Filed 12/5/1 Villa v. Super. Ct. 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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


HASANI VILLA,                                                                              F064505

         Petitioner,                                                         (Super. Ct. No. VCF234216)

                   v.
                                                                                         OPINION
THE SUPERIOR COURT OF TULARE
COUNTY,

         Respondent;

THE PEOPLE,

         Real Party in Interest.



APPEAL from a judgment of the Superior Court of Tulare County. Gerald F. Sevier,
Judge.
         Michael B. Sheltzer, Public Defender, Lisa J. Bertolino, Assistant Public
Defender, and Timothy B. Rote, Deputy Public Defender, for Petitioner.
         No appearance for Respondent.
         Phillip J. Cline, District Attorney, Shani D. Jenkins, Assistant District Attorney,
Philip W. Esbenshade and John F. Sliney, Deputy District Attorneys, for Real Party In
Interest.
                                          -ooOoo-
       In these writ proceedings, Hasani Villa asks us to order the superior court to
dismiss the murder charge and related charges that have been filed against him on the
ground that he has already been convicted of being an accessory to the same murder after
the fact. We summarily denied Villa’s writ petition on May 10, 2012, but the California
Supreme Court granted review and ordered us to issue an alternative writ. Having done
so and having carefully reviewed the parties’ submissions, we now conclude that the
murder charge cannot properly be dismissed. Kellett v. Superior Court (1966) 63 Cal.2d
822 (Kellett), on which Villa relies, is distinguishable. We will deny the petition.
                    FACTUAL AND PROCEDURAL HISTORIES
       The district attorney filed a complaint in Tulare County Superior Court case No.
VCF217634 against Villa and a codefendant, Evaristo Enriquez, on February 4, 2009,
charging them with murder and related charges. At the preliminary hearing on
October 30 and November 4, 10 and 24, 2009, the People presented evidence that Villa,
Enriquez, Martin Cuevas, Villa’s brother Ricardo, and another person named Ricardo
were in a car driven by Villa in Orosi on October 25, 2008. Villa and his brother were in
the front seats and the other three in the back seats. At least Villa and Enriquez were
members of the Big Time Locos clique of the Sureños gang. Later, when he was
arrested, Villa was wearing a blue shirt and a blue rag and had a cigarette lighter with
“SUR” (i.e., “south”) scratched in it. Blue is the color of the Sureños.
       Villa’s car and a tan SUV stopped side-by-side at a traffic light. The occupants of
Villa’s car saw people in the other car making gang signs at them with their hands,
displaying red bandannas and placing the bandannas over their lower faces. Red is the
color of the Norteños, who are the Sureños’ rivals. As the light turned green, Enriquez
pointed a sawed-off .22 caliber semiautomatic rifle out the rear window and fired several
shots at the SUV. One of the bullets struck the SUV’s driver, James Mesa, in the head,
killing him. The SUV veered off the road into a parking lot, hit a pole and overturned.

                                             2.
          After the shooting, Villa continued driving and went to Enriquez’s house.
There, Villa and his passengers searched the car for shell casings, which they threw over
a fence. They removed the car’s hubcaps to change its appearance. Enriquez hid the gun
in a canal.
          When he was interviewed by police, Villa admitted the facts of the shooting and
his efforts to remove evidence from the car and change its appearance. He claimed,
however, that he did not know Enriquez was carrying a gun until the shooting started.
       The court held Villa and Enriquez to answer the charges. The district attorney
filed an information on December 4, 2009, charging both defendants with murder (Pen.
Code, § 187, subd. (a))1 with drive-by and gang-murder special circumstances (§ 190.2,
subd. (a)(21), (22)). The murder charges included enhancement allegations of firearm
use and gang participation. (§§ 186.22, subd. (b)(1)(C), 12022.53, subds. (b)-(e).)
Enriquez was 15 years old at the time of the crimes, but was charged as an adult under
Welfare and Institutions Code section 707, subdivision (d)(2)(A). Villa was 18. The
information also charged Villa and Enriquez with shooting from a motor vehicle (former
§ 12034, subd. (c)), shooting at an occupied vehicle (§ 246), and, for the passengers in
the SUV, three counts of attempted murder (§§ 187, subd. (a), 664).
       Villa filed a motion to dismiss pursuant to section 995, which was heard on
February 25, 2010.2 The motion was granted on March 11, 2010. The same day, the
People filed a complaint in Tulare County Superior Court case No. VCF234216, again
charging Villa with murder and related charges. After a preliminary hearing held on
March 23 and April 7, 2010, Villa was again held to answer. The People filed a new
information against Villa alone on April 16, 2010. The charges were the same as in the

1      All statutory references are to the Penal Code unless otherwise stated.
2     Section 995 provides that a trial court shall dismiss an information if it finds the
defendant has been committed without reasonable or probable cause.



