A jury found defendant guilty on two counts of unlawfully taking an automobile (Veh. Code, § 10851), five counts of burglary of the second degree (Pen. Code, §§ 459, 460), and one count of grand theft (Pen. Code, § 487, subd. 1). The sentences imposed by the court for the taking of automobiles were made concurrent with each other but consecutive with respect to concurrent sentences imposed on the burglary counts. The sentence for grand theft was made consecutive with respect to the other sentences. Defendant has appealed, contending, among other things, that the evidence is insufficient to support his convictions and that the court erred in instructing the jury.
In regard to one of the counts of unlawfully taking an automobile, it was shown that on September 11, 1960, an automobile owned by Frank Nunley was stolen and was later found by the police, abandoned and in a "stripped" condition, with its convertible top and other accessories missing, as well as personal belongings that had been inside. On September 30, Nunley saw a Nash automobile equipped with a top which he recognized as being the one missing from his car, and he gave the license number to the police, who determined that the Nash was registered in the name of defendant's wife. When defendant and his wife were questioned on October 5, defendant at first denied having ever owned the Nash but later stated that he had owned it and had sold it, describing the place where the purchaser lived. The police and Nunley went to that location and found the Nash, which was equipped with a convertible top and various other accessories identified by Nunley as the ones taken from his car. The owner of the Nash told the police that it was equipped in this way when he purchased it from defendant on September 19. The officers went with Nunley to defendant's residence, placed him under arrest, and, with his consent, searched the garage, which had been locked. They found an automobile seat cover with Nunley's name on it, as well as eyeglasses and tools which Nunley identified as being his.
The search of defendant's garage disclosed a considerable quantity of equipment and personal property, and some of the items, which the police had reason to believe were recently stolen, were seized by them. After going to headquarters they ascertained that other items seen in the garage answered the description of stolen property, and they returned with a search warrant and took them as well.
Among the things found were the engine and the rear axle
The seized property included the following items involved in three of the burglary counts: (1) An adding machine and a Smith-Corona portable typewriter stolen in a burglary on August 9, 1960; (2) a toolbox and tools stolen in a burglary on August 23, 1960; (3) a tape recorder and tapes stolen in a burglary on September 29, 1960.
Another item found in defendant's garage was an air compressor stolen late in August 1960 from inside a hospital under construction. The taking of the compressor, which was worth six or seven hundred dollars, formed the basis of the grand theft count as well as one of the burglary counts.
There was also evidence (forming the basis of another of the burglary counts) that on the night of September 29, 1960, a putty knife and about five dollars were stolen from a commercial garage, that the office in the garage had been entered through a hole cut in the wall, and that, although the stolen property was not found in defendant's possession, the inside surface of a piece of the plasterboard cut out of the wall had a fingerprint on it which an expert identified as defendant's.
The police questioned defendant about the property involved in the various counts, telling him it was stolen. He said that he did not want to discuss the situation, that he was in "enough trouble already," and that the police could not help him. When the police suggested that a woman may have been with defendant when Nunley's car was stolen and that someone must have helped him in that theft, he replied, "You know my wife wasn't with me.... I can show you how one man could do it." In response to a question about the Jaguar engine, defendant said he had gotten it in a junkyard, but he could not or would not name the yard. With respect to the adding machine, typewriter and tape recorder, defendant said he bought them but could not remember where, when, or from whom, or how much he paid. Defendant's wife told the officers he had brought the adding machine home in the middle of the night. The police suggested to defendant that someone must have helped him take the air compressor because it was so heavy, and he replied, "Well, I took it out in three pieces." As far as appears, he offered no explanation
Defendant did not take the stand at the trial, and he did not introduce any evidence as to how the stolen property was acquired or why his fingerprint was found at the scene of one of the burglaries.
The great weight of authority in other jurisdictions recognizes that an inference of guilt is permissible where recently stolen property is found in the conscious possession of a defendant and the possession is not explained. (See 101 Am.St. Rep. 481-524; Wigmore on Evidence (3d ed. 1940) vol. 1, §§ 152, 153, pp. 598-600; id., vol. 6, § 1781, pp. 226, 228; id., vol. 9, § 2513, pp. 417-423; 3 Underhill's Criminal Evidence (5th ed. 1957) §§ 600, 601, 602, pp. 1460-1471; id., § 723, pp. 1683-1687; 56 A.L.R.2d 1360-1365; 12 C.J.S. 717, 736-737; 52 C.J.S. 924 et seq.)
The many decisions which set forth the rule permitting an inference of guilt, including United States Supreme Court cases (Wilson v. United States, 162 U.S. 613, 619-620 [16 S.Ct. 895, 40 L.Ed. 1090]; see McNamara v. Henkel, 226 U.S. 520, 524-525 [33 S.Ct. 146, 57 L.Ed. 330]; Dunlop v. United States, 165 U.S. 486, 502 [17 S.Ct. 375, 41 L.Ed. 799]), are implied authority for its constitutionality. (For an express holding of constitutionality see People v. Kulig, 373 Ill. 102 [25 N.E.2d 73, 74]; cf. State v. Todaro, 131 N.J.L. 430 [37 A.2d 73, 74], upholding a statute providing for a similar rule [app. dism. 323 U.S. 667 [65 S.Ct. 73, 89 L.Ed. 542], citing the Wilson case, supra, and Tot v. United States, 319 U.S. 463 [63 S.Ct. 1241, 87 L.Ed. 1519]].)
The view that a person's silence when questioned by the police concerning his possession of recently stolen property may be used against him as indicating a consciousness of guilt or as an admission is in accord with analogous cases involving silence in the face of accusatory statements made by the police. (See People v. Abbott, 47 Cal.2d 362, 373 [303 P.2d 730]; People v. Simmons, 28 Cal.2d 699, 711 et seq. [172 P.2d 18].)
