Error and/or relief
The trial court erred by imposing consecutive sentences for both assault (count 7) and carjacking (count 6). Remanded for resentencing.
First Holding:
The court was required under section 654 to stay the sentence imposed on one of the counts because both were based on the same physical act of driving a vehicle in a threatening manner. Section 654 allows the trial court to stay the sentence for either count 6 or count 7, at its discretion.
Authority:
PEN 654
Second Holding:
The enhancement for personal use of a firearm imposed on the carjacking count must be stricken because no evidence was presented that a firearm was employed during the commission of that offense and that the enhancement for infliction of great bodily injury on the murder count is prohibited by section 12022.7(g).
The Attorney General concedes the above enhancements must be stricken, noting that the information did not allege these enhancements and the jury made no such findings.
Authority:
PEN 12022.7(g)