                                             3.
prior information, except that the count for shooting from a motor vehicle was now
charged under former section 12034, subdivision (d) instead of subdivision (c), and a new
count was added for allowing another to shoot from a car which the defendant is driving
(former § 12034, subd. (b)).
       Villa filed another section 995 motion, which was heard on May 26, 2010. On
June 10, 2010, the court granted the motion.
       The same day, June 10, 2010, the People filed a complaint in Tulare County
Superior Court case No. VCF237804, charging Villa with being an accessory after the
fact (§ 32) to the murder committed by Enriquez. The People also appealed from the
dismissal of case No. VCF234216, their notice of appeal being received by this court on
August 16, 2010.
       Villa filed a motion to dismiss the latest complaint pursuant to Kellett. In Kellett,
the Supreme Court stated that “[w]hen, 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.” (Kellett, supra, 63 Cal.2d at p. 827.) On June 18,
2010, the trial court dismissed the complaint, relying instead on section 1387, which
provides that two orders dismissing an action pursuant to section 995 bar “any other
prosecution for the same offense.”
       Despite the trial court’s decision to dismiss the complaint, the parties reached a
plea agreement. On November 9, 2010, the court reinstated the complaint and Villa pled
no contest to the section 32 charge and admitted a gang enhancement allegation. The
parties stipulated to a factual basis for the plea based on the investigative reports. The
prosecutor stated that, depending on the outcome of the appeal in case No. VCF234216,
the People might still pursue the murder charge later, in spite of the plea on the accessory
charge. On December 9, 2010, the court imposed a sentence of seven years, suspended it,
and required Villa to serve five years of probation.

                                             4.
       This court decided the People’s appeal in case No. VCF234216 on June 28, 2011,
reversing the trial court’s order dismissing the information. (People v. Villa (June 28,
2011, F060655) [nonpub. opn.].) We concluded that the committing magistrate could
rationally find that there was probable cause to hold Villa to answer on the murder charge
on an aiding-and-abetting theory. We focused on several facts: Villa, a gang member,
was driving a car with other gang members when a confrontation developed between
them and rival gang members in another car. He chose to drive alongside the other car as
the confrontation continued. Expert testimony established that an armed gang member
ordinarily tells other gang members about his gun before riding with them in a car. Villa
had told police he usually asked his passengers if they were armed. The gun was 24
inches long and hard to conceal. Villa likely saw it when Enriquez was preparing to fire.
Villa did not stop driving beside the other car when the gun was drawn or when the
shooting began; he continued driving side-by-side for a block as 12 shots were fired.
After the shooting, Villa fled, disposed of evidence, and altered the appearance of his car.
All these facts supported the prosecution’s claims that Villa helped Enriquez commit
murder and had the knowledge and intent necessary to support a murder conviction.3 We
remanded case No. VCF234216 to the superior court. (People v. Villa, supra, F060655.)
The California Supreme Court denied review (People v. Villa (Oct. 19, 2011, S195393))
and the information was reinstated.
       Villa filed a motion in the superior court to dismiss under Kellett and another
motion to dismiss under the doctrine of prosecutorial preclusion. The court heard the
motions on January 26 and February 2, 2012, and denied them.
       Villa filed the present petition in this court on March 16, 2012, asking us to order
the trial court to dismiss the information under Kellett and the doctrine of prosecutorial
preclusion. We denied the petition without opinion on May 10, 2012. The California
3      Enriquez pleaded guilty to voluntary manslaughter on June 30, 2011.



