Kellett v. Superior Court

In Kellett v. Superior Court (1966) 63 Cal.2d 822, the Supreme Court considered the policy factors underlying section 654. Section 654 contains two separate provisions. The first precludes multiple punishments where an act or omission is made punishable by different penal provisions. The second bars multiple prosecutions and is a safeguard against harassment of a defendant by successive prosecutions. It is not necessarily related to the punishment to be imposed. (Neal v. State of California (1960) 55 Cal.2d 11, 21.) The court in Kellett concluded that section 654 prohibited successive prosecutions in order to avoid (1) needless harassment of the defendant and (2) the waste of public funds where the prosecution was or should have been aware of more than one offense in which the same act or course of conduct played a significant part. (Kellett, supra, 63 Cal.2d at pp. 826-827.) Failure to unite all these offenses results in a bar to subsequent prosecution of any offense omitted in the initial proceedings that resulted in a conviction and sentence. (Id. at p. 827.) The defendant was arrested for standing on a public sidewalk with a pistol in his hand. He was first charged with a misdemeanor possession of a firearm and later charged with a felony possession when it was discov-ered that he had previously been convicted of a felony. The defendant pleaded guilty to the misdemeanor and moved to dismiss the felony on the ground that it was barred by section 654. The Supreme Court held: "If only a single act or an indivisible course of criminal conduct is charged as the basis for a conviction, the defendant can be punished only once although he may have violated more than one statute. Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. " (Kellett, supra, 63 Cal.2d at pp. 824-825.) The Kellett court further explained that section 654's preclusion of multiple prosecution is separate and distinct from its preclusion of multiple punishment and that double prosecution may be prohibited even when double punishment is permitted. (Id. at p. 825.) The court also observed that the Legislature, in a series of amendments to section 954, had expressed its intent that related offenses be joined in a single prosecution. (Id. at p. 826.) The Kellett court concluded: "When, as here, 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.) "Thus, if an act or course of criminal conduct can be punished only once under section 654, either an acquittal or conviction and sentence under one penal statute will preclude subsequent prosecution in a separate proceeding under any other penal statute. " (Id. at p. 828.) Kellett held that "when there is a course of conduct involving several physical acts, the actor's intent or objective and the number of victims involved, which are crucial in determining the permissible punishment, may be immaterial when successive prosecutions are attempted." (Kellett, supra, 63 Cal.2d at p. 827.) "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 offense will result in a bar to subsequent prosecution of any offense omitted if the initial proceedings culminate in either acquittal or conviction and sentence." (Ibid.) The reason is to prevent harassment of a defendant and to avoid the expense of an unwarranted repetition of the same evidence. (Id. at p. 826.) The Supreme Court held that the Legislature intended by amendments to Penal Code section 954 to require joinder of related offenses in a single prosecution to prevent harassment of the defendant and to achieve judicial economy ( id. , at pp. 825-827). Nothing in Kellett suggests the Supreme Court or the Legislature intended the procedural safeguards gov-erning felonies to be extended to misdemeanors. In interpreting sections 654 and 954 in conjunction with the due process clause of the Constitution, the court stated in Kellett that "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. When there is a course of conduct involving several physical acts, the actor's intent or objective and the number of victims involved, which are crucial in determining the permissible punishment, may be immaterial when successive prosecutions are attempted." (Kellett, supra, 63 Cal.2d at p. 827) The Court held: "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." (63 Cal.2d at p. 827.) Kellett was arrested while standing on the sidewalk with a gun in his hand. (Id. at p. 824.) He was initially charged with exhibiting a firearm in a threatening manner, a misdemeanor. (Ibid.) Kellett was subsequently charged in a separate case with felony possession of a concealable weapon by a person who has been convicted of a felony. (Ibid.) After pleading guilty to the misdemeanor charge, Kellett was sentenced to a 90-day jail term. (Ibid.) His subsequent motion to dismiss the felony offense under section 654 was denied by the trial court. (Ibid.) The Supreme Court issued a writ of prohibition preventing Kellett's trial because the same act or course of conduct (carrying the gun on the sidewalk) played a significant part in both the misdemeanor and felony offenses, and the misdemeanor offense resulted in conviction and sentence. (Kellet, supra, 63 Cal.2d at p. 827.) Consequently, failure to unite these offenses resulted in a bar to the subsequent prosecution. (Ibid.)