Tag Archives: Single Act as multiple crimes or strikes

Appellate Principles, Discretion, Sentencing

Case 000631

Posted on by Gary McCurdy

Error and/or relief

The sentence for either the attempted murder or the domestic violence should have been stayed pursuant to section 654, because both convictions were based on the same act, namely, the defendant’s act of running over the victim with his SUV.

First Holding:

This matter had previously been remanded for the court to consider its discretion on the application of section 654 as to which count should be sentenced on and which should be stayed. The original judge had retired. The resentencing judge’s statements make clear that in determining whether to stay the sentence on count 1 or count 2, he was deferring to and believed himself to be bound by the sentencing choices already made by the original sentencing court. He did not exercise his own discretion to decide which sentence should be stayed under section 654. Rather, he expressed the belief that the original sentencing judge had already made the relevant determination.

That was error. The original sentencing judge declined to apply section 654 at all, so she never exercised her discretion to decide which sentence should be stayed under section 654. To date, no judge has exercised their discretion on that issue. Because the record does not clearly indicate which sentence the resentencing judge would have stayed had he exercised his discretion, the judge’s failure to exercise his discretion is not harmless.

(GARY note #1: The court did not readdress what section 654 does. As noted, this is the second appeal in the case. The unpublished opinion in the first appeal dealt exclusively with the application of section 654, and the court likely felt it was unnecessary to repeat itself in this second appeal, because its application was not the new question. Instead, it was the failure of the resentencing judge to act independently from the original judge’s views. Under section 654, a single act, or multiple acts during a course of action with a single intent and objective, may result in conviction of multiple crimes, but may be punished under only one of them. The court may choose which count to impose and execute sentence on, and must stay execution on the other count(s) to which section 654 applies. Imposition of a concurrent term is not an option.)

(GARY note #2: The court did not discuss the significance of a trial court’s failure to exercise discretion. But there is ample authority discussing the steps for an appellate court to deal with situations where the lower court did not recognize that it had discretion and it appears that there could have been a different outcome had the judge recognized it and exercised its discretion in an informed manner. I have set out some of the statements from some such cases below as Second Holding and Third Holding, but they were not cited in this opinion, likely because, as this court stated in the unpublished opinion, no judge had ever actually exercised the discretion required under section 654. Always keep in mind, however, that when I use the term “likely” in my notes, it is pure speculation on my part.)

Authority:

PEN 654

Second Holding:

The failure to exercise discretion is an abuse of discretion.

Authority:

People v. Bigelow (1984) 37 Cal.3d 731, 744

Dickson Carlson & Campillo v. Pole (2000) 83 Cal.App.4th 436, 449

Third Holding:

Where a sentencing court was not fully aware of the scope of its discretionary powers, the appropriate remedy is to remand for resentencing unless the record clearly indicates that the court would have reached the same conclusion even it had been aware it had such discretion.

Authority:

People v. Superior Court (Guevara) (2025) 18 Cal.5th 838, 878, fn. 16

People v. Leon (2016) 243 Cal.App.4th 1003, 1026 [relief from a trial court’s misunderstanding of its sentencing discretion is available on direct appeal when such misapprehension is affirmatively demonstrated by the record]

Elements of crime, Sentencing

Case 000614

Posted on by Gary McCurdy

Error and/or relief

The defendant was convicted of being a felon in possession of a firearm and a felon in possession of an assault weapon. The trial court erred in sentencing defendant separately on his firearm possession convictions and remand for resentencing consistent with section 654 to stay either one of defendant’s firearm possession convictions.

First Holding:

Section 654 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. 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.

The defendant’s intent and objective are factual questions for the trial court; to permit multiple punishments, there must be evidence to support the finding the defendant formed a separate intent and objective for each offense for which he was sentenced.

