IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FOUR A113296

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1 Filed 4/25/08 P. v. Canada CA1/4 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule (a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule (b). This opinion has not been certified for publication or ordered published for purposes of rule IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FOUR THE PEOPLE, Plaintiff and Respondent, v. RONALD LEE CANADA, Defendant and Appellant. A (Solano County Super. Ct. No. VCR174244) Appellant Ronald Lee Canada challenges his conviction for assault with a firearm following two trials on multiple counts. Under the longstanding rule of Kellett v. Superior Court (1966) 63 Cal.2d 822, 827 (Kellett) and the plain language of Penal Code 1 section 654, ordinarily an acquittal bars a prosecutor from pursuing new charges in successive prosecutions based on the same acts and course of conduct. The questions framed by this appeal are whether a door for an amended information with new charges otherwise banned under Kellett and section 654 is nevertheless opened because (1) there was a mistrial on another count in the first trial and that count was properly subject to a second prosecution; and (2) the newly charged offense was submitted to the jury in the first trial under erroneous instructions that it was a lesser included offense of the acquitted crime (attempted murder), and the jury likewise failed to reach a verdict on that charge. We conclude 1 All statutory references are to the Penal Code. 1

2 that Kellett and section 654 precluded the subsequent prosecution for assault with a firearm and accordingly reverse the judgment as to that conviction only. I. BACKGROUND A. Procedural History Appellant underwent two trials on charges stemming from the same events. The first trial presented charges of attempted murder with several gun use enhancements; second degree robbery with the same enhancements; and possession of cocaine base. These charges were coupled with allegations of a prior serious felony conviction, one prior strike conviction and five prior prison term convictions. Over defense objection, the trial court additionally instructed the jury on assault with a firearm upon concluding that it was a lesser included offense of attempted murder under the circumstances of the case. The jury in the first trial acquitted appellant of attempted murder but failed to reach a verdict on the robbery and assault with a firearm charges, prompting the trial court to declare a mistrial on those counts. The jury did find appellant guilty of possession of cocaine base. Thereafter the district attorney filed a second amended information charging appellant with assault with a firearm and second degree robbery, with various enhancements, 2 and including allegations of a prior serious felony conviction, a prior strike conviction and four prior prison convictions. This time the jury convicted appellant as charged. The court sentenced appellant to a determinate sentence of 18 years and four months, plus an indeterminate term of 25 years to life, as follows: midterm of three years for the robbery conviction, doubled pursuant to the Three Strikes law to six 2 Specifically, as to both counts the information alleged enhancements for personal infliction of great bodily injury ( , subd. (a)) and personal use of a firearm ( , subd. (a)(1), , subd. (b)). The robbery count came with enhancements for discharging a firearm causing great bodily injury ( , subd. (d)) and personally discharging a firearm ( , subd. (c)). 2

3 years, plus an additional term of 25 years to life for the section , subdivision (d) enhancement (the subdivisions (b) and (c) enhancements were stayed); one year for assault with a firearm (one-third the midterm), doubled to two years; eight months (one-third the midterm) for possession of cocaine, doubled to one year, four months; five years for the prior serious felony conviction and four years for four prison priors. This appeal followed. B. The Crimes In the early morning of July 17, 2004, Damon Bishop was walking in Vallejo. Someone approached him with a gun. Bishop testified at trial that he only remembered that he might have given the person with the gun some money, and the encounter left him with a gunshot wound that required surgery and a three-week stay in the hospital. Bishop did not remember identifying the shooter to the police as Weasel, telling the police he could probably identify the shooter from a lineup, or describing the shooter in particulars that matched appellant s appearance. Bishop said he had heard of a man called Weasel and acknowledged he knew appellant as Weasel. Several days after the incident, Bishop identified appellant in a photographic lineup as the person who robbed and shot him. Bishop also told Officer Tribble that Weasel shot him and described the perpetrator. Several hours before the shooting, Officer Tribble had seen appellant in the area and saw the word Weasel tattooed on his chest in block letters. As well, Bishop s uncle, Bennie Bishop, told an officer that he saw appellant shoot his nephew. II. DISCUSSION A. Introduction Although the trial court acknowledged that assault with a firearm is not a lesser included offense of attempted murder because the latter crime can be accomplished without the use of a firearm, nevertheless it concluded that an instruction on assault with a firearm was consistent legally as well as factually 3

