Tag Archives: Single Act as multiple crimes or strikes

Sentencing

Case 000944

Posted on by Gary McCurdy

Error and/or relief

The jury convicted the defendant of grand theft of personal property and embezzlement by a clerk for stealing money from his employer. One of the convictions must be vacated, because they constitute different statements of the same offense.

First Holding:

The was improperly convicted of two theft offenses (grand theft and embezzlement by a clerk) in violation of section 954 because they were different statements of the same offense. Convictions for both grand theft by larceny (sec. 484(a)) and embezzlement (sec. 503) based on the same course of conduct cannot stand under section 954.

Authority:

People v. Vidana (2016) 1 Cal.5th 632, 635, 649-651

Second Holding:

Appellate courts have employed different approaches for remedying a section 954 violation.

Under the circumstances of this case, we deem it appropriate to follow the Shiga approach. We will therefore reverse the judgment and remand the matter to the trial court with instructions to reinstate the conviction on one of the two counts to be selected by the People, then resentence the defendant on only a single count of conviction.

At the resentencing, any fees imposed by the court must also reflect the appropriate amounts for only a single count of conviction.

Authority:

People v. Shiga (2019) 34 Cal.App.5th 466, 481, 483–484 (Shiga) [reversing two duplicative arson convictions and remanding for resentencing with instructions to trial court to reinstate the conviction on the one selected by the People]

People v. Coyle (2009) 178 Cal.App.4th 209, 217–218, 219 [consolidating three duplicative special circumstance murder counts into single count, reversing and vacating the other two murder convictions, and affirming the judgment as modified]

Sentencing, Standard of review, Sufficiency of and substantial evidence

Case 000936

Posted on by Gary McCurdy

Error and/or relief

The court should have stayed the defendant’s eight-month sentence for count 4 under section 654. The sole objective in possessing the firearm (count 3) and the ammunition (count 4) was to have an operable firearm. Accordingly, the possession offenses were part of an indivisible course of conduct and cannot be separately punished. We otherwise affirm the judgment.

First Holding:

During the defendant’s sentencing hearing, the court concluded that because the .22-caliber ammunition was not loaded into the .22 rifle, section 654 does not prohibit a separate punishment. And because possession of ammunition increases the ability to use the firearms and the danger, the court imposed sentences of one-third the middle term, or eight months, for each of counts 3 and 4.

Section 654(a) protects against multiple punishment where the crimes arise from either (1) the same act or omission or (2) an indivisible course of conduct united by a single intent and objective. Whether a course of conduct is indivisible depends upon the intent and objective of the actor. If all the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.

On the other hand, if the evidence discloses that a defendant entertained multiple criminal objectives that were independent of and not merely incidental to each other, he may be punished for the independent violations committed in pursuit of each objective even though the violations were parts of an otherwise indivisible course of conduct.

A trial court’s implied finding that a defendant harbored a separate intent and objective for each offense will be upheld on appeal if it is supported by substantial evidence.

Authority:

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

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

People v. Blake (1998) 68 Cal.App.4th 509, 512

Second Holding:

Courts have found section 654 prohibits punishing a defendant for both being a felon in possession of a firearm and unlawful possession of ammunition when all of the ammunition in question was loaded into the firearm or had been fired from it.

Authority:

People v. Broadbent (2020) 47 Cal.App.5th 917, 922

Third Holding:

Here, the .22-caliber rifle giving rise to count 3 and the same-caliber ammunition giving rise to count 4 were found in close proximity to each other. The defendant argues the only difference between this case and Broadbent and similar cases is that he safely stored the firearm separately, but in the same room as the ammunition. He contends that this difference is immaterial and does not demonstrate separate intents and objectives. We agree that drawing a distinction on this basis parses the objectives too finely.

Authority:

People v. Lopez (2004) 119 Cal.App.4th 132, 138

Fourth Holding:

Because the record is devoid of evidence to support the court’s implicit finding that the defendant harbored two different objectives in possessing both a rifle and nearby compatible ammunition, we conclude on this record that section 654 precludes multiple punishment for the defendant’s possession of a firearm as well as several rounds of ammunition just feet away.

Although not raised by the parties, section 1170.1(a)’s one-third the middle term rule does not apply to a sentence stayed under section 654. We therefore modify the stayed 8-month consecutive sentence to a stayed middle term of two years.

Authority:

People v. Relkin (2016) 6 Cal.App.5th 1188, 1197-1198

Abstracts and Minutes, Sentencing, Standard of review, Sufficiency of and substantial evidence

Case 000924

Posted on by Gary McCurdy

Error and/or relief

The abstract of judgment must be corrected to reflect that, in orally pronouncing sentence, the trial court stayed execution of the sentence imposed on count three pursuant to section 654. Further, the court orally pronounced that count four is the principal determinate term, whereas the abstract lists count three.

