People v. Hicks, 408 P.2d 747 (Cal. 1965). · Go Syfert
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People v. Hicks, 408 P.2d 747 (Cal. 1965). Cases Citing This Book View Copy Cite
143 citation events (1 in the last 25 years) across 2 distinct courts.
Treatment trajectory · 1966 → 2026 · click a year to view as-of
1966 1996 2026
Top citers, strongest first. 28 distinct citers. How cited ↗
discussed Cited as authority (rule) People v. Scott
Cal. · 1994 · confidence medium
(See, e.g., People v. Hicks (1993) 6 Cal.4th 784 , 788 & fn. 4 [ 25 Cal.Rptr.2d 469 , 863 P.2d 714 ]; Harrison, supra, 48 Cal.3d 321, 335-338 ; People v. Perez (1979) 23 Cal.3d 545, 552-554 [ 153 Cal.Rptr. 40 , 591 P.2d 63 ]; People v. Hicks (1965) 63 Cal.2d 764, 766 [ 48 Cal.Rptr. 139 , 408 P.2d 747 ].) We recognize that a few cases have rejected the notion that “any” touching of an underage child with the requisite intent violates section 288.
discussed Cited as authority (rule) People v. Scott
Cal. · 1994 · confidence medium
(See, e.g., People v. Hicks (1993) 6 Cal.4th 784 , 788 & fn. 4 [ 25 Cal. Rptr.2d 469 , 863 P.2d 714 ]; Harrison, supra, 48 Cal.3d 321, 335-338 ; People v. Perez (1979) 23 Cal.3d 545, 552-554 [ 153 Cal. Rptr. 40 , 591 P.2d 63 ]; People v. Hicks (1965) 63 Cal.2d 764, 766 [ 48 Cal. Rptr. 139 , 408 P.2d 747 ].) [7] We recognize that a few cases have rejected the notion that "any" touching of an underage child with the requisite intent violates section 288.
discussed Cited as authority (rule) People v. Hicks (2×)
Cal. · 1993 · confidence medium
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 sing…
discussed Cited as authority (rule) People v. Harrison (2×)
Cal. · 1989 · confidence medium
For example, in People v. Hicks (1965) 63 Cal.2d 764, 766 [ 48 Cal. Rptr. 139 , 408 P.2d 747 ], we held that section 654 did not preclude separate punishment for three sex offenses, even though defendant was convicted of two counts of oral copulation and one of sodomy against the same victim in the same sexual encounter.
cited Cited as authority (rule) People v. Traina
Cal. Ct. App. · 1985 · confidence medium
(People v. Hicks (1965) 63 Cal.2d 764, 766 [ 48 Cal.Rptr. 139 , 408 P.2d 747 ].) The law does not require that defendant be given the benefit of the more favorable of two applicable statutes.
discussed Cited as authority (rule) People v. Szarvas
Cal. Ct. App. · 1983 · confidence medium
The appropriate procedure on appeal after the erroneous imposition of double punishment is to eliminate the effect of the judgment as to the lesser offense insofar as the penalty alone is concerned.” (People v. Hicks (1965) 63 Cal.2d 764, 765-766 [ 48 Cal.Rptr. 139 , 408 P.2d 747 ].) *523 We therefore stay execution of the sentence imposed for the conviction of petty theft pending the service of the sentence imposed for the conviction of Penal Code section 653h.
cited Cited as authority (rule) People v. Rance
Cal. Ct. App. · 1980 · confidence medium
(People v. Hicks (1965) 63 Cal.2d 764, 765 [ 48 Cal.Rptr. 139 , 408 P.2d 747 ].) 3 However, no modification of the judgment is necessary.
discussed Cited as authority (rule) People v. Alva
Cal. Ct. App. · 1979 · confidence medium
To the same effect see People v. Hicks (1965) 63 Cal.2d 764, 766 [ 48 Cal.Rptr. 139 , 408 P.2d 747 ]; and People v. Edwards (1970) 12 Cal.App.3d 87, 92 [ 90 Cal.Rptr. 475 ] Further, Penal Code section 654, which prohibits multiple punishment for a single act, does not bar the imposition of separate sentences in this case.
discussed Cited as authority (rule) People v. Patterson
Cal. Ct. App. · 1979 · confidence medium