Obviously, application of the rule permitting an inference of guilt in the situation involving pretrial silence upon questioning by the police does not mean that a defendant may be convicted on evidence of possession alone. In such a situation there is not only the incriminating fact of possession of recently stolen property but, in addition, an affirmative showing of consciousness of guilt arising from a different fact, the silence of the accused under circumstances in which an innocent man would ordinarily have spoken out.
Application of the rule in the situation involving silence upon questioning by the police is entirely consistent with decisions which, in construing section 13 of article I of the Constitution,
The jury was instructed: "The mere possession of stolen property, however soon after the taking, unexplained by the person having possession, is not sufficient to justify conviction. It is, however, a circumstance to be considered in connection with other evidence in determining the question of innocence or guilt. If you should find from the evidence that a burglary was committed on the premises involved in this case or that a theft occurred and that thereafter the defendant was found in possession, or claimed to be the owner, of property stolen from the burglarized premises, or in the theft, such a fact
The principles governing the application of section 654 were clarified by this court in Neal v. State of California, 55 Cal.2d 11, 18 et seq. [9 Cal.Rptr. 607, 357 P.2d 839].
Even in the absence of a statute such as section 654 recent decisions of the United States Supreme Court, upon reasoning which, as in Neal, emphasized the intent of the defendant, have held that the Federal Bank Robbery Act should be construed as not permitting sentences for both entering with intent to steal and robbery or for both robbery and receiving stolen money. (Prince v. United States, 352 U.S. 322, 324 et seq. [77 S.Ct. 403, 1 L.Ed.2d 370, 59 A.L.R.2d 940]; Heflin v. United States, 358 U.S. 415, 419-420 [79 S.Ct. 451, 3 L.Ed.2d 407]; cf. Milanovich v. United States, 365 U.S. 551, 553 et seq. [81 S.Ct. 728, 5 L.Ed.2d 773] [stealing from Naval commissary
On the basis of other out-of-state decisions which have been called to our attention it cannot properly be said that there is a majority rule or a trend of decision with respect to how a statute such as section 654 should be applied. Except for decisions from New York, Arizona, and Utah, none has involved such a statute. The lower court cases in New York seem to be in conflict (compare People v. Savarese (1952) 1 Misc.2d 305 [114 N.Y.S.2d 816, 835-836], with People v. Zipkin (1952) 202 Misc. 552 [118 N.Y.S.2d 697, 698-699]), and what appears to be the leading case in that state, People ex rel. Maurer v. Jackson, 2 N.Y.2d 259 [159 N.Y.S.2d 203, 140 N.E.2d 282], is consistent with the California rule. The New York court was careful to stress that the "single issue" before it was whether the statute against double punishment was violated by the imposition of "concurrent sentences" (italics in the original), and the decision rests largely on the ground that concurrent sentences can never constitute double punishment. (140 N.E.2d at pp. 284, 286 et seq.) Moreover, there is considerable language in the opinion indicating that whether two crimes are committed with the same or different intent is of great importance. (140 N.E.2d at pp. 285-286.) The Arizona court, in State v. Hutton, 87 Ariz. 176 [349 P.2d 187, 188-189], although reasoning that consecutive sentences for burglary
Thus defendant can be punished for either offense but not for both, and decisions of the District Courts of Appeal subsequent to Neal have held that double punishment is improper in a situation such as the one before us. (People v. Brown, 200 Cal.App.2d 111, 118 [19 Cal.Rptr. 36]; People v. Dykes, 198 Cal.App.2d 75, 81 [17 Cal.Rptr. 564]; In re Dowding, 188 Cal.App.2d 418, 421-424 [10 Cal.Rptr. 392].) The following cases, which are to the contrary, antedate and are inconsistent with our decision in Neal and are disapproved: People v. Macias, 161 Cal.App.2d 594 [326 P.2d 936], People v. Guarino, 132 Cal.App.2d 554 [282 P.2d 538], People v. White, 115 Cal.App.2d 828 [253 P.2d 108], People v. Finkel, 94 Cal.App.2d 813 [211 P.2d 888], People v. Brain, 75 Cal.App. 109 [241 P. 913], People v. Snyder, 74 Cal.App. 138 [239 P. 705], and People v. Sharp, 58 Cal.App. 637 [209 P. 266].
Of the two offenses involved here, second degree burglary is the one subject to the greater punishment. (Pen. Code, §§ 461, 489.) Accordingly, it is necessary to reverse the judgment insofar as it relates to punishment for grand theft.
Defendant's assertion that several matters other than those discussed above require a reversal of the judgment as a whole is devoid of merit and need not be discussed.
The judgment is reversed insofar as it imposes a sentence for grand theft, and in all other respects it is affirmed.
Traynor, J., Tobriner, J., and White, J.,
SCHAUER, J., Concurring and Dissenting.
I concur in the majority's formulation of the rule that "Where recently stolen property is found in the conscious possession of a defendant who, upon being questioned by the police, gives a false explanation regarding his possession or remains silent under circumstances indicating a consciousness of guilt, an inference of guilt is permissible and it is for the jury to determine whether or not the inference should be drawn in the light of all the evidence." (Ante, p. 755.) I must dissent,
The majority apparently feel compelled to reach this holding by the assertion in Neal v. State of California (1960) 55 Cal.2d 11, 19  [9 Cal.Rptr. 607, 357 P.2d 839], that "Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one." (Italics added.) The majority paraphrase this language, characterizing it as one of the "principles" governing the application of section 654 that were "clarified by" the Neal opinion. (Ante, p. 760.)
