Tag Archives: Single Act as multiple crimes or strikes

Elements of crime, Sentencing

Case: 000332

Posted on by Gary McCurdy

Error and/or relief

We reverse count 5 because section 4502 permits only a single conviction for possession of more than one weapon at the same time and place in prison.

Holding:

Section 4502 permits only a single conviction for possession of more than one unlawful weapon at the same time and place in prison.

Authority:

People v. Rowland (1999) 75 Cal.App.4th 61, 64-67

(GARY NOTE: The opinion in Rowland relied on People v. Kirk (1989) 211 Cal.App.3d 58, which held that possession of more than one sawed-off shotgun at the same time could result in only one count of conviction under what was then section 12020.

(What was then section 12020 has since been broken down into numerous sections by the Deadly Weapons Recodification Act of 2010. Its provisions were spread among many new code sections. Best to look at the charging document for the charge, but also look for separate sections that may define the terms.

(Subsequent to Kirk, the Legislature amended what was then section 12001 (now section 17800) to clarify that possession of more than one prohibited weapon simultaneously constituted separate offenses, each of which could be charged. The legislation specified the code section affected by the amendment, and Rowland relied on the absence of mention of section 4502 to conclude that possession of more than one weapon simultaneously under section 4502 still was limited to a single count, at least in part on the principle of expressio unius est exclusio alterius (the expression of one thing is the exclusion of another). The holding in this Case 000332 applied to section 4502. Rowland and its progeny should be used very carefully, and be cited only if its rationale has not been legislated away with respect to your given facts.)

Abstracts and Minutes, Duty of the court, Sentencing

Case: 000324

Posted on by Gary McCurdy

Error and/or relief

The trial court should have stayed the sentence on one of the defendant’s convictions under section 654. Therefore, we modify his sentence to stay the sentence on that count. We also order the trial court to correct errors in the defendant’s abstract of judgment.

First Holding:

Section 654 provides that a defendant may be punished only once for an act or omission that is punishable in different ways by different provisions of law. The statute itself literally applies only where such punishment arises out of multiple statutory violations produced by the same act or omission. However, because the statute is intended to ensure that a defendant is punished commensurate with his culpability, its protection has been extended to cases in which there are several offenses committed during a course of conduct deemed to be indivisible in time. Where the defendant committed more than one offense during a course of conduct deemed to be indivisible in time, the court looks to the defendant’s intent and objective to determine whether any of the offenses are subject to section 654. Whether section 654 applies to a given case is a question of fact for the trial court. In this case, based on statements made by the court on more than one occasion, the only reasonable conclusion is that the court determined the assault with a semiautomatic firearm in count 12 involved the same act or criminal objective as the robbery against the same victim in count 10.

Authority:

PEN 654

People v. Mesa (2012) 54 Cal.4th 191, 193

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

People v. Jackson (2016) 1 Cal.5th 269, 354

Second Holding:

The abstract contains several errors. It stated that the court imposed, but stayed under section 654, several firearm and bodily injury enhancements on nine of the counts. In fact, however, the court dismissed those enhancements under section 1385. The abstract states that the sentences on three of the counts were full consecutive terms. In fact, the court imposed a consecutive term of one-third the midterm on each, as required under section 1170.1(a). And the abstract states that the total time on attached pages was four years and four months, whereas the actual total on the attached pages is fourteen years. On remand, the trial court shall ensure the amended abstract of judgment does not contain these errors.

[Gary note: The court did not cite authority for correction of the abstract of judgment, likely because it recognized there will be a new abstract of judgment issued to reflect the effect of section 654 on one of two counts. Had the Court of Appeal chosen to specifically order correction of the existing abstract, it would have found authority under one or more of the cases I have set forth below.]

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

Duty of the court, Sentencing, Standard of review

000321

Posted on by Gary McCurdy

Error and/or relief

The trial court erred by imposing sentence on the robberies which served as the predicate offenses for his murder conviction under the felony murder theory. We remand for full resentencing so the trial court may determine whether section 654 applies to all of the underlying robberies or to only one, and to correct other errors (if any) that the parties asserted in this appeal.

