Sentencing Manual, Sections VI Through X

September 2013

Always check to determine if the case has been granted review, depublished, or modified. Additionally, review the Three-Strikes Outline for all Three-Strikes related issues.

VI. Enhancements and Penalty Provisions

A. Discretion / 1385 to Strike the Enhancement

  1. People v. Carmony (2004) 33 Cal.4th 367, the California Supreme Court held that the lower court’s decision not to strike a strike is reviewed under the deferential abuse of discretion standard.  The High Court overruled People v. Benevides (1998) 64 Cal.App.3d 728, to the extent that it is inconsistent with this opinion.  The High Court found that the refusal to strike such an allegation, in this case where the defendant was convicted of failing to register as a sex offender, was not an abuse of discretion do to the fact the he had been informed of his duty to register on several occasions, had a lengthy and violent criminal record, which included two prior convictions for failing to register, had substance abuse problems for which he did not diligently seek treatment, had a spotty work history, and appeared unlikely to be law-abiding in the future.

  2. People v. Wallace (2004) 33 Cal.4th 738, the California Supreme Court held that where the defendant pled no contest to a pending charge and admitted a prior conviction, the court’s order that the prior conviction allegation be stricken pursuant to section 1385, primarily because the magistrate, after conducting the preliminary hearing, had held that there was insufficient evidence to hold the defendant to answer on that charge, a charge which was later reinstated and to which the defendant entered a negotiated plea, was based on a factor extraneous to the Three Strikes law and was an abuse of discretion within the meaning of section 1385.

  3. People v. Burgos (2004) 117 Cal.App.4th 1209, the Second Appellate District, Division 2, held that the lower court abused its discretion in denying the defendant’s motion to strike one of two prior felony convictions under section 1385 where:  (1) both arose from the same act, (2) an express statutory preclusion barred imposition of sentences for both, and (3) the defendant’s other prior criminal history consisted of several misdemeanors and a felony conviction for sale of a substance in lieu of a controlled substance.  Appellant’s current offense was an assault and robbery in which defendant injured and took the shoes of another detainee in his holding cell, and as a second-strike offender defendant would still face a term as long as 20 years.  The prior offenses arose from one act, wherein appellant was convicted of attempted carjacking and attempted robbery, and section 654 was applied at the time of sentence.  Here, the Court of Appeal analyzes People v. Benson (1998) 18 Cal.4th 24 and People v. Sanchez (2001) 24 Cal.4th 983, 993, wherein the High Court indicated that there are certain circumstances, wherein the prior convictions are so closely related, that it would be an abuse of discretion not to strike a strike–that is the rationale that this Court of Appeal applied in this case. 

  4. People v. Poslof (2004) 119 Cal.App.4th 215, the Fourth Appellate District, Division 2, held that the sentence of 27 years to life in prison for failure to register did not constitute cruel and unusual punishment in view of defendant’s criminal history as a recidivist and child sex offender, nor did the lower court err in denying appellant’s Romero motion pursuant to People v. Williams (1998) 17 Cal.4th 148, 161.

  5. In re Carlos E. (2005) 127 Cal.App.4th 1529, the Fifth Appellate District held that Welfare and Institutions Code section 731, subd. (b), alters the method for determining the maximum term of confinement in the California Youth Authority as of January 1, 2004.  Thereafter, the juvenile court has the discretion to set the maximum term of confinement based on the facts and circumstances placing the minor before the court, but the term cannot exceed the maximum time prescribed by adult sentencing law.

  6. In re Jacob J. (2005) 130 Cal.App.4th 429, the Third Appellate District held that Welfare and Institutions Code section 731, subd. (b) grants juvenile court discretion to set the maximum term of physical confinement to California Youth Authority in a given case at less than the adult maximum term of imprisonment.  The failure of court to exercise its discretion requires the matter be remanded for another determination of the issue.

  7. People v. Flores (2005) 129 Cal.App.4th 1401, the Fourth Appellate District, Division 3 held that under section 1385, the court has the power to dismiss or strike an enhancement.  The failure to impose or strike the enhancement is a legally unauthorized sentence subject to correction for the first time on appeal.  (People v. Bradley (1998) 64 Cal.App.4th 386, 391.)  Striking of an enhancement is tantamount to a dismissal, and implies that it must be dismissed in the interest of justice.  (See People v. Carrillo (2001) 87 Cal.App.4th 1416, 1421.)

  8. In re Large (2007) 41 Cal.4th 538, the California Supreme Court held that the fact that the court denied petitioner’s original petition for writ of habeas corpus, pursuant to Romero, which asked for dismissal of one or more of his prior strike convictions, but at a new hearing three years later, based on the same information available at the first hearing, struck petitioner’s prior conviction for first degree burglary and resentenced him to lesser term, did not demonstrate that the court’s original ruling, which was reinstated by the court of appeal after it reversed the later order, was reached in an improper manner.  The supreme court held that petitioner failed to over come the strong presumption under People v. Carmony (2004) 33 Cal.4th 367, 378, that the trial judge properly exercised his discretion in refusing to strike a prior conviction allegation.

  9. People v. Garcia (2008) 167 Cal.App.4th 1550, the Second Appellate District, Division 5 held that, where the court imposed indeterminate sentences, based on multiple offenses, some being serious felonies, and priors that made him eligible for a three strike sentence, and the fact that the jury also found that he had served five prior prison terms, and personally used a firearm in commission of all offenses, except a firearm possession by felon, the court was required to exercise its discretion and either impose one-year prior prison term enhancements pursuant to section 667.5, subdivision (b), on every appropriate count, depending on whether each offense was a “serious felony,” (see People v. Williams (2004) 34 Cal.4th 401-405; People v. Misa (2006) 140 Cal.App.4th 837, 845-846), or strike the enhancements pursuant to section 1385, subdivision (a).  (See People v. Bradley (1998) 64 Cal.App.4th 386, 395-396; see also People v. McCray (2006) 144 Cal.App.4th 258, 267.) 

  10. People v. Finney (2012) 204 Cal.App.4th 1034, the Second Appellate District, Division 6 held that the trial court did not err in distinguishing People v. Benson (1998) 18 Cal.4th 24, 35, fn 8, and People v. Burgos (2004) 117 Cal.App.4th 1209, and did not strike a strike from the defendant's prior convictions and found him to be a "three striker" and sentenced him to a life term.  The defendant's prior involved an attack on the victim with a skateboard, fled in the erroneous belief victim was dead, and then returned 30 minutes later, where he saw the victim was alive and kicked him in the head three times, and as a result was convicted for mayhem and assault constituted two separate strikes.  Additionally, the trial court did not abuse its discretion (see People v. Superior Court (Alvarez)(1997) 14 Cal.4th 968, 977-978), in denying his Romero motion to strike a strike, where defendant had a history of violent crime and failed attempts at parole and probation, and therefore fell inside and not outside of the Three Strikes Law.  (People v. Carmony (2004) 33 Cal.4th 367, 377-378; see also People v. Williams (1998) 17 Cal.4th 148, 161.)

B. To Stay or to Stike an Enhancement

  1. People v. Crites (2006) 135 Cal.App.4th 1251, the Second Appellate District, Division 6 held that where two special allegations within the meaning of section 12022, subd. (b) (knife and steel-toed shoe) that defendant used a deadly or dangerous weapon during commission of a violent felony were found true, the trial court properly imposed the first enhancement and stayed the second.  (See People v. Jones (2000) 82 Cal.App.4th 485, 492-493.)  The second enhancement was authorized by law, therefore the court was not required to strike it, and could validly stay it. 

  2. People v. Jones (2007) 157 Cal.App.4th 1373, the Second Appellate District, Division 7 held that the court’s discretion to strike a sentence enhancement, pursuant to section 1385, includes discretion to striking a deadly weapon enhancement under section 12022, subd. (b)(1).  The rationale is similar to that used by the Supreme Court in People v. Meloney (2003) 30 Cal.4th 1145, 1156.)  As a result of the court “uniformed discretion,” it must be remanded for resentencing.  (People v. Belmontes (1983) 34 Cal.3d 335, 348, fn.8; People v. Meloney, supra, 30 Cal.4th at p. 1165.)

  3. People v. Garcia (2008) 167 Cal.App.4th 1550, the Second Appellate District, Division 5 held that, where the court imposed indeterminate sentences, based on multiple offenses, some being serious felonies, and priors that made him eligible for a three strike sentence, and the fact that the jury also found that he had served five prior prison terms, and personally used a firearm in commission of all offenses, except a firearm possession by felon, the court was required to exercise its discretion and either impose one-year prior prison term enhancements pursuant to section 667.5, subdivision (b), on every appropriate count, depending on whether each offense was a “serious felony,” (see People v. Williams (2004) 34 Cal.4th 401-405; People v. Misa (2006) 140 Cal.App.4th 837, 845-846), or strike the enhancements pursuant to section 1385, subdivision (a).  (See People v. Bradley (1998) 64 Cal.App.4th 386, 395-396; see also People v. McCray (2006) 144 Cal.App.4th 258, 267.) 

  4. People v. Bonnetta (2009) 46 Cal.4th 143, the California Supreme Court held that it is mandatory that the trial court’s reasons for dismissing an enhancement in furtherance of justice under section 1385 must be explained “in an order entered upon the minutes,” and the clerks failure to do so nullifies the dismissal, even if the reasons appear elsewhere in the record.  The prosecutor does not waive the section 1385 error, under Scott, by failing to inspect the minutes after the sentencing error.  Where the trial court erroneously failed to explain its reasons for dismissal in the minute order, the proper remedy was to remand the matter with directions to the trial court either correct the error by again ordering dismissal of the enhancement, setting forth its reasons in a new minute order, or it can decide to reconsider its decision and take appropriate action including, if necessary, proceeding as if the order had not been entered in the first instance.

C. Gang Enhancements Section 186.22 and Related Issues

  1. People v. Hernandez (2004) 33 Cal.4th 1040, the California Supreme Court established that the defendant who was charged with a robbery for the benefit of a criminal street gang, within the meaning of section 186.22, subd. (b)(1), under the facts of this case, which do not necessarily establish the mental state in which the underlying offense was committed, was not error, not to bifurcate the enhancement.  (See generally People v. Calderon (1994) 9 Cal.4th 69, 72-78 [re bifurcation of prior conviction enhancements, which had previously overruled People v. Bracamonte (1981) 119 Cal.App.3d 644].)  The denial of the motion to bifurcate the street-gang enhancement was not an abuse of discretion where evidence of gang affiliation was also relevant to prove motive and intent behind the charged offenses, and the evidence which was admissible to prove the gang affiliation, but would have been inadmissible at trial solely on the charged offenses was not particularly inflammatory.  The High Court found that if there was a request for a limiting instruction on the proper use of the gang enhancement it should be given, but given the fact that none was requested in this case, it was not error, and the danger that the jury would use such evidence improperly was not so great as to impose upon court a duty to give the instruction sua sponte.

  2. People v. Ramos (2004) 121 Cal.App.4th 1194, the Second Appellate District, Division 3, held that the court erroneously imposed a 15-year enhancement under section 186.22, subd. (b)(5), rather than requiring service of a 15-year minimum eligible parole date, and also erroneously imposed a consecutive subordinate term under section 1170.1, subd. (a), which does not apply to indeterminate sentences.  (See People v. Felix (2000) 22 Cal.4th 651, 659; People v. Mason (2002) 96 Cal.App.4th 1, 15.)

  3. People v. Briceno (2004) 34 Cal.4th 451, the California Supreme Court held that when an “enhancement” within the meaning of section 186.22, subd. (b)(1) is found true, section 1192.7, subd. (c)(28) does transform the underlying offense of either section 12021, or 12025 into serious felonies.  As a result, they do qualify as strikes or prior serious felony enhancements, in the future, and they would be serious felonies within section 667, subd. (a)(1).  Therefore, any felony offense that was also committed for the benefit of a criminal street gang within the meaning of section 186.22, subd. (b)(1) is a serious felony pursuant to section 1192.7, subd. (c)(28) for future or later enhancing purposes. 

  4. People v. Martinez (2004) 116 Cal.App.4th 753, the First Appellate District, Division 1 held that the court erred by ordering appellant to register as a gang member under section 186.30 which requires proof that the crime was committed in association with, or for the benefit of a criminal street gang, and such cannot be inferred solely from the defendant’s past associations and activities, nor can it be inferred from the fact that the defendant acted with a companion absent evidence that the companion was a gang member.  Given the fact that registration is an onerous burden that may result in a separate misdemeanor offense for noncompliance, a registration requirement may not be imposed upon persons not specifically described in the statute.  (See People v. Franklin (1999) 20 Cal.4th 249, 253; In re Bernardino S. (1992) 4 Cal.App.4th 613, 623.)  For the crime to be gang related the record must provide some evidentiary support, other than merely the defendant’s record of prior offenses and past gang activities or personal affiliations, for a finding that the crime was committed for the benefit of, at the direction of, or in association with a criminal street gang. 

  5. People v. Vy (2004) 122 Cal.App.4th 1209, the Sixth Appellate District held that three violent assaults by the defendant’s gang, including the crime for which he was sentenced, over less than a three-month period, constituted sufficient evidence that the commission of such predicate crimes was one of the “primary activities” of the defendant’s gang, supporting imposition of the enhancement under section 186.22, subd. (f).  The court did not commit instructional error by including attempted murder as a predicate crime that the jury could consider for “primary activities” prong of gang enhancement.

  6. People v. Lopez (2005) 34 Cal.4th 1002, the California Supreme Court held that a defendant convicted of first degree murder, which is punishable by imprisonment for life and therefore is not subject to a 10-year enhancement, applicable to other violent felonies when the crime is committed for the benefit of a criminal street gang, under section 186.22, subd. (b)(1)(C), but, he is subject to the 15-year minimum eligible parole date under section 186.22, subd. (b)(5), even though it does not add to the minimum eligible parole date of 25 years.  It is a factor that can be considered for parole eligibility.

  7. People v. Bautista (2005) 125 Cal.App.4th 646, the Fifth Appellate District held that a defendant is entitled to have a jury determine under federal law (People v. Taylor (2004) 118 Cal.App.4th 11, 23-24, based on Apprendi) whether his current offense is a conduct-based serious felony under section 1192.7.  Here, there are two ways in which could have been found, either the defendant personally used a firearm under section 1192.7, subd. (c)(8), or that the felony offense constituted a felony violation of section 186.22.  The jury was not given the question of personal use; therefore, the finding could not be made on that basis.  However, the jury did find that the offense constituted an offense for the benefit of a street gang.  Appellant argued that People v. Briceno (2004) 34 Cal.4th 451, applies only where the question is whether a prior conviction was for a serious felony and not where the question pertains to the current offense.  However, the Court of Appeal applied the argument advanced by the prosecution and found that since the defendant did commit an offense under the circumstances specified in section 186.22, subd. (b)(1), it is tantamount to a finding that the offense was a serious felony.  Therefore, the court could impose one five-year serious felony enhancement.  But, it could not impose a second 5-year enhancement under section 186.22, subd. (b)(1)(B), as that would be bootstrapping, which is prohibited by Briceno, supra.

  8. People v Flores (2005) 129 Cal.App.4th 174, the Fourth Appellate District, Division 3 held that the section 186.22, subd. (a) is a necessarily lesser included offense of carrying a firearm while an active participant in a criminal street gang (§ 12031, subd. (a)(2)(C)), and since one cannot be convicted of the lesser included offense, (see People v. Ortega (1998) 19 Cal.4th 686, 692), the conviction of section 186.22, subd. (a) must be stricken.  Separate punishments for murder and for conspiracy to batter a separate victim, wherein the murder occurred during the course of the conspiracy, do not violate section 654's ban on multiple punishments for the same crime, since the murder was not part of the conspiracy.  (See In re Cruz (1966) 64 Cal.2d 178, 181 [if the conspiracy had an objective apart from an offense for which the defendant is punished, he may be properly sentenced for the conspiracy as well].)  The enhancement under section 12031, subd. 3 and a separate sentence for carrying a gun in the carrying a firearm while an active participant in a criminal street gang did not violate section 654 where the evidence established that the crime for which the enhancement was imposed and the gun possession offense involved separate conduct and separate intents.  The court acknowledged that there is a split of authority as to whether section 654 applies to enhancements (see People v. Rodriguez (1988) 206 Cal.App.3d 517, 519 [does not apply]; People v. Moringlane (1982) 127 Cal.App.3d 811, 817-818; People v. Arndt (1999) 76 Cal.App.4th 387 [§ 654 does apply to enhancements that go to the nature of the offense and not to the status of the offender]; see also People v. Akins (1997) 56 Cal.App.4th 331; People v. Palacios (2005) 126 Cal.App.4th 859, [§ 654 does apply to enhancements), but, determined that on these facts, that it did not.

  9. People v. Martinez (2005) 132 Cal.App.4th 531, the Fifth Appellate District held that section 654 bans multiple punishments for same crime bars the trial court from imposing a serious felony enhancement and gang enhancement based on the same act or conduct used to support the serious felony enhancement if the underlying crime is a serious felony only because it was committed for the benefit of a criminal street gang (see People v. Briceno (2004) 34 Cal.4th 451; People v. Bautista (2005) 125 Cal.App.4th 646), but, it does not bar separate punishments if the underlying offense would have been a serious felony even if it had not been committed for the benefit of the gang.  The Court of Appeal finds that under People v. Coronado (1995) 12 Cal.4th 145, 157 [section 654 does not apply to prior conviction enhancements], both can be imposed.  However, they acknowledge, but, do not discuss the fact that the new Supreme Court ruling in People v. Oates (2004) 32 Cal.4th 1048, 1066, fn. 7, appears to contract this holding.

