Filed 6/22/16 Unmodified version attached
                                 CERTIFIED FOR PUBLICATION

             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                  SIXTH APPELLATE DISTRICT


THE PEOPLE,                                         H041918
                                                   (Santa Clara County
        Plaintiff and Respondent,                   Super. Ct. No. 211398)

        v.
                                                  ORDER MODIFYING OPINION
JACK JERRY OCHOA,

        Defendant and Appellant.
                                                  NO CHANGE IN THE JUDGMENT


        THE COURT:
        It is ordered that the opinion filed herein on June 13, 2016, be modified as follows.
The disposition shall be modified to add the following instructions: “On remand, the trial
court shall vacate its March 28, 2012 order denying defendant’s motion to dismiss the
indictment, and the court shall enter a new order granting the motion to dismiss.”



Dated:_________________________                   _______________________________
                                                  Márquez, J.




                                                  _______________________________
                                                  Rushing, P.J.



                                                  _______________________________
                                                  Grover, J.
Filed 6/13/16 Unmodified version
                               CERTIFIED FOR PUBLICATION

             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   SIXTH APPELLATE DISTRICT


THE PEOPLE,                                        H041918
                                                  (Santa Clara County
        Plaintiff and Respondent,                  Super. Ct. No. 211398)

        v.

JACK JERRY OCHOA,

        Defendant and Appellant.


        Defendant Jack Jerry Ochoa was the middleman in a drug ring supplying
methamphetamine to the Nuestra Familia criminal street gang (Nuestra Familia). He
received methamphetamine from his suppliers, stored it on his property, and sold it to the
commanders of Nuestra Familia street regiments.
        In 2008, the prosecution charged defendant and his suppliers with, among other
things, conspiracy to distribute methamphetamine. The defendants who were charged in
the 2008 complaint included no known members of Nuestra Familia, and the complaint
charged no gang-related offenses or enhancements. After defendant pleaded no contest
to conspiracy and possession charges, the trial court imposed a total sentence of 10 years
in prison.
        In April 2009, one month after defendant was sentenced in the 2008 case, the
prosecution indicted him and 28 others for active participation in Nuestra Familia. The
indictment once again charged defendant with conspiracy to distribute methamphetamine,
but this time for the benefit of Nuestra Familia. Defendant moved to dismiss the
indictment as a violation of the bar against multiple prosecutions set forth in Penal Code
section 654 and Kellett v. Superior Court (1966) 63 Cal.2d 822 (Kellett). After the trial
court denied the motion, defendant moved to dismiss the indictment on double jeopardy
grounds. The trial court denied that motion as well. Defendant then pleaded no contest
to one count of conspiracy to distribute methamphetamine and admitted the offense was
committed for the benefit of a criminal street gang. At sentencing, the court granted
defendant’s request for a certificate of probable cause limited to the claims raised herein.
       Defendant appeals from the trial court’s denial of his motions to dismiss on Kellett
and double jeopardy grounds. We hold defendant’s indictment was barred under Kellett
and Penal Code section 654 because the prosecution was aware that the same course of
conduct formed a significant part of the offenses charged in the 2008 complaint.
Accordingly, we will reverse the judgment and vacate the conviction. We do not reach
defendant’s claim of double jeopardy.
                      I. FACTUAL AND PROCEDURAL BACKGROUND
   A. Overview
       Defendant was a middleman and “stash house operator” in a methamphetamine
distribution operation. He received large quantities of methamphetamine from Rudy
“Gallo” Mendez and Jesus “Silent” Venegas, who procured the methamphetamine from
México. Defendant stored the methamphetamine on his property and sold it to members
of Nuestra Familia, a criminal street gang operating in Santa Clara County and nearby
areas. Defendant’s primary customer was Lorenzo “Lencho” Guzman, the commander of
a Nuestra Familia street regiment in San José. Defendant also supplied
methamphetamine to at least two other regiment commanders and other members of
Nuestra Familia.
       The prosecution charged defendant in two separate cases alleging two different
conspiracies. First, in 2008, the prosecution charged defendant in a 12-defendant
complaint including Mendez, Venegas, and others, but not including members of Nuestra
Familia. We will refer to this case (Santa Clara County Superior Court Docket
                                             2
No. CC805059) as the “Mendez-Venegas prosecution.” Defendant pleaded no contest to
conspiracy to distribute methamphetamine and other charges, and the trial court
sentenced him in March 2009.
       Then, in April 2009, the prosecution indicted defendant and 28 others for active
participation in Nuestra Familia and conspiracy to distribute methamphetamine for the
benefit of the gang. We will refer to this case (Santa Clara County Superior Court
Docket No. 211398) as the “Nuestra Familia prosecution.”
   B. The Mendez-Venegas Prosecution
       Investigation in the Mendez-Venegas case was conducted by the Bureau of
Narcotic Enforcement (BNE), the federal Drug Enforcement Agency, and the San José
Police Department. Members of the San José Police Department were made aware of the
Mendez-Venegas distribution ring as early as August 2007. On August 10, 2007, BNE
agents conducted a warrant search of a residence in San José and seized 17 pounds of
crystal methamphetamine. Agents arrested the resident, who identified Mendez and
Venegas as the leaders of a drug trafficking ring in San José. Several days later, BNE
agents met with Detective Juan Vallejo of the Narcotic and Covert Investigations unit of
the San José Police Department. Detective Vallejo gave the agents an organizational
chart identifying Mendez as the head of the organization, with Venegas as his “right hand
man,” and defendant as a “stash house” operator. Detective Vallejo further identified
defendant as an active member of Nuestra Familia.
       On November 25, 2007, Detective Vallejo informed BNE agents that Venegas and
Mendez were traveling to Guadalajara to meet with a drug source. Venegas and Mendez
planned to drive to the Tijuana border, cross into México, and fly to Guadalajara.
Venegas was carrying $90,000 to pay the drug source. The police immediately initiated
surveillance of Venegas’s residence in San José. They observed Mendez and Venegas
leave in a vehicle together and drive southbound on Interstate 5 as far as Coalinga,
whereupon police terminated their surveillance.
                                             3
       On May 13, 2008, investigators arrested defendant and several others for operating
an international methamphetamine distribution ring in Santa Clara County. In
defendant’s apartment, police found a pound of methamphetamine, a loaded
semiautomatic pistol, 12 cell phones, $23,310 in cash, a scale, and materials commonly
used to process methamphetamine.
       The prosecution charged defendant, Mendez, Venegas, and nine other
codefendants with possession of methamphetamine and conspiracy to distribute
methamphetamine, among other charges. The complaint alleged the conspiracy took
place between February 11, 2008, and May 13, 2008. The prosecution considered
Mendez to be the leader of the conspiracy, with Venegas operating as his right hand man.
Mendez and Venegas were principally involved in procuring the methamphetamine, most
of which they obtained in large quantities from a source in México. Defendant’s role
involved holding or storing the methamphetamine and transferring it to buyers. He also
cut the methamphetamine to reduce its purity and converted methamphetamine in powder
form to crystal methamphetamine before providing it to his buyers.
       On October 2, 2008, the parties reached a plea agreement whereby defendant
pleaded no contest to four counts: (1) possession of methamphetamine for sale (Health &
Saf. Code, § 11378); (2) conspiracy to distribute methamphetamine (Pen. Code, § 182,
subd. (a)(1); Health & Saf. Code, § 11379, subd. (a)); (3) possession of a firearm by a
felon (Pen. Code, § 12021, subd. (a)(1)); and (4) possession of a controlled substance
while armed with a loaded firearm (Health & Saf. Code, § 11370.1). As to the first
count, defendant admitted allegations that he was personally armed with a firearm in the
commission of the offense. (Pen. Code, § 12022, subd. (c).) He further admitted having
a prior “strike” conviction. (Pen. Code, §§ 667, subds. (b)-(i), 1170.12.) In March 2009,
the trial court imposed a total term of 10 years in prison.