First Holding:

Section 654 provides that the same act or omission shall not be punished under more than one provision of law. Thus, where felony murder is the sole theory of murder under which the case was prosecuted, section 654 precludes imposition of separate terms for the predicate felonies for the theory of felony murder, for which defendant received his first degree murder sentence.

Authority:

PEN 654
People v. Montes (2014) 58 Cal.4th 809, 898

Second Holding:

An appellate court normally reviews the trial court’s factual determinations in applying section 654 for substantial evidence.

Authority:

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

People v. Jacobo (2019) 37 Cal.App.5th 32, 53-54

Abstracts and Minutes, Duty of the court, Sentencing

Case: 000320

Posted on by Gary McCurdy

Error and/or relief

This is not exactly a win for the defendant, but it reinforces the proper application of section 654. In this instance, the trial court simply did not impose any sentence on a count that the court determined section 654 applied to. It resulted in reversal of the sentence, with a direction that the court impose a sentence on all counts, including the one to which section 654 applied, and stay execution as to that count. Interestingly, the abstract of judgment actually reflected that the court had imposed and stayed sentence under section 654. Reaffirming my supplication that we should always examine abstracts of judgment, as it truly is not uncommon for them to contain errors.

First Holding:

The abstract of judgment incorrectly states that the trial court imposed the upper term for count 2 and stayed the sentence under section 654. However, the court did not impose sentence for count 2 during the sentencing hearing. 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. Qualkinbush (2022) 79 Cal.App.5th 879, 893

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

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. Stated differently, section 654 prohibits multiple punishment for the same act or omission. When section 654 is applicable, the accepted procedure is to sentence defendant for each count and stay execution of sentence on certain of the convictions to which section 654 is applicable.

Authority:

PEN 654

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

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

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

People v. Mani (2022) 74 Cal.App.5th 343, 380 [when section 654 applies, it is improper to impose no sentence or to stay imposition of the sentence]

People v. Alford (2010) 180 Cal.App.4th 1463, 1473 [when section 654 applies, the trial court imposes an unauthorized sentence by failing to sentence defendant on all counts]

Third Holding:

Because the sentence is unlawful, we remand the matter to the trial court for resentencing purposes. On remand a full resentencing as to all counts is appropriate, so the trial court can exercise its sentencing discretion in light of the changed circumstances.

Authority:

People v. Mani (2022) 74 Cal.App.5th 343, 381

In re Mattison (2025) 115 Cal.App.5th 1062, 1067

Abstracts and Minutes, Fines and fees, Probation Parole PRCS, Sentencing

Case: 000289

Posted on by Gary McCurdy

Error and/or relief

We conclude that section 654 did not apply here because the trial court granted defendant probation without imposing sentence, so we affirm the judgment. But we direct the trial court to correct the clerk’s minute order to reflect the oral pronouncement as to the jail probation condition and restitution fine and corresponding stayed probation revocation fine as $300 each.

First Holding:

There is an apparent discrepancy between the court’s oral pronouncement imposing a probation condition of 300 days in county jail and the clerk’s minute order splitting the 300 days between the two counts, showing 150 days under each count. The record of the oral pronouncement of the court controls over the clerk’s minute order. The court’s oral pronouncement was clear. It imposed a probation condition of 300 days in county jail. We order the clerk’s minute order corrected to reflect the court’s oral pronouncement of a probation condition of 300 days in county jail.

Authority:

People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2

People v. Mitchell (2001) 26 Cal.4th 181, 187-188

Second Holding:

Generally, section 654, which precludes multiple punishment for a single act, does not apply when a court grants a defendant probation. A grant of probation is neither punishment nor a criminal judgment. It is an act of grace and clemency designed to allow rehabilitation. No punishment is imposed. Section 654 does not apply where no punishment is imposed. This is so even if probation is conditioned on jail time. Here, because the trial court granted defendant probation without imposing a sentence, section 654 does not apply.

