Filed 2/13/18
                               CERTIFIED FOR PUBLICATION




                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                               THIRD APPELLATE DISTRICT
                                         (Sacramento)
                                              ----




THE PEOPLE,

                  Plaintiff and Respondent,                        C082568

        v.                                                (Super. Ct. No. 15M15521)

JEREMY LUKE HENDRIX,

                  Defendant and Appellant.



       APPEAL from a judgment of the Superior Court of Sacramento County,
Christopher E. Krueger, Judge. Affirmed.

        Jeremy Luke Hendrix, in pro.per., for Defendant and Appellant.

       Kamala D. Harris, Attorney General, Gerald A. Engler, Michael P. Farrell,
Assistant Attorneys General, Michael A. Canzoneri and Barton Bowers, Deputy
Attorneys General, for Plaintiff and Respondent.




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       Defendant Jeremy Luke Hendrix entered a plea of no contest to driving with a
blood-alcohol content (BAC) of 0.08 or higher, admitted an allegation his BAC was 0.15
or higher, and was placed on informal probation. Prior to entering this plea, defendant
moved to dismiss the case pursuant to Penal Code1 section 654 and Kellett v. Superior
Court (1966) 63 Cal.2d 822 (Kellett), arguing his payment of a fine associated with a
traffic citation issued during the traffic stop that resulted in his arrest for driving under
the influence (DUI) barred subsequent prosecution for the DUI offense. The trial court
denied the Kellett motion. We granted defendant’s petition for transfer to this court from
the superior court’s appellate division in order to review this decision. We now affirm
the judgment (order of informal probation).
                                      BACKGROUND
       The facts are taken from the police report. During the early morning hours of
November 14, 2015, an Elk Grove police officer witnessed a silver Audi making a right
turn through a red light without first making a complete stop. Defendant was the driver.
When the officer pulled defendant over and informed him of the reason for the stop,
defendant admitted running the red light, said he was “just in a hurry to get home,” and
volunteered: “I haven’t been drinking. Officer[,] you know I’m not drunk.” Defendant
had been drinking, as evidenced by the strong odor of alcohol the officer detected on his
breath, slurred speech, and bloodshot eyes. Defendant also failed several field sobriety
tests, one administered by the officer who pulled him over, and others administered by a
second officer who arrived at the scene to assist in the investigation. When a breath
sample was requested for a preliminary alcohol screening test, defendant initially refused
and then agreed to provide a sample, but did not provide enough of a sample to generate a



1      Undesignated statutory references are to the Penal Code.


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reading. He then refused to provide another sample. Defendant was cited for failure to
stop at the red light, signed the citation, and was provided with a copy. He was also
arrested for driving under the influence (DUI) and taken to the Sacramento Main Jail,
where he provided a blood sample for BAC testing.
       In December 2015, defendant was charged with DUI and driving with a BAC of
0.08 or higher. It was also alleged defendant’s BAC was 0.15 or higher.
       In January 2016, defendant paid the fine associated with the red light infraction
which amounted to a no contest plea and conviction of that offense, as defendant was
informed on the back of the citation he received.2
       In February 2016, defendant filed a motion to dismiss the DUI case pursuant to
section 654 and Kellett, arguing his conviction of the red light infraction barred
subsequent prosecution for the DUI case. As we explain more fully in the discussion
portion of the opinion, Kellett holds: “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



2       In response to an assertion raised by the Attorney General in the respondent’s
brief, i.e., defendant did not produce evidence establishing he was convicted of the red
light infraction, defendant requests that we take judicial notice of this conviction. We
need not do so, however, because the payment of the fine amounts to the conviction and
evidence of such payment is already in the record. Defendant also asks that we take
judicial notice of the language written on the back of the citation, informing him that such
payment amounts to conviction. We grant this request. The fact such language appears
on the back of traffic citations is “not reasonably subject to dispute and . . . capable of
immediate and accurate determination by resort to sources of reasonably indisputable
accuracy.” (Evid. Code, § 452, subd. (h).) Nor does the Attorney General dispute this
notice appeared on the back of defendant’s citation.


