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District Court of Appeal, Second District, Division 2, California.

The PEOPLE of the State of California, Plaintiff and Respondent, v. John Henry HICKS, Defendant and Appellant.

Cr. 9398.

Decided: April 26, 1965

Grant E. Propper,* Los Angeles, for appellant.

In the early morning hours of February 21, 1963, appellant broke into a house in the City of Los Angeles and, using threats to her life and to the lives of her parents, committed two violations of Penal Code, § 288a, and one violation of Penal Code, § 286, upon a 14 year old girl. Four nights later, breaking through an unoccupied bedroom window, appellant entered the same house and proceeded to the bedroom previously occupied by the girl. The girl's father, who was then occupying her bedroom as a precautionary measure, frightened appellant away.

An information filed against appellant as a result of these acts charged five counts: Count I, burglary (February 21); Count II and Count III, violation of Penal Code, § 288a; Count IV violation of Penal Code, § 286; and Count V, burglary (February 25). A jury returned a verdict of guilty on all five counts and the trial court sentenced appellant to five consecutive sentences. Appellant appeals from the judgment.

Appellant does not question the sufficiency of the evidence. It is clear that the evidence amply sustains the convictions.

Appellant contends and respondent agrees that the trial court erred in pronouncing consecutive sentences on the first four counts in violation of Penal Code, § 654.1

Respondent suggests, however, that the sentences on those counts which warrant the greater punishment should be sustained. (Neal v. State of California, 55 Cal.2d 11, 9 Cal.Rptr. 607, 357 P.2d 839.) Respondent's position is that if the burglary charged in Count I is not punished, then the three sex offenses may be separately punished since each was a separate act (citing People v. Slobodion, 31 Cal.2d 555, 191 P.2d 1) and consecutive sentences as to the three sex offenses would be proper.

In People v. Gay, 230 A.C.A. 108, 40 Cal.Rptr. 778, on facts similar to those at bench, the defendant was sentenced to concurrent sentences on each of five counts. The court said at p. 111, 40 Cal.Rptr. at p. 780: ‘Burglary and the crime whose intended commission rendered the entry burglarious cannot be separately punished * * *. Defendant probably could be sentenced for each of the three distinct sex offenses (see People v. Slobodion, 31 Cal.2d 555, 561–563, 191 P.2d 1). But he cannot be sentenced both for these offenses and for the burglary.

‘We must affirm imposition of sentence upon the offense subject to the greatest punishment (People v. McFarland, supra, 58 Cal.2d 748, 762 [26 Cal.Rptr. 473, 376 P.2d 449]). * * * The maximum punishment for each of the * * * four offenses is life imprisonment, but the minimum terms vary. We may look to the minima in determining which offense is more serious * * *. Burglary carries a term of ‘not less than five years'. [Penal Code, § 461.] The three sex offenses are punishable by imprisonment of not less than 3 years (Pen.Code, § 288a; * * *), and not less than one year (Pen.Code, § 286).’

Respondent, by conceding that the imposition of punishment for both the burglary and the sex offenses was improper, admits under the theory of Neal v. State of California, supra, 55 Cal.2d 11, 9 Cal.Rptr. 607, 357 P.2d 839, that the sex offenses were not acts divisible from the burglary charged in Count I. It might be arguable under the reasoning in People v. Slobodion, supra, 31 Cal.2d 555, 191 P.2d 1 (cited with approval in Neal) that the sex crimes here involved were divisible acts but the facts here, as already pointed out, are substantially similar to those in Gay, supra, and in respect thereof the court in Gay said at p. 111, of 230 A.C.A., p. 780 of 40 Cal.Rptr.: ‘Defendant's purpose in entering the home was charged and found to be the commission of the sex offenses.’

However, we are not required to decide whether the sex offenses are separate. The minimum sentence for first degree burglary, not less than five years, is greater than the minimum sentence for any of the sex offenses.

Neal, supra, 55 Cal.2d at pp. 18–19, 9 Cal.Rptr. at p. 611, 357 P.2d at p. 843 states: ‘The proscription of section 654 against multiple punishment of a single act, however, is not limited to necessarily included offenses. People v. Logan, 41 Cal.2d 279, 290, 260 P.2d 20; People v. Knowles, 35 Cal.2d 175, 187, 217 P.2d 1; People v. Kynette, 15 Cal.2d 731, 761–762, 104 P.2d 794; accord: People v. Repola, 280 App.Div. 735, 281 App.Div. 679, 117 N.Y.S.2d 283, 288, affirmed 305 N.Y. 740, 113 N.E.2d 421; People v. Savarese, 1 Misc.2d 305, 114 N.Y.S.2d 816, 835–836; see People v. Snyder, 241 N.Y. 81, 83, 148 N.E. 796 interpreting N.Y.Pen.Code, § 1938, which is identical with Cal.Pen.Code, § 654). In People v. Knowles, 35 Cal.2d 175, 187, 217 P.2d 1, 8, we stated: ‘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.’ Thus the act of placing a bomb into an automobile to kill the owner may form the basis for a conviction of attempted murder, or assault with intent to kill, or malicious use of explosives. Insofar as only a single act is charged as the basis for the conviction, however, the defendant can be punished only once. People v. Kynette, 15 Cal.2d 731, 762, 104 P.2d 794. Likewise, the act of using an instrument to cause an abortion which results in death can be punished for abortion or for murder in the second degree but not for both. People v. Brown, 49 Cal.2d 577, 590–594, 320 P.2d 5.

‘Few if any crimes, however, are the result of a single physical act. ‘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, supra, [49 Cal.2d] 591, [320 P.2d 14].

‘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 of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.’

The judgment is reversed insofar as it imposes consecutive sentences or any sentence for Counts II, III, IV of the information. In all other respects the judgment is affirmed.

I concur, on the ground that the evidence shows that the three sex offenses were not divisible acts but rather were phases in one continuing sexual assault for which only one punishment could be given. (People v. McFarland, 58 Cal.2d 748, 760–763, 26 Cal.Rptr. 473, 376 P.2d 449.) Since the burglary sentence carries a more severe punishment than the punishment for any one of the sex offenses, it is the sentence we sustain for defendant's criminal conduct on February 21.


1.  Section 654, Penal Code, provides: ‘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; * * *.’

ROTH, Presiding Justice.

HERNDON, J., concur.

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