Aslam v. Super. Ct. ( 2019 )


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  • Filed 10/9/19 Modified and Certified for Publication 11/8/19 (order attached)
    IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
    FIRST APPELLATE DISTRICT
    DIVISION FOUR
    SAQIB ASLAM,
    Petitioner,
    v.
    THE SUPERIOR COURT OF THE CITY                                A156628
    AND COUNTY OF SAN FRANCISCO,
    (San Francisco City & County
    Respondent;                                        Super. Ct. No. 228069)
    THE PEOPLE,
    Real Party in Interest.
    A jury convicted defendant Saqib Aslam of offering a false document in violation
    of Penal Code1 section 115 but acquitted him of perjury under section 118. After trial,
    the trial court vacated the section 115 conviction on the ground that the prosecution
    should have charged defendant with violating a more specific statute, Vehicle Code
    section 20, and allowed the prosecution to amend the information to add that charge. We
    now decide whether the prosecution of defendant under the more specific statute violates
    double jeopardy protections or the statutory bar against successive prosecutions. On the
    facts here presented, we conclude it violates neither and will deny defendant’s petition for
    writ of prohibition or mandate.
    1
    Unless otherwise noted, all statutory references are to the Penal Code.
    1
    BACKGROUND
    In April 2016, the prosecution charged defendant with one count of offering a
    false document (§ 115, subd. (a)), and one count of perjury (§ 118, subd. (a)), both
    felonies. Both charges were based on defendant’s alleged submission of a Department of
    Motor Vehicles (DMV) “Request for Confidentiality” form, which falsely stated that
    defendant’s brothers were his children. A jury convicted defendant of offering a false
    document, but acquitted him of perjury.
    Following trial, defendant moved to vacate his section 115 conviction, arguing
    that under In re Williamson (1954) 
    43 Cal. 2d 651
    (Williamson), the prosecution was
    required to charge defendant under Vehicle Code section 20, a more specific statute that
    makes it a misdemeanor to knowingly make a false statement in a document filed with
    the DMV. (See People v. Murphy (2011) 
    52 Cal. 4th 81
    , 86 [“Under the Williamson rule,
    if a general statute includes the same conduct as a special statute, the court infers that the
    Legislature intended that conduct to be prosecuted exclusively under the special
    statute”].) The court agreed that Williamson applied and that the prosecution therefore
    should have charged defendant with violating Vehicle Code section 20. The court
    allowed the prosecution to add a count under Vehicle Code section 20 to the information,
    then vacated the section 115 conviction.2
    Defendant moved to dismiss the Vehicle Code section 20 count, arguing it was
    charged beyond the five-year limitations period in Vehicle Code section 40004. The trial
    court denied defendant’s motion. Defendant raised the same statute of limitations
    argument in a prior writ petition, which we denied. Defendant petitioned for review in
    the Supreme Court. The Supreme Court denied the petition for review, but did so
    “without prejudice to petitioner raising a claim pursuant to Kellett v. Superior Court
    (1966) 6[3] Cal.2d 822 [(Kellett)] in [the] superior court.”
    2
    Defendant did not contest the prosecution’s ability to amend the information to
    add the Vehicle Code section 20 count. Nor has defendant argued in this writ proceeding
    that the amendment was impermissible.
    2
    In the trial court, defendant moved to dismiss the Vehicle Code section 20 count.
    Defendant argued that the constitutional protection against double jeopardy prohibited
    prosecution under Vehicle Code section 20 because Vehicle Code section 20 is a lesser
    included offense of perjury, a crime for which he had already been acquitted. Defendant
    also argued that prosecution under Vehicle Code section 20 contravened the Supreme
    Court’s decision in Kellett, a case interpreting section 654’s prohibition against
    successive prosecutions of offenses. 
    (Kellett, supra
    , 63 Cal.2d at p. 827.) The trial court
    rejected both arguments and denied the motion.
    Defendant filed the instant petition for writ of prohibition or mandate, arguing, as
    he did in the trial court, that further prosecution of the Vehicle Code section 20 count
    violates both double jeopardy principles and section 654, as interpreted by Kellett. After
    receiving preliminary briefing from the parties, we issued an order to show cause.
    DISCUSSION
    I.   Double Jeopardy
    We begin with defendant’s argument that the constitutional protections against
    double jeopardy prohibit prosecution of the Vehicle Code section 20 count because it is a
    lesser included offense of perjury.
