Filed 6/18/14 P. v. Holbert CA3
                                           NOT TO BE PUBLISHED



California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.



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



THE PEOPLE,                                                                                  C073721

                   Plaintiff and Respondent,                                     (Super. Ct. No. 12F04487)

         v.

NICHOLAS RYAN HOLBERT,

                   Defendant and Appellant.




         Defendant Nicholas Ryan Holbert appeals his convictions for identity theft, using
a false identity to gain goods and services, being a felon in possession of a firearm, and
illegally possessing ammunition. He contends the trial court erred in denying his motion
to dismiss the information for multiple prosecutions under Kellett v. Superior Court
(1966) 63 Cal.2d 822 (Kellett). We disagree and affirm the judgment.
                                                  BACKGROUND
         On June 13, 2012, Sacramento County Sheriff’s Deputies Robert French and Sean
Berry conducted a stop of defendant’s vehicle. Defendant falsely identified himself to


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the officers as Bobbie Eberly. The officers learned Bobbie Eberly was on probation and
conducted a probation search. In the course of the search, the officers found a nine-
millimeter semiautomatic firearm, a black plastic bag containing an unloaded replica .44-
caliber revolver, and nineteen .38-caliber bullets. In the trunk of the car were copies of
checks, medical records from a dental office that included the personal information of at
least 10 different people, identifying information for at least eight different people, and a
laptop computer. Defendant was arrested for providing an officer with a false name.
       Deputy French gave the items to Detective Albert Kirby of the sheriff’s
department high tech crimes unit. Detective Kirby and Detective Sean Smith spoke with
seven of the people whose information and property was found in the trunk of the car and
they indicated they did not know defendant and he did not have permission to have that
information. After hearing a recorded jail phone call, Deputy Berry obtained a search
warrant and retrieved another firearm from the car, a loaded .38-caliber revolver.
       On June 15, 2012, a complaint charged defendant with falsely indentifying himself
to a police officer to evade proper identification. (Pen. Code, § 148.9, subd. (a).)1
Defendant pleaded no contest. He was sentenced to 45 days in county jail and granted
three years of informal probation.
       On July 2, 2012, the district attorney filed a felony complaint charging defendant
with two counts of unlawful possession of a firearm. (§ 29800, subd. (a)(1).) Ultimately,
the district attorney, on January 24, 2013, charged defendant by amended information
with three counts of unlawful possession of a firearm (§ 29800, subd. (a)(1)), two counts
of unlawful possession of ammunition (former § 12316, subd. (b)(1)), 10 counts of
unlawful acquisition and retention of personal identifying information (§ 530.5, subd.
(b)(2)), and one count each of receiving stolen property (§ 496, subd. (a)), unlawful




1      Undesignated statutory references are to the Penal Code.

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acquisition and retention of the personal identifying information of 10 or more people (§
530.5, subd. (c)(3)), and unlawfully obtaining personal identifying information without
consent (§ 530.5, subd. (a)). The information also alleged defendant served two prior
prison terms. (§ 667.5, subd. (b).)
       Defendant filed a motion to dismiss the information as violating the Kellett rule
against multiple prosecutions. The trial court found, although the People were aware of
the potential additional charges against the defendant, the misdemeanor and the
subsequently charged felonies involved separate proofs, were not part of the same course
of conduct, and were not transactionally related. The trial court also found the evidence
of one offense would not necessarily provide proof of the other offenses. The trial court
agreed the People could have joined the charges and filed them together, but they were
not required to do so. Accordingly, the trial court denied defendant’s Kellett motion.
Defendant pleaded no contest to unlawful acquisition of personal identifying information,
unlawfully obtaining personal identifying information, possession of a firearm, and
unlawful possession of ammunition. Defendant also admitted the two prior prison term
allegations. Based on the negotiated disposition, the trial court sentenced defendant to an
aggregate term of seven years and awarded him 489 days of presentence custody credits.
The trial court granted defendant’s certificate of probable cause.
                                      DISCUSSION
       Defendant claims the trial court erred in denying his Kellett motion to dismiss.
Defendant asserts the felony information should have been dismissed because the charges
“were related to a course of conduct the state had already prosecuted.” We disagree.
       Section 654, subdivision (a) provides: “An act or omission that is punishable in
different ways by different provisions of law shall be punished under the provision that
provides for the longest potential term of imprisonment, but in no case shall the act or
omission be punished under more than one provision. An acquittal or conviction and
sentence under any one bars a prosecution for the same act or omission under any other.”

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While this provision addresses both multiple punishment and multiple prosecution, these
“separate concerns have different purposes and different rules of prohibition.” (People v.
Valli (2010) 187 Cal.App.4th 786, 794 (Valli).) “The purpose of the protection against
multiple punishment is to insure that the defendant's punishment will be commensurate
with his criminal liability.” (Neal v. State of California (1960) 55 Cal.2d 11, 20.) At the
same time, “[t]he rule against multiple prosecutions is a procedural safeguard against
harassment and is not necessarily related to the punishment to be imposed; double
prosecution may be precluded even when double punishment is permissible.” (Id. at p.
21.)
       In Kellett, our Supreme Court held that section 654 prohibits multiple prosecution
when the People either know or reasonably should know that “the same act or course of
conduct play[ed] a significant part” in both offenses. (Kellet, supra, 63 Cal.2d at p. 827.)
There, the defendant was arrested while standing on the sidewalk with a gun in his hand.
(Id. at p. 824.) He was initially charged with exhibiting a firearm in a threatening
manner, a misdemeanor. After a preliminary hearing, he was charged in a separate case
with possession of a firearm by a felon, a felony. After pleading guilty to the
misdemeanor, he unsuccessfully moved to dismiss the felony under section 654. (Kellet,
supra, at p. 824.)
       Our Supreme Court issued a writ of prohibition preventing defendant's trial.
(Kellett, supra, 63 Cal.2d at p. 829.) After explaining the “separate and distinct”
purposes behind section 654's preclusion of multiple punishment and multiple
prosecution, the court noted section 954 “provides for the joinder in a single accusatory
pleading of two or more offenses connected in their commission or having a common
element of substantial importance in their commission.” (Kellet, supra, at p. 825.)
       Construing sections 654 and 954 in light of the “growing concern” that
prosecution of “closely related individual offenses at separate trials may constitute an
impermissible denial of that fundamental fairness required by the due process clause of

