IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)
November 30, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
SONGKANE SOMSANUK, DEFENDANT AND APPELLANT.
(Super. Ct. No. 10F01798)
The opinion of the court was delivered by: Hull , J.
P. v. Somsanuk
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
After his motion to dismiss on the ground of multiple prosecutions (Pen. Code, § 654) was denied, defendant Songkane Somsanuk pleaded no contest to a wobbled felony, that is misdemeanor failure to stop at the scene of an injury accident (Veh. Code, § 20001, subd. (a)). In exchange, one count of driving without proof of financial responsibility (Veh. Code, § 16028, subd. (a)) was dismissed in the interest of justice. Imposition of sentence was suspended and defendant was placed on informal probation for three years. A 90-day disciplinary term was imposed as a probation condition and suspended pending successful completion of probation. Defendant was ordered to make restitution in an amount to be determined and pay a $100 restitution fine (Pen. Code, § 1202.4), a $100 restitution fine suspended unless probation is revoked (Pen. Code, § 1202.44), a $30 criminal conviction assessment (Gov. Code, § 70373), and a $40 court security fee (Pen. Code, § 1465.8). He obtained a certificate of probable cause.
On appeal, defendant contends the bar against multiple prosecutions mandated dismissal of the criminal complaint filed against him. We affirm the judgment.
FACTS AND PROCEEDINGS
On January 23, 2010, around 9:05 a.m., Bonnie and Victor M. were in their truck on southbound Franklin Boulevard. About 15 seconds after they stopped at a red signal for the left turn lane, defendant rear ended the truck. Following the collision, Victor M. made a left turn onto Whitelock Parkway and stopped to wait for defendant. Defendant did not stop. He continued to drive south on Franklin Boulevard. An eyewitness, Sarah G., wrote down defendant's license plate number and provided it to law enforcement. Before the collision, Sarah G. had seen defendant driving fast and weaving in and out of traffic.
The fire department arrived on the scene and medical personnel evaluated Bonnie and Victor M. Bonnie complained of pain to her entire back, and Victor complained of pain to his lower back. They refused medical treatment and indicated that they would seek medical care through their primary care physicians.
Five days later, on January 28, 2010, defendant telephoned the Elk Grove Police Department and provided a statement. Defendant said that while driving on Franklin Boulevard, approaching Whitelock Parkway, he had become distracted and had taken his eyes off the roadway for one second. When he looked back, he saw a truck in front of him. He was unable to stop. After colliding with the truck, he "panicked" and "didn't know what to do." He drove around the corner, parked his car, and walked to his girlfriend's house. He did not have insurance.
Following the accident, Bonnie and Victor M. endured constant back and neck pain. As of February 16, 2010, they were being treated by a chiropractor three times per week.
Defendant contends the trial court erred when it denied his motion to dismiss the complaint pursuant to Penal Code section 654. Specifically, he contends dismissal was required because he already had been convicted and sentenced for offenses that arose out of the same course of conduct--violation of the basic speed law (Veh. Code, § 22350), and failure to provide proof of insurance to a peace officer or collision investigator (Veh. Code, § 16028, subd. (c)). Defendant further urges that the prosecutor in the present case knew, or should have known, of the earlier and later sets of offenses and that the same act or course of conduct played a significant part in both sets of offenses.
The Attorney General counters that, given the summary manner in which the earlier set of offenses had been handled, there is no evidence that the People knew or should have known of the two sets of offenses in time to avoid a multiplicity issue. Thus, the later prosecution for failure to stop at the scene of an injury accident did not violate Penal Code section 654 or the rule announced in Kellett v. Superior Court (1966) 63 Cal.2d 822 (Kellett).
On the day of the incident, January 23, 2010, Elk Grove Police Officer Hanson prepared a collision report. Officer Hanson recommended that the report be forwarded to the detectives division for follow up.
Five days later, Officer Hanson cited defendant for unsafe speed (Veh. Code, § 22350) and failure to provide proof of insurance (Veh. Code, § 16028, subd. (c)). (Citation No. 164506EG.) The citation included a notice to appear on April 2, 2010, and evidently was sent to the traffic division of the Sacramento County Superior Court.
On February 16, 2010, Elk Grove Police Officer Bluette contacted Bonnie M. to determine the extent of her injuries. Thereafter, in a report, Officer Bluette expressed intent to send a warrant request to the Sacramento District Attorney's Office for prosecution of defendant for failure to stop at the accident scene (Veh. Code, § 20001, subd. (a)) and unsafe speed (Veh. Code, § 22350).
On February 24, 2010, the prior case (No. 2010037318) was filed in the superior court. The case referenced citation No. 164506EG and charged unsafe speed (Veh. Code, § 22350) and failure to provide written proof of insurance (Veh. Code, § 16028, subd. (c)).
On March 18, 2010, the district attorney's office filed the present felony complaint (No. 10F01798) charging failure to stop (Veh. Code, § 20001, subd. (a)) and failure to provide written proof of insurance (Veh. Code, § 16028, subd. (a)), and requested that a warrant issue for defendant's arrest.
