The opinion
I concur in Justice Aiso's opinion in all respects. This comment addresses itself only to a problem raised by Justice Reppy's partial dissent which would decide the divisibility of defendant's conduct by looking *Page 827
only to his intent and objective when he acquired possession of the gun at some point before the shooting.
The problem arises from the fact that the applicability of the double punishment provisions of section 654 of the Penal Code often depends on which of several conflicting inferences, arising from the evidence introduced on the issue of guilt, is accepted by the trial court. Ironically, however, that evidence was never offered for the purpose of proving or disproving whether the defendant is subject to double punishment. Moreover, evidence which is relevant to that issue, may be inadmissible during the guilt phase of the proceeding, or may be intentionally withheld. Obviously a person who is fighting a robbery-rape charge with an alibi is not going to take the stand and testify to the full extent of his criminal objective. The trial record is therefore the wrong tool for intelligent factfinding with respect to the applicability of the relevant test under section 654 . 1
While that is a situation which we shall have to put up with until the law provides for a hearing directed toward the resolution of the issues relevant to the question of double punishment, 2 the Supreme Court — perhaps in order to alleviate the problem — is moving in a direction more in accordance with Justice Aiso's views, than those of the dissent.
I believe that in People v. Bauer, 1 Cal.3d 368 , 377 [ 82 Cal.Rptr. 357 , 461 P.2d 637 ], the court, in effect, disapproves of cases such as People v. Roth, 228 Cal.App.2d 522 , 534-535 [ 39 Cal.Rptr. 582 ]; People v. Mistretta, 221 Cal.App.2d 42 , 45-46 [ 34 Cal.Rptr. 365 ]; and People v. Fields, 190 Cal.App.2d 515 , 517-519 [ 12 Cal.Rptr. 249 ], which permit double punishment on the theory that one crime was an "afterthought" and that therefore the two crimes were not "incident to one objective." ( Neal v. State of California, 55 Cal.2d 11 , 19 [ 9 Cal.Rptr. 607 , 357 P.2d 839 ].) In Bauer the Supreme Court stresses a far more objective test: does the evidence show multiple crimes which are part of "a course of conduct comprising an indivisible transaction." ( People v. Bauer, supra,
1 Cal. 3d at p. 377 .) Granted that, even so, a record made for the purpose of proving the defendant guilty is still a poor vehicle for determining an entirely different issue, the "indivisible transaction" test at least gets away from speculative inquiries into the defendant's overall objectives. Furthermore, the "intent and objective" test appears to place a premium on "thinking big" when *Page 828
planning a crime wave, a perverse notion which we should not attribute to the Legislature. 3
The reason why the transaction test is better designed to resolve any factual issue with respect to the application of section 654 is perfectly obvious: the evidence introduced on the issue of guilt is likely to be more helpful in determining objectively whether there was an indivisible transaction than, subjectively, whether the two crimes were incident to one objective. The case at bar is a perfect example. No one really cared who had possession of the gun until the moment when it was seen in defendant's hand. He may have brought it to the Plush Bunny or he may somehow have obtained it just before he used it. That question was never tried, although an answer to it might be very relevant if we are interested in defendant's overall plans for the evening. On the other hand what the evidence did reveal was a "transaction" involving defendant possessing the gun in the process of committing another crime. No distinct antecedent possession was shown. Thus, once the question of guilt had been disposed of, the trial court knew pretty well all that it would ever know if it applied the transaction test.
1 There is nothing original in these observations. They were made by Justice Schauer in his dissent in People v. McFarland, 58 Cal.2d 748 , 775 [ 26 Cal.Rptr. 473 , 376 P.2d 505 ].
2 See, however, the suggestion in the dissent in Neal v. State of California, 55 Cal.2d 11 , 22 [ 9 Cal.Rptr. 607 , 357 P.2d 839 ] that, at least on habeas corpus, additional evidence with respect to any section 654 question might be considered.
3 Applied to the case at bar the "intent and objective" test leads to the absurd result that defendant can suffer double punishment if he armed himself for self-protection, but not if he did so for the purpose of shooting the victim during the course of the evening! All of this was foreseen by Justice Schauer in his concurring opinion in Seiterle v. Superior Court, 57 Cal.2d 397 , 403 [ 20 Cal.Rptr. 1 , 369 P.2d 697 ].