I concur in the judgment and in all of the reasoning upon which it is essentially based but must dissent from that portion of the opinion which states (ante, p. 400) quoting from Neal v. State of California (1960) 55 Cal.2d 11, 19 [22] [9 Cal.Rptr. 607, 357 P.2d 839]) : “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 quoted statement, if taken at its face value, appears to mean that a smart criminal—and some of them are smart and learn fast—could always include in his “intent and objective” the commission of every crime within his imagination which conceivably might conduce to the attainment and enjoyment of his ultimate objective. For example, if his ultimate objective was to steal and enjoy (in freedom for most of his natural life) the use of a proposed victim’s wealth he could plan his “intent and objective” to include extortion, forgery, kidnaping, robbery, theft of an automobile, and murder of the victim. With all of these crimes included in his “intent and objective,” a temporary concealment of most of the crimes coupled with a professed guilty conscience and surrender to police, followed by a plea of guilty to the sole crime of stealing the automobile would, according to the “intent and objective” theory, secure him immunity for all time from subsequent prosecution on the other crimes. According to the Neal quotation, “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 true rule in California has been, and should continue to be, that which is enunciated and applied in In re Chapman (1954) 43 Cal.2d 385, 388-390 [2-8] [273 P.2d 817], particularly as summarized at pages 389-390: “ [6] The applicability of section 654 depends upon whether a separate and distinct *404act can be established as the basis of each conviction. [Citation.] Multiple convictions have been affirmed in eases in which separate and divisible acts have been proved as the basis of each conviction even though those acts were closely connected in time and were part of the same criminal venture. [Citations.] [7] It is only when the two offenses are committed by the same act or when that act is essential to both that they may not both be punished. [Citations.] ” (Italics added.) Each of the crimes of the defendant in the hypothetical case would require a separate act; hence, under the Chapman rule, each could be charged and separately punished; the defendant would gain no immunity from punishment for his other crimes by confessing and suffering punishment for stealing the automobile. Even though the extortion, forgery, kidnaping, robbery and the murder, might not be discovered for years the guilty defendant would still be liable to trial and punishment for each of them because each of them was a separate crime done by a separate act, notwithstanding all “were incident to one objective. ’’ (See also People v. Brown (1958) 49 Cal.2d 577, 590-593 [13] [320 P.2d 5].) The Chapman-Brown rule is not only better law; it is better penology.
It is appropriate also to point out that denial of prohibition in the case at bench is required by at least three separate and independent grounds in addition to the one relied on by the majority.
First: “The doctrine of double jeopardy [if on any theory that doctrine might otherwise be urged as applicable here] has no application to a defendant who is tried but once on several counts.” (People v. Chessman (1951) 38 Cal.2d 166, 193 [33-35] [238 P.2d 1001]. The defendant-petitioner here has been tried but once on several counts. All of the counts together are embodied in and constitute but a single prosecution. That prosecution is not complete until disposition has been made of each count. The prosecution on the murder counts will not be complete until the penalty as to each of those counts has been lawfully determined, sentence thereon pronounced, and execution of the sentence commenced. Execution of sentence imposing the penalty, whether it be death or imprisonment in a felony case, commences when the defendant is delivered into the control of the officer charged with executing the sentence. (People v. McAllister (1940) 15 Cal.2d 519, 526 [2] [102 P.2d 1072] ; accord: People v. Thomas (1959) 52 Cal.2d 521, 529-531 [5-8] [342 P.2d 889].)
