Skip to main content


Reset A A Font size: Print

District Court of Appeal, Third District, California.

Elmer Gordon KELLETT, Petitioner, v. The SUPERIOR COURT of the State of California, IN AND FOR the COUNTY OF SACRAMENTO, Respondent.

Civ. 11138.

Decided: July 01, 1965

Kenneth M. Wells, Public Defender, Sacramento, for petitioner. Thomas C. Lynch, Atty. Gen., by Doris H. Maier, Asst. Atty. Gen., Edsel W. Haws, Deputy Atty. Gen., Sacramento, for respondent.

Petitioner seeks a writ of prohibition to prevent the respondent court from proceeding to try him for a violation of Penal Code, section 12021, a felony (possession of a pistol capable of being concealed upon the person by one previously convicted of a felony).

Petitioner was observed standing outside a bar in Sacramento County with a loaded pistol in his hand. A police officer, responding to a call, took the pistol from him. Petitioner had previously been convicted of the crime of burglary (a felony) in the State of Indiana.

On October 15, 1964, a complaint was filed in the Sacramento Municipal Court charging petitioner with a violation of section 417 of the Penal Code,1 committed on October 15, 1964. Petitioner entered a plea of guilty to said charge on January 20, 1965, and was sentenced to serve a term in the county jail.

On October 19, 1964, a complaint was filed in the Sacramento Municipal Court, charging petitioner with a violation of section 12021 of the Penal Code,2 committed on October 15, 1964. A preliminary examination was held in said court on November 10, 1964, and petitioner was held to answer in the superior court. Thereafter an information was filed in the superior court on November 17, 1964, charging a felony violation and by this petition petitioner seeks to restrain the superior court from further proceeding in this case. Petitioner was convicted and sentenced for his violation of section 417 of the Penal Code after having been held to answer for his violation of section 12021 of the Penal Code.

Petitioner contends the prosecutions for violation of sections 417 and 12021 of the Penal Code arose out of the single arrest and observations of the arresting police officer of the facts hereinbefore set forth; that there was one separate and distinct act, that of brandishing the pistol, and that this act for which he was convicted and sentenced is basic and inseparable to a prosecution under section 12021 of the Penal Code.

Respondent contends the conduct of petitioner which resulted in the charges of a violation of sections 417 and 12021 of the Penal Code constituted divisible transactions; that the evidence to be presented in the action charging a violation of section 12021 of the Penal Code will show that petitioner possessed the .22 caliber automatic at a time prior to its use in a threatening manner, in violation of section 417 of the Penal Code; that said evidence will show that the offense under section 12021 of the Penal Code was completed prior to the time petitioner committed the acts denounced by section 417 of the Penal Code; that said evidence consists of the admissions of the petitioner showing that he was in possession of said firearm prior to exhibiting it in a threatening manner; that said admission to the effect that petitioner was suddenly confronted by a man running toward him with a gun which prompted him to draw his firearm in self-defense establishes that at the time of acquiring unlawful possession of the firearm it was not petitioner's objective to commit the acts denounced by section 417 of the Penal Code on October 15, 1964; and that said admissions are contained in the police report which is attached to the petition.

Respondent's contentions as to the evidence the state will present at the trial for violation of section 12021 of the Penal Code are not supported by the record. The transcript of the preliminary examination contains nothing but the testimony of the officer as hereinbefore related, to wit, the holding of the pistol in hand on the public street. This is the act for which petitioner was held to answer for the section 12021 violation, and upon which the information was filed against him, and for which act he had previously been convicted and punished, as a violation of said section 417. If the evidence to be introduced at the trial is, as alleged by respondent, to be proof of other or different acts, then under the circumstances of the case at bench we believe it was incumbent upon respondent to produce such evidence at the preliminary examination.

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. * * *’ Whether a transaction is divisible and punishable under more than one statute must be resolved on the facts of each particular case. (People v. Camodeca, 52 Cal.2d 142, 338 P.2d 903; People v. Brown, 49 Cal.2d 577, 320 P.2d 5.)

The pertinent testimony at the preliminary examination of petitioner upon the complaint charging him with the crime of violation of section 12021 of the Penal Code is as follows: Question by District Attorney: ‘Did you receive a call to go there [to 7th and Q Streets]?’ The witness, a police officer, answered he did and that he responded to the call, and stated: ‘So, we were first to arrive because we were nearer and I observed the defendant [petitioner] standing on the corner with a gun in his hand.’ Question by District Attorney: ‘Can you tell us the circumstances in which you took it away from [petitioner] Mr. Kellett?’ Answer by officer: ‘Well, when I arrived his attention was directed away from me toward another man walking away from him, and I walked up to him and told him to drop the gun. He looked over his shoulder at me and I had him covered with my gun and he was hesitant about dropping the gun. So then I told him to hold it then, realizing then that it might be loaded and if he dropped it, it was on concrete. So, I walked up to him and took it out of his hand.’ Question [on cross-examination]: ‘Did Mr. Kellett have any other weapons or did he have any additional ammunition on his person?’ Answer: ‘No.’ Question: ‘And was he placed under arrest at that time?’ Answer: ‘He was.’ Question: ‘And on what charge was that?’ Answer: ‘Carrying a gun.’

