Opinion
Page __
For Opinion on Rehearing, see 75 Cal.Rptr. 790 P.2d 430
Mosk, McComb, and Burke, JJ., dissented.
Opinion, Cal.App., 61 Cal.Rptr. 270, vacated.
[69 Cal.Rptr. 311] [ 442 P.2d 367] Kenneth M. Wells, Public Defender, and Charles G. Fredericks, Asst. Public Defender, for petitioner.
Thomas C. Lynch, Atty. Gen., Edsel W. Haws and Arnold Overoye, Deputy Attys. Gen., for respondent.
TRAYNOR, Chief Justice.
Petitioner drove a motor vehicle for 13 blocks on a public street in Sacramento with knowledge that his driving privilege was suspended (Veh.Code, § 14601) and while he was under the influence of intoxicating liquor (Veh.Code, § 23102). He was charged with and pleaded guilty to violating both statutes and was sentenced for both offenses. In this habeas corpus proceeding he contends that the imposition of the two sentences is double punishment forbidden by Penal Code section 654. The writ is available to review his contention that the judgment, on the undisputed facts, imposes punishment in excess of that authorized by law. (In re Johnson (1966) 65 Cal.2d 393, 394, 54 Cal.Rptr. 873, 420 P.2d 393; Neal v. State of California (1960) 55 Cal.2d 11, 17, 9 Cal.Rptr. 607, 357 P.2d 839.)
Vehicle Code, section 14601: 'No person shall drive a motor vehicle upon a highway at any time when his driving privilege is suspended or revoked and the person so driving has knowledge of either such fact.'
I hasten to add that the following compartmentalization of theories is for convenience and clarity only. There is nothing inviolable about the distinctions I propose and on varying facts they may easily overlap or shade one into another. The same theories have elsewhere been grouped quite differently--as, indeed, in the present majority opinion.
Vehicle Code, section 23102: 'It is unlawful for any person who is under the influence of intoxicating liquor * * * to drive a vehicle upon any highway.'
Motorist A has his license revoked for drunk driving or some other serious offense. He continues to operate his vehicle without a license, and on this occasion drives while under the influence of intoxicating liquor. Motorist B, at all times in possession of a valid license, is also convieted of driving while intoxicated. Sound public policy would suggest the two motorists should not receive equal punitive treatment.
Section 654 provides 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 reasonable import of the Penal Code's preclusion of multiple punishment for an act proscribed 'by different provisions of this code' is also to preclude multiple punishment for an act proscribed by different penal statutes not included in the Penal Code. (People v. [69 Cal.Rptr. 312] [ 442 P.2d 368] Brown (1958) 49 Cal.2d 577, 591, fn. 4, 320 P.2d 5; People v. Kehoe (1949)33 Cal.2d 711, 714, 204 P.2d 321 [applying the preclusion to overlapping statutes in the Vehicle and Penal Codes].)
Section 654 refers to an 'act * * * which is made punishable' by more than one statute, whereas the element common to the two Vehicle Code offenses committed by petitioner is not a single 'act' but a course of conduct (driving a vehicle on a highway) that is innocent in itself and not 'made punishable.' The context of the enactment of section 654, however, shows that the Legislature did not use the word 'act' in the narrow sense of a single physical movement, nor did its reference to an 'act or omission which is made punishable' imply that the section is limited to cases where the 'act or omission' common to crimes defined by different statutes is conduct or forbearance that in itself has some evil or punishable connotation.
Section 654 and the four sections immediately following it dealing with questions of multiple punishments and successive prosecutions for one 'act' were adopted as part of the original Penal Code in 1872. Although those sections were [69 Cal.Rptr. 313] [ 442 P.2d 369] then new statutory law, much of the 1872 code consisted of continuations, with some revisions, of existing statutes. The code's general rules as to the substantive nature of crime were taken from the 1850 Crimes and Punishments Act; the definitions of particular crimes were taken in part from that 1850 act and in part from miscellaneous scattered statutes, collated and revised in attempts to avoid unnecessary and confusing duplications and overlappings; and the rules of pleading and procedure were taken from the 1850 Criminal Practice Act. Before, at the time of, and since the enactment of section 654 in 1872 the Legislature often defined crimes in such terms that they could not be committed by a single physical 'act.' (Neal v. State of California, supra, 55 Cal.2d 11, 19, 9 Cal.Rptr. 607, 357 P.2d 839.) Thus, the physical behavior that constitutes an objective, external element of many crimes is stated not in terms of an 'act' but in terms of a course of conduct such as carrying away, transporting, maintaining, or, as in the instant case, driving.
