People v. Wren

¶1I dissent. An examination of the record convinces me there was a single continuous chain of circumstances and that Wren had a single intent and objective—to get drunk and drive a car in that condition.

¶2On the afternoon of December 31, 1967, Wren was at the Auburn home of his wife’s brother. The men watched two football games on T.V. Between games they loaded the brother-in-law’s pickup with furniture which was to be taken to the home of his father-in-law near Lincoln, where Wren and his wife were staying. Wren and his brother-in-law each had one *794mixed drink during the second game. After the game Wren, accompanied by his wife, drove the pickup to the father-in-law’s home. On the way they stopped and bought a fifth of whisky. This bottle was opened when they reached that home. Wren and his brother-in-law, who had arrived in his own car, unloaded the furniture and each had one more mixed drink. They then drove into Lincoln in Wren’s car, stopping for gas and oil and then at a grocery store where defendant bought the fifth of whisky subsequently found in his vehicle. They returned to the father-in-law’s house, stopping en route at a service station where Wren, his brother-in-law, the station’s owner, and a mutual friend each had a drink from the previously unopened bottle. The bottle was placed in the glove compartment on the ride back to the house where it was used for another round of mixed drinks. Wren and the brother-in-law then left in Wren’s ear, taking the bottle with them. Before driving off Wren stood beside the vehicle drinking from the bottle. There is a conflict in Wren’s testimony as to how much was consumed. He stated and repeated that he “killed” the bottle and that he drank until the bottle was ‘ ‘ empty. ’ ’ But on the same page of the transcript he testified (by indicating with his fingers) that 3 inches of liquor remained. The bottle with its top off was then placed on the floor of the car and the two men drove off. (When the officer discovered it at the time of the arrest, it was found there with an unspecified quantity of liquor remaining.) Wren admitted he had become intoxicated. Other evidence indicates he was very intoxicated. The brother-in-law was not before the court. The accident happened shortly after leaving the house.

¶3It is not unlawful to get intoxicated. But it becomes so the instant one gets into and operates a moving motor vehicle and intoxication is the first and vitally important element of the crime of felony drunk driving.

¶4I do not think that In re Hayes (1969) 70 Cal.2d 604 [75 Cal.Rptr. 790, 451 P.2d 430], is applicable to this case. At the outset (on p. 605) the opinion states: “Section 654 provides that ‘An act or omission which is made punishable in different ways by different provisions of this code may be punished under either of such provisions, but in no case can it be punished under more than one. . . .’ The interdiction is not limited to the provisions of the Penal Code but embraces penal provisions in other codes as well, including those found in the Vehicle Code. (Neal v. State of California (1960) 55 Cal.2d 11, 18 fn. 1 [9 Cal.Rptr. 607, 357 P.2d 839]. . . .

¶5*795“The key to application of section 654 is the phrase ‘act or omission’: a defendant may be punished only once for each distinct ‘act or omission’ committed. There have been numerous attempts in the cases to define a single ‘act’ with varying degrees of clarity. Section 654 has been held to apply, for example, where the multiple violations are ‘necessarily included offenses’ [citation] and where there is a single ‘intent and objective’ underlying a course of criminal conduct (Neal v. State of California (1960) supra, 55 Cal.2d 11) but not where there are multiple victims, (id.). Most of the eases construing section 654 can be resolved by application of one or the other of these theories. [Citations.] ...”

¶6Footnote 1 (on p. 606 of 70 Cal.2d) of the Hayesdecision says: “Our analysis herein is in no way intended to preclude application of the above tests where appropriate, any more than those tests themselves are mutually exclusive. It is only because we find all of the foregoing formulae inapplicable that we resort to the present approach. If under any of the enunciated tests the proscription of section 654 applies, a contrary result under another test is irrelevant.” (Italics ours.)

¶7There is no similarity whatever between the facts here and the Hayesfacts. Here, although defendant had had three mixed drinks earlier, the fifth of whisky later found in the car and which had been bought for the purpose was the source of Wren’s intoxication. That intoxication plus the driving caused the ultimate result—a felonious accident. In Hayesthe suspended license had had nothing whatever to do with the drunken driving.

