In re Culbreth

CLARK, J.

I concur in denying the writ, but dissent from modifying the judgment. As a general rule, section 654 of the Penal Code prohibits multiple punishment when a single act or transaction is charged as multiple offenses. (In re Ward (1966) 64 Cal.2d 672, 675-676 [51 Cal.Rptr. 272, 414 P.2d 400]; Neal v. State of California (1960) 55 Cal.2d 11, 19-20 [9 Cal.Rptr. 607, 357 P.2d 839].) However, section 654 is inapplicable when the offenses arising from a single transaction are crimes of violence against multiple victims. (People v. Milan (1973) 9 Cal.3d 185, 197 [107 Cal.Rptr. 68, 507 P.2d 956]; People v. Ridley (1965) 63 Cal.2d 671, 678 [47 Cal.Rptr. 796, 408 P.2d 124]; Neal v. State of California, supra, 55 Cal.2d at pp. 20-21; see People v. Bauer (1969) 1 Cal.3d 368, 377-378 [82 Cal.Rptr. 357, 461 P.2d 637, 37 A.L.R3d 1398].) Accordingly, as petitioner expressly concedes, section 654 is inapplicable to the underlying murder convictions here.

Section 12022.5 does not state an offense; it merely provides additional punishment for certain offenses in which a firearm is used. (People v. Strickland (1974) 11 Cal.3d 946, 961 [114 Cal.Rptr. 632, 523 P.2d 672]; People v. Provencher (1973) 33 Cal.App.3d 546, 549-550 [108 Cal.Rptr. 792]; People v. Henry (1970) 14 Cal.App.3d 89, 92 [91 Cal.Rptr. 841]; see In re Shull (1944) 23 Cal.2d 745, 749 [146 P.2d 417].) Therefore, section 654 is inapplicable to it.

*336The court in People v. Johnson (1974) 38 Cal.App.3d 1, 11-12 [112 Cal.Rptr. 834], conceded that section 654 is inapplicable when the offenses arising from a single transaction are crimes of violence against multiple victims, but then brought section 654 in again through the back door by analyzing section 12022.5 in transactional terms. The language of the statute does not support such a construction.

Section 12022.5 speaks of “use” of a firearm, not “occasions” of firearm use. Neither “occasion” nor any synonym associated with transactional analysis appears in the statute. “ ‘Use’ means, among other things, ‘to cany out a purpose or action by means of,’ to ‘make instrumental to an end or process,’ and to ‘apply to advantage.’ (Webster’s New Internat. Dict. (3d ed. 1961).)” (People v. Chambers (1972) 7 Cal.3d 666, 672 [102 Cal.Rptr. 776, 498 P.2d 1024].) Under section 12022.5, the “purpose or action,” “end or process” for which a firearm is used is the commission of one or more of the crimes specified therein. Accordingly, for the purposes of the section, petitioner used his firearm twice, committing two murders. By its terms the statute applies to “[a]ny person who uses a firearm in the commission of. . . murder . . . .” Nothing in the statute indicates that it is applicable to one of petitioner’s murders but not the other one.

Nor is the Johnson analysis supported by the fact that section 12022.5 is intended to deter use of a firearm in the commission of the offenses specified therein. The statutes directly sanctioning those crimes are also intended to have a deterrent effect. Nevertheless, a defendant committing two murders, e.g., on a “single occasion” may be convicted and punished for both of them. (People v. Milan, supra, 9 Cal.3d 185, 197.) So also may the punishment for each of the murders be enhanced under section 12022.5.

People v. Johnson, supra, 38 Cal.App.3d 1 should be disapproved insofar as it conflicts with the views expressed herein, as should the two cases uncritically following Johnson—People v. Lowe (1975) 45 Cal.App.3d 792 [119 Cal.Rptr. 699] and People v. Bush (1975) 50 Cal.App.3d 168 [123 Cal.Rptr. 576],

McComb, J., and Richardson, J., concurred.

Respondent’s petition for a rehearing was denied July 28, 1976, and the opinion was modified to read as printed above. Clark, J., and Richardson, J., were of the opinion that the petition should be granted.