Neal v. State of California

SCHAUER, J.,

Dissenting. — In my opinion review of the question whether a prisoner is being punished under more than one penal statute for one “act” within the meaning of Penal Code, section 654, presents a problem of the sufficiency of the evidence to show that the course of criminal conduct which resulted in multiple sentences was a divisible transaction. (See the treatment of the question in such cases as People v. *22 Greer (1947), 30 Cal.2d 589, 604 [ 184 P.2d 512 ]; People v. Slobodion (1948), 31 Cal.2d 555, 562-563 [ 191 P.2d 1 ]; People v. Knowles (1950), 35 Cal.2d 175, 188 [13b] [ 217 P.2d 1 ]; People v. Kehoe (1949), 33 Cal.2d 711, 714-715 [ 204 P.2d 321 ]; People v. Logan (1953), 41 Cal.2d 279, 290 [11] [ 260 P.2d 20 ]; People v. Brown (1958), 49 Cal.2d 577, 590-591 [13] [ 320 P.2d 5 ]; cf. People v. Hoyt (1942), 20 Cal.2d 306, 316-317 [8] [ 125 P.2d 29 ].)

Although the majority say (ante, p. 17) that they do not review a question of fact but determine only a question of law^ — the application of a statute to uncontradicted facts— actually they review and strike down a factual determination which rested upon evidence that supports the contrary inferences on which the trial court based its final judgments. The majority in effect recognize that their redetermination necessarily involves a review of the sufficiency of the evidence by the manner in which they state the general test whereby they would solve the problem. They say (ante, p. 19) that “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.” Whether the criminal’s intent is directed toward one principal “objective” and whether his other crimes are merely “incident” to that objective, under the majority’s view, would be questions for initial decision by the trial court, for review on appeal, and again (whether or not the questions were raised at the trial or on appeal) for review on habeas corpus by every court (in felony cases the superior court, the District Court of Appeal and this court) which has jurisdiction. But such review by habeas corpus obviously could not be carried out in an informed fashion except by appraising the evidence which was presented at the trial or perhaps (the majority suggest no limitation in this regard) by taking evidence additional to that received at the trial.

It requires no extensive evidential statement to demonstrate that the issue which the majority here resolve is in essence factual and that in effect the majority have retried the ease insofar as the arson count is concerned. The defendant was charged with and convicted of two crimes against persons (attempted murders) and one crime against property (arson). As pertinent here, murder is defined by Penal Code, section 187 (“Murder is the unlawful killing of a human being, with *23 malice aforethought”) ami section 189 (“All murder which is perpetrated by . . . wilful, deliberate, and premeditated killing, or which is committed in the perpetration or attempt to perpetrate arson, rape, robbery, burglary, mayhem, or any act punishable under Section 288, is murder of the first degree. . . .”) (Italics added). Attempted murder is made punishable by subdivision 1 of section 664 of the Penal Code, and by legal definition attempted murder is the doing of a direct, ineffectual act toward consummation of the intended murder. (See People v. Snyder (1940), 15 Cal.2d 706, 708 [1] [ 104 P. 2d 639 ] ; People v. Camodeca (1959), 52 Cal.2d 142, 145 [1] [ 338 P.2d 903 ].) Arson, as pertinent here, is defined by section 447a of the Penal Code (“Any person who wilfully and maliciously sets fire to or burns or causes to be burned . . . any dwelling house . . . shall be guilty of arson. . . .”). Here the defendant intended to, and did, accomplish the crime of arson, and he also intended and attempted, but failed, to accomplish, two killings in the perpetration of arson. Obviously the crime of attempted murder is of a class separate from the crime of arson and each class involves proof of one or more factual elements not common to the other. The three convictions were reviewed on appeal (People v. Neal (1950), 97 Cal.App.2d 668 [ 218 P.2d 556 ]) and the reviewing court considered and commented not only on evidence tending to establish the crimes against the persons of the victims of attempted murder, particularly the evidence of “specific intent to murder Mr. and Mrs. Raymond” (p. 672 [2,3] of 97 Cal.App.2d) but also on the evidence which tended to show that defendant wilfully and maliciously burned the house in which they dwelt (p. 670 [1] of 97 Cal.App.2d) and “had an inclination to pyromania” (p. 673 [5] of 97 Cal.App.2d). In these circumstances I cannot agree with the majority that the criminal who deliberately chose to commit both arson and murder by the same incendiary course of conduct necessarily and as a matter of law committed but one “act . . . which is made punishable in different ways by different provisions of this code” (Pen. Code, § 654).

The subject use of habeas corpus is squarely contrary to the following rules: “ [H]abeas corpus may not be used instead of an appeal to review determinations of fact made upon conflicting evidence after a fair trial. [Citations.] Likewise, the writ is not available to correct errors or irregularities relating to ascertainment of the facts when such errors could and should have been raised by appeal. [Citations.] ” (In re *24 Dixon (1953), 41 Cal.2d 756, 760 [6,7] [ 264 P.2d 513 ].) In the case of In re Chapman (1954), 43 Cal.2d 385, 390 [9, 10] [ 273 P.2d 817 ], although ive passed on and rejected the merits of a prisoner’s contention, raised on habeas corpus, that his course of criminal conduct could be punished only once, we also pointed out that “Whether the evidence accepted by the trier of fact shows petitioner guilty of one crime or of two [or of a course of criminal conduct which, although it constitutes two separately defined crimes, can be punished but once by reason of section 654] is in part a factual question,” and we quoted and relied on the foregoing rules stated in the Dixon case as an alternate ground for denying the writ.

