In re Hayes

451 P.2d 430, 70 Cal. 2d 604, 75 Cal. Rptr. 790, 1969 Cal. LEXIS 356

Opinions

MOSK, J.

On December 30, 1966, petitioner David Oliver Hayes drove a motor vehicle for some 13 blocks in violation of Vehicle Code section 14601 (with knowledge of a suspended license) and Vehicle Code section 23102 (while under the influence of intoxicating liquor). He pleaded guilty to and was sentenced for both offenses. Petitioner now asserts that imposition of sentences for both violations is contrary to the proscription against multiple punishment contained in Penal Code section 654. We have concluded that petitioner’s contention lacks merit.

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 interdiction is not limited to the provisions of the Penal Code, but embraces penal provisions in other codes as well, including those found in the Vehicle Code. (Neal v. State of California (1960) 55 Cal.2d 11, 18 fn. 1 [9 Cal.Rptr. 607, 357 P.2d 839]; People v. Kehoe (1949) 33 Cal.2d 711 [204 P.2d 321].)

The key to application of section 654 is in the phrase ‘1 act or omission ”: a defendant may be punished only once for each distinct 11 act or omission ’ ’ committed. There have been numerous attempts in the cases to define a single:“act,” with varying degrees of clarity. Section 654 has been held--to apply, for example, where the- multiple violations are “'necessarily included offenses” (People v. Knowles (1950) 35 Cal. [217 P.2d 1]) and where there is a single “intent and objective ’ ’ underlying a course of criminal conduct (Neal v. State of California (1960) supra, 55 Cal.2d 11) but not where there are multiple victims {id.). Most of the cases construing section 654 can be resolved by application of one or the other of these theories. (See, e.g., In re Ford (1967) 66 Cal.2d 183 [57 Cal.Rptr. 129, 424 P.2d 681] [kidnaping of three victims]; In re Ward (1966) 64 Cal.2d 672 [51 Cal.Rptr. 272, 414 P.2d 400] [kidnaping with intent to rob and robbery]; People v. Brown (1958) 49 Cal.2d 577 [320 P.2d 5] [abortion and resulting death]; People v. Craig (1941) 17 Cal.2d 453 [110 P.2d 403] [rape and statutory rape] ; People v. Pater (1968) 267 Cal.App.2d 921 [73 Cal.Rptr. 823] [grand theft—auto and driving vehicle without owner’s consent].) Unfortunately, these formulae are of only limited utility in the instant ease, and we therefore begin anew with a direct analysis of the statute and its application to the facts before us.¹

To put petitioner’s entire adventure into a few words: he drove his car with an invalid license and while intoxicated. Initially, it is temptingly easy to extract, as petitioner urges us to do, the single act of “driving,” obviously common to both of the charged offenses, and to apply section 654 to this ease on the theory that “driving” was petitioner’s only “act or omission.” However, to do so would be no more justified than to extract the act of “possession” from a charge of possessing two different items of contraband, an approach long rejected by our courts. (E.g., People v. Schroeder (1968) 264 Cal.App.2d 217, 227-228 [70 Cal.Rptr. 491] [multiple punishment for simultaneous possession of various narcotic drugs, not precluded by section 654]; People v. Lockwood (1967) 253 Cal.App.2d 75, 82-83 [61 Cal.Rptr. 131] [same]; People v. Lopez (1959) 169 Cal.App.2d 344, 350-351 [337 P.2d 570] [same]; People v. Mandell (1949) 90 Cal.App.2d 93, 98-99 [202 P.2d 348] [same]; People v. Wasley (1966) 245 Cal.App.2d 383 [53 Cal.Rptr. 877] [possession of different illegal weapons]; cf. People v. Schroeder, supra, 264 Cal.App.2d at pp. 228-229 [possession of single narcotic a single offense]; People v. Branch (1953) 119 Cal.App.2d 490 [260 ] [possession and sale of same narcotic].) We cannot overlook the crucial element: section 654 refers not to any physical act or omission which might perchance be common to all of a defendant’s violations, but to a defendant’s criminal acts or omissions. (See, e.g., In re Johnson (1966) 65 Cal.2d 393, 395 [54 Cal.Rptr. 873, 420 P.2d 393]; People v. Quinn (1964) 61 Cal.2d 551, 555 [39 Cal.Rptr. 393, 393 P.2d 705]; People v. Brown (1958) supra, 49 Cal.2d 577, 590; People v. Branch, supra, 119 Cal.App.2d at p. 496.)² Indeed, section 654 itself makes this distinction evident, since it refers to an act or omission “made punishable” by different statutes.³ The neutral act of driving, like the mere act of possession in the foregoing cases, when viewed in a vacuum, is not ‘1 made punishable ’ ’ by any statute.

