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Court of Appeal, Fifth District, California.

The PEOPLE, Plaintiff and Respondent, v. Scott O. STOMPRO, Defendant and Appellant.

Cr. 4282.

Decided: February 26, 1981

Quin Denvir, State Public Defender, under appointment by the Court of Appeal, Roy M. Dahlberg and A. Stanley Kubochi, Deputy State Public Defenders, Sacramento, for defendant and appellant. George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Arnold O. Overoye, Asst. Atty. Gen., Willard F. Jones and Wm. George Prahl, Deputy Attys. Gen., Sacramento, for plaintiff and respondent.


An information was filed charging appellant Scott O. Stompro (aka Douglas M. Yessak) with the following counts: (1) attempted robbery (Pen.Code, ss 664, 211);[FN1] and (2) robbery (Pen.Code, s 211).[FN2] The information also charged that appellant used a firearm in the commission of both offenses (Pen.Code, s 12022.5). Following a jury trial, appellant was found guilty of attempted robbery and, as to count II, the lesser included offense of auto theft (Veh.Code, s 10851). The jury further found that appellant had used a firearm in the commission of each offense. Appellant was committed to the custody of the Director of Corrections for a term of five and one-third years. On count I, the court imposed the middle term of two years and added a two-year enhancement for the use of the firearm. On count II, the court added consecutive terms of eight months for the auto theft violation and eight months for the use of a firearm during the commission of that offense. He appeals.

On December 14, 1978, Elisa Kraft was working as a clerk at the Maze Pharmacy in Merced. At the same time, Pharmacist Bob Pittman was working in the office and another employee, Evelyn Crist, was doing paperwork in the pharmacy. Sometime between 10 and 11 a. m. that morning, Mrs. Kraft was helping a customer named David Galan, who was waiting for a prescription to be filled at the rear counter in front of the pharmacy. While Galan was in the store, Mrs. Kraft saw another man come into the store; the man was later identified as being appellant. As appellant walked toward the rear counter, he pulled a scarf over his face. Appellant pulled out a gun and told Mrs. Kraft not to push any buttons as he got closer to the cashier's counter. Appellant then grabbed Galan by the arm and pushed him into the pharmacy area. He pointed the gun at Mrs. Kraft and waved her toward the pharmacy, but she remained behind the counter. Although he attempted to get Mrs. Kraft to leave the counter area, she told him, “I was going to faint, so he just left me alone in front.” Appellant commanded her to “open up the cash register”; she refused to do so by keeping her arms folded. Appellant tried to open the register himself, but was unsuccessful in his attempt. Accordingly, he went back into the pharmacy area. Appellant then asked Evelyn Crist for some morphine and percodan. As appellant had his back to Mrs. Kraft, she pushed a warning button. Pharmacist Pittman was alerted to the commotion up front, and Mrs. Kraft ran out of the front door of the drug store to a nearby restaurant known as the Lunch Box. On her way out of the pharmacy, she pulled a burglar alarm located near the door. Mrs. Kraft told people in the Lunch Box about the robbery and proceeded to directly telephone the police department.

Evelyn Crist testified that appellant initially left the pharmacy by the back door, although he apparently backtracked and eventually made an exit via the pharmacy's front door. He had been unsuccessful in obtaining either money or drugs.

While she was telephoning the police from the Lunch Box, Mrs. Kraft saw appellant outside the pharmacy. He had removed the scarf and was walking along 17th Street. Mrs. Kraft observed him walking towards the corner of L Street, where he turned and started walking toward 18th Street.

At about 11:15 a. m. on December 14, Sergeant David Hammond of the Merced County Sheriff's Department was unloading some packages from a United Parcel Service truck near the area of 17th and L Streets. He was working part-time as a delivery man for UPS at the time. As he was loading some packages onto a dolly for delivery, appellant walked behind Hammond and stated, “Hey, pardner.” Hammond turned around and viewed appellant, who was pointing a small handgun in his direction. Appellant then instructed Hammond, “Get in the truck; we're going for a ride.”

Hammond responded by telling appellant, “I don't have any money in the truck, I don't have any money, I don't carry any money.” As Hammond started to get in the truck, he noticed that appellant looked over his shoulder; Hammond then attempted to grab the gun, although he “couldn't hang onto it, ” Since appellant still had the gun, Hammond hit him, knocking him backwards. Hammond then fled across the alley to Minetti's Stationery Store.

Appellant got into the UPS delivery truck and started to drive away. Meanwhile, in response to an armed robbery report, Merced Police Officer David Schroeder stopped in the area of 17th and L Streets and was advised by bystanders that a suspect “had just jumped in the UPS truck that was parked in the alley.” Schroeder then observed the truck proceeding in an eastbound direction down the alleyway.[FN3] In response to this observation, Schroeder pulled his police car behind the truck with emergency lights flashing. Although the truck did not initially respond to the flashing lights, it was eventually stopped when a car blockaded it in the alleyway. Schroeder ran to the side of the truck with a shotgun and ordered the suspect out of the truck. He found appellant to be the driver of the UPS truck. Schroeder was then assisted by several back-up units and officers for purposes of detaining appellant.


