311.11, subd. (a), hereafter
section 311.11). Defendant moved to dismiss the section 311.11 charge under
section 654 and Kellett v. Superior Court (1966) 63 Cal.2d 822 (Kellett),
contending that the charge arose from the same course of conduct as the section
647.6 conviction. The trial court denied the motion, concluding that the
prosecution had acted with due diligence in discovering the existence of the child
pornography on the computer. Later, in a bench trial, defendant was convicted of
violating section 311.11. He was sentenced to three years in state prison and
ordered to register as sex offender under section 290.
      On appeal from the judgment of conviction, defendant contends that the trial
court erred in denying his motion to dismiss. We agree. Substantial evidence does
not support the trial court‘s finding of due diligence, and no exception to the bar of
section 654 and Kellett applies. Therefore, we reverse the judgment.


              FACTUAL AND PROCEDURAL BACKGROUND
The Felony Complaint and Preliminary Hearing
      On March 3, 2011, the Long Beach City Prosecutor charged defendant with
violating section 647.6, subdivision (a). Defendant pled guilty to that charge on
March 15, 2011.
      In the instant felony case, defendant was initially charged in a complaint
filed on September 2, 2011 with three counts: forcible rape (§ 261, subd. (a)(2)),

1
      All undesignated section references are to the Penal Code.


                                           2
lewd act on a child (§ 288, subd. (c)(1)), and possession of matter depicting a
minor engaging in sexual conduct (§ 311.11, subd. (a)).2 The charges were based
largely on evidence provided by defendant‘s 16-year-old daughter, M.M.
       At the preliminary hearing, M.M. testified that defendant had her type the
name of a website on her computer (the computer was a Christmas gift from him to
her). Defendant then ―put on‖ a pornographic video and watched it while sitting
next to her. The video showed male parents sexually abusing girls who looked to
be 13 or 15. M.M. told defendant that she did not want to see it, but he said she
had to see it. He touched her legs and unbuttoned her blouse, and said that his
penis was hard. M.M. went to her bed, and defendant tried to lay down next to her.
Defendant said that she looked like her mother. Defendant pushed her against the
wall while she was on the bed. She tried to push defendant away. He told her that
if she said something, no one would believe her.
       Long Beach Detective Mark Steenhausen testified that Officers Sepulveda
and Ruvalcaba recovered a computer from defendant‘s apartment on February 28,
2011 and observed in the search history that a Playboy website had been accessed.
They seized the computer. Detective Steenhausen obtained consent from
defendant to search the computer on March 1, 2011. Detective Matt Archer of

2
       Section 311.11 provides in relevant part: ―(a) Every person who knowingly
possesses or controls any matter, representation of information, data, or image, including,
but not limited to, any film, filmstrip, photograph, negative, slide, photocopy, videotape,
video laser disc, computer hardware, computer software, computer floppy disc, data
storage media, CD-ROM, or computer-generated equipment or any other computer-
generated image that contains or incorporates in any manner, any film or filmstrip, the
production of which involves the use of a person under the age of 18 years, knowing that
the matter depicts a person under the age of 18 years personally engaging in or simulating
sexual conduct, as defined in subdivision (d) of Section 311.4, is guilty of a felony and
shall be punished by imprisonment in the state prison, or a county jail for up to one year,
or by a fine not exceeding two thousand five hundred dollars ($2,500), or by both the fine
and imprisonment.‖


                                            3
Computer Crimes performed the search, and on April 7, 2011, gave Detective
Steenhausen a report stating that he had found three child pornography files. The
three files were downloaded on February 27, 2011.
      On August 26, 2011, Detective Steenhausen interviewed defendant at his
apartment about the contents of the computer. He said that he watched a
pornographic video on the internet of a father having sex with his young daughter.
      Although before the preliminary hearing M.M. had told Detective
Steenhausen and the prosecutor that defendant had sexual intercourse with her, in
her preliminary hearing testimony she denied that intercourse occurred. Detective
Steenhausen testified to her earlier statements, and the magistrate held defendant to
answer on all three counts.


