In re Culbreth

*332 Opinion

The petitioner was found guilty, after a jury trial, of two. counts of second degree murder (Pen. Code, §§ 187, 189) and one count of voluntary manslaughter (Pen. Code, § 192, subd. 1). The jury also found that petitioner had been armed and had used a firearm, a rifle, in the commission of each of the offenses (Pen. Code, § 12022.5).

The trial judge sentenced petitioner to consecutive sentences on the two murder counts, and to a concurrent sentence on the manslaughter count. As to each count he declared in the judgment that a deadly weapon was used in the commission of the crime, thus purporting to apply the additional penalty presented in section 12022.5. 1

At the outset we point out that section 12022.5 does not enumerate manslaughter as an offense which, if committed by use of a firearm, invokes an additional penalty. In a prior unpublished decision the Court of Appeal modified the judgment to provide that section 12022.5 does not apply to count 3, the manslaughter conviction.

We proceed, then, to the primary issue: whether section 12022.5 may be applied to both of the other offenses separately if, as the evidence reveals, there was a single course of conduct…

I concur in denying the writ, but dissent from modifying the judgment. As a general rule, section 654 of the Penal Code prohibits multiple punishment when a single act or transaction is charged as multiple offenses. (In re Ward (1966) 64 Cal.2d 672, 675-676 [ 51 Cal.Rptr. 272 , 414 P.2d 400 ]; Neal v. State of California (1960) 55 Cal.2d 11, 19-20 [ 9 Cal.Rptr. 607 , 357 P.2d 839 ].) However, section 654 is inapplicable when the offenses arising from a single transaction are crimes of violence against multiple victims. (People v. Milan (1973) 9 Cal.3d 185, 197 [ 107 Cal.Rptr. 68 , 507 P.2d 956 ]; People v. Ridley (1965) 63 Cal.2d 671, 678 [ 47 Cal.Rptr. 796 , 408 P.2d 124 ]; Neal v. State of California, supra, 55 Cal.2d at pp. 20-21; see People v. Bauer (1969) 1 Cal.3d 368, 377-378 [ 82 Cal.Rptr. 357 , 461 P.2d 637 , 37 A.L.R3d 1398].) Accordingly, as petitioner expressly concedes, section 654 is inapplicable to the underlying murder convictions here.

Section 12022.5 does not state an offense; it merely provides additional punishment for certain offenses in which a firearm is used. (People v. Strickland (1974) 11 Cal.3d 946, 961 [ 114 Cal.Rptr. 632 , 523 P.2d 672 ]; People v.…