*405With respect to jeopardy this court declared in In re Wilson (1925) 196 Cal. 515, 524 [5] [238 P. 359] : “ [T]he constitutional guarantee [as to double jeopardy] has no application to the service of a sentence, but applies only to twice being put upon trial for the same offense. ’ ’ Manifestly the proceeding to determine and to pronounce sentences for the convictions obtained (whether by pleas of guilty or otherwise) in the only trial as to the issue of guilt does not constitute putting the defendant again “upon trial for the same offense.” To hold otherwise would mean that the procedure established by Penal Code sections 190 and 190.1 could never result in imposition of sentence because every defendant in a capital ease would have been in jeopardy before the proceeding to fix and impose the penalty could commence. The concept of jeopardy having once attached as constituting a bar to conviction of a particular offense in a subsequent prosecution has no proper application to the completion of the original prosecution; i.e., as applicable here, to the fixing of penalty on a final judgment of conviction in the very prosecution in which the jeopardy is claimed to have attached. If the defendant could not be sentenced to any penalty on the murder counts then the jeopardy which precludes the sentence would have obliterated the entire prosecution on those counts! Manifestly neither the doctrine of former jeopardy nor the proscription of double punishment by Penal Code section 654 has any proper application to the procedure prescribed by Penal Code sections 190 and 190.1 for fixing the penalty after conviction of murder of the first degree.
Second: As to the proscription of multiple punishments for one act as laid down in Penal Code section 654 our decisions have consistently recognized the physical law, and obediently held, that there can be no such thing as multiple punishments for one act where one of the punishments is death. “Penal Code, section 654, specifically proscribes double punishments rather than double convictions. A single act constituting an essential element of two separately charged crimes may result in initial conviction of both crimes but only one—the more serious offense—will be punished. [Citations.] Where the more serious offense carries the death penalty no useful purpose would be served by reversal of the conviction for the less serious offense.” (People v. Chessman (1959) 52 Cal.2d 467, 495-496 [19] [341 P.2d 679], cert, denied, 361 U.S. 925 [80 S.Ct. 296, 4 L.Ed.2d 241] ; see also People v. Carter (1961) *40656 Cal.2d 549, 565 [11] [15 Cal.Rptr. 645, 364 P.2d 477] ; People v. Wein (1958) 50 Cal.2d 383, 409-410 [42] [326 P.2d 457] ; People v. Brown (1958), supra, 49 Cal.2d 577, 590-593 [13] ; People v. Smith (1950) 36 Cal.2d 444, 448 [4b] [224 P.2d 719] ; People v. Knowles (1950) 35 Cal.2d 175, 186-189 [13a, 14] [217 P.2d 1].)
On this phase of the matter it is further pointed out that if upon retrial of the penalty issue for the two first degree murder counts the punishment is fixed at death, such punishment would be greater than the life imprisonment sentences for the kidnaping offenses, and it would be the latter sentences that would fall. Moreover, as pointed out by the Attorney General, under the provisions of section 669 of the Penal Code if sentences of life imprisonment should be imposed as to the two murder counts they would as a matter of statutory law merge with the sentences of life imprisonment without possibility of parole as to the kidnaping offenses, thus obviating t'he possibility of double punishment in such event.
Third: It is, and at least since 1869 has been, the law of this state that a defendant cannot on appeal secure the reversal (or by habeas corpus, the vacation) of a judgment and thereafter successfully interpose the special plea of former jeopardy or former conviction as a defense on retrial. (See e.g., People v. Webb (1869) 38 Cal. 467, 480 ; People v. Tong (1909) 155 Cal. 579, 583 [102 P. 263, 132 Am.St.Rep. 110, 24 L.R.A. N.S. 481] [“It is now the generally accepted American doctrine that ‘whenever a verdict . . . has been rendered . . . and the defendant for any cause moves in arrest of judgment, or applies to the court to vacate a judgment already entered, ... he will be presumed to waive any objection to being put a second time in jeopardy; and so he may ordinarily be tried anew’ ”] ; People v. Stratton (1934) 136 Cal.App. 201, 207 [4], 208 [8] [28 P.2d 695] ; People v. Green (1956) 47 Cal.2d 209, 235 [302 P.2d 307] [“[14] Inasmuch as the original sentence is set aside at the behest of the defendant it cannot be successfully pleaded as constituting former jeopardy”] ; People v. Mills (1957) 148 Cal.App.2d 392, 394 [1] [306 P.2d 1005].)
For each and all of the reasons hereinabove stated I concur in the judgment discharging the alternative writ and denying the petition for writ of prohibition.
McComb, J., concurred.