People v. Clements CA2/7 ( 2021 )

Filed 9/21/21 P. v. Clements CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B303026
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. SA097039)
v.
ANDREW CLEMENTS,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Upinder S. Kalra, Judge. Affirmed.
Correen Ferrentino, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra and Rob Bonta, Attorneys General, Lance
E. Winters and Susan Sullivan Pithey, Assistant Attorneys
General, Michael C. Keller and Wyatt E. Bloomfield, Deputy
Attorneys General, for Plaintiff and Respondent.
__________________________
1
Andrew Clements appeals from a judgment entered after
the jury convicted him of possession of cocaine for sale and
misdemeanor driving with a suspended or revoked license. On
appeal, Clements contends the trial court erred in denying his
motion to dismiss based on the prohibition against multiple
prosecutions under Penal Code section 654.1 He argues
prosecution of the misdemeanor and felony charges was barred
by the prior dismissal of two traffic infractions arising from the
same traffic stop. Although Clements was sworn in to testify
during the trial on the traffic infractions, the dismissal in that
proceeding was not on the merits and did not constitute an
acquittal. Accordingly, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Incident
On November 14, 2017 Los Angeles County Sheriff’s
Sergeant Lance Eddins was on patrol in West Hollywood. At
approximately 3:00 a.m. Sergeant Eddins pulled over Clements’s
vehicle after it ran a red light at the intersection of Santa Monica
and San Vicente Boulevards. When Sergeant Eddins approached
the vehicle and asked for Clements’s license and registration,
Clements stated he did not have his license and it was
suspended.
Los Angeles County Sheriff’s Deputies Grehtel Barraza and
Stafford Faulkner stopped to assist Sergeant Eddins with the
traffic stop. They handcuffed Clements and placed him in the
1 All further undesignated statutory references are to the
Penal Code.
2
back of their patrol car. Deputies Barraza and Faulkner ran
Clements’s driver’s license and confirmed it was suspended and
that the vehicle was registered to Clements. Deputy Faulkner
arrested Clements for driving with a suspended license.
Clements was issued a traffic ticket for failure to stop at a red
light (Veh. Code, § 21453, subd. (a)) and failure to provide
evidence of financial responsibility (Id., § 16028, subd. (a)).
Before the vehicle was towed away to be impounded,
Deputy Faulkner conducted an inventory search of the vehicle
and found a backpack on the passenger seat. The backpack
contained scales, pill bottles, plastic baggies, bindles, cocaine,
cash, and a cell phone. Clements denied owning the bag and the
items inside it.
B. The Traffic Infractions Trial
On September 4, 2018 Clements appeared in the Los
Angeles Superior Court Traffic Division for a trial in case number
AA612412 on the two traffic infractions. The minute order for
the trial states, “The Defendant is sworn to testify. [¶] People
are not ready to proceed; Officer is not present to testify.” Both
infractions were then “[d]ismissed [a]fter [c]ourt [t]rial.”
C. The Trial Court Proceedings
On December 15, 2018 the People filed an information
charging Clements with possession of cocaine for sale (Health &
Saf. Code, § 11351) and misdemeanor driving with a suspended
or revoked license (Veh. Code, § 14601.1, subd. (a)). Clements
pleaded not guilty.
Clements filed a pretrial motion to dismiss pursuant to
section 654 and Kellett v. Superior Court (1996) 63 Cal.2d 8223
(Kellett) asserting that prosecution was barred by dismissal of the
traffic infraction charges, which arose from the same course of
conduct as the criminal charges. Clements argued the infractions
and license and drug offenses all occurred during the same traffic
stop on November 14, 2017, and thus the District Attorney’s
office knew or should have known about the infractions.
The trial court denied the motion to dismiss. The court
found there was no evidence the District Attorney’s office was
involved in the traffic case and the multiple prosecutions resulted
from Clements’s failure to “notify the People or to have the action
consolidated.” The court reasoned dismissal was not appropriate
given the difference in the gravity of the charges and California’s
“substantial interest[s] in maintaining the summary nature of
the minor motor vehicle [offenses and] . . . prosecuting serious
misdemeanors as well as felonies.”
The case proceeded to trial, and the jury found Clements
guilty on both counts. Clements was sentenced to three years’
formal probation under the condition he pay a fine, serve 30 days
in county jail, and perform 30 days of community labor.
