IN RE: Wade E. GRANVILLE

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Court of Appeal, First District, Division 4, California.

IN RE: Wade E. GRANVILLE, on Habeas Corpus.

No. A051690.

Decided: September 11, 1991

John F. Schuck, Marer, Marer & Schuck, Palo Alto, for petitioner. Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., John H. Sugiyama, Senior Asst. Atty. Gen., Laurence K. Sullivan, Supervising Deputy Atty. Gen., Linda James, Deputy Atty. Gen., San Francisco, for respondent.

 Petitioner seeks a writ of habeas corpus contending that his sentence violates section 654 of the Penal Code.1  We conclude that petitioner is correct and agree that his appellate counsel was ineffective in failing to raise the issue on appeal.2

Petitioner was tried by a jury and convicted of kidnapping (§ 207) and forcible oral copulation (§ 288a, subd. (c)) occurring in 1981.

The victim, Ms. Thelma D., related the following facts concerning the offenses:  On October 24, 1981, at about 5:45 a.m., Ms. D., a small 65–year–old woman, walked from her residence on Parnassus Street in San Francisco to the bus stop at Cole and Parnassus.   There she saw petitioner and the two exchanged pleasantries.   Ms. D. stepped around the corner to escape the cold wind.   Petitioner came up behind her, grabbed her around the waist and said:  “Look, woman, I am going to go—you are going to take me to your home where I am going to suck your pussy.”   Petitioner placed his hands around her throat and told her that if she complied she would not get hurt.   The two walked half a block to Ms. D's apartment.   As they walked, petitioner told Ms. D. “he had to do this” to her.  “They're watching;  I have to do this, because they're watching up there.”   Once inside, Ms. D. tried to distract petitioner but he persisted in leading her to the bedroom where he ordered her to undress.   She did so;  petitioner kissed and hugged her and then performed an act of oral copulation upon her.   Petitioner then fell asleep and Ms. D. left the apartment and reported the incident.

When the police responded, they found petitioner still nude and asleep in Ms. D's bed.   Petitioner testified that he had been released from prison just the day before and had not slept for about 72 hours.   According to him, Ms. D. initiated the conversation with him and urged him to accompany her to her apartment to get her coat.   Once there, she invited him to sleep in her bed while she went to work.

Petitioner was sentenced to the maximum term of seven years for the kidnapping (§ 207) with the addition of one year for a prior.   He was sentenced to the maximum term of eight years for forcible oral copulation (§ 288a, subd. (c)), the sentence to run consecutively to the kidnapping term pursuant to section 667.6, subdivision (c).3  An additional five-year term was added for a 1975 conviction of forcible oral copulation for a total sentence of 21 years.   The court gave its reasons for imposing the aggravated terms but not for imposing consecutive terms or sentencing pursuant to section 667.6, subdivision (c).   At various points in the sentencing the court stated that it was following the Ottombrino case and its reasoning.

The judgment was affirmed by this court in an opinion filed on March 1, 1984.   No sentencing issues were raised although two relevant cases had been filed subsequent to sentencing but prior to the appellate opinion.   In People v. Masten (1982) 137 Cal.App.3d 579, 187 Cal.Rptr. 515, Division Two of the First District ruled that section 654 was violated by consecutive sentences for kidnapping and oral copulation.   The Masten court concluded that the Legislature in enacting section 667.6, subdivision (c) did not intend to create an exception to section 654.   In People v. Belmontes (1983) 34 Cal.3d 335, 193 Cal.Rptr. 882, 667 P.2d 686, the court held that section 667.6, subdivision (c) is not the exclusive means for punishing violations of offenses listed therein:  rather, it is an alternative to sentencing pursuant to section 1170.1.   The court disapproved People v. Ottombrino (1982) 127 Cal.App.3d 574, 179 Cal.Rptr. 676 to the extent it is inconsistent with the Belmontes opinion.  (34 Cal.3d at p. 345, 193 Cal.Rptr. 882, 667 P.2d 686.) 4  The Belmontes court also held that the court must separately state its reasons for sentencing consecutively and for sentencing pursuant to section 667.6, subdivision (c), rather than section 1170.1.

 It is clear from the above that petitioner was denied effective assistance of counsel on appeal for failure to raise the sentencing issues decided favorably to the defendant in both Masten and Belmontes.   The Attorney General, however, argues that neither case requires relief on the instant petition.

Section 654.   The Attorney General contends that under the most recent case law, section 654 is not applicable to sentencing pursuant to section 667.6, subdivision (c).   The Attorney General also contends that even if section 654 were applicable, there was no error because this case does not fall within the ambit of the section.   Turning to this latter contention first, we conclude that the Attorney General's position is without merit.

I.