However, it does forbid the imposition of multiple punishment on criminal convictions growing out of a single act (In re Ward (1966) 64 Cal.2d 672, 676 [ 51 Cal.Rptr. 272 , 414 P.2d 400 ]; People v. Hicks (1965) 63 Cal.2d 764, 765-766 [ 48 Cal.Rptr. 139 , 408 P.2d 747 ]).
discussed Cited as authority (rule) People v. Robinson
Cal. Ct. App. · 1977 · confidence medium
(People v. Hicks (1965) 63 Cal.2d 764, 766 [ 48 Cal.Rptr. 139 , 408 P.2d 747 ].) The Supreme Court’s rule dictates that the trial court’s action in sentencing defendant on both the count of oral copulation and that charging rape be affirmed.
discussed Cited as authority (rule) People v. DeVaney
Cal. Ct. App. · 1973 · confidence medium
(See People v. McFarland, 58 Cal.2d 748, 762-763 [ 26 Cal. Rptr. 473 , 376 P.2d 449 ]; People v. Hicks, 63 Cal.2d 764, 766 [ 48 Cal. Rptr. 139 , 408 P.2d 747 ]; In re Pratt, 66 Cal.2d 154, 156-157 [ 56 Cal. Rptr. 895 , 424 P.2d 335 ] [modified 5 Cal.3d 46 ( 95 Cal. Rptr. 11 , 484 P.2d 1355 )]; People v. Diaz, 66 Cal.2d 801, 807 [ 58 Cal. Rptr. 729 , 427 P.2d 505 ]; People v. Rosenberg, 212 Cal. App.2d 773, 777 [ 28 Cal. Rptr. 214 ]; In re Keller, 232 Cal. App.2d 520, 523 [ 42 Cal. Rptr. 921 ]; People v. Brumley, 242 Cal. App.2d 124, 131 [ 51 Cal. Rptr. 131 ]; People v. Johnson, 242 Cal. App.2d…
discussed Cited as authority (rule) People v. DeVaney
Cal. Ct. App. · 1973 · confidence medium
(See People v. McFarland, 58 Cal.2d 748, 762-763 [ 26 Cal.Rptr. 473 , 376 P.2d 449 ]; People v. Hicks, 63 Cal.2d 764, 766 [ 48 Cal.Rptr. 139 , 408 P.2d 747 ]; In re Pratt, 66 Cal.2d 154, 156-157 [ 56 Cal.Rptr. 895 , 424 P.2d 335 ] [modified 5 Cal.3d 46 ( 95 Cal.Rptr. 11 , 484 P.2d 1355 )]; People v. Diaz, 66 Cal.2d 801, 807 [ 58 Cal.Rptr. 729 , 427 P.2d 505 ]; People v. Rosenberg, 212 Cal.App.2d 773, 777 [ 28 Cal.Rptr. 214 ]; In re Keller, 232 Cal.App.2d 520, 523 [ 42 Cal.Rptr. 921 ]; People v. Brumley, 242 Cal.App.2d 124 ,. 131 [ 51 Cal.Rptr. 131 ]; People v. Johnson, 242 Cal.App.2d 870, 876 …
discussed Cited as authority (rule) People v. Venegas
Cal. Ct. App. · 1970 · confidence medium
(See, e.g., In re Ward (1966) 64 Cal.2d 672, 676 [ 51 Cal.Rptr. 272 , 414 P.2d 400 ], cert. denied 385 U.S. 923 [ 17 L.Ed.2d 147 , 87 S.Ct. 238 ]; People v. Hicks (1965) 63 Cal.2d 764, 765-766 [ 48 Cal.Rptr. 139 , 408 P.2d 747 ].) “ ‘Section 654 has been applied not only where there was but one “act” in the ordinary sense . . . but also where a course of conduct violated more than one statute and the problem was whether it comprised a divisible transaction which could be punished under more than one statute within the meaning of section 654.’ (People v. Brown, supra [(1958) 49 Cal.2d…
discussed Cited as authority (rule) People v. Beasley (2×)
Cal. Ct. App. · 1970 · confidence medium
(People v. Hicks (1965) 63 Cal.2d 764, 766 [ 48 Cal.Rptr. 139 , 408 P.2d 747 ].
discussed Cited as authority (rule) People v. Thomas
Cal. Ct. App. · 1970 · confidence medium
(People v. Hicks, 63 Cal.2d 764, 766 [ 48 Cal.Rptr. 139 , 408 P.2d 747 ]; People v. Gomez, 252 Cal.App.2d 844, 859-860 [ 60 Cal.Rptr. 881 ].) Penal Code section 669, provides, as pertinent, “When any person is convicted of two or more crimes ... if the punishment for any of said crimes is expressly prescribed to be life imprisonment . . . then the terms of imprisonment on the other convictions . . . shall be merged with and run concurrently with such life term. . . .” (See also, In re Ward, 64 Cal.2d 672, 678 [ 51 Cal.Rptr. 272 , 414 P.2d 400 ].) Accordingly, the two life sentences imposed…
examined Cited as authority (rule) People v. Cline (3×)
Cal. Ct. App. · 1969 · confidence medium
