Filed 2/20/14 P. v. Robledo CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F066510
         Plaintiff and Respondent,
                                                                              (Super. Ct. No. 12CM3328)
                   v.

RODOLFO ROBLEDO,                                                                         OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Kings County. Thomas
DeSantos, Judge.
         Michael Allen, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and
Larenda R. Delaini, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-



*        Before Cornell, Acting P.J., Franson, J. and Peña, J.
       Defendant Rodolfo Robledo was charged by two separate complaints for crimes
he committed on the same day. On appeal, he contends the trial court should have
dismissed the second complaint pursuant to Kellett v. Superior Court (1966) 63 Cal.2d
822 (Kellett). We will affirm.
                                     BACKGROUND
The Crimes
       On August 17, 2012, at approximately 2:48 a.m., California Highway Patrol
(CHP) Officer Stover and his partner were on routine patrol, driving a marked patrol
vehicle. They noticed a pickup truck driving ahead of them and weaving in a pronounced
pattern. The truck turned into a gas station and Officer Stover activated the lights as he
initiated a traffic stop. The truck, however, sped out of the gas station, failed to stop at
red lights, and accelerated to speeds in excess of 100 miles per hour. The truck made a
turn and began to lose control in the dirt shoulder. It recovered and again accelerated to
over 100 miles per hour. The truck failed to stop as it crossed both directions of a state
highway and continued until it turned onto a dirt road. The truck turned onto a ditch
bank, lost control, partially slid down the embankment, and became disabled. The
officers approached the truck as the driver, defendant, attempted to free the truck by
aggressively accelerating back and forth. The officers yelled orders to defendant to turn
off the engine and raise his hands, but he refused to obey any of the commands and still
did not comply when Officer Stover threatened to use the taser. Officer Stover
discharged the taser at defendant’s chest, but the darts could not penetrate his clothing.
Defendant was able to free the truck and accelerate away on the ditch bank. The officers
attempted to follow the truck, but the large amount of dust and debris raised by the truck
prevented them from locating it. The local sheriff’s department and police department
assisted at the end of the pursuit, which had covered a total of 14 miles. The search failed
to produce any results.



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       At about 4:30 a.m., a deputy located the abandoned truck, stuck in the mud on a
dirt road. About twenty minutes later, the truck’s passenger contacted the sheriff’s
department to turn himself in.
       At approximately 9:40 a.m., defendant contacted a rancher about five miles from
the abandoned truck. After the rancher allowed defendant to use his cell phone to call his
girlfriend, the rancher contacted the sheriff’s department to describe the suspicious
circumstances of how defendant contacted him and was covered in mud.
       At approximately 9:52 a.m., Deputy Speer arrived on the scene and contacted
defendant, who was covered in mud from the waist down. Defendant informed him he
was a parolee at large. The deputy took defendant into custody. The deputy contacted
CHP because he was aware of the earlier pursuit and knew one suspect was still
outstanding. The deputy believed defendant could be that suspect. Defendant identified
himself as Jesus Robledo and gave a certain birthday. He continued to state the same
name, but he changed his birthday repeatedly as he spoke to different deputies.
Eventually, the deputies discovered his identity based on his tattoos.
       At about 6:00 p.m., Officer Stover arrived at the county jail. He immediately
identified defendant as the driver of the truck he had pursued that morning. Defendant
claimed to have no idea about the pursuit. The truck was determined to have been stolen.
Officer Stover listed five charges on the jail’s booking sheet.
The Complaints and the Pleas
       On August 20, 2012, the Kings County District Attorney filed a complaint
charging defendant with resisting a peace officer, Deputy Speer (Pen. Code, § 148,
subd. (a)(1)).1 On August 22, 2012, the district attorney amended the charge to providing
false information to a peace officer, Deputy Speer (§ 148.9), and defendant pled guilty to
this charge. He informed the court that he gave a false identification to try to avoid the
1      All statutory references are to the Penal Code unless otherwise noted.



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parole revocation. The court determined “this [was] probably all part of his parole
issues” and the court decided it was “just going to give him credit for time served in this
case.” The trial court sentenced him to 12 days in county jail, which equaled his time
served.
       A second complaint was filed on September 7, 2012. The Kings County District
Attorney charged defendant with vehicle theft (Veh. Code, § 10851, subd. (a); count 1),
receiving a stolen vehicle (§ 496d, subd. (a); count 2), evading a pursuing officer’s
vehicle with a willful and wanton disregard for the safety of persons and property (Veh.
Code, § 2800.2, subd. (a); count 3), misdemeanor driving with a suspended license (Veh.
Code, § 14601.2, subd. (a); count 4), and misdemeanor resisting a peace officer, Officer
Stover (§ 148, subd. (a)(1); count 5). The complaint further alleged that defendant had
suffered two prior strike convictions (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and
had served four prior prison terms (§ 667.5, subd. (b)).
       Defendant filed a motion to dismiss pursuant to section 654 and Kellett, supra, 63
Cal.2d 822. The trial court denied the motion, stating:

               “The Court considers this very carefully[;] the authority cited by
       both the prosecution and the defense are appropriate to the facts of this
       case. The situation perhaps if it were only the evading would be much
       stronger for the defense. However, the prosecution’s argument of the seven
       hours[’] difference, the fact that the auto theft, possession of stolen property
       is [a] completely separate offense. That offense was completed, the
       defendant managed to evade the original officer[, Officer Stover], and that
       is what is set forth in this case. And then he was free, and then later[,]
       seven hours later[,] he [was] located and committed the second offenses,
       lying about his identity.

