People v. Norrell , 13 Cal. 4th 1 ( 1996 )

Opinion

MOSK, J.

Penal Code section 654 requires that “[a]n 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 . . . We have long held that this provision bars multiple punishment when a defendant is convicted of two or more offenses that are incident to one objective. (Neal v. State of California (1960) 55 Cal.2d 11 [9 Cal.Rptr. 607, 357 P.2d 839]; People v. Latimer (1993) 5 Cal.4th 1203 [23 Cal.Rptr.2d 144, 858 P.2d 611] [reaffirming Neal].) In this case we address the question whether, in imposing punishment for multiple offenses, a trial court is required to sentence a defendant only for the offense with the greatest potential term of imprisonment. We conclude that it is not.

I.

Defendants Franklin Edward Norrell and Kenneth Kiakin Lau were charged with kidnapping for robbery (Pen. Code, § 209, subd. (b)), robbery (Pen. Code, §§211, 212.5, former subd. (b) (Stats. 1989, ch. 361, § 1, p. 1486), present subd. (c)), and reckless driving while attempting to elude a peace officer (Veh. Code, § 2800.2). Lau was alleged to have personally used a firearm (Pen. Code, § 12022.5, subd. (a)); Norrell was alleged to have been armed with a firearm. (Pen. Code, § 12022, subd. (a)(1).)

At trial, the evidence concerning the charges was to the following effect.¹ On November 20, 1992, around midnight, Lau and Norrell, then aged 16 and 19, respectively, approached Terry Jeong in the parking lot of his restaurant in Milpitas, as he was leaving his car, a Mercedes Benz valued at $81,000. They pushed him into the backseat of the car, and, after he dropped his keys, Lau picked them up and handed them to Norrell, who drove off with Jeong and Lau. As they headed off on interstate 880, Lau placed a nine-mm. pistol to Jeong’s head and demanded money. Lau removed a ring from Jeong’s finger and checked his wallet for money, but found none. He then found a bundle of money on the floor containing $9,300 in cash. About one and three-tenths miles from the parking lot, Norrell stopped the car on the shoulder of the highway near an exit. Jeong was ordered to leave the car. He was not physically harmed. Lau and Norrell continued northbound on the highway.

Jeong went to a convenience store near the highway exit and telephoned the police. Based on his description, the police spotted and pursued the car. After it collided with two other vehicles, Lau and Norrell fled on foot. They were apprehended nearby and identified by Jeong. He recovered his ring and his car. A 9-mm. pistol and $9,300 in cash were found in a dumpster near the scene of the arrest.

When questioned by police, both Norrell and Lau admitted that they were guilty and that they had planned the offense. They denied being armed when they first encountered Jeong, indicating that they had found the gun inside the car. Norrell stated that his interest in coming to Milpitas was to steal a car and sell it for $8,000 to $10,000, so that he could pay off an extortion threat against his family made by members of the Sui Sing gang, a criminal street gang in San Francisco. Norrell stated that he was surprised that Lau pushed Jeong into the backseat, and that he told Lau, as they fled the parking lot, that he wanted to release the victim. Lau stated that he had planned to steal a car in order to help Norrell avert a threat to his family from the Sui Sing gang.

A jury found Lau and Norrell guilty of kidnapping for robbery, robbery, and reckless driving while attempting to elude a police officer. It also found true the firearm allegations.

Pursuant to Penal Code section 654, the trial court determined, and the People apparently conceded, that the offenses of kidnapping for robbery and robbery were incident to one objective. It stayed the sentence for kidnapping for robbery and imposed the sentence for robbery for each defendant. In total, it sentenced Norrell to state prison for six years, eight months, consisting of the upper term of five years for the robbery, one year for the firearm enhancement, and eight months for the Vehicle Code violation. It sentenced Lau to state prison for ten years, eight months, consisting of the upper term of five years for the robbery, five years for the firearm use enhancement, and eight months for the Vehicle Code violation. It required each to pay restitution. Each waived all credits for time served and waived his right to appeal the sentence.

In imposing sentence, the trial court explained: “I have considered long and hard the issues before me in this matter. The gravity of these offenses is indeed, as the District Attorney characterizes, very, very severe. The conduct of the defendants is inexcusable and each of their records reflects] prior problems of understanding their obligations as an individual in this society. However, due to the age of the defendants, the totality of the circumstances surrounding this offense, fortunately the Court heard the trial and is in a position to judge the severity of this offense, the nature of seriousness and circumstances compared to other instances of the same crime, the Court is exercising its discretion in this matter. . . . This is a very difficult decision I have to make. On [the] one hand the current climate of people is to sentence individuals to prison for life for violent crimes, and [Mr. Lau] and Mr. Norrell have committed a very serious, violent crime, but I’m struck with two factors, one, the circumstances of the crime and both of you are youths. You have the opportunity now hopefully to rehabilitate yourself, be a[n asset] to your family and that’s my wish.”

