People v. Hall

• Decision Date: 27 September 2000
• Docket Number: No. C031119.,C031119.
• Citation: 83 Cal.App.4th 1084,100 Cal.Rptr.2d 279
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Andrew Howard HALL, Defendant and Appellant.

100 Cal.Rptr.2d 279

83 Cal.App.4th 1084

The PEOPLE, Plaintiff and Respondent, v. Andrew Howard HALL, Defendant and Appellant.

No. C031119.

Court of Appeal, Third District.

September 27, 2000.

As Modified October 19, 2000.

Review Denied January 10, 2001.^*

Valerie G. Wass, under appointment by the Court of Appeal, Pasadena, for Defendant and Appellant.

Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Robert R. Anderson, Senior Assistant Attorney General, Stephen G. Herndon, Supervising Deputy Attorney General, Rachelle A. Newcomb, Deputy Attorney General, for Plaintiff and Respondent.

KOLKEY, J.

Penal Code section 654 prohibits multiple punishments for "[a]n act or omission that is punishable in different ways by different provisions of law."¹ However the courts have long construed this provision not to bar multiple punishments where the act is one of violence against multiple victims (the multiple-victim exception). (People v. Latimer (1993) 5 Cal.4th 1203, 1212, 23 Cal.Rptr.2d 144, 858 P.2d 611 (Latimer); Neal v. State of California (1960) 55 Cal.2d 11, 20-21, 9 Cal.Rptr. 607, 357 P.2d 839 (Neal).)

The issue in this case is whether a single act of exhibiting a firearm in a threatening manner in the immediate presence of several peace officers in violation of section 417, subdivision (c), is punishable for as many times as there are peace officers present pursuant to the multiple-victim exception to section 654. We conclude that the plain language of section 654, its purpose and the case law construing it compel a single punishment for a single act of exhibiting a firearm in violation of section 417, subdivision (c), regardless of the number of peace officers present. The crime of exhibiting a firearm "in the immediate presence of a peace officer" in violation of section 417, subdivision (c), is by its very definition, not committed upon a peace officer, but only in the presence of a peace officer. The multiple-victim exception to section 654 requires multiple victims, not multiple observers. Only once the exhibition of the firearm becomes an assault may the observers become victims, and may a single act warrant multiple punishment.

I. STATEMENT OF FACTS²

On December 17, 1995, the California Highway Patrol and the Trinity County Sheriffs Department received a report that an allegedly intoxicated man was driving recklessly and discharging a firearm from his vehicle. Officers identified the man as the defendant, Andrew Howard Hall. They discovered that he had two outstanding warrants for his arrest, and learned that he had returned to his residence.

The officers converged upon defendant's residence. On at least three occasions, they requested that he exit it. When he finally did so, he "was holding a loaded shotgun and appeared to be pointing it in the direction of the officers," according to the probation report. At that point, he was rushed by the officers and placed into custody.

Defendant pleaded no contest to three counts of exhibiting a firearm in the presence of peace officers in violation of section 417, subdivision (c), each count referring to a different officer.³ On April 22, 1996, the trial court suspended imposition of sentence and placed the defendant on probation.

However, on October 26, 1998, probation was revoked and denied as result of defendant's violation of his conditions of probation. The trial court thereafter imposed consecutive sentences on each of the three counts of exhibiting a firearm.

On November 6, 1998, in a separate case, defendant pleaded no contest to one count of infliction of corporal injury (§ 273.5), was sentenced to three years for that conviction, and was resentenced on the three counts for exhibiting a firearm to subordinate terms of eight months each (one-third of the midterm of two years), resulting in an aggregate sentence of five years. Defendant appeals, contending that the imposition of consecutive terms for the three counts of exhibiting a firearm violates section 654.

II. DISCUSSION

A. The Multiple-Victim Exception to Section 654

Section 654 provides that "[a]n act or omission that is punishable in different ways by different provisions of law" may not "be punished under more than one provision."⁴

"Although section 654 does not expressly preclude double punishment when an act gives rise to more than one violation of the same Penal Code section ..., it is settled that the basic principle it enunciates precludes double punishment in such cases also." (Neal, supra, 55 Cal.2d at p. 18, fn. 1, 9 Cal.Rptr. 607, 357 P.2d 839; italics added.)