                                             5.
Supreme Court granted Villa’s petition for review on July 11, 2012, and transferred the
matter back to us with directions to issue an alternative writ on the Kellett issue only.
(Villa v. Superior Court (July 11, 2012, S202589).) We did so on July 18, 2012,
directing the superior court either to place the matter on its own calendar and consider
whether the murder prosecution was barred under Kellett or to show cause why the relief
requested by Villa should not issue. The court elected to show cause and we ordered
briefing.
                                       DISCUSSION
       Villa’s argument is that the murder prosecution is barred by section 654 as
interpreted in Kellett. There is no dispute about the facts upon which this argument is
based, so we are presented with a pure question of law, which we review de novo.
(Ghirardo v. Antonioli (1994) 8 Cal.4th 791, 799.)
       Subdivision (a) of section 654 contains limitations on both multiple punishment
and multiple prosecutions for the same acts:

       “An act or omission that is punishable in different ways by different
       provisions of law shall be punished under the provision that provides 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.”
       Elmer Kellett was arrested while standing on a sidewalk holding a pistol. He was
charged in municipal court with exhibiting a firearm in a threatening manner, a
misdemeanor. At the preliminary hearing, it was revealed that he had previously been
convicted of a felony. He was then charged in superior court, for the same incident, with
being a felon in possession of a concealable weapon. (Kellett, supra, 63 Cal.2d at
p. 824.)
       Kellett pled guilty to the misdemeanor and was sentenced to 90 days in jail. Then
he moved to dismiss the felony, relying on section 654. The court denied his motion and



                                               6.
he filed a writ petition in the Supreme Court. He argued that he could not be subjected to
successive prosecutions for the same act. The People argued that it could reasonably be
inferred that he had possessed the pistol for some time before he exhibited it on the
sidewalk, so there were separate acts of possession and exhibition that supported separate
prosecutions for the two offenses. (Kellett, supra, 63 Cal.2d at p. 824.)
       The Supreme Court began its analysis by discussing Neal v. State of California
(1960) 55 Cal.2d 11, 19. (Kellett, supra, 63 Cal.2d at pp. 824-825.) In Neal, which dealt
with multiple punishment, the Supreme Court affirmed the proposition that section 654
bars multiple punishment not only where a single act gives rise to multiple offenses, but
also where a single indivisible course of conduct does so. Whether a course of conduct is
divisible depends on whether the defendant had one or more than one criminal objective.
(Neal v. State of California, supra, 55 Cal.2d at p. 19.)
       In Kellett, the court went further and held that section 654 may be a bar to
successive prosecutions even when a course of conduct was motivated by multiple
objectives and therefore was divisible for the purpose of multiple punishment. (Kellett,
supra, 63 Cal.2d at p. 827.) The reason given for this holding was that “[t]here has been
growing concern that both criminal defendants and the public fisc are entitled to
protection from successive prosecutions for closely related crimes.” (Id. at p. 826.) “If
needless harassment and the waste of public funds are to be avoided,” the court stated,
then “some acts that are divisible for the purpose of punishment must be regarded as
being too interrelated to permit their being prosecuted successively.” (Id. at p. 827.) To
give effect to this policy, the court established the following rule:

       “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.)


                                              7.
       We agree with Villa that the murder prosecution and the accessory prosecution are
based on the same course of events and that the prosecution knew all the facts from the
outset. Even if, as the People argue, the course of conduct is divisible and would support
separate punishments under section 654, we think it is clear that the murder and the
accessory offense are offenses “in which the same act or course of conduct play[ed] a
significant part.” (Kellett, supra, 63 Cal.2d at p. 827.) The facts establishing accessory
liability are that Villa fled with Enriquez and helped him hide evidence. Those facts are
part of a continuous course of conduct starting at the traffic light and ending with the
effort to hide the evidence. Further, the facts supporting the accessory conviction—
flight, hiding evidence—are also relevant to the charge of aiding and abetting murder,
since they are probative of Villa’s consciousness of guilt with respect to that charge. This
case would fall squarely within Kellett if the prosecution had brought the accessory
prosecution first, pursued it to judgment, and pursued the murder prosecution afterwards.
The case would also fall within Kellett if the prosecution had brought the murder
prosecution first, pursued it to conviction or acquittal, and then brought or continued the
accessory prosecution.
       There are at least two types of scenarios the rule of Kellett guards against: In the
first of these, the district attorney brings a prosecution for one offense, pursues it to
judgment but is dissatisfied with the result, and then brings another prosecution based on
the same facts to get more severe punishment. This is what happened in Ciucci v. Illinois
(1958) 356 U.S. 571, which is discussed in Kellett. (Kellett, supra, 63 Cal.2d at pp. 826-
827.) The defendant murdered his wife and three children, all at the same time. The
prosecution prosecuted him for three of the murders successively in three separate trials.
In the first two trials, the jury imposed prison sentences. In news articles, statements
were attributed to the prosecution expressing dissatisfaction with these sentences and a
determination to obtain the death penalty. In the third trial, the jury returned a death
verdict. (Ciucci v. Illinois, supra, 356 U.S. at pp. 572-573.)

