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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: February 26, 1965

Grant E. Propper*, Los Angeles for appellant. Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., Anthony M. Summers, Deputy Atty. Gen., for respondent.

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 fourteen 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. 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 that the sex offenses were not divisible acts under the theory of Neal v. State of California, supra, 55 Cal.2d 11, 9 Cal.Rptr. 607, 357 P.2d 839. It might be arguable under the reasoning on 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, 40 Cal.Rptr. p. 780: ‘Defendant's purpose in entering the home was charged and found to be the commission of the sex offenses.’

The minimum sentence for first degree burglary, not less than five years, is greater than the minimum sentence for any of the sex offenses.

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


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 and FLEMING, JJ., concur.

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