Authority:

People v. Rodriguez (2009) 47 Cal.4th 501, 507,

People v. Capistrano (2014) 59 Cal.4th 830, 885, 886, overruled on other grounds in People v. Hardy (2018) 5 Cal.5th 56, 104

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

Second Holding:

These convictions arose from possession of the same weapon. Specifically, law enforcement officers found a handgun in a shoebox located in defendant’s living room, which was the basis for both firearm possession convictions. Accordingly, defendant may only be punished once for his act of possessing the handgun.

Authority:

People v. Jones (2012) 54 Cal.4th 350, 357 [a single possession or carrying of a single firearm on a single occasion may be punished only once under section 654]

Abstracts and Minutes, Elements of crime, Fines and fees, Sentencing, Standard of review, Sufficiency of and substantial evidence

Case 000606

Posted on by Gary McCurdy

Error and/or relief

The jury found the defendant guilty of two felonies (maintaining a place for the purpose of using, selling, or giving away a controlled substance and felon in position of ammunition) and several misdemeanors (possession of cocaine, cultivating more than six marijuana plants, and possession of marijuana).

We conclude that two felony convictions must be reversed, the fee and assessment imposed for the possession of more than 28.5 grams of marijuana conviction must be reversed, either the possession of marijuana misdemeanor or the cultivating more than six marijuana plants misdemeanor must be stayed pursuant to section 654, and the four clerical errors in the judgment must be corrected.

First Holding:

When considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence which is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. Substantial evidence includes circumstantial evidence and any reasonable inferences drawn from that evidence.

Appellate courts presume in support of the judgment every fact that the trier of fact could reasonably deduce from the evidence. Appellate courts also properly consider erroneously admitted evidence, notwithstanding the erroneous admission. Appellate courts do not resolve credibility issues or evidentiary conflicts. A judgment will not be reversed for insufficiency of the evidence merely because the circumstances may also be reasonably reconciled with a conclusion contrary to the judgment.

Authority:

People v. Cardenas (2025) 18 Cal.5th 797, 821

People v. Brooks (2017) 3 Cal.5th 1, 57

People v. Oyler (2025) 17 Cal.5th 756, 820

People v. Jackson (2014) 58 Cal.4th 724, 749

Second Holding:

Every person who opens or maintains any place for the purpose of unlawfully selling, giving away, or using any controlled substance as identified in particular sections of the Health and Safety Code shall be punished by imprisonment in the county jail for a period of not more than one year or the state prison. Because of the disjunctive “or,” section 11366 does not require that the place be maintained for the purpose of selling; it can be violated without selling, merely by providing a place for drug abusers to gather and share their experience.

Section 11366 proscribes continuously selling, giving away, or using a controlled substance; a single or isolated instance of this forbidden conduct is insufficient. Further, section 11366 is violated by selling or giving away to others, or allowing others to use, a controlled substance in a place maintained or opened for that purpose; it is not violated by an individual’s repeated personal use of a controlled substance at his home.

Authority:

HSC 11366

People v. Franco (2009) 180 Cal.App.4th 713, 716, 718

People v. Vera (1999) 69 Cal.App.4th 1100, 1102-1103 and fn. 2

People v. Green (1988) 200 Cal.App.3d 538, 544

People v. Shoals (1992) 8 Cal.App.4th 475, 490, 492

Third Holding:

In determining whether a place is opened or maintained for the purpose of selling, giving away, or using a controlled substance, the trier of fact should consider the surrounding circumstances, including: the quantity of any controlled substance discovered; the character of the place opened or maintained; how the place is fitted up; whether other individuals visited the place in unusual numbers or at unusual times; whether other individuals who were under the influence of a controlled substance were found at the place; whether lookouts were posted near or at the place; whether a password or passcode was needed for entry into the place; any pertinent statements by the defendant or those found at the premises; and whether any drug paraphernalia or drug residue was found in the place.

However, the quantity of controlled substance discovered at a place is alone insufficient to show that the place was maintained or opened for the purpose of continuously selling, giving away, or using a controlled substance.

