State of California, Respondent.* v. <<

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District Court of Appeal, Third District, California.

Application of Homer NEAL for a Writ of Mandamus. State of California, Respondent.*

Civ. 9777.

Decided: December 17, 1959

Homer Neal in pro. per., for petitioner. The Attorney General, by Doris H. Maier and Raymond M. Momboisse, Deputy Attys. Gen., for respondent.

Petitioner Homer Neal was convicted of two counts of attempted murder (Counts I and II) and one count of arson (Count III). The count of arson and one count of attempted murder were ordered to run concurrently. The second count of attempted murder was ordered to run consecutively with the other two counts. The convictions were affirmed on appeal, but the cause was remanded to the trial court for a redetermination of the question of whether or not the punishment on the second count of attempted murder should run consecutively or concurrently. See People v. Neal, 97 Cal.App.2d 688, 218 P.2d 556. After remand the trial court again ordered that the second count of attempted murder (Count II) run consecutively with Counts I and III.

The facts of the crime as stated in People v. Neal, supra, insofar as they are relevant to this petition disclose that about 4:15 a.m., June 4, 1949, Theodore R. Raymond and his wife, Myrtle Mae Raymond, were asleep in a bed in a room in their home. The foot of the bed was near an open window. Mr. Raymond was awakened by his dog jumping on his chest, scratching and growling. He saw a flame coming through the window. The flame enveloped the interior of the room. Both Mr. and Mrs. Raymond were severely burned. The fire was of incendiary origin. Gasoline had been thrown through the window and across the foot of the bed and then ignited. Petitioner was found guilty of the crimes.

In the petition filed in this court petitioner alleged in part that the conviction of the crime of arson was improperly imposed upon him in violation of section 654 of the Penal Code. This section reads:

‘* * * An act or omission which is made punishable in different ways by different provisions of this code may be punished under either of such provisions, but in no case can it be punished under more than one; an acquittal or conviction and sentence under either one bars a prosecution for the same act or omission under any other. * * *’

This court after reading the petition issued an order to show cause why the punishment for the crime of arson should not be set aside. The attorney general has filed an answer which discloses that the petitioner has filed some 16 petitions in various courts dealing with his incarceration. All were denied. The answer also discloses that the petitioner is also serving a sentence for escape from the custody of a deputy sheriff. The sentence on the latter charge runs consecutively with the other sentences.

 Petitioner contends that he is being doubly punished for a single act; that a single act caused the commission of the offense of attempted murder and of arson and that under section 654 of the Penal Code his sentence on the counts of attempted murder barred his being sentenced on the count of arson. Respondent State of California contends that petitioner is not being doubly punished for a single act and that in any event the question of double punishment cannot be raised by habeas corpus.

We think there is much merit in petitioner's contention that he is being punished twice for the same act. On the facts there is no question that a single act caused the commission of more than one offense—arson and attempted murder. There is no conflict in the evidence that the act of throwing the gasoline and igniting it caused the commission of the arson and the attempt at murder. Section 654 of the Penal Code precludes the punishment for more than one offense where a course of criminal conduct caused the commission of more than one offense, each of which can be committed without committing the other where only one act is charged as the basis of the multiple convictions. The California rule upon this question is well expressed by our Supreme Court in People v. Brown, 49 Cal.2d 577, at page 590, 320 P.2d 5, at page 13:

