APPEAL from a judgment of the Superior Court of Sacramento County, Emily E. Vasquez, Judge. Affirmed. (Super. Ct. Nos. 05F10244, 07F01123).
The opinion of the court was delivered by: Cantil-sakauye, J.
Filed 08/05/2010 (received for posting 8/19/10)
CERTIFIED FOR PARTIAL PUBLICATION*fn1
Defendant Kacey Valli's relief after the jury acquitted him, a "three striker," of murder, attempted murder and being a felon in possession of a firearm was short lived when, minutes after the acquittal, the prosecution arrested him for two felony counts of evading arrest. Evidence of the evading, but not the formal charges themselves, had previously been presented by the prosecution in the murder trial for which defendant was acquitted. To help prove the murder by showing defendant's consciousness of guilt, the prosecution introduced evidence that days after the shooting defendant once drove recklessly in fleeing from the police and later, as a passenger, successfully directed a driver to flee from the police. In the second trial, a jury convicted defendant of both counts of felony evading (Veh. Code, § 2800.2), based in part on his testimony in the murder trial in which he admitted the evading. The jury also found defendant had two prior serious felony convictions. (Pen. Code, §§ 667, subd. (d), 1170.12.) The court sentenced defendant to 50 years to life in prison.
On appeal, defendant contends the trial court erred in denying his pretrial motion to dismiss the evading charges. He contends the prosecution of those charges was barred by Penal Code section 654, as interpreted in Kellett v. Superior Court (1966) 63 Cal.2d 822 (Kellett). He further contends the trial court erred in denying his posttrial motion to dismiss on the ground of vindictive prosecution as he was charged with felony evading only after he testified in his defense. Alternatively, he contends that if the claim of vindictive prosecution was not timely raised, he was denied effective assistance of counsel.
We affirm. The subsequent prosecution for felony evading was not barred by Penal Code section 654. Although the People used evidence of the evading in the murder trial to show consciousness of guilt, the same act or course of conduct did not play a significant part in both the murder and the evading. There was no vindictive prosecution. The new charges were brought not in retaliation for the exercise of constitutional rights, but in response to the acquittal on the murder charge. An earlier acquittal is a legitimate prosecutorial consideration in charging.
On the night of November 19, 2005, an assailant with a rifle fired at Artemeo Ramirez. Ramirez escaped, but his father, who was in a nearby car, was killed. Ramirez told the police defendant was the shooter. The Evading
The next evening, November 20, Detective Jason Ramos observed a maroon-colored van associated with defendant; there were two females visible inside. He followed the van and decided to stop it. His partner activated the "wigwag lights" and siren in the unmarked vehicle. The van pulled over; as the officers approached, they saw two men rise up from the rear of the van.
Lorena Apel was driving the van. Defendant's younger sister, Concepcion Chitica, was in the front passenger seat; defendant's uncle, Richard Bahmiller, was in the middle seat, with defendant in the rear. When they saw the police lights and heard the siren, they became upset and argued about what to do. Apel pulled the van over and stopped.
The police observed one male passenger lunge towards the driver's seat. The other passengers got out of the van, and the van accelerated. The passengers told the police defendant was driving the van. Detective Ramos then pursued the van.
The van travelled at a high rate of speed, fishtailing; it appeared on the verge of losing control. The van went northbound on Highway 99 and then slowed. The driver got out on the center median, ran across the highway and climbed over the sound wall and escaped. During the pursuit, the van violated several traffic laws: it travelled at an unsafe speed, failed to yield, made unsafe lane changes, and failed to use a turn signal.
About one week later, on November 26, Detective Glenn Matsumoto observed that defendant was a passenger in a red compact car driven by a woman. A pursuit began, with a marked canine unit in the lead. The car stopped and defendant got out; he heard the police dog barking, got back into the car, and took off again.
Christina Aguila was driving the red car. She had been driving with defendant for several days prior to the incident. When she heard the sirens, the helicopter, and something over a loud speaker, she yelled at defendant. He asked her not to pull over, pleading with her not to stop. Aguila drove onto the freeway, driving over 80 miles per hour. She exited the freeway and ran several stop lights. She then returned to the freeway. The car stopped on the median; defendant got out and ran across the freeway. He was apprehended.
Defendant was charged with murder, attempted murder and being a felon in possession of a firearm. Aguila was charged with felony evading and being an accessory. The People sought to consolidate the cases; both defendant and Aguila opposed the motion. Aguila pled to felony evading.
At the murder trial, evidence of the evading was introduced to show defendant's consciousness of guilt. Detective Ramos and Apel testified about the November 20 pursuit. Aguila testified about the November 26 incident. In addition, several officers testified about the November 26 pursuit. A videotape of the pursuit, taken from a helicopter, was played for the jury.
Defendant testified in his defense. He admitted he decided to leave town once the police were looking for him. When the van was pulled over, defendant took off because Bahmiller told him to and he was inclined to get away. When he was with Aguila, he was afraid the officers would shoot him. When the pursuit began with sirens, defendant begged Aguila not to pull over. When she eventually did, he ran. Defendant admitted that they ran red lights.
The prosecutor argued to the jury that defendant's flight showed a consciousness of guilt. He quoted the following Scripture. "Proverbs 28: The wicked man flees when no one pursues, but the righteous is as bold as a lion."
The jury acquitted defendant on all counts and lesser charges.
The same day as the acquittal, defendant was arrested on two counts of felony evading. The amended complaint charged two counts of felony evading and being a felon in possession of a firearm. It alleged two strike priors.
The defense moved to dismiss under double jeopardy, Penal Code section 654, and Kellett, supra, 63 Cal.2d 822. Meanwhile, the information added a charge of carjacking with personal use of a firearm. The trial court granted the motion to dismiss only as to the felon in possession of a firearm charge. The motion was denied as to the remaining charges; the court found they were separate and distinct, based on different evidence and different facts. The People's awareness of defendant's subsequent offenses at the time of the first trial brought into question the economy of separate prosecutions, but did not raise the bar of double jeopardy.
At the evading trial, Apel and Aguila again testified under grants of immunity. In addition, Bahmiller and Chitica testified under grants of immunity. The officers involved in the two pursuits also testified. The helicopter videotape of the November 26 chase was played for the jury. Portions of defendant's ...