Multiple Punishment for Single Act (PC 654)
Category > Multiple Punishment for Single Act (PC 654)
Updated 7/12/2024Defendant was improperly convicted of both continuous sexual abuse under section 288.5 and other overlapping discrete counts.The prosecutor charged and the jury convicted defendant of one count of continuous sexual abuse under Penal Code section 288.5, and four other counts of distinct acts of sexual abuse occurring within the same period. However, under section 288.5(c), the defendant was improperly convicted of both continuous sexual abuse and other overlapping discreet sexual-act counts.id: 28307
Updated 3/4/2024The trial court erred in imposing separate and consecutive sentences where kidnap for robbery and robbery were incident to a single objective.Defendant was convicted of kidnaping for robbery and robbery and given consecutive sentences. The robbery was incident to the kidnaping for robbery. Because the kidnaping had no objective but robbery, the robbery sentence and the enhancement were stayed. id: 27244
Updated 2/26/2024Defendant could be punished once for his single possession of various items of contraband.Defendant’s single possession of each item of contraband (cocaine, cocaine base, methamphetamine, and firearm) constituted a single act subject to one punishment and the separate sentences imposed violated Penal Code section 654.id: 27259
Updated 2/26/2024Consecutive sentences for domestic violence and aggravated assault based on the same course of conduct were improper.Penal Code section 654 prohibited consecutive sentences for count three (domestic violence) and count four (assault with force likely to cause great bodily injury) because both counts were predicated on the same course of conduct that had a single objective. The sentence on one count had to be stayed.id: 26280
Updated 2/23/2024The trial court violated section 654 by imposing separate punishments for the sale of weapons and their included magazines.The trial court’s imposition of separate sentences for possession of firearms and selling a large-capacity magazine violated Penal Code section 654 because the sale of the same firearms was also punished.id: 26777
Updated 2/22/2024The evidence was insufficient to support the court’s finding that the NGI defendant was dangerous 45 years after his offense despite continuing mental illness.Defendant who had been found not guilty by reason of insanity extended his civil commitment under Penal Code section 1026.5. The evidence was insufficient to support the court’s finding that his mental illness prevents him from controlling his potentially dangerous behavior. Defendant was an old man in his late 70's after 45 years of hospitalization who continues to exhibit delusions and paranoia, but despite his condition defendant hasn’t committed a violent or aggressive act (or spoken in a violent or threatening way) in 45 years. The appeal was moot because defendant was recently released but the court considered the issue because it was likely to recur.id: 27030
Updated 2/3/2024Assault with a deadly weapon and “force likely assault” are different statements of the same offense and multiple convictions are prohibited by section 954.Assault with a deadly weapon under Penal Code section 245 (a) (1), and assault with force likely to produce great bodily injury under section 245 (a) (4) are different statements of the same offense and a defendant cannot be convicted of both.id: 27556
Updated 2/3/2024Section 954 prohibited separate convictions for ADW and assault likely to cause GBI where the convictions were based on the same conduct.Defendant could not be convicted of both assault with force likely to cause great bodily injury where the two offenses were based on the same conduct. The multiple convictions were prohibited under Penal Code section 954. id: 27735
Updated 2/3/2024AB 518 applies retroactively.Assembly Bill 518’s amendment to Penal Code section 654 is to be applied retroactively, to all nonfinal cases.id: 27714
Updated 2/1/2024SB 567 requires that aggravating factors used to support an upper term must be found true by the jurors beyond a reasonable doubt.The trial court imposed an upper term sentence based on a number of aggravating factors. During the appeal SB 567 became effective, and the provision modified Penal Code section 1170(b) and now requires that aggravating factors be found true beyond a reasonable doubt by a jury or stipulated to by the defendant. There is an exception for prior convictions. Defendant had a prior conviction but the record did not show the trial court would have imposed the upper term based on that factor alone. So the case was remanded for resentencing where AB 518 may also be employed as that provision says the court need not impose the longer term when defendant was convicted of more than one offense arising from the same conduct.id: 27994
Updated 2/1/2024The new sentencing laws under SB 567 and AB 518 are to be applied retroactively.Senate Bill 567 (amending Penal Code section 1170(b) as it relates to the presumptive term) and Assembly Bill 518 (amending section 654) apply retroactively, and the case was remanded to allow the trial court to resentence the defendant under the new law.id: 28003
The trial court should have stayed rather than impose concurrent sentences for the pimping and human trafficking counts.Defendant argued the trial court erred by imposing concurrent sentences for the pimping and human trafficking counts. The offenses were part of a single course of conduct with the same intent and objective, and the court was required to stay the punishment for the pimping charge.id: 26148
Defendant could not be punished for both kidnapping to commit rape and the kidnap provision of the one strike law based on the same act.Defendant was convicted of kidnapping the victim with the intent to commit a sex offenses under Penal Code section 209. The same act was also used to invoke the sentence under section 667.61. Because there was a common act with a single victim on the same day, the court was required to stay punishment on the kidnapping to commit rape count.id: 25925
The trial court erred by imposing three consecutive one-year terms for each of the deadly weapon enhancements on the single attempted murder count.Defendant was convicted of the attempted murder of his wife and sentenced to a life term. The trial court erred when it imposed to that count three consecutive one-year enhancements for the use of different deadly weapons. Penal Code section 654 prohibits multiple punishment under these circumstances even with an indeterminate term.id: 25881
Section 654 prohibits punishment for both robbery and carjacking based on the same physical act.The forcible taking of a vehicle - the same taking that, according to the prosecution, accomplished the crimes of both robbery and carjacking - constitutes a single physical act subject to the prohibition on multiple punishment under Penal Code section 654.id: 25045
Separate sentences for ADW using a scissors and robbery with use of a deadly weapon (scissors) were prohibited by section 654 where there was a single incident. Defendant was convicted of assault with a deadly weapon (scissors) and robbery with personal use of a deadly weapon (scissors). His single act of threatening the victim with scissors satisfied the ADW weapon requirement as well as the force or fear element of robbery. The trial court erred by not staying under Penal Code section 654, the one year sentence for the ADW. id: 24932
A person who has been convicted of violating Penal Code section 245, subd.(a)1) cannot also be convicted under subd.(a)(4) based on the same assault.The minor could not properly have been found to have violated both Penal Code section 245, subd.(a)(4), assault by force likely to produce great bodily injury, and section 245, subd.(a)(1) assault with a deadly weapon or instrument other than a firearm because the former is a necessarily included offense specified in the latter.id: 24916
Imposing the multiple victim and GBI enhancements for the same victims violated section 654.The trial court erred by imposing both a sentence enhancement under Vehicle Code section 23558 for injuring multiple victims and an enhancement under Penal Code section 12022.7, subd.(a) for inflicting injury on the same victims. Penal Code section 654 prohibited the imposition of both enhancements.id: 25231
The false imprisonments were indivisible from the robberies and the trial court should have stayed the sentences on the former. The sentences for false imprisonment convictions should have been stayed under Penal Code section 654 where the offenses were part of an indivisible course of conduct with the robberies.id: 25071
Section 654 bars separate punishment for being a felon in possession of a firearm and for the firearm enhancements attached to the narcotics offenses.The trial court erred by imposing separate punishments for being a felon in possession of a firearm and the enhancements for being armed in the commission of a narcotics offense where the arming enhancements imposed under Penal Code section 12022, subd.( c) pertained to the same possession of the firearm on the same occasion.id: 24770
The trial court violated section 654 by sentencing defendant for the aggravated kidnapping and simple kidnapping that were based on a single act. After sentencing defendant for the aggravated kidnapping on count one, the trial court should have stayed the sentence for the simple kidnap on count three because Penal Code section 654 prohibits double punishment for the same act of a kidnapping.id: 24601
The trial court erred by imposing separate restitution fines for drunk driving and driving on a suspended license. The trial court violated Penal Code section 654 by imposing a section 1202.4 restitution fine of $300 for the drunk driving offense, and another $150 restitution fine for the driving with a suspended license violation. Although the court suspended imposition of sentence and placed defendant on probation, it could not impose as a condition of probation, fines that exceeded the maximum provided by law.id: 24642
The trial court erred by imposing consecutive sentences for a burglary and an attempted burglary of the same house within seconds of each other.Defendant was convicted of burglary from opening a metal storm door of a residence and attempted burglary for jiggling a window of the same residence a few seconds later. The trial court erred by imposing consecutive sentences because the crimes were part of a continuous course of conduct.id: 24462
Defendant was improperly convicted of two counts of rape based on a single act of intercourse. Defendant was improperly convicted of both rape of an intoxicated person (Penal Code section 261, subd.(a)(3) and rape of an unconscious person (Penal Code section 261, subd.(a)(3) and (a)(4)) based on a single act of intercourse. The judgment was modified to reflect a single count of Penal Code section 261, subd.(a)(3) (and (a)(4).id: 24289
The trial court violated section 654 by imposing separate sentences for the robbery and burglary of the victim.Defendant was convicted of robbery and burglary of a woman in her home. The trial court erred by failing to stay the sentence on the burglary count pursuant to Penal Code section 654 because both offenses were committed with the single intent and objective of stealing items from the home.id: 24226
Defendant could only be sentenced once for offering to sell an individual three different drugs.The trial court sentenced defendant to three consecutive sentences for her convictions for offering to sell three substances - cocaine base, cocaine and methamphetamine. However, Penal Code section 654 prohibited two of these sentences, as the conduct underlying these counts constituted a single act of offering to sell drugs to one individual.id: 24115
Defendant could not properly be convicted of gross vehicle manslaughter while intoxicated and the lesser included offense of drunk driving causing injury. Defendant was convicted of gross vehicle manslaughter while intoxicated. He was also convicted of drunk driving causing injury. The trial court erred by staying imposition of sentence on the latter count as it was a lesser included offense of the former. As such, it should have been dismissed.id: 23965
Defendant was improperly convicted of two rape counts based on a single act.Defendant was improperly convicted of both rape of an unconscious person and rape of an intoxicated person based on a single act of intercourse. The two convictions must be consolidated into a single count reflecting rape under both provisions. id: 24011
Forgeries and burglaries were committed with a single objective and therefore the sentence on the forgery counts should have been stayed under section 654. Defendant wrote three checks to herself from a friend’s checkbook, forged his signature and cashed the checks at a bank. She was convicted of three counts of forgery and three counts of commercial burglary. The sentence on the forgery counts should have been stayed under Penal Code section 654 because the forgeries and burglaries were undertaken with a single objective - to obtain money via the forged checks.id: 23471
The insane defendant’s use of a hammer was incidental to the carjacking for purposes of section 654, and he could not be punished for both in the state hospital committment order. Defendant was legally insane at the time he committed the present offenses. Whether or not he was capable of forming criminal intent, his actions showed that his use of the hammer was “incidental” to the carjacking and he could not be punished for both. His committment order was therefore modified to reduce the maximum period of confinement to 15 years.id: 22939
Imposition of sentence on the sexual battery count had to be stayed under section 654 where it was based on the same act as the assault with intent to penetrate count.Defendant was convicted of sexual battery in count five for touching the victim’s genital area, and assault with intent to commit penetration in count five for fondling the victim’s genital area. Because the offenses were based on the same act, defendant could not be punished twice. The court should have stayed imposition of sentence on count five.id: 22976
Defendant may not be separately punished for violating sections 12021, subd.(a) and 12021.1 based on possession of same firearm.Defendant was convicted of two counts of possessing a firearm after conviction of a felony (former Penal Code section 12021, subd. (a)) and two counts of possessing a firearm after conviction of a specified violent offense (former section 12021.1.) All counts were based on defendant’s simultaneous possession of two firearms. Neither of the listed offences is a necessarily included offense of the other, so defendant was properly convicted of both offenses. And defendant may be separately punished for two violations of section 12021, subd.(a) and 12021.1 based on his simultaneous possession of two weapons. But he may not be separately punished for violating both provisions based on possession of the same firearm.id: 22966
A defendant may be convicted of only a single count of unlawful oral copulation based on a single act of oral copulation.Defendant was convicted of both oral copulation of an unconscious person under Penal Code section 288a, subd.(f), and oral copulation of an intoxicated person under section 288a, subd.(i). Both convictions were based on a single act of copulation. Only one conviction was proper and the convictions were consolidated into a single conviction for unlawful oral copulation.id: 22975
The insane defendant’s use of a hammer was incidental to the carjacking for purposes of section 654, and he could not be punished for both in the state hospital committment order. Defendant was legally insane at the time he committed the present offenses. Whether or not he was capable of forming criminal intent, his actions showed that his use of the hammer was “incidental” to the carjacking and he could not be punished for both. His committment order was therefore modified to reduce the maximum period of confinement to 15 years.id: 22940
Defendant could not be punished twice for grand theft of a firearm and illegal possession of the same weapon. Defendant was convicted of grand theft of a firearm and firearm possession by a felon. His sentence for the latter offense should have been stayed under Penal Code section 654 because the two offenses were incidental to a single criminal objective - to possess a gun.id: 22874
Kellett rule barred another prosecution after the guilty plea where the prosecution failed to explain why they could not have read the incriminating text messages before the guilty plea.Defendant was a passenger in a carjacked car that was stopped by police. He pled guilty to auto theft (and other charges) but was not charged with carjacking. Police later obtained a warrant to search defendant’s phone which they had seized from the car. They discovered text messages that implicated him in the carjacking and thereafter charged him with that offense. However, prosecution for that offense was barred by Penal Code section 654's bar against multiple prosecutions and Kellett v. Superior Court (1966) 63 Cal.2d. 822. There was no showing that the prosecution exercised due diligence to discover the text messages, and absent that showing, defendant was protected against a second prosecution.id: 22723
The trial court erred by punishing defendants for the substantive street gang count after imposing the terms for both arson and witness dissuasion.Defendants were convicted of, and punished for, setting fire to the apartment in the arson count, and they were convicted of, and punished for, the verbal threat in dissuading the witness. They could not be punished again for either action so the trial court erred by imposing an additional sentence for the Penal Code section 186.22, subd.(a) street terrorism count. id: 22581
Defendant could not be punished for both making a criminal threat and dissuading the witness he threatened.Defendant was convicted of making criminal threats and dissuading a witness. The threat was the method used to dissuade the witness so this was a single criminal act and defendant could not be punished for both offenses.id: 22579
Penal Code section 654 prohibited punishment for defendant’s gang crimes in addition to his punishment for assault with a firearm and possession of a firearm by a felon. In each of two separate incidents, defendant, a gang member and convicted felon, shot a victim. He was convicted of and punished for assault with a firearm, possession of a firearm by a felon, and actively participating in a street gang (based on the shooting or firearm possession). Punishing defendant for assault with a firearm and for possession of a firearm by a felon precluded additional punishment for actively participating in a gang.id: 22728
Defendant could not be punished for both arson and vandalism where he had the single intent of burning his house.Penal Code section 654 prohibited punishment for both defendant’s arson and vandalism convictions where defendant’s single objective was to burn his house down, and in the process caused collateral damage to his neighbor’s home.id: 22673
Penal Code section 654 prohibited separate punishment for convictions of three offenses based on the single act of possessing a gun.Defendant, a convicted felon, carried a loaded and concealed firearm. He was convicted of possession of a firearm by a felon, carrying a concealed and unregistered firearm, and carrying an unregistered loaded firearm in public. Because different provisions of law punish in different ways defendant’s single act, Penal Code section 654's plain language prohibits punishment for more than one of those crimes.id: 22782
Defense counsel rendered ineffective assistance by failing to renew a Kellett motion where the second case was based on facts that formed the basis of his original no contest plea.Defendant pled no contest to providing false information to a police officer in violation of Penal Code section 31 based on conduct that took place at the scene of an accident on February 5th. He was later prosecuted for presenting a false insurance claim under section 550, subd.(a)(1). The prosecution claimed the new charge was based on February 9th events where defendant lied to his insurance company about driving a rental car at the time of the accident. However, after the preliminary hearing it was clear the second charge was not based on statements to the Esurance representative but rather on the false information defendant gave to the accident victim which caused her to file a claim with his company. This all stemmed from conduct that occurred on February 5th and about which the prosecution knew. The second prosecution was barred by Kellett v. Superior Court (1966) 63 Cal.2nd 822, and defense counsel rendered ineffective assistance by not renewing a motion to dismiss that charge.id: 22516
Where defendant was convicted of both murder and gross vehicular manslaughter while intoxicated for the same act, the restitution fine for the latter should have been stayed under section 654.Defendant was convicted of murder and gross vehicular manslaughter while intoxicated. The trial court essentially imposed a $3,000 restitution fine for each offense. However, the sentence for count two was stayed under Penal Code section 654. The fine for that count should have been stayed as well.id: 22474
Imposition of both firearm use and GBI enhancements based on the single act of pulling the trigger violated section 654.Defendant both personally used a firearm under Penal Code section 12022.5 and personally inflicted great bodily injury during the domestic violence under Penal Code section 12022.7 by a single act - pulling the trigger. The imposition of separate and unstayed sentences on both the firearm use enhancement and the great bodily injury enhancement violated Penal Code section 654.id: 22013
The trial court misunderstood its sentencing options and the matter was remanded for resentencing. In People v. Palacios (2007) 41 Cal.4th 720, the court held that Penal Code section 654 did not prohibit multiple sentence enhancements under section 12022.53, when it did not prohibit multiple punishment of the underlying crimes. Here, the sentencing court mistakenly believed Palacios required the court to impose consecutive enhancements under section 12022.53(d) whether or not section 654 prohibited multiple punishment for the underlying offenses. The matter was remanded to the trial court to determine whether the shooting was incidental to the robbery pursuant to section 654, and if not, whether to impose a concurrent or consecutive term for the robbery count.id: 22067
While defendant could be sentenced for both the substantive gang offense and the section 12022.53, subd.(e) enhancement, section 654 required a stay where the intent for the gang offense was the same as that for the robbery.Defendant argued that the trial court erred by imposing the sentence for the Penal Code section 12022.53, subd.(e) gang enhancement and then a consecutive sentence for the section 186.22, subd.(a) substantive gang offense. While a defendant can be sentenced for both the substantive gang offense and the section 12022.53, subd.(e) enhancement, the sentencing court should have stayed the former under section 654 because it was based on the same intent he had when he committed the robbery - to benefit his gang.id: 22244
Section 654 prevented multiple sentences where the robbery and witness dissuasion had a single objective. Penal Code section 654 precluded punishment for both robbery and witness dissuasion because the objectives were incidental to each other - defendants took the victim’s cell phone so that he could not use it to contact the police. Because of the gang enhancement that attached to it, the witness dissuasion count provided the longer potential term (an indeterminate life sentence). Execution of the five year sentence for the robbery was stayed.id: 22199
The trial court erred in failing to stay the sentence on the street terrorism charge because defendant had the same objective in committing the underlying firearm offense.Penal Code section 654 barred punishment for both the firearm offense and the substantive street terrorism offense (Penal Code section 186.22, subd.(a)) where the jury necessarily relied on one of the underlying firearm offenses to establish the requisite felonious conduct on the street terrorism charge.id: 21869
A defendant’s continuous possession of a single firearm does not permit multiple punishment.Defendant argued the trial court erred by imposing consecutive sentences for the three firearm possession convictions. Because he had continuous possession of the firearm, section 654 required that imposition of sentencing be stayed on two of the possession counts.id: 21683
The trial court should have stayed the weapon use enhancement on the burglary count because it was based on the same conduct that gave rise to the ADW count.Defendant was convicted of assault with a deadly weapon and burglary which included a Penal Code section 12022, subd.(b)(1) personal use of a deadly weapon enhancement. The trial court should have stayed the enhancement because it was based on the same indivisible course of conduct that gave rise to the ADW count.id: 21575
The imposition of separate and unstayed sentences for both gang participation and robbery constituted multiple punishment in violation of section 654.Penal Code section 654 precludes multiple punishment for both 1) gang participation, one element of which requires that the defendant have “willfully promoted, furthered, or assisted in any felonious criminal conduct by members of the gang,” and 2) the underlying felony that is used to satisfy the element of gang participation.id: 21269
Defendant should only have been convicted of one count of murder involving the killing of a victim charged in separate counts under three alternative theories.Defendant was improperly convicted of three separate counts of murder of Trujillo as the three counts charged a single offense under alternative theories. The judgment was consolidated to reflect one count of murder with two special circumstances and a finding of malice.id: 21109
A term cannot be both consecutive and stayed simultaneously because the two are mutually exclusive.The one-third-the-midterm rule of Penal Code section 1170.1, subd.(a) only applies to a consecutive sentence, not a sentence stayed under section 654. A stayed sentence cannot be consecutive to a principle sentence.id: 21238
Defendant was improperly punished for the murder and substantive gang offense where he shot the bystander with the single purpose of promoting the gang.The trial court erred under Penal Code section 654 by punishing defendant for murder and the street gang offense where the evidence showed the defendant in shooting the bystander had the single purpose of promoting his gang.id: 21239
Where there was only one kidnapping - the kidnapping for robbery which gave rise to the two kidnapping enhancements - imposition of multiple punishment for each enhancement violated section 654.Defendant was convicted of kidnapping for robbery, forcible oral copulation, and rape. Enhancement allegations that he kidnapped the victim for the purpose of forcible oral copulation and rape were found true. Once the defendant was sentenced for the kidnapping he could not be given an unstayed sentence on either of the two kidnapping enhancements.id: 9904
A defendant may not be separately punished under section 290 for failure to notify the county he left and the county to which he moved.When a person required to register as a sex offender changes residence within California, he must notify the local authorities in both his former and new residences (Penal Code section 290, subds. (a)(1)(AP and (f)(1). A person who moves counties without notifying either county may not be separately punished for the two failures to notify. Moreover, although he may be charged with both offenses in either county where he prosecutor knows or should know of both offenses, he may be prosecuted for them only once.
