People v. Winchell

633 , 420 P.2d 97 ]; In re Romano (1966) 64 Cal.2d 826 , 828 and 829 [ 51 Cal.Rptr. 910 , 415 P.2d 798 ]; People v. Failla (1966) 64 Cal.2d 560 , 570 [ 51 Cal.Rptr. 103 , 414 P.2d 39 ]; People v. Ridley (1965) 63 Cal.2d 671 , 677-678 [ 47 Cal. Rptr. 796 , 408 P.2d 124 ]; People v. McFarland (1962) 58 Cal.2d 748 , 760-763 [ 26 Cal.Rptr. 473 , 376 P.2d 449 ] ; People v. Nelson (1965) 233 Cal.App.2d 440 , 445-446 [ 43 Cal.Rptr. 626 ]; People v. Alvarado (1965) 231 Cal.App.2d 789 , 794-795 [ 42 Cal.Rptr. 310 ]; People v. Keller (1963) 212 Cal.App.2d 210 , 220-222 [ 27 Cal.Rptr. 805 ].)

On the other hand, where there are several victims of related criminal acts, or where the conduct is divisible, multiple punishment may be imposed. (People v. Ford (1966) 65 Cal.2d 41 , 48-49 [ 52 Cal.Rptr. 228 , 416 P.2d 132 ] ; In re Romano, supra, 64 Cal.2d 826 , 828; People v. Failla, supra, 64 Cal.2d 560 , 571; People v. Ridley, supra, 63 Cal.2d 671 , 678; Neal v. State of California, supra, 55 Cal.2d 11 , 20-21; People v. Slobodion (1948) 31 Cal.2d 555 , 561-562 [ 191 P.2d 1 ] ; People v. Wasley (1966) 245 Cal.App.2d 383 , 386-387 [ 53 Cal.Rptr. 877 ]; People v. Hernandez (1966) 242 Cal.App.2d 351 , 359-362 [ 51 Cal.Rptr. 385 ]; People v. Hudgins (1965) 236 Cal.App.2d 578 , 587-588 [ 46 Cal.Rptr. 199 ] ; People v. Houghton (1963) 212 Cal.App.2d 864 , 872-874 [ 28 Cal.Rptr. 351 ]; People v. Moore (1956) 143 Cal.App.2d 333 , 340-342 [ 299 P.2d 691 ]; and People v. Israel (1949) 91 Cal.App.2d 773 , 779 [ 206 P.2d 62 ] ; and see People v. Tideman, supra, 57 Cal.2d 574 , 584-587; Seiterle v. Superior Court (1962) 57 Cal. 2d 397 , 400 [ 20 Cal.Rptr. 1 , 369 P.2d 697 ] ; People v. Jackson (1959) 53 Cal.2d 89 , 93 [ 346 P.2d 389 ] ; and People v. Greer (1947) 30 Cal.2d 589 , 603-604 [ 184 P.2d 512 ].)

In the Neal case, supra, the opinion referred to the question of multiple prosecution as follows: “Since petitioner was tried for both crimes at the same time we do not decide whether section 654 requires all of the prosecutions to be brought at the same time. Section 654’s preclusion of multiple prosecution is separate and distinct from its preclusion of multiple punishment. The rule against multiple prosecutions is a procedural safeguard against harassment and is not necessarily related to the punishment to be imposed; double prosecution may be precluded even when double punishment is permissible.” (55 Cal.2d at p. 21.)

In Seiterle v. Superior Court, supra, 57 Cal.2d 397 , it was contended that an affirmed conviction and sentence for kidnaping for purposes of robbery with bodily harm precluded re

trial of the issue of the penalty for a murder. The majority-opinion found that the offenses were not necessarily incident to one objective, and that, since they were separate and not indivisible, the prosecution of one would not preclude prosecution for the other (57 Cal.2d at pp. 400-403).