• The proper approach, therefore, is to isolate the various criminal acts involved, and then to examine only those acts for identity. In the instant case the two criminal acts are (1) driving with a suspended license and (2) driving while intoxicated; they are in no sense identical or equivalent. Petitioner is not being punished twice—because he cannot be punished at all—for the “act of driving.” He is being penalized once for his act of driving with an invalid license and once for his independent act of driving while intoxicated.⁴

Moreover, we must not confuse simultaneity with identity: in both of the above situations—driving as in this case and possession of contraband in the cited eases—the defendant committed two simultaneous criminal acts, which coincidentally had in common an identical noncriminal act. The two simultaneous criminal acts of possessing substance X and possessing substance Y share the common, “neutral” act of possessing, just as they necessarily share the common factor of lack of a valid prescription for the drugs. Likewise, the two simultaneous—but distinct—criminal acts of driving with a suspended license and driving while intoxicated share the common, noncriminal act of driving.⁵ On the date in question petitioner’s act of driving was criminal and simultaneously-violated two statutes because and only because of the presence of both, the unrelated accompanying acts of voluntary intoxication and knowing possession of a suspended license. Similarly, for example, if an individual went for a walk in possession of a loaded gun while he was intoxicated and unclothed, he would by the single neutral act of walking—or, more accurately, being in a “public place”—simultaneously violate three separate and unrelated statutes. (Pen. Code, §§12031, subd. (a) ; 647, subd. (f); 314.)⁶ Those three statutes, however, would be violated not by the one noneriminal act of -being in a public place but necessarily by three simultaneous though separate criminal acts. Once again, we must distinguish identical noncriminal acts from simultaneous criminal acts ‘1 made punishable ’ ’ by law.⁷

In attempting to equate simultaneity with identity, peti-. tioner argues that “There was no evidence his driving without a, license preceded the commencement of the driving while under the influence. ’ ’ Thus if petitioner had begun driving while intoxicated at 11:50 p.m., and at midnight his license had expired but he had continued to drive, he apparently would concede that he could be punished for the two distinct acts of driving while intoxicated (before midnight) and driving with an expired license (after midnight). This arbitrary and wholly artificial distinction is unpersuasive. While separation in time may, in some contexts, make the legal separation of acts more apparent (see, e.g.. In re Ward (1966) supra, 64 Cal.2d 672, 678; Seiterle v. Superior Court (1962) 57 Cal.2d 397, 401-403 [20 Cal.Rptr. 1, 369 P.2d 697]; People v. Howell (1966) 245 Cal.App.2d 787, 792 [54 Cal.Rptr. 92]), the converse does not necessarily follow. Proximity in time between criminal events does not preclude multiple punishment (People v. Slobodion (1948) 31 Cal.2d 555 [191 P.2d 1]); and petitioner’s acts were neither more nor less multiple because of the fortuitous fact that they were completely, rather than only partly, simultaneous. (People v. Wasley (1966) supra, 245 Cal.App.2d 383, 387.)⁸

Nor can we subscribe to a contention that because petitioner may have had only one “intent and objective”—driving— when he committed the two violations, he comes within the ambit of the test established in Neal v. State of California (1960) supra, 55 Cal.2d 11. In Neal, the defendant had attempted murder by means of arson (burning down the victims’ house by igniting gasoline therein). We viewed that circumstance as an indivisible “course of criminal conduct,” the criminal act of arson being only the means toward an ultimate criminal objective of murder. We stated that where there was only a single “intent and objective” involved in such a course of criminal conduct, section 654 precluded multiple punishment.

Here neither of the two violations can realistically be viewed as a “means” toward the other and as such a part of a single course of criminal conduct, in the sense that the arson in Neal was committed not to burn property but only as a means toward the single objective of murder. Moreover, the petitioner’s intent and objective to drive from one place to another is no more relevant to our analysis than what he intended to do when he arrived there. (See In re Ward (1966) supra, 64 Cal.2d 672, 676.) Just as it is the criminal “act or omission” to which section 654 refers, it is the criminal “intent and objective” that we established as the test in Neal. (E.g., In re Johnson (1966) supra, 65 Cal.2d 393, 395 [intent to sell heroin]; In re Ward (1966) supra, 64 Cal.2d 672, 676 [intent to rob].) In Neal we found to be crucial not the defendant’s possible intent and objective to acquire money, to gain revenge or to ignite gasoline, but only his intent and objective to commit murder.⁹ Although the absence of a single intent and objective does not necessarily preclude application of section 654 (see fn. 1 ante), it is clear that under the instant circumstances this test of Neal cannot be of aid to defendant.

Petitioner relies heavily upon People v. Morris (1965) 237 Cal.App.2d 773 [47 Cal.Rptr. 253], which in a similar factual situation declared that section 654 proscribed multiple prosecutions for drunk driving and an invalid license. ¹⁰ As we pointed out in Neal, however, “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.” (Italics added.) Neal v. State of California (1960) supra, 55 Cal.2d 11, 21.) Therefore we need not reexamine at this time the validity of the conclusions in Morris as to multiple prosecutions, other than to observe that they are disapproved to the extent they might relate to a multiple punishment problem.¹¹

In summation, then, section 654 of the Penal Code proscribes multiple punishment for a single “act or omission which is made punishable” by different statutes, i.e., a single criminal act or omission. Since the mere act of driving is made punishable by no statute, it is not the type of act or omission referred to in section 654. The acts “made punishable” which this petitioner committed were (1) driving with a suspended license and (2) driving while intoxicated, two separate and distinct criminal acts; that they were committed simultaneously and that they share in common the neutral noncriminal act of driving does not render petitioner’s punishment for both crimes in conflict with Penal Code section 654.

