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Name: In re Witcraft
Case #: H036768
Court: CA Court of Appeal
District 6 DCA
Opinion Date: 12/06/2011

The resolution of a first set of criminal charges, based on a course of conduct which included providing false insurance information, precluded a second prosecution for violation of Penal Code section 550 based on Penal Code section 654 and Kellett v. Superior Court (1966) 63 Cal.2d 822. The first set of charges arose following a traffic accident and included presenting false identification and false registration, possession of a stolen license plate, and failing to provide proof of insurance. Those charges were resolved by a no contest plea. Six months later, a second complaint alleged the violation of section 550 of causing a false insurance claim to be filed based on the victim’s submission of a claim using defendant’s false insurance information. A motion to dismiss the charges on the grounds they were barred by section 654 was denied. The preliminary hearing evidence relied on the same conduct as the first set of charges and Witcraft was held to answer. There was no motion to dismiss the information and he entered a plea of no contest. It was argued on direct appeal that there was ineffective assistance of counsel for failure to renew the motion to dismiss and forfeiture of the issue by the plea. The judgment was affirmed on direct appeal because of appellant’s failure to meet the ineffective assistance of counsel test of Strickland v. Washington (1984) 466 U.S. 668, 688. However, the circumstances demonstrated a prima facie showing on a concurrent petition for writ of habeas corpus for IAC. The order to show cause was issued, returnable before the superior court, for the Attorney General to show cause why the conviction should not be set aside based on ineffective assistance of trial counsel.