People v. Dumbrava

Opinion

Filed 8/20/26 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent, G065074

v. (Super. Ct. No. 22HF0671)

SEBASTIAN BOGDAN OPINION DUMBRAVA,

Defendant and Appellant.

Appeal from a judgment of the Superior Court of Orange County, Terri K. Flynn-Peister, Judge. Affirmed. Request for judicial notice granted.

William G. Holzer, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney General, Arlene A. Sevidal, Assistant Attorney General, A. Natasha Cortina and Michael J. Patty, Deputy Attorneys General, for Plaintiff and Appellant.

* * *

Generally, under what is referred to as the Kellett rule, when prosecutors are aware “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.” (Kellett v. Superior Court (1966) 63 Cal.2d 822, 827 (Kellett).) “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.” (Ibid.)

The primary purpose of the Kellett rule—also known as mandatory joinder—is to prevent the undue harassment of defendants by subjecting them to multiple prosecutions based on the same underlying facts. (See Pen. Code, § 654 (a).)1 Accordingly, an exception to the Kellett rule applies “where the prosecutor “is unable to proceed on the more serious charge at the outset because the additional facts necessary to sustain that charge have not occurred or have not been discovered despite the exercise of due diligence.’”’” (People v. Davis (2005) 36 Cal.4th 510, 558 (Davis).)

In 2019, Sebastian Bogdan Dumbrava posted statements on social media about committing a mass shooting the University of California at Irvine (UCI). Police searched his bedroom and found parts for an assault rifle, and 22 large-capacity magazines (LCMs) loaded with bullets. Dumbrava was specifically prohibited from possessing firearms and ammunition. And there is a California statute—section 32310 (a)—that generally prohibits all persons from buying, receiving, or importing LCMs into the state.

In 2020, the People filed an information charging Dumbrava with

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Further undesignated statutory references are to the Penal Code, and we will generally omit the word “subdivision” or its abbreviation.

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attempted unlawful firearm possession, unlawful ammunition possession, and 22 counts of violating section 32310 (a). Dumbrava moved to dismiss the LCM charges because a Ninth Circuit opinion held that the statute—section 32310—violates the Second Amendment. The trial court granted Dumbrava’s motion to dismiss the 22 LCM charges in the interests of justice. (See § 1385 (a).) Dumbrava was convicted and sentenced on the remaining charges.

While Dumbrava was on supervised release from prison, and after he made further posts about mass shootings, police searched a storage unit he was using. Police found a receipt showing Dumbrava had purchased five LCMs from an Arizona gun store just prior to the 2020 search of his bedroom. By this time, the Ninth Circuit had reversed itself and found section 32310 to be constitutional under the Second Amendment.

In 2022, the People filed a second information charging Dumbrava with two counts of extortion, and five counts of importing LCMs into the state. Dumbrava filed a motion to dismiss the five LCM charges based on the People’s alleged violation of the Kellett rule. The trial court denied Dumbrava’s motion. A jury could not reach a verdict on the two extortion charges, but found Dumbrava guilty of the LCM charges.

On appeal, Dumbrava claims the trial court erred by denying his Kellett motion to dismiss the five LCM charges. We disagree.

The People were unable to proceed on the 22 LCM charges in the initial proceeding because the trial court dismissed them. But the People were able to proceed with five of the charges in the subsequent prosecution because the Ninth Circuit had now found section 32310 to be constitutional, and because the People discovered a receipt showing Dumbrava had imported five LCMs into the state. (See Davis, supra, 36 Cal.4th at p. 558.)

Thus, we affirm the judgment.

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I.

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FACTS AND PROCEDURAL HISTORY “In 2019, law enforcement officers interviewed Dumbrava as a result of threatening comments he posted on social media and thereafter transported Dumbrava to the UCI Medical Center (UCI). After he entered the hospital, an employee came out and requested the officers write an application for Dumbrava to be evaluated for a 72-hour hold as authorized by Welfare and Institutions Code section 5150.1.

