People v. Mistretta

SCHOTTKY, J.

David Wayne Mistretta and Jerry Albert Mitzlaff were each indicted for kidnaping for the purpose of robbery (Pen. Code, § 209), robbery (Pen. Code, § 211), forcible rape (Pen. Code, § 261), and aiding and abetting in forcible rape. They each entered a plea of guilty to simple kidnaping (Pen. Code, § 207), forcible rape, and robbery in the second degree. The trial judge ordered the sentences on the robbery convictions to run consecutively with the sentences on the kidnaping convictions and ordered that the forcible rape sentences run consecutively with the term of imprisonment on the other two counts.

Each defendant has appealed. Each contends that the trial judge erred in ordering sentence imposed on all three counts. Each defendant asserts that the sentences imposed are contrary to the mandate of section 654 of the Penal Code prohibiting double punishment. This section reads in part:

“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. ’

’

In

Neal

v.

State of California,

55 Cal.2d 11, 18 et seq. [9 Cal.Rptr. 607, 357 P.2d 839], the Supreme Court held that the statute precluding double punishment applies also where there is a course of conduct which is part of an indivisible transaction which violates more than one statute. Whether a course of conduct is divisible depends on the intent and objective of the defendant. If all of the offenses are incident to one objective, punishment may be imposed for any one but not for more than one. (See also

Seiterle

v.

Superior Court,

57 Cal.2d 397, 400 [20 Cal.Rptr. 1, 369 P.2d 697];

People

v.

McFarland,

58 Cal.2d 748, 761 [26 Cal.Rptr. 473, 376 P.2d 449].)