One line of cases emphasizing the intent and objective of the actor, have uniformally struck down multiple punishment by application of the following formula, "Whether a course of criminal conduct is divisible and consequently gives rise to more than one act within the meaning of section 654 of the Penal Code is determined by the intent and objective of the actor. [Citation.]" ( People v. Diaz (1967) 66 Cal.2d 801, 807 [ 58 Cal. Rptr. 729 , 427 P.2d 505 ] [assault with a deadly weapon and an act in violation of section 288a found incident to same objective as burglary]; In re McGrew (1967) 66 …
examined Cited as authority (rule) People v. Cline (3×)
Cal. Ct. App. · 1969 · confidence medium
One line of cases emphasizing the intent and objective of the actor, have uniformally struck down multiple punishment by application of the following formula, “Whether a course of criminal conduct is divisible and consequently gives rise to more than one act within the meaning of section 654 of the Penal Code is determined by the intent and objective of the actor. [Citation.]” (People v. Diaz (1967) 66 Cal.2d 801, 807 [ 58 Cal.Rptr. 729 , 427 P.2d 505 ] [assault with a deadly weapon and an act in violation of section 288a found incident to same objective as burglary]; In re McGrew (1967) 6…
discussed Cited as authority (rule) In Re Hayes
Cal. · 1969 · confidence medium
Illustrating this application of Neal are People v. McFarland (1962) 58 Cal.2d 748, 760-762 [ 26 Cal.Rptr. 473 , 376 P.2d 449 ] (burglary with intent to commit larceny and the larceny); People v. Hicks (1965) 63 Cal.2d 764, 765-766 [ 48 Cal.Rptr. 139 , 408 P.2d 747 ] (burglary with intent to commit sexual felonies and the consummated sex offenses); In re McGrew (1967) 66 Cal.2d 685, 688 [ 58 Cal.Rptr. 561 , 427 P.2d 161 ] (same); In re Cruz (1966) 64 Cal.2d 178, 180-181 [ 49 Cal.Rptr. 289 , 410 P.2d 825 ] (conspiracy to commit grand theft and grand theft); In re Romano (1966) 64 Cal.2d 826, 82…
discussed Cited as authority (rule) In re Hayes
Cal. · 1969 · confidence medium
Illustrating this application of Neal are People v. McFarland (1962) 58 Cal.2d 748, 760-762 [ 26 Cal.Rptr. 473 , 376 P.2d 449 ] (burglary with intent to commit larceny and the larceny); People v. Hicks (1965) 63 Cal.2d 764, 765-766 [ 48 Cal.Rptr. 139 , 408 P.2d 747 ] (burglary with intent to commit sexual felonies and the consummated sex offenses); In re McGrew (1967) 66 Cal.2d 685, 688 [ 58 Cal.Rptr. 561 , 427 P.2d 161 ] (same); In re Cruz (1966) 64 Cal.2d 178, 180-181 [ 49 Cal.Rptr. 289 , 410 P.2d 825 ] (conspiracy to commit grand theft and grand theft); In re Romano (1966) 64 Cal.2d 826, 82…
discussed Cited as authority (rule) In Re Hayes
Cal. · 1969 · confidence medium
Illustrating this application of Neal are People v. McFarland (1962) 58 Cal.2d 748, 760-762 [ 26 Cal. Rptr. 473 , 376 P.2d 449 ] (burglary with intent to commit larceny and the larceny); People v. Hicks (1965) 63 Cal.2d 764, 765-766 [ 48 Cal. Rptr. 139 , 408 P.2d 747 ] (burglary with intent to commit sexual felonies and the consummated sex offenses); In re McGrew (1967) 66 Cal.2d 685, 688 [ 58 Cal. Rptr. 561 , 427 P.2d 161 ] (same); In re Cruz (1966) 64 Cal.2d 178, 180-181 [ 49 Cal. Rptr. 289 , 410 P.2d 825 ] (conspiracy to commit grand theft and grand theft); In re Romano (1966) 64 Cal.2d 826…
discussed Cited as authority (rule) People v. Armstrong
Cal. Ct. App. · 1968 · confidence medium
In People v. Gomez (1967) 252 Cal.App.2d 844 [ 60 Cal.Rptr. 881 ], and People v. Hicks (1965) 63 Cal.2d 764, 766 [ 48 Cal.Rptr. 139 , 408 P.2d 747 ], the appellate courts held that Penal Code, section 654, does not prohibit punishment for Penal Code, section 288a (oral copulation) and Penal Code, section 286 (sodomy) since these offenses involve separate and distinct acts.
