HOMER NEAL, Petitioner, v. THE STATE OF CALIFORNIA et al., Respondents, 55 Cal. 2d 11

TRAYNOR, J. — On June 4, 1949, petitioner threw gasoline into the bedroom of Mr. and Mrs. Theodore R. Raymond and ignited it. The Raymonds were severely burned. Petitioner was tried and convicted on two counts of attempted murder and one count of arson, and the trial court ordered that the sentences for the two counts of attempted murder run consecutively. On appeal the court held that the convictions were supported by sufficient evidence and that no reversible error was committed during the trial on the issue of guilt.

Owing to the admission of incompetent evidence on the question of sentencing, however, the cause was remanded for a redetermination of the question whether the sentence for the second attempted murder should run consecutively or concurrently. (People v. Neal, 97 Cal.App.2d 668 [218 P.2d 556].) On August 9, 1950, the trial court again ordered that the two attempted murder sentences run consecutively. No further appeal was taken. Petitioner now seeks a writ of mandamus to order the Adult Authority to fix the time when he may be released from prison. He contends that subdivision 1 of Penal Code,

section 664, provides a maximum sentence of 10 years for attempted murder and that his convictions on a second count of attempted murder and on a count of arson were invalid on the ground that they punished him three times for a single act in violation of Penal Code,

section 654. Before we reach the merits of petitioner’s contentions we must first determine whether they can be raised, now that the judgment of conviction has become final. Mandamus will not ordinarily lie to correct an error in a final and appealable judgment. (O’Neill v. Reynolds, 116 Cal. 264, 266 [48 P. 57]; Andrews v.

Police Court, 21 Cal.2d 479, 480 [133 P.2d 398, 145 A.L.R 1042].) [2] Although a writ of mandamus may issue to vacate a judgment entered by a court that lacked jurisdiction, a motion to vacate such judgment must first be made in the court that entered the judgment, and a denial of such motion must be appealed in the regular manner. (Andrews v. Superior Court, 29 Cal.2d 208, 214 [174 P.2d 313]; see Phelan v. Superior Court, 35 Cal.2d 363, 372 [217 P.2d 951].) The proper remedy, if any, is habeas corpus. If the facts justify this remedy it is immaterial that petitioner had prayed for an inappropriate one. (Owens v.

Superior Court, 52 Cal.2d 822, 827 [345 P.2d 921] ; see 3 Witkin, California Procedure, pp. 2568-2569.) Accordingly, we treat this petition as one for a writ of habeas corpus. The petitioner’s attack on the multiple sentences is a collateral attack on the judgment. Subdivision 1 of Penal Code,

section 1487, limits the review of erroneous judgments by habeas corpus to cases in which the conviction and sentence imposed were in excess of the jurisdiction of the court. The crucial question, therefore, is whether the court acts in excess of its jurisdiction by imposing multiple sentences contrary to Penal Code,

section 654. The word jurisdiction is not limited to its conventional meaning of jurisdiction of the cause or the parties when the right to review a decision by a prerogative writ is the question for decision. (Fortenbury v. Superior Court, 16 Cal. 2d 405, 407 [106 P.2d 411]; see In re Bell, 19 Cal.2d 488, 494 [122 P.2d 22].) “A court may have jurisdiction of the cause of action and of the parties, but it may lack the authority or power to act in the case except in a particular way. Under such circumstances, it is now generally held that the court had no jurisdiction.” (Fortenbury v.

Superior Court, supra, at pp. 407-408.) Thus, the writ of habeas corpus has issued when the defendant was erroneously sentenced to an indeterminate rather than a fixed term (In re Lee, 177 Cal. 690, 694 [171 P. 958]), and we have stated that the writ lies when the trial court has sentenced a defendant to a term in excess of the maximum provided by law. (See In re McInturff, 37 Cal.2d 876, 880 [236 P.2d 574]; In re Morck, 180 Cal. 384 [181P. 657].) Habeas corpus, however, cannot serve as a substitute for appeal to review a determination of fact made on conflicting evidence. (In re Dixon, 41 Cal.2d 756, 760 [264 P.2d 513]; In re McInturff, 37 Cal.2d 876, 880 [236 P.2d 574]; In re Lindley, 29 Cal.2d 709, 722 [177 P.2d 918]; In re Connor, 16 Cal.2d 701, 705-706 [108 P.2d 10].) Nor will the writ lie to review a decision of a trial court that had discretion to follow different courses of action.

The writ will issue, however, to review an invalid sentence, when, without the re-determination of any facts, the judgment may be corrected to “accord with the only other possible determination in the circumstances.” (In re Mclnturff, supra, at p. 881.) The attorney general contends, however, that the question whether a person has been made to suffer double punishment for a single act is a question of fact and therefore habeas corpus will not lie.

