People v. Hicks

• Decision Date: 20 December 1993
• Docket Number: No. S026853,S026853
• Court: California Supreme Court
• Parties: , 863 P.2d 714 The PEOPLE, Plaintiff and Respondent, v. Eric Tomont HICKS, Defendant and Appellant.

Page 469

25 Cal.Rptr.2d 469

6 Cal.4th 784, 863 P.2d 714

The PEOPLE, Plaintiff and Respondent, v. Eric Tomont HICKS, Defendant and Appellant.

No. S026853.

Supreme Court of California In Bank.

Dec. 20, 1993.

Rehearing Denied Jan. 20, 1994.

Dallas Sacher, under appointment by the Supreme Court, and Howard J. Specter, under appointment by the Court of Appeal, Santa Clara, for defendant and appellant.

Daniel E. Lundgren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., John H. Sugiyama and Ronald A. Bass, Asst. Attys. Gen., Morris Beatus, Gerald A. Engler, Stan Helfman, Thomas A. Brady and Enid A. Camps, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

GEORGE, Justice.

In People v. Siko (1988) 45 Cal.3d 820, 822, 248 Cal.Rptr. 110, 755 P.2d 294, we held that the enactment of Penal Code section 667.6, subdivision (c), which permits the imposition of consecutive full-term sentences when a defendant has been convicted of certain enumerated sexual offenses, did not repeal the prohibition of Penal Code section 654 against multiple punishment based upon "the same act or omission." ¹ In this case, we address the question we expressly left unresolved in Siko: whether the enactment of section 667.6, subdivision (c), created an exception to section 654 so as to permit the imposition of consecutive full-term sentences for enumerated offenses constituting separate acts committed during an "indivisible" or "single" transaction. For the reasons that follow, we hold that the enactment had this effect.

FACTUAL AND PROCEDURAL HISTORY

Following a jury trial, defendant was convicted of six counts of rape (former § 261, subd. (2)), ² two counts of forcible sodomy The Court of Appeal held that imposition of sentence on the burglary count violates section 654's proscription against multiple punishment. In so holding, the Court of Appeal followed the decision in People v. Masten (1982) 137 Cal.App.3d 579, 589, 187 Cal.Rptr. 515, disapproved on another ground in People v. Jones (1988) 46 Cal.3d 585, 600, footnote 8, 250 Cal.Rptr. 635, 758 P.2d 1165, rather than the contrary rulings in People v. Andrus (1990) 226 Cal.App.3d 73, 78-79, 276 Cal.Rptr. 30, and People v. Anderson (1990) 221 Cal.App.3d 331, 339-343, 270 Cal.Rptr. 516. ³ We granted review to resolve this conflict.

(§ 286, subd. (c)), two counts of genital penetration by a foreign object (§ 289, subd. (a)), and one count of burglary (§ 459). He was sentenced on the burglary count to the upper term of three years in state prison, and on the remaining ten counts to full consecutive terms of eight years on each count, for a total term of eighty-three years.

Because the only issue before us is whether imposition of sentence on the burglary count constitutes an impermissible multiple punishment, we limit our summary of the evidence to the facts relevant to this issue.

Approximately 3 a.m. on June 26, 1989, the victim, Penny B., was working alone at the Bagelry bakery in Santa Cruz. She left the door closed but unlocked, as was her practice, to provide access for persons who restock the newspaper bins in the bakery. Defendant entered the bakery and, after conversing with the victim and determining that she was alone, grabbed her and forced her into the bathroom, where he raped her six times, committed two acts of forcible sodomy, and (on two occasions) inserted his fingers into her vagina.

He ordered the victim to clean her genitals and his with paper towels, and to clean the toilet and sink. Defendant and the victim then dressed and washed their hands, and he told her he would help her complete her duties at the bakery on time.

The victim resumed working while defendant sat beside her. When two men entered the bakery to deliver newspapers, the victim told defendant she wanted him to leave, and he complied, following the delivery men out the door. The victim locked the door, telephoned her supervisor, and reported that she had been raped. Defendant was arrested a short time later.

DISCUSSION

Defendant contends the imposition of a term of three years for his conviction of burglary violates section 654, because the burglary was incidental to the forcible sexual offenses for which he also was punished. ⁴

Section 654 states, in pertinent part: "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 statute "literally applies only where [multiple] punishment arises out of multiple statutory violations produced by the 'same act or omission.' [Citation.] However, ... its protection has been extended to cases in which "It is defendant's intent and objective, not the temporal proximity of his offenses, which determine whether the transaction is indivisible. [Citations.] ... [I]f all of the offenses were merely incidental to, or were the means of accomplishing or facilitating one objective, defendant may be found to have harbored a single intent and therefore may be punished only once. [Citation.]" (People v. Harrison, supra, 48 Cal.3d 321, 335, 256 Cal.Rptr. 401, 768 P.2d 1078.)

there are several offenses committed during 'a course of conduct deemed to be indivisible in time.' [Citation.]" (People v. Harrison, supra, 48 Cal.3d 321, 335, 256 Cal.Rptr. 401, 768 P.2d 1078; People v. Latimer (1993) 5 Cal.4th 1203, 1207-1209, 23 Cal.Rptr.2d 144, 858 P.2d 611.)

