Hayes, In re

• Decision Date: 05 July 1968
• Docket Number: Cr. 11647
• Citation: 442 P.2d 366,69 Cal.Rptr. 310
• Court: California Supreme Court
• Parties: In re David Oliver HAYES on Habeas Corpus.

Page 310

69 Cal.Rptr. 310

442 P.2d 366

In re David Oliver HAYES on Habeas Corpus.

Cr. 11647.

Supreme Court of California, In Bank.

July 5, 1968.

For Opinion on Rehearing, see 75 Cal.Rptr. 790 P.2d 430

Opinion, Cal.App., 61 Cal.Rptr. 270, vacated.

Kenneth M. Wells, Public Defender, and Charles G. Fredericks, Asst. Public Defender, for petitioner.

Thomas C. Lynch, Atty. Gen., Edsel W. Haws and Arnold Overoye, Deputy Attys. Gen., for respondent.

TRAYNOR, Chief Justice.

Petitioner drove a motor vehicle for 13 blocks on a public street in Sacramento with knowledge that his driving privilege was suspended (Veh.Code, § 14601) ¹ and while he was under the influence of intoxicating liquor (Veh.Code, § 23102). ² He was charged with and pleaded guilty to violating both statutes and was sentenced for both offenses. In this habeas corpus proceeding he contends that the imposition of the two sentences is double punishment forbidden by Penal Code section 654. The writ is available to review his contention that the judgment, on the undisputed facts, imposes punishment in excess of that authorized by law. (In re Johnson (1966) 65 Cal.2d 393, 394, 54 Cal.Rptr. 873, 420 P.2d 393; Neal v. State of California (1960) 55 Cal.2d 11, 17, 9 Cal.Rptr. 607, 357 P.2d 839.)

Section 654 provides that '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.' The reasonable import of the Penal Code's preclusion of multiple punishment for an act proscribed 'by different provisions of this code' is also to preclude multiple punishment for an act proscribed by different penal statutes not included in the Penal Code. (People v Brown (1958) 49 Cal.2d 577, 591, fn. 4, 320 P.2d 5; People v. Kehoe (1949)33 Cal.2d 711, 714, 204 P.2d 321 [applying the preclusion to overlapping statutes in the Vehicle and Penal Codes].)

Section 654 refers to an 'act * * * which is made punishable' by more than one statute, whereas the element common to the two Vehicle Code offenses committed by petitioner is not a single 'act' but a course of conduct (driving a vehicle on a highway) that is innocent in itself and not 'made punishable.' The context of the enactment of section 654, however, shows that the Legislature did not use the word 'act' in the narrow sense of a single physical movement, nor did its reference to an 'act or omission which is made punishable' imply that the section is limited to cases where the 'act or omission' common to crimes defined by different statutes is conduct or forbearance that in itself has some evil or punishable connotation.

Section 654 and the four sections immediately following it dealing with questions of multiple punishments and successive prosecutions for one 'act' were adopted as part of the original Penal Code in 1872. ³ Although those sections were then new statutory law, much of the 1872 code consisted of continuations, with some revisions, of existing statutes. The code's general rules as to the substantive nature of crime were taken from the 1850 Crimes and Punishments Act; the definitions of particular crimes were taken in part from that 1850 act and in part from miscellaneous scattered statutes, collated and revised in attempts to avoid unnecessary and confusing duplications and overlappings; and the rules of pleading and procedure were taken from the 1850 Criminal Practice Act. Before, at the time of, and since the enactment of section 654 in 1872 the Legislature often defined crimes in such terms that they could not be committed by a single physical 'act.' (Neal v. State of California, supra, 55 Cal.2d 11, 19, 9 Cal.Rptr. 607, 357 P.2d 839.) Thus, the physical behavior that constitutes an objective, external element of many crimes is stated not in terms of an 'act' but in terms of a course of conduct such as carrying away, transporting, maintaining, or, as in the instant case, driving.

Moreover, penal statutes do not ordinarily 'make punishable' mere acts without more. They make punishable the crimes they define, and an essential element of every orthodox crime is a wrongful or blameworthy mental state of some kind. (Morissette v. United States (1952) 342 U.S. 246, 250, 72 S.Ct. 240, 96 L.Ed. 288; People v. Vogel (1956) 46 Cal.2d 798, 801, 299 P.2d 850.) When the Legislature adopted Penal Code section 654 in 1872 it clearly had in mind the familiar concept that to constitute a crime there must be a concurrence of act and criminal state of mind. It repeatedly used the word 'act' in other sections of that code, both those dealing with the substantive nature of crime ⁴ and those dealing with pleading, ⁵ to refer to the external, objective elements of a crime, including particularly (but not always exclusively) the physical conduct of the defendant, as contrasted with the subjective element, his mental state. In enacting the rule of section 654 limiting punishment, the Legislature used the word 'act' in that same familiar and general sense.