                                              4
   C. The Nuestra Familia Prosecution
      1. The Nuestra Familia Investigation
      The investigation of Nuestra Familia began in 2004 and involved the San José
Police Department, the Santa Clara County Specialized Enforcement Team, and the
Campbell Police Department. The investigation was led primarily by Sergeant T.J.
Lewis of the San José Police Department and Sergeant Dan Livingston of the Campbell
Police Department.
      The Nuestra Familia organization operated as a hierarchy with three “generals” at
the head. The generals—inmates at Pelican Bay State Prison and a supermax prison in
Colorado—issued orders to the commanders of multiple street regiments operating in
Santa Clara County and nearby areas. Investigators identified four regiment commanders
in the course of their investigation: Lorenzo “Lencho” Guzman, Sammy “Black”
Ramirez, Charlie “Brown” Campa, and James Cramer. Clayton “Shorty” Clark operated
as Guzman’s second in command, and Marco “Huero” Abundiz operated as Campa’s
second in command.
      Investigators conducted the Nuestra Familia investigation with the assistance of
Debbie Corrales Guzman, Guzman’s wife.1 Corrales began cooperating with
investigators around December 2007. She provided Sergeant Lewis with information on
the structure and operations of Nuestra Familia, and police recorded phone calls between
Corrales and various targets, including defendant. Corrales saw defendant supply
methamphetamine to Guzman and to other high-level Nuestra Familia members,
including Ramirez, Campa, and Abundiz.




      1
          We refer to Debbie Corrales Guzman as Corrales to avoid confusion.
                                            5
       2. Timeline of Defendant’s Involvement
       Defendant and Venegas met in high school sometime around the early 1990s.
Defendant also went to school with Ramirez’s sister. Defendant admitted he was a
member of the Varrio Horseshoe street gang when he was younger, but most witnesses in
the record stated defendant was never a member of Nuestra Familia.
       According to Campa, defendant began supplying methamphetamine to Nuestra
Familia around 2005. Corrales told police she witnessed multiple drug transactions
between defendant, Guzman, and other Nuestra Familia members beginning in the fall of
2005. Guzman would take Corrales with him to Abundiz’s house, where defendant
delivered methamphetamine in two-gallon freezer bags on a weekly basis. Defendant
“fronted” the drugs and received cash at a later time after the drugs were resold down the
distribution chain.
       On March 8, 2007, police arrested Guzman for possession of a firearm; he
remained in custody thereafter. But Guzman continued to coordinate his distribution
operations through Corrales and his second in command, Clayton Clark. Corrales
received large amounts of cash from various persons, stored it in her residence, and
passed it on to defendant. During this period, police recorded multiple phone calls
between Guzman and Corrales evidencing the ongoing transactions.
       In July 2007, Clark was involved in a homicide and fled to México. Corrales
nonetheless continued to communicate with Clark, with the latter calling her from
México or sending messages through intermediaries. During that period, various people
continued coming to Corrales’ house to drop off money intended for Guzman. In turn,
defendant would go to Corrales’ house to pick up money owed to him by Guzman.
Corrales testified that people owed Guzman money because defendant was still
delivering methamphetamine to whomever Guzman had put in charge.
       At some point during this period, defendant began to fall increasingly out of favor
with Campa and Ramirez, two of the other regiment commanders. Ramirez attempted to
                                            6
secure a supply of methamphetamine from defendant, but defendant demurred and
informed Ramirez “that he is not a homeboy but a go between.” Defendant’s response
angered Ramirez, and Ramirez warned defendant that Nuestra Familia would stop
providing him with protection from his enemies, “thus having a negative impact on his
drug networking.”
       In December 2007, police executed a warrant search of Corrales’ residence.
Police informed Corrales they had been recording the incriminating phone calls between
her and Guzman. At that point, Corrales began cooperating with the Nuestra Familia
investigation.
       On January 22, 2008, police arranged a recorded phone call between Corrales and
defendant. Defendant and Corrales alluded to the fact that “Brown and Black” (Campa
and Ramirez) had been hindering defendant’s ability to sell methamphetamine. Corrales
told defendant that Guzman had sent a message to Campa and Ramirez asking them to
allow defendant to continue his distribution activities. Defendant said he did not trust
Campa and Ramirez, and he complained that Guzman, being in custody, “ain’t got no say
over what we do out here.” Defendant told Corrales to inform Guzman that he
(defendant) would make an effort to “get out there,” but he wanted to speak directly with
Campa and Ramirez first.
       On February 19, 2008, police arranged another recorded phone call between
defendant and Corrales. Defendant told Corrales he had not yet spoken with Campa or
Ramirez, and he believed they would not comply with Guzman’s request. Defendant
stated, “It’s one thing to be cleared but when these guys have it in for you and they don’t
want you around they’re gonna find a way for you not to be around.” Defendant
explained, “they can become problems if I start working.” He added that he had recently
suffered “a couple of big losses” and he could not afford to get “burned” because he
lacked the money to pay his suppliers. Defendant added, “I’ve tried and tried and things