This summary and uncritical disposition of the matter calls to mind the oft-quoted warning of a great jurist: "It is one of the misfortunes of the law that ideas become encysted in phrases and thereafter for a long time cease to provoke further analysis." (Holmes, J., dissenting in Hyde v. United States (1912) 225 U.S. 347, 384, 391 [32 S.Ct. 793, 56 L.Ed. 1114, 1132].) On two previous occasions I have attempted to analyze the meaning — or lack of it — of the so-called "intent and objective test" for applying Penal Code section 654, and to show that continued adherence to such a formula can only lead to absurdity. (See my dissenting opinion in Neal v. State of California (1960), supra, 55 Cal.2d 21; and my concurring and dissenting opinion in Seiterle v. Superior Court (1962) 57 Cal.2d 397, 403 [20 Cal.Rptr. 1, 4, 369 P.2d 697, 700].) I do not propose to repeat what I said in those opinions; but a further analysis is imperative when the majority of this court persist in invoking the so-called "intent and objective test"
It is not too late for such a reappraisal. A careful reading of the majority opinion in Neal discloses that the above quoted language purporting to adopt the so-called "intent and objective test" was not necessary to the decision in that case. As the majority there viewed the record, the defendant had committed but a single act: his convictions for arson and attempted murder were said to rest "upon defendant's act of throwing gasoline into the bedroom of Mr. and Mrs. Raymond and igniting it." (Id. at p. 18  of 55 Cal.2d.) Yet such a case presents no problem in applying Penal Code section 654, for under the terms of that statute a single act may be punished only once. The Neal majority expressly recognize this rule (id. at p. 19 ), quoting from People v. Knowles (1950) 35 Cal.2d 175, 187  [217 P.2d 1]: "If only a single act is charged as the basis of the multiple convictions, only one conviction can be affirmed, notwithstanding that the offenses are not necessarily included offenses." As Justice (now Circuit Judge) Duniway, speaking for a unanimous court, observed shortly after Neal was handed down, "We think that the case could have rested upon that ground alone." (People v. Fields (1961) 190 Cal.App.2d 515, 517  [12 Cal.Rptr. 249].) Under the majority's view of the facts in Neal, section 654 by its clear language was applicable and in that aspect the case was controlled by ample precedent. There was therefore no need to go on to discuss what rule might be invoked in an entirely different class of cases, i.e., those involving not a single act — the only situation embraced by the language of the code section — but a "course of criminal conduct" encompassing multiple acts; such acts being connected not in a single crime but only in the multifarious plan of the criminal for the commission of divers crimes requiring separate acts (see e.g., In re Chapman (1954) 43 Cal.2d 385, 389  - 390  [273 P.2d 817]; People v. Slobodion (1948) 31 Cal.2d 555, 561-563  [191 P.2d 1]). It is elementary that a case is authority for only those propositions of law which are necessary to the decision.
If we respect logic the answer necessarily implied by the majority's holding is affirmative. The portion of section 654 relied on by the majority reads "An act ... 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; ..." The section further provides that "an acquittal or conviction and sentence under either one [of the applicable sections] bars a prosecution for the same act ... under any other." (Italics added.) Manifestly an acquittal is the full equivalent of conviction and sentence as a bar to further prosecution. Since the majority hold that the burglary and grand theft of which defendant has been convicted constitute but one act within the operation of section 654 it indubitably follows that if the defendant had first been accused, and separately tried for and acquitted, of burglary he could not thereafter be prosecuted for the grand theft (however conclusive the proof) for "an acquittal ... under either one [of the applicable sections] bars a prosecution for the same act ... under any other." The language and applicability of the section are equally clear in both cases. It is also equally clear, therefore, that if punishment of the defendant for grand theft is precluded if he is punished for burglary then prosecution for murder is barred if previously he has been convicted and punished for, or acquitted of, either the burglary or the grand theft.
The so-called "intent and objective test" compounds any inherent difficulties of the situation by grievously misdirecting the trial court's attention. By its terms section 654 (ante, fn. 1) prohibits double punishment for the same "act or omission," rather than for a series of separate and distinct acts assertedly inspired by one "objective." It is true that we have taken the word "act" as used in section 654 to mean something more than simply each physical movement of the criminal, and have recognized that it may in legal contemplation also refer to instances "where a course of conduct violated more than one statute and the problem was whether it comprised a divisible transaction which could be punished under more than one statute within the meaning of section 654." (People v. Brown (1958) 49 Cal.2d 577, 591  [320 P.2d 5].) The solution to the latter problem, however, is to be found not in the facile invocation of an all-embracing formula, but in a close analysis of the acts involved in the particular case. "Where the question is whether a transaction is divisible or indivisible, each case must be resolved on its facts." (People v. Brown
These are not infallible criteria — it is self-delusion to believe that such criteria may exist in the law — but broad guidelines which have on the whole been observed with good sense and results fair to all parties. In attempting to apply the so-called "intent and objective test," however, the attention of the trial court is in each instance distracted from the factual analysis necessary to achieve the purpose of section 654, and instead becomes enmeshed in a post hoc speculation as to the scope of the criminal's "objective." But in many cases the latter will have been ill-defined even in the criminal's own mind, especially with regard to such matters as sudden interruptions by third parties and alternative means of perpetration, escape, or concealment.