First Holding:

In orally pronouncing judgment, the trial court ordered execution of the sentence imposed on count three stayed under section 654. The abstract of judgment, however, does not reflect this pronouncement. The oral pronouncement of judgment controls over any discrepancy with the minutes or the abstract of judgment.

Authority:

People v. Sharret (2011) 191 Cal.App.4th 859, 864

Second Holding:

Section 654 provides, in pertinent part 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. There is a multiple victim exception to section 654 which allows separate punishment for each crime of violence against a different victim, even though all crimes are part of an indivisible course of conduct with a single principal objective.

Authority:

PEN 654

People v. Felix (2009) 172 Cal.App.4th 1618, 1630-1631

Third Holding:

The People did not raise in the trial court their argument that the court could not stay execution of the sentence on count three based on the multiple victim exception. In any event, whether section 654 applies is a factual question, and we review the trial court’s decision for substantial evidence.

In analyzing whether section 654 bars the imposition of multiple sentences, we consider the evidence in the light most favorable to the judgment and affirm the trial court’s sentencing decision—whether express or implied—if it is supported by substantial evidence.

Under this standard, this court must view the evidence in the light most favorable to the trial court’s finding and presume the existence of every fact the trial court could reasonably deduce from the record.

Because the trial court stayed execution of the sentence imposed on count three, we presume that the court implicitly found the multiple victim exception to section 654 inapplicable. The court’s implicit finding (that two others present at the shooting were not victims of the shooting) is supported by substantial evidence.

Authority:

People v. Jones (2002) 103 Cal.App.4th 1139, 1143

People v. Vasquez (2020) 44 Cal.App.5th 732, 737

People v. Ramirez (2021) 10 Cal.5th 983, 1042 [Absent evidence to the contrary, we presume that the trial court knew the law and followed it]

Fourth Holding:

The abstract of judgment must be corrected to reflect the oral judgment.

(Gary note: The court did not cite authority for this order, but there is plenty to be had. I have listed some that the court could have cited.)

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

Error and/or relief

The abstract of judgment must be corrected to reflect that, in orally pronouncing sentence, the trial court stayed execution of the sentence imposed on count three pursuant to section 654. Further, the court orally pronounced that count four is the principal determinate term, whereas the abstract lists count three.

First Holding:

In orally pronouncing judgment, the trial court ordered execution of the sentence imposed on count three stayed under section 654. The abstract of judgment, however, does not reflect this pronouncement. The oral pronouncement of judgment controls over any discrepancy with the minutes or the abstract of judgment.

Authority:

People v. Sharret (2011) 191 Cal.App.4th 859, 864

Second Holding:

Section 654 provides, in pertinent part 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. There is a multiple victim exception to … section 654 which allows separate punishment for each crime of violence against a different victim, even though all crimes are part of an indivisible course of conduct with a single principal objective.

Authority:

PEN 654

People v. Felix (2009) 172 Cal.App.4th 1618, 1630-1631

Third Holding:

The People did not raise in the trial court their argument that the court could not stay execution of the sentence on count three based on the multiple victim exception. In any event, whether section 654 applies is a factual question, and we review the trial court’s decision for substantial evidence.

In analyzing whether section 654 bars the imposition of multiple sentences, we consider the evidence in the light most favorable to the judgment and affirm the trial court’s sentencing decision—whether express or implied—if it is supported by substantial evidence.

Under this standard, this court must view the evidence in the light most favorable to the trial court’s finding and presume the existence of every fact the trial court could reasonably deduce from the record.

Because the trial court stayed execution of the sentence imposed on count three, we presume that the court implicitly found the multiple victim exception to section 654 inapplicable. The court’s implicit finding (that two others present at the shooting were not victims of the shooting) is supported by substantial evidence.

Authority:

People v. Jones (2002) 103 Cal.App.4th 1139, 1143

People v. Vasquez (2020) 44 Cal.App.5th 732, 737

People v. Ramirez (2021) 10 Cal.5th 983, 1042 [Absent evidence to the contrary, we presume that the trial court knew the law and followed it]

Fourth Holding:

The abstract of judgment must be corrected to reflect the oral judgment.

(Gary note: The court did not cite authority for this order, but there is plenty to be had. I have listed some that the court could have cited.)

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

Fifth Holding:

Add holding blurb here

Authority:

ADD AUTHORITIES HERE

Sixth Holding:

Add holding blurb here

Authority:

ADD AUTHORITIES HERE

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

Case 000908

Posted on by Gary McCurdy

Error and/or relief

The defendant was convicted of three charges, including two counts of conspiracy. Under the circumstances in this case, he could be convicted of only a single count of conspiracy. We reverse the conviction on count 3.

First Holding:

The defendant was charged with explosion causing mayhem and great bodily injury in count 1, conspiracy to discharge a firearm from a motor vehicle in count 2), and conspiracy to commit assault with a firearm in count 3. Both conspiracy convictions both convictions arose from a single agreement and the single criminal objective of shooting the victim.

