Error and/or relief
The trial court should have stayed the sentence on one of the defendant’s convictions under section 654. Therefore, we modify his sentence to stay the sentence on that count. We also order the trial court to correct errors in the defendant’s abstract of judgment.
First Holding:
Section 654 provides that a defendant may be punished only once for an act or omission that is punishable in different ways by different provisions of law. The statute itself literally applies only where such punishment arises out of multiple statutory violations produced by the same act or omission. However, because the statute is intended to ensure that a defendant is punished commensurate with his culpability, its protection has been extended to cases in which there are several offenses committed during a course of conduct deemed to be indivisible in time. Where the defendant committed more than one offense during a course of conduct deemed to be indivisible in time, the court looks to the defendant’s intent and objective to determine whether any of the offenses are subject to section 654. Whether section 654 applies to a given case is a question of fact for the trial court. In this case, based on statements made by the court on more than one occasion, the only reasonable conclusion is that the court determined the assault with a semiautomatic firearm in count 12 involved the same act or criminal objective as the robbery against the same victim in count 10.
Authority:
PEN 654
People v. Mesa (2012) 54 Cal.4th 191, 193
People v. Harrison (1989) 48 Cal.3d 321, 335
People v. Jackson (2016) 1 Cal.5th 269, 354
Second Holding:
The abstract contains several errors. It stated that the court imposed, but stayed under section 654, several firearm and bodily injury enhancements on nine of the counts. In fact, however, the court dismissed those enhancements under section 1385. The abstract states that the sentences on three of the counts were full consecutive terms. In fact, the court imposed a consecutive term of one-third the midterm on each, as required under section 1170.1(a). And the abstract states that the total time on attached pages was four years and four months, whereas the actual total on the attached pages is fourteen years. On remand, the trial court shall ensure the amended abstract of judgment does not contain these errors.
[Gary note: The court did not cite authority for correction of the abstract of judgment, likely because it recognized there will be a new abstract of judgment issued to reflect the effect of section 654 on one of two counts. Had the Court of Appeal chosen to specifically order correction of the existing abstract, it would have found authority under one or more of the cases I have 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