Authority:

PEN 654

People v. Stender (1975) 47 Cal.App.3d 413, 425, overruled on other grounds in People v. Martinez (1999) 20 Cal.4th 225, 240

People v. Wittig (1984) 158 Cal.App.3d 124, 126-127 137

People v. Prudholme (2023) 14 Cal.5th 961, 965

Third Holding:

The minute order conflicts with the trial court’s oral pronouncement, the latter which ordered only the mandatory minimum fines (here, $300), not the $1,000 fine included in the minutes. When there is a discrepancy between the court’s oral pronouncement and the clerk’s minute order or the abstract of judgment, the record of the oral pronouncement controls. We order the clerk’s minute order corrected to conform to the trial court’s oral pronouncement of the mandatory minimum restitution fine of $300 and the corresponding stayed $300 probation revocation fine.

Authority:

People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2

Appellate Principles, Sentencing

Case: 000283

Posted on by Gary McCurdy

Error and/or relief

On resentencing under section 1172.75, it was error for the court to impose and execute sentence on a count that had been stayed under section 654 at the original sentence.

First Holding:

The law of the case doctrine precluded the trial court from reimposing the one-year sentence on count four that was stayed pursuant to section 654. Under that doctrine, when an appellate court states in its opinion a principle or rule of law necessary to the decision, that principle or rule becomes the law of the case and must be adhered to throughout its subsequent progress, both in the lower court and upon subsequent appeal.

Authority:

People v. Stanley (1995) 10 Cal.4th 764, 786

People v. Barragan (2004) 32 Cal.4th 236, 246

Second Holding:

Where the facts are undisputed, the application of section 654 raises a question of law.

Authority:

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

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

Third Holding:

In defendant’s initial appeal, this court determined that the sentence on count 4 should be stayed pursuant to section 654. That point is now law of the case and the trial court was therefore precluded from reimposing the one year sentence on that count. The Attorney General concedes the cause should be remanded for a full resentencing, and because that will be our disposition, we need not discuss defendant’s contention that the trial court did not account for amendments to section 654 (AB 518 (2021-2022 Reg. Sess.)) when it last sentenced defendant. That contention can be presented to the trial court in the first instance.

Authority:

PEN 654

Abstracts and Minutes, Duty of the court, Elements of crime, Jurisdiction, Sentencing, Sixth Amendment

Case: 000276

Posted on by Gary McCurdy

Error and/or relief

The sentence on count 1 is unauthorized because no findings were ever made, either by the jury or the court, as to whether the defendant was previously convicted of a qualifying prior vehicle theft offense within the meaning of Penal Code section 666.5(a). On remand, the court shall also address whether one count should be stayed under section 654.  It should be noted that the minute order incorrectly states that the defendant admitted the prior conviction.

First Holding:

Penal Code section 666.5(a) provides that a person convicted of a felony violation of Vehicle Code section 10851 who has been previously convicted of any of several enumerated sections of the Vehicle Code shall be punished by increased by a higher triad than the usual for section 10851. Though the defendant admitted three prior strike convictions, they were not the prior convictions relied on for the PC 666.5 allegation. In the absence of any findings on the allegation, the sentence is unauthorized and exceeded the court’s jurisdiction.

Authority:

PEN 666.5

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

Second Holding:

The record does not reflect that the defendant personally admitted the one strike prior, as required by the law. Every plea shall be entered or withdrawn by the defendant himself or herself in open court.

Authority:

PEN 1018

People v. Hofferber (1977) 70 Cal.App.3d 265, 268

Third Holding:

The minute order indicates the defendant admitted the prior strike, but we generally resolve conflicts between the reporter’s and clerk’s transcript in favor of the reporter’s transcript.

Authority:

In re Merrick V. (2004) 122 Cal.App.4th 235, 249

Fourth Holding:

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. Concurrent sentences based on one act or an indivisible course of conduct violate the rules against double punishment. The defendant asserts the chains and stabilizing bars referenced in count 4 were used to tow the motorhome, that any taking or receiving of them was part of one continuous act, and that the court therefore should have stayed the sentence on count 4. The People concede, and we agree, that the matter can be addressed on remand.