id: 17834
Separate punishment is not permitted where the sole objective of the kidnapping is to facilitate the rape.A person kidnaps his victim, drives her into a desert, then rapes her and leaves her behind. Pursuant to Penal Code section 654 he may not be punished for the kidnapping as well as the rape because the sole objective of the kidnapping was to facilitate the rape. This result was first established in <i>Neal v. State of California</i> (1960) 55 Cal.2d 11, and the instant Court questioned but refused to overrule the decision.id: 9781
Defendant could not be convicted of two acts of forgery (under different subdivisions of section 470) for signing another person's name to a check and using it to purchase goods.Defendant was convicted of two counts of forgery under Penal
Code section 470(a) for signing another person's name, and two counts of forgery under section 470(d) for making or passing a forged check. Contrary to defendant's claim, the offenses under
subdivision (a) were not lesser included offenses of those listed under subdivision (d). However, two convictions were nevertheless improper since defendant's act of signing another person's name to a check then used to buy things (which he did twice) supported a single act of forgery each time. The two convictions under subdivision (a) were vacated.id: 18990
The hate crime statute is not implicitly exempted from the operation of section 654.The minors argued the term imposed for violating Penal Code section 422.6 should have been stayed pursuant to section 654, because the acts underlying that violation were the same as those underlying the assault charges. The court erred in finding the Legislature implicitly exempted section 422.6 from the operation of section 654, because the impact of the harm resulting from hate crimes extends beyond the immediate victims to the larger communities.id: 10538
Defendant could not be separately punished for forgery and theft where forgery was the means used to commit the theft.Defendant could not be separately punished for forgery in counts 9 and 17 because the forgeries were part and parcel of the theft, securities fraud and burglary. She had a single criminal intent – to take the victim’s money. The separate sentences violated Penal Code section 654 and were ordered stayed.id: 20717
Defendant could not be punished for both money laundering and receiving stolen property. Defendant could not be punished for both the money laundering and receiving stolen property counts because the evidence showed he harbored a single intent – to receive the stolen funds. The sentence for receiving stolen property should have been stayed under Penal Code section 654. id: 20698
All but one of the forgery counts were reversed even though there were multiple victims.Defendant was convicted of multiple counts of forging blank checks in violation of Penal Code section 475, subd.(b). The counts involved six different victims but there is no multiple victims exception for forgery. All but one of the forgery counts were reversed.id: 20663
Defendant could not be convicted of credit card fraud to purchase a computer and receiving stolen property.Defendant was convicted of credit card fraud as she used the victim’s credit card to purchase the computer, and receiving stolen property – the same computer. The convictions for both counts violated the prohibition against the dual convictions for theft and receipt of the same property.id: 20619
The matter was remanded to allow the court to decide whether the attempted arson and resisting arrest occurred on the same occasion for purposes of section 654.The trial court had discretion to impose consecutive terms for the attempted arson and resisting arrest but had discretion to impose concurrent terms under Penal Code section 654. The matter was remanded to allow the trial court to determine whether the offense occurred on the same occasion or arose from the same set of facts.id: 20421
Robbery is not a lesser included offense of kidnapping to commit robbery but because the offenses arose out of a the single incident the robbery sentences were stayed.Simple kidnapping is a lesser included offense of kidnapping to commit robbery. However, robbery is not a lesser included offense of that crime. The simple kidnapping convictions were reversed. While the robbery convictions were proper, the sentences were stayed under Penal Code section 654 because the crimes were committed pursuant to a single objective.id: 20363
Defendant cannot separately rob a store and the clerk during a single incident.Defendant was convicted of 14 counts of robbery for seven incidents where he took property belonging to the store and personal property belonging to the store clerk. The distinction between store property and personal property is irrelevant. Defendant should have only been charged with and convicted of seven counts.id: 19272
Multiple sentences were prohibited for the robbery and vehicular burglary where there was a single objective of stealing a stereo. Penal Code section 654 prohibited sentences for both the second degree robbery and vehicular burglary where there was a single
objective of stealing the stereo. While defendant adopted an aggressive posture and showed the screwdriver he did not make additional threats of violence that would have reflected an
independent objective of applying forcse. The sentence for the burglary was stayed.id: 19850
Petty theft with a prior is a lesser included offense of robbery so defendant could not be convicted of both offenses arising from the same incident.A defendant cannot be convicted of both robbery and petty theft with a prior arising from the same incident, because the prior conviction is a sentencing factor, rather an element, so petty theft with a prior is a lesser included offense of robbery.id: 20014
Defendant was properly convicted of kidnap for ransom and kidnap for robbery involving one victim although only one sentence was proper.Contrary to defendant's contention it was proper to convict him of both kidnapping for robbery and kidnapping for ransom in a transaction involving a single victim. However, Penal Code section 654 precluded the imposition of multiple sentences where the crimes were directed toward a single goal. Therefore, sentencing on one kidnap and its enhancement was stayed.id: 9754
Section 854 prevented sentences for both conspiracy to commit murder and street terrorism where there was a single intent and objective.Defendant's acts of conspiracy to commit murder and street terrorism constituted a criminal course of conduct with a single
intent and objective. While convictions for both were proper, the court should have stayed the sentence on the street terrorism conviction.id: 19306
Imposing sentence on only one count was proper where the assault occurred in the course of the robbery.The assault on the victim was clearly in the course of the robbery and was not a separate and distinct act. Imposing sentence on both counts was therefore improper.id: 13749
Separate sentences were improper for one failure to appear at a joint offenses hearing.Though appellant was separately charged in two insufficient funds cases, he was sentenced twice for failing to appear for one joint hearing, both cases being set for hearing on the same date at the same time and at the same place. His failure to appear was a single act and one of the sentences should have been stayed pursuant to Penal Code section 654.id: 13769
Section 654 prohibited separate sentences for arson, murder, and attempted murder where defendant ignited a fire in the victim's home.The trial court erred in failing to stay the term for the arson count pursuant to Penal Code section 654. The arson, murder, and attempted murders were committed by the act of igniting the fires in the victim's home. Accordingly, section 654 mandates that execution of the term imposed for arson be stayed pending not only service of the term imposed for the murder but also the terms for attempted murder.id: 13763
Consecutive sentences for robbery and felony murder/robbery violated section 654.The trial court imposed a one-year term for defendant's robbery conviction to be served consecutive to the indeterminate sentence for murder. The court erred in failing to stay the sentence for robbery under Penal Code section 654, because the act of robbery was the same act which made the killing first degree murder.id: 13731
Multiple sentences were improper where defendant committed a kidnap for ransom during which the victim was killed.Defendant committed a kidnap for ransom during which the victim was killed. His conduct as a participant in the aggravated kidnapping and in the second degree murder are indistinguishable and he was improperly sentenced for both crimes.id: 13755
When multiple acts are committed in furtherance of one criminal objective, the court should stay the lesser sentence rather than ordering it to run concurrently.The court erred in ordering the burglary term to run concurrently to the rape sentence after acknowledging the section 654 problem. The court should have stayed the burglary sentence rather than ordering it to run concurrently with the rape sentence where the acts were committed in furtherance of one criminal objective. The victim's own testimony indicated defendant's only criminal objective when entering the victim's home was sexual assault.id: 13781
Concurrent sentences for robbery and the lesser related offense of accessory after the fact violated section 654.The trial court sentenced appellant to two years in state prison for the lesser related offense of accessory after the fact (Penal code section 32), to be served concurrently with the robbery term. The concurrent sentence violated Penal Code section 654 by punishing him twice for the same conduct: assisting Evan carry the guns from the victim's house to Evan's car trunk. Respondent argued there was substantial evidence that appellant had two intents while stealing the guns (to rob the victim and to aid Evan in the murder). However, all appellant's acts constituted his commission of the robbery, only his mental state made those same acts a violation of section 32.id: 13727
Defendant could not properly be punished for both arson of a carport and arson of a vehicle that was inside it.Pursuant to Penal Code section 654 defendant was improperly punished for both arson of the carport and arson of the vehicle that was inside it because the two offenses were part of a single, indivisible course of conduct and shared the same criminal objective.id: 13742
Court erred in imposing a separate term for the vehicle theft where the vehicle was object of the robbery.Defendant argued the court violated Penal Code section 654 by imposing separate terms for both robberies, and the vehicle taking or driving. With respect to the two robberies the court properly utilized a separate term for the second robbery. Section 654 does not bar the imposition of separate punishments for separate crimes of violence committed against separate victims. However, the court erred in imposing a separate term for the vehicle theft as the vehicle was the actual object of the robbery and was taken from the immediate presence of the victims.id: 13739
The trial court erred in imposing sentences for robbery and possession of cocaine for sale because these offenses constituted an indivisible criminal transaction.The facts showed indisputably the defendants had but one intent and objective and that was to obtain possession of a large quantity of cocaine which they could then sell; the robbery of the trunk key and the cocaine itself was merely the means to that end. Therefore, defendants could have been punished for the more serious of the crimes but not for both.id: 13777
The kidnap for ransom, extortion and escape were part of an indivisible transaction having a single objective and the sentences on the latter offense were stayed.The kidnap for ransom, extortion, and escape were part of an indivisible transaction having a single objective, escape. Penal Code section 654 bars multiple punishment where the crimes are directed toward a single goal so that sentences for extortion and attempted escape were stayed. Likewise, the assault with a deadly weapon, while atrocious, was committed to get the attention of the person who could supply the getaway truck. The sentence on that count was similarly stayed.id: 13775
Knife use enhancement for second degree murder was improper since defendant was already punished for the knife use under the assault with a deadly weapon count.The knife use enhancement to Count 1, second degree murder, punished defendant for an act for which he was punished under Count 2, assault by means of force likely to cause great bodily injury (Penal Code section 245, subdivision (a)(1)). This was not a case of a single act involving violence against different victims. The enhancement was stricken as violative of section 654.id: 13753
Defendant could not be separately punished for possessing the silencer since the offense was part of the same course of conduct as the conspiracies.The trial court erred in imposing concurrent sentences on his conviction for possession of a silencer, his conviction for conspiracy to kidnap and murder Wei, and his conviction of conspiracy to murder Wei's wife. The conviction for possessing the silencer could not be separately punished because it was an indivisible part of the same course of conduct as the conspiracies.id: 13741
Robbery term should have been stayed where the burglary and robbery were committed simultaneously.Defendant was improperly sentenced to concurrent terms for the burglary, grand theft and robbery in violation of Penal Code section 654. It was during the course of the burglary that defendant used force on the victim to retain the motorcycle. Such evidence supports a conclusion the burglary was still in progress when defendant committed the robbery and both offenses were part of a single continuous course of conduct. The grand theft conviction was reversed because it is a lesser included offense of robbery. The concurrent terms for burglary and robbery were improper and the term for the robbery was stayed.id: 13758
Defendant, who assaulted a store security guard attempting to stop the theft, was improperly convicted of both grand theft and robbery.Defendant was improperly convicted of two crimes, robbery and grand theft from Fry's. Mira, a Fry's employee was attacked by defendant when he tried to capture defendant and the stolen merchandise. Defendant had a single intent - to steal merchandise from Fry's. He assaulted Mira in the middle of an indivisible course of conduct. The grand theft conviction was reversed.id: 16203
Section 654 barred the use of two injury enhancements based upon an act against a single victim.Defendant was convicted of driving while under the influence of drugs and transporting drugs. The jury also found true several enhancement allegations: causing bodily injury to more than one victim (Vehicle Code section 23182), inflicting great bodily injury on three victims, one of whom became comatose (Penal Code section 12022.7, subdivisions (a) and (b)). The court imposed two one-year enhancements under section 23182 for two of the victims, a five-year enhancement under section 12022.7, subdivision (b) for the victim with the brain injury, and two three-year enhancements under section 12022.7, subdivision (a) for the other two victims. Contrary to defendant's claim section 23182 did not preempt the application of section 12022.7 on the theory that the special statute controls over a general statute. Penal Code section 654 applies to GBI enhancements but does not prohibit increased punishment where a single act injures more than one person. Therefore section 654 barred the use of both enhancements against a single victim and only the greater enhancement applied.id: 16206
While multiple GBI enhancements can be imposed following a single act, section 654 precludes imposition of section 12022.7 as well as V.C. 23182 enhancements for the same injury to two victims.Defendant was convicted of drunk driving causing injury to multiple victims. Contrary to defendant's claim, Penal Code section 654 (which applies to great bodily injury enhancements) does not prohibit imposing more than one enhancement under section 12022.7. However, section 654 did preclude imposition of both section 12022.7, and Vehicle Code section 23182 (drunk driving causing injury to multiple victims) enhancements for the same injury on two victims.id: 16259
Where the three strikes law does not mandate consecutive sentencing, Penal Code section 654 prohibits multiple punishment.Defendant attempted to rob the victim in a parking lot, and when the victim resisted, defendant shot him. He was convicted of attempted robbery and attempted murder. When the three strikes law does not mandate consecutive sentences, Penal Code section 654 prohibits multiple punishment under the three strikes law. In the present case, it prohibited separate sentences for both the attempted murder and attempted robbery. While the law creates an exception to section 654 which applies to enhancements, it does not refer to, and hence the exception does not apply, to a second current conviction.id: 15197
Two of the three felon in possession of a weapon counts should have been stayed under section 654 where the weapon possession was continuous and the intent to possess did not change each time he committed a robbery.Defendant was convicted of three counts of being a felon in possession of a handgun in violation of Penal Code section 12021. The violations occurred on three separate occasions (robberies) within a single month. However, defendant had continuous constructive possession of the gun from a couple of months prior to the robberies to when the gun was found in his apartment. While the robberies were separate transactions, the same was not true of the continuous weapon possession. Defendant's intent to possess a weapon as a felon did not change each time he committed a robbery. Therefore, sentences on two of the three weapon possession counts should have been stayed under section 654.id: 16211
Section 654 prohibited separate GBI enhancements where the offenses involved a single attack on one victim.Defendant was convicted of burglary and aggravated assault in a single incident involving a single victim. The imposition of two great bodily injury enhancements violated Penal Code section 654.id: 16402
For purposes of the amended version of section 654, the sentencing court considers enhancements in determining which conviction provides the longest potential term.Defendant fired a gun at a moving car containing two occupants. He was convicted of discharging a firearm at a vehicle under Penal Code section 246, and assault with a firearm under section 245, subd.(a)(2). The jury also found true a weapon use allegation as to the assault charge. Penal Code section 654 prohibited punishment for both convictions, and imposition of the greater term was required. The assault charge provided a longer term if the firearm use allegation was included. The sentencing court must consider enhancements in determining which provision provides for the longest potential term of imprisonment. Therefore, the trial court was required to imposed sentence on the assault charge.id: 17125
Possession of a firearm and ammunition were an indivisible course of conduct for section 654 purposes.Defendant's sentence for unlawful possession of ammunition should have been stayed under Penal Code section 654 because, when all of the ammunition is loaded into the firearm, possession of the firearm and the ammunition was an indivisible course of conduct.id: 17904
Section 654 requires that a single act of indecent exposure witnessed by more than one person may only result in sentencing on one count.Under Penal Code section 654, a single act of indecent exposure constitutes only one crime for the purpose of sentencing, regardless of how many people witnessed it.id: 18795
Street terrorism under section 186.22(a) is a necessarily included offense of carrying a firearm while an active gang member, and the two convictions were improper.Defendant was convicted of street terrorism in violation of Penal Code section 186.22, subd.(a) as charged in count 3, and carrying a firearm while an active participant in a street gang in violation of section 12031, subd.(a)(2)(c) as charged in count 4. He could not have committed count 4 without necessarily committing count 3 at the same time. He could not be convicted of both crimes and the conviction on count 3 was reversed.id: 18530
Section 654 applies to enhancements based on conduct in which defendant engaged in committing the crime (weapon possession) but not those based on status. Because a gun was found under his mattress, defendant was punished for being a felon in possession of a gun, and for being armed in the commission of a cocaine offense. Penal Code section 654 applies to enhancements based on conduct, but not those based on defendant's status, such as the status of having a prior record. Being armed in the commission of a crime is conduct, not a status. The evidence was insufficient to show more than one act despite the prosecution's claim that it showed two objectives - one to protect the dealer and one to protect the drugs. Therefore, the section 12022, subd.(c) enhancement was stayed because it was shorter than the 12021 term
factoring in the two strikes consequence.id: 19034
The consecutive sentence following conviction of kidnapping and forcible oral copulation violated section 654 where defendant had but one criminal objective.Defendant seized the victim on the street and told her that he was going to take her to her residence where he would perform an act of oral copulation. Defendant performed the threatened act and then fell asleep on the victim's bed. He was convicted of kidnapping and forcible oral copulation with his sentence to run consecutively pursuant to Penal Code section 667.6, subd. (c). Because defendant had but one intent and objective - to commit an act of oral copulation - the consecutive sentence violated the prohibition against multiple punishment under section 654. The consecutive sentence provision of section 667.6, subd. (c) does not create an exception to section 654.id: 13773