While I have approved of and participated in decisions of this court which have somewhat broadened the uses of habeas corpus, employment of the writ to review or initially decide questions of the intent and objective of the criminal actor seems to me to be a radical departure which goes far beyond the scope of the writ as previously extended. (See In re McInturff (1951), 37 Cal.2d 876, 880 [3] [ 236 P.2d 574 ].) Many California prisoners are serving multiple final sentences for offenses variously connected in their commission; such prisoners will, of course, be encouraged by today’s decision to flood this court, or lower courts, with applications for similar evidential reviews. I think it unsound and highly undesirable to now permit — indeed, require — the courts to go behind these final judgments and open or reopen the often difficult and in large part factual questions attendant upon the application of section 654.

The problems inherent in the majority’s action will become particularly complex if the courts are to continue to assume to review on habeas corpus the sufficiency of the evidence to support separate sentences for the crimes which are enumerated in Penal Code, section 189, as a part of the definition of murder of the first degree 1 and for murders or attempted murders factually connected with such felonies. It has been routine procedure in such cases to sentence defendants both for murder and for the other felony named in section 189. (E.g., People v. Chavez (1958), 50 Cal.2d 778, 782-783 [arson] [ 329 P.2d 907 ]; People v. Riley (1950), 35 Cal.2d 279, 280 [robbery] [ 217 P.2d 625 ]; People v. Simeone (1945), 26 Cal.2d *25 795, 797 [robbery] [ 161 P.2d 369 ]; People v. Kelso (1945), 25 Cal.2d 848, 849 [burglary] [ 155 P.2d 819 ]; People v. Hill (1943), 22 Cal.2d 863, 864 [robbery] [ 141 P.2d 418 ]; People v. King (1939), 13 Cal.2d 521, 522-523 [robbery] [ 90 P.2d 291 ].) And in what appears to be the only case in which the question was particularly discussed, it was held that such sentences (for robbery and murder in the perpetration of the robbery) did not contravene section 654. (People v. Hoyt (1942), supra, 20 Cal.2d 306, 316-317 [8].) Are the courts now to reexamine the cases of prisoners serving final sentences of imprisonment for both murder and a related robbery and to determine whether a defendant set out to rob and incidentally killed or set out to kill and incidentally robbed (in either of which events, under the majority’s holding, he could be sentenced at most for murder), or whether perchance he set out to commit both robbery and murder and executed both of his intents as part of the same transaction by divisible acts ?

As another example of difficulties with which the courts will now be confronted (if today’s majority decision is consistently applied), reference may be made to prisoners who are confined under multiple sentences for forgeries and use of false writings in closely related transactions. Where such multiple convictions (in one class of crime or another) have been sustained (see In re Horowitz (1949), 33 Cal.2d 534, 541-545 [4] [ 203 P.2d 513 ]; People v. Cline (1947), 79 Cal.App.2d 11, 19 [4] [ 179 P.2d 89 ]) or have never been questioned, as is doubtless true in hundreds of eases, can these prisoners now obtain review by habeas corpus to decide the question whether their offenses can be punished but once because they had but one objective?

Furthermore, it does not appear that the majority furnish a satisfactory test to be applied by sentencing courts. 2 Under the majority view, for example, a defendant who chooses to fire one shot as a means of murdering A, succeeds only in terrifying A, but incidentally kills bystander B, would apparently be punishable both for the murder of B and the assault on A (a violation of two statutes by one act). (See ante, pp. 20-21; People v. Brannon (1924), 70 Cal.App. 225, 235 [5] [ 233 P. 88 ].) But a defendant who chooses arson of B’s build *26 ing, occupied by A, as a means of both murdering A and injuring B by destroying his property, and who succeeds in destroying the building but not in killing A, would be punishable at most for attempted murder of A because he committed only the one act of setting fire to a building. This does not appear to be “punishment . . . commensurate with his criminal liability” (an te, p. 20), one of the theoretical bases apparently relied on by the majority both to permit punishment for two offenses in the first instance and for only one offense in the second instance.

My principal concern, however, as already indicated is the misuse of habeas corpus to strike down the final judgment of conviction of arson on the ground (ante, p. 21) that it is “in excess of the jurisdiction of the [trial] court” because of its factual connection with the attempted murders. For the reasons above stated I cannot join in the opinion or the judgment and would, instead, simply discharge the order to show cause and deny any relief to the petitioner, whether his application be treated as one seeking habeas corpus, mandate, or some other undesignated remedy.

McComb, J., concurred.

The applications of petitioner and of respondent for a rehearing were denied January 10, 1961. Schauer, J., and McComb, J., were of the opinion that the applications should be granted.

‘All murder which is . . . committed in the perpetration or attempt to perpetrate arson, rape, robbery, burglary, mayhem, or any act punishable under Section 288, is murder of the first degree. ...” (Pen. Code. Í 189.)

In this regard my concern is with future application of the majority opinion by trial courts; at this writing it would seem impractical if not impossible to formulate a single, general test which would encompass all the previous, inconsistent appellate decisions concerning multiple punishment under section 654.