‘Defendant contends that the two convictions for crimes against Lucy, murder and abortion, cannot stand because of the provision of section 654 of the Penal Code that ‘An act or omission which is made punishable in different ways by different provisions of this code may be punished under either of such provisions, but in no case can it be punished under more than one; an acquittal or conviction and sentence under either bars a prosecution for the same act or omission under any other. * * *’ It is manifest from the evidence that defendant committed against Lucy only one criminal act, that is, the insertion of a blunt instrument in combination with the injection of a solution. That act, because it was ‘with intent thereby to procure the miscarriage of such person’ and was not ‘necessary to preserve her life,’ violated section 274 of the Penal Code. The same act, because it resulted in ‘the unlawful killing of a human being, with malice aforethought’ (Pen.Code, § 187), violated the proscription of section 189 of the Penal Code against murder of the second degree. Section 654 has been applied not only where there was but one ‘act’ in the ordinary sense (People v. Kynette (1940), 15 Cal.2d 731, 761[30], 104 P.2d 794 [single act of placing a bomb in an automobile constituted attempted murder, assault with intent to commit murder, and malicious use of explosives]), 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. Where the question is whether a transaction is divisible or indivisible, each case must be resolved on its facts. (See People v. Greer (1947), 30 Cal.2d 589, 604, 184 P.2d 512 [statutory rape and lewd and lascivious conduct; ‘Except for the rape itself, the only act of which * * * [the prosecuting witness] accused defendant was the forcible removal of her underclothing immediately preceding the rape. To hold that the removal of the prosecutrix's under clothing constitutes an act separate from the rape * * * would be artificial in the present context and would permit double punishment * * *’]; People v. Kehoe (1949), 33 Cal.2d 711, 715, 204 P.2d 321 [grand theft of an automobile and driving or taking without permission on the same day in the same county; ‘in the absence of any evidence showing a substantial break between Kehoe's taking and his use of the automobile * * *, only the conviction for one offense may be sustained’]; People v. Knowles (1950), 35 Cal.2d 175, 187, 188, 217 P.2d 1 [robbery and kidnapping as defined by section 209 of the Penal Code as amended in 1933 to include holding or detention to commit robbery; ‘If a course of criminal conduct causes the commission of more than one offense, each of which can be committed without committing any other, the applicability of section 654 will depend upon whether a separate and distinct act can be established as the basis of each conviction, or whether a single act has been committed so that more than one statute has been violated. If only a single act is charged as the basis of the multiple convictions, only one conviction can be affirmed, notwithstanding that the offenses are not necessarily included offenses. * * * Defendant committed no act of seizure or confinement other than that necessarily incident to the robbery’]; Poeple v. Logan (1953), 41 Cal.2d 279, 290[11], 260 P.2d 20 [first degree robbery by person armed with baseball bat and assault with deadly weapon; ‘The one act of inflicting force with the bat cannot both be punished as assault with a deadly weapon and availed of by the People as the force necessary to constitute the crime of robbery’]; * * *'

And in People v. Knowles, 35 Cal.2d 175, at page 187, 217 P.2d 1, 8, the court said:

‘But the applicability of section 654 is not limited to necessarily included offenses. If a course of criminal conduct causes the commission of more than one offense, each of which can be committed without committing any other, the applicability of section 654 will depend upon whether a separate and distinct act can be established as the basis of each conviction, or whether a single act has been so committed that more than one statute has been violated. If only a single act is charged as the basis of the multiple convictions, only one conviction can be affirmed, notwithstanding that the offenses are not necessarily included offenses. It is the singleness of the act and not of the offense that is determinative. A statute providing for the punishment of any person operating a ‘still’ or having a ‘still’ in his possession, Stats. 1927, ch. 277, p. 497, states two distinct offenses: operation and possession. If, however, the only act of possession is that necessarily incident to the operation, only one conviction can be affirmed. People v. Clemett, 208 Cal. 142, 146, 280 P. 681. An unsuccessful attempt at murder by use of a bomb may form the basis for convictions of attempted murder, assault with intent to kill, or malicious use of explosives. Insofar as only a single act is charged as the basis of the convictions, however, the defendant can be punished only once. People v. Kynette, 15 Cal.2d 731, 762, 104 P.2d 794. The possession of narcotics is an offense distinct from the transportation thereof, but there can be only one conviction when a single act of transportation is proved and the only act of possession is that incident to the transportation. Schroeder v. United States, 2 Cir., 7 F.2d 60, 65. In People v. Greer, 30 Cal.2d 589, 600, 184 P.2d 512, the defendant was charged with the violation of Penal Code, section 261(1), and Penal Code, section 288. Both charges were based upon a single act of sexual intercourse with a girl under 14. It is possible to violate either statute without violating the other, and this court there stated that if the commission of separable and distinct acts were charged, although they might have been committed at relatively the same time, the convictions of both offenses would be upheld. If, as in that case, however, the violation of both statutes is predicated on the commission of a single act of sexual intercourse Penal Code, section 654, requires that the defendant be punished under only one statute.