Clements timely appealed.
DISCUSSION
A. Standard of Review
We review de novo the legal question whether section 654
applies to bar a prosecution. (People v. Ochoa (2016)
248 Cal.App.4th 15, 29; Hill v. City of Long Beach (1995)
33 Cal.App.4th 1684, 1687.) “‘[T]he totality of the facts [are]
examined in light of the legislative goals of . . . ‘preventing
harassment of the defendant and the waste of public resources
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through relitigation of issues.’” (Short v. Superior Court (2019)
42 Cal.App.5th 905, 912; accord, People v. Schnittspan (1967)
250 Cal.App.2d 951, 952.)
B. Section 654’s Prohibition Against Multiple Prosecutions
Section 654, subdivision (a), bars both multiple punishment
and multiple prosecutions. (Short v. Superior Court, supra,
42 Cal.App.5th at p. 911; People v. Flint (1975) 51 Cal.App.3d
333, 336.) As to multiple prosecutions, section 654 provides, “An
acquittal or conviction and sentence under any one [statutory
provision] bars a prosecution for the same act or omission under
any other.” In Kellett, supra, 63 Cal.2d at page 827, the Supreme
Court explained as to section 654, “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.” (Accord, Short, at pp. 911-912.)
Courts have adopted a two-part test to determine whether
a successive prosecution violates section 654’s multiple
prosecution prohibition. (People v. Sanchez (2020) 49
Cal.App.5th 961, 986; People v. Hendrix (2018) 20 Cal.App.5th
457, 464.) The first prong asks “whether ‘the same act or course
of conduct play[ed] a significant part’ in both offenses.” (Hendrix,
at p. 464; accord, Kellett, supra, 63 Cal.2d at p. 827.) The second
prong asks “whether on the record herein the prosecution was or
should have been ‘aware of more than one offense.’” (Davis v.
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Dennis B. (1976) 18 Cal.3d 687, 692-693; accord, Hendrix, at p.
464.)
C. The Trial Court Did Not Err in Denying Clements’s Motion
To Dismiss Because Clements Was Not Acquitted of the
Traffic Infractions
Clements contends the trial court erred in its application of
the two-part test under section 654 because the infraction,
misdemeanor, and felony charges arose from the same course of
conduct and the District Attorney’s office should have been aware
of the infraction charges. We do not reach the two-part test
applied in People v. Sanchez, supra, 49 Cal.App.5th at page 986
and by other courts because Clements has not met his burden to
show he was acquitted in the traffic proceeding. The trial court
therefore properly denied Clements’s motion to dismiss.
Clements argues his prosecution was barred because
jeopardy attached after he was sworn in during the traffic
proceeding. “[J]eopardy does not attach . . . until a defendant is
‘put to trial before the trier of facts, whether the trier be a jury or
a judge.’” (Serfass v. U.S. (1975) 420 U.S. 377, 388; accord, U.S.
v. Lusby (2020) 972 F.3d 1032, 1037.) In a court trial, jeopardy
generally attaches once the first witness is sworn in. (People v.
Upshaw (1974) 13 Cal.3d 29, 32; accord, Richard M. v. Superior
Court (1971) 4 Cal.3d 370, 376.) As the Supreme Court explained
in Upshaw, “A court trial is ‘entered upon’ when the first witness
is sworn. [Citations.] Since the first witness was sworn and
began to testify, under the foregoing rules it is clear that
defendant Upshaw was placed in jeopardy.” (Upshaw, at pp. 32-
33.)
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The Upshaw court did not address whether jeopardy would
attach where, as here, the first witness was sworn but did not
begin to testify. The federal courts that have addressed this issue
are divided. (See, e.g., Gonzales v. Justices of Mun. Court of
Boston (2005) 420 F.3d 5, 9-10 [jeopardy did not attach where the
court made a finding the defendant was not guilty after a defense
witness testified, but the witness had no knowledge relevant to
the charged offense and only testified to avoid a dismissal
without prejudice for failure to prosecute]; contra, Goolsby v.
Hutto (4th Cir. 1982) 691 F.2d 199, 202 [“We do not agree with
the distinction the Commonwealth seeks to make that if the
witness had testified at all, then jeopardy would have attached,
but since the witness did not testify, although sworn, jeopardy
did not attach.”].)
