*1 No. Dist., 6319. Second Div. Two. Jan. [Crim. 1959.] Respondent, ALEX PEOPLE, THE LOPEZ AYALA al., Defendants; GARCIA, et RICHARD GILBERT Appellant. *2 appointment by Drake,
William A. the District Court Appellant. Appeal, for Attorney General, Edmund Miller, G. and Elizabeth Deputy Attorney Respondent. General, for
FOX, P. J. was Defendant Garcia convicted of Safety of heroin in violation of Health section appealed deny- He has Code. and order ing the motion for a new trial. evening 26, 1957, AVoodring the of November On Officer Monterey Department, the of young Park Police observed three emerge a that
men from car he had had under inter- mittent surveillance and enter restroom of service station. They 35 minutes. In meantime, remained there some joined AVoodring response Hoiten and Kraft to his Officers young men request away, for assistance. When drove clocking Woodring closely, their car followed Officer per speed hour in a 35-mile zone and ordered it to of 53 miles Appellant driving. stop. and defendant One Contreras officers Ayala front The other arrived were also seat. immediately. occupants out of the car and were ordered Woodring they as to whether had questioned Officer they replied they drinking, that had been drink- to which been would be for was informed that he cited ing Contreras beer. During Hoiten observed conversation, Officer speeding. pocket trouser and toss remove his from his appellant hand package cigarette that landed on Mall Pall backhanded pack- recovered the feet behind him. Hoiten parkway a few powder a white contained opened it that it age, and discovered Appellant and the analysis proved be heroin. hypodermic A men were arrested and searched. two Ayala. on was found needle interrogation outgrowth As an and infor- complaint subsequently obtained, a criminal mation was filed municipal charging appellant court of Alhambra in the with of: violation section 11721, misdemeanor offense Health “the (Addicted narcotics).” use Safety to unlawful Code Appellant of addiction and sentenced to was convicted county jail. days in the pled ease, appellant above In the instant unlaw- judgment in bar of this for conviction and appel- however, possession. defense, This overruled and ful guilty charged. lant was found argues (1) seeking he a reversal constituted jeopardy, (2) the sentence herein of Penal act, violation double is merit in either of these contentions. no section 654. theory Appellant's on first contention is based cannot be com violation of section 11721 addiction necessarily committing section a violation of mitted without (possession). position, however, His is not sound. necessarily offense The test in state of included simply without that where offense cannot be committed committing latter neces necessarily is a offense, another sarily Hess, (In offense. re included 5].) It is not that one must have narcotics possession, in the sense that term is used in section *3 use, in order under influence or to their to be addicted person the user since another administer the narcotics to could prior having thereof to their without his ever injection system. may given his at into Thus coursing through moment have narcotics his veins and have pocket narcotic in his or in his unconsumed hand. Such independent the fact that other have is of narcotics and have been into the stream consumed assimilated blood he is of of user and then the influence narcotics perhaps to or addicted use thereof. is clear that has not been It therefore charged herein, posses- viz., for the offense which charged of a Rather has been sion narcotic. he convicted separate consisting entirely two ele- offenses different being possession, : control; ments one dominion and the other the addiction narcotics.
Appellant’s argument
subjected
that he has been
to double
theory
is based on the
that “the evidence shows
‘possession’
committed”;
but one criminal
that “the
merely
support
incidental
to the ‘addiction’
. . .” In
position appellant
section 654,
relies on
Penal
Code,
quotes
follows from
Johnson,
page
: “That code section
[Pen.
at
rule of law somewhat broader
embodies
§ 654]
corollary
offenses.
of included
jeopardy rule and its
the double
omission
is made
provides that ‘An act or
It
provisions
ways by
of this code
different
different
can
in no case
provisions,
of such
punished under either
this
the rule of
punished
than one.’ Under
it be
under more
Supreme
interpreted by
Court, a
criminal
section, as
only
not,
or
can
gives rise to included offenses
act, whether it
indispensable
By
section,
this
it is
order
once.
separate punishments that
there be evidence of
impose
to
separate
not
each
that are
incidental to
divisible acts
’’
other.