 Since its origin in 1872, the Penal Code in section 654 has prohibited multiple punishment for a single “act or omission.”  “The ‘singleness of the act,’ however, is no longer the sole test of the applicability of section 654.  ‘ “Section 654 has been applied not only where there was but one ‘act’ in the ordinary sense ․ but also where a course of conduct violated more than one statute and the problem was whether it comprised a divisible transaction which could be punished under more than one statute within the meaning of section 654.”  [People v. Brown (1958) 49 Cal.2d 577, 591, 320 P.2d 5.]  [¶] 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.   If all the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.' ”  (People v. Beamon (1973) 8 Cal.3d 625, 637, 105 Cal.Rptr. 681, 504 P.2d 905 [Neal v. State of California (1960) 55 Cal.2d 11, 19, 9 Cal.Rptr. 607, 357 P.2d 839].)   The Beamon court went on to describe the test as follows:  “The Brown–Neal test thus appears to enlarge the literal language of section 654 by including as an ‘act or omission’ a course of criminal conduct wherein multiple violations are incident to an accused's single criminal objective.   On the other hand, when an accused has embarked upon a course of conduct wherein he may be deemed to have entertained multiple criminal objectives none of which are merely incidental to any other, the meaning of ‘act or omission’ has been construed in a manner consistent with that multiple objective and what may appear on the surface to be a single act may embody separately punishable violations.   We must, accordingly, give heed to an accused's objectives when they can be ascertained.”  (People v. Beamon, supra, 8 Cal.3d at p. 638, 105 Cal.Rptr. 681, 504 P.2d 905.)

The above test has repeatedly been applied to convictions of both kidnapping and rape or other sexual offenses.  “Where a defendant perpetrates a kidnapping for the purpose of committing a rape, it contravenes section 654 to impose separate consecutive sentences for both offenses.  [Citations.]  However, where a defendant kidnaps a victim for one purpose, and then later forms an intent to rape, he may be punished for both kidnapping and rape.  [Citations.]”  (People v. Burns (1984) 158 Cal.App.3d 1178, 1181, 205 Cal.Rptr. 356, fn. omitted.)  “ ‘The defendant's intent and objective are factual questions for the trial court;  [to permit multiple punishments,] there must be evidence to support a finding the defendant formed a separate intent and objective for each offense for which he was sentenced.  [Citation.]’ ”  (People v. Coleman (1989) 48 Cal.3d 112, 162, 255 Cal.Rptr. 813, 768 P.2d 32.)

The Attorney General misinterprets the record in maintaining that the trial court found the offenses to be separate.   Her record citation is to the court's comments that the case “falls within the Ottombrino case where there are two separate types of crimes.”   Because of the citation to Ottombrino, it is clear that the court meant petitioner had been convicted of crimes punishable under section 1170.1 and crimes punishable under section 667.6.   Even had the court made the requisite finding, however, it would be unsupported by the evidence.   Petitioner had one intent and objective:  to commit an act of oral copulation.   He so stated to his victim when he seized her, while he walked her to her apartment and as she protested.   Having fulfilled his objective, he fell asleep without any other criminal act.   As evidence to support multiple objectives, the Attorney General turns to petitioner's own testimony that Ms. D. invited him to her house and he went because he was cold and tired.   If that testimony had been believed, there would have been no kidnapping conviction, much less a consecutive sentence for kidnapping.

II.

 The Attorney General's other argument to support application of consecutive sentences is the theory that section 667.6, subdivision (c) creates an exception to section 654.   Subdivision (c) of that section permits “full, separate, and consecutive” terms for each violation of enumerated offenses “whether or not the crimes were committed during a single transaction.”   The Masten court rejected the contention that this language revealed a legislative intent to create an exception to section 654.   The court pointed out that “in looking to the legislative history of the statute, we note that subdivision (c) originally provided that ‘[a] full, separate, and consecutive term shall be served ․ whether or not the crimes were committed with a single intent or objective or during a single transaction.’  (Amend. to Sen. Bill No. 13, (1979–1980 Reg.Sess.) Mar. 5, 1979, § 10, pp. 15–16, italics added.)   This language, which could be reasonably construed to provide for an exception to section 654, was subsequently excised from the final version of the bill.”  (People v. Masten, supra, 137 Cal.App.3d at p. 589, 187 Cal.Rptr. 515;  see also People v. Burns, supra, 158 Cal.App.3d at p. 1181, 205 Cal.Rptr. 356, hg.den. Oct. 25, 1984.)