The Information and the Motion to Dismiss
      The Los Angeles County District Attorney filed an information charging
defendant with the three counts on which he was held to answer: forcible rape
(§ 261, subd. (a)(2)), lewd act on a child (§ 288, subd. (c)(1), and possession of
matter depicting a minor engaging in sexual conduct (§ 311.11). Defendant pled
not guilty. For reasons not fully explained in the record, the prosecutor moved to
dismiss the rape and lewd act counts ―due to recantation and issues with that.‖ The
trial court granted the motion and dismissed those counts, leaving only the section
311.11 count, possession of matter depicting a minor engaging in sexual conduct.
      The defense moved to dismiss that charge under section 654 and Kellett,
supra, 63 Cal.2d 822. The basis of defendant‘s motion to dismiss was that
defendant had already been convicted of, and sentenced for, a misdemeanor




                                          4
violation of section 647.6 based on the same course of conduct underlying the
section 311.11 charge.3
      Relying on undisputed facts, defendant‘s motion stated that on March 1,
2011, Detective Steenhausen received a voice mail from the Long Beach City
Prosecutor informing him that defendant would be charged with one count of
violating section 647.6, subdivision (a), and asking that he have the computer that
had been seized by Officers Sepulveda and Ruvalcaba from defendant‘s apartment
searched. Detective Steenhausen requested Detective Archer of Computer Crimes
to analyze the computer. On March 3, 2011, the Long Beach City Prosecutor
charged defendant with violating section 647.6, subdivision (a). Defendant pled
guilty to that charge on March 15, 2011. On April 7, 2011, Detective Archer
informed Detective Steenhausen that the computer contained three child
pornography files. Defendant was charged by felony complaint with, inter alia,
violating section 311.11 on September 2, 2011.


The Hearing on the Motion to Dismiss
      The prosecutor did not file a written opposition to the motion, and produced
no evidence. At the hearing on the motion, the prosecutor argued that the conduct
underlying the section 647.6 charge related to defendant showing his daughter a
pornographic video. However, the basis underlying the section 311.11 charge was
revealed by subsequent investigation, namely, that there was child pornography on
the computer. The prosecutor conceded that the child pornography on the
computer was the same pornography defendant showed to his daughter. But the

3
       Section 647.6 provides in relevant part: ―(a)(1) Every person who annoys or
molests any child under 18 years of age shall be punished by a fine not exceeding five
thousand dollars ($5,000), by imprisonment in a county jail not exceeding one year, or by
both the fine and imprisonment.‖


                                            5
prosecutor argued that the police had used due diligence in searching the computer.
The prosecutor stated, ―[T]o be quite candid, analysis of a computer for this type of
evidence can sometimes take months due to the availability of resources. So they
really did everything they could every step of the way. They got it cued up as soon
as possible. . . . The defendant just beat them to the punch in pleading to the
misdemeanor.‖ The trial court agreed that the police had acted with due diligence,
finding that ―a computer analysis takes a longer period of time,‖ and denied the
motion.


The Bench Trial
      The case was tried to the court sitting without a jury. At trial, Long Beach
Police Officer Javier Sepulveda testified that around 5:15 p.m. on February 28,
2011, he and his partner, Officer Sergio Ruvalcaba, responded to the apartment in
Long Beach where defendant lived with his daughter M.M. After speaking with
M.M., he seized a laptop computer, which was later transported to the station.
      Officer Ruvalcaba testified that he told defendant that they were
investigating possible child abuse. Defendant replied, ―You‘re here because of the
porno.‖ After advising defendant of his Miranda rights, Officer Ruvalcaba asked
defendant to tell him what the porno was about. Defendant said that he had his
daughter look up specific web sites for him showing white women having sex so
he could watch it on her computer. He had M.M. click through pictures for about
20 minutes, and later asked her to find a video of white women having sex. She
did, and they watched about a 10 minute video. He told M.M. that he was sexually




                                          6
aroused, and asked if she was. M.M. said she was not. Defendant went into the
bathroom and masturbated.4
      Defendant pointed out the computer that was used. Officer Ruvalcaba
looked at the search history, noticed the display of ―Playboy.com‖, and took the
computer into evidence.
      Detective Steenhausen testified that on March 1, 2011, the City Prosecutor
told him to have the computer analyzed. He knew that the City Prosecutor would
be filing charges. That same day, he interviewed defendant in custody and
obtained his consent to search the computer. Detective Steenhausen then delivered
the computer to Detective Matt Archer of Computer Crimes and asked him to
search the computer for pornography.
      On April 7, 2011, Detective Archer contacted him. Detective Steenhausen
did not then know that defendant had already been convicted of the misdemeanor
charge. Because other information came to light, he continued to investigate the
case and he spoke to defendant again on August 26, 2011, at defendant‘s residence.
      When he told defendant that a search of the computer had revealed
pornography between men and children, defendant said the night before he was
arrested, he had watched the video with M.M. showing a man having sex with a
girl between 10 and 12 years of age. M.M. was 15. Defendant was 63.
      Detective Matthew Archer testified that he was assigned to the Computer
Crimes Detail. He made a copy of the computer hard drive, examined it with
forensic software, and exported the video files. He compared the digital
fingerprint, or ―hash value,‖ of each file to a database of child pornography files

