PEOPLE v. SHANKS (1982)

Archie Wayne Shanks, real party in interest (defendant), is charged by information in the superior court with murder (Pen.Code, § 187) with three allegations of special circumstances:  the murder was of the first degree and was committed in the commission of (1) a robbery (Pen.Code, § 190.2, subd. (a)(17)(i)) and (2) a burglary (Pen.Code, § 190.2, subd. (a)(17)(vii)) and (3) defendant has a prior murder conviction (Pen.Code, § 190.2, subd. (a)(2)).   The charged robbery and burglary special circumstances arise from a single incident in which defendant allegedly entered a tavern with intent to commit robbery, and committed a robbery during which he shot and killed the victim.

In a pretrial hearing, the superior court granted defendant's motion to strike the special-circumstance allegation that the murder was committed in the course of a burglary.   The defendant had argued that a finding of two special circumstances “which comprise a single act or course of conduct is barred by Penal Code section 654.”   The trial court agreed with defendant, ruling that the charged burglary and robbery special circumstances fell “within the purview of [section] 654 of the Penal Code, ․”

The People have petitioned for relief from the trial court's ruling by way of mandate.   We have issued an alternative writ and will now order a peremptory writ to issue.

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 its punishment-limiting function, Penal Code section 654 operates to prohibit multiple punishment, not multiple convictions.  (People v. MacFarland (1962) 58 Cal.3d 748, 761–762, 26 Cal.Rptr. 473, 376 P.2d 449;  People v. Stender (1975) 47 Cal.App.3d 413, 425, 121 Cal.Rptr. 334.)   By its very terms, the first clause of section 654 is applicable, if at all, only after a conviction.   Because there has been no conviction here, it has no present application to this case.

Rule 449, California Rules of Court, requires a trial court to pronounce judgment and independently to compute the sentence on every crime of which a defendant is convicted together with applicable enhancements and, only thereafter, to stay execution of so much of the term as is required by the limitations of Penal Code section 654.   The advisory committee comment accompanying the rule explains:  “The computation of sentence and pronouncement of judgment on each count is necessary to protect the record in case of a partial reversal.”  (Deering's Ann.Code Rules of Court (1980 ed.) 200–End, p. 127.)   Accordingly, the limitation on punishment prescribed by section 654 is appropriately raised only after conviction, not before.¹

 Of more fundamental importance, Penal Code section 654 has no application to multiple allegations or findings of special circumstances.  (See People v. Boerner (1981) 120 Cal.App.3d 506, 510–511, 174 Cal.Rptr. 629.)   Charges of special circumstances have no legal significance independent of the substantive charge of the crime to which they are annexed.   They “do not define a crime or offense but relate to the penalty to be imposed under certain circumstances.”  (See People v. Provencher (1973) 33 Cal.App.3d 546, 550, 108 Cal.Rptr. 792;  People v. Walker (1976) 18 Cal.3d 232, 242, 133 Cal.Rptr. 520, 555 P.2d 306;  People v. Strickland (1974) 11 Cal.3d 946, 961, 114 Cal.Rptr. 632, 523 P.2d 672.) ²

 A criminal penalty can only be imposed for commission of a crime or offense, and only one penalty can be exacted for a single murder.   Here, no matter whether one or more special circumstances are charged and proved in relation to first-degree murder, the statutorily prescribed punishment is one of only two alternatives—death or life imprisonment without the possibility of parole.  (Pen.Code, § 190.2;  People v. Noble (1981) 126 Cal.App.3d 1011, 1016, 179 Cal.Rptr. 302;  see also People v. Velasquez (1980) 26 Cal.3d 425, 436, 162 Cal.Rptr. 306, 606 P.2d 341).

