People v. Cluchey

VALLÉE, J.

Defendant was convicted, first, of having kidnaped Robert Spencer to commit robbery and of subjecting him to bodily harm (Pen. Code, § 209), and, second, of robbery (Pen. Code, § 211). He was sentenced to state prison without possibility of parole. He appeals from the judgment and an order denying a new trial.

On February 2, 1955, Spencer, a rent collector, emerged from a hotel in Los Angeles with $850 on his person. He got into his car. As he did so defendant got into the rear of the car. Defendant pulled a revolver and ordered Spencer to drive. As Spencer was driving defendant jabbed him in the back of the neck with the gun. After Spencer had driven several blocks, defendant ordered him to stop and to give him his diamond ring and billfold', which Spencer did. Defendant then ordered him to drive for some time, during

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which he (defendant) had the gun in his hand. He finally told Spencer to stop, turn off the ignition, and give him the ear key. He put the gun in front of Spencer’s face and said, “I’ll give you something to remember me by,” and shot him in the right side. Defendant then fled.

The specifications of error are: 1. The convictions of kidnaping and robbery constitute double punishment for one offense. 2. The evidence is insufficient on which to base the implied finding that Spencer suffered bodily harm.

The argument with respect to the first point is that punishment for robbery and kidnaping for the purpose of robbery are inconsistent because the robbery is an essential element of the kidnaping for the purpose of robbery, and the conviction of the two offenses amounts to double punishment, forbidden by Penal Code, section 654. This section says “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; an acquittal or conviction and sentence under either one bars a prosecution for the same act or omission under any other.” Defendant implies he should have been convicted and punished for robbery only.

Section 209 provides in material part: “Any person . . . who kidnaps or carries away any individual to commit robbery . . . shall suffer death or shall be punished by imprisonment in the state prison for life without possibility of parole, at the discretion of the jury trying the same, in cases in which the person . . . subjected to such kidnaping suffers . . . bodily harm.”