IN RE: Truman L. MCGREW on Habeas Corpus.

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District Court of Appeal, First District, Division 1, California.

IN RE: Truman L. MCGREW on Habeas Corpus.

Cr. 5811.

Decided: October 27, 1966

Robert N. Beechinor, San Francisco for appellant. Thomas C. Lynch, Atty. Gen., of California, Robert R. Granucci, Robert S. Shuken, Deputy Attys. Gen., San Francisco, for respondents.

 In this habeas corpus proceeding 1 petitioner contends that he is unlawfully confined in the California State Prison at San Quentin on the ground that he has been punished for more than one offense within the meaning of Penal Code 2 section 654.3

The facts 4 before us disclose the following:  At approximately 4 a.m. on June 17, 1953 petitioner rang the bell at the home of Mrs. W, a 27–year old married woman.   When Mrs. W answered the door petitioner asked for a person named Janet.   When Mrs. W stated that no one by that name lived there, petitioner forced his way into the room.   Holding Mrs. W by the hair with his left hand and placing a foundry tool at her throat with his right hand, petitioner, after threatening her life, forced Mrs. W to remove her clothing.   Petitioner then stated to Mrs. W that he was going to “have her in every way possible.”   According to Mrs. W's statement to the police petitioner than accomplished three acts of sexual intercourse and the act of sex perversion defined in section 288a.

Petitioner was apprehended, tried before a jury, and was found guilty of two counts or rape (violation of § 261, subd. 4, charged in Counts I and II of the information), violation of section 288a (Count III), and burglary in the first degree (violation of § 459, charged in Count IV).   With respect to the charge of burglary, the information alleged that this crime was “connected in its commission with the charges set forth in all the preceding counts” and that it was committed “with the intent then and there and therein * * * to commit RAPE, a felony.”   The information also alleged a former conviction, on March 27, 1952, for violation of section 288, a felony.

On August 19, 1955 petitioner was sentenced to imprisonment in the state prison for the term prescribed by law on all four of the counts charged in the subject information, and was also sentenced to serve the term prescribed by law for the prior conviction therein alleged after a finding that petitioner had violated the conditions of the order granting probation for such offense.   All of these terms of imprisonment were ordered to run concurrently.

 Section 654 provides, in pertinent part, 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;  * * * ”  The prohibition of this section applies not only where one “act” in the ordinary sense is involved but also where there is a course of conduct that violates more than one statute and comprises an indivisible transaction punishable under more than one statute.   (Neal v. State of California, 55 Cal.2d 11, 18, et seq., 9 Cal.Rptr. 607, 357 P.2d 839;  People v. McFarland, 58 Cal.2d 748, 760, 26 Cal.Rptr. 473, 376 P.2d 449.)   Accordingly, if all the offenses are incident to one objective, the defendant may be punished for any one of them but not for more than one.  (Neal v. State of California, supra, 55 Cal.2d p. 18, et seq., 9 Cal.Rptr. 607, 357 P.2d 839;  People v. McFarland, supra, 58 Cal.2d p. 760, 26 Cal.Rptr. 473, 376 P.2d 449.)  “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.”  (Neal v. State of California, supra, 55 Cal.2d p. 19, 9 Cal.Rptr. p. 611, 357 P.2d p. 843;  see also People v. McFarland, supra, 58 Cal.2d p. 760, 26 Cal.Rptr. 473, 376 P.2d 449.)

In Neal it was held that since the arson there involved was the means of perpetrating the crime of attempted murder, the arson was merely incidental to the primary objective of committing murder, and that, therefore, the defendant could not be punished for both arson and attempted murder.   Similarly, in McFarland it was held that since the only reasonable conclusion to be drawn from the circumstances was that the defendant had entered the hospital with the intent to steal an air compressor, the entry into the hospital and the taking of the compressor were parts of a continuous course of conduct motivated by one objective, namely, theft;  thus, the defendant could be punished for either the theft or the burglary, which was incident to and a means of perpetrating the theft, but not for both.

