*1 Dist., Div. Two. 1970.] No. 4004. Fourth Oct. [Crim. PEOPLE, Plaintiff and
THE Appellant, HARTFIELD, FRED
ROBERT Defendant and Respondent.
COUNSEL Sears, Hicks, and Oretta D. Michael R. Attorney, Cecil District Capizzi District for Plaintiff and Attorneys, Appellant. Deputy *3 Launer, and and J. Chaffee & Hanna Steven L. Rothrock Garald Orman for Defendant Respondent.
Opinion KAUFMAN, J. The sole this is whether problem presented by appeal the court below dismissed defendant felony charges against properly pursu 654,1 ant to Penal from which dismissal the People appeal. The arises out of the facts. following problem 1,1969, June Officer Grove Police Garden Hopper Department
was instructed radio to to site of the Festival in Strawberry proceed scene, in connection with a riot. After his arrival he Westminster with a of officers of the Police one Westminster joined group Department, of whom was Officer The officers were in uniform and were Miller. engaged their the disturbance. duties in connection with performing
At about 10:30 defendant was a automobile Volkswagen p.m. driving at as earlier been the scene of a having was identified Officer Miller and talk to the decided to the vehicle arson. The officers stop suspected at the the vehicle as it was driver. Officer in front of got stopped Hopper Officer Miller Boulevard. intersection of Bushard Street Westminster vehicle his foot on bumper at the left front of the with standing onto the vehicle defendant to move Officer told Volkswagen. Hopper the defendant and backed to Bushard Street at the side of the road up permit rather toward Officer Hopper do Defendant drove the vehicle directly so. of Officer the instruction than side of the road but toward the stopped over to “go Officer then instructed to do so. Hopper Hopper vehicle at a Instead, however, defendant started up the side of the road.” which “An act or omission pertinent portion section 654 reads: 1The of Penal may be ways by of this code punishable provisions different made in different punished under provisions, case can it be under either of such but in no punished one; one bars a under either acquittal conviction and sentence more than any the same act or omission under other.” at Officer struck him. directly rate of high moving Hopper speed, vehicle, slid the hood of the to the side landed on Officer legs. Hopper was on was not The injured. point impact off the he Happily, vehicle. feet south of its intersection with Westminster about to 40 Bushard Street Bushard high southbound Street continued Boulevard. Defendant rate speed. Miller, strike Officer Volkswagen who had Hopper,
Officer observed on it. which had no markings in a Cadillac automobile chase gave police to whom it the Cadillac nor does not disclose who de- Miller observed Miller the back seat. Officer Officer was in belonged. Street; Corvette, causing fendant over the centerline of Bushard pass cross brakes; its cut in red and activated siren to lights apply fire engine *4 brakes; of the Corvette, the center it to its straddle front of the causing apply a through from go street Cadillac passing; in order the pursuing prevent about 40 miles at 35 to Bushard Hazard at intersection of stop sign down; and slowing proceed a without and make turn righthand hour per Cadil- hour. The down Avenue at 50 to 55 miles pursuing Hazard about per vehicle, defendant moved lac ahead of then defendant’s got whereupon line, made a center double yellow side of the over roadway wrong Defend- cars. two oncoming to the and headed into illegal right right U-turn cars from the brakes, oncoming ant 3 feet slammed on his about stopping behind defendant’s Cadillac, which had backed into pulled from one-half mile than something vehicle. The vehicles were then more Street. and Bushard intersection of Boulevard Westminster scene, Miller, On the Officer itwho will be remembered of was a member the Westminster Police cited defendant for a violation of Vehicle Department, Code, on a driving, “Notice To of the form Appear” of In City a labeled Westminster. “Location of Violation” the officer space + + Bushard printed “Westminster Hazard.” In a labeled space “Approx. - the officer “20 In a Speed” 60.” labeled “Safe the officer put space Speed” “40.” put
The citation defendant to before the required Court appear date, the West Judicial District Orange County on June 1969. On counsel, defendant said court without entered of not a appeared plea guilty and trial. The trial set for date was 1969. requested jury July There is no evidence in the that the at this were represented People proceeding. meantime,
In the to a examination in another de- pursuant preliminary filed on June an information was partment court municipal defendant charging Court Orange in the County on June of a offi- peace I with assault with a deadly person in count weapon II with failure to (Pen. Code, 245, (b)>, subd. in count willful stop cer § III (Veh. 20001), battery in count assistance § render 243). defendant (Pen. On July officer a peace § on the infor- for arraignment in the Court Orange County Superior appeared Mr. Orman. at the his attorney, mation. He was arraignment represented trial and de- time for statutory waived the guilty, Defendant not pleaded Pretrial pro- trial which was set for 1969. September manded a jury, 16,1969. were set for ceedings September 15, 1969, a.m., at 8:30 set July time for trial of the reckless driv- charge, defendant in the
ing court without appeared counsel. The municipal case trailed to 1:30 on that At date. 1:30 p.m. p.m. again Orman; this time his Mr. appeared, attorney, withdrew his plea entered guilty; to reckless guilty driving; and waived the time plea statutory The pronouncement case continued judgment. for pronouncement 30,1969, to October 9 a.m. record does not satisfactorily disclose whether were court represented pro- instance, ceedings minutes, 15. In each court’s July consisting form made by from a rubber reflect impression stamp, “People represented by District Attorney-.”
