People v. Lockheed Shipbuilding & Constr. Co.

• Decision Date: 16 March 1977
• Docket Number: Cr. A
• Citation: 138 Cal.Rptr. 445,69 Cal.App.3d Supp. 1
• Court: California Superior Court
• Parties: 69 Cal.App.3d Supp. 1 The PEOPLE, Plaintiff and Respondent, v. LOCKHEED SHIPBUILDING AND CONSTRUCTION COMPANY, Defendant and Appellant.14615. Appellate Department, Superior Court, Los Angeles County, California

Page 445

138 Cal.Rptr. 445

69 Cal.App.3d Supp. 1

The PEOPLE, Plaintiff and Respondent, v. LOCKHEED SHIPBUILDING AND CONSTRUCTION COMPANY, Defendant and Appellant.

Cr. A. 14615.

Appellate Department, Superior Court, Los Angeles County, California.

March 16, 1977.

O'Melveny & Myers, Charles G. Bakaly, Robert A. Siegel and Charles G. Bakaly Los Angeles, for defendant and appellant.

Burt Pines, City Atty. and Ward G. McConnell, Deputy City Atty., for plaintiff and respondent.

THOMAS, Judge. ^*

Defendant Lockheed Shipbuilding and Construction Company (herein Lockheed) appeals from the judgment entered after Lockheed pleaded nolo contendere to 26 This is the third appeal before us arising from charges of Lockheed's certain criminal activities in its construction of a tunnel. Upon a previous appeal by Lockheed (People v. Lockheed Shipbuilding & Construction Company (1975) 50 Cal.App.3d Supp. 15, 123 Cal.Rptr. 778) from a conviction upon those same charges as are involved here (which conviction came after a very lengthy trial), we reversed the judgment for those reasons set out in our aforementioned opinion. Thereafter, Lockheed entered its nolo contendere plea to each of said counts, and after judgment was entered, prosecuted this appeal.

counts which charged violations of Labor Code sections 6400, 6401, 6402, 6404 and 6416, all misdemeanors. After entering the plea, Lockheed was fined on each of the 26 counts for a total on all counts of $106,250, including penalty assessment.

The ground for Lockheed's present appeal is that 'the sentence (which was) imposed . . . was violative of the California Penal Code § 654 bar against multiple punishment for a single act, omission, or course of conduct.' We conclude that the judgment upon counts 1 through 16, 34, 86, 37, 38, 46 and 47 was proper and affirm the judgment as to those counts. However, we conclude that the punishment ordered concerning counts 39, 40, 48 and 49 was improper and modify the judgment as to these counts by staying execution of the sentence on said counts for the time and in the manner set out below.

LOCKHEED MAY PROSECUTE THIS APPEAL

Before addressing ourselves to the issue raised by Lockheed, we consider the effect of Lockheed's nolo contendere plea on its ability to argue here that the sentence imposed violated Penal Code section 654 or otherwise was improper. ¹

The People assert that it is improper for this court to review a municipal court judgment after a nolo contendere plea (except upon matters not applicable), and that, in any event, this court cannot examine the trial record when determining the propriety of a judgment relative to Penal Code section 654. Lockheed in turn asserts that it is not precluded by its plea from appealing on the ground that the judgment violates Penal Code section 654, and that this court may review the entire record from the original trial below in resolving the issue.

We determine that Lockheed is correct in both its assertions. In Seiterle v. Superior Court (1962) 57 Cal.2d 397, 20 Cal.Rptr. 1, 369 P.2d 697, the defendant pleaded guilty to two counts of murder in the first degree and several other counts, including two counts of kidnapping for the purpose of robbery with bodily harm and one count of conspiracy to commit murder in the first degree. Thereafter, a trial was held on the sole issue of penalty and the jury fixed the defendant's punishment. On defendant's appeal from that judgment, the Supreme Court reversed the trial court for certain described errors related to the penalty on the murder counts but only modified that portion of the judgment imposing sentences of life imprisonment for the offenses of kidnapping, remanding the matter for retrial of the penalty issue on the murder counts. Defendant unsuccessfully moved for dismissal of the murder counts on the ground that retrial of the penalty issue contravened the provisions of Penal Code section 654 precluding multiple prosecution after which he sought a writ of prohibition from the Supreme Court. In denying the petition for a writ, the court considered in detail the evidence adduced at the penalty trial when determining the merit of defendant's assertion that Penal Code section 654 precluded the court from further sentencing him.