                                               8.
       In the second type of scenario, the district attorney initiates a prosecution for a
lesser offense, but learns while that prosecution is pending of additional facts, which it
should have known from the beginning, and uses these as the basis for initiating a second
proceeding. The district attorney obtains judgment in the first proceeding and then
pursues the second. This is what happened in Kellett itself. (Kellet, supra, 63 Cal.2d at
p. 824.)
       The present case involves neither of these scenarios. The crucial difference lies in
the reason for the prosecution’s pursuit of the challenged charges. As the People argue,
we are not dealing here with an attempt to proceed with a subsequent prosecution, but
rather an effort to continue the original prosecution. Murder is what the People attempted
to prosecute Villa for from the outset; the People are only returning to their original
intention to seek conviction on the most serious charges they believed the evidence
supported. Kellett sets up a bar to “subsequent prosecution[s]” for offenses omitted from
the “initial proceedings.” (Kellett, supra, 63 Cal.2d at p. 827.) That is not what
happened here. The People here pursued a prosecution for a lesser offense only after the
superior court erroneously dismissed the murder information; then they resumed the
murder prosecution after we reversed. The People cannot be faulted for obtaining a
conviction on another, lesser charge while their appeal from the dismissal of the original
case was pending, for their job was to ensure that Villa was held accountable. We are not
relying on an empty technical distinction. This case is not within the rule of Kellett.
       Additionally, the steps the People took involved none of the dangers about which
the Kellett court was concerned. The prosecution cannot be said to have acted to harass
Villa by resuming the murder prosecution, since it was only continuing the prosecution it
intended to pursue from the outset after a delay that was not its fault. Villa argues that it
was the prosecution’s fault, since the People could have included the section 32 charge in
the murder information. Kellett, however, does not stand for the proposition that it is
harassment if the prosecution omits a charge of a lesser offense but later chooses to

                                              9.
pursue that charge when the main charge is erroneously dismissed. Finally, there is no
waste of resources of the kind that motivated Kellett, because the prosecutor only brought
the accessory prosecution when the superior court erroneously dismissed the murder
prosecution and because Villa pled no contest to the accessory charge, avoiding the need
for a trial. (See People v. Davis (2005) 36 Cal.4th 510 [successive prosecution not
precluded where arguable harassment and use of public resources was minimal]; In re
Dennis B. (1976) 18 Cal.3d 687 [Kellett’s anti-harassment-and-waste rationale provided
guidance for determining literal terms of the Kellett rule did not apply to preclude
prosecution of vehicular manslaughter subsequent to trial for unsafe lane change].) For
these reasons, we conclude that Kellett and section 654 do not bar the present
prosecution.
       Villa relies on People v. Prado (1977) 67 Cal.App.3d 267, but that case has
nothing to do with Kellett or section 654, and therefore is not related to the single issue
upon which the Supreme Court granted review. We need not consider it.
       Even if Prado were on point, we would not follow it. In that case, the Court of
Appeal held that the defendant could not be convicted of both robbery and being an
accessory after the fact to his codefendant’s commission of the same robbery, because
robbery and accessory-after-the-fact are “mutually exclusive offenses”:

       “The foregoing authorities, and right reason, compel a conclusion that when
       an accused is convicted of violation of Penal Code section 32, which
       necessarily requires that a principal have committed a specific completed
       felony and that he knowingly aided that principal with intent that the
       principal escape arrest, he cannot be convicted as a principal in that
       completed felony. His state of mind—the intent required to be an
       accessory after the fact—excludes that intent and state of mind required to
       be a principal. The requisite intent to be a principal in a robbery is to
       permanently deprive the owner of his property. Thus, this is a totally
       different and distinct state of mind from that of the accused whose intent is
       to aid the robber to escape. These are mutually exclusive states of mind
       and give rise to mutually exclusive offenses.” (People v. Prado, supra, 67
       Cal.App.3d at p. 273.)


