People v. Jones

Filed 6/21/12 (S163273 & S179552, both filed 6/21/12, are companion cases; S163273 is the lead case)

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE, )

)

Plaintiff and Respondent, )

) S179552

v. )

) Ct.App. 3 C060376

JARVONNE FEREDELL JONES, )

) Sacramento County

Defendant and Appellant. ) Super. Ct. No. 08F04254

____________________________________)

Defendant Jarvonne Feredell Jones, a convicted felon, carried a loaded and

concealed firearm. We must decide to what extent, if any, he may be punished

separately for the crimes of possession of a firearm by a felon, carrying a readily

accessible concealed and unregistered firearm, and carrying an unregistered loaded

firearm in public. The question requires us to interpret Penal Code section 654,1

which prohibits multiple punishment for ―[a]n act . . . that is punishable in

different ways by different provisions of law.‖ Because different provisions of

law punish in different ways defendant‘s single act, we conclude that section 654‘s

plain language prohibits punishment for more than one of those crimes.

1 All further statutory citations are to the Penal Code unless otherwise

indicated.

1

I. FACTUAL AND PROCEDURAL HISTORY

On May 26, 2008, police searched the car defendant, a convicted felon, was

driving and found in a door panel a loaded .38-caliber revolver that was not

registered to him. Defendant said he had bought the gun already loaded three days

earlier ―for protection.‖ He explained that he had kept the gun at his

grandmother‘s house and had ―just picked the gun up from there and that‘s why

the gun was in the car.‖

A jury convicted defendant of three crimes: possession of a firearm by a

felon (former § 12021, subd. (a)(1) [now § 29800, subd. (a)(1) (Stats. 2010, ch.

711, § 6)]; count one), carrying a readily accessible concealed and unregistered

firearm (former § 12025, subd. (b)(6) [now § 25400, subd. (c)(6) (as amended by

Stats. 2011, ch. 15, § 543)]; count two), and carrying an unregistered loaded

firearm in public (former § 12031, subd. (a)(2)(F) [now § 25850, subd. (c)(6) (as

amended by Stats. 2011, ch. 15, § 544)]; count three). The superior court

sentenced him to state prison for the upper term of three years on each count, to be

served concurrently, plus a one-year enhancement for a prior prison term, for a

total sentence of four years.

Defendant appealed. He argued that execution of the sentences for counts

two and three had to be stayed under section 654. The Court of Appeal agreed

that the sentence for either count two or three had to be stayed, but it held that

multiple punishment is appropriate as between the first count and either of the

other two counts. It modified the judgment to stay execution of the sentence on

count three and affirmed the judgment as modified.

We granted defendant‘s petition for review to decide whether section 654

prohibits multiple punishment for his convictions.

2

II. DISCUSSION

As relevant, section 654, subdivision (a), provides: ―An act or omission

that is punishable in different ways by different provisions of law shall be

punished under the provision that provides for the longest potential term of

imprisonment, but in no case shall the act or omission be punished under more

than one provision.‖ We must decide how this provision applies to defendant‘s

three convictions.

The trial court imposed concurrent sentences. But doing so is not correct if

section 654 prohibits multiple punishment. ―It has long been established that the

imposition of concurrent sentences is precluded by section 654 [citations] because

the defendant is deemed to be subjected to the term of both sentences although

they are served simultaneously.‖ (People v. Miller (1977) 18 Cal.3d 873, 887.)

Instead, the accepted ―procedure is to sentence defendant for each count and stay

execution of sentence on certain of the convictions to which section 654 is

applicable.‖ (Id. at p. 886; see also People v. Sloan (2007) 42 Cal.4th 110, 116.)

Accordingly, although there appears to be little practical difference between

imposing concurrent sentences, as the trial court did, and staying sentence on two

of the convictions, as defendant urges, the law is settled that the sentences must be

stayed to the extent that section 654 prohibits multiple punishment. So the issue is

squarely presented. Does section 654 prohibit multiple punishment in this case?

When arrested, defendant was carrying, and thus possessing, a single

firearm, which seems to be a single physical act. Because defendant is a felon and

the gun was both loaded and concealed, that act is made punishable by three

different provisions of law, specifically, former sections 12021, subdivision (a)(1),

12025, subdivision (b)(6), and 12031, subdivision (a)(2)(F). Thus, by its terms,

section 654 seems to preclude punishment for more than one of those provisions.

3

But the question is not so simple. Two four-decades-old decisions — one

from the Court of Appeal that is almost directly on point, and an earlier four-to-

three decision from this court — strongly support the Court of Appeal‘s

conclusion that punishment for at least two of these provisions of law is

permissible. (In re Hayes (1969) 70 Cal.2d 604 (Hayes); People v. Harrison

(1969) 1 Cal.App.3d 115 (Harrison).) Harrison‘s holding, and the Court of

Appeal‘s in this case, were reasonable in light of Hayes, although, as we will

explain, the Hayes rationale would actually permit punishment for all three crimes,

a conclusion that would run afoul of more recent Court of Appeal decisions.

We first examine exactly what the Court of Appeal did and why. It

concluded that a felon who possessed or carried a single gun may not be punished

separately if the gun is an inherently unlawful firearm, such as a sawed-off rifle.

But a felon may be punished separately for possessing a gun in an unlawful way,

such as having it loaded or concealed. Even then, such a felon may be punished

only once even if, as here, the possession is unlawful in more than one way. The

Court of Appeal based this conclusion on precedent. The court was reasonable to

do so, as precedent supports all parts of its conclusion.

As the Court of Appeal explained, cases have held that section 654

precludes multiple punishment when a felon possesses an inherently unlawful

firearm. (People v. Scheidt (1991) 231 Cal.App.3d 162, 170 [sawed-off shotgun];

People v. Perry (1974) 42 Cal.App.3d 451, 456 [sawed-off rifle].) Additionally,

cases not involving felons have precluded multiple punishment for possessing a

single firearm in two unlawful ways. (People v. Hurtado (1996) 47 Cal.App.4th

805, 808, 816 [carrying a concealed and loaded firearm]; In re Joseph G. (1995)

32 Cal.App.4th 1735, 1743-1744 [carrying a loaded firearm in a public place and

carrying a concealed weapon].) The Court of Appeal followed these cases.

4

But the Court of Appeal also followed an earlier decision that permitted

separate punishment for (1) possession of a concealable firearm by a felon and (2)

possessing a loaded firearm, even though both crimes involved the same firearm.

(Harrison, supra, 1 Cal.App.3d 115.) The Harrison court explained that the ―two

statutes strike at different things. One is the hazard of permitting ex-felons to have

concealable firearms, loaded or unloaded; the risk to public safety derives from the

type of person involved. The other strikes at the hazard arising when any person

carries a loaded firearm in public. Here, the mere fact the weapon is loaded is

hazardous, irrespective of the person . . . carrying it. [¶] The ‗intent or objective‘

underlying the criminal conduct is not single, but several, and thus does not meet

another of the tests employed to determine if Penal Code section 654 is violated.

(Neal v. State of California (1960) 55 Cal.2d 11, 19-20 . . . .) For an ex-convict to

carry a concealable firearm is one act. But loading involves separate activity, and

while no evidence shows that appellant personally loaded the pistol, there seem[s]

little distinction between loading and permitting another to do so. Thus, two acts,

not a single one, are necessarily involved and bring our case outside the

prohibition against double punishment for a single act or omission.‖ (Harrison,

supra, at p. 122.)