4
       Defendant said that there was a second occasion when he watched pornography
with M.M. He bought her school supplies and an IPod, showed her some condoms, and
asked her to look up pornography for him again. M.M. refused. Defendant became
angry and took away the IPod.


                                          7
compiled by the FBI. There were two matches, as well as a third child
pornography video that Detective Archer identified. All three files were accessed
and downloaded on February 27, 2011, around 12:00 a.m. and in the minutes
thereafter.


                                   DISCUSSION
      Defendant contends that the trial court erred in denying his motion to
dismiss the section 311.11 charge under section 654 and Kellett, supra, 63 Cal.2d
822. We agree.
      ―Section 654, subdivision (a) provides that when ‗[a]n act or omission . . . is
punishable in different ways by different provisions of the law,‘ ‗[a]n acquittal or
conviction and sentence under any one bars a prosecution for the same act or
omission under any other.‘ This provision thus bars multiple prosecutions for the
same act or omission where the defendant has already been tried and acquitted, or
convicted and sentenced.‖ (People v. Davis (2005) 36 Cal.4th 510, 556 (Davis).)
Construing section 654 in Kellett, supra, the court held: ―When . . . the
prosecution is or should be aware of more than one offense in which the same act
or course of conduct plays a significant part, all such offenses must be prosecuted
in a single proceeding unless joinder is prohibited or severance permitted for good
cause. Failure to unite all such offenses will result in a bar to subsequent
prosecution of any offense omitted if the initial proceedings culminate in either
acquittal or conviction and sentence.‖ (Kellett, supra, 63 Cal.2d at p. 827.)
      In the instant case, it is clear that the section 647.6 violation, which was
based on defendant‘s forcing M.M. to download and watch pornography on the
computer with him, was part of the same course of conduct on which the section
311.11 violation was based: the child pornography defendant was charged with
possessing was the same pornography he forced M.M. to download and watch.

                                          8
Respondent contends that it is unclear whether the two crimes were committed at
the same time and place. However, at the hearing on the motion, the prosecutor
conceded that the child pornography on the computer was the same pornography
defendant showed M.M.5 Moreover, at the preliminary hearing, M.M. testified that
one video she was forced to watch showed male parents sexually abusing girls who
looked 13 or 15. Further, defendant was arrested on February 28, and he told
Detective Steenhausen that the night before he was arrested, he had watched a
video with M.M. showing a man having sex with a girl between 10 and 12 years of
age. At trial, Detective Archer testified that the three child pornographic videos
were accessed and downloaded around the same time -- on February 27, 2011,
around 12:00 a.m. and in the minutes thereafter. Thus, the section 647.6 and
section 311.11 crimes occurred at the same time and place.
      Relying on People v. Hurtado (1977) 67 Cal.App.3d 633, respondent argues
that even if the crimes occurred at the same time and place, the conduct underlying
the 647.6 violation did not ―play[] a significant part‖ within the meaning of Kellett
in the commission of the section 311.11 violation. In Hurtado, the court held that
section 654 did not bar separate prosecutions for driving under the influence and
possession of heroin, even though the police discovered 20 balloons of heroin in
the car when the defendant was stopped for driving under the influence. (Id. at p.
637.) The court explained: ―[T]he evidentiary pictures which had to be painted to
prove the drunk driving and narcotics offenses were sufficiently distinct so as to
permit separate prosecutions of the two offenses. . . . Evidence in the two cases[]
was for the most part mutually exclusive, the only common ground being the fact
that defendant was in the moving automobile in possession of the heroin at the

5
       During the hearing, the prosecutor argued that defendant‘s showing pornography
to M.M. was not a necessary element to the section 311.11 violation. The court asked,
―But it‘s the same porn?‖ The prosecutor replied, ―Yes, it is.‖

