Tag Archives: Single Act as multiple crimes or strikes

Elements of crime

Case 001017

Posted on by Gary McCurdy

Error and/or relief

The defendant appeals from his convictions of two counts of misdemeanor battery. Appellant contends, and respondent agrees, that both counts are based on the same act and both convictions cannot stand.

Holding:

An amended information charged appellant in count 1 with battery with serious bodily injury in violation of Penal Code section 243(d) and in count 3 with battery with injury on a peace officer in violation of section 243(c)(2). A jury found appellant not guilty of both counts, and guilty of the lesser included offense of misdemeanor battery (sec. 242) for both counts. The defendant’s single head-butt resulted in two convictions for misdemeanor battery. Only one conviction can stand.

A defendant may not be convicted of multiple counts for the same offense based on a single criminal act.

Authority:

People v. Aguayo (2022) 13 Cal.5th 974, 994, fn. 8 [“we confirm that the same course of conduct may not form the basis of separate convictions for the same offense]

People v. Torres (2019) 39 Cal.App.5th 849, 858-859 [explaining that when a defendant is convicted of two of the same offenses based on the same act, the error cannot be corrected by simply staying the sentence on one count]

Discretion, Sentencing

Case 001007

Posted on by Gary McCurdy

Error and/or relief

This is an appeal after resentencing under section 1172.75. The court erred in believing that the original sentence was unauthorized because full consecutive sentences on two of the counts had been mandatory. Thus, it was error for the court to vacate the original imposition of concurrent sentences and impose them consecutively.

Holding:

The trial court was mistaken in its determination that the original sentence was unauthorized because full consecutive sentences on both counts were mandatory.

Both crimes were committed on the same occasion on the same victim. Therefore, while section 667.6(c) authorized consecutive sentencing on these two offenses, imposing full consecutive sentences for both offenses was not mandatory. Similarly, at resentencing, the court was not required to impose a full consecutive sentence.

The trial court appears not to have been aware of its discretion in this regard. We therefore remand to permit the court to resentence the defendant pursuant to section 1172.75.

Authority:

PEN 667.6(c)

People v. Deloza (1998) 18 Cal.4th 585, 596–597, 600 [remanding for resentencing where trial court misunderstood the scope of its discretion to impose concurrent sentences and erroneously believed consecutive sentences were mandatory]

People v. Flores (2020) 9 Cal.5th 371, 431–432 [when a trial court misunderstands or is unaware of the scope of its sentencing discretion, a reviewing court must remand for resentencing unless the record clearly indicates the trial court would have reached the same conclusion even if it had been aware that it had such discretion]

Abstracts and Minutes, Duty of the court, Sentencing

Case 001005

Posted on by Gary McCurdy

Error and/or relief

Section 654 barred punishment for the vandalism counts because those offenses involved the same course of conduct and objective as the attempted burglaries. We modify the judgment to impose concurrent terms on the three vandalism, stayed pursuant to section 654. The trial court is directed to prepare an amended abstract of judgment to reflect the corrected sentence

First Holding:

Section 654 generally precludes multiple punishments for a single physical act that violates different provisions of law as well as multiple punishments for an indivisible course of conduct that violates more than one criminal statute. Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.

If, on the other hand, the defendant entertained multiple criminal objectives that were independent of and not merely incidental to each other, he may be punished for independent violations committed in pursuit of each objective even though the violations shared common acts or were parts of an otherwise indivisible course of conduct.

Authority:

PEN 654

In re Raymundo M. (2020) 52 Cal.App.5th 78, 94

Second Holding:

When a trial court determines that section 654 prohibits multiple punishments, it must impose a sentence for the conviction for which punishment is disallowed but stay its execution. Dismissal or imposition of a concurrent sentence is prohibited.

Authority:

People v. Duff (2010) 50 Cal.4th 787, 796

Third Holding:

While the trial court’s abstract of judgment properly stayed execution of punishment on vandalism two of the three counts subject to section 654, the abstract of judgment is not the judgment of conviction and does not control when it differs from the trial court’s oral judgment.

Here, the court’s language at sentencing was ambiguous: it said the vandalism counts would be “concurrent” and they “are 654” without expressly staying imposition of the concurrent sentences. Because the trial court verbally imposed an unauthorized sentence in violation of section 654, we direct that the abstract of judgment be corrected to the extent necessary to comply with section 654.

