People v. Norrell

• Decision Date: 11 April 1996
• Docket Number: No. S046542,S046542
• Citation: 13 Cal.4th 1,51 Cal.Rptr.2d 429,913 P.2d 458
• Court: California Supreme Court
• Parties: , 913 P.2d 458, 96 Cal. Daily Op. Serv. 2599, 96 Daily Journal D.A.R. 4224 The PEOPLE, Plaintiff and Appellant, v. Franklin Edward NORRELL et al., Defendants and Respondents.

Page 429

51 Cal.Rptr.2d 429

13 Cal.4th 1, 913 P.2d 458, 96 Cal. Daily Op. Serv. 2599,

96 Daily Journal D.A.R. 4224

The PEOPLE, Plaintiff and Appellant, v. Franklin Edward NORRELL et al., Defendants and Respondents.

No. S046542.

Supreme Court of California.

April 11, 1996.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Ronald A. Bass, Assistant Attorney General, Ann K. Jensen, David H. Rose, Joan Killen and Gerald A. Engler, Deputy Attorneys General, for Plaintiff and Appellant.

Jose Villareal, Public Defender, Matthew J. Durket, Deputy Public Defender and J. Courtney Shevelson, Carmel, for Defendants and Respondents.

MOSK, Justice.

Penal Code section 654 requires that "[a]n 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...." We have long held that this provision bars multiple punishment when a defendant is convicted of two or more offenses that are incident to one objective. (Neal v. State of California (1960) 55 Cal.2d 11, 9 Cal.Rptr. 607, 357 P.2d 839; People v. Latimer (1993) 5 Cal.4th 1203, 23 Cal.Rptr.2d 144, 858 P.2d 611 [reaffirming Neal ].) In this case we address the question whether, in imposing punishment for multiple offenses, a trial court is required to sentence a defendant only for the offense with the greatest potential term of imprisonment. We conclude that it is not.

I.

Defendants Franklin Edward Norrell and Kenneth Kiakin Lau were charged with kidnapping for robbery (Pen.Code, § 209, subd. (b)), robbery (Pen.Code, §§ 211, 212.5, former subd. (b) (Stats.1989, ch. 361, § 1, p. 1486), present subd. (c)), and reckless driving while attempting to elude a peace officer (Veh.Code, § 2800.2). Lau was alleged to have personally used a firearm (Pen.Code, § 12022.5, subd. (a)); Norrell was alleged to have been armed with a firearm. (Pen.Code, § 12022, subd. (a)(1)).

At trial, the evidence concerning the charges was to the following effect. ¹ On November 20, 1992, around midnight, Lau and Norrell, then aged 16 and 19, respectively, approached Terry Jeong in the parking lot of his restaurant in Milpitas, as he was leaving his car, a Mercedes Benz valued at $81,000. They pushed him into the backseat of the car, and, after he dropped his keys, Lau picked them up and handed them to Norrell, who drove off with Jeong and Lau. As they headed off on interstate 880, Lau placed a nine-mm. pistol to Jeong's head and demanded money. Lau removed a ring from Jeong's finger and checked his wallet for money, but found none. He then found a bundle of money on the floor containing $9,300 in cash. About one and three-tenths miles from the parking lot, Norrell stopped the car on the shoulder of the highway near an exit. Jeong was ordered to leave the car. He was not physically harmed. Lau and Norrell continued northbound on the highway.

Jeong went to a convenience store near the highway exit and telephoned the police. Based on his description, the police spotted and pursued the car. After it collided with two other vehicles, Lau and Norrell fled on foot. They were apprehended nearby and identified by Jeong. He recovered his ring and his car. A nine-mm. pistol and $9,300 in cash were found in a dumpster near the scene of the arrest.

When questioned by police, both Norrell and Lau admitted that they were guilty and that they had planned the offense. They denied being armed when they first encountered Jeong, indicating that they had found the gun inside the car. Norrell stated that his interest in coming to Milpitas was to steal a car and sell it for $8,000 to $10,000, so that he could pay off an extortion threat against his family made by members of the Sui Sing gang, a criminal street gang in San Francisco. Norrell stated that he was surprised that Lau pushed Jeong into the backseat, and that he told Lau, as they fled the parking lot, that he wanted to release the victim. Lau stated that he had planned to steal a car in order to help Norrell avert a threat to his family from the Sui Sing gang.

