Filed 4/21/14 P. v. Juarez CA2/7
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                DIVISION SEVEN


THE PEOPLE,                                                          B246890

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. KA095401)
         v.

ANTONIO JUAREZ,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County, Steven
D. Blades, Judge. Affirmed.
         A. William Bartz, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General; Dane R. Gillette, Chief Assistant Attorney
General; Lance E. Winters, Senior Assistant Attorney General; Scott A. Taryle,
Supervising Deputy Attorney General; and Pamela C. Hamanaka, Deputy Attorney
General, for Plaintiff and Respondent.


                                          _______________________
       On April 8 2011, defendant Antonio Juarez was found in possession of a firearm.
Five days later, he was charged with a single count of being a felon in possession of a
firearm. (See Penal Code, § 29800, sub. (a).) During the course of the gun possession
case, law enforcement discovered Juarez’s firearm had been used during a freeway
shooting that occurred two days prior to his arrest. After Juarez pled guilty on the
possession charge, the prosecution filed a second information charging Juarez with two
counts of attempted murder arising from the freeway shooting.
       Juarez moved to dismiss arguing that the attempted murder charges violated Penal
Code section 654’s prohibition on multiple prosecutions for offenses committed within
the same course of conduct. The trial court denied the motion, the case proceeded to
trial, and Juarez was found guilty of both attempted murder counts. We affirm.


                 FACTUAL AND PROCEDURAL BACKGROUND
       A. Summary of the Charged Offenses
       On April 6, 2011, at approximately 12:30 a.m., Anthony Martinez (“Martinez”)
and Daisy Avila (“Avila”) were in Martinez’s white BMW when a black car pulled up
next to them. The driver of the black vehicle appeared to be angry and asked Martinez
“Where the fuck are you from?” Martinez rolled Avila’s window up and immediately
turned left. The black car followed Martinez through a red light and onto the freeway. A
person inside the black car fired a handgun at Martinez’s vehicle. A bullet struck
Martinez in the face, causing him to lose control of the car.
       Two days later, on the evening of April 8, 2011, City of Baldwin Park police
officer Jeffrey Honeycutt and his partner stopped Diane Leos for failing to use her turn
signal. Although Leos was unable to produce a drivers license, she informed the officers
she had identification at her apartment. The officers then transported Leos to her
apartment, where they observed Juarez and another individual, Jimmy Osuna, sitting on
separate couches in the living room. Juarez threw a blanket over several objects near
him. Honeycutt saw the handle of a .9 millimeter handgun sticking out from the blanket
and immediately detained Juarez. Honeycutt then directed Osuna to move away from the

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couch and recovered a .38 caliber pistol that was beneath him. Honeycutt and his partner
arrested Juarez and Osuna and placed them in the back of a patrol car. During a recorded
conversation, Juarez told Osuna, “Fuck it, I hope they don’t trace [the gun] to the fuckin’
shooting.”
       The next day, April 9, 2011, Honeycutt informed California Highway Patrolman
Brian Caporrimo, who was investigating the April 6th freeway shooting, that Juarez had
been arrested with a .9 millimeter handgun and made recorded statements referencing a
recent shooting. Based on that information, Caporrimo prepared a photographic lineup
with Juarez’s picture. On April 12, Caporrimo showed Martinez and Avila the
photographic lineup. They both identified Juarez as the driver of the black car.
       On April 13, 2011, the prosecution filed an information arising out of Juarez’s
April 8th arrest charging him with a single count of being a felon in possession of a
firearm. Approximately three weeks later, a ballistics expert completed tests indicating
that the bullets recovered from Martinez’s car were discharged from the .9 millimeter
handgun at issue in Juarez’s gun possession case.
       The preliminary hearing on Juarez’s gun possession charge was held on May 11,
2011; Juarez pleaded guilty to the charge in July of 2011. Approximately two months
later, on September 6, 2011, prosecutors filed an information charging Juarez with two
counts of attempted murder (§ 664/187, subd. (a)) in connection with the April 6th
freeway shooting.

       B. Proceedings in the Trial Court
       Juarez filed a motion to dismiss the information arguing that the attempted murder
charges were barred under Penal Code section 654’s prohibition against multiple
prosecutions for offenses committed within a single course of conduct. Juarez contended
that, under the “multiple prosecution” test articulated in Kellett v. Superior Court of
Sacramento (1966) 63 Cal.2d 822 (Kellett), the district attorney had a duty to join the
attempted murder charges in the gun possession proceeding as soon as it became aware
both offenses involved the same weapon. According to Juarez, the district attorney


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discovered Juarez’s firearm had been used in the freeway shooting in May of 2011, but
chose not to file the attempted murder charges until after Juarez pleaded guilty to the gun
possession charge.
       The trial court denied the motion, concluding that section 654’s prohibition on
multiple prosecutions was inapplicable because the gun possession charge stemmed from
an incident that occurred at a different time and in a different place than the attempted
murders. The jury convicted Juarez of both counts of attempted murder.