  10. People v. Maldonado (2005) 134 Cal.App.4th 627, the Second Appellate District, Division 4 held that an assault with a firearm is a predicate offense for purposes of the gang enhancement within the meaning of section 186.22, subd. (e)1), which imposes additional punishment when a crime is committed for the benefit of a criminal street gang and defines as a criminal street gang an organization whose members have committed two predicate offenses.  Even though section 245, subd. (a)(2) is not listed in the crimes that are classified as predicate offenses, it is a more specific form of assault that was contemplated by the legislature. 

  11. Garcia v. Carey (9th Cir. 2005) 395 F.3d 1099, the Ninth Circuit Court of Appeal established that the prosecution’s gang expert testified that the defendant’s gang was “turf-oriented,” however, he did not testify to a definition of “turf-oriented,” what implications arose from a gang being “turf-oriented,” or how the gang’s “turf-oriented” nature could support the conclusion that robbery of which defendant was convicted, was committed with the specific intent to promote, further, or assist other gang-related criminal activity.  Therefore, the Ninth Circuit held that it was unreasonable for the state appellate court to conclude that a rational jury could find that the defendant committed the robbery with the specific intent to facilitate other gang crimes.  (See People v. Augborne (2002) 104 Cal.App.4th 362, 372 [re: specific intent to further a gang purpose].)

  12. People v. Romero (2006) 140 Cal.App.4th 15, the Second Appellate District, Division 4, held that the specific intent element of section 186.22, subd. (b)(1), does not require an intent to further the criminal conduct beyond the presently charged crime.  Where the defendant was charged with murder and attempted murder, and the evidence showed he intended to shoot people, intended to help another shoot people, and the other person was a fellow gang member, the specific intent requirement was satisfied.  The Court of Appeal refused to follow Garcia v. Carey (9th Cir. 2005) 395 F.3d 1099 which found that a showing of intent to promote the gang’s criminal activity beyond the charged crime, was needed. 

  13. People v. Schoppe-Rico (2006) 140 Cal.App.4th 1370, the First Appellate District, Division 4 held that pursuant to section 12025, subd. (b)(3), and section 12031, subd. (a)(2)(C) [street gang firearm possession statutes], which make firearm possession a felony where perpetrator is active participant in street gang, within the meaning of  section 186.22, do not require proof that the charged firearm possession was connected with underlying gang participation.

  14. People v. Hill (2006) 142 Cal.App.4th 770, the Third Appellate District, similar to the Second Appellate District in People v. Romero (2006) 140 Cal.App.4th 15, held that section 186.22, subd. (b) does not require that the defendant’s intent to enable, or, promote criminal endeavors by other gang members must relate to criminal activity apart from the offense the defendant commits.  This court as did the Romero court, refused to follow Garcia v. Carey (9th Cir. 2005) 395 F.3d 1099 which found that a showing of intent to promote the gang’s criminal activity beyond the charged crime, is needed.

  15. People v. Lamas (2007) 42 Cal.4th 516, the California Supreme Court held that in order to establish that the defendant actively participated in a criminal street gang within the meaning of the substantive section 186.22, subd. (a), for purpose of elevating the offense of carrying a loaded firearm in public under section 12031 from a misdemeanor to a felony, the prosecution must prove that, (1) the defendant is more than a nominal member of a criminal street gang; (2) that he had knowledge that gang’s members engage in or have engaged in a pattern of criminal gang activity; and (3) that the defendant willfully promoted, furthered, or assisted in felonious criminal conduct by members of the gang distinct from the defendant’s otherwise misdemeanor conduct of carrying a loaded weapon in public.  The elements of section 186.22, subd. (a) have been delineated in People v. Robles (2000) 23 Cal.4th 1106, 1115.)

  16. Lopez v. Superior Court (2008) 160 Cal.App.4th 824, the Fourth Appellate District, Division 3 held, on remand from the California Supreme Court, where the defendant was engaged in gang-related behavior in violation of criminal contempt order was charged with a misdemeanor, the prosecution’s use of same underlying facts to impose felony gang enhancement under section 186.22, subd. (d), was impermissible bootstrapping and constituted double punishment. (People v. Arroyas (2002) 96 Cal.App.4th 1439.)

  17. People v. Bragg (2008) 161 Cal.App.4th 1385, the Third Appellate District held that the court’s erroneous instruction that battery with serious bodily injury was a predicate offense for a finding that group to which defendant belonged was a criminal street gang was harmless beyond a reasonable doubt where offense of which defendant was convicted in the present case was a predicate offense, and there was undisputed evidence that a fellow gang member had been convicted of another predicate offense.  (People v. Sengpadychith (2001) 26 Cal.4th 316, 320-324.)

  18. People v. Margarejo (2008) 162 Cal.App.4th 102, the Second Appellate District, Division 7 held that the prosecution’s expert witness (police officer) testified that the primary activities of the defendant’s gang engaged in were committing crimes, substantial evidence supported the jury’s finding that the gang met the criteria of a “criminal street gang,” within the meaning of section 186.22.  Where the defendant repeatedly made gang hand signs to pedestrians and police during a high speed pursuit, substantial evidence supported the jury’s application of the gang enhancement to the violation of section 2800.2 (evading).  Where the defendant illegally possessed a gun and then transferred the weapon to a fellow gang member, substantial evidence supported the jury’s application of the gang enhancement for illegally possessing a weapon.

  19. In re Damien V. (2008) 163 Cal.App.4th 16, the Fourth Appellate District, Division 3 held that section 186.22, subdivision (d)’s alternate penalty provision for an underlying offense that was committed for the benefit of, at the direction of, or in association with a criminal street gang addresses criminal convictions, is applicable to juveniles because the voters’ intent in passing Proposition 21, which enacted section 186.22, was to increase the punishment for all gang-related crimes.

  20. People v. Fiu (2008) 165 Cal.App.4th 360, the First Appellate District, Division 4, held that where the defendant was convicted of second degree murder, the trial court properly sentenced him to a term of 15 years to life, doubled to 30 years to life due to his prior “strike,” but erred in adding a 10-year gang participation enhancement.  Where a life term is imposed for a gang-related offense, there is a mandatory minimum of 15 years that must be served without possibility of parole, but the 10-year enhancement is not applicable as it only applies when it is added to a determinate term.  (See § 186.22, subd. (b)(5); People v. Lopez (2005) 34 Cal.4th 1002, 1007.)

  21. People v. Ulloa (2009) 175 Cal.App.4th 405, the Second Appellate District, Division 4 held that, section 1192.7, subdivision (c)(28), defining a “serious felony,” does not include a misdemeanor punishable as a felony pursuant to the alternate penalty provision of section 186.22, subdivision (d).  (See People v. Briceno (2004) 34 Cal.4th 451; see also People v. Arroyas (2002) 96 Cal.App.4th 1439 [does not permit impermissible bootstrapping].)  Therefore, the prior to which this relates, cannot be imposed as a felony, since the underlying offense was a misdemeanor, and even if sentenced as a felony within the provisions of section 186.22 subdivision (d), it does not transform the prior into a felony for sentencing purposes in the current case.  The supreme court declined to decide this issue in Robert L. v. Superior Court (2003) 30 Cal.4th 894, 907, fn. 17.

  22. People v. Rodriguez (2009) 47 Cal.4th 501, the California Supreme Court held that where the defendant was convicted of three counts of assault with a firearm, under section 245, the trial court erred in imposing two different sentence enhancements for the defendant’s firearm use, based on (1) his personal use of a firearm (§ 12022.5, subd. (a)) and (2) his commission of a violent felony, as defined by personal use of a firearm to benefit a criminal street gang (§ 186.22, subd. (b)(1)(C)).  Section 1170.1, subdivision (f), provides that “[w]hen two or more enhancements may be imposed for being armed with or using a dangerous or deadly weapon or a firearm in the commission of a single offense, only the greatest of those enhancements” can be imposed.  Subdivision (f) precludes the imposition of added prison terms under both of the enhancement provisions at issue in this case, sections 12022.5, subdivision (a), and 186.22, subdivision (b)(1)(C).  The court specifically declined to decide whether section 654 applies to sentence enhancements that are based on the nature of the offense.

  23. People v. Jones (2009) 47 Cal.4th 566, the California Supreme Court held that where the defendant committed a felony specified in section 186.22, subdivision (b)(4) [§ 246], for which he was subject to life imprisonment, because of subdivision (a)(17), of section 12022.53, it triggered the application of the 20-year enhancement under section 12022.53, subdivision (c).  The defendant was subject to that 20-year enhancement not because he committed a gang-related offense, but because he committed a particularly heinous crime (§ 246) punishable by life imprisonment based on the application of section 186.22, subdivision (b)(4).

  24. People v. Brookfield (2009) 47 Cal.4th 583, the California Supreme Court held that the defendant who was convicted of a gang-related crime under section 186.22, in the commission of which he did not personally use or discharge a firearm, but his companion did, was subject to life imprisonment pursuant to section 186.22, subdivision (b)(4)(B), but the trial court erred by also sentencing him to an additional 10-year enhancement for personal use of a firearm under section 12022.53, subdivisions (b), (e)(1).

  25. People v. Gonzalez (2010) 180 Cal.App.4th 1420, the Second Appellate District, Division 8 held that the imposition of the 25 to life enhancement pursuant to sections 12022.53, subdivisions (d) and (e)(1), based on finding that a principal fired a gun causing great bodily injury in a crime committed for the benefit of a street gang, is imposed, but it precludes the imposition of 15-year minimum eligible parole date for the gang-related crimes under section 186.22, subdivision (b)(5).  (See People v. Brookfield (2009) 47 Cal.4th 583.)  A defendant who personally uses or discharges a firearm in the commission of a gang-related offense is subject to both the increased punishment provided in section 186.22 and the increased punishment in section 12022.53.  Therefore, this defendant, the aider and abetter, is sentenced under the provision of section 3046 for each of the defendant's life sentences, not the 15 year minimum eligibility parole period under section 186.22, but the 25 to life sentence under section 12022.53, subdivision (e)(1), is also imposed.

  26. People v. Sok (2010) 181 Cal.App.4th 88, the Second Appellate District, Division 7 held that where the defendant received a determinate sentence, plus a 25-year-to-life enhancement pursuant to section 12022.53, subdivision (d) for the use of the gun, and the crime was committed for the benefit of a criminal street gang (§ 186.22), the crime was not “punishable by imprisonment in the state prison for life” as the phrase is used in section 186.22, and as a result, the trial court correctly imposed the 10-year enhancement under section 186.22, subdivision (b)(1)(C), rather than a 15-year minimum parole eligibility period under section 186.22, subdivision (b)(5).  (See People v. Montes (2003) 31 Cal.4th 350, 352-353, 362.)  Where the defendant was convicted of shooting at an occupied vehicle (§ 246), with special findings that the crime was committed for the benefit of a criminal street gang, that the defendant discharged a firearm causing great bodily injury, and that the defendant had a prior strike, the trial court erred in imposing the 10-year gang enhancement under section 186.22, subdivision (b)(1)(C), and should instead have imposed alternate minimum sentence of 15 to life under section 186.22, subdivision (b)(4).

  27. People v. Rodriguez REVIEW GRANTED (S187680); FORMERLY AT: (2010) 188 Cal.App.4th 722, the Third Appellate District held that a defendant's knowing and active participation in gang activities is insufficient for a conviction under section 186.22, subdivision (a), the substantive criminal street gang offense.  (See People v. Lemas (2007) 42 Cal.4th 516, 523.)  Here, the defendant committed an attempted robbery by himself.  Said section requires more than one participant in the felonious criminal conduct to support the gang crime instead of the gang enhancement.  (See People v. Castenada (2000) 23 Cal.4th 743.)  This court believes that People v. Salcido (2007) 149 Cal.App.4th 356, and People v. Ngoun (2001) 88 Cal.App.4th 432, and People v. Sanchez (2009) 179 Cal.App.4th 1297 have strayed from the dictates of Castenada.

  28. People v. Duarte REVIEW GRANTED (S189174); FORMERLY AT: (2010) 190 Cal.App.4th 82, the Fourth Appellate District, Division 3 held that the trial court erred in failing to stay the criminal street gang conviction within the meaning of section 186.22, subdivision (a), when the defendant was also convicted of discharging a firearm with gross negligence (sec. 346.3), among other things, arising from the same single act of shooting a firearm.  (See People v. Sanchez (2009) 179 Cal.App.4th 1297.)  Sanchez disagreed with the contrary holding in People v. Herrera (1999) 70 Cal.App.4th 1456 as this court also did.  The jury necessarily relied on one of the underlying firearm offenses to establish the requisite felonious conduct on the street terrorism charge, and as a result section 654's bar on separate punishment was violated.

  29. People v. Campos (2011) 196 Cal.App.4th 438, the Fourth Appellate District, Division 1, held that where the defendant was convicted of attempted, willful, deliberate, premeditated murder, which under section 3046, generally carries a minimum eligible parole date of 7 to life, when the jury also finds true a gang enhancement within the meaning of 186.22, the alternate penalty scheme provides for a 15 to life term (see People v. Lopez (2005) 34 Cal.4th 1002, 1004), since section 3046, subdivision (a)(2) provides for a longer term if another section, here section 186.22, subdivision (b)(5) so indicates.  Additionally, the Court of Appeal found that section 186.22, subdivision (g), does not permit the court to strike the “alternative penalty” provided in 186.22, subdivision (b)(5), as that provision only permits the striking of an enhancement, which section 186.22, subdivision (b)(5) is not.  Furthermore, the court found that section 1385, and People v. Bonnetta (2009) 46 Cal.4th 143, nor People v. Superior Court (Romero) (1996) 13 Cal.4th 497, do not permit the striking of the gang allegation so that the alternative penalty would not be imposed, and find that the imposition of that provision is mandatory.  (See People v. Johnson (2003) 109 Cal.App.4th 1230, 1239.)

  30. People v. Hunt (2011) 196 Cal.App.4th 811, the Fourth Appellate District, Division 2 held that the trial court erred in failing to stay the term for defendant’s active participation in a criminal street gang, for the substantive crime under section 186.22, subdivision (a), because it was based on the same intent he had when he participated in the robberies, which was to benefit the gang.  (People v. Sanchez (2009) 179 Cal.App.4th 1297, 1301.)  The court distinguished People v. Brookfield (2009) 47 Cal.4th 583 [cannot impose, for a non-shooter, pursuant to the § 12022.53, subd. (e)(2) gun enhancement and the 186.22 enhancement].)  The court held that since the substantive offense of section 186.22, subdivision (a) was not mentioned in the discussion of 12022.53, subdivision (e)(2), it could be imposed, but in this case it had to be stayed pursuant to People v. Sanchez, supra.

  31. People v. Jorge P. (2011) 197 Cal.App.4th 628, the Fifth Appellate District held that where appellant was charged with violations of section 12031, subdivision (a)(1), section 12101, subdivision (a)(1), and 186.22, subdivision (a), the Court of Appeal concluded that a true finding as to the section 12101, subdivision (a)(1) felony offense, cannot support the gang allegation under section 12031, subdivision (a)(2)(C), because the underlying conduct is the same conduct underlying the section 12031, subdivision (a)(1) offense, which cannot be used under section 12031, subdivision (a)(2)(C) to elevate the section 12031, subdivision (a)(1) to a felony under People v. Lamas (2007) 42 Cal.4th 516.  The prosecution must prove separate and distinct felonious conduct, that is, actions or omissions evidencing the offender's behavior, different from the misdemeanor conduct supporting a section 12031, subdivision (a)(1) allegation, notwithstanding the possibility that the offender's same conduct can support separate and distinct misdemeanor and felony offenses.

  32. People v. Gonzales (2011) 199 Cal.App.4th 219, the Fourth Appellate District, Division 3 held that an active gang member may be held liable for a gang enhancement within the meaning of section 186.22, subdivision (b)(1), even if he acted alone, and without assistance from any other gang member.  (See People v. Ngoun (2001) 88 Cal.App.4th 432; People v. Salcido (2007) 149 Cal.4th 356; People v. Sanchez (2009) 179 Cal.App.4th 1297, 1301.)  This court does not believe that People v. Albillar (2010) 51 Cal.4th 47, compels a different conclusion.

  33. People v. Valenzuela (2011) 199 Cal.App.4th 1214, the Second Appellate District, Division 1 held that the trial court erred in imposing a street-gang enhancement under section 186.22, subdivision (b)(5) (15-L MEPD), where a section 12022.53, subdivisions (d) and (e)(1)  was also imposed and there was no finding that the defendant personally fired a gun.  (People v. Brookfield (2009) 47 Cal.4th 583, 590.)

  34. People v. Nunez (2011) 200 Cal.App.4th 578, the Third Appellate District held, over a strong dissent, that section 654 does not bar separate punishment for the crime of criminal street gang activity within the meaning of section 186.22, subdivision (a), and the underlying felonies, here assault (§ 245) and vandalism (§ 594), used to prove the "felonious conduct" element of that offense.  The dissent points out that the assault and vandalism charges are, in and of themselves, the entirety of the third element of the gang charge, and therefore, section 654 has to apply.

  35. People v. Le (2012) 205 Cal.App.4th 739, the Fourth Appellate District, Division 1 held that the trial court did not err when it imposed only the gun use enhancement, which yielded a 10 year term, when a gang enhancement was also found true, and the defendant was found to have personally used the weapon, as the gang enhancement involved defendant’s use of a firearm, trial court lacked the discretion to impose both the personal gun use enhancement under section 12022.5, subdivision (a) and the gang enhancement under either section 186.22, subdivision (b)(1)(B) or subdivision (b)(1)(C).  (See People v. Rodriquez (2009) 47 Cal.4th 501, 504-505.)

