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Name: People v. Barriga
Case #: C068063
Court: CA Court of Appeal
District 3 DCA
Opinion Date: 05/30/2012
Subsequent History: Opn. modified 7/7/12

Absent a showing of due diligence in discovering evidence that supported additional criminal charges, the prosecution is precluded from pursuing a second prosecution against a defendant who entered an early plea. Defendant was the passenger in a car that had been hijacked from its owner. The victim told police defendant was not one of the carjackers. Defendant was thereafter charged with unlawfully taking a vehicle and resisting arrest, among other offenses. He pled to the resisting charge and an unrelated count in exchange for dismissal of the remaining counts. Several weeks after the plea was entered police obtained a warrant to search defendant’s cell phone, which was in their possession before the prosecution proceeded with the case against defendant, and discovered evidence incriminating him in the carjacking. The prosecution charged defendant with carjacking and other crimes related to the taking of the vehicle; he moved to dismiss the case under Penal Code section 654. The motion was denied. The Court of Appeal granted a writ of prohibition restraining the prosecution. For purposes of the Penal Code section 654 bar against successive prosecutions, defendant’s participation in the carjacking and later resisting arrest were part of the same course of conduct. When the initial plea was entered, the prosecution was unaware of the cell phone evidence linking appellant to the carjacking. However, the prosecution presented no evidence as to why they could not have obtained a warrant to search defendant’s phone before the initial charges were brought. Therefore, they failed to show they were unable to proceed with the more serious charges because the additional facts necessary to the prosecution had not been discovered despite the exercise of due diligence.