The application of the so-called "intent and objective test" is apparently a game that any number can play. Prior to Neal there were, it is true, cases in which this court reviewed the record on the question of double punishment and concluded, contrary to the implied determination of the trial court, that the evidence showed only a single punishable act or an indivisible
One or two examples will suffice. In the pre-Neal case of People v. O'Farrell (1958) 161 Cal.App.2d 13 [325 P.2d 1002], the defendant and two accomplices, armed with burglar's tools and a pistol, broke into a private club between 3 and 4 a.m. They were interrupted in their endeavors by the presence of a night janitor and by the subsequent arrival, one after another, of four other club employees. Each employe was detained at gunpoint, marched to a restroom, and tied up. The criminals forced open a safe and escaped with its contents and with the wallet of one of the employes. The defendant was convicted of burglary, kidnapping for the purpose of robbery, and armed robbery; the convictions were affirmed on appeal. In rejecting the contention that section 654 prohibited separate punishments for kidnapping and robbery, the reviewing court held that under proper instructions the jury found these crimes to be "independent" and that "there is adequate support for its finding." (Id. at p. 22 [4b].) In the post-Neal case of People v. Velarde (1962) 201 Cal.App.2d 231, 233  [19 Cal.Rptr. 832], the defendant and an accomplice forced the owners of a store to go at gunpoint into a back room, bound them, and took money from one and from the cash register. Quoting the so-called "intent and objective test" from Neal,
Finally, it bears emphasis that similar speculation has been resorted to in an effort to uphold multiple convictions in the face of the Neal dictum. It is, obviously, a sword that cuts both ways. In People v. Fields (1961), supra, 190 Cal.App.2d 515, the evidence showed that the defendant and an accomplice drove a truck alongside a young girl and forcibly seized her, dragging her into the cab. She was placed between the two men and told that she was "going for a ride." They drove
Such legal legerdemain results neither in the fair and impartial administration of criminal justice nor in public respect for the judicial process. Before we finally commit ourselves to the vagaries of application and the arbitrary outcome of the so-called "intent and objective test," we would be well advised to consider the experience of other courts in this matter.
The majority in Neal apparently took their formulation of this "test" from a suggestion of a New York inferior court judge in People v. Savarese (1952) 1 Misc.2d 305 [114 N.Y.S.2d 816, 835-836 ] (cited in Neal at p. 19  of 55 Cal.2d). That decision, however, has been criticized in the courts of New York (People v. Zipkin (1952) 202 Misc. 552 [118 N.Y.S.2d 697, 698-699]), and no subsequent decision of the New York Court of Appeals has been found adopting the suggested rule. New York has a statute materially similar to Penal Code section 654 and upon which our provision was originally based (N.Y. Penal Law, § 1938); yet the highest court of that state continues to interpret and apply it in the light of the principles summarized in People ex rel. Maurer v. Jackson (1957), supra, 2 N.Y.2d 259, 264 [159 N.Y.S.2d 203, 206 [2, 3]]: "It is clear that if separate and distinct acts were committed, and that they violated more than one section of the
The majority assert, nevertheless, that the Jackson case "is consistent with the California [meaning, presumably, the Neal] rule." (Ante, p. 761.) The contrary appears from the language of the opinion itself. The decision in Jackson rested upon alternative grounds: one was the holding that the imposition of concurrent sentences did not constitute double punishment under New York law; the other — distinct from the first and itself independently sufficient — was the holding that the double punishment statute (N.Y. Pen. Law, § 1938) was inapplicable in any event because the defendant's two convictions were based on separate and distinct acts. The latter holding was reached in response to the following issue: "Assuming that the robbery and the assault occurred at about the same time, the amicus nevertheless maintains that the separate sentences were proper here, and we give that first consideration." (Id. at p. 206 [2, 3] of 159 N.Y.S.2d.) While the majority find language in the opinion "indicating" that "whether two crimes are committed with the same or different intent is of great importance" (ante, p. 761), the fact remains that the New York court resolved the issue of the applicability of the double punishment statute by directing its attention to the acts committed by the defendant. Thus the court reasoned (id. at p. 207 [2, 3]) that "In the case now before us the meager record will not permit us to determine precisely the acts of this defendant, e.g., whether or not the attempted robbery was incomplete before he discharged his revolver in his attempt to kill Richter, or how much time if any elapsed between those separate acts. Only the indictment
Similarly, in a case where a defendant was convicted and given consecutive sentences on one count of attempted burglary and a second count of possession of burglar's tools, both offenses apparently growing out of the same course of criminal conduct, the trial court denied a writ of error coram nobis sought on the ground that the defendant had been doubly punished for the same act. In the Court of Appeals the defendant argued that "acquisition or the obtaining of possession of burglar's tools constitutes nothing more than a step or preparation in furtherance of an intent to commit a burglary and, ... the act of possession, occurring simultaneously with the attempt, in accord and in line with the predominant intent, which is burglary, may be used as a basis for prosecution and punishment for one or the other, but not for both." (Italics added.) This is Neal language; in a memorandum opinion, however, the Court of Appeals affirmed the order denying relief. (People v. Cassell (1959) 6 N.Y.2d 762 [186 N.Y.S.2d 661, 662, 159 N.E.2d 206].) And even after the appearance of Neal the courts of New York have continued to direct their attention to whether a separate and distinct act can be established as the basis of each count of a multiple conviction, and have refused to invoke the so-called "intent and objective test" suggested in Savarese. (See e.g., People v. McCall (1962) 16 App.Div.2d 313 [228 N.Y.S.2d 52, 57 ]; People v. La Vallee (1961) 15 App.Div.2d 611 [222 N.Y.S.2d 462, 464 [1, 2]].) We have in Neal, therefore, the curious spectacle of a majority of this court — in a case, it bears remembering, where (on the subject issue) it was not necessary to do more than apply existing law — seizing upon a suggestion of a New York inferior court judge which the highest courts of that same jurisdiction have repeatedly declined to accept.
If the courts of New York (and, as hereinafter will be shown, of other sister jurisdictions as well) have by implication rejected the so-called "intent and objective test," the United States Supreme Court has rejected it expressly. In Munson v. McClaughry (8 Cir 1912) 198 F. 72 [42 L.R.A.N.S.
The majority attempt to overcome the effect of the Morgan decision by pointing out that there is no federal statute analogous to our Penal Code section 654. This is obvious, and I do not cite Morgan as direct authority but rather for the persuasive effect of the language of a distinguished Justice of our highest court. Yet the majority, on their part, rely on such cases as Prince v. United States (1957) 352 U.S. 322 [77 S.Ct. 403, 1 L.Ed.2d 370, 59 A.L.R.2d 940], and Heflin v. United States (1959) 358 U.S. 415 [79 S.Ct. 451, 3 L.Ed.2d 407],
The fact that such distinguished courts have rejected the so-called "intent and objective test" should not be lightly disregarded. It should compel us, rather, to reconsider our hasty and unnecessary adoption of that "test" in Neal, and to strike it from our jurisprudence before further damage is done.