applicability of
section 654
While it
true that
(People
necessarily included offenses
is not limited to
People Knowles,
5];
49 Cal.2d
applicable
1]),
section is not
175,187
35 Cal.2d
established, and
separate
and distinct transactions
particular
a consideration
each case is to be decided
supra,
page 591, the
People Brown,
In
facts involved.
applied
has been
rule as follows:
court states the
“Section
ordinary sense
‘act’ in the
where there was but one
more
violated
of conduct
[citation], but also where
course
comprised a
problem
was whether
'than one statute and the
more
punished under
which could be
'divisible transaction
Where
meaning
654.
within the
than one statute
indivisible,
or
is divisible
is whether
transaction
”
be resolved on its facts.
each case must
[Citations.]
supra,
ease,
In
death resulted
the Brown
commis
held that
abortion,
of an unlawful
and it was
section 654
sion
In
precluded
for both abortion' and murder.
convictions
People Knowles, supra,
case,
was but
act.
there
robbery
of both armed
and kid
defendant was convicted
robbery.
Supreme
napping
purpose of
Our
Court held
for the
inseparable part
were an
as the seizure and confinement
precluded punishment for
robbery,
both, dis
the
tinguishing
section 654
the basis of the
the acts that formed
cases where
kidnapping
from those that involved
conviction were
*4
People Dorman, Cal.
taking
property.
(See
28
of
the actual
; People v.
convicted The not here involved was incidental to his addic- the mere fact that evidence of tion, and court case received does alter this fact. possessing heroin While the instant have been incidental appellant’s habit, ato continuation of it was not incidental or (addiction) to a commission first offense point was convicted. The crucial ordinary rather than an is chronic acute offense” “addiction Cal.App.2d 555, (People Jaurequi, 896]) such, addiction, use has reached a state of complete. addicted, Once it cannot be offense addiction subsequent thereto, incidental said that *5 54 fully the crime of addiction was regard consummated without subsequent possession.
The and order are affirmed.
Herndon, J., concurred. ASHBURN, J., Dissenting. philosophy which Judicial weakens efficient enforcement laws, especially of the those suppression aimed at my sale and use of narcotics, is to deplorable development mind a years. of recent But I cannot acquiesce in punishment what I believe to be double for a single posses- indivisible transaction in wherein an addict is sion of a narcotic. Code,* 654, speaks Section Penal while singular of an act or omission, has not been construed narrowly, so applied and has been in such manner accomplish as to its benign purpose punishing wrongdoer but single once for a wrong consisting of a immediately combination of related acts. questions application involved given 654 to a ease are distinct from those of former and included (People Kehoe, offenses. v. 33 711, Cal.2d 713 P.2d [204 321].) People Clemett, v. 142, 144 208 Cal. 681], says: P. [280 early People “As Shotwell, v. 394, People 27 Cal.
Frank, 28 co-operative Cal. it was held that acts consti tuting but offense when committed the same time, charge the same when combined, but one crime and but one can be inflicted as page one offense.” At 145: “That the rule announced said earlier decisions by many the settled law of this subsequent state confirmed People Roberts, eases.” quotes 40 501], P.2d [254 approval applies foregoing with language. People Brown, says: 5], 49 Cal.2d “Sec applied tion 654 has been where there was but one ordinary ‘act’ sense . . but also where a . course of problem than conduct violated more one statute and the comprised a whether it divisible transaction which could be meaning under more one statute within the section 654. Where the is whether transaction is ” indivisible, divisible or each case must be resolved on its facts. *Pen. “An 654: § or omission which is made ways by provisions different punished punished different of this code provisions, under of such either in no case can it be one; acquittal under more than an or conviction and sentence any either one bars a for the same act or omission under other. . .”. Cal.App.2d 458, 462 People Branch, quotes (hearing denied), determining ques- 27], as follows: “In 490, 495 minutely refused to evidence courts have dissect tion the in contrary, but, on attempt offenses, to find approach should that a broad transactional have held transaction, bar indivisible That we have at made.” com- constituting when “co-operative but one offense acts or *6 clear by time” seems the at the same mitted from the record. suspicious by movements an Alerted somewhat automobile Ayala occupied and his eodefendants defendant Garcia and Woodring Contreras, “staked out” Police Officer the vehicle parked occupants in a service station. three which was they room where remained for into the rest went minutes. They together and off. The followed, came