California Cases on the Separate Times and Location Test
Under the "separate times and location test" the Kellett rule (Kellett v. Superior Court (1966) 63 Cal.2d 822) is not applicable where the offenses are committed at separate times and locations.
For example, in People v. Douglas (1966) 246 Cal.App.2d 594, defendants were involved in a series of robberies. Subsequently, the police attempted to arrest them; a gunfight ensued and an officer was killed. Defendants were indicted for murder and only one was convicted.
After the verdicts, the defendants were charged with 10 counts of robbery and other crimes, and ultimately they were convicted of the majority of the charges. They appealed. (Id. at p. 596.)
The court found Kellett did not apply to prevent the subsequent prosecutions because the offenses did not arise from the same act: "But in the present case 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; accord People v. Ward (1973) 30 Cal.App.3d 130, 132-133, 136 finding Kellett did not apply to kidnapping and rapes of separate victims where the first victim was driven from her residence to an isolated location, and the defendant later returned to the residence and kidnapped the second victim, driving her to a different isolated location; People v. Cuevas (1996) 51 Cal.App.4th 620, 623-624 rejecting application of Kellett rule to separate cocaine transactions undertaken on separate days, and noting 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"; People v. Martin (1980) 111 Cal.App.3d 973, 977-978 finding no error under Kellett where the defendant was prosecuted for possessing a sawed-off shotgun that had been taken in a burglary, and later prosecuted for the burglary.)
The evidentiary test was further refined in People v. Hurtado (1977) 67 Cal.App.3d 633, 636: "More specifically, if the evidence needed to prove one offense necessarily supplies proof of the other, we concluded that the two offenses must be prosecuted together, in the interests of preventing needless harassment and waste of public funds."
In Hurtado, defendant's plea to driving under the influence of alcohol did not bar prosecution for narcotics charges, based on balloons of heroin found when he was stopped after speeding and swerving erratically. "Evidence in the two cases, was for the most part mutually exclusive, 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. Such a trivial overlap of the evidence, however, under Kellett and Flint does not mandate the joinder of these cases." (Id. at p. 637.)
In addition, even if one or both of these tests are satisfied, courts also recognize an exception to the Kellett rule "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.)
For this exception to apply, the prosecution must have exercised due diligence in searching for additional evidence. (Ibid.)
In Davis, the victim reported being kidnapped and carjacked by three men, but neither he nor any witness could identify the persons involved in the crimes. (Id. at pp. 556-557.) Several days later, defendant was apprehended driving the victim's car. Defendant was initially charged only with the misdemeanor of unlawful taking of the victim's vehicle, to which he pled guilty. After serving his sentence for the misdemeanor, he admitted to a witness his involvement in the kidnapping and robbery. Based on his admission, he was charged with those offenses, and he was later convicted of them. (Id. at pp. 517, 556-557, 558.)
With respect to the kidnapping and robbery charges, before trial the defendant moved under Kellett and Penal Code section 654 to preclude prosecution based on the earlier misdemeanor conviction.
The Supreme Court upheld the trial court's ruling denying the motion, concluding that substantial evidence supported the trial court's finding that even with reasonable diligence, the prosecution could not have proceeded on the kidnapping and robbery charges earlier, because there was no evidence identifying defendant as one of the perpetrators until defendant admitted participating in those crimes. (Id. at p. 558.)