              “The Court finds it to be separate offenses[,] distinct, it was not one
       continuing course of conduct…. This was many hours after the completion
       of the auto theft, possession of stolen property, and the initial evading that
       was charged. This is hours later after those crimes were completed when
       he was located by the second officer[, Deputy Speer], and the offense
       where he lied to that … officer about his identity…. It falls on the facts,



                                              4.
       and that is the Court’s interpretation of the facts, and therefore the motion is
       denied.”
       Defendant pled no contest to evading a pursuing officer’s vehicle with a willful
and wanton disregard for the safety of persons and property (Veh. Code, § 2800.2,
subd. (a); count 3) and misdemeanor resisting a peace officer (§ 148, subd. (a)(1);
count 5), and he admitted a prior strike conviction. The trial court sentenced him to the
upper term of three years on count 5, doubled to six years for the prior strike conviction,
plus 289 days on count 3, to run concurrently to the sentence on count 5.
                                       DISCUSSION
       Section 654, subdivision (a) provides in pertinent part: “An act or omission that is
punishable in different ways by different provisions of law shall be punished under the
provision that provides for the longest potential term of imprisonment, but in no case
shall the act or omission be punished under more than one provision. An acquittal or
conviction and sentence under any one bars a prosecution for the same act or omission
under any other.” (Italics added.) Section 954 provides for joinder of offenses connected
together in their commission or offenses of the same class.
       In Kellett, the court stated: “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, italic added, fn. omitted.) The Kellett rule is a procedural one that is designed to
prevent harassment and to save unnecessary use of the state’s and defendants’ time and
resources. (In re Dennis B. (1976) 18 Cal.3d 687, 692, 694.)
       Whether the Kellett rule applies must be determined on a case-by-case basis.
(People v. Valli (2010) 187 Cal.App.4th 786, 797) “What matters … is the totality of the



                                              5.
facts, examined in light of the legislative goals of sections 654 and 954, as explained in
Kellett.” (People v. Flint (1975) 51 Cal.App.3d 333, 336.)
       In Kellett, the defendant was arrested for standing on a public sidewalk with a
pistol in his hand. He was first charged in municipal court with misdemeanor exhibiting
a firearm in a threatening manner. After a preliminary hearing revealed that the
defendant had previously been convicted of a felony, he was charged in superior court
with felony possession of a concealable weapon. He pled guilty to the misdemeanor and
then moved to dismiss the felony information on the ground that it was barred by
section 654. (Kellett, supra, 63 Cal.2d at p. 824.) The motion was denied, and the
defendant sought and obtained a peremptory writ of prohibition to prevent his trial. (Id.
at pp. 824, 829.)
       In interpreting sections 654 and 954 in conjunction with the due process clause of
the Constitution, the Kellett court stated: “If needless harassment and the waste of public
funds are to be avoided, some acts that are divisible for the purpose of punishment must
be regarded as being too interrelated to permit their being prosecuted successively. When
there is a course of conduct involving several physical acts, the actor’s intent or objective
and the number of victims involved, which are crucial in determining the permissible
punishment, may be immaterial when successive prosecutions are attempted.” (Kellett,
supra, 63 Cal.2d at p. 827.)
       In this case, we conclude substantial evidence supported the trial court’s
determination that defendant’s crime of giving a false identity to Deputy Speer was
separate from the crimes he committed and completed many hours earlier in the day. He
had already successfully evaded capture after the earlier crimes, without any need to
falsely identify himself. The same act or course of conduct did not play a significant part
in the earlier and later crimes, the evidentiary overlap between the earlier and later crimes
was trivial, and proof of the earlier and later crimes was sufficiently distinct (requiring
different officers as witnesses) to permit separate prosecutions. (See People v. Hurtado

                                              6.
(1977) 67 Cal.App.3d 633, 636-637 [while the defendant was being handcuffed for drunk
driving, he took cigarette package, later found to contain heroin, from his jacket and
placed it between his legs; “evidentiary pictures which had to be painted to prove the
drunk driving and narcotics offenses were sufficiently distinct so as to permit separate
prosecutions”; “[s]uch a trivial overlap of the evidence … does not mandate the
joinder”].)
       The trial court did not err by refusing to dismiss the charges in the second
complaint and allowing separate prosecutions.
                                     DISPOSITION
       The judgment is affirmed.




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