As did the Court of Appeal, we could follow all of these cases and

announce that when the defendant is convicted of multiple crimes for possessing

or carrying a single firearm, including possession by a felon, the rule is that (1) he

may be punished for possession by a felon, (2) he may not be punished separately

for possessing an inherently unlawful firearm, (3) he may be punished separately

for possessing a firearm in an unlawful way but only once, even if he possesses it

in more than one unlawful way. Authority supports all components of this rule.

But such a rule would make little, if any, sense. Why should separate punishment

be prohibited for possessing an inherently unlawful firearm but permitted

5

(although only once) for possessing a firearm in an unlawful manner? The

Legislature has outlawed these various types of unlawful possession for separate

reasons that ―strike at different things,‖ to use Harrison‘s phrase. (Harrison,

supra, 1 Cal.App.3d at p. 122.) Harrison‘s logic would seem to permit separate

punishment for possessing an inherently dangerous weapon as well as possessing a

firearm in an unlawful way, and also for each different way in which the

possession was unlawful. Moreover, this rule would bear little relationship to

section 654‘s actual language.

Harrison, supra, 1 Cal.App.3d 115, relied heavily on Hayes, supra, 70

Cal.2d 604. In Hayes, the defendant drove while intoxicated and while possessing

an invalid license. In so doing, he violated two different penal statues: (1) driving

while intoxicated and (2) driving with an invalid license. This court, by a four-to-

three vote, held that section 654 does not prohibit multiple punishment for the two

crimes even though they were committed simultaneously. It divided the single

physical act of driving into each component of that act that is made punishable in

different ways by different provisions of law. It summarized its reasoning: ―In

summation, then, section 654 of the Penal Code proscribes multiple punishment

for a single ‗act or omission which is made punishable‘[2] by different statutes,

i.e., a single criminal act or omission. Since the mere act of driving is made

punishable by no statute, it is not the type of act or omission referred to in section

654. The acts ‗made punishable‘ which this petitioner committed were (1) driving

2 Section 654 had slightly different language at the time of Hayes, supra, 70

Cal.2d 604, than today. As enacted in 1872 and as still in effect in 1969 at the

time of Hayes, section (a) of the statute provided: ―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 . . . .‖ The language difference is irrelevant to this issue.

6

with a suspended license and (2) driving while intoxicated, two separate and

distinct criminal acts; that they were committed simultaneously and that they share

in common the neutral noncriminal act of driving does not render petitioner‘s

punishment for both crimes in conflict with Penal Code section 654.‖ (Hayes, at

p. 611.)

Chief Justice Traynor dissented. He relied heavily on section 654‘s plain

language in concluding that the statute permitted only one punishment for the

single act of driving, even though that act violated two criminal statutes. ―The

Attorney General contends, however, that Vehicle Code sections 14601 and 23102

[the criminal provisions at issue] have different public purposes directed at distinct

evils, and that the driver who violates both statutes simultaneously should be

doubly punished because he is invading two social interests that the Legislature

had designated for distinct protection by the enactment of two different statutes.

In a jurisdiction without a multiple punishment rule like that of Penal Code section

654, this ‗distinct evil‘ test might aid the courts in ascertaining whether the

Legislature intended cumulative punishments for simultaneous violation of

statutes like Vehicle Code sections 14601 and 23102. [Citations.] In California,

however, when the rule of section 654 precluding multiple punishment applies, the

courts cannot invoke the ‗distinct evil‘ test to evade that statutory rule.‖ (Hayes,

supra, 70 Cal.2d at p. 613 (dis. opn. of Traynor, C. J.).)

The rationale of Hayes, supra, 70 Cal.2d 604, would permit multiple

punishment in many cases when a single physical act is made punishable by

different provisions of law. Different provisions of law punishing the same

physical act — for example, driving while intoxicated and on an expired license,

or a felon‘s carrying a loaded and concealed firearm — are generally directed at

distinct societal evils. It might make sense to punish these distinct evils

separately, and a criminal justice system could logically and reasonably do so.

7

But doing so would be contrary to section 654‘s plain language, which prohibits

multiple punishment for ―[a]n act or omission that is punishable in different ways

by different provisions of law.‖

In this case, for example, Hayes‘s rationale would seem to permit

punishment for all three of defendant‘s crimes. The act of firearm possession, by

itself, is innocent. Thus, under Hayes, we would have to consider the unlawful

components of that act, i.e., defendant was a felon, the firearm was loaded, and the

firearm was concealed. To adapt Hayes‘s rationale to this case, the fact that these

acts ―were committed simultaneously and that they share in common the neutral

noncriminal act of [gun possession] does not render [defendant‘s] punishment for

[all three] crimes in conflict with Penal Code section 654.‖ (Hayes, supra, 70

Cal.2d at p. 611.)

Indeed, Hayes itself comes very close to saying that punishment for these

precise crimes is permissible. It gives an example of how its analysis would work

in a different situation: ―Similarly, for example, if an individual went for a walk

in possession of a loaded gun while he was intoxicated and unclothed, he would

by the single neutral act of walking — or, more accurately, being in a ‗public

place‘ — simultaneously violate three separate and unrelated statutes. (Pen. Code,

§§ 12031, subd. (a); 647, subd. (f); 314.) Those three statutes, however, would be

violated not by the one noncriminal act of being in a public place but necessarily

by three simultaneous though separate criminal acts. Once again, we must

distinguish identical noncriminal acts from simultaneous criminal acts ‗made

punishable‘ by law.‖ (Hayes, supra, 70 Cal.2d at p. 608, fn. omitted.) It is hard to

imagine how each crime in this example could be punished, but not each crime in

this case.

The more recent Court of Appeal cases have generally ignored Hayes,

supra, 70 Cal.2d 604, and many of their results limiting multiple punishment seem

8

inconsistent with its reasoning. The four cases discussed above that the Court of

Appeal cited and distinguished make no effort to reconcile their holdings with

Hayes. (People v. Hurtado, supra, 47 Cal.App.4th 805; In re Joseph G., supra, 32

Cal.App.4th 1735; People v. Scheidt, supra, 231 Cal.App.3d 162; and People v.

Perry, supra, 42 Cal.App.3d 451.) None of these cases cites Hayes. None

explains why multiple punishment should be prohibited for possessing an

inherently unlawful firearm but not for possessing a firearm in an unlawful way, or

why the latter may only be punished once even if the possession was unlawful in

more than one way.

We believe the current state of the law is untenable. The more recent Court

of Appeal cases discussed above are mutually consistent and have reached results

that we believe are more consistent with section 654‘s plain language than that of

Harrison, supra, 1 Cal.App.3d 115. Harrison is the anomaly, not the more recent

cases. We need a rule that is consistent with the current cases, that can lead to

predictable results, and that more closely tracks section 654‘s plain language.

Accordingly, we disapprove People v. Harrison, supra, 1 Cal.App.3d 115, and

hold that a single possession or carrying of a single firearm on a single occasion

may be punished only once under section 654.

We must also decide what to do with Hayes, supra, 70 Cal.2d 604. Its

rationale is dubious and overbroad. Over the years, it has led to inconsistent and

unpredictable results. Numerous cases, generally more recent ones, have found a

section 654 violation in a way that seems inconsistent with Hayes‘s rationale. (In

addition to the cases discussed above, see, e.g., People v. Williams (2009) 170

Cal.App.4th 587, 645-646 [654 prohibits multiple punishment for possession of a

firearm by a felon and possession of a controlled substance while armed]; People

v. Lopez (2004) 119 Cal.App.4th 132, 137-139 [654 prohibits multiple punishment

9

for unlawful possession of a firearm and unlawful possession of ammunition].)

These cases simply do not cite Hayes.