    The double jeopardy clauses of the United States and California Constitutions
    ensure a person shall not be placed twice “in jeopardy” for the same offense. (U.S.
    Const., 5th Amend; Cal. Const., art I, § 15.) As relevant to this case, the proscription
    against double jeopardy “protects persons from being consecutively charged with
    violation of the same law or violation of laws so related that conduct prohibited by one
    statute is necessarily included within conduct prohibited by the other.” (In re Dennis B.
    (1976) 
    18 Cal. 3d 687
    , 691.) Section 1023 codifies the prohibition against consecutively
    charging included offenses, stating: “When the defendant is convicted or acquitted or has
    been once placed in jeopardy upon an accusatory pleading, the conviction, acquittal, or
    jeopardy is a bar to another prosecution for the offense charged in such accusatory
    pleading, . . . or for an offense necessarily included therein, of which he might have been
    3
    convicted under that accusatory pleading.” (§ 1023, italics added; see also People v.
    Fields (1996) 
    13 Cal. 4th 289
    , 305–306 [explaining that section 1023 implements the
    “doctrine of included offenses”].)
    Defendant’s assertion that Vehicle Code section 20 is a lesser included offense of
    perjury is based on the so-called “accusatory pleading test.” The accusatory pleading test
    “looks to whether ‘ “ ‘the charging allegations of the accusatory pleading include
    language describing the offense in such a way that if committed as specified [some]
    lesser offense is necessarily committed.’ ” ’ ” (People v. Montoya (2004) 
    33 Cal. 4th 1031
    , 1035.) Defendant explains that in the original accusatory pleading, the prosecution
    charged him with perjury for making a false statement on a DMV “Request for
    Confidentiality” form. This same conduct served as the basis for the subsequent Vehicle
    Code section 20 count. Based on the language setting forth the charges against him,
    defendant contends the newer Vehicle Code section 20 count must be deemed included in
    the original perjury count.
    The flaw in defendant’s argument is that the accusatory pleading test does not
    apply to a double jeopardy analysis. Rather, the “appropriate yardstick” for determining
    if an offense is included in another for double jeopardy purposes is the “elements test,”
    which is based on a statutory comparison of the elements for both crimes. (People v.
    Scott (2000) 
    83 Cal. App. 4th 784
    , 795–796; see also People v. Spicer (2015)
    
    235 Cal. App. 4th 1359
    , 1371 [elements test, not accusatory pleading test, applies to
    double jeopardy analysis]; United States v. Dixon (1993) 
    509 U.S. 688
    , 696 [elements
    test, which “inquires whether each offense contains an element not contained in the
    other,” applicable to double jeopardy analysis].) Under the elements test, “if the statutory
    elements of the greater offense include all of the statutory elements of the lesser offense,
    the latter is necessarily included in the former.” (People v. Reed (2006) 
    38 Cal. 4th 1224
    ,
    1227.)
    As applied here, the elements test reveals that Vehicle Code section 20 is not an
    included offense of perjury because each offense, as defined by statute, contains an
    element the other does not. Section 118, subdivision (a) defines perjury as willfully
    4
    stating under oath or penalty of perjury any material matter which a person knows to be
    false. (§ 118, subd. (a).) Vehicle Code section 20 makes it a misdemeanor to knowingly
    make any false statement or knowingly conceal any material fact “in any document filed
    with the Department of Motor Vehicles.” (Veh. Code, § 20.) Based on these statutory
    definitions, the perjury statute requires a statement made under oath or penalty of perjury,
    but does not require that the statement be made in a document filed with the DMV.
    Vehicle Code section 20, by contrast, does not require that a statement be made under
    oath or penalty of perjury, but does require that the statement be provided to the DMV.
    For double jeopardy purposes, they are separate offenses.
    Defendant relies on People v. Story (1985) 
    168 Cal. App. 3d 849
    to support his
    argument that we should apply the accusatory pleading test. In Story, a defendant
    convicted of perjury argued on appeal that the trial court erred in failing to sua sponte
    instruct the jury on Vehicle Code section 20, which defendant claimed was a lesser
    included offense. (Id. at p. 854.) Applying the accusatory pleading test, the appellate
    court concluded that Vehicle Code section 20 was included in the perjury offense “in this
    case,” though ultimately the court found no error in the trial court’s failure to instruct on
    Vehicle Code section 20 because the evidence showed that, if guilty at all, the defendant
    committed the greater crime of perjury. (Ibid.)
