Kellett Rule Outline
Originally written by Jeff Rubin in April, 2012
Updated in June of 2017
See Also, P&A June 26, 2017 on Kellett Rule

IMPORTANT DISCLAIMER:  This material does not necessarily reflect all new developments in case law as it has not been updates since June 26, 2017.  

TABLE OF CONTENTS

A.        The Kellett Rule in General                                                                                                                                    

B.        What is the Purpose Behind the Kellett Rule?                                                                                       

C.        What Is the Meaning of the “Same Act or Course of Conduct” for Kellett Purposes?                               

D.        What Must Be Shown Regarding the Prosecution's Knowledge for the Kellett Rule to Apply?                   

E.         The Kellett Rule’s Requirement of the Prosecution Having Knowledge of Both Offenses

            and the Problem of the Infraction Going One Way and the Misdemeanor/Felony Charges

            Going the Other Way                                                                                                                                    

F.         Does the Kellett Rule Apply Where the Defendant Intentionally Conceals the Greater Offense

            to Take Unfair Advantage of the Rule?                                                                                                         

G.        Does a Defendant Have an Obligation to Seek Consolidation of the Charges in Order for the

            Kellett Rule to Apply?                                                                                                                      

H.        Exception to the Kellett Rule When There are Related Felony and Misdemeanor Charges,

            Different Prosecuting Agencies are Involved, and One Agency Proceeds on a Misdemeanor

            Before the Other Proceeds on the Felony                                                                                             

I.          Exception to the Kellett Rule When, at the Time of the Prosecution on the Original Charges,

            There Is Insufficient Evidence to File the Related Charges                                                                     

J.          Does Kellett Apply if in a Particular Circumstance Application Does Not Further the Purpose of the Rule or Defeats the State’s Interest in the Prosecution of Serious Offenses?                                          

K.        When Is It “Too Late” to Join Offenses for Purposes of the Kellett Rule?                                           

L.         Does the Kellett Rule Apply in Juvenile Proceedings?                                                                                 

M.        Does the Kellett Rule Apply in Contempt Proceedings?                                                                         

N.        Some Cases Holding Kellett Rule Inapplicable                                                                                           

O.        Some Cases Holding Kellett Rule Applicable                                                                                             

A.       The Kellett Rule in General

 1.         In Kellett  v. Superior Court (1966) 63 Cal.2d 822, the California Supreme Court held “some acts that are divisible for the purpose of punishment must be regarded as being too interrelated to permit their being prosecuted successively.” (Id. at p. 827.) 

 2.         Accordingly, the California Supreme Court laid out the following rule (now known as the Kellett rule): “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 v. Superior Court (1966) 63 Cal.2d 822, 827; People v. Britt (2004) 32 Cal.4th 944, 954.)

3.         The Kellett rule derives from the second sentence of Penal Code section 654: “An acquittal or conviction and sentence under any one [provision of law] bars a prosecution for the same act or omission under any other [provision of law].”  (See Kellett v. Superior Court (1966) 63 Cal.2d 822, 825, 828.)

             Although there are similarities between the Kellett rule and the rule against double jeopardy, they are distinct principles. Double jeopardy principles do not bar successive prosecutions for different offenses.  (See In re Dennis B. (1976) 18 Cal.3d 687, 691; Kellett v. Superior Court (1966) 63 Cal.2d 822, 825, fn. 2.)

 4.         Whether the rule of Kellett applies must be determined on a case-by-case basis.  (See People v. Britt (2004) 32 Cal.4th 944, 955; People v. Valli (2010) 187 Cal.App.4th 786, 797.)  In determining whether acts are too interrelated to be prosecuted successively, courts will look at whether the acts occurred in a different time and place, whether the acts overlap in beginning, duration, or end,  whether evidence of one act necessarily supplies proof of another act.  (See In re Marriage of Rice and Eaton (2012) --- Cal.Rptr.3d ----, 2012 WL 1114347, *5.)  In addition, courts will consider whether, at the time one offense was prosecuted, sufficient evidence existed of the related offense, whether the policies behind the Kellett rule are being furthered by its application, and whether the State’s interest in prosecuting serious offenses or in expending minimal resources on non-serious offenses will be defeated by application of the rule.  (See People v. Davis (2005) 36 Cal.4th 510, 558-559; Barriga v. Superior Court (2012) 206 Cal.App.4th 739; In re Dennis B. (1976) 18 Cal.3d 687, 693-695.)  Courts also will look at whether the counts could legally be joined or had been severed, and whether the prosecution is (or should be) aware of all the offenses.  (See People v. Britt (2004) 32 Cal.4th 944, 954-955.)  And finally, courts will consider whether the defense played any role in the failure to join offenses.  (See Stackhouse v. Municipal Court (1976) 63 Cal.App.3d 243, 245-247; People v. Hartfield (1970) 11 Cal.App.3d 1073, 1081.)  This P&A memo explores each of these considerations in greater depth.

5.          Although section 654 does not authorize a motion to dismiss, defendants may file a nonstatutory pre-trial motion to dismiss an action when the action appears to be barred by the Kellett rule.  (People v. Eckley (1973) 33 Cal.App.3d 91, 93, citing to Kellett v. Superior Court (1966) 63 Cal.2d 822.)

B.       What is the Purpose Behind the Kellett Rule?

 1.         It is often said the purpose behind section 654 and the Kellett rule is to prevent harassment of persons accused of crimes after they have been acquitted or received a sentence with which the prosecutor was not satisfied.   (Kellett v. Superior Court (1966) 63 Cal.2d 822, 825-826; In re R.L. (2009) 170 Cal.App.4th 1339, 1343-1344.)

 2.         However, the purpose behind the Kellett rule is not just to prevent harassment of defendants, it is “bottomed in large part on a concern for avoiding needless repetition of evidence, and for conserving the resources and time of both the state and the defendant.”  (People v. Valli (2010) 187 Cal.App.4th 786, 796; People v. Turner (1985) 171 Cal.App.3d 116, 129; People v. Tirado (1984) 151 Cal.App.3d 341, 354, overruled on another point in People v. Mendez (1999) 19 Cal.4th 1084, 1097, 81 Cal.Rptr.2d 301, 969 P.2d 146.); accord In re Dennis B. (1976) 18 Cal.3d 687, 692; People v. Witcraft (2012) 201 Cal.App.4th 659, 666.)  Thus, “the offenses must be transactionally related, and not just joinable, before the Kellett rule applies.”  (People v. Turner (1985) 171 Cal.App.3d 116, 129; People v. Tirado, supra, 151 Cal.App.3d 341 at 354.)

3.          Where the purposes served by the rule are not being furthered, this can provide a basis for finding the Kellett rule inapplicable.  (See e.g., People v. Davis (2005) 36 Cal.4th 510, 558-559 [albeit, in Davis, this was just one of multiple bases for finding the rule inapplicable].)

C.       What Is the Meaning of the “Same Act or Course of Conduct Plays a Significant Part” for Kellett Purposes?

 1.         As noted above, in order for the Kellett rule to apply, the prosecution must or should be aware of more than one offense in “which the same act or course of conduct plays a significant part [.]” (Kellett v. Superior Court (1966) 63 Cal.2d 822, 827, emphasis added; People v. Ward (1973) 30 Cal.App.3d 130, 136; see also People v. Douglas (1966) 246 Cal.App.2d 594, 598-599 [the Kellett “test only applies to multiple prosecutions for offenses arising out of the same act, the same incident, or the same course of conduct”].)   

 2.         The term “same act or course of conduct” for Kellett purposes is not used in exactly the same manner as it is used in deciding whether Penal Code section 654 bars multiple punishment since “some acts that are divisible for the purpose of punishment must be regarded as being too interrelated to permit their being prosecuted successively.”  (Kellett v. Superior Court (1966) 63 Cal.2d 822, 827; People v. Eckley (1973) 33 Cal.App.3d 91, 95.)  “[U]nder the multiple prosecution portion of section 654, intent or objective—which is crucial in determining permissible punishment—may be irrelevant. (People v. Valli (2010) 187 Cal.App.4th 786, 797, citing to Kellett v. Superior Court (1966) 63 Cal.2d 822, 827.)

Editor’s note: Penal Code section 954 governs when charges may be jointly charged.   

3.          In making the determination of whether the same act or course of conduct plays a significant part with respect to each offense, courts look not so much to the abstract definitions of the elements of the respective crimes or the precise moment when one crime was completed, but to the “the totality of the facts, examined in light of the legislative goals of [Penal Code] sections 654 and 954, as explained in Kellett.”  (People v. Witcraft (2012) 201 Cal.App.4th 659, 667; People v. Hurtado (1977) 67 Cal.App.3d 633, 636 and fn. 1; accord People v. Valli (2010) 187 Cal.App.4th 786, 797.) 