                                             7
just aren’t working out for me.” Defendant further explained that his suppliers were
charging much higher prices for the methamphetamine.
       Defendant lamented the fact that Guzman was in custody and stated, “if Lencho
was out I would be working right now you know why because I know I could depend on
Lencho.” Defendant stated, “I’m not working at all I’m not doing nothing the only thing
I do now and then is I’ll hold something for one of my partners or something to that
extent but I’m not out on the streets.” Defendant then told Corrales to tell Guzman that
he (defendant) was willing to keep distributing to Guzman if the right conditions arose.
Defendant said that “things are fruitful for when opportunity arises” because he was still
in good standing with his suppliers and was “just waiting for an opportunity.”
       On May 13, 2008, police arrested defendant and searched his residence as part of
the Mendez-Venegas investigation.
       3. The Nuestra Familia Indictment
       In April 2009, the prosecution indicted defendant, Guzman, Clark, and 26 other
codefendants in a 13-count indictment alleging, among other things, that the defendants
were active participants in Nuestra Familia. (Pen. Code, § 186.22, subd. (a).) The
indictment further charged the defendants with operating a conspiracy to distribute
methamphetamine with the allegation that they did so for the benefit of the gang. (Pen.
Code, §§ 182, 186.22, subd. (b)(1)(A); Health & Saf. Code, § 11379, subd. (a).)
       4. Defendant’s Motion to Dismiss the Indictment Under Kellett
       In March 2012, defendant moved to dismiss the indictment under Penal Code
section 654 (Section 654) and Kellett, supra. Defendant argued that the prosecution was
aware of the evidence and facts showing he supplied Nuestra Familia with
methamphetamine at the time of the Mendez-Venegas prosecution, such that any charges
relating to the Nuestra Familia prosecution should have been brought against him in the
earlier prosecution.


                                             8
       In a written opposition, the prosecution made several assertions to support its
argument that “the two cases were investigated by different agencies and were
completely separate and distinct investigations into two different large scale drug
operations, involving different co-defendants.” The prosecution asserted: (1) defendant
was not charged with any gang-related offenses or enhancements in the Mendez-Venegas
prosecution because “there was no evidence collected to identify any of the defendants as
gang members or that the crime was done for the benefit of, at the direction of[,] or in
association with a criminal street gang”; (2) the Nuestra Familia prosecution was based
on “new and different evidence” than the evidence gathered in the Mendez-Venegas
prosecution; (3) “police and prosecutors were not aware of the extensive role Defendant
Ochoa played in the Nuestra Familia Organization at the time of the investigation and
prosecution” of the Mendez-Venegas prosecution; and (4) “None of the information or
evidence collected as a result of BNE’s investigation of #CC805059 [the Mendez-
Venegas prosectution] was presented to the Grand Jury in #211398 [the Nuestra Familia
prosecution].”
       At a hearing on the matter, the trial court focused on whether the conduct at issue
in the two prosecutions constituted a single course of conduct under Section 654.
Defendant argued that, as a middleman in two cases involving the same supply chain of
methamphetamine, his actions constituted “a continuous, unitized course of conduct.”
Among other things, defendant cited the probation report filed in the Mendez-Venegas
prosecution, which stated: “Investigators believe the defendant, Jack Ochoa, was the
connection between the Nuestra Familia and codefendants Rudy Mendez Jr. and Jesus
Venegas, and worked closely with both.” In response, the prosecution argued that the
two cases involved “two separate and distinct conspiracies.” Specifically, the
prosecution asserted that defendant, in 2008, was supplying methamphetamine to
someone outside of Santa Clara County who was not associated with Nuestra Familia.
The prosecution claimed there was no evidence that defendant supplied any drugs to
                                             9
Guzman or his regiment after July 2007 because Guzman had been arrested by then, and
Clark, his second in command, had fled the country.
       The trial court denied the motion. The court noted that the Mendez-Venegas
complaint did not include any allegations of involvement by Nuestra Familia, and the two
prosecutions involved different coconspirators. The court found that the objective and
intent of the Mendez-Venegas conspiracy “was really nothing more than mere profit.”
By contrast, the court described that the focus of the Nuestra Familia prosecution was on
the gang’s activities and the commission of overt acts for the benefit of the gang.
Because the intent and objectives of the Nuestra Familia conspiracy (to benefit the gang)
were distinct from the intent and objectives of the Mendez-Venegas conspiracy (mere
profit), the court found that the two prosecutions targeted two separate, distinct
conspiracies.
       5. Subsequent Trial Court Proceedings
       After the trial court denied defendant’s Kellett motion, defendant moved to
dismiss the indictment on double jeopardy grounds. He simultaneously moved for
reconsideration of the denial on Kellett grounds. The trial court denied both motions. In
denying the motion on double jeopardy grounds, the court reiterated its prior finding that
the two prosecutions involved two separate and distinct offenses based upon two separate
and distinct agreements.
       In April 2012, defendant pleaded no contest to one count of conspiracy to
distribute methamphetamine. (Pen. Code, § 182; Health & Saf. Code, § 11379,
subd. (a).) He admitted the allegation that the offense was committed for the benefit of a
criminal street gang. (Pen. Code, § 186.22, subd. (b)(1)(A).) He further admitted he had
suffered a prior serious felony conviction and had served two prior prison terms. (Pen.
Code, §§ 667, subd. (a), 667.5, subd. (b).) Under the terms of the plea agreement, the
parties agreed defendant would be sentenced to a total term of 11 years, but the court
would also resentence him on the Mendez-Venegas conviction from a term of 10 years to
                                             10
a term of four years four months. The parties agreed that the latter term would run
consecutive to the 11-year term for a total term of 15 years four months. The parties also
agreed defendant would be allowed to appeal the denial of his motions to dismiss on
Kellett and double jeopardy grounds. Furthermore, the trial court would allow defendant
to augment the record with evidence relating to these motions for the purposes of his
appeal.
       Before defendant was sentenced, his trial counsel declared a conflict of interest
and withdrew from the case. The court then appointed new trial counsel, who filed an
“Augmented Statement of Facts and Accompanying Exhibits” with evidence relating to
the Kellett and double jeopardy issues. In response, the prosecution also filed an
augmentation of the record including, among other things, a sworn declaration from
Sergeant Lewis, and the testimony of Corrales, Ramirez, and Clark as adduced at
Guzman’s jury trial.
       In October 2014, the trial court denied probation and sentenced defendant to a
term of 11 years in state prison for the Nuestra Familia conviction.2 The term consisted
of four years on the conspiracy count plus two years for the gang enhancement and five
years for the prior serious felony conviction. The court struck the prior prison term
enhancements. The court also granted defendant a certificate of probable cause to appeal
the denial of his motions to dismiss on Kellett and double jeopardy grounds.
                                       II. DISCUSSION
       Defendant contends the trial court erred by denying his motion to dismiss under
Kellett because the course of conduct underlying the offenses charged in the Mendez-
Venegas prosecution was the same course of conduct for which he was indicted in the
Nuestra Familia prosecution. Defendant argues that the prosecution was aware or should
have been aware of the evidence connecting the two cases, such that Section 654