In People v. Tideman, supra, 57 Cal.2d 574 , when confronted with a similar situation—a conviction on one of several counts urged as a bar to further prosecution of another count—the court ruled: “In a single criminal action (pleading any number of counts), no plea of guilty to, or order of dismissal or acquittal of, any separately pleaded offenses, included or otherwise, will bar the progress of that prosecution as to the other counts. The prosecution on such other counts may continue until each, on its own merits, has been severally and finally disposed of by bringing the defendant to conviction and sentence or to acquittal.” (57 Cal.2d at p. 583.) The application of the provisions of section 654 to multiple prosecution in one action was defined as follows:“ Thus it is established that section 654 prohibits multiple punishments for a single act, but like the jeopardy doctrine, has no application to multiple convictions as such, in a single prosecution. It does by its carefully chosen language, extend its reach to prohibit subsequent prosecution [fn. omitted] ‘for the same act or omission,’ and this, of course, would encompass a lesser offense necessarily included in such ‘act or omission.’ In this application the effect of section 654 would resemble the protection of the jeopardy doctrine but with this important difference : Section 654 becomes available only after there has been ‘an acquittal or conviction and sentence.’ The shield of 654 does not follow from mere jeopardy. The conjunction of ‘conviction and sentence’ makes altogether clear the legislative intention that punishment (the irrevocable pronouncement of sentence; see People v. Thomas (1959) 52 Cal.2d 521 [ 342 P.2d 889 ]) or acquittal, not mere jeopardy, is the essential requirement for operation of this section.” (Id., at pp. 586-587.)

The question of the rules to be applied where there were separate prosecutions involving the same course of conduct was faced squarely in Kellett v. Superior Court, supra, 63 Cal.2d 822 . There the court granted a writ of prohibition to prevent a trial for violation of section 12021 (see supra, fn. 2) after the defendant had been convicted on his plea of guilty to exhibiting a firearm in a threatening manner, a misdemeanor, in violation of Penal Code, section 417. Chief Justice

Traynor elaborated on his presageful words in Neal, as follows: “If needless harassment and the waste of public funds are to be avoided, some acts that are divisible for the purpose of punishment must be regarded as being too interrelated to permit their being prosecuted successively. When there is a course of conduct involving several physical acts, the actor’s intent or objective and the number of victims involved, which are crucial in determining the permissible punishment, may be immaterial when successive prosecutions are attempted. When, as here, the prosecution is or should be aware of more than one offense in which the same act or course of conduct plays a significant part, all such offenses must be prosecuted in a single proceeding unless joinder is prohibited or severance permitted for good cause. Failure to unite all such offenses will result in a bar to subsequent prosecution of any offense omitted if the initial proceedings culminate in either acquittal or conviction and sentence. [Fn. omitted.]” (63 Cal.2d at p. 827.)

Kellett also establishes that the provisions of section 954 of the Penal Code confer jurisdiction of a misdemeanor offense on the superior court where such an offense otherwise satisfies the test of joinder and can therefore be joined, with a felony offense over which the superior court has jurisdiction (id., at p. 826, particularly fn. 3).

It has generally been held that the provisions of sections 5 and 11 of article YI of the Constitution (prior to its 1966 amendment, cf. §§ 5 and 10 as amended), and sections 1425 and 1465 of the Penal Code divest the superior court of jurisdiction over misdemeanors of which an inferior court within the county has jurisdiction. (In re Williamson (1954) 43 Cal. 2d 651 , 655 [ 276 P.2d 593 ]; People v. Mulholland (1940) 16 Cal.2d 62 , 64-68 [ 104 P.2d 1045 ]; In re Application of Luna (1927) 201 Cal. 405 , 412 [ 257 P. 76 ]; People v. Smith (1964) 231 Cal.App.2d 140 , 142 [ 41 Cal.Rptr. 661 ]; In re Joiner (1960) 180 Cal.App.2d 250 , 254-255 [ 4 Cal.Rptr. 667 ]; and see People v. Jones (1964) 228 Cal.App.2d 74 , 82 [ 39 Cal. Rptr. 302 ].) In People v. Bundte (1948) 87 Cal.App.2d 735 [ 197 P.2d 823 ], which is cited in Kellett, the general language regarding joinder of a felony and a misdemeanor was qualified by the fact that the offense in question was a so-called “high” or “indictable” misdemeanor which was triable in the superior court in any event because the inferior court did not have jurisdiction. (87 Cal.App.2d at p. 745; and see People v. Wilson (1964) 224 Cal.App.2d 738 , 740-741 [ 37 Cal.

