In Re King

McCOY, J. pro tem.

*

This is a petition for a writ of habeas corpus. Petitioner contends that his confinement by the Sheriff of Los Angeles County is unlawful in that the two charges against him of which he was found guilty arose out of a course of conduct constituting a single criminal transaction, and that he can be punished for only one offense. We agree.

The material facts are admitted. On December 4, 1967, petitioner was attempting to remove a battery from an automobile owned by one Stuart W. Rowe. While doing so he was seen by the owner, who approached petitioner and put his hand on petitioner’s shoulder. At that time, in an attempt to free himself from the owner’s grasp and flee, petitioner struck the owner. His arrest followed.

On December 6, 1967, a criminal complaint was filed in the Municipal Court for the Antelope Judicial District charging petitioner in count I with the commission of a misdemeanor, to wit, a battery on Stuart Rowe on December 4, 1967, in violation of section 242 of the Penal Code, and in count II “being a different offense from but connected in its commission with” the charge in count I, with having injured and tampered with a vehicle and the contents thereof, and having broken and removed a part thereof without the consent of the owner, in violation of section 10852 of the Vehicle Code. Upon conviction of both counts of the complaint peti

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tioner was sentenced to serve consecutive periods of 90 days in the Los Angeles County jail on each count.

Before filing the petition now before us petitioner filed a petition for a writ of habeas corpus in the Superior Court for Los Angeles County which was denied.

In

People

v.

Logan,

41 Cal.2d 279 [260 P.2d 20], the record showed that defendant first struck his victim with a baseball bat and then seized her purse. He was convicted of one count of assault with a deadly weapon and two counts of armed robbery. On appeal the court said (p. 290) : “It is apparent from the descriptions of the criminal transaction in the testimony of the victim and the confessions and admissions of the defendant that the striking of the victim with the baseball bat and the taking of her purse constituted a single, indivisible transaction. The one act of inflicting force with the bat cannot both be punished as assault with a deadly weapon and availed of by the People as the force necessary to constitute the crime of robbery, for ‘ co-operative acts constituting but one offense when committed by the same person at the same time, when combined, charge but one crime and but one punishment can be inflicted.’