People v. Morris, Cr. 2344

Citation47 Cal.Rptr. 253,237 Cal.App.2d 773
Decision Date29 October 1965
Docket NumberCr. 2344
CourtCalifornia Court of Appeals
PartiesThe PEOPLE, Plaintiff and Respondent, v. Elizabeth Ann MORRIS, Defendant and Appellant.

Huckenpahler & Dion, and Michael A. Dion, Costa Mesa, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., Donald Dungan, City Atty., and Roy E. June, Asst.City Atty., for plaintiff and respondent.

COUGHLIN, Justice.

The defendant was charged with violating § 23102(a) of the Vehicle Code, i. e., driving a motor vehicle while under the influence of intoxicating liquor; in propria persona, entered a plea of guilty; and was sentenced. Four days later she was charged with violating § 14601 of the Vehicle Code, i. e., driving a motor vehicle at a time when her operator's license had been revoked; thereafter, in propria persona, entered a plea of guilty; and was sentenced to imprisonment in the county jail. Each of the foregoing offenses was based on the same motor vehicle operation occasion. Three days after imposition of sentence in the later case, through an attorney, defendant moved the court to set aside the judgment therein on the ground that its prosecution was proscribed by § 654 of the Penal Code, for which reason the court lacked jurisdiction in the premises. The motion was denied. Defendant appealed to the Superior Court of Orange County; posted bail; and was released. That court reversed the judgment, but certified the case to this court for hearing and decision. (Rule 63, Calif.Rules of Court.) Thereupon, we ordered such a transfer. (Rule 62, Calif.Rules of Court.)

It is proper to note at this juncture that, although the appeal was from a judgment on a plea of guilty, as the irregularity of which the defendant complains goes to the legality of the proceedings before the trial court and she sought relief from such in that court the matter properly may be considered by this court. (Stephens v. Toomey, 51 Cal.2d 864, 870, 338 P.2d 182; People v. Natividad, 222 Cal.App.2d 438, 440, 35 Cal.Rptr. 237; People v. Mistretta, 221 Cal.App.2d 42, 43, 34 Cal.Rptr. 365; People v. Rosenberg, 212 Cal.App.2d 773, 775, 28 Cal.Rptr. 214.)

The provisions of § 654 of the Penal Code proscribe multiple prosecutions for criminal offenses based upon the same act (Neal v. State of California, 55 Cal.2d 11, 21, 9 Cal.Rptr. 607), and apply not only to offenses described in that code but also to those described in the Vehicle Code. (People v. Young, 224 Cal.App.2d 420, 424, 36 Cal.Rptr. 672; see also People v. Brown, 49 Cal.2d 577, 591 [f.4], 320 P.2d 5; People v. Manago, 230 Cal.App.2d 645, 647, 41 Cal.Rptr. 260.)

The offenses included within the proscription are those which arise out of a single 'act' in the ordinary sense of that term (People v. Brown, supra, 49 Cal.2d 577, 591, 320 P.2d 5; People v. Manago, supra, 230 Cal.App.2d 645, 647, 41 Cal.Rptr. 260), and also those which arise out of a course of conduct of such a nature as to amount to a single act, viz, which does not consist of divisible transactions. (People v. Brown, supra, 49 Cal.2d 577, 591, 320 P.2d 5; People v. Manago, supra, 230 Cal.App.2d 645, 647, 41 Cal.Rptr. 260; People v. Stoltz, 196 Cal.App.2d 258, 264, 16 Cal.Rptr. 285.)

Where a single physical act constituting an essential element of two or more offenses allegedly is committed by an accused, the prosecution thereof is limited to a single proceeding. (People v. Brown, supra, 49 Cal.2d 577, 590, 320 P.2d 5; In re Chapman, 43 Cal.2d 385, 389, 273 P.2d 817; People v. Logan, 41 Cal.2d 279, 290, 260 P.2d 20; People v. Knowles, 35 Cal.2d 175, 188, 217 P.2d 1; People v. Greer, 30 Cal.2d 589, 603-604, 184 P.2d 512; People v. Rainey, 224 Cal.App.2d 93, 101-102, 36 Cal.Rptr. 291; People v. Emory, 192 Cal.App.2d 814, 826-827, 13 Cal.Rptr. 889.)

The physical act of driving a motor vehicle is an essential factor to both the offense of driving while intoxicated and driving while the operator's license was revoked. In the case at bench the People relied upon a single act of driving a motor vehicle in support of their dual prosecutions. The charges which were the basis for those prosecutions rested upon the defendant's identical act of operating a motor vehicle at a particular time and place.

