Ex parte Chapman

Citation43 Cal.2d 385,273 P.2d 817
Decision Date08 September 1954
Docket NumberCr. 5588
CourtUnited States State Supreme Court (California)
PartiesEx parte CHAPMAN.

Al Matthews, Los Angeles, for petitioner.

Edmund G. Brown, Atty. Gen., and William E. James, Deputy Atty. Gen., for respondent.

SCHAUER, Justice.

Petitioner was convicted of one count of first degree robbery (count I of the information) and one count of assault with force likely to produce great bodily injury (count III of the information); the trial court ordered that the sentences on the two counts run consecutively. Petitioner appealed, and the District Court of Appeal affirmed the judgment of conviction. (People v. Chapman (1949), 91 Cal.App.2d 854, 206 P.2d 4.) Thereafter, the superior court denied a petition for a writ of error coram nobis and petitioner's appeal from the order of denial was dismissed by the District Court of Appeal. (People v. Chapman (1950), 96 Cal.App.2d 668, 216 P.2d 112.) In the pending proceeding the petition for a writ of habeas corpus was originally presented to the District Court of Appeal and that court issued an order to show cause why the writ should not issue. Such order to show cause, together with the petition for the writ and the demurrer and answer thereto of respondent Superintendent of the Medical Facility of the Department of Corrections, are now before us by reason of the transfer of the cause to this court.

By his petition for a writ of habeas corpus petitioner contends, in effect, that his conviction and sentence on count III of the information are beyond the jurisdiction of the court and void, or are at least 'invalid' and he asks that this court reach and declare a conclusion to that end so that the commitment upon which, among other things, the Adult Authority will act in fixing his term of imprisonment and eligibility for parole will not contain the second conviction and sentence. Petitioner grounds his contention on the proposition that it appears as a matter of law that the force likely to produce bodily injury constituting the basis of the assault charged in count III is the same force which was used in committing the robbery which is charged in count I. We have concluded that on the factual showing petitioner has failed to establish that he was not properly convicted and sentenced on both counts I and III.

The demurrer of respondent Superintendent of the Medical Facility of the Department of Corrections to the petition is on the ground that, since petitioner has not yet completed the concededly proper sentence on count I, he fails to state grounds for any relief. The demurrer is not well taken on that ground; petitioner does not seek release now; he seeks to have the assertedly invalid judgment on count III removed from consideration by the Adult Authority as one basis for its action in fixing his term of imprisonment and eligibility for parole. (See In re Seeley (1946), 29 Cal.2d 294, 302-303, 176 P.2d 24; In re McVickers (1946), 29 Cal.2d 264, 269, 281, 176 P.2d 40.)

Count I of the information charges robbery committed as follows:

'Robbery of the First Degree, In that, on or about the 2nd day of April, 1948, * * * defendants, Jack Chapman and Donald A. Larios, while armed with a dangerous and deadly weapon, to-wit: a revolver, did wilfully * * * take from the person and immediate presence of one Jim Gulley, personal property, to-wit: Seventy-five ($75.00) dollars * * * and * * * said taking was then and there accomplished, aforesaid, by the said defendants, by means of force used by said defendants upon and against the said Jim Gulley, and by said defendants then and there putting the said Jim Gulley in fear.'

Count III identifies the offense charged as follows:

'Assault by Means of Force Likely to Produce Great Bodily Injury in that, on or about the 2nd day of April, 1948, * * * defendants, Jack Chapman and Donald A. Larios, did wilfully, unlawfully and feloniously assault one Jim Gulley, a human being, by means of force likely to produce great bodily injury.'

Petitioner insists that the evidence introduced at the trial shows that the acts relied upon to constitute the assault were the same as those relied upon to constitute an essential element of the robbery. The victim, Gulley, testified that he and petitioner drove together into the country with co-defendant Larios following them in another car. Gulley said he wanted to drive. Petitioner stopped the car, got out, consulted with Larios who had parked behind them, and then showed Gulley a gun and told him, 'This is a holdup.' Petitioner directed Gulley to hand over his wallet and put his loose change on the ground. Guley did as he was told; then he started to run away. Larios tackled him and petitioner hit him over the head with his gun. Petitioner asked Gulley why he had run and said, 'I ought to blow your guts out.' Gulley was then compelled to remove his boots and the two robbers departed. Larios corroborated, substantially, Gulley's testimony. According to Larios, after Gulley had been tackled and hit on the head, petitioner demanded the rest of his money and when Gulley replied that he did not have any more, petitioner accused him of lying and said, 'I ought to shoot your guts out.'

Section 654 of the Penal Code provides, 'An 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; an acquittal or conviction and sentence under either one bars a prosecution for the same act or omission under any other * * *' This section prohibits the double punishment of an accused when he has committed but a single act even though such act violates two or more separate sections of the Penal Code. (People v. Smith (1950), 36 Cal.2d 444, 448, 224 P.2d 719.) If the force relied upon to establish the robbery is the same which is required to prove the assault, then petitioner is being punished twice for the same act contrary to section 654 of the Penal Code, but if it is not the same then the two convictions and sentences can stand.

In People v. Logan (1953), 41 Cal.2d 279, at page 290, 260 P.2d 20, the record disclosed that the defendant slipped up behind the victim, hit her with a baseball bat and snatched her purse; this court held that as 'the striking of the victim with the baseball bat and the taking of her purse constituted a single, indivisible transaction,' the 'one act of inflicting force with the bat cannot both be punished as assault with a deadly weapon and availed of by the People as the force necessary to constitute the crime of robbery.' In the case at bar, however, petitioner perpetrated the robbery while armed with a deadly weapon with which he menaced the victim and obtained from him a sum of money through thus placing him in fear; after the victim had laid the money down, he started to run away, Larios tackled him and petitioner then struck him with the weapon. Respondent superintendent properly contends that under the circumstances shown the pursuit of the victim and the striking of him with the weapon constituted a separate crime of assault with intent to commit great bodily harm. As respondent argues, to constitute first degree robbery it is necessary only that the accused be armed with a deadly weapon...

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    • United States
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    ...the prosecution thereof is limited to a single proceeding. (People v. Brown, supra, 49 Cal.2d 577, 590, 320 P.2d 5; 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.2......
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