Tag Archives: Single Act as multiple crimes or strikes

Appellate Principles, Elements of crime, Sentencing

Case 000983

Posted on by Gary McCurdy

Error and/or relief

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

First Holding:

Under section 654(a), an act or omission that is punishable in different ways by different provisions of law may be punished under either of such provisions, but in no case shall the act or omission be punished under more than one provision. That the purpose of section 654 is to insure that a defendant’s punishment will be commensurate with the defendant’s culpability.

Authority:

PEN 654

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

Second Holding:

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

Authority:

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

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

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

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

Third Holding:

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

Authority:

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

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

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

Elements of crime, Sentencing

Case 000982

Posted on by Gary McCurdy

Error and/or relief

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

First Holding:

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

Authority:

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

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

Second Holding:

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

Authority:

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

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

Case 000974

Posted on by Gary McCurdy

Error and/or relief

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

First Holding:

Section 654(a) provides that an act or omission that is punishable in different ways by different provisions of law may be punished under either of such provisions, but in no case shall the act or omission be punished under more than one provision.

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

Authority:

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

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

Second Holding:

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

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

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

Authority:

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

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

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

Third Holding:

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

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

Authority:

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

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

Fourth Holding:

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

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

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

Authority:

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

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

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

Fifth Holding:

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

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

Authority:

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

Sixth Holding:

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

Authority:

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

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

Seventh Holding:

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

Authority:

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

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

Discretion, Sentencing

Case 000966

Posted on by Gary McCurdy

Error and/or relief

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

Holding:

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

Authority:

PEN 654

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

Sentencing

Case 000964

Posted on by Gary McCurdy

Error and/or relief

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

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

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

First Holding:

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

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

Authority:

PEN 669

PEN 1170.1(a)

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

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

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

Second Holding:

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

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

Authority:

Cal. Rules of Court, rule 4.424

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

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

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

Third Holding:

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

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

Authority:

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

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

Fourth Holding:

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

Authority:

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

Gary Bonus Note:

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

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

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

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

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

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

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

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