Error and/or relief
Penal Code section 654 prohibits punishment for both the murder and the burglary during which it occurred. In addition, the defendant is entitled to one more day credit for time served.
First Holding:
Section 654 provides in relevant part that an act or omission that is punishable in different ways by different provisions of law may be punished under either of such provisions, but in no case shall the act or omission be punished under more than one provision. It bars the imposition of multiple sentences for a single act or omission, even though the act or omission may violate more than one provision of the Penal Code. It has long been interpreted to preclude multiple punishments not only for a single act that violates more than one statute, but for an indivisible course of conduct. If all of the offenses were merely incident to, or were the means of accomplishing or facilitating one objective, defendant may be found to have harbored a single intent and therefore may be punished only once.
Authority:
People v. Dowdell (2014) 227 Cal.App.4th 1388, 1413
People v. Mejia (2017) 9 Cal.App.5th 1036, 1042–1043
Second Holding:
On appeal, we review factual determinations under the deferential substantial evidence test, viewing the evidence in the light most favorable to the People. We review de novo the legal question of whether section 654 applies.
Authority:
People v. Valli (2010) 187 Cal.App.4th 786, 794
Third Holding:
Burglary consists of entry into a house with the intent to commit a felony. Thus, ordinarily, if the defendant commits both burglary and the underlying intended felony, section 654 will permit punishment for one or the other but not for both. Here, the record reflects that the intent and objective of both the burglary and the murder were the same, and this was the prosecution’s theory of the case at trial. Accordingly, in light of the evidence introduced at trial, the jury instruction on burglary, and the prosecutor’s argument, substantial evidence does not support the trial court’s order to sentence defendant consecutively on these counts. Rather, one of the sentences on counts 1 or 2 should be stayed pursuant to section 654. And, because section 654 provides the court with discretion with regard to which sentence will be stayed, remand is necessary for the court to exercise its discretion in modifying defendant’s sentence.
[GARY NOTE: Don’t ignore the importance of this last statement. While it may be hard to imagine a case in which a judge would sentence on the burglary and stay the sentence for the murder, the judge does have that discretion under section 654. You may have a case where your client may be more sympathetic and the crimes not so divergent in their relative seriousness. It is not inconceivable that you could persuade a judge to impose and execute sentence on the lesser evil committed by your client, staying execution of the sentence on the more serious offense.]Authority:
People v. Centers (1999) 73 Cal.App.4th 84, 98
People v. Islas (2012) 210 Cal.App.4th 116, 130 [When a defendant is convicted of burglary and the intended felony underlying the burglary, section 654 prohibits punishment for both crimes]
Fourth Holding:
Defendant was entitled to one additional day of presentence custody credit because the court failed to include the day of his arrest.
Authority:
PEN 2900.5
People v. Taylor (2004) 119 Cal.App.4th 628, 647
People v. Valdes (2020) 53 Cal.App.5th 953, 955 [the day of arrest counts as a custody credit day]