  36. People v. Martinez (2012) 208 Cal.App.4th 197, the Second Appellate District, Div. 5 held that where the defendant was convicted of sections 245, 186.22, subdivision (b)(1)(B) & (C), and section 12022.5, subdivision (a), pursuant to section 1170.1, subdivision (f), as only the greater of the section 186.22 or the 12022.5 enhancements can be imposed. (People v. Rodriguez (2009) 47 Cal.4th 501, 508-509; People v. Jones (2009) 47 Cal.4th 566, 572, fn.3.)

  37. People v. Robinson (2012) 208 Cal.App.4th 232, the First Appellate District, Division 5 held that Section 12022.53, subdivision (e)(2), which provides that an enhancement for participation in a criminal street gang shall not be imposed on a person in addition to an enhancement imposed pursuant to this subdivision, unless the person personally used or personally discharged a firearm in the commission of the offense (see People v. Brookfield (2009) 47 Cal.4th 583, 588-590), conflicts with section 1170.1, subdivision (f), which directs that only one firearm enhancement be imposed.  Section 12022.53, subdivision (e)(2), as the more specific statute, controls and allowed trial court to impose enhancements under both section 186.22, subdivision (b)(1)(C) and section 12022.53, subdivision (b).

  38. People v. Infante REVIEW GRANTED; FORMERLY AT: (2012) 209 Cal.App.4th 987, the Fourth Appellate District, Division 3, held that sections 12025 and 12031, which are generally misdemeanors, but there are statutes which permit elevating those weapon offenses to felonies when the defendant is also guilty of active participation in a street gang in violation of section 186.22, subdivision (a).  The defendant's illegal possession of a firearm may itself be the felonious conduct that is an element of the section 186.22, subdivision (a) offense, provided that the conduct constitutes a felony independent of that section, as when the defendant is a convicted felon.  This court decision is in direct conflict with People v. Jorge P. (2011) 197 Cal.App.4th 628, the Fifth Appellate District held that where appellant was charged with violations of section 12031, subdivision (a)(1), section 12101, subdivision (a)(1), and 186.22, subdivision (a), the Court of Appeal concluded that a true finding as to the section 12101, subdivision (a)(1) felony offense, cannot support the gang allegation under section 12031, subdivision (a)(2)(C), because the underlying conduct is the same conduct underlying the section 12031, subdivision (a)(1) offense, which cannot be used under section 12031, subdivision (a)(2)(C) to elevate the section 12031, subdivision (a)(1) to a felony under People v. Lamas (2007) 42 Cal.4th 516.  The prosecution must prove separate and distinct felonious conduct, that is, actions or omissions evidencing the offender's behavior, different from the misdemeanor conduct supporting a section 12031, subdivision (a)(1) allegation, notwithstanding the possibility that the offender's same conduct can support separate and distinct misdemeanor and felony offenses.

  39. People v. Vega (2013) 214 Cal.App.4th 1387, the Second Appellate District, Division 5 held that where the defendant was found guilty of attempted voluntary manslaughter, and enhancements for the use of a firearm, (§ 12022.5, subd. (a)), a great bodily injury allegation within the meaning of section 12022.7, subdivision (a) and a gang enhancement within the meaning of section 186.22, subdivision (b)(1)(C), were found true, in this case, the GBI allegation made the crime a violent felony for which separate firearm and gang enhancements were properly imposed. The court distinguished People v. Rodriguez  (2009) 47 Cal.4th 501, 508-509, where the 10-year gang enhancement was not imposed due to the fact that the gun use was the only enhancement that transformed the crime into a serious felony; here the GBI provided that avenue, thereby permitting the imposition of the gun use and the gang enhancement.  The  stay of the great bodily injury enhancement which attached to the attempted voluntary manslaughter, (violent felony), was unlawful where the court did not have independent authority to stay any portion of a sentence without legal justification. (People v. Woods (2010) 191 Cal.App.4th 269, 271-274; People v. Baylor (1989) 207 Cal.App.3d 232, 236.)  However, on remand, the trial court has the authority to strike the enhancement pursuant to section 1385, subdivision (a), if the reasons are set forth in the minutes.

  40. People v. Prunty (2013) 214 Cal.App.4th 1110, the Third Appellate District held that the trial court did not err when it imposed an gang enhancement within the meaning of section 186.22, subdivision (b)(1), where it was undisputed that the defendant belonged to Norteno, a large group that was active in defendant’s home city and other California cities, and meeting the definitional prerequisites of a criminal street gang, including use of common symbols, the wearing of definitive colors, and a pattern of concerted criminal activity.  Section 186.22 did not require the prosecution to prove that the neighborhood subset of the gang with which defendant was affiliated met those prerequisites. (See In re Jose P. (2003) 106 Cal.App.4th 458; People v. Ortega (2006) 145 Cal.App.4th 1344.)  However, there is contradictory authority in People v. Williams (2008) 167 Cal.App.4th 983, that this court merely disagrees with.

D. Great Bodily Injury Enhancement Under Section 12022.7, Subdivision (D) Is not More Specific Than 12022.95, and Either Can Be Pled

  1. People v. Corban (2006) 138 Cal.App.4th 1111, the First Appellate District, Division 1 held that where child endangerment (§ 273a, subd. (a)), results in death, the prosecution may seek enhancement of the sentence under either section 12022.7, subd. (d), or section 12022.95, as neither enhancement is more specific than the other.

E. Group Beating Can Lead to a Finding of a Serious Felony Within the Meaning of Section 1192.7, Subdivision (C)(8)

  1. People v. Modiri (2006) 39 Cal.4th 481, the California Supreme Court held that CALJIC 17.20, the standard instruction on the enhancement for infliction of great bodily injury, permitting jury to find special allegation to be true if it concludes defendant participated in a “group beating” with intent to cause great bodily injury.  Where the defendant instigated a fight with the victim that escalated into a chaotic group beating of the victim, but, no determination could be made whether the defendant’s blows were the ones that caused the victim’s injuries, the court did not err in instructing jury that it could find, for purposes of punishment in a future prosecution, that defendant “personally inflict[ed] great bodily injury” on victim thereby committing a serious felony within meaning of section 1192.7, subd. (c)(8), if the jury found that the defendant personally applied physical force to victim under such circumstances in which he knew other participants in incident were applying similar force, and knew or reasonably should have known that cumulative effect of force used by all participants would result in great bodily injury to victim.  Therefore, it was not error for the jury to find that the defendant personally inflicted great bodily injury in the commission of felony pursuant to section 1192.7, subd. (c)(8).

F. Health and Safety Code Section 11353.6 Within a School Zone

  1. People v. Davis (2006) 141 Cal.App.4th 519, the Second Appellate District, Division 6, held that there was insufficient evidence that the defendant was in violation of Health and Safety Code section 11353.6, as the garage of a private residence that was not accessible to the general public and was not a public area within the meaning of said section.  (See People v. Jimenez (1995) 33 Cal.App.4th 54, 60; People v. Townsend (1998) 62 Cal.App.4th 1390, 1395-1397; People v. Todd (1994) 30 Cal.App.4th 1724, 1729 [the enhancement does not apply to drug transactions that take place solely within the confines of a private residence].)

G. Serious Felonies Under Section 667, Subdivision (a)(1)

  1. People v. Ringo (2005) 134 Cal.App.4th 870, the Second Appellate District, Division 5, held that a pre-Proposition 21 conviction for making a criminal threat is a serious felony within the meaning of section 667, subd. (a)(1).  Appellant argued that the change in the lock-in date only affected the three-strikes law, and not section 667, subd. (a)(1).  However, the court rejected that argument, indicating that the lock-in date of June 30, 1993, within section 667, subd. (h), applies only to the three-strikes law and not section 667, subd. (a)(1).

  2. People v. Warner (2006) 39 Cal.4th 548, the California Supreme Court held that were the defendant was convicted a violation of section 288, subd. (a) (lewd or lascivious conduct with a child under 14 years of age), and found that he had suffered prior felony conviction in Nebraska for child sexual assault, but, did not find that he had acted with specific lewd intent in the Nebraska crime as no facts to that offense were presented by the prosecution.  The court erred in imposing the serious felony enhancement under 667, subd. (a), and for a strike, where the Nebraska crime, which required intentional touching that could be “reasonably construed as being for the purpose of sexual arousal or gratification” did not contain the “specific intent of arousing” element of California’s definition of that felony.  The court distinguished People v. Murphy (2001) 25 Cal.4th 136, as nothing in Murphy supports the proposition that conduct or behavior not amounting to a felony if committed in this state could nevertheless quality as a serious felony under section 1192.7, subd. (c).

  3. People v. Jackson  DEPUBLISHED (2009) 170 Cal.App.4th 1600, the Third Appellate District held that section 667, subdivision (a)’s predicate requirement that charges must have been “brought and tried separately” for a five-year enhancement to apply to convictions from those charges, restricts number of five-year terms to be served (In re Harris (1989) 49 Cal.3d 131, 136), rather than the number of allegations the trial court may find to be true.  Where the defendant was convicted of five prior serious felonies, only one of which was brought and tried separately, the trial court had to impose and then execute a five-year enhancement for one conviction, then impose and stay remaining enhancements.

H. Prison Prior Enhancements 667.5, Subdivision (a)(1)

  1. People v. Langston (2004) 33 Cal.4th 1237, the California Supreme Court held that a prison term for escape is “separately served” and can be the basis for a one-year enhancement on a subsequent felony conviction within the meaning of section 667.5, subd.s (b) and (g).  The High Court affirmed the lower court’s opinion in People v. Carr (1988) 204 Cal.App.3d 774, 780-781, pertaining to the dichotomy between section 1170.1, subd. (c) and section 667.5, subd. (g).  The Supreme Court overruled the opinion in People v. Kelly (1983) 33 Cal.3d 267, to the extent that it is inconsistent with this opinion.

  2. People v. Fielder (2004) 114 Cal.App.4th 1221, the Second Appellate District, Division 4, held, following a rehearing, that in order for prosecution to avoid application of the 5-year “washout” provision for a one-year prior prison term within the meaning of section 667.5, subd. (b), the prosecution must prove beyond a reasonable doubt that the defendant either committed a new offense resulting in a felony conviction or was in prison custody during that period.  The Court of Appeal also found that even though a CRC commitment is not a prior prison term, the conviction of the offense which sent appellant to CRC is a conviction that prevents the washout period from taking effect.  However, given the fact that the documents presented to the court did not establish when the 1993 conviction, which led to one of the CRC commitments, was “committed,” the evidence was insufficient to establish that there was not a 5 year period leading up to the 1997 conviction when appellant was state prison free and felony conviction free.  Therefore, the matter was remanded to the superior court to determine if the prior will be retried.

  3. People v. Johnson (2006) 145 Cal.App.4th 895, the First Appellate District, Division 5 held that the court erred in imposing prior-prison-term enhancement within the meaning of section 667.5, subd. (b), where the defendant had not completed that term at time of trial.  (See People v. Jones (1998) 63 Cal.App.4th 744, 746-747.)

  4. People v. McFearson REVIEW GRANTED THEN TRANSFERED TO FIFTH DISTRICT (SEE INFRA) FORMERLY AT:  (2008) 158 Cal.App.4th 810, the Fifth Appellate District held that the court erred in using the defendant’s prior convictions to impose an aggravated sentence and to impose one-year prior prison term enhancements pursuant to the terms of section 667.5, subd. (b).  The court found that the prior prison term is merely a subset of a prior conviction, and therefore violated People v. Prather (1990) 50 Cal.3d 428, and People v. Jones (1993) 5 Cal.4th 1142 [cannot impose a § 667 enhancement for the same prior as the § 667.5, subd. (b)].)

  5. People v. Garcia (2008) 167 Cal.App.4th 1550, the Second Appellate District, Division 5 held that, where the court imposed indeterminate sentences, based on multiple offenses, some being serious felonies, and priors that made him eligible for a three strike sentence, and the fact that the jury also found that he had served five prior prison terms, and personally used a firearm in commission of all offenses, except a firearm possession by felon, the court was required to exercise its discretion and either impose one-year prior prison term enhancements pursuant to section 667.5, subdivision (b), on every appropriate count, depending on whether each offense was a “serious felony,” (see People v. Williams (2004) 34 Cal.4th 401-405; People v. Misa (2006) 140 Cal.App.4th 837, 845-846), or strike the enhancements pursuant to section 1385, subdivision (a).  (See People v. Bradley (1998) 64 Cal.App.4th 386, 395-396; see also People v. McCray (2006) 144 Cal.App.4th 258, 267.) 

  6. People v. McFearson (2008) 168 Cal.App.4th 388, the Fifth Appellate District held that the trial court erred when it used defendant’s prior convictions to impose an aggravated sentence and then used the same convictions wherein appellant was sentenced to state prison, as prior prison terms to enhance defendant’s sentence by those 3 additional years.  (See People v. Prather (1990) 50 Cal.3d 428 and People v. Jones (1993) 5 Cal.4th 1142 pertaining to an improper dual use.)  The matter was remanded back to the trial court to determine if the aggravated sentence should be given and or if the court wanted to impose any or all of the prior prison term enhancements.

  7. People v. Conerly (2009) 176 Cal.App.4th 240, the First Appellate District, Division 3 held that the court must order joint trial and the severance is the exception].)  the trial court must strike or impose a prior prison term enhancement (§ 667.5, subd. (b).)  The Court of Appeal can strike the 1-year enhancement when the trial court's intention is clear that it did not want them imposed, and order the superior court to correct the abstract of judgment since an unauthorized sentence can be corrected at any time.  (People v. Langston (2004) 33 Cal.4th 1237, 1231.)

  8. In re Preston (2009) 176 Cal.App.4th 1109, the First Appellate District, Division 3 held that the defendant’s request for habeas corpus relief premised solely on arguments that his confinement was in excess of the maximum allowed by law presented cognizable claims for appellate court consideration. Whether a parolee has remained free of prison custody for purposes of section 667.5, subdivision (b), depends on whether he has remained on parole without revocation or has been discharged from custody for a continuous five-year period. (See also In re Panos (1981) 125 Cal.App.3d 1038, 1042.)

I. Stay the Shorter Sentence, Including Enhancements

  1. People v. Manila (2006) 139 Cal.App.4th 589, the Fifth Appellate District held that section 654's prohibition against multiple punishments for a single crime applies to sentences imposed under enhancement statutes where the enhancement is based on conduct in which the defendant engaged in committing the crime (§ 12022, subd. (c)), including arming enhancements.  (See People v. Coronado (1995) 12 Cal.4th 145.)  However, section 654 does not apply to status enhancements such as those based on prior convictions.  Where the defendant was convicted of Health and Safety Code section 11351.5 and of being a felon in possession of a firearm (sec. 12021, subd. (a)), and the allegation of being armed during the possession of the drug offense was found true based on same evidence, enhancement had to be stayed.

J. Health and Safety Code Section 11353.6 within School Zone

  1. People v. Blake (2004) 117 Cal.App.4th 543, the Second Appellate District, Division 7, held that, on the fact of this case, caustic chemicals, such as pepper spray and mace, when used to facilitate or threaten a robbery, constitute “dangerous or deadly” weapons for which an enhanced sentence within the meaning of section 12022, subd. (b) may be imposed.

  2. People v. Crites (2006) 135 Cal.App.4th 1251, the Second Appellate District, Division 6 held that where two special allegations within the meaning of section 12022, subd. (b) (knife and steel-toed shoe) that defendant used a deadly or dangerous weapon during commission of a violent felony were found true, the trial court properly imposed the first enhancement and stayed the second.  (See People v. Jones (2000) 82 Cal.App.4th 485, 492-493.)  The second enhancement was authorized by law, therefore the court was not required to strike it, and could validly stay it.

  3. People v. Burton (2006) 143 Cal.App.4th 447, the Third Appellate District held that there the evidence was sufficient to support a finding that a dangerous or deadly weapon was used within the meaning of section 12022, subd. (b)(1) as there are two classes of dangerous or deadly weapons, (1) weapons such as guns and blackjacks, and (2) instrumentalities which may be used as a weapon, but, which have nondangerous uses as well.  A jury can infer the use of a dangerous or deadly weapon from the victim’s injuries.  (People v. Alvarez (1996) 14 Cal.4th 155, 179.)  Here, the defendant’s use of gloves was sufficient to support the enhancement.

  4. People v. Smith (2007) 150 Cal.App.4th 89, the Second Appellate District, Division 4 held that it was not error to impose a deadly weapon use enhancement pursuant to section 12022, subd. (b)(1), where the defendant used a knife to kill a dog and was convicted of animal cruelty within the meaning of section 597, subd. (a)(2).  The statute does not limit enhancement’s application to attacks on human beings, and use of a knife or other deadly weapon is not an element of the crime of animal cruelty, since in the abstract (see People v. Hansen (1994) 9 Cal.4th 300, 317), the death of the animal can be caused without the use of a deadly weapon at all. 

  5. People v. Jones (2007) 157 Cal.App.4th 1373, the Second Appellate District, Division 7 held that the court’s discretion to strike a sentence enhancement, pursuant to section 1385, includes discretion to striking a deadly weapon enhancement under section 12022, subd. (b)(1).  The rationale is similar to that used by the Supreme Court in People v. Meloney (2003) 30 Cal.4th 1145, 1156.)  As a result of the court “uniformed discretion,” it must be remanded for resentencing.  (People v. Belmontes (1983) 34 Cal.3d 335, 348, fn. 8; People v. Meloney, supra, 30 Cal.4th at p. 1165.)