“Dumbrava was placed on an involuntary hold, and then transferred to Canyon Ridge Hospital (Canyon Ridge), and involuntarily admitted to the hospital on the basis of being a danger to others. He was assessed and stayed at this facility until he was released two days later, when he was given a written advisement explaining he could not legally possess a firearm [and ammunition] absent court authorization.

“In 2020, after being alerted to Dumbrava’s Twitter account which contained threats against [UCI] and campus police, law enforcement officers executed a search warrant on Dumbrava’s bedroom. Inside a storage container, they found a locked duffel bag containing firearm components, . . . tools necessary to build a civilian version of an assault rifle, 37 magazines for holding ammunition, and 1,199 rounds of ammunition. The search also yielded . . . a box containing instructions on how to assemble a rifle.

“Dumbrava was initially charged in an information on 25 felony

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The facts are largely taken from Dumbrava’s earlier appeal from his convictions for attempted unlawful firearm possession, and unlawful ammunition possession. This court found sufficient evidence to sustain those convictions and affirmed the judgment. (People v. Dumbrava (Nov. 22, 2022, G060115) [nonpub. opn.].)

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counts: receipt of a large capacity magazine (Pen. Code, § 32310, subd. (a) [counts 1 through 22]); attempting to possess a firearm as a prohibited person ([Welf. & Inst. Code], § 8103, subd. (f)(1)[(A)] [count 23]); and prohibited ownership of ammunition (Pen. Code, § 30305, subd. (a)(1) [count 24]). The [3]

trial court granted the defense’s motion to dismiss counts 1 through 22.

“A court trial was conducted on counts 23 and 24. The prosecution presented . . . [the testimony of] a firearms expert who had executed the search warrant. The expert testified that Dumbrava had obtained all the necessary parts to build an assault rifle and that Dumbrava could assemble them into a functioning rifle in two to four hours. [¶] The trial court convicted Dumbrava on both counts, and sentenced him to serve consecutive prison terms of three years on count 23 and eight months on count 24.” (People v. Dumbrava, supra, G060115, fn. omitted.)

In October 2021, Dumbrava was released from prison and placed on postrelease community supervision (PRCS). While on PRCS, Dumbrava again posted about committing mass shootings at UCI. For example, Dumbrava stated: “‘In the year 2020, I had prepared to commit a mass shooting on the UC Irvine campus. My intent was to cause financial injury to the University. I had planned to pursue the shooting of students in the event

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An LCM is defined as “any ammunition feeding device with the capacity to accept more than 10 rounds.” (§ 16740.) In 2019, a federal district court enjoined California from enforcing the LCM statute—section 32310—on Second Amendment grounds. In 2020, a divided panel of the Ninth Circuit affirmed that ruling. (Duncan v. Becerra (9th Cir. 2020) 970 F.3d 1133, 1140, opn. vacated by Duncan v. Becerra (9th Cir. 2021) 988 F.3d 1209, 1210.) Based on this, the trial court granted Dumbrava’s oral motion to dismiss the 22 LCM charges in the interests of justice. (See § 1385 (a).) A decision of a lower federal court ordinarily does not have binding force as precedent in California courts. (People v. Bradford (1997) 15 Cal.4th 1229, 1292.) But this objection was never raised by the People during the initial proceedings.

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the University failed to provide restitution for my injuries.’” He also stated: “‘I am and will continue to be fully devoted to my pursuit of restitution from The

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Regents of the University of California.’”

In January 2022, police executed a search warrant for an Anaheim storage unit they observed being utilized by Dumbrava. Police located a receipt from an Arizona gun store. The receipt showed that Dumbrava had purchased five LCMs and ammunition on January 3, 2020 (just prior to the 2020 search of his bedroom). Officers also obtained a rental agreement indicating that Dumbrava had rented a car on January 2, 2020, and returned it the following day.

Court Proceedings In May 2022, the People filed an information alleging Dumbrava committed two acts of extortion during the UCI litigation, and he imported five LCMs into the state on January 3, 2020.5 (§ 32310 (a).)

