People v. Latimer

• Decision Date: 04 October 1993
• Docket Number: No. S027839,S027839
• Citation: 5 Cal.4th 1203,858 P.2d 611,23 Cal.Rptr.2d 144
• Court: California Supreme Court
• Parties: , 858 P.2d 611 The PEOPLE, Plaintiff and Respondent, v. Derek LATIMER, Defendant and Appellant.

Page 144

23 Cal.Rptr.2d 144

5 Cal.4th 1203, 858 P.2d 611

The PEOPLE, Plaintiff and Respondent, v. Derek LATIMER, Defendant and Appellant.

No. S027839.

Supreme Court of California,

In Bank.

Oct. 4, 1993.

Janyce Keiko Imata Blair, El Segundo, under appointment by the Supreme Court, for defendant and appellant.

Jack Funk, Deputy Public Defender, Contra Costa, as amicus curiae on behalf of defendant and appellant.

John K. Van de Kamp, Daniel E. Lungren, Attys. Gen., Richard B. Iglehart, George Williamson, Chief Asst. Attys. Gen., Gary W. Schons, Harley D. Mayfield, Asst. Attys. Gen. and Garrett Beaumont, Maxine Cutler, Louis R. Hanoian and Janelle B. Davis, Deputy Attys. Gen., for plaintiff and respondent.

ARABIAN, Justice.

A person kidnaps his victim, drives her into a desert, then rapes her and leaves her behind. May he be punished for the kidnapping as well as the rape under Penal Code section 654, which prohibits multiple punishment for "[a]n act or omission" that is punishable by different provisions of the code? A divided Court of Appeal held that such separate punishment is not permitted because the sole objective of the kidnapping was to facilitate the rape.

This result was based on a decision of this court over 30 years ago that established the direction multiple-punishment analysis has taken in California ever since. (Neal v. State of California (1960) 55 Cal.2d 11, 9 Cal.Rptr. 607, 357 P.2d 839.) The Attorney General asks us to overrule the test stated in Neal and subsequent cases, and to adopt a new test that, it is argued, makes punishment commensurate with culpability, and is true to the language and purpose of Penal Code section 654.

While sympathetic with some of the Attorney General's arguments, we conclude that we may not now overrule Neal, supra, 55 Cal.2d 11, 9 Cal.Rptr. 607, 357 P.2d 839, and its progeny. For three decades, the Legislature has enacted new sentencing statutes in light of those cases. Although the Legislature has not expressly ratified the Neal rule, it has impliedly accepted it. In some respects, the sentencing structure we have today would be different but for the Neal line of cases. To overrule them now would result in a sentencing scheme intended by no one. Principles of stare decisis compel us to adhere to the Neal test. Any changes must be made by the Legislature, not this court.

We therefore affirm the judgment of the Court of Appeal.

I. FACTS

As part of a plea bargain, defendant pleaded nolo contendere to two counts of forcible rape (Pen.Code, § 261, former subd. (2)) and one count of kidnapping (Pen.Code, § 207, subd. (a)); as to one of the rapes, he admitted inflicting great bodily injury. (Pen.Code, § 12022.8.) He had been charged with three counts of rape, two of kidnapping and one of forcible oral copulation. It was agreed that defendant would not receive a prison sentence greater than 20 years, 8 months, and that the remaining counts would be dismissed. Because the plea was entered before the preliminary hearing, the parties stipulated that the report of the sheriff's department constituted a factual basis for the plea. The court sentenced defendant to prison for six years for each of the two rapes, for five years for the infliction of great bodily injury, and for a consecutive term of one year, eight months (one-third of the midterm) for the kidnapping, for a total of eighteen years, eight months.

The sheriff's department and probation reports establish that on Christmas Eve 1989, defendant and the victim, who had met defendant once before, went on some errands in a car borrowed from a friend. At one point, instead of stopping as he was supposed to, defendant drove past the end of the paved road and into an undeveloped area of nearby desert.

Defendant then assaulted the victim. He hit and choked her to force her to undress and submit to him. He then raped her and forced her to orally copulate him. Afterwards, both defendant and the victim got dressed, and defendant drove away. Rather than return to town, however, defendant drove about 50 to 75 yards farther into the desert. There, he raped her a second time. They got dressed again, and again defendant drove farther into the desert. After driving another 30 to 75 yards, defendant stopped the car for a third time. This time the victim, fearing that defendant would kill her, jumped out of the car and ran into the desert. Defendant drove away.

The victim suffered a broken jaw, and had bruises and scratches on her eye, neck, back, hip and arm.