    Defendant’s reliance on Story is misplaced because Story involved a different
    issue—a trial court’s sua sponte duty to instruct a jury on an uncharged crime. The
    accusatory pleading test is appropriate in that situation, as the test “arose to ensure that
    defendants receive notice before they can be convicted of an uncharged crime.” (People
    v. 
    Reed, supra
    , 38 Cal.4th at p. 1229.) But the test has little utility in double jeopardy
    cases such as this one where the issue is not lack of notice of an uncharged offense, but
    whether a charged offense is “necessarily included within conduct” prohibited by a
    previously charged offense. (In re Dennis 
    B., supra
    , 18 Cal.3d at p. 691.) “[T]he
    accusatory pleading test has nothing to do with double jeopardy principles or section
    1023, each of which applies when ‘a given crime, by definition, necessarily and at all
    5
    times is included within another one.’ ” (People v. 
    Scott, supra
    , 83 Cal.App.4th at
    p. 796.)
    Our conclusion is further supported by the Supreme Court’s decision in People v.
    
    Reed, supra
    , 
    38 Cal. 4th 1224
    where the Court declined to apply the accusatory pleading
    test to the judicially created rule that prohibits multiple convictions based on necessarily
    included offenses charged in the same case. (Id at p. 1227.) The court explained that a
    test designed to ensure notice of an uncharged offense “has no relevance to deciding
    whether a defendant may be convicted of multiple charged offenses.” (Id. at p. 1229.) “
    ‘[I]t makes no sense to look to the pleading, rather than just the legal elements, in
    deciding whether conviction of two charged offenses is proper. Concerns about notice
    are irrelevant when both offenses are separately charged.’ ” (Id. at pp. 1229–1230.) The
    Court’s reasoning applies with equal force to the double jeopardy challenge raised in this
    matter, which, like Reed, concerns whether a charged offense is included in a separately
    charged offense.
    In sum, prosecution of the Vehicle Code section 20 charge does not offend
    principles of double jeopardy.
    II.      Section 654 and Kellett
    Separate from his double jeopardy argument, defendant argues that prosecution
    under Vehicle Code section 20 contravenes section 654’s bar against successive
    prosecutions.
    Section 654 provides, in relevant part: “An acquittal or conviction and sentence
    under any one [provision of law] bars a prosecution for the same act or omission under
    any other.” (§ 654, subd. (a).) In interpreting section 654, the Supreme Court in Kellett
    stated that 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.” 
    (Kellett, supra
    , 63 Cal.2d at p. 827.) The Court explained
    6
    that the successive prosecution bar is designed to prevent the needless harassment of a
    defendant and the waste of resources: “If 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.”
    (Ibid.) Section 654 is distinct from the double jeopardy principles described above, in
    that section 654 bars prosecution of a later-charged offense even if it is not necessarily
    included in an earlier offense. (See 
    id. at p.
    825, fn. 2.)
    Defendant contends that section 654 and Kellett compel dismissal of the Vehicle
    Code section 20 count. Defendant explains he was prosecuted for perjury under section
    118 based on an allegedly false document provided to the DMV. After a jury acquitted
    him of perjury, the prosecution charged him with violating Vehicle Code section 20
    based on the same false document that formed the basis of the perjury count. According
    to defendant, “[g]iven that the initial proceedings culminated in an acquittal of the charge
    under P[enal] C[ode] section 118, the prosecution’s ‘failure to unite’ a V[ehicle] C[ode]
    section 20 charge with the felony charges prior to trial bars a subsequent prosecution
    under V[ehicle] C[ode] section 20. To authorize such a prosecution at this juncture
    would produce the very ‘needless harassment and the waste of public funds’ that Kellett
    prohibits.”
    Defendant’s argument ignores that he was prosecuted for a second offense—
    offering a false document in violation of section 115. Prosecution of that offense did not
    implicate section 654 and Kellett because it did not “culminate in either acquittal or
    conviction and sentence.” 
    (Kellett, supra
    , 63 Cal.2d at p. 827.) Petitioner certainly was
    not acquitted of violating section 115, as a jury convicted him of that offense before the
    trial court vacated the conviction under Williamson. (See People v. Monterroso (2004)
    
    34 Cal. 4th 743
    , 777 [acquittal requires disposition based upon a determination of the
    merits]; United States v. Scott (1978) 
    437 U.S. 82
    , 97 [acquittal requires resolution in
    defendant’s favor “ ‘of some or all of the factual elements of the offense charged’ ”].)