Authority:

People v. Franco (2009) 180 Cal.App.4th 713, 726

People v. Hawkins (2004) 124 Cal.App.4th 675, 683

People v. Shoals (1992) 8 Cal.App.4th 475, 491-492

People v. Cannon (1957) 148 Cal.App.2d 163, 168

Fourth Holding:

Health and Safety Code section 11366 prohibits opening or maintaining a place for the purpose of selling, using, or giving away a controlled substance; it does not prohibit opening or maintaining a place for the purpose of growing or cultivating a controlled substance/marijuana. (Cf. sec. 11366 with 11358 [prohibiting the cultivation of marijuana]; 11366.5 [prohibiting individuals from making available a premises for the manufacture of a controlled substance]; cf. also Dowl [describing separate criminal provisions that are exempt from prosecution pursuant to the Medical Marijuana Program of sec. 11362.7 et seq.]

Authority:

People v. Dowl (2013) 57 Cal.4th 1079, 1086

Fifth Holding:

Section 11366 requires that a controlled substance be sold, used, or given away at the place maintained for such a purpose. Section 11366 simply does not address controlled substances that are sold, used, or given away at a location other than the place, even if the controlled substance is produced at the place. Accordingly, Shoals and related considerations do not support the conclusion that the instant property was used for the purpose of continuously selling, using, or giving away marijuana to others.

Authority:

HSC 11366

People v. Shoals (1992) 8 Cal.App.4th 475, 491 [The prosecution must prove that appellant opened or maintained the hotel room for the purpose of selling the cocaine base.]

People v. Holland (1958) 158 Cal.App.2d 583, 588 [There is no evidence that this barbecue stand was opened for the prohibited purpose.]

Sixth Holding:

A conviction cannot be constitutionally sustained on the basis of a theory that was not actually presented to the jury. Here, the instructions informed the jury that the controlled substance at issue was cannabis; cocaine was not mentioned. Therefore, the defendant’s conviction cannot be sustained based on the cocaine discovered at the property. In sum, the evidence shows the property was used to grow, cultivate, and process marijuana, but that is all. Substantial evidence does not support the section 11366 conviction because there is insufficient evidence that the defendant maintained the property for the purpose of continuously selling, using, or giving away marijuana at the property.

Authority:

Jackson v. Virginia (1979) 443 U.S. 307, 314

Cole v. Arkansas (1948) 333 U.S. 196, 202

People v. Kunkin (1973) 9 Cal.3d 245, 251

People v. Zemek (2023) 93 Cal.App.5th 313, 340

People v. Garcia (2014) 224 Cal.App.4th 519, 525

Seventh Holding:

Substantial evidence does not support the defendant’s conviction for felon in possession of ammunition. His prior felony under section 11359 was reduced to a misdemeanor and sealed. As a result of the resentencing and sealing, the prior felony is no longer a felony and cannot be used to support the defendant’s conviction. Because he has no other prior felony convictions, conviction on that count is unsupported and must be reversed.

In 2016, voters approved Proposition 64, which, among other things, generally reduced marijuana-related crimes from felonies to misdemeanors, including the offense of possession under section 11359. Proposition 64 also added section 11361.8, which provides a mechanism to obtain relief for those currently serving a sentence, or for those who had completed a sentence, for a marijuana offense affected by Proposition 64. For those qualifying defendants who have completed a sentence, the court shall redesignate the conviction as a misdemeanor or infraction or dismiss and seal the conviction as legally invalid.

Further, the Legislature has provided that a conviction that has been ordered sealed pursuant to section 11361.8 is deemed never to have occurred, and the person may reply accordingly to any inquiry about the events. The parties agree that, because the defendant had his prior felony conviction reduced to a misdemeanor under Proposition 64 and sealed, he was no longer a felon in possession of ammunition, and the count must be reversed.

