55 Cal.2d 11, 7090, Neal v. State

Docket Nº:7090
Citation:55 Cal.2d 11, 9 Cal.Rptr. 607, 357 P.2d 839
Opinion Judge:[10] Traynor
Party Name:Neal v. State
Attorney:[7] William H. Abbott, under appointment by the Supreme Court, for Petitioner. Additional briefs were filed by the Petitioner pro se. [8] Stanley Mosk, Attorney General, Doris H. Maier and Raymond M. Momboisse, Deputy Attorneys General, for Respondents.
Case Date:December 13, 1960
Court:Supreme Court of California

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55 Cal.2d 11

9 Cal.Rptr. 607, 357 P.2d 839

Homer NEAL, Petitioner,

v.

STATE of California et al., Respondents.

Sac. 7090.

Supreme Court of California

Dec. 13, 1960.

In Bank

Rehearing Denied Jan. 10, 1961.

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William H. Abbott, Lafayette, under appointment by the Supreme Court for petitioner.

Stanley Mosk, Atty. Gen., Doris H. Maier and Raymond M. Momboisse, Deputy Attys. Gen., for respondents.

TRAYNOR, Justice.

On June 4, 1949, petitioner threw gasoline into the bedroom of Mr. and Mrs. Theodore R. Raymond and ignited it. The Raymonds were severely burned. Petitioner was tried and convicted on two counts of attempted murder and one count of arson, and the trial court ordered that the sentences for the two counts of attempted murder run consecutively. On appeal the court held that the convictions were supported by sufficient evidence and that no reversible error was committed during the trial on the issue of guilt. Owing to the admission of incompetent evidence on the question of sentencing, however, the cause was remanded for a redetermination of the question whether the sentence for the second attempted murder should run consecutively or concurrently. People v. Neal, 97 Cal.App.2d 668. On August 9, 1950 the trial court again ordered that the two attempted murder sentences run consecutively. No further appeal was taken.

Petitioner now seeks a writ of mandamus to order the Adult Authority to fix the time when he may be released from prison. He contends that subdivision (1) of Penal Code section 664 provides a maximum sentence of ten years for attempted murder and that his convictions on a second count of attempted murder and on a count of arson were invalid on the ground that they punished him three times for a single act in violation of Penal Code section 654.

Before we reach the merits of petitioner's contentions we must first determine whether they can be raised, now that the judgment of conviction has become final.

Mandamus will not ordinarily lie to correct an error in a final and appealable judgment. O'Neill v. Reynolds, 116 Cal. 264, 266; Andrews v. Police Court, 21

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Cal.2d 479, 480, 145 A.L.R. 1042. Although a writ of mandamus may issue to vacate a judgment entered by a court that lacked jurisdiction, a motion to vacate such judgment must first be made in the court that entered the judgment, and a denial of such motion must be appealed in the regular manner. Andrews v. Superior Court, 29 Cal.2d 208, 214; see Phelan v. Superior Court, 35 Cal.2d 363, 372.

The proper remedy, if any, is habeas corpus. If the facts justify this remedy it is immaterial that petitioner had prayed for an inappropriate one. Owens v. Superior Court, 52 Cal.2d 822, 827; see 3 Witkin, California Procedure, pp. 2568-2569. Accordingly, we treat this petition as one for a writ of habeas corpus.

The petitioner's attack on the multiple sentences is a collateral attack on the judgment. Subdivision (1) of Penal Code section 1487 limits the review of erroneous judgments by habeas corpus to cases in which the conviction and sentence imposed were in excess of the jurisdiction of the court. The crucial question, therefore, is whether the court acts in excess of its jurisdiction by imposing multiple sentences contrary to Penal Code section 654.

The word jurisdiction is not limited to its conventional meaning of jurisdiction of the cause or the parties when the right to review a decision by a prerogative writ is the question for decision. Fortenbury v. Superior Court, 16 Cal.2d 405, 407; see In re Bell, 19 Cal.2d 488, 494. 'A court may have jurisdiction of the cause of action and of the parties, but may lack the authority or power to act in the case except in a particular way. Under such circumstances, it is now generally held that the court had no jurisdiction.' Fortenbury v. Superior Court, supra, 16 Cal.2d at pages 407-408, 106 P.2d at page 412. Thus, the writ of habeas corpus has issued when the defendant was erroneously sentenced to an indeterminate rather than a fixed term (In re Lee, 177 Cal. 690, 694), and we have stated that the writ lies when the trial court has sentenced a defendant to a term in excess of the maximum provided by law. See In re McInturff, 37 Cal.2d 876, 880; In re Morck, 180 Cal. 384.