The court erred by using the burglary count that should have been stayed under section 654 to calculate the amount of the restitution fine, and counsel rendered ineffective assistance by failing to object.Defendant was convicted of robbery and burglary. The consecutive sentence for the burglary violated Penal Code section 654 because the crimes were committed in an indivisible course of conduct of stealing from the drugstore. Section 654 is also violated when the trial court considers a felony conviction for which the sentence should have been stayed pursuant to section 654 as part of the calculation of the restitution fine under the formula provided by section 1202.4, subd.(b)(2). Trial counsel rendered ineffective assistance by failing to object to the fine. The restitution fine and corresponding parole revocation fine were reduced.id: 18921
Because the two state hospital commitments following insanity findings arose from a single act, the court lacked the authority to impose concurrent terms.The trial court found defendant was not sane at the time of the aggravated assault and committed him to a state hospital for the maximum term of seven years. After the victim died, defendant was charged with voluntary manslaughter. He was again found to have been insane at the time of the beating. He was committed to the state hospital for a maximum term of 11 years to be served concurrently with his previous term. However, because the two commitments arose out of a single act of violence directed at one victim, the trial court did not have the authority to impose concurrent periods of confinement in the state hospital. The seven year term was stayed.id: 18855
Separate punishment for two false statements was improper where there was but one criminal objective.Since defendant made two false statements during his testimony he was properly convicted of two counts of perjury. However, Penal Code section 654 precluded imposition of sentence on both counts where defendant had only one criminal objective - to exonerate himself on the three offenses for which he was being tried at the first trial.id: 10827
Defendant was subject to a single evading conviction even though the pursuit involved multiple officers and vehicles.The trial court found that multiple counts and convictions of evading an officer under Vehicle Code section 2800.2 were permissible because each count named a different officer. The evading was a single course of conduct, i.e., one continuous act of driving lasting 30 minutes. The trial court's finding was erroneous and the defendant could only be convicted of one count of evading even though the pursuit involved multiple police vehicles.id: 17283
Under section 654, exhibiting a firearm in the presence of several officers may only be punished once.Defendant exhibited a firearm in a threatening manner in the immediate presence of several peace officers in violation of Penal Code section 417, subd.(c). However, under Penal Code section 654, only a single punishment was proper regardless of the number of officers present. The crime listed in section 417, subd.(c), by its definition is not committed upon an officer, but only in the presence of an officer. The multiple victim exception to section 654 requires multiple victims, not multiple observers. Only when the exhibition of the firearm becomes an assault do the observers become victims, and the single act warrants multiple punishment.id: 14896
Kissing victim, touching her breasts and placing her hand on defendant's penis constituted a single crime.Defendant was charged in count one with placing his hand under victim's shirt and touching her breasts, in count two with kissing her on the lips, and in count three with grabbing her hand and placing it on his penis. Defendant's conduct amounted to a single criminal offense. Therefore, the conviction and punishment for the duplicate offenses were reversed.id: 9968
Child molester may not be punished separately for each undefined lewd act.Defendant was convicted of four counts of Penal Code section 288(a) where, in one incident, he touched the young victim's breasts, french kissed her, placed his mouth on her breasts, and engaged in unlawful sexual intercourse. The sexual intercourse is considered to be a defined sexual crime for purposes of section 288 and the other offenses are considered undefined lewd acts. There was no error in punishing defendant for the unlawful sexual intercourse. However, Penal Code section 654 prohibits separate punishment for the attendant undefined acts.id: 9926
Updated 7/12/2024The trial court did not err in dismissing under section 654 the greater charges where the lesser included offenses carried a higher sentence when enhancements were added.Defendant was convicted of two counts of manslaughter while intoxicated with ordinary negligence under Penal Code section 191.5(b), along with drunk driving causing injury under Vehicle Code section 23153(a), and driving with a blood alcohol content of .08 percent or more in violation of section 23153(b). The court later found the latter offenses were lesser included of the former, but with additional enhancements the latter offenses carried a higher sentence. The trial court did not err by dismissing the section 191.5(b) counts under section 654 even though they were greater offenses.id: 28329
Updated 3/6/2024The trial court did not err in failing to stay execution of fraudulent check count where it was temporally distinct from the identity theft count. Defendant was convicted of using the personal identification of another under Penal Code section 530.5 (a), and possessing a completed check with the intent to defraud under Penal Code section 475 (a). The trial court did not err in refusing to stay the sentence on the latter offense under section 654. There was evidence from which the court could have reasonably found the crimes were temporally distinct in that after obtaining the check with the intent to defraud, defendant had time to reflect on his actions before attempting to cash the check.id: 26538
Updated 3/6/2024The bar on successive prosecutions does not apply to the addition of new charges following a trial where the jury acquitted on some counts, convicted on others, and could not agree on the remainder.Defendant was tried for seven sex offenses allegedly committed against his adopted daughter when she was a child. He was acquitted of two and the jury could not reach a verdict as to the remaining four counts. The prosecutor moved to amend the information by adding eight new alternative charges based on the conduct underlying the four counts on which the jury hung. The amendment was not barred by Penal Code section 654(a)’s prohibition on successive prosecutions (or Kellett v. Superior Court (1966) 63 Cal.2d 822) where its application will not conserve public resources or protect defendant from harassment. Moreover, the facts don’t give rise to a presumption of vindictiveness because the charges are less serious, alternative charges that don’t increase defendant’s exposure.id: 26551
Updated 3/4/2024The trial court erred in imposing separate sentences for multiple assaults committed during a single incident. The trial court violated Penal Code section 654 by imposing separate sentences for distinct criminal acts committed during a single continuous attack. id: 27783
Updated 3/4/2024The not guilty verdict on the murder charge did not preclude, on collateral estoppel grounds, a second trial for assault on a child causing death. Defendant was charged with murder and assault on a child causing death under Penal Code section 273ab. The jury acquitted him of murder but hung on the lesser charge of involuntary manslaughter, and on the assault charge. The prosecutor then amended the information to charge child endangerment with injury (section 273a) and assault on a child causing death. Contrary to defendant’s claim, the not guilty verdict on the murder count did not preclude on collateral estoppel grounds a second trial on assault of a child causing death as the verdict did not necessarily resolve an ultimate fact in defendant’s favor as to the latter. Moreover, the amendment to the information adding child endangerment did not give rise to a presumption of vindictiveness. Finally, section 654 did not preclude a subsequent trial on the amended information under Kellett v. Superior Court. id: 26867
Updated 2/24/2024The trial court properly imposed punishment for both the mayhem and attempted murder counts given the evidence of separate intents for the biting and stabbing.Defendant argued his sentence for mayhem in count 2 had to be stayed under section 654 because it was part of a continuous course of conduct and committed with the same intent as the attempted murder in count 1. However, although the offenses occurred in close proximity, substantial evidence supported the finding that defendant had a separate intent for each.id: 26629
Updated 2/23/2024Defendant was improperly convicted of three counts of possessing a concealed firearm in a vehicle.Defendant was convicted of three counts of violating Penal Code section 25400, for carrying a concealed firearm on his person after a felony conviction (section 25400 (a)(2)), carrying a concealed and stolen firearm in a vehicle (section 25400 (a)(1)), and carrying a concealed and loaded firearm in a vehicle by someone other than the registered owner (section 2544 (a)(1)(C)(6). However, the counts describe alternate ways of committing the same offense - possessing a concealed firearm in a vehicle. Only one conviction was proper and the court struck the other two.id: 26908
Updated 2/23/2024Pandering counts involving separate victims were not part of a single course of conduct, and multiple convictions and sentences were proper.Defendant was convicted of multiple counts of pandering. He argued that conviction and separate sentences were improper because the offenses occurred in the same time period. However, the counts charged distinct crimes involving three different women, and the acts did not constitute a single course of conduct.id: 26916
Updated 2/23/2024The juvenile court did not err by imposing separate sentences for the assault and criminal threats counts.The minor argued the juvenile court erred by imposing separate sentences for the assault and criminal threats counts where the record shows the minor acted with separate objectives for each offense. id: 26925
Updated 2/4/2024Section 654 does not apply to the One Strike law.The trial court imposed consecutive One Strike law sentences for each sex-crime conviction committed against victime one. Defendant argued that because each sentence was based on the same act of kidnapping, Penal Code section 654 prohibited the imposition of multiple sentences. However, section 654 does not apply to one strike sentences.id: 27630
Updated 2/4/2024The trial court did not err in refusing to dismiss the misdemeanor and infraction counts after sentencing defendant on the felonies where all counts arose from a single incident. Defendant pled no contest to two felonies, four misdemeanors, and an infraction arising from a single incident of drunk driving and driving without a valid license. The trial court did not err in refusing to dismiss the misdemeanor and infraction counts pursuant to Vehicle Code section 41500 after sentencing him to prison on the felony counts. id: 27328
Updated 2/4/2024The single larceny doctrine did not preclude two robbery convictions where the two acts were separated by defendant’s decision to force the victim to orally copulate him.Defendant argued the “single larceny doctrine” precluded him from being convicted of two robberies because both acts were part of a single transaction. He took the victim’s cell phone in the parking lot so she could not call the police. He then forced her to drive him to several locations and at one point forced her to orally copulate him. He then drove her to another location where he robbed her of her money and allowed her to leave. The two robberies were separated by defendant’s decision to force the victim to orally copulate him.id: 27344
Updated 2/3/2024AB 518 was not retroactive and did not apply to cases that were final on appeal.AB 518 which amended Penal Code section 654 to permit the resentencing court to punish the defendant with either act (as opposed to the one requiring the greater term) did not apply to cases that were already final. Limiting the provision in that manner did not violate equal protection.id: 27666
The jury’s not true finding on the personal gun use enhancement did not amount to a finding that the murder must have been felony-murder, which would have prevented a consecutive sentence on the attempted robbery count.Defendant was convicted of firsts degree murder and attempted robbery. He argued the trial court violated Penal Code section 654 by imposing consecutive sentences, because the jury’s rejection of the personal firearm use allegation shows that it did not find defendant guilty of premeditated murder, and therefore must have found him guilty of felony-murder based on the attempted robbery. However, the jury’s not true finding on the personal use enhancement was not an affirmative finding that defendant was not the shooter, and did not foreclose the trial court’s discretion to find that defendant was the shooter for sentencing purposes.id: 26167
Separate punishment for the attempted murder and murder was proper where defendant shot at the victim while on foot and then entered his car and killed the victim while driving on the freeway. Defendant argued the attempted murder of Macias was a lesser included offense of the murder of Macias, barring conviction or punishment for both crimes. However, the offenses were separate. Defendant attempted to shoot Macias when standing on a street corner. After he missed, he entered a vehicle and drove a couple of miles before shooting Macias on the highway. During the period before he entered the car, he had ample opportunity to reflect and renew his intent. He was properly sentenced for both offenses. id: 24731
Defendant was properly convicted of rape of an unconscious person and rape of an intoxicated person based on the same act of intercourse.Defendant was properly convicted of both rape of an intoxicated person and rape of an unconscious person based on the identical act of sexual intercourse. However, multiple punishment is barred by Penal Code section 654.id: 25239
Defendant was properly convicted of two arson offenses where he started a single fire.Defendant was found to have set a fire and was convicted of one count of unlawfully causing a fire that caused a structure to burn under Penal Code section 452, subd. (b), and one count of unlawfully causing a fire of a structure or forest land under section 452, subd.(c). Even though there was a single fire, subdivisions (b) and (c) of section 452 define separate offenses and neither is necessarily included in the other. As a result, the two convictions were proper under section 954.id: 26141
Because the conspiracy was not limited to committing the two substantive offenses, the trial court did not err by imposing consecutive sentences for the two substantive counts.Defendant pled no contest to one count of conspiracy to commit human trafficking based on acts that related to three victims, and two counts of human trafficking for his conduct against one of the victims. He argued that Penal Code section 654 precluded imposition of punishment for the two substantive counts of human trafficking in addition to the punishment for conspiracy to commit human trafficking. However, the conspiracy involved conduct that went far beyond the commission of human trafficking of one victim and so consecutive sentences on the substantive counts were proper.id: 26083
Section 654 did not require a stay of execution on either the resisting arrest or battery on an officer convictions where multiple officers were involved.Defendant argued the trial court erred in failing to stay execution of sentence on either his resisting arrest conviction or battery on a police officer conviction. He claimed that because both offenses were incident to his sole objective to escape, Penal Code section 654 precluded him from being punished for both. However, the multiple victim exception to section 654 applied because defendant committed acts of violence against more than one victim; he resisted arrest by four different officers and battered one of them.id: 18804
Transporting meth and evading an officer involved separate objectives, and therefore the consecutive sentences did not violate section 654.Defendant was convicted of transporting methamphetamine and evading a pursuing officer. He argued the trial court erred by imposing a consecutive term on the evading count. However, the offenses involved separate intents and objectives, and therefore the consecutive terms did not violate Penal Code section 654.id: 25939
Defendant was improperly convicted under both aggravated assault provisions where he committed a single act.Defendant was improperly convicted of both assault with a deadly weapon (Penal Code section 245, subd.(a)(1)) and assault by means of force likely to produce great bodily injury (section 245, subd.(a)(4)) based on a single act of choking his cellmate with a tightly-rolled towel. The two convictions violated section 954 and the court vacated the force-likely assault conviction. The court also struck the deadly weapon enhancement attached to the force-likely assault conviction because use of a deadly weapon was an element of that offense.id: 25677
Penal Code section 654 did not prevent separate sentences for killing the dog and then attempting to set it on fire to destroy the evidence.Defendant was convicted of animal cruelty and attempted arson where he killed a dog and placed it in a barbeque but was apprehended before lighting the fire. He argued this was a single course of conduct and he could not be separately punished for both offenses. However, the record showed multiple objectives of killing the dog and then destroying the evidence by lighting it on fire.id: 25617
Defendant’s concurrent sentence for shooting at a vehicle did not have to be stayed under section 654 where all of the shots fired had a separate intent and objective. Defendant was convicted of second degree murder, attempted murder, and shooting at an occupied vehicle, based on a single incident involving shots fired against rival gang members. He argued the concurrent sentence for shooting at an occupied vehicle had to be stayed under Penal Code section 654 since it was based on the same act and course of conduct as the other offenses. However, each of the five shots fired involved a separate trigger pull, accompanied by a separate intent and objective, with a separate risk to the passengers. The court properly punished defendant for all three offenses.id: 25162
Because there were assaults against four men, even though only one was injured, the trial court properly imposed four GBI enhancements. Defendant was convicted of assaulting four men. As to each assault, the jury found defendant inflicted GBI on Efren. Defendant argued Penal Code section 654 prohibited multiple punishment on multiple great bodily injury enhancements relating to the same injuries to the same man. However, because there were multiple victims of the assaults, the multiple victim exception to section 654 applied and the multiple enhancements were permitted. id: 24931
The trial court erred by failing to stay the sentence for the spousal abuse count where the act was committed during the time defendant was found to have tortured the victim.Defendant was convicted of several offenses including torture and spousal abuse. The trial court erred by failing to stay the sentence under Penal Code section 654 on the spousal abuse count because the act was committed during the three month period of alleged torture, and was not distinguishable from the other acts of torture.id: 24987
A defendant can be properly convicted of both rape of an intoxicated person and rape of an unconscious person based on the same act.Defendant was properly convicted of both rape of an intoxicated person under Penal Code section 261, subd.(a)(3) and rape of any unconscious person under section 261, subd.(a)(4)(A) where the convictions were based on the same act because the statutes describe different offenses. A defendant can properly convicted, although not punished for, both.id: 25064
The trial court did not err in imposing separate sentences for defendant’s convictions for transportation of heroin for sale and transportation of methamphetamine for sale. The trial court did not violate Penal Code section 654 by imposing consecutive sentences for defendant’s convictions of transportation of heroin for sale and for transportation of methamphetamine for sale. By transporting separate types of drugs for separate groups of buyers, defendant was subject to separate punishments. id: 24768
Defendant was properly convicted of multiple counts of removing human remains and grand theft of urns.Defendant was convicted of 11 counts of removing human remains from a place of internment arising from this theft of nine metal urns. He argued only one conviction of Health and Safety Code section 7052 was proper because the removal of the urns took place on a single occasion. While that argument applies to larceny, it does not apply to removal of human remains from their place of internment, which has additional religious and moral implications. Moreover, the evidence also supported nine grand theft convictions where nine panes of glass were broken and each urn was removed separately.id: 24667
Multiple sentences were not improper under section 654 where defendant fired shots at multiple victims in clear sight and one was killed.Defendant argued the trial court violated Penal Code section 654 by imposing consecutive sentences because both convictions (murder and shooting at an inhabited dwelling) were based on the same act. However, section 654 does not bar multiple punishments where, as here, a defendant fires multiple gunshots at multiple victims in clear sight, and one of the victims is killed.id: 24374