‘Unlike the defendants in the foregoing cases, Knowles committed no act of kidnapping that was not coincident with the taking of personal property. There was no seizure or confinement that could be separated from the actual robbery as a separate and distinct act. Since he committed only a single, indivisible act, Penal Code, section 654, requires that he be punished only once therefor. In view of the fact that the Legislature prescribed greater punishment for the violation of section 209 it must be deemed to have considered that the more serious offense, and the convictions thereunder must be the ones affirmed. * * *.’

And in People v. Kehoe, 33 Cal.2d 711, at page 713, 204 P.2d 321, 322 the court said:

‘The doctrine of included offenses is a part of the constitutional guarantee against double jeopardy. Cal.Const., Art. I, sec. 13. Section 1023 of the Penal Code implements that guarantee by providing that a prior conviction is a bar to subsequent prosecution for the same offense ‘or for an offense necessarily included therein.’ In determining whether this section is applicable to a specific situation, it is necessary first to determine whether a given crime, by definition, necessarily and at all times is included within another one. See discussion in People v. Greer, 30 Cal.2d 589, 595, 184 P.2d 512. But although a given crime is not ‘necessarily included’ within another one for the purpose of the double jeopardy statute, under certain circumstances the conviction of both crimes cannot be justified. The Penal Code recognizes this principle in section 654, which declares: ‘An act or omission which is made punishable in different ways by different provisions of this code may be punished under either of such provisions, but in no case can it be punished under more than one * * *.’ This section is not concerned with the question of whether the particular crime, in the abstract, necessarily and always is included within another one, but rather, it is directed to the question of whether two statutes punish one specific act of the defendant. Accordingly, the question here presented for decision is whether, under the facts shown in the record now being reviewed, Kehoe may be punished both for the violation of section 503 of the Vehicle Code and for the crime of grand theft, of which he was also convicted.'

Applying the test laid down by the Supreme Court in the foregoing cases, we believe it was error to punish petitioner for the crime of arson.

 Respondent contends further that petitioner is not being doubly punished because the punishment for the crime of arson runs concurrently with one of the punishments of attempted murder. Respondent relies on a series of appellate court cases which hold that where concurrent sentences are imposed there is no prejudice even if section 654 is applicable, citing People v. Thompson, 133 Cal.App.2d 4, 10, 284 P.2d 39; People v. Ponce, 96 Cal.App.2d 327, 215 P.2d 75; People v. Benenato, 77 Cal.App.2d 350, 175 P.2d 296; People v. Sigel, 55 Cal.App.2d 279, 285, 130 P.2d 763. The Supreme Court, however, follows a different rule. In People v. Kehoe, supra, where the sentences were ordered to run concurrently and double punishment was found to exist, the court reversed the judgment as to the lesser offense.

In People v. Kehoe, supra, the court said in 33 Cal.2d at page 715, 204 P.2d at page 324:

‘Accordingly, although it was proper to charge Kehoe with both crimes in the information and the record would support his conviction of either of them, it was error for the court to enter a judgment finding him guilty of both offenses. Since he was found guilty of grand theft, the lesser crime of violation of section 503 may be said to have merged into that conviction. Although the sentences were ordered to run concurrently, to ‘preclude the dual judgments of the trial court from hereafter working any possible disadvantage or detriment to the defendant in the later fixing of his definite term of the [Adult Authority]’ People v. Craig, 17 Cal.2d 453, 458, 110 P.2d 403, the judgment insofar as it finds Kehoe guilty of a violation of section 503 of the Vehicle Code, is reversed with directions to the trial court to dismiss count two of the information. In all other respects, the judgment is affirmed as is also the order denying a new trial.'