Authority:

PEN 654

PEN 954

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

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

Abstracts and Minutes, Elements of crime, Sentencing

Case: 000257

Posted on by Gary McCurdy

Error and/or relief

A jury found the defendant guilty of one count of murder, two counts of being a felon in possession of a firearm, and one count of being a felon in possession of ammunition. The trial court sentenced him on each count of conviction and did not stay the sentence on any count. The court improperly sentenced him on two counts of being a felon in possession of a firearm when he had only committed a single violation of that crime. The court erred when it sentenced him for being both a felon in possession of a firearm and a felon in possession of ammunition. We vacate defendant’s conviction on one count of being a felon in possession of a firearm and stay his sentence for being a felon in possession of ammunition. The abstract of judgment incorrectly marks trhe determinate term on count 2 as “M” for middle term rather than “H” to reflect the high term that was actually imposed, and must be corrected.

First Holding:

Possession of a firearm by a felon is a continuing offense. In the case of continuing offenses, only one violation occurs even though the proscribed conduct may extend over an indefinite period. The crime of possession of a firearm by a felon continues for as long as the possession of the firearm continues and is not completed until the possession has ceased. Therefore, where there is no evidence that the defendant relinquished his possession of a firearm, or that his possession was interrupted for a time, he can be convicted of only one count of that offense. The defendant possessed the same firearm on both dates charged in the information. The People did not present any evidence to show that the defendant ceased his possession of that firearm at any time between the murder and the arrest. We therefore vacate defendant’s conviction on count 4.

Authority:

People v. Mason (2014) 232 Cal.App.4th 355, 365, 366-367

Wright v. Superior Court (1997) 15 Cal.4th 521, 525, fn. 1

People v. Warren (1940) 16 Cal.2d 103, 112

Second 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. The statute bars multiple punishment for separate offenses arising out of a single occurrence when all of the offenses were incident to one objective. It prohibits punishment for both unlawful possession of a firearm and unlawful possession of ammunition when the only ammunition at issue was either found inside or fired from the firearm.

Authority:

People v. Cowan (2010) 50 Cal.4th 401, 498

People v. Broadbent (2020) 47 Cal.App.5th 917, 922–923

People v. Sok (2010) 181 Cal.App.4th 88, 100

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

Third Holding:

Where multiple punishments have been improperly imposed, the proper procedure is for the reviewing court to modify the sentence to stay imposition of the lesser term. Here, the trial court should have stayed the punishment on count 3, the lesser term. We will therefore modify the judgment to stay the sentence on that count.

Authority:

People v. Spirlin (2000) 81 Cal.App.4th 119, 131

People v. Broadbent (2020) 47 Cal.App.5th 917, 922–923

People v. Sok (2010) 181 Cal.App.4th 88, 100

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

Fourth Holding:

The abstract of judgment for the determinate term on count 2 be modified to reflect that the defendant was sentenced to the high term (“H”), rather than the mid-term (“M”).

Authority:

People v. Mitchell (2001) 26 Cal.4th 181, 187

Sentencing

Case: 000256

Posted on by Gary McCurdy

Error and/or relief

After a jury convicted the defendant of one count of kidnapping to commit a sex offense and five counts of forcible rape, he was sentenced to 25-years-to-life on one of the forcible rape counts, plus concurrent life terms on the remaining counts. The trial court also dismissed all fines and fees, although the abstract of judgment shows imposition of two $200 restitution fines. The sentence on the kidnapping to commit a sex offense count should be stayed because that count and the forcible rape count constituted a single criminal act. The court must correct the abstract of judgment to reflect that no restitution fines were imposed.

First Holding:

Section 209(d) provides that a person may be charged with a violation of section 209(b) and section 667.61, but that a person may not be punished under section 209(b) and section 667.61 for the same act that constitutes a violation of both section 209(b) and section 667.61.

Authority:

PEN 209(d)

People v. Adams (2018) 28 Cal.App.5th 170

Second Holding:

Here, the defendant kidnapped the victim to commit a sex offense, and this act formed the basis for his convictions. Additionally, because the victim was not released until after she was dropped off near her relative’s house, there was only one kidnapping offense. Thus, there was a single common act, and the punishment on count 1 (kidnapping to commit a sex offense) must be stayed.

