Opinion
For Opinion on Hearing, see 69 Cal.Rptr. 310, 442 P.2d 366.
Kenneth M. Wells, Public Defender, by Charles G. Fredericks, Asst. Public Defender, Sacramento, for petitioner.
Thomas C. Lynch, Atty. Gen., by Edsel W. Haws and Arnold Overoye, Deputy Attys. Gen., Sacramento, for respondent.
PIERCE, Presiding Justice.
On December 30, 1966, defendant drove a motor vehicle in violation of (1) section 14601 of the Vehicle Code (driving while license was suspended with knowledge thereof), and (2) section 23102, subdivision (a) (misdemeanor drunk driving). He entered pleas of guilty and the court pronounced judgment and sentence on each count.
By this petition in habeas corpus he seeks relief, contending the imposition of sentences for both violations is contrary to the proscription against multiple punishment contained in section 654 of the Penal Code.
We hold section 654 was not violated. Section 654 of the Penal Code provides in part: '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 protection of section 654 extends to penal provisions found in the Vehicle Code. (See People v. Brown, 49 Cal.2d 577, 591, 320 P.2d 5; People v. Young, 224 Cal.App.2d 420, 424, 36 Cal.Rptr. 672.)
Although Morris involves a double prosecution case, the language used by the court relating to the single operation of an automobile is pertinent herein to the double punishment aspect of this case.
The words 'An act or omission' which start the first sentence of section 654 have been court construed a number of times. Neal v. State of California, 55 Cal.2d 11, 9 Cal.Rptr. 607, 357 P.2d 839, 843, is the landmark decision. In it petitioner had thrown gasoline into the bedroom of a Mr. and Mrs. Raymond and had ignited it. The Raymonds were severely injured. Petitioner was tried in one trial for two counts of attempted murder and also on one count for arson. He was convicted and sentenced on all counts. He claimed double punishment under Penal Code section 654. The Supreme Court restated (on p. 19, 9 Cal.Rptr. People v. Knowles,
It will be noted then that section 654 has two phases. For a single 'act or omission' (1) it prohibits double punishment, and (2) it prohibits successive prosecutions. The Neal case (supra) was a double punishment (but single prosecution) case. In January 1966 in Kellett v. Superior Court, 63 Cal.2d 822, 48 Cal.Rptr. 366, 409 P.2d 206, the Supreme Court had before it a 'successive prosecution' situation. Petitioner had been charged and pleaded guilty of the misdemeanor charge of violation of Penal Code section 417 (exhibiting a firearm in a threatening manner). He was sentenced to a 90-day county jail sentence. In the meantime, it having been learned that he had been previously convicted of a felony, he was charged in the superior court with a violation of Penal Code section 12021 (possession of a concealable weapon by a person previously convicted of a felony). He sought, and the Supreme Court granted, a writ of prohibition preventing his second trial. The court in its opinion reviewed and restated much of that which we have outlined above contained in Neal v. State of California, supra. The following dictum is significant: In the context of answering the proposition that had both offenses been joined in a single prosecution the People might have shown 'that the object and intent of the petitioner in brandishing the weapon and his object in possessing it were entirely unrelated' the court pointed out (on p. 825 of 63 Cal.2d, on p. 368 of 48 Cal.Rptr., on p. 208 of 409 P.2d) that section 654's preclusion of multiple prosecution was separate and distinct from its preclusion of multiple punishment, the former being 'a procedural safeguard against harassment * * * not necessarily related to the punishment to be imposed; double prosecution may be precluded even when double punishment is permissible.' (Emphasis added.) Again the court cited the instance of a single act of violence causing injury to several persons, and again it gave the illustration of the defendant who blows up an airplane with all on board. It stated (on pp. 825-826, 48 Cal.Rptr. p. 369, 409 P.2d p. 209): 'It does not follow, however, that such a defendant should be liable to successive prosecutions. It would constitute wholly unreasonable harassment in such circumstances to permit trials seriatim until the prosecutor is satisfied with the punishment We emphasize the distinction to be made between the double prosecution and double punishment aspects in the interpretation of section 654 because these distinctions have applicability here. Petitioner contends that he had but a single objective and intent here--to drive an automobile and reach his destination, but that is not true as we will point out below. He also argues that while it is true that act involved the commission of two criminal offenses, since he was both intoxicated and driving without a valid license, he cannot be prosecuted for both.
Whatever the case might be, were this a problem of double prosecution, when the question is one of punishment, the problem changes from one of harassment and protection of the public pure to one of the nature and severity of the offense, or, as the court states in Neal, it changes to 'insure that defendant's punishment will be commensurate with his criminal liability.'