Authority:

HSC 11361.8

HSC 11361.9

People v. Smit (2018) 24 Cal.App.5th 596, 599, 600

People v. Jessup (2020) 50 Cal.App.5th 83, 88

People v. Saelee (2018) 28 Cal.App.5th 744, 751

People v. Taylor (2021) 60 Cal.App.5th 115, 120, fn. 3.

Eighth Holding:

Penal Code section 654 provides in 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.

Section 654 may apply to an indivisible course of criminal conduct involving violations of different statutes, where the defendant commits the violations with a single intent and objective. It has been held that section 654 applies to prevent a defendant from being punished for both possession of marijuana and cultivation of marijuana where the possession was merely incidental to the cultivation.

A court’s implicit or express finding that a defendant harbored different intents and objectives for purposes of section 654 is reviewed for substantial evidence. The parties agree, and we concur, that substantial evidence does not support the trial court’s implicit finding that the defendant harbored different intents and objectives with respect to counts 6 and 7, cultivation of marijuana and possession of marijuana. The court must stay the sentence on one of the two counts.

Authority:

PEN 654

People v. Brents (2012) 53 Cal.4th 599, 618

People v. Rodriguez (2009) 47 Cal.4th 501, 507

People v. Vasquez (2020) 44 Cal.App.5th 732, 736–737

People v. McDaniel (1957) 154 Cal.App.2d 475, 485–486

People v. Richardson (2025) 108 Cal.App.5th 1203, 1214

Ninth Holding:

Health and Safety Code section 11372.7–which imposes a drug program fee for violation of its chapter–expressly excludes section 11357(b), possession of more than an ounce of marijuna, from its application. Thus, the trial court erred in imposing the fee under that that section, and it must be stricken, along with other fees that came into play based on that improperly imposed assessment.

Authority:

HSC 11372.7(e)

Tenth Holding:

The minute order contains several errors that must be corrected: (1) with respect to count 2 at page 3, the minute order lists the basis for fines and penalties as section 11372.5 instead of 11372.7; (2) with respect to count 2 at page 4, the minute order identifies the amount of penalty assessments as $3,210 instead of $310; (3) with respect to count 1 at page 5, the minute order lists the basis for fines and penalties as section 11372.5 instead of 11372.7; (4) with respect to count 5 at pages 5 and 6, all fees and penalties are improper because they were not imposed as part of the oral pronouncement of sentence.

A trial court’s oral pronouncement of sentence constitutes the judgment in a criminal case, and to the extent there is a discrepancy between the oral pronouncement and a minute order or abstract of judgment, the oral pronouncement will control. Reviewing courts on appeal may correct any discrepancy that exists between a trial court’s oral pronouncement of sentence and a minute order or abstract of judgment.

Authority:

People v. Gobert (2023) 89 Cal.App.5th 676, 689

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

Sentencing, Standard of review, Sufficiency of and substantial evidence

Case 000600

Posted on by Gary McCurdy

Error and/or relief

The matter is remanded for the court to sentence the defendant on one count and stay punishment under section 654 on the two other counts.

First Holding:

Penal Code Section 654 prohibits a trial court from imposing multiple punishments when a defendant commits multiple offenses during an indivisible course of conduct directed toward a single objective.

Authority:

PEN 654

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

Second 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.

Authority:

PEN 654

Third Holding:

The purpose of section 654 is to ensure a defendant’s punishment is commensurate with his or her culpability. That is, a jury can convict a defendant of multiple crimes arising from a single act, but a court can only punish the defendant for one of those crimes. If a court imposes concurrent sentences, then that sentence constitutes double punishment within the meaning of section 654. A course of criminal conduct is a single “act” for purposes of section 654 if all of the offenses committed during the course of conduct were incident to one objective.

Authority:

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

People v. Miller (1977) 18 Cal.3d 873, 887

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

Fourth Holding:

It is defendant’s intent and objective, not the temporal proximity of his offenses, which determine whether the transaction is indivisible. 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. Harrison (1989) 48 Cal.3d 321, 335

Fifth Holding:

When a trial court sentences a defendant to separate terms without making an express finding the defendant entertained separate objectives, the trial court is deemed to have made an implied finding each offense had a separate objective.