Hayes, supra, 70 Cal.2d 604, has been followed on occasion, including at

least once by this court. In In re Michael B. (1980) 28 Cal.3d 548, 556-557, this

court invoked Hayes to permit multiple punishment for vehicle theft and driving

without a license. (See also People v. Martinez (2007) 156 Cal.App.4th 851, 857

[multiple punishment permitted for driving on a suspended license and driving

under the influence of alcohol]; People v. Butler (1986) 184 Cal.App.3d 469, 471-

474 [multiple punishment permitted for felony hit and run and vehicular

manslaughter]; People v. Rowland (1971) 21 Cal.App.3d 371, 374-377 [multiple

punishment permitted for receiving stolen property and petty theft through

acquiring a credit card (i.e., some of the same stolen property) without the owner‘s

consent with intent to use or sell it].) Martinez is essentially the Hayes situation.

Butler (vehicular manslaughter followed by fleeing the scene) and Michael B.

(stealing the car and driving it) seem to have been two-act cases. Rowland was

analyzed as a two-act case — one act of acquiring the stolen property and a later

act of keeping the credit cards for the purpose of using or selling them. Thus, it

appears that Michael B., Butler, and Rowland may have been correct even apart

from Hayes.

In People v. Correa (June 21, 2012, S163273) __ Cal.4th __, also decided

today, we are disapproving language in one of our cases to bring our section 654

jurisprudence closer to the statutory language. We should do the same here.

Accordingly, we conclude that In re Hayes, supra, 70 Cal.2d 604, has no

continuing vitality, and we overrule it. Section 654 prohibits multiple punishment

for a single physical act that violates different provisions of law. This rule is

generally consistent with the holdings of more recent Court of Appeal decisions

that would otherwise be hard to reconcile with Hayes, and, especially important,

with section 654‘s plain language.

10

We recognize that what is a single physical act might not always be easy to

ascertain. In some situations, physical acts might be simultaneous yet separate for

purposes of section 654. For example, in Hayes, both the majority and the

dissenters agreed that, to use Chief Justice Traynor‘s words, ―simultaneous

possession of different items of contraband‖ are separate acts for these purposes.

(Hayes, supra, 70 Cal.2d at p. 612 (dis. opn. of Traynor, C. J.); see id. at pp. 606-

607 (maj. opn.).) As Chief Justice Traynor explained, ―the possession of one item

is not essential to the possession of another separate item. One does not possess in

the abstract; possession is meaningless unless something is possessed. The

possession of each separate item is therefore a separate act of possession.‖ (Id. at

p. 613.) We do not intend to cast doubt on the cases so holding.1

The Attorney General argues that separate acts did occur here. She notes

that defendant told the police that he had obtained the gun three days before it was

found in his car, and he had kept it at his grandmother‘s house. She argues that

keeping the gun at the house and carrying it in the car were separate acts. The

Court of Appeal acknowledged this argument but refused to rely on it. It

explained that ―the People did not argue defendant was guilty of possession three

days before his arrest: The prosecutor mentioned defendant‘s admission that he

bought the gun three days before to bolster the theory that defendant knowingly

possessed the gun, not to base liability on possession before the date of arrest.‖

The Court of Appeal was correct.

The record establishes that the jury convicted defendant of each crime due

to his being caught with the gun in the car on May 26, 2008, not due to any

1 The Court of Appeal in this case also discussed cases concerning how

section 654 applies to a defendant who is convicted of possession of a firearm by a

felon and of committing a separate crime with that firearm. (See People v. Jones

(2002) 103 Cal.App.4th 1139, 1144-1146 [collecting and discussing the cases].)

These cases concern a very different situation, and we do not intend to cast doubt

on them.

11

antecedent possession. The amended information alleged that defendant

committed all three crimes on or about May 26, 2008, the day he was arrested, and

the verdicts all found defendant guilty as charged. The prosecutor‘s entire jury

argument based defendant‘s guilt on his possessing the gun when arrested and not

earlier. He began his argument by stating that the evidence showed ―that on the

date in question Mr. Jones possessed the firearm in question. And that‘s why

we‘ve got him charged with being a felon in possession of a firearm, possessing a

concealed firearm, possessing a loaded firearm.‖ Later, he explained to the jury

that there were ―three different counts for the same exact conduct.‖ Thus,

defendant‘s guilt on all three charges was premised solely on his having the gun in

his car when arrested on May 26, 2008, not on any different acts. We express no

opinion on what the outcome might be under other facts.

Additionally, section 12021 criminalizes possessing the firearm, while

sections 12025 and 12031 criminalize carrying it. But under the facts of this case,

the possession and the carrying were the same act, not two separate acts.

Defendant had the gun in his car when arrested, which meant he both carried it and

possessed it. Again, we express no opinion on what the outcome might be under

other facts.

The separate opinions in this case agree with the outcome here and with our

overruling of Hayes, supra, 70 Cal.2d 604, and disapproving of Harrison, supra, 1

Cal.App.3d 115, both of which had found multiple acts in what were actually

single-act cases. But, instead of finding a single act, they would instead rely on a

test generally applied when there has been a course of conduct rather than a single

criminal act, namely, the ―intent and objective‖ test created in Neal v. State of

California, supra, 55 Cal.2d 11. (See generally People v. Latimer (1993) 5

Cal.4th 1203, 1207-1212.) They argue that because defendant told the police he

possessed the gun for protection, and the evidence showed no other intent or

objective, we should find a single objective that may be punished but once.

12

Finding a single objective here might resolve this particular case. But what

if the evidence also showed that the defendant wanted to intimidate rival gang

members, or go hunting, or harbored any other of the myriad possible objectives

for illegally possessing a firearm? Would multiple punishment be allowed in that

case? Or what if the evidence does not show what the defendant‘s objective was?

A defendant does not have to talk to the police. What is the court to do then?

Rather than force the court to divine what objective or objectives the defendant

might have had in possessing the firearm, we find it better to rely on section 654‘s

actual language in resolving this single-act case. Moreover, it would be harder to

overrule or disapprove past cases for diverging from the statutory language if we

were to decide the case on a basis that bears no relation at all to that language.

Accordingly, we conclude this case should be decided on the basis that it involves

a single act or omission that can be punished but once.

It might make sense to punish more severely a firearm possession that

violates multiple penal provisions than a firearm possession that violates only one

penal provision. Any time it wishes, the Legislature can change the law and

permit multiple punishment in a situation like this. But we must interpret the

statutes as they exist. Because defendant‘s convictions were based on a single act,

section 654 prohibits multiple punishment. As previously noted, we overrule In re

Hayes, supra, 70 Cal.2d 604, and disapprove People v. Harrison, supra, 1

Cal.App.3d 115.

13

III. CONCLUSION

We reverse the judgment of the Court of Appeal and remand the matter to

that court for further proceedings consistent with this opinion.

CHIN, J.

WE CONCUR:

KENNARD, ACTING C. J.

BAXTER, J.

CORRIGAN, J.

SEPULVEDA, J.*

_____________________________

* Associate Justice of the Court of Appeal, First Appellate District, Division Four,

assigned by the Chief Justice pursuant to article VI, section 6 of the California

Constitution.

14

CONCURRING OPINION BY WERDEGAR, J.

Although I agree with the majority‘s result, I write separately to explain my

view of the correct approach to applying Penal Code section 654 in this case and

cases generally.1

The majority concludes that pursuant to section 654, defendant, a felon

found with a loaded pistol in his car, can be punished only once notwithstanding

his behavior violated three different criminal statutes. Although I agree with this

result, I join Justice Liu‘s separate opinion because the majority does not

persuasively explain how it has determined defendant committed only one

punishable act. As Justice Liu states, we should apply the test set forth in Neal v.