¶8I can see no reason why the “single intent and objective” test of Neal v. State of California, 55 Cal.2d 11 [9 Cal.Rptr. 607, 357 P.2d 839], cannot properly be applied here. Of course, the getting intoxicated before and during the drive and the operation of the vehicle were not a single physical act. “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[49 Cal.2d 577 (320 P.2d 5)] 591).” (Neal v. State of California, supra, 19.) Nealseems to spell out the test rather clearly. Divisibility depends upon the intent and objective of the actor. “If all of the offenses were incident to one objective, *796the defendant may be punished for any one of such offenses but not more than one.” (Id., p. 19.) Illustrative cases are cited: People v. Logan (1953) 41 Cal.2d 279, 290 [260 P.2d 20] (where defendant committed a robbery after first knocking out the victim with a baseball bat); People v. Greer (1947) 30 Cal.2d 589, 600 [184 P.2d 512] (rape and lewd and lascivious conduct arising out of one act of sexual intercourse). The Nealopinion illustrates the distinction by citing People v. Slobodion (1948) 31 Cal.2d 555, 561-563 [191 P.2d 1] (a sexual perversion accomplished as an act separate and distinct from and not incidental to lewd and lascivious conduct) . The facts of Neal, supra,are also apt. There arson by applying and lighting gasoline was the means selected to murder two occupants of a home. Cases and instances could be multiplied. In People v. Manago (1964) 230 Cal.App.2d 645 [41 Cal.Rptr. 260], defendant had possession of a razor as a weapon to use in the event of apprehension while he committed a burglary. This is to be contrasted (although I find difficulty in accepting the sufficiency of the severability) in People v. Hudgins (1965) 236 Cal.App.2d 578 [46 Cal.Rptr. 199] (hear. den.) where defendant went berserk armed with a pistol and shot a man he believed was having an affair with his wife. There the court upheld both second degree murder and violation of the dangerous weapons control law. It said on page 587 that it would have upheld a double punishment contention “if the two offenses were committed by one act or in a series of acts having but a single purpose, but such was not the case. ’ ’ It found the toting of the gun and the act of using it severable. (The facts stated in the opinion in People v. Hudgins, supra,do not make clear how long defendant had been carrying the gun or the circumstances under which it was being carried.)1

¶9Returning to our case, it is, of course, true that if Wren had been carrying an open bottle of liquor around in his car for some time, he could have been punished for the Vehicle Code section 23123 violation, and also, if he used it later as a *797means of getting drunk, for drunken driving. The two acts would have been divisible.

¶10It is, I suppose, arguable that when Wren and his brother-in-law took the already opened whisky bottle out of the car and into the father-in-law’s home where a round of drinks were served therefrom that that completed one criminal violation of Vehicle Code section 23123 and that commencement of the subsequent journey was a new adventure. To me that would be a strained interpretation. (See fn. 1.) Also, under the prosecution’s case, it was not the act for which Wren was tried.

¶11The rationalization of the “course of conduct with a single intent and objective’’ rule interpreting section 654 is obvious. It is to prevent overly zealous prosecutors from “loading’’ counts into an accusatory pleading when the common sense of a given situation shows (in capital letters) that defendant had but one criminal act in mind—an act which it is possible to pinpoint (and, of course, one where there was but one victim). I am confident the court in Hayesdid not intend to state a rule that in every case where a noncriminal act (e.g., the driving of an automobile) coincides with the simultaneous accomplishment of two separately punishable criminal acts and the commission of one such act is the means of effecting the other, and where the single intent and objective test can therefore be applied—as it has been applied since Nealin many opinions—such test must be rejected and double punishment permitted. What the court did hold was that when two simultaneous hut unrelated criminal acts have in common a noneriminal act (and purpose), they may be separately punished. If it meant any greater change of established law, then it has indeed wreaked havoc to give enthusiastic prosecutors unbridled powers to pad accusatory pleadings as constituent-conscious Legislatures continue to add new special penal statutes to describe already proscribed conduct. My confidence in the limitations of Mayes remains unshaken notwithstanding my two learned brothers disagree with me.

¶12Appellant’s petition for a hearing by the Supreme Court was denied June 11, 1969. Traynor, C. J., and Peters, J., were of the opinion that the petition should be granted.