People v. Moringlane

• Decision Date: 12 January 1982
• Docket Number: Cr. 10170
• Citation: 179 Cal.Rptr. 726,127 Cal.App.3d 811
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Louis Francisco MORINGLANE, Defendant and Appellant.

Page 726

179 Cal.Rptr. 726

127 Cal.App.3d 811

The PEOPLE of the State of California, Plaintiff and Respondent, v. Louis Francisco MORINGLANE, Defendant and Appellant.

Cr. 10170.

Court of Appeal, Fourth District, Division 2, California.

Jan. 12, 1982.

Howard J. Berman, San Francisco, under appointment by the Court of Appeal, for defendant and appellant

George Deukmejian, Atty. Gen., Michael D. Wellington and Bruce Daniel Rosen, Deputy Attys. Gen., for plaintiff and respondent.

OPINION

KAUFMAN, Acting Presiding Justice.

Viewed most favorably to the People who prevailed below, the evidence establishes that shortly after 5 p.m. on February 4, 1978, defendant Moringlane and a codefendant Hector Beltran, ¹ while in an automobile owned by defendant, chased a vehicle containing Javier Francisco Silva and Michael Ruiz Rico at speeds up to 80 miles per hour in the City of Chino; that numerous rifle shots were fired by defendant at the vehicle in which Silva and Rico were riding; and that several shots missed that vehicle and hit Danny Kay McDowell and his child William S. McDowell who were traveling in another vehicle. Danny Kay McDowell was killed and William S. McDowell was seriously wounded.

In a five-count information defendant and Beltran were charged with murdering Danny Kay McDowell (count I), assault with intent to murder William S. McDowell (count II), assault with intent to murder Silva (count III), assault with intent to murder Rico (count IV) and conspiracy to murder Silva and Rico ² (count V). With respect to all of the charges it was alleged that defendant and Beltran were armed with a deadly weapon, to wit, a rifle and that each used a firearm, to wit, a rifle. In addition, in respect to the assault with intent to commit murder counts ³ (counts II, III and IV) it was alleged that with the intent to inflict such injury defendant and Beltran inflicted great bodily injury upon William S. McDowell.

Following a jury trial defendant and Beltran were found guilty on all five counts. The jury also found that the overt acts were committed as charged and that defendant was armed with and used a rifle during the commission of the offenses charged in counts II, III, IV and V. Further, the jury found true the allegations that in the commission of each of the assaults with intent to commit murder (counts II, III and IV) defendant, with the intent to inflict such injury, inflicted great bodily injury upon William S. McDowell.

The court sentenced defendant to concurrent life terms in state prison on counts I and V (first degree murder and conspiracy to commit murder). With respect to count II the court imposed a sentence of six years, three years for the assault with intent to murder William S. McDowell plus a three-year enhancement for inflicting great bodily injury upon William S. McDowell. With respect to each of counts III and IV, the assaults with intent to murder Silva and Rico respectively, the court sentenced defendant to two years in prison, one year for the substantive crime plus a one-year enhancement for inflicting great bodily injury upon William S. McDowell. The sentences imposed for counts II, III and IV, including the enhancements pertaining thereto, were ordered to be served concurrently with the sentences imposed on counts I and V.

On appeal defendant advances five contentions: (1) that the court's imposing three sentence enhancements (one on each of counts II, III and IV) for the infliction of great bodily injury upon the same person, William S. McDowell, violates Penal Code section 654 proscribing multiple punishment for a single act; (2) that the imposition of concurrent life sentences on both the murder and conspiracy to commit murder violates Penal Code section 654; (3) that inasmuch as there was evidence of intoxication, the court erred in not instructing sua sponte on voluntary manslaughter, assault with intent to commit voluntary manslaughter and diminished capacity; (4) that defendant was deprived of effective assistance of counsel by counsel's failure to investigate and assert on defendant's behalf a defense of diminished capacity; and (5) that the court erred in giving a flight instruction. Save for the first, defendant's contentions are without merit.

Multiple Enhancements for Inflicting Great Bodily Injury on William S. McDowell

Penal Code section 654 provides 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 ...." While the imposition of three sentence enhancements for the same act of inflicting great bodily injury upon the same person may not literally be prohibited by the statutory language, the effect of section 654 has not been strictly limited to its language. It is now accepted law in this state that section 654 proscribes multiple punishment for the same act unless the act constituted a crime against several persons. (See, e.g., People v. Miller (1977) 18 Cal.3d 873, 885, 887, 135 Cal.Rptr. 654, 558 P.2d 552; People v. Beamon (1973) 8 Cal.3d 625, 636-639, 105 Cal.Rptr. 681, 504 P.2d 905; People v. Johnson (1974) 38 Cal.App.3d 1, 11-12, 112 Cal.Rptr. 834.) And we are persuaded that section 654 as interpreted prohibits the imposition of multiple enhancements for the single act of inflicting great bodily injury upon one person.

