Adams, In re

• Decision Date: 23 June 1975
• Docket Number: Cr. 17993
• Citation: 536 P.2d 473,122 Cal.Rptr. 73,14 Cal.3d 629
• Parties: , 536 P.2d 473 In re James Edward ADAMS, Jr., on Habeas Corpus.
• Court: California Supreme Court

Page 73

122 Cal.Rptr. 73

14 Cal.3d 629, 536 P.2d 473

In re James Edward ADAMS, Jr., on Habeas Corpus.

Cr. 17993.

Supreme Court of California, In Bank.

June 23, 1975.

James Edward Adams, Jr., in pro. per., and Joe Reichmann, Beverly Hills, under appointment by the Supreme Court, for petitioner.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., Edward T. Fogel, Jr., and Juliet H. Swoboda, Deputy Attys. Gen., for respondents.

RICHARDSON, Justice.

In this case, we consider whether the statutory proscription against multiple punishment (Pen.Code, § 654) applies to the simultaneous transportation of different kinds of illegal narcotics and drugs. We have concluded that where, as in the instant case, different kinds of drugs are simultaneously transported in one, indivisible transaction, with the single intent and objective of delivering them to another person, only one act of illegal transportation occurs. It follows that petitioner Adams' multiple count sentences must be modified as set forth below.

On February 17, 1970, Smith, a state narcotics agent, had under surveillance the Redondo Sea Inn, the temporary residence of petitioner's codefendant, Gregory. About 7 p.m. Smith observed petitioner drive into the inn's parking lot, park his car next to Gregory's car, and enter the inn. Twenty minutes later, petitioner and Gregory left the inn, opened the trunks of their cars and transferred an attache case and numerous plastic bags from petitioner's car to Gregory's car. Later that same evening Gregory met with Miller, an undercover narcotics agent, to complete a previously arranged sale of 30,000 amphetamine (benzedrine) pills to Miller. Once the sale was consummated, Miller arrested Gregory and searched his car, discovering additional quantities of benzedrine, seconal, marijuana, heroin and pantopon (a form of opium). All of these drugs had been delivered by petitioner to Gregory under the observation of Smith.

Petitioner was convicted, following a nonjury trial, of one count of selling benzedrine (former Health & Saf.Code, § 11912, now § 11379) and five separate transportation counts involving seconal (former Health & Saf.Code, § 11912, now § 11379), benzedrine (same), marijuana (former Health & Saf.Code, § 11531, now § 11360), heroin (former Health & Saf.Code, § 11501, now § 11352), and pantopon (same). For sentencing purposes the trial court grouped the three counts under section 11912 (sale of benzedrine and transportation of seconal and benzedrine) and made their sentences run concurrently. The court further grouped and made concurrent the sentences on the three transportation counts (marijuana, heroin and pantopon). The concurrent sentences for each of these two groups were then ordered to run consecutively.

In this habeas corpus proceeding, petitioner first contends that Penal Code section 654 invalidates his conviction for five separate counts of transporting drugs, since the act of transportation constituted a single course of conduct accompanied by a single intent and objective. Habeas corpus is an appropriate remedy to correct sentences which are invalid or excessive under section 654. (Neal v. State of California, 55 Cal.2d 11, 17, 9 Cal.Rptr. 607, 357 P.2d 839.)

Penal Code section 654 provides in pertinent part that '(a)n 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.' We have held that this section's reference to 'provisions of this Code' was not intended to exclude penal provisions found in other statutes such as the Health and Safety Code. (See People v. Brown, 49 Cal.2d 577, 591, fn. 4, 320 P.2d 5.)

Notwithstanding the apparent simplicity of its language, the applicability of section 654 in a particular case often involves a difficult analytical problem. (See Schneider, Penal Code section 654: The Prosecutor's Dilemma (1965--66), 17 Hastings L.J. 53.) Each case must be determined on the basis of its own facts, and general principles applicable to one type of case may not apply to another. We caution that in the instant case we are concerned with the application of section 654 to narcotics offenses only.

If one offense is necessarily included within another offense, section 654 bars punishment for both offenses. (People v. Bauer, 1 Cal.3d 368, 375, 82 Cal.Rptr. 357, 461 P.2d 637.) For example, under some circumstances if a person possesses narcotics which he subsequently sells, the possession offense is necessarily included in the sale and may not be separately punished. (People v. Francis, 71 Cal.2d 66, 73--74, 75 Cal.Rptr. 199, 450 P.2d 591.) However, if a person sells only part of the narcotics he possesses, both the offenses of possession and sale may be punished, since possession of the excess unsold narcotics was not necessary to the sale. (People v. Fusaro, 18 Cal.App.3d 877, 894, 96 Cal.Rptr. 368; People v. Fortier, 10 Cal.App.3d 760, 765--766, 89 Cal.Rptr. 210.) As we explain below, this latter principle would permit punishment of petitioner for the separate offenses of selling benzedrine and transporting benzedrine, as only a portion of the benzedrine transported by petitioner was sold to the agent.