A defendant may be convicted of only a single count of conspiracy based on a single agreement. It is well settled that the essence of the crime of conspiracy is the agreement, and thus it is the number of the agreements (not the number of the victims or number of statutes violated) that determine the number of the conspiracies. The gist of the crime of conspiracy is the agreement or confederation of the conspirators to commit one or more unlawful acts. The conspiracy is the crime, and that is one, however diverse its objects.

Authority:

People v. Meneses (2008) 165 Cal.App.4th 1648, 1669

People v. Lopez (1994) 21 Cal.App.4th 1551, 1557 [One agreement gives rise to only a single offense, despite any multiplicity of objects]

Braverman v. United States (1942) 317 U.S. 49, 53

Second Holding:

Where a defendant argues the evidence was insufficient to support a conviction, we review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.

We presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. This standard applies whether direct or circumstantial evidence is involved. The evidence presented in this case supports only that there was a single agreement to commit one shooting of the victim.

Authority:

People v. Prince (2007) 40 Cal.4th 1179, 1251

Third Holding:

That the single shooting may have violated two separate criminal statutes is immaterial.

Authority:

People v. Patrick (1981) 126 Cal.App.3d 952, 965 [noting that a single agreement to commit acts which, if completed, would constitute more than one substantive crime, is but a single conspiracy]

People v. Meneses (2008) 165 Cal.App.4th 1648, 1669 [Whether the object of a single agreement is to commit one or many crimes, it is in either case that agreement which constitutes the conspiracy which the statute punishes]

Fourth Holding:

If the felony is conspiracy to commit two or more felonies which have different punishments and the commission of those felonies constitute but one offense of conspiracy, the penalty shall be that prescribed for the felony which has the greater maximum term. Here, because the maximum punishment for count 2 is seven years and the maximum punishment for count 3 is four years , count 3, having the lesser maximum term, must be reversed.

Authority:

PEN 182(a)

Appellate Principles, Elements of crime, Juveniles, Sentencing, Standard of review, Sufficiency of and substantial evidence

Case 000875

Posted on by Gary McCurdy

Error and/or relief

We reverse four of the five counts of evading the police under Vehicle Code section 2800.3 and remand for a new disposition order.

The minor’s constitutional challenges to the dispositional order are forfeited on appeal, and we will not consider them.

First Holding:

Dispositional orders in juvenile matters are entrusted to the discretion of the juvenile court. Failure to object to a discretionary dispositional choice forfeits the claim on appeal.

But the forfeiture rule does not apply if the disposition is unauthorized; that is, if it could not lawfully be imposed under any circumstance in the particular case. In those situations, the unauthorized disposition presents a pure question of law.

The unauthorized sentence concept is a narrow exception to the general requirement that only preserved claims are reviewable on appeal. And while reviewing courts have the discretion to consider forfeited claims on appeal, they should do so rarely, keeping in mind that the forfeiture rule exists to encourage prompt detection and correction of error and to promote the state’s interest in finality of judgments.

Authority:

In re Greg F. (2012) 55 Cal.4th 393, 411

In re G.C. (2020) 8 Cal.5th 1119, 1130-1131

People v. Scott (1994) 9 Cal.4th 331, 351, 354

In re Sheena K. (2007) 40 Cal.4th 875, 885

People v. Fisher (2021) 71 Cal.App.5th 745, 751-752

In re H.D. (2024) 99 Cal.App.5th 814, 817-818

People v. Anderson (2020) 9 Cal.5th 946, 962 [the unauthorized sentence exception is designed to provide relief from forfeiture for obvious legal errors at sentencing such as a sentence in excess of the statutory maximum]

Second Holding:

Further, we disagree with the minor’s contention that his constitutional challenges to the disposition present pure legal questions. His challenges ask us to consider his self-evident lesser culpability relative to an older juvenile. But culpability determinations are for the trier of fact, not an appellate court.

Authority:

People v. Vang (2010) 184 Cal.App.4th 912, 915-916

Third Holding:

Finally, the minor contends we should consider his forfeited claims because his trial counsel provided ineffective assistance by failing to raise them. But trial counsel is not ineffective for failing to raise novel claims like the ones here.

Authority:

People v. Torres (2025) 113 Cal.App.5th 88, 92 [to forestall a claim of ineffective assistance of counsel, reviewing courts can exercise their discretion to reach the merits of the claim].

In re Grinder (2025) 114 Cal.App.5th 845, 871-872

People v. Foster (2003) 111 Cal.App.4th 379, 385.

Fourth Holding:

We decline to exercise any discretion we might have to consider these forfeited claims because doing so (1) would be unfair to the People and the juvenile court, which had no opportunity to address the claims below, and (2) would undermine both the state’s interest in finality of judgments and litigants’ incentive to seek correction of error in the first instance.

Further, we should not reach constitutional questions unless absolutely required to do so to dispose of the matter before us. Accordingly, the minor’s constitutional challenges to the dispositional order are forfeited on appeal, and we will not consider them.