Count II of the information charged appellant with having committed a robbery (Pen.Code, s 211). Appellant's trial counsel requested the court to instruct jurors that joyriding (Pen.Code, s 499b) was a lesser included offense for which appellant could be convicted. Although it denied this request, the court decided to admonish the jury that auto theft (Veh.Code, s 10851) was a lesser included offense of robbery. Appellant contends that it was erroneous to proffer the auto theft instruction, since auto theft is not statutorily an included offense of robbery and since the information did not notify appellant that he could be convicted of auto theft. Contradistinguished, respondent contends that appellant was sufficiently notified about the lesser included offense by virtue of evidence contained in the preliminary hearing transcript. For the following reasons, we conclude that appellant was effectively notified of the lesser included offense and that the variance between auto theft and robbery did not prejudice the defense at trial.

Before addressing the merits, we must resolve a preliminary issue. Respondent alludes to the fact that appellant lacks standing to allege error here because he did not object to the auto theft instruction. We disagree, since we may review any instruction not objected to below if substantial rights of the appellant are affected. (Pen.Code, ss 1259, 1469; People v. Arredondo (1975) 52 Cal.App.3d 973, 978, 125 Cal.Rptr. 419.) Since the jury convicted appellant of the lesser included offense, this is a case falling within the broad exception to the no-objection rule. We now turn to the merits of appellant's argument.

At the outset, it should be noted that the auto theft instruction was erroneously given under either the “elements of the crime” or the “accusatory pleading” test.

Under the “elements of the crime” test, a crime is always and necessarily a lesser included offense within another, greater crime when, as a matter of legal definition, the greater offense cannot have been committed without concomitantly having satisfied all the elements of the lesser one. (People v. Cannady (1972) 8 Cal.3d 379, 390, 105 Cal.Rptr. 129, 503 P.2d 585; People v. St. Martin (1970) 1 Cal.3d 524, 536, 83 Cal.Rptr. 166, 463 P.2d 390.) We are of the opinion that, under this standard, it is clearly established that auto theft is not a lesser offense necessarily included in robbery. (People v. Marshall (1957) 48 Cal.2d 394, 399, 309 P.2d 456; People v. Pater (1968) 267 Cal.App.2d 921, 925, 73 Cal.Rptr. 823, questioned on another point in People v. Malamut (1971) 16 Cal.App.3d 237, 242, 93 Cal.Rptr. 782.)

The second test of lesser included offense recognized in California is the “accusatory pleading” test. Under this analysis, a lesser offense is necessarily included if it is within the offense specifically charged in the information. (People v. Cannady, supra, 8 Cal.3d at p. 390, 105 Cal.Rptr. 129, 503 P.2d 585.) The facts alleged in the charging papers must sufficiently notify a defendant of any potential lesser included offenses he must be prepared to defend against. (People v. Marshall, supra, 48 Cal.2d at pp. 405-406, 309 P.2d 456.) Nonetheless, where the accusatory pleading is couched in terms of the statutory definition of the greater crime and no additional factual allegations are included therein, the courts necessarily must rely upon the statutory definition. (People v. Anderson (1975) 15 Cal.3d 806, 809, 126 Cal.Rptr. 235, 543 P.2d 603.) We find the limitation noted in Anderson makes the “accusatory pleading” test inapplicable to appellant's situation. The information merely alleged that appellant “did wilfully and unlawfully, and by means of force and fear take away personal property from the person, possession, and immediate presence of David Hammond, a person who was then and there performing his duties as operator of United Parcel Service.” Since the information did not even inform appellant that the personal property involved was an automobile, it was deficient in providing adequate notice. Moreover, the pleading was couched in the general terms of Penal Code section 211 (robbery). (Cf. In re Stanley E. (1978) 81 Cal.App.3d 415, 422, 146 Cal.Rptr. 232 (robbery allegation in accusatory pleading not sufficient to sustain conviction for extortion).)