                                      DISCUSSION

       Juarez argues the trial court erred in denying his motion to dismiss the information
pursuant to Penal Code section 654. On appeal, we review the trial court’s factual
determinations under the “deferential substantial evidence test, viewing the evidence in
the light most favorable to the People.” (People v. Valli (2010) 187 Cal.App.4th 786, 794
(Valli) [reviewing a motion to dismiss pursuant to section 654’s bar on multiple
prosecutions].) However, we review de novo whether the trial court properly applied
section 654’s prohibition on multiple prosecutions. (Ibid.)
       Penal Code 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.”
       The language of the statute “addresses multiple punishment and multiple
prosecution.” (People v. Correa (2012) 54 Cal.4th 331, 336 (Correa).) “The separate
concerns have different purposes and different rules of prohibition.” (Valli, supra, 187
Cal.App.4th at p. 794.) 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 [disapproved of on other grounds in
Correa, supra 54 Cal.4th at p. 344].) “The multiple prosecution bar, set out in the last

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sentence of subdivision (a), is a ‘“procedural safeguard against harassment and is not
necessarily related to the punishment to be imposed. . . .” [Citation.]’” (Correa, supra,
54 Cal.4th at p. 336.) This case involves the multiple prosecution aspect of section 654.
       In Kellett, supra, 63 Cal.2d 822, the California Supreme Court “construed section
654’s multiple prosecutions bar to apply whenever ‘the same act or course of conduct
plays a significant part’ in two or more offenses, assuming the prosecution in the first
case was or should have been aware of all the offenses.” (People v. Homick (2012) 55
Cal.4th 816, 841.) The Court explained that “[f]ailure 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., emphasis added.) “‘The Kellett rule, while seeking to prevent
harassment of defendants, [is] bottomed in large part on a concern for avoiding needless
repetition of evidence, and for conserving the resources and time of both the state and the
defendant.’ [Citations.] Thus the offenses must be transactionally related, and not just
joinable . . . . [Citation.]” (People v. Turner (1985) 171 Cal.App.3d 116, 129.) “Whether
Kellett applies must be determined on a case-by-case basis. [Citation.].” (Valli, supra,
187 Cal.App.4th at p. 797.)
       Juarez contends the prosecution’s failure to join the attempted murder charges in
the pending gun possession proceeding violated the Kellet rule because: (1) the
prosecution became aware of Juarez’s role in the attempted murders during the gun
possession proceeding; and (2) the two offenses arose from the same act or course of
conduct.
       The record reflects, and the prosecution does not dispute, it became aware of
Juarez’s role in the attempted murders during the course of the gun possession
proceeding. Prior to the preliminary hearing in the gun possession case, law
enforcement had confirmed through ballistic tests that Juarez’s gun had been used during
the freeway shooting. In addition, the victims of the attempted murders had previously
identified Juarez as the driver of the vehicle that had chased them onto the freeway.



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       We must therefore assess whether Juarez has demonstrated that “the same act or
course of conduct play[ed] a significant part” in both offenses. (Kellett, supra, 63 Cal.2d
at p. 827.) “Appellate courts have adopted two different tests to determine a course of
conduct for purposes of multiple prosecution.” (Valli, supra, 187 Cal.App.4th at p. 797.)
“One line of cases finds Kellett not applicable where the offenses are committed at
separate times and locations.” (Ibid. [citing People v. Douglas (1966) 246 Cal.App.2d
594; People v. Ward (1973) 30 Cal.App.3d 130; and People v. Cuevas (1996) 51
Cal.App.4th 620].)
       A second line of cases has applied an “evidentiary test” that considers “the totality
of the facts and whether separate proofs were required for the different offenses.” (Valli,
supra, 187 Cal.App.4th at p. 798 [citing People v. Flint (1975) 51 Cal.App.3d 333;
People v. Hurtado (1977) 67 Cal.App.3d 633 (Hurtado).) When applying the evidentiary
test, courts generally evaluate whether proving the two offenses requires substantially
distinct “evidentiary pictures” and “different witnesses” (Valli, supra, 187 Cal.App.4th at
p. 798; see also Hurtado, supra, 67 Cal.App.3d at p. 636), and whether the “‘evidence
needed to prove one offense necessarily supplies proof of the other.’” (Valli, supra, 187
Cal.App.4th at p. 799; Hurtado, supra, 67 Cal.App.3d at p. 636 [under the “evidentiary”
test, two offenses “must be prosecuted together” “if the evidence needed to prove one
offense necessarily supplies proof of the other”].) The test “requires more than a trivial
overlap of the evidence.” (Valli, supra, 187 Cal.App.4th at p. 799.) “Simply using facts
from the first prosecution in the subsequent prosecution does not trigger application of
Kellett.” (Ibid.)
       Juarez’s section 654 claim fails under either test. First, the attempted murders and
the gun possession offense occurred two days apart, and in different places. Specifically,
the attempted murders occurred on a freeway, at approximately 12:30 a.m. on April 6,
2011; the gun possession occurred in Leos’s apartment on the evening of April 8, 2011.
       Juarez’s claim fares no better under the “evidentiary test.” The record
demonstrates that proving the attempted murder charges and the gun possession charge
would require different witnesses and substantially distinct “evidentiary pictures.” (Valli,