       2
       Although the parties agreed defendant would be resentenced for the Mendez-
Venegas conviction, the record on appeal contains no record of the resentencing.
                                            11
prohibited multiple prosecutions. The Attorney General contends the trial court properly
denied defendant’s Kellett motion because the two prosecutions did not involve the same
course of conduct. She argues the two cases involved two separate conspiracies
occurring at different times and places with different coconspirators and different
objectives.
   A. Legal Principles
       1. Section 654 and Kellett
       Subdivision (a) of Section 654 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.”
“Section 654 addresses both multiple punishment and multiple prosecution. The separate
concerns have different purposes and different rules of prohibition.” (People v. Valli
(2010) 187 Cal.App.4th 786, 794 (Valli).) “Section 654’s preclusion of multiple
prosecution is separate and distinct from its preclusion of multiple punishment. The 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 v. State of California
(1960) 55 Cal.2d 11, 21 (Neal), disapproved on other grounds in People v. Correa (2012)
54 Cal.4th 331.)
       Kellett, supra, is the leading case construing Section 654’s bar against multiple
prosecutions. In Kellett, the California Supreme Court held that 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
                                            12
initial proceedings culminate in either acquittal or conviction and sentence.” (Kellett,
supra, 63 Cal.2d at p. 827, fn. omitted.) The purpose of this bar is to prevent the needless
harassment and waste of resources that may result from multiple prosecutions for the
same act or course of conduct: “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.” (Ibid.)
       The bar on multiple prosecutions sweeps more broadly than the prohibition on
multiple punishments under Section 654: “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; cf. Neal,
supra, 55 Cal.2d at p. 19 [whether a course of criminal conduct is divisible and therefore
gives rise to more than one act for the purposes of multiple punishments under Section
654 depends on the intent and objective of the actor].) However, “[t]he Kellett rule
applies only where ‘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.’ ” (Valli, supra,
187 Cal.App.4th at p. 796, quoting Kellett, at p. 827.) The rule may apply even if
multiple prosecutors act independently in charging the defendant, such that no single
prosecutor is aware of the multiple prosecutions. The duty to join is particularly strong
where the multiple offenses are serious in nature. “When both offenses are serious
crimes, the potential for harassment and waste is sufficiently strong that section 654
imposes on prosecutors an administrative duty to insure that the charges are joined.” (In
re Dennis B. (1976) 18 Cal.3d 687, 694.)
       Appellate courts have adopted two different tests under Kellett to determine
whether multiple offenses occurred during the same course of conduct. (Valli, supra,
187 Cal.App.4th at p. 797.) Under one line of cases, multiple prosecutions are not barred
if the offenses were committed at separate times and locations. (People v. Douglas
                                            13
(1966) 246 Cal.App.2d 594, 599 (Douglas) [no bar to multiple prosecution where each
offense had a separate beginning, duration, and end, none of which overlapped]; People
v. Ward (1973) 30 Cal.App.3d 130, 136 [no bar to multiple prosecution where crimes
were committed at different locations, at different times, against different victims, and
with different objectives]; People v. Cuevas (1996) 51 Cal.App.4th 620, 624 [no bar to
multiple prosecution for offenses committed at different times and at different places]; cf.
People v. Britt (2004) 32 Cal.4th 944, 955 [multiple prosecutions barred where registered
sex offender moving from one county to another failed to notify both counties of his
change in residence].) We will refer to this as the “time and place test.”
       A second version of the test––the “evidentiary test”––looks to the evidence
necessary to prove the offenses. (People v. Flint (1975) 51 Cal.App.3d 333 (Flint).) “[I]f
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 waste of public funds.” (People v. Hurtado (1977) 67 Cal.App.3d 633,
636 (Hurtado).) “The evidentiary test of Flint and Hurtado requires more than a trivial
overlap of the evidence. Simply using facts from the first prosecution in the subsequent
prosecution does not trigger application of Kellett.” (Valli, supra, 187 Cal.App.4th at
p. 799.)
       Whether the bar against multiple prosecution applies must be determined on a
case-by-case basis. (People v. Britt, supra, 32 Cal.4th at p. 955.) We review factual
determinations under the deferential substantial evidence test, viewing the evidence in the
light most favorable to the prosecution.3 (Valli, supra, 187 Cal.App.4th at p. 794.) We
review de novo the legal question of whether Section 654 applies. (Ibid.)

       3
         While the trial court made few factual findings, our review is complicated by the
fact that much of the evidence in the record was not before the trial court when it ruled on
the Kellett motion. Generally, the moving party bears the burden to put the supporting
evidence before the court. But as described above, the parties agreed to augment the
record after defendant’s initial trial counsel withdrew due to an unspecified conflict. The
                                             14
       2. The Law of Conspiracy
       “Pursuant to [Penal Code] section 182, subdivision (a)(1), a conspiracy consists of
two or more persons conspiring to commit any crime. A conviction of conspiracy
requires proof that the defendant and another person had the specific intent to agree or
conspire to commit an offense, as well as the specific intent to commit the elements of
that offense, together with proof of the commission of an overt act ‘by one or more of the
parties to such agreement in furtherance of the conspiracy.” (People v. Morante (1999)
20 Cal.4th 403, 416, fn. omitted., (Morante).) “Criminal conspiracy is an offense distinct
from the actual commission of a criminal offense that is the object of the conspiracy.”
(Ibid.) “Conspiracy is an inchoate crime. [Citation.] It does not require the commission
of the substantive offense that is the object of the conspiracy. ‘As an inchoate crime,
conspiracy fixes the point of legal intervention at [the time of] agreement to commit a
crime,’ and thus reaches further back into preparatory conduct than attempt . . . .’ ”
(People v. Swain (1996) 12 Cal.4th 593, 599, quoting Model Pen. Code & Commentaries
(1985) com. 1 to § 5.03, pp. 387-388.)
       “ ‘A conspiracy is not the commission of the crime which it contemplates, and
neither violates nor “arises under” the statute whose violation is its object.’ ” (People v.
Vargas (2001) 91 Cal.App.4th 506, 552, quoting Braverman v. United States (1942)
317 U.S. 49, 54. (Braverman).) “ ‘Whether the object of a single agreement is to commit
one or many crimes, it is in either case that agreement which constitutes the conspiracy
which the statute punishes. The one agreement cannot be taken to be several agreements
and hence several conspiracies because it envisages the violation of several statutes rather
than one.’ ” (Ibid.) Thus, “a single agreement to commit a number of crimes is only one
conspiracy, regardless of the number of crimes sought to be committed, or that are
committed, under that conspiracy.” (Id. at p. 555.) “ ‘ “[T]he government cannot split up

