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People v. Adams1/27/2003
NOT TO BE PUBLISHED
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
Pursuant to a negotiated plea agreement, defendant Tamatra Lorraine Adams pled no contest to receiving stolen property. (Pen. Code, § 496, subd. (a).) In return, the prosecution agreed defendant would not be sent to state prison and agreed to dismiss six additional charges. At the sentencing hearing, the trial court denied defendant's motion to dismiss the case based on the multiple prosecution prohibitions of section 654 and Kellett v. Superior Court (1966) 63 Cal.2d 822 (Kellett).
The trial court granted defendant's application for a certificate of probable cause. On appeal, defendant contends the trial court erred by denying her motion to dismiss because her guilty plea to a misdemeanor drug charge, arising from the same facts, was entered before the current charges were filed. We conclude the motion was properly denied and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Because defendant pled no contest, waived a preliminary hearing, and stipulated to a factual basis for the plea, the following facts are taken from the police reports attached to the defense's motion to dismiss.
On December 24, 2001, following a report of use of a stolen credit card, Sacramento police searched a motel room complex. Defendant was asleep in one of the bedrooms. The police found narcotics paraphernalia in each room, along with stolen and forged checks, financial information, and credit cards. Defendant and two other people were arrested.
According to defendant's motion to dismiss, defendant was taken to court on December 27, 2001, and told that the case against her was a misdemeanor. On December 28, 2001, defendant entered a no contest plea to possession of drug paraphernalia in case No. 01M14368. (Health & Saf. Code, § 11364.) In return, she was apparently given credit for five days served in custody, with the promise that the case would be dismissed on April 29, 2002, if she provided proof of attendance at 20 Narcotics Anonymous meetings. Defendant was released from custody.
On January 15, 2002, the district attorney filed the current seven- count complaint against defendant and the other arrestees. Defendant was again arrested on February 13, 2002. On March 22, 2002, she entered into the current plea agreement, with the promise that the trial court would entertain her motion to dismiss the felony case at the time of sentencing.
On April 29, 2002, misdemeanor case No. 01M14368 was apparently dismissed.
On May 7, 2002, the trial court denied defendant's motion to dismiss the felony case. The trial court found that the felony conviction was not barred because the misdemeanor case resulted in a dismissal, not an acquittal or conviction. The trial court also ruled that multiple prosecutions were not barred because the two cases had no common elements.
DISCUSSION
I.
Defendant contends that the statutory bar against multiple prosecutions required dismissal of this case. The contention is cognizable on appeal despite defendant's no contest plea. (See People v. Turner (1985) 171 Cal.App.3d 116, 128-129.) We conclude the court properly denied the dismissal motion because the misdemeanor drug charge was not based on the same criminal act or course of conduct as the felony charge of receiving stolen property. Further, prosecution on the felony charge was n
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