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People v. Garcia5/14/2003
found that the hit and run had been completed before the conduct constituting the driving under the influence occurred, it did so in the context of considering the divisibility of proof of the charges. Thus, the fact that the defendant in Howell was probably drunk when he caused the first accident was legally irrelevant in determining whether his course of conduct was divisible for purposes of section 654. It was irrelevant, because the proof of his intoxicated driving was produced from the later arrest. Moreover, the Howell court was distinguishing the facts before it from those presented in People v. Morris (1965) 237 Cal.App.2d 773, in which a defendant was charged in separate prosecutions for driving under the influence and driving with a suspended license. Thus, as the Howell court explained, Morris involved "one identical act of operating a motor vehicle, under the dual conditions stated, at a particular time and place. Because a motor trip is continuous it does not necessarily follow that the driver's acts along the way constitute an indivisible course of conduct." (People v. Howell, supra, 245 Cal.App.2d at pp. 791-792.) In contrast to the identical acts presented in Morris and Kellett, Howell was required to consider whether the defendant's conduct in causing a hit and run accident in Monrovia played a significant part in driving while intoxicated in Azusa. Thus, the court examined whether there were discrete events constituting criminal offenses. (See generally, In re Hayes (1969) 70 Cal.2d 604, 606-607, citing Howell, supra, with approval.)
Defendant's reliance on People v. Flint (1975) 51 Cal.App.3d 333, also does not support her position. In Flint, the police found the defendant sitting in a stolen car that was straddling the railroad tracks. They arrested him, and later that day he was charged with driving under the influence . Three days later, after prosecutors learned about the stolen car, the defendant was charged with grand theft auto and joy riding. A month later, the defendant entered a guilty plea to the driving under the influence charge. When the defendant was subsequently held to answer on the grand theft and joy riding charges, he brought a motion to dismiss on the ground of multiple prosecutions. The motion was granted and the People appealed. (Id. at p. 335.) In affirming the dismissal, the Flint court applied a "totality of the facts" test to determine whether section 654's bar against multiple prosecution applied. (Id. at p. 337.) The court concluded that the same incident, that is, that defendant was sitting in a stolen car on the railroad tracks, provided proof of both the driving under the influence and auto theft charges. (Id. at p. 338.) Thus, Flint, like Kellett, was a same act case.
The Flint court also rejected the "completion" theory discussed in Howell. However, the court acknowledged that Howell met the "totality of the facts" test. "The hit-and-run incident could only be proved by witnesses to it and the drunk-driving charge would have been supported by evidence concerning defendant's condition at the time of his arrest, regardless of the fleeting impressions of witnesses to the earlier incident. Thus, whether Howell was prosecuted once or twice, the People were bound to paint two separate pictures of his conduct." (Flint, supra, 51 Cal.App.3d 333, 337-338.)
The instant case, as in Howell, required separate proofs. The proof of defendant's hit and run related offenses was her involvement in causing the accident and leaving the scene. Evidence of her intoxication might have explained why the accident occurred, however, it was not essential to proof of the charged offenses. The proof that defendant caused an accident was not necessary to prove tha
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