The People appealed, contending that the trial court imposed an unauthorized sentence by staying the sentence on the “greater offense” of kidnapping for robbery, and imposing the sentence on the “lesser offense” of robbery. They argued that the “greater offense” is that offense which carries the longest potential term of imprisonment, and that, in this case, the kidnapping for robbery, punishable by life imprisonment with the possibility of parole (Pen. Code, § 209, subd. (b)) was the “greater offense” and the robbery, punishable by a term of two, three, or five years {id.., § 213, subd. (a)(2)) was the “lesser offense.” The Court of Appeal dismissed the appeal, concluding that the trial court acted within its authority under Penal Code section 654 in staying the punishment for kidnapping for robbery, even though it is punishable by a longer potential term of imprisonment than robbery. We granted review.

II.

The People, as before, contend that the trial court imposed an unauthorized sentence by staying the sentence for the “greater offense” of kidnapping for robbery and imposing a “lesser” sentence for the offense of robbery. They do not maintain that Penal Code section 654 is inapplicable to this case, but argue that the trial court has authority under the provision only to impose the punishment for the offense that carries the longest potential sentence. Otherwise, they argue, the trial court would effectively “reward” a defendant who is convicted of multiple offenses incident to one objective, and thereby frustrate legislative intent.

They are unpersuasive. Penal Code section 654 expressly provides that a defendant may be punished for either offense: “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 . . . .” (Italics added.) Although it was free to do so at any time since Penal Code section 654 was enacted in 1872, the Legislature has not limited the trial court’s discretion by a requirement that it impose punishment for the offense with the greatest potential term of imprisonment.²

We have previously so stated: if multiple offenses committed by a defendant were “incident to one objective,” the defendant “may be punished for any one of such offenses but not for more than one.” (Neal v. State of California, supra, 55 Cal.2d 11, 19, italics added.) We reaffirm that conclusion here, based on the express language of Penal Code section 654.

In Neal, the defendant threw gasoline into the bedroom of his victims and ignited it; they were severely burned. He was convicted of arson and attempted murder and sentenced for both offenses. Writing for the majority, Justice Traynor concluded that punishing the defendant for both crimes violated Penal Code section 654 because they were incident to one objective, i.e., the arson was “merely incidental to the primary objective” of killing the victims. (55 Cal.2d at p. 20.) “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.” (Id. at p. 19.) In sentencing pursuant to Penal Code section 654, the trial court retains discretion to impose punishment for the offense that it determines, under the facts of the case, constituted the defendant’s “primary objective”: “The purpose of the protection against multiple punishment is to insure that the defendant’s punishment will be commensurate with his criminal liability.” (55 Cal.2d at p. 20.) Recently, in People v. Latimer, we reexamined the “intent or objective” test that we announced in Neal. We declined to overrule our holding in Neal, emphasizing that “at this late date, any changes must be made by the Legislature . . . .” (People v. Latimer, supra, 5 Cal.4th at p. 1216.) As we observed in Latimer, the Legislature has not amended Penal Code section 654 in order to supersede Neal, although it could have done so. On the contrary, it has drafted subsequent Penal Code provisions in light thereof. (5 Cal.4th at p. 1214 [referring, inter alia, to Penal Code section 667.8].)

Although we have not previously expressly held that the trial court has discretion under Penal Code section 654 to impose a sentence for the “greater” or “lesser” offense as it deems appropriate, we implicitly sanctioned such exercise of discretion in People v. Hood (1969) 1 Cal.3d 444 [82 Cal.Rptr. 618, 462 P.2d 370]. In that case, the defendant was convicted both of assault with a deadly weapon and assault with intent to murder. As we recited: “To preclude double punishment for a single assault (Pen. Code, § 654) the trial court stayed execution of the sentence on count I [assault with a deadly weapon], which carries a maximum penalty of 15 years . . . and ordered that defendant serve the sentence on count III [assault with intent to murder], which carries a maximum penalty of 14 years.” (1 Cal.3d at p. 459.) We did not disapprove the trial court’s imposition of punishment for what the People would deem the “lesser offense”; rather, in reversing on other grounds, we remanded with instructions that if the defendant were again convicted of both assault offenses, the trial court could impose a sentence no greater than the original sentence. {Ibid.) As Justice Baxter concluded in People v. Thompson (1989) 209 Cal.App.3d 1075, 1085 [257 Cal.Rptr. 658]: “If the trial court had abused its discretion in Hood, the Supreme Court would not have placed such a limitation on the maximum sentence on retrial.”

