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Court of Appeal, First District, Division 3, California.

IN RE: DENNIS B., a Person Coming Under the Juvenile Court Law. John A. DAVIS, as Chief Probation Officer, etc., Plaintiff and Respondent, v. DENNIS B., Defendant and Appellant.

Civ. 36720.

Decided: February 24, 1976

Layne, Brodie & Germino, Palo Alto, for defendant and appellant. Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Crim. Div., Edward P. O'Brien, Asst. Atty. Gen., Robert R. Granucci, Harriet Wiss Hirsch, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

Appellant, a minor, appeals from a juvenile court order finding him to be a person described by Welfare and Institutions Code section 602, following a hearing at which the court found him guilty of vehicular manslaughter. It is concluded, in agreement with appellant, that the juvenile court proceeding was barred by the provisions of Penal Code section 654 barring multiple prosecutions; appellant had previously been tried and convicted in municipal court of a traffic violation involving the same accident.

In the accident which led to the charges, a motorcyclist was injured when appellant changed lanes and his automobile collided with the motorcycle. The cyclist died a month later. Prior to the present proceedings in which allegations of manslaughter were sustained, appellant had been found guilty after a trial in municipal court of a violation of Vehicle Code section 21658(a) (unlawful lane change) and had been fined $10.00 by the Walnut Creek-Danville Municipal Court. Before the conclusion of that trial, the court was informed that a death had resulted from the accident.

The California Supreme Court in Kellett v. Superior Court (1966) 63 Cal.2d 822, 827, 48 Cal.Rptr. 366, 370, 409 P.2d 206, 210 held that 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’; and, that failure to charge all offenses results in a bar to subsequent prosecution of any offense omitted if the initial proceedings culminate in either acquittal or conviction and sentence.

The interpretation of the multiple prosecution bar of Penal Code section 654 by the court in Kellett was a major departure from former practice in which the constitutional guarantee against double jeopardy had been advanced as the sole rationale against multiple prosecutions. (See In re Grossi (1967) 248 Cal.App.2d 315, 320–321, 56 Cal.Rptr. 375.) The court in Kellett, however, made clear that the bar against multiple prosecutions in Penal Code section 654 is distinct from the constitutional bar against double jeopardy and does not depend for its application upon the concept of necessarily included offenses. (63 Cal.2d at p. 825, fn. 2, 48 Cal.Rptr. 366, 409 P.2d 206.) The interpretation of section 654 in Kellett rested upon the desire to avoid the needless harassment and waste of public funds resulting from repetitive trials and the recognition that multiple prosecutions posed a threat to the fundamental fairness required by constitutional due process. (63 Cal.2d at pp. 826–827, 48 Cal.Rptr. 366, 409 P.2d 206.)

Respondent relies on the cases of People v. Herbert (1936) 6 Cal.2d 541, 58 P.2d 909 and Wyatt v. Municipal Court (1966) 242 Cal.App.2d 845, 51 Cal.Rptr. 862, upon which the juvenile court referee based his decision. In People v. Herbert, the defendant was charged with reckless driving, pled guilty and received a fine of $10.00. He was later charged with manslaughter at which time he pled once in jeopardy. That defense was held to be inapplicable because the prior conviction was not a lesser included offense under the latter charge. The bar of section 654 was not advanced as a defense. Herbert was decided before the Kellett interpretation and application of Penal Code sections 954 and 654.

In the later case of Wyatt v. Municipal Court, supra, the bar of section 654 was also not discussed although Kellett had been decided several months before. Relying solely upon Herbert, the court held that the plea of once in jeopardy was ill founded in a situation wherein the defendant was charged with manslaughter following the disposition of a charge of violation of the Vehicle Code. Had the prohibition of section 654 been advanced as a defense, however, it would not have barred the prosecution under the rules set forth in Kellett and following cases.

First of all, Kellett posited the bar of the subsequent prosecution upon the fact that the initial proceedings resulted in either acquittal or conviction and sentence. Wyatt, however, did not suffer a conviction; he pleaded not guilty and forfeited bail. The court pointed out that the very purpose of a forfeiture of bail is to avoid a trial of the issue of guilt and, that while forfeiture of bail is deemed the equivalent of a conviction for certain purposes, ‘it is no less than absurd to say that whoever forfeits bail for a traffic violation thereby convicts himself of being a law violator.’ (242 Cal.App.2d at p. 849, 51 Cal.Rptr, at p. 865.) Furthermore, the misdemeanor charge in Wyatt was disposed of prior to the death of the accident victim. Where the prosecution is not aware of the likelihood of death resulting from defendant's act, a misdemeanor charge may not preclude later prosecution for homicide. (People v. Breland (1966) 243 Cal.App.2d 644, 651, 52 Cal.Rptr. 696.)

The court in Kellett recognized that section 654 would not bar a subsequent felony prosecution in certain cases where the multiple prosecutions are unavoidable, such as where a district attorney's office is reasonably unaware of the felonies when the misdemeanors are processed or where the prosecutions of different offenses are entrusted to different public law offices. (Kellett v. Superior Court, supra, 63 Cal.2d at pp. 827–828, 48 Cal.Rptr. 366, 409 P.2d 206.) Respondent urges this court to apply the above exception due to the fact that no representative of the district attorney's office was in court when the traffic offense was tried. But, given a court of competent jurisdiction, a trial is nonetheless jeopardy whether or not a district attorney is present in court.

The procedure required by Evidence Code section 459 having been followed, we take judicial notice of the facts that the district attorney, at the request of the CHP officer who had issued the citation, issued a subpoena for the prosecution witnesses on February 25, 1974, which was five weeks after the date of death; and had also signed a stipulation approving trial by a member of the Contra Costa bar as a pro tempore judge. This is not a case where the district attorney was unaware of the fact that the trial was about to commence. Whether the patrolman or the district attorney is considered the representative of the prosecution, the fact of death was either known or was so readily discoverable that it cannot be said the prosecution was reasonably unaware of the felony involved in the course of conduct described in the citation.

A district attorney's office has a role in the prosecution of traffic offenses. Kellett points out that the public as well as the accused has a vital interest in the prevention of multiple prosecutions. (See 63 Cal.2d at p. 826, 48 Cal.Rptr. 366, 409 P.2d 206.) We do not criticize the practice in many traffic courts of allowing disposition of minor offenses without the presence of a prosecuting attorney. But we do not believe that the practice absolves the prosecution from its duty to avoid multiple prosecutions by a joinder of all charges that arise out of a single act or course of conduct in a single prosecution as mandated by Kellett.

The reasoning of the court in People v. Battle (1975) 50 Cal.App.3d Supp. 1, 123 Cal.Rptr. 636 is persuasive that infractions should not be included within the rule prohibiting multiple prosecutions. We have concluded, however, that we are bound by Kellett which does not exclude offenses previously denominated as misdemeanors which are now infractions.

The order of the juvenile court, declaring appellant to be a person described in Welfare and Institutions Code section 602, is reversed.

HAROLD C. BROWN, Acting Presiding Justice.

SCOTT and GOOD,* JJ., concur.