The evidence in the present case establishes that defendant entered the bakery with the single criminal objective of sexually assaulting the victim. Therefore, if applicable, section 654 would preclude punishing defendant for both the burglary and the sexual offenses of which he was convicted. (In re McGrew (1967) 66 Cal.2d 685, 688, 58 Cal.Rptr. 561, 427 P.2d 161; People v. Pena (1992) 7 Cal.App.4th 1294, 1312, 9 Cal.Rptr.2d 550.) We must determine, therefore, whether section 654 prohibits such multiple punishment when a trial court imposes consecutive full-term sentences for the enumerated sexual offenses under the authority of section 667.6, subdivision (c) (hereinafter section 667.6(c)).

Section 667.6(c) provides, "in the context of violent sex offenders, a discretionary sentencing alternative to the standard consecutive sentencing formula in section 1170.1. [Citations.]" (People v. Jones, supra, 46 Cal.3d 585, 595, 250 Cal.Rptr. 635, 758 P.2d 1165; People v. Craft (1986) 41 Cal.3d 554, 560, 224 Cal.Rptr. 626, 715 P.2d 585.) Under section 1170.1, subject to certain exceptions, the greatest term of imprisonment imposed for any of the crimes is designated the principal term. To the principal term is added subordinate terms, not to exceed five years in the aggregate, consisting of one-third of the middle term prescribed for each additional felony conviction. (§ 1170.1, subd. (a).) The total term of imprisonment may not exceed twice the base term. (§ 1170.1, subd. (g).)

Under the exception to section 1170.1 provided by section 667.6(c), imposition of consecutive full-term sentences is permitted if a defendant is convicted of certain sexual offenses. Section 667.6(c) provides, in pertinent part: "In lieu of the term provided in Section 1170.1, a full, separate, and consecutive term may be imposed for each violation of ... subdivision (2) or (3) of Section 261 [rape], ... Section 289 [genital penetration by a foreign object], or of committing sodomy or oral copulation in violation of Section 286 or 288a by force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person whether or not the crimes were committed during a single transaction."

In People v. Siko, supra, 45 Cal.3d 820, 248 Cal.Rptr. 110, 755 P.2d 294, we considered whether consecutive full-term sentences imposed under section 667.6(c) were subject to the limitation against multiple punishment contained in section 654 and held that the enactment of section 667.6(c) did not repeal the prohibition in section 654 on multiple punishment for a single act or omission. That case, however, "[did] not present the question of whether or not the enactment of [section 667.6(c) ] was intended by the Legislature to abrogate or modify the judicially engrafted 'indivisible' or 'single transaction' rule." (45 Cal.3d at p. 822, 248 Cal.Rptr. 110, 755 P.2d 294, italics added; cf. People v. Craft, supra, 41 Cal.3d 554, 559, fn. 2, 224 Cal.Rptr. 626, 715 P.2d 585.) Using the indivisible transaction rule, courts have expanded the scope of section 654, which by its terms prohibits multiple punishment only of "[a]n act or omission which is made punishable in different ways by different [Penal Code] provisions," also to prohibit multiple punishment of separate acts, committed incident to one objective, which comprise an indivisible course of conduct. (People v. Latimer, supra, 5 Cal.4th 1203, 1208, 23 Cal.Rptr.2d 144, 858 P.2d 611.)

The defendant in Siko was convicted of forcible rape, forcible sodomy, and forcible lewd conduct with a child under the age of 14 years and received consecutive full-term sentences pursuant to section 667.6(c). "[T]he lewd conduct for which defendant was convicted consisted only of the rape and the sodomy." (People v. Siko, supra, 45 Cal.3d 820, 823, 248 Cal.Rptr. 110, 755 P.2d 294.) Accordingly, we held that section 654's proscription against "multiple punishment for a single 'act or omission' " would be violated by punishing the defendant on all three convictions "because he committed only two criminal acts." (45 Cal.3d at p. 823, 248 Cal.Rptr. 110, 755 P.2d 294.) We concluded that "the Legislature did not intend [section 667.6(c) ] to carve out an implied exception to section 654 by allowing a single act to be punished twice." (45 Cal.3d at p. 825, 248 Cal.Rptr. 110, 755 P.2d 294, italics added.)

The People argued in Siko that the Legislature demonstrated an intent partially to repeal section 654 by authorizing...