Nevertheless, we believe that a third test of lesser included offenses, derived from People v. Collins (1960) 54 Cal.2d 57, 4 Cal.Rptr. 158, 351 P.2d 326 and expanded in People v. Cole (1979) 94 Cal.App.3d 854, 155 Cal.Rptr. 892 (criticized in People v. McDonald (1980) 111 Cal.App.3d 39, 44, fn. 4, 168 Cal.Rptr. 315), is applicable in the case at bar. (See In re Walter S. (1980) 105 Cal.App.3d 475, 480-481, 164 Cal.Rptr. 442; In re Beverly H. (1980) 103 Cal.App.3d 1, 5-7, 162 Cal.Rptr. 768; People v. Muis (1980) 102 Cal.App.3d 206, 211-213, 163 Cal.Rptr. 791; but see People v. McDonald, supra, 111 Cal.App.3d 39, 44-45, 168 Cal.Rptr. 315.) Collins involved a situation in which defendant was charged with forcible rape under section 261, subdivision 3 of the Penal Code. The victim was known to be only 15 by evidence presented as early as the preliminary hearing, and the defendant was found guilty of statutory rape under section 261, subdivision 1 of the Penal Code. Our Supreme Court affirmed the conviction, not as a lesser included offense, but on the basis that the variance between the two crimes in the context of that case was not substantial in terms of affecting the defense of the action or of misleading defense preparation of the case. (People v. Collins, supra, 54 Cal.2d at p. 60, 4 Cal.Rptr. 158, 351 P.2d 326.) In People v. Cole, supra, 94 Cal.App.3d 854, 155 Cal.Rptr. 892, a defendant was convicted of assault with a deadly weapon (Pen.Code, s 245, subd. (a)), and he disputed whether it was a lesser included offense of assault with intent to commit murder (s 217). Although finding that the offense met neither the “elements of the crime” nor the “accusatory pleading” test, the Cole court affirmed under the Collins rationale. As the recent case of In re Walter S., supra, 105 Cal.App.3d at page 481, 164 Cal.Rptr. 442 stated, “(Cole ) recognized that the proper touchstone was not whether the two crimes involved were contained within subdivisions of the same (penal) section in every case, but rather whether the two crimes were so like each other as to spring from the same legislative root, in which event the Collins rationale could properly be applied, and the propriety of a conviction of the lesser offense would depend upon whether the variance affected the defense to the action.”[FN4] The court in Cole placed heavy reliance upon the fact that defendant was early advised of the assault-with-deadly-weapon offense, since “the evidence at the preliminary hearing left no doubt that the assault with which defendant was charged involved the use of a deadly weapon.” (Cole, supra, 94 Cal.App.3d at p. 863, 155 Cal.Rptr. 892.) Finally, the court also noted that defense counsel made no objection to the instruction on the lesser offense of assault with a deadly weapon, a factor indicative of the nonsubstantial nature of the variance. (Id., at p. 864, 155 Cal.Rptr. 892; accord In re Walter S., supra, 105 Cal.App.3d at p. 481, 164 Cal.Rptr. 442.)

We are of the opinion that the test enunciated by Collins and its progeny is a viable alternative to the “elements of the crime” and the “accusatory pleading” formulations. This additional test recognizes that the key concern is to put the defendant on notice that he should be prepared to defend against evidence showing the elements of the lesser included crime. (See People v. Muis, supra, 102 Cal.App.3d 206, 212, 163 Cal.Rptr. 791; People v. Manson (1977) 71 Cal.App.3d 1, 47, 139 Cal.Rptr. 275, cert. den. 1978, 435 U.S. 953, 98 S.Ct. 1583, 55 L.Ed.2d 803; People v. Benjamin (1975) 52 Cal.App.3d 63, 71, 124 Cal.Rptr. 799, criticized on another point in People v. McGreen (1980) 107 Cal.App.3d 504, 510-511, 166 Cal.Rptr. 360.) In light of the growing authority for its acceptance (see In re Walter S., supra, 105 Cal.App.3d 475, 164 Cal.Rptr. 442; In re Beverly H., supra, 103 Cal.App.3d 1, 162 Cal.Rptr. 768; People v. Muis, supra, 102 Cal.App.3d 206, 163 Cal.Rptr. 791; People v. Cole, supra, 94 Cal.App.3d 854, 155 Cal.Rptr. 892), this third test should be prudently utilized where the factual situation shows adequate notice of the lesser included offense and no prejudice to the defendant.

As we have indicated earlier herein, the third test focuses on “whether the two crimes were so like each other as to spring from the same legislative root” (In re Walter S., supra, 105 Cal.App.3d at p. 481, 164 Cal.Rptr. 442), thereby precluding any material variance which could affect the defense to the action. Two factors are probative in determining whether the variance had any effect: (1) existence of evidence at the preliminary hearing which puts a defendant on notice of the potential charges against him, and (2) the absence of an objection from defendant to the judge's lesser included offense instruction. (See People v. Cole, supra, 94 Cal.App.3d at pp. 863-864, 155 Cal.Rptr. 892.) With these standards in mind, we examine the record to determine whether appellant was given adequate notice of defending against the offense of auto theft.