Authority:

In re M.H. (2016) 1 Cal.App.5th 699, 713-714

In re G.C. (2020) 8 Cal.5th 1119, 1130-1131

People v. Scott (1994) 9 Cal.4th 331, 351,

Facebook, Inc. v. Superior Court (Hunter) (2018) 4 Cal.5th 1245, 1275, fn. 31

Fifth Holding:

Penal Code section 26 provides, in relevant part, that all persons are capable of committing crimes except those belonging to the following classes: One—Children under the age of 14, in the absence of clear proof that at the time of committing the act charged against them, they knew its wrongfulness. ….

Authority:

PEN 26

Sixth Holding:

Clear proof means clear and convincing evidence. The test on appeal is whether substantial evidence supports the conclusion of the trier of fact.

We review the entire record in the light most favorable to the judgment and affirm the juvenile court’s findings that the minor understood the wrongfulness of his conduct if they are supported by substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could have made the requisite finding under the governing standard of proof. In determining capacity the juvenile court must consider the child’s age, experience, and understanding.

A minor’s knowledge of his act’s wrongfulness may be inferred from the circumstances, such as the method of its commission or its concealment.

Authority:

In re Joseph H. (2015) 237 Cal.App.4th 517, 538-539

Seventh Holding:

While the language of the statute refers to knowledge of wrongfulness, the question is whether a minor appreciates the wrongfulness of their conduct. As minors approach the age of 14, they are increasingly likely to appreciate the wrongfulness of their acts.

Authority:

In re Manuel L. (1994) 7 Cal.4th 229, 232

People v. Cottone (2013) 57 Cal.4th 269, 281

In re J.E. (2020) 54 Cal.App.5th 309, 314

Eighth Holding:

Cases are not authority for propositions not considered.

Authority:

B.B. v. County of Los Angeles (2020) 10 Cal.5th 1, 11

Ninth Holding:

Four of the five Vehicle Code section 2800.3 true findings must be stricken. A charge of multiple counts of violating a statute is appropriate only where the actus reus prohibited by the statute—the gravamen of the offense—has been committed more than once. A defendant may properly be convicted of multiple counts for multiple victims of a single criminal act only where the act prohibited by the statute is centrally an act of violence against the person.

Authority:

Wilkoff v. Superior Court (1985) 38 Cal.3d 345, 349

People v. Garcia (2003) 107 Cal.App.4th 1159

Tenth Holding:

Vehicle Code section 2800.3 provides that whenever willful flight or attempt to elude a pursuing peace officer in violation of section 2800.1 proximately causes serious bodily injury or death, the person driving the pursued vehicle shall be punished. Felony evading, as defined by the Legislature, in Vehicle Code section 2800.3, is not a crime of violence.

Under Wilkoff and Garcia there can be only one Vehicle Code section 2800.3 true finding here. Thus, four of the five Vehicle Code section 2800.3 true findings must be stricken.

Authority:

VEH 2800.3

Wilkoff v. Superior Court (1985) 38 Cal.3d 345, 349

People v. Garcia (2003) 107 Cal.App.4th 1159, 1163

People v. Sanchez (2001) 86 Cal.App.4th 970, 973-974 [Because dispositive elements of Vehicle Code section 2800.3 can be satisfied by conduct that does not necessarily pose a high probability of death, it is not a felony inherently dangerous to human life.]

Eleventh Holding:

It is improper to raise new contentions in a reply brief. Further, appellate arguments may be deemed forfeited when they do not contain meaningful analysis and citation to supporting authority.

Authority:

People v. Taylor (2004) 119 Cal.App.4th 628, 642-643

People v. Stanley (1995) 10 Cal.4th 764, 793

Twelfth Holding:

In criminal court, when part of a sentence is stricken on review, on remand for resentencing a full resentencing as to all counts is appropriate, so the trial court can exercise its sentencing discretion in light of the changed circumstances. The same principle applies in juvenile court. Since we strike four of the juvenile court’s Vehicle Code section 2800.3 true findings, a new disposition is required.

Authority:

People v. Buycks (2018) 5 Cal.5th 857, 893

In re Shaun R. (2010) 188 Cal.App.4th 1129, 1140 [every time a ward appears for disposition, the court may consider the minor’s entire history and the order must be all encompassing]

Elements of crime, Sentencing

Case 000870

Posted on by Gary McCurdy

Error and/or relief

The trial court erred by not staying the term for conspiracy to commit murder.

Holding:

Section 654 provides that an act or omission that is punishable in different ways by different provisions of the 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.

The statute has long been interpreted to preclude multiple punishments not only for a single act that violates more than one statute, but for an indivisible course of conduct. In particular, a defendant may not be punished for both murder and conspiracy to commit murder. Thus, the sentence on the conspiracy count must be stayed.