The court in People v. Galvan initially declined to follow Masten.   Review was granted and the case was returned for reconsideration in light of footnote 2 in People v. Craft (1986) 41 Cal.3d 554, 559, 224 Cal.Rptr. 626, 715 P.2d 585.  (People v. Galvan (1986) 187 Cal.App.3d 1205, 1208, 232 Cal.Rptr. 410.)   That footnote states in pertinent part:  “Although subdivision (c) allows separate punishment for crimes ‘committed during a single transaction,’ it does not affect section 654, which prohibits multiple punishment under different code provisions for a single ‘act or omission.’ ”   Upon reconsideration, the Galvan court followed Masten in a case of kidnapping with the intent of committing sexual assault crimes.

The California Supreme Court directly addressed the relation of section 654 and section 667.6, subdivision (c) in People v. Siko (1988) 45 Cal.3d 820, 248 Cal.Rptr. 110, 755 P.2d 294.   In Siko, the defendant was sentenced to full consecutive terms for three sexual offenses against one victim—lewd and lascivious conduct (§ 288, subd. (b)), forcible rape (§ 261, subd. (2)) and forcible sodomy (§ 286, subd. (c)).  The court described the issue before it as follows:  “This case raises the question whether by adopting subdivision (c) of that section [667.6] [hereafter subdivision (c) ] the Legislature intended to repeal the prohibition of section 654 against multiple punishment for multiple Penal Code violations based on ‘the same act or omission’ insofar as the serious sex offenses enumerated in subdivision (c) are concerned.   As we shall explain, this case does not present the question of whether or not the enactment of subdivision (c) was intended by the Legislature to abrogate or modify the judicially engrafted ‘indivisible’ or ‘single transaction’ rule.”  (Id. at p. 822, 248 Cal.Rptr. 110, 755 P.2d 294.)   The court pointed out that petitioner had committed only two criminal acts since the lewd conduct consisted only of the rape and sodomy but was being punished separately for all three convictions.   The court rejected the theory that the Legislature intended to override by implication “the century-old ban of section 654 on multiple punishment of violations based on the ‘same act or omission.’ ”  (Id. at p. 824, 248 Cal.Rptr. 110, 755 P.2d 294.)   The People had pointed out that subdivision (c) authorizes separate punishment “whether or not the crimes were committed during a single transaction.”   The court viewed the argument based on this language as “irrelevant:  here, the People do not seek to punish three acts once each;  they seek to punish the same two acts twice.   This violates section 654, but it does not implicate the ‘single’ or ‘indivisible transaction’ rule.”   (Id. at p. 825, 248 Cal.Rptr. 110, 755 P.2d 294.)  “Whatever the Legislature's intent may have been with respect to the ‘single’ or ‘indivisible transaction’ rule, it is clear to us it did not intend by its enactment of subdivision (c) to repeal or amend the prohibition of double punishment for multiple violations of the Penal Code based on the ‘same act or omission.’ ”   (Id. at p. 826, 248 Cal.Rptr. 110, 755 P.2d 294.)

The court in People v. Anderson (1990) 221 Cal.App.3d 331, 270 Cal.Rptr. 516, hearing denied, turned its attention to “the question left unresolved in Siko, namely whether the Legislature's authorization of consecutive full-term sentences for enumerated sex offenses, “ ‘whether or not the crimes were committed during a single transaction,’ ” creates an exception to section 654's prohibition against multiple punishment for separate acts committed during an indivisible course of conduct.”  (Id. at p. 340, 270 Cal.Rptr. 516.)   Without citing Masten, the Anderson court also considered the fact that the Legislature had rejected the use of the phrase “whether or not the crimes were committed with a single intent or objective or during a single transaction” in favor of the language used.   The Anderson court concluded that “[a]lthough the Legislature's reason for omitting the reference to a single intent or objective remains unclear, the only reasonable explanation for the retention of the phrase ‘whether or not the crimes were committed during a single transaction’ is that the Legislature intended to create an exception (to section 654's prohibition against multiple punishment) applicable where separate acts are committed during an indivisible course of conduct.”  (Id. at p. 342, 270 Cal.Rptr. 516.)

The result in Anderson was that full-term consecutive sentences were permitted where in the course of robbing a woman the defendant committed the offense of forcible sexual penetration by a foreign object (§ 289, subd. (a)).  The court concluded that, if applicable, section 654 would preclude multiple punishment because the sexual offense was incident to the single objective of robbery.  (Id. at p. 339, 270 Cal.Rptr. 516.)   The court pointed out that its conclusion that section 654 was not applicable produced a result consistent with the purpose of subdivision (c).  “Our interpretation of section 667.6, subdivision (c), produces a reasonable result in the present case.   Subdivision (c) was intended to permit the imposition of more severe punishment where a defendant commits multiple offenses constituting separate acts, one or more of which is enumerated in the statute.  (People v. Craft, supra, 41 Cal.3d 554, 560 [224 Cal.Rptr. 626, 715 P.2d 585].)   Such increased penalties are appropriate because a defendant who commits ‘a number of base criminal acts on his victim is substantially more culpable than a defendant who commits only one such act.’  (People v. Perez, supra, 23 Cal.3d 545, 553 [153 Cal.Rptr. 40, 591 P.2d 63].)  [¶] (1d) In the [Anderson] case, the barrel of a shotgun forcibly was inserted into Argostino's rectum, causing her pain and necessitating subsequent medical treatment.   Although this offense was a means of facilitating the robbery for which the defendants were separately punished, the sexual violation of Argostino subjected her to additional pain, humiliation, and risk of injury, justifying greater punishment.  (See People v. Marks (1986) 184 Cal.App.3d 458, 466 [229 Cal.Rptr. 107].)”  (Id. 221 Cal.App.3d at p. 342, 270 Cal.Rptr. 516.)