Under these circumstances further inquiry is indicated to determine whether there has been a violation of the spirit, as well as the letter, of the principle established in Kellett. That decision itself furnishes a further guideline. The opinion qualifies the mandate quoted above as follows: “We recognize that in many places felonies and misdemeanors are usually prosecuted by different public law offices and that there is a risk that those in charge of misdemeanor prosecutions may proceed without adequately assessing the seriousness of a defendant’s conduct or considering whether a felony prosecution should be undertaken. When the responsibility for the prosecution for the higher offense lies with a different public law office there is also the risk that a well advised defendant may plead guilty to a misdemeanor to foreclose a subsequent felony prosecution the misdemeanor prosecutor may be unaware of or may choose to ignore. Cases may also arise in which the district attorney is reasonably unaware of the felonies when the misdemeanors are prosecuted. In such situations the risk that there may be waste and harassment through both a misdemeanor and felony prosecution may be outweighed by the risk that a defendant guilty of a felony may escape proper punishment. Accordingly, in such cases section 654 does not bar a subsequent felony prosecution except to the extent that such prosecution is barred by that section’s preclusion of multiple punishment.” (63 Cal.2d at pp. 827-828.)

The instant ease does not present the situation of a prosecutor ignorant of the commission of a higher offense, but it does present the situation of a prosecutor apparently proceeding in ignorance of new concepts of jurisdiction. It presents the situation of a well advised defendant pleading guilty to a misdemeanor to foreclose not a subsequent, but a contemporaneous, felony prosecution. Under these circumstances, section 654 should only bar the prosecution of the felony to the same extent that it would bar multiple punishment for the felony and the contemporaneously charged misdemeanor.

There is nothing in other eases proscribing multiple prosecution to preclude this conclusion. In People v. Howell (1966) 245 Cal.App.2d 787 [ 54 Cal.Rptr. 92 ], it was recognized that a conviction for hit-and-run driving in violation of section 20002, subdivision (a) of the Vehicle Code in one jurisdiction, would not prevent prosecution for misdemeanor drunk driving in violation of section 23102, subdivision (a) of

that code in a different jurisdiction although the driving was continuous.

In People v. Breland (1966) 243 Cal.App.2d 644 [ 52 Cal. Rptr. 696 ], the exception in Kellett was applied to permit a prosecution for murder when the victim of an assault died after the perpetrator had been convicted and sentenced for battery. Wyatt v. Municipal Court (1966) 242 Cal.App.2d 845 [ 51 Cal.Rptr. 862 ] is of similar tenor, where the first proceeding was for failure to yield the right-of-way to a pedestrian in a crosswalk in violation of section 21950 of the Vehicle Code, and the second prosecution was for involuntary manslaughter following the victim’s death some months later. (See also People v. Herbert, supra, 6 Cal.2d 541 .)

Hampton v. Municipal Court (1966) 242 Cal.App.2d 689 [ 51 Cal.Rptr. 760 ], applied the exception in Kellett to defeat the defendant’s contention that his conviction and sentence for failure to have a driver’s license in his possession and exhibit it on request, in violation of section 12951 of the Vehicle Code, precluded prosecution for driving with a revoked license in violation of section 14601 of that code. The court pointed out that with no license he could not be guilty of the former offense, and that his act in pleading guilty to it with knowledge that the graver charges were pending was connivance and collusion which prevented him from relying on the provisions of section 654 of the Penal Code. In People v. Morris, supra, 237 Cal.App.2d 773 , decided before Kellett, the majority of the court held that it was error to refuse to set aside a judgment, entered on the defendant’s plea of guilty to a charge of driving with a revoked license in violation of section 14601 of the Vehicle Code, which had been filed four days after her conviction for driving while under the influence of intoxicating liquor in violation of section 23102, subdivision (a) of that code, when each offense “rested upon the defendant’s identical act of operating a motor vehicle at a particular time and place.” Although circumstances disclosed in the dissenting opinion reflect that the exception later enunciated in Kellett may have been applicable, it was not established at that time. The majority found harassment, and the Supreme Court denied a hearing on the eve of its decision in Kellett.

