Discussion Appellant contends the trial court erred in denying the motion to dismiss because the two prosecutions involved the same course of conduct and interrelated evidence. She also contends the prosecution knew or should have known about both

3 offenses such that it had a duty to ensure the charges were joined. We are not persuaded. Section 654 provides: “An act or omission that is punishable in different ways by different provisions of law may be punished under either of such provisions, but in no case shall the act or omission be punished under more than one provision. An acquittal or conviction and sentence under any one [provision of law] bars a prosecution for the same act or omission under any other.” The rule precluding multiple prosecutions is distinct from the rule precluding multiple punishment. (People v. Britt (2004) 32 Cal.4th 944, 950 (Britt).) The prohibition against multiple prosecutions is a procedural safeguard against harassment and is unrelated to any punishment to be imposed. (Ibid.) The Kellett rule provides: “[w]hen . . . 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. 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.” (Kellett, supra, 63 Cal.2d at p. 827, fn. omitted.) The crucial test is whether “the same act or course of conduct play[ed] a significant part” in the two prosecutions. (Ibid; see also People v. Bradford (1976) 17 Cal.3d 8, 13-14.) Whether the Kellett rule applies is determined on a case-by- case basis. (Britt, supra, 32 Cal.4th at p. 955.) We review factual determinations under the substantial evidence test, viewing the evidence in the light most favorable to the prevailing party below. (People v. Valli (2010) 187 Cal.App.4th 786, 794 (Valli).) We

4 review de novo the legal question whether section 654 applies. (Ibid.) California courts have adopted two tests to determine whether multiple offenses occurred during the same course of conduct and are therefore subject to the multiple prosecution bar. (Valli, supra, 187 Cal.App.4th at p. 797; People v. Ochoa (2016) 248 Cal.App.4th 15, 28 (Ochoa).) “Under one line of cases, multiple prosecutions are not barred if the offenses were committed at separate times and locations.” (Ochoa, at p. 28.) Under a second line of cases, two offenses must be prosecuted together if the evidence needed to prove one offense necessarily supplies proof of the other. (Valli, at p. 798, citing People v. Flint (1975) 51 Cal.App.3d 333, 337-338; People v. Hurtado (1977) 67 Cal.App.3d 633, 636.) In its ruling denying the motion to dismiss, the trial court factually found the offenses involving Mia and Priscilla were not part of a “singular transaction,” but were “separate and distinct.” Appellant contends this was error because she and her codefendants were engaged in the same course of conduct in both cases: theft of the cell phones from younger minors. Appellant paints with too wide of a brush. Petty theft is not similar to felonious assault even if both offenses are committed to obtain cell phones. Appellant would have a stronger argument had she assaulted both victims or only committed theft as to both cell phones. Appellant draws an analogy to Ochoa, supra, 248 Cal.App.4th 15, which involved separate prosecutions for offenses arising out of the same course of conduct: conspiracy to distribute methamphetamine.

5 In Ochoa, there the defendant was first charged with conspiracy to distribute methamphetamine and pleaded no contest to conspiracy and possession charges. (Ochoa, supra, 248 Cal.App.4th at p. 19.) After sentencing, he was indicted for active participation in a criminal street gang and conspiracy to distribute methamphetamine for the benefit of the gang. (Ibid.) Defendant pleaded no contest to conspiracy to distribute methamphetamine and admitted the offense was committed for the benefit of the gang. (Ibid.) On review, the Court of Appeal concluded the same course of conduct formed a significant part of the offenses in both prosecutions and the prosecution was aware of the defendant’s conduct underlying the second prosecution at the time of the first prosecution. Thus, the second prosecution was barred pursuant to section 654 and Kellett. (Ochoa, supra, 248 Cal.App.4th at pp. 40-41.) Ochoa is not only factually distinguishable, but it also involved a substantial overlap of the evidence to support the convictions. (See Ochoa, supra, 248 Cal.App.4th at pp. 19, 36-38.) Here, the record reflects that appellant’s crimes were committed at different locations within the mall structure, at different times, and against different victims. There is no overlap here. Kellett does not require that offenses committed at different times and places be prosecuted in a single proceeding. (People v. Cuevas (1996) 51 Cal.App.4th 620, 624.) The evidence necessary to establish the felonious assault of Priscilla does not supply proof of the theft of Mia’s cell phone, and vice versa. The trial court expressly recognized the overlap argument. Even if there is some overlap, it is trivial. It “does not

6 trigger application of Kellett.” (Valli, supra, 187 Cal.App.4th at p. 799.) Appellant next argues that “at minimum, the prosecution should have known” about both offenses because the video tapes that documented both incidents were part of discovery, and the same investigating officer and witnesses were involved in both cases. But “the fact that the prosecution could have known of the multiple offenses does not necessarily lead to the conclusion that [they] did or should have known.” (In re Dennis B. (1976) 18 Cal.3d 687, 693.) And even if the prosecution knew of both offenses, we must still consider the discretion afforded to prosecutorial charging decisions and the rule of Kellett, which does not turn on the timing of the prosecutions. (See Valli, supra, 187 Cal.App.4th at p. 801 [refusing to require prosecutors to proceed against defendant on all known charges simultaneously]; Ochoa, supra, 248 Cal.App.4th at p. 35 [“the issue under Kellett is whether [appellant’s] course of conduct played a significant part in both cases”].) There is no “harassment” of the accused here and considering all of the facts and examining them in light of the purpose of the rule, Kellett is not implicated here. (See Kellett, supra, 63 Cal.2d at pp. 827-828; Valli, supra, 187 Cal.App.4th at pp. 796-800.) Disposition The judgment (order denying motion to dismiss) is affirmed.

7

CERTIFIED FOR PUBLICATION.

YEGAN, J.

We concur:

GILBERT, P. J.

BALTODANO, J.

8 F. Dino Inumerable, Judge Superior Court County of Ventura ______________________________

Claudia Y. Bautista, Public Defender and William Quest, Snr. Deputy Public Defender, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, William H. Shin, Megan Moine, Deputy Attorneys General, for Plaintiff and Respondent.