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People v. Davalos4/15/1987
APPELLATE DEPARTMENT, SUPERIOR COURT, LOS ANGELES
Crim. A. No. 23984
1987.CA.40776 ; 238 Cal. Rptr. 50; 192 Cal. App. 3d Supp. 10
April 15, 1987
THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
MARTIN ROBERT DAVALOS, DEFENDANT AND APPELLANT
Municipal Court for the Los Angeles Judicial District of Los Angeles County, No. V-215756, Sandy R. Kriegler, Judge.
Nathan Misraje for Defendant and Appellant.
James K. Hahn, City Attorney, William N. Sterling and Frank M. Horowitz, Deputy City Attorneys, for Plaintiff and Respondent.
Opinion by Soven, J., with Cooperman, P. J., and Reese, J., concurring.
Soven
Defendant was arrested while driving under the influence of PCP. He was convicted by a jury of several offenses, including violations of Vehicle Code section 23152, subdivision (a) ("driving while under the influence") and Health and Safety Code section 11550, subdivision (b) ("using or being under the influence of a controlled substance.") The trial court imposed a separate sentence for each of the above offenses. We affirm.
Discussion
Defendant contends that the trial court violated Penal Code section 654 in imposing sentence both for violating section 23152, subdivision (a) and section 11550, subdivision (b). We do not agree. We conclude that each charge was a separate punishable offense and did not constitute a single course of conduct for which multiple punishment was improper.
Penal Code section 654 states in pertinent part: "An act . . . which is made punishable in different ways by different provisions . . . may be punishable under either of such provisions, but in no case can it be punished under more than one . . ."
The prohibition against multiple punishment is designed to insure that a defendant's punishment will be commensurate with his criminal liability (Neal v. State of California (1960) 55 Cal. 2d 11, 20 [9 Cal. Rptr. 607, 357 P.2d 839]); the prohibition does not apply where each offense is divisible, none facilitates the commission of the other or is committed as a means of committing the other, and none is incidental to the commission of the other. (People v. Smith (1984) 155 Cal. App. 3d 539, 544-545 [202 Cal. Rptr. 259].)
First, contrary to defendant's contention, the offenses involved are
neither necessarily included (see Gilbert v. Municipal Court (1977) 73 Cal. App. 3d 723, 727 [140 Cal. Rptr. 897]) nor based on the same act, since a violation of section 11550 involves specified controlled substances without a prescription while a violation of section 23152 involves "any drug, . . ."
Second, no single course of conduct is involved. "The initial inquiry in any section 654 application is to ascertain the defendant's objective and intent. If he entertained multiple criminal objectives which were independent of and not merely incidental to each other, he may be punished for independent violations committed in pursuit of each objective even though the violations shared common acts or were parts of an otherwise indivisible course of conduct." (Peopl
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