On defendant and his September in the attorney appeared court where the superior pretrial in the matter proceedings felony were ordered off calendar at the of defendant’s request counsel. later, 18, 1969,
Two on days four September before the date days sched- uled for trial of the felony and six weeks before approximately the date theretofore set for pronouncement judgment of in the misdemeanor case, defendant and his attorney Mr. Orman in the court appeared municipal and, inferred, it must be had the of advanced on pronouncement judgment the calendar. Defendant was sentenced to 30 in the days county sus- jail, and he was pended, one year’s to cer- placed summary subject probation conditions including tain 15 the the serving or days county jail payment of a fine and assessment the $186. amount of Defendant penalty paid fine. That same defendant obtained a certified day, from court municipal of its minute sheets and the order to the misde- copy probation pertaining meanor is that the dis- There proceedings. nothing indicating trict was attorney of or was represented pronouncement of its notified advancement on calendar. 22,1969, the date scheduled for trial of the felony charges, September
defendant, Orman, with his Mr. attorney, moved appeared superior
1078 that their on the ground the felony charges dismiss court to and sentence in defendant’s 654 by section plea under Penal barred into defendant offered in which A was had case. hearing the misdemeanor order of of the minute sheet probation certified evidence the copy of a certified together copy obtained on September court date bears the September to which the certification To the “Notice Appear,” preliminary transcript reporter’s It 1969. was stipulated court, Officer and considered Miller by should be received hearing the district attorney testified. At the conclusion was sworn and he had ascertained that he count II inasmuch as to the dismissal of agreed when injured evidence that Officer would not be able to adduce Hopper defendant’s motion to dis- vehicle. The court struck defendant’s granted Penal III, to do so by counts itself believing miss I compelled 654.
Analysis determination into the labyrinthic to enter were we Even required “same act or omission” constituted the whether defendant’s to find it not be inclined we should as that felony charges,2 supporting series of acts consisted of a defendant’s conduct the “same.” Obviously, “divisible constituted omissions, they be whether and the would question (Neal California, v. State transaction.” 5].) Brown, P.2d 839]; People 591 [320 357 P.2d indivisible, divisible or transaction is whether a “Where question Brown, supra.) {People facts.” on its own each case must be resolved 654 is pro in section found The rule against multiple prosecution accused the government persons harassment cedural safeguard against (Kellett of crime. herein 21.) As will California, supra, at 206]; p. Neal v. State P.2d as such case except this defendant in there is no harassment after appear, *6 the and, statutory conduct, view in be said to result from his own
may for the the two to find prosecutions reluctance we should have great purpose act “same or omission.” used heretofore articulated as tools to be in the
The tests resolving prob 604, Hayes, In re Cal.2d lem are summarized in 70 605-607 Cal.Rptr. [75 (see included are: the offense” test “necessarily 451 P.2d They 430]. Greer, Knowles, 1]; People People v. 35 186 P.2d cf. v. Cal.2d [217 Morris, (see People problem years our v. 237 Cal plagued 2This has courts for Hayes, Hayes); Cal.Rptr. (disapproved In re 70 .App.2d part 773 in Cal.2d 253] [47 (original reported Cal.Rptr. 310 Cal.Rptr. opinion 604 451 P.2d 69 430] [75 366])) heretofore articulated for its resolution have been the tests [442 P.2d and, largely, conflicting, ambiguous, statutory purposes criticized as unrelated to the 357-390; 735-759.) (See useless. 58 see also L.Rev. Cal.L.Rev. Stanford 512]); 30 Cal.2d 595 et P.2d the “intent and seq. test objective” [184 California, (Neal supra, 19; v. State 55 Cal.2d Kellett v. Court, supra, 822, 824-825; People Bauer, 63 Cal.2d v. 1 Cal.3d 376 637]); 461 P.2d and the “criminal acts” test [82 enunciated Hayes (70 itself 606-610). Cal.2d at pp. For Penal the offense of reckless purposes driving would not to be offense included in the necessarily offenses of bat- appear the of a tery officer or assault with a upon person peace deadly weapon upon officer, of a inasmuch as latter peace offenses can com- mitted without (Neal former. v. State necessarily committing of Califor- nia, Greer, supra, 11, 18; People supra, 55 Cal.2d 596- 