K. Section 12022, Subdivision (c)

  1. People v. Delgadillo (2005) 132 Cal.App.4th 1570, the Fourth Appellant District, Division 2, held that evidence that the defendant stored firearms in his bedroom along with a significant sum of money and in close proximity to cars in which defendant and his colleagues stored lab equipment and raw material for the manufacture of methamphetamine, established, pursuant to the majority of the court, following People v. Bland (1995) 10 Cal.4th 991, 999, that the firearms were available to the defendant for use during the manufacturing process, and thus supported the personal use allegation within the meaning of section 12022, subd. (c) enhancement for being personally armed with a firearm during the commission of the crime of manufacturing methamphetamine, even though defendant was not in possession of the guns when he was detained, and there was no evidence he was ever armed while at methamphetamine lab.  The dissent does not believe that Bland should support this enhancement.

  2. People v. Pitto (2008) 43 Cal.4th 228, the California Supreme Court held that a defendant who was within arm’s reach of both a gun and a saleable amount of methamphetamine in his vehicle when he encountered police, and admittedly knew of gun’s presence and admitted purposefully placing it there, and no dispute existed that firearm, because of its location, was available for offensive or defensive use in committing underlying drug crime (see People v. Bland (1995) 10 Cal.4th 991), the court did not err in determining that the defendant was “armed” with a gun “in the commission” of offenses under section 12022, subdivision (c), and imposing a sentence enhancement.  Additionally, the  defendant was not entitled to a sua sponte instruction highlighting evidence that he placed gun in a position near the drugs for a reason unrelated to drug crimes because his deliberate placement of the weapon negated any claim that proximity of gun and drugs was result of mere accident or coincidence.

L. Section 12022.5 Use v. Armed

  1. Alvarado v. Superior Court (2007) 146 Cal.App.4th 993, the Second Appellate District, Division 7 held that the preliminary hearing court erred in finding that there was sufficient evidence to support a “use” enhancement withing the meaning of section 12022.5, subd. (a).  The evidence established that the defendant, who was charged with burglary, was armed, and the only action the defendant demonstrated with the gun was to place his hand on it.  The gun was not pointed at the victim at any time.  The defendant was merely armed in this instance.  (See People v. Reaves (1974) 42 Cal.App.3d 852, 856-857; People v. Superior Court (Pomilia) (1991) 235 Cal.App.3d 1464, 1472.)  Given the fact that the defendant committed no “action” with the gun, or there was no gun related “conduct,” this is a situation of being armed rather than the use of the weapon.

  2. People v. Wardell (2008) 162 Cal.App.4th 1484, the Sixth Appellate District held that  an enhancement within the meaning of section  12022.5, subdivision (a), does not require specific intent, and nothing in the statute indicates that the gun has to be pointed at the victim when it is otherwise displayed and seen by the victim.  (People v. Granado (1996) 49 Cal.App.4th 317, 322; see also  Alvarado v. Superior Court (2007) 146 Cal.App.4th 993, 1002 [there are no particular fact patterns to show the defendant has “used” the gun for enhancement purposes].)

M. Section 12022.53

  1. People v. Flores (2005) 129 Cal.App.4th 174, the Fourth Appellate District, Division 3 held that the court erred in omitting from CALJIC 17.19.5, where the defendant was charged with murder of an accomplice, that the section 12022.53, subd. (d) enhancement, does not apply if the victim was the defendant’s accomplice.  While one cannot be an accomplice to one’s own murder, the section 12022.53, subd. (d) enhancement does not apply if the defendant is convicted under the doctrine of transferred intent and the decedent was an accomplice to the target crime.

  2. People v. White (2005) 133 Cal.App.4th 473, the Second Appellate District, Division 4, held that an enhancement within the meaning of section 12022.53, which is attached to a subordinate count, is imposed as one-third the middle term of the enhancement; therefore, 3 years, 4 months, and it is not imposed full term.

  3. People v. Hernandez (2005) 134 Cal.App.4th 474, the Second Appellate District, Division 7 held that section 12022.53, which imposes a 25-year-to-life enhancement when a defendant is convicted of a murder committed for the benefit of a criminal street gang and any principal fired the fatal shot (§ 12022.53, subd. (e)(1), and where enhancement is imposed upon the defendant convicted of a murder not committed for the benefit of a criminal street gang only if the defendant personally did the shooting (§ 12022.53, subd. (d)), does not deny the defendant the right of equal protection or due process of law to those who aid and abet a gang-related murder in which the perpetrator uses a gun.  (See People v. Gonzales (2001) 87 Cal.App.4th 1, 12-15.)

  4. People v. Carrasco (2006) 137 Cal.App.4th 1050, the Second Appellate District, Division 6 held that the defendant personally discharged firearm during the commission of a robbery, even though no gun was displayed when victim gave the defendant the money. (See People v. Granado (1996) 49 Cal.App.4th 317, 325.)  Finally, the Court of Appeal held, relying on People v. Bracamonte (2003) 106 Cal.App.4th 704, 713, that the section 12022.53, subd. (b) enhancement, which attached to count 1, should have been stayed and not stricken when the section 12022.53, subd. (c) enhancement is imposed.  (See § 12022.53, subd. (f).)

  5. People v. Shabazz (2006) 38 Cal.4th 55, the California Supreme Court held that the special circumstance set forth in section 190.2, subd. (a)(22), which authorizes imposition of a punishment of death or life imprisonment without the possibility of parole for an active participant of a criminal street gang who “intentionally killed the victim” to further the activities of the gang, applies to a defendant who discharged a firearm with the intent to kill one person, but, missed the intended victim and killed another individual.  (See also People v. Scott (1996) 14 Cal.4th 544, 551 [a defendant who shoots with the intent to kill a certain person and hits a bystander instead is subject to the same criminal liability that would have been imposed had the fatal blow reached the person for whom intended].)  The High Court also ruled that a defendant sentenced to life without the possibility of parole for first degree murder is also subject to a sentence enhancement of 25 years to life pursuant to section 12022.53, subd. (d) for personally discharging a firearm and causing death in the commission of the murder.  (See § 669.)  The Court rejected appellant’s argument that section 12022.53, subd. (j) precludes the imposition of that enhancement. 

  6. People v. Grandy (2006) 144 Cal.App.4th 33, the Second Appellate District, division 4, held that where the defendant aimed his gun and pulling its trigger, causing an explosion in its firing chamber, constituted a discharge within the meaning of section 12022.53, subd. (c) even though the gun malfunctioned and did not actually emit a bullet.  (See People v. Palmer (2005) 133 Cal.App.4th 1141, 1148-1153 [the imposition of section 12022.53, subd. (d) regardless of whether the bullet caused injury; the firing of the gun alone, caused the victim to break his ankle].)

  7. People v. Smart (2006) 145 Cal.App.4th 1216, the Third Appellate District held that the court erred in imposing two separate 25-L enhancements within the meaning of section 12022.53, subd. (d), when the prosecution only charged one offense (section 246, shooting into an occupied vehicle) that qualified for the enhancement even though there were two victims involved in the incident.  Section 12022.53, subd. (f), which provides that only one additional term of imprisonment under that section can be imposed on a defendant for “each crime.”  (See People v. Oates (2004) 32 Cal.4th 1048, 1057 [only one enhancement per crime].)  In other words, the enhancement does not define the crime, it just adds an additional penalty for the crime committed.  (People v. Jimenez (1992) 8 Cal.App.4th 391, 398.)

  8. People v. Warner (2007) 155 Cal.App.4th 57, the Fifth Appellate District held that where the jury finds true multiple special allegations related to the use of a firearm, the lesser enhancement, here section 12022.5, subd. (a), must be stricken rather than stayed. (People v. Bracamonte (2003) 106 Cal.App.4th 704.)  NOW SEE People v. Gonzalez (2008) 43 Cal.4th 1118, AND People v. Warner (2008) 166 Cal.App.4th 653, BELOW.

  9. People v. Sun (2007) 157 Cal.App.4th 277, the Second Appellate District, Division 4 held that where the defendant was subject to enhancements under both sections 12022.53, subds. (b)-(d) and 12022.7, subd. (e), the latter enhancement should have been stricken, rather than merely stayed, but the subd. (b) and (c) enhancements should be stayed and not stricken.  (See People v. Bracamonte (2003) 106 Cal.App.4th 704.)  The court points out the discrepancy between section 12022.53, subd. (f) and subd. (h), the first indicating only one enhancement is to be imposed, and the later indicating that the court shall not strike an allegation under this section.  (See People v. Gonzalez (2008), infra.)

  10. People v. Zarazua (2008) 162 Cal.App.4th 1348, the Third Appellate District held that the shot which was fired, even though it did not hit the victim, but did cause a car crash, which was the proximate cause of the accident and death of the minor victim, was sufficient evidence to support the true finding on the 25 to life enhancement within the meaning of section 12022.53, subdivision (d).  (See People v. Palmer (2005) 133 Cal.App.4th 1141, 1148-1150.)

  11. People v. Gonzalez (2008) 43 Cal.4th 1118, the California Supreme Court held that section 12022.53 requires that, after a trial court imposes punishment for the section 12022.53 firearm enhancement with the longest term of imprisonment, the remaining section 12022.53 firearm enhancements and any section 12022.5 firearm enhancements that were found true for the same crime must be imposed and then stayed.  The court specifically disapproved of People v. Bracamonte (2003) 106 Cal.App.4th 704, which held that the lesser enhancements were to be stricken.

  12. People v. Monjaras (2008) 164 Cal.App.4th 1432, the Third Appellate District held that where a defendant commits a robbery by displaying an object that looks like a gun, the object’s appearance and the defendant’s conduct and words in using it may constitute sufficient circumstantial evidence to support a finding that it was a firearm within meaning of firearm use enhancement within the meaning of section 12022.53(b).  (See People v. Rodriguez (1999) 20 Cal.4th 1, 11-12; People v. Lochtefeld (2000) 77 Cal.App.4th 533, 541 [an object can be established by direct or circumstantial evidence].)  The victim’s inability to say conclusively that gun was real and not a toy does not create a reasonable doubt, as a matter of law, that gun was a firearm.  (See People v. Rodriguez, supra, 20 Cal.4th at 13; People v. Lochtefeld, supra, 77 Cal.App.4th at 541.)

  13. People v. Warner (2008) 166 Cal.App.4th 653, the Fifth Appellate District held that where a violation of section 12022.53, subdivision (d), and “personal use” firearm enhancement allegations are proven, (see §§ 12022.53, subd. (b), 12022.5, subd. (a)) the personal-use enhancements must be imposed and stayed, not stricken.  (People v. Gonzalez (2008) 43 Cal.4th 1118, 1123, 1130, fn.8.)

  14. People v. Sinclair (2008) 166 Cal.App.4th 848, the Second Appellate District, Division 4 held that the phrase “another enhancement” as used in section 12022.53, subdivision (j), which provides that a trial court must impose punishment for a gun use enhancement rather than impose punishment authorized under any other provision of law unless another enhancement provides for a greater penalty or longer term of imprisonment, does not encompass combinations of enhancements.  Where appellant was also charged with a gang enhancement in each count pursuant to 186.22, that a principal in each offense had been armed with a firearm, and that principal had personally used a firearm, the trial court was required to impose gun use enhancement, and impose and stay gang enhancement, unless court exercised its discretion to strike gang enhancement.  Where the defendant was convicted a section 245, subdivision (a)(2) (assault with the use of a gun), the trial court erred in imposing the armed principal enhancement pursuant to section 12022, subdivision (a)(1).  Because assault with a firearm is not listed as a violent felony in section 667.5, subdivision (c) and is encompassed by section 1192.7, subdivisions (c)(23)’s definition of a “serious felony,” the defendant’s conviction for assault with a firearm was only subject to five-year gang enhancement for serious felonies as opposed to 10-year enhancement for violent felonies.

  15. People v. Munoz (2009) 178 Cal.App.4th 468, the Third District held that the trial court erred when it indicated that it “had to” impose consecutive sentences because two counts pertained to two separate victims, and the incidents occurred at separate times.  The court can consider sentencing appellant to either the upper term or consecutive sentences based on multiple victims (People v. Calhoun (2007) 40 Cal.4th 398, 408; People v. Caesar (2008) 167 Cal.App.4th 1050, 1-61), however, here the incidents were not at separate times.  Therefore, the matter must be sent back due to the failure of the court to exercise its discretion.  (People v. Downey (2000) 82 Cal.App.4th 899, 912.)  Appellant was convicted of attempted murder in count 2, an indeterminate sentence, and in count 4 with shooting from a motor vehicle, a determinate sentence.  If the court, on remand chooses to impose count 4 consecutive to count 2, the enhancement under 12022.53, subdivision (d), found true as to both counts, would be full term consecutive, 25 - life, and not 1/3 the middle term of the enhancement since count 2 is an indeterminate term, and count 4 is determinate, due to the fact that section 1170.1 does not apply in this circumstance.

  16. People v. Frausto (2009) 180 Cal.App.4th 890, the Second Appellate District, Division 8 held that the phrase “in the commission of” in section 12022.53, subdivision (d) has the same meaning as the identical or equivalent language in sections 667.61, 12022.3, 12022.5 and the felony murder statutes.  As a result, a firearm is discharged “in the commission of” a felony within the meaning of section 12022.53, subdivision (d) if the underlying felony and the discharge of the firearm are part of one continuous transaction, which includes flight after the felony until the defendant reaches a place of temporary safety.  Additionally, the Court of Appeal found that the defendant's three prior convictions pursuant to section 667, subdivision (a)(1) could not support separate enhancements because they were the result of a single prior proceeding.  (In re Harris (1989) 49 Cal.3d 131, 136.)

  17. People v. Sok (2010) 181 Cal.App.4th 88, the Second Appellate District, Division 7 held that where the defendant received a determinate sentence, plus a 25-year-to-life enhancement pursuant to section 12022.53, subdivision (d) for the use of the gun, and the crime was committed for the benefit of a criminal street gang (§ 186.22), the crime was not “punishable by imprisonment in the state prison for life” as the phrase is used in section 186.22, and as a result, the trial court correctly imposed the 10-year enhancement under section 186.22, subdivision (b)(1)(C), rather than a 15-year minimum parole eligibility period under section 186.22, subdivision (b)(5).  (See People v. Montes (2003) 31 Cal.4th 350, 352-353, 362.)  Where the defendant was convicted of shooting at an occupied vehicle (§ 246), with special findings that the crime was committed for the benefit of a criminal street gang, that the defendant discharged a firearm causing great bodily injury, and that the defendant had a prior strike, the trial court erred in imposing the 10-year gang enhancement under section 186.22, subdivision (b)(1)(C), and should instead have imposed alternate minimum sentence of 15 to life under section 186.22, subdivision (b)(4).

  18. People v. Botello (2010) 183 Cal.App.4th 1014, the Second Appellate District, Division 4 held that the evidence was insufficient to support the firearm enhancements under section 12022.53, where the defendant had to personally use the weapon, as the witness could not identify which defendant was the shooter.  Section 12022.53, subdivision (e)(1) cannot be argued for the first time on appeal to save an imposed firearm enhancement under subdivision (d) or the stayed enhancements under subdivisions (b) and (c) since that statute has a specific pleading and proof requirement.  (See People v. Mancebo (2002) 27 Cal.4th 735; People v. Arias (2010) 182 Cal.App.4th 1009.) Where the information charged the defendants with personally committing acts specified in the sections 12022.53, subdivision (b) through (d), but did not mention the applicability of those enhancements through subdivision (e)(1), either by designation of that provision or by description of the required circumstances, application of subdivision (e)(1) to defendants for the first time on appeal would violate the express pleading requirement of that provision and the defendants' due process right to notice.  The harmless error analysis does not apply to the failure to meet the pleading requirement of subdivision (e)(1).  The prosecution forfeited its right to rely on that subdivision where it failed to plead subdivision (e)(1), failed to ensure the jury findings under that subdivision, failed to raise the provision at sentencing, and obtained a sentence that in fact violated subdivision (e)(1).

  19. People v. Camino (2010) 188 Cal.App.4th 1359, the Fourth Appellate District, Division 3 held that as it pertains to appellant's sentence, the Court of Appeal did find insufficient evidence to support the jury's finding that he vicariously discharged a gun, within the meaning of section 12022.53, subdivisions (c), (e)(1) [20 years for the vicarious liability based on the gang participation]), causing the decedent's death where the decedent was the lone shooter, and the only armed individual in the defendant's group.  The decedent could not be the principal in his own murder.  (People v. Antick (1975) 15 Cal.3d 79, 91; see also People v. Superior Court (Shamis) (1997) 58 Cal.App.4th 833, 845.)  The jury was mislead by CALCRIM 1402, which applies to the gun/gang enhancement, given the lack of evidentiary support for the gun enhancement.

  20. People v. Yang (2010) 189 Cal.App.4th 148, the Third Appellate District held that the trial court erred by imposing the gun enhancement under section 12022.53, subdivision (d) and (e)(1) for firearm discharge by a co-principal that caused death in a gang-committed felony on the defendant, who was the aider and abetter to a murder, where the defendant was only convicted of a voluntary manslaughter and participating in a criminal street gang, but acquitted him of murder, attempted murder, and shooting at an occupied car.  The enhancement did not apply because the defendant was not convicted of one of the qualifying offenses enumerated by statute.  (See People v. Garcia (2002) 28 Cal.4th 1166, 1174 [the defendant must be convicted of a substantive offense enumerated in the statute]; see also People v. Smart (2006) 145 Cal.App.4th 1216, 1226 [an enhancement cannot define the crime, cannot be the tail wagging the dog].)  The court then imposed the 186.22, subdivision (b)(1)(C), for the serious felony that it had previously stayed.

