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People v. Garcia5/14/2003
, 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. [ ] 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." (Id. at p. 827.)
The case of People v. Howell (1966) 245 Cal.App.2d 787 is factually similar to the instant case. In Howell, the defendant drove while intoxicated and caused two hit and run accidents in the County of Los Angeles during the course of one evening. The first accident occurred in Monrovia, and the defendant immediately left the scene. He then drove three miles, caused a second accident in Duarte, and left the scene. A witness followed the defendant and stopped him three miles later in Azusa. The police were summoned and arrested the defendant for driving under the influence . (Id. at p. 788.)
Two days later, on January 10, 1966, a misdemeanor complaint was filed for the hit and run accident in Monrovia. On the same date, in a separate judicial district of the County of Los Angeles, the defendant was charged with misdemeanor driving under the influence based on the Azusa arrest. On January 18, 1966, the defendant pleaded guilty to the Monrovia hit and run charge. The defendant later successfully moved for dismissal of the Azusa driving under the influence charge based on section 654 and Kellett. (Id. at pp. 788-789.)
The Howell court held that the bar against multiple prosecutions was inapplicable, reasoning that " riving a motor vehicle while drunk can be committed without damage to any property, and damage to property while driving a motor vehicle can be committed without being drunk. The separate offenses with which the defendant was charged in two municipal court judicial districts were separate in time, place, and character. In our opinion the two offenses did not arise out of a single physical act or `out of a course of conduct of such a nature as to amount to a single act, viz., which does not consist of divisible transactions.' (People v. Morris, 237 Cal.App.2d 773, 775.)" (Id. at p. 790.) The court further observed that " lthough there was a continuous act of driving, we think the drunk driving charge could properly be based upon the subsequent conduct of defendant, as observed by Hagan and two other witnesses, occurring after the collision with Hagan's car in Duarte and his apprehension in Azusa, which conduct was separated in time and place from that involved in the Monrovia incident. The conduct giving rise to the two offenses was divisible." (Id. at p. 792.) Similarly here defendant's drunk driving charge was properly based on her conduct in Salinas, which conduct was separated in time and place from her conduct in causing the accident and leaving the scene in Gonzales.
Defendant, however, contends that Howell was wrongly decided, because it applies a "completeness" test, merely gives lip-service to the policy considerations banning successive prosecutions, and cannot be reconciled with Kellett. We disagree.
Though the Howell court reviewed the elements of both crimes and
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