4.          In the case of People v. Valli (2010) 187 Cal.App.4th 786, the court stated that “[a]ppellate courts have adopted two different tests to determine a course of conduct for purposes of multiple prosecution.”  (People v. Valli (2010) 187 Cal.App.4th 786, 797.)  The Valli court identified two lines of cases, one which the Valli court said looked at whether the crimes were committed at different times or places, and one which the Valli court said looked at whether the evidence needed to prove one offense necessarily supplies proof of the other offense.  (Id. at pp. 797, 799.)  However, these two lines of cases are usually not inconsistent (see People v. Witcraft (2012) 201 Cal.App.4th 659, 666-667 [incorporating both tests]; People v. Valli (2010) 187 Cal.App.4th 786, 798 [adopting the test in the second line of cases but agreeing with the results in the first line of cases]), and, notwithstanding categorical language in some of the first line of cases, it is probably better to view the first test as a presumptive barrier against application of the Kellett rule absent unusual circumstances and the second test as a complete barrier against application of the Kellett rule.

5.          Whether the Two Offenses Occurred at Different Times and Places Test

There is a line of cases that holds Kellett is not applicable where the offenses are committed at separate times and locations.”  (People v. Valli (2010) 187 Cal.App.4th 786, 797, citing to People v. Cuevas (1997) 51 Cal.App.4th 620, 624 [“Kellett does not require, nor do the cases construing it, that offenses committed at different times and at different places must be prosecuted in a single proceeding”]; accord People v. Witcraft (2012) 201 Cal.App.4th 659, 666.)

             The Valli court identified three cases in this line: People v. Cuevas (1997) 51 Cal.App.4th 620; People       v. Ward (1973) 30 Cal.App.3d 130, and People v. Douglas (1966) 246 Cal.App.2d 594.

In People v. Cuevas (1997) 51 Cal.App.4th 620, the court held a conviction for possession of cocaine for sale did not bar subsequent prosecution for two prior cocaine sales occurring on different dates simply because they were committed at different times and places.  (Id. at p. 624.)

Similarly, in People v. Ward (1973) 30 Cal.App.3d 130, the court held the Kellett rule did not apply where a defendant kidnapped a woman, raped her and placed her in the trunk of his car in Los Angeles County, then returned to the woman’s residence, convinced the woman’s daughter to go with him to the mother and, during the ride, orally copulated the daughter in San Bernardino County.  The defendant was charged with and pled guilty to the crimes committed against the daughter in San Bernardino County and was subsequently charged with kidnapping and rape upon the mother in Los Angeles County.  (Id. at p. 133.) The court found Kellett inapplicable because the crimes were committed at different locations, at different times, against different victims, and with different objectives.” (Id. at pp. 136-137 [and also noting there were jurisdictional problems as different counties were involved].)

And in People v. Douglas (1966) 246 Cal.App.2d 594, the court held the Kellett rule did not apply where the defendants were involved in a series of robberies.  When the police attempted to arrest them; a gunfight ensued and an officer was killed.  The defendants were indicted for murder but only one was convicted.  After the verdicts, the defendants were charged with 10 counts of robbery and other crimes.  Following trial, and retrial with separate counsel, they were convicted of the majority of the charges. (Id. at p. 596.)  The appellate court found Kellett did not apply to bar the latter prosecution because in the later case the “defendants were prosecuted for unrelated offenses arising from separate physical acts performed at different times.  A murder, a robbery, an assault, like every other action, normally has a beginning, a duration, and an end, and where, as here, none of these overlap, simultaneous prosecution is not required under any present theory of jurisprudence.”  (Id. at p. 599.)

                          Not cited in Valli, but standing for the principal that Kellett does not require that crimes committed in different times and places be joined are the California Supreme Court decisions in People v. Marlow (2004) 34 Cal.4th 131, 143-144 [finding Kellett rule did not require joinder of murder offenses committed in different counties at different times] and People v. Carpenter (1999) 21 Cal.4th 1016, 1038 [same].

6.          Whether One Offense Supplied Proof of the Other Offense Test

In People v. Valli (2010) 187 Cal.App.4th 786, the court found that simply looking at whether the crimes were committed at different times and places is not determinative.  (Valli, at p. 798.)  The Valli court  noted that in People v. Britt (2004) 32 Cal.4th 944 [see this P&A memo, section O, at p. 23 for a more expansive discussion of Britt], the California Supreme Court found the Kellett rule applied to bar successive prosecution even though the offenses occurred on separate occasions and in different counties. (Valli at p. 798.)  The Valli court then identified a different line of cases which used a different test and looked at whether “the evidence needed to prove one offense necessarily supplies proof of the other” offense in determining a course of conduct for purposes of multiple prosecution.  (Id. at p. 799.) 

The Valli court stated this second test was set forth in People v. Flint (1975) 51 Cal.App.3d 333, a case finding a prosecution for grand theft auto and felony joy riding was barred after a prosecution for driving under the influence of alcohol because “the same incident which furnished the evidence that defendant was driving in an intoxicated condition, also supplied proof that what he was driving was an automobile he had stolen.”  (Valli at p. 798, citing to Flint, at pp. 337–338.)  According to the Valli court, the test identified in Flint required looking at the totality of the facts in light of the legislative goals of sections 654 and 954 as explained in Kellett, and whether separate proofs were required for the different offenses.  (Valli at p. 798, citing to  Flint, at pp. 336–338.)

The Valli court then said the test in Flint was restated in People v. Hurtado (1977) 67 Cal.App.3d 633, a case finding a defendant’s plea to driving under the influence of alcohol did not bar prosecution for narcotics charges where balloons of heroin were found in defendant’s car when he was stopped for speeding and swerving erratically because the “[e]vidence in the two cases, was for the most part mutually exclusive [and] the only common ground being the fact that defendant was in the moving automobile in possession of the heroin at the same time that he was under the influence of alcohol. (Valli at p. 799 citing to Hurtado at p. 636.)  Under the Hurtado test, “if the evidence needed to prove one offense necessarily supplies proof of the other, . . . the two offenses must be prosecuted together,” albeit the Kellett rule does not mandate joinder when there is just trivial overlap of the evidence, such as that existing in Hurtado.  (Valli at p. 799 citing to Hurtado at p. 637.)

The Valli court held that under this second test, “[s]imply using facts from the first prosecution in the subsequent prosecution does not trigger application of Kellett.”  (Id. at p. 799.)

The Valli court then applied that test to the facts in the case before it, a case in which a defendant was initially tried for tried for murder, attempted murder, and being a felon in possession of a firearm and then was later tried for twice evading the police.  At the initial trial, to help prove the murder by showing defendant's consciousness of guilt, the prosecution introduced evidence that days after the shooting defendant once drove recklessly in fleeing from the police and later, as a passenger, successfully directed a driver to flee from the police.  The defendant testified in his murder/attempted murder trial and admitted he evaded the police.  Defendant was acquitted on all counts, including the murder and attempted murder charges.  (Id. at p. 791–792.)  However, within minutes of his acquittal, the defendant was charged and successfully prosecuted for two counts of evading arrest based, in part, on his testimony in the murder trial. (Id. at p. 793.)  Defendant’s motion to dismiss the second prosecution   based on the Kellett rule was denied.  Some of the same witnesses who testified in the murder trial testified in the evading trial, but two additional witnesses also testified under a grant of immunity, a helicopter videotape of one of evasions was played for the jury, and portions of defendant's testimony from the murder trial, relating to the two pursuits, were read to the jury.  (Id. at pp. 792-793.) 

The Valli court held that while it was true the People knew about the evading at the time of the murder trial, the People had relied on the evidence of the evading to prove the murder charge, and many of the same witnesses to the evading testified in the murder trial, the People's decision to use the evading offenses to help prove murder did not require joinder of offenses.  This was because under the test identified in Flint and Hurtado the evidence needed to prove murder—that defendant was the shooter—did not supply proof of evading.  Evidence of the evading showed at most a consciousness of guilt as to the murder, and, as the acquittal on the murder showed, it was insufficient to supply proof of the murder.   (Id. at p. 800.)  “[A]lthough the People relied in part on proof of the evading in order to prove the murder, the necessary interrelation of murder and evading is missing; the same act or course of conduct did not play a significant role in each.”  (Id. at p. 801.)

