Adams v. Heinze

• Decision Date: 25 June 1962
• Citation: 22 Cal.Rptr. 814,205 Cal.App.2d 53
• Parties: Frank ADAMS, Petitioner, v. Robert A. HEINZE, Warden of Folsom State Prison, et al., Respondents. Civ. 10518.
• Court: California Court of Appeals Court of Appeals

Page 814

22 Cal.Rptr. 814

205 Cal.App.2d 53

Frank ADAMS, Petitioner, v. Robert A. HEINZE, Warden of Folsom State Prison, et al., Respondents.

Civ. 10518.

District Court of Appeal, Third District, California.

June 25, 1962.

Frank Adams, petitioner, in pro. per.

Stanley Mosk, Atty. Gen., by Nat Agliano, Deputy Atty. Gen., Sacramento, for respondent.

SCHOTTKY, Justice.

Frank Adams, as inmate of Folsom Prison, seeks a writ for the purpose of vacating one of two sentences he is now serving. The petition, though labeled mandate, will be treated as one for habeas corpus which is the proper remedy to review the question whether the court exceeded its jurisdiction in imposing sentence on both counts. (Neal v. State of California, 55 Cal.2d 11, 9 Cal.Rptr. 607, 357 P.2d 839.)

The facts as conceded by the attorney general disclose: Woodrow Fleming was employed as a janitor at the Mayfair Market. On August 22, 1958, he went to work as usual. At approximately 2:45 a. m., as he was cleaning the store, he heard a voice say, 'Come to me, pal.' Looking up, Fleming saw petitioner a short distance away holding a gun in his hand. After a brief hesitation, Fleming approached petitioner as ordered. Petitioner said, 'Let's go upstairs,' and he marched Fleming up the stairs. Arriving at the second-floor landing, petitioner said, 'Turn left; go to the office.' At the office door he told Fleming to lie down. Petitioner then unlocked the office door and told Fleming to get up and enter the office. When Fleming entered he was again ordered to lie on the floor.

The office door had automatically closed after the entered. Petitioner went over to Fleming and asked him how to open the door from the inside, and particularly so the alarm would not go off. Fleming told him that he had to press a button. Petitioner then ordered Fleming to go to the door with him so they could try it. Fleming obeyed, and when the door was opened petitioner ordered Fleming back to where he had been lying on the floor. Fleming obeyed this order also.

Petitioner then took a handkerchief out of Fleming's right back pocket and went toward the office safe. In a few minutes Fleming heard the buzzer go off and petitioner running down the stairs and presumably out of the building. The safe was now open and the money which it had contained was missing.

Petitioner contends that his conviction and sentence for the crime of kidnapping for the purpose of robbery and for robbery constitute double punishment in violation of section 654 of [205 Cal.App.2d 55] the Penal Code. We have concluded that this contention must be sustained.

As stated in Neal v. State of California, 55 Cal.2d 11, at page 19, 9 Cal.Rptr. 607, at page 611, 357 P.2d 839, at page 843: 'Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.'

A study of the record convinces us that the kidnapping was a mere incident of the robbery and not separate therefrom. The kidnapping for the purpose of robbery sentence, the more serious of the two offenses for which Adams was sentenced, is the only one for which Adams may be punished. The robbery conviction must be set aside. (People v. Velarde, 201 A.C.A. 291, 19 Cal.Rptr. 832.)

And paraphrasing the statement of Mr. Justice Pierce of this court in Downs v. State of California, 202 A.C.A. 666, 20 Cal.Rptr. 922, the record here compels a conclusion that the plan was...