People v. Manago (1964) 230 Cal.App.2d 645 [ 41 Cal.Rptr. 260 ] held that the prior conviction and sentence on the charged misdemeanor of carrying a weapon concealed upon his person to “ ‘hide, lurk, or loiter upon or about the prem

ises of another, ’ ” barred subsequent prosecution for a bur glary charge based upon the same course of conduct, and necessitated reversal of the judgment secured in the latter proceeding. The court applied the Neal test as to punishment, and found the course of conduct which resulted in both offenses indivisible.

People v. Wilson (1964) 224 Cal.App.2d 738 [ 37 Cal.Rptr. 42 ], permitted a prosecution for resisting arrest in violation of section 148 of the Penal Code, after an earlier action for exhibiting a rifle in a threatening manner in violation of section 417 of that code had been dismissed for lack of prosecution after a trial had ended in a hung jury. The court concluded that “the second prosecution is not based upon the same act within the meaning of section 654 and is not barred by the provisions of that section” (224 Cal.App.2d at p. 744). To the extent that Wilson sanctioned the filing of successive proceedings and permitted the harassment of defendant, it is expressly disapproved in Kellett (63 Cal.2d at p. 827, fn. 5).

In none of the eases where the second prosecution was barred was there a bona fide attempt by the prosecutor to prosecute all charges without harassment, or an obvious attempt by the defendant to use procedural steps to avoid prosecution for the more serious charge. These facts are controlling here, and bring the case within the second rule of Kellett. Inquiry is, therefore, directed to a determination of whether punishment for violation of section 466 would bar punishment for violation of section 12021, or vice versa.

This question recently was presented but not resolved in Ira re Henry, supra, 65 Cal.2d 330 . There the defendant was convicted of attempted armed robbery and of assault with a deadly weapon on the same person. The People had conceded that the two offenses were incident to the one objective of robbery. The court rejected the contention that the record reflected that there was in fact a second victim of the robbery because neither in the information, nor at the sentencing, was mention made of this fact. The sentence for the assault with a deadly weapon was set aside. A third concurrent sentence for violation of section 12021 was not considered because the defendant had already served the maximum sentence, prior to 1965 amendment, of five years under that statute (65 Cal.2d at p. 330, fn. 1).

In People v. Ford, supra, 65 Cal.2d 41 , tacit approval was given to conviction and sentence for violation of section

12021 together with burglary, robbery, kidnaping, assault with a deadly weapon and murder. The opinion refers to an earlier decision in the same case (People v. Ford (1964) 60 Cal.2d 772 , 795 [ 36 Cal.Rptr. 620 , 388 P.2d 892 ]) for the proposition that the violation of the coneealable weapon statute was a continuing offense, and was a felony inherently dangerous to human life which would support a conviction of murder in the second degree for a homicide having a causal relationship with that offense (65 Cal.2d at p. 58).

Kellett, supra, indicates that if the two charges—violation of section 417 and violation of section 12021—had been joined in a single prosecution it might have been shown that the object of each offense was unrelated, or that the possession of the weapon extended beyond the time he was brandishing it (63 Cal.2d at p. 825). The decision rests upon harassment, and not on the prohibition against multiple punishment.