    And although a jury convicted defendant of violating section 115, the trial court never
    sentenced him. Since defendant was neither acquitted nor convicted and sentenced under
    7
    section 115, section 654 did not prohibit the prosecution from charging defendant with
    violating Vehicle Code section 20 to replace the section 115 count.
    The jury’s acquittal of defendant in a separately charged count for perjury did not
    affect the prosecution’s ability to prosecute defendant under Vehicle Code section 20. In
    People v. Tideman (1962) 
    57 Cal. 2d 574
    (Tideman), our Supreme Court explained that
    “[i]n a single criminal action (pleading any number of counts), no plea of guilty to, or
    order of dismissal or acquittal of, any separately pleaded offenses, included or otherwise,
    will bar the progress of that prosecution as to the other counts. The prosecution on such
    other counts may continue until each, on its own merits, has been severally and finally
    disposed of by bringing the defendant to conviction and sentence or to acquittal.” (Id. at
    p. 583.) Applying this canon to the case before it, the Court in Tideman concluded that
    double jeopardy principles did not bar the prosecution of a second charged crime after the
    defendant had pleaded guilty to the first crime charged in the same prosecution that arose
    from the same criminal act. (Ibid.) And although the Court was responding to
    Tideman’s double jeopardy argument, it extended that reasoning to its analysis under
    section 654, holding that there would be no statutory bar to prosecution of the second
    charged crime because “there has been but one prosecution; i.e., a single criminal action.”
    (Id. at p. 585.) Tideman compels us to conclude that the jury’s acquittal on the perjury
    charge does not bar the prosecution of the false document charge, which was charged
    initially as a violation of section 115 in the same prosecution, then replaced with a
    violation of Vehicle Code section 20 based on Williamson.
    To ignore Tideman and reach a contrary holding would create an anomalous result
    that is inconsistent with the purpose of section 654. Had the prosecution charged
    defendant at the outset only with filing a false document in violation of section 115, there
    is little dispute that the prosecution, facing an adverse Williamson ruling after trial, could
    have substituted in a Vehicle Code section 20 count without running afoul of section 654.
    That result should not change because the prosecution chose to join a charge for perjury,
    thereby furthering Kellett’s admonition that prosecutors should “unite” all offenses that
    are based on the “same act or course of conduct.” 
    (Kellett, supra
    , 63 Cal.2d at p. 827.)
    8
    The prosecution suffered the consequence of its Williamson violation when the trial court
    vacated the conviction on the felony section 115 count that was improperly charged. The
    prosecution’s effort to comply with Kellett by joining the perjury charge should not now
    be used as a sword to impose a second consequence that prevents the prosecution from
    proceeding on the Williamson-compliant misdemeanor charge. In arguing that
    prosecution of the Vehicle Code section 20 charge is now barred, defendant effectively
    seeks to extract a double benefit from a single Williamson violation.
    Although we have found no decision directly on point with this case, our
    conclusion finds support in cases holding that there was no section 654 violation in
    analogous circumstances. The result we reach is consistent with prior decisions allowing
    the prosecution to add new charges when the originally charged crimes had not
    culminated in either acquittal or a conviction and sentence. (See In re R.L. (2009)
    
    170 Cal. App. 4th 1339
    , 1342, fn. 2, 1344 [after juvenile admitted original charge of
    unlawfully possessing a “billy” club, section 654 did not preclude new charges for
    assault, vandalism, and burglary, since juvenile had not yet been sentenced on billy club
    charge]; People v. Brown (1973) 
    35 Cal. App. 3d 317
    , 323 [after mistrial declared on
    multiple charged sex offenses, section 654 did not bar prosecution from recharging the
    same offenses, plus two new counts for unlawful sexual intercourse].) Our conclusion is
    also consistent with decisions holding that an acquittal or conviction and sentence on
    certain counts does not prohibit the prosecution of other offenses charged in the same
    case that have not culminated in an acquittal or conviction and sentence. (See 
    Tideman, supra
    , 57 Cal.2d at p. 583; People v. Simmons (1978) 
    82 Cal. App. Supp. 3d 1
    , 4–5 [citing
    Tideman to conclude that acquittal of battery count did not bar retrial of count for
    annoying or molesting a child following jury’s inability to reach a verdict on that count].)
    Likewise, other cases have made clear that section 654’s “ ‘proscription against multiple
    prosecution does not apply where there has been but one prosecution, i.e., a single
    criminal action; it prohibits only a subsequent prosecution for the same act or omission,
    which, of course, means the filing and pressing of a new criminal action.’ ” (People v.
