This Article proposes to clarify this area of criminal practice. California Penal Code § 1023, prohibiting multiple prosecutions, and California Penal Code § 654, prohibiting multiple punishment for the same act or omission, are often misapplied by the California criminal courts. California Penal Code § 1023 sets down two tests to determine whether jeopardy has attached: the "identity of the offense" test and the "necessarily included offense" test. California Penal Code § 654 proscribes double punishment using concurrent sentencing, and prevents double jeopardy using not only the "necessarily included offense" test from § 1023, but also a broader "indivisible transaction" test. Case law in this area has broadened the individual's right not to be subject to multiple prosecutions and to be free from multiple punishments.
Michael J. Bruce,
Double Jeopardy v. Double Punishment--Confusion in California,
San Diego L. Rev.
Available at: https://digital.sandiego.edu/sdlr/vol2/iss1/7