HOMER NEAL, Petitioner, v. THE STATE OF CALIFORNIA et al., Respondents.
Sac. No. 7090
In Bank. Supreme Court of California
Dec. 13, 1960.
January 4, 1961
Judgment reversed.
Gibson, C. J., Traynor, J., Peters, J., and White, J., concurred.
MCCOMB, J.—I dissent. I would affirm the judgment for the reasons expressed by Mr. Justice Fourt in the opinion prepared by him for the District Court of Appeal (Cal. App.), 4 Cal.Rptr. 45.
Schauer, J., concurred.
Respondents’ petition for a rehearing was denied January 4, 1961. Schauer, J., and McComb, J., were of the opinion that the petition should be granted.
Stanley Mosk, Attorney General, Doris H. Maier and Raymond M. Momboisse, Deputy Attorneys General, for Respondents.
TRAYNOR, J.—On June 4, 1949, petitioner threw gasoline into the bedroom of Mr. and Mrs. Theodore R. Raymond and ignited it. The Raymonds were severely burned. Petitioner was tried and convicted on two counts of attempted murder and one count of arson, and the trial court ordered that the sentences for the two counts of attempted murder run consecutively. On appeal the court held that the convictions were supported by sufficient evidence and that no reversible error was committed during the trial on the issue of guilt. Owing to the admission of incompetent evidence on the question of sentencing, however, the cause was remanded for a redetermination of the question whether the sentence for the second attempted murder should run consecutively or concurrently. (People v. Neal, 97 Cal.App.2d 668 [218 P.2d 556].) On August 9, 1950, the trial court again ordered that the two attempted murder sentences run consecutively. No further appeal was taken.
Petitioner now seeks a writ of mandamus to order the Adult Authority to fix the time when he may be released from prison. He contends that subdivision 1 of
Before we reach the merits of petitioner‘s contentions we must first determine whether they can be raised, now that the judgment of conviction has become final.
Mandamus will not ordinarily lie to correct an error in a final and appealable judgment. (O‘Neill v. Reynolds, 116 Cal. 264, 266 [48 P. 57]; Andrews v. Police Court, 21 Cal.2d 479, 480 [133 P.2d 398, 145 A.L.R. 1042].) [2] Although a writ of mandamus may issue to vacate a judgment entered by a court that lacked jurisdiction, a motion to vacate such judgment must first be made in the court that entered the judgment, and a denial of such motion must be appealed in the regular manner. (Andrews v. Superior Court, 29 Cal.2d 208, 214 [174 P.2d 313]; see Phelan v. Superior Court, 35 Cal.2d 363, 372 [217 P.2d 951].)
The proper remedy, if any, is habeas corpus. If the facts justify this remedy it is immaterial that petitioner had prayed for an inappropriate one. (Owens v. Superior Court, 52 Cal.2d 822, 827 [345 P.2d 921]; see 3 Witkin, California Procedure, pp. 2568-2569.) Accordingly, we treat this petition as one for a writ of habeas corpus.
The petitioner‘s attack on the multiple sentences is a collateral attack on the judgment. Subdivision 1 of
The word jurisdiction is not limited to its conventional meaning of jurisdiction of the cause or the parties when the right to review a decision by a prerogative writ is the question for decision. (Fortenbury v. Superior Court, 16 Cal. 2d 405, 407 [106 P.2d 411]; see In re Bell, 19 Cal.2d 488, 494 [122 P.2d 22].) “A court may have jurisdiction of the cause of action and of the parties, but it may lack the authority or power to act in the case except in a particular way. Under such circumstances, it is now generally held that the court had no jurisdiction.” (Fortenbury v. Superior Court, supra, at pp. 407-408.) Thus, the writ of habeas corpus has issued when the defendant was erroneously sentenced to an indeterminate rather than a fixed term (In re Lee, 177 Cal. 690, 694 [171 P. 958]), and we have stated that the writ lies when the trial court has sentenced a defendant to a term in excess of the maximum provided by law. (See In re McInturff, 37 Cal.2d 876, 880 [236 P.2d 574]; In re Morck, 180 Cal. 384 [181 P. 657].)
