Opinion
I. Statement of the Case
Defendant David Lynn Witcraft pleaded no contest to causing a false or fraudulent insurance claim to be filed. (Pen. Code, § 550, subd. (a)(1).)
Defendant also filed a petition for a writ of habeas corpus in which he raises the same claim. We ordered that the petition be considered with the appeal, and we shall resolve both the appeal and petition in this decision.
We affirm the judgment on appeal. However, we issue an order for the Attorney General to show cause why defendant is not entitled to relief on habeas corpus.
II. Facts and Procedural History
On February 5, 2009, defendant was driving a white Ford Ranger pickup truck when he rear-ended Mary Jo Greenlee, injuring her and damaging her
Mrs. Greenlee’s husband, Officer Stephen Greenlee of the San Jose Police Department, also arrived at the scene and observed defendant’s Ford Ranger, its license plate, and the damage to his wife’s car.
On February 6, Mrs. Greenlee called Esurance, reported the accident, and made a claim (No. 99343) against the policy identified on defendant’s insurance card. On February 7, Officer Greenlee called Esurance and learned that although the insurance policy number was correct, that policy did not cover a vehicle with the license plate number recorded in Officer Ochoa’s police report.
On February 9, Heran Flores, an Esurance claims representative, called defendant to follow up on Mrs. Greenlee’s claim and secure a recorded statement about the accident. Defendant said that he had been driving a rented Ford van. Defendant promised to forward a copy of the rental contract, but he never did, and Esurance was unable to obtain one. Accordingly, Esurance denied Mrs. Greenlee’s claim.
On April 2, 2009, the Santa Clara County District Attorney filed a complaint (People v. Witcraft, supra, CC939004) charging defendant with receipt
On December 11, 2009, the district attorney filed a second complaint (case No. CC963746) alleging that on February 5 and 9, defendant presented a false insurance claim or caused a false claim to be filed, in violation of section 550, subdivision (a)(1). On April 29, 2010, before the preliminary hearing, defendant filed a motion to dismiss the complaint on the ground that the prosecution was barred under section 654. On June 5, the trial court denied the motion, and on July 30, after the preliminary hearing, defendant was held to answer. On September 20, defendant pleaded no contest to the charge.
III. The Appeal
Defendant contends that counsel rendered ineffective assistance by failing to renew the motion to dismiss after the preliminary hearing, an omission that forfeited any claim that the second case was barred by section 654.
To obtain reversal due to ineffective assistance, a defendant must first show “that defense counsel’s performance fell below an objective standard of reasonableness, i.e., that counsel’s performance did not meet the standard to be expected of a reasonably competent attorney.” (People v. Cunningham (2001)
Because the defendant bears this burden, “[a] reviewing court will indulge in a presumption that counsel’s performance fell within the wide range of professional competence and that counsel’s actions and inactions can be explained as a matter of sound trial strategy.” (People v. Carter (2003)
The record on appeal does not reveal why trial counsel failed to renew the motion to dismiss. However, defendant has included an explanatory letter from counsel as an exhibit to the petition for habeas corpus.
Under the circumstances, we shall affirm the judgment on appeal and address defendant’s claim in connection with our review of the habeas corpus petition.
IV. The Habeas Corpus Petition
To warrant the issuance of an order to show cause, defendant bears the burden of stating a prima facie case for habeas corpus relief. (In re Bower (1985)
In his letter, trial counsel explained that after the preliminary hearing, he did not renew the motion because he thought the initial motion would preserve for appeal defendant’s claim under section 654.
Before unification of the superior and municipal courts, the failure to renew a motion that had been denied before the preliminary hearing forfeited the claims raised in the motion.
Defendant’s claim of ineffective assistance hinges on whether a renewed motion to dismiss would have been granted. If it would have, then counsel’s failure to have renewed it after the preliminary hearing would demonstrate ineffective assistance. The omission could not have reflected a reasonable tactical decision; and its prejudice would be obvious, in that defendant unnecessarily faced a second prosecution.