In our opinion, there is little question that auto theft derives from the same legislative root as the crime of robbery. Both penal provisions are concerned with proscribing the felonious taking of personal property, although the actus reus and mens rea for each crime has its own peculiarities. The crucial inquiry then becomes determining whether the evidence in the preliminary hearing transcript adequately warned appellant that he would have to defend against the charge of auto theft. An examination of the preliminary hearing record leaves no doubt that appellant was aware of the facts upon which an auto theft conviction could be based, and that the appellant's opportunity to prepare and defend against such charge was in no manner impaired by the failure to make a specific allegation in the information. Hammond testified at the preliminary examination that appellant told him, “Hey, partner, get in the truck. We are going for a ride.” Even though Hammond told him he had no money in either the truck or his wallet, appellant insisted that they “get in the truck” and “go for a ride.” Evidence also showed that appellant drove off with the UPS truck after the skirmish with Hammond. Merced Police Officer Mark Dossetti interviewed appellant in the holding cell after his arrest. According to Dossetti, appellant “just stated that after he left the store that (the UPS truck) was the only vehicle available he saw, the first one he came to, and that he had gotten in it and drove away.” Appellant also conceded to Dossetti that “he did drive the truck down the alley where the Police caught him.” We are of the opinion this evidence clearly shows appellant had notice that he could be convicted of the lesser included offense of auto theft.[FN5]

Finally, the record before this court also shows that counsel for appellant did not object to the judge's instruction on auto theft. Other appellate courts have indicated that this either demonstrates a waiver or bespeaks the nonsubstantial nature of the variance from the specifically charged offense. (See In re Walter S., supra, 105 Cal.App.3d at p. 481, 164 Cal.Rptr. 442; In re Beverly H., supra, 103 Cal.App.3d at p. 7, 162 Cal.Rptr. 768; People v. Cole, supra, 94 Cal.App.3d at p. 864, 155 Cal.Rptr. 892; People v. Ramos (1972) 25 Cal.App.3d 529, 539-540, 101 Cal.Rptr. 230.)

We therefore find that under the circumstances of the case before us, appellant was adequately provided with an opportunity to prepare and defend against the lesser included charge of auto theft inasmuch as it was related to the robbery charge and notice was provided by evidence adduced at the preliminary hearing. The trial court did not err in instructing the jury that Vehicle Code section 10851 was a lesser included offense to Penal Code section 211.


Assuming the propriety of the auto theft instruction, appellant then contends that reversible error was committed by the trial court in refusing to instruct the jury that joyriding was a lesser included offense within count II of the information. We are not persuaded.

Liminally, it should be observed that appellant finds no solace in the “elements of the crime” test. It is clearly established that joyriding is not a lesser included offense of auto theft. (People v. Thomas (1962) 58 Cal.2d 121, 128-130, 23 Cal.Rptr. 161, 373 P.2d 97, app. dism. and cert. den. 1963, 371 U.S. 231, 83 S.Ct. 327, 9 L.Ed.2d 495; People v. Briggs (1971) 19 Cal.App.3d 1034, 1036, 97 Cal.Rptr. 372.) Accordingly, appellant must demonstrate that there was a factual basis in the case for giving the instruction on joyriding.

In this regard, the trial court must instruct the jury on lesser included offenses when the evidence raises a question as to whether all of the elements of the charged offense were present. (People v. Sedeno (1974) 10 Cal.3d 703, 719, 112 Cal.Rptr. 1, 518 P.2d 913 disapproved on another point in People v. Flannel (1979) 25 Cal.3d 668, 684, fn. 12, 160 Cal.Rptr. 84, 603 P.2d 1; People v. Hood (1969) 1 Cal.3d 444, 449, 82 Cal.Rptr. 618, 462 P.2d 370.) Nevertheless, an instruction is not required where there is no evidence from which the jury could conclude that the offense was less than that charged. (See People v. Noah (1971) 5 Cal.3d 469, 479, 96 Cal.Rptr. 441, 487 P.2d 1009.) An examination of the record with these relevant legal principles in mind reveals that it was proper to refuse to proffer the joyriding instruction.

Auto theft (Veh.Code, s 10851) bans the taking of a vehicle without the owner's consent in situations where the culpable party intends to permanently or temporarily deprive the owner of title or possession to the vehicle. In contrast, joyriding (Pen.Code, s 499b) has no specific intent requirement, since it involves the taking of a vehicle without the owner's consent “for the purpose of temporarily using or operating the same, ” (People v. Thomas, supra, 58 Cal.2d at pp. 126-129, 23 Cal.Rptr. 161, 373 P.2d 97; People v. Orona (1946) 72 Cal.App.2d 478, 484, 164 P.2d 769.) The evidence presented at trial showed that appellant could only be found guilty of the greater offense of auto theft. After telling Hammond to “Get in the truck. We are going for a ride,” appellant engaged in a minor skirmish with Hammond. Although Hammnd was able to make an escape, appellant got into the UPS delivery truck and started to drive away. Moreover, Officer Schroeder testified that appellant did not immediately stop the truck when he flashed his police lights and was forced to stop when he was blockaded by another car in the alleyway. The totality of proof at trial was only susceptible of the interpretation that appellant had an intent to either permanently or temporarily deprive Hammond of his property. Nothing in his conduct suggests that he merely took the truck for joyriding purposes. (Cf. People v. Ragone (1948) 84 Cal.App.2d 476, 481, 191 P.2d 126 (“The circumstances of the taking of the automobile permit of no other inference than that of an intent to deprive its owner of his possession, at least temporarily. If the jury found, as it did, that appellants took the automobile, their intent to deprive the owner of his possession is so clear as to leave no room, under the facts, for an instruction on Penal Code, section 499(b) (sic ).”).)

