Error and/or relief
The court erred by not staying punishment for the second count under section 654. Also, the court must recalculate the credit for time served on resentencing. Further, the abstract of judgment erroneously reflects that the defendant stands convicted of a count that was reversed in the prior appeal.
(Gary note: This was mentioned only in a footnote, and there was no express direction for correction. But the court did order resentencing “consistent with this opinion,” which most likely implies a direction that the subsequent abstract of judgment accurately reflect the record.)
First Holding:
Section 654(a) states 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.
Authority:
PEN 654(a)
Second Holding:
Whether a defendant may be subjected to multiple punishment under section 654 requires a two-step inquiry, because the statutory reference to an act or omission may include not only a discrete physical act but also a course of conduct encompassing several acts pursued with a single objective.
We first consider if the different crimes were completed by a single physical act. If so, the defendant may not be punished more than once for that act. Only if we conclude that the case involves more than a single act—i.e., a course of conduct—do we then consider whether that course of conduct reflects a single intent and objective or multiple intents and objectives. At step one, courts examine the facts of the case to determine whether multiple convictions are based upon a single physical act.
When those facts are undisputed the application of section 654 raises a question of law we review de novo. However, we review the trial court’s factual findings for substantial evidence.
Authority:
People v. Corpening (2016) 2 Cal.5th 307, 311–312
People v. Washington (2021) 61 Cal.App.5th 776, 795
Third Holding:
A review of the record indicates that there was but one act constituting the crime. Accordingly, the sentence on count 2 should have been stayed.
Authority:
PEN 654
Fourth Holding:
While we do not address the trial court’s failure to recalculate the defendant’s actual days of presentence custody credits because it was not raised by the defendant and we are remanding the matter for resentencing, we note that trial courts are required to do so.
Authority:
People v. Buckhalter (2001) 26 Cal.4th 20, 41
Fifth Holding:
(Gary note: the court mentioned in a footnote that the abstract incorrectly lists a conviction of an offense that was reversed in a prior appeal. It made no express direction for correct of the abstract, but there is much authority that would have supported such an order, some of which I set forth below.)
Authority:
People v. Mitchell (2001) 26 Cal.4th 181, 185
People v. Delgado (2008) 43 Cal.4th 1059, 1070
People v. Leon (2020) 8 Cal.5th 831, 855
In re Black (1967) 66 Cal.2d 881, 890
People v. Zackery (2007) 147 Cal.App.4th 380, 385
People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2