The Valli court also rejected the defendant’s argument that Kellett rule should have barred a latter prosecution because he was lulled into waiving his Fifth Amendment rights against self-incrimination as a result of the failure to the People to join the evading charge with the murder charge and this allowed his testimony at the first trial to be used in the second trial.  The Valli court rejected the argument in light of the general rule that a defendant's testimony at a former trial may be used against him at a subsequent trial and the rule that the content of a defendant's testimony can be used as the basis for a new prosecution.  “Thus, defendant had no reasonable basis to believe he was immunizing himself from prosecution for other criminal acts simply by testifying at his murder trial.”  (Id. at p. 800.)  The court also rejected “the notion that defendant chose to testify and admit the evading only because he believed the People had decided to forgo prosecution on those crimes.  Rather, since the evidence of the evading was overwhelming, defendant’s decision to admit the evading was a reasonable tactical decision designed to bolster his credibility before the jury so he could convince the jury the identification of him as the shooter was flawed.”  (Id. at p. 800.)  The Valli court recognized that the People's ability to use defendant's testimony against him at a later trial certainly burdened his decision to testify, but held, “[n]ot every burden on a defendant's decision to testify, however, is impermissible.  (Id. at p. 801.)

Editor’s note: Another of the arguments made by the defendant in Valli was that the second prosecution should have been dismissed because it was an example of “vindictive prosecution.”  This argument was also rejected by the Valli court (id. at pp. 802-805), but further discussion of that question must await a future update on the topic of vindictive prosecution. 

D.       What Must Be Shown Regarding the Prosecution’s Knowledge for the Kellett Rule to Apply?

 1.         As noted above, in order for the Kellett rule to apply, it must be shown “the prosecution is or should be aware of more than one offense....”.  (People v. Britt (2004) 32 Cal.4th 944, 955; accord People v. Valli (2010) 187 Cal.App.4th 786, 796-797.)

 2.         “The reference in Kellett to situations in which ‘the prosecution is ... aware of more than one offense’ applies, however, 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.”  (People v. Britt (2004) 32 Cal.4th 944, 955; In re Dennis B. (1976) 18 Cal.3d 687, 693; People v. Turner (1985) 171 Cal.App.3d 116, 129.)  The fact one prosecutor has a connection with one offense and a different prosecutor deputy knows of a second offense doesn’t necessarily mean that the prosecution “knew” of both offenses under Kellett.  (See In re Dennis B. (1976) 18 Cal.3d 687, 693.)

 3.         Whether the prosecution “should have” known of the multiple offenses, is “a question distinct from that of actual knowledge.”  (In re Dennis B. (1976) 18 Cal.3d 687, 694; People v. Turner (1985) 171 Cal.App.3d 116, 130.)  The test for determining whether the prosecution “should be aware” of the multiple offenses is not whether the prosecution “could have” known of the offense.  “[T]he fact that the prosecution could have known of the multiple offenses does not necessarily lead to the conclusion that it did know or should have known[.]” (People v. Britt (2004) 32 Cal.4th 944, 955; In re Dennis B. (1976) 18 Cal.3d 687, 693.)

4.          A prosecutor will not be held to “should have known” about related offenses where there are no police reports documenting the other offenses yet in existence and no pending prosecution for those offenses.  (See People v. Turner (1985) 171 Cal.App.3d 116, 130.)  This holds true even if such offenses might have been revealed through questioning of the victim: “A prosecutor is not a policeman and his duty is to prosecute crimes, not ferret them out.  In the absence of any investigation or pending prosecution of the sexual crimes, there was no reason why the prosecutor should have been aware of them. He is, after all, not omniscient.”  (People v. Turner (1985) 171 Cal.App.3d 116, 130.)  

5.          Due diligence is an important consideration in deciding whether a prosecutor should have known about a related offense.  In Barriga v. Superior Court (2012) 206 Cal.App.4th 739, three men assaulted the victim in a park, robbed him of his car keys, $4, and his cellphone, and drove off in the victim’s car.  Four hours later the police stopped the victim’s car.  Defendant was a passenger in the car, and disobeyed the officer’s order that he remain in the car.  The defendant was placed in the patrol car.  There were two other men in the car, including the driver, and two women.  At a field show-up, the victim identified the driver and the second male passenger as two of the attackers at the park, but he told police that the defendant that he was certain that defendant was not involved.  The D.A. charged the other two men with carjacking, and charged the defendant with resisting a police officer, unlawful driving of a stolen vehicle and some other charges related to his being stopped in the stolen car.  The D.A. did not charge him with carjacking.  (Because he was a juvenile, the charges were filed in juvenile court.)  About two weeks after his arrest, the defendant admitted the resisting a peace officer charge, and the remaining charges were dismissed.  The arresting agency continued to investigate the carjacking charge.  About a month after the defendant’s arrest police executed a search warrant for the defendant’s cell phone and discovered evidence linking him to the original carjacking.  Approximately six weeks after the defendant’s arrest, and 2-1/2weeks after his guilty plea, the D.A. charged defendant with the carjacking in a new complaint.  The defendant argued that the carjacking prosecution had to be dismissed under Kellett.  Citing the victim’s statement that defendant was not one of the carjackers, the trial court denied the motion.  On appeal, the Court of Appeal disagreed.  The Court of Appeal recognized an exception to Kellett articulated in the Davis case.  In Davis¸the defendant was found driving a stolen car several days after the owner of the car had been assaulted and robbed of the car.  The victim could not identify Davis as the robber, so Davis was charged only with misdemeanor 10851.  He pleaded guilty and was sentenced.  More than a year later, Davis was arrested for an entirely unrelated murder case, but during the course of the investigation, he made admissions linking him to the robbery of the car that he had been driving a year earlier.  He was charged with both the new murder, and with the carjacking of the original 10851 car.  He argued that the carjacking prosecution should be dismissed, but both the trial court and the California Supreme court disagreed.  “[N]otwithstanding reasonable efforts, the prosecution could not have proceeded on the … robbery charges earlier because neither [the victim] nor anyone else could identify” Davis.  (Barriga, 206 Cal.App.4th at 747, citing People v. Davis (2005) 36 Cal.4th 510, 558.)  The Barriga court therefore concluded that the question before it was whether, at the time of charging, the prosecutor should have been aware of the evidence linking Barriga to the carjacking.  The Court of Appeal concluded that the prosecution should have been aware of the evidence and would have been aware of the evidence if the police had acted with due diligence.  “[T]he People do not draw our attention to any evidence … that explains why they could not have, with reasonable efforts, and in the exercise of due diligence, obtained a search warrant for Barriga’s cell phone … before they charged him” with the lesser crimes in the first prosecution.  (Barriga, 206 Cal.App.4th at 748.)

6.          Some cases in which the court has found the prosecution was not sufficiently aware of multiple offenses to apply the Kellett rule are listed below:

In re Dennis B. (1976) 18 Cal.3d 687.  (See this P&A memo at section E, pp. 11-12 [discussing the case of In re Dennis B. at length, including the reasons for why the prosecution did not have sufficient knowledge to charge both offenses in a single proceeding].) 

             People v. Turner (1985) 171 Cal.App.3d 116 , 122-123, 130 [insufficient knowledge on part of prosecutor handling unlawful corporal punishment charges of  sexual abuse charges (some of which occurred the same day as the child abuse and played a “significant interrelated part” in the corporal punishment charges), even though a probation officer expressed concerns to the prosecutor about sexual abuse of child before defendant pled guilty to the child abuse, where those concerns were based on speculation and nothing further was developed or communicated to the prosecutor that would have led to the initiation of further criminal charges of sexual abuse before the guilty plea to the child abuse]

People v. Eckley (1973) 33 Cal.App.3d 91, 93, 95-98 [insufficient knowledge on part of city attorney prosecuting defendant for single misdemeanor charge of practicing medicine without a license to bar later indictment on numerous felony charges of fraud, theft and unlawful practice of medicine per Kellett where, inter alia, it did not appear city attorney was aware of massive fraud allegedly carried on by defendants or that district attorney was aware of misdemeanor charge until it had been disposed of]

7.          Some cases in which the court has found the prosecution was sufficiently aware of multiple offenses to apply the Kellett rule are listed below:

In People v. Valli (2010) 187 Cal.App.4th 786, the defendant was charged with, inter alia, murder and then later with twice evading the police.  At the murder trial, the prosecution introduced evidence of an offense in which defendant personally evaded police on one occasion and encouraged another driver to do so on a second occasion in order to show defendant’s consciousness of guilt.  The Valli court held that, for purposes of the Kellett rule, the prosecution was clearly aware of the occasion defendant personally evaded police as the prosecution presented evidence defendant had driven a van recklessly, jumped out, climbed over the sound wall of the freeway and successfully evaded the police.  Moreover, the court found the prosecution should have been aware they were in a position to prosecute the defendant for aiding and abetting the driver during the second evasion at the time of the murder trial, notwithstanding the prosecution’s claim that they could not have done so until the driver (who was convicted of the offense before the murder trial) testified the defendant asked her not to stop the car when the police began their pursuit in the murder trial.  The court based its conclusion on the fact the People used the evidence of the second evasion to show defendant’s consciousness of guilt at the murder trial and because it was a reasonable inference defendant was responsible for the evasion based on evidence other than the driver’s statement at trial, namely, (i) the fact the only reason for the driver to evade the police was that defendant was in the car and was wanted for murder, (ii) the fact the defendant had fled the state with the driver for several days, (iii) at the conclusion of both evasions the defendant ran across the highway and climbed over a sound wall, and (iv) the People could have known the driver’s trial testimony by questioning her after a grant of immunity.  (Id. at p. 796 [albeit finding the Kellett rule did not apply for other reasons - see this P&A memo, section C at pp. 6-8].)