State of California (1960) 55 Cal.2d 11, 19 (Neal), which held that ―[w]hether 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. If all of the offenses were incident to one objective, the defendant may be

punished for any one of such offenses but not for more than one.‖ (Italics added;

see conc. opn. of Liu, J., post, at p. 1.) Because the evidence demonstrates

defendant acted with but a single objective, Neal compels the conclusion that

defendant may be punished only once for his crimes.

1 All subsequent statutory references are to the Penal Code unless otherwise

stated.

1

The majority‘s failure to rely on Neal, supra, 55 Cal.2d 11, is as puzzling as

it is mischievous. The Neal intent-and-objective test has been the law for over 50

years and, as Justice Liu explains, was questioned but ultimately endorsed by this

court in People v. Latimer (1993) 5 Cal.4th 1203. (See id. at p. 1216 [―[A]t this

late date, any changes must be made by the Legislature, which obviously has the

authority to modify the rule any time it chooses.‖]; see also People v. Britt (2004)

32 Cal.4th 944, 952 [noting our criticism in Latimer].) Despite this court‘s

invitation to the Legislature to reexamine the statute, the Legislature has neither

abrogated nor amended it. Under the circumstances, we should find the

Legislature has acquiesced in the Neal test and simply apply it here. By failing to

do so, the majority creates uncertainty where none previously existed.

I.

More than a century old and deceptively simple in its terms,2 section 654

has nonetheless confounded courts through the years. Just recently, this court

faced how, or whether, section 654 applied to criminal sentence enhancement

provisions. We concluded that for the particular enhancements involved in that

case, the Legislature had specifically addressed the issue in section 1170.1,

permitting the sentencing court to impose both a firearm use enhancement

(§ 12022.5, subd. (a)) and a great bodily injury enhancement (§ 12022.7, subd. (e))

for essentially the same act: shooting the victim. (People v. Ahmed (2011) 53

Cal.4th 156.) I agreed with this reasoning but joined the concurring opinion of my

colleague Justice Liu to disavow the majority‘s unnecessary discussion of how

2 Section 654, subdivision (a) provides: ―An act or omission that is

punishable in different ways by different provisions of law shall be punished under

the provision that provides for the longest potential term of imprisonment, but in

no case shall the act or omission be punished under more than one provision. An

acquittal or conviction and sentence under any one bars a prosecution for the same

act or omission under any other.‖

2

section 654 might apply to enhancement provisions in general. (Ahmed, at pp.

168-169 (conc. opn. of Liu, J.).)

In People v. Correa (June 21, 2012, S163273) __ Cal.4th ___, filed the

same day as the instant case, the question of application of section 654 arises with

respect to a felon apprehended in simultaneous possession of seven illegal

firearms. Did he commit one punishable act of being a felon in possession of a

firearm (former § 12021, subd. (a)(1), now § 29800, subd. (a)(1)) or seven

punishable acts? The Correa majority holds the defendant may be punished seven

separate times. As I explain in my separate opinion in Correa, I agree with that

result because the Legislature amended former section 12001 to add subdivision

(k), which provides that each illegal weapon is a separate crime, and the

Legislature must have intended by this amendment that each conviction could be

separately punished. (Correa, at p. ___ [pp. 1, 4] (conc. opn. of Werdegar, J.).)

Finally, this court in a divided opinion recently decided People v. Mesa

(June 4, 2012, S185688) __ Cal.4th ___, in which we held that section 654

prohibits punishing a defendant for both an assault with a firearm (§ 245, subd.

(a)(2)) and participation in a criminal street gang (§ 186.22, subd. (a)), when both

crimes are based on the same act: shooting the victim. Together with the instant

case, that makes four cases in this court involving the application of section 654 in

just six months (Ahmed, Jones, Correa, Mesa). The confusion concerning the

scope and meaning of the statute thus continues unabated.

Over the years, we have attempted to bring certainty to the application of

section 654 by glossing the statutory language in two principal ways. First, we

found the ―act or omission‖ referenced in the section could be a course of conduct

that includes several acts indivisible in time if pursued according to a single

objective or intent. (People v. Beamon (1973) 8 Cal.3d 625, 639; Neal, supra, 55

Cal.2d at p. 19.) If those acts have separate and independent objectives or intents,

however, multiple punishment is permissible, even if the acts are very close in

3

time. (People v. Harrison (1989) 48 Cal.3d 321, 335.) Second, despite no explicit

reference to victims in section 654, we held that a single act can be punished more

than once if it impacts multiple victims. (People v. Oates (2004) 32 Cal.4th 1048,

1063; People v. King (1993) 5 Cal.4th 59, 78; People v. McFarland (1989) 47

Cal.3d 798, 803; Neal, at pp. 20-21.) In addition, we have opined that section 654

applies to limit the punishment for multiple violations of the same criminal statute

(Neal, at p. 18, fn. 1), although the section speaks only of acts or omissions

―punishable in different ways by different provisions of law‖ (§ 654, italics

added).

These interpretations of section 654 are admittedly strangers to the statute‘s

actual wording. Nevertheless, they have until recently stood the test of time, have

not been altered by the Legislature, and are now part of the fabric of the law. But

despite our best efforts, no coherent approach to applying the statute has emerged.

Indeed, in seeking to bring clarity to the statute, we have come full circle.

In this case, for example, we overrule one of our earlier decisions on the subject,

In re Hayes (1969) 70 Cal.2d 604, which held a defendant who drove while

intoxicated and with a suspended license committed two, separately punishable

acts. (Maj. opn., ante, at p. 10.) And in People v. Correa, supra, __ Cal.4th ___,

___, the majority disapproves the venerable and long-followed interpretation of

section 654 that made it applicable to multiple violations of the same statute.3

3 See, e.g., People v. Davey (2005) 133 Cal.App.4th 384, 389 (§ 654 has

been ―interpreted also to preclude multiple punishment for more than one violation

of a single Penal Code section, if the violations all arise out of a single criminal

act‖); People v. Hall (2000) 83 Cal.App.4th 1084, 1088 (same); People v.

Gbadebo-Soda (1989) 215 Cal.App.3d 1371, 1375 (same); People v. Anderson

(1987) 191 Cal.App.3d 207, 214 (same).

4

Although, as noted, this court has on a number of occasions urged the

Legislature to intervene and clarify the law,4 with but one exception not applicable

here5 the Legislature has not enacted any substantive modification of section 654.

Thus, the terms of the section remain largely the same as they were 50 years ago

when we decided Neal, supra, 55 Cal.2d 11.

II.

That the Legislature has not acted to clarify the applicability of section 654

does not mean it has been inactive in addressing the question of multiple

punishment for a single act or omission. Rather, as I will discuss, the Legislature

4 People v. Latimer, supra, 5 Cal.4th at page 1216; see also People v. Benson

(1998) 18 Cal.4th 24, 29 (―the Legislature is free to authorize the designation of

such prior felony convictions as separate priors‖ to permit multiple punishment

despite § 654); People v. Ahmed, supra, 53 Cal.4th at page 169 (conc. opn. of

Liu, J.) (―[T]he Legislature may wish to clarify the scope of Penal Code section

654 in general, and how that statute applies to criminal sentence enhancements in

particular.‖).