discussed Cited as authority (rule) People v. Gomez
Cal. Ct. App. · 1967 · confidence medium
(People v. Hicks, 63 Cal.2d 764, 766 [ 48 Cal.Rptr. 139 , 408 P.2d 747 ].) The conviction and sentence for kidnaping for the purpose of robbery, in violation of Penal Code section 209, is likewise a separate and distinct crime from the violations of sections 288a and 286.
discussed Cited as authority (rule) People v. Lindsey
Cal. Ct. App. · 1967 · confidence medium
It is stated in People v. Hicks, 63 Cal.2d 764, 765-766 [ 48 Cal.Rptr. 139 , 408 P.2d 747 ] : " Section 654 of the Penal Code prohibits *11 double punishment, but it does not prohibit double conviction. 1 Hence, conduct giving rise to more than one offense, within the meaning of the statute, may result in initial conviction of both crimes, only one of which, the more serious offense, may be punished.
discussed Cited as authority (rule) People v. Root
Cal. Ct. App. · 1966 · confidence medium
The appropriate procedure on appeal is to eliminate the effect of the judgment as to the lesser offense insofar as the penalty is concerned (People v. Hicks, 63 Cal.2d 764, 767 [ 49 Cal.Rptr. 139 , 408 P.2d 747]; People v. McFarland, 58 Cal.2d 748, 762-763 [ 26 Cal.Rptr. 473 , 370 P.2d 449 ]).
discussed Cited as authority (rule) In re Ward
Cal. · 1966 · confidence medium
(People v. Hicks, 63 Cal.2d 764, 765 [2, 3] [ 48 Cal.Rptr. 139 , 408 P.2d 747 ]; People v. McFarland, 58 Cal.2d 748, 762-763 [14, 15] [ 26 Cal.Rptr. 473 , 376 P.2d 449 ].) Under the above rules, even if petitioner had not intended to rob Mr. Bass when he first abducted him, the kidnaping became kidnaping for the purpose of robbery when he actually did rob him.
discussed Cited as authority (rule) People v. Hernandez
Cal. Ct. App. · 1966 · confidence medium
Respondent contends the sentence on count 3, i.e., the driving while intoxicated charge, did not violate the foregoing rules; the proscription of section 654 applies only to double punishment and not double conviction (People v. Hicks, 63 Cal.2d 764, 765 [ 48 Cal.Rptr. 139 , 408 P.2d 747 ]); and no double punishment is imposed in this case because execution of the sentence on count 3 was stayed.
discussed Cited as authority (rule) People v. Brumley
Cal. Ct. App. · 1966 · confidence medium
The gist of McFarland is “that the divisibility of a course of conduct depends upon the intent and objective of the defendant; and that if all the offenses are incident to one objective, the defendant may be punished for any one of them but not for more than one.” (P. 760) (See also People v. Teale, 63 Cal.2d 178, 198 [ 45 Cal.Rptr. 729 , 404 P.2d 209 ]; People v. Ridley, 63 Cal.2d 671, 677 [ 47 Cal.Rptr. 796 , 408 P.2d 124 ]; People v. Hicks, 63 Cal.2d 764, 765-766 [ 48 Cal.Rptr. 139 , 408 P.2d 747 ].) People v. White, supra, cited by plaintiff, does not mention intent as to each crime in…
examined Cited "see, e.g." People v. Smith (3×)
Cal. Ct. App. · 1971 · signal: see also · confidence low
(People v. Armstrong, 268 Cal.App.2d 324 [ 74 Cal.Rptr. 37 ]; see also People v. Hicks, 63 Cal.2d 764 [ 48 Cal.Rptr. 139 , 408 P.2d 747 ]; People v. Hurd, 5 Cal.App.3d 865 [ 85 Cal.Rptr. 718 ].) The judgment is modified by striking therefrom the words “and the defendant was armed as alleged in each of said counts I, II, and III of the information.” As so modified, the judgment is affirmed.
Retrieving the full opinion text from the archive…
THE PEOPLE, and
v.
JOHN HENRY HICKS, and
Crim. No. 9115.
California Supreme Court.
Dec 23, 1965.
408 P.2d 747
McComb.
Cited by 44 opinions  |  Published
McCOMB, J.

