The Rule in Kellett

The Rule in Kellett[1]

RC Phillips,
DDA (Ret)
Sept. 2018

Kellett is a California Supreme Court case that holds that if a defendant commits a crime that can be charged in different ways, the prosecution must file all the charges together in the initial complaint.   If the prosecution fails to follow this rule and charges interrelated crimes in separate prosecutions, the subsequent charges will very likely be dismissed.

“When ... 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 … .  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 v. Superior Court (1966) 63 Cal.2d 822.)

A common example of a Kellett problem comes up in drunk driving cases.  The defendant is arrested for driving under the influence and for driving on a suspended license.  The police present the case to the charging D.A., but the results of the blood test are not available.  The prosecutor charges the 14601.2, but then waits for the blood alcohol test to come back to see if there is enough evidence to charge a DUI.  The 14601 case goes forward, and the defendant promptly pleads guilty and is sentenced to the usual probationary terms.  A few weeks later, the blood test results come back: defendant was a .20.  The prosecutor now charges the defendant in a separate complaint with DUI violations.   At arraignment, his knowledgeable defense lawyer objects and moves to dismiss the case under Kellett.  The court correctly grants the motion: the 14601 conviction stands, but the DUI is dismissed. 

Kellett problems are ....

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