  21. People v. Law (2011) 195 Cal.App.4th 976, the Third Appellate District followed their previous decision in People v. Monjaras (2008) 164 Cal.App.4th 1432, where they held that where a defendant commits a robbery by displaying an object that looks like a gun, the object's appearance and the defendant's conduct and words in using it may constitute sufficient circumstantial evidence to support a finding that it was a firearm within meaning of firearm use enhancement within the meaning of section 12022.53, subdivision (b).  Here there is evidence that the defendant brandished and repeatedly discharged a firearm at the victims suffices to establish the defendant's use of a firearm.

  22. People v. Thiessen (2012) 202 Cal.App.4th 1397, the Third Appellate District held that the defendant's admissions that he pointed his shotgun alongside accomplice, at the same the his accomplice aimed his rifle at the intended victim, and pulled the trigger to make a "click" noise, thereby emboldening accomplice to shoot, were sufficient to sustain the gun enhancement within the meaning of section 12022.53, subdivision (b), even if shotgun was inoperable and unseen by anyone else.  There is no requirement that victim see or perceive the firearm for the enhancement to apply.  Personal use of a firearm may be found where the defendant intentionally displayed a firearm in a menacing manner in order to facilitate the commission of an underlying crime.  (People v. Carrasco (2006) 137 Cal.App.4th 1050, 1059.)

  23. People v. Lisea (2013) 213 Cal.App.4th 408, the Third Appellate District held that the court did not err in sentencing the defendant, a gang member, who was convicted of, among other offenses, attempted murder, as an aider and abetter, and criminal street gang participation within the meaning of section 186.22, subdivision (a).  The Court of Appeal found that he could be sentenced to an additional 25-L for a violation of section 12022.53, subdivisions (d), (e)(1), as a principle to the acts which were the natural and probable consequences of the conduct of the other participants. (See People v. Gonzalez (2001) 87 Cal.App.4th 1, 13, 14.)

N. Section 12022.55

  1. People v. Ramirez (2010) 184 Cal.App.4th 1233, the Second Appellate District, Division 5 held that the court erred in imposing a 5 year enhancement within the meaning of section 12022.55, for intentionally inflicting great bodily injury or death on a person “other than an occupant of a motor vehicle” as a result of discharging a firearm from a motor vehicle in the commission of a felony when the victim is an occupant of a motor vehicle.

O. Section 12022.6

  1. People v. Fernandez (2004) 123 Cal.App.4th 137, the Fourth Appellate District, Division 2, held that movement of the victim’s property from its warehouse to the loading dock was a “taking” and caused a “loss” within the meaning of section 12022.6, subd. (a)(2), which provides for an enhanced penalty when the loss caused by a felonious taking of property which exceeds $150,000.

  2. People v. Frederick (2006) 142 Cal.App.4th 400, the Second Appellate District, Division 6 held that merely because the court imposed sentence on the co-defendant, and applied section 654 to certain counts, it is not required to do so for appellant when the facts of the case do not support it.  There is no reason why the mistake (in sentencing the co-defendant) should be perpetuated and carried into the sentencing of a codefendant.  (People v. Nelson (1987) 194 Cal.App.3d 77, 80.)  Where the offenses are separated by time and involve different victims, section 654 does not have to be applied. (People v. Gaio (2000) 81 Cal.App.4th 919, 935.)  Additionally, the Court of Appeal found that the crime of filing false income tax return is not part of a common scheme or plan to take property within meaning of section 12022.6, subd. (b), under which losses from common scheme may be aggregated for purposes of determining sentence enhancement.

  3. People v. Green (2011) 197 Cal.App.4th 1485, the Forth Appellate District, Division 1 held that the phrase “common scheme or plan” in section 12022.6, subdivision (b) does not have a technical meaning, but rather are understood to have a plain, ordinary meaning these words commonly convey.  In order to prove a “common scheme or plan” for purposes of this statute, a court must compare the losses from each charged count and determine whether there are a concurrence of common features that the various losses are naturally to be explained as caused by a general plan of which they are the individual manifestations.  The common features must indicate the existence of a plan rather than a series of similar spontaneous acts, but the plan thus revealed need not be distinctive or unusual.  The evidence was insufficient to support the jury's findings that losses incurred by the defendant's embezzlement arose from a “common plan or scheme” where the victims in count one and two were not connected, the methods of theft were different, and the schemes to defraud were separate and distinct and not contingent on each other.

  4. People v. Evans (2013) 215 Cal.App.4th 242, the Fourth Appellate District, Division 1 held that the trial court erred in permitting the jury to calculate the  victim’s losses for his property damage for property taken, damaged or destroyed under section 12022.6, subdivisions(a)(2) and (b).  The Court of Appeal concurred with the defendant that a  "loss" means the value of the property taken, damaged, or destroyed, and does not include other types of economic losses suffered by the victim, such as loss of income or profits.  However, the victim's losses to all of the property damaged or taken, based in the light most favorable to the verdict, still can be established at slightly over $200,000, and therefore there was sufficient evidence to uphold the enhancement.

  5. People v. Williams (2013)     Cal.App.4th    , reported on August 12, 2013, in 2013 Los Angeles Daily Journal 10662, the Fifth Appellate District held that there was insufficient evidence of a violation of section 12022.6, losses in excess of $65,000. This case is similar to People v. Evans (2013) 215 Cal.App.4th 242, wherein the Fourth Appellate District, Division 1held that the trial court erred in permitting the jury to calculate the victim’s losses for his property damage for property taken, damaged or destroyed under section 12022.6, subdivisions(a)(2) and (b).  The Court of Appeal concurred with the defendant that a  "loss" means the value of the property taken, damaged, or destroyed, and does not include other types of economic losses suffered by the victim, such as loss of income or profits.  In this case there was insufficient evidence that the losses were over $65,000 for the thefts involved.

P. Section 1192.7, Subdivision (c)(37)

  1. People v. Neely (2004) 124 Cal.App.4th 1258, the Second Appellate District, Division 5 held that when section 1192.7, subd. (c)(37), “intimidation of victims or witnesses, in violation of Penal Code section 136.1" was added with the passage of Proposition 21, it added to the list of serious felonies all violations of that section, not only those that include “intimidation” or the use of, or threat, to use force as an element.

Q. Penal Code Section 12022.7, Subdivision (a)

  1. People v. Esquibel (2006) 143 Cal.App.4th 645, the Second Appellate District, Division 8 held that the court erred in imposing both a 25 to life enhancement pursuant to section 12022.53, subd. (d) and a great bodily injury enhancement within the meaning of section 12022.7, subd. (a).

  2. People v. Sun (2007) 157 Cal.App.4th 277, the Second Appellate District, Division 4 held that where the defendant was subject to enhancements under both sections 12022.53, subd.s (b)-(d) and 12022.7, subd. (e), the latter enhancement should have been stricken, rather than merely stayed, but the subd. (b) and (c) enhancements should be stayed and not stricken.  (See People v. Bracamonte (2003) 106 Cal.App.4th 704.)  The court points out the discrepancy between section 12022.53, subd. (f) and subd. (h), the first indicating only one enhancement is to be imposed, and the later indicating that the court shall not strike an allegation under this section.

  3. People v. Cross (2008) 45 Cal.4th 58, the California Supreme Court held that a surgical abortion, performed on a 13 year old girl, can support an enhancement under section 12022.7 for the defendant’s personal infliction of great bodily injury in committing the offense that led to the victim’s pregnancy, and that in this instance the pregnancy itself can constitute such great bodily injury.  (See People v. Superior Court (Duval)(1988) 198 Cal.App.3d 1121, 1131-1132; see also People v. Sargent (1978) 86 Cal.App.3d 150.)  Where the 13-year-old victim became pregnant by her stepfather and carried the fetus for 22 weeks, the jury could reasonably have found that the victim suffered a significant or substantial physical injury.  Where the trial court instructed the jury that “a pregnancy or an abortion may constitute great bodily injury” and did not instruct them on meaning of personal infliction the trial court did not err by failing to instruct on meaning of personal infliction, but the court erred in instructing the jury that an abortion may constitute great bodily injury, even though such statement was legally correct, because the defendant did not personally perform the abortion.  Such instruction would not have misled the jury into concluding that the defendant inflicted great bodily harm by virtue of victim’s abortion by facilitating the victim in obtaining the abortion.

  4. People v. Esquibel (2008) 166 Cal.App.4th 539, the Second Appellate District, Division 8 held that the trial court erred in imposing both a 25-year-to-life enhancement under section 12022.53, subdivision (d) and a great bodily injury enhancement under section 12022.7, subdivision (a), with respect to same victim.

  5. People v. Frazier (2009) 173 Cal.App.4th 613, the Third Appellate District held that where the defendant was convicted of assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(1)), after she directed a dog to attack the victim, there was sufficient evidence to sustain the section 12022.7, subdivision (a) enhancement for “personally” inflicting great bodily injury on the victim.

  6. People v. Valdez (2010) 189 Cal.App.4th 82, the Fourth Appellate District, Division 3 held that the defendant/driver's failure to stop and render assistance at the scene of an injury accident in violation of Vehicle Code section 20001, subdivision (a) did not support a great bodily injury enhancement under section 12022.7, subdivision (a), because the injuries were caused by acts which occurred prior to the criminal act, not as a result of defendant's flight, and because the defendant/driver was not engaged in the commission of a felony or attempted commission when the collision occurred. (See People v. Braz (1998) 65 Cal.App.4th 425, 430-432; People v. Wood (2000) 83 Cal.App.4th 862, 864-867.)  In a situation where the injury is caused by the defendant's failure to stop and render aid, the great bodily injury enhancement can be applied.  (See Bailey v. Superior Court (1970) 4 Cal.App.3d 513, 521; People v. Scheer (1998) 68 Cal.App.4th 1009, 1021-1022.)

  7. People v. Poroj (2010) 190 Cal.App.4th 165, the Fourth Appellate District, Division 2 held that section 12022.7, subdivision (a), the enhancement where the defendant “personally inflict[ed]” great bodily injury “in the commission of a felony or attempted felony,” does not require a showing of intent to inflict great bodily injury separate or apart from the intent required to commit the felony or attempted felony.  The Court of Appeal rejected the premise from People v. Verlinde (2002) 100 Cal.App.4th 1146, and People v. Carter (1998) 60 Cal.App.4th 752 that at least impliedly indicate that section 12022.7, subdivision (a) contains its own general intent requirement.

  8. People v. Julian (2011) 198 Cal.App.4th 1524, the Fourth Appellate District, Division 1 held that the trial court did not err, in this matter wherein appellant was convicted of two counts of vehicular manslaughter, when it imposed two great bodily injury enhancements, one under section 12022.7, subdivision (a), one for inflicting great bodily injury on another person who died as a result of the same conduct, the defendant's sentence for the manslaughter of that person being stayed under section 654, and one for inflicting great bodily injury on another person who was rendered comatose (§ 12022.7, subd. (b).)  (See People v. Verlinde (2002) 100 Cal.App.4th 1146; People v. Weaver (2007) 149 Cal.App.4th 1301, 1330-1331.)  In other words, on count 1, two GBI enhancements can be imposed for the other two victims.  The GBI enhancement clearly cannot be imposed on count 1 for the person who died in that count pursuant to section 12022.7, subdivision (g).

  9. People v. Cook REHEARING GRANTED; FORMERLY AT: (2013) 214 Cal.App.4th 833, the Fourth Appellate District, Division 2 held that where the defendant was convicted of three counts of vehicular manslaughter, wherein a fourth person was not killed, just injured, pursuant to section 12022.7, subdivision (g), the court could not impose the great bodily injury enhancement as to the victims of the vehicular manslaughter, but it could impose the GBI enhancement, based on the wording of that statute, to the fourth victim.  (See People v. Verlinde (2002) 100 Cal.App.4th 1146; People v. Weaver (2007) 149 Cal.App.4th 1301, 1330-1331.)

  10. People v. Mercado (2013) 215 Cal.App.4th 67, the Second Appellate District, Division 3 held that the trial court erred by imposing 2 separate enhancements on the attempted murder count, one for the infliction of great bodily injury (§ 12022.7, subd. (a)) and a second for the infliction of injury on a pregnant woman resulting in the termination of her pregnancy (§ 12022.9), because pursuant to section 1170.1, subdivision (g), only the great of the two enhancements for great bodily injury could be imposed; therefore the 5 year enhancement within section 12022.9 was imposed and the section 12022.7, subdivision (a) had to be stricken.

R. Penal Code Section 12022.7, Subdivision (b)

  1. People v. Galvan (2008) 168 Cal.App.4th 846, the Fourth Appellate District, Division 2 held that, consistent with People v. Tokash (2000) 79 Cal.App.4th 1373, section 12022.7, subdivision (b)’s enhancement for personally causing great bodily injury causing victim “to become comatose due to brain injury or to suffer paralysis of a permanent nature” applies whether state of coma is permanent or not.

  2. People v. Delgado (2013) 213 Cal.App.4th 660, the Third Appellate District held that pursuant to the language of section 12022.7, subdivision (b), there was insufficient evidence to find the enhancement true.  It was not established that the defendant's conduct which caused the brain damage to the victim, also caused the victim to become comatose. (People v. Galvan (2008) 168 Cal.App.4th 846.)

S. Health and Safety Code Section 11370.2, Subdivision (a)

  1. People v. Reed (2005) 129 Cal.App.4th 1281, the Third Appellate District held that the enhancement within the meaning of Health and Safety Code section 11370.2, subd. (a), does not apply when prior conviction was for an attempt to commit a qualifying offense since an attempted is separate and distinct offense from the completed crime.  (See People v. White (1987) 188 Cal.App.3d 1128, 1138.)

  2. People v. Newton (2010) 189  Cal.App.4th 314, the Second Appellate District, Division 6 held that an enhancement under Health and Safety Code section 11370.2, subdivision (a), may be imposed in the current matter even when execution of sentence on the prior convictions were stayed under section 654 in the prior proceeding.  In the current matter appellant was found guilty of two counts of sales under Health and Safety Code section 11352.  Appellant had two priors that qualified under Health and Safety Code section 11370.2, subdivision (a), which the court found true in a bifurcated proceeding.  The wording of Health and Safety Code section 11370.2, subdivision (a) requires an enhancement for a prior offense irrespective of whether a defendant served a prior prison term.

  3. People v. Edwards (2011) 195 Cal.App.4th 1051, the Fourth Appellate District, Division 2 held that Health and Safety Code section 11370.2 enhancements are status enhancements that can be imposed only once as part of an aggregate sentence (People v. Williams (2004) 34 Cal.4th 397, 401-402), but the legislature intended that multiple enhancements under this section, can be imposed for the same prior convictions if there are current multiple counts of conviction as to which different subdivisions of section 11370.2 apply; here under subdivision (a) and (c) of section 11370.2.  Prior prison term enhancements pursuant to section 667.5, subdivision (b) are also status enhancements that can be imposed only once on an aggregate sentence.

  4. People v. Beard (2012) 207 Cal.4th 936, the Third Appellate District held that where defendant was convicted of both a drug offense (Health & Saf. Code § 11352), and multiple sexual offenses, in two different prosecutions, the trial court properly imposed a full three-year enhancement pursuant to Health and Safety Code section 11370.2, subdivision (a), even though the term for the new Health and Safety Code section 11352 was a subordinate count to a sex offense.  Section 1170.1, subdivision (a), which limits "specific enhancements applicable to...subordinate offenses" to one-third of the full term, (those relating to the crime, not the status of the defendant), does not apply where the enhancement is based on recidivism, in other words, the defendant's status enhancement such as in this case Health and Safety Code section 11370.2.

  5. People v. Oakley (2013) 216 Cal.App.4th 1241, the Third Appellate District held that the trial court did not err when it added a three-year enhancement pursuant to Health and Safety Code section 11370.2 where the transportation of the methamphetamine was for personal use.  The enhancement is related to the defendant's status as a repeat offender, not the manner in which his current crime was committed. (See People v. Beard (2012) 207 Cal.App.4th 936, 942.)

T. Health and Safety Code Sections 11370.4 (Weight) and 11372.5, Subdivision (a) (Lab Fee)

  1. People v. Vega (2005) 130 Cal.App.4th 183, the Second Appellate District, Division 7, held that an expert’s testimony that a representative sample of seized cocaine was weighed, and that the weight of the sample resulted in an estimated weight of 41.4 kilograms for the entire quantity seized, was sufficient to establish that total weight of the quantity seized exceeded 40 kilograms, to satisfy Health and Safety Code section 11370.4, subd. (a), where there was no contradictory evidence nor any challenge to expert’s methodology.  (See People v. Peneda (1995) 32 Cal.App.4th 1022, 1031 [evidence of probability calculations was held sufficient circumstantial evidence to up hold a weight enhancement.].)  The “criminal laboratory analysis fee” provided for by Health and Safety Code section 11372.5 does not apply to defendant convicted of conspiracy.

U. Money Laundering Enhancement Section 186.10

  1. People v. Athar (2005) 36 Cal.4th 396, the majority of the California Supreme Court, over the dissent’s protestations, held that the defendant’s sentence could be enhanced within the meaning of section 186.10, subd. (c)(1)(D), was properly enhanced because the conspiracy to commit money laundering is punishable in the same manner as the substantive offense of money laundering.  As the dissent argued, appellant was not convicted of money laundering, but a conspiracy to commit money laundering, and for the enhancement to apply merely convicting appellant of the conspiracy is insufficient to apply the enhancement. 