5 Members of this court had previously urged the Legislature to amend

section 654 to specify that where a defendant stands convicted of multiple crimes

stemming from the same act, the trial court should choose the crime carrying the

longest single sentence as the base term. (People v. Norrell (1996) 13 Cal.4th 1,

12 (conc. opn. of Baxter J.) [―Just as the Legislature could presumably repeal the

statute altogether, so too may it amend the statute to ensure that a defendant

convicted of multiple crimes does not receive more lenient treatment by virtue of

section 654 than he could have received if the statute did not apply.‖]; id. at p. 23

(conc. & dis. opn. of Arabian, J., joined by Kennard and George, JJ.) [―I hope the

Legislature will heed my call, and amend that statute . . . .‖].)

―The provision of section 654 requiring the longest available term of

imprisonment was added by the Legislature in response to a judicial decision

permitting trial courts to choose a lesser sentence. (See People v. Kramer (2002)

29 Cal.4th 720, 722-723 . . . ; Stats. 1997, ch. 410, § 1, p. 2753.) The amendment

was intended to require punishment commensurate with culpability, and avoid the

anomaly of a lesser sentence being imposed because the defendant had been

convicted of two crimes instead of one.‖ (People v. Ceja (2010) 49 Cal.4th 1, 7-

8.)

5

has indicated in many substantive criminal statutes themselves, either expressly or

impliedly, whether or not section 654 applies to limit multiple punishment.

The restriction on multiple punishment for the same act or omission is

statutory only, and the Legislature—short of constitutional limits imposed by the

Eighth Amendment to the United States Constitution and article I, section 17 of

the California Constitution—can freely modify or alter the scope of section 654.

Although we previously have opined that, ―[h]ad the Legislature intended to

override the century-old ban of section 654 on multiple punishment of violations

based on the ‗same act or omission,‘ it would have made that purpose explicit‖

(People v. Siko (1988) 45 Cal.3d 820, 824), the Legislature has not always been so

―explicit‖ in its wishes with regard to the section‘s applicability.

Yet the Legislature has on some occasions made its intent clear. For

example, section 1170.1, the default criminal sentencing statute, begins: ―Except

as otherwise provided by law, and subject to Section 654,‖ the offender shall be

sentenced in a certain manner. (§ 1170.1, subd. (a), italics added.) Similarly,

section 32000, subdivision (c), concerning the manufacture, importation or sale of

unsafe handguns, provides: ―Violations . . . are cumulative with respect to each

handgun and shall not be construed as restricting the application of any other law.

However, an act or omission punishable in different ways by this section and other

provisions of law shall not be punished under more than one provision, but the

penalty to be imposed shall be determined as set forth in Section 654.‖ (Italics

added.) Other examples of penal statutes that explicitly note the applicability of

section 654 include section 422.6, subdivision (d), concerning the crime of

interfering with a person‘s exercise of his or her civil rights (―the penalty to be

imposed shall be determined as set forth in Section 654‖), and section 627.10,

concerning crimes committed on school grounds (―no punishment shall be

imposed contrary to Section 654‖). In these instances the Legislature has made

6

clear that section 654 applies to limit imposition of multiple punishment for the

same act or omission.

The Legislature has also fashioned penal laws that expressly exempt their

operation from section 654‘s limits on multiple punishment. For example, section

30615, concerning commission of a crime with an assault weapon, provides:

―Notwithstanding Section 654 or any other provision of law, any person who

commits another crime while violating this article may receive an additional,

consecutive punishment of one year for violating this article, in addition and

consecutive to the punishment, including enhancements, which is prescribed for

the other crime.‖ (Italics added.)

In addition to these instances of an express mention of the applicability vel

non of section 654, courts in a number of situations have been able to discern the

Legislature‘s implied intent regarding the section. For example, in People v.

Benson, supra, 18 Cal.4th at page 31, we held the phrase ―[n]otwithstanding any

other provision of law‖ in the ―Three Strikes‖ law meant a prior conviction for

which the sentence was stayed pursuant to section 654 could still count as a strike

even though the statutory language made no express reference to section 654.

Nor was People v. Benson the only case to find an implied exception to

section 654‘s general application. As we observed in People v. Palacios (2007)

41 Cal.4th 720, 730: ―[C]ourts have repeatedly upheld the Legislature‘s power to

override section 654 by enactments that do not expressly mention the statute. In

People v. Hicks (1993) 6 Cal.4th 784, 791-792 . . . , we held that the Legislature,

in enacting section 667.6, subdivision (c),[6] was not required to cite section 654 to

demonstrate its intent to create an exception to its provisions. In People v.

6 Section 667.6, subdivision (c), in 1993 as now, provided in pertinent part:

―In lieu of the term provided in Section 1170.1, a full, separate, and consecutive

term may be imposed for each violation of‖ enumerated offenses. (Italics added.)

7

Ramirez (1995) 33 Cal.App.4th 559, 573 . . . , the court held that, with regard to

section 667, subdivision (e),[7] ‗A statute which provides that a defendant shall

receive a sentence enhancement in addition to any other authorized punishment

constitutes an express exception to section 654.‘ In People v. Powell (1991) 230

Cal.App.3d 438, 441 . . . , a case predating the enactment of the Three Strikes law,

the court concluded that Health and Safety Code section 11370.2[8] authorized

double punishment in addition to any other authorized penalty, thus prevailing

over section 654 even though section 654 was not mentioned in the statute.‖

People v. Palacios itself is a good example of a case in which we found

section 654 inapplicable despite the absence of an express exemption. Palacios

7 Section 667, subdivision (e), the Three Strikes provision, provided in 1995,

as now, that a Three Strikes offender should be sentenced to a Three Strikes

sentence ―in addition to any other enhancement or punishment provisions which

may apply . . . .‖ (Italics added.)

8 Health and Safety Code section 11370.2 provides in pertinent part:

―(a) Any person convicted of a violation of, or of a conspiracy to violate, [Health

and Safety Code] Section 11351, 11351.5, or 11352 shall receive, in addition to

any other punishment authorized by law, including Section 667.5 of the Penal

Code, a full, separate, and consecutive three-year term for each prior felony

conviction of, or for each prior felony conviction of conspiracy to violate [certain

enumerated drug crimes], whether or not the prior conviction resulted in a term of

imprisonment. [¶] (b) Any person convicted of a violation of, or of a conspiracy

to violate, [Health and Safety Code] Section 11378.5, 11379.5, 11379.6, 11380.5,

or 11383 shall receive, in addition to any other punishment authorized by law,

including Section 667.5 of the Penal Code, a full, separate, and consecutive three-

year term for each prior felony conviction of, or for each prior felony conviction

of conspiracy to violate [certain enumerated drug crimes], whether or not the prior

conviction resulted in a term of imprisonment. [¶] (c) Any person convicted of a

violation of, or of a conspiracy to violate, [Health and Safety Code] Section 11378

or 11379 with respect to any substance containing a controlled substance specified

in paragraph (1) or (2) of subdivision (d) of Section 11055 shall receive, in

addition to any other punishment authorized by law, including Section 667.5 of

the Penal Code, a full, separate, and consecutive three-year term for each prior

felony conviction of, or for each prior felony conviction of conspiracy to violate

[certain enumerated drug crimes], whether or not the prior conviction resulted in a

term of imprisonment.‖ (Italics added.)

8

concerned section 12022.53, the so-called ―10-20-life law‖ (see People v. Jones

(2009) 47 Cal.4th 566, 570 [§ 12022.53 is ―also known as ‗the 10-20-life law‘ ‖]),

which severely punishes the use of a firearm while committing certain serious or

violent felonies. Although section 12022.53 does not mention section 654,

subdivisions (b), (c) and (d) all begin with the phrase ―[n]otwithstanding any other

provision of law‖ and subdivision (f) provides in part: ―Only one additional term

of imprisonment under this section shall be imposed per person for each crime.‖

(Italics added.) Considering this statutory language, we held that despite the

Legislature‘s failure to expressly exempt the ―10-20-life law‖ from section 654,

enhancement sentences imposed pursuant to the statute were not limited by section

654, and ―[t]o hold otherwise would contravene the plain language of section

12022.53.‖ (People v. Palacios, supra, 41 Cal.4th at p. 723.)