However, the California Supreme Court in Neal, supra, 55 Cal.2d at p. 20, 9 Cal. Rptr. 607, 357 P.2d 839, construed section 654 to permit separate punishments for an act of violence against multiple victims because the underlying purpose of section 654's proscription against multiple punishment "is to insure that the defendant's punishment will be commensurate with his criminal liability":

"The purpose of the protection against multiple punishment is to insure that the defendant's punishment will be commensurate with his criminal liability. A defendant who commits an act of violence with the intent to harm more than one person or by a means likely to cause harm to several persons is more culpable than a defendant who harms only one person. For example, a defendant who chooses a means of murder that places a planeload of passengers in danger, or results in injury to many persons, is properly subject to greater punishment than a defendant who chooses a means that harms only a single person. This distinction between an act of violence against the person that violates more than one statute and such an act that harms more than one person is well settled. Section 654 is not'. . . applicable where .. . one act has two results each of which is an act of violence against the person of a separate individual.'" (Neal, supra, 55 Cal.2d at pp. 20-21, 9 Cal.Rptr. 607, 357 P.2d 839, quoting People v. Brannon (1924) 70 Cal.App. 225, 235-236, 233 P. 88.)

A review of the relevant case law since Neal reveals that in each case where a criminal act qualified for the multiplevictim exception, the criminal act—that is, the crime of which defendant was convicted, including any allegations in enhancement—was defined by statute to proscribe an act of violence against the person, that is, as Neal, supra, 55 Cal.2d at p. 20, 9 Cal.Rptr. 607, 357 P.2d 839, put it, an act of violence committed "with the intent to harm" or "by means likely to cause harm" to a person. (E.g., People v. Miller (1977) 18 Cal.3d 873, 885, 135 Cal.Rptr. 654, 558 P.2d 552; In re Ford (1967) 66 Cal.2d 183, 57 Cal.Rptr. 129, 424 P.2d 681; In re Wright (1967) 65 Cal.2d 650, 56 Cal.Rptr. 110, 422 P.2d 998; People v. Cruz (1995) 38 Cal.App.4th 427, 45 Cal.Rptr.2d 148; People v. Masters (1987) 195 Cal.App.3d 1124, 241 Cal.Rptr. 511; People v. Prater (1977) 71 Cal.App.3d 695, 139 Cal.Rptr. 566.) Indeed, the California Supreme Court has stated that "[a] defendant may properly be convicted of multiple counts for multiple victims for a single criminal act only where the act prohibited by the statute is centrally an `act of violence against the person.'" (Wilkoff v. Superior Court (1985) 38 Cal.3d 345, 351, 211 Cal.Rptr. 742, 696 P.2d 134, quoting Neal, supra, 55 Cal.2d at p. 20, 9 Cal.Rptr. 607, 357 P.2d 839; italics added.)

Hence, in Neal, the state high court rejected a section 654 challenge to consecutive sentences for two attempted murders, where the defendant threw gasoline into a couple's bedroom and ignited it, burning them. (Neal, supra, 55 Cal.2d at pp. 20-21, 9 Cal.Rptr. 607, 357 P.2d 839.) By definition, the crime of attempted murder is an act of violence committed against a person since it requires a specific intent to kill. (People v. Collie (1981) 30 Cal.3d 43, 62, 177 Cal.Rptr. 458, 634 P.2d 534.) Therefore, where multiple victims are involved, it qualifies for the multiple-victim exception.

Similarly, assault with a deadly weapon under section 245 qualified for the multiple-victim exception where the defendant intentionally shot a bullet at one victim which passed through the first victim and hit a second. (People v. Prater, supra, 71 Cal.App.3d at p. 699, 139 Cal.Rptr. 566.) "The gravamen of the crime defined by ... section 245 is the likelihood that the force applied or attempted to be applied will result in great bodily injury." (People v. Colantuono (1994) 7 Cal.4th 206, 217, 26 Cal.Rptr.2d 908, 865 P.2d 704, quoting People v. McCaffrey (1953) 118 Cal.App.2d 611, 618-619, 258 P.2d 557; italics in original.) Thus, the crime of assault with a deadly weapon is by definition, an act of violence committed against a person, namely, one with the likelihood of causing harm to the person. It thus satisfies the multiple-victim exception when more than one victim is involved.

Likewise, the multiple-victim exception allowed the imposition of separate (albeit concurrent) sentences for assault with a firearm and for the discharge of a firearm at an occupied building, where four bullets were fired at a doorway where a security officer and others stood. (People v. Cruz, supra, 38 Cal.App.4th at pp. 434-435, 45 Cal.Rptr.2d 148.) The crime of discharging a firearm at an occupied building, by its very definition, requires that the defendant "maliciously and willfully discharge a firearm at an ... occupied building" (§ 246, italics added), thereby constituting an act of violence that is committed either "with the intent to harm ... or by means likely to cause harm" to one or more persons. (Neal, supra, 55 Cal.2d at p. 20, 9 Cal.Rptr. 607, 357 P.2d 839.) When different victims are involved, as in People v. Cruz, supra, 38 Cal.App.4th 427, 45 Cal.Rptr.2d 148, the multiple-victim exception is satisfied.

So, too, the multiple-victim exception permits punishment for both assault with a deadly weapon and discharge of a firearm at an...