People v. Cline

• Decision Date: 23 December 1969
• Docket Number: Cr. 7230
• Citation: 83 Cal.Rptr. 246,2 Cal.App.3d 989
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. John Raymond CLINE, Defendant and Appellant.
• Court: California Court of Appeals

Page 246

83 Cal.Rptr. 246

2 Cal.App.3d 989

PEOPLE of the State of California, Plaintiff and Respondent, v. John Raymond CLINE, Defendant and Appellant.

Cr. 7230.

Court of Appeal, First District, Division 1, California.

Dec. 23, 1969.

Hearing Denied Feb. 18, 1970.

Frances L. Hancock, Hancock & Hancock, San Francisco, for appellant (by appointment of the Court of Appeal).

Thomas C. Lynch, Atty. Gen., Albert W. Harris, Jr., Asst. Atty. Gen., Robert R. Granucci, Deputy Atty. Gen., San Francisco, for respondent.

SIMS, Associate Justice.

Defendant has appealed from a judgment of conviction entered upon jury verdicts which found him guilty of lewd and lascivious conduct in violation of Penal Code section 288, of sex perversion in violation of section 288a, and of unauthorized entry of property in violation of section 602.5 (a lesser but necessarily included offense of the burglary in violation of section 459 which had been charged in the indictment). Following proceedings under the provisions now found in sections 6300--6330 (formerly §§ 5500--5522) of the Welfare and Institutions Code, in which defendant was found not to be a mentally disordered sex offender, he was sentenced to concurrent terms in the state prison for each of the first two offenses, and to county jail for an unspecified term for the third offense. ¹

Defendant contends it was reversible error for the court to convict and punish him twice for the commission of a single act, and that he was denied his constitutional right to the effective assistance of counsel, because his attorney failed to object to the multiple sentences imposed by the trial court, and failed to raise the defense of diminished capacity. It is concluded that the conviction of violation of section 288a should be reversed, and that the judgment should otherwise be affirmed.

Divisibility of the course of action

Section 654 of the Penal Code 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 Supreme Court of this state has recently recognized that more than one theory has developed in the application of these provisions. The majority opinion in In re Hayes (1969), 70 A.C. 645, 75 Cal.Rptr. 790, 451 P.2d 430 states: '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.' (70 A.C. at pp. 646--647, 75 Cal.Rptr. at p. 791, 451 P.2d at p. 431 and see also Traynor, C.J. dissenting at p. 657, 75 Cal.Rptr. 798, 451 P.2d 438, fn. 6.)

The conclusion in Hayes does not illuminate the problem presented by this case. There the majority stated, 'In summation, then, section 654 of the Penal Code proscribes multiple punishment for a single 'act or omission which is made punishable' by different statutes, i.e., a single Criminal act or omission. Since the mere act of driving is made punishable by no statute, it is not the type of act or omission referred to in section 654. The acts 'made punishable' which this petitioner committed were (1) driving with a suspended license and (2) driving while intoxicated, two separate and distinct criminal acts; that they were committed simultaneously and that they share in common the neutral noncriminal act of driving does not render petitioner's punishment for both crimes in conflict with Penal Code section 654.' (Id., at p. 652, 75 Cal.Rptr. at p. 794, 451 P.2d at p. 434.) In this case the common intent and objective of the actor were not neutral, but were the intent and objective to gratify his lust, passion, and sexual desires in a manner proscribed by the provisions of sections 288 and 288a ² of the Penal Code. The question here is whether there has been an 'oversubtle division of the evidence of acts and intents' resulting in a 'split into a series of discrete crimes proscribed by different statutes directed against basically the same kind of criminality.' (Id. dissent, at p. 657, 75 Cal.Rptr. p. 798, 451 P.2d at p. 438, fn. 6.) The precedents are not clear.