He invokes In re Chapman, 43 Cal.2d 385, 390 [273 P.2d 817] where the court stated: “Whether the evidence accepted by the trier of fact shows petitioner guilty of one crime or of two is in part a factual question. ‘It is, of course, an established rule that habeas corpus may not be used instead of an appeal to review determinations of fact made upon conflicting evidence after a fair trial. [Citations.] Likewise, the writ is not available to correct errors or irregularities relating to ascertainment of the facts when such errors could and should have been raised by appeal. [Citations.] ’ ” On the record herein we are not required to review determinations of fact made upon conflicting evidence or to correct errors or irregularities relating to ascertainment of the facts.

The return to the order to show cause does not take issue with petitioner’s statement of facts. The recital of facts by both parties, apparently taken from the statement of facts in People v. Neal, 97 Cal.App.2d 668, 669-672 [218 P.2d 556], discloses only a single course of criminal conduct involving the commission of three offenses, motivated by petitioner’s determination to kill Mr. and Mrs. Raymond because he believed Mr. Raymond had alienated the affections of his wife. Our own examination of the trial transcript discloses nothing to the contrary.

Unlike In re Chapman, supra, this is not a ease, therefore, where the court in proceeding to punish for all three convictions could be said to have rested its determination upon conflicting evidence. The applicability of a statute to conceded facts is a question of law. (Nelson v. Montgomery Ward & Co., 312 U.S. 373, 376 [61 S.Ct. 593, 85 L.Ed. 897]; Estate of Madison, 26 Cal.2d 453, 456 [159 P.2d 630].) Since the facts in the instant case are undisputed and the only question as to the issue of multiple punishment is the applicability of Penal Code,

section 654, habeas corpus is a proper remedy to review that issue. Habeas corpus is also a proper remedy to review the issue whether the Adult Authority has misinterpreted subdivision 1 of Penal Code,

section 664, and is therefore confining petitioner in excess of the time allowed by law. (Pen. Code, § 1487, subd. 2.) Even if the petitioner is not entitled to his immediate release, an alleged misinterpretation by the Adult Authority of the maximum sentence under which a prisoner is serving is reviewable by habeas corpus, since it would affect the Adult Authority's fixing of the prisoner’s indefinite sentence and his eligibility for parole. (See In re Chapman, 43 Cal.2d 385, 387 [273 P.2d 817]; People v. Kehoe, 33 Cal.2d 711, 716 [204 P.2d 321]; People v.

Craig, 17 Cal.2d 453, 458-459 [110 P.2d 403].) We therefore reach the merits. Petitioner’s conviction of one count of arson and two counts of attempted murder rests upon defendant’s act of throwing gasoline into the bedroom of Mr. and Mrs. Raymond and igniting it. Punishment for two offenses arising from the same act is prohibited by the constitutional and common-law rule against multiple punishment for necessarily included offenses (People v. Kehoe, 33 Cal.2d 711, 713 [204 P.2d 321]) and by Penal Code,

section 654, which provides that “An act or omission which is made punishable in different ways by different provisions of this code may be punishable under either of such provisions, but in no ease can it be punished under more than one.” None of Neal’s convictions is for a necessarily included offense. “ [W]here an offense cannot be committed without necessarily committing another offense, the latter is a necessarily included offense.” People v. Greer, 30 Cal.2d 589, 596 [184 P.2d 512].) Arson can be committed without attempting a murder, and the attempted murder of Mr. Raymond could have been committed without attempting to murder Mrs. Raymond. The proscription of

section 654 against multiple punishment of a single act, however, is not limited to necessarily included offenses. (People v. Logan, 41 Cal.2d 279, 290 [260 P.2d 20]; People v. Knowles, 35 Cal.2d 175, 187 [217 P.2d 1]; People v. Kynctte, 15 Cal.2d 731, 761-762 [104 P.2d 794]; accord: People v. Repola, 280 App.Div. 735, 281 App. Div. 679 [117 N.Y.S.2d 283, 288], affirmed 305 N.Y. 740 [113 N.E.2d 421]; People v. Savarese, 1 Misc.2d 305 [114 N.Y.S.2d 816, 835-836]; see People v. Snyder, 241 N.Y. 81, 83 [148 N.E. 796] [interpreting N.Y. Pen. Code, § 1938, which is identical with Cal. Pen. Code, § 654].) In People v.

Knowles 35 Cal.2d 175, 187 [217 P.2d 1], we stated: “If a course of criminal conduct causes the commission of more than one offense, each of which can be committed without committing any other, the applicability of

section 654 will depend upon whether a separate and distinct act can be established as the basis of each conviction, or whether a single act has been so committed that more than one statute has been violated. 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.

It is the singleness of the act and not of the offense that is determinative.” Thus the act of placing a bomb into an automobile to kill the owner may form the basis for a conviction of attempted murder, or assault with intent to kill, or malicious use of explosives. Insofar as only a single act is charged as the basis for the conviction, however, the defendant can be punished only once. (People v.

