People v. Rubio CA3

Filed 6/29/21 P. v. Rubio CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Yolo) ----

THE PEOPLE,

Plaintiff and Appellant, C090921

v. (Super. Ct. No. CRF180292)

ROBERT ALCATRAZ RUBIO,

Defendant and Respondent.

The People charged defendant Robert Alcatraz Rubio with committing a carjacking in Sacramento County and a carjacking in Yolo County on the same day. Defendant pleaded no contest to the Sacramento County charge and moved to dismiss the Yolo County case pursuant to Penal Code section 6541 and Kellett v. Superior Court (1966) 63 Cal.2d 822 (Kellett). The trial court granted the motion and dismissed the Yolo County case.

1 Undesignated statutory references are to the Penal Code.

1

The People appeal, arguing among other things that the alleged Yolo County offense was separated by time and distance from the Sacramento County offense and involved different victims, and should not have been dismissed. Agreeing with the People, we will reverse the trial court’s order. BACKGROUND Jose R. testified at a preliminary hearing in Yolo County that on August 18, 2017, he was performing home improvements at a house in West Sacramento. When he was near his truck in the house’s driveway, a man approached him, punched him in the face, and drove off with his truck. The parties in the Yolo County case stipulated that a police officer would testify that on the same day in August 2017, defendant subsequently carjacked S.F. on Auburn Boulevard in Sacramento and that Jose R.’s truck was discovered at the scene of the Sacramento carjacking. Defendant pleaded no contest in Sacramento County to the carjacking of S.F., and defendant admitted a prior strike allegation. The Sacramento trial court sentenced defendant to 10 years in prison. The People also charged defendant in Yolo County with the carjacking of Jose R. (§ 215, subd. (a).) It was alleged that defendant had two prior strikes (§§ 667, subds. (b)-(i), 1192.7, subd. (c)) and two prior convictions within the meaning of section 667, subdivision (a)(1), and that he had served four prior prison terms (§ 667.5). On July 29, 2019, defendant filed a Kellett motion to dismiss the Yolo County case pursuant to section 654. He argued Sacramento County’s failure to join the two alleged carjacking cases triggered a prosecutorial bar in Yolo County. On October 31, 2019, the trial court found it “a textbook Kellett motion” and dismissed the case “due to multiple prosecutions.” The People timely appealed.