A jury found Lau and Norrell guilty of kidnapping for robbery, robbery, and reckless driving while attempting to elude a police officer. It also found true the firearm allegations.

Pursuant to Penal Code section 654, the trial court determined, and the People apparently conceded, that the offenses of kidnapping for robbery and robbery were incident to one objective. It stayed the sentence for kidnapping for robbery and imposed the sentence for robbery for each defendant. In total, it sentenced Norrell to state prison for six years, eight months, consisting of the upper term of five years for the robbery, one year for the firearm enhancement, and eight months for the Vehicle Code violation. It sentenced Lau to state prison for ten years, eight months, consisting of the upper term of five years for the robbery, five years for the firearm use enhancement, and eight months for the Vehicle Code violation. It required each to pay restitution. Each waived all credits for time served and waived his rights to appeal the sentence.

In imposing sentence, the trial court explained: "I have considered long and hard the issues before me in this matter. The gravity of these offenses is indeed, as the District Attorney characterizes, very, very severe. The conduct of the defendants is inexcusable and each of their records reflect[s] prior problems of understanding their obligations as an individual in this society. However, due to the age of the defendants, the totality of the circumstances surrounding this offense, fortunately the Court heard the trial and is in a position to judge the severity of this offense, the nature of seriousness and circumstances compared to other instances of the same crime, the Court is exercising its discretion in this matter.... This is a very difficult decision I have to make. On [the] one hand the current climate of people is to sentence individuals to prison for life for violent crimes, and [Mr. Lau] and Mr. Norrell have committed a very serious, violent crime, but I'm struck with two factors, one, the circumstances of the crime and both of you are youths. You have the opportunity now hopefully to rehabilitate yourself, be a[n asset] to your family and that's my wish."

The People appealed, contending that the trial court imposed an unauthorized sentence by staying the sentence on the "greater offense" of kidnapping for robbery, and imposing the sentence on the "lesser offense" of robbery. They argued that the "greater offense" is that offense which carries the longest potential term of imprisonment, and that, in this case, the kidnapping for robbery, punishable by life imprisonment with the possibility of parole (Pen.Code, § 209, subd. (b)) was the "greater offense" and the robbery, punishable by a term of two, three, or five years (id., § 213, subd. (a)(2)) was the "lesser offense." The Court of Appeal dismissed the appeal, concluding that the trial court acted within its authority under Penal Code section 654 in staying the punishment for kidnapping for robbery, even though it is punishable by a longer potential term of imprisonment than robbery. We granted review.

II.

The People, as before, contend that the trial court imposed an unauthorized sentence by staying the sentence for the "greater offense" of kidnapping for robbery and imposing a "lesser" sentence for the offense of robbery. They do not maintain that Penal Code section 654 is inapplicable to this case, but argue that the trial court has authority under the provision only to impose the punishment for the offense that carries the longest potential sentence. Otherwise, they argue, the trial court would effectively "reward" a defendant who is convicted of multiple offenses incident to one objective, and thereby frustrates legislative intent.

They are unpersuasive. Penal Code section 654 expressly provides that a defendant may be punished for either offense: "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...." (Italics added.) Although it was free to do so at any time since Penal Code section 654 was enacted in 1872, the Legislature has not limited the trial court's discretion by a requirement that it impose punishment for the offense with the greatest potential term of imprisonment. ²

We have previously so stated: if multiple offenses committed by a defendant were "incident to one objective," the defendant "may be punished for any one of such offenses but not for more than one." (Neal v. State of California, supra, 55 Cal.2d 11, 19, 9 Cal.Rptr. 607, 357 P.2d 839, italics added.) We reaffirm that conclusion here, based on the express language of Penal Code section 654.

In Neal, the defendant threw gasoline into the bedroom of his victims and ignited it; they were severely burned. He was convicted of arson and attempted murder and sentenced for both offenses. Writing for the majority, Justice Traynor concluded that punishing the defendant for both crimes violated Penal Code section 654 because they were incident to one objective, i.e., the arson was "merely incidental to the primary objective" of killing the victims. (55 Cal.2d at p. 20, 9 Cal.Rptr. 607, 357 P.2d 839.) "Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor." (Id. at p. 19, 9 Cal.Rptr. 607, 357 P.2d 839.) In sentencing pursuant to Penal Code section 654, the trial court retains discretion to impose punishment for the offense that it determines, under the facts of the case, constituted the defendant's "primary objective": "The purpose of the protection against multiple punishment is to insure that the...