 Defendant argues that in deciding the penalty to impose after finding the existence of the two special circumstances of robbery and burglary, a jury might cumulate the two circumstances as factors in aggravation and spuriously “tip the scales” in favor of the death penalty.  (See Pen.Code, § 190.3.)   However, if defendant is convicted of first-degree murder with these special-circumstance findings and the prosecutor seeks the death penalty, we assume the jury will be properly instructed upon the weight it may accord to the various factors bearing upon its penalty choice.   It is highly speculative at this juncture to conjure up constitutional and statutory difficulties which might arise at a penalty trial if the jury were free to consider the robbery and burglary as constituting more than a single course of conduct.

Since Penal Code section 654 does not authorize the trial court to strike a charge of special circumstances, the People are entitled to a writ of mandate to correct the unauthorized order.

Let a peremptory writ of mandate issue directing respondent court to vacate its order granting defendant's motion to strike the special circumstance alleging the charged murder was committed during the commission of a burglary and to enter an order denying the motion.

FOOTNOTES

1.   Defendant cites Seiterle v. Superior Court (1962) 57 Cal.2d 397, 399, 20 Cal.Rptr. 1, 369 P.2d 697, for the proposition that a court has discretion pretrial to dismiss charges potentially violative of the multiple punishment prohibition of Penal Code section 654.  Seiterle, however, concerned the application of the successive prosecution prohibition of Penal Code section 654 to the retrial of the penalty phase of a capital case.   By the very nature of successive prosecution, a pretrial remedy must be available if the prohibition is to have any meaning.

2.   People v. Boerner, supra, People v. Provencher, supra, People v. Walker, supra, and People v. Strickland, supra, deal with sentence enhancements charged in non-capital cases, e.g., armed with or use of a firearm or deadly weapon, intentional infliction of great bodily injury (Pen.Code, §§ 12022, 12022.5, 12022.7).   These cases all hold that such enhancements do not define a crime or offense.   We are aware that in Ghent v. Superior Court (1979) 90 Cal.App.3d 944, 153 Cal.Rptr. 720, the Court of Appeal refused to extend the holding of this line of cases to special circumstances charged under Penal Code section 190.2 so as to deny a defendant so charged the right under Penal Code section 995 to challenge the sufficiency of the evidence underlying the charge of special circumstances.   In reaching this result, the Ghent court did not hold that special circumstances defined a substantive crime or offense;  for purposes of availability of the statutory pretrial motion to dismiss, the distinction the court drew between other penalty enhancements and special circumstances was one of degree, not kind:  “Allegations of special circumstances may produce the penalty of death, which cannot realistically be equated with ‘additional punishment’ because it is total punishment.  (See Woodson v. North Carolina (1976) 428 U.S. 280, 305 [96 S.Ct. 2978, 2991, 49 L.Ed.2d 944, 961–962].)   They are thus distinguishable from ‘enhancement’ allegations on the stark basis that death is distinguishable from life.   A further distinction appears in the gross disparity between the consequences of ‘enhancement’ allegations, on the one hand, and allegations of special circumstances on the other.”   (Emphasis in original;  fn. omitted;  p. 953, 153 Cal.Rptr. 720.)   The Ghent court concluded that these distinctions “also demonstrate that the People, as well as the accused, have an overriding interest in the assurance that these allegations are founded on perceptible evidence showing reasonable cause to make them and to assume their portentous consequences in a prosecution for murder ․  That assurance will be forthcoming only if the prosecuting authorities produce the requisite evidence at the preaccusatory inquiry on the murder charge and if its sufficiency to support the allegations may be tested in a pretrial procedure which includes appellate review.  [¶] Such procedure exists only under sections 995 and 999a ․  We accordingly conclude, as a matter of legislative intent, that the sufficiency of the evidence underlying allegations of special circumstances may be challenged on a pretrial motion made pursuant to section 995.”  (Emphasis in original;  Ghent, supra, p. 954, 153 Cal.Rptr. 720.)The distinctions drawn in Ghent in addressing a functionally unrelated procedural issue do not persuade us that the Legislature intended Penal Code section 654 to limit the prosecution in charging or proving multiple special circumstances arising out of the same transaction.

PUGLIA, Presiding Justice.

REGAN and SPARKS, JJ., concur.