Authority:

People v. Mitchell (2001) 26 Cal.4th 181, 185

Fines and fees, Gary Musings, Sentencing

Case 001000

Posted on by Gary McCurdy

Error and/or relief

The sentence on the defendant’s misdemeanor counts should have been stayed under section 654 as part of the same conduct as the felony.

First Holding:

Under rule 4.412(b), a defendant is estopped from challenging his or her sentence based on section 654’s prohibition of double punishment where the defendant agreed to a specified term in prison or county jail and is sentenced to that term or a shorter one. Rule 4.412(b) codifies one of the applications of the case law rule that defendants are estopped from complaining of sentences to which they agreed.

But in this case, the defendant did not expressly agree to any sentencing irregularity in exchange for a benefit. The record shows that it was an open plea, meaning that no promises were made as to his sentence. The defendant agreed that he could be sentenced to up to four years in one case and six years in the other, but those terms represented the maximum permitted for the offenses regardless of any plea agreementg. He faced anything up to and including the maximum term allowed.

Authority:

PEN 654

Cal. Rules of Court, rule 4.412(b)

People v. Hester (2000) 22 Cal.4th 290, 295

People v. Velasquez (1999) 69 Cal.App.4th 503

People v. Superior Court (Sanchez) (2014) 223 Cal.App.4th 567, 574–575

People v. Williams (1998) 17 Cal.4th 148, 156

People v. Henderson (2021) 67 Cal.App.5th 785, 788 [an open plea is one under which there is no promise about the nature or duration of the defendant’s sentence]

Second Holding (and Gary Musings):

In Jones, the defendant agreed to plead no contest to all charges and admit the enhancement allegations in exchange for a lid below the maximum term in sentencing. The lid was not the maximum exposure Jones would otherwise face absent the plea agreement. Rather, it restricted the sentence the trial court could impose but to a term less than Jones’s maximum exposure. It was not an open plea.

In Cole, the defendant pleaded guilty on the condition that his sentence would not exceed 25 years to life, whereas he was exposed to a term of 75 years to life but for the agreed lid. It, too, was not an open plea.

Thus, in Jones and Cole, the estoppel principle described in Hester applied, because the defendants were not permitted to complain on appeal about sentences that were limited by the terms of their pleas to something lower than the maximum that could have been imposed in the absence of their agreements.

That is not the case here, as the agreement did not specify a lid. There was simply a recognition of the maximum possible sentence that could be imposed for each count, regardless of any agreement.

(Gary note: In Jones and Cole, as stated in Jones, had they a problem with their sentences, they should have attempted to withdraw their pleas in the trial court when the sentences were imposed. Though not expressed, implicit in the court’s reliance on Cole and Jones as examples where estoppel applies is the recognition that an appeal from a denied motion to withdraw a plea requires a certificate of probable cause. For a pretty good discussion of certificates of probable cause, I have included Buttram in the Authority listed below, but it was not cited by or discussed in the opinion.

(If your client wishes to appeal after entering a plea agreement of any sort, you need to research whether a certificate of probable cause is required. If there is any chance at all that the appeal would undermine any of the terms of the plea agreement, a certificate is likely required. A common myth is that a certificate is not required to appeal any errors alleged to have occurred after the plea. Don’t fall for it. Instead, the focus is on the plea agreement itself. And the requirement of a certificate of probable cause is separate from the doctrine of estoppel addressed in this opinion. In Jones, there was no disagreement that omission of the application of section 654 created an unauthorized sentence. The obstacle was that the defendant was estopped from raising the issue because of his agreement.

(Although they’re all important, one must-read case is People v. Panizzon (1996) 13 Cal.4th 68, which I’ve listed below but was not cited by the court here. The defendant pleaded guilty with an agreement on the sentence. Unbeknownst to him at the time of his own sentencing, his co-defendants apparently received significantly lower sentences. He appealed, claiming his sentence was disproportionate. Because he had not sought and been issued a certificate of probable cause, the Supreme Court concluded his appeal should have been dismissed. His challenge to his sentence, even on constitutional grounds, was a challenge to his plea, and thus a certificate was required.

(Also note that, under section 1237.5(a), a certificate of probable cause can be issued only where the application for a certificate shows “reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings.”

