Opinion
KAUFMAN, J. Penal Code section 654 proscribes double punishment for multiple violations of the Penal Code based on the “same act or omission.” Decisions of this court have engrafted onto section 654 a judicial gloss interpreting “same act or omission” to include multiple violations committed in an “indivisible” or “single transaction.” (See, e.g., People v. Beamon (1973) 8 Cal.3d 625, 636-639 [105 Cal.Rptr. 681, 504 P.2d 905].) In 1979 the Legislature enacted section 667.6 of the Penal Code1 to increase the punishment for persons convicted of serious sex offenses in certain circumstances. This case raises the question whether by adopting subdivision (c) of that section [hereafter subdivision (c)] the Legislature intended to repeal the prohibition of section 654 against multiple punishment for multiple Penal Code violations based on “the same act or omission” insofar as the serious sex offenses enumerated in subdivision (c) are concerned. As we shall explain, this case does not present the question of whether or not the enactment of subdivision (c) was intended by the Legislature to abrogate or modify the judicially engrafted “indivisible” or “single transaction” rule.
Facts
Shawnna, a nine-year-old child, was home alone one evening when defendant, a sixteen-year-old neighbor, knocked on the door. She let him in. After discussing money briefly, he told her to go in the bathroom and pull down her pants, but she refused. He put a handkerchief around her neck and twice twisted it until it was snug. It was not tight enough to hurt or choke her, but she did become dizzy and scream.
Defendant took Shawnna into the bedroom, put her on the bed, and took off her pants and panties. He took her into the bathroom, ordered her to bend over the bathtub, and put his penis “a little bit” into her anus. Next he [823]placed her on her back on the floor and put his penis “a little bit” into her vagina. She screamed, and he hit her in the mouth. He put vaseline on her vagina, threw her clothes to her, warned her not to tell anyone what he had done, and left.
The district attorney filed a four-count information charging defendant as an adult with forcible lewd and lascivious conduct with a child under 14 involving substantial sexual conduct (§ 288, subd. (b); § 1203.066, subd. (a)(8)), forcible rape (§ 261, subd. (2)), forcible sodomy (§ 286, subd. (c)), and assault with force likely to produce great bodily injury (§ 245, subd. (a)(1)). The jury convicted him on all counts. The court sentenced him to a total of twenty-one years in state prison, imposing a three-year term for the assault and, pursuant to subdivision (c), consecutive full-term sentences of six years each for the three sexual offenses. On appeal defendant challenges only the sentence, arguing that it violates the section 654 ban on multiple punishment because the lewd and lascivious conduct conviction was based on nothing other than the forcible rape and sodomy.
Multiple Punishment
As we shall explain, the lewd conduct for which defendant was convicted consisted only of the rape and the sodomy. He thus committed two criminal acts, but was convicted of three violations: rape, sodomy, and lewd conduct with a child, Defendant concedes the propriety of the three convictions, but contends he should not be punished separately for all three convictions because he committed only two criminal acts. He is correct.
Since its origin in 1872, the Penal Code has prohibited multiple punishment for a single “act or omission.” (§ 654.) Although our interpretation of that provision has varied somewhat over the years, we have consistently held that it bars imposing consecutive sentences for a single act or omission, even though the act or omission may violate more than one provision of the Penal Code. (People v. Pearson (1986) 42 Cal.3d 351, 359 [228 Cal.Rptr. 509, 721 P.2d 595].) Since 1962 we have interpreted section 654 to allow multiple convictions arising out of a single act or omission, but to bar multiple punishment for those convictions. (Id., at pp. 359-361; People v. McFarland (1962) 58 Cal.2d 748, 762-763 [26 Cal.Rptr. 473, 376 P.2d 449]; In re Wright (1967) 65 Cal.2d 650, 652-655 [56 Cal.Rptr. 110, 422 P.2d 998].) Thus if a person rapes a 13-year-old, he can be convicted of both rape and lewd conduct with a child on the basis of that single act, but he cannot be punished for both offenses; execution of the sentence for one of the offenses must be stayed. (Wright, 65 Cal.2d at pp. 655-656, fn. 4.)
The People concede that the foregoing is an accurate statement of the law as it existed in 1979. They contend, however, that the Legislature [824]effected a change in the law when it enacted subdivision (c).2 By adopting that subdivision, the People argue, the Legislature impliedly repealed the prohibition in section 654 on multiple punishment for violations based on the “same act or omission” insofar as that prohibition might otherwise apply to the sex offenses listed in the subdivision. We cannot agree.
We start with the fact, which the People concede, that subdivision (c) nowhere expresses a legislative intent to repeal the prohibition of double punishment for violations based on the “same act or omission” found in section 654. As a general rule of statutory construction, of course, repeal by implication is disfavored. (In re White (1969) 1 Cal.3d 207, 212 [81 Cal.Rptr. 780, 460 P.2d 980].) Such repeal is particularly disfavored when, as here, the statute allegedly repealed expresses a legal principle that has been a part of our penal jurisprudence for over a century. (People v. Cardenas (1982) 31 Cal.3d 897, 913-914 [184 Cal.Rptr. 165, 647 P.2d 569].)