In People v. Rosenberg (1963) 212 Cal.App.2d 773, 28 Cal.Rptr. 214, the defendant We are aware that in Seiterle v. Superior Court, supra, the court said (57 Cal.2d at pp. 400--401, 20 Cal.Rptr. at p. 3, 369 P.2d at p. 699), 'By pleading guilty to all (the charged offenses) . . . without reserving, or attempting to reserve in any fashion, the question whether the (offenses) . . . constituted indivisible transactions so as to prevent their double punishment under Penal Code section 654, (appellant), . . . at least prima facie, admitted that the crimes were separate and not indivisible.' And in People v. Rosenberg, supra, the court restated the principle (212 Cal.App.2d at pp. 775--776, 28 Cal.Rptr. 214). However, neither court discussed the meaning of its 'prima facie' admission rule and in both cases the courts, without further mention of the rule, discussed the evidence (facts in the probation report in People v. Rosenberg, supra) in some detail when determining the applicability of Penal Code section 654. The reporter's transcript reveals that, at the time of sentencing, Lockheed clearly did all it could to raise the issue of Penal Code section 654. Thus, whatever the implication in the above cases may be that a defendant's failure to reserve of sentencing section 654 issue at time of sentencing waives it, said rule cannot apply here in view of Lockheed's consistent assertions of the applicability of Penal Code section 654.

pleaded guilty to two counts, one for grand theft on or about April 20, 1961, and the other for forgery of a fictitious name on or about the same day. From the judgment on the two counts, defendant then appealed, contending on page 775, 28 Cal.Rptr. on page 215, that 'both violations of law arose out of but one single course of conduct . . .." In determining that defendant could raise the issue after a guilty plea and that the court could examine a probation report to determine the applicability of Penal Code section 654, the court said at page 776, 28 Cal.Rptr. at page 215, 'However, if matter is before the trial court which suggests the probability that he several offenses constituted a course of conduct comprising an indivisible transaction, that court must pursue the matter further so that the question so raised may be resolved in harmony with the provisions of section 654 of the Penal Code and the reasoning of the Neal (v. State of California (1960) 55 Cal.2d 11, 9 Cal.Rptr. 607, 357 P.2d 839) case.' Although both above cases involved the review of a superior court judgment, we are directed to no authority which would make the principles set out above inapposite to this appeal from the municipal court judgment. (We find no help for the People's assertion in People v. Rawlings (1974) 42 Cal.App.3d 952, 117 Cal.Rptr. 651, on which People rely.) Thus, we hold that Lockheed's plea does not preclude it from raising the issue of the validity of the judgment relative to Penal Code section 654 and that we must examine the trial record to determine whether among the several counts to which Lockheed pleaded are two or more which are based on the same act or course of conduct. ²

FACTUAL BASES FOR THE COUNTS TO WHICH LOCKHEED PLEADED

The several counts in the complaint against Lockheed arise from certain incidents which occurred on June 22--24, 1971 during the construction of a tunnel near Sylmar, California. The construction was under the supervision of Lockheed who was the general contractor and was for the use of the Metropolitan Water District in the transfer of water.

The tunnel excavation was done by operation of a 162-foot long mining machine which simultaneously scooped the earth out of the tunnel and formed its walls in concrete and steel. The earth or 'muck' was scooped from the tunnel face and carried on a conveyor belt to rail cars. Of the total tunnel length of 5.5 miles all but approximately 2,000 feet had been completed by June 22, 1971.

The nature of the charges against Lockheed and the application of Penal Code

section 654 to certain of those charges can be understood better if the relevant time span is divided into four periods and each of the charged criminal activities in the several counts is assigned to one of said periods. ³

1. June 22, 1971

During the swing shift on June 22, 1971, a strong odor similar to kerosene or diesel fuel was present in the tunnel, causing eye, nose and throat irritation. There was testimony that such odors may or may not indicate the presence of flammable gases. The odor became stronger as the shift continued and demands were made of a Lockheed supervisor to have gas tests made. The supervisor discounted the problem, explaining that the odors were probably not caused by flammable gas. He did order tests made and the tester testified that no positive readings were obtained for flammable gas. There was also testimony, however, that the tester was inexperienced and that one worker saw a high reading obtained which was never reported.

Count 34, charging violation of Labor Code section 6401, relates to this period.

2. June 23 from Midnight to Approximately 2:09 a.m.

During the graveyard shift the odor continued to be strong and gas testing continued. (The testing was done with a device called an Explos-A-Meter; the dial is calibrated on a scale of 0 to 100 percent of the lower explosive limit. Any reading in the red zone of 60 percent to 100 percent is highly volatile and highly dangerous.) During this period, readings of up to 19 percent were obtained. The 19 percent reading was reported while a Lockheed supervisor was standing close enough to hear, but he later denied knowledge of a 19 percent reading. When the tester reported gas...