Hayes, In re

• Decision Date: 17 March 1969
• Docket Number: Cr. 11647
• Parties: , 451 P.2d 430 In re David Oliver HAYES on Habeas Corpus.
• Court: California Supreme Court

Page 790

75 Cal.Rptr. 790

70 Cal.2d 604, 451 P.2d 430

In re David Oliver HAYES on Habeas Corpus.

Cr. 11647.

Supreme Court of California,

In Bank.

March 17, 1969.

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

Thomas C. Lynch, Atty. Gen., Doris H. Maier, Asst. Atty. Gen., Edsel W. Haws and Arnold O. Overoye, Deputy Atty. Gen., for respondent.

MOSK, Justice.

On December 30, 1966, petitioner David Oliver Hayes drove a motor vehicle for some 13 blocks in violation of Vehicle Code section 14601 (with knowledge of a suspended license) and Vehicle Code section 23102 (while under the influence of intoxicating liquor.) He pleaded guilty to and was sentenced for both offenses. Petitioner now asserts that imposition of sentences for both violations is contrary to the proscription against multiple punishment contained in Penal Code section 654. We have concluded that petitioner's contention lacks merit.

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 interdiction is not limited to the provisions of the Penal Code, but embraces penal provisions in other codes as well, including those found in the Vehicle Code. (Neal v. State of California (1960) 55 Cal.2d 11, 18 fn., 1, 9 Cal.Rptr. 607, 357 P.2d 839; People v. Kehoe (1949) 33 Cal.2d 711, 204 P.2d 321.)

The key to application of section 654 is in the phrase 'act or omission': a defendant may be punished only once for each distinct 'act or omission' committed. There have been numerous attempts in the cases to define a single 'act,' with varying degrees of clarity. Section 654 has been held to apply, for example, where the multiple violations are 'necessarily included offenses' (People v. Knowles (1950) 35 Cal.2d 175, 186, 217 P.2d 1) and where there is a single 'intent and objective' underlying a course of criminal conduct (Neal v. State of California (1960) supra, 55 Cal.2d 11, 9 Cal.Rptr. 607, 357 P.2d 839) but not where there are multiple victims (id.). Most of the cases construing section 654 can be resolved by application of one or the other of these theories. (See, e.g., In re Ford (1967) 66 Cal.2d 183, 57 Cal.Rptr. 129, 424 P.2d 681 (kidnaping of three victims); In re Ward (1966) 64 Cal.2d 672, 51 Cal.Rptr. 272, 414 P.2d 400 (kidnaping with intent to rob and robbery); People v. Brown (1958) 49 Cal.2d 577, 320 P.2d 5 (abortion and resulting death); People v. Craig (1941) 17 Cal.2d 453, 110 P.2d 403 (rape and statutory rape); People v. Pater (1968) 267 A.C.A. 1027, 73 Cal.Rptr. 823 (grand theft--auto and driving vehicle without owner's consent).) Unfortunately, these formulae are of only limited utility in the instant case, and we therefore begin anew with a direct analysis of the statute and its application to the facts before us. ¹

To put petitioner's entire adventure into a few words: he drove his car with an invalid license and while intoxicated. Initially, it is temptingly easy to extract, as petitioner urges us to do, the single act of 'driving,' obviously common to both of the charged offenses, and to apply section 654 to this case on the theory that 'driving' was petitioner's only 'act or omission.' However, to do so would be no more justified than to extract the act of 'possession' from a charge of possessing two different items of contraband, an approach long rejected by our courts. (E.g., People v. Schroeder (1968) 264 A.C.A. 257, 267--268, 70 Cal.Rptr. 491 (multiple punishment for simultaneous possession of various narcotic drugs, not precluded by section 654); People v. Lockwood (1967) 253 Cal.App.2d 75, 82--83, 61 Cal.Rptr. 131 (same); People v. Lopez (1959) 169 Cal.App.2d 344, 350--351, 337 P.2d 570 (same); People v. Mandell (1949) 90 Cal.App.2d 93, 98--99, 202 P.2d 348 (same); People v. Wasley (1966) 245 Cal.App.2d 383, 53 Cal.Rptr. 877 (possession of different illegal weapons); cf. People v. Schroeder, supra, 264 A.C.A. at pp. 268--269, 70 Cal.Rptr. 491 (possession of single narcotic, a single offense); People v. Branch (1953) 119 Cal.App.2d 490, 260 [70 Cal.2d 607] P.2d 27 (possession and sale of same narcotic).) We cannot overlook the crucial element: section 654 refers not to Any physical act or omission which might perchance be common to all of a defendant's violations, but to a defendant's Criminal acts or omissions. (See, e.g., In re Johnson (1966) 65 Cal.2d 393, 395, 54 Cal.Rptr. 873, 420 P.2d 393; People v. Quinn (1964) 61 Cal.2d 551, 555, 39 Cal.Rptr 393, 393 P.2d 705; People v. Brown (1958) supra, 49 Cal.2d 577, 590, 320 P.2d 5; People v. Branch, supra, 119 Cal.App.2d at p. 496, 260 P.2d 27). ² Indeed, section 654 itself makes this distinction evident, since it refers to an act or omission 'made punishable' by different statutes. ³ The neutral act of driving, like the mere act of possessing in the foregoing cases, when viewed in a vacuum, is not 'made punishable' by any statute.