Since the only evidence at trial demonstrated that appellant intended to permanently or temporarily deprive Hammond of his truck, we find it was not erroneous to refuse the lesser included offense instruction desired by appellant. (Cf. People v. West (1980) 107 Cal.App.3d 987, 992-993, 165 Cal.Rptr. 24.)


The jury verdicts reflect that appellant was convicted of an attempted robbery of the Maze Pharmacy and theft of the UPS truck from Hammond. At the sentencing hearing, appellant contended that the two offenses were indivisible and therefore subject to the proscription against multiple punishment contained in Penal Code section 654. The sentencing judge disagreed, ruling that the acts were “separate and distinct crimes and they can and should be punishable separately.”[FN6] Appellant now challenges the correctness of this factual determination on appeal. We are of the opinion that substantial evidence supported the lower court's finding of divisibility.

Section 654 of the Penal Code does not preclude multiple convictions but only multiple punishments for a single act or indivisible course of conduct. (See People v. Miller (1977) 18 Cal.3d 873, 885, 135 Cal.Rptr. 654.) The divisibility of a course of conduct depends upon the intent and objective of the actor, and if all the offenses are incident to one objective, the defendant may be punished for only one of them. (People v. Bauer (1969) 1 Cal.3d 368, 376, 82 Cal.Rptr. 357, 461 P.2d 637, cert. den. 1970, 400 U.S. 927, 91 S.Ct. 190, 27 L.Ed.2d 187.) The intent-and-objective test has a number of refinements, including the principle that a defendant who entertained but a single principal objective during an indivisible course of conduct may nevertheless be punished for multiple convictions resulting from acts of violence against different victims. (People v. Perez (1979) 23 Cal.3d 545, 551-552, fn. 4, 153 Cal.Rptr. 40, 591 P.2d 63.) However, the question of whether the acts of a defendant constitute an indivisible course of conduct is primarily a factual determination made by the trial court on the basis of its findings concerning the defendant's intent and objective in committing the acts. (People v. Laster (1971) 18 Cal.App.3d 381, 394, 96 Cal.Rptr. 108 and cases cited therein.) As astutely noted by several courts, “It is the function of the trial court, after seeing and hearing the witnesses, to determine this factual matter which controls the number of sentences to be imposed. A reviewing court is not the place to try facts.” (See People v. Holly (1976) 62 Cal.App.3d 797, 804, 133 Cal.Rptr. 331; People v. Scott (1966) 247 Cal.App.2d 371, 376, 55 Cal.Rptr. 525.) Furthermore, such a determination will not be reversed on appeal unless unsupported by the evidence presented at trial. (People v. Murphy (1980) 111 Cal.App.3d 207, 213, 168 Cal.Rptr. 423; People v. Lee (1980) 110 Cal.App.3d 774, 786, 168 Cal.Rptr. 231; Holly, supra, 62 Cal.App.3d at p. 804, 133 Cal.Rptr. 331; cf. People v. Perez, supra, 23 Cal.3d at p. 552, fn. 5, 153 Cal.Rptr. 40, 591 P.2d 63 (question of law presented where there are conceded facts).)

A review of the record shows that there is substantial evidence bolstering the sentencing judge's finding of divisibility. We are of the opinion that there are two principal reasons supporting the affirmance of the determination below.

First, there was evidence from which the sentencing judge could properly decide that appellant entertained multiple criminal objectives which were not incidental to the robbery of the Maze Pharmacy. Mrs. Kraft testified that she saw appellant walking on 17th Street (as opposed to fleeing) after the attempted robbery. Soon thereafter, appellant walked up to Hammond and told him to get in the truck for purposes of “going for a ride.” From the foregoing progression of evidence, the sentencing judge could conclude that the robbery was complete and that appellant was engaging in a separate act in taking the UPS truck. Nonetheless, appellant contends that he was still in the escape stage of the robbery, pointing to his statement in a probation report about “(planning) to use the truck for (a) quick getaway.” Since the probation report was considered by the sentencing judge, it is obvious to us that the lower court refused to credit appellant's self-serving statement. Thus, there was credible evidence at trial suggesting that the robbery and auto theft were distinct acts. (Cf., People v. See (1980) 109 Cal.App.3d 76, 81, 167 Cal.Rptr. 128.)