Authority:

People v. Islas (2012) 210 Cal.App.4th 116, 129

Sixth Holding:

We review for substantial evidence a trial court’s implied finding that a defendant had separate intents and objectives for different offenses. Substantial evidence means that evidence which, when viewed in light of the entire record, is of solid probative value, maintains its credibility and inspires confidence that the ultimate fact it addresses has been justly determined.

Authority:

People v. Dowdell (2014) 227 Cal.App.4th 1388, 1414

People v. Lehman (2016) 247 Cal.App.4th 795, 804

Seventh Holding:

Under section 654, a defendant cannot be punished for both a robbery, and a kidnapping for the purpose of that same robbery.

Authority:

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

Eighth Holding:

There is not substantial evidence to support the trial court’s implied (unstated) finding that the defendant formed (1) a separate intent and objective to commit a kidnapping for the purpose of robbery, and then (2) formed a separate intent and objective to commit a carjacking, and then (3) formed a separate intent and objective to commit a robbery of the pharmaceuticals.

Authority:

People v. Green (1996) 50 Cal.App.4th 1076, 1085 [there must be evidence to support a finding the defendant formed a separate intent and objective for each offense for which he was sentenced]

Ninth Holding:

On remand, the trial court is directed to impose a sentence for only one of the three convictions, and then stay the sentence on the other two crimes under section 654.

Authority:

People v. Alford (2010) 180 Cal.App.4th 1463, 1469 [to implement section 654, the trial court must impose sentence on all counts, but stay execution of sentence as necessary to prevent multiple punishment]

Discretion, Sentencing, Standard of review, Sufficiency of and substantial evidence

Case 000541

Posted on by Gary McCurdy

Error and/or relief

The defendant was convicted of assault with a deadly weapon and evading an officer with reckless driving. There was insufficient evidence to support a finding that the two crimes had separate objectives and remand the matter to the trial court with instructions to exercise its discretion under section 654 to stay the sentence on either count.

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. A defendant may be charged with—and in some cases convicted of—multiple crimes arising out of the same conduct but cannot receive multiple punishments for the same act or omission. When section 954 permits multiple conviction[s], but section 654 prohibits multiple punishment[s], the trial court must stay execution of sentence on the convictions for which multiple punishment is prohibited.

Authority:

PEN 654

PEN 954

People v. Reed (2006) 38 Cal.4th 1224, 1226−1227

Second Holding:

Whether a defendant may be subjected to multiple punishment under section 654 requires a two-step inquiry, because the statutory reference to an act or omission may include not only a discrete physical act but also a course of conduct encompassing several acts pursued with a single objective. If we conclude that the case involves more than a single act—i.e., a course of conduct we then consider whether that course of conduct reflects a single intent and objective or multiple intents and objectives.

Authority:

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

Third Holding:

The determination of whether there was more than one objective is a factual determination, which will not be reversed on appeal unless unsupported by the evidence presented at trial. 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. Saffle (1992) 4 Cal.App.4th 434, 438

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

Fourth Holding:

Because the trial court sentenced the defendant on both counts, we presume the trial court made an implied finding that section 654 did not apply, and that the two crimes had separate objectives.

Authority:

People v. Kelly (2018) 28 Cal.App.5th 886, 904 [When there is no explicit ruling by the trial court at sentencing, we infer that the court made the finding appropriate to the sentence it imposed.]

Fifth Holding:

We conclude there was insufficient evidence to support a conclusion that the two crimes had separate objectives.

Authority:

In re L.J. (2021) 72 Cal.App.5th 37 [The evidence does not support a finding that the minor’s assaults on the officers were based on different intents and objectives than the minor’s overall purpose of trying to evade the police officers.]