4 under the circumstances. In making the determination that assault with a firearm was a lesser included offense of attempted murder, the court necessarily considered the weapons enhancement alleged in the information. Under California law, the trial court may not consider enhancements as part of an accusatory pleading for the purpose of defining and instructing on lesser included offenses. (People v. Wolcott (1983) 34 Cal.3d 92, ; see also People v. Sloan (2007) 42 Cal.4th 110, ) The People concede that the first jury should not have been instructed on assault with a firearm. B. Analysis 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. More than 40 years ago, our Supreme Court reiterated that the ban on multiple prosecution announced in section 654 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. [Citation.] (Kellett, supra, 63 Cal.2d at p. 825.) Thus, [i]f needless harassment and the waste of public funds are to be avoided, some acts that are divisible for the purpose of punishment must be regarded as being too interrelated to permit their being prosecuted successively.... 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 4

5 if the initial proceedings culminate in either acquittal or conviction and sentence. 3 (Id. at p. 827, fn. omitted.) The preclusion by section 654 of multiple punishment for an act or course of criminal conduct has the same effect: [I]f an act or course of criminal conduct can be punished only once under section 654, either an acquittal or conviction and sentence under one penal statute will preclude subsequent prosecution in a separate proceeding under any other penal statute. (Kellett, supra, 63 Cal.2d at p. 828.) Here, the jury acquitted appellant of the charge of attempted murder. Under Kellett and section 654, a subsequent prosecution for the offense of assault with a firearm, growing out of the same act and course of conduct, is prohibited. The People argue nonetheless that following the partial mistrial, the district attorney was entitled to amend the complaint to include the charge of assault with a firearm. They rely on a trio of cases in which the prosecutor was allowed to file an amended information adding new charges after a total mistrial. (People v. Flowers (1971) 14 Cal.App.3d 1017, (Flowers) [amendment to add new charge after mistrial was within court s discretion; mistrial means status is same as if no trial had occurred and thus right of prosecutor to amend is same as at any other time after plea or demurrer is sustained]; People v. Brown (1973) 35 Cal.App.3d 317, 323 [where prosecutor adds new charges in amended information following total mistrial, Flowers, not Kellett, controls: there is no issue of multiple prosecutions because first trial resulted in mistrial, not acquittal or conviction; status of case is same as if there had been no trial; and thus defendant is not victim of harassment or successive prosecution]; People v. Williams (1997) 56 Cal.App.4th 927, 933 [following mistrial, 3 In Kellett, the defendant was creating a disturbance by standing on a public sidewalk with a pistol in his hand. He was charged with exhibiting a firearm in a threatening manner, a misdemeanor, and pleaded guilty to the same. Meanwhile, after the preliminary hearing on the misdemeanor, it became apparent that the defendant had been convicted of a felony. Thereafter he was charged with felony possession of a concealable weapon by a convicted felon. The defendant sought a writ of prohibition to prevent his felony trial; the Supreme Court granted the writ. (Id. at p. 824.) 5

6 district attorney properly may amend information to bring additional charges despite prohibition under section 654 against multiple punishment for single course of conduct].) In each of the above cases, there was a complete mistrial and thus the status of the case was the same as if there had never been a trial. Under these circumstances, the state is free to amend the information to allege any charge supported by the evidence presented at the preliminary hearing. In contrast, here the status of the case after the first trial was distinctly different than it would have been without any trial, because appellant was acquitted of attempted murder. The criterion for applying the ban on multiple prosecution is whether the same act or course of conduct plays a significant part with respect to each crime. (Kellett, supra, 63 Cal.2d at p. 827; People v. Flint (1975) 51 Cal.App.3d 333, 336.) Without question, the attempted murder charge involved the same acts and course of conduct inherent in the assault with a firearm charge. By virtue of the attempted murder acquittal, neither the state nor appellant stood in the same relation as they had before the first trial. Therefore, Kellett and section 654 barred a subsequent prosecution of new charges based on the same acts and conduct. Nor was amendment allowed because of the mistrial on the assault with a firearm charge in the first trial. Since the trial court never should have instructed the jury on that charge, the faux mistrial cannot provide a basis for an amended information and successive prosecution under Flowers. 6

7 III. DISPOSITION The conviction for assault with a firearm is reversed. In other respects, the judgment is affirmed. Reardon, Acting P.J. We concur: Sepulveda, J. Rivera, J. 7