A. Applicable Principles
Section 654 provides in relevant part: “An acquittal or conviction and sentence under any one [provision of law] bars a prosecution for the same act or omission under any other.” (§ 654, subd. (a).) In Kellett v. Superior Court (1966)
There is an exception to the Kellett rule “where the prosecutor ‘ “ ‘is unable to proceed on the more serious charge at the outset because the additional facts necessary to sustain that charge have not occurred or have not been discovered despite the exercise of due diligence.’ ” ’ ” (People v. Davis (2005)
Moreover, “Kellett does not require, nor do the cases construing it, that offenses committed at different times and at different places must be prosecuted in a single proceeding.” (People v. Cuevas (1996)
B. Discussion
Defendant notes that all the charges in the first case arose from his course of conduct on February 5. That course of conduct included providing false insurance information to Mrs. Greenlee and Officer Ochoa, and that particular conduct was the factual basis underlying his conviction under Vehicle Code section 31 for providing false information to a peace officer. Defendant asserts that giving Mrs. Greenlee false insurance information after the accident with the implication that his insurance would provide coverage caused her to file what turned out to be a false claim against his Esurance policy. Thus, defendant argues that because the evidence of his conduct on February 5 was essential proof of liability in both cases, section 654 and the Kellett rule barred the second prosecution.
The Attorney General claims that defendant is mistaken about the conduct underlying the charge in the second case. According to the Attorney General, the charge under section 550, subdivision (a)(1) for presenting a false insurance claim was not based on defendant’s course of conduct on February 5 but rather on defendant’s subsequent false statements on February 9 to the Esurance representative about driving a rental vehicle at the time of the accident. Thus, because the second case was based on conduct separate and different from the conduct underlying the first case, further prosecution was permisssible.
We reject the Attorney General’s claim. The record establishes that after the preliminary hearing, the prosecution for violating section 550, subdivision (a)(1) could not have been based on defendant’s false statements
In his motion to dismiss, defendant claimed the second case was barred because the alleged violation of section 550, subdivision (a)(1) arose from the same course of conduct for which he was prosecuted in the previous case, and therefore the second prosecution would involve recycling the same evidence, including that he gave false insurance information to Mrs. Greenlee and Officer Ochoa. He also claimed that all of the facts necessary to prosecute him for presenting a false claim, including his false statements to the Esurance representative just days after the accident, were available and could, and should, have been discovered had the prosecutor exercised due diligence.
In opposition to the motion, the prosecutor asserted that the charges under section 550 were based solely on the fact that defendant made false statements to Esurance days after the accident, and but for those statements, there would have been no prosecution under section 550. Thus, the evidence necessary to prove the violation of section 550—an insurance policy and false and material statements—was separate and distinct from that used to prosecute the crimes charged in the first case.
At the hearing on the motion, the parties reiterated their positions, and the court denied the motion. It adopted the prosecutor’s theory that the second case was based on different acts committed at a different time than the acts underlying the first case. The case then proceeded to the preliminary hearing.
At the preliminary hearing, Officer Ochoa testified about what happened when he arrived at the scene of the accident on February 5, including that defendant gave him registration and insurance information and that later investigation of the license plate on the Ford Ranger revealed Sears to be the registered owner. Paul Campos, field investigator for Esurance, testified that defendant had a standard automobile insurance policy for property damage and personal injury that he may cause while driving a covered vehicle. He said that on February 6, Mrs. Greenlee filed a claim against defendant’s Esurance policy based on the information defendant had given her. He noted that at that time, defendant’s Ford Ranger was not covered because he previously had removed it from his policy. Later, an Esurance representative called defendant about Mrs. Greenlee’s claim to discuss the accident. Their conversation was recorded and transcribed.
At this point in the hearing, the prosecutor asked Mr. Campos what defendant had said to the representative. Defense counsel raised a hearsay
At the close of testimony, defense counsel claimed that the prosecutor had not shown that defendant knowingly presented or knowingly caused Mrs. Greenlee to present a false claim to Esurance. He argued that although defendant gave Mrs. Greenlee bad insurance information, he did not expect her to make a claim or intend to defraud anyone.
The prosecutor noted that section 550, subdivision (a)(1) proscribed personally presenting a false claim or causing another to do so. Although previously, in opposition to the motion to dismiss, the prosecutor had argued that but for the false statements to the Esurance representative there would be no second prosecution, the prosecutor now offered two theories of liability. The prosecutor argued that defendant could be held liable because he gave Mrs. Greenlee false information and “caused [her] to make a claim against Esurance based on the representation that the vehicle he was driving was covered” (italics added); alternatively, he argued that “what [defendant] caused here is to be—he claimed that he had a vehicle that was rented that would have been covered, and it was not covered because he wasn’t driving a rented vehicle, from the evidence.” “So any way you look at it, it falls within [the statute].”