 However, while section 654 proscribes double punishment it does not proscribe double conviction.   Accordingly, conduct giving rise to more than one offense within the meaning of the statute may result in initial conviction of two or more crimes, only one of which, the more serious offense, may be punished.  (People v. McFarland, supra, 58 Cal. p. 762, 26 Cal.rptr. 473, 376 P.2d 449;  see People v. Chessman, 52 Cal.2d 467, 497, 341 P.2d 679.)   Where double punishment has been erroneously imposed, the appropriate procedure to be followed by the reviewing court, therefore, is to eliminate the effect of the judgment as to the lesser offense or offenses insofar as the penalty alone is concerned.  (People v. McFarland, supra, 58 Cal.2d pp. 762–763, 26 Cal.Rptr. 473, 376 P.2d 449;  see People v. Brown, 200 Cal.App.2d 111, 118, 19 Cal.Rptr. 36.)

 Although there is some suggestion in his petition that petitioner's claim of double punishment includes the punishment for the 1952 conviction for violation of section 288, it is clear that such contention is without merit since it is obvious that such offense and the offenses for which he was sentenced in 1955 did not comprise an indivisible transaction.   The 1952 conviction was for an offense committed on October 8, 1951 while the sentences imposed in 1955 were for offenses which took place on June 17, 1953.   Moreover, the sex offense committed in 1951 was upon a different female than the one involved in the 1953 occurrence.   Our concern in the instant proceeding, therefore, is with regard to the four counts involving the June 17 incident and for which petitioner was sentenced in 1955, that is, the one count of burglary, the two counts of rape, and the one count of violating section 288a.

It has frequently been held that burglary and the crime whose intended commission rendered the entry burglarious cannot be separately punished.   (People v. Hicks, 63 Cal.2d 764, 765, 48 Cal.Rptr. 139, 408 P.2d 747;  People v. McFarland, supra, 58 Cal.2d p. 762, 26 Cal.Rptr. 473, 376 P.2d 449;  People v. Gay, 230 Cal.Ap.2d 102, 105, 40 Cal.Rptr. 778;  People v. Jones, 211 Cal.App.2d 63, 74, 27 Cal.Rptr. 429.)   What, then, in the instant case, is the crime whose intended commission rendered petitioner's entry burglarious?

The People argue that petitioner entered with intent to commit only one rape, and that, therefore, the sentence for burglary is in conflict only with one of the sentences for rape.   The basis for this argument is that the language of the information in Count IV charges that petitioner entered the subject house “with the intent than and there and therein * * * to commit RAPE * * *.”   The People argue, further, that even if this language be construed to include both of the rapes perpetrated by petitioner, the violation of section 288a can be punished separately because it is not part of the course of conduct charged or proved against petitioner.

 It is clear that the People's argument is misconceived.   The language of an information cannot be said to be probative of the subjective intent of the person charged, nor should this question of fact as to whether a course of conduct is divisible or indivisible be made to depend upon the astuteness of the district attorney in drafting the accusatory pleading.  (Downs v. State of California, 202 Cal.App.2d 609, 615, 20 Cal.Rptr. 922.)   We must, rather, look to the record to ascertain the intent and objective of the actor.  (See Neal v. State of California, supra, 55 Cal.2d p. 19, 9 Cal.Rptr. 607, 357 P.2d 839;  People v. McFarland, supra, 58 Cal.2d p. 762, 26 Cal.Rptr. 473, 376 P.2d 449;  People v. Nelson, 233 Cal.App.2d 440, 446, 43 Cal.Rptr. 626;  People v. Keller, 212 Cal.App.2d 210, 220, 27 Cal.Rptr. 805.)   In the instant case the record discloses that upon petitioner's entry and prior to the commission of any of the sex offenses petitioner stated to the victim that “he was going to have her in every way possible.”   In the absence of any other evidence in the record before us going to the intent and objective of petitioner in entering the subject dwelling, the only reasonably conclusion is that petitioner was motivated by one objective, the commission of the sexual offenses he later accomplished.   There4fore, under the rationale of Neal and McFarland, the Burglary was incident to and a means of perpetrating the three sex offenses.   Accordingly, each of the three sex offenses constitutes a crime whose intended commission rendered petitioner's entry burglarious.