(Although it is described as a certificate of probable cause, “it is not the trial court’s responsibility to determine if there was error in the proceedings. The trial court’s sole objective is to eliminate those appeals having no possible legal basis by refusing to issue a certificate of probable cause. See People v. Holland (1978) 23 Cal.3d 77, 84, quoting People v. Warburton (1970) 7 Cal.App.3d 815, 819. Holland also reminds us (in footnote 6) that a petition for writ of mandate is the means by which one may challenge a denial of an application for certificate of probable cause. Neither Holland nor Warburton were cited in the opinion, because a certificate of probable cause was not even an issue in the case.

(Until 2022, if it appeared to the clerk of the superior court that a notice of appeal from a guilty plea required a certificate of probable cause, the clerk would mark the notice received but inoperable. To get past that hurdle, the notice would have to reflect that it is a challenge to the sentence and was not a challenge to the plea (or that it was an appeal from a guilty plea after a denial of a motion to suppress evidence on search and seizure grounds under section 1538.5. Rule 8.304(b) was amended effective 1/1/22, and now provides that “If the defendant does not file the written statement required by Penal Code section 1237.5 or the superior court denies a certificate of probable cause, the appeal will be limited to issues that do not require a certificate of probable cause.” That was a vast improvement, from our defense perspective, because at least the notice of appeal initiated an appeal, albeit only on grounds not requiring a certificate.

(All of this Gary note is triggered by the court’s comment in Jones, cited by this court as distinguishable, that a defendant facing a 654 problem on an agreed-upon sentence must deal with it at the trial court level by moving to withdraw his or her plea timely. So this Gary note is really dealing with sub-sub-nonissues that I think you should nonetheless be aware of. Think of this lengthy aside as getting more for your money. Money? We ain’t got no money! We don’t need no money. You don’t have to show me any stinking money. Oops, sorry, got carried away a bit there.)

Authority:

People v. Jones (2013) 217 Cal.App.4th 735, 739

People v. Cole (2001) 88 Cal.App.4th 850, 856-858

People v. Hester (2000) 22 Cal.4th 290,

People v. Buttram (2003) 30 Cal.4th 773,

People v. Panizzon (1996) 13 Cal.4th 68

People v. Holland (1978) 23 Cal.3d 77, 84

People v. Warburton (1970) 7 Cal.App.3d 815, 819

Third Holding:

Section 654 precludes multiple punishments for a single act or indivisible course of conduct. Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one. If, on the other hand, defendant harbored multiple criminal objectives, which were independent of and not merely incidental to each other, he may be punished for each statutory violation committed in pursuit of each objective, “even though the violations shared common acts or were parts of an otherwise indivisible course of conduct.

Authority:

PEN 654

People v. Assad (2010) 189 Cal.App.4th 187, 200

People v. Rodriguez (2015) 235 Cal.App.4th 1000, 1005

Fourth Holding:

As there was no discussion at sentencing of section 654, we must affirm the sentence if an implied finding that section 654 does not apply is supported by substantial evidence. The record demonstrate that the defendant committed the offenses the misdemeanor cases with the objective to steal the contents of his victims’ vehicles. There is no evidence to support a finding that he formed a separate intent and objective for each offense for which he was sentenced. Accordingly, the sentences on the misdemeanor counts must be stayed.

Authority:

People v. Osband (1996) 13 Cal.4th 622, 730–731

People v. Coleman (1989) 48 Cal.3d 112, 162

Fifth Holding:

Separate restitution fines may be imposed for each case that are not consolidated, even if resolved jointly by plea bargain. Defendants who commit multiple crimes, and are consequently before the court in multiple cases when their pleas are taken, are properly subject to multiple fines. This straightforward application of the requirement that fines be imposed in every case serves the purpose of the state Restitution Fund, as well as the rehabilitative and deterrent functions of restitution fines.

Authority:

People v. Soria (2010) 48 Cal.4th 58, 64-66

Appellate Principles, Elements of crime, Sentencing

Case 000983

Posted on by Gary McCurdy

Error and/or relief

The convictions on counts 1 and 2 (domestic violence and assault with a deadly weapon) are based on the same act of striking the victim with his vehicle and therefore he cannot be punished for both.

First Holding:

Under section 654(a), 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. That the purpose of section 654 is to insure that a defendant’s punishment will be commensurate with the defendant’s culpability.