The majority opinion in the case at bench illustrates all too well the errors that will result from continued reliance on the Neal formula. In applying the "test" the majority first purport to define the scope and content of defendant's "objective." But the record, as is so often true, is devoid of evidence directed to or even remotely bearing on such a question. Accordingly, the majority are compelled to speculate (ante, p. 762) the "only reasonable conclusion" in the circumstances is that "the entry of the hospital and the taking of the air compressor were parts of a continuous course of conduct and were motivated by one objective, theft;
This holding, in my view, does violence to both the letter and the spirit of our statutes, to precedent, and to sound penological practice. Penal Code section 459 provides in relevant part that "Every person who enters any house [or other enumerated structure] ... with intent to commit grand or petit larceny or any felony is guilty of burglary."
From this principle (which the majority acknowledge) it follows ineluctably that the act which is punished as burglary is simply the defendant's act of entering with the proscribed intent. But an entirely different act must be committed by the defendant before he may be found guilty of grand theft: i.e., the act of feloniously taking and carrying away personal property of another (of a type or value defined in Penal Code section 487) with the specific intent, and without claim of right, to permanently deprive the owner of his interest in such property. (Pen. Code, § 484.) It is manifest that, from a physical standpoint, either act may be committed without
Prior to Neal the rule just stated had been uniformly applied by our courts for more than half a century.
The Neal decision, of course, did not involve such distinct acts as burglary and grand theft. Yet shortly after Neal the District Court of Appeal held in In re Dowding (1961) 188 Cal.App.2d 418 [10 Cal.Rptr. 392], that section 654 prohibited separate punishments for burglary and robbery committed against the same victim because "the object" of the defendant's course of conduct "was the robbery" (id. at p. 423 ). The court professed to recognize that "the crime of burglary was complete when petitioner and his codefendants entered the drug store with the intent to rob the druggist," and that "a long line of decisions uniformly hold" that section 654 does not prohibit separate punishments in such a case. Nevertheless, the court declined to follow these binding precedents on the asserted ground that "they cannot be squared with" the Neal majority's "reasoning" — i.e., the "intent and objective" dictum. In People v. Dykes (1961) 198 Cal.App.2d 75, 81  [17 Cal.Rptr. 564], and in People v. Brown (1962) 200 Cal.App.2d 111, 118  [19 Cal.Rptr. 36], the Dowding holding was followed without further discussion, as if the "long line of decisions" to the contrary had been expressly overruled in Neal or had never even existed. Finally, in People v. Collins (1962) 203 Cal.App.2d 611, 612  [21 Cal.Rptr. 783], the court rather laconically summed up the situation by saying that the law concerning separate punishments for burglary and grand theft "has undergone extreme changes of late."
As of 40 years ago the editors of Bishop's Criminal Law (9th ed. 1923), volume 1, pages 788-789, could conclude on this point that the authorities "almost unanimously" supported the proposition that "If in the night a man breaks and enters a dwelling house to steal therein, and steals, he may be punished for two offences or one, at the election of the prosecuting power.... [A] first count may set out a breaking and entering with intent to steal, and a second may allege the larceny as a separate thing, and thereon the defendant may be convicted and sentenced for both." In so holding in Morgan v. Devine (1915), supra, 237 U.S. 632, the United States Supreme Court observed that "Notwithstanding there is a difference in the adjudicated cases upon this subject, we think the better doctrine recognizes that, although the transaction may be in a sense continuous, the offenses are separate, and each complete in itself." (Id. at p. 639.)
Except for today's unique holding there is no longer any substantial "difference in the adjudicated cases" on this issue. As the highest courts of our sister states one after another have held that burglary and larceny are committed by separate and distinct acts and hence that separate punishments may be imposed for each, the rule has become virtually unanimous. A few examples will serve to illustrate this fact.
Federal Law. As noted above, early federal cases held that a defendant could be punished but once for burglary and larceny of post office property. (Munson v. McClaughry (8th Cir.1912), supra, 198 F. 72; Halligan v. Wayne (9th Cir.1910), 179 F. 112 [102 C.C.A. 410].) Following the holding to the contrary in Morgan v. Devine (1915), supra, 237 U.S. 632, contemporary federal decisions now authorize separate punishments for such offenses. (Clark v. United States (4th Cir.1959), supra, 267 F.2d 99, 101 ; Hamilton v. United States (5th Cir.1958), supra, 253 F.2d 421, 422 .)
Pennsylvania. In the early case of Commonwealth v. Birdsall (1871) 69 Pa. (19 P.F. Smith) 482, 485 [8 Am.Rep. 283], the court said in dictum that burglary and larceny committed at the same time could not "be punished as separate offences." A similar dictum had appeared in Stoops v. Commonwealth (1822) 7 Serg. & R. (Pa.) 491, 498 [10 Am.Dec. 482]; and a lower court so held in Commonwealth ex rel. Wendell v. Smith (1936) 123 Pa.Super. 113 [186 A. 810, 811 [1, 2]. But in Commonwealth ex rel. Moszczynski v. Ashe
Other Jurisdictions. An increasing number of states have in recent years adopted the subject rule authorizing separate punishments for burglary and larceny committed in the same criminal transaction: e.g., Maryland,
The majority justices of this court (in promulgating their minority view) dismiss these respectable authorities on the asserted ground that none turned on the construction of a statute similar to our Penal Code section 654. While the opinions in these cases do not discuss any such statute, it does not follow that the decisions are entitled to no consideration whatever. The issue posed by section 654 is whether defendant's convictions on Count V (burglary) and Count VI (grand theft) each rest on a separate and distinct "act or omission which is made punishable in different ways by different provisions of this code...." In one context or another, that issue has been considered and resolved in each of the above cited cases from our sister jurisdictions. Typical of the current reasoning of these decisions is the following language from State v. Quatro (1957) 44 N.J.Super. 120 [129 A.2d 741, 745 [9, 10]]: "A sentence for breaking and entering can be added [to a sentence for larceny or receiving stolen property] ..., as the former, though perpetrated on the same occasion as the others, rests on a criminal act distinct from the larceny and receiving" (italics added).