The reach of section 654 is not limited, however, to necessarily included offenses. (People v. Bauer, Supra, 1 Cal.3d 368, 375--376, 82 Cal.Rptr. 357, 461 P.2d 637.) By its terms, the section forbids multiple punishment for the commission of a single 'act' or 'omission.' The 'act' necessary to invoke section 654 need not be an act in the ordinary sense that it is a separate, identifiable, physical incident, but may be 'a course of conduct which violates more than one statute and comprises an indivisible transaction punishable under more than one statute within the meaning of section 654. The divisibility of a course of conduct depends upon the intent and objective of the actor, and if all the offenses are incident to one objective the defendant may be punished for any one of them but not for more than one.' (Id., p. 376, 82 Cal.Rptr. p. 362, 461 P.2d p. 642.) For example, in Bauer, supra, we noted that '. . . the taking of several items during the course of a robbery may not be used to furnish the basis for separate sentences. . . . (Citing In re Ward, 64 Cal.2d 672, 51 Cal.Rptr. 272, 414 P.2d 400, and People v. Quinn, 61 Cal.2d 551, 39 Cal.Rptr. 393, 393 P.2d 705.). These cases make clear that where a defendant robs his victim in one continuous transaction of several items of property, punishment for robbery on the basis of the taking of one of the items and other crimes on the basis of the taking of the other items is not permissible.' (Id., pp. 376--377, 82 Cal.Rptr. p. 362, 461 P.2d p. 642.) We further explained in Bauer that 'the theft of several articles at the same time constitutes but one offense although such articles belong to several different owners. (Citations.)' (Id., p. 378, 82 Cal.Rptr. p. 363, 461 P.2d p. 643.)

On the other hand, if the evidence discloses that a defendant entertained 'multiple criminal objectives which were independent of and not merely incidental to each other, he may be punished for independent violations committed in pursuit of each objective even though the violations shared common acts or were parts of an otherwise indivisible course of conduct.' (People v. Beamon, 8 Cal.3d 625, 639, 105 Cal.Rptr. 681, 690, 504 P.2d 905, 914; In re Hayes, 70 Cal.2d 604, 75 Cal.Rptr. 790, 451 P.2d 430.) For example, in Hayes, we held that section 654 was inapplicable to a defendant who simultaneously committed violations of driving while intoxicated (Veh.Code, § 23102) and driving with knowledge of a suspended license (Veh.Code, § 14601). As we subsequently explained in Beamon, '. . . neither of the Hayes violations, although simultaneously committed, was a means toward the objective of the commission of the other. The objectives, insofar as the criminal conduct was concerned, were deemed by the (Hayes) majority to be to drive while intoxicated and to drive with a suspended license.' (8 Cal.3d at p. 639, 105 Cal.Rptr. at p. 690, 504 P.2d at p. 914.)

From the foregoing there emerges the principal inquiry--was the defendant's criminal objective single or multiple? In the instant case, the evidence discloses that petitioner simultaneously transported a variety of illegal drugs with the single intent and objective of delivering them to codefendant Gregory. Our analysis leads us to the conclusion that it would be reasonable to fragment that single objective into five separate objectives, namely, to transport benzedrine, to transport heroin, to transport second, etc. Instead, the entire transaction should reasonably be viewed as constituting an indivisible course of conduct analogous to the theft of several articles of personal property which, under Bauer, results in the commission of a single punishable offense.

The People rely upon a line of cases which have held that the simultaneous Possession of different types of drugs properly may be multiply punished. (People v. Fusaro, supra, 18 Cal.App.3d 877, 893, 96 Cal.Rptr. 368; People v. Aguirre, 10 Cal.App.3d 884, 893, 89 Cal.Rptr. 384; People v. Schroeder, 264 Cal.App.2d 217, 228, 70 Cal.Rptr. 491; People v. Seaberry, 260 Cal.App.2d 507, 510, 67 Cal.Rptr. 182; People v. Bell, 258 Cal.App.2d 450, 65 Cal.Rptr. 730; People v. Lockwood, 253 Cal.App.2d 75, 61 Cal.Rptr. 131; People v. Lopez, 169 Cal.App.2d 344, 351, 337 P.2d 570; People v. Mandell, 90 Cal.App.2d 93, 98--99, 202 P.2d 348; see In re Hayes, Supra, 70 Cal.2d 604, 606--607, 75 Cal.Rptr. 790, 451 P.2d 430 (citing rule with apparent approval).) The foregoing rule appears to be based upon the rationale that '(t)he act of possession cannot be conceptualized as a single 'act' covering possession of two kinds of illicit drugs.' (Fusaro, 18...