Punishment for two offenses arising from the same act is prohibited by the constitutional and common-law rule against multiple punishment for necessarily included offenses. (People v. Kehoe, 33 Cal.2d 711, 713, 204 P.2d 321; Pen.Code, § 654.)

‘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 42; 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. Penal Law, Consol.Laws c. 40, § 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.' (Neal v. State of California, 55 Cal.2d 11, 18–19, 9 Cal.Rptr. 607, 611, 357 P.2d 839, 843.

“The test in this state of a necessarily included offense is simply that where an offense cannot be committed without necessarily committing another offense, the latter is a necessarily included offense.” (1 Witkin, Cal.Crimes, Defenses, § 208, p. 200, quoting from People v. Greer, 30 Cal.2d 589, 596, 184 P.2d 512.)

In the case at bench the defendant, an ex convict, brandished a gun and was charged, convicted and punished for this offense, a violation of section 417 of the Penal Code. This offense could not be accomplished without defendant committing the felony for which he was later charged. He had to possess the gun before he could commit the act of brandishing. The felony offense was included in the misdemeanor offense.

‘It is clear that where an offense cannot be accomplished without necessarily committing another offense, the latter is a necessarily included offense. If, in the commission of acts denounced by one statute, the offender must always violate another, the one offense is necessarily included in the other.’ (People v. Krupa, 64 Cal.App.2d 592, 598, 149 P.2d 416, 420.)

The courts have been troubled with problems arising from double jeopardy, multiple prosecutions, and multiple punishment. The decisions often are illogical and irreconcilable. The Legislature in this state met the problem squarely when section 654 of the Penal Code was enacted. It provided that although a single act may be made punishable under different provisions of the Penal Code, if a defendant is prosecuted and punished under one code provision for committing that act, the conviction and punishment bars a prosecution for the same act under another code provision.

As stated in a comment in 65 Yale Law Journal (1956) 339 (at pages 340–341): ‘The restriction on multiple prosecutions, on the other hand, is designed to implement several procedural objectives. One of these is protection of both the defendant and the public from the expense of prolonged and unnecessary litigation due to the retrial of previously adjudicated issues, or to the use of several proceedings to try questions of fact and law that logically make up a single case. Another objective is to safeguard the accused from the excessive harassment and stigma of repeated criminal prosecutions. Furthermore, once acquitted or convicted of crime for his conduct in a particular transaction, a defendant should be able to consider the matter closed and plan his life ahead without the threat of subsequent prosecution and possible imprisonment for the same conduct. These three procedural objectives—economy of time and money, avoidance of unnecessary harassment and stigma, and psychological security—are expressed in the maxim that ‘no one shall be twice vexed for the same cause.’'

‘* * * Section 654's preclusion of multiple prosecution is separate and distinct from its preclusion of multiple punishment. The rule against multiple prosecutions is a procedural safeguard against harassment and is not necessarily related to the punishment to be imposed; double prosecution may be precluded even when double punishment is permissible.’ (Neal v. State of California, supra, 55 Cal.2d 11, 21, 9 Cal.Rptr. 607, 612, 357 P.2d 839, 844.)

Both the state and the accused are concerned with the procedural protection against multiple prosecutions. Each should be protected against unnecessary trials. Where the state may at one trial secure punishment for every substantive offense arising from a single criminal act (see People v. Bundte, 87 Cal.App.2d 735, 744, 197 P.2d 823; Steinberg v. United States, 2 Cir., 14 F.2d 564, 568; Phillips v. United States, 5 Cir., 264 F. 657; State v. Toelkes, 139 Kan. 682, 33 P.2d 317; State v. Galbraith, 150 Wash. 664, 274 P. 797; People v. Krupa, supra, 64 Cal.App.2d 592, 594, 149 P.2d 416), and where, as here, the state has elected to prosecute and punish for a violation of the act, the state should be prohibited from and the law forbids a second prosecution therefor.

The prosecution, conviction, and punishment of petitioner under section 417 of the Penal Code bar his prosecution for the same act under section 12021 of said code.

The order to show cause heretofore issued is discharged. Let a peremptory writ of prohibition issue restraining the superior court from proceeding on the information charging petitioner with a violation of Penal Code, section 12021.


1.  Penal Code, section 417 provides: ‘Every person who, except in self-defense, in the presence of any other person, draws or exhibits any firearm, whether loaded or unloaded, or any other deadly weapon whatsoever, in a rude, angry or threatening manner, or who in any manner, unlawfully uses the same in any fight or quarrel is guilty of a misdemeanor.’

2.  Penal Code, section 12021 provides: ‘Any person who is not a citizen of the United States and any person who has been convicted of a felony under the laws of the United States, of the State of California, or any other state, government, or country, or who is addicted to the use of any narcotic drug, who owns or has in his possession or under his custody or control any pistol, revolver, or other firearm capable of being concealed upon the person is guilty of a public offense, and shall be punishable by imprisonment in the state prison not exceeding five years, or in a county jail not exceeding one year or by a fine not exceeding five hundred dollars ($500), or by both.’

REGAN, Justice.

PIERCE, P. J., and FRIEDMAN, J., concur.

Was this helpful?

Thank you. Your response has been sent.

Copied to clipboard