                                          9
same time that he was under the influence of alcohol. Such a trivial overlap of the
evidence . . . does not mandate the joinder of these cases. [Citation.]‖ (Id. at pp.
636-637.)
      By contrast, in the present case, the overlap of evidence was hardly ―trivial.‖
The 647.6 misdemeanor and the section 311.11 felony were closely linked: as we
have explained, the section 647.6 charge was based on defendant‘s having M.M.
download and watch pornographic videos with him on the computer; the section
311.11 charge was based on the presence of those videos in the computer hard
drive. Thus, the conduct on which the misdemeanor was based (forcing M.M. to
download and watch the videos) necessarily provided significant evidence tending
to prove the section 311.11 charge (the presence of those videos on the computer
under defendant‘s control).
      Respondent next relies on an exception to the Kellett rule, which applies
―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.‘ [Citation.] Whether the government exercised due
diligence is a question of fact. [Citation.]‖ (Davis, supra, 36 Cal.4th at p. 558.)
We review the trial court‘s finding for substantial evidence. (Barriga v. Superior
Court (2012) 206 Cal.App.4th 739, 748 (Barriga).)

                                          10
       Here, at the hearing on the Kellett motion, the trial court concluded that,
because ―a computer analysis takes a longer period of time,‖ the prosecution acted
with due diligence in developing evidence of the section 311.11 charge. However,
the prosecution presented no evidence of due diligence to support that finding.
Rather, the prosecutor simply argued, without any evidentiary support, that
―analysis of a computer for this type of evidence can sometimes take months due
to the availability of resources. So they really did everything they could every step
of the way.‖ Argument is not evidence, and we cannot say that delay in computer
analysis due to the lack of resources in the Long Beach Police Department was
such a commonly known, undisputed fact such that no evidence of it was required.
Nor does the record of the preliminary hearing or trial contain any such evidence.
Thus there was no evidence on which to base a finding that the lack of resources in
the Long Beach Police Department prevented an examination of the computer
being completed before defendant pled guilty to the misdemeanor charge.
       In this regard, the present case is analogous to Barriga v. Superior Court,
supra, 206 Cal.App.4th 739. There, on November 28, the police stopped a car that
had been carjacked by three Hispanic males earlier in the afternoon. When
stopped, the car had five occupants (two females and three males), among whom
was Barriga, a passenger. (Id. at p. 742.) Barriga refused an officer‘s order to stay
in the car and he was taken into custody along with the two other males. On the
floor of the car the police found a cell phone that belonged to Barriga, and under
his seat found a bag containing methamphetamine. (Id. at p. 742-743.) Later that
night, the victim of the carjacking identified the other two male occupants as
having participated in the crime, but told the police that Barriga was not involved.
(Id. at p. 743.)
       Two days later, on November 30, the District Attorney‘s office filed a
juvenile wardship petition against Barriga alleging five counts arising out of his

                                          11
conduct on November 28, and four counts from an unrelated incident. It was not
alleged that he had committed the November 28 carjacking. On December 16,
Barriga entered a negotiated disposition, in which he admitted one count from
November 28, resisting a peace officer, and another unrelated count, in exchange
for dismissal of the remaining allegations. (Barriga, supra, 206 Cal.App.4th at p.
743.)
        In late December, the police obtained a search warrant for Barriga‘s cell
phone, and for the first time discovered text messages implicating him in the
November 28 carjacking. The District Attorney then filed a criminal complaint
charging Barriga with robbery, carjacking, and other crimes. At the preliminary
hearing, the magistrate denied Barriga‘s motion under Kellett to dismiss the
criminal charges, and held him to answer. The trial court later denied a renewed
motion. The prosecution offered no evidence as to why a search warrant for
Barriga‘s phone was not obtained until two weeks after he had entered the
negotiated disposition in the juvenile case. (Barriga, supra, 206 Cal.App.4th at pp.
744-745.)
        The Court of Appeal issued a writ of prohibition directing the lower court
not to proceed further on the criminal case. The court noted that ―There . . . is no
dispute that, when they charged Barriga in the juvenile case, and when they entered
into the plea agreement with him in that case, the People were unaware of the
evidence they later uncovered—specifically, the text messages on Barriga‘s cell
phone—implicating him in the robbery and the carjacking. The question here is
whether the People should have been aware of that evidence, or, as stated in Davis,
whether the People were unable to discover that evidence despite reasonable
efforts and due diligence.‖ (Id. at p. 747.)
        The court found that no substantial evidence supported a finding of due
diligence: ―[T]he People do not draw our attention to any evidence, substantial or