On April 6, 2010, the superior court sent defendant a "proof of insurance notice" that requested payment in the amount of $239 if he had insurance at the time of the violation, or $934 if he did not have any insurance.
On May 1, 2010, a payment of $934 was submitted to the superior court, evidently on behalf of defendant.
On July 26, 2010, defendant was arraigned on the present felony criminal complaint.
An appellate court reviews "factual determinations under the deferential substantial evidence test, viewing the evidence in the light most favorable to the [judgment]. [Citation.] We review de novo the legal question of whether [Penal Code] section 654 applies. [Citation.]" (People v. Valli (2010) 187 Cal.App.4th 786, 794.)
Penal Code section 654, subdivision (a), states: "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."
Defendant's dismissal motion was based on the statute's prohibition of multiple prosecutions. This prohibition is separate and distinct from the statute's prohibition of multiple punishments, which is not here at issue.
The prohibition of multiple prosecutions is a procedural safeguard against needless harassment. (Neal v. State of California (1960) 55 Cal.2d 11, 21.) Through its encouragement of joinder, the prohibition also "avoids needless repetition of evidence and saves the state and the defendant time and money." (Kellett, supra, 63 Cal.2d at p. 826; accord, People v. Turner (1985) 171 Cal.App.3d 116, 128-129.)
In Kellett, the California Supreme Court addressed Penal Code section 654's prohibition of multiple prosecutions. There, police officers arrested the defendant while he was standing on a public sidewalk with a firearm in his hand. (Kellett, supra, 63 Cal.2d at p. 824.) He was charged with exhibiting a firearm in a threatening manner. (Ibid.) After a preliminary hearing, he was charged with possession of a firearm by a convicted felon. (Ibid.) Several months later, the defendant pleaded guilty to the exhibiting charge and was sentenced. (Ibid.) He later moved to dismiss the pending felony charge of possession by a felon. (Ibid.) The trial court denied the motion, and the defendant sought a writ of prohibition. (Ibid.) Upon issuing the writ, the Supreme Court held: "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 initial proceedings culminate in either acquittal or conviction and sentence." (Id. at p. 827.)
"Whether the rule of Kellett, supra, 63 Cal.2d 822, applies must be determined on a case-by-case basis." (People v. Britt (2004) 32 Cal.4th 944, 955.)
The California Supreme Court addressed the "actual knowledge" component of Kellett ("is . . . aware of more than one offense) in In re Dennis B. (1976) 18 Cal.3d 687 (Dennis B.). While attempting to change lanes, minor Dennis B. collided with a motorcycle and inflicted fatal injuries on the motorcyclist. (Id. at p. 690.) In Municipal Court, Dennis B. was charged with making an unsafe lane change. (Ibid.) The district attorney's office subpoenaed witnesses and stipulated that a judge pro tempore could hear the traffic matter. (Id. at p. 693.) Dennis B. was found guilty and fined $10. (Id. at p. 690.) Three weeks later, in juvenile court, Dennis B. was alleged to have committed vehicular manslaughter. The allegation was sustained. (Ibid.)
Dennis B. appealed on the ground that the juvenile proceeding subjected him to multiple punishment in violation of Penal Code section 654. (Dennis B., supra, 18 Cal.3d at pp. 691-692.) The Supreme Court concluded that the People did not have actual knowledge of the multiplicity problem, in part because the district attorney's office had a limited role in the prosecution of routine traffic offenses. (Id. at pp. 693-694.) The court explained: "[T]he police officer who issued the citation conducted the necessary investigation, arranged for witnesses to appear, and testified. In most instances . . . no deputy district attorney appeared for the People. Subpoenas requested by the investigating officer and stipulations to the acceptability of judges pro tempore were routinely approved by the nearest available deputy district attorney, who often signed several documents at the same time." (Id. at p. 694.) In these circumstances, the court concluded that the prosecution did not have actual knowledge. (Ibid.)
The Attorney General contends the present case is "remarkably similar to Dennis B." She concedes that the district attorney's office had some control over the manner in which cases were resolved in traffic court. For example, the district attorney set a policy that "[a]ll violations of . . . [Vehicle Code] sections 12500 [driving without license] and 14601.1 [driving while privilege suspended or revoked] will be deemed infractions when received by [Carol Miller Justice Center] (Traffic Court)." However, the Attorney General argues that the "actual prosecution of traffic matters seems to be handled in summary fashion by the officer who issues the citation and the Superior Court." Thus, on January 28, 2010, Officer Hanson issued a citation charging unsafe speed and failure to provide proof of insurance. The Superior Court sent a "Proof of Insurance Notice" to defendant, which included the same charges that had been listed in the citation. The notice was "signed" by a court clerk, not an employee of the district attorney's office. More specifically, the conformed copy in the appellate record contains a typed name in the box labeled "Clerk's Signature." Defendant submitted payment to the Superior Court in the same amount requested by the "Proof of Insurance Notice." The Attorney General deduces that "no one from the District Attorney's Office ever appeared for the People in the traffic matter."