Section 654 deals with three subjects. It first provides 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; an acquittal or conviction and sentence under either one bars a prosecution for the same act or omission under any other.' The first clause of that sentence is the substantive limitation on multiple sentences invoked by petitioner here. The second clause is a procedural rule against successive prosecutions under different statutes. The Legislature's joint statement of these distinct rules may seem odd today, but it was appropriate in 1872 because at that time a defendant could be prosecuted for only one offense in one criminal action (People v. Tideman (1962) 57 Cal.2d 574, 579-580, 21 Cal.Rptr. 207, 370 P.2d 1007) and therefore questions as to multiple punishment for one act could arise only if he was prosecuted a second time for that act. Over the years the procedural rules as to joinder of offenses have been liberalized, and today charges for different offenses in which the same act or course of conduct plays a significant part not only can but if possible must be joined in one prosecution. (Kellett v. Superior Court (1966) 63 Cal.2d 822, 827, 48 Cal.Rptr. 366, 409 P.2d 206; People v. Morris (1965) 237 Cal.App.2d 733, 775, 47 Cal.Rptr. 253.) The development of the procedural protections against multiple prosecutions, however, neither expands nor weakens the substantive rule limiting punishment.
Moreover, penal statutes do not ordinarily 'make punishable' mere acts without more. They make punishable the crimes they define, and an essential element of every orthodox crime is a wrongful or blameworthy mental state of some kind. (Morissette v. United States (1952) 342 U.S. 246, 250, 72 S.Ct. 240, 96 L.Ed. 288; People v. Vogel (1956) 46 Cal.2d 798, 801, 299 P.2d 850.) When the Legislature adopted Penal Code section 654 in 1872 it clearly had in mind the familiar concept that to constitute a crime there must be a concurrence of act and criminal state of mind. It repeatedly used the word 'act' in other sections of that code, both those dealing with the substantive nature of crime and those dealing with pleading, [69 Cal.Rptr. 314] [ 442 P.2d 370] to refer to the external, objective elements of a crime, including particularly (but not always exclusively) the physical conduct of the defendant, as contrasted with the subjective element, his mental state. In enacting the rule of section 654 limiting punishment, the Legislature used the word 'act' in that same familiar and general sense.
Penal Code, section 15: 'A crime or public offense is an act committed or omitted in violation of a law forbidding or commanding it, and to which is annexed, upon conviction, * * * punishments [of death, imprisonment, fine, or removal from or disqualification to hold office].'
Former Penal Code, section 950: 'The indictment must contain: * * * A statement of the acts constituting the offense, in ordinary and concise language, and in such manner as to enable a person of common understanding to know what is intended.'
Vehicle Code section 14601 makes the 'act' of driving on a highway punishable when it is accompanied by the subjective element of defendant's actual knowledge that his license has been suspended. (In re Murdock (1968) 68 A.C. 322, 324, 66 Cal.Rptr. 380, 437 P.2d 764.) Vehicle Code section 23102 makes that 'act' punishable when it is accompanied by the subjective element of being under the influence of intoxicating liquor. (See People v. Haeussler (1953) 41 Cal.2d 252, 261, 260 P.2d 8; People v. Keith (1960) 184 Cal.App.2d Supp. 884, 886, 7 Cal.Rptr. 613 [when defendant found himself in such a condition that liquor had appreciably impaired his ability to operate his car, 'he knew or should have known that he should not drive'].) By one 'act,' one uninterrupted course of driving concurring with both proscribed subjective states, petitioner simultaneously violated both statutes. Since the physical conduct of petitioner, as contrasted with the subjective elements of the crimes, was a single course of conduct, he committed only one act within the meaning of section 654. Accordingly, although he violated both statutes, he can be punished under only one.