                                             10.
        We do not see how the two different intents are mutually exclusive. There is no
reason why a perpetrator of a crime cannot first have the intent to commit the crime and
afterwards have the intent to help a coperpetrator escape arrest. In this conclusion, we
agree with People v. Nguyen (1993) 21 Cal.App.4th 518, 536-537, footnote 6.
        We believe the Prado court’s analysis was wrong, but even if it were correct, it
would not control the present case. The court stated that “[e]ssentially the same acts are
relied upon to prove [the defendant’s] participation in the robbery on the aiding and
abetting theory, and to prove he was an accessory after the fact.” (People v. Prado,
supra, 67 Cal.App.3d at p. 274.) Contrary to Villa’s contentions, the same is not true in
this case. Here the charge of aiding and abetting murder is based primarily on the
evidence that Villa drove alongside the rival gang members’ car for a block, without
turning or stopping, while Enriquez fired 12 shots out the window; that Villa had ample
opportunity to know Enriquez brought the gun into the car; and that Villa knew a gang
confrontation had developed between the two cars. The accessory conviction was based
on Villa’s actions after the shooting was over and he fled with the shooter and concealed
the evidence. There is overlap between the evidence of the two offenses since, as we
have said, the facts supporting accessory liability also tend to show consciousness of guilt
in the murder. Yet the two prosecutions do not rely on essentially the same acts. They
rely on essentially different acts: being the driver in a drive-by shooting in the murder
case, and helping the shooter get away and avoid detection afterward in the accessory
case.
        Prado, however, is not the only case supporting the view that it is legally
inconsistent to convict a defendant of a crime as well as of being an accessory to the
same crime after the fact. Although the Nguyen court rejected Prado’s analysis about
mutually exclusive intents, it agreed that a defendant cannot properly be convicted of
both offenses. It held that when a principal commits additional acts that constitute the
elements of being an accessory, “his conduct is subsumed within his guilt as a principal

                                             11.
and he may not be convicted both as a principal and as an accessory.” (People v. Nguyen,
supra, 21 Cal.App.4th at p. 536.)
       There also is authority to the contrary. In People v. Mouton (1993) 15
Cal.App.4th 1313, 1324-1325, the Court of Appeal held that because the defendant “in
substance … was convicted for two different sets of actions,” his “responsibility both as
an accomplice to the murder and for the separate and distinct crime of acting as an
accessory to a felony [i.e., the same murder] was neither logically inconsistent nor legally
prohibited.”
       We need not decide whether it is correct to say that if Villa is found guilty of
murder in this case, he will stand convicted of legally inconsistent offenses. As we have
said, that question is outside the scope of the issue on which the Supreme Court granted
review. Further, Villa does not argue that his guilt for murder would subsume his guilt
for the accessory offense; his view is that the accessory conviction bars the murder
prosecution.
       Even if the two offenses are incompatible, it is not necessarily the murder
conviction that must be excluded. If Villa is convicted of murder, it may be appropriate
to apply to his case (via writ proceedings) a “rule remedying any impropriety of multiple
conviction as principal and accessory in those cases in which the former conviction is
error-free and supported by substantial evidence by affirming the [conviction as
principal] and vacating the [conviction as accessory].” (People v. Francis (1982) 129
Cal.App.3d 241, 251.)




                                            12.
                                     DISPOSITION
        The petition is denied. The People’s request, filed September 13, 2012, for
judicial notice of the appellate record in case No. F060655 is granted. The stay of
proceedings included in this court’s order filed August 14, 2012, is vacated.



                                                               _____________________
                                                                   DETJEN, Acting P.J.
WE CONCUR:


    _____________________
    FRANSON, J.


    _____________________
    OAKLEY, J.*




*     Judge of the Superior Court of Madera County, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.



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