Attorney General does not object to our reliance on the augmented record, and her brief
relies on portions of the record augmented by the prosecution.
                                             15
one conspiracy into different indictments, and prosecute all of them, but that prosecution
for any part of a single crime bars any further prosecution based upon the whole or a part
of the same crime.” ’ ” (People v. Lopez (1994) 21 Cal.App.4th 1551, 1557, quoting In
re Nichols (1927) 82 Cal.App. 73, 79.)
       “The crime of conspiracy can be committed whether the conspirators fully
comprehended its scope, whether they acted together or in separate groups, or whether
they used the same or different means known or unknown to them.” (People v. Cooks
(1983) 141 Cal.App.3d 224, 312.) A single conspiracy may exist even if some
conspirators are unaware of the identity or existence of other coconspirators.
(Blumenthal v. United States (1947) 332 U.S. 539, 556-557; People v. Van Eyk (1961)
56 Cal.2d 471, 479; People v. Aday (1964) 226 Cal.App.2d 520, 534, citing People v.
Buffum (1953) 40 Cal.2d 709, 729, overruled on other grounds by Morante, supra,
20 Cal.4th 403.)
   B. Application of Section 654 and Kellett
       The central question in this case is whether “the same act or course of conduct
play[ed] a significant part” in the offenses charged in both prosecutions. (Kellett, supra,
63 Cal.2d at p. 827.) For the reasons set forth below, we answer this question in the
affirmative. We then consider whether, at the time of the Mendez-Venegas prosecution,
the prosecution was aware or should have been aware that the same course of conduct
forming the basis for the Mendez-Venegas complaint formed the basis for the charges
alleged in the Nuestra Familia indictment.
       1. Both Prosecutions Concerned the Same Course of Conduct
       In both prosecutions, defendant was charged with conspiracy to distribute
methamphetamine. The Mendez-Venegas complaint also charged defendant with
possession of methamphetamine for sale, conspiracy to transport methamphetamine,
possession of methamphetamine while armed, manufacturing methamphetamine,
possession of a firearm by a felon, and possession of ammunition by a felon. And the
                                             16
Nuestra Familia indictment charged defendant with active participation in Nuestra
Familia, and the indictment alleged the conspiracy to distribute methamphetamine was
committed for the benefit of that gang.
       At the outset, we note that most of the offenses charged in the Mendez-Venegas
complaint were substantive offenses committed in furtherance of the methamphetamine
conspiracy—e.g., possession with intent to distribute, possession of methamphetamine
while armed, conspiracy to transport, and conspiracy to manufacture. Defendant does not
argue that Kellett requires dismissal of any of the charges alleged in that complaint. And
although the Nuestra Familia indictment charged defendant with active participation in
Nuestra Familia, the defense and prosecution agreed that defendant was not actually a
member of Nuestra Familia. There is no evidence defendant received commands from
Nuestra Familia generals, issued orders to street regiment members, or committed any
other crime for the benefit of the gang apart from methamphetamine distribution.
       At the hearing on the Kellett motion, the prosecutor argued: “Jack Ochoa is not a
member of the Nuestra Familia. He’s not a member of the Nuestra Raza. He’s a large
scale drug dealer who is supplying Mr. Guzman.” To the extent defendant actively
participated in Nuestra Familia, his role appeared limited to supplying the gang with
methamphetamine. We note that as part of defendant’s plea agreement in the Nuestra
Familia case, the prosecution agreed to dismissal of the charge of active participation in a
criminal street gang.
       The conduct at issue here involves defendant’s participation in the alleged
conspiracies to distribute methamphetamine as well as the ancillary substantive offenses
he committed to further the Mendez-Venegas conspiracy, such as possessing and
transporting methamphetamine.4 The question is whether the defendant’s conduct as part