V. Bifurcation Issues

  1. People v. Hernandez (2004) 33 Cal.4th 1040, the California Supreme Court established that the defendant who was charged with a robbery for the benefit of a criminal street gang, within the meaning of section 186.22, subd. (b)(1), under the facts of this case, which do not necessarily establish the mental state in which the underlying offense was committed, was not error, not to bifurcate the enhancement.  (See generally People v. Calderon (1994) 9 Cal.4th 69, 72-78 [re bifurcation of prior conviction enhancements, which had previously overruled People v. Bracamonte (1981) 119 Cal.App.3d 644].)  The denial of the motion to bifurcate the street-gang enhancement was not an abuse of discretion where evidence of gang affiliation was also relevant to prove motive and intent behind the charged offenses, and the evidence which was admissible to prove the gang affiliation, but would have been inadmissible at trial solely on the charged offenses was not particularly inflammatory.  The High Court found that if there was a request for a limiting instruction on the proper use of the gang enhancement it should be given, but given the fact that none was requested in this case, it was not error, and the danger that the jury would use such evidence improperly was not so great as to impose upon court a duty to give the instruction sua sponte.

  2. People v. Ramos (2004) 121 Cal.App.4th 1194, the Second Appellate District, Division 3, held that the court erroneously imposed a 15-year enhancement under section 186.22, subd. (b)(5), rather than requiring service of a 15-year minimum eligible parole date, and also erroneously imposed a consecutive subordinate term under section 1170.1, subd. (a), which does not apply to indeterminate sentences.  (See People v. Felix (2000) 22 Cal.4th 651, 659; People v. Mason (2002) 96 Cal.App.4th 1, 15.)

  3. People v. Ruiloba (2005) 131 Cal.App.4th 674, the Third Appellate District held that a recording of a telephone conversation in which the defendant said he was not a “predator” because his sexual relationship with the victim, a minor at the time, “developed over time . . . and over love” sufficiently corroborated the victim’s allegations to satisfy section 803, subd. (g), which allows the prosecution of otherwise time-barred child molestation charges within one year of filing of police report if allegation is corroborated. Additionally, the Court of Appeal held that the defendant is not entitled to a bifurcated trial on sufficiency of alleged corroborating evidence.

  4. People v. Burch (2007) 143 Cal.App.4th 447, the Fourth Appellate District, Division 1 held, primarily based on the holding of People v. Calderon (1994) 9 Cal.4th 69, that bifurcation of a prior-conviction allegation was not required once evidence of the convictions was introduced to impeach defendant’s testimony.  Imposition of upper prison term, even post Apprendi and Cunningham did not violate appellant’s right to trial by jury where trial court found that the defendant’s prior convictions were a sufficient basis for its decision.

W. Section 20001, Subdivision (c)

  1. People v. Calhoun (2007) 40 Cal.4th 398, the California Supreme Court held that where the defendant is convicted of gross vehicular manslaughter as an aider and abettor, he may be subject to an enhancement under Vehicle Code section 20001, subdivision (c) for fleeing the scene.  An upper term sentence may be imposed based on a “multiple victims” aggravating factor where the victims are named in separate counts.  Based on the aforementioned issue of multiple victims, this rule does not implicate Cunningham v. California (2007) 549 U.S. 270 [127 S.Ct. 856, 166 L.Ed.2d 856.]

  2. People v. Nordberg (2010) 189 Cal.App.4th 1228, the Second Appellate District, Division 2 held that the trial court erred in failing to instruct the jury that to find true an enhancement for leaving the scene of a vehicular accident (Veh. Code § 20002, subd. (c)), the defendant had to have knowledge she had been in an accident resulting in injury to someone, or she knew the accident was of such a nature it was reasonably likely to have resulted in injury to another person.  The failure to instruct the jury on an element of a sentencing enhancement allegation violates the federal constitutional right to due process and a jury trial.  (See People v. Black (2007) 41 Cal.4th 799, 811; People v. Sengpadychith (2001) 26 Cal.4th 316, 326.)  This error was harmless beyond a reasonable doubt where the prosecution's evidence and the defendant's own testimony unequivocally established the defendant knew the accident was of such a nature that it was probable another person had been injured.

  3. People v. Xinos (2011) 192 Cal.App.4th 637, the Sixth Appellate District held that Courtney's Law (§ 20001, subd. (c)), enhancing sentence for vehicular manslaughter when a defendant flees the scene, after committing a vehicular manslaughter, supposedly to avoid destruction of evidence (of his blood alcohol level), does not require proof that defendant acted with the purpose of avoiding observation or arrest.

  4. People v. Vela (2012) 205 Cal.App.4th 942, the Third Appellate District held that Vehicle Code section 20001, subdivision (c), which is the enhancement for hit-and-run in a felony drunk-driving case (see People v. Calhoun (2007) 40 Cal.4th 398; People v. Nordberg (2010) 189 Cal.App.4th 1228), was supported by sufficient evidence that the defendant hit a wall and stopped, then started to walk away from the accident scene so that officer had to detain her.

X. Section 213, Subdivision (a)(1)(A) Is an in Concert Enhancement and not a Sentencing Factor

  1. In re Jonathan T. (2008) 166 Cal.App.4th 474, the Fourth Appellate District, Division 2 held that a robbery in concert under section 213, subdivision (a)(1)(A) is an offense distinct from robbery under section 213, subdivision (a)(1)(B), so the “in concert” element must be pled and proven, not merely treated as a sentencing factor.  (See In re Jesse P. (1992) 3 Cal.App.4th 1177, 1182.)  Where the minor admitted the petition accusing him of robbery, which carries a maximum confinement term of six years under section 213, subdivision (a)(1)(B), the order setting the maximum term of confinement at more than six years, based on dispositional finding that the robbery was committed in concert, violated the minor’s right to due process notwithstanding petitioner’s assertion that the maximum confinement term would be nine years. 

Y. A Penalty Provision Can Be Retried After a Hung Jury, by Itself, and not with the Underlying Substantive Offense and Is not Barred by the Federal Double Jeapordy Clause or Penal Code Section 1023

  1. People v. Anderson (2009) 47 Cal.4th 92, the California Supreme Court held that where a jury has convicted a defendant of an offense, in this case within section 667.61 (one strike), but deadlocked on an enhanced penalty allegation, the federal constitutional double jeopardy clause does not prevent retrial on those mistried enhancements, nor does the state statutory provision against double jeopardy of section 1023.  Furthermore, the penalty provision may be retried as to the deadlocked penalty provisions alone, and not with the underlying offense.

  2. People v. Carbajal (2013) 56 Cal.4th 521, the California Supreme Court held that where the defendant was tried for sexually molesting two victims, and there was a multiple victim allegation under section 667.61 (the "One Strike" law).  The jury did not have authority to return any verdict on multiple-victim "One Strike" allegation after it found defendant guilty on some counts involving a single victim but deadlocked on all counts involving the other alleged victim.  Neither the first jury’s original finding that the allegation was true, nor its subsequent finding that the allegation was not true after further deliberations had been ordered by the court, was binding, and a second trial on the allegation following a mistral did not constitute double jeopardy.  Section 1161 provides that when there is a verdict of conviction, in which it appears to the Court that the jury have mistaken the law, the Court may explain the reason for hat opinion and direct the jury to reconsider their verdict, and if, after the reconsideration, they return the same verdict, it must be entered; but after a verdict of acquittal, the jury cannot reconsider it.  After hearing the verdict for the second time, the court should have, within the meaning of sections 1147 and 1149, proper adherence to the statutory scheme would have led to the jury's declaration of a verdict.  Here the trial court did not attempt to clarify an unintelligible verdict.  A  verdict of true or not true on the special allegation would have been inconsistent with the jury's findings of the substantive counts, but it would not have been unintelligible in the way that a finding of guilt and acquittal on the same count is.  In sum, once the jury deadlocked on the counts involving one of the alleged victims, they could not have returned a verdict on the penalty allegation, and double jeopardy thus did not bar retrial on that allegation.

  3. People v. Sullivan (2013) 217 Cal.App.4th 242, the Second Appellate District, Division 8 held that the double jeopardy bars retrial on a substantive offense, when jurors have reached a verdict on that offense, here an assault, but deadlocked on the great bodily injury enhancement, when the court fails to take a verdict on the substantive offense if the defendant does not expressly or impliedly consent. (Stanley v. Superior Court (2012) 206 Cal.App.4th 265, 280; see also Stone v. Superior Court (1982) 31 Cal.3d 503, 516.) The trial attorney's failure to plead double jeopardy, after the trial court erroneously ruled that it could not accept a verdict that jurors said they had reached on the substantive offense where there was no verdict on the enhancement, and discharged jurors without defendant’s consent, (see People v. Anderson (2009) 47 Cal.4th 92, 102-104, 121 [the court should receive the verdict on the substantive count and declare a mistrial on the enhancement only]), constituted ineffective assistance of counsel, remediable on direct appeal, because there could not have been a reasonable tactical explanation for not pleading double jeopardy. (In re Wilson (1992) 3 Cal.4th 945, 950.)

Z. A Grant of a Motion for a New Trial Based on a Penalty Allegation Factor Is not Barred by the Federal Double Jeopardy Clause or Penal Code Section 1023

  1. Porter v. Superior Court  (2009) 47 Cal.4th 125, the California Supreme Court held that where a jury convicted the defendant of several offenses and found all attached penalty allegations or factors to be true, but the trial court granted a new trial motion under section 1181 on some of the enhanced penalty factors/allegations.  Such an order could not be construed as an express or implied acquittal, and as a result, it did not trigger constitutional double jeopardy protections, nor did the state statutory provision against double jeopardy (§ 1023), bar retrial.  The scope of the retrial is limited to those sentencing allegations alone.  The court reasoned that the judge is acting as the “13th juror” in granting he motion for a new trial, and it is the equivalent of a juror who is a “holdout” for an acquittal.  In such a case, said ruling is not an acquittal, and does not bar retrial on double jeopardy grounds, but is similar to a mistrial or hung jury, where the issue can be retried.  (See People v. Serrato (1973) 9 Cal.3d 753, 761; see also People v. Lagunas (1994) 8 Cal.4th 1030, 1038-1039.)

AA. The Substantive Count Alone and not the Enhancement Determines Whether the Principal Count Is Derminate or Indeterminate and if the Subordinate Count Is Full Term or One-third the Middle Term

  1. People v. Sanders (2010) 189 Cal.App.4th 543, the Second Appellate District, Division 8 held that, in a case where the defendant was convicted of two counts of attempted murder, without premeditation, and an enhancement was found true under section 12022.53, subdivision (d) (the 25-L enhancement), it is clear that the tail does not wag the dog; in other words, the enhancement was not part of the determinate sentence of 7 years for the attempted murder; as a result, the sentence imposed on second count, the subordinate count, should have been one-third the middle term, and court erred in imposing a fully consecutive sentence for that count. (See People v. Montes (2003) 31 Cal.4th 350 [generally, the substantive count determines if it is a determinate or indeterminate term, without considering the enhancement].)

BB. Misdemeanor Brandishing Becomes a Felony When Combined with a Hate Crime and Can Be Elevated to a Serious Felony, Constituting a Strike When a Dangerous or Deadly Weapon Is Used Without Violating the Rule Against Bootstrapping

  1. People v. Morgan (2011) 194 Cal.App.4th 79, the Fourth Appellate District, Division 1 held that the defendant suffered a prior serious felony for brandishing a hammer (§ 417, subd. (a)), when it is elevated from a misdemeanor to a felony, do to appellant’s conduct for a hate crime under section 422.7, where the brandishing was committed with a dangerous or deadly weapon, in this case a hammer.  The rule against “bootstrapping” (see People v. Montes (2003) 31 Cal.4th 350; People v. Briceno (2004) 34 Cal.4th 451 [using the same gang enhancement twice is not permitted]), does not apply where the conduct that elevates the crime from a misdemeanor to a felony, here the hate crime, differs from that which elevates the felony to a serious felony, and therefore a strike, which in this case is the use of a deadly weapon.  Therefore, People v. Ulloa (2009) 175 Cal.App.4th 405, is also distinguished along with Montes and Briceno.

VII. Proving a Prior With an Adoptive Admission

  1. People v. Thoma (2007) 150 Cal.App.4th 1096, the Second Appellate District, Division 6, after remand from the California Supreme Court, where the Court of Appeal was ordered to follow People v. Trujillo (2006) 40 Cal.4th 165, the Court of Appeal found that the prior conviction for drunk driving with bodily injury did not qualify as a “strike” under the Three Strikes Law where prior conviction was based on a plea.  The court could not rely on an adoptive admission within the meaning of Evidence Code section 1221, theoretically made after the plea, to find the strike prior true. The defendant did not, as part of plea, stipulate as to extent of the victim’s injuries and was not bound by court’s characterization of them.  Furthermore, the police officer’s hearsay testimony at the preliminary hearing characterizing those injuries, was inadmissible for purpose of determining whether ensuing conviction was a strike.  In Trujillo, the Supreme Court indicated that the defendant’s statement in the post-plea probation officer’s report does not describe the nature of the crime of which he was convicted and cannot be used to prove that the prior conviction was for a serious felony. 

VIII. Is an Assault With a Deadly Weapon a Prior?

  1. People v. Baneulos (2005) 130 Cal.App.4th 601, the Second Appellate District, Division 6 held that an assault by means likely to cause great bodily injury is not a serious felony within meaning of Three-Strikes Law or five-year enhancement statute unless the offense involves the use of a deadly weapon or actually results in the personal infliction of great bodily injury.  The abstract of judgment reflecting a conviction for assault “GBI W/DEADLY WEAPON,” without saying whether defendant personally used a deadly weapon or personally inflicted great bodily injury, failed to establish that conviction was for a serious felony.  The Court of Appeal acknowledged that Division 5 of the Second Appellant District came to a different result in People v. Luna (2003) 113 Cal.App.4th 395, however this court held that it cannot be confident that the abbreviated description of a statute prohibiting two types of criminal conduct was anything more than that particular court clerk’s shorthand method of referring to the statute under which appellant was convicted.  The Court of Appeal also concurred with People v. Haykel (2002) 96 Cal.App.4th 146, 148-149; People v. Winters (2001) 93 Cal.App.4th 273, 280; and Williams v. Superior Court (2001) 92 Cal.App.4th 612, 622-624 when they indicated that even under the amended law post Proposition 21, a conviction of assault by means likely to cause great bodily injury is not a serious felony unless it also involves the use of a deadly weapon or actually results in the personal infliction of great bodily injury.  Citing People v. Cortez (1999) 73 Cal.App.4th 276, 283, the court found that a plea to a criminal statue punishing alternative types of conduct is insufficient to prove that the defendant committed each type of conduct; and since that cannot be established in this case, it cannot be found to be a serious felony.

IX. Jury Trial on out of State Priors

  1. People v. McGee (2006) 38 Cal.4th 682, the California Supreme Court held, in this 5-2 opinion, that in sentencing proceedings where the defendant had two prior convictions for robbery under Nevada law, and the elements of the Nevada crime differed from the elements of the California crime, in that the Nevada convictions did not qualify on their face as convictions for purposes of sentence enhancement under California’s three strikes law, the trial court did not violate the defendant’s federal constitutional right to jury trial in examining the record of the prior robbery convictions to determine whether each of the offenses constituted a conviction of a serious felony.  The dissent contends, that Apprendi v. New Jersey (2000) 530 U.S. 466, requires that the existence of any fact increasing a defendant’s sentence beyond the statutory minimum be determined by the jury base on proof beyond a reasonable doubt.  Apprendi indicates that it decision in Almendarez-Torres v. United States (1998) 523 U.S. 224, which found an exception to this rule to prove “facts of a prior conviction,” is arguably incorrect.  (Apprendi, supra, 530 U.S. at p. 489.)  Given this statement, the dissent indicates that Apprendi should be construed narrowly, rather than in the expansive manner in which it continues to interpret the law.  Given the fact that the defendant never admitted the conduct underlying his Nevada convictions that are now being used to increase his sentence, he should have been given a right to a jury trial on the issue.  I predict the United States Supreme Court will grant certiorari either in this case or a related matter.

  2. People v. Palmer (2006) 142 Cal.App.4th 724, the Third Appellate District held that it was proper to enhance the defendant’s sentence for DUI with his previous Nevada DUI convictions even though he did not have a right to a jury trial in the Nevada proceedings since the priors were classified as petty offenses.  This court refused to follow United States v. Tighe (9th Cir. 2001) 266 F.3d 1187.

  3. People v. Nguyen (2009) 46 Cal.4th 107, the California Supreme Court held, that a contested juvenile adjudication, even though the minor was not afforded a jury trial, it is still a prior conviction, and as a result can be used as a strike to increase appellant’s sentence.  The Three Strikes Law does not violate the U.S. Constitution, or the dictates ofApprendi or Cunningham, insofar as it increases the maximum sentence for an adult felony offense upon proof that the defendant has suffered one or more qualifying “prior felony convictions,” a term that specifically includes certain prior criminal adjudications sustained under the juvenile court law while the defendant was a minor, even though there was no right to a jury trial in the juvenile proceeding.  The court distinguished between  a right to a jury trial for a current offense, and the lack of a jury trial for a prior offense used to enhance appellant’s sentence.

