People v. Manago

DRAPER, P. J.

This appeal turns on the multiple prosecution bar of Penal Code, section 654. “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 entered the employees’ locker room of a San Francisco department store. This area was not open to the public, and defendant was not an employee. He was observed going through the pockets of garments in two lockers, and was arrested. A straight edge razor was found in his pocket. Complaints were filed charging him with burglary and with violation of a city ordinance which makes it a misdemeanor for one carrying such a weapon concealed upon his person to “hide, lurk, or loiter upon or about the premises of another.” At his first trial on the felony charge the jury disagreed and was discharged June 19, 1963. That case was promptly set for retrial, but the misdemeanor complaint was refilled June 24, jury was waived, the ease was tried and a judgment of conviction entered the same day. On July 2, defendant was sentenced to six months’ imprisonment in county jail, and commitment issued. Retrial of the burglary charge began July 15, and the next day the jury found him guilty of burglary in the first degree. The only ground for the first degree finding is his possession of the razor.

[647]

Motion for new trial was denied. He was sentenced to state prison and appeals.

The decisions concerning section 654 have dealt almost wholly with its first clause, which prohibits multiple punishment for a single act or omission, even though it be made punishable by more than one code section. It seems clear, however, that the rule against multiple prosecution is at least as broad as that against double punishment

(Neal

v.

State,

55 Cal.2d 11, 21 [9 Cal.Rptr. 607, 357 P.2d 839] ; and see 10 U.C.L.A.L.Rev. 870). We look, then, to the double punishment cases for guidance (see