In the 'punishment' cases, however, such as Neal and the decisions which follow Neal the objective of the several defendants with which the courts have been concerned are the criminal objectives. In the case at bench defendant did not have as his criminal objective the driving of an automobile. His criminal objectives were two: (1) the driving of an automobile while under the influence of liquor, and (2) the driving of an automobile with an invalid license. These were two separate objectives neither of which was incidental to the other, although operation of a motor vehicle happened to be an incident in both. So in Neal, supra, there were two separate objectives: one to kill Mr. Raymond and the other to kill Mrs. Raymond, with the throwing of gasoline an incident present in both crimes but which was not the objective of either. The fact that the operation of an automobile, here, was an element of each offense does not make them the same act or course of conduct. There was no unity of intent and objective. One must not confuse simultaneity with unity of act and intent.
Petitioner relies upon People v. Morris, 237 Cal.App.2d 773, 47 Cal.Rptr. 253, for support. That case does indeed contain language which, stated out of context, would seem to support his petition. Also, in Morris, supra, the offenses involved were the same as here: a conviction for driving while under the influence of liquor and driving with a suspended license. In holding for petitioner, the court used language similar to that quoted above from the Neal and Kellett cases. It says (on pp. 775-776, 47 Cal.Rptr. on p. 254): 'The physical act of driving a motor vehicle is an essential factor to both the offense of driving while intoxicated and driving while the operator's license was revoked. * * * In applying section 654, 'It is the singleness of the act and not of the offense that is determinative.' (People v. Knowles, supra, 35 Cal.2d 175, 187, 217 P.2d 1, 8; * * *.)'
But petitioner overlooks the significant distinguishing fact that Morris, supra, was a 'successive prosecution' case, not a 'double punishment' case. This difference serves to point up what we have stated above, we must not identify 'successive prosecution' with 'double punishment.'
Nor does In re Cruz, 64 Cal.2d 178, 49 Cal.Rptr. 289, 410 P.2d 825, support petitioner's position. That was a case where but one offense was committed, grand theft, and another charged, conspiracy to commit grand theft. The case, therefore, was not a 'successive prosecution' case. But there the offenses were committed in an indivisible course of conduct, and one Downs v. State of California,
The order to show cause is therefore discharged and the petition for a writ of habeas corpus is denied.
FRIEDMAN, J., concurs.
REGAN, Associate Justice.
I dissent.
The language of section 654 of the Penal Code seems clear and unambiguous. When it is said an act which is made punishable in different ways by different provisions of the code may be punished under either of such provisions, but in no case can the act be punished under more than one, the isolation and identification of the act should enable the courts to dispose of the issue without great difficulty. Yet an examination of the decisions of the California appellate courts leaves much to conjecture.
Here, the defendant, while in a state of intoxication and sans a valid driver's license, drove a motor vehicle. The act was the driving of the vehicle. His intent was to drive from one point to another. The intoxication and absence of license was his status at the time of the act of driving. In Kellett v. Superior Court, 63 Cal.2d 822, 824-825, 48 Cal.Rptr. 366, 368, 409 P.2d 206, 208, the court said:
'If only a single act or an indivisible course of criminal conduct is charged as the basis for a conviction, the defendant can be punished only once although he may have violated more than one statute. Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. (Neal v. State of California, 55 Cal.2d 11, 19, 9 Cal.Rptr. 607, 357 P.2d 839.)'
The 'single act' involved in this case was the act of driving. If it can be said there was a 'course of criminal conduct' in defendant's driving it would appear to be 'indivisible' under the circumstances of this case.
In People v. Morris, 237 Cal.App.2d 773, 47 Cal.Rptr. 253, defendant was charged with violation of section 14601 of the Vehicle Code (driving while license suspended with knowledge thereof) four days after she pleaded guilty to a violation of section 23102, subdivision (a) (misdemeanor drunk driving). The court held, in a 2 to 1 decision, that section 654 barred the second prosecution. In so doing the court stated (at pp. 775-776, 47 Cal.Rptr. at p. 254): 1
'The physical act of driving a motor vehicle is an essential factor to both the offense of driving while intoxicated and driving while the operator's license was revoked. * * * The fact that the operation of an automobile while under the influence of intoxicating liquor is a separate offense from the operation of an automobile while the operator's license is revoked, because a particular factor is essential to one and not to the other (People v. Day, 199 Cal. 78, 83, 248 P. 250; People v. Kuhn, 216 Cal.App.2d 695, 700, 31 Cal.Rptr. 253), does not support the conclusion that, where both People v. Knowles,
People v. Martin,In Neal v. State of California, 55 Cal.2d 11, at pages 18-19, 9 Cal.Rptr. 607, at page 611, 357 P.2d 839 at page 843, the landmark case dealing with the proscription of section 654 against multiple punishment, Justice Traynor, speaking for a majority of the court, stated:
'The proscription of section 654 against multiple punishment of a single act, however, is not limited to necessarily included offenses. [Citations.] 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.''