The lesser related arson offense was prosecuted in a single case with the greater charge for Kellett purposes where the court instructed on the offense erroneously believing it to a be lesser included offense.Defendant was convicted of arson of an inhabited structure under Penal Code section 451, subd.(b). The Court of Appeal found the evidence was insufficient to support the conviction and reversed it. Double jeopardy precluded a retrial. The question was whether the Kellett rule requiring all offenses involving the same act be prosecuted in a single case prohibited retrial of the lesser related offense of arson of property under section 451, subd.(d). The prosecution did not charge arson of property but instructed on it erroneously believing it was a lesser included offense. The court instructed the jury to consider the offense only if it acquitted defendant of the greater offense, so the jury never considered it. Under the circumstances, arson of property was prosecuted in a single proceeding with the other arson charge, so Kellett did not prohibit retrial on that offense.id: 24352
Defendant could not be convicted of two counts of rape based on a single act of intercourse.Defendant was convicted of rape of an intoxicated woman and rape of an unconscious woman based on a single act of sexual intercourse. Under the circumstances, only one rape conviction was proper.id: 21954
Separate sentences did not violation section 654 where defendant kissed and fondled the young victim and had her fondle him.Defendant argued that the trial court should have stayed, under Penal Code section 654, at least one of the three lewd acts he committed against the minor. However, defendant committed three distinct acts (none of which were necessary to accompany the others) when he tried to put his tongue in the victim’s mouth, penetrated her with his finger and forced her to fondle his penis. The court did not err by failing to stay punishment for any of the offenses. However, because the same acts of digital penetration formed the basis of the aggravated assault charges, section 654 prevented separate punishment for those offenses. id: 21303
Defendant could not be convicted of both continuous sexual abuse and intercourse with a child for conduct that occurred during the same time period.Defendant was charged with continuous sexual abuse of a child in violation of Penal Code section 288.5 and sex with a child under 10 in violation of section 288.7. However, the prosecution was statutorily prohibited from charging both counts in a manner that led to dual convictions for conduct that occurred during the same period. id: 24148
The trial court erred by applying section 654 to one of the false imprisonment convictions because false imprisonment by menace is a crime of violence.Defendant was convicted of false imprisonment of two people during a robbery. The trial court erred by staying imposition of one of the felony false imprisonment counts under Penal Code section 654. False imprisonment by menace, the offense defendant committed is an act of violence for purposes of section 654. Therefore, the court should have imposed consecutive sentences on both false imprisonment counts.id: 24156
Separate convictions for attempted witness dissuasion were proper for every call defendant made to his sister asking to persuade a witness not to testify.Defendant made six separate telephone calls urging his sister to persuade the prosecution’s chief witness not to testify at trial. He argued that six convictions were improper and that he committed a single offense. However, a separate conviction was proper for every call to his sister asking her to dissuade the witness.id: 23900
Defendant’s 1985 conviction for receiving the victim’s stolen car did not preclude a later murder charge where the prosecution originally lacked evidence to sustain a murder charge but later found evidence to support the charge. Under the “unavailable evidence” exception to the rule regarding multiple prosecutions in Penal Code section 654, in cases where the prosecution has probable cause to charge the defendant with murder and a related crime but proceeds only on the related crime, it is not barred from bringing the murder charge upon obtaining additional evidence if, at the time it decided to proceed, the prosecution lacked evidence supporting the objectively reasonable belief that it could secure a murder conviction on the evidence then available, despite the exercise of due diligence in the investigation of the crimes. The trial court properly found that the newly developed evidence was not the result of a prior failure of due diligence, and that it provided concrete support for the murder charge. id: 24050
Defendant was properly convicted of both oral copulation of an unconscious person and oral copulation of an intoxicated person based on the same act. A defendant may, consistent with Penal Code section 954, be convicted of both oral copulation of an unconscious person (Penal Code section 288a, subd.(f) and oral copulation of an intoxicated person (section 288a, subd.(i)) based on the same act. The statutes describe different offenses and defendant can be convicted of both, although not punished for both.id: 23841
A defendant may be convicted of Vehicle Code section 23153, subdivisions (a) and (b) based on a single incident but he or she may not be punished for both.A defendant may be properly convicted of violating both subdivisions (a) and (b) of Vehicle Code section 23153 because neither describes a lesser included offense of the other. However, the court may not impose a sentence on both counts, and the court should have stayed the imposition of one term.id: 23934
The trial court did not err by imposing separate sentences for the robbery and evading arrest where it impliedly found distinct objectives. The trial court impliedly found defendant had two distinct objectives in committing the robbery and then evading the police. Therefore, the court did not err by failing to stay execution of sentence for the latter offense pursuant to Penal Code section 654.id: 24039
Defendant was properly convicted of attempting to pass a forged check and possessing that check.Defendant argued that he was improperly convicted of both making or passing a fraudulent check with the intent to defraud under Penal Code section 476 and possessing a check with the intent to defraud Vons in violation of section 475, subd. (c). Both offenses relate to forgery. Conviction for both offenses was proper as they involved different statutes even though they involved the same subject.id: 23497
A person can be convicted of more than one count of operating as an unlicensed escrow agent. Defendant was convicted of multiple counts of operating as an unlicensed escrow agent in violation of Financial Code section 17200. Contrary to defendant’s claim, a defendant can be convicted of more than one count of violating section 17200.id: 23675
A defendant may be convicted of multiple counts of grand theft based on separate acts committed as part of a single scheme. A defendant may be convicted of multiple counts of grand theft based on separate and distinct acts of theft, even if committed pursuant to a single overarching scheme. Several court of appeal decisions had interpreted People v. Bailey (1961) 55 Cal.2d 514, as permitting only one conviction of grand theft in this circumstance. The new rule cannot be applied retroactively to defendant.id: 23681
Defendant was improperly convicted of two counts of theft of the same meal from a restaurant.Defendant ate a meal at a steakhouse and then paid $100 of the bill with counterfeit $20 bills. He was convicted of several offenses including two counts of felony theft. However, when a single theft occurs as a part of one transaction, only one conviction is proper. id: 23683
Section 654 did not preclude separate sentences for the assault and threat where the pandering had ended by the time the assault began. Defendant argued his sentences for the assault and criminal threat against Jordan should have been stayed under Penal Code section 654 based on his conviction and sentence for pandering Jordan. However, pandering by encouragement can be an ongoing offense, evidence showed the pandering had stopped by the time Jordan was assaulted and threatened.id: 23699
Section 654 did not bar consecutive sentences for carjacking and robbery as the crimes were distinct events committed at different points close in time.The trial court did not err in sentencing defendant to consecutive sentences for robbery and carjacking (to go along with the death sentence) because the crimes were not part of a single course of conduct. Defendant and his cohorts accosted the victims at two points, first at their cars and then inside the house. Had defendant simply intended to commit a carjacking he could have done so at the initial point of contact.id: 23732
Defendant was barred from arguing the sentence violated section 654 because it was within the maximum term negotiated in the plea agreement.The parties negotiated a plea agreement which included a maximum prison term that would avoid a life sentence under the three strikes law. Defendant argued on appeal that the imposition of consecutive and concurrent terms the court used to reach the maximum term violated Penal Code section 654. However, defendant was barred from arguing the sentence violated section 654 because the court sentenced within the maximum term negotiated in the plea agreement.id: 23231
Neither section 654 nor People v. Ahmed apply to stay sentence enhancements attached to offenses arising out of separate criminal acts. Defendant argued that the sentence enhancements for great bodily injury imposed for his attempted murder and forcible oral copulation of the same victim must be stayed under Penal Code section 654 and People v. Ahmed (2011) 53 Cal.4th 156, which prohibited the imposition of more than one enhancement for one criminal act. However, section 654 does not bar imposition of the same type of enhancement for offenses arising out of separate criminal acts. Contrary to defendant’s claim, he did not engage in a single attack on the victim as his purpose shifted from sexual gratification to the infliction of sadistic pain.id: 23107
The trial court did not err in failing to stay the sentence on the involuntary manslaughter conviction where defendant was also convicted of shooting at a vehicle (along with a gun enhancement) for the same conduct.Defendant shot at a group of thieves who had stolen marijuana from his legal garden and were driving away. One of the thieves was killed. Defendant was convicted of shooting at an occupied vehicle in violation of Penal Code section 246, along with a gun use enhancement, and voluntary manslaughter. The trial court did not err by failing to stay punishment for the manslaughter conviction because there were multiple victims. The fact that the court also imposed a sentence for the gun use enhancement for the same conduct did not require a different result. id: 22985
Trial court erred in staying execution of sentence under section 654 for the second count of gross vehicular manslaughter.Defendant was convicted of two counts of gross vehicular manslaughter. The trial court erred by staying execution of sentence under Penal Code section 654 as to one victim because the offense was a crime of violence.id: 22888
The trial court did not err by imposing a separate sentence for violating the protective order even though the jury did not find there were separate entries into the residence.Defendant argued the trial court violated Penal Code section 654 by imposing a sentence for violating a protective order because the jury did not necessarily find that it occurred on an occasion that was separate from the burglary. However, the evidence showed there was more than a single entry into the home, and the jury’s failure to make that finding did not prohibit a separate sentence.id: 22878
The trial court properly stayed the GBI enhancements attached to the gross vehicle manslaughter count based on the two other homicide victims. In count one, defendant was convicted of gross vehicular manslaughter but he received great bodily injury enhancements for the other two homicide victims as well. The sentences for the GBI enchantments as to the other victims were properly stayed under section 654. id: 22890
Neither section 654 nor Ahmed applies to stay sentence enhancements imposed for offenses arising out of separate criminal acts. In People v. Ahmed (2011) 53 Cal.4th 156, the court found that Penal Code section 654 prohibits imposition of more than one enhancement for the same underlying criminal act. However, section 654 did not prohibit great bodily injury enhancements for defendant’s attempted murder and forcible oral copulation convictions which involved the same victim as these were separate criminal acts.id: 22904
Defendants were properly punished for both arson and dissuading a witness.Defendants were found to have threatened the victim and then set her house on fire after she called the police on them. Separate punishments for the offenses did not violate Penal Code section 654 because there were multiple objectives including letting the neighborhood know there would be consequences if anyone reported gang activity to the police.id: 22580
The trial court should have stayed the sentence for misdemeanor elder abuse where it was based on the same intent and objective as the grand theft and financial elder abuse.The trial court should have stayed a misdemeanor elder abuse sentence under Penal Code section 654 where it was based on the embezzlement of the annuity cash out and theft of the jewelry that were the result of a single criminal intent and objective. However, the second elder abuse conviction had a separate intent - to humiliate the victim, and so separate sentences in that instance were proper.id: 22624
Defendant was properly convicted of three counts of identity theft where he possessed information relating to three people. Defendant was properly charged with and convicted of three counts of identity theft under Penal Code section 530.5, subd.(c)(1) based upon his possession of personal identifying information relating to three victims.id: 22693
Penal Code section 654 did not bar separate punishments where defendant was convicted of seven counts of weapon possession. Defendant was convicted of seven counts of being a felon in possession of a firearm based on his simultaneous possession of seven different weapons. Penal Code section 654 does not bar multiple punishment for multiple violations of the same statute. Because this was an unsettled question it was not applied to defendant. Even so, defendant’s sentence did not violate section 654 because specific statutory authority (Penal Code section 23510, formerly section 12001, subd.(k) makes possession of each weapon a separate offense.id: 22753
The imposition of firearm use and great bodily injury enhancements did not violate section 654.The jury found that defendant personally used a firearm under Penal Code section 12022.5 to commit the two assault offenses and personally inflicted great bodily injury within the meaning of section 12022.7. Both enhancements were proper under section 1170.1, subds.(f) and (g) because those provisions create an implied exception to section 654.id: 22146
Section 654 did not prohibit separate punishment for the crime of street gang activity and the underlying felonies used to prove the “felonious conduct” element of that offense.Defendant argued that Penal Code section 654 barred separate punishment for the crime of criminal street gang activity and the underlying felonies used to prove the “felonious conduct” element of that offense because the underlying felonies for which defendant was already separately punished - assault with a deadly weapon and vandalism - were the acts that transformed their gang membership into the substantive gang activity offense. However, two distinct criminal acts were involved as participation in a street gang is a separate offense. Moreover, one crime was not merely the means of perpetrating the other and while the attack of the victim and vandalism were part of the crime of criminal street gang activity, the crimes were not coextensive. id: 22455
Section 654 did not prevent multiple sentences for use of a stolen access card and petty theft of the victim’s property.The trial court did not violate Penal Code section 654 by imposing concurrent sentences for use of Sablan’s stolen access card and petty theft of her property. It was reasonable to conclude defendant’s actions involved multiple objectives.id: 22363
Section 654 does not prohibit separate sentences for multiple counts of distributing child pornography by email.Defendant argued the trial court was required by Penal Code section 654 to stay execution of sentence on four convictions for distributing child pornography in violation of Penal Code section 311.2, subd.(c) because the transmission of multiple emails in rapid succession to a single recipient constituted an indivisible course of conduct. However, defendant composed separate emails, typed the recipients’s email address, selected various images of child pornography from hundreds on his computer and attached the specific images to each email. It did not matter that there was a single objective where the messages were sent minutes apart.id: 22315
Section 654 did not prohibit separate sentences for transporting alcohol into a prison camp and thereafter possessing the alcohol by an inmate.The trial court did not violate Penal Code section 654 for imposing separate sentences for the crimes of transporting alcohol into a prison camp, and possession of alcohol by an inmate where defendant did not personally transport the alcohol into the prison. The two offenses had separate objectives. id: 22352
Lab analysis fee should have been imposed but stayed for the drug conviction that resulted in a stayed sentence under section 654.Defendant was convicted of possession for sale of heroin in count one, and sale of heroin in count two. The sentence for count one was stayed under Penal Code section 654. The trial court imposed the Penal Code section 11372.5 $50 criminal laboratory analysis fee only as to count two. However, both counts were subject to the lab analysis fee, and the court should have imposed an additional laboratory analysis fee, as well as penalties and surcharge. But the lab fee constitutes punishment and must be stayed under section 654 after being imposed, even though the Penal Code section 1465.8 court security fee was correctly imposed on the stayed count. id: 21985
Penal Code section 654 did not preclude the imposition of separate and consecutive sentences for the GBI and weapon use enhancements. The trial court sentenced defendant to a 13 year term consisting of eight years for the mayhem conviction, four years for a great bodily injury enhancement and one year for the use of a deadly weapon. Defendant argued that Penal Code section 654 required the trial court to stay the one year term for the deadly weapon enhancement. However, the imposition of separate and consecutive sentences for the deadly weapon enhancement (Penal Code section 12022) and the GBI enhancement (section 12022.7) is mandated by the provisions of section 1170.1. Those enhancements may still be stricken under a proper application of section 1385.id: 22528
Penal Code section 1170.1 allows the imposition of both a firearm use and a GBI enhancement.Defendant was convicted of assault with a firearm along with two sentence enhancements - personal use of a firearm and personal infliction of great bodily injury. While the prohibition against multiple punishment for a single act set forth in Penal Code section 654 applies generally to sentence enhancements, section 1170.1 subds. (f) and (g), specifically permits the imposition of enhancements for both using a firearm and inflicting great bodily injury.id: 22531
Five grand theft by embezzlement convictions were proper where defendant stole from her employer in various ways which showed more than one plan. Defendant was convicted of five counts of grand theft by embezzlement (Penal Code section 487, subd.(a)). She argued that all but one of the convictions had to be reversed because all were based on a series of thefts committed against a single victim pursuant to one intention and one plan. However, the defendant used a variety of distinct methods to steal from her employer. She improperly withdrew money from petty cash, used company funds to pay her credit card bill, took unauthorized pay, and used company funds to make her car payment. She abused her position of trust in may ways and it could be inferred that she did not commit all of the thefts pursuant to a single plan. id: 22152
Section 654 did not prohibit separate sentences for sexual assault and exhibiting harmful matter.The trial court could reasonably find that showing the young victim pornographic movies and sexually assaulting her were separate acts with separate intents. Therefore, the sentence for one did not need to be stayed under Penal Code section 654. id: 22164
Section 654 did not prohibit separate sentences where the mayhem, torture and corporal injury counts were based on separate incidents.Defendant was convicted of torture and aggravated mayhem. He argued the sentence for one offense should have been stayed under Penal Code section 654. However, the trial court, like the jury could reasonably have found the counts were not based on the same course of conduct. Section 654 also did not prohibit separate punishment for the inflicting corporal injury count as the verdict forms show this count was based on a separate incident.id: 21828
Separate sentences for firearm possession and theft of the gun long after the instant of committing the theft.Defendant was convicted of grand theft of a firearm and firearm possession by a felon. He argued his sentence on the latter count had to be stayed under Penal Code section 654 because the offenses were incidental to a single criminal intent and objective - to possess the firearm. However, the theft was incidental only to his acquisition of the gun. Because he controlled the gun beyond the mere “instant of committing the offense” the court could reasonably find the firearm possession was distinct from the fortuitous possession at the time of the theft. Moreover, because the offenses involved separate acts with different intents, the court did not abuse its discretion in ordering consecutive terms. id: 21888