 The three sex offenses in the present case were, however, separate and distinct acts for which petitioner can be punished separately.  (People v. Hicks, supra, 63 Cal.2d p. 766, 48 Cal.Rptr. 139, 408 P.2d 747;  People v. Slobodion, 31 Cal.2d 555, 561–563, 191 P.2d 1;  cf. People v. Gay, supra, 230 Cal.App.2d p. 105, 40 Cal.Rptr. 778.)   In Slobodion it was held that the defendant could be convicted of both lewd conduct with a child (§ 288a) upon such child, although the acts were committed within a relatively short time, where the offenses were not based upon the same act and were not necessarily or normally associated with each other.   In Hicks it was held that three sex offense, consisting of two violations of section 288a (sex perversion) and one violation of section 286 (crime against nature) committed after the defendant had entered a house with intent to commit a felony against a certain young female, were separate and distinct acts for which the defendant could be punished separately.   The rationale of Slobodion and Hicks is to be found in the thesis that although the sex offenses were closely connected in time and a part of the same criminal venture they were separate and distinct acts and were not acts incidental to each of the other sex offenses or the means by which each was accomplished.  (See Neal v. State of California, supra, 55 Cal.2d p. 20, 9 Cal.Rptr. 607, 357 P.2d 839.)

The inquiry in the instant case, therefore, resolves itself as to which may be punished, the burglary or the sex offenses.   The determination of this question rests upon a consideration of whether the punishment for the three sex offenses is greater than the punishment for the burglary.  (People v. Hicks, supra, 63 Cal.2d p. 766, 48 Cal.Rptr. 139, 408 P.2d 747.)   In Hicks, where the trial court had imposed consecutive sentences for each of the violations, the Supreme Court held that, since the maximum punishment for the three sex offenses amounted to a life term plus 30 years' imprisonment,5 the sentence for those offense whould stand and the portion of the judgment imposing a sentence for the first degree burglary, the maximum punishment for which is life imprisonment, should be reversed.

In Gay the defendant was found guilty of burglary (§ 459), assault with a deadly weapon (§ 245), and three sex offense (§§ 288a, 286 and 261, subd. (4)).  There, however, the defendant was sentenced to concurrent terms on all five counts.   The reviewing court held that, since the defendant's purpose in entering the home was the commission of the three sex offenses and the knife was used to gain entrance into the house and to compel submission to the sex offenses, the burglary and assault were incident to and the means by which the sex offenses were accomplished, and that therefore the defendant could not be punished for the burglary, the assault, and the three sex offenses.   Noting that the defendant “probably could be sentenced for each of the three distinct sex offenses,” upon the authority of Slobodion, and noting that “It is arguably that concurrent sentences for the three sex offenses amount to greater punishment than the single sentence for burglary, which carries the same maximum of life imprisonment, but a higher minimum term than any of the group of three” (230 Cal.App.2d p. 105, 40 Cal.Rptr. p. 781), the appellate court reversed the judgment insofar as it imposed sentence for the assault and the three sex offenses because the Attorney General conceded, and the defendant did not dispute, that the first degree burglary sentence was greater than those for the three sex offenses as a group.6

 In the present case the maximum punishment for first degree burglary is life imprisonment and the minimum not less than five years (§§ 461, subd. (1), 671);  for rape, the maximum punishment is life imprisonment and the minimum not less than three years (§§ 264, 671);  and for a violation of section 288a under the circumstances of this case, the maximum is 15 years and the minimum three years (§ 288a).   It is apparent, therefore, that as between a single sentence for first degree burglary and a single sentence for rape the former is more serious because, while the maximum for both is life imprisonment rape is punishable by a lesser minimum sentence than burglary.   But here we have a single sentence for burglary as opposed to three sentences for the sex offenses.   In determining which is the more serious offense for which punishment is to be imposed we look to the offense subject to the greater punishment commensurate with the defendant's criminal liability.  (See Neal v. State of California, supra, 55 Cal.2d p. 20, 9 Cal.Rptr. 607, 357 P.2d 839;  People v. McFarland, supra, 58 Cal.2d p. 763, 26 Cal.Rptr. 473, 376 P.2d 449;  People v. Hicks, supra, 63 Cal.2d p. 766, 48 Cal.Rptr. 139, 408 P.2d 747;  People v. Gay, supra, 230 Cal.App.2d p. 105, 40 Cal.Rptr. 778.)   Of the two opposites involved there the sex offenses as a group are more culpable than the offense of burglary, and, as such, are subject to the greater punishment because the maximum sentence that can be imposed for thee offenses is greater than that for the single offense of burglary.