Since Hood, our Courts of Appeal have been virtually unanimous in affirming that when a defendant is convicted of multiple offenses incident to one objective, Penal Code section 654 means what it says: the “act or omission” may be punished under “either” of the Penal Code provisions for such offenses. (Pen. Code, § 654; see People v. Wesley (1970) 10 Cal.App.3d 902, 911-912 [89 Cal.Rptr. 377]; People v. DeVaney (1973) 33 Cal.App.3d 630, 639 [109 Cal.Rptr. 276]; People v. Mendevil (1978) 81 Cal.App.3d 84, 89 [146 Cal.Rptr. 65]; People v. Bradley (1981) 115 Cal.App.3d 744, 753 [171 Cal.Rptr. 487]; People v. Avila (1982) 138 Cal.App.3d 873, 879 [188 Cal.Rptr. 754]; People v. Barela (1983) 145 Cal.App.3d 152, 156-161 [193 Cal.Rptr. 257]; People v. Smith (1985) 163 Cal.App.3d 908, 914, fn. 10 [210 Cal.Rptr. 43]; People v. Cole (1985) 165 Cal.App.3d 41, 53 [211 Cal.Rptr. 242]; People v. Salazar (1987) 194 Cal.App.3d 634, 637-639 [239 Cal.Rptr. 746]; People v. Thompson, supra, 209 Cal.App.3d 1075, 1078-1086; People v. Thompson (1992) 7 Cal.App.4th 1966, 1975 [10 Cal.Rptr.2d 15].)³ The Legislature, although clearly empowered to do so, has not amended Penal Code section 654 to limit the trial court’s discretion to impose a sentence commensurate with culpability under the facts of the particular case.

As Salazar explains: “[Discretion to sentence, on the greater or lesser crime is vital to a trial court’s proper exercise of its sentencing mandates:

‘[A] sentencing judge is required to base his decision on the statutory and rule criteria . . . and not his subjective feeling about whether the sentence thus arrived at seems too long, too short, or just right.’ [Citation.] The analysis should be the same when the court is faced with a sentencing choice under Penal Code section 654. The court should impose sentence on the offense which is most appropriate for the defendant’s conduct and not simply the one carrying the greatest penalty. Only in this way will a defendant’s punishment ‘be commensurate with his culpability’ and the purpose of Penal Code section 654 fulfilled.” (People v. Salazar, supra, 194 Cal.App.3d at p. 639.) Salazar involved an attempted purse snatching in which the defendant repeatedly struck the victim and pushed her to the ground. After the defendant pleaded guilty to both felony assault and robbery, the trial court imposed the punishment for assault and stayed the greater sentence for robbery. The Court of Appeal determined that the trial court acted within its discretion in doing so, because the punishment was “‘appropriate and consistent with the factual situation.’ ” (Ibid.)

Thus, as Salazar and other Court of Appeal cases have recognized, in any given case, although a defendant may be convicted of multiple crimes, the most appropriate punishment under the specific circumstances of the case may not be for the offense that yields the greatest potential term of punishment. Under Penal Code section 654, a trial court has discretion to impose a sentence that is commensurate with what it determines on the facts to be a defendant’s culpability, as opposed to “culpability” established mechanically by adding together penalties and enhancements to arrive at the greatest overall potential prison sentence.

This case is illustrative of a not unreasonable exercise of discretion. The trial court imposed the maximum punishment for robbery, and stayed the punishment for kidnapping for robbery, in what was, by all accounts, essentially a robbery by youthful defendants. The trial court did not “reward” them for committing multiple offenses incident to that single objective. It exercised discretion, as Penal Code section 654 permits, in light of the actual circumstances of the crime and the age and juvenile records of defendants; it was not unreasonable in so doing. We reject the People’s argument, based on purported legislative “intent” as opposed to specific legislative enactments, that the trial court lacked authority to do so.⁴

The People point out that in Neal, after concluding that the trial court improperly imposed sentences for two crimes incident to one objective, we ruled that the defendant could “only be punished for the more serious offense.” (Neal v. State of California, supra, 55 Cal.2d at p. 20.) Similarly, in People v. Knowles (1950) 35 Cal.2d 175 [217 P.2d 1], in which the defendant was improperly sentenced for both a kidnapping and a robbery that were incident to one objective, we held that the appellate court was required to stay the imposition of sentence on the less serious offense. (See also People v. McFarland (1962) 58 Cal.2d 748, 762-763 [26 Cal.Rptr. 473, 376 P.2d 449].) As Justice Baxter observed in Thompson, however, those cases are distinguishable; “Knowles, Neal and McFarland merely recited the requisite procedure on appeal when Penal Code section 654 is violated by the sentencing court.” (People v. Thompson, supra, 209 Cal.App.3d at p. 1085, italics added.) “ ‘Under such circumstances, the appellate court can logically presume that where the trial court sentences on all counts, the court meant to impose sentence at least on the most serious.’ ” {Id. at p. 1080.) That presumption is inapplicable to the issue presented in this case, concerning the scope of the trial court’s sentencing discretion in the first instance, when a defendant is convicted of multiple offenses incident to one objective.

