Metropolitan News-Enterprise


Friday, August 20, 2010


Page 3


Evading-Police Charge After Murder Acquittal Not ‘Vindictive’—C.A.


By STEVEN M. ELLIS, Staff Writer


Prosecutors did not violate a bar on multiple prosecutions or act vindictively when they charged a man with evading police after he was acquitted of murder charges at a trial in which he admitted to the evasion, the Third District Court of Appeal ruled yesterday.

Affirming a trial court’s decision denying Kacey Valli’s motion to dismiss two felony evading charges, the panel said Penal Code Sec. 654 did not bar the charges because the same act or course of conduct did not play a significant part in both the murder and the evading.

Writing for the court, Justice Tani Cantil-Sakauye, who faces an Aug. 25 confirmation hearing in her bid to become California’s next chief justice, also rejected claims of vindictive prosecution, commenting that the new charges were brought not in retaliation for the exercise of constitutional rights, but in response to the acquittal on the murder charge.

“An an earlier acquittal is a legitimate prosecutorial consideration in charging,” she said.

Valli, a “three striker,” was arrested for two counts of evading arrest minutes after a Sacramento County jury acquitted him of murder, attempted murder and being a felon in possession of a firearm. He was first charged after Artemeo Ramirez identified him as the person who fired a rifle at Ramirez in November 2005, killing Ramirez’s father, who was in a nearby car.

To help prove the murder by showing consciousness of guilt, prosecutors introduced evidence that Valli drove recklessly in fleeing from police days after the shooting. They also introduced evidence that he later, as a passenger, successfully directed a driver to flee from police, but they did not present formal evasion charges.

At a second trial, Valli was convicted of both evading counts based in part on his testimony in the murder trial. The jury found that he had two prior serious felony convictions and Sacramento Superior Court Judge Emily E. Vasquez sentenced him to 50 years to life in prison.

Valli appealed, arguing that prosecution of the evading charges was barred by Sec. 654 as interpreted in Kellett v. Superior Court (1966) 63 Cal.2d 822. There the California Supreme Court ruled that offenses prosecutors know or should have known involved the same act or course of conduct 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,” the high court concluded.

But Cantil-Sakauye distinguished Kellett, writing:

“[A]lthough the People relied in part on proof of the evading in order to prove the murder, the necessary interrelation of murder and evading is missing; the same act or course of conduct did not play a significant role in each.”

She also reasoned that there was no vindictive prosecution because Valli failed to show that the decision to charge him was retaliatory. Citing the California Supreme Court’s decision in In re Bower (1985) 38 Cal.3d 865, she explained:

“[E]ven if we found a presumption of vindictiveness because the decision to file evading charges came after defendant testified, the acquittals would serve as an ‘objective change in circumstances’ ‘which legitimately influenced the charging process,’ and which ‘could not reasonably have been discovered at the time the prosecution exercised its discretion to bring the original charge.’… Thus, the presumption would be rebutted.”

Justice Vance W. Raye joined Cantil-Sakauye in her opinion. Presiding Justice Arthur G. Scotland concurred, but wrote separately to reject the majority’s “concerns about the People’s decision…to try the murder and evading separately.”

He commented:

“A prosecutor should not be faulted for deciding that, based on facts known at the time of charging, there was reasonable doubt whether defendant was guilty of the second evading and, thus, it would have been unethical to include that charge….I have no doubt that, when charging defendant with crimes related to the shooting, the prosecutor had no intent to later prosecute him for the evading offenses.”

The case is People v. Valli, 10 S.O.S. 4899.


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