IN RE: George William HENRY on Habeas Corpus.

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District Court of Appeal, Third District, California.

IN RE: George William HENRY on Habeas Corpus.

Cr. 3926.

Decided: February 28, 1966

Allan B. O'Connor, Sacramento, for appellant. Thomas C. Lynch, Atty. Gen., by Doris Maier, Asst. Atty. Gen., and Daniel J. Kremer, Deputy Atty. Gen., Sacramento, for respondent.

Following the holdup of a liquor store in Richmond in 1958, petitioner Henry and several companions were charged with attempted armed robbery of Chester Gambucci (Pen.Code, § 211) and assault upon Gambucci with a deadly weapon (Pen.Code, § 245). Henry was also charged with possession of a concealable firearm by an exconvict (Pen.Code, § 12021.) A jury trial resulted in his conviction on all three counts. The court sentenced Henry to prison on each of these counts, specifying concurrent sentences. He now seeks habeas corpus on the ground that imposition of separate sentences on three counts subjects him to multiple punishment for a single criminal transaction, in violation of Penal Code, section 654.1

Gambucci was part owner of a package liquor store and an adjacent bar in Richmond. The store was situated around the corner from the bar, but was joined to the latter by an internal hallway. Petitioner Henry and his companions, Whitfield and Hill, entered the liquor store. Petitioner took up a position near a wine display while Whitfield and Hill approached the counter where Charles Moe, the clerk, was standing. Whitfield asked for a bottle of wine but Moe refused to sell to him, believing him to be a minor. Whitfield then walked into the doorway leading to the bar. In the bar he sought to buy wine from Gambucci. Gambucci told him to return to the liquor store where the wine was kept. Meanwhile Moe was selling wine to Whitfield's companion, Hill, who seemed to be older. As Moe was completing the sale Whitfield reentered the store. Gambucci entered almost immediately thereafter. Whitfield and Hill then drew pistols. Whitfield directed his at Gambucci, Hill at the clerk, Moe. Petitioner Henry stood in the center of the store, watching the entrances. Hill ordered Moe to empty the cash register contents into a paper sack. As Moe was complying Whitfield struck Gambucci three blows on the head with his gun butt. Gambucci, his hands in the air, said, ‘Please don't shoot.’ Whitfield shot him in the stomach and as his victim fell, shot him again in the finger. Taking the money in the paper sack, the three men left the store. A customer in the nearby bar testified that he was telephoning the police when petitioner Henry entered the bar, held a gun on him and ordered him to drop the phone.

Penal Code, section 654 prevents multiple sentences when a single course of conduct forming an indivisible transaction results in violation of several penal laws. The intent and objective of the actor determine whether a criminal course of conduct is indivisible. When several offenses are incident to one objective, the defendant may be punished for one of such offenses but not for more than one. (People v. Ridley, 63 A.C. 703, 709–710, 47 Cal.Rptr. 796, 408 P.2d 124; People v. McFarland, 58 Cal.2d 748, 760 et seq., 26 Cal.Rptr. 473, 376 P.2d 449; Neal v. State of California, 55 Cal.2d 11, 18, 9 Cal.Rptr. 607, 357 P.2d 839; People v. Gilbert, 214 Cal.App.2d 566, 568, 29 Cal.Rptr. 640.) If an assault is the means of perpetrating a robbery, the offender may be sentenced for one offense only (People v. Ridley, supra). If the assault is not a means of accomplishing the robbery but follows after completion of the latter crime, the offender is vulnerable to multiple sentences. (In re Chapman, 43 Cal.2d 385, 387, 273 P.2d 817; People v. Houghton, 212 Cal.App.2d 864, 872–874, 28 Cal.Rptr. 351.) Escape with the loot is part of the crime of robbery. (People v. Kendrick, 56 Cal.2d 71, 90, 14 Cal.Rptr. 13, 363 P.2d 13.)

