People v. Rosenberg

• Decision Date: 07 February 1963
• Docket Number: Cr. 8031
• Citation: 28 Cal.Rptr. 214,212 Cal.App.2d 773
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Martin Jay ROSENBERG, Defendant and Appellant.

Page 214

28 Cal.Rptr. 214

212 Cal.App.2d 773

The PEOPLE, Plaintiff and Respondent, v. Martin Jay ROSENBERG, Defendant and Appellant.

Cr. 8031.

District Court of Appeal, Second District, Division 3, California.

Feb. 7, 1963.

Sam Bubrick, Los Angeles, under appointment by District Court of Appeal, for appellant.

Stanley Mosk, Atty. Gen., and William E. James, Asst. Atty. Gen., for respondent.

FORD, Justice.

By an information the dedendant was accused of having committed four felonies. At the time of trial he withdrew his plea of not guilty and pleaded guilty to the charges contained in the first two counts. In one of those counts it was alleged that on or about April 20, 1961, the defendant had committed the crime of grand theft. (Pen.Code, § 487, subd. 1.) It was stated that the property taken was merchandise of the value of $291.15 which belonged to Claude Steen. In the other count it was charged that on or about April 20, 1961, the defendant had committed the crime of forgery of a fictitious name (Pen.Code, § 470) in that he 'did willfully, unlawfully, fraudulently and feloniously make, pass, utter and publish a certain fictitious check and order in writing for the payment of money in the sum of Thirty Five and 00/100 Dollars * * * knowing said check to be fictitious as aforesaid, with intent then and there to cheat and defraud Claude Steen.' Probation was denied and on each count the defendant was sentenced to the state prison for the term prescribed by law, it being ordered that the sentences were to run concurrently. The remaining two counts of the information were dismissed. The defendant has appealed from the judgment. ¹

Only one contention is made by the defendant. He asserts that he could not be validly sentenced on both counts because 'both violations of law arose out of but one single course of conduct directed toward dispossessing the victim of a television set.' Reliance is placed on the provisions of section 654 of the Penal Code and on Neal v. State of California, 55 Cal.2d 11, 9 Cal.Rptr. 607, 357 P.2d 839. As succinctly stated in People v. McFarland, 58 A.C. 763, at page 775, 26 Cal.Rptr. 473, at page 479, 376 P.2d 449, at page 455: 'The principles governing the application of section 654 were clarified by this court in Neal v. State of California, 55 Cal.2d 11, 18 et seq., 9 Cal.Rptr. 607, 357 P.2d 839. It was there pointed out, upon an analysis of several earlier decisions, that the prohibition of the statute against double punishment applies not only where 'one 'act' in the ordinary sense' is involved but also where there is a 'course of conduct' which violates more than one statute and comprises an indivisible transaction punishable under more than one statute within the meaning of section 654; that the divisibility of a course of conduct depends upon the intent and objective of the defendant; and that if all the offenses are incident to one objective, the defendant may be punished for any one of them but not for more than one.'

The difficulty in applying the reasoning of the Neal case to the present case arises from the fact that there was no trial on the issue of guilt with respect to either of the offenses stated in the first two counts of the information because for defendant pleaded guilty to them. By so pleading without reserving or attempting to reserve in any manner the question whether the use of the check and the obtaining of the merchandise constituted an indivisible transaction so as to prevent separate punishment for each under section 654 of the Penal Code, the defendant, at least prima facie, admitted that the crimes were separate and not indivisible. (Seiterle v. Superior Court, 57 Cal.2d 397, 400-401, 20 Cal.Rptr. 1, 369 P.2d 697.) However, if matter is before the trial court which suggests the probability that the several offenses constituted a course of conduct comprising an indivisible transaction, that court must pursue the matter further so that the question so raised may be resolved in harmony with the provisions of section 654 of the Penal Code and the reasoning of the Neal case.

Section 1203 of the Penal Code is in part as follows: '* * * in every felony case in which the defendant is eligible for probation, before any judgment is pronounced and whether or not an application for probation has been made, the court must immediately refer the matter to the probation officer to investigate and to report to the court, at a specified time, upon the circumstances surrounding the crime and concerning the defendant and his prior record, which may be taken into consideration either in aggravation or mitigation of punishment. The probation officer must thereupon make an investigation of the circumstances surrounding the crime * * * [and] must make a written report to the court of the facts found upon such investigation, * * *. At the time or times fixed by the court, the court must hear and determine such application, if one has been made, or in any case...