Rule 4.424 misstates the correct way to implement section 654. Penal Code section 654 precludes multiple punishment when a criminal act or omission violates multiple penal provisions. When a trial court determines that section 654 applies to a certain count, the
trial court must impose sentence on that count and then stay execution of sentence. California Rules of Court, Rule 4.424 misstates the correct way to implement section 654 and should be modified. id: 21334
Penal Code section 654 does not prevent punishment for participating in a criminal street gang and assault with a firearm.Defendant argued that Penal Code section 654 prevents separate punishments for assault and for participating in a criminal street gang. However, the criminal street gang statute punishes conduct and intentions that give rise to culpability for assault with a firearm. id: 21682
A defendant may be punished for possessing both a firearm and ammunition where the ammunition is not in the firearm.Defendant argued he could not be punished for both possessing a firearm and possessing ammunition. However, where the ammunition is not in the firearm, separate punishments may be imposed. id: 21681
The prosecution for felony evading was proper even though evidence from that offense was used in the earlier murder trial that resulted in an acquittal. Defendant was acquitted of murder in a case where the prosecution used evidence of his evading arrest to help prove the charge. He argued the trial court erred in denying his motion to dismiss the evading charges after the murder trial. He claimed the prosecution of those charges was barred by Penal Code section 654 and Kellett v. Superior Court (1966) 63 Cal.2d 822. However, the prosecution for felony evading was not barred by section 654. Although the prosecution used evidence of evading in the murder trial to show consciousness of guilt, the same act or crime of conduct did not play a significant part in both the murder and evading.id: 21766
When a maximum term is specified in a plea agreement, the defendant is estopped from arguing on appeal that the sentence violates section 654.Defendant pled guilty to several counts on the understanding that he would receive the maximum term, although the three strikes sentence would not be imposed because the trial court dismissed the strike prior. To arrive at the maximum term allowable under the plea, the court imposed consecutive terms for two counts and concurrent terms on the others. Defendant claims the sentence violated Penal Code section 654 but California Rules of Court, rule 4.412(b) provides that one who is sentenced to a term specified in the plea agreement or a shorter term abandons any claimed section 654 violation. He argued his agreement included a maximum term, not a “specified term” for purposes of the rule. However, when a maximum term is specified in the plea agreement, the defendant cannot argue a section 654 violation.id: 21800
Felon possessing a weapon was separate from possessing methamphetamine while armed for section 654 purposes.Defendant was convicted of being a felon in possession of methamphetamine while armed with a loaded operable firearm. He argued the sentence for the first offense should have been stayed under Penal Code section 654. However, because the offenses involved distinct dangers, separate acts and separate intents, the felon in possession of a firearm offense was separate from possession of methamphetamine while armed.id: 21564
The trial court erred by imposing sentences for both firearm and ammunition possession.Defendant was convicted of unlawful firearm possession as well as possession of ammunition. The trial court erred in failing to stay imposition of the ammunition count under Penal Code section 654 because it was either loaded into or fired from the gun, and there was no evidence of a multiple objective.id: 21361
There was no section 654 violation because the two enhancements imposed based upon defendant’s prior arson conviction were status enhancements.Defendant argued the trial court violated Penal Code section 654 by adding the five year enhancement under section 667, subd.(a) and another five years under section 451.1, subd.(a) for the prior arson conviction. However, both provisions qualify as status enhancements (defendant’s status as a repeat offender) and do not punish conduct. Therefore, section 654 does not apply.id: 20954
Section 654 did not prohibit consecutive sentences for five counts of selling drugs at a football game.The minor argued consecutive terms for five counts of selling methadone was prohibited by Penal Code section 654 because all counts were pursuant to a single objective (furnishing the drug at a football game) and represent a single course of conduct. However, each sale was unique and constituted a separate objective. Consequently, section 654 did not preclude the sentencing for each act of sale. id: 20762
Defendant’s forgery and counterfeiting operation was not a single act of possession for purposes of section 654.Defendants were convicted of multiple counts of receiving stolen property, forgery of blank checks and of altered checks and possession of forged driver’s licenses. They argued that all counts arose from an indivisible transaction pursuant to a single objective and that therefore, under Penal Code section 657, sentences for all but one count had to be stayed. However, the court refused to consider the forgery and counterfeiting operation to be a single act of possession as to all counts.id: 20699
Defendant was properly prosecuted for both perjury and misrepresentation arising out of the same acts of lying on welfare applications. Defendant argued he could not be convicted of misrepresentation and perjury arising from the same activities (lying on applications for food stamps and cash aid) because the misrepresentation statute (Welfare Institutions Code section 10980, subd.(c)(2)) is a specific statute precluding prosecution under the more general perjury statute. However, the Legislature’s requirement that statement by aid recipients be filed under penalty of perjury shows that simultaneous prosecutions may be maintained for both offenses. To protect defendant from dual punishment, the trial court appropriately stayed the punishment for the misrepresentation conviction.id: 20665
Defendants’ multiple convictions of forgery of altered checks were proper where they altered genuine checks and generated fictitious checks at various times during an ongoing forgery operation.Defendants were convicted of multiple counts of forgery of altered checks in violation of Penal Code section 476. They argued only one conviction was proper. However, since the jury could reasonably infer that the defendants not only altered genuine checks but also generated fictitious checks at various times during an ongoing forgery operation, all convictions of the altered checks counts were proper.id: 20664
Defendant completed the offense of credit card fraud once he entered the victim’s credit card information onto the Internet page to place the order. Defendant argued the evidence did not support her conviction for the fraudulent use of a credit card because the credit card company canceled the order and prevented the gift card from being issued pursuant to her use of the victims’s credit card. However, the completed offense (rather than the attempt) under Penal Code section 484g,subd.(a) was completed once defendant entered the victim’s credit card information onto an Internet page to place the order.id: 20618
Section 654 did not prevent the imposition of the gang enhancement to each of the three attempted murder convictions.Defendant argued that Penal Code section 654 precluded the imposition of more than one gang enhancement under Penal Code section 186.22, subd.(b). However, defendant attempted three separate murders, each on behalf of a criminal street gang. Multiple enhancements were appropriate. id: 20342
Separate sentences did not violate section 654 where defendant was found with seven weapons.Defendant was convicted of being a felon in possession of a firearm under Penal Code section 12021, subd.(a). He argued that six of the seven offenses arose from a single incident in which he was found with seven firearms stacked in a closet, and therefore the sentences on all but one offense had to be stayed under Penal Code section 654. However, a person who possesses multiple weapons that can be used to accomplish different objectives is inherently more dangerous than a person who possesses only one. Therefore, defendant was properly punished for each of the firearm possession counts.id: 20260
The Penal Code section 654 stay for the second count did not preclude the court from imposing a $20 court security fee for that conviction.A $20 court security fee pursuant to Penal Code section 1465.8 must be imposed based on a conviction for which punishment has been stayed under section 654.id: 19818
Imposition of section 667(a) enhancements when minimum time to parole calculated pursuant to option (iii) does not violate section 654.The Legislature mandated the minimum time to parole when an indeterminate three strikes life sentence is imposed must be calculated according to options (i), (ii), or (iii), whichever yields the longer minimum term. Imposition of enhancements must be served consecutively pursuant to Penal Code section 667, subdivision (a). Nothing in section 654 prohibits calculation of minimum time to parole by taking into account the defendant's recidivist history, as option (iii) does, simply because enhancements under section 667, subdivision (a) are also imposed. The prefatory language of section 667, subdivision (e) must be read to mandate the inclusion of enhancements as a separate determinate sentence after the calculation of the minimum term and in addition to the indeterminate sentence. Under section 669, the determinate term created by section 667, subdivision (a), enhancements must be served first, with the three strikes indeterminate life term to follow consecutively.id: 9435
Aggravated assault is necessarily included in the offense of assault by a prisoner, so two convictions were improper.Defendant could not be properly convicted of both aggravated assault under Penal Code section 241(a) and assault by a prisoner under section 4501 because the former is necessarily included in the latter.id: 20074
Imposition of the firearm use enhancements and the gang enhancement based on firearm use violated section 654.Defendant was convicted of three counts of assault with a firearm, after he fired upon three victims in a single incident. As to each count the court imposed a four year, Penal Code section 12022.5 firearm use enhancement. The court also composed a 10 year gang enhancement under section 186.22, subd.(b), because the case involved a violent felony based upon firearm use under section 667.5, subd.(c)(8). However, imposition of two enhancements based upon the same firearm use violated section 654's prohibition against multiple punishments. Imposition of the section 12022.4 enhancement was stayed.id: 19962
Separate sentences did not violate section 654 where the identity theft and obtaining money by false pretenses were committed weeks apart.Defendant was convicted of identity theft and obtaining money by false pretenses. She argued the consecutive sentences violated Penal Code section 654 because the offenses were committed pursuant to a single intent and objective. However, the crimes were committed weeks apart. One count involved use of the victim's personal information to open bank accounts. She committed the other crime every time she deposited fraudulent and stolen checks into the bank and withdrew funds. Section 654 did not prohibit consecutive sentences.id: 19926
The trial court erred in imposing separate sentences for murder, robbery and burglary where there was only a single intent - to rob the victim.Defendant was convicted of first degree murder, robbery and burglary. Since the evidence showed there was no intent to accomplish any goal other than to facilitate the robbery, the trial court erred by imposing separate (albeit concurrent) sentences for the robbery and burglary convictions.id: 19947
Defendant could be separately punished for drunk driving and driving with an invalid license.Penal Code section 654 was not violated where defendant was penalized once for his act of drunk driving and once for his act of driving with an invalid license.id: 19918
Section 654 did not preclude multiple punishment for attempted murder and shooting at a dwelling where there were several victims for the latter.Defendant received consecutive life terms for attempted murder (count two) and shooting at an inhabited dwelling (count three). He argued the latter must be stayed under Penal Code section 654 because the counts arose from a single, indivisible course of conduct with the same objective. However, count three had several victims while count two had only one so section 654 did not preclude multiple punishment.id: 19883
Enhancement allegations may not be considered for purposes of the rule prohibiting multiple convictions based on necessarily included offenses.Enhancements are neither recognized nor considered in determining whether the defendant can be convicted of multiple charged crimes based on necessarily included offenses. Neither the ban on multiple punishment found in Penal Code section 654, nor principles of federal double jeopardy protection, require a different result simply because multiple convictions otherwise
permitted under section 954 and the legal elements test in theory might give rise to impermissible multiple punishment in future criminal proceedings should the defendant reoffend upon release from prison.id: 19810
Apprendi does not require that enhancements must be treated as legal elements under the multiple conviction rule.Defendant argued that enhancements themselves, rather than the convictions to which they attach, are subject to being struck under the multiple conviction rule. He claimed that under Apprendi v. New Jersey (2000) 530 U.S. 466, conduct enhancements are to be treated like offenses for purposes of fundamental due process, including the right to a jury trial and the requirement of proof beyond a reasonable doubt. However, Apprendi does not require that enhancements be treated as legal elements under the
multiple conviction rule.id: 19811
The trial court did not violate section 654 by imposing consecutive terms for the street terrorism conviction and the street gang enhancement.The trial court did not violate Penal Code section 654 by sentencing defendant to consecutive terms for the Penal Code
section 186.22, subd.(a) street terrorism charge and the subdivision(b) street gang enhancement where there were independent but simultaneous objectives to commit the underlying crime and to benefit the gang.id: 19785
Penal Code section 654 does not limit section 12022.53 firearm use enhancements.Penal Code section 12022.53 prescribes substantial sentence enhancements for using a firearm in the commission of certain felonies. Here, the enhancements were imposed under subdivision (d) based on a single shot fired at a single victim during the simultaneous commission of three qualifying offenses. Penal Code section 654 did not preclude separate punishment for each offense. Under the plain language of section 12022.53, imposition of punishment for each enhancement is required.id: 19737
Section 654 did not prevent imposition of section 12022.53, subd.(b) enhancements for attempted murder and attempted robbery where both arose from a single shot. Defendant argued the imposition of Penal Code section 12022.53 firearm use enhancements on both his convictions for attempted murder and attempted robbery violated section 654 because both enhancements arose from the same discharge of his firearm. Evidence supported the court's finding that the display of the gun occurred with the objective of committing the robbery, and the discharge of the gun was a means of killing the victim. The trial court properly stayed under section 12022.53, subd. (c) and (d) enhancements, and properly imposed the section 12022.53, subd.(b) enhancement as to the attempted robbery conviction.id: 19505
The trial court properly relied on defendant's statements in a probation report to impose sentences for both robbery and elder abuse even though similar statements were excluded at trial. The trial court did not err in sentencing defendant for both robbery and elder abuse based on defendant's statements to the probation officer that he had a separate intent and objective for each crime. It did not matter that similar statements were omitted at trial.id: 19517
Separate sentences for attempted murder, attempted robbery and assault with a deadly weapon did not violate section 654.The trial court did not violate the double punishment prohibition contained in Penal Code section 654 by punishing defendant separately for the attempted murder, attempted robbery and assault with a deadly weapon since each had a separate objective. Defendant's first objective was to commit a robbery. When he realized the victim had no money he committed the assault, perhaps to punish him. He then shot at the
victim intending to kill him.id: 19504
The trial court properly imposed separate sentences for pimping and pandering or procuring a child to engage in lewd conduct. Defendant committed separate acts of pandering and pimping or procuring a minor to engage in lewd conduct with respect to three
victims. Since the offenses involved separate acts, the separate sentences did not violate Penal Code section 654.id: 19375
The court should only consider the statutory elements test in determining whether an offense is necessarily included for purposes of the exception to the rule permitting multiple convictions for a single act.An exception to the general rule permitting multiple convictions for the same act prohibits multiple convictions based on necessarily included offenses. Contrary to the defendant's claim, the accusatory pleading test does not apply
in deciding whether multiple conviction of a charged offense is proper. Instead, a court should consider only the statutory elements.id: 19137
Defendant was properly charged with two counts of child endangerment where she used her son to commit a burglary and then assaulted him afterwards.Count two alleged child endangerment where defendant had her son enter the open window of a neighbor's house to facilitate a burglary, and count three alleged a separate count based upon
abuse of the boy after the burglary. Defendant argued the counts were part of a single course of conduct and should have been charged as a single count. However, defendant endangered her son at two different times, in different ways for different reasons, and she was properly charged with two counts of child endangerment.id: 19026
Since there were two victims of the burglary in addition to the victim of the assault, section 654 justified multiple punishments.Defendant argued that the imposition of sentence for both the burglary and the assault with intent to rape violated Penal Code section 654 because the offenses were part of a single course of conduct with rape as the sole objective of the burglary. However the fact that there were additional victims in the burglary justified separate punishments.id: 18920
Section 654 did not prohibit sentencing on the gang enhancement on remand after the enhancement was bootstrapped into punishment under section 186.22, subd.(b)(1)(B).The trial court did not prejudicially err when it found defendant's current assault offense to be a serious felony within the meaning of Penal Code section 1192.7, subd.(c), because the jury found true the gang enhancement allegation against him. However, remand is required because it was improper to "bootstrap" the finding on the section 186.22, subd.(b) gang enhancement under subdivision (b)(1)(B) of that section. Contrary to defendant's claim, section 654 does not prohibit punishment under the gang enhancement. Defendant was not being punished twice for the same conduct, but rather, because he was a recidivist offender whose conduct during the current offense fell within the scope of the gang enhancement.id: 18756
Section 654 did not bar prosecution for the robbery following the earlier guilty plea to misdemeanor unlawful taking of a vehicle where there was no evidence at that time to support the robbery.In 1984, defendant pled guilty to one misdemeanor count of unlawfully taking Kingsmill's car. He argued the present prosecution for robbery and kidnap for robbery violated the prohibition on multiple prosecution under Penal Code section 654. However in 1984, when defendant was arrested for taking Kingsmill's car, neither Kingsmill nor any other witness could have provided evidence to establish that defendant had kidnapped or robbed Kingsmill, and thus section 654 did not bar the later prosecution.id: 18669
Defendant was not punished twice for the same crime since the conspiracy was to batter Morales and there was no evidence of a conspiracy to murder Valdivia.Defendant argued that since he was punished for murdering Valdivia as charged in count 1, his punishment for conspiring to batter Morales, a crime less than the murder of Morales which was charged in count 2, should have been stayed under Penal Code section 654. He reasoned that the murder of Valdivia was committed while performing acts in furtherance of the conspiracy. However, the conspiracy was to batter Morales. There was no evidence of a conspiracy to murder Valdivia. Defendant was not punished twice for the same crime, and section 654 did not apply.id: 18531