The Attorney General contends that Vehicle Code sections 14601 and 23102 have different public purposes directed as distinct evils, and that the driver who violates both statutes simultaneously should be doubly punished because he is invading two social interests that the Legislature has designated for distinct protection by the enactment of two different statutes. In a jurisdiction without a multiple punishment rule like that of Penal Code section 654, this 'distinct evil' test might aid the courts in ascertaining without a multiple punishment rule like that of Penal Code section 654, this 'distinct evil' test might aid the courts in ascertaining whether the Legislature intended cumulative punishments for simultaneous violations of statutes like Vehicle Code sections 14601 and 23102. (See Twice in Jeopardy (1965), 75 Yale L.J. 262, 320; Kirchheimer, The Act, the Offense, and Double Jeopardy (1949), 58 Yale L.J. 513, 523.) In California, however, when the rule of section 654 precluding multiple punishment applies, the courts cannot invoke the 'distinct evil' test to evade that statutory rule. (But see People v. Winchell (1967) 248 Cal. Cal.App.2d 580, 596, 56 Cal.Rptr. 782; People v. Wasley (1966) 245 Cal.App.2d 383, 386, 53 Cal.Rptr. 877; People v. Poe (1965) 236 Cal.App.2d Supp. 928, 942, 47 Cal.Rptr. 670.) We have already pointed out that [69 Cal.Rptr. 315] [ 442 P.2d 371] section 654 was adopted as part of the 1872 Penal Code, when the code commissioners endeavored to collect and organize the scattered penal statutes of this state. In view of the task they were engaged in, the commissioners and the Legislature that enacted their recommendations were well aware of judicial problems in the application of overlapping, duplicating, and conflicting penal statutes. Recognizing that future Legislatures no doubt would continue to define multiple new crimes, often without specifying their relations to one another or to already existing crimes (see Statutory Implementation of Double Jeopardy Clauses (1956) 65 Yale L.J. 339, 344), the commissioners and the 1872 Legislature addressed themselves to this problem by the overall rule forbidding the courts to find legislative authority for multiple sentences in the proliferation of statutes with a common physical element. The courts must respect this declaration of the Legislature's intention as to the extent of punishment for overlapping or duplicating crimes.
Both Winchell and Wasley correctly upheld dual sentences for simultaneous but different 'acts.' In Winchell the defendant simultaneously violated Penal Code section 12021, forbidding possession by an ex-convict of a pistol capable of being concealed on his person, and Penal Code section 466, forbidding possession of 'a picklock, crow, keybit, or other instrument or tool with intent feloniously to break or enter into any building.' In Wasley the defendant simultaneously violated section 12021, proscribing possession of a concealable pistol by an ex-convict, and section 12020, proscribing possession of a sawed-off shotgun by 'any person.' The decisions mention the different public purposes served by the two statutes violated by the respective defendants. but they do not purport to announce a 'distinct evils' test contrary to section 654.
Moreover, any notion that a California court can multiply sentences because defendant's single act violates statutes that, in the court's view, vindicate different societal interests should have been dispelled by decisions such as People v. Brown, supra, 49 Cal.2d 577, 590, 320 P.2d 5 (defendant cannot be sentenced both for criminal abortion and for murder caused by the same act), and People v. Craig (1941) 17 Cal.2d 453, 457, 110 P.2d 403 (defendant cannot be sentenced for both statutory rape and forcible rape committed by one act of intercourse forced upon a 16-year-old girl; compare People v. McCollum (1931) 116 Cal.App. 55, 58, 2 P.2d 432, a prosecution for both statutory rape and incest resulting from defendant's one act of intercourse with his 16-year-old daughter; the trial court correctly anticipated the Craig theory, but the appellate court improperly condemned the trial court's view).
The Attorney General contends that multiple punishment should be allowed in accord with the statement in Neal v. State of California, supra, 55 Cal.2d 11, 20, 9 Cal.Rptr. 607, 612, 357 P.2d 839, 844, that 'The purpose of the protection against multiple punishment is to insure that the defendant's punishment will be commensurate with his criminal liability.' The Neal opinion made the quoted statement in the course of a judicial inquiry into the legislative intent as to the extent of pun ishment [442 P.2d 372] [69 Cal.Rptr. 316] of a defendant who criminally injures or kills more than one victim. In holding that section 654 does not forbid the separate punishment of a defendant's multiple crimes of violence that harm multiple victims, even though a single physical movement of the defendant is the one common cause of injuries or deaths of the several victims, Neal speaks of the multiple victim problem in terms of culpability and consequences. Moreover, under the orthodox general theory of crime on which the Legislature based the Penal Code, the act of killing A is essentially distinct from the act of killing B even when a single muscular contraction of the defendant is the common cause of both deaths. The concept of punishment 'commensurate with his criminal liability,' used in Neal as an aid to the determination of legislative intent in a multiple victim case, cannot be wrenched from that context and used in the present case as justification for ignoring not only the general purpose but the specific terms of section 654.