Habeas corpus, however, cannot serve as a substitute for appeal to review a determination of fact made on conflicting evidence. (In re Dixon, 41 Cal.2d 756, 760 [264 P.2d 513]; In re McInturff, 37 Cal.2d 876, 880 [236 P.2d 574];
The attorney general contends, however, that the question whether a person has been made to suffer double punishment for a single act is a question of fact and therefore habeas corpus will not lie. He invokes In re Chapman, 43 Cal.2d 385, 390 [273 P.2d 817] where the court stated: “Whether the evidence accepted by the trier of fact shows petitioner guilty of one crime or of two is in part a factual question. ‘It is, of course, an established rule that habeas 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.]‘”
On the record herein we are not required to review determinations of fact made upon conflicting evidence or to correct errors or irregularities relating to ascertainment of the facts. The return to the order to show cause does not take issue with petitioner‘s statement of facts. The recital of facts by both parties, apparently taken from the statement of facts in People v. Neal, 97 Cal.App.2d 668, 669-672 [218 P.2d 556], discloses only a single course of criminal conduct involving the commission of three offenses, motivated by petitioner‘s determination to kill Mr. and Mrs. Raymond because he believed Mr. Raymond had alienated the affections of his wife. Our own examination of the trial transcript discloses nothing to the contrary. Unlike In re Chapman, supra, this is not a case, therefore, where the court in proceeding to punish for all three convictions could be said to have rested its determination upon conflicting evidence. The applicability of a statute to conceded facts is a question of law. (Nelson v. Montgomery Ward & Co., 312 U.S. 373, 376 [61 S.Ct. 593, 85 L.Ed. 897]; Estate of Madison, 26 Cal.2d 453, 456 [159 P.2d 630].)
Since the facts in the instant case are undisputed and the only question as to the issue of multiple punishment is the applicability of
We therefore reach the merits. Petitioner‘s conviction of one count of arson and two counts of attempted murder rests upon defendant‘s act of throwing gasoline into the bedroom of Mr. and Mrs. Raymond and igniting it. Punishment for two offenses arising from the same act is prohibited by the constitutional and common-law rule against multiple punishment for necessarily included offenses (People v. Kehoe, 33 Cal.2d 711, 713 [204 P.2d 321]) and by
None of Neal‘s convictions is for a necessarily included offense. “[W]here an offense cannot be committed without necessarily committing another offense, the latter is a necessarily included offense.” People v. Greer, 30 Cal.2d 589, 596 [184 P.2d 512].) Arson can be committed without attempting a murder, and the attempted murder of Mr. Raymond could have been committed without attempting to murder Mrs. Raymond.
The proscription of
Few if any crimes, however, are the result of a single physical act. “Section 654 has been applied not only where there was but one ‘act’ in the ordinary sense but also where a course of conduct violated more than one statute and the problem was whether it comprised a divisible transaction which could be punished under more than one statute within the meaning of section 654.” (People v. Brown, supra, 591.)
Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of
Thus in People v. Logan, 41 Cal.2d 279, 290 [260 P.2d 20], defendant, who chose to commit robbery by first knocking out
In the instant case the arson was the means of perpetrating the crime of attempted murder just as the malicious use of explosives was the means for perpetrating the attempted murder in People v. Kynette, and the assault with the baseball bat was the means of committing robbery in People v. Logan. The conviction for both arson and attempted murder violated
The two attempted murder convictions, however, present a different problem. The purpose of the protection against multiple punishment is to insure that the defendant‘s punishment will be commensurate with his criminal liability. A defendant who commits an act of violence with the intent to harm more than one person or by a means likely to cause harm to several persons is more culpable than a defendant who harms only one person. For example, a defendant who chooses a means of murder that places a planeload of passengers in danger, or results in injury to many persons, is properly subject to greater punishment than a defendant who chooses a means that harms only a single person. This distinction between an act of violence against the person that violates more than one statute and such an act that harms more than one person is well settled.
The two consecutive attempted murder convictions were therefore properly imposed. Since petitioner was tried for both crimes at the same time we do not decide whether
Petitioner‘s contention that subdivision 1 of
The arson conviction, being in excess of the jurisdiction of the court, is set aside, and the Adult Authority is directed to exclude from its consideration the purported sentence for arson. Petitioner, however, is not entitled to release so long as he is held under valid judgments of conviction for his other crimes. The order to show cause is, therefore, discharged and the writ of habeas corpus is denied.
Gibson, C. J., Peters, J., White, J., and Dooling, J., concurred.
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
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 case 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
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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
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
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
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 cases, 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-
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.