The Court of Appeal, by a two-to-one vote, held that Penal Code section 654 prohibited punishment for the kidnapping in addition to the rapes. Preliminarily, it held that defendant could raise the issue on appeal despite the plea bargain. ¹ It found that the kidnapping was carried out solely to further defendant's "intent and objective" to rape, and that therefore separate punishment for that crime was prohibited. In dissent, Justice Dabney argued that the plea bargain precluded raising the contention on appeal and that, on the merits, separate punishment was proper.

We granted review limited to the merits of the Penal Code section 654 issue.

II. DISCUSSION

A. The Neal Test

Penal Code section 654 (section 654), which has remained substantially unchanged since its enactment in 1872, ² provides: "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; an acquittal or conviction and sentence under either one bars a prosecution for the same act or omission under any other." This statute was interpreted in Neal v. State of California, supra, 55 Cal.2d 11, 9 Cal.Rptr. 607, 357 P.2d 839 (Neal ), a habeas corpus case.

In Neal, supra, 55 Cal.2d at page 15, 9 Cal.Rptr. 607, 357 P.2d 839, the petitioner "threw gasoline into the bedroom of [the victims] and ignited it. The [victims] were severely burned. Petitioner was tried and convicted on two counts of attempted murder and one count of arson...." The issue was whether section 654 prohibited separate sentencing for the crimes. We held that consecutive sentences for the two attempted murders were proper because they were crimes of violence against separate victims (id. at pp. 20-21, 9 Cal.Rptr. 607, 357 P.2d 839), but reached a different conclusion regarding the arson.

After finding that conviction for all the crimes rested upon the "act of throwing gasoline into the bedroom of [the victims] and igniting it," we held that section 654 prohibits "[p]unishment for two offenses arising from the same act...." (Neal, supra, 55 Cal.2d at p. 18, 9 Cal.Rptr. 607, 357 P.2d 839.) "Insofar as only a single act is charged as the basis for the conviction ..., the defendant can be punished only once." (Id. at p. 19, 9 Cal.Rptr. 607, 357 P.2d 839.) We cited as an example People v. Brown (1958) 49 Cal.2d 577, 590-594, 320 P.2d 5, which held that when a single act of abortion caused death, punishment for either the former crime of abortion or murder was proper, but not for both. We then noted, "Few if any crimes, however, are the result of a single physical act. 'Section 654 has been applied not only where there was but one "act" in the ordinary sense ... but also where a course of conduct violated more than one statute and the problem was whether it comprised a divisible transaction which could be punished under more than one statute within the meaning of section 654.' (People v. Brown, supra, 591 .)" (Neal, supra, 55 Cal.2d at p. 19, 9 Cal.Rptr. 607, 357 P.2d 839.)

The Neal opinion then stated the test that has been followed ever since: "Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one." (Neal, supra, 55 Cal.2d at p. 19, 9 Cal.Rptr. 607, 357 P.2d 839, italics added.)

This statement, and, specifically, reliance on the "intent and objective of the actor," was a substantial departure from our earlier decision of In re Chapman (1954) 43 Cal.2d 385, 273 P.2d 817 (Chapman ). In that case, the petitioner had been convicted of robbery and felony assault. We upheld separate punishment for both crimes, finding that the force used for the robbery was separate from that of the assault. "If the force relied upon to establish the robbery is the same which is required to prove the assault, then petitioner is being punished twice for the same act contrary to section 654 of the Penal Code, but if it is not the same then the two convictions and sentences can stand." (Id. at pp. 388-389, 273 P.2d 817.) We noted that "[m]ultiple convictions have been affirmed in cases in which separate and divisible acts have been proved as the basis of each conviction even though those acts were closely connected in time and were part of the same criminal venture." (Id. at p. 389, 273 P.2d 817.)

We then stated the test: "It is only when the two offenses are committed by the same act or when that act is essential to both that they may not both be punished." (Chapman, supra, 43 Cal.2d at p. 390, 273 P.2d 817.)

The test applied in Chapman has never been expressly disapproved, ³ but it has been implicitly abandoned in favor of the Neal "intent and objective" test. ⁴ The latter has been cited many times both by this court and Courts of Appeal. (E.g., People v. Harrison (1989) 48 Cal.3d 321, 335, 256 Cal.Rptr. 401, 768 P.2d 1078 ["[w]e have traditionally observed" the Neal test]; People v. Perez (1979) 23 Cal.3d 545, 550-554, 153 Cal.Rptr. 40, 591 P.2d 63 [different sex offenses were committed with separate intents and objectives, so could be punished separately]; People v. Beamon, supra, 8 Cal.3d 625, 636-640, 105 Cal.Rptr. 681, 504 P.2d 905 [...