People v. Surdi

¶1I concur with the result and with the reasoning of the majority in parts I through III, but I am compelled to write separately concerning the Penal Code section 6541 issue discussed in part IV. The majority relies on People v. Trotter (1992) 7 Cal.App.4th 363 [8 Cal.Rptr.2d 648], our court’s decision in a multiple shooting case, for the proposition separate punishment was justified for the multiple stabbings here. (Maj. opn., ante, at pp. 688-689.) The trouble is that the issue presented is whether the trial court could sentence separately for the stabbings and the kidnapping.

¶2And the trouble does not stop there. People v. Latimer (1993) 5 Cal.4th 1203 [23 Cal.Rptr.2d 144, 858 P.2d 611], in which the Supreme Court reaffirmed the vitality of the intent and objective test used to determine whether the section applies,2 has created a conundrum in determining proper application of the section.

¶3Latimerexpressly approved People v. Trotter, supra,7 Cal.App.4th 363(People v. Latimer, supra,5 Cal.4th at p. 1216). Trotter's analysis provides the basis for my colleagues’ conclusion section 654 does not apply here because the acts “were separated by considerable periods of time during which reflection was possible.” (Maj. opn., ante, at p. 689.) And, under Trotter's reasoning they conclude each stabbing episode “evinced a separate intent to do violence.” (Maj. opn., ante, at p. 689, italics omitted.) If one focuses on the stabbings and ignores the kidnapping, the result has some facial appeal. But the conundrum still exists.

¶4In Latimer, the Supreme Court found section 654 applied to a kidnapping and a rape where the defendant drove the victim into the desert and raped her *691and there was no evidence of any purpose or objective for the kidnapping other than the rape. (People v. Latimer, supra,5 Cal.4th at pp. 1216-1217.) Applying that reasoning here, what was the purpose of kidnapping Sanchez if not to stab him? A direct application of Latimersuggests section 654 applies, but according to my colleagues Trotter, expressly approved in Latimer, suggests it does not.

¶5Which is “wrong”?3Latimerinvolved a traditional application of the intent and objective test; both crimes were committed pursuant to the same objective. (People v. Latimer, supra,5 Cal.4th at pp. 1216-1217.) Trotteradopted an approach used previously only in cases involving multiple sex acts.

¶6As the majority notes, our court in Trotterheld the defendant could be punished separately for multiple shots fired at a pursuing police officer which occurred in less than a minute. (People v. Trotter, supra,7 Cal.App.4th at pp. 366-368.) To do so, the court relied heavily on People v. Harrison (1989) 48 Cal.3d 321 [256 Cal.Rptr. 401, 768 P.2d 1078]. Examination of Harrison and its progenitor, People v. Perez (1979) 23 Cal.3d 545 [153 Cal.Rptr. 40, 591 P.2d 63], is necessary to expose the flaw in Trotter’s reasoning.

¶7In Perezthe Supreme Court determined section 654 does not prohibit separate punishment for rape, sodomy and two counts of oral copulation which occurred during the same encounter. (People v. Perez, supra,23 Cal.3d at pp. 549, 553.) The court expressly limited its analysis to sex offenses.4(Ibid.) The defendant asserted the trial court properly found his sole intent and objective was to obtain sexual gratification. (Id. at p. 552.) The Supreme Court did not disturb this finding5 but instead declined, as a matter of law, to apply the intent and objective test: “Such an intent and objective is much too broad and amorphous to determine the applicability of section 654. Assertion of a sole intent and objective to achieve sexual *692gratification is akin to an assertion of a desire for wealth as the sole intent and objective in committing a series of separate thefts. To accept such a broad, overriding intent and objective to preclude punishment for otherwise clearly separate offenses would violate the statute’s purpose to insure that a defendant’s punishment will be commensurate with his culpability. [Citation.] It would reward the defendant who has the greater criminal ambition with a lesser punishment. [Citation.] [1 A defendant who attempts to achieve sexual gratification by committing a number of base criminal acts on his victim is substantially more culpable than a defendant who commits only one such act. We therefore decline to extend the single intent and objective test of section 654 beyond its purpose to preclude punishment for each such act. [Citations.]” (Id. at pp. 552-553.)

¶8Two important conclusions must be noted: (1) Perez, by its express terms was intended to apply only to sex cases; and (2) it was decided not by using the intent and objective test, but by creating an exception to it. In this context the Supreme Court concluded section 654 did not apply to multiple sex offenses. In doing so it considered People v. Greer (1947) 30 Cal.2d 589 [184 P.2d 512], where the court had found section 654 applied to a lewd conduct charge consisting of removing the victim’s underwear as a prelude to rape. (People v. Perez, supra,23 Cal.3d at p. 553.) To distinguish Greer, the Perezcourt noted, “None of the sex offenses [in Perez] was committed as a means of committing any other, none facilitated commission of any other, and none was incidental to the commission of any other.” (Id. at pp. 553-554.)