Authority:

PEN 654

People v. Latimer (1993) 5 Cal.4th 1203, 1211

Second Holding:

A substantial evidence standard of review applies to the trial court’s determination of the applicability of section 654. We review the trial court’s factual findings, express or implicit, in the light most favorable to the respondent and presume the existence of every fact the trial court could reasonably deduce from the evidence.

Authority:

People v. Kurtenbach (2012) 204 Cal.App.4th 1264, 1289

People v. Osband (1996) 13 Cal.4th 622, 730

People v. Hutchins (2001) 90 Cal.App.4th 1308, 1312–1313

People v. Moseley (2008) 164 Cal.App.4th 1598, 1603

Third Holding:

When confronted with offenses within the purview of section 654, the proper procedure is to stay execution of sentence on all but one of the offenses subject to this section. A concurrent sentence simply does not satisfy the prohibition against double punishment. We will therefore modify the judgment ourselves to stay the sentence on count 2 in accordance with section 654.

Authority:

People v. Pena (1992) 7 Cal.App.4th 1294, 1312

People v. Bey (2025) 108 Cal.App.5th 144, 167–168

People v. Alford (2010) 180 Cal.App.4th 1463, 1473 [exercising authority under sec. 1260 to modify judgment rather than remand as remedy for trial court’s failure to impose and stay sentence]

Elements of crime, Sentencing

Case 000982

Posted on by Gary McCurdy

Error and/or relief

The defendant was convicted of both carjacking and kidnapping for the purpose of carjacking for the same incident. He argues that the carjacking conviction must be reversed because it is a lesser included offense. We agree and reverse the carjacking conviction.

First Holding:

Carjacking is a necessarily lesser included offense of kidnapping during a carjacking.

Authority:

People v. Montes (2014) 58 Cal.4th 809, 898

In re B.J. (2020) 49 Cal.App.5th 646, 652

Second Holding:

When a defendant is convicted of a greater and a lesser included offense, reversal of the conviction for the lesser included offense is required.

Authority:

People v. Dowdell (2014) 227 Cal.App.4th 1388, 1416

Elements of crime, Sentencing, Standard of review, Sufficiency of and substantial evidence

Case 000974

Posted on by Gary McCurdy

Error and/or relief

Punishment for the defendant’s conviction of the false imprisonment count must be stayed under section 654.

First Holding:

Section 654(a) provides 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.

Section 654 does not prevent multiple convictions for the same conduct, only multiple punishments for a single, indivisible course of action. A defendant can be punished for multiple offenses where a course of conduct is divisible, giving rise to more than one act.

Authority:

People v. Perez (1979) 23 Cal.3d 545, 551

People v. Corpening (2016) 2 Cal.5th 307, 311

Second Holding:

To determine whether a course of conduct involving more than a single act is divisible for purposes of section 654, we consider whether the course of conduct included multiple intents and objectives.

If the defendant entertained multiple criminal objectives that were independent of and not merely incidental to each other, he may be punished for independent violations committed in pursuit of each objective even though the violations shared common acts or were parts of an otherwise indivisible course of conduct.

If all of the offenses were merely incidental 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. Corpening (2016) 2 Cal.5th 307, 311

People v. Beamon (1973) 8 Cal.3d 625, 639

People v. Harrison (1989) 48 Cal.3d 321, 335

Third Holding:

However, even if there is but a single objective for a course of conduct, a temporal break between individual acts may subject them to multiple punishments. This is particularly so where the offenses are temporally separated in such a way as to afford the defendant opportunity to reflect and to renew his or her intent before committing the next one, thereby aggravating the violation of public security or policy already undertaken.

In assessing whether section 654 applies, the court may consider a number of factors, including whether the defendant had multiple sequential intents, as well as whether he had the opportunity to pause and reflect before continuing his course of action.

Authority:

People v. Andra (2007) 156 Cal.App.4th 638, 640

People v. Surdi (1995) 35 Cal.App.4th 685, 689

Fourth Holding:

The question whether section 654 is factually applicable to a given series of offenses is for the trial court, and the law gives the trial court broad latitude in making this determination. Its findings on this question must be upheld on appeal if there is any substantial evidence to support them.

Thus, we review the record in the light most favorable to the judgment and uphold it if the record contains reasonable, credible evidence of solid value upon which a reasonable trier of fact could have relied in reaching the conclusion in question.