Moreover, even if jeopardy had attached once Clements was
sworn in, it does not follow that Clements cannot be prosecuted
for other offenses because “[t]he shield of [section] 654 does not
follow from mere jeopardy.” (People v. Tideman (1962) 57 Cal.2d
574, 587; accord, People v. Polowicz (1992) 5 Cal.App.4th 1082,
1088.) Although we have found no published authority
addressing section 654’s multiple prosecution prohibition where
the defendant was sworn in but not acquitted (or convicted), the
Supreme Court has consistently focused on the necessity of an
acquittal or conviction and sentence for the prohibition to apply.
As the Supreme Court explained in Tideman, at page 585, “Until
sentence was pronounced . . . there had been neither an acquittal
of either charge nor a ‘conviction and sentence’ under either,” so
multiple prosecution concerns under section 654 were irrelevant.
(Accord, Aslam v. Superior Court (2019) 41 Cal.App.5th 1029,
1037, [“[A]lthough a jury convicted defendant . . . the trial court
7
never sentenced him. Since defendant was neither acquitted nor
convicted and sentenced . . . section 654 did not prohibit the
prosecution from charging defendant . . . .”].) Thus, Clements
had the burden to show he was acquitted, not merely that
jeopardy attached.
Clements contends dismissal of the traffic infractions
constituted an acquittal. However, “a defendant is acquitted only
when ‘the ruling of the judge, whatever its label, actually
represents a resolution [in the defendant’s favor], correct or not,
of some or all of the factual elements of the offense
charged.’” (United States. v. Scott (1978) 437 U.S. 82, 97; accord,
People v. Monterroso (2004) 34 Cal.4th 743, 777; Agresti v.
Department of Motor Vehicles (1992) 5 Cal.App.4th 599, 607
(Agresti) [“The term ‘acquittal’ has consistently been held to refer
to a disposition of a criminal case following an adjudication on
the merits.”].)
In People v. Monterroso, supra, 34 Cal.4th at page 777, the
defendant argued as to the penalty phase of a death penalty trial
that the trial court erred in admitting evidence of a prior assault
and battery where the misdemeanor charges had been dismissed
“in furtherance of justice” under section 1385. The defendant
argued the admission of evidence of the offenses violated
section 190.3, “which bars the admission of evidence at the
penalty phase of prior criminal activity ‘for which the defendant
was prosecuted and acquitted.’” (Ibid.) The Supreme Court
concluded the dismissal under section 1385 was not the
equivalent of an acquittal because “[a]n acquittal requires more
than a bar to further proceedings; it requires ‘“a disposition based
upon a determination of the merits.”’” (Ibid.)
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Similarly, in Agresti, supra, 5 Cal.App.4th at pages 603 to
604, the Court of Appeal concluded the dismissal of criminal
charges for driving under the influence did not constitute an
acquittal under Vehicle Code section 13353.2, which allows a
driver’s license to be reinstated if the driver is acquitted of the
underlying criminal charge. The court reasoned, “The term
‘acquittal’ has consistently been held to refer to a disposition of a
criminal case following an adjudication on the merits” and
because the record did not indicate why the criminal charges had
been dismissed, there was no disposition on the merits. (Id. at
p. 604; see Mosier v. Department of Motor Vehicles (1993)
18 Cal.App.4th 420, 422 [dismissal of criminal charges pursuant
to a negotiated plea was not a resolution on the merits and
therefore did not constitute an acquittal for purposes of Vehicle
Code section 13353.2].)
Here, as in Agresti, the minute order only shows that the
infractions were dismissed after a court trial, without any
indication of the nature of the dismissals other than that the
officer failed to appear at trial and the People were therefore not
ready to proceed. Although the reference to a “[c]ourt [t]rial”
could mean the court adjudicated the charges (even though no
witnesses testified), the statement in the minute order that the
charges were “[d]ismissed” suggests otherwise by failing to state
a judgment of acquittal was entered in favor of Clements. As
section 1118 provides, in a court trial the court “shall order the
entry of a judgment of acquittal . . . after the evidence of the
prosecution has been closed if the court, upon weighing the
evidence then before it, finds the defendant not guilty of such
offense.” Because Clements did not meet his burden to show
9
there was an adjudication on the merits, section 654’s multiple
prosecution prohibition does not apply.
DISPOSITION
The judgment of conviction is affirmed.
FEUER, J.
We concur:
PERLUSS, P. J.
SEGAL, J.
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