It is a legislative, not a judieial, function to fix the extent of punishment that can be imposed for any particular crime or group of crimes. Subject only to constitutional limitations the Legislature can define crimes and set their punishments as it sees fit. (Bell v. United States (1955) 349 U.S. 81, 82, 75 S.Ct. 620, 99 L.Ed. 905; People v. Knowles (1950) 35 Cal.2d 175, 181, 217 P.2d 1; In re Rosencrantz (1928) 205 Cal. 534, 537-538 271 P. 902.) The courts cannot impose criminal penalties for conduct that the Legislature has not made punishable (United States v. Wiltberger (1820) 18 U.S. 76, 93, 5 L.Ed. 37; Matter of Ellsworth (1913) 165 Cal. 677, 681, 133 P. 272; Havemeyer v. Superior Court (1890) 84 Cal. 327, 376, 24 P. 121, Pen.Code, § 15) or adjudge punishment in excess of that authorized by the Legislature. (People v. Lein (1928) 204 Cal. 84, 87, 266 P. 536; People v. Riley (1874) 48 Cal. 549; In re Rye (1957) 152 Cal.App.2d 594, 596, 313 P.2d 914; In re Carmignani (1925) 71 Cal.App. 632, 633, 235 P. 1033.) The Legislature can and does command multiple punishments for some crimes, e. g., Pen. Code, §§ 67, 68, 98 [disqualification from or forfeiture of office in addition to any other punishment for certain offenses]) and it authorizes the courts in their discretion to impose multiple punishments for others (e. g., the familiar statutory provision that a crime is punishable by imprisonment, fine, or both). The Legislature could also, if it saw fit to do so, expressly command or authorize multiple sentences for a group of crimes, however, closely they might be related. Instead the California Legislature, so far as multiple sentences for related crimes are concerned, has seen fit to enact the general multiple punishment preclusion of section 654.
'A defendant who commits an act of violence with the intent to harm more than one person or by a means likely to cause harm to several persons is more culpable than a defendant who harms only one person.' (55 Cal.2d at p. 20, 9 Cal.Rptr. at 612, 357 P.2d at 844.)
'Section 654 is not '* * * applicable where * * * one act has two results each of which is an act of violence against the person of a separate individual.'' (55 Cal.2d at pp. 20-21, 9 Cal.Rptr. at p. 612, 357 P.2d at p. 844, quoting from People v. Brannon (1924) 70 Cal.App. 225, 235-236, 233 P. 88.)
The Attorney General also contends that petitioner's uninterrupted and factually indivisible course of driving (see People v. Kehoe, supra, 33 Cal.2d 711, 715, 204 P.2d 321) can be split up to permit multiple sentencing by application of the Neal 'intent and objective' test (55 Cal.2d at p. 19, 9 Cal.Rptr. at p. 611, 357 P.2d at p. 843): '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. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.' That test was not designed to permit multiple sentencing that section 654 expressly forbids but to preclude improper multiplication of sentences when there is at least some arguable question as to the factual divisibility of defendant's course of criminal conduct. The Neal 'intent and objective' test can have no application when, as in the present case, the precise [69 Cal.Rptr. 317] [ 442 P.2d 373] preclusion of multiple punishment stated in section 654 applies.
The Neal opinion stated its 'intent and objective' test immediately after it had quoted from People v. Brown, supra, 49 Cal.2d 577, 591, 320 P.2d 5, the comment that 'Section 654 has been applied not only where there was but one 'act' in the ordinary sense * * * but also where a course of conduct violated more than one statute and the problem was whether it comprised a divisible transaction which could be punished under more than one statute within the meaning of section 654.'
The terms of the two sentences imposed here were selected by the trial [69 Cal.Rptr. 318] [ 442 P.2d 374] judge in the belief that he could lawfully sentence petitioner for both his offenses. Although we decide that petitioner can be sentenced for one offense only, it is not our province to decide for which misdemeanor he shall be punished or the extent of his punishment. The selection of punishment within the statutorily authorized limits is for the court authorized to pass sentence (see Pen.Code, § 13), of course with the limitation that petitioner's application for relief has not subjected him to the risk of more severe punishment on resentence. (People v. Ali (1967) 66 Cal.2d 277, 281, 57 Cal.Rptr. 348, 424 P.2d 932.)
A California reviewing court can correct an improper multiplication of felony prison sentences which are indeterminate and for the term prescribed by law, by setting aside the sentences that constitute unlawful double punishment. (In re Wright (1967) 65 Cal.2d 650, 656, 56 Cal.Rptr. 110, 422 P.2d 998; In re McGrew, supra, 66 Cal.2d 685, 688-689, 58 Cal.Rptr. 561, 427 P.2d 161.) In a misdemeanor case such as this, however, even though the total punishment imposed for both offenses did not exceed that which could have been imposed for either one or the other, we will not assume to divine the sentencing court's intention as to punishment by 'merging' the dual sentences into one and assigning this sentence to one offense or the other.
The writ is granted. The sentences are set aside. The petitioner, who is in the constructive custody of the sheriff of Sacramento County, shall be arraigned before the Sacramento Municipal Court for pronouncement of sentence on one count only. In fixing sentence the court shall credit petitioner for time served and fines paid.