Second, even if an indivisible course of conduct was involved, appellant could be punished under the multiple-victim exception to the double punishment rule. Although conceding that pharmacy personnel and Hammond were separate victims, appellant maintains that this exception does not apply because of our Supreme Court's ruling in People v. Bauer, supra, 1 Cal.3d 368, 82 Cal.Rptr. 357, 461 P.2d 637. A close examination of Bauer shows that it is inapposite authority for staying execution of the sentence on the auto theft count in the present case.

Bauer involved the robbery of three elderly ladies (who resided together in a house) by defendant and another man. After ransacking the house and carrying the loot to the garage, defendant and his accomplice drove away in the car of one of the victims. (People v. Bauer, supra, 1 Cal.3d at p. 372, 82 Cal.Rptr. 357, 461 P.2d 637.) Despite the multiple-victim exception to Penal Code section 654, our Supreme Court stated that only single punishment is permissible where the offenses arising out of the same transactions are crimes against property interests of several persons, rather than crimes of violence. Applied to the case before it, the court ruled, “(P) The crime of automobile theft is not a crime of violence but is a violation of property interests, and we are satisfied that the proscription against double punishment precludes punishment for this offense in the circumstances of the present case.” (Id., at p. 378, 82 Cal.Rptr. 357, 461 P.2d 637, emphasis added.)

Bauer is distinguishable from the present case on two grounds. Initially, unlike the elderly victim who owned the car in Bauer, Sergeant Hammond was not a target individual in the attempted robbery of the Maze Pharmacy. This factual distinction is important, since the court in Bauer recognized that its ruling dealt with a situation where there was no increased physical threat to other victims. Second, the passive nature of the automobile theft in Bauer does not resemble the theft committed by appellant in this case. Although the Bauer “property interests” analysis has been properly applied in other situations (see, e. g., People v. Moore (1970) 13 Cal.App.3d 424, 428, 439, 91 Cal.Rptr. 538, cert. den. sub nom., Blackburn v. California (1971) 404 U.S. 880, 92 S.Ct. 214, 30 L.Ed.2d 161), it has not been followed where the property crime was accompanied by physical violence. This type of analysis was recognized in People v. Miller (1977) 18 Cal.3d 873, 886, 135 Cal.Rptr. 654, 558 P.2d 552, where our high court was confronted with a defendant who was punished for both robbery and burglary convictions. The Miller court determined that:

“Although a burglary does not necessarily involve an act of violence against any person (Penal Code) sections 459 and 461 define the instant crime as a burglary in the course of which the defendant intends to and does inflict great bodily injury on an occupant of the premises burglarized. Thus the burglary alleged, proved and found to be true is a crime of violence committed against (the victim). Defendant being convicted of a second crime of violence against a second victim, section 654 does not preclude the imposition of punishment for both the robbery and the burglary convictions.” (Fn. omitted.)

As in Miller, appellant was convicted of an automobile theft in which trial evidence undisputably showed he pointed a firearm at and engaged in a physical skirmish with Sergeant Hammond. Since the auto theft in the present case was not a passive “property interest” violation, it is inappropriate to apply reasoning from the Bauer case. Moreover, since the policy behind section 654 is to insure that a defendant's punishment will be commensurate with his culpability (People v. Perez, supra, 23 Cal.3d at pp. 550-551, 153 Cal.Rptr. 40, 591 P.2d 63), there is no reason to protect appellant under the multiple-punishment safeguard, since his conduct threatened separate pharmacy personnel and Sergeant Hammond.

In light of the substantial evidence supporting the trial court's finding of divisibility and the multiple victims involved herein, we find there was no error in imposing the consecutive sentence for auto theft under double punishment principles.


On count II (the auto theft conviction), the court added an eight-month enhancement for the firearm-use allegation pursuant to Penal Code section 12022.5. Appellant contends that it was improper to levy this enhancement since auto theft, committed while using a firearm, is not enumerated in the specific list of felonies in Penal Code section 667.5, subdivision (c). We believe this argument has been resolved in appellant's favor in the case of People v. Harvey (1979) 25 Cal.3d 754, 759-761, 159 Cal.Rptr. 696, 602 P.2d 396. Moreover, recently amended Penal Code section 1170.1, subdivision (a), has properly been held to not apply retroactively. (See People v. Flores (1981) 115 Cal.App.3d 67, 171 Cal.Rptr. 365 People v. Childs (1980) 112 Cal.App.3d 374, 388-390, 169 Cal.Rptr. 183; People v. Harvey (1980) 112 Cal.App.3d 132, 138-139, 169 Cal.Rptr. 153 (1st Dist.); People v. Vizcarra (1980) 110 Cal.App.3d 858, 865-866, 168 Cal.Rptr. 257; People v. Fulton (1980) 109 Cal.App.3d 777, 783, 167 Cal.Rptr. 436 (2d Dist.); People v. Savala (1981) Cal.App.3d, 171 Cal.Rptr. 882; People v. Cuevas (1980) 111 Cal.App.3d 189, 197-200, 168 Cal.Rptr. 519; People v. Matthews (1980) 108 Cal.App.3d 793, 796, 167 Cal.Rptr. 8 (4th Dist.).)

