Brown

A jury found defendant guilty of second degree murder of Lucy Sanchez (count 1) and abortion committed upon Lucy Sanchez (count 2) and upon Clara Thornton (count 3). Defendant appeals from the ensuing judgment of conviction. We have concluded that the judgment should be affirmed as to counts 1 and 3 but that as to count 2 the judgment should be reversed, not because there was any prejudicial error in the proceedings which led to the verdict of guilty on that count but because to permit convictions under both count 1 and count 2 to stand would violate the provision of section 654 of the Penal Code that "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 case can it be punished under more than one ..."

The abortion of Clara was committed on January 18, 1956, and the abortion and murder of Lucy were committed on January 26, 1956. Clara and Lucy resided together in Santa Maria. On January 18, 1956, Lucy had been pregnant for six months and Clara for three months. Clara testified as follows:

On January 18, Clara first met defendant Lois Brown, who said her name was…

A jury found defendant guilty of second degree murder of Lucy Sanchez (count 1) and abortion committed upon Lucy Sanchez (count 2) and upon Clara Thornton (count 3). Defendant appeals from the ensuing judgment of conviction. We have concluded that the judgment should be affirmed as to counts 1 and 3 but that as to count 2 the judgment should be reversed, not because there was any prejudicial error in the proceedings which led to the verdict of guilty on that count but because to permit convictions under both count 1 and count 2 to stand would violate the provision of section 654 of the Penal Code that “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 case can it be punished under more than one ...”

The abortion of Clara was committed on January 18, 1956, and the abortion and murder of Lucy were committed on January 26, 1956. Clara and Lucy resided together in Santa Maria. On January 18, 1956, Lucy had been pregnant for six months and Clara for three months. Clara testified as follows:

On January 18, Clara first met defendant Lois Brown, who said her name was Vi. Lucy had…

I dissent.

The precise question involved in this case was decided contrary to the contentions of the defendant by a unanimous court in People v. Coltrin, 5 Cal.2d 649 [ 55 P.2d 1161 ], and I can see no good reason or justification for overruling it. This court there construed the statute and the decision has been in effect for over 21 years. In the meantime the Legislature has not changed the law to conform to the views of the present majority of the court, which, contrary to the established law, now proceeds to legislate on the subject and thus to make it easier for a lawbreaker to escape the penalties of the law.

It is conceded that the defendant’s conduct as to Lucy Sanchez constituted a violation of both section 274 (abortion) and section 187 (murder) of the Penal Code. In the Coltrin case the defendant performed an illegal abortion which resulted in the death of the victim. He was convicted of both abortion and murder in the second degree. In affirming the judgment this court stated beginning at page 661: “ ‘The act of committing an abortion and the act of killing a person while attempting to do this are not merely the same act made punishable in different ways. Not only…