PETERS, TOBRINER and SULLIVAN, JJ., concur.
DISSENTING OPINION
MOSK, Justice.
I dissent.
No one will deny that Penal Code section 654 has been, particularly in recent years, one of the most troublesome provisions of our entire criminal procedural law, difficult to apply with any degree of logic and consistency. Yet the section undoubtedly serves a valid and desirable purpose in the situations in which it is designed to operate. The problem has been, of course, to delineate those situations in a manner consistent with the legislative intent.
To achieve this end, the courts have developed a succession of theories or rationales for applying or refusing to apply the section according to the species of legal or factual situation presented. But new and unforeseen situations continue to arise, either through further legislative multiplication of offenses or through a combination of factual circumstances not theretofore the subject of litigation. Such a case is now before us. The majority concede in effect that none of the existing theories are adaptable to the present case, and therefore have devised yet another theory for that purpose.
I wish to make it clear at the outset that I do not necessarily take issue with the majority's new theory in the abstract; it is predicated upon fundamental principles of criminal law, and one could conceive of circumstances to which it might well apply. But I submit that we do not have such a situation here. This case, like the large class of simultaneous vehicle violation cases which it may be said to represent, simply cannot be brought within the theory proposed.
To begin with, I shall briefly review the theories which the majority will agree cannot be invoked in the present case. Such a process of exclusion can often be quite instructive. 1
[69 Cal.Rptr. 319] [ 442 P.2d 375] 1. Section 654 applies when a true 'single act' simultaneously renders the defendant guilty of an offense and one or more necessarily included offenses. It has long been settled, of course, that the reach of section 654 does not stop at this point. (People v. Knowles (1950) 35 Cal.2d 175, 187, 217 P.2d 1.)
2. Section 654 applies when a true 'single act' simultaneously renders the defendant guilty of two or more coequal offenses, none of which is 'included' in the other. (See, e. g., People v. Craig (1941) 17 Cal.2d 453, 110 P.2d 403 [defendant convicted of forcible rape and statutory rape by reason of a single act of nonconsensual intercourse with a 16-year-old girl].) In the present context, for example, a single act of speeding could render the defendant guilty of--but not separately punishable for--violating Vehicle Code sections 22349 (maximum speed limit), 22350 (reasonable or prudent speed), 22353 (prima facie speed limit), and 23103 (reckless driving).
3. Section 654 applies when a true 'single act,' which itself renders the defendant guilty of an offense, has as a direct causal result a further injury rendering the defendant guilty of a second offense. (See, e. g., People v. Brown (1958) 49 Cal.2d 577, 320 P.2d 5 [defendant convicted of abortion and murder by reason of a single act of using an instrument upon his victim with intent to procure her miscarriage, resulting subsequently in her death from loss of blood].) In the present context, for example, a single act of speeding resulting in the death of a pedestrian could render the defendant guilty of--but not separately punishable for--violations of Vehicle Code section 23104 (reckless driving proximately causing bodily injury) and Penal Code section 192, subdivision 3 (vehicular manslaughter). (But see People v. Hernandez (1966) 242 Cal.App.2d 351, 359-362, 51 Cal.Rptr. 385.)
4. Section 654 applies when the defendant commits two or more acts, each of which renders him guilty of a distinct offense, during an 'indivisible' course of criminal conduct, i. e., in which all such acts are incident to a single 'intent and objective' within the meaning of Neal v. State of California (1960) 55 Cal.2d 11, 19, 9 Cal.Rptr. 607, 357 P.2d 839. (See, e. g., cases cited in the last paragraph of footnote 10 of the majority opinion.) In the present context, for example, a defendant who acted pursuant to a single intent of stealing a certain automobile could not be separately punished for violating Penal Code section 459 (burglary by entering a garage with intent to steal), and Vehicle Code sections 10852 (breaking window or door lock of car), 10853 (entering and starting car with intent to commit any crime), and 10851 (driving car away with intent to deprive owner of same). (See also People v. Kehoe (1949) 33 Cal.2d 711, 204 P.2d 321.)
5. Other suggested theories are even more clearly distinguishable: the concern for insuring 'that the defendant's punishmemt will be commensurate with his criminal liability' (Neal v. State of California, supra, at p. 20 of 55 Cal.2d, at p. 612 of 9 Cal.Rptr. at p. 844 of 357 P.2d 839) may be invoked only in a case involving multiple victims of a single act or course of conduct; and the concern for preventing 'unreasonable harassment' of a defendant is relevant only to a violation of the multiple prosecution clause of section 654 (Kellett v. Superior Court (1966) 63 Cal.2d 822, 48 Cal.Rptr. 366, 409 P.2d 206).