In People v. Jackson, supra, 53 Cal.2d 89 , the defendant was convicted of violation of section 12021 and of assault with a deadly weapon. The former count was dismissed before sentence, so no multiple punishment question was presented. In upholding the right of the prosecution to charge and secure a conviction for each offense, the opinion relies on People v. Warren (1940) 16 Cal.2d 103 [ 104 P.2d 1024 ] (53 Cal.2d at p. 93). In the Warren ease, the court upheld a conviction of the possession of coneealable weapons despite the fact that the defendant had been acquitted of robbery and, expressly, had been found to have been unarmed at the time of the alleged offenses and at the time of his subsequent arrest. The opinion adopted by the court recites: “It is true, as contended by appellants that it was necessary to prove that they were armed when they robbed the witness Polonsky on the night of December 23, 1938, in order to constitute the crime then committed as robbery in the first degree. On the other hand, it is also true that the offense which is prohibited by section 2 of the Deadly Weapons Act, i.e., possession or control of a firearm by persons who had been previously convicted of crime, was complete before the robbery took place for the reason that without possession of the deadly weapons which were used in the perpetration of the robbery, that crime could not have been consummated. The possession of a deadly weapon, which is calculated to provoke assaults or worse, has been made an offense under the Deadly Weapons Act for the very purpose of preventing personal violence, and it is therefore incorrect to say that because robbery in the first degree may result from

the possession of a firearm in the hands of an ex-eonviet, that such possession, as a matter of law, becomes so integral a part of the crime of first degree robbery that the conviction or acquittal thereof is a bar to a subsequent prosecution for the crime of possession of such deadly weapon. . . .

“In People v. Perry, 99 Cal.App. 90 , at 93 [ 277 P. 1080 ], it was held that the crime of carrying a concealed weapon in violation of the Firearms Act (Stats. 1923, p. 695), is separate and distinct from the crime of robbery, and defendant was subject to separate indictment, conviction and punishment for carrying a concealed weapon, irrespective of the result of the robbery prosecution, and notwithstanding that both crimes may have grown out of the same continuous transaction and were committed at the same time.

“It must therefore be concluded that appellants’ first and second points have no merit for the reason that the two offenses herein referred to are separate and distinct crimes and the conviction or acquittal of either does not operate as a bar to the subsequent prosecution for the other.” (16 Cal.2d at pp. 110-111.)

In addition to Perry, as cited above, other Court of Appeal decisions have considered the propriety of punishment for violation of section 12021. In People v. Wasley, supra, 245 Cal.App.2d 383 , the defendant was convicted and sentenced for possession of a sawed-off shotgun in violation of Penal Code section 12020, and for possession of a pistol in violation of section 12021. In answer to the contention that separate punishment was barred by the provisions of section 664, the court stated: “Appellant also argues that he has suffered double punishment for a single act, in violation of the statute (Pen. Code, § 654). But two separate weapons were possessed. The sawed-off shotgun is contraband. Its possession by anyone is a crime (Pen. Code, § 12020). The purpose is to outlaw a class of instruments (e.g., blackjack, sawed-off shotgun, metal knuckles) normally used only for criminal purposes (People v. Mulherin, 140 Cal.App. 212 , 215 [ 35 P.2d 174 ]). Section 12021 has an obviously different public purpose. It bars a class of persons (aliens, arrested felons and narcotics addicts) from possession of concealable firearms. Appellant says that possession of the two weapons was a single act. It is difficult to classify possession as an ‘act’, although acquisition clearly would be. The absence of an act, however, does not dispose of the issue. If possession of the two

weapons were but a single ‘course of conduct’, the double punishment proscription would apply (Neal v. State of California, 55 Cal.2d 11 , 19 [ 9 Cal.Rptr. 607 , 357 P.2d 839 ]). But that turns on whether the course of conduct is divisible, which in turn depends upon the ‘intent and objective of the actor.’ (Neal v. State of California, supra.) This record presents no suggestion of any single intent or objective in possession of the two very different weapons. Nor is the case comparable to those in which an entry for the purpose of felony and the felony resulting from that entry could not be separately punished (People v. McFarland, 58 Cal.2d 748 , 762 [ 26 Cal.Rptr. 473 , 376 P.2d 449 ]; People v. Gay, 230 Cal.App.2d 102 , 105 [40 Cal.Eptr. 778]).