       4
         In the event the prosecution elects to file a new indictment against defendant for
his participation in Nuestra Familia, nothing in this opinion would foreclose such an
indictment based on conduct unrelated to methamphetamine distribution.
                                             17
of the Nuestra Familia conspiracy is a significant part of the course of conduct that
formed the basis for the Mendez-Venegas conspiracy or the substantive offenses charged
in the Mendez-Venegas complaint.
       As set forth above in Section II.A.1., appellate courts have set forth two tests—the
“time and place test” and the “evidentiary test”—to analyze a defendant’s course of
conduct under Kellett. Rather than deciding which test controls, we will apply both.
              a. The Time and Place Test
       Under the time and place test, multiple prosecutions are not barred if the offenses
were committed at separate times and locations. We will begin by focusing on the time
frames underlying the drug distribution conspiracies.
       Based on the Mendez-Venegas complaint and the Nuestra Familia indictment, the
alleged conspiracies overlapped in time. The Nuestra Familia indictment alleged the
conspiracy took place between April 25, 2002, and April 23, 2009. The Mendez-
Venegas complaint alleged the conspiracy took place within that same time period––
between February 11, 2008, and May 13, 2008. Furthermore, both charging documents
alleged the conspiracies took place in Santa Clara County. But for purposes of a Kellett
analysis, we must also look to the facts of defendant’s conduct underlying the charged
offenses.
       The record establishes that defendant began supplying methamphetamine to
Nuestra Familia in 2005. Both Corrales and Campa stated this fact. Corrales witnessed
defendant supplying methamphetamine to Guzman and Abundiz in two-gallon freezer
bags during multiple meetings starting in the fall of 2005. The record establishes that
Mendez and Venegas were defendant’s only source for methamphetamine, such that the
methamphetamine defendant supplied to Nuestra Familia was the same
methamphetamine he obtained from Mendez and Venegas. The prosecution’s
augmentation of the record establishes this fact in a sworn declaration from Campa
stating: “While Jack Ochoa was not a member of the NF, he supplied the NF with drugs
                                            18
he received from a supplier, Rudy Mendez.” Campa’s declaration further states, “I was
aware that Mendez was Ochoa’s sole supplier of narcotics . . . .” (Italics added.) The
record holds an abundance of evidence corroborating these statements. But in its
augmentation to the record, the prosecution offered the sworn declaration of Sergeant
Lewis, who stated “[t]hat in my expert opinion, large scale methamphetamine suppliers
like JACK OCHOA almost always have multiple sources of supply for their
methamphetamine in order to maintain a constant supply of the illegal narcotic.” Apart
from this statement, there is no other evidence in the record to support Sergeant Lewis’
claim with respect to defendant or his supply of methamphetamine. Nor did the
prosecution identify any other supplier of methamphetamine to defendant.
       We thus conclude defendant was supplying Nuestra Familia with the same
methamphetamine he procured from Mendez and Venegas. Furthermore, there is no
evidence defendant was supplying any other party apart from Nuestra Familia with
methamphetamine in 2005. These facts compel the conclusion that in 2005 defendant
entered a conspiracy to obtain methamphetamine from Mendez and Venegas at the same
time he entered a conspiracy to supply Nuestra Familia with methamphetamine. It
appears this chain of distribution continued actively until sometime in late 2007 or early
2008, by which time Guzman had been taken into custody and Clark had fled to México.
Faced with resistance from regiment commanders Campa and Ramirez, it appears
defendant was unable to sell methamphetamine around the time of his phone calls with
Corrales in January and February 2008.
       The Attorney General, echoing the arguments of the prosecution below, contends
the Mendez-Venegas conspiracy did not occur at the same time as the Nuestra Familia
conspiracy because defendant was no longer supplying methamphetamine to Nuestra
Familia as of 2008. This argument misunderstands the nature of conspiracy. The core
conduct underlying the offense of conspiracy is the entry into an agreement to commit an
offense, together with any overt act in furtherance of the conspiracy. The fact that
                                            19
defendant was supplying Nuestra Familia with methamphetamine he obtained from
Mendez and Venegas over the same period of time—from 2005 until sometime in 2007
or 2008—shows he had entered into agreements with both sides of the supply chain as of
2005. As soon as overt acts were committed in furtherance of the distribution, the
conspiracy or conspiracies were established.
       The fact that defendant may have stopped distributing methamphetamine to
Nuestra Familia at some point in late 2007 or early 2008 did not end his participation in
the Nuestra Familia conspiracy. The actual distribution of a drug is not the same as a
conspiracy to distribute the drug. (Braverman, supra, 317 U.S. at p. 54 [a conspiracy is
not the commission of the crime which it contemplates].) Furthermore, upon joining a
conspiracy, a defendant’s membership in the ongoing conspiracy continues until he
affirmatively rejects or repudiates the conspiracy. (People v. Crosby (1962) 58 Cal.2d
713, 730.) Not only did defendant fail to withdraw from the conspiracy, he explicitly
reaffirmed his agreement to continue supplying methamphetamine to Nuestra Familia. In
his phone call with Corrales on February 19, 2008, defendant instructed Corrales to tell
Guzman he wished to continue selling methamphetamine and he was “just waiting for an
opportunity.” As he explained to Corrales, whatever obstacles he faced in supplying
methamphetamine to Nuestra Familia were temporary and unintended. Thus, by his own
admission, defendant was still engaged in the conspiracy as of February 2008.
       The prosecution asserted defendant was selling methamphetamine to some other
party located outside Santa Clara County in 2008, but it never identified any such buyer.
The fact that defendant had methamphetamine in his residence in May 2008 is consistent
with his recorded statement to Corrales that he was storing methamphetamine for his
suppliers. The only evidence in the record that defendant sold methamphetamine to some
other party is a single statement in Campa’s declaration that “[t]he NF was not . . .
Ochoa’s only customer.” That statement provides no further details and specifies no time
frame or location for any drug sales by defendant to anyone outside Nuestra Familia. But
                                             20
even assuming defendant had supplied methamphetamine to someone outside Nuestra
Familia during the relevant time period, this would not have changed the fact that he was
still engaged in both the Mendez-Venegas and Nuestra Familia conspiracies at the same
time.
        Moreover, the record does not support the Attorney General’s contention that the
distribution network constituted two separate conspiracies with different coconspirators.
“ ‘One agreement gives rise to only a single offense, despite any multiplicity of
objects.’ ” (People v. Lopez, supra, 21 Cal.App.4th at p. 1557, quoting 1 Witkin and
Epstein, California Criminal Law (2d ed. 1988) Elements of Crime, section 163, at
p. 181.) “The test is whether there was one overall agreement among the various parties
to perform various functions in order to carry out the objectives of the conspiracy. If so,
there is but a single conspiracy.” (People v. Skelton (1980) 109 Cal.App.3rd 691, 718).
        As a general matter, multiple members of a narcotics supply chain are all members
of a single conspiracy because they have all entered into an overall agreement to
distribute drugs, even if some members are unaware of the presence or identity of other
members. “It has been held that persons can be prosecuted as conspirators if, by buying,
selling, or doing some other act, they knowingly participated in a general plan to place
narcotics in the hands of ultimate users. [Citations.] The fact that defendant may not
have personally known the identity or exact functions of all the members of the
conspiracy is immaterial.” (People v. Van Eyk, supra, 56 Cal.2d at p. 479.)
        In this case, the relationships between the members of the supply chain were
actually known by participants on both sides of the chain. The record shows that multiple
members of Nuestra Familia were aware of the identity of defendant’s suppliers. John
“Boxer” Mendoza, a former Nuestra Familia regiment commander, began cooperating
with police in October 2007. Mendoza provided police with a handwritten document
identifying the members of four Nuestra Familia street regiments operating in Santa Clara
County. Mendoza identified defendant, Mendez, Venegas, and Angel Palacios (another
                                             21
codefendant in the Mendez-Venegas prosecution) as some of Guzman’s
methamphetamine suppliers.
       Another Nuestra Familia member, Patrick “Turtle” Martinez, began cooperating
with police in January 2008. According to a police report drafted in June 2008, Martinez
told police defendant was providing up to 20 pounds of methamphetamine each month to
Guzman’s street regiment. Martinez also identified Venegas as an associate of defendant,
and he stated that both defendant and Venegas had been arrested by the BNE for
operating a large scale methamphetamine operation.
       The evidence also shows that Guzman personally entered into an agreement with
either Mendez or Venegas to supply Nuestra Familia with methamphetamine. At
Guzman’s trial, Corrales testified that defendant’s methamphetamine supplier, whom she