                                          12
otherwise, that explains why they could not have, with reasonable efforts, and in
the exercise of due diligence, obtained a search warrant for Barriga‘s cell phone
and uncovered the incriminating text messages before they charged him in the
juvenile case and entered into a plea agreement with him in that case. They assert
that they ‗could not proceed on the carjacking and robbery charges [initially]
because the victim . . . specifically stated that [Barriga] was not involved.‘ We do
not disagree with that assertion, but it fails to address the critical point in this case.
The question here is why they did not manage to discover the evidence that was in
their possession before they proceeded with the juvenile case against Barriga. To
that question, the People offer no answer. Instead, they merely assert, ipse dixit,
that substantial evidence supports a finding of due diligence. [¶] In the absence of
any explanation of why they waited to search Barriga‘s cell phone until after they
had charged him in the juvenile case and entered into a plea agreement with him in
that case, we cannot agree that an implied finding of due diligence by the trial
court is supported by substantial evidence.‖ (Barriga, supra, 206 Cal.App.4th at p.
748.)
        Similarly, in the present case, respondent can point to no evidence that
explains why the police could not have discovered the existence of the child
pornography on the computer before defendant pled guilty to the section 647.6
misdemeanor. Thus, the trial court‘s finding of due diligence cannot be upheld on
appeal.
        Citing Davis, respondent argues that the policy behind the section 654 bar on
successive prosecutions would not be served here. But Davis provides no support
for the trial court‘s ruling. In Davis, the victim reported being kidnapped and
robbed of his car by three men, but neither he nor any witness could identify the
persons involved in the robbery and kidnapping. (Davis, supra, 36 Cal.4th at pp.
556-557.) Four days later, defendant was apprehended driving the victim‘s car.

                                            13
Defendant was initially charged only with the misdemeanor of unlawful taking of
the victim‘s vehicle (Veh. Code, § 10851, subd. (a)), to which he pled guilty. After
serving his sentence for the misdemeanor, he admitted to a witness his involvement
in the kidnapping and robbery. Based on his admission, he was charged with those
offenses, and he was later convicted of them in the same trial in which he was
convicted of two unrelated special-circumstance murder charges and sentenced to
death. (Id. at pp. 517, 556-557, 558.)
      With respect to the kidnapping and robbery charges, before trial the
defendant moved under Kellett and section 654 to preclude prosecution based on
the earlier misdemeanor conviction. The Supreme Court upheld the trial court‘s
ruling denying the motion, concluding that substantial evidence supported the trial
court‘s finding that even with reasonable diligence, the prosecution could not have
proceeded on the kidnapping and robbery charges earlier, because there was no
evidence identifying defendant as one of the perpetrators until defendant admitted
participating in those crimes. (Davis, supra, 36 Cal.4th at p. 558.) The Supreme
Court also noted that the policy reasons underlying section 654 – preventing
harassment and avoiding waste through relitigation of issues – would not be served
by barring prosecution of the robbery and kidnapping charges, because: (1) the
defendant‘s interest in not being harassed by a second trial was minimal, given that
he was already on trial for the unrelated murders; and (2) defendant‘s guilty plea to
the misdemeanor of unlawful driving of a vehicle dispensed with the a need for a
trial on that charge. (Id. at p. 559.) The court stated: ―Balanced against these
minimal interests was the public‘s weighty interest in prosecuting and punishing
defendant for the serious crimes of robbing and kidnapping [the victim].‖ (Ibid.)
      Davis is easily distinguishable. As we have noted, there is no evidence,
substantial or otherwise, supporting the trial court‘s finding that the prosecution
could not have discovered the pornographic videos on the computer earlier with