Authority:

People v. Thomas (1994) 26 Cal.App.4th 1328, 1334 [The forcible detention of a victim is an element of kidnaping and as long as the detention continues, the crime continues]

Third Holding:

At the sentencing hearing the trial court expressly dismissed all fines and fees in the interest of justice. The abstract of judgment, however, reflects the imposition of a restitution fine in the amount of $200 under section 1202.4(b) and a suspended parole revocation restitution fine of $200 under section 1202.45. Where there is a discrepancy between the oral pronouncement of judgment and the minute order or the abstract of judgment, the oral pronouncement controls. If the clerk includes fines in the court’s minutes or the abstract of judgment that were not part of the oral pronouncement of sentence, those fines must be stricken from the minutes and the abstract of judgment.

Authority:

People v. Zackery (2007) 147 Cal.App.4th 380, 385

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

Fourth Holding:

Respondent argues the restitution fines are mandatory, and the trial court must impose them unless it finds compelling and extraordinary reasons for not doing so and states those reasons on the record. Respondent notes the trial court did not provide any compelling or extraordinary reasons on the record, and the only referenced reason was defendant’s inability to pay, which is not a compelling and extraordinary reason to not impose a restitution fine. Respondent requests we correct the abstract to impose the minimum restitution fines, or remand the matter to the court for the limited purpose of either imposing the fines or stating extraordinary and compelling reasons for not imposing the fines. We decline to do so. Because the district attorney failed to object to the court’s omission of a statement of extraordinary and compelling reasons, the waiver doctrine bars the People from obtaining the relief they seek on appeal. Thus, respondent cannot challenge the court’s failure to impose restitution fines in this appeal.

Authority:

PEN 1204.2

People v. Tillman (2000) 22 Cal.4th 300, 302

Sentencing, Standard of review

Case: 000254

Posted on by Gary McCurdy

Error and/or relief

Penal Code section 654 prohibits punishment for both the murder and the burglary during which it occurred. In addition, the defendant is entitled to one more day credit for time served.

First Holding:

Section 654 provides in relevant 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. It bars the imposition of multiple sentences for a single act or omission, even though the act or omission may violate more than one provision of the Penal Code. It 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. If all of the offenses were merely incident 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. Dowdell (2014) 227 Cal.App.4th 1388, 1413

People v. Mejia (2017) 9 Cal.App.5th 1036, 1042–1043

Second Holding:

On appeal, we review factual determinations under the deferential substantial evidence test, viewing the evidence in the light most favorable to the People. We review de novo the legal question of whether section 654 applies.

Authority:

People v. Valli (2010) 187 Cal.App.4th 786, 794

Third Holding:

Burglary consists of entry into a house with the intent to commit a felony. Thus, ordinarily, if the defendant commits both burglary and the underlying intended felony, section 654 will permit punishment for one or the other but not for both. Here, the record reflects that the intent and objective of both the burglary and the murder were the same, and this was the prosecution’s theory of the case at trial. Accordingly, in light of the evidence introduced at trial, the jury instruction on burglary, and the prosecutor’s argument, substantial evidence does not support the trial court’s order to sentence defendant consecutively on these counts. Rather, one of the sentences on counts 1 or 2 should be stayed pursuant to section 654. And, because section 654 provides the court with discretion with regard to which sentence will be stayed, remand is necessary for the court to exercise its discretion in modifying defendant’s sentence.

[GARY NOTE: Don’t ignore the importance of this last statement. While it may be hard to imagine a case in which a judge would sentence on the burglary and stay the sentence for the murder, the judge does have that discretion under section 654. You may have a case where your client may be more sympathetic and the crimes not so divergent in their relative seriousness. It is not inconceivable that you could persuade a judge to impose and execute sentence on the lesser evil committed by your client, staying execution of the sentence on the more serious offense.]

Authority:

People v. Centers (1999) 73 Cal.App.4th 84, 98

People v. Islas (2012) 210 Cal.App.4th 116, 130 [When a defendant is convicted of burglary and the intended felony underlying the burglary, section 654 prohibits punishment for both crimes]

Fourth Holding:

Defendant was entitled to one additional day of presentence custody credit because the court failed to include the day of his arrest.