called “border brother,” met with Guzman at their house because Guzman wanted to “get
to him.” The supplier did not speak English, so the two spoke in Spanish while seated on
the couch. In an earlier interview with Sergeant Lewis, Corrales explained the
circumstances of the meeting as follows: “Jack was giving them, giving it to ‘em real
cheap. Then one day Jack decided he was gonna step back because something happened.
I don’t remember what happened and he, and [Guzman] was on him and on him and on
him to introduce him to the border connection. Jack finally agreed he would cause he
was gonna step back for a minute [. . .] and the border connection finally agreed he’d
meet [Guzman] because he realized that [Guzman] was making all his money for him and
then once [Guzman] and that border [connection] met, it was on after that.” Corrales
stated that at that point “the border guy” started delivering methamphetamine to
Guzman’s house. In another interview with police, Corrales described seeing defendant’s
source in three different meetings with Guzman. Corrales described the source as “30
something” and “dark” with a full set of hair and nice clothes. On one occasion, Corrales
saw the source in Guzman’s living room. Guzman told her, “That’s the main dude I’ve
been trying to hook up with.”
                                            22
       This evidence suggests that defendant, Mendez, Venegas, and Guzman were all
part of a common agreement to distribute the same methamphetamine. But we need not
decide whether defendant was part of two conspiracies or only one; the issue under
Kellett is whether his course of conduct played a significant part in both cases. The
evidence shows that defendant’s course of conduct in both cases took place at the same
times and in the same places. By agreeing to receive methamphetamine from Mendez
and Venegas and storing them on his property, defendant was simultaneously furthering
the Nuestra Familia conspiracy because the same drugs were intended to be sold to
Guzman and other Nuestra Familia members. Conversely, by agreeing to supply the
methamphetamine to Nuestra Familia, defendant was simultaneously furthering the
Mendez-Venegas conspiracy because the same money paid to him by Guzman could be
used to buy the drugs from Mendez and Venegas. We conclude from this evidence that,
under the time and place test, defendant’s course of conduct formed a significant part of
the offenses charged in both prosecutions.
              b. The Evidentiary Test
       Under the evidentiary test, we consider whether the evidence needed to prove one
offense necessarily supplies proof of the other. (Hurtado, supra, 67 Cal.App.3d at
p. 636.) The evidentiary test requires “more than a trivial overlap of the evidence.”
(Valli, supra, 187 Cal.App.4th at p. 799.) The record shows the overlap in the evidence
was substantial.
       First, as set forth above, investigators in the Mendez-Venegas prosecution
identified defendant’s connection to Nuestra Familia as early as August 2007. Second,
multiple witnesses in the Nuestra Familia prosecution identified both defendant and his
suppliers as participants in the same distribution network. Former regiment commander
Mendoza identified defendant, Mendez, Venegas, and Angel Palacios (another
codefendant in the Mendez-Venegas prosecution) as Guzman’s methamphetamine
suppliers. Former Nuestra Familia member Martinez also identified defendant as a
                                             23
supplier to Nuestra Familia and identified Venegas as his associate. In addition, Corrales
provided police with abundant information about defendant’s role as a middleman, and
the recorded phone calls between her and defendant contained numerous references to
defendant’s suppliers. While Corrales did not provide investigators with the names of
defendant’s suppliers, she personally witnessed Guzman meeting with either Mendez or
Venegas on multiple occasions, as noted earlier.
       The physical evidence collected in the Mendez-Venegas investigation also
supplied proof of defendant’s role as a middleman in the chain of supply to Nuestra
Familia. As set forth above, police in the Mendez-Venegas investigation seized a pound
of methamphetamine and other evidence of drug distribution in defendant’s residence on
May 13, 2008. The prosecution presented this evidence to the Nuestra Familia grand jury
through the testimony of Officer Doug Tran of the San José Police Department, who
participated in the search.5 Officer Tran testified to the same facts again at Guzman’s
jury trial, even though defendant was neither a witness nor a defendant in that trial.6
       The evidence noted above was sufficient to support a conspiracy conviction for
defendant’s role as a middleman, regardless of whether the conspiracy was charged based
on defendant’s connections to Mendez-Venegas or Nuestra Familia. We thus conclude
the record establishes more than a trivial overlap in the evidence supporting both
prosecutions. Furthermore, we note that the overlap in the known evidence was likely
much greater than reflected in the record because investigators deliberately redacted or
       5
         This fact contradicts the prosecution’s written statement to the trial court that
none of the information or evidence collected in the Mendez-Venegas investigation was
presented to the Nuestra Familia grand jury. The prosecutor later argued that Officer
Tran’s testimony was only presented to the grand jury for the limited purpose of tending
to corroborate the opinion that defendant was a member of the Nuestra Familia
conspiracy.
       6
         This court recently affirmed Guzman’s conviction from that trial in case No.
H039532. We will take judicial notice of the fact that Officer Tran testified for the
prosecution in that trial, a transcript of which was included in the record on appeal.
(Evid. Code, §§ 452, subd. (d), 459.)
                                             24
left out certain facts in their reports so as not to “jeopardize any ongoing investigations or
the safety of those involved.” For example, a report authored by Sergeant Livingston
soon after defendant’s arrest stated, “Jack Ochoa was previously left off prior lists due to
an ongoing investigation by the San Jose BNE office and San Jose PD.” Similarly,
Guzman’s name and identifying information appear without explanation in a list at the
end of a November 2007 report by a BNE agent detailing investigators’ surveillance of
Mendez and Venegas. The body of the report makes no mention of Guzman or why he
was included in the report.
       In its denial of defendant’s motion below, the trial court relied largely on the form
of the allegations set forth in the charging documents. The court noted that the Mendez-
Venegas prosecution included no gang-related charges, whereas the Nuestra Familia
indictment was focused on the gang. The court also found that the two prosecutions
involved different coconspirators. But a Kellett analysis does not depend on the form of
the pleadings, particularly where the underlying prosecutions concern a widespread
conspiracy involving many coconspirators operating over an extended period of time. In
such cases, it is always possible for prosecutors to divide up multiple coconspirators and
charge them separately, alleging different overt acts and time periods in multiple distinct
complaints. But the decision to charge two sets of coconspirators separately does not
change the fact that the underlying conduct constitutes a single conspiracy. While the
law of joinder generally does not require prosecutors to charge all coconspirators in a
single complaint, the inclusion of the same coconspirator in two prosecutions implicates
Kellett if the defendant’s course of conduct is a significant part of both. Although the
Nuestra Familia indictment included gang-related allegations not included in the Mendez-
Venegas case, the record holds no evidence that defendant’s relationship with Nuestra
Familia involved anything other than supplying the gang with the methamphetamine he
obtained from Mendez and Venegas. Thus, the defendant’s course of conduct was the
same in both prosecutions.
                                             25
       The trial court’s finding also relied largely on its finding that defendant’s intent
and objectives were distinct in each case. The court found that defendant’s intent in the
Mendez-Venegas conspiracy was to earn a monetary profit, whereas his participation in
the Nuestra Familia conspiracy was intended to benefit the gang. The Attorney General
puts forth the same argument here. But as a factual matter, the record holds no
substantial evidence that defendant lacked a profit motive for supplying
methamphetamine to Nuestra Familia, and common sense dictates otherwise. But even
assuming defendant harbored such separate objectives, the Kellett analysis hinges
primarily on the defendant’s conduct, not his intent or objectives. (Kellett, supra,
63 Cal.2d at p. 827 [the actor’s intent or objective may be immaterial when successive
prosecutions are attempted]; Valli, supra, 187 Cal.App.4th at p. 797 [intent or objective
may be irrelevant under the multiple prosecution bar of Section 654].)
       The Attorney General argues that Kellett does not bar multiple prosecutions where
the defendant harbored separate objectives or objectives that are too “broad and
amorphous.” In support of this proposition, she cites People v. Latimer (1993) 5 Cal.4th
1203, and People v. Perez (1979) 23 Cal.3d 545. But neither case applied the Kellett rule
against multiple prosecutions; they concerned the bar against multiple punishments under
Section 654. These are two distinct aspects of Section 654. (Neal, supra, 55 Cal.2d at
p. 21 [double prosecution may be precluded even when double punishment is
permissible].)
       For all these reasons, we conclude defendant’s course of conduct formed a
significant part of the offenses charged in both prosecutions.