Ultimately, if the trier of fact determines the crimes have different intents and motives, multiple punishments are appropriate.

Authority:

People v. Hutchins (2001) 90 Cal.App.4th 1308, 1312

People v. Armstrong (2016) 1 Cal.5th 432, 450

People v. Saffle (1992) 4 Cal.App.4th 434, 439

Fifth Holding:

We agree that defendant cannot be subjected to multiple punishments for the false imprisonment conviction and the second domestic violence conviction. In closing argument, the prosecutor clarified that defendant was charged with false imprisonment for grabbing the victim by her hair as she ran toward the door and pulling her back toward the stairs, where he committed an additional act of domestic violence.

The false imprisonment and second domestic violence offenses were both committed to facilitate one assaultive objective.

Authority:

People v. Harrison (1989) 48 Cal.3d 321, 335

Sixth Holding:

As a result, the facts here are distinguishable from those in the cases relied upon by the Attorney General, where courts determined that section 654 did not require staying sentences for offenses committed after the other offense had already been completed.

Authority:

People v. Coleman (1989) 48 Cal.3d 112, 162-163 [the defendant had essentially completed the robbery before committing assault; court could reasonably conclude that the defendant committed the assault with the intent and objective of preventing the victim from sounding the alarm about the murder]

People v. Foster (1988) 201 Cal.App.3d 20, 27 [false imprisonment not necessary or incidental to commission of robbery because the act of locking the victims in a store cooler occurred only after the robbers had obtained all the money]

Seventh Holding:

Therefore, we shall vacate the sentence and remand the matter for a full resentencing.

Authority:

People v. Mani (2022) 74 Cal.App.5th 343, 379 [sec. 654 previously required court to impose sentence that provided for longest term of imprisonment, but now provides the trial court with discretion to impose sentence of either term]

People v. Buycks (2018) 5 Cal.5th 857, 893 [full resentencing as to all counts is appropriate to allow court to exercise its discretion in light of changed circumstances]

Discretion, Sentencing

Case 000966

Posted on by Gary McCurdy

Error and/or relief

The great bodily injury enhancement in connection with the kidnapping of the victim and the corporal-injury-on-a-child count both concern the same conduct, such that one of the sentences must be stayed under section 654.

Holding:

The great bodily injury enhancement in connection with the kidnapping of the victim and the corporal-injury-on-a-child count both concern the same conduct, such that one of the sentences must be stayed under section 654. We remand because the trial court has discretion where an act that is punishable in different ways by different provisions of law to punish a defendant under either of such provisions.

Authority:

PEN 654

People v. Mani (2022) 74 Cal.App.5th 343, 351

Sentencing

Case 000964

Posted on by Gary McCurdy

Error and/or relief

(Gary note: This was not a win, but has section 654 principles of importance.)

There are some sentencing errors related to counts 2, 3 and 4. The court imposed one-third the midterm on each of counts 2 and 3, which it stayed under section 654, and it imposed a concurrent one-third the midterm on count 4.

It was error to impose and stay sentences under section 654 based on 1/3 the middle term, and it was error to impose a concurrent term at 1/3 the middle term.

First Holding:

If a court makes multiple terms concurrent, they must all be full terms, not one-third the midterm. Because concurrent terms are not part of the principal and subordinate term computation under section 1170.1(a), they are imposed at the full base term, not according to the one-third middle term formula, even though they are served at the same time.

A concurrent term begins when it is imposed and runs together with the other terms, with the latest expiring term controlling.

Authority:

PEN 669

PEN 1170.1(a)

People v. Quintero (2006) 135 Cal.App.4th 1152, 1156, fn. 3, disapproved on another ground in People v. Poisson (2016) 246 Cal.App.4th 121, 125

People v. Bruner (1995) 9 Cal.4th 1178, 1182, fn. 3

People v. Matthews (1999) 70 Cal.App.4th 164, 169, fn. 4

Second Holding:

Section 654 prohibits multiple punishment where the same act or omission or a course of conduct deemed to be indivisible in time results in multiple statutory violations. A trial court must determine whether to stay execution of a sentence under section 654, thereby avoiding multiple punishment, before deciding whether to impose concurrent or consecutive sentences.

If the court decides to stay a sentence, it must impose and stay execution of the sentence on that count with no determination made as to whether it is consecutive or concurrent. This is because a term cannot be both consecutive and stayed simultaneously because the two are mutually exclusive.