Authority:

PEN 654

People v. Mejia (2017) 9 Cal.App.5th 1036, 1042

People v. Hernandez (2003) 30 Cal.4th 835, 866

People v. Vu (2006) 143 Cal.App.4th 1009, 1032–1033

People v. Alford (2010) 180 Cal.App.4th 1463, 1472

Eighth Amendment, Fines and fees, Sentencing

Case 000857

Posted on by Gary McCurdy

Error and/or relief

The court imposed an incorrect term for one of the counts of conviction. It appears that the court may not have considered whether section 654 applies to some counts. And the court’s medical costs order requires clarification.

First Holding:

The court imposed one year in the county jail for violation of Health and Safety Code section 11364 (possession of narcotics paraphernalia), a misdemeanor. Because there is no specific sentence defined for that offense, the general provisions of section 11374 apply.

Every person who violates or fails to comply with any provision of the division that includes section 11364, except one for which a penalty is otherwise in that division specifically provided, is guilty of a misdemeanor punishable by a fine in a sum not less than thirty dollars ($30) nor more than five hundred dollars ($500), or by imprisonment for not less than 15 nor more than 180 days.

It was error to impose a jail term greater than 180 days, and the sentence imposed was an unauthorized sentence.

Authority:

HSC 11364

HSC 11374

People v. Anderson (2010) 50 Cal.4th 19, 26 [a sentence is generally unauthorized when it cannot be lawfully imposed under any circumstance in a particular case]

Second Holding:

On remand, the trial court may reconsider all components of defendant’s sentence, including whether section 654 applies to counts 3 and 4.

Authority:

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

Third Holding:

The trial court ordered defendant to pay for his own medical costs or medical fees while incarcerated. The trial court was not authorized to require him to pay his medical costs or fees while in prison. The probation report cited section 4011 as the authority for the medical costs order, but that section applies only to medical care of prisoners while in a city or county jail and not costs incurred during state level incarceration.

Further, section 5007.5 prohibits the Secretary from imposing a fee for inmate-initiated medical visits in prison. The statute does not prohibit requiring a prisoner to pay any other medical fees or bills that may be charged to him while incarcerated.

On remand, the trial court is instructed to clarify its order requiring defendant to pay his medical costs and fees in accordance with Penal Code section 5007.5.

Authority:

PEN 5007.5 [prohibiting the Secretary of the Department of Corrections and Rehabilitation from charging a fee for an inmate-initiated medical visit of an inmate confined in the state prison.]

PEN 4011 [concerning incarceration in a city or county jail]

Appellate Principles, Discretion, Sentencing, Statutory interpretation

Case 000855

Posted on by Gary McCurdy

Error and/or relief

The trial court erred under section 654 by imposing concurrent sentences on three separate convictions arising from the same single act.

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. When a court determines that a conviction falls within the meaning of section 654, it is necessary to impose sentence but to stay the execution of the duplicative sentence. The imposition of concurrent sentences is precluded by section 654 because under such a sentence the defendant is deemed to be subjected to the term of both sentences although they are served simultaneously.

Authority:

PEN 654

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

People v. Mani (2022) 74 Cal.App.5th 343, 380 [The trial court is required to impose judgment on each count, which involves selecting a term, and then staying execution of the duplicative sentence, the stay to become permanent upon defendant’s service of the portion of the sentence not stayed.]

Second Holding:

Section 654 provides the trial court with discretion to impose and execute the sentence of either term, which could result in the trial court imposing and executing the shorter sentence rather than the longer sentence.

Authority:

PEN 654

People v. Mani (2022) 74 Cal.App.5th 343, 379

Third Holding:

One provision of the One Strike law, section 667.61(h)), states: “Notwithstanding any other law, probation shall not be granted to, nor shall the execution or imposition of sentence be suspended for, a person who is subject to punishment under this section.”

There is a split of authority over whether this provision precludes a sentencing court from staying execution of a One Strike sentence under section 654. We conclude that People v. Govan has the better reasons view of the interplay between section 667.61(h) and section 654.

Authority:

People v. Caparaz (2022) 80 Cal.App.5th 669

People v. Govan (2023) 91 Cal.App.5th 1015, 1032-1035 [Based on the Govan court’s review of legislative history, the “no suspension clause” must be read in the context of a bar against the grant of probation, and does not supersede section 654’s prohibition against multiple punishment, disagreeing with Caparaz.]

Fourth Holding:

When we interpret a statute, our fundamental task is to determine the Legislature’s intent so as to effectuate the law’s purpose.

We first examine the statutory language, giving it a plain and commonsense meaning. If the language is clear, courts must generally follow its plain meaning unless a literal interpretation would result in absurd consequences the Legislature did not intend.

If the statutory language permits more than one reasonable interpretation, courts may consider other aids, such as the statute’s purpose, legislative history, and public policy.

Furthermore, we consider portions of a statute in the context of the entire statute and the statutory scheme of which it is a part, giving significance to every word, phrase, sentence, and part of an act in pursuance of the legislative purpose.