The People contend that the 'act' referred to in § 654 is a 'criminal act'; that the act of driving an automobile is not criminal; and for this reason § 654 does not apply to the instant case. Neither the statute nor the decisions applying such justify such an interpretation. Of particular note are the many decisions applying § 654 where the act under consideration, of itself, was not criminal but became such only because of the status of the alleged victim (People v. Greer, supra, 30 Cal.2d 589, 601, 603, 184 P.2d 512), the condemned purpose of the act (People v. Brown, supra, 49 Cal.2d 577, 590, 320 P.2d 5; People v. Emory, supra, 192 Cal.App.2d 814, 826-827, 13 Cal.Rptr. 889), or the intent of the actor, e. g., to defraud. (People v. Martin, 208 Cal.App.2d 867, 876, 25 Cal.Rptr. 610.) In reality, the argument in support of the People's contention is directed to the proposition that the circumstances at hand support the conclusion defendant was chargeable with separate offenses. The fact that the operation of an automobile while under the influence of intoxicating liquor is a separate offense from the operation of an automobile while the operator's license is revoked, because a particular factor is essential to one and not to the other (People v. Day, 199 Cal. 78, 83, 248 P. 250; People v. Kuhn, 216 Cal.App.2d 695, 700, 31 Cal.Rptr. 253), does not support the conclusion that, where both offenses arise out of one automobile operation occasion, the act of the operator which is an additional factor essential to each offense also is separate. In applying § 654, 'It is the singleness of the act and not of the offense that is determinative.' (People v. Knowles, supra, 35 Cal.2d 175, 187, 217 P.2d 1, 8; People v. Martin, supra, 208 Cal.App.2d 867, 877, 25 Cal.Rptr. 610.)

The purpose of the statute proscribing multiple prosecutions 'is a procedural safeguard against harassment * * *.' (Neal v. State of California, supra, 55 Cal.2d 11, 21, 9 Cal.Rptr. 607, 612, 357 P.2d 839, 844.) This purpose is particularly served in a case such as the one at bench where a defendant, in propria persona, pleads guilty to a traffic offense; is sentenced; and thereafter is required to respond to a second prosecution for an additional offense arising out of the same case which was the basis for the first prosecution.

The judgment is reversed and the trial court is directed to dismiss the case and exonerate defendant's bail.

GERALD BROWN, P. J., concurs.

WHELAN, Justice (dissenting).

I respectfully dissent.

Understanding of the reasons for my doing so requires a rather full treatment of the case.

THE FACTS

A complaint, dated December 17, 1964, charging defendant with the violation of section 23102(a), Vehicle Code, was filed on December 18, 1964, alleging the time and place of the offense as on or about December 17, 1964 on Placentia Avenue, between West Eighteenth and West Nineteenth Streets. Her plea of guilty to that charge was made on December 24, 1964. At that time she presented a temporary driver's license to the court. 1 She waived time for On June 26, 1964, DMV had revoked defendant's license to operate a vehicle on the public highway for a third or subsequent conviction of driving while under the influence of intoxicating liquor. Defendant signed a receipt for copy of the order of revocation on July 12, 1964.

pronouncement of judgment; she was immediately sentenced to pay a fine of $250, which was paid. An abstract of the judgment was thereafter mailed by the clerk of the court to the Department of Motor Vehicles (DMV) in Sacramento.

The complaint charging defendant with a violation of section 14601, Vehicle Code, was filed December 28. It alleged the time and place of the offense as being upon Placentia Avenue on or about December 17, 1964.

On January 12, 1965, the date of defendant's arrest on the second charge, she appeared in court and entered a plea of guilty. Again she waived time for pronouncement of judgment and sentence was imposed immediately that she serve 60 days in jail.

As a part of the record on appeal is the following:

'EVIDENCE MATERIAL TO THIS APPEAL

'Each of the aforesaid Vehicle Code violations as charged against Elizabeth Ann Morris, arose out of W.E.S. and were based upon the same occasion of her operation of a motor vehicle upon Placentia Avenue in the City of Costa Mesa, California, on December 17, 1964. Roy E. June, Deputy City Attorney for the City of Costa Mesa, and George J. Jeffries, Deputy District Attorney for the County of Orange, have each agreed to stipulate to this evidence for the purposes of this appeal.' [sic]

The majority opinion states: 'Each of the foregoing offenses was based on the same motor vehicle operation occasion.' The statement, if true, rests upon the meaning of the stipulation, whose meaning and effect will be discussed later.

DEFENDANT'S CLAIM OF HARASSMENT

Defendant's claim, accepted by the majority opinion, that the binary prosecution constitutes harassment, resulted in prohibited double punishment, and is forbidden by section 654, Penal Code, seems to me to be without merit.

Giving attention to the claim of harassment, it is probable that the cause of the second prosecution was defendant's fraud in producing to the court a temporary driver's permit which could have been obtained only by misrepresentation or concealment on her part. It may be inferred, therefore, that she did not then disclose to the court, nor at the time of her arrest had she revealed to the arresting officer, that her driving privileges had been revoked. Although the record is silent as to whether at the time of her arrest she had already obtained...

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  • Hayes, In re
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    ...under the instant circumstances this test of Neal cannot be of aid to defendant. Petitioner relies heavily upon People v. Morris (1965) 237 Cal.App.2d 773, 47 Cal.Rptr. 253, which in a similar factual situation declared that section 654 proscribed multiple Prosecutions for drunk driving and......
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