¶9People v. Harrison, supra,48 Cal.3d 321 was merely a corollary of Perez. The defendant argued the Perezexception did not apply when the multiple offenses committed in sequence violated the same statute. (Id. at p. 336.) In rejecting that contention, the Supreme Court made a number of comments that our court reiterated in People v. Trotter, supra,7 Cal.App.4th 363: “ ‘No purpose is to be served under section 654 by distinguishing between defendants based solely upon the type or sequence of their offenses. ... [I]t is defendant’s intent to commit a number of separate base criminal acts upon his victim, and not the precise code section under which he is thereafter convicted, which renders section 654 inapplicable.’ [Citation.] . . . [U ‘[Defendant should . . . not be rewarded where, instead of taking advantage of an opportunity to walk away from the victim, he voluntarily resumed his . . . assaultive behavior.’ ” (Id. at pp. 367-368, quoting People v. Harrison, supra,48 Cal.3d at pp. 337-33S.)6

¶10In relying on these quotations, our court failed to acknowledge that Harrisongleaned these principles from Perez, which is “the touchstone in *693determining how these general principles are to be applied to sex offenses” (People v. Harrison, supra,48 Cal.3d at p. 336, italics added), and that Perezitself expressly limited its principles to sex offenses. Thus, our court was somewhat myopic when stating in Trotter, “[W]e see no reason to limit Harrison's reasoning to sex crimes.” (People v. Trotter, supra, 1 Cal.App.4th at p. 367.)

¶11Indeed, another reason to limit Harrisonis apparent: unless the assaults in Trotterare analytically identical to those in Perezand Harrisonand distinct from other crimes, extending the Perezexception to Trotterleads to the exception swallowing the rule. Defendants who do multiple acts giving rise to multiple penal violations are almost always more culpable than those who do only a single act.7

¶12Our court made another error in Trotter. We found that “. . . under the long recognized ‘intent and objective’ test, each shot evinced a separate intent to do violence just as each new and separate penetration in Harrisonevinced a new and separate intent and objective.” (People v. Trotter, supra, 1 Cal.App.4th at p. 368.) We erred by construing Harrisonas a case “where the court allowed separate and consecutive punishment on the basis of defendant’s intent.”8(7 Cal.App.4th at p. 367.) Harrison, like Perez, eschewed the intent and objective test and applied the sex offense exception.9

¶13And, our court erred as a matter of logic and common sense. As Trotter contended, his apparent intent was to dissuade a pursuing police officer from giving chase. The only things analytically distinct about each shot are the locations where the shots were fired and the number of misses which preceded them. To jury-rig separate intents or objectives, one would be *694required to surmise Trotter first had an intent to shoot the officer at point A and then had a new intent to shoot him'at point B, etc.10 Alternatively, one could offer that after missing, Trotter’s intent was a really, really, strong intent to shoot the officer, much stronger than the intents that preceded it. Nonsense.11

¶14By expressly approving Trotter, at least on the multiple intent theory, the Latimercourt not only created the conundrum I have discussed, but spawned mutant tests such as the one created in Trotterand applied here: the time for reflection test. (People v. Trotter, supra,7 Cal.App.4th at p. 368; maj. opn., ante, at p. 689.) Although the test has some attractiveness as a circumstantial evidence tool for determining whether the defendant did entertain multiple objectives or intents, it should not be used as a benchmark. Not all defendants reflect even if they have the time.12 And of those who do, not all will propagate a new objective.13

¶15But worse than the analytical flaws in such a test is its potential to swallow up the intent and objective test. Nearly all criminals have time to reflect on their actions between crimes. Latimer certainly did during the drive out to the desert with his victim.

¶16So why do I concur? Because it is time to do away with the intent and objective test and substitute one that adequately reflects the plain language of section 654 and its purpose:14 a single act punishable under multiple criminal statutes may be punished only once. Multiple acts may be punished *695separately unless to do so would render the punishment not commensurate with the defendant’s culpability.

¶17The test has advantages over the intent and objective test. It is true to the plain language of the statute, which refers to “an act.” It is in accord with the section’s purpose, but presumes that multiple punishment for multiple acts will be commensurate with culpability. It obviates the need for exceptions to15 and artificial glosses on the intent and objective test. And, unlike the intent and objective test, it makes judicial determinations turn on matters of law, not matters of fact.16

¶18The Supreme Court declined to abandon the intent and objective test in Latimer, reasoning the Legislature may have relied on the test when enacting penal sentencing laws. I see no danger in that regard. The one example the Supreme Court gave did not prove its point,17 and I am unable to think of any others. And, abandoning a substantially unworkable court-created rule would certainly not constitute any slight on the Legislature.18

¶19Applying the proposed new rule here yields the same result my colleagues reach, but uses a much simpler and analytically pure approach. The kidnapping was a separate act from the stabbings, and each stabbing was separate *696from the others. The kidnapping undoubtedly increased the victim’s terror and facilitated privacy for more stabbing. The stabbings, punctuated by breaks, increased the victim’s injuries and suffering. Punishing for multiple acts under these circumstances was commensurate with culpability.

¶20Nearly two years has passed since the Supreme Court decided Latimer. The Legislature has not acted, and I am not aware of pending legislation. Section 654 case law remains a morass of inconsistency and confusion. I most respectfully invite the Supreme Court to revisit the problem.