Authority:

Cal. Rules of Court, rule 4.424

People v. Harrison (1989) 48 Cal.3d 321, 335

People v. Cantrell (2009) 175 Cal.App.4th 1161, 1164

People v. Bruner (1995) 9 Cal.4th 1178, 1182, fn. 3

Third Holding:

In addition, the one-third-the-midterm rule of section 1170.1(a) only applies to a consecutive sentence, not a sentence stayed under section 654. When a sentence is required to be stayed under section 654, the trial court should impose a full-term sentence to ensure the defendant’s punishment is commensurate with his criminal liability if the stay is lifted.

Accordingly, the trial court must impose a full term on any count that it stays under section 654. If the count for which sentence is not stayed is reversed or otherwise undone, imposition of sentence on the stayed count is preserved.

Authority:

People v. Cantrell (2009) 175 Cal.App.4th 1161, 1164

People v. Alford (2010) 180 Cal.App.4th 1463, 1468

Fourth Holding:

Here, the transcript of the sentencing hearing, the court’s sentencing minute order and the abstract of judgment reflect the court imposed unauthorized terms of one-third the midterm for counts 2, 3 and 4. Such unauthorized sentences are subject to correction on review.

Authority:

People v. Menius (1994) 25 Cal.App.4th 1290, 1295

Gary Bonus Note:

(In the last sentence of what I have called First Holding, the court states that a concurrent term begins to run when it is imposed. But there is a special provision under Penal Code section 1203.2a (no parentheses there) that every attorney should practically memorize. It is limited to cases where a defendant has been placed on probation in one case, then later is committed to state prison on another case.  Section 1203.2a can provide a benefit.

(Read it carefully. It appears to require proper steps by the defendant, though Hoddinott seems to hold otherwise. Why take the chance? Just do it right, and you won’t risk the Supreme Court changing its mind, right?

(But if events happen as described in section 1203.2a, the court has a limited time during which it has jurisdiction to act on the probation case, and failure to act within the limited time deprives the court of all jurisdiction to act on the probation case.

(Assuming the court acts timely and revokes probation and imposes a concurrent sentence, it will be deemed to have started from either the date probation was granted or from the date he was received in prison on the new offense.  In other words, far earlier than the date the court imposes execution of sentence on the probation revocation.  Section 1203.2a is designed to serve as an incentive for defendants to take care of outstanding cases when they are sent to prison.

(Again, read it carefully, and guide your client into fulfilling all the steps that serve to invoke section 1203.2a. Of course, if the court chooses to impose the sentence consecutively (assuming a timely action), the consecutive term will be served in a normal fashion.

(But section 1203.2a carries the possibility that untimely action by the court will deprive it of jurisdiction OR that, if the court is so inclined, a concurrent sentence starts at a much earlier time than the order revoking probation and committing the defendant to prison.

(An excellent analysis appears in In re Hoddinott (1996) 12 Cal.4th 992. Section 1202.2a requires the probation officer to report to the court whenever it learns a probationer has been committed to state prison. If the prisoner makes a request in conformity with the opening paragraph of the section, or if the probation learns about the new commitment from some other source, the probation officer must notify the court within 30 days. And here is Hoddinott’s summary of what happens if the probation officer or the court does not act timely:

(“In summary, we hold section 1203.2a’s final paragraph describes two events that will oust the court of jurisdiction: the probation officer’s failure to report the commitment to the court (in accord with paragraph two’s requirements) and the court’s failure to impose sentence within the time periods specified in the third paragraph. The probation officer’s 30-day reporting requirement is jurisdictional and applies once the defendant or other specified person has notified the probation officer in writing of the probationer’s subsequent state prison commitment, even though the written notice may not be a valid request for absentee sentencing.”)

Abstracts and Minutes, Sentencing

Case 000956

Posted on by Gary McCurdy

Error and/or relief

The trial court erred by imposing two concurrent sentences for firearm convictions based on the same, single act of possessing a firearm. We remand for resentencing.

First Holding:

The trial court imposed a middle term of four years for possession of a firearm. It then imposed concurrent sentences for carrying a loaded firearm and carrying a concealed firearm in a vehicle, all committed while having a prior felony conviction.

This sentence violates section 654’s prohibition of multiple punishment for a single act or omission, or an indivisible course of conduct. All three convictions were based on a single possession or carrying of a single firearm on a single occasion and may be punished only once under section 654.