Authority:

People v. Reynoza (2024) 15 Cal.5th 982, 989–990

Fifth Holding:

Courts have recognized that the suspension clause’s language has a technical meaning unique to a grant of probation. We therefore conclude the Legislature intended for section 667.61(h)’s suspension clause to have its technical, probation related meaning.

Indeed, as used in section 1203(a), “probation” means the suspension of the imposition or execution of a sentence and the order of conditional and revocable release in the community under the supervision of a probation officer.

When the Legislature uses a term of art, a court construing that use must assume that the Legislature was aware of the ramifications of its choice of language. We therefore conclude the Legislature intended for section 667.61(h)’s suspension clause to have its technical, probation related meaning.

Authority:

PEN 7(c) [Words and phrases shall be construed according to the context and the approved usage of the language, but technical words and phrases, and any others as may have acquired a peculiar and appropriate meaning in law, shall be construed according to that peculiar and appropriate meaning.]

People v. Govan (2023) 91 Cal.App.5th 1015, 1033

People v. Superior Court (Himmelsbach) (1986) 186 Cal.App.3d 524, 536, fn. 8 [the words ‘suspension of execution’ are employed in conjunction with a grant of probation and have developed into terms of art], (disapproved on another ground by People v. Norrell (1996) 13 Cal.4th 1, 7, fn. 3)

People v. Borynack (2015) 238 Cal.App.4th 958, 965

Ruiz v. Podolsky (2010) 50 Cal.4th 838, 850, fn. 3

Sixth Holding:

This interpretation is consistent with how some courts have interpreted similarly worded statutes. Many related criminal statutes with related purposes contain language identical to section 667.61(h). Courts have not historically interpreted similar statutory provisions as precluding a stay under section 654.

Authority:

People v. Gonzalez (2017) 2 Cal.5th 1138, 1141 [We consider the language of the entire scheme and related statutes, harmonizing the terms when possible.]

People v. Barela (1983) 145 Cal.App.3d 152, 160 [holding section 1203.06–with similar language–does not preclude a stay under section 654]

People v. Superior Court (Himmelsbach) (1986) 186 Cal.App.3d 524, 536, fn. 8 [rejecting as unpersuasive the contention that a prohibition on suspension of execution of sentence under repealed section 12311 precluded a stay under section 654]

Seventh Holding:

We presume that when the Legislature enacted section 667.61 in 1994 and amended it in 2006, the Legislature was aware of how courts had interpreted identical statutory language and that the Legislature intended for that interpretation to also apply to section 667.61.

Where legislation has been judicially construed and a subsequent statute on the same or an analogous subject uses identical or substantially similar language, we may presume that the Legislature intended the same construction, unless a contrary intent clearly appears.

Authority:

People v. Seumanu (2015) 61 Cal.4th 1293, 1367

Eighth Holding:

Finally, we are satisfied that interpreting section 667.61 as allowing a stay under section 654 is consistent with the One Strike law’s legislative purpose in imposing lengthy prison sentences for certain sex offenses.

Although interpreting section 667.61 this way allows for shorter sentences in some circumstances, it does not require it. Rather, it leaves the decision to the trial court’s sound sentencing discretion.

Authority:

PEN 654

People v. Reynoza (2024) 15 Cal.5th 982, 989

Ninth Holding:

When a sentencing court is unaware of the scope of its discretionary powers, the appropriate remedy is to remand for resentencing unless the record clearly indicates that the trial court would have reached the same conclusion even if it had been aware that it had such discretion.

In light of the presumption on a silent record that the trial court is aware of the applicable law, including statutory discretion at sentencing, we cannot presume error where the record does not establish on its face that the trial court misunderstood the scope of that discretion.

The record indicates, however, that the trial court did not understand the scope of its discretion. The court expressly stated it took no joy in imposing the harsh sentence, and that it had imposed counts concurrently wherever it could, but that it had no discretion to impose other than the harsh sentence–that the sentence it imposed were the only options.

Therefore, we must remand for resentencing given the extent of the court’s full discretion under section 654.

Authority:

People v. Salazar (2023) 15 Cal.5th 416, 424

People v. Gutierrez (2009) 174 Cal.App.4th 515, 527

(Gary note, of marginal historical interest: Prior to 1998, Penal Code section 654 had exactly the same language as it currently has, and a court was free to impose sentence on any one of the counts to which section 654 applied. See People v. Norrell (1996) 13 Cal.4th 1. In response to that Supreme Court decision, the Legislature amended section 654 to require that the court impose sentence on the count containing the longest potential term. Through AB 518, effective 1/1/2022, the Legislature restored section 654 to its former language, thus restoring to the court the discretion to choose on which count punishment should be imposed and executed.)

Abstracts and Minutes, Sentencing, Standard of review

Case 000845

Posted on by Gary McCurdy

Error and/or relief

The trial court incorrectly imposed a consecutive subordinate term for the child abuse and a concurrent term for the false imprisonment because those counts were stayed under Penal Code section 654.