Prior to a jury trial, the court denied a motion filed by Dumbrava to dismiss the extortion and LCM charges (the proceedings on the Kellett motion will be covered in detail in the discussion section of this opinion).

In November 2024, during the jury trial, Dumbrava testified that the statements he made during the UCI litigation were not intended to be

4

Dumbrava had filed two lawsuits against officials at UCI, whom he blamed for his psychiatric detention and resulting damages. (See Welf. & Inst., § 5150 et seq.)

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In 2021, the Ninth Circuit in an en banc opinion found that California’s large-capacity magazine restrictions did not violate the Second Amendment, which effectively reversed the federal court’s earlier contrary holding. (Duncan v. Bonta (9th Cir. 2021) 19 F.4th 1087, 1111, vacated and remanded by Duncan v. Bonta (9th. Cir. 2022) 49 F.4th 1228, 1231.)

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threats. Dumbrava admitted that on January 2, 2020, prior to the search of his bedroom, he rented a car, drove to Arizona, and purchased five LCMs. He then drove back to California with the LCMs and returned the car the following day.

The jury convicted Dumbrava of the five LCM charges, but deadlocked on the two extortion charges, which were later dismissed. The trial court imposed a three-year sentence.

The Attorney General asks this court to take judicial notice of the records from Dumbrava’s prior appeal (G060115). We grant that request.

II.

DISCUSSION

Dumbrava claims the trial court erred by not granting his motion to dismiss the five LCM charges under the statutory multiple prosecution bar as interpreted under the Kellett rule. (See § 654 (a).) We disagree.

“Whether the bar against multiple prosecution applies must be determined on a case-by-case basis.” (People v. Ochoa (2016) 248 Cal.App.4th 15, 29.) An appellate court reviews factual determinations under the deferential substantial evidence test, viewing the evidence in the light most favorable to the prosecution. (People v. Valli (2010) 187 Cal.App.4th 786, 794.) A court will “review de novo the legal question of whether [s]ection 654 applies.” (Ochoa, at p. 29.)

In this part of the discussion, we will: (A) review relevant legal principles; (B) summarize the Kellett motion proceedings in the trial court; and (C) analyze the facts in this case as applied to the relevant laws.

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A. Relevant Legal Principles Generally, the Penal Code prohibits both multiple punishments and multiple prosecutions for the same criminal act or omission: “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 bars a prosecution for the same act or omission under any other.” (§ 654 (a), italics added.)

“Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor.” (Neal v. State of California (1960) 55 Cal.2d 11, 19, disapproved on other grounds in People v. Correa (2012) 54 Cal.4th 331, 338 & fn. 9.) There are “two tests to determine whether multiple offenses occurred during the same course of conduct and are therefore subject to the multiple prosecution bar. [Citations.] ‘Under one line of cases, multiple prosecutions are not barred if the offenses were committed at separate times and locations.’ [Citation.] 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.” (In re J.D. (2025) 109 Cal.App.5th 1223, 1228.)

The statutory section 654 (a) provision precluding multiple prosecutions for the same act or omission is distinct from the section 654 (a) provision precluding multiple punishments for the same act or omission. (People v. Linville (2018) 27 Cal.App.5th 919, 928.) “‘The rule against multiple prosecutions is a procedural safeguard against harassment and is not necessarily related to the punishment to be imposed . . . .’” (Ibid.)

Kellett is the eponymous case interpreting the multiple

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prosecutions bar under section 654. (Kellett, supra, 63 Cal.2d 822.) In Kellett, petitioner Kellett was standing on the sidewalk holding a pistol. (Id. at p. 824.) The People charged Kellett with brandishing a firearm in a threatening manner, and he pleaded guilty to the misdemeanor crime. The People later charged Kellett with the felony crime of possession of a concealed weapon by a convicted felon. Kellett sought a writ of prohibition to prevent the second prosecution. (Ibid.) The Supreme Court granted the writ. The Court held Kellett’s brandishing conviction prohibited his later prosecution for the crime of possessing a concealable weapon, even though Kellett might have been subject to punishment for both of the crimes: “Had both offenses been joined in a single prosecution, the People might have shown that the object and intent of the petitioner in brandishing the weapon and his object in possessing it were entirely unrelated.” (Id. at p. 825.)