Editor’s note: Although the Valli court came to the correct conclusion, there seems to be at least one problem with their analysis.  The People’s claim that they could not have gone forward with the second evasion charge at the time of the murder trial appears to be more of an argument that there was insufficient evidence to go forward with the charge (see this P&A memo, section I at p. 15 [discussing exception to Kellett rule when insufficient evidence for prosecution exists] than that they were unaware defendant may have participated in the evasion.  If that were the true objection, then the fact that the prosecution introduced evidence of the second evasion at the murder trial to show consciousness of guilt under Evidence Code section 1101(b) would not be that significant since the crime of evading would only need to be established by a preponderance of the evidence, not beyond a reasonable doubt.  (See People v. Medina (1995) 11 Cal.4th 694, 763.) 

In People v. Flint (1975) 51 Cal.App.3d 333, the court held that that deputy district attorneys in the same branch office did not know, but should have known of each other's filings against the same defendant where defendant was charged separately with misdemeanor DUI and driving a stolen car arising out of the same incident.  (Id. at p. 335.) Editor’s note: See this P&A memo, section C at p. 6 [discussing Flint in greater depth]  

In People v. Ochoa (2016) 248 Cal.App.4th 15, authorities were conducting two separate investigations of the same defendant for conspiracy to sell methamphetamine during roughly the same time period.  One investigation focused on methamphetamine distribution, and was conducted by the state Bureau of Narcotic Enforcement, the federal Drug Enforcement Agency, and the San Jose Police.  As a result of the investigation, the Santa Clara District Attorney’s Office charged the defendant for conspiracy to distribute narcotics with several other drug sellers and buyers. The defendant pleaded guilty and was sentenced for this offense. The second investigation focused on the defendant’s involvement with the Nuestra Familia Gang, and was conducted by the Santa Clara County specialized enforcement team, the Campbell Police Department, and the San Jose Police Department.  The Santa Clara District Attorney’s Office charged this investigation in a separate prosecution charging the defendant with conspiracy to distribute methamphetamine for the benefit of the gang.  The second prosecution was filed after the defendant had already been sentenced for the first.  The court dismissed this second prosecution on Kellett grounds.  The prosecution argued that the two prosecutions were separate investigations by different agencies brought by different prosecutors.  The court was unpersuaded.  The court noted that the San Jose police participated in both investigations, and the Santa Clara District Attorney’s Office filed both prosecutions.  There was even circumstantial evidence that the prosecutor in the first case was aware of the second investigation.  The defendant’s lawyer heard about the second investigation, and asked the first prosecutor whether the defendant would be charged again.  The prosecutor responded that the defendant “should plead now.”  The court concluded from all the evidence that the prosecutor was aware of both prosecutions. 

8.          Keep in mind that the fact a prosecutor’s office has, or should have, knowledge of both offenses is a necessary, but not sufficient, prerequisite for application of the Kellett rule.  (See People v. Valli (2010) 187 Cal.App.4th 786, 796-797 [discussed at length in this P&A memo, section C at pp. 6-8]; People v. Martin (1980) 111 Cal.App.3d 973, 977-978 [discussed at length in this P&A memo, section N at p. 23].) 

E.       Kellett’s Requirement of the Prosecution Having Knowledge of Both Offenses  and the Problem of the Infraction Going One Way and the Misdemeanor/Felony Charges Going the Other Way

1.          Every once in a while, law enforcement will stop a defendant for a traffic infraction which uncovers a  greater offense (i.e., a DUI, firearms possession, etc.) or conversely, stop a defendant for a serious offense (i.e., vehicular manslaughter) but then also cite the person for a relatively minor traffic infraction.  Sometimes, the traffic citation will be processed as a typical traffic citation and be handled in a proceeding before a traffic commissioner, while the main charge goes to the district attorney’s office for charging.  The problem arise because traffic infractions, while technically being charged by the prosecution, are not reviewed by a charging deputy - there is a computerized system (at least in most larger counties) for the charging of the infraction.  Thus, the prosecutor charging the more serious offense does not actually know about the pending traffic infraction proceeding.  Defense attorneys will sometimes advise their clients to admit the traffic infraction in order to invoke the Kellett rule and attempt to bar prosecution in regular criminal court on the more serious charge.   

2.          Whether this tactic will be successful often depends on (i) whether the prosecution had actual knowledge of the multiplicity problem in time to prevent the problem; and (ii) whether the prosecution should have known of the multiplicity problem in time to prevent the problem.  (See In re Dennis B. (1976) 18 Cal.3d 687.)

3.          In In re Dennis B. (1976) 18 Cal.3d 687, a minor, while attempting to change lanes on a highway, drove his car into a collision with a motorcycle, inflicting fatal injuries on the cyclist. After a trial on a traffic charge in the municipal court, defendant was found guilty of making an unsafe lane change in violation of Vehicle Code section 21658(a) and was fined $10.  Three weeks later, a petition was filed in juvenile court alleging that defendant was a person coming within Welfare and Institutions Code section 602, in that he had committed the crime of vehicular manslaughter (Pen. Code, § 192, subd. 3(b)).  The allegations were sustained.  (Id. at p. 690.)

The court recognized that one act gave rise to two offenses and that this fact was susceptible of discovery in time to avoid multiplicity problems.  Moreover, the district attorney’s office, which prosecuted the minor in juvenile court issued subpoenas to witnesses in the traffic case and stipulated that a judge pro tempore would be acceptable at that proceeding.  Nevertheless, the court held that where one deputy has a connection with one offense and a different deputy knows of a second offense, it doesn’t necessarily mean that the prosecution “knew” of both offenses under Kellett.  “The reference in Kellett to situations in which ‘the prosecution is ... aware of more than one offense’ applies, however, 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.”  (Id. at p. 693.)

The court found no such actual “knowledge” existed for the following reasons:  The district attorney's office played a limited role in the prosecution of routine traffic offenses in the municipal court. The 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.  In the juvenile court, moreover, at that time, petitions were required by law to be filed by probation officers, not district attorneys.  (Id. at pp. 693-694, citing to  Welf. & Inst. Code, § 650.)

The court also found the prosecutors were not in a position where they “should have known of the two offenses.”  The court held that in deciding whether prosecutors should have known of the two offenses different factors come into play than when deciding if they had actual knowledge.  (Id. at p. 694.)

One such factor is the disparity in the seriousness of the offenses: “When both offenses are serious crimes, the potential for harassment and waste is sufficiently strong that section 654 imposes on prosecutors an administrative duty to insure that the charges are joined.”  (Id. at p. 694.)  However, when 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 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.”  (Id. at pp. 694-695.)

Another factor is the state’s interest in summary disposition of minor offenses: The state has a substantial interest in maintaining the summary nature of minor motor vehicle violation proceedings which would be impaired by requiring the prosecution to ascertain for each infraction the possibility of further criminal proceedings.  (Id. at p. 695.)  The state also has an interest in not having prosecutors allocate their limited time to the prosecution of traffic infractions.  (Id. at p. 695.)

A third factor is the state’s interest in prosecuting serious felonies and misdemeanors: “To permit defendant to be prosecuted only for a minor motor vehicle code infraction when his alleged crime was actually manslaughter ‘would operate with gross unfairness to the State.’” (Id. at p. 696.)

In assessing those factors, the Dennis B. court found the prosecutor should not have known of the multiplicity problem and held prosecution for the manslaughter was not barred by the Kellett rule.  (Id. at p. 696.)