Defendant appeals from a judgment, after a jury trial, finding him guilty on two counts of violating section 459 of the Penal Code (burglary), two counts of violating section 288a of the Penal Code (sex perversions), and one count of violating section 286 of the Penal Code (crime against nature). The burglaries were found to be of the first degree.

Facts: On February 21, 1963, defendant entered a house with intent to commit a felony against a certain young female. After entering, he committed three sex offenses upon her. These offenses consisted of two violations of section 288a of the Penal Code and one violation of section 286 of the Penal Code. On February 25, 1963, defendant again entered the house with intent to commit a felony, but he did not accomplish his purpose.

The trial court imposed consecutive sentences for each of these violations.

Question: Did the trial court err in imposing punishment for both the burglary committed on February 21, 1963, and the sex offenses?

Yes. As conceded by the People, it was improper to impose punishment for both the burglary committed on February 21, 1963, and the sex offenses to which such burglary was incident and as a means of perpetrating which it was committed. (People v. McFarland, 58 Cal.2d 748, 762 [11b] [26 Cal.Rptr. 473, 376 P.2d 449] ; People v. Gay, 230 Cal.App.2d 102, 105 [5] [40 Cal.Rptr. 778].)

Section 654 of the Penal Code prohibits double punishment, but it does not prohibit double conviction.[1] Hence,[*766] conduct giving rise to more than one offense, within the meaning of the statute, may result in initial conviction of both crimes, only one of which, the more serious offense, may be punished. The appropriate procedure on appeal after the erroneous imposition of double punishment is to eliminate the effect of the judgment as to the lesser offense insofar as the penalty alone is concerned. (People v. McFarland, supra, 58 Cal.2d 748, 762-763 [14-15].)

Since the sex offenses in the present ease were separate and distinct acts, defendant can be punished separately for each offense. (People v. Slobodion, 31 Cal.2d 555, 561-563 [6] [191 P.2d 1]; cf. People v. Gay, supra, 230 Cal.App.2d 102, 105 [5]; People v. Tenner, 67 Cal.App.2d 360, 364 [5] [154 P.2d 9].)

Accordingly, the determination as to which may be punished, the burglary or the sex offenses, rests upon a consideration of whether the punishment for the three sex offenses is greater than the punishment for the burglary.

The maximum punishment for a violation of section 286 of the Penal Code is life imprisonment.[2] The maximum punishment for a violation of section 288a of the Penal Code is imprisonment for 15 years. Therefore, the maximum punishment for the three sex offenses amounts to a life term plus 30 years’ imprisonment.

The maximum punishment for burglary is life imprisonment (Pen. Code, §§ 461, 671), the maximum punishment for the three sex offenses is greater than that for the burglary. Accordingly, since the burglary was merely incidental to the sex offenses, the imposition of punishment for each of the three sex offenses should be affirmed, and the judgment reversed insofar as it imposes a sentence for the burglary committed on February 21, 1963.

No contention is made that defendant was not properly sentenced for the burglary committed on February 25, 1963. That burglary occurred on a separate date and had no con[*767] neetion with the sex offenses of which defendant was found guilty.

The judgment is reversed insofar as sentence was imposed on the burglary conviction on count I and affirmed in all other respects.

Traynor, C. J., Peters, J., Tobriner, J., Peek, J., Mosk, J., and Burke, J., concurred.

1

Section 654 of the Penal Code provides, in part: “An 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 ease can it be punished under more than one

2

Although section 286 of the Penal Code prescribes a minimum punishment of imprisonment in the state prison for not less than one year, no maximum term is specified. Section 671 of the Penal Code, however, provides in part: “Whenever any person is declared punishable for a crime by imprisonment in the state prison for a term not less than any specified number of years, and no limit to the duration of such imprisonment is declared, punishment of such offender shall be imprisonment during his natural life. ...” Therefore, a violation of section 286 of the Penal Code can be punished by life imprisonment. (Cf. People v. Brooks, 131 Cal. 311, 316 [63 P. 464]; People v. Winthrop, 118 Cal. 85, 93 [50 P. 390].)