Because there were separate acts and intents, section 654 did not prohibit separate punishments for the section 12022.53 (d) enhancement and the conviction for carrying a gun by an active gang member.Defendant argued Penal Code section 654 prohibited punishment for both his conviction for carrying a loaded gun while an active gang member under section 12031, subd.(a)(2)(c), and the section 12022.53, subd.(d) firearm use enhancement. However, the case demonstrated separate acts and intents, and separate punishments were appropriate.id: 18532
Consecutive sentences did not violate section 654 though the jury found the attempted murder was a natural and probable consequence of the carjacking.Defendant was sentenced to two consecutive life terms, one for the attempted murder conviction and one for the kidnapping for the purpose of carjacking conviction. He received a separate consecutive sentence for the robbery conviction. He argued the court should have stayed one of the life sentences and the robbery sentence because he was found guilty of the attempted murder under the natural and probable consequences doctrine, and thus had only the single intent to facilitate the robbery and carjacking. However, the evidence showed defendant shared the objectives of the codefendant, that is to rob the victim and keep him from pointing out his attackers. The evidence supported the trial court's determination that the crimes in question had separate objectives.id: 18425
That defendant continually detained the victim from the time of the initial carjacking to the time of the shooting did not prevent conviction for both kidnapping for robbery and kidnapping for carjacking.Defendant argued there was only one kidnapping so the evidence did not support convictions for both kidnapping for robbery and kidnapping for carjacking. The jury could reasonably have concluded that defendant initially kidnapped the victim as part of the carjacking and only later formed an intent to rob him of his possessions. However, while defendant could be convicted of both offenses, punishing him for both was improper since there was a single act and objective - escape to a place of temporary safety.id: 18337
The consecutive sentences did not violate Blakely where they were based on the jury's verdict in finding separate assaults against different victims, rather than independent findings by the court.Defendant argued that the factual determination required by Penal Code section 654, that the offenses involved multiple objectives, must be made by the jury, not the trial court. He further argued the decision to impose consecutive sentences violated Blakely because the decision rested on findings of fact beyond those necessarily found by the jury's verdict. However, the information charged separate assaults for each victim and each verdict returned by the jury found that defendant committed an assault against a different named individual. Because the imposition of consecutive sentences was based upon the jury's verdict rather than the court's independent findings of fact, the sentence did not violate Blakely.id: 18103
Section 654 did not preclude separate sentences for murder and child endangerment where defendant killed the victim in the presence of their daughter.Defendant was convicted of one count of murder and one count of child endangerment after he killed his girlfriend in the presence of their daughter. He argued the sentence on the child endangerment should have been stayed under Penal Code section 654, because both offenses arose from the single act of killing the victim. However, since the single violent act resulted in harm to two victims, section 654 did not apply.id: 18092
Penal Code section 12022.53 allows imposition of more than one 25 years-to-life term for a single injury caused by use of a firearm.Defendant fired two shots at a group of five people, but hit and injured only one. The Court of Appeal held that even where the defendant was convicted of five counts of attempted premeditated murder - one for each person in the group - because only one person was injured, Penal Code section 654 permits only one section 12022.53, subd.(d) enhancement, although subdivision (c) enhancements may be proper for the other counts. However, section 12022.53 calls for imposition of multiple subdivision (d) enhancements (one each for counts one and five), and section 654 does not prohibit that result.id: 17844
Defendant was subject to multiple convictions for his possession of many explosive devices at the same time and place. Defendant was convicted of 54 counts of possessing "any explosive" in a public location under Penal Code 12 3.2 and 54 counts of possessing "any explosive" with the intent to injure under section 1203.3. The sentencing judge dismissed all but one conviction for each offense relying on a case suggesting the term "any" was ambiguous and the ambiguity should be resolved in defendant's favor. However, the court found the word "any" as used in section 1203.2 and 12303.3 defines the unit of possession in singular terms. A person is therefore subject to multiple convictions under each statute when he or she possesses more than one unlawful item of the same kind at the same time and place.id: 17631
No stay under section 654 was required where defendant possessed the drugs with the intent to sell, and he also intended to commit that crime to promote or assist the gang.Defendant possessed the drugs with the intent to sell, and he also intended to commit that felony to promote or assist the gang. While he may have pursued both objectives simultaneously, they were nonetheless independent of each other. Consequently, the trial court was not required to stay defendant's sentence for the gang crime under Penal Code section 654.id: 17592
Neither the merger doctrine nor section 654 precluded imposition of the section 12022.53, subd.(d) firearm enhancement.Defendant argued that because the elements of the offense for establishing premeditated and deliberate first degree murder necessarily included an intent to kill, enhanced punishment under Penal Code section 12022.53, subd.(d), which requires the discharge of a firearm caused great bodily injury or death, is precluded under the doctrine of merger (People v. Ireland (1969) 70 Cal.2d 522, 538-540) and under Penal Code section 654. However, neither the merger doctrine nor section 654 precludes imposition of the firearm enhancement under section 12022.53, subd.(d).id: 17565
Whether multiple sex offenses against a victim occurred on separate occasions for purposes of consecutive sentences is not an element of the crime and need not be proven beyond a reasonable doubt or with the jury's input.The trial court is empowered to make the determination whether multiple sex offenses occurred on separate occasions for purposes of imposing full consecutive terms. Defendant argued he had a due process right to have the separate occasions determination made by proof beyond a reasonable doubt. However, the facts setting the maximum term of a sentence and the trial court's power to impose that sentence are not elements of the crime for purposes of federal constitutional law. Moreover, the mandatory sentence does not constitute an increase in the maximum possible sentence and does not require that the finding be made beyond a reasonable doubt. Finally, since the reasonable doubt standard is not implicated, defendant does not have the right to have a jury decide the issue.id: 17286
Sex offender may be prosecuted separately for failing to notify authorities in the county he left and failing to register in the county where he took up residency.A registered sex offender who fails to notify law enforcement agencies of his change of address when he moves from one county to another can be prosecuted in one county for the failure to notify law enforcement for the person was leaving the county (Penal Code section 290, subd.(f)(1)), and then be prosecuted separately in the other county for the failure to register in that county when the person took up residency there (section 290, subd.(a)(1)(A). Both prosecutions are permissible because a person necessarily has two separate intents and objectives in violating both subdivisions (a) and (f) of section 290, and each crime is a separate continuing act that is not so interrelated with the other as to come within the provisions of section 654.id: 17245
Since the objectives were independent of each other, section 654 did not bar punishment for both the gang crime and the robbery.Defendant was convicted of home invasion robbery, along with a Penal Code section 186.22, subd.(b)(1) gang enhancement, as well as the substantive gang crime under section 186.22, subd.(a). He argued the eight month term for the gang crime should have been stayed under section 654. However, the minor's intent and objective in committing the robbery was to take property. His intent and objective in violating section 186.22, subd.(a) was participation in the gang itself. Since the objectives were independent of each other, section 654 does not bar punishment for both the gang crime and the robbery.id: 17210
Section 654 is inapplicable when the defendant, an ex-felon, arrives at the scene of the primary crime already in possession of a firearm.When an ex-felon commits a crime using a firearm, and arrives at the scene already in possession of the firearm, it may reasonably be inferred that the firearm possession is a separate and antecedent offense, carried out with independent, distinct intent from the primary crime. Therefore, Penal Code section 654 will not bar punishment for both firearm possession by a felon and for the primary crime of which defendant is convicted.id: 17070
Assault on a child resulting in death is not a lesser included offense of murder.Defendant was convicted of second degree murder and assault on a child resulting in death under Penal Code section 273ab. He argued the latter was a lesser included offense of the former even though it carries a greater sentence. The state argued that section 273ab was the "greater" offense because of the sentence. However, the two provisions target different conduct, and one is not necessarily included within the other. The conviction of both counts was proper.id: 17024
Multiple convictions were proper where defendant fondled different parts of a child's body during a single incident.Defendant was properly convicted of multiple violations of Penal Code section 288 arising from a single incident, during which he fondled several different areas of the victim's body. id: 16859
Apprendi does not require that a jury decide whether a defendant has a separate intent and objective for multiple offenses occurring during a course of criminal conduct.In Apprendi v. New Jersey (2000) U.S. , 120 S.Ct. 2348, the Supreme Court held any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt. Defendant argued the trial court's determination under Penal Code section 654 that he had separate objectives with respect to the robbery and attempted murder violated the Apprendi rule because, after Apprendi, a jury rather than the trial court, must determine the intent and objective of the defendant beyond a reasonable doubt. However, unlike the hate crime provision in Apprendi, section 654 is not a sentence enhancement. Apprendi dose not apply where the non-jury factual determination allows for a sentence within the range authorized by the verdict.id: 16504
The robbery and attempted murder were not committed with a single intent for purposes of section 654 since the defendant used more force than necessary to commit the robbery.Sufficient evidence existed to support the court's conclusion that defendant harbored divisible intents in committing robbery and attempted murder. Both crimes were not committed with the intent to rob. Defendant repeatedly hit the feeble and unresisting elderly victim with a two-by-four board until the board broke and the victim was unconscious. This was more force than necessary to commit the robbery.id: 16505
Two terrorist threats were not part of an indivisible course of conduct under section 654 where they were made at different times and places, and one threat involved two victimsDefendant argued the terrorist threats charged in counts 5 and 11 were part of an indivisible course of conduct under Penal Code section 654. Although the two threats were made on the same day they were made at different times and places. Moreover, the first threat was directed at two victims and the second threat was exclusively against one of the two. Defendant had time to reflect and the court could reasonably infer that because of his anger he intended the threat to cause additional harm.id: 16509
Section 654 does not prohibit terms for murder and conspiracy to commit murder if the conspiracy had an independent objective.Defendant argued the consecutive terms for murder and conspiracy to commit murder violated Penal Code section 654. However, if a conspiracy has an objective apart from the offense for which the defendant is punished, he may properly be sentenced for the conspiracy as well as that offense. There was strong evidence that defendant's gang intended to kill victims other than the murder victim.id: 16360
Burglary is a violent crime for purposes of the multiple victim exception to Penal Code section 654 where the jury finds the defendant personally used a firearm.The multiple victim exception to Penal Code section 654 applies where the defendant has committed violent crimes against multiple victims. Burglary is a violent crime for purposes of the multiple victim exception when the jury finds that, in the commission of the burglary, the defendant personally used a firearm. Moreover, the trial court may identify the victim (or victims) of a violent crime for this purpose even though no victim was named in the information or by the jury.id: 16200
Consecutive sentences for bribery counts were appropriate where court impliedly determined they were made in support of multiple objective.Defendants received consecutive sentences for the three bribery convictions. They argued that separate punishment for each offense violated Penal Code section 654 because all bribes were paid and received pursuant to a single intent and objective. However, when the court imposed the sentences, it impliedly found the defendants had entertained multiple objectives with respect to the several counts, and substantial evidence supported that determination.id: 16201
Court should have sentenced defendant to the greater term where he was charged with a felony and a misdemeanor, pled guilty to the latter, was then convicted of the felony in a court trial, and was sentenced in separate proceedings.Defendant was charged in the same information with a misdemeanor and a felony, He pled guilty to the misdemeanor in superior court, and two months later was convicted of the felony by the trial court based on the preliminary hearing transcript. The court imposed a five year term on the felony and stayed the sentence on the misdemeanor based upon Penal Code section 654 and the fact that defendant had previously been sentenced on that term. It then ordered the felony sentence on count one be deemed served upon completing the misdemeanor sentence on count two. The sentence was erroneous. Had the court sentenced defendant on the two counts in the same proceeding it would have been required to adhere to section 654 which requires punishment for the longer of the two terms. The result does not differ where defendant was sentenced on the two counts in separate superior court proceedings.id: 16202
Defendant's convictions for street terrorism and possessing stolen property were divisible from the attempted murder and were not subject to section 654.Defendant argued his convictions for receiving stolen property and street terrorism (Penal Code section 186.22, subdivision (a)) had to be stayed under Penal Code section 654 because they were incident to the same objective as the attempted murders. However, defendants's conviction for possessing stolen property was plainly divisible from the attempted murders since it falls within an entirely separate category of crime - a crime against property. Likewise, the intent and objective for street terrorism is distinguishable from the attempted murders. The offenses were not subject to section 654.id: 16204
Rule 412 and section 654 are not in conflict and an appeal may not challenge a sentence under section 654 where defendant and counsel agree to the termCalifornia Rules of Court, rule 412, subd.(b) provides: "By agreeing to a specified prison term personally and by counsel, a defendant who is sentenced to that term or a shorter one abandons any claim that a component of the sentence violates Penal Code section 654's prohibition of double punishment unless that claim is asserted at the time the agreement is recited on the record." Rule 412 is valid and does not conflict with section 654.id: 16205
Section 654 did not preclude consecutive sentences for driving under the influence of and transporting cocaine.Defendant was convicted of felony driving under the influence of a controlled substance and transporting cocaine. He argued Penal Code section 654 precluded the imposition of consecutive sentences because the crimes arose from a single act and were incidental to each other. However, the crimes involved separate acts and objectives. Punishing only one crime would not satisfy the separate objectives. Therefore, the court did not violate section 654 by imposing sentence on both counts.id: 16207
Section 654 does not bar imposition of the enhancement for discharging a weapon from a car on the first degree murder conviction.Penal Code section 654 cannot be applied when an enhancement is imposed pursuant to Penal Code section 12022.55 for discharging a firearm from a motor vehicle, when the defendant is convicted of murder resulting from discharging the firearm from a motor vehicle. The underlying crime and the enhancement are not identical and there was no double punishment.id: 16208
Separate sentences were appropriate where the assaults were not incidental to the objective of robbing the victim.Defendant argued imposition of separate punishments was error because the assaults and robberies were part of a single course of conduct, and the assaults were committed as a means of committing the robberies. However, the evidence showed the robberies were well under way at the time the assaults occurred, and therefore the assaults were not simply a means of committing the robberies. The court properly imposed separate sentences for each assault and robbery.id: 16209
There was no improper double punishment since pushing the victim on the bed and placing the gun against her head was a separate act from pushing the gun into her mouth.Defendant argued the trial court erred by imposing separate sentences on the offenses of assault with a deadly weapon and corporal injury to a spouse, claiming that both offenses were part of an indivisible course of conduct and subject to the limitations of Penal Code section 654. However, defendant's act of pushing his wife onto the bed and placing the gun against her head was not done as a means of pushing the gun into her mouth, did not facilitate that offense, and was not incidental to that offense. The court was entitled to conclude that each act was separate for purposes of 654.id: 16210
Section 654 did not preclude sentences for separate drug transportation offenses since there were separate objectives in that the drugs were to be sold to different customers.Defendant argued the trial court violated Penal Code section 654 by imposing sentences for both the transportation of methamphetamine conviction and the transportation of marijuana conviction. However, even though he transported both drugs in his car at the same time, evidence supported a reasonable inference that he had separate objectives in transporting the drugs in that he intended to sell them to different customers. Therefore, section 654 did not preclude conviction and imposition of sentence for both transportation offenses.id: 15569
The trial court did not err in imposing separate sentences for the simultaneous possession of different drugs.Defendant was convicted of possession of heroin for sale and possession of cocaine for sale. He argued the trial court improperly imposed separate sentences for two drug offenses which involved essentially the same act. However, simultaneous possession of separate drugs may be punished separately without violating the prohibition against multiple punishment.id: 15574
Defendant may be convicted of carjacking and either theft or robbery based upon the commission of a single act or course of action.A defendant charged with carjacking, robbery, and theft, based upon the commission of a single act or course of action may be convicted of both carjacking and robbery, or of both carjacking and theft, but may not be convicted of both robbery and theft.id: 15323
A defendant can be punished for both failure to appear as well as the section 12022.1 enhancement without violating section 654.A defendant who is charged with a felony, released on bail, and fails to appear as required can be punished for violations of both Penal Code section 1320.5 (failure to appear) and Penal Code section 12022.1 (an enhancement for committing an offense while released on bail or on one's own recognizance). Applying both statutes does not constitute double punishment in violation of Penal Code section 654. Because section 12022.1 is an enhancement attributable to the status of the offender, section 654 is not applicable.id: 15085
Court did not violate section 654 by imposing a life term for the murder and a second life term under the section 12022.53, subd.(d) enhancement.Defendant argued that by imposing both a 15 years to life term for second degree murder and an additional enhancement penalty of 25 years to life under Penal Code section 12022.53, subd.(d), the court punished him twice for the same act - firing the shots that killed the victim. However, the trial court did not err in failing to apply section 654 to the enhancement. The law did not punish defendant twice for the same act. Rather, it punished him once each for the components of that act which make it so dangerous and anti-social.id: 15086