Each of the foregoing theories being inapplicable here, the majority have devised yet another. If I comprehend it correctly, the reasoning runs as follows: Although section 654 refers to an 'act * * * which is made punishable' by more than one statute, the Legislature did not use the word 'act' in the narrow sense of 'a single physical movement' (P. 312), for such a movement is not 'made punishable' as a crime unless it is joined by 'a wrongful or blameworthy mental state of some kind.' (P. 313.) Accordingly, the Legislature must have intended, in section 654 as in a variety of other statutes, that 'act' means 'the external, objective elements of a crime, [69 Cal.Rptr. 320] [ 442 P.2d 376] including particularly (but not always exclusively) the physical conduct of the defendant, as contrasted with the subjective element, his mental state.' (P. 314.) In short, if we isolate the 'subjective element' or 'mental state' of the defendant in committing two offenses, and there remains only a 'physical conduct' which is identical and common to both, section 654 is applicable and prohibits punishing him more than once.
With this rationale in mind, let us examine the offenses to which defendant here pleaded guilty. In an effort to make the facts fit their theory, the majority characterize the misdemeanor drunk driving statute as follows: 'Vehicle Code section 23102 makes that 'act' [of driving on a highway] punishable when it is accompanied by the subjective element of being under the influence of intoxicating liquor.' (Italics added; p. 314.) This is simply not so. From the viewpoint of Penal Code section 20--the majority's own premise--the 'physical conduct' prohibited by Vehicle Code section 23102 is the act of driving while under the influence of intoxicating liquor, and the 'subjective element' is merely the defendant's intent to drive or knowledge that he is driving. Obviously, the defendant does not have to intend to be drunk--or even know that he is--in order to be guilty; if the rule were otherwise, the drunker the defendant was, the less guilty he would be.
Similarly, the majority are not faithful to their own theory when they characterize the 'subjective element' of a violation of section 14601 as 'defendant's actual knowledge that his license has been suspended.' (P. 314.) The statute does provide a subjective test as a precondition to liability, but only refers to knowledge in order to prevent an otherwise innocent act of driving from being rendered unwittingly criminal by an administrative decision of which the driver may not actually have been apprised. (Cf. In re Murdock (1968) 68 A.C. 322, 66 Cal.Rptr. 380, 437 P.2d 764.) Again from the viewpoint of Penal Code section 20, the 'physical conduct' prohibited by Vehicle Code section 14601 is the act of driving without a valid license, and the 'subjective element' is simply the defendant's intent to drive or knowledge that he is driving.
The foregoing analysis is consonant with the general rule that most Vehicle Code misdemeanors are mala prohibita, and their violation requires no showing of wrongful intent. (See People v. Vogel (1956) 46 Cal.2d 798, 801, 299 P.2d 850, fn. 2 (per Traynor, J.).) In such cases the 'subjective element' of the offense is merely the actor's knowledge of the fact that he is operating a motor vehicle; the 'physical conduct' is his operation of that vehicle under the proscribed circumstances, e. g., with defective brakes or lights, or at an excessive speed, or while intoxicated or unlicensed. Indeed, each of the foregoing circumstances are capable of objective, physical proof, as distinguished from the typical 'subjective element' of intent or state of mind.
Accordingly, under the majority's own theory these two offenses do not share a common element of 'physical conduct' within the meaning of Penal Code section 20. Each is a separate act, each determined by objective proof. One may drive while intoxicated and properly licensed; one may drive while sober and lacking a license. Each act may be proscribed and punished. That one actor commits both unrelated offenses does not render section 654 operative.
Rather than once again revising existing theories in order to fit the facts of this case, I would simply hold that section 654 does not apply here. The result would permit the matter to be governed by general rules of trial court discretion relating to probation and the imposition of concurrent or consecutive sentences. Nor would this seem to be an unwise public policy: there is a broad spectrum of traffic offenses contained in the Vehicle Code, from section 1 to section 42273, and in related sections of 17 other codes (see appendix to Vehicle [69 Cal.Rptr. 321] [ 442 P.2d 377] Code). I believe we must trust the trial courts to fashion pragmatic dispositions in this area of the law. 2
I would deny the writ.
McCOMB and BURKE, JJ., concur.
