Tag Archives: Single Act as multiple crimes or strikes

Appellate Principles, Sentencing, Standard of review

Case: 000104

Posted on by Gary McCurdy

Error and/or relief

Under section 654, the trial court should have stayed the sentence imposed on either of two counts, each of which was based on the same assault and committed with the same intent and objective.

First Holding:

Penal Code section 654 prohibits punishment under more than one provision for any act or omission that is punishable in different ways by different provisions of law. This section applies not only where there was but one act in the ordinary sense, but also where there was a course of conduct which violated more than one statute but nevertheless constituted an indivisible transaction. 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.

Authority:

PEN 654

People v. Corpening (2016) 2 Cal.5th 307, 309

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

Second Holding:

Whether a defendant possessed a single intent and objective is a factual question subject to substantial evidence review on appeal. However, where the facts are undisputed, whether Penal Code section 654 precludes multiple punishment is a legal question, subject to de novo review.

Authority:

People v. Perez (1979) 23 Cal.3d 545, 552, fn. 5

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

People v. Goode (2015) 243 Cal.App.4th 484, 493

People v. Pitts (1990) 223 Cal.App.3d 1547, 1552, 1560 [multiple punishment precluded where mayhem and assault convictions were based on a course of conduct in which the defendant threw the victim down, punched her, took a box cutter that she tried to use to defend herself, and used the weapon to slash the victim]

Third Holding:

A course of conduct divisible in time, although directed to one objective, may give rise to multiple violations and punishment.

Authority:

People v. Beamon (1973) 8 Cal.3d 625, 639, fn. 11

People v. Kwok (1998) 63 Cal.App.4th 1236, 1253

Appellate Principles, Sentencing

Case: 000103

Posted on by Gary McCurdy

Error and/or relief

We conclude the concurrent sentences on two counts constitute multiple punishment proscribed by section 654. Accordingly, we modify the judgment to stay the sentence on the second of those two counts.

First Holding:

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. An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other. Section 654 proscribes multiple punishment for crimes arising from a single act. This statutory protection has also been extended to proscribe punishment for multiple crimes arising from an indivisible course of conduct.

Authority:

PEN 654

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

Second Holding:

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 an exception to the general rule that only those claims properly raised and preserved by the parties are reviewable on appeal. This exception is not required by the language of section 654, but rather by case law holding that a court acts in excess of its jurisdiction and imposes an unauthorized sentence when it fails to stay execution of a sentence under section 654.

Authority:

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

Third Holding:

The accepted procedure where section 654 applies is to sentence defendant for each count and stay execution of sentence on certain of the convictions to which section 654 is applicable. Accordingly, the sentence for either of the two counts should be stayed instead of running concurrent as the court did here.

Authority:

People v. Jones (2012) 54 Cal.4th 350, 353

Fourth Holding:

An appellate court has the discretion to modify a judgment to stay sentences that should have been stayed. An appellate court may reverse, affirm, or modify a judgment, or may remand for further proceedings as may be just under the circumstances.

Authority:

PEN 1260

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

Sentencing

Case 000054

Posted on by Gary McCurdy

Error and/or relief

We find there was insufficient evidence to prove beyond reasonable doubt that the defendant’s prior strikes were based on separate criminal acts, and we remand for resentencing on that basis. There was insufficient evidence to impose his federal conviction for bank robbery as a prior strike because it could not be shown that the conviction was based on a different criminal act than either of his two state robbery convictions.

First Holding:

If two strike offenses are based on a single act, the court must dismiss one of the strikes.

Authority:

People v. Vargas (2014) 59 Cal.4th 635, 638

Second Holding:

Prior convictions for multiple criminal acts committed in a single course of conduct may be treated as separate strikes, so long as the convictions are not so closely connected that treating them as separate strikes would be contrary to the spirit of the Three Strikes law.

Authority:

People v. Benson (1998) 18 Cal.4th 24, 35

People v. Vargas (2014) 59 Cal.4th 635, 648

[GARY NOTE: The California Supreme Court issued its opinion–published, of course, but hey!–in People v. Shaw (2025) 18 Cal.5th 1089 on December 15, 2025. It concluded that only one strike can be based on the single act of vehicular manslaughter that resulted in the death of two occupants of the car his vehicle struck. One justice wrote a concurring opinion in which he questioned the continuing validity of People v. Benson (1998) 18 Cal.4th 24 (holding that two prior offenses committed seconds apart against a single victim may be treated as separate strikes) and People v. Fuhrman (1997) 16 Cal.4th 930 (holding that two offenses committed in quick succession against two separate victims qualify as separate strikes). Two other justices agreed with the concurring opinion. It may be that the majority believed that Shaw did not present the precise question raised in Benson and Furhman and therefore decided not to venture beyond the facts before it at this time. That’s pure speculation by me, of course. But there may be an audience in our high court willing to closely examine exactly what can constitute separate strikes where the crimes are closely related in time and nature.]

Third Holding:

Penal Code section 654 does not apply to successive federal and state prosecutions.

Authority:

People v. Belcher (1974) 11 Cal.3d 91, 98

People v. Fielder (2004) 114 Cal.App.4th 1221, 1234 [Retrial of prior conviction findings is not barred by the state or federal prohibitions on double jeopardy even when a prior conviction finding is reversed on appeal for lack of substantial evidence]