ORIGINAL PROCEEDING, William D. Johnson, Judge. Petition for writ of prohibition granted. (Super. Ct. No. SF116624A)
The opinion of the court was delivered by: Raye , J.
CERTIFIED FOR PUBLICATION
In late November 2010, the police stopped a Ford Mustang that had been carjacked; petitioner Octavio Barriga was a passenger in the car. After the car's owner told police Barriga was not one of his assailants, the People charged Barriga in a juvenile wardship proceeding with unlawfully taking or driving a vehicle and resisting a peace officer (among other charges), but did not charge him with carjacking.
In mid-December 2010, Barriga entered into a plea agreement in the juvenile case pursuant to which he admitted the charge of resisting a peace officer and the other charges related to that incident were dismissed.
In late December, the police obtained a warrant to search Barriga's cell phone, which they had seized from the stolen Mustang, and in the execution of that warrant discovered a series of text messages that incriminated Barriga in the carjacking. As a result, the People charged Barriga with the carjacking in criminal court. Barriga moved to dismiss the criminal case pursuant to the bar on multiple prosecutions in Penal Code section 654 (among other grounds), but the trial court denied that motion.
On Barriga's petition for a writ of prohibition, we conclude the trial court erred in denying his motion to dismiss the criminal case because there was no substantial evidence to support a finding that the People made reasonable efforts or acted with due diligence to discover the text messages on Barriga's cell phone. Absent an evidentiary showing of due diligence by the People, Barriga was entitled to protection against a second prosecution arising out of the taking of the Mustang. Accordingly, we will grant Barriga's petition.
FACTUAL AND PROCEDURAL BACKGROUND
Around 5:30 p.m. on November 28, 2010, Stockton police received a report of a carjacking at Laughlin Park. Upon learning the victim, Salvador Lopez, was being transported to the hospital, a police officer went there to speak with him. Lopez reported to the officer that three Hispanic males, around 17 or 18 years old, tried to tie him to a pole; attacked him when he resisted (one using a metal pipe); robbed him of four dollars, his cell phone, and his car key; and then drove off in his red Ford Mustang.
Around 9:30 p.m. that same day, Stockton Police Officer Thomas Heslin, who was aware of the reported carjacking, found himself driving behind a red Ford Mustang. Officer Heslin checked the license plate number and discovered the registration was expired, so he pulled the car over. There were five individuals in the car, three male and two female. The driver, Jorge Reynaga, admitted he was on probation. Officer Heslin had Reynaga get out of the Mustang and into the back of the patrol car. When the right front passenger, later identified as Barriga, started to get out of the Mustang, Officer Heslin told him to get back in the car. Barriga refused, so Officer Heslin placed him in the patrol car with Reynaga. Subsequently, the third male in the car, Alfredo P., also disobeyed Officer Heslin's instructions to remain in the Mustang, and Officer Heslin placed him in the patrol car as well.
Eventually, other officers arrived to assist Officer Heslin. At some point, the Mustang was identified as Lopez's. Additionally, it was determined that the license plates on the Mustang belonged to another vehicle.
Under the seat where Barriga had been, the police found a bag with 3.84 grams of methamphetamine. There was also a black Samsung cell phone on the floor of the car. Officer Heslin saw that the wallpaper (i.e., background photograph) on the cell phone was a picture of Barriga and three other males making gang signs with their hands and wearing red clothing. Barriga later identified the phone as his.
In a statement to Officer Heslin, Reynaga claimed he did not know the car was stolen. He said he had been over by the park when Barriga drove up in the Mustang with another male and two females, all of whom were very drunk. He decided to drive them around and had been driving the Mustang for only about 10 minutes when the police stopped him.
Later, at a field show up at the hospital, Lopez identified Reynaga and Alfredo P. as two of the perpetrators of the carjacking. Lopez was not able to identify Barriga as one of the perpetrators, however. In fact, according to the police report, Lopez was "certain" Barriga was not involved.
On November 29, a police officer was dispatched to an address on Barbados Court on a report of stolen license plates. At that time, the officer determined that the plates stolen from this address were the plates found on the stolen Mustang. The officer also determined that Barriga lived nearby on the same street.
Two days after the incident, on November 30, 2010, the Juvenile Division of the San Joaquin County District Attorney's Office filed a nine-count juvenile wardship petition against Barriga (case No. 62520), which included five counts pertaining to his conduct on November 28,*fn1 as follows: (1) unlawfully taking or driving Lopez's Mustang; (2) receiving stolen property (the Mustang); (3) resisting a peace officer; (4) selling or transporting methamphetamine; and (5) possessing methamphetamine. Each count but the third included a criminal street gang (street terrorism) enhancement allegation.
Barriga was arraigned on the petition on December 1. On December 16, he accepted a plea agreement, admitting the allegation of resisting a peace officer and one of the other four unrelated counts in exchange for dismissal of the remaining seven counts of ...