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either acquittal or conviction and sentence.” (Kellett, supra, 63 Cal.2d at p. 827.) The
trial court denied defendant’s Kellett motion. Defendant’s subsequent petition for writ of
prohibition, filed with the superior court’s appellate division, was also denied, as was his
petition for certification of the case for transfer to this court. Thereafter, in July 2016,
defendant entered a plea of no contest to driving with a BAC of 0.08 or higher and
admitted his BAC was 0.15 or higher. The trial court placed defendant on informal
probation. The following month, we granted defendant’s petition for transfer of the case
to this court in order to determine whether or not section 654, as interpreted by our
Supreme Court in Kellett and In re Dennis B. (1976) 18 Cal.3d 687 (Dennis B.), required
dismissal of the DUI case under these circumstances.
                                        DISCUSSION
       Defendant contends his conviction in the DUI case must be reversed because the
statutory bar against multiple prosecutions required dismissal of the case. We are not
persuaded.
       Section 654, subdivision (a), provides: “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.”
       While this provision addresses both multiple punishment and multiple prosecution,
these “separate concerns have different purposes and different rules of prohibition.”
(People v. Valli (2010) 187 Cal.App.4th 786, 794.) “The purpose of the protection
against multiple punishment is to insure that the defendant’s punishment will be
commensurate with his [or her] criminal liability.” (Neal v. State of California (1960) 55




                                               4
Cal.2d 11, 20, disapproved on another point in People v. Correa (2012) 54 Cal.4th 331,
344.) At the same time, “[t]he rule against multiple prosecutions is a procedural
safeguard against harassment and is not necessarily related to the punishment to be
imposed; double prosecution may be precluded even when double punishment is
permissible.” (Neal at p. 21.)
       In Kellett, supra, 63 Cal.2d 822, our Supreme Court held that section 654 prohibits
multiple prosecution when the People either know or reasonably should know that “the
same act or course of conduct play[ed] a significant part” in both offenses. (Id. at
p. 827.) There, the defendant was arrested while standing on the sidewalk with a gun in
his hand. (Id. at p. 824.) He was initially charged with exhibiting a firearm in a
threatening manner, a misdemeanor. After a preliminary hearing, he was charged in a
separate case with felony possession of a firearm by a felon. After pleading guilty to the
misdemeanor charge, he unsuccessfully moved to dismiss the felony charge under section
654. (Ibid.) Our Supreme Court issued a writ of prohibition preventing the defendant’s
trial. (Id. at p. 829.) After explaining the “separate and distinct” purposes behind section
654’s preclusion of multiple punishment and multiple prosecution, the court noted that
section 954 “provides for the joinder in a single accusatory pleading of two or more
offenses connected in their commission or having a common element of substantial
importance in their commission.” (Id. at p. 825.) The court then explained: “By a series
of amendments to section 954 that have greatly expanded the scope of permissible
joinder, the Legislature has demonstrated its purpose to require joinder of related offenses
in a single prosecution. In addition to preventing harassment, joinder avoids needless
repetition of evidence and saves the state and the defendant time and money.” (Id. at
p. 826, fn. omitted.)




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       Construing sections 654 and 954 in light of the “growing concern” that
prosecution of “closely related individual offenses at separate trials may constitute an
impermissible denial of that fundamental fairness required by the due process clause
of the Fourteenth Amendment,” the court stated: “If needless harassment and the waste
of public funds are to be avoided, some acts that are divisible for purposes 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.
[¶] 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.) However, the court
was also careful to emphasize: “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 p. 828.)
       In Dennis B., supra, 18 Cal.3d 687, relied on by the trial court in denying
defendant’s Kellett motion in this case, our Supreme Court elaborated on the question