At the time we issued the order to show cause in this case, only the transcript of the preliminary examination was available. From the testimony at the preliminary examination it was not clear whether the robbery had been completed before Gambucci was struck and shot. Following oral argument, a transcript of the trial became available. The trial testimony demonstrates that the robbery was still in progress when Gambucci was shot. While temporal sequence does not invariably determine whether one crime is a means of accomplishing another, the evidence demonstrates that Whitfield shot Gambucci either to accomplish the robbery or to assure the perpetrators' getaway. The Attorney General properly concedes that the assault and robbery of Gambucci formed an indivisible transaction. Were Gambucci the only victim, petitioner would be entitled to relief.

The purpose of the ban on multiple sentences is to assure that punishment will be commensurate with the crime. Hence section 654 does not prevent multiple sentences where a criminal transaction results in violence against several persons. (People v. Ridley, supra, 63 A.C. at p. 710, 47 Cal.Rptr. 796, 408 P.2d 124; Neal v. State, supra, 55 Cal.2d at pp. 20–21, 9 Cal.Rptr. 607, 357 P.2d 839; see also Kellett v. Superior Court, 63 A.C. 880, 884, 48 Cal.Rptr. 366, 409 P.2d 206.) The robbery was directed not only at Gambucci but at Moe, the employee in charge of the liquor store. Robbery is an offense against the person as well as property. It consists of a taking of property ‘in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear.’ (Pen.Code, § 211.) The robbery statute applies to a taking by force or fear from an employee left in charge of the premises or a particular part of the premises by the employer. (People v. Downs, 114 Cal.App.2d 758, 766, 251 P.2d 369; see People v. Dean, 66 Cal.App. 602, 226 P. 943; 1 Witkin, Cal.Crimes, pp. 398–404; see Note, 123 A.L.R. 1099, 1102.) Moe, the sole employee in the liquor store, was the custodian of its cash. The proprietor's entry during the prelude to robbery did not interrupt that custody. Moe and Gambucci were co-victims of petitioner and his confederates.2

The facts paralled People v. Ridley, supra, where robbers held a gun on a store proprietor; the gun discharged, hitting an employee, and the robbers then shot the proprietor. The court held that two persons were harmed and sentences could be imposed for assault upon the employee as well as robbery of the proprietor. There is this distinction, that in Ridley the accusatory pleading named both proprietor and employee as victims, while here petitioner was accused of assaulting and attempting to rob Gambucci alone. That Moe, a victim of the robbery, was not named in the information or indictment, is nothing but a formality of pleading. (See Pen.Code, § 956; People v. Hedderly, 43 Cal.2d 476, 480, 274 P.2d 857.) The evidence demonstrates that Moe and Gambucci were co-victims of the robbery and Gambucci of the assault. There was an offense against each of two victims and the offenders could be punished for both offenses.

We refrain from passing on separability of the firearm possession offense. (See Kellett v. Superior Court, supra, 63 A.C. 880, 48 Cal.Rptr. 366, 409 P.2d 206.) In 1958, when Henry's crimes were committed Penal Code, section 12021 imposed a maximum sentence of five years for this offense. Petitioner has served that five years. Section 654 proscribes multiple punishment, not multiple convictions. (People v. McFarland, supra, 58 Cal.2d at p. 762, 26 Cal.Rptr. 473, 376 P.2d 449.) His sentence on the gun possession charge has expired and the offense is not one of those resulting in an adjudication of habitual criminality (Pen.Code, § 644), hence this latter claim of multiplicity is moot.

The petition is denied and the order to show cause discharged.

FOOTNOTES

1.  Penal Code, section 654 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; an acquittal or conviction and sentence under either one bars a prosecution for the same act or omission under any other. In the cases specified in Sections 648, 667, and 668, the punishments therein prescribed must be substituted for those prescribed for a first offense, if the previous conviction is charged in the indictment and found by the jury.’

2.  Compare People v. Johnson, 210 Cal.App.2d 273, 26 Cal.Rptr. 614, illustrating the rule that where robbers take property from each of several persons, they commit a separate offense against each person robbed.

FRIEDMAN, Justice.

PIERCE, P. J., and WARNE, J. pro tem., concur.