The abstract of judgment does not reflect the correct amount of the defendant’s local conduct credits. We therefore exercise our inherent authority to modify the judgment to correct these errors.

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:

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.

We view the evidence favorably to support the judgment and presume every factual finding that could reasonably be deduced from the evidence.

Authority:

People v. Roles (2020) 44 Cal.App.5th 935, 946–947

Third Holding:

Because the court stayed counts 3 and 5 under section 654, count 3 should not be a consecutive one-third term and count 5 should not be concurrent. Remand is not necessary to correct these matters. The trial court clearly intended to impose the midterm for all counts and enhancements, and to stay execution of the sentences in counts 3 and 5 and the enhancement attached to count 5. We will therefore exercise our authority to modify the judgment to correct the unauthorized sentence.

Authority:

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

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

People v. Alford (2010) 180 Cal.App.4th 1463, 1473

Fourth Holding:

There were errors in the abstract of judgment, including the failure to mark that counts 3 and 5 were stayed under section 654, and reflected seven days credit for time served less than ordered by the court. We exercise our authority to correct this error as well

Authority:

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

Pleading, Statutory interpretation

Case 000843

Posted on by Gary McCurdy

Error and/or relief

Defendant’s two convictions for methamphetamine possession were based on the same act and one of them must therefore be reversed. Count 2 must be vacated. Because the record does not indicate defendant’s current status or the extent to which the invalid conviction may have influenced the trial court’s sentencing choices, we will remand the matter for appropriate action by the trial court.

First Holding:

A defendant may be charged in an accusatory pleading with two or more different offenses connected together in their commission and may be convicted of any number of the offenses charged, but if two alleged offenses are different statements of the same offense, both offenses may be charged based on the same act, but convictions for both cannot stand.

Authority:

PEN 954

People v. Aguayo (2022) 13 Cal.5th 974, 979

Second Holding:

The most reasonable construction of the language in Penal Code section 954 is that the statute authorizes multiple convictions for different or distinct offenses, but does not permit multiple convictions for a different statement of the same offense when it is based on the same act or course of conduct.

Authority:

People v. Vidana (2016) 1 Cal.5th 632, 650

Abstracts and Minutes, Sentencing, Standard of review

Case 000812

Posted on by Gary McCurdy

Error and/or relief

Intro The defendant pled guilty to felon in possession of a firearm, and unlawfully carrying a firearm with intent to commit a felony. The trial court sentenced defendant to two years state prison on each count, with the terms to be run concurrently. The sentence violates Penal Code section 654, as both counts arise from the same act of possessing and carrying a firearm. On resentencing, the abstract of judgment needs to be corrected to reflect the actual oral pronouncement of judgment.
blurb here

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.

Authority:

PEN 654

Second Holding:

Both Count 1 and Count 2 are premised on the same act by defendant of owning, possessing, and carrying a firearm on or about [the date in question] and a single possession or carrying of a single firearm on a single occasion may be punished only once under section 654.

Authority:

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

Third Holding:

Where, as here, the facts are undisputed, we review de novo the application of section 654 as a question of law.

Authority:

People v. Corpening (2016) 2 Cal.5th 307, 312

Fourth Holding:

The record is inadequate for us to determine which sentence the trial court would have stayed if it considered section 654, making section 1260 relief inappropriate. We will remand to the trial court so that it may exercise its discretion to determine which sentence to stay.

Authority:

PEN 1260

People v. Braxton (2004) 34 Cal.4th 798, 818–819 [A limited remand is appropriate under section 1260 for the exercise of any discretion that is vested by law in the trial court]

Fifth Holding:

Section 1260 provides in relevant part that the appellate court may reverse, affirm, or modify a judgment or order appealed from and may set aside, affirm, or modify any or all of the proceedings subsequent to, or dependent upon, such judgment or order. Although section 1260 provides this court with the broad ability to modify judgments or proceedings, we exercise this power sparingly for the trial court’s articulated discretion is, generally speaking, controlling.

Authority:

People v. Humphrey (1997) 58 Cal.App.4th 809, 813

Sixth Holding:

Where the reviewing court finds an error in the exercise of sentencing discretion, the ordinary remedy is to reverse and remand to the trial court for resentencing, during which the trial court will have a new opportunity to exercise its discretion. The law respects the substantial discretion vested in the trial court to determine the appropriate sentence in light of the facts and circumstances of the individual case. Modification of the judgment instead of remand for resentencing matters would be appropriate when a trial court’s intention is clear.

Authority:

People v. Dain (2025) 18 Cal.5th 246, 261

People v. Mendoza (2016) 5 Cal.App.5th 535, 539

Seventh Holding:

Although the previous version of section 654 provided that an act or omission shall be punished under the longest potential term of imprisonment, effective January 1, 2022, section 654 was revised to provide the trial court with discretion to impose and execute the sentence of either term. Thus, where section 654 applies, “after determining which sentence to execute, courts must impose a sentence on the other count to which Penal Code section 654 applies and then stay execution of that sentence.