People v. Jimenez (2019) 32 Cal.App.5th 409, 426 [defendant had a different intent and objection when driving “head on” towards an officer]

Discretion, Sentencing

Case 000535 and Case 000536

Posted on by Gary McCurdy

Error and/or relief

We vacate the conviction for involuntary manslaughter, as it is a lesser included offense of the murder that she was also convicted of in a separate count. Section 654 requires stay of either the murder count or the child abuse count, because they were based on the same act. We remand to the trial court for it to determine which of the two sentences should be stayed.

[Gary note: There were two defendants, and the opinions, though separate, were virtually material, so I have summarize both in this single summary]

First Holding:

We summarize the relevant facts pertinent to the issues raised on appeal, viewing the record in the light most favorable to the judgment.

Authority:

In re Jesus O. (2007) 40 Cal.4th 859, 861

People v. Johnson (1980) 26 Cal.3d 557, 578

Second Holding:

For Victim A’s death, the jury convicted the defendant of both second degree murder (count 1) and involuntary manslaughter (count 2). The parties agree, as do we, that, because substantial evidence supports the murder conviction, the involuntary manslaughter conviction must be vacated. A defendant cannot be convicted of both an offense and a necessarily lesser included offense based upon the commission of an identical act. In such a situation, the lesser included offense must be reversed. Involuntary manslaughter is a lesser included offense of murder. The defendant’s convictions were based on the same act. Accordingly, the conviction in count 2 must be vacated.

Authority:

People v. Sanders (2012) 55 Cal.4th 731, 736

People v. Munoz (2019) 31 Cal.App.5th 143, 153

Third Holding:

For the child abuse conviction in count 3 involving Victim A, the defendant received a sentence of four years in prison, which was to run concurrently to her indeterminate sentence for Victim A’s murder in count 1. Section 654 prohibits multiple punishment for a single act or course of conduct that violates more than one statute. Where all offenses are incident to one objective, the defendant may be punished for only one of them, and execution of sentence on the remaining counts must be stayed. Because the same act supports the convictions in counts 1 and 3, section 654 prohibits multiple punishment and requires that execution of sentence be stayed on one of those counts.

Authority:

PEN 654(a)

People v. Correa (2012) 54 Cal.4th 331, 337

Fourth Holding:

Under amended section 654, the sentencing court has discretion to determine which sentence should be stayed. This could result in the trial court imposing and executing the shorter sentence rather than the longer sentence. At sentencing in this matter, the trial court imposed a concurrent four-year term on count 3. Although the court’s decision to run the felony child abuse term concurrently suggests it would not stay the sentence for murder, nothing in the sentencing record affirmatively shows how the trial court would have exercised its discretion under section 654. Accordingly, we remand for resentencing so the trial court may determine in the first instance which sentence must be stayed under section 654.

Authority:

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

Elements of crime, Jury trial, Sentencing

Case 000525

Posted on by Gary McCurdy

Error and/or relief

Reversal of the conviction on one of the counts is called for because there is a reasonable probability that one of defendant’s acts improperly formed the basis of two convictions.

First Holding:

As to count 1, the jury found defendant not guilty of assault with a deadly weapon, but found him guilty of the lesser included offense of simple battery and found him guilty of injuring a dating partner (count 2). As to count 3, the jury found defendant not guilty of assault by means of force to cause great bodily injury but found him guilty of the lesser included offense of simple assault. The conviction for injuring a dating partner (count 2) and the simple assault conviction (count 3) are based upon the same conduct and, because the latter is a lesser included offense of former, he cannot be convicted of both.

Authority:

People v. Serrano (2022) 77 Cal.App.5th 902, 919 [simple assault is a necessarily included offense of infliction of a corporal injury (sec. 273.5)]

Second Holding:

The jury was not advised that they could not convict defendant of both injuring a dating partner and a simple assault based on the same act. The gist of the prosecution’s summation focused on the single act of throwing a rock that hit the victim. In view of the People’s arguments and the lack of instruction to the jury, it is reasonably probable that the same act formed the basis for defendant’s conviction for infliction of a corporal injury as well as the simple assault conviction. Accordingly, we reverse the simple assault conviction.