Imposition of consecutive sentences for one conviction of arson and two terrorist threats did not violate section 654 because of the divisible acts and the multiple victims exception.Defendant was convicted of one count of arson and two counts of making terrorist threats. The court did not violate Penal Code section 654 by imposing consecutive sentences for the three convictions. First, defendant committed multiple and divisible acts by leaving several threatening messages before setting a fire. Next, because Penal Code section 422 requires commission of an act which harms another, it is a crime of violence for purposes of the multiple victim exception to section 654.id: 15087
The issue of determining the applicability of section 654 is for the court, not the jury, to decide.Defendant was convicted of one count of arson and two counts of making terrorist threats. He argued the court's imposition of consecutive sentences on three convictions violated Penal Code section 654 because the applicability of that section is for the jury, not the trial court to decide. However, section 654 is not an enhancement, but rather a reduction statute. The <i>Apprendi</i> decision which calls for jury trials for enhancements does not apply.id: 15088
Defendant's guilty plea with knowledge of the potential term waived the claim that concurrent terms violated section 654.Defendant pled guilty to three felony counts and admitted two strike priors. The court imposed one term of 25 years to life and ordered concurrent terms for the second and third counts. Defendant argued the court violated Penal Code section 654 by imposing concurrent terms on the additional counts. However, defendant was advised about the possibility of the concurrent terms but he entered the guilty plea to avoid the potentially harsher consequences. His guilty plea constituted a waiver of the claim under California Rules of Court, rule 4.412(b).id: 14939
Court did not err in refusing to strike a current conviction on a stayed count based on same act to avoid future consequences of two strikes.Defendant argued the trial court abused its discretion in denying his motion to dismiss the assault with a firearm conviction pursuant to Penal Code section 1385. He claimed the assault count was based on the same facts as the attempted manslaughter and that because both convictions were for the same act the court should have dismissed the lesser offense in order to avoid leaving him with two prior felony convictions for purposes of the three strikes law. However, once the court stayed execution of the sentence, there was no specter of double punishment before the trial court.id: 14807
Sentencing under both the three strikes law and the habitual sexual offender statute did not violate section 654.A sentencing court should apply both the three strikes law and the habitual sexual offender statute in determining the sentence of a defendant who meets the criteria of both statutes.id: 14809
Separate punishment for manufacturing methamphetamine and possession of marijuana was not improper.Defendant claimed a violation of Penal Code section 654 when he was sentenced to separate terms for the methamphetamine manufacturing and the marijuana possession charge. However, the law is clear that the possession of different drugs or controlled substances not only may violate different statutes, but may also be separately punishedid: 13764
Separate sentences for kidnapping and sex offenses are proper notwithstanding that the kidnapping was for the purpose of committing the sex offenses.Appellant argued that because he kidnapped the victim for the purpose of committing the sex crimes, Penal Code section 654 required that execution of the sentence for kidnapping be stayed. However, section 654 does not prevent punishing appellant for both kidnapping and the sex offenses, even though the kidnapping was for the purpose of committing the sex offenses.id: 13765
Separate sentences for robbery and discharging a weapon were not improper where defendant endangered a person who was not a robbery victim.Defendant was convicted of several counts of robbery and one count of discharging a firearm with gross negligence under Penal Code section 246.3. He argued the sentence for the latter offense violated section 654 since firing the shotgun was part of a course of conduct indivisible from the robbery. However, there was a separate passenger in the car who was not a robbery victim and defendant may be separately punished for endangering her by his violent crime.id: 13766
Separate sentences for robbery and kidnapping for the purpose of robbery were proper where the decision to transport the victim to the ATM was made after the initial robbery.Defendant stole money from the victim, obtained the victim's ATM card, and then forced the victim to accompany him to a nearby ATM to obtain more money. Defendant argued that Penal Code section 654 prohibited separate sentences for robbery and kidnapping for the purpose of robbery. However, separate sentences were proper where the record suggested defendant initially planned only to rob the victim of the contents of his wallet and came up with the idea regarding the ATM withdrawal afterward. However, section 654 did require that the sentence on the auto theft count be stayed where the stolen car was used to effectuate the ATM transaction.id: 13767
Separate sentences for the assault and robbery were proper where the intent and objective were separate.Evidence established that the defendant committed the assault with the intent and objective of preventing the victim from sounding the alarm about the murder, and that this intent and objective were separate from the murder.id: 13768
Separate sentences were proper where appellant, after robbing victim, threatened her son in a demand for more money.Appellant argued the robbery of one victim and the assault on her son were part of a single course of conduct and the court erred in imposing double punishment. However, the robbery of the victim and threat to cut off her son's hand were separate acts. It was only after the robbery had been completed that the threat on her son was made in an effort to obtain more money than was originally obtained. Even assuming the two offenses were part of a single course of conduct, multiple sentences are proper for violent crimes committed against different victims. The robbery and assault are both violent crimes and since there were separate victims, the court properly punished appellant for both.id: 13770
Separate sentences were proper where the attempted murder took place after the attempted robbery was completed.Defendant argued Penal Code section 654 prohibited separate sentences for his attempt to rob and his attempt to murder the victim. However, the attempted robbery was completed when the victim refused to hand over the money. It was only after this point that defendant decided to punish the victim by firing directly into his chest from point blank range.id: 13771
Since appellant robbed one person and in the commission of the robbery killed a different person he could be punished for both robbery and murder.The trial court sentenced appellant to a three year term for robbery, to run consecutively with a life term for murder. He argued the consecutive sentence for murder was barred by Penal Code section 654 because the robbery was the act which rendered the homicide first degree murder. However, since appellant robbed one person, and in the commission of that robbery killed a different person, he could be punished for both robbery and murder.id: 13772
The court may use section 654 to sentence on the lesser offense but must impose the section 667 enhancement associated with the greater offense.Defendant pled guilty to robbery and burglary and he admitted a prior conviction within the meaning of Penal Code section 667. The court sentenced him to three years on the burglary count and stayed the sentence on the robbery count and the section 667 enhancement. However, because imposition of a section 667 prior serious felony enhancement does not depend on imposition of the sentence on the present serious felony, the invocation of section 654 to sentence on the lesser crime does not affect the operation of section 667. The court may invoke it to sentence on the lesser offense, but must impose the enhancement for any prior serious felony conviction.id: 13774
The movement of the victim leading to the kidnap was an act separate from the assault so separate punishment for the kidnap and assault was proper.Defendant was convicted of kidnapping with intent to commit rape (Penal Code section 207, 208 subd. (d)), assault with intent to commit a rape (section 220) and sexual battery (section 243.4 subd. (a)). He argued his convictions of assault with intent to commit rape and sexual battery should have been stayed. However, the movement of the victim leading to the kidnap conviction was an act separate from the assault within the dumpster area. Therefore, separate punishment for the kidnap and assault was proper. The acts leading to the sexual battery conviction held the same criminal objective as those leading to the assault with intent to commit rape conviction. The three year concurrent term imposed for the sexual battery conviction must therefore be stayed.id: 13776
There was no improper double punishment for shooting at an occupied vehicle and for assault with a firearm on an occupant where each crime involved at least one different victim.Defendant argued that imposing unstayed sentences on both count 5 (shooting at an occupied vehicle) and count 6 (assault with a firearm on an occupant) violated Penal Code section 654's prohibition against multiple punishment. However, defendant was properly punished both for the crime of shooting at an occupied motor vehicle, the victims of which were Verdin and three others, and for the assault on Verdin, because each crime involved at least one different victim.id: 13778
Using prior conviction to escalate misdemeanors to felonies and to enhance a sentence did not violate section 654.There was no violation of the prohibition against multiple punishment under Penal Code section 654 in using defendant's prior burglary conviction as a basis for escalating his petty thefts from misdemeanors to felonies and in imposing the prior prison term enhancement under section 667.5, subdivision (b).id: 13779
When imposing punishment for multiple offenses the court is not required to select the offense with the greatest potential term of imprisonment.Penal Code section 654 bars multiple punishment when a defendant is convicted of two or more offenses that are incident to one objective. In imposing punishment for multiple offenses, a trial court is not required to sentence a defendant only for the offense with the greatest potential term of imprisonment.id: 13780
Where different victims are involved, a defendant may be punished for both assault with a deadly weapon and discharging a firearm from a vehicle.Appellant argued the finding of assault with a deadly weapon had to be reversed because it was duplicative of the finding that he discharged a firearm from a vehicle. However, where, as here, different victims are involved a defendant may be punished for both assault with a deadly weapon and discharging a firearm from a motor vehicle.id: 13782
Where the conspiracy had a broader objective than the charged crime the court did not err in sentencing for conspiracies to commit burglary and robbery after defendant was already sentenced for the felony murders which occurred while committing the robbery and burglary.Defendant argued the sentencing court violated the proscription against double punishment when it imposed concurrent sentences for both the conspiracy to commit burglary and a conspiracy to commit robbery after he was already sentenced for the felony murders which occurred during commission of the burglary and the robbery. However, the object of the two conspiracies was not exclusively to take property from the victims by force or fear, or to enter the residence with the intent to commit larceny. The objective was much broader and the intent was to teach the victims a horrible lesson for earlier outfoxing defendant's friends. Whenever a conspiracy has a broader objective than just the charged crime, the sentencing court can reasonably find separate intents and objectives.id: 13783
Zoning ordinance providing for successive punishment for each day of continuing violation does not violate section 654.San Diego County Zoning Ordinance section 7703a, and similar ordinances, providing for successive punishment for each day of continuing violation of the zoning laws, do not run afoul of Penal Code section 654 which prohibits multiple punishment for the same act or omission. Because the Legislature has expressly declared each day of designated continuous criminal conduct may be separately punished, defendant was properly convicted of and punished for multiple offenses under the ordinance.id: 13784
Consecutive sentences were proper where defendant, in attempting to evade police, turned and fired shots at the officer after pausing in between shots.Defendant was convicted of auto theft and three counts of assault on a peace officer with a firearm. As he was driving, defendant turned back, pointed, and shot his weapon. He resumed driving, paused for about a minute, turned back and shot again. After a few seconds a third shot was fired. He argued consecutive sentences for two of the three counts were improper because each shot manifested the same intent and criminal objective, which was to force the officer to break off his pursuit. However, Penal Code section 654 did not bar the consecutive sentences because defendant's conduct became more egregious with each successive shot and each shot posed a separate and distinct risk to the officer and other freeway drivers.id: 13732
Court could properly use the same prior robbery conviction to impose a five year enhancement under section 667, subdivision (a) and add eight month term for petit theft with a prior under section 666.Defendant argued the court erred in imposing a five year enhancement under Penal Code section 667, subdivision (a) for a prior robbery conviction after the identical prior was used as an element of the section 666 conviction of petit theft with a prior robbery. However, it was not improper for the court to impose an eight month subordinate term for the petit theft with the prior and an additional five years for the robbery enhancement under section 667, subdivision (a).id: 13733
Court did not err in punishing defendant separately for both kidnapping and threatening to kill the victim where there were separate objectives.Defendant argued he could not be punished both for kidnapping the victim (Penal Code section 209, subdivision (b)) and threatening to kill him if he opened his mouth (section 126.1, subdivision (c)(1)) because the crimes were part of an indivisible course of conduct with one intent and objective. However, there was substantial evidence that defendant had two separate objectives: 1) to hijack the truck by kidnapping and robbing the victim and 2) to avoid detection and conviction by dissuading and intimidating the victim. He was properly sentenced on both counts.id: 13734
Court did not err in sentencing separately for both unauthorized entry and rape.Defendant argued that Penal Code section 654 prohibited separate punishment for both unauthorized entry of a dwelling (Penal Code section 602.5) and rape. He claimed the only intent upon entry supported by the record was to have intercourse. However, if he entered the residence to have consensual sex with the rape victim's roommate, his intent clearly changed when he forced himself on the victim and overcame her resistance. The intent for consensual intercourse is quite different than intent to rape.id: 13735
Court did not err in using the fact of a prior section 288 conviction for sentencing defendant under section 667.51 to a term of 15 years to life for the current section 288 conviction and as a basis for punishing the section 647.6 violation as a felony.Defendant argued the trial court could not use the fact of his prior Penal Code section 288, subdivision (a), conviction as a basis for sentencing him, pursuant to section 667.51, subdivision (d), to a term of 15 years to life for the current section 288, subdivision (a) conviction, and as a basis for punishing the section 647.6 violation as a felony instead of a misdemeanor. He claimed the sentences imposed under sections 667.51, subdivision (d) and 647.6 are enhancements, and that section 654 prohibits use of the same prior conviction to enhance both sentences. However, neither section 667.51 nor section 647.6 imposes a sentence enhancement. Even if they were enhancements section 654 would not preclude sentencing under both provisions. While the status calls for an increased punishment, it is the new criminal conduct rather than the status which is being punished.id: 13736
Court did not violate section 654 by imposing separate sentences for driving under the influence and being under the influence of methamphetamine.When defendant ingested methamphetamine he violated Health and Safety Code section 11550, subd. (a), prohibiting being under the influence of a controlled substance. Once he was under the influence and later proceeded to drive his car, he committed an additional separate and distinct offense for which further punishment was proper. The court did not violate Penal Code section 654 in imposing separate sentences for the two offenses.id: 13737
Court did not violate the rule against double punishment by enhancing defendant's sentence with his serious prior conviction and his prison priors.The trial court did not violate the rule against double punishment by enhancing defendant's sentence with his prior serious felony conviction under Penal Code section 667, subdivision (a) and then imposing a consecutive one year term for two prison priors under section 667.5, subdivision (b). A defendant may be sentenced for a prior serious felony conviction and then also sentenced for a prior prison term for a different prior offense even though the convictions occurred at the same time and the sentences were served together.id: 13738
Court not err in imposing separate sentences for attempted murder and shooting into an occupied vehicle.Defendant was convicted of attempted murder and discharging a firearm at an occupied motor vehicle. He argued that separate punishments for the acts constituted a violation of Penal Code section 654. However, section 654 was inapplicable because defendant's act was likely to cause harm to all four persons in the vehicle and in fact seriously injured one.id: 13740
Defendant waived the double punishment issue when he failed to raise it at the time of the plea.Defendant pled guilty to second degree robbery and grand theft of a motor vehicle. At the time of the plea the court indicated that it would approve the plea agreement calling for a four year prison term. At sentencing defense counsel questioned the sentence indicating that he was not present at the time of the plea but since the robbery was of the car, the grand theft of a motor vehicle count should be stayed under Penal Code section 654 as opposed to run concurrent. However, defendant was precluded from raising any issue concerning section 654 because that question was not raised at the time the trial court set forth the plea agreement.id: 13743
Defendant was properly convicted of two counts of violating section 11352 stemming from a single, indivisible course of conduct.Defendant was convicted of two counts of violating Health and Safety Code section 11352, for offering to sell cocaine and transporting cocaine. He argued that he should have been convicted of only one count of violating that provision, since all of his acts were in furtherance of a single sale of cocaine. However, dual convictions are permissible in this type of situation. What is prohibited is dual punishment, which did not occur here since the trial court correctly stayed the sentence on the second count.id: 13744
Defendant was properly punished for kidnapping and mayhem where he assisted in multiple stabbing episodes each of which evinced a separate intent to do violence.Defendant was convicted of aggravated mayhem, torture, kidnapping, and attempted murder. He argued separate punishments for mayhem and kidnapping were prohibited under Penal Code section 654 because the kidnapping was the sole purpose of beating the victim, which encompassed both the mayhem and torture counts. He claimed that since the court stayed the sentence on the torture count, it necessarily should have stayed the mayhem count because the two crimes were incident to a single object and based on the same acts. However, the fact that defendant assisted multiple stabbing episodes, each of which evinced a separate intent to do violence, precluded application of section 654 with respect to the offenses encompassed with the episodes. Therefore, defendant was properly punished for committing kidnapping and mayhem despite the court's decision to stay the torture count.id: 13745
Full-term consecutive sentence under section 667.6, subdivision (c) renders inapplicable section 654's proscription against multiple punishment.The Legislature's authorization of consecutive full-term sentences for enumerated sex offenses, whether or not the crimes were committed during a single transaction, creates an exception to Penal Code section 654's prohibition against multiple punishment for separate acts committed during an indivisible course of conduct.id: 13746
Imposing an enhancement for a prior drug conviction as well as a prior prison term enhancement based on the same prior conviction did not violate the prohibition against double punishment.Defendant argued the court erred in imposing two separate and consecutive enhancements based on the same prior conviction when it imposed an additional one year under Penal Code section 667.5 based on a prior prison term and a three year term pursuant to section 1130.2 based on a prior conviction for violating section 11352. However, section 11370.2 creates an express exception to the general rule against double punishment by providing defendant shall receive the enhancement in addition to any other punishment authorized by law.id: 13747