Section 654 finally provides that 'In the cases specified in Sections 648, 667, and 668 [specifying increased punishments for second offenders], 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.' This express reaffirmation of the propriety of the rules of other sections providing for increased punishment of those who have suffered prior convictions also had some relation to the subjects of multiple punishment and multiple prosecution. Its inclusion in section 654 points up the Legislature's awareness of arguable but untenable contentions by recidivists that subjecting them to increased punishment because they have been previously convicted amounts to a new prosecution or a new punishment for the prior offense. (People v. King (1883) 64 Cal. 338, 30 P. 1028; People v. Stanley (1873) 47 Cal. 113, 116.)
In addition to the rules of section 654 as to multiple punishment and multiple prosecution for one 'act' under California penal statutes, the Legislature adopted rules as to an 'act' made punishable both by California law and the law of another jurisdiction, and the punishment of an 'act' that is both a crime and a contempt of court:
Penal Code, section 655: 'An act or omission declared punishable by this Code is not less so because it is also punishable under the laws of another State, Government, or country, unless the contrary is expressly declared.'
Penal Code, section 656: 'Whenever on the trial of an accused person it appears that upon a criminal prosecution under the laws of another State, Government, or country, founded upon the act or omission in respect to which he is on trial, he has been acquitted or convicted, it is a sufficient defense.' (Code Commissioners' Note: 'This section is intended to apply in cases where the foreign acquittal or conviction took place in respect to the particular act or omission charged against the accused upon the trial in this State, and is not restricted to cases where the accused was tried abroad under the same charge.'
Penal Code, section 657: 'A criminal act is not the less punishable as a crime because it is also declared to be punishable as a contempt.'
Penal Code, section 658: 'When it appears, at the time of passing sentence upon a person convicted upon indictment, that such person has already paid a fine or suffered an imprisonment for the act of which he stands convicted, under an order adjudging it a contempt, the Court authorized to pass sentence may mitigate the punishment to be imposed, in its discretion.'
Penal Code, section 20: 'In every crime or public offense there must exist a union, or joint operation of act and intent, or criminal negligence.'
Penal Code, section 22: 'No act committed by a person while in a state of voluntary intoxication is less criminal by reason of his having been in such condition. But whenever the actual existance of any particular purpose, motive, or intent is a necessary element to constitute any particular species or degree of crime, the jury may take into consideration the fact that the accused was intoxicated at the time, in determining the purpose, motive, or intent with which he committed the act.'
Penal Code, section 26: 'All persons are capable of committing crimes except those belonging to the following classes:
'One. Children under the age of fourteen, in the absence of clear proof that at the time of committing the act charged against them, they knew its wrongfulness.
'* * *
'Four. Persons who committed the act or made the omission charged under an ignorance or mistake of fact, which disproves any criminal intent.
'Five. Persons who committed the act charged, without being conscious thereof.
'Six. Persons who committed the act or made the omission charged through misfortune or by accident, when it appears that there was no evil design, intention, or culpable negligence.
'* * *
'Eight. Persons (unless the crime be punishable with death) who committed the act or made the omission charged under threats or menaces sufficient to show that they had reasonable cause to and did believe their lives would be endangered if they refused.'
Former Penal Code, section 951: 'It may be substantially in the following form: * * * A.B. is accused * * * of the crime of (giving its legal appellation, such as murder, arson, or the like, or designating it as felony or misdemeanor), committed as follows: The said A.B., on the ___ day of _____, A.D., eighteen _____, at the County of _____ (here set forth the act or omission charged as an offense).'
Former Penal Code, section 959: 'The indictment is sufficient if it can be understood therefrom: * * *
'6. That the act or omission charged as the offense is clearly and distinctly set forth in ordinary and concise language, without repetition, and in such a manner as to enable a person of common understanding to know what is intended;
'7. That the act or omission charged as the offense is stated with such a degree of certainty as to enable the Court to pronounce judgment upon a conviction, according to the right of the case.'
Possession of a physical object is an 'act' within the rule of section 654 and the general rules as to the orthodox nature of crime (fn. 4, supra), for those rules contemplate that the 'act' aspect of a crime includes its external elements and is not limited solely to physical movements of the defendant. Of course there cannot be in fact or law an 'act' of possessing without a thing that is possessed. The defendant who possesses two different kinds of contraband in violation of two different statutes is committing two different 'acts' of proscribed possession.
The Poe case, supra, 236 Cal.App.2d Supp. 928, 942, 47 Cal.Rptr. 670, unlike Winchell and Wasley, decided the double punishment issue erroneously and is therefore disapproved. In Poe precisely the same conduct of the defendants was a trespass proscribed by Penal Code section 602, subdivision (j), and a contempt proscribed by Penal Code section 166, subdivision 4. The appellate court upheld dual sentences for this single 'act' on the theory that the trespass was a crime against property whereas contempt was a crime against the authority of the superior court.