Vehicle Code section 14601 makes the 'act' of driving on a highway punishable when it is accompanied by the subjective element of defendant's actual knowledge that his license has been suspended. (In re Murdock (1968) 68 A.C. 322, 324, 66 Cal.Rptr. 380, 437 P.2d 764.) Vehicle Code section 23102 makes that 'act' punishable when it is accompanied by the subjective element of being under the influence of intoxicating liquor. (See People v. Haeussler (1953) 41 Cal.2d 252, 261, 260 P.2d 8; People v. Keith (1960) 184 Cal.App.2d Supp. 884, 886, 7 Cal.Rptr. 613 [when defendant found himself in such a condition that liquor had appreciably impaired his ability to operate his car, 'he knew or should have known that he should not drive'].) By one 'act,' one uninterrupted course of driving concurring with both proscribed subjective states, petitioner simultaneously violated both statutes. Since the physical conduct of petitioner, as contrasted with the subjective elements of the crimes, was a single course of conduct, he committed only one act within the meaning of section 654. Accordingly, although he violated both statutes, he can be punished under only one.

The Attorney General contends that Vehicle Code sections 14601 and 23102 have different public purposes directed as distinct evils, and that the driver who violates both statutes simultaneously should be doubly punished because he is invading two social interests that the Legislature has designated for distinct protection by the enactment of two different statutes. In a jurisdiction without a multiple punishment rule like that of Penal Code section 654, this 'distinct evil' test might aid the courts in ascertaining without a multiple punishment rule like that of Penal Code section 654, this 'distinct evil' test might aid the courts in ascertaining whether the Legislature intended cumulative punishments for simultaneous violations of statutes like Vehicle Code sections 14601 and 23102. (See Twice in Jeopardy (1965), 75 Yale L.J. 262, 320; Kirchheimer, The Act, the Offense, and Double Jeopardy (1949), 58 Yale L.J. 513, 523.) In California, however, when the rule of section 654 precluding multiple punishment applies, the courts cannot invoke the 'distinct evil' test to evade that statutory rule. (But see People v. Winchell (1967) 248 Cal. Cal.App.2d 580, 596, 56 Cal.Rptr. 782; People v. Wasley (1966) 245 Cal.App.2d 383, 386, 53 Cal.Rptr. 877; People v. Poe (1965) 236 Cal.App.2d Supp. 928, 942, 47 Cal.Rptr. 670.) ⁶ We have already pointed out that section 654 was adopted as part of the 1872 Penal Code, when the code commissioners endeavored to collect and organize the scattered penal statutes of this state. In view of the task they were engaged in, the commissioners and the Legislature that enacted their recommendations were well aware of judicial problems in the application of overlapping, duplicating, and conflicting penal statutes. Recognizing that future Legislatures no doubt would continue to define multiple new crimes, often without specifying their relations to one another or to already existing crimes (see Statutory Implementation of Double Jeopardy Clauses (1956) 65 Yale L.J. 339, 344), the commissioners and the 1872 Legislature addressed themselves to this problem by the overall rule forbidding the courts to find legislative authority for multiple sentences in the proliferation of statutes with a common physical element. The courts must respect this declaration of the Legislature's intention as to the extent of punishment for overlapping or duplicating crimes.

Moreover, any notion that a California court can multiply sentences because defendant's single act violates statutes that, in the court's view, vindicate different societal interests should have been dispelled by decisions such as People v. Brown, supra, 49 Cal.2d 577, 590, 320 P.2d 5 (defendant cannot be sentenced both for criminal abortion and for murder caused by the same act), and People v. Craig (1941) 17 Cal.2d 453, 457, 110 P.2d 403 (defendant cannot be sentenced for both statutory rape and forcible rape committed by one act of intercourse forced upon a 16-year-old girl; compare People v. McCollum (1931) 116 Cal.App. 55, 58, 2 P.2d 432, a prosecution for both statutory rape and incest resulting from defendant's one act of intercourse with his 16-year-old daughter; the trial court correctly anticipated the Craig theory, but the appellate court improperly condemned the trial court's view).

The Attorney General contends that multiple punishment should be allowed in accord with the statement in Neal v. State of California, supra, 55 Cal.2d 11, 20, 9 Cal.Rptr. 607, 612, 357 P.2d 839, 844, that 'The purpose of the protection against multiple punishment is to insure that the defendant's punishment will be commensurate with his criminal liability.' The Neal opinion made the quoted statement in the course of a...