People v. Hicks

MOSK, J., Dissenting.

In my view, Penal Code section 654 bars imposition of a full, consecutive term of imprisonment for defendant’s burglary conviction.1 The majority reach a contrary conclusion because they fail to apply standard canons of statutory construction. The result is the addition of three years to an absurd sentence of eighty years in prison.

It is my opinion that many criminal sentences have crossed the bounds of reason in this state. A sentence like the one imposed here, that cannot possibly be completed in the defendant’s lifetime, makes a mockery of the law and amounts to cruel or unusual punishment (Cal. Const., art. I, § 17; see Mosk, Nothing Succeeds Like Excess (1993) 26 Loyola L.A. L.Rev. 981.)

Defendant has not challenged his 80-year sentence for the offenses of which he stands convicted, and our order limits the issue presented in this case, so I will offer no more at this time on the constitutional problem presented by this sentence.

However, there is something unseemly in the eagerness of the People to argue that an ambiguous expression of the Legislature be interpreted to provide for the absolute maximum punishment, when defendant already stands sentenced to a term he will never live long enough to complete. Furthermore, I fail to understand the willingness of the majority of this court to twist the canons of statutory construction to assure that defendant’s ghost *798serves an additional three years in confinement—three years more than the eighty he is now ordered to serve. There is a point at which enough is enough.

Section 654 provides in pertinent part that “[a]n 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 . ...” A single continuous course of conduct in which several offenses are committed pursuant to a single objective gives rise to punishment for only one act under this provision. (People v. Perez (1979) 23 Cal.3d 545, 551 [153 Cal.Rptr. 40, 591 P.2d 63]; see also People v. Harrison (1989) 48 Cal.3d 321, 335 [256 Cal.Rptr. 401, 768 P.2d 1078].)

The People claim that section 667.6, subdivision (c), creates an exception to section 654. Section 667.6, subdivision (c), provides in pertinent part that a “full, separate, and consecutive term” may be imposed for certain sex offenses “whether or not the crimes were committed during a single transaction.” The People argue that the term “single transaction” is a reference to the principles of section 654.

It would be odd if the term “single transaction” in section 667.6, subdivision (c), were intended to refer to the rule of section 654, because in the context of forcible sex offenses such as those enumerated in section 667.6, section 654 generally does not bar multiple punishment. (People v. Harrison, supra, 48 Cal.3d at pp. 335-338; People v. Perez, supra, 23 Cal.3d at pp. 553-554; People v. Hicks (1965) 63 Cal.2d 764, 766 [48 Cal.Rptr. 139, 408 P.2d 747].) This is because the defendant is considered to have multiple criminal objectives when he commits multiple sex offenses during a single attack. (People v. Perez, supra, 23 Cal.3d at pp. 552-553.)

Under case law established before the enactment of section 667.6, then, no exception to section 654 would normally be necessary to achieve multiple sentences for the enumerated sex offenses committed during an indivisible transaction. The language under our review would therefore generally be surplusage if it were interpreted to refer to the principles of section 654. However, in interpreting statutes, we avoid interpretations that would cause language to be mere surplusage. (People v. Craft (1986) 41 Cal.3d 554, 559-560 [224 Cal.Rptr. 626, 715 P.2d 585].) The majority fail to abide by this rule.

If the term “single transaction” does not refer to the principles of section 654, what does it mean? The legislative history suggests that we may reasonably interpret the term “single transaction” in subdivision (c) as *799merely a description of the type of multiple sexual offenses for which full consecutive sentencing under section 667.6 is permissible, in contrast to the type of multiple offenses on separate occasions or against separate victims for which full consecutive sentencing is mandatory under section 667.6, subdivision (d).

The original form of the bill that ultimately enacted section 667.6 required full consecutive sentences for violations of section 288 with a single exception: “[U]nless such violation is committed upon one victim at the same proximate time and place as part of and in immediate conjunction with any other violation of this section upon such victim for which such term is imposed.” (Sen. Bill No. 13 (1979-1980 Reg. Sess.) § 7, p. 7, as introduced Dec. 4, 1978; see People v. Jones (1988) 46 Cal.3d 585, 597 [250 Cal.Rptr. 635, 758 P.2d 1165].) This language required mandatory full consecutive sentences, providing for discretion in sentencing only when the offenses were part of a single attack. This opening for sentencing discretion met with a challenge, and the bill was amended in the language with which the majority opinion begins its legislative history, that is, it was amended to provide that full consecutive sentencing would be mandatory with no exceptions, “whether or not the crimes were committed with a single intent or objective or during a single transaction.” (Sen. Amend, to Sen. Bill No. 13 (1979-1980 Reg. Sess.) Feb. 28, 1979, § 7, pp. 7-8.)2 A later amendment transferred this language to a new section 667.6. (Sen. Amend, to Sen. Bill No. 13 (1979-1980 Reg. Sess.) Mar. 5, 1979, § 10, pp. 15-16.)

As we have explained in an earlier case, the Legislature evidently found it too draconian to require full consecutive sentences in every case involving the enumerated sex offenses. (People v. Jones, supra, 46 Cal.3d at p. 598.) As a compromise, the phrase “single intent and objective” was deleted (see Sen. Amend, to Sen. Bill No. 13 (1979-1980 Reg. Sess.) July 5, 1979, § 10, pp. 12-13), subdivision (c) of section 667.6 was amended to be permissive, and subdivision (d) was added to specify under what conditions full consecutive sentences would be mandatory. (Sen. Amend, to Sen. Bill No. 13 (1979-1980 Reg. Sess.) Aug. 30, 1979, § 10, pp. 13-15.) We have already interpreted this legislative history along exactly these lines. (People v. Jones, supra, 46 Cal.3d at p. 598.) The conclusion is reasonable that these amendments, including the use of the phrase “whether or not the offense was committed during a single transaction,” illustrate the Legislature’s struggle *800to define when the sentencing court retains discretion whether to impose full, consecutive sentences, but not any intent to confront the separate and largely irrelevant problem of section 654.

At the very least, section 667.6, subdivision (c), is ambiguous on the question of the applicability of section 654. Courts of Appeal have disagreed in interpreting the language under our review. (Compare People v. Andrus (1990) 226 Cal.App.3d 73, 78-79 [276 Cal.Rptr. 30], and People v. Anderson (1990) 221 Cal.App.3d 331, 339-343 [270 Cal.Rptr. 516], with People v. Masten (1982) 137 Cal.App.3d 579, 589 [187 Cal.Rptr. 515].) It is not the case, as the majority claim, that the only reasonable interpretation of the subdivision is that it was intended to create an exception to section 654. On the contrary, under existing law, there was no reason for the Legislature to be concerned with section 654 in the context of sentencing for forcible sex offenses. Accordingly, we should adhere to the basic principle of construction that ambiguity in a penal statute should be interpreted in favor of the defendant. (People v. Davis (1981) 29 Cal.3d 814, 828 [176 Cal.Rptr. 521, 633 P.2d 186].) The judgment of the Court of Appeal should be affirmed and the matter should be remanded for resentencing.

Appellant’s petition for a rehearing was denied January 20, 1994. Mosk, J., was of the opinion that the petition should be granted.

Statutory references are to the Penal Code unless otherwise indicated.

The concern of the Senate Committee on the Judiciary, noted in the majority opinion, that this language might “mandate, in apparent disregard of Section 654, multiple punishments for sexual offenses committed during a single transaction,” seems to me to have been written in ignorance of the general rule that multiple sex offenses may be punished separately, despite section 654. (See, e.g., People v. Perez, supra, 23 Cal.3d at pp. 553-554.)