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the Fourteenth Amendment,” the court stated: “If needless harassment and the waste of
public funds are to be avoided, some acts that are divisible for the purposes of
punishment must be regarded as being too interrelated to permit their being prosecuted
successively. When there is a course of conduct involving several physical acts, the
actor's intent or objective and the number of victims involved, which are crucial in
determining the permissible punishment, may be immaterial when successive
prosecutions are attempted. When, as here, the prosecution is or should be aware of more
than one offense in which the same act or course of conduct plays a significant part, all
such offenses must be prosecuted in a single proceeding unless joinder is prohibited or
severance permitted for good cause. Failure to unite all such offenses will result in a bar
to subsequent prosecution of any offense omitted if the initial proceedings culminate in
either acquittal or conviction and sentence.” (Kellett, supra, 63 Cal.2d at p. 827, fn.
omitted.) Thus, under Kellett's interpretation of section 654, the district attorney may not
bring the second case against defendant if three conditions exist: (1) the same course of
conduct played a significant part in the offenses charged in each case; (2) the prosecution
was or should have been aware of the offense charged in the second case while the first
case was pending; and (3) all of the offenses charged could have been joined in a single
case.
        “On appeal, we review factual determinations under the deferential substantial
evidence test, viewing the evidence in the light most favorable to the People. [Citation.]
We review de novo the legal question of whether section 654 applies. [Citation.]” (Valli,
supra, 187 Cal.App.4th at p. 794.)
        “Whether Kellett applies must be determined on a case-by-case basis. [Citation]”
(Valli, supra, 187 Cal.App.4th at p. 797.) In making this determination, we consider the
totality of the facts and whether separate proofs were required for the different offenses.
(Valli, supra, at p. 798, citing People v. Flint (1975) 51 Cal.App.3d 333, 337-338.)
“More specifically, if the evidence needed to prove one offense necessarily supplies

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proof of the other, we concluded that the two offenses must be prosecuted together, in the
interests of preventing needless harassment and waste of public funds. [Citation.]”
(People v. Hurtado (1977) 67 Cal.App.3d 633, 636.) “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.) Thus, successive prosecutions are not barred
when “[d]ifferent evidentiary pictures are required . . . [or] [d]ifferent witnesses would
testify to the events.” (Valli, supra, at p. 799.)
       Defendant contends Kellett applies to this case, because “[a]ll the charges at issue
stemmed from the same arrest and search, save one gun found in a later search.
[Citation.] The district attorney was aware of all the evidence at the time the initial
complaint was filed . . . . [¶] Further the same police officers would testify as to both
crimes. . . . This is not a case in which each prosecution was based on separate witnesses.
[Citation.] Instead it is a case in which the same course of conduct forms a significant
part with respect to each set of separately charged crimes.” Defendant misconstrues the
evidentiary test articulated above.
       While it is true that the charges in each case arose from evidence seized during
one search and arrest (except for the gun seized as a result of the jail phone call), that
does not mean the evidence necessary to prove the charges is the same in each case. The
evidence necessary to support the conviction for providing a false identification to law
enforcement officers was the officers’ testimony and defendant’s true identity. Deputies
French and Berry were percipient witnesses to that offense. While Deputies French and
Berry could also testify to some of the facts necessary to establish all of the offenses, they
were peripheral witnesses to the charges relating to unlawful possession of the personal
identifying information of others. Other important elements would have to be established
by other sources. For example, the many people who were not present at the scene of
defendant’s arrest and whose stolen identifying information was found in the vehicle

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were necessary witnesses to those offenses. On the other hand, the evidence necessary to
support a conviction for providing false identification to an officer was not relevant or
necessary to prove defendant was guilty of possessing the many other’s stolen identifying
information, possession of firearms, or possession of ammunition. Any potential
evidentiary overlap was trivial at best. In any event, the evidentiary pictures for the
offenses are entirely distinct.
       Barring a subsequent prosecution of defendant for possessing the identifying
information, guns and ammunition would not further “the policies underlying section 654
-- preventing harassment of the defendant and the waste of public resources through
relitigation of issues.” (People v. Davis (2005) 36 Cal.4th 510, 558.) Defendant’s
interest in being free from the harassment of a second trial is nonexistent, because his
conviction for providing false identification to an officer resulted from a guilty plea, not a
trial. For the same reason, the public's interest in avoiding the waste of resources through
relitigation would be “minimal.” (Id. at pp. 558-559.) “Balanced against these minimal
interests [is] the public's weighty interest in prosecuting and punishing” defendant for his
myriad of felony offenses. (Ibid.) The overwhelming balance of policy considerations
tips substantially in favor of prosecuting defendant for unlawfully possessing personal
identifying information of others, guns, and ammunition. Accordingly, the trial court did
not err in denying the motion to dismiss the felony information.
                                          DISPOSITION
       The judgment is affirmed.

                                                         NICHOLSON             , J.

We concur:

      RAYE                   , P. J.


      HOCH                   , J.


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