Authority:

People v. Cole (1982) 31 Cal.3d 568, 582 [if the evidence supported the verdict as to a greater offense then the conviction on that offense is controlling and the conviction on the lesser offense must be reversed]

Sentencing

Case: 000519

Posted on by Gary McCurdy

Error and/or relief

Remand is necessary for the trial court to reconsider whether to strike one of the defendant’s prior convictions.

First Holding:

The defendant contends that the trial court erred in denying his Romero motion to strike one of his strikes and sentencing him as a third strike offender because his two prior strike convictions for robbery were based on a single act. In a series of cases, our California Supreme Court has addressed how many strikes should be counted when a defendant has multiple convictions arising from related acts. In Fuhrman, the defendant had multiple strike convictions stemming from an incident in which he stole a car, collided with another car and brandished a gun at that car’s driver, and then forced his way at gunpoint into a truck and made the truck driver take him from the scene. Although the court held that qualifying strike convictions can be brought and tried in the same case and counted as separate strikes, the court left open whether the Three Strikes law allows separate strikes to be imposed for offenses that in a prior proceeding were determined to have been committed as part of an indivisible transaction, and as to which it was concluded that imposition of separate punishment for each offense would constitute multiple punishment proscribed by section 654.

The court addressed that issue in Benson. In that case, the defendant entered an apartment and stabbed its occupant, resulting in strike convictions for residential burglary and assault with intent to commit murder. The court held that crimes sustained in one action and arising from the same facts are separate strikes, even if the crimes were closely connected and punishment on one had been stayed under section 654.

Next, Vargas held that two prior convictions arising out of a single act against a single victim cannot constitute two strikes under the Three Strikes law. The single act in Vargas was forcibly taking the victim’s car, which resulted in convictions for robbery and carjacking.

Finally, while this matter has been pending on appeal, our California Supreme Court issued Shaw, which involved two victims. In that case, the defendant had two prior convictions for gross vehicular manslaughter arising from an incident in which Shaw struck a car, killing two passengers. The court found that its rationale in Vargas applied, notwithstanding that multiple victims were involved.

Authority:

People v. Superior Court (Romero) (1996) 13 Cal.4th 497

People v. Fuhrman (1997) 16 Cal.4th 930, 941

People v. Benson (1998) 18 Cal.4th 24, 26

People v. Vargas (2014) 59 Cal.4th 635, 637, 645

People v. Shaw (2025) 18 Cal.5th 1089, 1093

Second Holding:

In this case, the extent of the defendant’s participation in the two felonies alleged as prior strikes is not clear. Did he commit one act as an aiding and abetting getaway driver while others robbed two victims, or did he participate more directly in each of the robberies of two victims? Further, the trial court did not have the benefit of Shaw at the time of sentencing and it therefore may have applied the wrong legal standard, which constitutes an abuse of discretion. We therefore remand this matter to the trial court to reconsider the defendant’s Romero motion.

Authority:

People v. Knoller (2007) 41 Cal.4th 139, 156

People v. Superior Court (Romero) (1996) 13 Cal.4th 497

Elements of crime, Sentencing

Case 000509

Posted on by Gary McCurdy

Error and/or relief

Three counts of conviction of section 220 were but one crime, and could give rise to only a single conviction.

First Holding:

Section 954 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. Whether multiple convictions are proper under section 954 requires our independent evaluation of the statutes at issue.

Authority:

PEN 954

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

People v. Aguayo (2022) 13 Cal.5th 974, 979, 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. Rodriguez (2021) 71 Cal.App.5th 921, 936

Second Holding:

The jury convicted the defendant of three violations of section 220(a)(1). The charging information and verdict forms for each section 220 violation did not identify separate assaultive acts. Nor did the jury instruction on the crimes. It grouped the three assault charges together, did not require multiple actus rei, and only potentially differentiated between the charges based on the intended sex crime. The jurors, evaluating the evidence, could have reasonably assigned the same act or acts to all three offenses.