                                             6
of whether or not a prosecutor reasonably should be aware of multiple offenses. There,
a minor caused a fatal collision while making an unsafe lane change. After he was
convicted of the traffic infraction, a petition was filed in the juvenile court alleging he
was a person coming within the provisions of Welfare and Institutions Code section 602
because he committed the crime of vehicular manslaughter. The juvenile court sustained
the petition. The minor appealed asserting the juvenile court proceedings were barred by
section 654. (Id. at p. 690.) Our Supreme Court disagreed, explaining the prosecution
was not actually aware, nor should it have been aware, of more than one offense. With
respect to actual knowledge, the court explained: “The reference in Kellett to situations
in which ‘the prosecution is . . . aware of more than one offense’ applies, however, only
to intentional harassment, i.e., to cases in which a particular prosecutor has timely
knowledge of two offenses but allows the multiple prosecution to proceed.” (Id. at
p. 693, italics added.) Because “the district attorney’s office played a limited role in
the prosecution of routine traffic offenses,” there was no evidence any particular
prosecutor “actually knew of both offenses in time to prevent a multiplicity of
proceedings.” (Ibid.)
       Turning to the question of “whether the prosecution should have known of the two
offenses,” the court considered three factors. First, “the disparity in gravity between the
two charged offenses” weighed against concluding the prosecution should have known
about the traffic infraction because the “potential harassment and expense faced by a
defendant so charged is minimal” compared to the situation in which “both offenses are
serious crimes.” (Dennis B., supra, 18 Cal.3d at p. 694.) Second, the state has a
“substantial interest in maintaining the summary nature of minor motor vehicle violation
proceedings” that “would be impaired by requiring the prosecution to ascertain for each
infraction the possibility of further criminal proceedings.” (Id. at p. 695.) Finally, the




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state also has “an undeniable . . . interest in prosecuting serious misdemeanors and
felonies.” (Id. at p. 696.) The court concluded: “On balance, we believe the minimal
potential for harassment and waste caused by defendant’s multiple prosecution in 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.”
(Ibid.)
          Thus, there are two related but distinct questions: (1) whether “the same act or
course of conduct play[ed] a significant part” in both offenses (Kellett, supra, 63 Cal.2d
at p. 827); and (2) “whether on the record herein the prosecution was or should have been
‘aware of more than one offense.’ ” (Dennis B., supra, 18 Cal.3d at pp. 692-693.)
          In answering the first of these questions, we find People v. Hurtado (1977) 67
Cal.App.3d 633 (Hurtado) to be instructive. There, the defendant was pulled over for
driving erratically and at an excessive speed and ultimately arrested for DUI. While
he was being handcuffed, the defendant attempted to hide a cigarette package, which
was seized and found to contain balloons filled with heroin. He was charged with three
narcotics offenses in one case and with DUI in a separate case. After pleading guilty
to the DUI charge, he moved to dismiss the narcotics case pursuant to section 654
which was denied. (Id. at pp. 635-636.) The Court of Appeal affirmed. In determining
whether the same act or course of conduct played a significant part in both the DUI and
the narcotics charges, the court applied an “evidentiary test” it previously established
in People v. Flint (1975) 51 Cal.App.3d 333, 336, explaining that “if the evidence
needed to prove one offense necessarily supplies proof of the other . . . the two offenses
must be prosecuted together, in the interests of preventing needless harassment and




                                                8
waste of public funds.” (Hurtado, supra, 67 Cal.App.3d at p. 636, fn. 1.) The court
reasoned: “[T]he evidentiary pictures which had to be painted to prove the [DUI] and
narcotics offenses were sufficiently distinct so as to permit separate prosecutions . . . .
Proof of the [DUI] charge was supplied primarily by the observations of the highway
patrol officers made after defendant was stopped and given certain sobriety tests. Proof
of the heroin charges hinged upon the discovery of the cigarette package filled with
heroin, which occurred after the arrest for [DUI] had been made. 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
same time that he was under the influence of alcohol. Such a trivial overlap of the
evidence, however, under Kellett and Flint does not mandate the joinder of these cases.”
(Id. at pp. 636-637.)
       Here, as in Hurtado, supra, 67 Cal.App.3d 633 the evidence required to prove the
red light infraction was sufficiently distinct from that required to prove the charges in the
DUI case so as to permit separate prosecutions. Although the red light infraction and the
DUI offenses were recorded in the same police report, all that is needed to prove the red
light infraction is proof defendant rolled through that light. The fact defendant was
intoxicated when he did so is not relevant to his liability for this infraction of the Vehicle
Code. Conversely, the evidence needed to prove the DUI offenses was supplied by the
observations the officers made after defendant was stopped, his failure to successfully
perform various field sobriety tests, and his subsequent BAC testing. This evidence
depended in no way on the circumstances that led to defendant being pulled over. The
offenses are thus factually distinct.
       While it is true that had defendant chosen to contest the red light infraction, both
he and the officer who pulled him over would have been required to participate in two