Authority:

PEN 654(a) [an act punishable in different ways by different provisions of law shall not be punished under more than one provision]

People v. Deloza (1998) 18 Cal.4th 585, 591

People v. Jones (2012) 54 Cal.4th 350, 357

Second Holding:

That the concurrent sentences imposed for counts 7 and 8 are served simultaneously with the sentence for count 6 is inconsequential. A concurrent sentence is still a punishment subject to section 654. In these circumstances, the trial court was required to impose one sentence and to stay the execution of the duplicative sentence.

Authority:

People v. Duff (2010) 50 Cal.4th 787, 796

People v. Mani (2022) 74 Cal.App.5th 343, 380

Third Holding:

(Gary note: The opinion did not describe count 3 or what the oral pronouncement of sentence was for that count, but in the opinion’s disposition paragraph, the court included the following sentence: “The clerk of the superior court is also directed to correct the abstract of judgment to reflect the orally pronounced sentence on count 3.”

(That is the only reference to the abstract in the opinion. I include this as a “holding” because it represents yet another instance of where an abstract of judgment was apparently incorrect. The cases I have listed below are some of several cases that the court could have chosen to cite as authority for its order.

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

Abstracts and Minutes, Duty of the court, Sentencing

Case 000950

Posted on by Gary McCurdy

Error and/or relief

(Gary note: this is not necessarily a win, but I included it because it contains authority that might be useful at some point, if it works to the benefit of the defendant. In this instance, the court remanded for a full resentencing, which could be beneficial to the defendant, because the trial court should be able to consider his progress since the initial sentencing. Assuming there has been progress.

(Keep in mind the original section 1170(d)–which is not related to this case at all–that allowed a judge to recall a sentence at any time during the first 120 days after commitment. I think the concept was that maybe a judge could be persuaded to soften a bit once the defendant has some real time under his belt. Now, of course, the appropriate section has been redesigned and renumbered to 1170.1, which is not at issue in this case, either. But my point is that the defendant might be able to convince the judge to soften from the original sentence. On the other hand, the judge might simply add the full sentence allowed for the misdemeanor and run it consecutively. So, ….)

The trial court neglected to sentence the defendant on count 7, misdemeanor possession of a controlled substance. The failure to pronounce sentence on this count was error and that the appropriate remedy is remand for a full resentencing.

First Holding:

A trial court has a duty in both felony and misdemeanor cases to pronounce sentence on every conviction.

Authority:

PEN 12

PEN 1202

PEN 1445

People v. Eberhardt (1986) 186 Cal.App.3d 1112, 1121–1122

People v. Cheffen (1969) 2 Cal.App.3d 638, 641–642

People v. Morrow (1969) 275 Cal.App.2d 507, 514.)

People v. Codinha (2023) 92 Cal.App.5th 976, 994

In re Sandel (1966) 64 Cal.2d 412, 415

Second Holding:

The failure to pronounce sentence on a count is an unauthorized sentence and subject to correction on remand.

Authority:

People v. Price (1986) 184 Cal.App.3d 1405, 1411, fn. 6

People v. Benton (1979) 100 Cal.App.3d 92, 102 [failure to either strike or impose enhancement was analogous to a failure to pronounce sentence on all counts, which is the type of unauthorized sentence that can be corrected by remand on the defendant’s appeal]

Third Holding:

Even if the minute order or the abstract of judgment did reflect a sentence on count 7, failure to pronounce sentence orally renders the sentence unauthorized.

Authority:

People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2 [the record of the oral pronouncement of the court controls over the clerk’s minute order]

People v. Mesa (1975) 14 Cal.3d 466, 471 [rendition of judgment is an oral pronouncement and controls over minutes and abstract of judgment]

People v. Zackery (2007) 147 Cal.App.4th 380, 387–388

Fourth Holding:

Under these circumstances, we agree with the parties that the proper remedy is a remand for full resentencing.

Authority:

People v. Salazar (2023) 15 Cal.5th 416, 431 [remand is the default unless there is a clear indication from the sentencing court that it would be idle to do so]

People v. Codinha (2023) 92 Cal.App.5th 976, 994–995

People v. Burbine (2003) 106 Cal.App.4th 1250, 1257–1258 [finding full resentencing appropriate given the interlocking nature and inherently integrated nature of felony sentencing for a multiple-count conviction]

Fifth Holding:

Remand is appropriate for the additional reason that the trial court should decide whether section 654 applies to count 7 in the first instance.