Violations of the statutes of this state commencing with the single act of driving a motor vehicle are too numerous to set forth here. To mention a few: A defendant apprehended while driving under the influence of intoxicating liquor, and who does not possess a valid operator's license, might well be found to be operating a vehicle which is in an unsafe condition, one not properly equipped, or not safely loaded. The vehicle may have defective brakes, unlawful or defective lighting equipment, improperly maintained lamps and devices, faulty head lamps, tail lamps, stop lamps, backup lamps, rear reflectors, turn signal system, side and fender lighting, warning lights, inadequate windshield, lack of safety glass, or windshield wiper, or rear view mirror. The list of code violations could continue through the entire mechanics of a vehicle including such items as the horn, safety belts, tires and fenders. Further violations could include things such as a television set operating in the vehicle, products carried, transportation of explosives or radioactive materials, or improper length, height, width or weight of the vehicle, as well as faulty license plates or registration, et al.
Failure to comply with the code provisions could result in the commission of multiple misdemeanors or felonies. (Veh.Code, § 40000.) The single act of driving could under the majority opinion result in innumerable punishable offenses. I find no judicial or legislative compulsion to so hold.
In the article Toward a Rational Vehicle Code by Judge Robert S. Thompson and Judge Thomas C. Murphy of the Los Angeles Municipal Court (41 St.Bar J. (July--August 1966) No 4, p. 508), we note at page 509:
'The Vehicle Code is much too long and much too complicated to serve as an easily understandable guide to motorist conduct. The unannotated code, as published by the Department of Motor Vehicles, is 444 pages long. J. Allen Davis, a pioneer draftsman of vehicle control legislation, notes that in California such statutes have proliferated to the point where a motorist must obey in excess of 1,000 penal vehicle laws when he drives an automobile. Only a relatively few of those laws relate to conduct which is a frequent cause of accidents, those being interspersed among a multitude of rules concerning the flow of traffic, parking and the use of highways generally.
'Aggravating the situation is the fact that many Vehicle Code sections are obscurely drafted. * * *' 'Davis, The California Vehicle Code and the Uniform Vehicle Code, 14 Hastings L. J. 377 (1963). 606 felonies and misdemeanors were proscribed in the Vehicle Code at the time of Mr. Davis' article; the remainder of the 1,000 crimes involve potential violations of various municipal traffic ordinances.'
The majority opinion states: 'In the case at bench defendant did not have as his criminal objective the driving of an automobile. His criminal objectives were two: (1) the driving of an automobile while under the influence of liquor, and (2) the driving of an automobile with an invalid license.' With this statement I disagree. Are we to say that if a motorist, while under the influence of intoxicating liquor, is driving a vehicle in such a condition that he may be subjected to innumerable punishable offenses, he has as his objective, or goal, the commission of each of these heterogenous offenses?
An excerpt from the address of Chief Justice Traynor, delivered March 4, 1966, at the University of Missouri, appears to warn against the conclusion reached in the case at bench.
There is an aggravated complication: statistics encompass violations of a growing host of statutory prohibitions, crimes per se even when they involve no victim and no violence. Whatever the wisdom of such statutory prohibitions as are prompted by community mores, it may still remain debatable whether the behavior prohibited should be labelled a crime and punished as such or dealt with in some other manner. Those who are quick to say, whenever something displeases then, that 'there ought to be a law,' fail to realize that each new law increases the chances they too may become lawbreakers.' (41 St.Bar J. (July--August 1966) No. 4, 458, 462.)
Here, violation of both statutes is predicated upon the commission of a single, indivisible act, the one-time driving of the vehicle. There was no separate and distinct act established as the basis for each conviction. A single act is charged as the basis for the multiple convictions.
I would hold the law of this state to be that where a single act of driving a motor vehicle results in convictions for violations of section 14601 of the Vehicle Code (driving while license was suspended with knowledge thereof) and section 23102, subdivision (a), Vehicle Code (misdemeanor drunk driving) the defendant may be punished only for the offense for which the law provides a greater punishment.
I would grant the writ.