Defendant counters that in this case, unlike Dennis B., there was "evidence that a particular prosecutor actually knew of both offenses in time to prevent a multiplicity of proceedings." (Dennis B., supra, 18 Cal.3d at p. 693.) In his view, Deputy District Attorney Kastanos was aware of all potential charges no later than March 2, 2010, when she declared in support of an arrest warrant that she had read the relevant police reports and had been in contact with the preparers of the reports. Defendant notes that he did not pay his fines for another two months.
But as Dennis B. explains, the "reference in Kellett to situations in which 'the prosecution is . . . aware of more than one offense' applies . . . only to intentional harassment, i.e., to cases in which a particular prosecutor has timely knowledge of two offenses but allows the multiple prosecution to proceed." (Dennis B., supra, 18 Cal.3d at p. 693; see also People v. Britt, supra, 32 Cal.4th at pp. 955-956.) Defendant does not contend that Deputy District Attorney Kastanos was one of the deputy district attorneys who had been assigned to the traffic court at the time of the offense. There is no indication that Kastanos knew, not only that an unsafe speed charge was possible, but also that the charge had been brought and was proceeding in the traffic court, such that Kastanos's commencement of this second prosecution, on a felony complaint, could be seen as intentional harassment. Indeed, as the Attorney General points out, had Kastanos known of the traffic court proceeding she would have had no reason to file the duplicative charge of failure to provide proof of insurance (Veh. Code, § 16028, subd. (a)) in the superior court.
This leaves the question of whether the prosecution "should have known of the two offenses, a question distinct from that of actual knowledge." (Dennis B., supra, 18 Cal.3d at p. 694.) The question requires consideration of various factors, including (1) the "disparity in gravity between the two charged offenses" (ibid.), (2) the "state's substantial interest in maintaining the summary nature of minor motor vehicle violation proceedings" (id. at p. 695), and (3) the "undeniable state interest in prosecuting serious misdemeanors and felonies" (id. at p. 696).
"When both offenses are serious crimes, the potential for harassment and waste is sufficiently strong that [Penal Code] section 654 imposes on prosecutors an administrative duty to insure that the charges are joined. Although occasional failure to coordinate prosecutorial efforts may result in a defendant guilty of a felony escaping proper punishment, such a risk 'is inherent in the preclusion of section 654 of multiple punishment.' [Citation.] However, when as in the present case, the original charge is merely a motor vehicle infraction, the balance substantially shifts. The potential harassment and expense faced by a defendant so charged is minimal: an infraction is not punishable by confinement [citation], and generally no stigma is attached thereto. . . . Whatever anxiety a defendant charged consecutively with a minor traffic offense and a felony or serious misdemeanor is likely to experience will result solely from the latter charge, not from the multiplicity of prosecutions." (Dennis B., supra, 18 Cal.3d at pp. 694-695, fns. omitted.)
In this case, the disparity in gravity supports the successive prosecution. This is so even though, as defendant points out, the disparity here is less than it had been in Dennis B.
"Moreover, the state's substantial interest in maintaining the summary nature of minor motor vehicle violation proceedings would be impaired by requiring the prosecution to ascertain for each infraction the possibility of further criminal proceedings. The chief reason for classifying some prohibited acts as infractions is to facilitate their swift disposition. [Citation.] Unconstrained by the more stringent procedural requirements of a major criminal trial, municipal courts and prosecutors are free to develop innovative procedures to expedite traffic cases. . . . This type of flexibility benefits all parties: defendants gain a swift and inexpensive disposition of their cases without risk of major penalties; and the prosecution, the court system, and ultimately the public benefit because judicial and law enforcement resources are freed to concentrate on serious criminal behavior. It is obvious that many innovations in court procedure would be jeopardized if district attorneys were charged with the responsibility of combing through 3 million infractions each year to find those few that might additionally involve more serious offenses." (Dennis B., supra, 18 Cal.3d at p. 695, italics added.)
For the reasons stated in Dennis B., we decline to hold that the two deputy district attorneys assigned to traffic court had the responsibility to discover that this case might additionally involve a more serious offense. Nor do we hold that a felony prosecutor, such as Deputy District Attorney Kastanos, had the responsibility to monitor the flow of cases through the traffic court. We have already rejected defendant's contention that Kastanos had actual knowledge of the traffic court proceeding.
Dennis B. recognized that "[t]here is an undeniable state interest in prosecuting serious misdemeanors and felonies." (Dennis B., supra, 18 Cal.3d at p. 696.) The fact that Dennis B. involved manslaughter, whereas the present case involves failure to stop at an injury accident, does not require this court to minimize or ignore the state interest in prosecuting defendant's crime. That interest would not be well served by a holding that defendant's payment of a traffic ticket for unsafe speed and no insurance relieved him of responsibility for failure to stop at the scene of the injury accident.
Finally, in this case, there is no dispute that the past and present offenses arouse from the same course of conduct.
The judgment is affirmed.
We concur: NICHOLSON , Acting P. J. HOCH , J.
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