(Gary note: The court did not mention it, because it really wasn’t even an issue raised and this mention was strictly in a footnote, but under section 654, the trial court could choose EITHER affected count to sentence the defendant under. So if the misdemeanor and a felony were subject to a single sentence under section 654, the court could impose the misdemeanor sentence and stay the felony sentence. Could happen.)

Authority:

People v. Deegan (2016) 247 Cal.App.4th 532, 545, fn. 4 [the question whether section 654 is factually applicable to a given series of offenses is for the trial court, and the law gives the trial court broad latitude in making this determination]

People v. Jones (2022) 79 Cal.App.5th 37, 46 [concluding in part that the need to apply section 654 warrants a full resentencing]

Elements of crime, Sentencing, Sixth Amendment, Standard of review

Case 000947

Posted on by Gary McCurdy

Error and/or relief

The defendant was convicted of kidnapping, attempting kidnapping, and false imprisonment, and was sentenced on all three. We vacate the false imprisonment conviction and stay the sentence on the attempted kidnapping under section 654.

First Holding:

The defendant contends that (1) his conviction for the attempted kidnapping must be reversed because the completed kidnapping conviction covers the same conduct; and (2) his conviction for false imprisonment must be reversed because it is a lesser-included offense of the completed kidnapping crime of which he was convicted.

We review de novo these legal questions of whether convictions merge.

Authority:

People v. Chun (2009) 45 Cal.4th 1172

Second Holding:

The crime of kidnapping is a continuing offense that begins once the victim is forcibly moved and continues until such time as the kidnapper releases or otherwise disposes of the victim and has reached a place of temporary safety. Thus, defendant could not stand convicted of two counts of kidnapping based on the uninterrupted, several-hour period where the defendant remained under defendant’s control.

Authority:

People v. Barnett (1998) 17 Cal.4th 1044, 1159

People v. Thomas (1994) 26 Cal.App.4th 1328, 1334-1335

Third Holding:

But the defendant stands convicted of kidnapping and attempted kidnapping.

Attempted kidnapping is no longer viewed as a lesser-included offense to the completed crime of kidnapping because the former requires proof of specific intent and the latter requires proof of asportation.

As a result, the rule that merges a completed crime with its lesser-included offense does not apply to the crimes of kidnapping and attempted kidnapping, and defendant is properly convicted of both crimes—but he cannot be sentenced on both crimes under section 654 given the uninterrupted kidnapping in this case.

Authority:

PEN 654

PEN 663

People v. Fontenot (2019) 8 Cal.5th 57, 76

People v. Medina (2007) 41 Cal.4th 685, 702

People v. Sanders (2012) 55 Cal.4th 731, 7

Fourth Holding:

Courts must determine the proper unit of prosecution for each crime based on whether the actus reus prohibited by the statute—the gravamen of the offense—has been committed more than once. This doctrine explains why there could only be a single count of kidnapping, but does not account for the fact that attempted kidnapping and completed kidnapping are separate crimes, and that it is possible for defendant to stand convicted of both crimes.

Authority:

People v. Wilson (2015) 234 Cal.App.4th 193, 199

Fifth Holding:

Unlike attempted kidnapping, the crime of false imprisonment is a lesser included offense of kidnapping. As a result, the lesser-included crime merges upon conviction of the greater offense, and defendant’s false imprisonment conviction based on the same underlying conduct must be vacated.

Authority:

People v. Delacerda (2015) 236 Cal.App.4th 282, 296

People v. Chacon (1995) 37 Cal.App.4th 52, 65

People v. Ratcliffe (1981) 124 Cal.App.3d 808, 820 [if both the false imprisonment count and kidnap[p]ing count relate to the same act, double conviction is prohibited]

People v. Jandres (2014) 226 Cal.App.4th 340, 362 [a defendant cannot be convicted of both an offense and a lesser offense necessarily included within that offense, based upon his or her commission of the identical act]

People v. Milward (2011) 52 Cal.4th 580, 589 [when the jury expressly finds defendant guilty of both the greater and lesser offense the conviction of [the greater offense is controlling, and the conviction of the lesser offense must be reversed]