Editor’s note: Prosecutors faced with a Kellett challenge involving an infraction and a criminal charge will need to introduce evidence of how the different offenses are charged and proceed through the system.

F.        Does the Kellett Rule Apply Where the Defendant Intentionally Conceals the Greater Offense to Take Unfair Advantage of the Rule

The Kellett rule is inapplicable where the defendant seeks to obtain the benefit of section 654's bar through “connivance and concealment.”  (People v. Hartfield (1970) 11 Cal.App.3d 1073, 1081.)  Where the issue is multiple prosecution, the provisions of section 654 cannot be employed to mislead the court.  Thus, if a greater violation is concealed in order to gain ‘immunity’ by prosecution for a lesser crime, section 654 will not apply. (Gail v. Municipal Court (1967) 251 Cal.App.2d 1005; and Hampton v. Municipal Court (1966) 242 Cal.App.2d 689]; see also People v. Andrade (1978) 86 Cal.App.3d 963, 971 [“obvious tactical maneuverings by a defendant done “an effort to escape prosecution by intentionally creating the seemingly same procedural situation present in Kellett” was one of several reasons why Kellett  rule inapplicable]; People v. Winchell (1967) 248 Cal.App.2d 580, 592-593 [finding Kellett rule inapplicable because, inter alia, of an “obvious attempt by the defendant to use procedural steps to avoid prosecution for the more serious charge”]; cf., People v. Malveaux (1996) 50 Cal.App.4th 1425, 1440-1441 [where defendant falsely claims to be juvenile, jeopardy does not attach to bar prosecution as adult].)

However, where a defendant is charged with both a felony and misdemeanor arising out of same criminal conduct, the defendant does not have a duty, prior to pleading nolo contendere to misdemeanor charge, to inform the court of any pending felony prosecution where the defendant does not conceal the fact of the dual prosecution and does not know that the prosecuting attorney is unaware of the dual prosecution.  (See Crayton v. Superior Court (1985) 165 Cal.App.3d 443, 452.)

G.       Does a Defendant Have an Obligation to Seek Consolidation of the Charges in Order for the Kellett Rule to Apply?

Where the prosecutor of the greater offense is ignorant of the lesser, the defense may have an obligation to seek consolidation of the charges to avoid being estopped from invoking the Kellett rule. (See People v. Bas (1987) 194 Cal.App.3d 878, 882; People v. Hartfield (1970) 11 Cal.App.3d 1073, 1080; see also People v. Von Latta (1968) 258 Cal.App.2d 329, 341 [noting defendant failed to seek consolidation in support of holding that Kellett rule was inapplicable]; People v. Lopez (1967) 251 Cal.App.2d 918, 922 [“in certain situations the defendant must express his preference for a particular procedure and call the attention of the authorities to his desire for a joint prosecution of separate offenses whose primary jurisdiction lies in different courts”].) 

In Stackhouse v. Municipal Court (1976) 63 Cal.App.3d 243, for example, the defendant was arrested for a hit and run.  After defendant was arrested, a deputy retrieved an open can of beer and less than an ounce of marijuana from defendant’s car.  A charge of reckless driving was added later based on the statements of two witnesses who apparently knew nothing of defendant’s other misconduct.   Defendant was issued a citation on the marijuana possession which was filed directly in court without presentation to or review by the district attorney’s office.  Meanwhile, the vehicle code violations were filed in a separate prosecution.  Defendant pled on the marijuana violation and then argued section 654 barred prosecution on the vehicle offenses.  The court found the Kellett rule did not apply for two reasons.  First, the defendant could have, but failed to, ask for his offenses to be consolidated (i.e., he was arraigned on the vehicle offenses before he ever pled on the marijuana offense).  Second, the offenses were not deemed to be interrelated.  (Id. at pp. 245-247.)

However, where the prosecutor is clearly aware of the multiplicity problem, the defense does not have an obligation to request consolidation.  For example, in People v. Bas (1987) 194 Cal.App.3d 878, the defendant caused a collision while driving under the influence that resulted in injuries to persons in both vehicles.  Defendant was originally charged with two misdemeanors, driving on a suspended license and without a license in possession, and two infractions, an illegal left turn and failure to yield the right of way.  Later defendant was charged in a felony complaint with driving under the influence and doing an act forbidden by law - the act being one of the infractions charged earlier- which proximately caused injury.  At the preliminary hearing on the felony charges, both the misdemeanor and felony files were before the magistrate.  Defendant announced his intention to plead guilty to the entire misdemeanor complaint and defense counsel stated that, in his opinion, once defendant was convicted and sentenced on the traffic offenses, the felony prosecution would be barred by double jeopardy principles and Penal Code section 654.  After court was recessed for a day, the prosecutor said the defendant could plead to the misdemeanor if he wanted to and expressed confidence the prosecution would prevail on a subsequent double jeopardy motion.  Wrong!  The Bas court held the prosecution was barred from going forward on the felony charges and rejected any estoppel argument based on the fact the defense did not ask for consolidation.  (Id. at pp. 880-883.)

Editor’s note: If the prosecutor in Bas had asked to join the misdemeanor and felony charges or alternatively dismissed the misdemeanor charges, the Kellett problem could have been avoided.

H.       Exception to the Kellett Rule When There are Related Felony and Misdemeanor Charges, Different Prosecuting Agencies are Involved, and One Agency Proceeds on a Misdemeanor Before the Other Proceeds on the Felony

The Kellett court recognized where there are different prosecuting agencies, and the first agency fails to press the more serious charge, the Kellett rule may be inapplicable.  Specifically, the California Supreme Court stated:

“We recognize that in many places felonies and misdemeanors are usually prosecuted by different public law offices and that there is a risk that those in charge of misdemeanor prosecutions may proceed without adequately assessing the seriousness of a defendant's conduct or considering whether a felony prosecution should be undertaken.  When the responsibility for the prosecution for the higher offense lies with a different public law office there is also the risk that a well advised defendant may plead guilty to a misdemeanor to foreclose a subsequent felony prosecution the misdemeanor prosecutor may be unaware of or may choose to ignore.  Cases may also arise in which the district attorney is reasonably unaware of the felonies when the misdemeanors are prosecuted.  In such situations the risk that there may be waste and harassment through both a misdemeanor and felony prosecution may be outweighed by the risk that a defendant guilty of a felony may escape proper punishment. Accordingly, in such cases section 654 does not bar a subsequent felony prosecution except to the extent that such prosecution is barred by that section's preclusion of multiple punishment.”  (Kellett v. Superior Court (1966) 63 Cal.2d 822, 827-828; accord People v. Eckley (1973) 33 Cal.App.3d 91, 95 [discussed in greater depth in this P&A memo, section N at p. 22].)   

I.         Exception to the Kellett Rule When, at the Time of the Prosecution on the Original Charges, There Is Insufficient Evidence to File the Related Charges

 1.         The Kellett rule does not prevent a later prosecution of a related offense where the prosecutor “is unable to proceed on the more serious charge at the outset because the additional facts necessary to sustain that charge have not occurred or have not been discovered despite the exercise of due diligence.”  (People v. Davis (2005) 36 Cal.4th 510, 558; People v. Witcraft (2012) 201 Cal.App.4th 659, 666.)

 2.         This exception applies where some of the acts giving rise to the second prosecution occurred after the prosecution for the related crime and others did not.  Thus, in the case of People v. Kelley (1997) 52 Cal.App.4th 568, the court held defendant's prosecution for stalking was permissible, notwithstanding the fact that  defendant’s previous prosecution and conviction of misdemeanor contempt (Pen. Code, § 166) for violating a restraining order against stalking was part of the continuous course of conduct underlying the later stalking prosecution, because at least some of the defendant’s acts giving rise to the stalking charge occurred after the prosecution for the related crime.  (Id. at pp. 573-576.)

 3.         Cases Finding This Exception to Kellett Rule Applicable:

In the case of People v. Davis (2005) 36 Cal.4th 510, the defendant kidnapped a man, robbed him, and then took his car.  The victim reported the incident, and later, the defendant  was arrested while driving the victim's car.  The defendant was charged with and pleaded guilty to a misdemeanor count of unlawfully taking the car. The next year, the defendant was jointly prosecuted for both a double murder and the earlier kidnapping and robbery.  The defendant argued that the prosecution for the offenses of kidnapping and robbery were barred because they arose from the taking of the car for which he had already been convicted. (Id. at p. 556.)  However, the court disagreed, finding that, notwithstanding reasonable investigative efforts at the time, the prosecution could not have proceeded on earlier charges because neither the victim nor anyone else could identify the defendant as the perpetrator, and because the evidence necessary to prosecute him did not exist until after the defendant had already served his misdemeanor sentence, at which time he told a third party how he had obtained the car. (Id. at pp. 556–558 [albeit also citing, at p. 559, the fact the policies underlying the Kellett rule and section 654 (preventing harassment of the defendant and waste of public resources) would not be furthered as reasons for finding the Kellett rule inapplicable -see this P&A memo, section J at p. 18].)