“Close connection in time of two acts does not alone prevent their separate punishment (People v. Slobodion, 31 Cal. 2d 555 , 561-563 [ 191 P.2d 1 ], reaffirmed in Neal v. State of California, supra, at p. 20). We find no reason for a different rule because the two possessions here were simultaneous.

“The weapons were of distinct types. They were carried in distinct sections of the automobile. Their possession was proscribed by separate statutes, serving distinct public purposes. The fact that they were possessed at the same time by one man does not reduce that possession to a single act or a single course of conduct. Defendant’s argument, logically extended, would bar separate punishments for him if he had carried in the same pocket a pistol, a bindle of heroin, and a stolen gem, separately acquired, thus violating three statutes (Pen. Code, § 12021; Health & Saf. Code, § 11500; Pen. Code, § 496). We find no basis for such an extension of the rule.” (245 Cal. App.2d at pp. 386-387; and see also Justice Whelan dissenting in People v. Morris, supra, 237 Cal.App.2d 773 , 777, at p. 788 and p. 789; People v. Lopez (1959) 169 Cal.App.2d 344 , 350-351 [ 337 P.2d 570 ]; People v. Mandell (1949) 90 Cal. App.2d 93 , 98-99 [ 202 P.2d 348 ].)

In People v. Hudgins, supra, 236 Cal.App.2d 578 multiple punishment was imposed for second degree murder and violation of section 12021. The court declared: “As previously stated, appellant was sentenced for second degree murder and for violation of the Dangerous Weapons’ Control Law, and it is contended that the two sentences were in violation of section 654 of the Penal Code, and the law as declared in People v. McFarland, 58 Cal.2d 748 [ 26 Cal.Rptr. 473 , 376 P.2d 449 ], This would be true if the two offenses were committed by one act or in a series of acts having but a single purpose, but such

was not the case. The acts constituting the offenses were separable. Possession of the gun constituted one offense, and this was an act separate and apart from any use that was made of the gun, and would have been a completed offense even if no use had been made of it. Appellant was properly sentenced for both offenses.” (236 Cal.App.2d at pp. 587-588; and see People v. Houghton, supra, 212 Cal.App.2d 864 , 874; People v. Moore, supra, 143 Cal.App.2d 333 , 340-342 [questionable as to holding on conspiracy, see People v. Keller (1963) 212 Cal.App.2d 210 , 221 [ 27 Cal.Rptr. 805 ] and In re Romano, supra, 64 Cal.2d 826 , 828-829]; and People v. Israel, supra, 91 Cal.App.2d 773 , 779.)

From the foregoing it is clear that the defendant committed two independent acts in possessing both burglar’s tools and a concealed weapon. He attempts to assert that the object of attempted burglary, of which he has not been convicted, renders the charges indivisible. This contention cannot be sustained in the absence of proof of guilt of that charge.

The prosecutor’s statements that the charges arose out of the same incident or transaction, and his stipulation that the possession charge "is an offense alleged to be part of the same act or course of conduct as alleged in” connection with the other felonies do not aid defendant. The test is whether the charged criminal conduct is indivisible or divisible. The other felony charges having been dismissed there is no question of double punishment in relation to them. The remaining question is whether the two acts of possession are divisible even though they arose from the same course of conduct, transaction, or incident.

The question of the value as precedents of those cases which heretofore have permitted prosecution and punishment for violation of section 12021 along with prosecution and punishment for the offense in the perpetration of which the Aveapon Avas carried is left for future determination. The circumstances of this case do not require emasculation of the Legislature ’s intent to provide greater punishment to an armed ex-felon than to another carrying a concealed weapon, in order to protect the former from either harassment or multiple punishment.

The judgment is affirmed.

Molinari, P. J., concurred.