People v. Morris

237 Cal. App. 2d 773, 47 Cal. Rptr. 253, 1965 Cal. App. LEXIS 1318

• Court: California Court of Appeal
• Decided: October 29, 1965
• Docket: Crim. 2344
• Status: Published

Opinions

COUGHLIN, J.

The defendant was charged with violating section 23102, subdivision (a), of the Vehicle Code, i.e., driving a motor vehicle while under the influence of intoxicating liquor; in propria persona, entered a plea of guilty; and was sentenced. Pour days later she was charged with violating section 14601 of the Vehicle Code, i.e., driving a motor vehicle at a time when her operator’s license had been revoked; thereafter, in propria persona, entered a plea of guilty; and was sentenced to imprisonment in the county jail. Each of the foregoing offenses was based on the same motor vehicle operation occasion. Three days after imposition of sentence in the later case, through an attorney, defendant moved the court to set aside the judgment therein on the ground that its prosecution was proscribed by section 654 of the Penal Code, for which reason the court lacked jurisdiction in the premises. The motion was denied. Defendant appealed to the Superior Court of Orange County; posted bail; and was released. That court reversed the judgment, but certified the case to this court for hearing and decision. (Cal. Rules of Court, rule 63.) Thereupon, we ordered such a transfer. (Cal. Rules of Court, rule 62.)

It is proper to note at this juncture that, although the appeal was from a judgment on a plea of guilty, as the irregularity of which the defendant complains goes to the legality of the proceedings before the trial court and she sought relief from such in that court the matter properly may be considered by this court. (Stephens v. Toomey, 51 Cal.2d 864, 870 [338 P.2d 182]; People v. Natividad, 222 Cal.App.2d 438, 440 [35 Cal.Rptr. 237]; People v. Mistretta, 221 Cal.App.2d 42, 43 [34 Cal.Rptr. 365]; People v. Rosenberg, 212 Cal.App.2d 773, 775 [28 Cal.Rptr. 214].)

The provisions of section 654 of the Penal Code proscribe multiple prosecutions for criminal offenses based upon the same act (Neal v. State of California, 55 Cal.2d 11, 21 [9 Cal.Rptr. 607, 357 P.2d 839]), and apply not only to offenses described in that code but also to those described in the Vehicle Code. (People v. Young, 224 Cal.App.2d 420, 424 [36 Cal.Rptr. 672]; see also People v. Brown, 49 Cal.2d 577, 591, fn. 4 [320 P.2d 5]; People v. Manago, 230 Cal.App.2d 645, 647 [41 Cal.Rptr. 260].)

The offenses included within the proscription are those which arise out of a single “act” in the ordinary sense of that term (People v. Brown, supra, 49 Cal.2d 577, 591; People v. Manago, supra, 230 Cal.App.2d 645, 647), and also those which arise out of a course of conduct of such a nature as to amount to a single act, viz., which does not consist of divisible transactions. (People v. Brown, supra, 49 Cal.2d 577, 591; People v. Manago, supra, 230 Cal.App.2d 645, 647; People v. Stoltz, 196 Cal.App.2d 258, 264 [16 Cal.Rptr. 285].)

Where a single physical act constituting an essential element of two or more offenses allegedly is committed by an accused, the prosecution thereof is limited to a single proceeding. (People v. Brown, supra, 49 Cal.2d 577, 590; In re Chapman, 43 Cal.2d 385, 389 [273 P.2d 817]; People v. Logan, 41 Cal.2d 279, 290 [260 P.2d 20]; People v. Knowles, 35 Cal.2d 175,188 [217 P.2d 1]; People v. Greer, 30 Cal.2d 589, 603-604 [184 P.2d 512]; People v. Rainey, 224 Cal.App.2d 93, 101-102 [36 Cal.Rptr. 291]; People v. Emory, 192 Cal.App.2d 814, 826-827 [13 Cal.Rptr. 889].)

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 the case at bench the People relied upon a single act of driving a.motor vehicle in support of their dual prosecutions. The .charges which were the basis for those prosecutions rested upon the defendant’s identical act of operating a motor vehicle at a particular time- and place.

The People contend that the “act” referred to in section 654 is a “criminal act”; -that the act of driving an automobile is not criminal; and for this reason section 654 does not apply to the instant case. Neither the statute nor. the decisions applying such justify such an interpretation. Of particular note are the many decisions applying section . 654 where the act under consideration, of itself, was -not criminal but became such only because of the status of the alleged victim (People v. Greer, supra, 30 Cal.2d 589, 601, 603), the condemned purpose of the act (People v. Brown, supra, 49 Cal.2d 577, 590; People v. Emory, supra, 192 Cal.App.2d 814, 826-827), or the intent of the actor, e.g., to defraud (People v. Martin, 208 Cal.App.2d 867, 876 [25 Cal.Rptr. 610]). In reality, the argument in support of the People’s contention is directed to the proposition, that the circumstances at hand support the conclusion defendant was chargeable with separate offenses. The fact that, the operation of an automobile while under the influence of in--, toxicating 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 offenses arise out of one automobile operation occasion, the act of the operator which is an additional factor essential to each offense also is separate. 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; People v. Martin, supra, 208 Cal.App.2d 867, 877.)

The purpose of the statute proscribing multiple prosecutions “is a procedural safeguard against harassment.. . . .” (Neal v. State of California, supra, 55 Cal.2d 11; 21 [9 Cal.Rptr. 607, 357 P.2d 839].) This purpose is particularly served in a case such as the one at bench where a defendant, in propria persona, pleads guilty to a traffic offense; is sentenced ; and thereafter is required to respond to a second prosecution for an additional offense arising out of the same case which was the basis for the first prosecution. . .

The judgment is reversed and the trial court is directed to dismiss the case and exonerate defendant’s bail..

Brown (Gerald), P. J., concurred.