  4. People v. Skiles (2011) 51 Cal.4th 1178, the California Supreme Court held that the Alabama manslaughter conviction was proved to be a strike by sufficient evidence, within the meaning of the Secondary Evidence Rule (Evid. Code §§1152-1523).  This evidentiary rule does not excuse compliance with Evidence Code section 1401 requiring authentication.  A writing can be authenticated by circumstantial evidence and its contents. (See People v. Gibson (2001) 90 Cal.App.4th 371, 383.)  A faxed copy of the indictment page alone would have been insufficient, but when it was couple with certified copies of booking documents and fingerprints, in addition to a certified copy of a relevant minute order, and plea agreement, in addition to the copy of the original certified copy of the indictment, all combined established sufficient authentication for the admission of the faxed copies.

X. Federal and State Double Jeopardy and Section 654 Issues

  1. People v. Lopez (2004) 119 Cal.App.4th 132, the Second Appellate District, Division 6 held that section 654 precludes separate sentences for unlawful possession of a firearm and unlawful possession of the ammunition inside the firearm.  (Cf. People v. Miller (1977) 18 Cal.3d 873, 887 [654 applies when there is an indivisible course of conduct].)

  2. People v. Williams (2004) 120 Cal.App.4th 209, the Fourth Appellate District, Division 2 held, contrary to the well reasoned opinion in People v. Garcia (2003) 107 Cal.App.4th 1159, wherein the Court of Appeal held that a defendant could only be found guilty of one count of evading, and not for as many counts as number of police officers giving chase, this Court of Appeal found that a violation of section 2800.2, is a crime of violence for purposes of the multiple-victim exception to section 654, and therefore, a defendant who violated section 2800.2 while fleeing from the scene of the robbery was properly convicted of both crimes.  The Court of Appeal did find that the violation of Vehicle Code section 10851, should have been stayed, when imposing a penalty of a violation of section 2800.2.  As a result, where the defendant is convicted of multiple offenses, and receives a consecutive sentence in the original sentencing hearing, one of which is for an offense for which the punishment is prohibited under section 654, the prosecution is entitled to a remand so that court may exercise its discretion to impose a consecutive term for the offense for which the defendant was properly convicted and had previously received a concurrent term.  The prosecution did not have to cross appeal, since the original sentence was unauthorized.  On remand the trial court has the authority to modify all aspects of the sentence.  (People v. Castaneda (1999) 75 Cal.App.4th 611, 613-614.)

  3. People v. Ausbie (2004) 123 Cal.App.4th 855, the Fifth Appellate District held that when there are separate victims, an enhancement within the meaning of 12022.7 can be applied to each victim.

  4. People v. Britt (2004) 32 Cal.4th 944, the California Supreme Court held that the defendant, a registered sex offender who failed to notify law enforcement agencies of his change of address when he moved from one county to another cannot be prosecuted in one county for the failure to notify law enforcement that he was leaving the county, and then subsequently prosecuted separately in the other county for the failure to register in that county when the person took up residence there.  An appellant who fails to notify authorities in the county of his former residence of his departure, and who also fails to notify authorities in the county of his new residence upon his arrival, may be charged with both offenses in either county, but when the prosecution knows or should know of both offenses, appellant may be prosecuted for them only once (see Kellett v. Superior Court (1966) 63 Cal.2d 822), and may be sentenced only once for one or the other convictions within the meaning of section 654.

  5. People v. Davey (2004) 122 Cal.App.4th 1548, the First Appellate District, Division 2 held that a defendant who commits a single act of indecent exposure within the meaning of section 314.1, and the act is witnessed by 2 minors simultaneously, can only be sentenced on one count pursuant to section 654.  (Cf. People v. Hall (2000) 83 Cal.App.4th 1084, 1088-1090 [can punish multiple times for a single episode of violent conduct].)  The multiple victim exception to section 654 does not apply as the act is not one of violence, nor is there a separate criminal objective to the single act.

  6. People v. Oates (2004) 32 Cal.4th 1048, the California Supreme Court held that section 12022.53, subd. (d), the 25 to life enhancement for each crime where the defendant personally discharged and injured another, but which subd. (f) bars the imposition of more than one such penalty “for each crime,” requires imposition of five enhancements on a defendant convicted of five counts of premeditated attempted murder for firing two shots into a group of five persons, injuring one of them.  The multiple enhancements are not barred by section 654's prohibition against multiple punishments for a single act or omission.

  7. United States v. Patterson (9th Cir. 2004) 381 F.3d 859, the Ninth Circuit Court of Appeal held that the validity of the defendant’s guilty plea in marijuana possession case was in doubt under Apprendi because the number of marijuana plants, a factor in sentencing, was not stipulated to by defendant nor found by a jury beyond a reasonable doubt, the order vacating his plea and subsequent trial did not deprive the defendant of freedom from double jeopardy.

  8. People v. Picado (2004) 123 Cal.App.4th 1216, the First Appellate District, Division 5, held that section 654's ban on multiple punishments for a single crime does not bar consecutive sentences where the defendant was convicted of assault on five separate victims in a single incident (see People v. Miller (1977) 18 Cal.3d 873, 885; see also People v. Solis (2001) 90 Cal.App.4th 1002, even if multiple convictions were based on his being an aider and abettor. (See People v. Hall (2000) 83 Cal.App.4th 1084, 1092-1093.)

  9. People v. Cobb (2004) 124 Cal.App.4th 1051, the Second Appellate District, Division 8 held that where the defendant and two other persons simultaneously shot and killed a single victim, resulting in a jury findings that the defendant was personally armed, and that he participated in a crime in which another principal was armed, the defendant was subject to single enhancement pursuant to section 12022.53, subd. (f).  The court erred by imposing two enhancements as the matter was not within the meaning of People v. Oates (2004) 32 Cal.4th 1048, wherein the Supreme Court found that multiple enhancements can be imposed when there is more than one victim.

  10. Sons v. Superior Court (2004) 125 Cal.App.4th 110, the Fifth Appellate District, after an analysis of People v. Batts (2003) 30 Cal.4th 660, wherein the California Supreme Court had held that under certain circumstances, wherein the prosecution committed intentional misconduct, in order to trigger a mistrial, they were barred by the double jeopardy clause of the state and federal constitutions, held that the facts did not warrant such a remedy in this case.  Here, the prosecutor’s failure to disclose material, exculpatory evidence in first trial, even if knowing and willful, does not bar retrial following a successful habeas corpus petition under double jeopardy clauses of the federal and state constitutions and constitutional requirements of due process of law.

  11. Smith v. Massachusetts (2005) 543 U.S. 462 [160 L.Ed.2d 914, 125 S.Ct.1129], the United States Supreme Court held that where the court granted the defendant’s motion for acquittal after the prosecution rested (similar to § 1118), on one count, based on the insufficiency of the evidence, but then reconsidered and altered its ruling prior to the submission of the case to the jury, reinstating that count, said ruling violated the Double Jeopardy Clause.  (See United States v. Martin Linen Supply Co. (1977) 430 U.S. 564, 573 [51 L.Ed.2d 642, 97 S.Ct. 1349].)  Where, after an unqualified mid-trial acquittal on one count, wherein the trial has proceeded to the defendant’s introduction of evidence on the remaining counts, the acquittal must be treated as final unless the availability of reconsideration has been plainly established by a pre-existing state rule, or case authority, expressly applicable to mid-trial rulings on the sufficiency of the evidence.

  12. People v. Flores (2005) 129 Cal.App.4th 1401, the Fourth Appellate District, Division 3 held that the separate punishments for murder and for conspiracy to batter a separate victim, wherein the murder occurred during the course of the conspiracy, do not violate section 654's ban on multiple punishments for the same crime, since the murder was not part of the conspiracy.  (See In re Cruz (1966) 64 Cal.2d 178, 181 [if the conspiracy had an objective apart from an offense for which the defendant is punished, he may be properly sentenced for the conspiracy as well].) The enhancement under section 12022.53 and a separate sentence for carrying a gun in the carrying a firearm while an active participant in a criminal street gang did not violate section 654 where the evidence established that the crime for which the enhancement was imposed and the gun possession offense involved separate conduct and separate intents.  The court acknowledged that there is a split of authority as to whether section 654 applies to enhancements, (see People v. Rodriguez (1988) 206 Cal.App.3d 517, 519 [does not apply]; People v. Moringlane (1982) 127 Cal.App.3d 811, 817-818; People v. Arndt (1999) 76 Cal.App.4th 387 [§ 654 does apply to enhancements that go to the nature of the offense and not to the status of the offender]; see also People v. Akins (1997) 56 Cal.App.4th 331; People v. Palacios (2005) 126 Cal.App.4th 859 [§ 654 does apply to enhancements), but determined that on these facts, that it did not.

  13. People v. Martin (2005) 133 Cal.App.4th 776, the Second Appellate District, Division 2 held that separate sentences for resisting arrest (§ 69) and battery with injury on a peace officer (§ 243, subd. (c)(2)), does not violate section 654, where the multiple victim exception comes into play.  (See People v. Solis (2001) 90 Cal.App.4th 1002, 1023.)  Here, the defendant resisted arrest by officers other than the one who is battered, and since battery on a police officer is a crime of violence that qualifies for the multiple victim exception, the court did not err in imposing the two crimes concurrent to each other rather than applying section 654, even though it was during the same incident.  If the crimes had not been classified as crimes of violence, then the provisions of section 654 would have been applicable.

  14. People v. Vasquez REVIEW DISMISSED (S141677) formerly at: (2006) 136 Cal.App.4th 898, the Second Appellate District, Division 2 held that it was not err not to stay imposition of sentence, within the meaning of section 654 for assault, where the defendant was convicted of first degree burglary as well as assault and attempted rape; since there were two occupants of the burgled residence in addition to the victim of the assault.

  15. People v. Le (2006) 136 Cal.App.4th 925, the Sixth Appellate District held that separate sentences for burglary and robbery violated the section 654 ban on multiple punishments for same crime where both offenses were committed with a single intent (see People v. Palmore (2000) 79 Cal.App.4th 1290, 1297), to steal from a store, and force was used only against the store manager and only in a struggle over the store’s merchandise; therefore, the multiple victim exception to section 654 was not applicable.  (See People v. Guzman (1996) 45 Cal.App.4th 1023, 1028.)  The section 654 error was an unauthorized sentence within the meaning of People v. Scott (1994) 9 Cal.4th 331, 354, and therefore the failure to object did not waive the issue.  Restitution and parole revocation fines are “punishment” within meaning of section 654; therefore, the lower court erred in treating the robbery and burglary convictions as separate in calculating such fines.  Where the trial court indicated its intent to impose the minimum parole revocation and restitution fines and erroneously calculated such minimums, the Court of Appeal can reduce such fines to properly calculated minimum even though the trial court would have had discretion to impose larger fines.

  16. People v. Brown (2006) 140 Cal.App.4th 76, on rehearing, the Third Appellate District held that the double jeopardy provisions of state and federal constitutions, and provisions of section 654, subd. (a), barring multiple prosecutions for the same act or omission, apply only to successive prosecutions and not to a continued prosecution on remaining charges after a jury is partially unable to reach a verdict.  (See Richardson v. United States (1984) 568 U.S. 317, 323 [82 L.Ed.2d 242, 104 S.Ct. 3081].)  Constitutional and statutory protections against double jeopardy do not bar retrial of  the defendant, who was acquitted of elder abuse, to once again be tried on charges of assault and battery as to which jury deadlocked, where acquittal of the elderly abuse charge may have been based on the failure to prove that the defendant knew or reasonably should have known that the victim was over the age of 65 years.

  17. People v. Reed (2006) 38 Cal.4th 1224, the California Supreme Court held that where the defendant was charged with and convicted of being a felon in possession of a firearm (§ 12021, subd. (a)(1)), carrying a concealed firearm (§ 12025, subd. (a)), and carrying a loaded firearm while in a public place (§ 21031, subd. (a)), all arising out of the same act, and where the information alleged as to all three offenses that the defendant was a convicted felon so that, as charged, he could not commit the crimes of carrying a concealed firearm and carrying a loaded firearm while in a public place without also being a felon in possession of a firearm, section 954 (see also People v. Ortega (1998) 19 Cal.4th 686, 692; People v. Montoya (2004) 33 Cal.4th 1031, 1034), which prohibits convictions based on necessarily included offenses, did not prevent the defendant’s conviction of all three charges.  The courts should consider the statutory elements and accusatory pleading in deciding whether a defendant received notice, and therefore may be convicted, of an “uncharged” crime, but, only the statutory elements in deciding whether a defendant may be convicted of multiple “charged” crimes.

  18. People v. Navarro (2007) 40 Cal.4th 668, the California Supreme Court held that where there was insufficient evidence to support a conviction for attempted kidnaping during a carjacking (see § 209.5, subd. (a)), since there was no movement of the vehicle and therefore no completed carjacking, the appropriate remedy was not to modify the judgment by striking the original single conviction, and substituting convictions for both attempted kidnaping and attempted carjacking.  The provisions of sections 1181, subd. (6), nor 1260 provide for this procedure.  The Court of Appeal erred when it found that the substitution of two “strike” convictions for a single such conviction did not cause an unconstitutional increase in punishment.  The Supreme Court clearly indicated that a one for one modification is fine, but that they were reluctant, and constrained from permitted a two for one switch.

  19. People v. Brown (2007) 148 Cal.App.4th 911, the Fourth Appellate District, Division 1 held that the court did not violate double-punishment prohibition of section 654 when it imposed sentence on convictions for attempted robbery, assault with a deadly weapon, and attempted murder arising out of a single event.  There was evidence that the various offenses did not arise from single objective of robbing victim but rather separate motives that were not derived at the same time, to rob victim, then to hurt victim after robbery attempt failed, then to kill victim by shooting him.  (See People v. Latimer (1993) 5 Cal.4th 1203, 1211-1212.)  Since there was more than one objective, the section did not violate the multiple punishment rule of section 654 (see People v. Beamon (1973) 8 Cal.3d 625, 636-637), by imposing firearm use enhancements on both defendant’s attempted murder and attempted robbery convictions based on same discharge of firearm where it concluded that use of gun in attempting to rob victim had a different objective than later use of gun to attempt to kill victim.

  20. Porter v. Superior Court (2007) 148 Cal.App.4th 889, the Sixth Appellate District held that where the jury found the defendant guilty of two counts of attempted murder and made true findings as to various special allegations, including that the crimes were premeditated and were committed for the benefit of a street gang, and trial court ordered a new trial (§ 1181), as to those allegations before proceeding to pronounce judgment as to the convictions and other enhancements, double jeopardy barred retrial on the special allegations. (Brown v. Ohio (1977) 432 U.S. 161, 166 [53 L.Ed.2d 187, 97 S.Ct. 2221] [double jeopardy bars a successive trial on an offense not charged in the original indictment once jeopardy attaches.  One cannot be tried a second time when he is found not guilty of either the greater offense or a lesser included offense of the greater unless each requires proof of an additional fact that the other does not].)  A trial court’s granting of a motion for a new trial should not be construed as an acquittal unless the record unmistakably indicates the trial court applied the substantial evidence test and concluded that no reasonable trier of fact could find guilt beyond a reasonable doubt. (See Hudson v. Louisiana (1981) 450 U.S. 40, 44 [67 L.Ed.2d 30, 34, 101 S.Ct. 970, 972]; People v. Trevino (1985) 39 Cal.3d 667, 694-695.)  Generally, the granting of a motion for a new trial does not bar a retrial based on double jeopardy grounds.  (People v. Serrato (1973) 9 Cal.3d 753, 762.)  By definition, a new trial ordered by a judge acting as a “13th juror” is not construed as an acquittal, and it is not the same as granting a motion to dismiss pursuant to section 1118.1.  Here, the double jeopardy bar is implemented by section 1023 and the doctrine of included offenses.  (People v. Fields (1996) 13 Cal.4th 289, 305-306.)

  21. People v. Brenn (2007) 152 Cal.App.4th 166, the Fourth Appellate District, Division 3, held that here the defendant was sentenced to prison for attempted manslaughter and was also convicted of aggravated assault with a great bodily injury enhancement based on same occurrence, it was error to impose concurrent prison term for the latter offense, and at the same time say it was stayed pursuant to section 654.  The proper disposition was to stay imposition of sentence pursuant to section 654.  (See People v. Deloza (1998) 18 Cal.4th 585, 591-592.)

  22. People v. Palacios (2007) 41 Cal.4th 720, the California Supreme Court held that a section 12022.53, subd. (d) firearm enhancements, are not limited by the multiple punishment prohibition of section 654.  Appellant was convicted of one count each of attempted murder, kidnapping for carjacking, and kidnapping for robbery, where one shot was fired, at one victim.  The court permitted the imposition of the gun use enhancement on all three counts.

  23. People v. Garcia (2007) 153 Cal.App.4th 1499, the Fourth Appellate District, Division 3 held that consecutive terms for section 186.22, subd. (a) and section 186.22, subd. (b) do not violate section 654's prohibition against multiple punishments for the same crime.  (See People v. Herrera (1999) 70 Cal.App.4th 1456, 1468 [the intents are theoretically different for the substantive crime than for the enhancement]; People v. Ferraez (2003) 112 Cal.App.4th 925, 935.)