In the case of People v. Breland (1966) 243 Cal.App.2d 644, the “insufficient evidence at time of original charges to file related charges” exception was applied to permit a prosecution for murder when the victim of an assault died after the perpetrator had been convicted and sentenced for battery.  (Id. at pp. 652-653; see also People v. Smith (1977) 70 Cal.App.3d 306, 315-316 [same, except original charge was robbery]; People v. Snipe (1972) 25 Cal.App.3d 742, 749 [same, except original charge was child abuse]

In the pre-Kellett case of Wyatt v. Municipal Court (1966) 242 Cal.App.2d 845, the court found the language of Penal Code section 654 upon which the Kellett rule is based did not apply to prevent a second prosecution for involuntary manslaughter after an initial prosecution for failure to yield the right-of-way to a pedestrian in a crosswalk in violation of section 21950 of the Vehicle Code where the pedestrian was still alive at the time of the first prosecution.  (Id. at pp. 848-850.) 

 4.         Case Finding Exception to Kellett Rule Inapplicable:

In the case of People v. Witcraft (2012) 201 Cal.App.4th 659, the defendant rear-ended a vehicle belonging to a Ms. Greenlee.  The defendant stopped and gave his insurance information to Ms. Greenlee and provided his driver’s license, registration, and proof of insurance to an officer who responded to the scene of the accident.  The registration information indicated the defendant’s vehicle was owned by Sears, defendant’s former employer.  The defendant’s proof of insurance reflected he was covered by Esurance and the vehicle covered was a Ford vehicle (the defendant was driving a white Ford Ranger pick-up).  The next day, Ms. Greenlee reported the accident to Esurance and asked for compensation.  She provided them the insurance policy number given to her by the defendant.  As it turned out, the defendant had removed the white Ford Ranger from his insurance policy a couple of years before the accident.  Moreover, it was  discovered that the registration card defendant provided belonged to another vehicle owned by Sears and that the license plate attached to the Ford Ranger defendant was driving had been taken by defendant from that same Sears vehicle when defendant had worked for Sears.  All this information came to light within two days of the accident.  Two days later, an Esurance claims representative spoke with defendant about the insurance claim.  Defendant told the claims representative he had been driving a rented Ford van but never followed up on his promise to the claims representative to forward a copy of the alleged rental contract.   Defendant was charged with, and eventually pled no contest to receipt of stolen property (i.e., the license plate); providing false identification to a peace officer; presenting a false registration card; failing to provide proof of automobile insurance; and providing false information to a peace officer (i.e., the proof of insurance and statements that the Ford Ranger was covered).   A little over five months later, the prosecution filed a second complaint alleging that on the date of the accident and on the day defendant spoke to the Esurance claims representative, defendant presented a false insurance claim or caused a false claim to be filed in violation of Penal Code section 550(a)(1).  After defendant’s motion to dismiss that complaint on grounds it was barred by section 654 was rejected, and a preliminary examination was held, defendant eventually pled no contest to that charge.  However, on appeal, defendant claimed his attorney had provided ineffective assistance by failing to renew the motion.  (Id. at pp. 662-664.)  The court of appeal agreed with the defendant.  The court rejected the Attorney General’s claim that the violation of section 550(a)(1) (as established at the preliminary examination) was based on the defendant’s false statements to the Esurance claims representative four days after the accident.  Rather, the court found that the violation of section 550(a)(1) was based on defendant’s conduct on the date of the accident under the theory that defendant’s providing false information to Ms. Greenlee caused her to file a false claim, i.e., the same conduct that underlay the earlier charges.  Thus, the question before the court became whether the second prosecution fell within the “insufficient evidence at time of original charges to file related charges” exception to the Kellett rule based on what the prosecutor knew about what occurred on the date of the accident, not on what defendant told Esurance four days after the accident.  The court answered that question in the negative, finding the prosecutor in the first case knew or should have known the defendant had caused Mrs. Greenlee to file a claim with Esurance under suspicious circumstances and that Esurance had initially determined that the claim was not covered based on (i) the fact that, at the time of the accident, defendant had provided the officer on the scene and Mrs. Greenlee insurance information, implying that her damages and injuries were covered; (ii) that Ms. Greenlee had filed a claim the next day; (iii) the defendant’s policy did not cover a vehicle bearing the license plate number identified in the police report; (iv) defendant was not the registered owner of the vehicle to which the plate belonged; and (v) the license plate belonged on a Sears van that defendant had had access to before he was terminated.  (Id. at p. 674.)  “These facts provided a substantial basis to suspect and investigate whether, in addition to the other alleged offenses arising

from defendant's course of conduct on [the day of the accident], he may also have caused Mrs. Greenlee to file a false claim in violation of section 550, subdivision (a)(1).”  (Id. at p. 674, bracketed info added by P&A.)  Moreover, the court found the necessary information to prosecute the defendant for that violation would have been discovered if the prosecutor had exercised due diligence by investigating further with Esurance since “she would have easily discovered additional evidence—including defendant's false statements—to confirm such a suspicion and charge defendant long before he pleaded no contest.”  (Id. at pp. 674-675.)

Editor’s note: The Witcraft court recognized that if defendant had been charged in the second prosecution with a violation of Penal Code section 550(b)(1)  - making false statements in support of an insurance claim - then the “insufficient evidence at time of original charges to file related charges” exception might have applied if the prosecution could show they were unaware of defendant’s false statements to the Esurance agent four days after the accident and could not have discovered them using due diligence.  (People v. Witcraft (2012) 201 Cal.App.4th 659, 673.)

See also In Barriga v. Superior Court (2012) 206 Cal.App.4th 739, discussed in more detail in section D.5 on pages 8-9 of this P&A.  (Holding that Kellett rule applied where prosecutor was unaware of evidence supporting defendant’s conviction of carjacking at the time defendant was charged with 10851 of the same car for lack of due diligence in investigating:  only after the defendant was convicted for lesser offenses, police obtained a search warrant for defendant’s cell phone that contained incriminating evidence, and prosecution offered no evidence as to the reason for the delay.) 

J.         Can the Kellett Rule Be Held Inapplicable If Its Application in a Particular Circumstance Does Not Further the Purposes of the Rule or Defeats the State's Interest in the Prosecution of Serious Offenses?

In the case of People v. Davis (2005) 36 Cal.4th 510, the defendant kidnapped a man, robbed him, and then took his car.  The victim reported the incident, and later, the defendant was arrested while driving the victim's car.  The defendant was charged with and pleaded guilty to a misdemeanor count of unlawfully taking the car.  The next year, the defendant was jointly prosecuted for both a double murder and the earlier kidnapping and robbery.  The defendant argued that the prosecution for the offenses of kidnapping and robbery were barred because they arose from the taking of the car for which he had already been convicted. (Id. at p. 556.)  The California Supreme Court provided several reasons for finding the Kellett rule did not apply – the primary being there was insufficient evidence to proceed on the robbery and kidnapping charges at the time of misdemeanor prosecution for unlawfully taking a car.  However, the court also held the Kellett rule inapplicable because “the policies underlying section 654—preventing harassment of the defendant and the waste of public resources through relitigation of issues (citation omitted by P&A) —would not be served here by holding that the kidnapping and robbery charges were barred.”  (Id. at p. 558.)

Specifically, the court found that defendant's interest in being free from the harassment of a second trial based on the incident giving rise to both the misdemeanor and felony charges “was minimal given that he was already on trial for the much more serious charges” (i.e., the murders jointly charged with the robbery and kidnapping].  (Id. at p. 558.)  Further, the court found “the public's interest in avoiding the waste of resources through relitigation was minimal given that defendant pled guilty to unlawfully taking [the robbery victim’s] car, thus dispensing with a need for a trial.”  (Id. at pp. 558-559.)  And finally, the court stated, “[b]alanced against these minimal interests was the public’s weighty interest in prosecuting and punishing defendant for the serious crimes of robbing and kidnapping the [victim].”  (Id. at p. 559.)