And as stated in People v. Branch, 119 Cal.App.2d 490, at page 496, 260 P.2d 27, at page 31:

‘* * * Under the rule of this section [Penal Code, sec. 654], as interpreted by the Supreme Court, a single criminal act, whether it gives rise to included offenses or not, can only be punished once. By this section, it is indispensable in order to impose separate punishments that there be evidence of separate and divisible acts that are not incidental to each other. In determining this question the courts have refused to dissect the evidence minutely in an attempt to find separate offenses, but, on the contrary, have held that a broad transactional approach should be made. The evidence in the instant case, so viewed, shows that the possession of appellant of the marihuana was incidental to its sale or offer to sell to Belle. For that reason but one offense is involved.

‘The attorney general seeks to avoid the effects of this error by pointing out that, since the sentences on the two counts have been made to run concurrently, no possible prejudice can result from the judgment. This is an unrealistic approach. The dual judgment may very well adversely affect appellant's rights when he comes before the proper authorities to have his definite term fixed. This factor was sufficient to require a reversal in People v. Kehoe, 33 Cal.2d 711, 204 P.2d 321; People v. Roberts, 40 Cal.2d 483, 254 P.2d 501; People v. Knowles, 35 Cal.2d 175, 217 P.2d 1; People v. Craig, 17 Cal.2d 453, 110 P.2d 403.’

We conclude therefore that respondent's contention that petitioner is not being doubly punished for a single act cannot be sustained since the number of crimes for which punishment is imposed may be considered by the Adult Authority in setting the term of a prisoner whether the terms run concurrently or consecutively.

 Respondent contends further that the question of whether or not a person has been made to suffer double punishment for a single act is a question of fact and therefore habeas corpus will not lie. Respondent cites In re Chapman, 43 Cal.2d 385, at page 390, 273 P.2d 817, 820, in which the court said:

‘Whether the evidence accepted by the trier of fact shows petitioner guilty of one crime or of two is in part a factual question. ‘It is, of course, an established rule that habeas corpus may not be used instead of an appeal to review determinations of fact made upon conflicting evidence after a fair trial. [Citations.] Likewise, the writ is not available to correct errors or irregularities relating to ascertainment of the facts when such errors could and should have been raised by appeal. [Citations.]’ * * *'

Upon this record the cited case has no application. The petition herein concerning the facts as to the course of criminal conduct alleged that ‘On June 4, 1949, * * *, a quantity of gasoline was dashed through a window upon two people who were sleeping in the same bed. The petitioner was arrested and convicted * * *.’ The return to the order to show cause which this court issued does not take issue with this statement and the recital of facts by the parties, apparently taken from the statement of facts in People v. Neal, supra, while elaborating upon petitioner's statement, does nothing to dispel the effect thereof, which is that we have here only a single course of criminal conduct which caused the commission of more than one offense, each of which could be committed without committing any other. Our own examination of the trial transcript discloses nothing to the contrary. Upon the undisputed facts in this case section 654 is applicable. This is not a case, therefore, where, as was the case In re Chapman, supra, the trier of fact in proceeding to punish for all three convictions could be said to have expressly or impliedly rested its determination upon conflicting evidence as to the facts. The court, having pronounced judgment and sentence against petitioner upon the two counts of attempted murder, could not validly proceed to sentence him under the count of the information charging arson, and its attempt to do so was an act in excess of jurisdiction. The conviction of arson is set aside, and the Adult Authority is directed to exclude from its consideration the purported sentence for arson. Petitioner, however, is not entitled to release so long as he is held under valid judgments of conviction for his other crimes. The order to show cause is discharged and the writ is denied.

SCHOTTKY, Justice.

VAN DYKE, P. J., and PEEK, J., concur.

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