 The Hicks the maximum sentence for the three sex offense, which were determined to be separate and distinct, was held to be greater than that for the burglary.   As opposed to the maximum of life imprisonment for burglary the three sex offenses were there held to amount to a life term (for violation of § 286) plus 30 years' imprisonment (for two counts of violating § 288a).   Similarly, in the instant case petitioner was subject to punishment for the sex offenses which could amount to two life terms (for two counts of violating § 261, subd. (4)), plus 15 years imprisonment (for violating §  288a).   Since sentences were imposed, although concurrently, for each of these sex offenses we conclude that petitioner's punishment therefor was greater than the sentence for burglary.   Accordingly, we conclude that since the sentence for the burglary is less serious the sentence imposed for its violation must be set aside.

The writ of habeas corpus is granted for the limited purpose of setting aside the sentence for burglary.   The sentence imposed for burglary on August 19, 1955 in action number 157311 by the Superior Court of the County of Los Angeles is hereby set aside and the Adult Authority is directed to exclude from its consideration the purported sentence for burglary.   Petitioner is not entitled to release, however, since the remainder of the judgment is valid, and to the extent that petitioner seeks relief in addition to that granted herein the petition is denied.

FOOTNOTES

1.   Petitioner, in propria persona, filed a document with this court nominated “Petition for Judicial Review and/or Suspercedeas” [sic] which we have treated as a petition for writ of habeas corpus.

FN2. All statutory references hereinafter made, unless otherwise indicated, are to the Penal Code..  FN2. All statutory references hereinafter made, unless otherwise indicated, are to the Penal Code.

3.   Petitioner alleged also that evidence of a prior crime was improperly admitted by the trial court.   Habeas corpus is not an available remedy with respect to the admission or exclusion of evidence.  (In re Lindley, 29 Cal.2d 709, 723, 177 P.2d 918;  in re Winchester, 53 Cal.2d 528, 532, 2 Cal.Rptr. 296, 348 P.2d 904;  see In re Shipp, 62 Cal.2d 547, 550, 43 Cal.Rptr. 3, 399 P.2d 571.)   It is the general rule, moreover, that habeas corpus cannot serve as a substitute for an appeal and that in the absence of special circumstances constituting an excuse for failure to employ that remedy the writ will not lie where the claimed errors could have been, but were not, raised upon a timely appeal from a judgment of conviction.  (In re Dixon, 41 Cal.2d 756, 759, 264 P.2d 513;  see In re Winchester, supra, 53 Cal.2d pp. 531–532, 2 Cal.Rptr. 296, 348 P.2d 904.)   No such showing has been made in the instant case.   Moreover, petitioner's court-appointed counsel conceded in his answer to the return to the order to show cause that the merit of this contention could only be determined by a review of the transcript of the trial.   Such transcript has not been made available to us.

4.   The only record submitted to us in these proceedings consists of the records obtained by the Attorney General from the Record Office of San Quentin State Prison.   Included among these is a document entitled “Circumstances of Offense” which contains a narrative of the facts quoted verbatim from the probation officer's report.   No objection has been made or urged by petitioner that the facts are improperly or inadequately stated therein.

5.   This punishment was computed on the basis that the punishment for a violation of § 286 is life imprisonment, and the maximum punishment for each of the two violations of § 288a, is imprisonment for 15 years.

6.   The appellate court noted that the assault carried the least punishment (not more than 10 years).

MOLINARI, Justice.

SULLIVAN, P.J., and SIMS, J., concur. Hearing granted;  MOSK and SULLIVAN, not participating.

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