The order to show cause is discharged, and the petition for writ of habeas corpus is denied.

McComb, J., Peters, J., and Burke, J., concurred.

1 Our analysis herein is in no way intended to preclude application of the above tests where appropriate, any more than those tests themselves are mutually exclusive. It is only because we find all the fbregoing formulae inapplicable that we resort to the present approach. If under any of the enunciated tests the proscription of section 654 applies, a contrary result under another test is irrelevant.

2 The language in Johnson is typical: ‘ ‘ The basic principle that forbids multiple punishment for one criminal act [citations] precludes infliction of more than one punishment for [a] series of acts directed toward one criminal objective. ...” (Italics added.) (65 Cal.2d at p. 395 (per Traynor, C. J.).)

3 Compare former section 1938 of the New York Penal Law, referred to in Neal as “identical with” section 654, which uses the specific language, “An act or omission which is made criminal and punishable. . . (Italics added.)

4 On the other hand, the single criminal act of driving with knowledge of an invalid license is arguably “made punishable” by both Vehicle Code section 14601 (driving with a suspended or revoked license) and Vehicle Code section 12500 (unlicensed driving) ; and section 654 would therefore preclude multiple punishment under both sections.

5 As a further illustration of the analogy: Petitioner could be said to have driven in possession óf a suspended license and in “possession” (in his system) of intoxicating liquor. Again, possession is the neutral or noncriminal identical factor; but the criminal acts are distinctive.

6 Petitioner attaches significance to the fact that driving was an essential element in both of his offenses, citing a statement first made in In re Chapman (1954) 43 Cal.2d 385, 390 [273 P.2d 817]: “It is only when the two offenses are committed by the same act or when that act is essential to both that they may not both be punished.” (Italics added.) Aside from the dubious vitality of this dictum (see People v. Collins (1963) 220 Cal.App.2d 563, 579 [33 Cal.Rptr. 638]), “essentiality” in and of itself was and is not a sufficient test of the applicability of section 654. On closer scrutiny, in fact, the quoted statement itself presupposes the existence of a single (“same”) act; and we have, seen that the only single acts that are relevant for purposes of section 654 are criminal acts. In the example suggested above, none of the hypothetical acts is a crime if committed in private; thus being or walking in a public place, like driving in the instant case or like possession and lack of a prescription in the narcotics example, is a necessary element in all three crimes. Yet this fact does not make those neutral elements in themselves punishable or criminal, for none is by itself a complete criminal act. Thus the fortuitous identity of ‘ ‘ essential ’ ’ neutral elements remains irrelevant for our purposes.

7 To the possession and driving examples might well be added the cases which permit multiple punishment where a single criminal act has more than one victim. (See Neal v. State of California (1960) supra, 55 Cal.2d 11, 20-21, and cases therein cited.) There might, for example, be one common act of shooting a gun, but distinct criminal acts of killing victim X and killing victim Y. However, as we indicated in Neal, this particular test takes in additional considerations, such as degree of culpability, which might be inappropriate to apply in other contexts.

8 The Attorney General, in apparent answer to petitioner’s argument, has made a belated attempt to establish that petitioner may have been observed by the arresting officer at two different times, so that technically the offenses charged were not “simultaneous.” It is just such strained rationale that a test dependent on simultaneity would engender. As stated in People v. Pater (1968) supra, 267 Cal.App.2d 921, 926, a “necessarily included offense” case, “Neither clocks, calendars nor county boundaries convert one continuing course of conduct into a series of criminal acts.”

9 Thus had the defendant there had the completely independent criminal objectives of murder (perhaps for vengeance) and burning the house (to collect fire insurance), or had he attempted to kill his victims with a gun and then set fire to their house as an afterthought, he would have been punishable for both arson and attempted murder. (See People v. Massie (1967) 66 Cal.2d 899, 908 [59 Cal.Rptr. 733, 428 P.2d 869]; Seiterle v. Superior Court (1962) supra, 57 Cal.2d 397, 401.)

10 A majority of the Morris court, given substantially the same argument presented to us, rejected the “criminal act” definition for section 654 and appeared to apply the Chapman test of “ essentiality. ’ ’ (But see dissent by Whelan, J., id., p. 777.)

11 We note that even where the issue is multiple prosecution, the provisions of section 654 cannot be employed to mislead the court. Thus if a greater violation is concealed in order to gain “immunity” by prosecution for a lesser crime, section 654 will not apply. (Kellett v. Superior Court (1966) 63 Cal.2d 822, 827-828 [48 Cal.Rptr. 366, 409 P.2d 206]; Gail v. Municipal Court (1967) 251 Cal.App.2d 1005 [66 Cal.Rptr. 91]; Hampton v. Municipal Court (1966) 242 Cal.App.2d 689 [51 Cal.Rptr. 760].)