People v. Manago

• Decision Date: 16 November 1964
• Docket Number: Cr. 4487
• Citation: 230 Cal.App.2d 645,41 Cal.Rptr. 260
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Joe Ricco MANAGO, Defendant and Appeallant.
• Court: California Court of Appeals Court of Appeals

Page 260

41 Cal.Rptr. 260

230 Cal.App.2d 645

PEOPLE of the State of California, Plaintiff and Respondent, v. Joe Ricco MANAGO, Defendant and Appeallant.

Cr. 4487.

District Court of Appeal, First District, Division 3, California.

Nov. 16, 1964.

Robert H. Laws, Jr., appointed by this court, San Francisco, for appellant.

Stanley Mosk, Atty. Gen., Albert W. Harris, Jr., and Edward P. O'Brien, Deputy Attys. Gen., San Francisco, for respondent.

DRAPER, Presiding Justice.

This appeal turns on the multiple prosecution bar of Penal Code, Section 654. '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.'

Defendant entered the employees' locker room of a San Francisco department store. This area was not open to the public, and defendant was not an employee. He was observed going through the pockets of garments in two lockers, and was arrested. A straight edge razor was found in his pocket. Complaints were filed charging him with burglary and with violation of a city ordinance which makes it a misdemeanor for one carrying such a weapon concealed upon his person to 'hide, lurk, or loiter upon or about the premises of another.' At his first trial on the felony charge the jury disagreed and was discharged June 19, 1963. That case was promptly set for retrial, but the misdemeanor complaint was refiled June 24, jury was waived, the case was tried and a judgment of conviction entered the same day. On July 2, defendant was sentenced to 6 months imprisonment in county jail, and commitment issued. Retrial of the burglary charge began July 15, and the next day the jury found him guilty of burglary in the first degree. The only ground for the first degree finding is his possession of the razor. Motion for new trial was denied. He was sentenced to state prison and appeals.

The decisions concerning Section 654 have dealt almost wholly with its first clause, which prohibits multiple punishment for a single act or omission, even though it be made punishable by more than one code section. It seems clear, however, that the rule against multiple prosecution is at least as broad as that against double punishment (Neal v. State of California, 55 Cal.2d 11, 21, 9 Cal.Rptr. 607, 357 P.2d 839; and see 10 U.C.L.A.L.Rev. 870). We look, then, to the double punishment cases for guidance (see Seiterle v. Superior Court, 57 Cal.2d 397, 20 Cal.Rptr. 1, 369 P.2d 697).

Although Section 654 ostensibly relates only to punishment or prosecution under two provisions of 'this (i. e. Penal) Code', the rule also applies to an act made punishable by provisions of different codes (Neal v. State, supra, 55 Cal.2d 11, 18, fn. 1, 9 Cal.Rptr. 607, 357 P.2d 839; People v. Brown, 49 Cal.2d 577, 591, fn. 4, 320 P.2d 5; see People v. Kynette, 15 Cal.2d 731, 761-762, 104 P.2d 794). An appellate department decision (People v. Williams, 207 Cal.App.2d Supp. 912, 919, 24 Cal.Rptr. 922) has held that Section 654 applies also to a municipal ordinance. This rule seems consistent with the intent and purpose of the section, and we adopt it.

Section 654 patently applies when there is but a single act. It also applies when a course of conduct which does not consist of divisible transactions violates more than one penal provision (Neal v. State, supra, 55 Cal.2d 11, 18, 9 Cal.Rptr. 607, 357 P.2d 839). Whether a course of conduct is divisible depends upon the intent and objective of the actor, and if all the offenses were incident to but one objective, the defendant may be punished for only one (id.). Thus the section proscribes punishment for burglary and for theft of goods taken as a result of the burglarious entry (People v. McFarland, 58...