    Solis (2015) 
    232 Cal. App. 4th 1108
    , 1124, quoting People v. Seiterle (1963) 
    59 Cal. 2d 9
    703, 712.) Here, there was no “subsequent prosecution” within the meaning of section
    654 and Kellett, as the Vehicle Code section 20 charge was added by amendment to the
    original information.3
    The circumstances of this case are also distinguishable from decisions concluding
    that section 654 prohibits the prosecution from adding new charges after the offenses
    originally charged were dismissed based on insufficient evidence. (E.g. People v.
    Hamernik (2016) 1 Cal.App.5th 412, 428 [dismissal of count for possession of a
    controlled substance based on insufficient evidence precluded retrial for attempted
    possession]; Sanders v. Superior Court (1999) 
    76 Cal. App. 4th 609
    , 616–617 [appellate
    reversal on several counts of grand theft based on insufficient evidence precluded new
    charges for forgery and presenting a false or forged document].) These cases come
    within the ambit of section 654 and Kellett because a dismissal or reversal based on
    insufficient evidence is tantamount to an acquittal. (Sanders, at p. 616; accord People v.
    Hatch (2000) 
    22 Cal. 4th 260
    , 272 [“an appellate court’s ruling of legal insufficiency is
    functionally equivalent to an acquittal and precludes a retrial”].)4 Here, the section 115
    count was not dismissed for insufficient evidence. Rather, it was dismissed (following a
    conviction) based on a procedural error under Williamson. Such a dismissal is not the
    equivalent of an acquittal.
    3
    Kellett, by contrast, unquestionably involved a subsequent prosecution—a
    misdemeanor charge filed in municipal court on October 15, 1964, followed by a felony
    charge based on the same conduct filed in superior court on November 17, 1964.
    
    (Kellett, supra
    , 63 Cal.2d at p. 824.)
    4
    For similar reasons, the Supreme Court’s decision in People v. Goolsby (2015)
    
    62 Cal. 4th 360
    , is not dispositive. In Goolsby, the Supreme Court held that reversal of a
    conviction for arson of an inhabited structure based on insufficient evidence did not
    preclude a new trial for arson of property, since the defendant was effectively charged
    with arson of property when the court instructed the jury on that offense. (Id. at pp. 366–
    367.) Although the Court in Goolsby concluded, as we do, that further prosecution did
    not violate section 654 and Kellett, Goolsby is not on point because the dismissal there
    was based on insufficient evidence, while the dismissal here was based on a procedural
    defect that did not amount to an acquittal.
    10
    Our conclusion that section 654 and Kellett do not require dismissal of the Vehicle
    Code section 20 count on these facts is also consistent with section 654’s purposes of
    preventing the “needless harassment” of a defendant and the “waste of public funds.”
    
    (Kellett, supra
    , 63 Cal.2d at p. 827.) The prosecution’s erroneous decision to charge a
    general statute instead of a specific one in contravention of Williamson can be (and often
    is) corrected in the early stages of a case. (E.g. People v. Jenkins (1980) 
    28 Cal. 3d 494
    ,
    498–499 [Williamson issue raised in motion to dismiss information]; Hudson v. Superior
    Court (2017) 7 Cal.App.5th 999, 1006 [Williamson issue raised in section 995 motion to
    set aside indictment].) Indeed, defendant could have raised the Williamson issue well
    before trial instead of waiting until after trial. A defendant’s ability to identify and
    correct a Williamson issue early in a case mitigates the risk that the prosecution will
    harass a defendant and waste public resources by charging him with the wrong offense.
    To conclude, neither double jeopardy principles nor section 654 bar the
    prosecution from prosecuting defendant for violating Vehicle Code section 20.
    DISPOSITION
    The petition for writ of prohibition and/or mandate is denied. The stay issued by
    this court on March 14, 2019 shall expire as soon as this decision is final.
    _________________________
    BROWN, J.
    WE CONCUR:
    _________________________
    POLLAK, P. J.
    _________________________
    STREETER, J.
    Aslam v. Superior Court for the City and County of San Francisco (A156628)
    11
    POLLAK, P. J.
    I concur in both the analysis and the conclusion reached in the lead opinion.
