People v. Wasley

11 Cal. App. 3d 121, 89 Cal. Rptr. 418, 1970 Cal. App. LEXIS 1716

• Court: California Court of Appeal
• Decided: September 4, 1970
• Docket: Crim. 5540
• Status: Published

Opinions

Opinion

PIERCE, P. J.

An information was filed charging defendant with violation of Penal Code section 12021 (possession of a firearm by a convict). He had previously been charged and acquitted on a charge of armed robbery. His assignment of error is multiple prosecution under Penal Code section 654. The contention is sound. Following are the facts: A service station was robbed. The operator phoned the California Highway Patrol and described the miscreants and their getaway vehicle. A radio call was broadcast. Three highway patrolmen who received it observed a vehicle answering the description. Defendant was driving the car. With him were two companions. The officers found a .22 caliber revolver in the car. Five shells fitting the revolver were found on defendant’s person. Money allegedly stolen from the service station was found hidden in the car. The three were charged with armed robbery. All pleaded not guilty. Defendant was charged with four prior convictions—one in New Mexico in 1952; a second in 1955 for grand theft in Nevada County, California; a third in 1961 also in Nevada County, for issuance of checks with insufficient funds; and a fourth in 1965 in the City and County of San Francisco for possession of a deadly weapon. The two codefendants withdrew their not guilty pleas and were sentenced. Defendant was tried. During the trial evidence established that the revolver had been bought from a pawnbroker in Reno. The prior convictions were established. Defendant was acquitted.

Thereafter the prosecutor tried again—for the Penal Code section 12021 violation. After his motion for dismissal was denied, grounded upon “multiple prosecution,” he was convicted the second time around.

Kellett v. Superior Court (1966) 63 Cal.2d 822, 824 [48 Cal.Rptr. 366, 409 P.2d 206], is controlling. There police officers found petitioner standing on a public sidewalk brandishing a firearm. He was charged in the municipal court with, and pleaded guilty to, a misdemeanor charge of violation of Penal Code section 417. Thereafter he was charged by information in the superior court with committing a felony in violation of Penal Code section 12021. Our Supreme Court issued a writ of prohibition to prevent his trial. The court pointed out that Penal Code section 654 relates to two matters forbidding (1) double punishment and (2) double prosecution. The two do not necessarily rest upon the same rationale. Double punishment occurs “[i]f only a single act or an indivisible course of criminal conduct is charged as the basis for a conviction. . . .” (Id. p. 824.) In Kellett the Attorney General had sought to distinguish that quoted rule by urging that it had been reasonable to infer that “petitioner possessed the pistol for some time before exhibiting it.” But the court stated that the rule prohibiting double prosecution had been enacted for quite different reasons: (1) as a procedural safeguard to the accused against harassment, and (2) to protect the “public fisc” against successive prosecutions. Neal v. State of California (1961) 55 Cal.2d 11, 21 [9 Cal.Rptr. 607, 357 P.2d 839], was cited as the basic case authority, and the court quoting therefrom said (on p. 825): “ ‘Section 654’s preclusion of multiple prosecution is separate and distinct from its preclusion of multiple punishment. [The former] ... is not necessarily related to the punishment to be imposed; double prosecution may be precluded even when double punishment is permissible.3 ” The distinction is illustrated by the case of a single act of violence (such as blowing up an airplane) killing many persons where they may be multiple punishment but not necessarily successive prosecutions. The court adds that when “the prosecution is or should be aware of more than one offense in which the same act or course of conduct plays a significant part, all such offenses must be prosecuted in a single proceeding unless joinder is prohibited or severance permitted for good cause. Failure to unite all such offenses will result in a bar to subsequent prosecution of any offense omitted . . . .” (Id. p. 827.)

Perhaps when the information was filed, severance was justified due to the presence in the robbery prosecution of several codefendants. After the plea of guilty of the latter that excuse no longer existed. The prosecutor here, as in Kellett, knew every fact necessary to prosecute Wasley under section 12021 at the same time he prosecuted him for robbery.

The Attorney General relied upon People v. Houghton (1963) 212 Cal.App.2d 864 [28 Cal.Rptr. 351], a decision by this court. It is not in point. It was a “double punishment” case which, as has been stated, is tested by the single, indivisible transaction test.

We do not read either Kellett, supra, or Neal, supra, as giving previously convicted felons immunity from all possibility of separate prosecution for carrying concealable weapons after a conviction or acquittal in an armed robbery prosecution. (People v. Warren (1940) 16 Cal.2d 103 [104 P.2d 1024].) This case is restricted to its facts.

Judgment is reversed.

Janes, J., concurred.