To uphold the imposition of the multiple enhancements the Attorney General quotes a statement from the opinion in People v. Boerner (1981) 120 Cal.App.3d 506, 511, 174 Cal.Rptr. 629: "Section 654, which precludes multiple punishment for a single offense or course of conduct, is inapplicable to enhancements, because they individually ' " 'do not define a crime or offense but relate to the penalty to be imposed under certain circumstances.' " ' " While the result reached in Boerner was eminently correct, the quoted statement is entirely too broad and was not supported by the authorities cited and quoted out of context. A substantial number of cases hold or otherwise indicate that Penal Code section 654 does in appropriate circumstances bar the imposition of multiple sentence enhancements for the commission of a single act. (See, e.g., People v. Miller, supra, 18 Cal.3d at p. 887, 135 Cal.Rptr. 654, 558 P.2d 552; In re Culbreth (1976) 17 Cal.3d 330, 333-334, 130 Cal.Rptr. 719, 551 P.2d 23; People v. Blessing (1979) 94 Cal.App.3d 835, 840-841, 155 Cal.Rptr. 780; People v. Bush (1975) 50 Cal.App.3d 168, 178, 123 Cal.App. 576, disapproved on other grounds in People v. Walker (1976) 18 Cal.3d 232, 240, 133 Cal.Rptr. 520, 555 P.2d 306; People v. Lowe (1975) 45 Cal.App.3d 792, 796, 119 Cal.Rptr. 699; People v. Johnson, supra, 38 Cal.App.3d at pp. 11-12, 112 Cal.Rptr. 834.) There is nothing to the contrary in either People v. Walker, supra, 18 Cal.3d 232, 133 Cal.Rptr. 520, 555 P.2d 306, or People v. Strickland (1974) 11 Cal.3d 946, 114 Cal.Rptr. 632, 523 P.2d 672, partially quoted and cited for the proposition stated in Boerner. Neither of those cases had anything whatever to do with Penal Code section 654 or multiple sentence enhancements imposed as a result of a single act of the defendant.

Moreover, the statement in Boerner that section 654 is inapplicable to sentence enhancements was wholly unnecessary to the decision. In that case two sentence enhancements had been imposed: one because the defendant had wielded a dangerous or deadly weapon, a knife, in an attempted robbery; the other because the defendant had also inflicted great bodily injury on the victim with the knife. (120 Cal.App.3d at pp. 508, 510, 174 Cal.Rptr. 629.) As the Boerner court correctly stated, "section 1170.1, subdivision (d), expressly permits a sentencing court to impose both of the cited enhancements in cases of attempted robbery." (Id., at p. 511, 174 Cal.Rptr. 629, fns. omitted.) And even in the absence of express statutory authority, the imposition of two sentence enhancements in that case would have been wholly consonant with the statutory purpose because the acts sought to be deterred by the two enhancements were entirely distinct: (1) being armed with a deadly or dangerous weapon and (2) inflicting great bodily injury.

The principles set forth and applied in People v. Miller, supra, 18 Cal.3d at p. 887, 135 Cal.Rptr. 654, 558 P.2d 552, In re Culbreth, supra, 17 Cal.3d at pp. 333-334, 130 Cal.Rptr. 719, 551 P.2d 23, and the Court of Appeal decisions previously cited are controlling. While all of them dealt with multiple enhancements based on firearm "use" or "armed" allegations, we perceive no meaningful distinction from that fact so far as the application of Penal Code section 654 is concerned. Here the only great bodily injury pleaded and proved was upon William S. McDowell. It resulted from a single act of defendant. Multiple punishment therefor is proscribed by Penal Code section 654. Accordingly, the two one-year enhancements imposed in respect to counts III and IV on account of the infliction of great bodily injury on William S. McDowell will be stricken and the abstract of judgment ordered modified accordingly.

Multiple Punishment for Murder and Conspiracy to Commit Murder

It is of course true that Penal Code section 654 prohibits the imposition of sentences, whether concurrent or consecutive, for both a murder and conspiracy to commit the murder. (E.g., People v. Richardson (1978) 83 Cal.App.3d 853, 868, 148 Cal.Rptr. 120, disapproved on other grounds in People v. Saddler (1979) 24 Cal.3d 671, 682, fn. 8, 156 Cal.Rptr. 871, 597 P.2d 130.) However, "if 'a conspiracy had an objective apart from an offense for which the defendant is punished, he may properly be sentenced for the conspiracy as well as for that offense. (Citation.)' (In re Cruz (1966) 64 Cal.2d 178, 181 (49 Cal.Rptr. 289, 410 P.2d 825); In re Romano (1966) 64 Cal.2d 826, 828-829 (51 Cal.Rptr. 910, 415 P.2d 798); People v....