The Kellett Court reasoned: “If needless harassment and the waste of public funds are to be avoided, some acts that are divisible for the purpose of punishment must be regarded as being too interrelated to permit their being prosecuted successively.” (Kellett, supra, 63 Cal.2d at p. 827.)

“A defendant who blows up an airplane killing all on board . . . is properly subject to greater punishment than a defendant who kills . . . only a single person. It does not follow, however, that such a defendant should be liable to successive prosecutions. It would constitute wholly unreasonable harassment . . . to permit trials seriatim until the prosecutor is satisfied with the punishment imposed. By a series of amendments to section 954 that have greatly expanded the scope of permissible joinder, the Legislature has

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California courts and criminal practitioners commonly refer to the “Kellett rule” as well as a “Kellett motion.”

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demonstrated its purpose to require joinder of related offenses in a single

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prosecution.” (Kellett, supra, 63 Cal.2d at pp. 825–826.)

“When, as here, 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, italics added.)

The Kellett rule is subject to several exceptions, including an “unavailable evidence” exception. (See People v. Spicer (2015) 235 Cal.App.4th 1359, 1373; see also Davis, supra, 36 Cal.4th at p. 558.)

The Supreme Court has “recognized an exception to the multipleprosecution bar where the prosecutor “‘is unable to proceed on the more serious charge at the outset because the additional facts necessary to sustain that charge have not occurred or have not been discovered despite the exercise of due diligence.’”’ [Citations.] Thus, for example, section 654 does not preclude prosecuting a defendant for the murder of a victim who dies only after an earlier prosecution for attempted murder. [Citation.] Similarly, section 654 will not bar a later prosecution when the government, despite reasonable efforts, has been unable to discover the facts necessary to sustain

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Section 954 provides: “An accusatory pleading may charge two or more different offenses connected together in their commission, or different statements of the same offense . . . under separate counts . . . .” (Italics added.) “One of section 954’s objectives is to assist in a ‘just administration of the criminal law’ — for instance, one trial involving multiple charges alleged in a single accusatory pleading would obviate the need for ‘another trial of the same facts with its attendant trouble and expense’ on any withheld charges.” (People v. Aguayo (2022) 13 Cal.5th 974, 982.)

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a conviction on the more serious crime. [Citation.] But this exception applies only when the government ‘acted with due diligence at the outset but was unable to discover the additional facts necessary to sustain the greater charge.’ [Citation.] Whether the government exercised due diligence is a question of fact.” (Davis, supra, 36 Cal.4th at p. 558.)

In Davis, defendant commandeered a car using a gun, kidnapped the driver, and took his car. (Davis, supra, 36 Cal.4th at p. 518.) Defendant was later arrested while driving the car. (Ibid.) The victim was unable to identify defendant as the perpetrator, and defendant pleaded guilty to a charge of taking a motor vehicle. (Id. at p. 558.) Later, after serving a sentence for that crime, defendant told a third party how he had obtained the car. (Ibid.) As a result, defendant was prosecuted for robbery and kidnapping. (Id. at p. 556.) Applying the unavailable evidence exception to the Kellett rule, the Court held section 654 did not bar the second prosecution because at the time of defendant’s initial proceedings, there was not available evidence to prove that he had kidnapped and robbed the victim. (Id. at p. 558.)

B. Trial Court Proceedings Prior to the 2024 jury trial, Dumbrava filed a motion to dismiss the two extortion charges, as well as the five LCM charges under the statutory multiple prosecution bar, as interpreted under Kellett.8 (See § 654 (a).) Dumbrava stated that the five LCMs at issue were among the 22 LCMs found in the 2020 search. Dumbrava argued: “The [P]eople previously charged Mr. Dumbrava for acquiring (buying, receiving) high capacity

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The two extortion charges were later dismissed, and are not relevant to the issues on appeal; therefore, that portion of Dumbrava’s Kellett motion will generally be omitted from this discussion.