                                          14
reasonable diligence. Moreover, unlike Davis, defendant‘s interest in not being
harassed was more than minimal: the sole charge on which defendant was facing
trial was the charge of possessing child pornography; he was not charged with
other crimes on which he would have faced trial anyway. Also, although
defendant‘s plea to the misdemeanor of annoying a child dispensed with the need
for a trial on that crime, Davis does not suggest that such a circumstance is
sufficient, in itself, to defeat the bar on successive prosecutions.
      Furthermore, while we do not mean to downplay the seriousness of
possessing child pornography, it is not apparent that the public‘s interest in
prosecuting a violation of section 311.11 substantially outweighs defendant‘s
interest in avoiding harassment when the prior 647.6 conviction arises from his
conduct in having his daughter download and watch the pornography he is later
charged with possessing. Moreover, the difference in permissible punishment
between a violation of section 647.6 and section 311.11 is not particularly drastic.
As a misdemeanor, section 647.6 carries a maximum punishment of one year in
the county jail and a $5,000 fine. (§ 647.6, subd. (a)(1).) As a felony, section
311.11 is punishable alternatively by one year in the county jail and a $2,500 fine
(a lesser fine than section 647.6), or by imprisonment for 16 months, two or three
years. (§§ 311.11, subd. (a); 18, subd. (a).) Significantly, both offenses carry the
consequence of having to register as a sex offender for life under section 290. (See
§ 290, subd. (c); see also People v. Zaidi (2007) 147 Cal.App.4th 1470, 1482 [duty
to advise of registration consequence before guilty plea is based in part on that fact
that ―the ignominy and the duration of the registration requirement make it a
particularly harsh sanction‖].) In short, while Davis involved offenses of greatly
disparate seriousness (unlawful driving or taking of a vehicle on the one hand, and
robbery and kidnapping on the other), the instant case does not.



                                           15
      Respondent further contends that Kellett does not apply to this case, because
two prosecutorial agencies were involved: the Long Beach City Prosecutor filed
the section 647.6 charge, while the District Attorney filed the section 311.11
charge. In Kellett, the court stated: ―We recognize that in many places felonies
and misdemeanors are usually prosecuted by different public law offices and that
there is a risk that those in charge of misdemeanor prosecutions may proceed
without adequately assessing the seriousness of a defendant‘s conduct or
considering whether a felony prosecution should be undertaken. When the
responsibility for the prosecution for the higher offense lies with a different public
law office there is also the risk that a well advised defendant may plead guilty to a
misdemeanor to foreclose a subsequent felony prosecution the misdemeanor
prosecutor may be unaware of or may choose to ignore. Cases may also arise in
which the district attorney is reasonably unaware of the felonies when the
misdemeanors are prosecuted. In such situations the risk that there may be waste
and harassment through both a misdemeanor and felony prosecution may be
outweighed by the risk that a defendant guilty of a felony may escape proper
punishment. Accordingly, in such cases section 654 does not bar a subsequent
felony prosecution except to the extent that such prosecution is barred by that
section‘s preclusion of multiple punishment.‖ (Kellett, supra, 63 Cal.2d at pp.
827–828.)
      Application of this exception to the Kellett rule – that is, a determination
whether the risk of waste and harassment outweighs the risk that a defendant guilty
of a felony may escape proper punishment – is determined ―on a case-by-case
basis‖ (People v. Britt (2004) 32 Cal.4th 944, 955), based on a balancing of factors.
Two decisions illustrate the point: In re Dennis B. (1976) 18 Cal.3d 687 (Dennis
B.) and People v. Eckley (1973) 33 Cal.App.3d 91 (Eckley).



                                          16
      In Dennis B., supra, 18 Cal.3d 687, the defendant (a minor) inflicted fatal
injuries on a motorcyclist while making an unsafe lane change. (Id. at p. 690.) In
a traffic ticket trial, he was found guilty of an infraction for the unsafe lane change
and sentenced to pay a $10 fine. (Id. at p. 695.) Thereafter, the District Attorney
filed a juvenile wardship petition against him alleging that he committed vehicular
manslaughter and the juvenile court sustained the petition. (Ibid.)
      On appeal from the wardship finding, the Supreme Court rejected the
contention that under Kellett, the infraction case barred prosecution of the
wardship petition alleging vehicular manslaughter. In determining whether the
prosecution should have known of the two offenses from the outset, the court
looked to the following factors. First, the court noted the disparity in gravity
between the two crimes (an infraction with a $10 fine as compared to vehicular
manslaughter) strongly favored permitting the wardship proceeding to go forward.
―Whatever anxiety a defendant charged consecutively with a minor traffic offense
and a felony or serious misdemeanor is likely to experience will result solely from
the latter charge, not from [harassment by] the multiplicity of prosecutions.‖
(Dennis B., supra, 18 Cal.3d at p. 695.)
      Second, the court the stated that ―the state‘s substantial interest in
maintaining the summary nature of minor motor vehicle violation proceedings
would be impaired by requiring the prosecution to ascertain for each infraction the
possibility of further criminal proceedings.‖ (Dennis B., supra, 18 Cal.3d at p.
695.) Third, the court was not ―insensitive to the equities of the state‘s position.
There is an undeniable state interest in prosecuting serious misdemeanors and
felonies. To permit defendant to be prosecuted only for a minor motor vehicle
code infraction when his alleged crime was actually manslaughter ‗would operate a
gross unfairness to the State.‘ [Citation.] On balance, we believe the minimal
potential for harassment and waste caused by defendant‘s multiple prosecution in