Editor’s note: The reliance by the Davis court on the fact that the defendant would not be subject to serious harassment and on the fact the defendant pled guilty (instead of going to trial on the original offense) represented a somewhat stealthy but extremely significant change in Kellett jurisprudence.  Under the court’s previous decision in In re Dennis B. (1976) 18 Cal.3d 687, it was not clear whether the state’s interest in prosecuting serious misdemeanors or felonies should be viewed as a factor that could be taken into account in deciding whether the prosecution should be held to have known about the related offense (see this P&A memo, section E at pp. 11-13) or whether it was a factor that could also be considered in general in deciding whether to apply the Kellett rule.  The Davis court clarified it is the latter.  Moreover, Davis decision was the first time the court found (i) the fact the defendant pled guilty in the first prosecution instead of going to trial could be considered in declining to apply the Kellett rule and (ii) the fact the defendant was going to trial anyway on other joined charges unrelated to either of the offenses allegedly subject to the Kellett rule could be considered in declining to apply the Kellett rule.

K.       When Is It “Too Late” to Join Offenses for Purposes of the Kellett Rule?

 1.         In General:

The Kellett rule stems from language in section 654 and 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.”  (Pen. Code, § 654; Kellett v. Superior Court (1966) 63 Cal.2d 822, 827.)  Thus, successive prosecution of a defendant for crimes arising out of the same incident is barred by the Kellett rule once the defendant has been acquitted on one of the crimes or when the defendant has been convicted and sentenced.  (In re R.L. (2009) 170 Cal.App.4th 1339, 1343; People v. Andrade (1978) 86 Cal.App.3d 963, 971; People v. Hartfield (1970) 11 Cal.App.3d 1073, 1080.)  If a prosecutor seeks to prosecute a defendant for an offense arising from the same events as charges where a defendant has already plead but has not yet been sentenced, the second prosecution should not be barred.  (In re R.L. (2009) 170 Cal.App.4th 1339, 1343; People v. Andrade (1978) 86 Cal.App.3d 963, 971; People v. Hartfield (1970) 11 Cal.App.3d 1073, 1080.)

 2.         Dismissals

A dismissal of a charge before trial is not the equivalent of an “acquittal” for purposes of section 654 and the Kellett rule and thus it never too late to join or file new charges interrelated to initial charges dismissed before trial.  (See People v. Ayala (1973) 34 Cal.App.3d 360, 364.)

 3.         Mistrials

It is not too late to join charges required to be joined by the Kellett rule after a mistrial.  The rationale for allowing joinder or amendment of related charges following a mistrial based on a deadlocked jury is that when there is such a mistrial, the status of the proceeding is as if there had been no trial. Thus, there is no acquittal or conviction, and the Kellett rule only applies to bar a prosecution after an acquittal or a conviction and sentence.  (See People v. Williams (1997) 56 Cal.App.4th 927, 932; People v. Brown (1973) 35 Cal.App.3d 317, 322-323.)

 4.         Retrials

If a conviction is reversed on appeal, the prosecution should be able to join additional related charges without running afoul of the Kellett rule for the same reasons why such joinder after a mistrial would be permissible.  (Cf., People v. Williams (1997) 56 Cal.App.4th 927, 932; People v. Brown (1973) 35 Cal.App.3d 317, 322-323.)   

However, if a case is reversed for insufficiency of the evidence, retrial is impermissible and the prosecution may not charge new counts based on the same acts or omissions upon which the reversed prosecution was based.  (See Sanders v. Superior Court (1999) 76 Cal.App.4th 609, 616.)

Moreover, where a defendant’s conviction is reversed based on an erroneous conviction for a non-lesser included or nonexistent offense, but the non-lesser included offense is deemed to be based on the “same act or omission” as the originally charged offense, the Kellett rule will bar re-trial on the non-lesser included offense or other interrelated offenses.  (See People v. Lohbauer (1981) 29 Cal.3d 364, 373 [after California Supreme Court reversed conviction for defendant charged with burglary but convicted of non-lesser included offense of entering a noncommercial dwelling without the permission of the owner, the court held the Kellett rule barred a subsequent prosecution for the latter offense because it was not joined in the original proceeding]; People v. Broussard (1977) 76 Cal.App.3d 193, 198-199 [after appellate court reversed conviction of defendant charged with attempted murder and voluntary manslaughter but convicted of the non-existent crime of attempted involuntary manslaughter, the court held the prosecution was barred by the Kellett rule from subsequently charging defendant with any other offenses based on the same act or omission such as assault with a deadly weapon]; People v. Tatem (1976) 62 Cal.App.3d 655, 658-659 [after appellate court reversed conviction of defendant who had been charged with burglary but only convicted petty theft under the erroneous belief the petty theft was a lesser included offense, a future prosecution for the petty theft was held barred by the Kellett rule since  the petty theft was based on the same act as the burglary and it was not joined in the original prosecution].)

5.          Juvenile Proceedings:

In the context of juvenile proceedings, while “‘conviction’ and ‘sentence’ are terms of art not generally applicable to juvenile proceedings,. . . under juvenile rules, the sustaining of charges after a jurisdictional hearing ... would be equivalent to an adult conviction, and the dispositional hearing would be equivalent to an adult sentencing.”  (In re R.L. (2009) 170 Cal.App.4th 1339, 1343.)  Thus, where a minor has not been acquitted of an offense nor has received a disposition that was equivalent to a sentence before the amended petition was filed, the Kellett rule does not bar adding charges stemming from the same incident before the dispositional hearing.  (See In re R.L. (2009) 170 Cal.App.4th 1339, 1343 [no Kellett issue in amending juvenile petition after juvenile admitted allegation and was referred for evaluation but before dispositional hearing occurred prosecution added four additional charges stemming from same event]; cf., In re Benny G. (1972) 24 Cal.App.3d 371, 375–377 [where petition alleging minor had committed armed robbery was found to be not true, later petition alleging minor was accessory to same robbery was barred by Kellett rule].)

 6.         To Avoid the Kellett Rule, a Prosecutor Who is Aware of Related Charges May Need to Do More Than Simply Notify the Court of the Existence of Other Charges

Once a prosecutor becomes aware of the existence of additional charges that might be barred by the Kellett rule, the prosecutor should immediately ask for a halt in the proceedings and seek an opportunity to join all the charges together.  If the prosecution cannot join the charges immediately, the prosecutor should ask for a continuance to do so.   This advice is premised on the holdings in People v. Andrade (1978) 86 Cal.App.3d 963 and In re Benny G. (1972) 24 Cal.App.3d 37. 

In People v. Andrade (1978) 86 Cal.App.3d 963, the defendant was held to answer for manslaughter.  The prosecution later filed an information charging the defendant with being a felon in possession of a firearm stemming from the same incident as the manslaughter.  On the same date as the filing of that information, the prosecution moved to consolidate the possession charge with the previous manslaughter case.  The next day defendant pleaded guilty to the possession charge.  The prosecution again requested consolidation of the two cases and requested that the sentencing be delayed until after the manslaughter trial.  However, the defendant was sentenced on the possession charge.  The trial court subsequently granted defendant’s Kellett motion barring prosecution of an involuntary manslaughter charge, but the appellate court reversed because, inter alia, the People had made good faith efforts to prevent multiple prosecution by making a motion to consolidate the cases - a motion the appellate court held should have been granted immediately.  (Id. at pp. 967-969.)

In In re Benny G. (1972) 24 Cal.App.3d 37, a juvenile petition was filed based on an alleged robbery.  The day before the hearing, the same probation officer who filed the original petition filed an amended petition that included the allegation that the minor had been an accessory in the same robbery.  The minor’s attorney objected to a hearing on the accessory charge because of the late notice.  Although the prosecutor explained the two allegations involved basically the same facts and circumstances, the juvenile court decided to proceed to hearing only on the original petition and found the petition untrue.   When the probation officer filed a new petition shortly thereafter alleging the accessory charge, the juvenile court found that allegation to be true.   (Id. at pp. 373-374.)  On appeal, the minor claimed the second proceeding was barred by the Kellett rule.  Strangely, the appellate court agreed, even though the appellate court recognized that the prosecutor and the probation officer attempted to have both allegations considered at the first hearing and that the juvenile court had heard evidence on the first allegation only to give the defense attorney more time to prepare a defense to the second allegation!  (Id. at pp. 376-377.)  The appellate court recognized the Kellett rule is inapplicable when joinder is prohibited or severance is properly permitted, but held neither of those circumstances applied since the prosecutor did not ask for a continuance to have a hearing on the amended petition.  (Id. at p. 376.)  