Before a majority of this court hold, in effect, that convictions of burglary and grand theft do not each rest on a separate and distinct "act or omission," some explanation would appear to be due as to why the California rule should be different from that of the rest of the nation. To say that our law is different — i.e., that we have section 654 while the other states do not — is not enough. Section 654 does not even come into play until it is shown on the facts that a single "act or omission" is being punished more than once. Does the burglar-thief in California commit acts any less distinct in perpetrating his crimes than his counterpart in Pennsylvania, Maryland, New Jersey, or Ohio?
Moreover, the subject rule is also followed in those states which do have statutes similar to our section 654.
Nor has the appearance of the Neal decision had any appreciable effect in our sister states. Prior to Neal it was held, in a jurisdiction (Utah) having a statute (Utah Code Ann. 1943, § 105-21-32) providing that "no person shall be convicted of more than one crime upon the same facts constituting such crime," that such statute did not prohibit separate punishments for burglary and larceny committed in a single criminal venture. (Rogerson v. Harris (1947) 111 Utah. 330 [178 P.2d 397, 399 [5-7]].) More than a year after Neal appeared, the same court was again presented with the question now before us. (State v. Jones (1962) 13 Utah.2d 35 [368 P.2d 262].) The defendant appealed from "convictions of burglary and larceny allegedly committed at the same place, about the same time." He contended that it was error to sentence him on both charges, relying on a statute (Utah Code Ann. 1953, § 76-1-23) which provided in relevant part as follows: "An act or omission which is made punishable in different ways by different provisions ... may be punished under
To sum up, the majority's holding on the facts in the case at bench that Penal Code section 654 precludes punishing defendant for both burglary and grand theft (1) perverts clearly defined expressions of legislative intent, (2) overrules without sufficient justification a long and respectable line of California precedents to the contrary, (3) strikes down an established sentencing practice of our trial courts, and (4) runs counter to not only the overwhelming weight of authority but also the strong current of decisions in our sister jurisdictions.
McComb, J., concurred.
PETERS, J., Concurring and Dissenting.
The defendant was convicted of eight felonies. The majority affirm seven counts and reverse as to one. I concur in that reversal, but not in the reasons given for it. For reasons hereafter stated I believe all eight counts should be reversed.
The majority opinion fairly states the facts. As there appears, defendant was found in possession of various items of property that had recently (from two days to two months prior to the discovery) been taken from the owners without their consent. Defendant was then charged with two counts of unlawfully taking an automobile (Veh. Code, § 10851), five counts of burglary (Pen. Code, §§ 459, 460), and one count of grand theft (Pen. Code, § 487, subd. 1). He was convicted on all eight. The majority reverse the grand theft conviction, and affirm as to the seven others. As to several of these seven counts, in addition to evidence that the properties involved had been unlawfully taken by someone from the possession of the respective owners, and that the properties were found in the possession of the defendant shortly thereafter, there was other evidence tending to connect defendant to these crimes. This other evidence was either in the form of admissions or consisted of false statements by the defendant as to how he acquired possession. As to these counts, as the majority opinion correctly points out, it has long been held in California that admissions or false explanations sufficiently corroborate the inferences arising from defendant's possession of property recently stolen so as to warrant a conviction (People v. Ransome, 180 Cal.App.2d 140, 146 [4 Cal.Rptr. 347]; People v. Russell, 120 Cal.App. 622, 625 [8 P.2d 209]; People v. Scott, 66 Cal.App. 200, 203 [225 P. 767]). But as to several of the counts, the only evidence introduced by the prosecution in an attempt to connect defendant with the crimes was unexplained possession of recently stolen property.
It has long been the rule in California that evidence of possession of recently stolen property is not, standing alone, sufficient evidence to sustain a conviction. In other words, possession of recently stolen property must be corroborated. (People v. Citrino, 46 Cal.2d 284, 288 [294 P.2d 32], and
By including the phrase "circumstances indicating a consciousness of guilt" the majority imply that something is being added to proof of possession, but in fact nothing is added at all. This is so because the "circumstance" relied on to indicate guilt is silence on the part of defendant. Thus, by this pronouncement the majority are in fact stating that possession of recently stolen goods is alone sufficient to sustain a conviction of burglary unless the accused proves his innocence. To add to possession a negative factor, failure to explain, in fact adds nothing. Failure to explain is just another way of stating that unless the explanation proves innocence the defendant may be found guilty. It is obvious that when a defendant is found in possession of recently stolen goods he either explains his possession or he does not. He either talks or remains silent. If he talks and gives a false explanation he may be found guilty. Of course, if he gives a true explanation that implicates him, he has confessed guilt. If he gives a true explanation that exonerates him, he has proven his innocence. Or he may remain silent. These are the only possible alternatives. The only one that does not sustain a conviction, according to the majority, is where he proves his innocence. Thus, what the majority are really saying is that recent possession of stolen goods, standing alone, is sufficient to sustain a conviction, unless the defendant takes the initiative and proves his innocence. Thus the old well-settled rule that possession alone is not sufficient has been effectively abolished.