The People point to the fact that subdivision (c) does not explicitly state that its provisions for consecutive sentencing are “subject to section 654,” as subdivision (a) of section 1170.1, a related sentencing statute, does. This reliance on silence, however, is untenable. Had the Legislature intended to override the century-old ban of section 654 on multiple punishment of violations based on the “same act or omission,” it would have made that purpose explicit. (People v. Greer (1947) 30 Cal.2d 589, 603 [184 P.2d 512].) The People’s theory would lead to the remarkable conclusion that the Legislature creates exceptions to a specific code section merely by failing to mention it. The normal rules of statutory construction, however, dictate a contrary presumption: section 654, like any other statute, is presumed to govern every case to which it applies by its terms—unless some other statute creates an express exception. We have invoked section 654 to ban multiple punishment in many contexts, and we have never held that it applies only if the Legislature expressly makes the other statute subject to it. (See, e.g., Greer, 30 Cal.2d at p. 603 [lewd conduct and statutory rape]; People v. Milan (1973) 9 Cal.3d 185, 196-197 [107 Cal.Rptr. 68, 507 P.2d 956] [kidnapping to rob and robbery]; People v. Parks (1971) 4 Cal.3d 955, 961, fn. 3 [95 Cal.Rptr. 193, 485 P.2d 257] [attempted murder and assault with a deadly weapon]; People v. McFarland, supra, 58 Cal.2d 748, 760-763 [burglary and grand theft]; People v. Tideman (1962) 57 Cal.2d 574, 584-587 [21 Cal.Rptr. 207, 370 P.2d 1007] [abortion and murder]; Neal v. State [825]of California (1960) 55 Cal.2d 11, 18-20 [9 Cal.Rptr. 607, 357 P.2d 839] [arson and attempted murder].)
Our review of the legislative history confirms our belief that the Legislature did not intend subdivision (c) to carve out an implied exception to section 654 by allowing a single act to be punished twice. The various amendments and committee reports reveal that many legislators believed the original draft was excessively harsh, but those items of legislative history give no indication that the subdivision could be interpreted in the fashion the People now urge. Much attention was directed in the committee reports on Senate Bill No. 13 to the provision requiring consecutive sentences for separate acts, but the legislative history is entirely silent on the concept of multiple punishments for a single act. In all the reports listing the ways the bill would change the law, the People are unable to cite a single instance in which a committee suggested that the “same act or omission” aspect of section 654 would be impliedly repealed or amended.3 Had the Legislature contemplated the construction the People now advance, the reports surely would have at least mentioned that potentiality.
The People point out that subdivision (c) authorizes separate punishment “whether or not the crimes were committed during a single transaction.” The People contend this language demonstrates a legislative intent to repeal section 654 in part. They argue, in essence, that because subdivision (c) authorizes multiple punishment even when the separate crimes constitute a “single transaction,” it reflects an intent to change the rule of our case law that section 654 prohibits multiple punishment whenever the defendant’s actions form a “single” or “indivisible transaction.” On the facts of this case, however, the argument is irrelevant: here, the People do not seek to punish three acts once each; they seek to punish the same two acts twice. This violates section 654, but it does not implicate the “single” or “indivisible transaction” rule.
The People are incorrect in contending that the section 654 ban on multiple punishment was not violated here in any event because defendant committed one or more lewd acts other than the rape and sodomy. The People point to the facts that defendant put a handkerchief around the victim’s neck and twice twisted it, and also took off her pants and panties, and argue that any of these acts would be a sufficient independent basis for the lewd-conduct conviction. The claim is untenable.
[826]There is no showing that the lewd-conduct count was understood in this fashion at trial. Indeed, a review of the record demonstrates the contrary. In precise conformity with the information, the jury’s lewd-conduct verdict included a specific finding that “in the commission of the [lewd conduct] [defendant] engage[d] in substantial sexual conduct, to wit, penetration of the vagina and rectum of the victim by the penis.” Thus the charging instrument and the verdict both identify the lewd conduct as consisting of the rape and the sodomy rather than any other act. Nor did anything in the prosecutor’s closing argument or in the court’s instructions suggest any different emphasis.
Conclusion and Disposition
Whatever the Legislature’s intent may have been with respect to the “single” or “indivisible transaction” rule, it is clear to us it did not intend by its enactment of subdivision (c) to repeal or amend the prohibition of double punishment for multiple violations of the Penal Code based on the “same act or omission.”
The judgment of the Court of Appeal is reversed with directions to order the sentence vacated and remand the cause to the trial court for resentencing.
Lucas, C. J., Mosk, J., Broussard, J., Arguelles, J., and Panelli, J., concurred.
All statutory references hereinafter are to the Penal Code.
Subdivision (c) reads in relevant part as follows: “In lieu of the term provided in Section 1170.1, a full, separate, and consecutive term may be imposed for each violation of subdivision (2) or (3) of Section 261, Section 264.1, subdivision (b) of Section 288, Section 289, or of committing sodomy or oral copulation in violation of Section 286 or 288a by force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person whether or not the crimes were committed during a single transaction.”
There is one reference to section 654 in the reports, but it discusses whether subdivision (c) would violate the indivisible-transaction rule by punishing separately multiple acts that occur during one transaction. (Sen. Com. on Judiciary, Analysis of Sen. Bill No. 13 (1979-1980 Reg. Sess.) as amended Mar. 7, 1979, pp. 8-9.)