Authority:

PEN 2900.5


People v. Taylor (2004) 119 Cal.App.4th 628, 647


People v. Valdes (2020) 53 Cal.App.5th 953, 955 [the day of arrest counts as a custody credit day]

Sentencing, Standard of review

Case: 000245

Posted on by Gary McCurdy

Error and/or relief

Section 654 required the court to stay the punishment for one of his two criminal threat convictions. The record is devoid of any evidence suggesting that the defendant had sufficient time to reflect and renew his intent between his act of sending the first set of text messages giving rise to count 2 and his act of sending the second set of text messages giving rise to count 3. Therefore, we modify the judgment to stay the punishment for one of the 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. Section 654 protects against multiple punishment, not multiple conviction. To avoid double punishment, a sentencing court applying section 654 will impose the sentence for one offense while staying the imposition of the sentence on the other offense.

Authority:

PEN 654

People v. Correa (2012) 54 Cal.4th 331, 336

People v. Mathis (2025) 111 Cal.App.5th 359, 367

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. We first consider if the different crimes were completed by a single physical act. If so, the defendant may not be punished more than once for that act. Only if we conclude that the case involves more than a single act—i.e., a course of conduct—do 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, 311–312

People v. Mathis (2025) 111 Cal.App.5th 359, 367

Third Holding:

Whether section 654 applies in a given case is a question of fact for the trial court, which is vested with broad latitude in making its determination. The court’s express or implied findings in support of its determination that section 654 does not apply will be upheld on appeal if substantial evidence supports them. The applicability of section 654 to settled facts presents a question of law.

Authority:

People v. Cruz (2020) 46 Cal.App.5th 715, 737

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

Fourth Holding:

Where there is a basis for identifying the specific factual basis for a verdict, a trial court cannot find otherwise in applying section 654. However, in the absence of some circumstance foreclosing its sentencing discretion a trial court may base its decision under section 654 on any of the facts that are in evidence at trial, without regard to the verdicts. Indeed, a court may even rely on facts underlying verdicts of acquittal in making sentencing choices.

Authority:

People v. McCoy (2012) 208 Cal.App.4th 1333, 1339-1340

Fifth Holding:

If multiple offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one. However, a course of conduct divisible in time, although directed to one objective, may give rise to multiple violations and punishment. 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.

Authority:

People v. Fuentes (2022) 78 Cal.App.5th 670, 680

People v. Gaynor (2019) 42 Cal.App.5th 794, 800 [even if a course of conduct is directed to one objective, it may give rise to multiple violations and punishment if it is divisible in time]

People v. Goode (2015) 243 Cal.App.4th 484, 492 [If the offenses were committed on different occasions, they may be punished separately]

People v. Gaio (2000) 81 Cal.App.4th 919, 935

People v. Louie (2012) 203 Cal.App.4th 388, 399 [If the separation in time afforded the defendant an opportunity to reflect and to renew the defendant’s intent before committing the next crime, a new and separate crime is committed.]

Appellate Principles, Sentencing

Case: 000223

Posted on by Gary McCurdy

Error and/or relief

Sentences for eight of his convictions, which the defendant served concurrently with his completed determinate term, should have been stayed under section 654. The court found the balance of the issues forfeited for lack of objection at the trial level.

First Holding:

A party in a criminal case may not, on appeal, raise claims involving the trial court’s failure to properly make or articulate its discretionary sentencing choices if the party did not object to the sentence at trial. The rule applies to cases in which the stated reasons allegedly do not apply to the particular case, and cases in which the court purportedly erred because it double-counted a particular sentencing factor, misweighed the various factors, or failed to state any reasons or give a sufficient number of valid reasons.

Authority:

People v. Gonzalez (2003) 31 Cal.4th 745, 751

Second Holding:

In contrast to errors in exercising sentencing discretion, 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.

Authority:

People v. Perez (1979) 23 Cal.3d 545, 549, fn. 3

Third Holding:

In general, a person may be convicted of, although not punished for, more than one crime arising out of the same act or course of conduct. In California, a single act or course of conduct by a defendant can lead to convictions of any number of the offenses charged. Section 954 generally permits multiple conviction. Section 654 is its counterpart concerning punishment. It prohibits multiple punishment for the same act or omission. When section 954 permits multiple conviction, but section 654 prohibits multiple punishment, the trial court must stay execution of sentence on the convictions for which multiple punishment is prohibited. Imposition of concurrent sentences is not the correct method of implementing section 654, because a concurrent sentence is still punishment.

Authority:

PEN 654

PEN 954

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

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