People v. Chambers, 18 Cal. 382, was the first case in California to hold that the possession of stolen property is insufficient, in itself, to sustain the conviction. In that case, the trial court had instructed the jury that if "... the defendant was afterwards found in possession of a part of the property stolen, you may find therefrom that he is guilty ..." of larceny. In reversing the conviction because of this erroneous instruction, the court stated, at page 383, the rationale behind the rule that possession alone is insufficient to convict: "It is well settled that the possession of the fruits of a crime is a
Following the Chambers case, there have been numerous decisions upholding as a correct statement of the law to be included in jury instructions that possession alone is not enough to sustain a theft conviction. In addition to the cases disapproved by the majority, the following cases announce the disapproved rule: People v. Rodundo, 44 Cal. 538; People v. Beaver, 49 Cal. 57; People v. Clough, 59 Cal. 438; People v. Fagan, 66 Cal. 534 [6 P. 394]; People v. Wilson, 135 Cal. 331 [67 P. 322]. In addition, there are numerous cases in which this rule has been indirectly recognized. (See People v. Russell, 34 Cal.App.2d 665, 669 [94 P.2d 400] ["It is true that mere possession of property stolen in a burglary recently committed is not sufficient of itself to warrant a finding that the accused committed the burglary ..."]; People v. Russell, supra, 120 Cal.App. 622, 625 ["It is also the law that to warrant the conclusion that the accused is guilty of a transaction involving the theft of stolen property there must be, in addition to its possession by the defendant shortly after the commission of the crime, corroborating circumstances ..."]; People v. McClain, 115 Cal.App. 505, 508 [1 P.2d 1085] ["It
The rule announced by the majority deprives the defendant of several constitutional and statutory rights. Our state Constitution (art. I, § 13) provides that a defendant cannot be compelled "in any criminal case, to be a witness against himself" but his failure to explain "the case against him" may be commented upon. (See also Pen. Code, §§ 688, 1323, 1323.5.) The right to remain silent is fundamental. The only limitation is that silence may be commented on when the prosecution, in court, has first made out a case against the accused that he should deny. (People v. Talle, 111 Cal.App.2d 650, 664 [245 P.2d 633]; People v. Sawaya, 46 Cal.App.2d 466, 471 [115 P.2d 1001].) The majority opinion, by the adoption of this new rule, has quite effectively shifted the burden of proof from the prosecution to the defendant. No longer is such a defendant clothed with the presumption of innocence. Now, in such a situation, the defendant may be presumed guilty unless he proves his innocence. This is so because the majority place on the defendant the positive duty to speak when arrested (long before any "case" has been proved against him). The Constitution (art. I, § 13)
"Under a proper interpretation of these quoted provisions, an accused has the right to stand mute, clothed in the presumption of innocence, until the prosecution, at the trial, has made out a prima facie case against him. Until that has been done, it is improper to even comment on his silence." A "prima facie case" means one that contains all the elements of the offense. Thus, the duty to speak does not arise until such a prima facie case has been proved against him. The majority say that defendant must speak at the time of arrest or at the time of trial before a "prima facie case" has been established.
The majority have fallen into the error of holding that the failure to explain incriminating evidence and suspicious circumstances justifies an inference of guilt. The inference arising from silence may corroborate prosecution evidence in the record or it may serve to discredit any defense evidence that may be in the record. But the inference cannot itself supply a deficiency in the proof. This is most clearly illustrated in those cases where the prosecution has produced an accomplice of the defendant and he testifies as to all elements of the crime and implicates the defendant. The accomplice's testimony must be corroborated (Pen. Code, § 1111), just as the fact of possession of recently stolen goods must be corroborated. It has long been settled law that even though
In the frequently cited case of People v. Sawaya, supra, 46 Cal.App.2d 466, two accomplices made complete confessions before the grand jury and at the time of trial. Their stories implicated the defendant as one of the culprits. The defendant offered no testimony either before the grand or trial jury. He kept silent. Justice White, then on the District Court of Appeal, pointed out that the corroborating evidence must do more than merely create a suspicion, citing People v. Kempley, 205 Cal. 441 [271 P. 478], and People v. Davis, 210 Cal. 540 [293 P. 32]. The corroborating evidence must, independent of other evidence, he said, directly connect the defendant with the crime charged. The prosecution contended that the silence of defendant, in the face of the inculpatory evidence of the accomplices, constituted sufficient corroboration. In reply to this argument it was stated (at p. 471):
"While conceding that `the corroborating evidence is slight,' the attorney general argues that when taken in connection with the fact that at the trial appellant availed himself of his constitutional prerogative (sec. 13, art. I, Const.), and did not take the witness stand to deny either the accusations of the accomplices or the slight corroborative evidence, the latter measures up to the standards prescribed by section 1111, Penal Code. The fact that the constitutional provision provides that in a criminal case, whether or not the defendant testifies, his failure to explain or deny by his testimony any evidence or facts in the case against him may be commented upon by the court or counsel and may be considered by the court or the jury, does not deprive a defendant of his right to stand mute, nor does it relieve the prosecution of the burden of establishing his guilt beyond a reasonable doubt, and by competent and legal evidence. The exercise by a defendant of his constitutional privilege to remain silent and demand that the people make the case against him beyond a reasonable doubt, does not of itself directly and immediately tend to connect him with the commission of the crime charged against him. When a defendant chooses not to explain allegedly incriminatory circumstances of his guilt in the form of testimony offered in corroboration of testimony given by conceded accomplices, and when as a matter of law such corroborative
Mr. Justice Traynor reviewed this very problem in several cases. In People v. Adamson, 27 Cal.2d 478 [165 P.2d 3], in discussing the failure of defendant to explain inculpatory evidence, and the effect of the constitutional provision giving the prosecution the right to comment on such failure, it was pointed out that silence in such a situation may support an inference that the testimony before the court is credible, but that the inference can add nothing to that evidence. The inference does not raise a presumption of guilt. At page 489 it was stated:
"It was never intended, of course, that the 1934 constitutional amendment should relieve the prosecution of the burden of establishing guilt beyond a reasonable doubt by admissible evidence supporting each element of the crime. (People v. Sawaya, 46 Cal.App.2d 466, 471 [115 P.2d 1001]; State v. Callahan, supra; see Bruce, (One of the draftsmen of the American Bar Association resolution that preceded the adoption of the California provisions), The Right to Comment on the Failure of the Defendant to Testify, 31 Mich.L.Rev. 226, 229, 231; 2 Wigmore, supra, 179; 4 Cleveland Bar Journal 12; 3 Jour. of Crim. Law and Criminology 770, 774.) Nor can the defendant's silence be regarded as a confession," and a case so holding was disapproved.