The proper approach, therefore, is to isolate the various Criminal acts involved, and then to examine only those acts for identity. In the instant case the two criminal acts are (1) driving with a suspended license and (2) driving while intoxicated; they are in no sense identical or equivalent. Petitioner is not being punished twice--because he cannot be punished at all-for the 'act or driving.' He is being penalized once for his act of driving with an invalid license and once for his independent act of driving while intoxicated. ⁴

Moreover, we must not confuse simultaneity with identity: in both of the above situations--driving as in this case and possession of contraband in the cited cases--the defendant committed two simultaneous Criminal acts, which coincidentally had in common an identical noncriminal act. The two simultaneous criminal acts of possessing substance X and possessing substance Y share the common, 'neutral' act of possessing, just as they necessarily share the common factor of lack of a valid prescription for the drugs. Likewise, the two simultaneous--but distinct--criminal acts of driving with a suspended license and driving while intoxicated share the common, noncriminal act of driving. ⁵ On the date in question petitioner's act of driving was criminal and simultaneously violated two statutes because and only because of the presence of Both the unrelated accompanying acts of voluntary intoxication and knowing possession of a suspended license. Similarly, for example, if an individual went for a walk in possession of a loaded gun while he was intoxicated and unclothed, he would by the single neutral act of walking--or, more accurately, being in a 'public place'--simultaneously violate three separate and unrelated statutes. (Pen.Code, §§ 12031, subd. (a); 647, subd. (f); 314.) ⁶ Those three statutes, however would be violated not by the one noncriminal act of being in a public place but necessarily by three simultaneous though separate criminal acts. Once again, we must distinguish Identical noncriminal acts from Simultaneous criminal acts 'made punishable' by law. ⁷

In attempting to equate simultaneity with identity, petitioner argues that 'There was no evidence his driving without a license preceded the commencement of the driving while under the influence.' Thus if petitioner had begun driving while intoxicated at 11:50 p.m., and at midnight his license had expired but he had continued to drive, he apparently would concede that he could be punished for the two distinct acts of driving while intoxicated (before midnight) and driving with an expired license (after midnight). This arbitrary and wholly artificial distinction is unpersuasive. While separation in time may, in some contexts, make the legal separation of acts more apparent (see, e.g., In re Ward (1966) supra, 64 Cal.2d 672, 678, 51 Cal.Rptr. 272, 414 P.2d 400; Seiterle v. Superior Court (1962) 57 Cal.2d 397, 401--403, 20 Cal.Rptr. 1, 369 P.2d 697; People v. Howell (1966) 245 Cal.App.2d 787, 792, 54 Cal.Rptr. 92), the converse does not necessarily follow. Proximity in time between criminal events does not preclude multiple punishment (People v. Slobodion (1948) 31 Cal.2d 555, 191 P.2d 1); and petitioner's acts were neither more nor less multiple because of the fortuitous fact that they were completely, rather than only partly, simultaneous. (People v. Wasley (1966) supra, 245 Cal.App.2d 383, 387, 53 Cal.Rptr. 877.) ⁸

Nor can we subscribe to a contention that because petitioner may have had only one 'intent and objective'--driving--when he committed the two violations, he comes within the ambit of the test established in Neal v. State of California (1960) supra, 55 Cal.2d 11, 9 Cal.Rptr. 607, 357 P.2d 839. In Neal, the defendant had attempted murder by means of arson (burning down the victims' house by igniting gasoline therein). We viewed that circumstance as an indivisible 'course of criminal conduct,' the criminal act of arson being only the means toward an ultimate criminal objective of murder. We stated that where there was only a single 'intent and objective' involved in such a course of criminal conduct, section 654 precluded multiple punishment.

Here neither of the two violations can realistically be viewed as a 'means' toward the other and as such a part of a single course of criminal conduct, in the sense that the arson in Neal was committed not to burn property but only as a means toward the single objective of murder. Moreover, the petitioner's intent and objective to drive from one place to another is no more relevant to our analysis than what he intended to do when he arrived there. (See In re Ward (1966) supra, 64 Cal.2d 672, 676, 51 Cal.Rptr. 272, 414 P.2d 400.) Just as it is the Criminal 'act or omission' to which section 654 refers, it is the Criminal 'intent and objective' that we established as...