       2. The Prosecution Was Aware of Defendant’s Involvement with Nuestra Familia
          at the Time of the Mendez-Venegas Prosecution
       The Kellett bar against multiple prosecutions only applies where “the prosecution
is or should be aware” that the same course of conduct plays a significant part in more
than one offense. (Kellett, supra, 63 Cal.2d at p. 827, fn. omitted; Valli, supra,

                                             26
187 Cal.App.4th at p. 796.) Generally, courts examine what the prosecution knew or
should have known before the date of the defendant’s conviction in the earlier
prosecution. (See Barriga v. Superior Court (2012) 206 Cal.App.4th 739, 748
[prosecution should have discovered incriminating text messages before they charged
defendant and entered into a plea agreement with him]; People v. Witcraft (2011) 201
Cal.App.4th 659, 674-675 [prosecutor should have discovered evidence of additional
offense before defendant pleaded no contest].) Here, the record shows the prosecution
was aware defendant was supplying methamphetamine to Nuestra Familia well before he
was arrested and charged in the Mendez-Venegas prosecution.7
       As set forth above, police learned of defendant’s role in the Mendez-Venegas
distribution network as early as August 2007, when investigators seized 17 pounds of
methamphetamine from a residence in San José. At that time, investigators believed
defendant was a member of Nuestra Familia. Around the same time, investigators in the
Nuestra Familia prosecution gathered a great deal of evidence regarding defendant’s
connection to the gang from Corrales, whose jailhouse phone calls with Guzman were
recorded. Corrales began cooperating with the police in December 2007, and police
arranged recorded phone calls between Corrales and defendant in January and February
2008. In those calls, defendant discussed his past and current interactions with Guzman,
making it clear he had previously provided methamphetamine to Nuestra Familia, and
reaffirming his intention to continue doing so as the opportunities arose.
       Investigators gathered additional evidence of defendant’s role in supplying
methamphetamine to Nuestra Familia from former members of the gang. As set forth
above, former regiment commander Mendoza, who began cooperating with police in


       7
        The record does not disclose the date on which the prosecution first charged
defendant in the Mendez-Venegas case. He was arrested on May 13, 2008, and the
prosecution signed a second amended complaint on July 24, 2008. Presumably, the
prosecution filed the initial complaint in the intervening period.
                                            27
October 2007, supplied police with a handwritten document identifying defendant,
Mendez, and Venegas as drug suppliers to the gang. The document was included in a
police report by Sergeant Livingston dated June 11, 2008. The same police report
documented statements by former Nuestra Familia member Martinez, who told police
defendant was providing up to 20 pounds of methamphetamine each month to Guzman’s
street regiment.
       In its augmentation to the record, the prosecution filed a sworn declaration by
Sergeant Lewis dated October 24, 2014. The declaration stated that Sergeant Lewis had
not found “any competent evidence” in the course of his investigation identifying
Mendez, Venegas, and the other Mendez-Venegas codefendants as participants in the
Nuestra Familia conspiracy. The declaration further stated that Sergeant Lewis had not
found any competent evidence that Mendez and Venegas provided the methamphetamine
that was supplied to Guzman and Nuestra Familia. While the declaration does not state
what Sergeant Lewis considered to be “competent evidence,” these statements are
difficult to square with the evidence noted above, including Campa’s sworn declaration
that the methamphetamine defendant provided to Nuestra Familia came from Mendez,
who was defendant’s sole supplier. But even assuming Sergeant Lewis’ declaration is
accurate, the question under Kellett is what the prosecution knew about defendant’s
participation in the Nuestra Familia conspiracy at the time of the Mendez-Venegas
prosecution. Sergeant’s Lewis declaration does not address this issue.
       In its opposition to defendant’s motion, the prosecution emphasized that the two
prosecutions were “investigated by different agencies and were completely separate and
distinct investigations.” But the San José Police Department was involved in both
investigations, and the Santa Clara County District Attorney filed both charging
documents. It is irrelevant that the prosecutions were brought by different prosecutors,
particularly given the seriousness of the charges. (In re Dennis B., supra, 18 Cal.3d at
p. 694 [when both offenses are serious crimes, Section 654 imposes on prosecutors an
                                            28
administrative duty to ensure that the charges are joined]; Barriga v. Superior Court,
supra, 206 Cal.App.4th at p. 749 [two assistant prosecutors representing the same district
attorney are treated as representing the same office under Kellett].)
       Furthermore, the record shows that the prosecutor in the Mendez-Venegas case
was well aware of the impending Nuestra Familia indictment. Before defendant pleaded
no contest in the Mendez-Venegas case, his trial counsel learned of the forthcoming
Nuestra Familia indictment and asked the prosecutor whether defendant would be
included in that indictment. The prosecutor declined to comment on the substance of the
indictment but informed defendant’s trial counsel that defendant “should plead now.”
Trial counsel interpreted that to mean the sentence contemplated under the pending plea
agreement was sufficient to keep defendant from being indicted. Counsel so advised
defendant, and defendant accepted the plea agreement. The prosecutor later argued that
entering a plea in the Mendez-Venegas prosecution benefitted defendant because the
sentencing court would not have granted his Romero motion if the court had been made
aware of defendant’s involvement with Nuestra Familia. But this ignores the fact that the
probation report in the Mendez-Venegas prosecution informed the court that defendant
was the connection between Nuestra Familia and the Mendez-Venegas ring. In any
event, regardless of the prosecutor’s motivations, the record shows the prosecutor was
aware of the Nuestra Familia prosecution before defendant entered his plea in the
Mendez-Venegas prosecution.
       We conclude after a careful review of the evidence that the prosecution was aware
of defendant’s conduct in supplying methamphetamine to Nuestra Familia at the time of
the Mendez-Venegas prosecution. Because defendant’s course of conduct formed a
significant part of the offenses in both prosecutions, the latter prosecution was barred
under Section 654 and Kellett. Accordingly, we will reverse the judgment. In light of
our reversal, we need not reach defendant’s claim of double jeopardy.


                                             29
                            III.   DISPOSITION
The judgment of conviction is reversed.




                                    30
                  Márquez, J.




WE CONCUR:




 Rushing, P.J.




 Grover, J.




People v. Ochoa
No. H041918
Trial Court:                             Santa Clara County
                                         Superior Court No.: 211398

Trial Judge:                             The Honorable Jacqueline Arroyo



Attorney for Defendant and Appellant     J. Frank McCabe
Jack Jerry Ochoa:                        under appointment by the Court of
                                         Appeal for Appellant




Attorneys for Plaintiff and Respondent   Kamala D. Harris,
The People:                              Attorney General

                                         Gerald A Engler,
                                         Chief Assistant Attorney General

                                         Jeffrey M. Laurence,
                                         Senior Assistant Attorney General

                                         Rene A. Chacon,
                                         Supervising Deputy Attorney General

                                         Juliet B. Haley,
                                         Deputy Attorney General




People v. Ochoa
H041918
