Valli

Defendant Kacey Valli’s relief after the jury acquitted him, a “three striker,” of murder, attempted murder and being a felon in possession of a firearm was short lived when, minutes after the acquittal, the prosecution arrested him for two felony counts of evading arrest. Evidence of the evading, but not the formal charges themselves, had previously been presented by the prosecution in the murder trial at which defendant was acquitted. To help prove the murder by showing defendant’s consciousness of guilt, the prosecution introduced evidence that days after the shooting defendant once drove recklessly in fleeing from the police and later, as a passenger, successfully directed a driver to flee from the police. In the second trial, a jury convicted defendant of both counts of felony evading (Veh. Code, § 2800.2), based in part on his testimony in the murder trial in which he admitted the evading. The jury also found defendant had two prior serious felony convictions. (Pen. Code, §§ 667, subd. (d), 1170.12.) The court sentenced defendant to 50 years to life in prison.

On appeal, defendant contends the trial court erred in denying his pretrial motion to dismiss the evading…

Concurring. — Except for one remark, I join my colleagues’ well-reasoned and well-written decision. I part company only with their comment in passing that, although the holding in Sanders v. Superior Court (1999) 76 Cal.App.4th 609 [ 90 Cal.Rptr.2d 481 ] is distinguishable and does not apply here, my colleagues “share some of its concerns about the *806 People’s decision [in this case] to try the murder and evading separately.” (Maj. opn., ante, at p. 802.) No such concern is justified.

It has been a common complaint for many decades that some prosecutors overcharge defendants. (See, e.g., People v. Douglas (1966) 246 Cal.App.2d 594, 599 [ 54 Cal.Rptr. 777 ].) One view is that overcharging constitutes harassment designed to make “plea proposals coercive” by “put[ting] undue pressures on defendants to plead guilty” to some offense or offenses rather than risk going to trial on numerous charges. (Longer, Rethinking Plea Bargaining: The Practice and Reform of Prosecutorial Adjudication in American Criminal Procedure (2006) 33 Am.J. Crim.L. 223, 286.) Another view is that such overcharging purportedly gives the prosecutor “a psychological advantage if a jury is presented with a long…