One line of cases emphasizing the intent and objective of the actor, have uniformly struck down multiple punishment by application of the following formula, 'Whether a course of criminal conduct is divisible and consequently gives rise to more than one act within the meaning of section 654 of the Penal Code is determined by the intent and objective of the actor. (Citation.)' (People v. Diaz (1967), 66 Cal.2d 801, 807, 58 Cal.Rptr. 729, 732, 427 P.2d 505, 508 (assault with a deadly weapon and an act in violation of section 288a found incident to same objective as burglary); In re McGrew (1967), 66 Cal.2d 685, 688, 58 Cal.Rptr. 561, 427 P.2d 161 (violation of sections 261, subd. (4) and 288a found incident to same objective as burglary); In re Ward (1966), 64 Cal.2d 672, 676, 51 Cal.Rptr. 272, 414 P.2d 400 (robbery incident to same objective as kidnapping for robbery); People v. Failla (1966), 64 Cal.2d 560, 570, 51 Cal.Rptr. 103, 414 P.2d 39 (sexual misconduct included within kidnapping for that objective); People v. Hicks (1965), 63 Cal.2d 764, 765, 48 Cal.Rptr. 139, 408 P.2d 747 (burglary included within same objective as three separate sex offenses--two violations of section 288a and one violation of section 286--for which defendant sentenced to consecutive sentences); Neal v. State of California (1960), 55 Cal.2d 11, 19, 9 Cal.Rptr. 607, 357 P.2d 839 (arson included in same objective as attempted murder); People v. Greer (1947), 30 Cal.2d 589, 602--604, 184 P.2d 512 (statutory rape section 261, subd. (1) included under provisions of section 288); People v. Toliver (1969), 270 A.C.A. 532, 537, 75 Cal.Rptr. 819 (idem); People v. Paxton (1967), 255 Cal.App.2d 62, 72 and 73--74, 62 Cal.Rptr. 770 (section 288a included in objective of kidnapping, section 207(?)); People v. Gomez (1967), 252 Cal.App.2d 844, 860, 60 Cal.Rptr. 881 (robbery included in same objective as kidnapping for robbery); People v. Hooper (1967), 250 Cal.App.2d 118, 121--122, 58 Cal.Rptr. 100 (violations of sections 278 [2 Cal.App.3d 994] and 288 included within objective of burglary); People v. Lindsey (1967) 249 Cal.App.2d 6, 10--12, 57 Cal.Rptr. 190 (violation of section 288, includes section 288a where based on same act); People v. Ross (1965) 234 Cal.App.2d 758, 766, 44 Cal.Rptr. 722 (forcible rape section 261, subd. (3) includes violation of section 288); People v. Gay (1964) 230 Cal.App.2d 102, 105, 40 Cal.Rptr. 778 (burglary includes sex offenses which were its objective); and People v. Webb (1958), 158 Cal.App.2d 537, 540--543, 323 P.2d 141 (violation of section 288 includes section 288a where based on same act).)

On the other hand, it is generally recognized that where several prohibited sex offenses are separate and distinct acts, the defendant can be punished separately for each offense. (People v. Hicks, supra, 63 Cal.2d 764, 766, 48 Cal.Rptr. 139, 408 P.2d 747 (§§ 286 and 288a); People v. Slobodion (1948), 31 Cal.2d 555, 561--563, 191 P.2d 1 (§§ 288 and 288a); People v. Greer (1947), 30 Cal.2d 589, 600, 184 P.2d 512 (dictum); People v. Armstrong (1968), 268 Cal.App.2d 324, 326--327, 74 Cal.Rptr. 37 (§§ 261, subd. (3) and 288a); People v. Paxton, supra, 255 Cal.App.2d 62, 72--73, 62 Cal.Rptr. 770 (§§ 261, subd. (3) and 288a); People v. Gomez, supra, 252 Cal.App.2d 844, 860, 60 Cal.Rptr. 881 (§§ 268 and 288a); People v. Gay, supra, 230 Cal.App.2d 102, 105, 40 Cal.Rptr. 778 (dictum); People v. Loignon (1958), 160 Cal.App.2d 412, 420, 325 P.2d 541 (§§ 288 and 288a); and People v. Akers (1956), 143 Cal.App.2d 224, 227--228, 299 P.2d 398 (§§ 288 and 288a).)

This case does not involve the situation where multiple punishment is prohibited for a substantive crime which is committed in execution of an inchoate purpose which is an element of more seriously punishable criminal act. (See Traynor, C.J. dissenting, In re Hayes, supra, 70 A.C. at p. 657, 75 Cal.Rptr. 798, 451 P.2d 438, fn. 6, last par.) The determination must depend upon the divisibility of the conduct.

In People v. Greer, supra, the court observed, 'The divisibility of acts in cases involving sex offenses is not easily susceptible of exact definition. The cases show no uniformity in this field, and there are many instances of artificial distinctions. The rule can be set down for the guidance of the trial court in the present case, however, that if the touching of the prosecutrix's body charged in the first information was essentially such touching as would be considered a part of the rape itself, it could not serve as a basis for a separate conviction. If, on the other hand, it was clearly not a part of the rape, but a part of a separate course of conduct, it could be held a separate offense. This rule follows from the doctrine that no person shall be convicted of both an included and a greater offense; otherwise that doctrine might be subverted by a technical fragmentation of acts having no realistic basis in common experience.' (30 Cal.2d at pp. 600--601, 184 P.2d at p. 519.)

The record in this case reveals the following: The victim was born January 5, 1961. She was a month shy of seven-years old at the time of the incident, and a little over five weeks past her...