Respondent contends[FN7] that the enactment of Assembly Bill No. 2123 (signed by the Governor on May 29, 1980) is binding on this court. Through this urgency bill, respondent contends that the Legislature clearly stated to the courts of California that the Supreme Court had incorrectly decided the “close and subtle” question of legislative intent involved in Harvey, by indicating that “This act is intended to clarify and reemphasize what has been the legislative intent since July 1, 1977.” (See Stats.1980, ch. 132, s 1, subd. (c).) The real question in this case, respondent contends, is whether the Legislature's declaration of intent and its interpretation of the law controls over the intervening California Supreme Court's construction of that same law, where it is clear that the court misconstrued legislative intent. Respondent then argues that a determination that Harvey altered the law, and applies to appellant would be tantamount to allowing the judicial branch to ride roughshod over the Legislature's own conclusion about its intent in passing the statute. We disagree.

The Legislature sometimes passes acts stating what shall be the meaning or proper interpretation of a prior law. These declaratory statutes may be invalid if they are treated prospectively on existing causes of action to the impairment of vested rights. They have been considered by some courts as an exercise of judicial power, in violation of the doctrine of separation of powers. But, where prospective, they are generally upheld. (See Matter of Coburn (1913) 165 Cal. 202, 210, 131 P. 352; 5 Witkin, Summary of Cal.Law (8th ed. 1974) Constitutional Law, s 79, p. 3316.)

“ ‘An ex post facto law is one which, operating retrospectively and on penal or criminal matters only, renders a previously innocent act criminal, aggravates, or increases the punishment for, a crime, alters the rules of evidence, penalizes an innocent act while assuming to regulate civil rights and remedies, deprives an accused of some protection or defense previously available, or alters his situation to his disadvantage.’ ” (In re Bray (1979) 97 Cal.App.3d 506, 511-512, 158 Cal.Rptr. 745; Ellis v. Dept. of Motor Vehicles (1942) 51 Cal.App.2d 753, 758, 125 P.2d 521, emphasis added.)

We recognize that there is a split in authority as to whether such a legislative act constitutes new law. While the court in Matter of Coburn, supra, 165 Cal. at pages 209-210, 131 P. 352 construed such an act as a directive for future courts, the court in Stockton Sav. & Loan Bank v. Massanet (1941) 18 Cal.2d 200, 114 P.2d 592 held a legislative attempt at removing ambiguity from a predecessor statute did not give a retroactive effect to a statute but merely supplied “an indication of the legislative intent which may be considered together with other factors in arriving at the true intent existing at the time the legislation was enacted.” (Id., at p. 204, 114 P.2d 592.)

We are of the opinion that the ultimate interpretation of a statute is an exercise of judicial power. (Bodinson Mfg. Co. v. California E. Com. (1941) 17 Cal.2d 321, 326, 109 P.2d 935; see also Carmona v. Division of Industrial Safety (1975) 13 Cal.3d 303, 310, 118 Cal.Rptr. 473, 530 P.2d 161.) Accordingly, we conclude that the Harvey decision must be considered the correct interpretation of section 1170.1, subdivision (a), prior to May 29, 1980.

Section 3 of the Penal Code provides that no part of said code “is retroactive, unless expressly so declared.” Thus, as a matter of statutory construction, an amendment to a penal statute which increases punishment cannot be applied retroactively in the absence of an express legislative declaration. (See People v. Teron (1979) 23 Cal.3d 103, 116-119, 151 Cal.Rptr. 633, 588 P.2d 773; In re Thomson (1980) 104 Cal.App.3d 950, 953-954, 164 Cal.Rptr. 99; In re Harper (1979) 96 Cal.App.3d 138, 140-141, 157 Cal.Rptr. 759.)

Although section 1, subdivision (c) of Assembly Bill No. 2123 states that the act is “intended to clarify and reemphasize what has been the legislative intent since July 1, 1977,” section 4 merely states that the bill is to take “immediate effect.” We therefore are of the opinion that if the Legislature intended the amendment to have retroactive effect, it should have expressly so declared. Accordingly, we find that the Harvey decision must apply to offenses committed prior to May 29, 1980.[FN8]

We note that a contrary result was reached by the Third District in In re Ferrie (1981), 171 Cal.Rptr. 496. Ferrie reasoned that there was no ex post facto punishment in applying the present clarifying legislation. We disagree with this viewpoint. In our opinion, the judiciary is the best forum for a review of legislative intent. A determination such as Harvey binds us under the time-honored principle of stare decisis. As noted by the dissenting justice in Ferrie,

“It is also important to note the obvious that law is developmental and evolutionary. Each branch of government, as well as extra-governmental sources, often contribute. The judicial role is often needed to clarify both substantive and adjective law, and that function should be immune from unwarranted and material infringement. Harvey was a step in that process and was effective. Finally, to say, ‘This is what we meant’ does not perforce create retroactivity. The Legislature knows how to say it and it did not say it in the declaratory statute. Penal Code section 667.5, subdivision (c), as interpreted by Harvey was the law applicable at the critical time herein ” (In re Ferrie, supra (dis. opn. of Cecchettini, J.).)