Imposing sentence on both the prior serious felony enhancement and the committing crimes while on bail enhancement was not improper.Defendant pled guilty to eight counts of residential burglary. While on bail pending sentencing he committed two additional residential burglaries. He argued the sentencing court violated Penal Code section 654 in imposing sentence on both the prior serious felony conviction enhancement under section 667 and the committing crimes while on bail enhancement under section 12022.1. However, the two enhancements have different elements and different purposes and imposition of both is not improper.id: 13748
Imposing separate fines for each violation of filing a false deed of trust did not violate the proscription against multiple punishment.Defendant was convicted of two counts of filing a false deed of trust on a single family residence. He was fined $75,000 for each count pursuant to Penal Code section 115.5. Contrary to defendant's claim each false filing was separately punishable and the imposition of the two fines did not violate section 654.id: 13750
Imposition of separate nonstayed sentences for both on-bail enhancement and prior serious felony enhancement does not constitute impermissible double punishment.Defendant argued that imposition of both the two year on-bail enhancement (Penal Code section 12022.1) and the five-year prior serious felony enhancement (section 667) constituted impermissible double punishment because both enhancements were based on the same prior conviction. However, even where an element of each of the enhancements involved is established by the same underlying conviction, sentences on both may be imposed without violating the section 654 prohibition because the other elements for each enhancement must be supported by different facts.id: 13751
Imposition of two separate criminal street gang enhancements did not violate section 654.Defendant argued the imposition of two criminal street gang enhancements under Penal Code section 186.22, subdivision (b)(1) were improper and in violation of section 654. However, the robberies were committed on separate occasions against separate victims, and were not subject to section 654. Applying the street gang enhancement to both robberies holds defendants accountable for ongoing gang activity and is consistent with the legislative intent of section 186.22, subdivision (b)(1).id: 13752
Multiple oral copulations during a single encounter may be punished separately.Defendant was convicted of two counts of forcible oral copulation against his daughter where he both licked her vagina and had her lick his penis. He argued that separate punishment for these offenses violated Penal Code section 654. However, multiple oral copulations during a single encounter may be punished separately.id: 13754
No improper double punishment in imposing a bail enhancement along with a prior serious felony conviction enhancement.Appellant pled guilty to four counts of residential burglary in the first case. In the second case, he was charged with another residential burglary, and the information alleged two enhancements - the four prior serious felony convictions of the first case (Penal Code section 667) and the current offense occurred while appellant was released from custody on bail (section 12022.1). The section 12022.1 requirement that a defendant be released on bail at the time of the commission of the second offense distinguished it from section 667 and justified imposition of the separate enhancement. Moreover, the trial court did not err when it designated the upper term for the conviction in the second case as the principal term in computing appellant's aggregate sentence in both cases.id: 13756
Provision barring multiple punishment does not apply where the Legislature has adopted multiple statutory provisions punishing a single statutory violation in different ways.The sole statutory violation committed by defendant was his commission of a felony while released on bail. In subdivision (b) and (e) of Penal Code section 12022.1, the Legislature has ordained that defendant's statutory violation should be punished both by imposition of a two-year enhancement and by imposition of a consecutive sentence. Section 654 does not preclude imposition of these punishments.id: 13757
Section 654 did not bar punishment for both second degree murder and child endangerment where the offenses occurred over two months apart.Defendant argued Penal Code section 654 precluded punishment for both second degree murder and child endangerment pursuant to section 273(a), subd. (1). However, defendant committed child endangerment by moving back home about two months before he murdered his stepson. The only similarities between the two crimes were that the stepson was the victim of both crimes and defendant's return home made it more likely he would commit the murder. Absent a more substantial connection the crimes occurring over two months apart were not so intertwined so as to constitute a continuous course of conduct.id: 13759
Section 654 did not prohibit separate sentences for the thefts of two purses taken at the same time.Defendant argued that grand theft person of Crowley in count one and robbery of Bettancourt in count two constituted a single course of conduct with a single intent and objective. However, defendant formed the separate felonious intent to steal the purses of both victims. The thefts were not incidental to but independent of each other, although committed at the same time. Defendant is clearly more culpable than a defendant who takes the purse of a single victim and is appropriately punished for each offense. The Penal Code section 654 prohibition against multiple punishment was inapplicable in this case.id: 13760
Section 654 does not bar multiple punishment for multiple violations of violating a child custody order.Defendant was charged with three counts of violating a child custody order (Penal Code section 278.5) after absconding with his three children. He submitted the case on the preliminary hearing transcript pursuant to <U>Bunnell v. Superior Court</U>, (1975) 13 Cal.3d. 592. Penal Code section 654 does not bar multiple punishment for the multiple violations of section 278.5 which defendant committed. Defendant's contention to the contrary, the court's agreement to impose concurrent sentences was not a meaningless promise, and the <U>Bunnell</U> submission induced by that promise was valid.id: 13761
Section 654 may not be applied to a single gun use enhancement which is in turn attached to a single conviction of voluntary manslaughter.Defendant was convicted of voluntary manslaughter and the jury also found true the allegation that defendant personally used a firearm in the commission of the offense within the meaning of Penal Code section 12022.5, subdivision (a). The court fixed the term on the firearm use enhancement at the lower term of three years, but stayed imposition of the term under section 654 because the enhancement and the crime arose from the same act. However, because the underlying crime and the enhancement are not identical there can be no double punishment under section 654. The trial court was not authorized to stay imposition of the enhancement and the judgment was modified to reflect imposition of the consecutive term mandated by section 12022.5, subdivision (a).id: 13762
Separate punishment on four counts was permissible based on the unlawful medical treatment of a patient on four separate occasions.Defendant was convicted of four counts of felonious unlicensed practice of medicine under Business and Professions Code section 2053 following preoperative and postoperative care rendered to a sex change patient. He argued Penal Code section 654 prohibited the trial court from punishing him for four separate counts since they all related to his overall treatment and represented an indivisible course of conduct. However, the fact that separate visits were made with separate payment in connection with each visit supported the separate sentences.id: 13725
A single drunk driving prior conviction may be used to elevate a new DUI offense from a misdemeanor to a felony and to support a prior prison term enhancement.A single prior felony conviction for driving under the influence (Vehicle Code section 23152, subdivision (a)) may be used both to elevate a new DUI offense from a misdemeanor to a felony (section 23175) and to support a prior prison term enhancement under Penal Code section 667.5, subdivision (b). Use of the prior conviction and resulting prison term in this manner is consistent with the legislative intent underlying both provisions and does not violate Penal Code section 654's prohibition against multiple punishment.id: 13726
Concurrent terms were proper for defendant who shot a victim standing inside a building with several innocent bystanders in the area.Defendant argued the concurrent sentences for assault with a firearm (Penal Code section 245, subd.(a)(2)) and discharging a firearm at an occupied building (section 246) violated the prohibition against multiple punishment under section 654. However, while the security guard (although uninjured) was a victim of both crimes, he was not the only victim of the second crime. The children standing near the guard as the bullets shattered the glass front door were also victims and defendant was properly punished for his crime against them.id: 13728
Consecutive sentences are not improper for certain sex crimes committed during a single transaction.Defendant was convicted of several counts of kidnapping and child molestation. He argued the court erred in not staying the consecutive sentences imposed with respect to the kidnapping of two victims. He claimed the acts of walking the victims from their respective school routes to the locations where the rapes and attempted rape occurred had only one criminal objective, the rapes and attempted rape. However, in <i>People v. Hicks</i> (1993) 6 Cal.4th 784, the California Supreme Court concluded that Penal Code section 667.6, subdivision (c), created an exception to Penal Code section 654 so as to permit full term consecutive sentences for enumerated offenses constituting separate acts committed during an indivisible transaction.id: 13729
Consecutive sentences for a burglar who assaulted the residents did not violate the prohibition against multiple punishment.Defendant was convicted of burglary and two counts of felonious assault. He argued consecutive sentences were improper because the burglary and assaults were part of an indivisible transaction committed with a single purpose. The court rejected the argument finding that if theft were the only objective, defendant could have waited until the victims had left their home instead of committing the crime at night while the victims were home.id: 13730
Unlawful vehicle taking and ADW are not lesser included offenses of robbery.Defendant argued that Penal Code section 654 precluded convictions of assault with a deadly weapon and unlawful vehicle taking because they were lesser included offenses of the robbery. However, because robbery can be committed without ADW, and since property other than a vehicle may be taken in a robbery, these crimes are not lesser included offenses so as to bar their conviction along with the robbery. The information charged robbery in the statutory language only without specifically alleging the manner in which it was committed or describing the property taken. The determination as to whether a lesser offense is necessarily included must be based solely on the statutory language of that offense, and not on evidence adduced at trial. Convictions of the offenses were therefore proper although the sentences were properly stayed.id: 13253
Resentencing to longer of two sentences after shorter was served did not violate double jeopardy.Defendant was convicted of attempted robbery and felony murder based on the underlying attempted robbery. He was given consecutive sentences of 15 years and life, but the Missouri courts later held that the state legislature had not intended multiple punishments. After his 15-year sentence was completed, the state vacated that sentence, but left the life sentence in place, giving him credit for the time served on the other sentence. The Eighth Circuit held that his continued confinement violated double jeopardy, since he had already completed one sentence for the crime. The Supreme Court reversed in a 5-4 decision by Justice Kennedy, ruling that the Missouri court's alteration of respondent's sentence to a single term for felony murder with credit for time served provided suitable protection of his double jeopardy rights. Justices Brennan, Marshall, Scalia and Stevens dissented.id: 12007
Stalking conviction following violation of restraining order did not violate the prohibition against successive prosecutions or double jeopardy principles.Defendant argued the prosecution for stalking violated Penal Code section 654's prohibition against successive prosecutions for crimes arising from the same course of conduct, because he had already been prosecuted and convicted of contempt for violating the restraining order. However, the section 654 prohibition does not apply where, as here, at least some of the acts giving rise to the charge occurred after the prosecution for the related crime. Moreover, there was no double jeopardy violation because the provisions relating to the violation of a restraining order do not define a crime. Rather, they create a punishment enhancement and as such are not considered in the double jeopardy analysis.id: 12009
Juvenile court's finding of assault and robbery did not violate multiple punishment proscription because juveniles are not convicted of crimes.Evidence established that the minor shot at other youths in the course of stealing their property. The court issued an order continuing appellant's wardship of the juvenile court based on findings that he committed assault and robbery. He argued the court erred in convicting him of the two offenses thereby violating the rule barring multiple convictions based on included offenses. The argument failed because juveniles cannot be convicted of crimes and the prohibition against multiple punishment is irrelevant as long as the theoretical maximum length of a juvenile's potential confinement is not increased by the aggregation of offenses.id: 11682
There is no conflict between the DMV administrative license suspension provisions and the pre-existing second-offender probation provisions providing for license restriction.Respondent was convicted of drunk driving as a second offender. He argued there was a conflict between the administrative laws mandating suspension of driving privileges for second offenders (Vehicle Code sections 13353.2 and 13353.3, subd. (b)(2)) and pre-existing second-offender probation statutes providing for driver's license restrictions (sections 23165, 23166, subd. (b), 13352, subd. (a)(3)). However, when a second offender suffers both the administrative license suspension and the restriction pursuant to probation, the dispositions run concurrently. At the conclusion of the one-year suspended term, the remaining six month portion of the restricted term shall continue to run. Finally, imposition of the two licensure suspensions for one offense does not violate the proscription against multiple punishment.id: 10625
Defendant was properly convicted and punished separately for both carjacking and robbery where the crimes were separated in time and place.Defendant argued he could not be convicted of both carjacking and robbery based on the same incident. However, carjacking is not a lesser offense included within robbery and defendant was properly convicted of both offenses. Moreover, because the carjacking was separated in time and place from the initial robbery of the victim's purse and was interrupted by the sexual attack perpetrated by defendant, the record supported the trial court's finding the taking of the purse and taking of the vehicle were separate incidents which merited separate and additional punishment.id: 10098
The probability that an undefined sex act may occur in the same transaction as the defined sex act did not insulate the defined sex act from separate punishment.Defendant argued that touching of the young victim's penis was done to facilitate the oral copulations and sodomies that followed shortly thereafter. Therefore, he claimed the trial court violated Penal Code section 654 by sentencing him for the undefined lewd acts (touching the penis) as well as the defined lewd acts (oral copulation and/or sodomy). However, the court found that the touching of the victim's penis was not merely incidental to or facilitative of the later acts. Therefore, the prohibition against multiple punishment for the same act did not apply.id: 10002
Section 654 does not bar separate punishment for two rapes committed within a few moments of each other.Defendant was convicted of two rapes as he forced himself upon the victim while she was lying on her back and then turned her over and raped her from behind. Penal Code section 654 did not bar multiple punishment simply because the defendant had the sole aim of achieving sexual gratification.id: 9990
Court erred in imposing sentence on the conviction of kidnapping for sexual purposes and staying punishment on the enhancement for kidnapping for sexual purposes.Defendant was convicted of numerous sex offenses, kidnapping for sexual purposes (Penal Code section 208), and the jury found true an enhancement for kidnapping for sexual purposes (section 667.8). The trial court erred in imposing sentence on the count for kidnapping for sexual purposes and in staying the enhancement. The enhancement is mandatory and was enacted to avoid the limitations of section 654. The Court of Appeal therefore stayed execution of sentence on the substantive count and ordered the stay dissolved on the section 667.8 mandatory enhancement.id: 9746
Use of the same prior to impose the three strike 25-years to life sentence and a five-year enhancement does not violate section 654.Dual use of the same prior felony convictions to impose both the life sentence under Penal Code section 667, subdivisions (b) - (i) and the five-year enhancements under section 667, subdivision (a) did not violate the double punishment prohibition of section 654.id: 9377
25 years-to life was not cruel and unusual for an attempted burglary conviction where the two priors were committed on a single occasion.Three strikes defendant argued 25 years to life was cruel and unusual punishment for someone convicted of attempted burglary whose priors occurred in a single incident. The evidence showed he did not enter the victim's home and inflicted only minimal property damage to her home. However, the punishment was not unconstitutionally disproportionate given defendant's status as a repeat offender. Moreover, he was on parole at the time of the instant offense, and after serving a substantial sentence, he started right back to felonious behavior.id: 9379
Multiple use of a prior robbery term was not barred and the stay of the enhancement pursuant to section 654 can be corrected on appeal.The same robbery conviction can be used to (1) convert the current offense to a felony under Penal Code section 666, (2) to invoke the punishment provisions of section 667, subdivision (e)(1), and (3) to impose a prior prison term enhancement pursuant to section 667.5, subdivision (b). Such multiple use is not prohibited by Penal Code section 654 or by double jeopardy principles. The trial court therefore erred in finding section 654 required a stay of the enhancement term. Inasmuch as the court imposed the aggravated term it is not reasonably probable it would have exercised its discretion to strike the enhancement. The stay of the enhancement was therefore subject to correction on appeal.id: 9340
Imposition of the five year enhancement as well as the doubling of the base term is not barred by the three strikes law or Penal Code section 654.Defendant argued that the imposition of the five year enhancement for a prior serious felony conviction under Penal Code section 667, subdivision (a)(1), in addition to the doubling of the base term under section 667, subdivision (e)(1) is barred by the terms of the three strikes law and by section 654. The proscription against multiple enhancements for the same prior did not apply because the doubling of the base term does not constitute an enhancement. Subdivision (e)(2)(a), a separate portion of the three strikes statute, likewise does not support defendant's position because that section addresses the sentencing of a defendant with two prior qualifying convictions. Neither does subdivision (a)(2) (three strikes statute does not apply where sentence imposed under other provisions would be longer) support defendant's position since limitation was not intended to apply to subdivision (e)(2). Finally, section 654 does not prohibit the imposition of the five year enhancement as well as the doubling of the base term. By its terms, section 654 prohibits multiple punishment for the same act or omission and while the repeat offender's status calls for the increased sentence it is the new criminal conduct rather than the status which is being punished.id: 9338
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Pat Ford is a criminal defense lawyer in San Diego who works on appeals in some of the most difficult cases around the state. He has a great record for success and integrity. Pat has also published a criminal case law digest since 1984 that's used by judges and lawyers around the state. He also speaks and writes articles for criminal lawyers as well as consumers interested in the law. The consumer-related articles are intended to be informative but do not constitute legal advice.
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Exclusion of 18-25 year-olds from the youthful offender provisions of section 3051 did not violate equal protection. Penal Code section 3051 establishes a parole eligibility hearing for juveniles convicted of special circumstance murder and sentenced to life without the possibility of parole. Excluding persons 18-25 from the youthful offender parole hearing provision did not violate equal protection principles.id: 27245