Even where a sentencing statute does not say it applies ―notwithstanding

any other provision of law,‖ or that a sentence should be imposed ―in addition to

any other punishment authorized by law,‖ or that a ―full, separate, and consecutive

term may be imposed,‖ the Legislature sometimes specifies in other ways that

more than one punishment is permissible for the same act. For example, section

12022.53, subdivision (e) sets forth the conditions for imposing for the same act

both a ―10-20-life‖ enhancement and a criminal street gang enhancement

(§ 186.22, subd. (b)): the principal in an enumerated crime must have personally

used and/or intentionally discharged a firearm, and/or proximately caused great

bodily injury or death. (See People v. Jones, supra, 47 Cal.4th at pp. 580-581

(conc. opn. of Werdegar, J.).) Similarly, as we held in People v. Ahmed, supra, 53

Cal.4th 156, section 1170.1, subdivisions (f) and (g) state specifically that the

single act of shooting someone can be the basis for two enhancements: one for

firearm use and one for inflicting great bodily injury.

In short, some penal statutes expressly reference section 654 or the

availability of multiple punishment, but for many that do not the courts have found

9

an implied exception to the ban on multiple punishment for the same act or

omission, such as when the statute provides that a sentencing scheme applies

―notwithstanding any other provision of law‖ or otherwise ―include[s] language

expressly authorizing multiple punishments.‖ (People v. Le (2006) 136

Cal.App.4th 925, 933.)

Against this background and also relevant to the application of section 654

is the Legislature‘s action in greatly increasing the lengths of individual criminal

sentences. As we have often recognized, ―the purpose of section 654 is to ensure

that a defendant‘s punishment will be commensurate with his culpability.‖

(People v. Correa, supra, __ Cal.4th at p. ___ [p. 11]; see also People v. Ceja,

supra, 49 Cal.4th at p. 8; People v. Britt, supra, 32 Cal.4th at p. 953; People v.

Kramer, supra, 29 Cal.4th at pp. 723-724; People v. Latimer, supra, 5 Cal.4th at

p. 1211; People v. Perez (1979) 23 Cal.3d 545, 550-551; Neal, supra, 55 Cal.2d at

p. 20.) Viewing the statute in this light, we can infer the greater a defendant‘s

punishment for committing an act under one provision of law, the more congruent

with legislative intent application of section 654‘s prohibition on multiple

punishment is likely to be.

The punishments prescribed for various criminal activities have been on an

upward spiral for many years. In the last 34 years (that is, since the advent of the

determinate sentencing law),9 base terms for many felonies have doubled or even

9 ―California‘s determinate sentencing law became operative on July 1, 1977,

replacing the prior system under which most offenses carried an indeterminate

sentence. (Added by Stats. 1976, ch. 1135, § 273, p. 5140 and as amended by

Stats. 1977, ch. 165, § 1 et seq., pp. 639-680.) In enacting the new sentencing

scheme, the Legislature declared that the purpose of imprisonment is punishment,

and that this purpose is ‗best served by terms proportionate to the seriousness of

the offense with provision for uniformity in the sentences of offenders committing

the same offense under similar circumstances.‘ (§ 1170, subd. (a)(1).)‖ (People v.

Black (2005) 35 Cal.4th 1238, 1246.)

10

tripled. In 1978, the punishment for all types of first degree robbery was two,

three or four years. (Former § 213; Stats. 1977, ch. 165, § 5, p. 642.) Today, the

punishment for robbery in concert in a home (what is commonly referred to as a

home invasion robbery) is three, six or nine years. (§ 213, subd. (a)(1)(A).) In

1978, the punishment for any attempted murder was five, six or seven years in

prison. (Former § 664; Stats. 1977, ch. 165, § 12, p. 644.) Today, an attempted

premeditated and deliberate murder carries a penalty of life in prison. (§ 664,

subd. (a).) In 1978, the punishment for forcible rape, including of a person under

14 years of age, was three, four or five years. (Former § 264; Stats. 1976, ch.

1139, § 154, p. 5106.) Today, forcible rape of a person under 14 carries a base

term of nine, 11 or 13 years. (§ 264, subd. (c)(1).) The penalty for forcible

sodomy of a child under 14 has likewise increased from two, three or four years

(former § 286, subd. (c); Stats. 1977, ch. 490, § 1, pp. 1613-1614) to nine, 11 or 13

years (§ 286, subd. (c)(2)(B)), and forcible oral copulation of a minor from two,

three or four years (former § 288a, subd. (c); Stats 1977, ch. 490, § 2, p. 1614) to

eight, 10 or 12 years (§ 288a, subd. (c)(2)(B)). The punishments for many other

sexual crimes mirror these increases.

Not only has the Legislature increased the base sentences for crimes, it has

enacted enhancements such as the ―10-20-life law‖ (§ 12022.53) and the Street

Terrorism Enforcement and Prevention Act (STEP Act) (§ 186.22, subds. (b)-(j)),

as well as alternative sentencing schemes such as the Three Strikes law (§ 667,

subds. (b)-(i); see also § 1170.12 [enacted by initiative measure]), the one strike

law (§ 667.61) and the provision of full term consecutive sentences for violent sex

offenses (§ 667.6), which together have transformed the penal consequences of

criminal activity such that sentences of more than 100 years—essentially life in

prison without any possibility of release within the offender‘s lifetime—are not

uncommon.

11

I mention these sentencing changes not to comment on their wisdom or

appropriateness; short of constitutional limits, the setting of criminal penalties is

for the Legislature and not the judiciary. But the advent of such increased

sentences is relevant to the concern of section 654, which was first enacted in

1872 and applied during the long period in which criminal sentencing was

governed by the indeterminate sentencing law, that the sentences be

commensurate with an offender‘s personal culpability. Today, under the

determinate sentencing law, sentences for a single ―act or omission‖ often are so

long that, absent an express or implied exception, one may reasonably infer that

application of section 654‘s ban on multiple punishment for the same act would be

most congruent with the legislative intent in enacting such increased sentence

provisions.

III.

Considering the many times the Legislature has expressly or impliedly

provided that section 654 does or does not apply to limit multiple punishment, and

in light of the length of criminal sentences today, we should find section 654

generally applicable in all situations to prohibit multiple punishment, unless an

offender engaged in a course of conduct and acted with multiple intents (People v.

Harrison, supra, 48 Cal.3d at p. 335), or impacted multiple victims (People v.

Oates, supra, 32 Cal.4th at p. 1063), or some express or implied statutory

exception to the section‘s applicability exists. Because the Legislature often

specifically addresses the multiple punishment possibility when enacting criminal

statutes, and frequently establishes by implication exceptions to the rule against

multiple punishment for the same act or omission, we should simply assume that

in the absence of an exception, section 654 will apply. Close cases, such as the

present one, in which it may be difficult to discern whether the defendant

committed one act or several and hence the extent of his or her culpability, should

be resolved in favor of finding one act, for the Legislature will clarify when an act

12

is multiple or singular.10 In short, we should assume the longest base term (plus

any applicable enhancements) as provided by the Legislature for a defendant‘s act

is sufficient to meet the Legislature‘s penological, retributive and rehabilitative

goals.