597; Herbert, Hayes, 604; In re People cf. also Breland, 909]; P.2d Cal.App.2d 696].)3 that Defendant to the in the reckless citation language points + + Hazard,” the violation occurred on Bushard and urges “Westminster that, inasmuch as his the vehicle as entire course of conduct in driving therein, observed the conduct covered Officer Miller was included the felony misdemeanor citation must have included the conduct which dismiss, are based. At the the motion the court sus- tained defendant’s to Officer Miller’s to his objections subjective testifying however, note, intent in indicated on the cita- issuing citation. that he We - tion that defendant’s 60” and that the safe was “40.” “20 speed speed From this it would have had in mind that Officer Miller could not appear because, citation, striking of Officer obviously, in issuing Hopper safe could at the at Officer time vehicle was driven speed directly Hopper not have been 40 miles hour. per
We should not find the “intent and objective” test useful in this case. There is no ofway whether knowing defendant first informed the intent to escape and struck the officer with the vehicle as a means of so he doing whether formed the intention of running officer down and afterward going kept for that offense. escape capture his innocence Assuming of any complicity incident, in the earlier arson the latter is as substantial possibility as the former. We are confident issue, that trial of the would con- tend that he had neither intent and that the of the officer acci- striking dental.
Should we utilize the Hayes, “criminal acts” test of we think it inevitable that we should find two or more criminal Defendant’s acts. argument *7 possibility that, 3The circumstances, is not driving foreclosed under some might be an offense “necessarily meaning purposes included” within the of and for section 1159 of the depending allegations Penal Code specific in the accusa tory pleadings or the developed (See People Marshall, evidence at the trial. v. 48 394, 456].) Cal.2d 402-405 P.2d [309
1080 in the reckless same acts involved his of the vehicle constituted the driving the defendant is the made argument by and in the driving felony charges very 606-609) Ob (70 2d the court. Hayes rejected by in Cal. at pp. from that is different driving the mental element involved in reckless viously, or as of a officer for the offense of battery police required Garcia, v. 250 (see People a officer deadly sault with peace weapon upon 15, 186]), commission the latter and the 20-21 Cal.App.2d [58 victim, officer in i.e., that he is peace offenses on status of depends Soto, 81, 85 (People duties 276 Cal.App.2d his v. performance [80 Whelan, J. in 627]). (See dissenting generally opinion Morris, 782, 773, et supra, 237 seq.) Cal.App.2d case, however, recog by this is The decision in governed principles of Penal to the successive prohibition nizing exception Court, supra, 63 Superior 654, in Kellett v. section which was anticipated 610-611, supra, 822, 827-828, Hayes, In re Cal.2d 70 noted in Court, Municipal Hampton v. 242 Cal.App.2d fn. in applied Court, 251 Cal.App.2d [60 and Gail v. Cal.Rptr. 760] the issue Hayes. best “[W]here is condensed exception Cal.Rptr. 91]. to 654 cannot employed is of section prosecution, multiple provisions to gain in order concealed Thus, if a violation is mislead the court. greater not crime, 654 will apply. section a lesser ‘immunity’ by prosecution (In Hayes, Kellett, Gail, re supra; Hampton, supra.]” supra; and [Citing 610-611, supra, fn. 11.) 70 Cal.2d
The situation with which we are is this. presented Defendant is claiming the benefit of a statute to designed harassment prevent government Yet, here, accused. both were to the criminally prosecutions pending prior defendant, either, trial of this known to for the fully preliminary case held in his on June three felony presence days before his first court on the misdemeanor appearance Defendant could time have avoided harassment mov- charges. any any for consolidation of the to Penal ing charges pursuant felony which of misdemeanor joinder charges superior permits (Kellett 825.) court. This he chose not do. charge after