L.       Does the Kellett Rule Apply in Juvenile Proceedings?

“The Kellett rule applies to juvenile proceedings. (In re R.L. (2009) 170 Cal.App.4th 1339, 1343, citing to In re Dennis B. (1976) 18 Cal.3d 687, 692–696 and In re Benny G. (1972) 24 Cal.App.3d 371, 375–377.)

M.      Does the Kellett Rule Apply in Contempt Proceedings?

 1.         In In re Marriage of Rice and Eaton (2012) --- Cal.Rptr.3d ---- [2012 WL 1114347], the court held that because a civil contempt proceeding is criminal in nature (due to the penalties that may be imposed) and because “[a]lleged contemners are entitled to most constitutional rights guaranteed to all criminally accused persons,” the Kellett rule applies to prevent an alleged contemner from being serially prosecuted for contemptuous acts that occur in the same course of conduct.  (Id. at p. *5 [albeit finding, at p. *6, that the specific contempts in the case before it, i.e., failure to pay child support, were not subject to the Kellett rule because repeated failures to pay child support do not constitute a continuing course of conduct, the acts do not overlap in beginning, duration or end; they each occur at different times; and evidence a defendant failed to pay child support in one month does not supply proof that he failed to pay child support in another month].)

 2.         In In re Farr (1976) 64 Cal.App.3d 605, the court held that the preclusion of multiple prosecution contained in section 654 applies to the criminal contempt process.  Thus, the court found a newspaper reporter was improperly subjected to a second criminal contempt proceeding where both criminal contempt proceedings arose from the reporter's alleged violation of publicity order in a criminal trial by soliciting attorneys to provide him with transcript of prospective testimony of witness, and thereafter refusing to disclose the identity of such attorneys, and the reporter was acquitted in the first contempt proceeding.  (Id. at pp. 615-616.)

N.       Some Cases Holding Kellett Rule Not Applicable

People v. Valli (2010) 187 Cal.App.4th 786 [discussed in greater depth, this P&A memo, section C, pp. 6-8]

             In re R.L. (2009) 170 Cal.App.4th 1339, 1343 [see this P&A memo, section K, p. 20]

People v. Kelley (1997) 52 Cal.App.4th 568, 573-576 [see this P&A memo, section I, p. 15]

People v. Cuevas (1997) 51 Cal.App.4th 620, 622-626  [separate prosecutions for cocaine sales occurring on different occasions permitted even though law enforcement knew about all offenses and could have charged them in single proceeding]

People v. Andrade (1978) 86 Cal.App.3d 963 [see this P&A memo, section K, p. 21]

People v. Turner (1985) 171 Cal.App.3d 116 [separate prosecutions for interrelated crimes of corporal punishment and sexual abuse on same child permitted since prosecutor unaware of latter at time of guilty plea in former (discussed in greater depth this P&A memo, section D at p. 9]

People v. Hartman (1985) 170 Cal.App.3d 572 [in dicta barring murder prosecution where defendant was convicted of forging victim’s checks cashed the day after the murder]

People v. Martin (1980) 111 Cal.App.3d 973, 977-978 [where defendant involved in a burglary during which a shotgun was stolen, separate prosecutions for possessing the (now sawed-off) shotgun a week later  original and burglary permitted since evidence in both cases mutually exclusive except for minor overlap]

People v. Hurtado (1977) 67 Cal.App.3d 633 [no joinder of DUI and possession of heroin required where police found heroin between legs of defendant stopped for drunk driving where the evidence in the two cases was for the most part mutually exclusive as proof of the drunk driving charge was supplied primarily by the observations of the highway patrol officers made after defendant was stopped and given certain sobriety tests and proof of the heroin charges hinged upon the discovery of the cigarette package filled with heroin, which occurred after the arrest for drunk driving had been made]

In re Dennis B. (1976) 18 Cal.3d 687 [discussed in greater depth this P&A memo, section E, pp. 11-12]

Stackhouse v. Municipal Court (1976) 63 Cal.App.3d 243 [no joinder required of vehicle code offenses of hit and run, reckless driving, and possession of open beer with possession of less than an ounce of marijuana found in car (discussed in greater depth this P&A memo, section G at p. 14].

People v. Eckley (1973) 33 Cal.App.3d 91, 93, 95-98 [Kellett rule did not bar a grand jury indictment for various crimes, including grand theft and unlawful practice of medicine, where defendant had previously been convicted by plea of no contest to a misdemeanor complaint filed by the city attorney of practicing medicine without a license and the misdemeanor charge related to an identifiable single incident while the indictment was based on testimony presented by the district attorney to the grand jury allegedly indicating widespread involvement of defendant in defrauding the Medi-Cal program by filing false claims for services rendered to many patients over an extended period of time]

People v. Ward (1973) 30 Cal.App.3d 130, 136-137 [no joinder of sex acts required where defendant raped one woman in one county, placed the woman in the trunk of his car, then drove off with the woman’s daughter whom he forcibly orally copulated in another county -even though both sex acts occurred in same vehicle on the same night].

             People v. Breland (1966) 243 Cal.App.2d 644 [see this P&A memo, section I, p. 16]

People v. Douglas (1966) 246 Cal.App.2d 594, 596-597 [where defendant and co-defendant committed a series of robberies and assaults over the course of several months and subsequently killed an officer who tried to arrest them for the earlier offenses, separate prosecutions for murder and earlier robberies and assaults permitted].

People v. Howell (1966) 245 Cal.App.2d 787, 789-792 [where defendant was involved in a hit and run accident in one city and then continued to drive and was involved in second hit and run in another city before being  stopped for DUI, Kellett rule did not bar separate prosecutions]

O.       Cases Holding Kellett Rule Applicable

People v. Britt (2004) 32 Cal.4th 944, 954-956 [finding Penal Code section 290 registrant could not be separately prosecuted for failing to notify authorities in one county of his movement to another county in violation of former section 290(a)(1)(A) and for failing to notify authorities in the second county of his movement in violation of former section 290(f)(1) where both offenses were based on a single indivisible course of conduct, both could be joined, the counties were contiguous and prosecutor in second county knew of pending charges in first county and had agreed to let them proceed first]

Kellett v. Superior Court (1966) 63 Cal.2d 822 [prosecution for being ex-felon in possession of firearm barred after defendant pled guilty to misdemeanor charge of brandishing firearm where both charges stemmed from a single arrest of defendant for standing on a public sidewalk with a pistol in hand]

People v. Ochoa (2016) 248 Cal.App.4th15 [prosecution for conspiracy to distribute methamphetamine for the benefit of a gang was barred by earlier prosecution and conviction of conspiracy to distribute methamphetamine even though there were two separate investigations and the coconspirators in the two prosecutions were different.  The time periods covered by the two investigations overlapped, covered some of the same evidence, both prosecutions were filed by the same D.A. and both investigations were partially assisted by the same police department]

Barriga v. Superior Court (2012) 206 Cal.App.4th 739, discussed in more detail in section D.5 on pages 8-9 of this P&A.  (Holding that Kellett rule applied where prosecutor was unaware of evidence supporting defendant’s conviction of carjacking at the time defendant was charged with 10851 of the same car for lack of due diligence in investigating:  only after the defendant was convicted for lesser offenses, police obtained a search warrant for defendant’s cell phone that contained incriminating evidence, and prosecution offered no evidence as to the reason for the delay.)

People v. Witcraft (2012) 201 Cal.App.4th 659 [discussed in greater depth in this P&A memo, section I at pp. 16-17]

People v. Superior Court (Jefferson) (2002) 97 Cal.App.4th 530, 538 [noting, in dicta, that Kellett rule would require a defendant to be jointly charged with felony drug possession and misdemeanor solicitation where drugs were found pursuant to the arrest for misdemeanor solicitation].)

Sanders v. Superior Court (1999) 76 Cal.App.4th 609, 612, 615 [Kellett rule barred prosecution of defendant with 10 counts of forgery and 10 counts of presenting false documents based on the identical evidence that was used to prosecute defendant on 10 counts of grand theft where the original counts of grand theft were reversed on appeal due to insufficiency of the evidence]

In re Benny G. (1972) 24 Cal.App.3d 371, 375–377 [Kellett rule required overturning results of prosecution of minor for being accessory to armed robbery where minor had earlier been found not guilty of the same robbery and the same witnesses testified at hearings of each petition and gave essentially the same testimony]

People v. Wasley (1970) 11 Cal.App.3d 121, 123-124 [Kellett rule barred later prosecution of defendant, an ex-convict, for possession of firearm used in robbery after defendant was acquitted of robbery where prosecution knew every fact necessary to prosecute the defendant for the latter violation at the time of the earlier prosecution]