                                               9
proceedings, defendant “created his own problems of harassment” by failing to “have
consolidated the actions at some time prior to his appearance in response to the [red light
infraction] citation.” (Stackhouse v. Municipal Court (1976) 63 Cal.App.3d 243, 247; see
also People v. Hartfield (1970) 11 Cal.App.3d 1073, 1080 [the defendant “could at any
time have avoided any harassment by moving for consolidation of the charges”].)
“Moreover, Kellett states that the rule against multiple prosecutions is inapplicable
where, as here, such prosecutions occur because of the lack of a common prosecutor and
the risk of waste and harassment of multiple prosecutions is outweighed by the risk that a
defendant guilty of a [greater offense] will escape proper punishment.” (Stackhouse v.
Municipal Court, supra, 63 Cal.App.3d at p. 247.) Here, there is no assertion the district
attorney’s office handled the prosecution of the red light infraction. Indeed, district
attorney’s offices typically play a limited role in the prosecution of routine traffic
offenses. (See, e.g., Dennis B., supra, 18 Cal.3d at p. 693.) And given the summary
nature of minor traffic violation proceedings, the risk of waste and harassment inherent in
allowing the subsequent DUI prosecution in this case is substantially outweighed by the
prospect defendant would otherwise escape proper punishment for a very serious
misdemeanor simply because he paid a traffic ticket related to factually distinct conduct
that led to his being pulled over and thereafter arrested for DUI.
       Nevertheless, defendant contends there is “no dispute that the failure to stop
offense and the [DUI] offense arise from the same course of conduct” because “the
failure to stop offense [led] to the [DUI] offense.” He then argues the second step of
the analysis, i.e., the prosecutor either knew or reasonably should have known about
both offenses because both were recounted in the police report. However, as we have
explained, the test for resolving the first step of the analysis is not whether one offense
led to the second offense. If that were the test, Hurtado, supra, 67 Cal.App.3d 633




                                              10
would have been decided quite differently. There, it will be recalled, it was the
defendant’s DUI arrest that caused him to attempt to hide the cigarette packet
containing heroin, thereby leading to the narcotics charges. However, because the
offenses were factually distinct, separate prosecutions were permissible under Kellett,
supra, 63 Cal.2d 822. So too here.
       People v. Bas (1987) 194 Cal.App.3d 878 does not undermine this conclusion.
There, based on the same auto collision, the defendant was charged in one case with two
misdemeanors and two infractions, including failure to yield the right of way, and in
another case with two counts of felony DUI causing injury. The felony complaint
specifically alleged the failure to yield as an element of the DUI charges, i.e., the
defendant “did ‘an act forbidden by law in violation of Vehicle Code Section 21801(a)
[failure to yield the right of way] . . . which act . . . proximately caused . . . bodily injury
to [the victims].’ ” (Id. at p. 880.) The Court of Appeal held the defendant’s guilty plea
to the infraction barred the subsequent prosecution for the felony DUI offenses where the
same prosecutor handled both cases, the defendant informed the prosecutor he wished to
plead to the traffic offenses so that the felony charges would be barred, and the
prosecutor nevertheless failed to have the cases consolidated. (Id. at pp. 880-881.) Here,
unlike Bas, the red light infraction was not alleged as an element of the DUI offenses.
Instead, the complaint simply alleged defendant willfully and unlawfully drove a vehicle
while under the influence of alcohol (Count One) and while having a BAC of 0.08 or
more (Count Two). Thus, while the failure to yield “play[ed] a significant part” (Kellett,
supra, 63 Cal.2d at p. 827.) in the DUI offenses in Bas, the same cannot be said of the red
light infraction in this case.




                                               11
       Because the same act or course of conduct did not play a significant part in both
the red light infraction and the DUI offenses, we conclude section 654 does not bar
prosecution of the latter offenses.3
                                       DISPOSITION
       The judgment (order of informal probation) is affirmed.



                                                             /s/
                                                 HOCH, J.


We concur:


         /s/
ROBIE, Acting P. J.


      /s/
MURRAY, J.




3      This conclusion makes it unnecessary to resolve the step-two question of “whether
on the record herein the prosecution was or should have been ‘aware of more than one
offense.’ ” (Dennis B., supra, 18 Cal.3d at pp. 692-693.)


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