Presumably because there was no evidence that defendant directly presented an insurance claim, false or otherwise, and because the hearsay
Thus, to recap, the court denied the motion to dismiss on the theory that the two cases against defendant were based on entirely different conduct: the charges in the first case were based on defendant’s conduct during the February 5 incident; the charge in the second case was based on his false statements to Esurance on February 9. Later, however, the court held defendant to answer in the second case on the theory that defendant’s conduct on February 5 caused Mrs. Greenlee to file a false claim. Moreover, defendant could not have been held to answer based on his false statements because evidence of his statements was admitted only for the nonhearsay purpose of explaining Esurance’s subsequent actions on Mrs. Greenlee’s claim.
Given this procedural history, we return to the question of whether a renewed motion to dismiss after the preliminary hearing would have been granted. It seems clear that the prosecutor could not have opposed a renewed motion on the same ground he asserted before—i.e., that the second case was based exclusively on defendant’s false statements to Esurance. Indeed, at the preliminary hearing, the prosecutor abandoned exclusive reliance on defendant’s false statements as the basis for the charge. Rather, after the preliminary hearing, the factual basis for the second prosecution could only have been defendant’s course of conduct on February 5, and more specifically his giving false insurance information to Mrs. Greenlee which caused her to file a false claim.
Because that course of conduct was the basis for all of the charges in the first case, section 654 and the Kellett rule would have barred a second
Before addressing this claim, we review a few cases concerning the unavailable-evidence exception.
In Davis, supra,
In Stearns, supra,
In Davis, supra,
In In re Benny G. (1972)
With these cases in mind, we turn to the Attorney General’s claim that the exception for previously unknown or unavailable evidence applied. The Attorney General argues that the prosecutor in the first case—Andrea Griffin— did not learn about defendant’s false statements to Esurance until after defendant had pleaded no contest in the first case, and therefore, she did not have a sufficient basis to add a charge of presenting a false insurance claim under section 550, subdivision (a)(1). To support this argument, the Attorney General cites the declarations filed in opposition to the motion to dismiss.
Ms. Griffin declared that in preparing the first case for trial, she did not review, obtain, or seek records from Esurance. Nor did she ever discuss defendant or the first case with Charlotte Chang, the initial prosecutor in the second case. And when defendant finally pleaded no contest, Ms. Griffin was still unaware that defendant had made false statements to Esurance. She did not learn about them until November or December 2009, when Michael Fletcher, who had taken over the second prosecution from Ms. Chang, told her.
Ms. Chang declared that she was unaware of the first prosecution and never spoke to Ms. Griffin. She first learned about defendant’s false statements to Esurance when Mr. Campos called her in June 2009 and said he was investigating what appeared to be a false insurance claim. Ms. Chang arranged to get the Esurance file and assigned an investigator—John Kracht—to investigate. His investigation was not complete until November, at which time the information he had gathered was given to Mr. Fletcher who filed the complaint in December 2009.
These declarations reveal that neither Ms. Griffin nor Ms. Chang knew about defendant’s false statements before June 2009. We observe that if Mr. Fletcher had charged defendant with a violation of section 550, subdivision (b)(1)—making false statements in support of an insurance claim (see fn. 9, ante)—then the Attorney General’s focus on when authorities learned about the false statements would be crucial in determining whether the exception applied. However, defendant was charged with causing a false claim to be presented in violation of section 550, subdivision (a)(1). Defendant’s false statements were neither the actus reus of the charged offense nor the sine qua non for a conviction. Indeed, there was no admissible evidence
In that regard, the record reveals that Officer Ochoa and Officer Greenlee knew that at the time of the accident, defendant had given Officer Ochoa and Mrs. Greenlee insurance information, implying that her damages and injuries were covered. Officer Greenlee knew that his wife had filed a claim the next day. And the next day, Officer Greenlee inquired about that claim. He learned that there was a problem because the policy did not cover a vehicle bearing the license plate number identified in the police report. Officer Greenlee decided to investigate further. He took the number of the license plate attached to the Ford Ranger and discovered that defendant was not the registered owner of the vehicle to which the plate belonged. This led Officer Greenlee to Sears, where he learned that the license plate belonged on a Sears van that defendant had had access to before he was terminated.
The record further reveals that at the preliminary hearing in the first case, Ms. Griffin elicited testimony from Officers Greenlee and Ochoa about the false insurance information defendant had provided after the accident, Mrs. Greenlee’s subsequent claim against defendant’s policy, and Esurance’s initial response to Officer Greenlee that his wife’s claim was not covered. Moreover, at that hearing, Ms. Griffin amended the original complaint to charge defendant with a violation of Vehicle Code section 31 based on the false insurance information he had given to Officer Ochoa.