The Attorney General takes the position that Anderson is applicable to the instant case, suggesting that it is inconsistent with the earlier line of cases commencing with Masten and dealing with kidnap and sexual offenses.   Anderson, however, is not necessarily inconsistent with the Masten line of cases.  (But see People v. Andrus (1990) 226 Cal.App.3d 73, 78–79, 276 Cal.Rptr. 30.)   First, Anderson does not take issue with the line of cases involving kidnap although it cites Galvan.  (221 Cal.App.3d at p. 339, 270 Cal.Rptr. 516.)   Second, there is a difference between the crimes in Anderson and the kidnap cases which suggests the legislative intent in leaving in the “single transaction” language in subdivision (c) but omitting the “single intent or objective” language.   In Anderson, there were multiple criminal objectives (or at least multiple criminal “intent”) despite the fact that the sexual penetration was incidental to the robbery.   To commit a violation of section 289, subdivision (a), the perpetrator must act “for the purpose of sexual arousal, gratification, or abuse.”   There were also injuries incurred from the penetration separate from the injury incurred in the robbery.   In the kidnap cases, there is but one objective, to commit the sexual offense and no separate physical injury from the act of kidnapping.

Finally, we note that the Legislature acted promptly after Masten to enact section 667.8 which provides for a limited exception to section 654 where a person kidnaps a victim in violation of section 207 for the purpose of committing enumerated sexual offenses.  (See People v. Flores (1987) 193 Cal.App.3d 915, 921–922, 238 Cal.Rptr. 656.)   Section 667.8 mandates an additional term of punishment in that situation.   It is significant that the Legislature chose that means of increasing the punishment for kidnapping for the purpose of committing sexual offenses rather than amending section 667.6 to make clear that full, separate and consecutive terms could be imposed.

Since we conclude that section 654 bars the punishment of both kidnapping and oral copulation in this case, we do not reach the question of the consequences of the trial court's failure to state reasons for sentencing petitioner to consecutive terms and for choosing to sentence pursuant to section 667.6 rather than section 1170.1, as required by People v. Belmontes, supra, 34 Cal.3d at p. 345, 193 Cal.Rptr. 882, 667 P.2d 686.

The petition for writ of habeas corpus is granted.   The case is remanded to the Superior Court of the City and County of San Francisco for resentencing in light of the fact that the trial court stayed imposition of a prior prison term enhancement.  (See People v. Burns (1984) 158 Cal.App.3d 1178, 1182–1184, 205 Cal.Rptr. 356.)

FOOTNOTES

1.   All statutory references hereafter are to the Penal Code.

2.   Even were we not to find ineffective counsel, the contention that the sentence is invalid could be attacked by petition.  “Habeas corpus is an appropriate remedy to correct sentences which are invalid or excessive under section 654.  (Neal v. State of California, 55 Cal.2d 11, 17 [9 Cal.Rptr. 607, 357 P.2d 839].”  (In re Adams (1975) 14 Cal.3d 629, 633, 122 Cal.Rptr. 73, 536 P.2d 473.)

3.   At the enactment of section 667.6 in 1979 and in 1982 at sentencing, subdivision (c) provided in pertinent part:  “In lieu of the term provided in Section 1170.1, a full, separate, and consecutive term may be imposed for each violation of subdivision (2) or (3) of Section 261, Section 264.1, subdivision (b) of section 288, Section 289, or of committing sodomy or oral copulation in violation of Section 286 or 288a by force, violence, duress, menace or threat of great bodily harm whether or not the crimes were committed during a single transaction.”

4.   The Ottombrino court had suggested in its reasoning that subdivision (c) of section 667.6 was a sentencing scheme in lieu of section 1170.1 sentencing rather than an alternative scheme.  (See 127 Cal.App.3d at p. 586, 179 Cal.Rptr. 676.)

PERLEY, Associate Justice.

ANDERSON, P.J., and POCHÉ, J., concur.