We are also unpersuaded by the People’s contention that permitting trial court discretion in sentencing under Penal Code section 654 will result in decisions to charge and prosecute defendants who committed multiple offenses incident to one objective only for the “greater offense,” so as to preclude the exercise of discretion by the trial court. They merely speculate that such “brinkmanship” has occurred under what has been the prevailing interpretation of Penal Code section 654 in our Courts of Appeal for over two decades, or is likely to occur in the future. Nor is there any support for their suggestion that trial courts have in the past, or are likely in the future, to abuse their discretion under Penal Code section 654, and impose inappropriately lenient sentences. Should such problems emerge, “the Legislature . . . obviously has the authority to modify the rule any time it chooses.” (People v. Latimer, supra, 5 Cal.4th at p. 1216.)

III.

The concurring and dissenting opinion agrees with our conclusion that the trial court acted within its discretion in this case in staying the punishment for kidnapping for robbery. It does so, however, only because the trial court imposed a greater overall sentence than that which might have been imposed for the latter crime—punishable by life imprisonment with the possibility of parole—which in Norrell’s case might have resulted in probation, i.e., no prison term at all, and in Lau’s case, because he was ineligible for parole, could have resulted in a prison sentence shorter than ten years, eight months, if he were paroled after the minimum period of confinement of seven years (see Pen. Code, § 3046). The approach is unduly formalistic: as the People pointed out at oral argument, the mere fact that defendants requested, and the People opposed, a stay of the sentence for kidnapping for robbery—and that defendants waived their right to appeal imposition of the sentence for robbery—demonstrates that life imprisonment with possibility of parole was, in any real sense, the greater, not the lesser, punishment.

The approach is also incorrect. The rule proposed in the concurring and dissenting opinion, like the one proposed by the People, finds no support in any specific statutory provision, and is based on mere inferences concerning the overall “intent” of the Penal Code. It is also directly inconsistent with the language of Penal Code section 654, our previous decisions, and the numerous Court of Appeal cases in point. We conclude that discretion to impose punishment under Penal Code section 654 is not so constrained; the trial court is not required to base its sentencing decisions on mechanical calculations about eligibility for parole or earliest possible release dates considered in the abstract.

In effect, the concurring and dissenting opinion would judicially amend Penal Code section 654 to provide as follows: “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, except that a defendant may not be sentenced to any punishment that is less than any mandatory minimum term of incarceration for any of the offenses.” It is the Legislature’s role to amend statutes, not this court’s. We are bound by the statutory language.

For the reasons stated, we affirm the judgment of the Court of Appeal.

Lucas, C. J., and Werdegar, J., concurred.

1 The factual summary is based on the probation reports, police report, and preliminary hearing transcript; the People did not request a reporter’s transcript of the trial proceedings, except for the sentencing hearing.

2 There can be no doubt that the Legislature is aware of its ability to curtail or eliminate trial court sentencing discretion when it determines that it is appropriate to do so. Thus, it has enacted sentencing provisions that are not subject to the requirements of Penal Code section 654. (See, e.g., Pen. Code, §§ 667.8, 667.6, subd. (c); People v. Hernandez (1988) 46 Cal.3d 194, 203 [249 Cal.Rptr. 850, 757 P.2d 1013] [“the additional term to be imposed under [Penal Code] section 667.8 was originally designed to eliminate the partial sentence reduction that might be gained by application of. . . the prohibition against multiple punishment contained in [Penal Code] section 654”]; People v. Hicks (1993) 6 Cal.4th 784, 792 [25 Cal.Rptr.2d 469, 863 P.2d 714] [“the enactment of [Penal Code] section 667.6[, subdivision] (c), created an exception to [Penal Code] section 654”].)

3 All six districts of our Courts of Appeal have reached the same conclusion. The single Court of Appeal decision to adopt a contrary position was People v. Superior Court (Himmelsbach) (1986) 186 Cal.App.3d 524 [230 Cal.Rptr. 890], which was subsequently repudiated by the same Court of Appeal, the Sixth District, in this matter. We now disapprove Himmelsbach.

4 At the same time, contrary to Justice Baxter’s assertion in his concurring opinion, we also express no enthusiasm for the sentence in this case; we merely conclude that it was not unreasonable. Nor do we suggest or imply that it was “the only reasonable sentence these defendants could have received.” (Conc. opn. of Baxter, J„ post, at p. 11.) As Justice Baxter concedes, such a determination is not ours to make.