Kynette, 15 Cal.2d 731, 762 [104 P.2d 794].) Likewise, the act of using an instrument to cause an abortion which results in death can be punished for abortion or for murder in the second degree but not for both. (People v. Brown, 49 Cal.2d 577, 590-594 [320 P.2d 5].) Pew if any crimes, however, are the result of a single physical act. “

Section 654 has been applied not only where there was but one ‘act’ in the ordinary sense . . . but also 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, supra, 591.) 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. Thus in People v. Logan, 41 Cal.2d 279, 290 [260 P.2d 20], defendant, who chose to commit robbery by first knocking out his victim with a baseball bat and then taking his valuables was convicted of both robbery and assault. We reversed the assault conviction on the ground that the double punishment violated

section 654. In In re Chapman, 43 Cal.2d 385, 387 [273 P.2d 817], however, we held that when the assault is not a means of perpetrating the robbery but is

an act that follows after the robbery is completed the defendant is guilty of two punishable acts. Likewise in People v. Greer, 30 Cal.2d 589, 600 [184 P.2d 512], statutory rape and lewd and lascivious conduct were held to be one act since both offenses arose from a single act of sexual intercourse. In People v.

Slobodion, 31 Cal.2d 555, 561-563 [191 P.2d 1], however, we sustained convictions for sex perversion and lewd and lascivious conduct, even though both acts were closely connected in time and a part of the same criminal venture since the act giving rise to the lewd and lascivious conduct was separate and distinct and was not incidental to or the means by which the act of sex perversion was accomplished. In the instant case the arson was the means of perpetrating the crime of attempted murder just as the malicious use of explosives was the means for perpetrating the attempted murder in People v.

Kynette, and the assault with the baseball bat was the means of committing robbery in People v. Logan. The conviction for both arson and attempted murder violated Penal Code,

section 654, since the arson was merely incidental to the primary objective of killing Mr. and Mrs. Raymond. Petitioner, therefore, can only be punished for the more serious offense, which is attempted murder. The two attempted murder convictions, however, present a different problem. The purpose of the protection against multiple punishment is to insure that the defendant’s punishment will be commensurate with his criminal liability. A defendant who commits

an act of violence with the intent to harm more than one person or by a means likely to cause harm to several persons is more culpable than a defendant who harms only one person. For example, a defendant who chooses a means of murder that places a planeload of passengers in danger, or results in injury to many persons, is properly subject to greater punishment than a defendant who chooses a means that harms only a single person. This distinction between

an act of violence against the person that violates more than one statute and such

an act that harms more than one person is well settled.

Section 654 is not “. . . applicable where . . . one act has two results each of which is

an act of violence against the person of a separate individual.” (People v. Brannon, 70 Cal.App. 225, 235-236 [233 P. 88]; see also People v. Major, 65 Cal. 138, 146 [3 P. 597, 52 Am.Rep. 295]; People v. Gaither, 173 Cal.App.2d 662, 668 [343 P.2d 799]; People v. Holman, 72 Cal.App.2d 75, 100 [164 P.2d 297].) Thus, in People v. Knowles, supra, 35 Cal.2d 175, 187, the defendants kidnaped two persons for the purpose of robbing them. The robbery convictions were reversed by reason of Penal Code,

section 654, but both kidnaping convictions were affirmed. The two consecutive attempted murder convictions were therefore properly imposed. Since petitioner was tried for both crimes at the same time we do not decide whether

section 654 requires all of the prosecutions to be brought at the same time.-

Section 654’s preclusion of multiple prosecution is separate and distinct from its preclusion of multiple punishment. The rule against multiple prosecutions is a procedural safeguard against harassment and is not necessarily related to the punishment to be imposed; double prosecution may be precluded even when double punishment is permissible. Petitioner’s contention that subdivision 1 of Penal Code,

section 664, provides for a maximum sentence of 10 years for attempted murder is without merit. Both the 1949 and present wording of the

section provide a maximum sentence of 20 years for the crime of attempted murder. The arson conviction, being in excess of the jurisdiction of the court, is set aside, and the Adult Authority is directed to exclude from its consideration the purported sentence for arson. Petitioner, however, is not entitled to release so long as he is held under valid judgments of conviction for his other crimes. The order to show cause is, therefore, discharged and the writ of habeas corpus is denied. Gibson, C. J., Peters, J., White, J., and Dooling, J., concurred. Although

section 654 does not expressly preclude double punishment when

an act gives rise to more than one violation of the same Penal Code

section or to multiple violations, of the criminal provisions of other codes, it is settled that the basic principle it enunciates precludes double punishment in such cases also. (People v. Brown, 49 Cal.2d 577, 591 [320 P.2d 5]; see People v. Roberts, 40 Cal.2d 483, 491 [254 P.2d 501]; People v. Clemett, 208 Cal. 142, 144 [280 P. 681]; People v. Nor Woods, 37 Cal.2d 584, 586 [233 P.2d 897].)