Error and/or relief
We direct the trial court to modify the judgment to correct a sentencing error on the defendant’s sentence for attempted kidnapping.
First Holding:
We review unauthorized sentences de novo. A computational error that leads to an unauthorized sentence can be corrected at any time.
Authority:
People v. Tua (2018) 18 Cal.App.5th 1136, 1140
People v. Turrin (2009) 176 Cal.App.4th 1200, 1205
Second Holding:
Kidnapping is punishable by three, five, or eight years in state prison. The sentence for an attempted offense is one-half of the sentence for the completed offense. Thus, attempted kidnapping would be punishable by 18 months, 30 months, or four years. However, any subordinate counts to be served consecutively are only given one-third of the middle term. Here, the trial court used count 2 (assault with a deadly weapon) as the principal count for the determinate term.
This made count 3, the attempted kidnapping, a subordinate term. Since the court imposed a consecutive sentence for this count, the court was only authorized to impose one-third of the middle term, which is 10 months. However, the court stated one-third the middle term was two years and six months. The court clearly intended to pronounce the correct sentence but miscalculated or misspoke as to the actual length of the term. The abstract of judgment reflects the incorrect calculation and should be amended to reflect 10 months for count 3.
Authority:
PEN 208
PEN 664
PEN 1170.1(a)
People v. Felix (2000) 22 Cal.4th 651, 655
People v. Wilson (2013) 219 Cal.App.4th 500, 518 [reviewing court has authority to correct unauthorized sentence]
Third Holding:
As to his convictions and punishment for murder and robbery, section 654 prohibits punishment for both murder and the target offense when the prosecution relies only on a theory of first degree felony murder. However, if the prosecution offers an alternate theory such as premeditation, and there is evidence to support the alternate theory, then the court may properly impose separate sentences for the murder and the underlying felony.
Authority:
People v. Carter (2019) 34 Cal.App.5th 831, 841
Fourth Holding:
We use the substantial-evidence standard to assess the trial court’s factual findings, implicit or explicit, of whether there was a course of conduct with a single criminal objective. We review the trial court’s legal conclusions de novo. We look at the entire record in the light most favorable to the verdict.
Authority:
People v. Moseley (2008) 164 Cal.App.4th 1598, 1603
People v. Perry (2007) 154 Cal.App.4th 1521, 1524
Fifth Holding:
Section 654(a) prohibits multiple punishments for actions that fall within the same course of conduct in which the perpetrator had a single intent and objective. A defendant may be punished only once if all the crimes were merely incidental to or were the means of accomplishing a single objective. If a defendant had multiple, independent criminal objectives, he or she may be punished for each crime, even if the crimes had common acts or were parts of an otherwise indivisible course of conduct. The applicability of section 654 turns on whether the defendant had multiple criminal objectives, not whether an act occurred during the commission of a crime.
Authority:
People v. Corpening (2016) 2 Cal.5th 307, 311
People v. Perry (2007) 154 Cal.App.4th 1521, 1525
People v. Rodriguez (2015) 235 Cal.App.4th 1000, 1007
Sixth Holding:
We review instructional error de novo. We view the challenged instruction in the context of the instructions as a whole and the trial record to determine whether there is a reasonable likelihood the jury applied the instruction impermissibly. We assume jurors are intelligent and capable of understanding and correlating instructions.
Authority:
People v. Ocegueda (2023) 92 Cal.App.5th 548, 557