Given the record, we conclude that Ms. Griffin knew or should have known that defendant had caused Mrs. Greenlee to file a claim with Esurance under suspicious circumstances and that Esurance had initially determined that the claim was not covered.'These facts provided a substantial basis to suspect and investigate whether, in addition to the other alleged offenses arising from defendant’s course of conduct on February 5, he may also have caused Mrs. Greenlee to file a false claim in violation of section 550, subdivision (a)(1). Moreover, had she investigated further with Esurance, she
This is not a case like Davis, where crucial evidence necessary to charge and convict the defendant did not exist until after the defendant had been convicted in a prior case and served his sentence. Rather, the primary evidence necessary to charge, hold defendant to answer, and convict him under section 550, subdivision (a)(1) existed and was known by the prosecutor at the time the complaint in the first case was filed and certainly by the time of the preliminary hearing.
This is also not a case like Stearns, where authorities had reason to suspect the defendants and conducted a reasonably diligent investigation but were unable to discover the evidence necessary to confirm that suspicion despite a reasonably diligent investigative effort. Again, Ms. Chang charged defendant with providing false information to Officer Ochoa, and she knew defendant had also provided it to Mrs. Greenlee, who then filed a claim that Esurance initially determined was not covered. Ms. Chang also knew that defendant had put a stolen license plate on the Ford Ranger that he had been driving when he hit Mrs. Greenlee. Simply put, these circumstances strongly suggested a violation of section 550, subdivision (a)(1) and reasonably diligent further investigation would have confirmed that suspicion. Given these circumstances, we find this case to be more like Benny G., where the second petition was barred.
It follows from our analysis that if defense counsel had renewed the motion to dismiss immediately after the preliminary hearing, the motion would have been granted. Accordingly, we conclude that defendant’s claim of ineffective assistance states a prima facie case for relief by writ of habeas corpus.
V. Disposition
The judgment on appeal is affirmed.
We issue an order to show cause returnable before the superior court directing the Attorney General to show cause why defendant’s conviction
Premo, J., and Elia, J., concurred.
Notes
All unspecified statutory references are to the Penal Code.
Defendant obtained a certificate of probable cause from the trial court to raise this claim despite his plea. (§ 1237.5, subd. (b).)
Previously, we issued an opinion in this case affirming the judgment and denying the writ petition. However, we granted defendant’s petition for rehearing to reconsider our decision concerning his writ petition.
Our background summary of facts and procedural history is based on the reporter’s and clerk’s transcripts in this case and on a number of documents in People v. Witcraft (Super. Ct. Santa Clara County, No. CC939004) namely the complaint, the clerk’s minutes of the change of plea and sentencing hearings, and the transcript of the preliminary hearing.
Defendant’s policy had covered the Ford Ranger. However, defendant had the Ford Ranger removed from the policy in July 2008. Thus on the day of the accident, the Ranger was not covered.
Defendant had worked for Sears repairing appliances.
“As a result of a 1988 primary election, the California voters enacted Proposition 220 under which it became permissible for municipal and superior courts to become unified and which authorized a state Constitution amendment reflecting the modification of the jurisdiction of trial and appellate courts. (Cal. Const., art. VI, §§ 10, 11.) ‘ “On unification of the trial courts in a county, all causes will be within the original jurisdiction of the superior court. . . . In a county in which the courts have unified, the superior court has original jurisdiction of limited civil cases, but these cases are governed by economic litigation procedures, local appeal, filing fees, and the other procedural distinctions that characterize these cases in a municipal court.” [Citations.]’ [Citation.]” (Giorgianni v. Crowley (2011)
It also admitted the transcript of defendant’s conversation for that purpose.
We note that although the information charged defendant with violating section 550, subdivision (a)(1), evidence that defendant made false statements would have supported a charge under subdivision (b)(1), which proscribes making false statements to an insurance company in support of another’s claim. However, because no admissible evidence of such false statements was taken at the preliminary hearing, the information could not have been amended to charge a violation of section 550, subdivision (b)(1); nor could defendant have been convicted of that offense even if evidence of his false statements were admitted at trial. (§ 1009 [information cannot be amended to charge a crime not shown by evidence taken at the preliminary hearing]; e.g., People v. Dominguez (2008)