Even he had the reckless guilty pleaded statute, for, under the July was not felony prosecution prohibited, sentence. conviction and after only successive prosecution prohibited Tideman, Code, 654, Cal. (Pen. supra; People § course, trial 1007].) felony P.2d In the normal Rptr. *8 been set and for trial had for been September would not have precluded, not been and was case had not pronounced in the misdemeanor judgment But, 18, until October 30. on September calendared for pronouncement attorney and defendant his four only days away, felony trial of the charges ad court, the of had the in pronouncement appeared de That of the judgment. and pronouncement vanced on calendar procured felony the on avoiding of did so for the purpose prosecution fendant express cer he obtained that same day the fact that on is demonstrated by for order sheets and minute probation the court’s tified of municipal copies defendant Undoubtedly, if four later. days the court superior presentation imminency the felony of the charges, the the had disclosed to court pendency of judg that the his in pronouncement their requesting of trial purpose advance denied the calendar, have the court would ment advanced on felony of the trial of judgment pending ment withheld pronouncement district that the Further, indicating the record in there charges. nothing of judgment of the advancement pronouncement was notified of the attorney at that proceeding.4 calendar or that he was on represented facts case that the at bench not fall the We within recognize may (63 822, 827-828). Kellett of language recognize We further precise that, bench, in the case at there is evidence that guilty defendant was ample Hampton driving, of reckless whereas and Gail the defendants pleaded (Gail to an offense of which knew were not v. Munici they they guilty guilty. Court, pal supra, knowledge); (presumptive Cal.App.2d Hampton supra, (actual 242 Cal.App.2d Nevertheless, the fact case bench the knowledge).) operative rise claim of harassment to defendant’s giving (pronouncement judgment) 654 was from double as Penal by pro prosecution prohibited concealment, not and he may cured defendant himself connivance and by by 610- (In Hayes, the benefit of re claim the statute. briefs, County Attorney’s Orange the asserts District office 4In the that felony charges responsible prosecution was of both the misdemeanor the proceedings at The fully that said both all times. pendency office aware only thing indicating attorney’s any way in the record was in that the district office minutes, prosecution connected with consisting misdemeanor are entries in the court’s by impression stamp, form made from a rubber in connection with appearances “People July represented defendant’s two 15 which read District Attorney-.” attorney’s repre- If the district office was in fact printed July expect sented on one deputy would to find the name of the written or hand, space. attorney in the blank other that different the district asserts two governmental charges. only entities filed the This is out record borne City limited extent minster. on a West- citation is form of giving agency complaint does not what disclose filed event, statute, any judg- rise to the pronouncement information. In under the Tideman, operative subsequent (People ment is the supra, fact which bars 587), and there is no indication in the court’s minutes or else- attorney where in the record represented proceeding. that the at that district *9 11; 822, 827-828;
611, Kellett fn. v. Cal.2d Court, supra, 1005, 1008; Municipal Hampton Gail v. 251 Cal.App.2d Court, supra, 693-695.) 242 Cal.App.2d I and III of the as it is reversed insofar relates to counts information.
Tamura, J., J., P. concurred. Acting Kerrigan, A for a and the follow- denied October petition rehearing then rendered: ing opinion
THE Defendant has filed a for in which he COURT. petition rehearing asserts, other in the case and our disposition implicit among things, of the case is punishment of double Penal Code problem prohibited 654, which, he we failed consider and failed to deal with urges, in the opinion.
This contention is not meritorious. We did consider but the problem did not deal with it in the opinion, because the issue is entirely primarily Unless and until defendant is convicted of speculative premature. one or more of the charges now therefor, sentenced pending there is no Ward, double (In re punishment problem. 676-678 [51 400]; 414 P.2d In Wright, re Cal.Rptr. 653-656 Niles, 998]; 422 P.2d People 227 Cal.App.2d 11].) [39 Cal.Rptr. Should convicted of one or more the charges now pend- and should ing, the trial court determine that the act for which he is con- victed was the same act or omission as that for which he was previously punished within the double punishment prohibition Penal Code section 654, the trial court may satisfy the requirements section 654 follow- ing Breland, such procedure as that employed 243 Cal.App.2d 644, 652 cited in the opinion. 696] Respondent’s petition by the Court was denied Supreme Peters, J., December 1970. that the should opinion petition be granted.