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magazines, and they are now charging him with having acquired (buying) those same magazines. The current prosecution is simply the same crime reinvented. It just so happens that for a brief period in 2020-2021, the conduct at issue did not constitute a crime.”

Dumbrava also argued that “to the extent due diligence is an issue for purposes of this motion, it is important to note that the People filed [the earlier] case . . . on January 16, 2020[,] and the case was not dismissed until December 18, 2020. In that ten months, there were apparently no additional search warrants for places connected to Mr. Dumbrava such as the storage facility searched in 2022.”

The People filed an opposition. The People argued: “The high capacity magazines, although found at the same time as the [assault rifle] components and ammunition, could not have been previously prosecuted and can only be prosecuted now due to the recent discovery of the date of purchase. As such, Kellett is not implicated.”

The People argued the discovery of the receipt from Arizona “fundamentally change[d] the prosecution of the [LCM counts]. Prior to this discovery, the People had no evidence showing what date defendant had acquired or purchased [any of the 22 LCMs]. This would allow for a defense that defendant lawfully acquired the [22 LCMs] during ‘Freedom Week.’ . . . The date of purchase allows the People to prove that [five of the 22 LCMs] were not acquired during ‘Freedom Week.’”9 (Internal footnote omitted.)

The People also argued police acted with due diligence in

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From March 29, 2019, to April 5, 2019, the prior federal district court order enjoining enforcement of section 32310 was stayed, which allowed California citizens to lawfully acquire or import into the state large-capacity magazines. This brief period is colloquially referred to as “Freedom Week.”

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discovering the Arizona receipt. The opposition included police reports noting that while on supervised release from state prison (PRCS), Dumbrava was observed visiting a storage facility multiple times, and this information was “confirmed with data that was received from Dumbrava’s GPS monitoring anklet controlled by [Orange County] Probation.” Police noted that “Dumbrava’s name was not listed on the renter’s agreement,” but Dumbrava’s mother “was the individual renting the storage locker.”

At the hearing on the Kellett motion, the trial court stated:

“California courts have adopted two tests to determine whether multiple offenses occurred during the same course of conduct. The first we know is the time and place test. Multiple prosecutions are not barred if the offenses were committed at separate times and locations. The second is the evidentiary test. If the evidence needed to prove one offense necessarily supplies proof of the other, the two offenses must be prosecuted together. If these two tests are satisfied, then a court will be inclined to accept a Kellett motion.”

The trial court tentatively ruled that “even if Kellett were implicated by either test, there’s an exception regarding the discovery of additional evidence that allows for the charges to be sustained.” And after hearing oral argument from the parties, the court formally denied Dumbrava’s Kellett motion.

C. Application and Analysis The word “joinder” means: “The uniting of parties or claims in a single lawsuit.” (Black’s Law Dict. (7th ed. 1999) p. 841, col. 1.)

Known as the “two-dismissal rule,” section 1387 (a) ordinarily permits prosecutors to refile felony charges following one prior dismissal. (Barron v. Superior Court (2023) 90 Cal.App.5th 628, 636; § 1387 (a) [“An

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order terminating an action pursuant to this chapter . . . is a bar to any other prosecution for the same offense if it is a felony . . . and the action has been previously terminated pursuant to this chapter”], italics added.)

In January 2020, police searched Dumbrava’s bedroom and found 22 LCMs that Dumbrava had apparently at some point unlawfully acquired or purchased. (See § 32310 (a).) Police also found ammunition, and the parts necessary to assemble an assault rifle, which Dumbrava was legally prohibited from possessing. (§ 30305 (a)(1), Welf. & Inst. Code, 8103 (f)(1)(A).)

As a result, the People filed a criminal case against Dumbrava joining all of the 24 alleged felony crimes in a single accusatory pleading (attempted unlawful possession of a firearm, unlawful possession of ammunition, and the 22 LCM charges). But prior to a bench trial, the court dismissed all of the LCM charges in the interests of justice under section 1385 (a), due to a Ninth Circuit opinion that declared section 32310 (a) to be unconstitutional. The matter proceeded to trial, and Dumbrava was convicted and sentenced on the remaining firearm and ammunition charges.