[Gary note, of marginal historical interest: Prior to 1998, Penal Code section 654 had exactly the same language as it currently has, and a court was free to impose sentence on any one of the counts to which section 654 applied. See People v. Norrell (1996) 13 Cal.4th 1. In response to that Supreme Court decision, the Legislature amended section 654 to require that the court impose sentence on the count containing the longest potential term. Through AB 518, effective 1/1/2022, the Legislature restored section 654 to its former language, restoring to the court the discretion to choose on which count punishment should be imposed and executed.]

Authority:

People v. Mani (2022) 74 Cal.App.5th 343, 379-380

Eighth Holding:

In this instance, the record does not present any indication as to which sentence the trial court would have stayed if it had considered the effect of section 654. It is true, as the People note, that the [date of original sentence], minute order states “Principal Count Deemed to be Count 01.” The [date probation was revoked and sentence was executed] minute order states the same, as does the abstract of judgment. The reporter’s transcript, however, contains no record of such a designation of a principal count by the trial court. Where a conflict exists between the court’s oral pronouncement and the minute order or abstract of judgment, the oral pronouncement controls. Following resentencing, the abstract of judgment must be corrected to reflect the actual oral judgment.

Authority:

People v. Walz (2008) 160 Cal.App.4th 1364, 1367, fn. 3

Abstracts and Minutes, Effective assistance of counsel, Sentencing, Standard of review, Sufficiency of and substantial evidence

Case 000810

Posted on by Gary McCurdy

Error and/or relief

The trial court violated section 654 by imposing consecutive prison terms for the vandalism and burglary convictions because they arose from the same course of conduct. The vandalism consisted of using a drill drill and crowbar to take the door off its hinges to gain entry as part of the burglary.

First Holding:

Section 654(a) provides that an act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision. Thus, the statute bars multiple punishments for a single act that violates more than one criminal statute, and for multiple acts where those acts comprise an indivisible course of conduct incidental to a single criminal objective and intent.

Authority:

People v. Latimer (1993) 5 Cal.4th 1203, 1208

Neal v. State of California (1960) 55 Cal.2d 11, 19

Second Holding:

When multiple offenses are committed during a course of criminal conduct deemed indivisible, the offenses are treated as only one punishable act. Whether a course of criminal conduct is divisible depends on the intent and objective of the actor.

If all of the offenses were merely incidental to, or were the means of accomplishing or facilitating one objective, the defendant may be found to have harbored a single intent and therefore may be punished only once.

If, however, 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:

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

People v. Beamon (1973) 8 Cal.3d 625, 637, 639

Third Holding:

Whether the defendant harbored separate objectives during a course of criminal conduct is primarily a question of fact for the trial court. We review a challenge under section 654 for substantial evidence to support the trial court’s determination. We review the trial court’s determination 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. Harrison (1989) 48 Cal.3d 321, 335

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

People v. Avalos (1996) 47 Cal.App.4th 1569, 1583

People v. Racy (2007) 148 Cal.App.4th 1327, 1336–1337

People v. Jones (2002) 103 Cal.App.4th 1139, 1143

Fourth Holding:

However, a decision supported by a mere scintilla of evidence need not be affirmed on appeal. Although substantial evidence may consist of inferences, those inferences must be products of logic and reason and must be based on the evidence. Inferences that are the result of mere speculation or conjecture cannot support a finding. The ultimate test is whether a reasonable trier of fact would make the challenged ruling considering the whole record.

Authority:

In re James R. (2009) 176 Cal.App.4th 129, 135

Fifth Holding:

The failure of defense counsel to object to the court’s decision not to stay the punishment does not forfeit. the issue. The waiver doctrine does not apply to questions involving the applicability of section 654. Errors in the applicability of section 654 are corrected on appeal regardless of whether the point was raised by objection in the trial court or assigned as error on appeal. This is because a sentence that is not authorized by law exceeds the jurisdiction of the court.

Authority:

People v. Perez (1979) 23 Cal.3d 545, 550, fn. 3

People v. Neal (1993) 19 Cal.App.4th 1114, 1120

Sixth Holding:

There was no evidence that the defendant harbored separated objectives.

Authority:

People v. Harrison (1989) 48 Cal.3d 321, 335 [We have traditionally observed that 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.]

Seventh Holding:

The abstract of judgment must be corrected because it fails to reflect the oral pronouncement of judgment in several respects. In a criminal case, it is the oral pronouncement of sentence that constitutes the judgment. Where, as here, a discrepancy exists between the court’s oral pronouncement of judgment and the minute order or the abstract of judgment, the oral pronouncement controls. The clerk cannot supplement the judgment the court actually pronounced by adding a provision to the minute order and the abstract of judgment.

Authority:

People v. Scott (2012) 203 Cal.App.4th 1303, 1324

People v. Qualkinbush (2022) 79 Cal.App.5th 879, 893

People v. El (2021) 65 Cal.App.5th 963, 967