People v. Perez

• Citation: 591 P.2d 63,153 Cal.Rptr. 40,23 Cal.3d 545
• Decision Date: 05 March 1979
• Docket Number: Cr. 20370
• Parties: , 591 P.2d 63 The PEOPLE, Plaintiff and Appellant, v. Harlo Edward PEREZ, Defendant and Appellant.
• Court: California Supreme Court

Page 40

153 Cal.Rptr. 40

23 Cal.3d 545, 591 P.2d 63

The PEOPLE, Plaintiff and Appellant, v. Harlo Edward PEREZ, Defendant and Appellant.

Cr. 20370.

Supreme Court of California, In Bank.

March 5, 1979.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Arnold O. Overoye, Asst. Atty. Gen., Paul V. Bishop and Joel E. Carey, Deputy Attys. Gen., for plaintiff and appellant.

Paul Halvonik, State Public Defender, Gary Goodpaster, Chief Asst. State Public Defender, and Mark L. Christiansen, Deputy State Public Defender, for defendant and appellant.

MANUEL, Justice.

Both the People and defendant appeal from a judgment imposing consecutive sentences entered on verdicts of guilty of forcible rape (Pen.Code, § 261, subd. 3), first degree robbery (Pen.Code, § 211), and kidnaping (Pen.Code, § 207), and staying execution of sentences entered on verdicts of guilty of forcible sodomy (Pen.Code, § 286), two counts of forcible oral copulation (Pen.Code, § 288a), assault by means of force likely to produce great bodily injury (Pen.Code, § 245) and driving an automobile without consent (Veh.Code, § 10851). ¹

The judgment entered on January 4, 1977, was amended on February 16, 1977, to provide that the sentences imposed should run consecutively with any other sentences defendant was serving. (§ 669.)

The People contend that the trial court erred in staying execution of sentence on the oral copulation and sodomy convictions. Defendant contends that the trial court exceeded its authority in amending the judgment to provide for consecutive sentences and that the evidence is insufficient to support the finding that he wilfully and intentionally inflicted great bodily injury on the victim in the course of the commission of the robbery.

FACTS

The victim was the manager of the apartment building in which defendant lived. Defendant asked her to come to his apartment to check his complaint about the floors. When she entered, defendant grabbed her and subjected her to a brutal sexual attack. During a period of 45 minutes to an hour, defendant orally copulated her, committed sodomy on her, forced her to orally copulate him, had vaginal intercourse with her, forced her to orally copulate him again, and then again had vaginal intercourse with her. He also forcibly inserted a metal tube into her rectum and vagina.

Defendant then forced the victim to get her purse and the keys to her husband's pickup truck. He took some money out of her wallet and forced her to leave with him in the truck. Thereafter the truck became disabled, the victim succeeded in alerting the police, and defendant was arrested.

PEOPLE'S APPEAL

The People contend the trial court erred in holding section 654 applicable to the oral copulation and sodomy convictions and therefore staying execution of sentence on them. ² Section 654 provides in pertinent part that "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."

At the time of sentencing defense counsel urged that section 654 precluded imposition of sentence on the oral copulation and sodomy convictions because those crimes were committed pursuant to the same intent and objective as the rape. At that time the prosecution and the trial court acquiesced, and the trial court entered judgment accordingly. ³ The prosecutor thereafter changed his mind and moved the court to amend the judgment nunc pro tunc to vacate the stay of sentence on these convictions. After argument on February 16, 1977, the court refused to vacate the stay, stating that "given all the circumstances" it was satisfied with the original sentencing in that regard.

The People contend that section 654 does not preclude punishing for each sex offense, citing People v. Hicks (1965) 63 Cal.2d 764, 48 Cal.Rptr. 139, 408 P.2d 747; People v. Slobodion (1948) 31 Cal.2d 555, 191 P.2d 1, and numerous Court of Appeal cases. (E. g., People v. Robinson (1977) 66 Cal.App.3d 624, 136 Cal.Rptr. 127; People v. Delgado, supra, 32 Cal.App.3d 242, 108 Cal.Rptr. 399, disapproved on other grounds in People v. Rist (1976) 16 Cal.3d 211, 127 Cal.Rptr. 457, 545 P.2d 833; People v. Smith (1971) 22 Cal.App.3d 197, 99 Cal.Rptr. 192; People v. Hurd (1970) 5 Cal.App.3d 865, 85 Cal.Rptr. 718.) They assert that each sex offense was a separate and distinct act for which defendant may be separately punished. Defendant, on the other hand, argues that section 654 precludes punishment for more than one of the sex offenses on the ground that they were all committed with the single intent and objective of obtaining sexual gratification. (See Neal v. State of California (1960) 55 Cal.2d 11, 9 Cal.Rptr. 607, 357 P.2d 839.) He asserts that the cases relied on by the People are not based on a proper application of the single intent and objective test that was established in the Neal case.