    Nonetheless, the conclusion is troubling. Defendant now faces trial on a misdemeanor
    charge based on the same conduct for which he was found not guilty of committing a
    felony offense. The logic of the decisions cited in the lead opinion compels this result,
    and I do not necessarily quarrel with the reasoning of those decisions. The problem, it
    seems to me, arises from the fact that defendant’s contention that under In re Williamson
    (1954) 
    43 Cal. 2d 651
    , for his alleged misconduct he could be charged only with violating
    Vehicle Code section 20 and not Penal Code section 115, was not raised until after a jury
    had found him guilty of violating Penal Code section 115. Had the contention been made
    before trial, when it was fully ripe for consideration and decision, this dilemma would
    never have arisen. Had the issue been raised pretrial and defendant correctly charged and
    tried for violating Vehicle Code section 20, at most there would have been seemingly
    inconsistent verdicts, as there in fact were under the charges that were tried. In that case
    the conviction would have been upheld under well-recognized principles. (E.g., People
    v. Avila (2006) 
    38 Cal. 4th 491
    , 600.) But defendant would not have been forced to trial
    for the same conduct underlying a more serious charge on which he had already been
    acquitted.
    In the writ proceedings before us, no party has questioned the correctness of the
    trial court’s order setting aside the guilty verdict of violating Penal Code section 115 on
    the ground that defendant forfeited the contention by failing to assert it prior to trial.
    While subsequent decisions applying In re Williamson may not support such a contention
    (see, e.g., People v. Murphy (2011) 
    52 Cal. 4th 81
    ), I am not aware that the issue has ever
    been litigated and there may well be sound reasons for judicially adopting such a rule.
    The issue turns solely on the terms of the statutory provisions in question and therefore is
    susceptible to determination by a pretrial motion. The defendant should not get two bites
    at the apple by withholding the contention until learning the outcome of trial on the
    incorrectly charged offense. However, the question is not now before us. We are in no
    1
    position to address the issue in the current posture of this case, but I suggest the question
    is worthy of consideration if presented in future cases.
    _________________________
    POLLAK, P. J.
    I CONCUR:
    _________________________
    STREETER, J.
    Aslam v. Superior Court for the City and County of San Francisco—concurrence (A156628)
    2
    Filed 11/8/19
    CERTIFIED FOR PUBLICATION
    IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
    FIRST APPELLATE DISTRICT
    DIVISION FOUR
    SAQIB ASLAM,                                      A156628
    Petitioner,
    (San Francisco City & County
    v.                                                Super. Ct. No. 228069)
    THE SUPERIOR COURT OF THE CITY
    AND COUNTY OF SAN FRANCISCO,                      ORDER MODIFYING OPINION
    AND DENYING REHEARING,
    Respondent;                              CERTIFYING OPINION FOR
    THE PEOPLE,                                       PUBLICATION;
    Real Party in Interest.                  NO CHANGE IN JUDGMENT
    THE COURT:
    It is ordered that the opinion filed herein on October 9, 2019, be modified as
    follows:
    On page 9, at the end of the first paragraph, after the sentence ending “a single
    Williamson violation,” add as footnote 3 the following footnote, which will require
    renumbering all subsequent footnotes:
    Defendant asserts the prosecution “intentionally” charged section 115
    3
    instead of Vehicle Code section 20, and suggests the prosecution knew from the
    outset that Williamson barred the section 115 charge. In our view, an equally (if
    not more) reasonable reading of the record is that the charging prosecutor
    believed, incorrectly, that charging section 115 was proper under Williamson. But
    even assuming petitioner is correct, we are aware of no authority holding or even
    suggesting that an “intentional” Williamson violation entitles a defendant to a
    complete dismissal, rather than prosecution under the Williamson-compliant
    offense.
    There is no change in judgment.
    1
    The petition for rehearing is denied. Notably, the petition raises several arguments
    that were not raised either in the writ petition or with the trial court. (See Midland
    Pacific Building Corp. v. King (2007) 
    157 Cal. App. 4th 264
    , 276 [“It is much too late to
    raise an issue for the first time in a petition for rehearing.”].)
    The opinion in the above-entitled matter was not certified for publication in the
    Official Reports. For good cause it now appears that the opinion should be published in
    the Official Reports and it is so ordered.
    Date: _____________________               ________________________________ P. J.
    2
    Trial Court: San Francisco City & County Superior Court
    Trial Judge: Hon. Brendan Conroy
    Counsel:
    Riordan & Horgan, Dennis P. Riordan, Donald M. Horgan; Boersch & Shapiro, Boersch
    & Illovsky, Matthew Dirkes, for Petitioner.
    No appearance for Respondent.
    Xavier Becerra, Attorney General, Catherine Rivlin, Deputy Attorney General for Real
    Party in Interest.
    3