Habeas corpus, however, cannot serve as a substitute for appeal to review a determination of fact made on conflicting evidence. In re Dixon, 41 Cal.2d 756, 760; In re McInturff, 37 Cal.2d 876, 880; In re

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Lindley, 29 Cal.2d 709, 722; In re Connor, 16 Cal.2d 701, 705-706. Nor will the writ lie to review a decision of a trial court that had discretion to follow different courses of action. The writ will issue, however, to review an invalid sentence, when, without the redetermination of any facts, the judgment may be corrected to 'accord with the only other possible determination in the circumstances.' In re McInturff, supra, 37 Cal.2d at page 881, 236 P.2d at page 577.

The Attorney General contends, however, that the question whether a person has been made to suffer double punishment for a single act is a question of fact and therefore habeas corpus will not lie. He invokes In re Chapman, 43 Cal.2d 385, 390, 820 where the court stated: 'Whether the evidence accepted by the trier of fact shows petitioner guilty of one crime or of two is in part a factual question. 'It is, of course, an established rule that habeas corpus may not be used instead of an appeal to review determinations of fact made upon conflicting evidence after a fair trial. (Citations.) Likewise, the writ is not available to correct errors or irregularities relating to ascertainment of the facts when such errors could and should have been raised on appeal. (Citations.)''

On the record herein we are not required to review determinations of fact made upon conflicting evidence or to correct errors or irregularities relating to ascertainment of the facts. The return to the order to show cause does not take issue with petitioner's statement of facts. The recital of facts by both parties, apparently taken from the statement of facts in People v. Neal, 97 Cal.App.2d 668, 669-672, discloses only a single course of criminal conduct involving the commission of three offenses, motivated by petitioner's determination to kill Mr. and Mrs. Raymond because he believed Mr. Raymond had alienated the affections of his wife. Our own examination of the trial transcript discloses nothing to the contrary. Unlike In re Chapman, supra, this is not a case, therefore, where the court in proceeding to punish for all three convictions could be said to have rested its determination upon conflicting evidence. The applicability of a statute to conceded facts is a question of law. Nelson v. Montgomery Ward & Co., 312 U.S. 373, 376, 61 S.Ct. 593, 85 L.Ed. 897; Estate of Madison, 26 Cal.2d 453, 456.

Since the facts in the instant case are undisputed and the only question as to the issue of multiple punishment is the applicability of Penal Code section 654, habeas corpus is a proper remedy to review that issue.

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Habeas corpus is also a proper remedy to review the issue whether the Adult Authority has misinterpreted subdivision (1) of Penal Code section 664 and is therefore confining petitioner in excess of the time allowed by law. Pen.Code, § 1487, subd. 2. Even if the petitioner is not entitled to his immediate release, an alleged misinterpretation by the Adult Authority of the maximum sentence under which a prisoner is serving is reviewable by habeas corpus, since it would affect the Adult Authority's fixing of the prisoner's indefinite sentence and his eligibility for parole. See In re Chapman, 43 Cal.2d 385, 387; People v. Kehoe, 33 Cal.2d 711, 716; People v. Craig, 17 Cal.2d 453, 458-459.

We therefore reach the merits. Petitioner's conviction of one count of arson and two counts of attempted murder rest upon defendant's act of throwing gasoline into the bedroom of Mr. and Mrs. Raymond and igniting it. Punishment for two offenses arising from the same act is prohibited by the constitutional and common law rule against multiple punishment for necessarily included offenses (People v. Kehoe, 33 Cal.2d 711, 713, 322) and by Penal Code section 654, which provides that 'an act or omission which is made punishable in different ways by different provisions of this code may be punishable under either of such provisions, but in no case can it be punished under more than one.' 1

None of Neal's convictions is for a necessarily included offense. 'Where an offense cannot be committed without necessarily committing another offense, the latter is a necessarily included offense.' People v. Greer, 30 Cal.2d 589, 596, 516. Arson can be committed without attempting a murder, and the attempted murder of Mr. Raymond could have been committed without attempting to murder Mrs. Raymond.

The proscription of section 654 against multiple punishment of a single act, however, is not limited to necessarily included offenses. People v. Logan, 41 Cal.2d 279, 290; People v. Knowles, 35 Cal.2d 175, 187; People v. Kynette, 15 Cal.2d 731, 761-762, 104 P.2d

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794; accord: People v. Repola, 280 A.D. 735, 281 A.D. 679, 117 N.Y.S.2d 283, 288, affirmed 305 N.Y. 740, 113 N.E.2d 42; People v. Savarese, Co.Ct., 114 N.Y.S.2d 816, 835-836; see People v. Snyder, 241 N.Y. 81, 83, 148 N.E. 796 (interpreting N.Y. Penal Law, Consol.Laws, c. 40 § 1938, which is identical with Cal.Pen.Code § 654). In People v. Knowles, 35 Cal.2d 175, 187, 8, we stated: 'If a course of criminal conduct causes the commission of more than one offense, each of which can be committed without...

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