Appellant's sentence is modified by reducing it from five years and four months to four years and eight months. The Superior Court of Merced County is directed to prepare a new abstract of judgment incorporating the modifications hereinabove stated and forward a copy of the new abstract of judgment to the California Department of Corrections. The California Department of Corrections is directed to forthwith give full effect to the modifications hereinabove stated.

As modified, the judgment is affirmed.


1.  Specifically, count I alleged that Stompro “did wilfully and unlawfully and by means of force and fear, attempt to take personal property from the person, possession, and immediate presence of Maze Pharmacy and Elisa Kraft.”

2.  In particular, count II alleged that Stompro engaged in the commission of “Robbery in violation of Section 211 of the California Penal Code, being a different offense from but connected in its commission with the charge set forth in Count I hereof, in that (appellant) , on or about the 14th day of December, 1978, in (Merced County), and prior to the filing of this Information, did wilfully and unlawfully, and by means of force and fear take away personal property from the person, possession, and immediate presence of David Hammond, a person who was then and there performing his duties as operator of United Parcel Service.”

3.  The hearsay statements of the police dispatcher and bystander were admitted “to show why the officer did particular things and not as to the truth as to what was said.” The jury was instructed to regard the evidence in this light.

4.  Cole departed from post-Collins cases which held that Collins could not be applied where defendants were convicted of a lesser included offense involving a statute other than the one which had been charged in the information. (See People v. Tatem (1976) 62 Cal.App.3d 655, 658, 133 Cal.Rptr. 265; People v. Puckett (1975) 44 Cal.App.3d 607, 611-612, 118 Cal.Rptr. 884; People v. Escarcega (1974) 43 Cal.App.3d 391, 396, fn. 1, 117 Cal.Rptr. 595; People v. Leech (1965) 232 Cal.App.2d 397, 399-400, 42 Cal.Rptr. 745.) Moreover, the Cole court disputed the conclusion reached in Leech that evidence produced at the preliminary hearing could never be used to expand the information. (People v. Cole, supra, 94 Cal.App.3d at p. 863, 155 Cal.Rptr. 892.)

5.  The recent case of People v. Valencia (1980) 112 Cal.App.3d 939, 169 Cal.Rptr. 739, does not alter our conclusion. Unlike the present case, Valehcia involved a “special circumstance” allegation to a murder charge. The court rejected the People's reliance on the “mere variance” test by stating:“Where we are concerned with an enhancement of penalty as severe as is herein involved, we conclude that a defendant is entitled to rely on the particular special circumstance alleged against him. In fact, in the case before us, the very fact that the preliminary examination rebutted the charge as made may well have affected the strategy of the defense the defendant, legitimately, believing that he could rely on the People's own case to sustain his defense to the allegation.” (People v. Valencia, supra, 112 Cal.App.3d at p. 944, 169 Cal.Rptr. 739.)Since the matter before us does not concern a special circumstance allegation and has a preliminary examination transcript bolstering the lesser included eventually found, Valencia does not aid appellant's argument.

6.  In particular, the complete ruling of the trial judge read as follows:“All right. Section 654 of the Penal Code would prohibit several (sic ) punishment where the crimes are part of one indivisible act.“In this case, as I recall, the facts presented during the course of the trial, the Defendant entered a drug store with a mask, or something used for hiding his face from view, was armed, that he then attempted to secure some drugs from one of the clerks in the store, that the manager or owner of the store came out of his office and about that time then the Defendant left.“He removed part of his clothing and the devices that were used to hide his identity, traveled probably a block or more around a corner, at which time he came upon a UPS truck. He then pointed his gun at the driver of that truck, ordered the driver to give him a ride, and on the refusal of the driver, then took the truck himself and left that alleyway and was apprehended at the far end of the block.“It seems to me these are not indivisible, that they are separate and distinct crimes and they can and should be punishable separately.”

7.  Letter brief of December 12, 1980.

8.  Furthermore, we also agree with an observation made by the court in People v. Cuevas, supra, 111 Cal.App.3d 189, 168 Cal.Rptr. 519. There, it was succinctly stated: “The amended statute defines the law for the future, but it cannot define the law for the past.” (Id., at p. 200, 168 Cal.Rptr. 519.) Since the constituency of the Legislature changes, it would be anomalous to allow the 1980 body to interpret a provision passed by a past Legislature composed of different members. The observation in Cuevas cogently recognizes the dynamic nature of our governmental system.

ZENOVICH, Associate Justice.