People v. Mistretta

• Decision Date: 08 October 1963
• Docket Number: Cr. 3431
• Citation: 221 Cal.App.2d 42,34 Cal.Rptr. 365
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. David Wayne MISTRETTA and Jerry Albert Mitzlaff, Defendants and Appellants.
• Court: California Court of Appeals Court of Appeals

Page 365

34 Cal.Rptr. 365

221 Cal.App.2d 42

The PEOPLE of the State of California, Plaintiff and Respondent, v. David Wayne MISTRETTA and Jerry Albert Mitzlaff, Defendants and Appellants.

Cr. 3431.

District Court of Appeal, Third District, California.

Oct. 8, 1963.

Peter Fetros, Sacramento, under appointment by Third District Court of Appeal, for appellants.

Stanley Mosk, Atty. Gen., by Doris H. Maier, Asst. Atty. Gen., and Edward A. Hinz, Jr., Deputy Atty. Gen., Sacramento, for respondent.

SCHOTTKY, Justice.

David Wayne Mistretta and Jerry Albert Mitzlaff were each indicated for kidnapping for the purpose of robbery (Pen.Code, sec. 209), robbery (Pen.Code, sec. 211), forcible rape (Pen.Code, sec. 261), and aiding and abetting in forcible rape. They each entered a plea of guilty to simple kidnapping (Pen.Code, sec. 207), forcible rape, and robbery in the second degree. The trial judge ordered the sentences on the robbery convictions to run consecutively with the sentences on the kidnapping convictions and ordered that the forcible rape sentences run consecutively with the term of imprisonment on the other two counts.

Each defendant has appealed. Each contends that the trial judge erred in ordering sentence imposed on all three counts. Each defendant asserts that the sentences imposed are contrary to the mandate of section 654 of the Penal Code prohibiting double punishment. This section reads in 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; an acquittal or conviction and sentence under either one bars a prosecution for the same act or omission under any other.'

In Neal v. State of California, 55 Cal.2d 11, 18, 9 Cal.Rptr. 607, 357 P.2d 839, et seq., the Supreme Court held that the statute precluding double punishment applies also where there is a course of conduct which is part of an indivisible transaction which violates more than one statute. Whether a course of conduct is divisible depends on the intent and objective of the defendant. If all of the offenses are incident to one objective, punishment may be imposed for any one but not for more than one. (See also Seiterle v. Superior Court, 57 Cal.2d 397, 400, 20 Cal.Rptr. 1, 369 P.2d 697; People v. McFarland, 58 Cal.2d 748, 761, 26 Cal.Rptr. 473, 376 P.2d 449.)

It should first be pointed out that though the defendants entered a plea of guilty they attempted to reserve the question whether the individual acts were part of an indivisible transaction. Therefore, the matter is properly under consideration of this court. (People v. Rosenberg, 212 A.C.A. 791, 794, 28 Cal.Rptr. 214.)

The only evidence definitely before the trial court was the probation report. The transcript of the grand jury is included in the record presented to this court. The testimony of the victim as disclosed by the grand jury transcript, which is the only testimony concerning the events, discloses the following: L. K., the victim, a young woman, on the evening of October 19, 1962, entered her parents' 1958 Buick convertible which was parked in the parking area adjacent to Weinstock-Lubin's department store in Country Club Plaza. Both car doors were opened as she was inserting the key into the ignition switch, and the defendants forced their way into the car. Mitzlaff, who entered from the left, was armed. L. K. struggled and Mistretta pulled her down and forced her head into his lap. They then drove off. L. K. asked them what they were going to do, and Mistretta said, 'Everything is going to be all right. We are just going to take the car.' After the car was stopped, she commenced struggling again and both men hit her. The car was then driven to the Sacramento State College campus, where she was forced into the rear seat of the vehicle. Mitzlaff said to her: '[Y]ou know what we are going to do, don't you?' She replied: 'No, I don't. You said you were going to take the car.' Mitzlaff then got into the back seat, partially disrobed her, and had intercourse with her against her will. She was then placed in the front seat and the car was driven to a spot off Fair Oaks Boulevard where Mistretta forcibly raped her. During this series of events Mitzlaff rifled her purse, and when it was returned to her over $20 was missing. The men drove the car down Fair Oaks Boulevard to Greenback Lane where they parked the car. They took the car keys, left her, and warned her not to tell what had happened.

Appellants contend that the sentences for kidnapping and robbery should be reversed; that only the sentence for forcible rape is proper. They contend that the 'object was all of the acts which the appellants did to the victim.'

We are unable to agree with this contention because we believe that the court's determination that the kidnapping, robbery and rape for which each appellant was sentenced were separate and divisible, i. e., not pursuant to a single objective, is supported by the record.

The record...