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supra, 187 Cal.App.4th at p. 799.) To prove Juarez committed the attempted murder
offenses, the prosecution had to establish he was responsible for shooting at Martinez’s
vehicle during the early morning hours of April 6, 2011. At the attempted murder trial,
the prosecution relied primarily on the testimony of the victims (Martinez and Avila), the
CHP officers who investigated the shootings and bystanders who witnessed the
shootings. These witnesses’ testimony would have been of limited relevance in the gun
possession proceeding, which required the prosecution to show that Juarez was a felon
and that he possessed the .9 millimeter weapon recovered from Leos’s apartment on
April 8th. Had Juarez not pleaded guilty to this charge, the prosecution would have
likely relied primarily on documentation establishing Juarez was a felon and the
testimony of the officers who arrested Juarez in Leos’s apartment. Although evidence
that Juarez was found in possession of the weapon used to commit the freeway shootings
was introduced at his trial for the attempted murder, this mere overlap in evidence is not
sufficient to establish the applicability of the Kellett rule.
       Moreover, this is not a case where “the evidence needed to prove one offense
necessarily supplies proof of the other.” (Hurtado, supra, 67 Cal.App.3d at p. 636.) The
evidentiary showing needed to prove the attempted murder charges – that Juarez was
responsible for shooting at Martinez’s car on April 6th – would not be sufficient to show
he was a felon in possession on April 8, 2011. Likewise, the evidentiary showing
necessary to prove he was a felon in possession of a firearm on April 8th would not be
sufficient to prove he attempted to commit two murders on April 6th.
       Juarez, however, contends this case is indistinguishable from In re Grossi (1967)
248 Cal.App.2d 315 (Grossi). In Grossi, the defendant robbed a gas station with a .38
caliber revolver. At the time of the robbery, he was wearing a grey suit and driving a
Plymouth automobile. Several hours after the robbery, police officers observed
defendant commit a traffic violation while driving a Plymouth, and attempted to pull him
over. Defendant tried to evade the police, but was eventually apprehended. The officers
conducted a search of the defendant’s vehicle and recovered a .38 caliber revolver and a



                                                7
grey suit. A complaint was filed charging defendant with armed robbery and possession
of a concealable firearm by a felon. The same weapon was specified in each charge.
       On the day of trial, the victim of the robbery, who was the prosecution’s primary
witness, failed to appear. Although the prosecution requested a continuance, the trial
court denied the request and announced it intended to dismiss the matter for lack of
prosecution unless an immediate disposition could be made. (Grossi, supra, 248
Cal.App.2d at p. 318.) The prosecution “felt that some type of disposition was better
than having the matter dismissed” and agreed to dismiss the armed robbery count in
exchange for a guilty plea on the gun possession charge. (Ibid.) Defendant was
immediately sentenced on the possession charge. Shortly thereafter, the prosecutor’s
office re-filed the armed robbery charge. The defendant was subsequently convicted of
the armed robbery. In a habeas proceeding, he asserted that the re-filed charge violated
section 654’s prohibition on multiple prosecutions for related offenses.
       The court concluded the prosecution had failed to identify any evidence indicating
defendant had begun a “new course of conduct” between the “time of the robbery and the
time of the arrest [hours later].” (Grossi, supra, 248 Cal.App.2d at pp. 321-322.) The
court also found it “significan[t]” that the prosecution initially “joined the two counts in
the first prosecution.” (Id. at p. 322, fn. 8.) In the court’s view, this decision
demonstrated the prosecution also believed the acts were “‘connected . . . in their
commission.’” (Ibid.)
       This case has little in common with Grossi. Juarez’s gun possession charge did
not arise from an arrest made in close temporal proximity to the attempted murders;
instead, he was arrested two days later, while sitting in an apartment with an associate.
Moreover, in Grossi, the prosecution recognized the connection by initially charging the
offenses together; here the charges remained separate at all relevant times.
       Juarez essentially contends that section 654’s multiple prosecution prohibition
applies whenever a defendant is charged with illegally possessing a firearm that is later
discovered to have been used during a prior offense. The law does not support that
conclusion.

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                                    DISPOSITION

      The judgment is affirmed.




                                                ZELON, J.
We concur:




      PERLUSS, P. J.




      SEGAL, J.





        Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.

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