Again at page 490 it was stated, "The jury, however, is concerned with the scope and nature of the consideration that it may give defendant's failure to explain or deny incriminating evidence, and in the present case should have been instructed that the defendant's failure to deny or explain evidence presented against him does not create a presumption or warrant an inference of guilt, but should be considered only in relation to evidence that he fails to explain or deny...."
In his concurring opinion in People v. Albertson, 23 Cal.2d 550, 581 [145 P.2d 7], Justice Traynor pointed out that the prosecution must prove guilt beyond a reasonable doubt, and that the jury may not infer guilt from the failure of defendant to explain damaging testimony. In a Note in 32 California Law Review 317, at pages 318-319, referring to the Albertson case, it is stated: "The basic rule of the Anglo-American system of criminal procedure is that a man is assumed to be innocent until proven guilty. This `presumption of innocence' means that guilt must be proved beyond a
In People v. Ashley, 42 Cal.2d 246 [267 P.2d 271], at page 268, after citing the Sawaya and Adamson cases with approval, Justice Traynor sums up the entire argument with the statement: "But the failure to testify will not supply a lacuna in the prosecution's proof" and again on the next page: "... the failure ... to testify is not affirmative evidence of any fact, and any inference that can, in the circumstance, be justly drawn therefrom is persuasive rather than probative, lending weight to the evidence presented by the prosecution."
These cases establish beyond doubt that while failure to explain adverse evidence may raise an inference of credibility of the competent evidence already in the record, such inference cannot supply of itself evidence of guilt. In the accomplice situation, silence alone is not sufficient corroboration even though the accomplice has testified as to every element of the charged offense. But the majority here permit the inference from silence to supply missing evidence. Here, the only evidence before the jury was that certain property had been stolen by a person or persons unknown; that within two days and up to two months after the thefts defendant was found in possession of the stolen property. The missing link is the failure to prove that defendant broke into and entered a building and committed a theft therein. Those missing links are supplied, say the majority, by defendant's failure to explain his possession, i.e., by his silence. As the above cases conclusively establish, the inference arising from failure to explain may, at most, reinforce the credibility of evidence already in the record, but it cannot itself supply any missing elements of the offense charged. (See People v. Simmons, 28 Cal.2d 699 [172 P.2d 18]; 35 Cal.L.Rev. 128 where the effect of silence at time of arrest is discussed at length.)
The majority also rely on the accusatory statement rule. The validity of that rule has been questioned, and certainly the courts will not permit abuses of it. (See People v. Briggs, ante, pp. 385, 409 [24 Cal.Rptr. 417, 374 P.2d 257].)
There is another important matter that should be discussed. The charges under discussion are charges of burglary. Burglary, of course, requires proof of an unlawful entry into a building with intent to commit larceny, or any felony (Pen. Code, § 459). There is no proof of these important elements of the crimes charged. The only facts proved, at most, are possession of recently stolen goods, and "silence" when questioned by the police. Assuming that some adverse inference can be indulged in from such silence, can that adverse inference be that defendant broke into and entered a building with intent to commit a prohibited crime therein? Can the so-called inference arising from silence supply proof of the basic issue involved? Why does silence, even if defendant were under a duty to speak, which he was not, supply this fundamental defect in the proof? If, when the property was stolen, an assault or murder had been committed, could defendant's silence prove the specific intents required of those offenses? Of course not. No rational basis exists for such an inference, and none exists as to burglary. There is, of course, at least one other crime that could be involved — knowing possession of stolen goods (Pen. Code, § 496 et seq.). According to the majority, the identical facts here proved could support an inference of the commission of that crime. Thus,
The majority in quoting from People v. Wells, supra, 187 Cal.App.2d 324, rationalize that there is a duty to speak because "it would have been so easy for him to speak if innocent." The fundamental right to remain mute cannot be treated so cavalierly. Certainly, the new rule will make convictions easier. But the mere fact that a defendant could "easily" prove or disprove a fact, does not create a duty to do so. The presumption of innocence, and the right to remain silent, are not that fragile.
It should also be mentioned that the instructions were hopelessly confused. The jury was first instructed that: "The mere possession of stolen property, however soon after the taking, unexplained by the person having possession, is not sufficient to justify conviction." This is the rule disapproved by the majority. The court then instructed that one found in possession of recently stolen property is "bound to explain such possession," and if he does not, "such conduct is a circumstance that tends to show his guilt." The majority hold that this last instruction embodies the new rule that unexplained possession is sufficient corroboration to justify a finding of guilt. Obviously, the two instructions are contradictory and inconsistent. If unexplained possession must be corroborated, it cannot be corroborated by the lack of an explanation. This error, however, if the majority are correct, favored the defendant. But if the first instruction is correct and the second wrong, as I believe, then defendant was prejudicially injured.
From what has been said, it is my opinion that as to those counts where the only corroboration offered by the prosecution was defendant's failure to explain, the evidence is insufficient as a matter of law. As to those counts corroborated by false explanations or admissions the evidence is sufficient, but they too should be reversed, because, if I am correct, the instructions were hopelessly contradictory and prejudicially erroneous. There is no way of knowing whether the jury's
I would reverse the judgment in its entirety.
Appellant's petition for a rehearing was denied December 19, 1962. Peters, J., was of the opinion that the petition should be granted.
"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...."