In Re Adams
RICHARDSON, J.
In this case, we consider whether the statutory proscription against multiple punishment (
On February 17, 1970, Smith, a state narcotics agent, had under surveillance the Redondo Sea Inn, the temporary residence of petitioner‘s codefendant, Gregory. About 7 p.m. Smith observed petitioner drive into the inn‘s parking lot, park his car next to Gregory‘s car, and enter the inn. Twenty minutes later, petitioner and Gregory left the inn, opened the trunks of their cars and transferred an attache case and numerous plastic bags from petitioner‘s car to Gregory‘s car. Later that same evening Gregory met with Miller, an undercover narcotics agent, to cоmplete a previously arranged sale of 30,000 amphetamine (benzedrine) pills to Miller. Once the sale was consummated, Miller arrested Gregory and searched his car, discovering additional quantities of benzedrine, seconal, marijuana, heroin and pantopоn (a form of opium). All of these drugs had been delivered by petitioner to Gregory under the observation of Smith.
Petitioner was convicted, following a nonjury trial, of one count of selling benzedrine (former
Notwithstanding the apparent simplicity of its language, the applicability of
(2) If one offense is necessarily included within another offense,
On the other hand, if the evidence discloses that a defendant entertained “multiple criminal objectives which were independent of and not merely incidental to each other, he may be punished for independent violations committed in pursuit of each objective even though the violations shared common acts or were parts of an otherwise indivisible course of conduct.” (People v. Beamon, 8 Cal.3d 625, 639 [105 Cal. Rptr. 681, 504 P.2d 905]; In re Hayes, 70 Cal.2d 604 [75 Cal. Rptr. 790, 451 P.2d 430].) For example, in Hayes, we held that
The People rely upon a line of cases which have held that the simultaneous possession of different types of drugs properly may be multiply рunished. (People v. Fusaro, supra, 18 Cal. App.3d 877, 893; People v. Aguirre, 10 Cal. App.3d 884, 893 [89 Cal. Rptr. 384]; People v. Schroeder, 264 Cal. App.2d 217, 228 [70 Cal. Rptr. 491]; People v. Seaberry, 260 Cal. App.2d 507, 510 [67 Cal. Rptr. 182]; People v. Bell, 258 Cal. App.2d 450 [65 Cal. Rptr. 730]; People v. Lockwood, 253 Cal. App.2d 75 [61 Cal. Rptr. 131]; People v. Lopez, 169 Cal. App.2d 344, 351 [337 P.2d 570]; People v. Mandell, 90 Cal. App.2d 93, 98-99 [202 P.2d 348]; see In re Hayes, supra, 70 Cal.2d 604, 606-607 [citing rule with apparent approval].) The foregoing rule appears to be based upon the rationale that “[t]he act of possession cannot be conceptualized as a single `act’ covering possession of two kinds of illicit drugs.” (Fusaro, at p. 893.) This rule dоes not apply if the drugs possessed are “all of one kind,” such as various derivatives of the drug opium. (Schroeder, at p. 228.)
By analogy to the foregoing cases, the People suggest that the “act” of transportation of multiple types of drugs should not be deemed a single act. Yet, as explained in Bauer and Beamon, if the defendant‘s course of conduct is motivated by a single intent and objective, the proscription against multiple punishment applies. In each of the drug possession cases, the defendant‘s possession may or may not have been motivated by a single intent and objective, for one may possess drugs for a variety of reasons. In the instant case, however, petitioner‘s simultaneous transportation of the various drugs in his possession was clearly motivated by the single objective of delivering them to Gregory. Thus, although we do not disаpprove the multiple punishment rule invoked in the drug possession cases relied upon by the People, the rule has no application to situations in which the defendant possesses the drugs for the purpose of accomplishing only a single criminal objective.
(5)
The trial court imposed both consecutive аnd concurrent sentences in this case: two groups of concurrent sentences were made to run consecutively. Although each conviction may be allowed to stand, for
In the case before us, each of the transportation counts, as well as the sale count, carries a term of five years to life imprisonment, with a minimum of three years to be served in prison without parole. Accordingly, in view of the trial court‘s intent to impose consecutive sentences, we conсlude that the sentences imposed under counts two (sale of benzedrine) and six (transportation of heroin) should remain consecutive, and that execution of the sentences imposed under the remaining transportation counts should be stayed. (See People v. Beamon, supra, 8 Cal.3d 625, 639-640; People v. Milan, 9 Cal.3d 185, 197 [107 Cal. Rptr. 68, 507 P.2d 956].)
Petitioner suggests that preclusion from parole for a minimum of six years (by reason of the consecutive sentences) constitutes cruel and unusual punishment and a denial of equal protection. In support of his contentions, petitioner relies upon our decision in In re Foss, 10 Cal.3d 910 [112 Cal. Rptr. 649, 519 P.2d 1073], which invalidated а 10-year mandatory minimum sentence for repeated drug offenders. Our decision in Foss rested in part upon our determination that it was improper to punish severely the repetition of a drug offense by persons who might be addicts acting to support their habits. In the instant case, thе six-year mandatory minimum term arises by reason of the trial court‘s discretionary judgment to impose consecutive sentences for separate criminal offenses. The record fails to disclose any abuse of discretion in this regard. (See People v. Giminez, 14 Cal.3d 68, 71-72 [120 Cal. Rptr. 577, 534 P.2d 65].) Unlike the situation in Foss, there is no indication in the prеsent record that petitioner was an addict selling drugs to support his habit. Indeed, the large quantities of drugs transported in the single transaction before us suggest that petitioner may have been a major drug supplier. We decline petitioner‘s invitation to extend our Foss ruling to invalidаte consecutive mandatory minimum sentences prescribed for initial drug offenders.
The judgment is modified to stay execution of the sentences under counts three, four, five and seven pending service of consecutive sentences under counts two and six, such stay to become permanent when service of sentence under counts two and six is completed. Petitioner is not entitled to release since he is held under a valid
Wright, C.J., McComb, J., Tobriner, J., Mosk, J., Sullivan, J., and Clark, J., concurred