The Kellett rule generally requires the joinder of crimes when prosecutors are aware “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.” (Kellett, supra, 63 Cal.2d at p. 827, italics added.) “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.” (Ibid.)

Here, the People were effectively prohibited from joining the LCM charges with the remaining charges in the first proceeding due to the court’s dismissal of the LCM charges in the interests of justice. (§ 1385 (a).)

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But in the second prosecution, the People were not precluded from refiling

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five of the LCM charges that had been previously dismissed only once. (§ 1387; Barron v. Superior Court, supra, 90 Cal.App.5th at p. 636 [the “two- dismissal rule” ordinarily permits the prosecution to refile felony charges following one prior dismissal under section 1385 (a)].)

We hold there is an exception to the Kellett rule where, as here, the People were not permitted to proceed on dismissed felony criminal charges in an initial proceeding that resulted in either defendant’s acquittal or conviction and sentence on different charges, but the People were then later able to pursue those same dismissed felony criminal charges in a subsequent prosecution.11 (See Kellett, supra, 63 Cal.2d at p. 827.)

In the initial proceedings in this case, the trial court granted Dumbrava’s motion to dismiss the LCM charges under section 1385 (a), but the People were later able to pursue those same charges in a subsequent prosecution under section 1387. Therefore, we find Kellett rule is not implicated under these facts, and the court properly denied Dumbrava’s Kellett motion to dismiss the LCM charges. Thus, we affirm the judgment.

Our holding is consistent with the California Supreme Court’s stated rationale in Kellett of preventing the “needless harassment” of criminal defendants “and the waste of public funds.” (See Kellett, supra, 63 Cal.2d at

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The People represented that they were unable to prove that 17 of the 22 LCMs found during the 2020 search of Dumbrava’s bedroom were not acquired or brought into the state during “Freedom Week.”

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This appears to be an issue of first impression, so we are certifying this opinion for publication upon filing. (See Cal. Rules of Court, rule 8.1105(c)(1) [an opinion “should be certified for publication” when it “[e]stablishes a new rule of law”].)

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p. 827, italics added.) This is because the People are routinely allowed to refile felony criminal charges where, as here, the trial court had previously dismissed the felony criminal charges only once. (See § 1387.)

We further uphold the trial court’s denial of Dumbrava’s Kellett motion to dismiss the LCM charges on the alternative basis that the more established unavailable evidence exception to the Kellett rule of mandatory joinder also applies. (See Davis, supra, 36 Cal.4th at p. 557; see also, e.g., Spicer, supra, 235 Cal.App.4th at pp. 1372–1373.)

In Spicer, police arrested defendant after he was seen driving the car of a woman reported missing. (Spicer, supra, 235 Cal.App.4th at p. 1366.) Defendant voluntarily told police that he did not kill the woman, and he also made inculpatory statements that he had been set up for a murder charge. The victim’s body was later discovered in a rural area; an autopsy revealed that she died due to multiple stab wounds. (Id. at pp. 1366–1367.) The prosecution charged defendant with receiving stolen property (the victim’s car) and he pleaded guilty. (Id. at p. 1364.) Decades later, after obtaining DNA evidence linking defendant to the victim’s death, the prosecution charged defendant with murder. (Id. at pp. 1364, 1370–1371.) The trial court denied defendant’s Kellett’s motion, and he was convicted of first degree murder with special circumstances. (Id. at p. 1364.) The Court of Appeal affirmed the trial court’s denial of defendant’s Kellett motion. (Id. at p. 1375.)

