Error and/or relief
We vacate the conviction for involuntary manslaughter, as it is a lesser included offense of the murder that she was also convicted of in a separate count. Section 654 requires stay of either the murder count or the child abuse count, because they were based on the same act. We remand to the trial court for it to determine which of the two sentences should be stayed.
[Gary note: There were two defendants, and the opinions, though separate, were virtually material, so I have summarize both in this single summary]First Holding:
We summarize the relevant facts pertinent to the issues raised on appeal, viewing the record in the light most favorable to the judgment.
Authority:
In re Jesus O. (2007) 40 Cal.4th 859, 861
People v. Johnson (1980) 26 Cal.3d 557, 578
Second Holding:
For Victim A’s death, the jury convicted the defendant of both second degree murder (count 1) and involuntary manslaughter (count 2). The parties agree, as do we, that, because substantial evidence supports the murder conviction, the involuntary manslaughter conviction must be vacated. A defendant cannot be convicted of both an offense and a necessarily lesser included offense based upon the commission of an identical act. In such a situation, the lesser included offense must be reversed. Involuntary manslaughter is a lesser included offense of murder. The defendant’s convictions were based on the same act. Accordingly, the conviction in count 2 must be vacated.
Authority:
People v. Sanders (2012) 55 Cal.4th 731, 736
People v. Munoz (2019) 31 Cal.App.5th 143, 153
Third Holding:
For the child abuse conviction in count 3 involving Victim A, the defendant received a sentence of four years in prison, which was to run concurrently to her indeterminate sentence for Victim A’s murder in count 1. Section 654 prohibits multiple punishment for a single act or course of conduct that violates more than one statute. Where all offenses are incident to one objective, the defendant may be punished for only one of them, and execution of sentence on the remaining counts must be stayed. Because the same act supports the convictions in counts 1 and 3, section 654 prohibits multiple punishment and requires that execution of sentence be stayed on one of those counts.
Authority:
PEN 654(a)
People v. Correa (2012) 54 Cal.4th 331, 337
Fourth Holding:
Under amended section 654, the sentencing court has discretion to determine which sentence should be stayed. This could result in the trial court imposing and executing the shorter sentence rather than the longer sentence. At sentencing in this matter, the trial court imposed a concurrent four-year term on count 3. Although the court’s decision to run the felony child abuse term concurrently suggests it would not stay the sentence for murder, nothing in the sentencing record affirmatively shows how the trial court would have exercised its discretion under section 654. Accordingly, we remand for resentencing so the trial court may determine in the first instance which sentence must be stayed under section 654.
Authority:
People v. Mani (2022) 74 Cal.App.5th 343, 379