With these caveats in mind, I concur with the majority‘s result here that

defendant Jarvonne Feredell Jones may be punished only once for his possession

of a loaded firearm.

WERDEGAR, J.

I CONCUR:

LIU, J.

10 For example, for possession of heroin or cocaine, it might be difficult in the

abstract to determine whether the offender has committed one act or several.

Suppose he is arrested in possession of 12 separately packaged kilos of cocaine; is

that one act or 12? The Legislature has impliedly settled the matter: it is one act

subject to an additional enhancement term based on the overall weight of the

contraband. (Health & Saf. Code, § 11370.4, subd. (b)(3).)

13

CONCURRING OPINION BY LIU, J.

I agree with the court that Penal Code section 654 (section 654) permits

only one punishment in this case. I also agree with our decision to overrule In re

Hayes (1969) 70 Cal.2d 604 and to disapprove People v. Harrison (1969) 1

Cal.App.3d 115. Unlike the court, however, I would not rest the judgment in this

case on the ground that Jones‘s three crimes involved ―a single physical act.‖

(Maj. opn., ante, at p. 10.) In applying section 654, reasonable minds can and

often do differ on how to define the ―act‖ that constitutes a crime; as explained

below, the present facts provide a case in point. Today‘s opinion provides little

guidance for making that determination, as revealed by the court‘s repeated

assertion that ―[w]e express no opinion on what the outcome might be under other

facts.‖ (Maj. opn., ante, at p. 12.) The lack of guidance all but invites future

litigation, and California courts will continue to struggle to achieve consistent and

predictable application of section 654.

I prefer that we decide today‘s case on the basis of precedent — imperfect

precedent, but precedent nonetheless. In situations where it is debatable whether

separate crimes arise from a single physical act, we have determined the

applicability of section 654 by examining the ―intent and objective of the actor‖

and prohibiting multiple punishment ―[i]f all of the offenses were incident to one

objective.‖ (Neal v. State of California (1960) 55 Cal.2d 11, 19 (Neal).) The Neal

test has been criticized. But this court unanimously reaffirmed the test — warts

and all — in People v. Latimer (1993) 5 Cal.4th 1203, 1205-1206 (Latimer) after

lengthy and thoughtful consideration of whether it should be overruled. Despite

1

its shortcomings, the Neal test is our precedent, and it is squarely applicable to this

case.

I.

Some section 654 cases indisputably involve a physically indivisible single

act that is punishable in different ways by different provisions of law. In such

cases, multiple punishment is prohibited by the plain language of section 654:

―An act or omission that is punishable in different ways by different provisions of

law shall be punished under the provision that provides for the longest potential

term of imprisonment, but in no case shall the act or omission be punished under

more than one provision.‖

Thus, for a single act of driving, a defendant may be punished only once for

driving under the influence (Veh. Code, § 23152, subd. (a)) and driving with a

blood-alcohol level of .08 percent or greater (id., subd. (b)). (People v. Duarte

(1984) 161 Cal.App.3d 438, 447.) A defendant may be punished only once for

attempted murder, assault with intent to murder, and malicious use of explosives

for the single act of planting a bomb in the victim‘s car. (People v. Kynette (1940)

15 Cal.2d 731, 762, overruled on another ground in People v. Bonelli (1958) 50

Cal.2d 190, 197.) A defendant may be punished only once for possession of a

sawed-off shotgun and possession of a concealable firearm by a felon based upon

the same act of possessing a single firearm. (People v. Scheidt (1991) 231

Cal.App.3d 162, 170 [― ‗it was the single possession of a sawed-off rifle that was

made punishable by two different penal statutes‘ ‖]; People v. Perry (1974) 42

Cal.App.3d 451, 456 [―Here the single act made punishable by two different

statutes was the illegal possession of a firearm capable of concealment upon the

person‖].) In all of these cases, there was no question as to the physical

indivisibility of the act.

As the court acknowledges, however, ―what is a single physical act might

not always be easy to ascertain.‖ (Maj. opn., ante, at p. 10.) This is such a case.

2

Police found a concealed and loaded firearm in the car that defendant, a convicted

felon, was driving. He was convicted under three separate statutes for possession

of a firearm by a felon, carrying a concealed firearm, and carrying a loaded

firearm, respectively. The court concludes that this case involves a single act and

on that basis holds that ―a single possession or carrying of a single firearm on a

single occasion may be punished only once under section 654.‖ (Maj. opn., ante,

at p. 9.) Although this is a reasonable conclusion, it is not apparent how the court

defines this single act. It would be equally reasonable to conclude that there were

two criminal acts in this case: the act of possessing the firearm, which was

complete and ongoing from the time defendant took possession of the firearm, and

a separate criminal act when defendant placed the firearm in his car and

transported it. It might even be reasonable to conclude that there were three

criminal acts if one were to separately count the act of loading the firearm with

ammunition. To ask how many physical acts were committed in a case like this is

to plunge ourselves into insoluble metaphysical difficulties.

It is instructive to compare the reasoning in People v. Coltrin (1936) 5

Cal.2d 649 with the reasoning of People v. Brown (1958) 49 Cal.2d 577 (Brown),

which overruled Coltrin. This court held that the defendant in Coltrin could be

punished both for performing an unlawful abortion and for murder when the

defendant performed an abortion on a 16-year-old girl that resulted in her death.

The court reasoned that ― ‗[t]he act of committing an abortion and the act of

killing a person while attempting to do this are not merely the same act made

punishable in different ways.‘ . . . [A]s a practical matter it cannot be said that the

two charges involve but one act. The act of committing an abortion may be done

without causing the death of the party operated upon. The act which causes the

death of the same person is usually another act, careless or otherwise, which, while

it may be committed in connection with the first and about the same time, involves

a further and additional element.‖ (Coltrin, 5 Cal.2d at p. 661.)

3

Over two decades later, we reached the opposite conclusion in Brown,

supra, 49 Cal.2d 577, on similar facts. Overruling Coltrin, we reasoned that when

the defendant performed an abortion that resulted in the death of the victim, ―[i]t is

artificial to say that the act which caused death in the Coltrin case, and the act

which caused death in the present case, was another act than that which constituted

the abortion.‖ (Brown, at p. 593.) The Coltrin court reasonably concluded that the

act of committing an abortion and the act of murdering the victim in the process

are separate acts. The Brown court reached the equally reasonable conclusion that

the defendant committed only a single act. These cases illustrate that asking

whether separate crimes involve ―a single physical act‖ (maj. opn., ante, at p. 10)

is not a very illuminating inquiry where it is reasonably arguable that the crimes

involved more than one act.

Another complication of the court‘s approach is that it seems to suggest

different results depending on how a prosecutor chooses to draft the accusatory

pleading. In this case, the Attorney General argues that separate acts occurred

because defendant told the police he had obtained the gun three days before it was

discovered in the car and had kept it at his grandmother‘s house. The court rejects

this argument on the ground that the accusatory pleading did not charge defendant

with possessing the gun before the date he was arrested. But if the accusatory

pleading had charged defendant with possessing the gun before the date of the two

unlawful carrying charges, would that have changed the outcome? Does the

distinction make a difference? The court does not say, leaving prosecutors to

wonder whether the lesson here is simply that they should draft the accusatory

pleading differently in cases such as this.