Section 654 was enacted in 1872 and, insofar as here relevant, has never been amended. The purpose of this legislative protection against punishment for more than one violation arising out of an "act or omission" is to insure that a defendant's punishment will be commensurate with his culpability. (See Neal v. State of California, supra, 55 Cal.2d at p. 20, 9 Cal.Rptr. 607, 357 P.2d 839.) "Because of the many differing circumstances wherein criminal conduct involving multiple violations may be deemed to arise out of an 'act or omission,' there can be no universal construction which directs the proper application of section 654 in every instance." (People v. Beamon (1973) 8 Cal.3d 625, 636, 105 Cal.Rptr. 681, 688-89, 504 P.2d 905, see also In re Hayes (1969) 70 Cal.2d 604, 605-606, 75 Cal.Rptr. 790, 451 P.2d 430; In re Adams (1975) 14 Cal.3d 629, 633, 122 Cal.Rptr. 73, 536 P.2d 473.) Although certain general principles may be distilled from prior decisions on section 654, we do not attempt in this case to determine their proper application to other than sex offenses.

The general principles on the applicability of section 654 have been thoroughly reviewed in a number of decisions. (See e. g., Neal v. State of California, supra, 55 Cal.2d 11, 9 Cal.Rptr. 607, 357 P.2d 839; In re Hayes, supra, 70 Cal.2d 604, 75 Cal.Rptr. 790, 451 P.2d 430; People v. Bauer (1969) 1 Cal.3d 368, 82 Cal.Rptr. 357, 461 P.2d 637; People v. Beamon, supra, 8 Cal.3d 625, 105 Cal.Rptr. 681, 504 P.2d 905.) For our purposes, it is sufficient to observe that it is well settled that section 654 applies not only where there was but one act in the ordinary sense, but also where there was a course of conduct which violated more than one statute but nevertheless constituted an indivisible transaction. (People v. Beamon, supra 8 Cal.3d at p. 637, 105 Cal.Rptr. 681, 504 P.2d 905.) Whether a course of conduct is indivisible depends upon the intent and objective of the actor. (Neal v. State of California, supra, 55 Cal.2d at p. 19, 9 Cal.Rptr. 607, 357 P.2d 839.) If all the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one. (Ibid.) For example, the defendant in Neal, who attempted to murder a husband and wife by throwing gasoline into their bedroom and igniting it, could not be punished for both arson and attempted murder because his primary objective was to kill, and the arson was the means of accomplishing that objective and thus merely incidental to it.

On the other hand, if the evidence discloses that a defendant entertained multiple criminal objectives which were independent of and not merely incidental to each other, he may be punished for the independent violations committed in pursuit of each objective even though the violations were parts of an otherwise indivisible course of conduct. ⁴ (In re Adams, supra, 14 Cal.3d at p. 634, 122 Cal.Rptr. 73, 536 P.2d 473; People v. Beamon, supra, 8 Cal.3d at pp. 638-639,105 Cal.Rptr. 681, 504 P.2d 905; In re Hayes, supra, 70 Cal.2d 604, 75 Cal.Rptr. 790, 451 P.2d 430.) For example, in Hayes, we held that section 654 was inapplicable to a defendant who simultaneously drove while intoxicated (Veh.Code, § 23102) and with knowledge that his license was suspended (Veh.Code, § 14601). As we subsequently explained in Beamon, ". . . neither of the Hayes violations, although simultaneously committed, was a means toward the objective of the commission of the other. The objectives, insofar as the criminal conduct was concerned, were deemed by the (Hayes ) majority to be to drive while intoxicated and to drive with a suspended license." (8 Cal.3d at p. 639, 105 Cal.Rptr. at p. 690, 504 P.2d at p. 914.)

In determining the applicability of section 654 to the sex offenses in this case we thus focus on the question whether defendant should be deemed to have entertained single or multiple criminal objectives.

Defendant asserts that the trial court properly found that his sole intent and objective was to obtain sexual gratification, and that since the evidence supports this finding, the trial court's ruling must be upheld. ⁵ We disagree. Such an intent and objective is much too broad and amorphous to determine the applicability of section 654. Assertion of a sole intent and objective to achieve sexual gratification is akin to an assertion of a desire for wealth as the sole intent and objective in committing a series of separate thefts. To accept such a broad, overriding intent and objective to preclude punishment for otherwise clearly separate offenses would violate the statute's purpose to insure that a defendant's punishment will be commensurate with his culpability. (See Neal v. State of California, supra, 55 Cal.2d at p. 20, 9 Cal.Rptr. 607, 357 P.2d 839.) It would reward the defendant who has the greater criminal ambition with a lesser punishment. (See Seiterle v. Superior Court (1962) 57 Cal.2d 397, 403-406, 20 Cal.Rptr. 1, 369 P.2d 697 (con. & dis....