Neither Neal nor Brown presented any question of a 'divisible' transaction. In each of those cases one factually indivisible act was a common element of defendant's violation of two statutes. In Neal the defendant threw and ignited gasoline with intent to and did commit both arson attempted murder. In Brown the defendant's act that was intended to abort L also killed her. In both cases section 654 in terms forbade sentencing the defendant for the two crimes committed by the one act, and there was no occasion to inquire whether his offenses were or were not 'incident to one objective.'
Other decisions cited in Neal and Brown, however, show that Neal's 'intent and objective' test should guide the sentencing judge in cases presenting a 'course of action' or 'transaction' that, by oversubtle division of the evidence of acts and intents, could be split into a series of discrete crimes proscribed by different statutes directed against basically the same kind of criminality. (See, e. g., People v. Kehoe, supra, 33 Cal.2d 711, 713, 715, 204 P.2d 321; People v. Greer (1947), 30 Cal.2d 589, 603, 184 P.2d 512; compare People v. Slobodion (1948), 31 Cal.2d 555, 562, 191 P.2d 1.) In such cases the sentencing court is confronted with a state of facts that may or may not come within 'the meaning of section 654' in the sense that, although section 654 does not give a comprehensive or definitive rule enabling the solution of all multiple sentencing problems, it does indicate a general legislative purpose of lenity so far as the multiplication of sentences is concerned. Sometimes (as in Greer) the statutes defining the separate crimes in themselves will enable the court to ascertain the legislative intent that they should not be separately punished, without resort to section 654. If, however, there remains a doubt as to the legislative intent concerning the multiplication of sentences, the doubt should be resolved in favor of lenity. (In re Tartar (1959), 52 Cal.2d 250, 257, 339 P.2d 553; People v. Ralph (1944) 24 Cal.2d 575, 581, 150 P.2d 401; see In re Estrada (1965), 63 Cal.2d 740, 744-745, 48 Cal.Rptr. 172, 408 P.2d 948.) In this class of cases 'the meaning of section 654' and the 'intent and objective' test direct the courts toward lenity in the same way that a judicially recognized 'basic principle that forbids multiple punishment for one criminal act' forbids splitting a course of conduct into multiple violations of the same statute whenever there is a doubt as to the propriety of such fragmentation. (In re Johnson, supra, 65 Cal.2d 393, 395, 54 Cal.Rptr. 873, 420 P.2d 393.)
Neal's 'intent and objective' test also governs sentencing in cases of multiple convictions for both an inchoate crime (e. g., burglary, conspiracy, solicitation, and like offenses that in fact and by definition are committed not as ends in themselves but as preparation for the consummation of a further criminal purpose) and substantive crimes committed in execution of the inchoate purpose. There may be no single external 'act' necessarily common to the preparatory offense and the ultimate offense so as to bring the case precisely within the literal preclusion of section 654, but by application of the 'intent and objective' test the legislative purpose expressed by that section is effected. Illustrating this application of Neal are People v. McFarland (1962) 58 Cal.2d 748, 760-762, 26 Cal.Rptr. 473, 376 P.2d 449 (burglary with intent to commit larceny and the larceny); People v. Hicks (1965) 63 Cal.2d 764, 765-766, 48 Cal.Rptr. 139, 408 P.2d 747 (burglary with intent to commit sexual felonies and the consummated sex offenses); In re McGrew (1967) 66 Cal.2d 685, 688, 58 Cal.Rptr. 561, 427 P.2d 161 (same); In re Cruz (1966) 64 Cal.2d 178, 180-181, 49 Cal.Rptr. 289, 410 P.2d 825 (conspiracy to commit grand theft and grand theft); In re Romano (1966) 64 Cal.2d 826, 828, 51 Cal.Rptr. 910, 415 P.2d 798 (conspiracy, burglary, and theft); In re Pratt (1967) 66 Cal.2d 154, 156, 56 Cal.Rptr. 895, 424 P.2d 335 (kidnaping for the purpose of robbery and robbery); In re Malloy (1967) 66 Cal.2d 252, 256, 57 Cal.Rptr. 345, 424 P.2d 929 (same). Examples need not be multiplied; the principle is plain. (See Twice in Jeopardy (1965), supra, 65 Yale L.J. 262, 319; Kirchheimer, The Act, the Offense, and Double Jeopardy (1949), supra, 58 Yale L.J. 513, 518; ALI Model Penal Code Proposed Official Draft (1962), § 1.07(1)(b), and Tent.Draft No. 5 (1956), Comment to former§ 1.08 at pp. 37-38).