In Spicer, the appellate court analyzed the Supreme Court’s unavailable evidence exception to the Kellett rule. (Spicer, supra, 235 Cal.App.4th at pp. 1375–1381.) The Court of Appeal held that even though the prosecution admitted during defendant’s Kellett motion that it had probable cause to charge defendant with murder at the time it initially charged the related stolen property charge, the prosecution did not violate

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the Kellett rule of mandatory joinder. (Id. at p. 1375.) The court reasoned that the established unavailable evidence “exception applies when the prosecution, though having probable cause to charge a defendant with murder and a related crime, declines to file the murder charge prior to the defendant’s conviction for the related crime because it lacks facts to support the objectively reasonable belief that it can prove the murder charge at trial, despite due diligence in the investigation of the crimes. To hold otherwise would be to encourage prosecutors to overcharge—by filing charges they lacked an objectively reasonable basis to believe would result in conviction— thus improperly cabining the prosecutorial discretion that is a basic element of the criminal justice system.” (Id. at p. 1377.)

Here, after the LCM charges were dismissed by the trial court under section 1385 (a) in the initial proceedings, the court found Dumbrava guilty of the related charges of attempted illegal firearm possession and illegal ammunition possession. After Dumbrava was released from prison, the People obtained an out-of-state receipt, as well as other evidence that tended to prove that five of the LCMs found in the initial search of Dumbrava’s bedroom were purchased and unlawfully brought into the state prior to that search. The People then refiled five of the counts that accused Dumbrava of violating the LCM statute. (§ 32310 (a).) According to the People’s argument during the Kellett motion, the additional evidence of the date of the purchase of the LCMs was necessary to defeat a potential defense that Dumbrava could have raised at trial (that the LCMs may have been lawfully purchased or acquired during “Freedom Week”).

We find that the evidence presented during Dumbrava’s Kellett motion provide support for the trial court’s analysis that the unavailable evidence exception to the Kellett rule applied. Under the rationale of Spicer,

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the People were allowed to prosecute the LCM charges in the subsequent prosecution because the People now had an objectively reasonable basis to believe that the additional evidence would result in Dumbrava’s convictions on the five LCM charges. (See Spicer, supra, 235 Cal.App.4th at p. 1377.)

Dumbrava argues that prior to the first trial, police officers “could have tried to obtain a subpoena for his cellphone data, which may have revealed his trip to Arizona.” Dumbrava further argues “[t]here is no evidence that law enforcement exercised due diligence in investigating the magazine charges for the first prosecution, so the new evidence exception should not apply to the second case.” We disagree.

What is critical here is the standard of review: “To the extent appellant challenges the court’s determinations of law regarding the application of the ‘unavailable evidence’ exception, we examine those determinations de novo. [Citation.] To the extent appellant challenges the court’s factual determinations relating to the exception, we review those determinations for the existence of substantial evidence.” (Spicer, supra, 235 Cal.App.4th at p. 1375.) “Whether the government exercised due diligence is a question of fact.” (Davis, supra, 36 Cal.4th at p. 558.)

As a bedrock principle, we review a trial court’s factual determinations for sufficient evidence in a light most favorable to the judgment, and we presume in support of the trial court’s ruling the existence of every fact the trial court could have reasonably deduced from the evidence. (People v. Green (1996) 50 Cal.App.4th 1076, 1085.)

Here, in its opposition to Dumbrava’s Kellett motion, the People rebutted a possible claim that they “did not exercise [due] diligence in discovering the [Arizona] receipt at an earlier date.” The People provided supporting exhibits in the form of police reports, and argued to the trial court

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that “it was only because defendant was placed on search and seizure after being released from prison and onto PRCS that law enforcement was able to observe him entering and exiting this storage unit. [Citation.] Defendant was not on the lease to this storage unit. Law enforcement confirmed via GPS data his trips to the storage unit.”

We conclude the People’s exhibits provide substantial evidence to support the trial court’s implied (unstated) finding that the prosecution acted with due diligence in securing additional evidence to sustain the LCM charges. Thus, we hold that the court properly denied Dumbrava’s motion to dismiss the LCM charges in the second prosecution on the alternative grounds that the unavailable evidence exception to the Kellett rule applies.

III.

DISPOSITION

The judgment is affirmed.

MOORE, ACTING P. J.

WE CONCUR:

DELANEY, J.

SERVINO, J.