Authority:

People v. Aguayo (2022) 13 Cal.5th 974, 982–993 [finding assault with a deadly weapon and force-likely assault different statements of the same offense under section 954]

People v. Frank (1865) 28 Cal. 507, 513 [enumerated series of acts in a single statutory provision constitute but one and the same offense]

People v. Thompson (1896) 111 Cal. 242, 247–250 [same, even when a single statutory provision referenced multiple intents]

Sentencing, Sufficiency of and substantial evidence

Case 000503

Posted on by Gary McCurdy

Error and/or relief

It was error to impose concurrent terms on two counts, because section 654 prohibited multiple punishment. The sentence for count 1 is modified from concurrent to stayed.

First Holding:

Section 654(a) provides, in 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. Section 654 has been applied not only where there was but one act in the ordinary sense but also where a course of conduct violated more than one statute and the problem was whether it comprised a divisible transaction which could be punished under more than one statute within the meaning of section 654. 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 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. Beamon (1973) 8 Cal.3d 625, 637

Second Holding:

We apply the substantial evidence standard of review. Substantial evidence does not support a finding of separate intents and objectives. The evidence that defendant pointed the gun at the victim when threatening her supports a finding that defendant used the gun to emphasize his threat and cause the victim mental anguish. Accordingly, defendant held a single intent and objective during the course of conduct—to cause the victim to fear for her life. We will modify defendant’s suspended prison sentence.

Authority:

PEN 654

People v. Leonard (2014) 228 Cal.App.4th 465, 499

Appellate Principles, Sentencing

Case 000496

Posted on by Gary McCurdy

Error and/or relief

The court should have stayed the sentence on one count under section 654.

Holding:

The defendant was convicted under two separate Penal Code sections for the same act. Section 654 provides that an act punishable in different ways by different provisions of law may be punished under either of such provisions, but in no case shall the act be punished under more than one provision. The sentence imposed for count 7 should have been stayed. The defendant requests a remand for resentencing, but we may modify the judgment ourselves to stay the count 7 sentence.

(GARY NOTE: The opinion does not mention whether it concluded that the trial court would have imposed sentence on the count carrying the longer sentence (15 years to life) rather than on the count carrying the shorter term (180 days), a choice that has been restored to the judiciary with the passage of AB 518 several years ago. But the defendant’s total sentence on the numerous counts consisted of several hundred years to life. Allowing the trial court to choose between the counts would likely not have resulted in earlier release. On the other hand, it is conceivable that on remand, the trial court might have had other options on a full resentencing.)

Authority:

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

People v. Lopez (2004) 119 Cal.App.4th 132, 139

Appellate Principles, Sentencing

Case 000486

Posted on by Gary McCurdy

Error and/or relief

The defendant was convicted of murder and conspiracy to commit that same murder. It was error to impose sentence on both counts concurrently. One of the counts should have been 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. A defendant may not receive more than one punishment for a single act, nor may a defendant receive multiple punishments for acts that comprised a single, indivisible course of conduct in service of a single objective. As a result, section 654 prohibits punishing a defendant for both conspiracy to commit murder and the underlying murder.

Authority:

PEN 654

People v. Perez (1979) 23 Cal.3d 545, 550-552

People v. Hernandez (2003) 30 Cal.4th 835, 866, disapproved of on another ground by People v. Riccardi (2012) 54 Cal.4th 758, 824, fn. 32

Second Holding:

In pronouncing the defendant’s sentence, the court did not stay the sentence on count two, which was necessary to avoid double punishment.

Authority:

People v. Caparaz (2022) 80 Cal.App.5th 669, 689

Third Holding:

Where, as here, the punishment is the same for the two counts at issue, a remand is unnecessary because it would not change the defendant’s sentence. Accordingly, we will modify the judgment to stay the sentence for count two.

Authority:

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