                                           17
the case at bar is outweighed by the state‘s interests in preserving the summary
nature of traffic proceedings and insuring that a defendant charged with a felony or
serious misdemeanor does not evade appropriate disposition. [Citation.]
Accordingly, juvenile proceedings arising from the unsafe lane change are not
barred by defendant‘s traffic conviction.‖ (Id. at p. 696.)
      The rationale of Dennis B. does not apply to the instant case. Here, as we
have explained, there is no gross disparity of seriousness between the section 647.6
and section 311.11 charges. Moreover, given the overlap in evidence -- both cases
arose from the same embarrassing and depraved conduct of having defendant‘s
daughter download on the computer and watch pornography – it cannot be said that
whatever anxiety defendant might experience from multiple prosecutions would be
caused solely by the latter felony and not by the earlier misdemeanor. Finally, the
instant case does not involve a state interest comparable to that of maintaining the
summary nature of traffic cases.
      The second illustrative case, Eckley, supra, 33 Cal.App.3d 91, is similarly
distinguishable. There, the defendant pled nolo contendere to a misdemeanor
charge of practicing medicine without a license, filed by the City Attorney. Later
investigation revealed that this incident was part of a much larger course of
conduct involving Medi-Cal fraud. The grand jury returned a felony indictment
charging, inter alia, grand theft, conspiracy to defraud and to commit grand theft,
and practicing medicine without a license. In holding that under Kellett the
misdemeanor conviction prosecuted by the City Attorney did not bar the
prosecution of the grand jury indictment by the District Attorney, the court relied
on the following factors: (1) the indictment ―did not deal with the same act, course
of conduct or quality of crimes as that of the misdemeanor prosecution,‖ in that the
misdemeanor was a single instance of practicing medicine without a license ―while
the indictment encompassed misconduct which differed as to the number of

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separate criminal acts, the types of offenses and the relationships of the parties
involved‖ (id. at p. 97); (2) each instance of the many in the indictment involving
practicing medicine without a license was a separate violation divisible in time,
and the defendant entertained multiple criminal objectives and committed multiple
criminal acts (ibid.); and (3) because the City Attorney was unaware of the
―massive fraud‖ and the District Attorney was unaware of the misdemeanor charge
until after the plea, the case was not one in which the prosecutor ―harass[ed] a
defendant with multiple prosecutions for closely related offenses because of
dissatisfaction with the punishment previously meted out or because of previous
failure to convict‖ (id. pp. 97-98). Under these circumstances, ―[t]he risk that
defendant . . . may escape punishment for very serious felony crimes as the result
of the premature filing of a relatively minor misdemeanor charge, far outweighs
the risk of possible harassment or waste of public funds.‖ (Id. at p. 98.)
      Unlike the instant case, Eckley was not one in which, as required by Kellett,
―the same act or course of conduct play[ed] a significant part‖ in each prosecution.
(Kellett, supra, 62 Cal.2d at p. 827.) To the contrary, the misdemeanor in Eckley
was merely a single instance of a much larger, overarching felony course of
conduct involving many different criminal acts committed at many different times.
Further, in Eckley the disparity of seriousness between the single misdemeanor on
the one hand, and the felony fraud and grand theft on the other, was significantly
wider than the disparity of seriousness between the felony and the misdemeanor in
the present case. Thus, Eckley does not support the trial court‘s ruling here.
      In sum, no substantial evidence supports the trial court‘s finding that the
prosecution acted with due diligence in not discovering the child pornography on
the computer in police possession before defendant pled guilty to the section 647.6
violation. Further, no other exception to the bar of section 654 and Kellett applies.



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Therefore, the trial court erred in denying defendant‘s motion to dismiss the
section 311.11 charge.


                                  DISPOSITION
             The judgment is reversed.
             NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                              WILLHITE, J.




             We concur:




             EPSTEIN, P. J.




             SUZUKAWA, J.




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