out drove officer speed stopped 53 miles in a 35-mile at zone and clocked if got they All out of the car. Asked three had been them. they drinking Woodring all had drinking, said been beer. pants article left pocket, an from his remove make saw Garcia throwing with his left arm, Sergeant motion and a backward picked up cigarette package Mall Pall which con- Hoiten eye dropper. Ayala’s an in heroin and Search revealed tained hypodermic in paper match book with a needle it. pocket a men on 1957. The three were arrested This was November day Penna, of the detail next one D. La narcotic on the and County in Angeles office, sheriff’s filed the of Los complaint charging District of Alhambra Judicial on committed November with a misdemeanor Safety Code, 11721, Health and of section 1957, violation of narcotics. the same to unlawful use On namely, addiction complaint charging in the same court day Penna filed La felony 26, 1957, a on November appellant with a committed Safety Health and violation upon 32th was tried December narcotics. On charge, guilty found and sentenced to 180 misdemeanor the At jail; commitment was issued. that trial the wit- days in Woodring, Stanley E. Officer Officer Thomas G. nesses were Avila; paraphernalia heroin and Charles and Fletcher time of men arrest on the 26th from the three taken prelimi- On December 16th a evidence. introduced in were felony charge Woodring, upon the hearing had and nary wás (a Klein chem- Sergeant Hoiten forensic Fletcher, Officer in evidence which were received ist) testified; same exhibits appellant was trial and in misdemeanor received superior When that trial was court. in the held to answer it was plea former reached he entered stipulated if he to have testified “be deemed that defendant testify that the he would and sworn was called for in that docket arose out reflected narcotic addiction as involving of heroin.” in this case arrest n contrary. The same exhibits was no evidence was submitted placed the case in evidence and were just stipulation transcript plus mentioned preliminary Municipal Alhambra transcript of the docket and a Woodring Officer testified case. in the misdemeanor Court suspected in the rest room he men were the three that while they “I feel that were felony progress: didn’t normally people in restrooms.” things do there to do preliminary hearing in the magistrate close of the The felony at the paraphernalia Ayala, he had “Well, said: case ordinarily heroin He used users. presence his presence of someone who has heroin immediate found spent He 45 minutes, has a kit. also and also minutes, for—or 35 excuse up is unaccounted to now which me, although any expert we didn’t have toilet, in a men’s subject matter, I believe that there is a testimony on the something they there inference reasonable than *7 superior conviction in the washing hands.” After application probation hearing of for upon probation but was denied. subject was discussed of addiction contempo possession the addiction were Certainly addiction conviction The rested raneous this instance. earlier or recited, above not some later upon the incidents application section episode. is not It integral part one act be an Code, that the 654, Penal ‘1co-operative constituting acts but need be other. There at the same offense . . committed one . charge . . combined, but crime. .” when time [which] People single offense is to be determined is a What by solving 577, 591, Brown, supra, 49 Cal.2d violating more than one stat “a course of conduct” whether highly I “comprised a transaction.” think it divisible ute parts form that this addiction and to hold technical nothing in the record There is a transaction. severable any pur defendant’s an inference that to raise drug. aught satisfying craving for the For pose “pusher.” narcotics, appears he is a victim society this but once on occa- reality offended a misdemeanor and punished for not be he should sion, and both convictions are felony again for a then series of events. single indivisible episode, the one based factually analogous to situation The instant supra, People Branch, 483, 491; Roberts, supra, 40 supra, People v. 496, and in which it was held Cal.App.2d 458, 463-464, purpose the sale itself transportation of sale and once. but offense and punish- only forbids double Code, not 654, Penal Section prosecution in situation precludes a second but also ment “ acquittal or conviction says: here; it as we have [A]n such prosecution for the same one bars under either and sentence Appellant con- any other. ...” or omission under charge and was upon misdemeanor and sentenced victed felony case. prosecute him in this unlawful to thereafter instructions reversed with judgment at bar should be information. to dismiss February 2, 1959. petition rehearing was denied A for a petition should be opinion that was of the
Ashburn, J., Supreme hearing Appellant’s petition granted. 1959. denied March Court was