To be sure, section 654 is a sufficiently beguiling statute that it makes sense

to proceed cautiously and avoid broad pronouncements. In People v. Ahmed

(2011) 53 Cal.4th 156, I saw no need for the court to invent a new rule that

― ‗when applied to multiple enhancements for a single crime, section 654 bars

4

multiple punishment for the same aspect of a criminal act‘ ‖ because the case

involved no ―actual dispute on that question.‖ (Id. at p. 169 (conc. opn. of Liu,

J.).) Here, there is an actual dispute concerning the applicability of section 654,

and there is a decent argument that defendant‘s possession of the gun was a

separate act from his carrying offenses. Because it cannot be said that defendant‘s

crimes indisputably involved a single act, we cannot resolve this case on the plain

language of section 654. (Cf. ante, at pp. 2-3 [discussing indisputably single-act

cases].) At the same time, we do not need to invent a new rule to decide this case.

We need only apply our settled precedent.

II.

Where reasonable minds can differ on whether multiple crimes involve a

single act, we have applied the ―intent and objective‖ test set forth in Neal, supra,

55 Cal.2d at page 19: ―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. If all of the offenses were

incident to one objective, the defendant may be punished for any one of such

offenses but not for more than one.‖

We have applied the Neal test to bar multiple punishment in cases

involving multiple acts united by a single common objective. (See, e.g., People v.

Britt (2004) 32 Cal.4th 944, 953 (Britt) [sex offender‘s failure to inform former

county of new address and separate failure to register in new county ―achiev[ed]

the common end of avoiding police surveillance‖]; Latimer, supra, 5 Cal.4th at

p. 1216 [―Although the kidnapping and the rapes were separate acts, the evidence

does not suggest any intent or objective behind the kidnapping other than to

facilitate the rapes.‖]; People v. Beamon (1973) 8 Cal.3d 625, 639 [kidnapping and

robbery united by a ―single intent and objective‖ to rob the victim]; People v.

McFarland (1962) 58 Cal.2d 748, 762 [burglary and grand theft ―were motivated

by one objective, theft‖].)

5

Because a well-developed body of precedent has applied Neal to cases that

unquestionably involve multiple acts, it follows that the Neal test is the approach

best supported by our case law for resolving cases that arguably involve multiple

acts. The Neal test readily resolves the instant case: Defendant possessed and

carried a loaded and concealed weapon ― ‗for protection‘ ‖ (maj. opn., ante, at p.

2), and no evidence suggests any other purpose. Because his three crimes shared a

common intent and objective, section 654 prohibits multiple punishment. Under

the Neal test, the outcome would be the same on these facts whether or not the

prosecutor charged defendant with antecedent possession of the gun, and whether

or not the prosecutor chose to argue defendant‘s antecedent possession to the jury.

The Neal test has not been without controversy, and in 1993, the court in

Latimer expressly considered whether to overrule it. The court opined that Neal

does not always ensure commensurability between punishment and culpability:

―A person who commits separate, factually distinct, crimes, even with only one

ultimate intent and objective, is more culpable than the person who commits only

one crime in pursuit of the same intent and objective.‖ (Latimer, supra, 5 Cal.4th

at p. 1211.) The defendant in Latimer kidnapped the victim, drove her to the

desert, and raped her. The court said ―[t]he kidnapping was a completely separate

crime; it should be separately punishable.‖ (Ibid.) But despite this concern, the

court undertook an extended discussion of stare decisis and declined to overrule

Neal. Instead, the court unanimously reaffirmed Neal on the ground that ―[t]he

Legislature has enacted substantial legislation reflecting its acceptance of the Neal

rule.‖ (Id. at p. 1214; see id. at p. 1216 [―The Neal rule . . . has influenced so

much subsequent legislation that stare decisis mandates adherence to it.‖]; see also

id. at p. 1217 (conc. opn. of Mosk, J.) [―I do not join in the criticism of Neal.‖].)

Given the court‘s unanimity in reaffirming the Neal test as well as our application

of Neal to prohibit multiple punishment in Latimer (id. at p. 1216) and again as

6

recently as 2004 (see Britt, supra, 32 Cal.4th at p. 953), the ―intent and objective‖

test is well-settled in our jurisprudence.

The Neal test requires courts to apply the appropriate level of specificity or

generality in identifying the defendant‘s intent and objective. In Britt, where a

convicted sex offender moved from one county to another without informing

either county and thereby committed two crimes, we said that ―finding separate

objectives here — to mislead or conceal information the law enforcement agency

in each county — parses the objectives too finely. . . . Here the objective —

avoiding police surveillance — was achieved just once, but only by the

combination of both reporting violations.‖ (Britt, supra, 32 Cal.4th at p. 953.)

The court in Britt distinguished People v. Perez (1979) 23 Cal.3d 545, 550-554,

which held that section 654 did not bar multiple punishment for multiple sexual

offenses that occurred during an attack lasting 45 minutes to an hour. Rejecting

the defendant‘s contention that ―his sole intent and objective was to obtain sexual

gratification,‖ we said that ―[s]uch 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.‖

(Perez, supra, 23 Cal.3d at p. 552.)

As these cases show, the application of Neal‘s ―intent and objective‖ test is

not algorithmic. But this court has acknowledged that ―[b]ecause 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, supra, 8 Cal.3d at p. 636.) The court suggests it will be

difficult to apply Neal where a defendant may have multiple objectives or where

the evidence does not show what the defendant‘s objective was. (Maj. opn., ante,

at pp. 12-13.) Notwithstanding such difficulties, we have not hesitated to ―focus

7

on the question whether defendant should be deemed to have entertained single or

multiple criminal objectives‖ in a wide range of scenarios. (People v. Perez,

supra, 23 Cal.3d at p. 552; see Latimer, supra, 5 Cal.4th at p. 1216 [finding single

objectives for kidnapping and rape even though ―[i]t could be argued that

defendant had two intents‖]; People v. Harrison (1989) 48 Cal.3d 321, 326, 334-

338 [rejecting defendant‘s claim of single objective for multiple sexual offenses

during an attack on a single victim lasting seven to ten minutes].) The Neal test is

not perfect, but we recognized its imperfections in Latimer and reaffirmed it

anyway. (Latimer, supra, 5 Cal.4th at p. 1210-1211.)

In this case, the Neal test avoids the conceptual difficulty of determining

whether one or more physical acts were involved and provides more guidance to

courts and prosecutors than the court‘s approach. Under Neal, it does not matter

whether Jones picked up the gun three days earlier or possessed the firearm earlier

that day. It does not matter whether he loaded or concealed the gun before his car

was stopped. And it does not matter — in future cases with identical facts —

whether the prosecutor charges the defendant with antecedent possession or argues

that point to the jury. What matters is that Jones‘s triply unlawful conduct was

united by a single common objective. Accordingly, our precedent dictates that

Jones may not be punished more than once under section 654.

LIU, J.

I CONCUR:

WERDEGAR, J.

8

See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Jones

__________________________________________________________________________________

Unpublished Opinion XXX NP opn. filed 12/10/09 – 3d Dist.

Original Appeal

Original Proceeding

Review Granted

Rehearing Granted

__________________________________________________________________________________

Opinion No. S179552

Date Filed: June 21, 2012

__________________________________________________________________________________

Court: Superior

County: Sacramento

Judge: Jaime R. Roman

__________________________________________________________________________________

Counsel:

Sandra Uribe and Deanna Lamb, under appointments by the Supreme Court, and Morgan H. Daly, under

appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., and Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant

Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Jennevee H. De

Guzman, Deputy Attorneys General, for Plaintiff and Respondent.

Counsel who argued in Supreme Court (not intended for publication with opinion):

Deanna Lamb

Central California Appellate Program

2407 J Street, Suite 301

Sacramento, CA 95816

(916) 441-3792

Jennevee H. De Guzman

Deputy Attorney General

1300 I Street, Suite 125

Sacramento, CA 94244-2550

9916) 327-1145