Duffy v. State3/21/1990
lynn, 539 A.2d 1005, interference with a police officer was found to be a lesser included offense of assault on a police officer and, consequently, more than one conviction offended the constitutional prohibition against double jeopardy. However, the third count conviction in the case of reckless endangerment did not.
The test for California cases is whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the California statutory scheme to be determined by the intent and objectives of the actor, which is at least a part, albeit expanded, of the lesser included offense principle. In the case of Neal v. State, 55 Cal.2d 11, 9 Cal.Rptr. 607, 357 P.2d 839 (1960), cert. denied 365 U.S. 823, 81 S.Ct. 708, 5 L.Ed.2d 700 (1961), dual attempted murder constituted two offenses in the arson occurrence. The arson, however, when included with those two offenses and tested on appellate review by habeas corpus as an issue not raised on initial appeal, constituted a jurisdictional decision. The arson conviction was deleted. The same decisional process followed in People v. Bauer, 1 Cal.3d 368, 82 Cal.Rptr. 357, 461 P.2d 637 (1969), cert. denied 400 U.S. 927, 91 S.Ct. 190, 27 L.Ed.2d 187 (1970), where the defendant was convicted of burglary, robbery, grand theft and auto theft. Intent and objective as constituents of an indivisible transaction applied to offenses of robbery and auto theft foreclosed any dual sentence. The prior car theft burglary case of People v. Churchill, 255 Cal.App.2d 448, 63 Cal.Rptr. 312 (1967) was disapproved. Ratcliffe, 124 Cal.App.3d 808, 177 Cal.Rptr. 627 continued the examination of the intent and objective of the perpetrator to be applied to false imprisonment and kidnapping to establish a test to delivery whether separate punishment could be provided.
The Kentucky court in Gilbert v. Com., 637 S.W.2d 632 (Ky. 1982), cert. denied 459 U.S. 1149, 103 S.Ct. 794, 74 L.Ed.2d 998 (1983) considered convictions of attempted kidnapping, first degree wanton endangerment and first degree robbery of one female victim and rape and the kidnapping and robbery of another female. Possession and use of a pistol was not an offense separate from first degree robbery and, with the event of robbery close in distance and brief in time, required reversal of wanton endangerment and attempted kidnapping of one victim. In Wilson, 695 S.W.2d 854, a sequential application of the proof necessary to demonstrate the statutory elements of each offense permitted dual conviction of robbery and assault where the shooting occurred after the robbery had been completed. Polk v. Com., 679 S.W.2d 231 (Ky. 1984).
Aggravated assault and armed robbery provided the same result in Washington, 646 P.2d 314 where the shot was fired after the robbery had been completed as a sequential event. An earlier shot was denied as a basis for assault as too intertwined with the elements of armed robbery. The rule for Washington in determination of statutory intent to define a single crime which may be committed by different means or to define two crimes stated:
" here may be many factors that will aid the court, such as
title of the act;
whether there is a readily perceivable connection between the various acts set forth;
whether the acts are consistent with and not repugnant to each other;
and whether the acts may inhere in the same transaction."
State v. Arndt, 87 Wn.2d 374, 553 P.2d 1328, 1331 (1976) (quoting State v. Kosanke, 23 Wn.2d 211, 213, 160 P.2d 541, 542 (1945)).
Conduct of an egregiously bad husband and his array of convictions were addressed in Dubish, 675 P.2d 877, wh
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