  24. People v. Sloan (2007) 42 Cal.4th 110, the California Supreme Court held that an enhancement is not considered for section 654 purposes, within the meaning of People v. Pearson (1986) 42 Cal.3d 351, 355 which prohibits multiple convictions based on necessarily included offenses even if the allegation subjects the defendant to the possibility of additional punishment.  The defendant was convicted of willful infliction of corporal injury on a spouse (§ 273.5, subd. (e)(1)), assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(1)) and battery with serious bodily injury (§ 243, subd. (d)), and the great bodily injury enhancement within the meaning of section 12022.7, subd. (a) applied to all of the aforementioned counts.  Pursuant to People v. Reed (2006) 38 Cal.4th 1224, 1231, wherein the High Court held that courts should consider the statutory elements and accusatory pleading in deciding whether a defendant received notice, and therefore may be convicted, of an “uncharged” crime, but only the statutory elements in deciding whether a defendant may be convicted of multiple “charged” crimes, neither the ban on multiple punishment within  section 654, nor principles of federal double jeopardy protection, require an exception from Reed in this case 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.  Each of the assault counts can be considered a lesser included offense of the corporal injury offense, when the great bodily injury enhancement is taken into account.  If the violation of section 273.5 is considered without the great bodily injury enhancement, then the assault counts are not lesser included offenses.  The argument that improper multiple punishment might stem from future use of multiple convictions under recidivist sentencing statutes, like the Three Strikes Law, raises a question that is speculative and must wait until a future cases arises.

  25. People v. Izaguirre (2007) 42 Cal.4th 126, the California Supreme Court held that firearm-related enhancements do not violate the right to due process nor the right to jury trial within the meaning of Apprendi, when they are used to increase punishment and not to elevate the seriousness of the underlying offense.  Since enhancements are not legal elements of the offenses to which they attach, they are not considered in defining necessarily included offenses under People v. Reed (2006) 38 Cal.4th 1224.

  26. People v. Fielder (2007) 154 Cal.App.4th 712, the Fourth Appellate District, Division 1 held that a registered sex offender’s act of failing to notify authorities of his whereabouts on three separate occasions were separate acts for which three separate  punishments could be imposed.  (See People v. Meeks (2004) 123 Cal.App.4th 695, 705-706; See also People v. Davis (2002) 102 Cal.App.4th 377.)

  27. People v. Murphy (2007) 154 Cal.App.4th 979, the Third Appellate District held that possessing rock cocaine for sale is not a necessarily included offense of selling the same rock under statutory elements test.  (See People v. Sanchez (2001) 24 Cal.4th 983, 988; People v. Peregina-Larios (1994) 22 Cal.App.4th 1522.)  Possession of a controlled substance is not an essential element of the crime of selling that substance.  The defendant was properly convicted of possessing cocaine base for sale and of sale of cocaine base under charging allegations test even where the information did not state whether the cocaine base referred to in first count was the same as that referred to in second count.  Where trial evidence showed that the substance was the same in each count, trial court properly stayed conviction on one count to comply with section 654 ban on multiple punishments for same crime.

  28. People v. Perry (2007) 154 Cal.App.4th 1521, the Second Appellate District Division 8, held that there was substantial evidence to establish a burglary and robbery within the meaning of People v. Estes (1983) 147 Cal.App.3d 23, considering the fact that the victim testified that he returned to his car, which had been locked with closed windows, and discovered defendant inside it; that defendant jumped out holding victim’s car stereo in one hand and a screwdriver or ice pick in the other hand, and took a fighting stance prior to running from the scene.  Where the second degree burglary and the robbery of the property were part of a single course of conduct, (People v. Latimer (1993) 5 Cal.4th 1203, 1208), section 654's prohibition against multiple punishment for the same crime requires that the burglary conviction be stayed.

  29. People v. Garcia (2007) 155 Cal.App.4th 929, the Second Appellate District, Division 8 held that, section 654 was not violated where multiple persons were fired at in count 3, including the victim in count 2, and therefore the multiple victim except to section 654 applied.  The court also rejected appellant’s contention that section 654 precluded the imposition of the section 12022.53 enhancement on top of the murder conviction in count 1.  (See People v. Sanders (2003) 111 Cal.App.4th 1371.)

  30. People v. Martinez (2007) 156 Cal.App.4th 851, the Second Appellate District, Division 6 held that the imposition of the upper term did not violate Cunningham, and was within the reaches of Black II since appellant’s priors were of increasing seriousness (rule 4.421(b)(2)), he was on parole at the time of the offense, and he had numerous prior convictions for DUI.

  31. People v. Rodriguez (2007) 157 Cal.App.4th 14, the Second Appellate District, Division 4, held that where a gang member’s single act of firearm possession both subjects him to a 4 year firearm enhancement under section 12022.5 and elevates the underlying offense to a violent felony under section 667.5, subd. (c)(8), thereby subjecting him to a 10-year gang enhancement under section 186.22, subd. (b)(1), 654's ban on multiple punishment requires the court to strike the lesser enhancement.  Under the language of section 12022.53, there is an exception for section 654 that does not exist in section 12022.5 or 186.22; therefore, given the differing language of the sections, the lesser cannot be applied, due to section 654, when the greater enhancement is imposed.  In essence, the single act of using a firearm cannot be used “both” to enhance his punishment for assault and to augment the enhanced punishment  he will necessarily receive for having committed the assault for the benefit of the gang.  As a result, section 12022.5 is similar to a lesser included offense as he would not have been eligible for the augmented gang enhancement for the gang enhancement under section 186.22, subd. (b)(1)(C) absent the jury’s determination that he violated section 12022.5.

  32. People v. Andra (2007) 156 Cal.App.4th 638, the Third Appellate District held that where the defendant was convicted of two counts of identity theft, one count of vehicle theft, and one count of obtaining money by false pretenses, the court’s sentence of consecutive terms for each count did not violate section 654, since the crimes were committed weeks apart and had different victims.  This supported the court’s finding that the crimes were committed with separate intents, and therefore did not violate section 654. (People v. Monarrez (1998) 66 Cal.App.4th 710, 713 (re: substantial evidence supports intent and objective finding].

  33. People v. Muhammad (2007) 157 Cal.App.4th 484, the First Appellate District, Division 5 held that, a defendant can only be “convicted” of one count of section 646.9, as other subds in the section are merely penalty provisions for stalking.  Subds. (b), (c)(1), and (c)(2) are penalty provisions triggered when the offense of stalking as defined in subd. (a) is committed by a person with a history of misconduct.  Therefore, the Court of Appeal imposed sentence on section 646.9, subd. (c)(2) and dismissed the other three counts of stalking.  (See People v. Ryan (2006) 138 Cal.App.4th 360, 371.)  SEE SIMILAR ISSUE INFRA THIS SECTION NO. 47

  34. People v. Martinez (2008) 161 Cal.App.4th 754, the Fourth Appellate District, Division 2, held that where the evidence established that the defendant presented victim with a stack of documents to be signed and that he affirmatively misrepresented to her that their purpose was to help her with her financial problems and/or help her file a bankruptcy, when his actual purpose was to gain a security interest in her home, was sufficient to establish the “trickery and deceit” element of forgery.  (See § 470; People v. Parker (1967) 255 Cal.App.2d 664, 672.)  Additionally, where the defendant also induces the victim to sign documents, while failing to disclose their true nature, may be convicted of forgery regardless of whether defendant makes an affirmative misrepresentation.  This case is distinguishable from People v. Looney (2004) 125 Cal.App.4th 242, in that the defendant failed to disclose the true nature of the documents.  The defendant who unlawfully induces the victim to sign single document in more than one place may only be convicted of one count of forgery.

  35. People v. Bragg (2008) 161 Cal.App.4th 1385, the Third Appellate District held that multiple street gang enhancements, within the meaning of section 186.22, subdivision (b)(1), to sentences based on attempted murder convictions arising out of single incident involving multiple victims do not violate section 654's ban on multiple punishments for a single crime.  (See People v. Oates (2004) 32 Cal.4th 1048, 1063.)

  36. People v. Moseley (2008) 164 Cal.App.4th 1598, the Fifth Appellate District held that where defendant was convicted of possession of drugs for purpose of sale (Health & Saf. Code §§ 11378 and 11359), and maintaining a location for purpose of selling drugs (Health & Saf. Code § 11366), the trial court was not required to stay sentencing for any of the offenses under section 654, because the defendant’s intent in maintaining a consistent location for selling drugs was independent of his objective to sell the specific bags of drugs in his possession at the time of his arrest.

  37. People v. Briones (2008) 167 Cal.App.4th 524, the Second Appellate District, Division 6 held that the defendant who was found guilty of conspiracy to possess heroin for sale and conspiracy to possess methamphetamine for sale as part of a single conspiracy to possess both drugs, could only be convicted for one act of conspiracy to possess drugs for sale.  Where defendant’s conspiracy and possession of drugs for sale arose from same set of operative facts, (see People v. Lawrence (2000) 24 Cal.4th 219 [re: same set of operative facts]), the defendant could not be punished for both conspiracy and substantive offenses that were object of conspiracy. (See People v. Ramirez (1987) 189 Cal.App.3d 603.)  Where defendant possessed two types of drugs in large amounts, evidence supported inference that defendant intended multiple sales to different customers, and defendant could by sentenced for two counts of possession with intent to sell.  (See People v. Blake (1998) 68 Cal.App.4th 509.)

  38. People v. Conners (2008) 168 Cal.App.4th 443, the Second Appellate District, Division 8 held that the court erred in failing to stay sentence under section 654, on one count of receiving stolen property, when sentence was imposed on a count for money laundering since there was only one criminal intent or objective. (People v. Moseley (2008) 164 Cal.App.4th 1598, 1603 [there was one indivisible course of conduct.])  Here, the there was only one intent, to keep the stolen funds.

  39. In re Noelle M. (2008) 169 Cal.App.4th 193, the Third Appellate District held that the Court of Appeal found that the juvenile court did not err in imposing consecutive terms of confinement for each of five separate offenses of selling methadone where minor admittedly sold drugs to seven others.  The minor’s culpability increased with each illegal act of selling drug, each sale was unique, and each sale constituted a separate objective.  (Cf. People v. Perez (1979) 23 Cal.3d 545, 549-553 [each sex act constitutes a separate objective].)  Where there is multiple sales of the same drug to the same person, there is an indivisible course of conduct, and section 654 is implicated.

  40. People v. Harbert (2009) 170 Cal.App.4th 42, the First Appellate District, Division 2 held that Under Vehicle Code sections 20003 and 20001, the requirement of proof of knowledge that an accident occurred (see People v. Hamilton (1978) 80 Cal.App.3d 124, 132), may, like the requirement of knowledge of injury, be satisfied by proof of constructive knowledge.  Additionally, the trial court did not err in giving CALJIC 12.70, because proof of actual knowledge that an accident occurred was not required.  The prosecutor’s use of the theory of imputed knowledge, based on evidence of the defendant’s conduct after the accident was not misconduct.  Furthermore, the trial court did not err in sentencing defendant pursuant to section 12022.7, which prohibits the enhancement where great bodily injury is an element of offense, because gravamen of the Vehicle Code section 20001 offense is leaving scene (see People v. Escobar (1991) 235 Cal.App.3d 1504, 1509), not the initial injury to the victim, with no element of personal injury to the victim.  However, the sentence on the section 12022.7 enhancement must be stayed pursuant to section 654.  (See People v. Sloan (2007) 42 Cal.4th 110, 116.)

  41. People v. Kenefick (2009) 170 Cal.App.4th 114, the Third Appellate District held that where other forgery convictions were preliminary steps in plan to steal victim’s money, for which defendant was convicted of theft, securities fraud, and burglary, the trial court should have stayed sentence under section 654 to avoid multiple punishment.  (People v. Beamon (1973) 8 Cal.3d 625, 637; see also People v. Curtin (1994) 22 Cal.App.4th 528 [generally only punishment on burglary or forgery as it was an indivisible course of conduct].)

  42. People v. Jones (2009) 178 Cal.App.4th 853, the Fourth Appellate District, Division 2 held that the trial court did not abuse its discretion by relying upon defendant’s prior conviction both to double the base term as required by the Three Strikes law (§ 667, subd. (e)(1)), and to add a five-year prior-serious-felony enhancement as required by section 667, subdivision (a)(1), and as one of several aggravating factors justifying upper term under section 1170, subdivision (b).  The use of the same prior conviction both to impose a 5-year prior-serious-felony enhancement under section 667, subdivision (a)(1), and to impose a prior-arson enhancement under section 451.1, subdivision (a), does not violate section 654's ban on multiple punishment for same crime, as the court indicated that they are both “status enhancements” and section 654 does not apply to status enhancement based on this court’s analysis.

  43. People v. Felix (2009) 172 Cal.App.4th 1618, the Second Appellate District, Division 8 held that the court did not err in sentencing appellant concurrently for shooting into an inhabited dwelling even if the purpose of the shooting was to accomplish the attempted murder, charged in count 1, given the fact there were multiple victims in the residence, even though the defendant was attempting to kill one particular victim.  (People v. McFarland (1989) 47 Cal.3d 798, 803 [the multiple victim exception to section 654 which allows for a separate punishment for each crime of violence against a different victim, even though all crimes are part of a single course of conduct with a single principle objective]; see also People v. Anderson (1990) 221 Cal.App.3d 331, 335-339.)

  44. People v. Hairston (2009) 174 Cal.App.4th 231, the Third Appellate District held that based on the wording of section 148, a defendant can be convicted of separate misdemeanor counts of resisting a peace officer in the discharge of duty based on each peace officer he resisted even if defendant’s acts of resisting arrest were one continuous act.  The court distinguished People v. Garcia (2003) 107 Cal.App.4th 1159, which holds that in a prosecution for evading (§ 2800.2), the prosecutor was not free to charge three counts of evading even though the defendant led three police vehicles on a lengthy high-speed chase.  Substantial evidence supported the trial court’s conclusion that the defendant formed a new and independent intent to avoid arrest by each officer with each officer he encountered, and therefore section 654 is not implicated.

  45. People v. Ramon (2009) 175 Cal.App.4th 843, the Fifth Appellate District held that, the defendant could not be “convicted” of both carrying a loaded firearm while a member of a criminal street gang (§ 12031, subd. (a)(2)(C), and of carrying a loaded firearm for which he was not the registered owner (§ 12031, subd. (a)(2)(F), based on his possession of the same firearm because they are not separate offenses, but instead are different penalty provisions for section 12031.  (See People v. Muhammad (2007) 157 Cal.App.4th 484, 490-491.)  Therefore, it was error to stay one of the gun offenses pursuant to section 654.

  46. People v. Cantrell (2009) 175 Cal.App.4th 1161, the Fourth Appellate District, Division 2 held that a stayed sentence, pursuant to section 654, cannot be consecutive to a principal sentence, and a term cannot be both consecutive and stayed simultaneously because the two are mutually exclusive.  (See § 1170.1, subd. (a)).

  47. People v. Anderson (2009) 47 Cal.4th 92, the California Supreme Court held that where a jury has convicted a defendant of an offense, in this case within section 667.61 (one strike), but deadlocked on an enhanced penalty allegation, the federal constitutional double jeopardy clause does not prevent retrial on those mistried enhancements, nor does the state statutory provision against double jeopardy of section 1023.  Furthermore, the penalty provision may be retried as to the deadlocked penalty provisions alone, and not with the underlying offense.

  48. Porter v. Superior Court (2009) 47 Cal.4th 125, the California Supreme Court held that where a jury convicted the defendant of several offenses and found all attached penalty allegations or factors to be true, but the trial court granted a new trial motion under section 1181 on some of the enhanced penalty factors/allegations.  Such an order could not be construed as an express or implied acquittal, and as a result, it did not trigger constitutional double jeopardy protections, nor did the state statutory provision against double jeopardy (§ 1023), bar retrial.  The scope of the retrial is limited to those sentencing allegations alone.  The court reasoned that the judge is acting as the “13th juror” in granting he motion for a new trial, and it is the equivalent of a juror who is a “holdout” for an acquittal.  In such a case, said ruling is not an acquittal, and does not bar retrial on double jeopardy grounds, but is similar to a mistrial or hung jury, where the issue can be retried.  (See People v. Serrato (1973) 9 Cal.3d 753, 761; see also People v. Lagunas (1994) 8 Cal.4th 1030, 1038-1039.)

  49. People v. Alvarez (2009) 178 Cal.App.4th 999, the Fourth Appellate District, Division 3 held that since each charged act was separate and distinct, and none was necessary to accomplish the others, section 654 did not come into play; but where two crimes were the means by which two other crimes were accomplished, the defendant’s sentence for the lesser crimes had to be stayed pursuant to section 654.  (People v. Perez (1979) 23 Cal.3d 545, 553 [§ 654 will not apply in a sex case unless the crime unless the crimes were either incidental to or the means by which another crime was accomplished].)

  50. People v. Sanchez (2009) 179 Cal.App.4th 709, the Fourth Appellate District, Division 2 held that section 654’s prohibition against multiple punishments for the same crime precludes sentencing the defendant for both the substantive offense of gang participation and for the underlying crime.  (See People v. Vu (2006) 143 Cal.App.4th 1009.)

  51. People v. Tarris (2009) 180 Cal.App.4th 612, in 2009 Los Angeles Daily Journal 17767, the Fourth Appellate District, Division 2 held that the trial court's power to impose other reasonable conditions of probation pursuant to section 1203.1 included the authority to require the defendant to reimburse the county for the costs of investigating defendant’s crime as well as clean-up costs.  It can he argued that this is contrary to People v. Baker (1974) 39 Cal.App.3d 550, 559 which does not permit the costs of prosecuting or rehabilitating criminals.  However, the trial court erred in imposing restitution fines under Health and Safety Code section 25189.5, subdivision (e) for defendant’s convictions for illegal disposal and transportation of hazardous waste since defendant’s actions constituted an indivisible course of conduct, committed with a single intent and objective.  (See People v. Hester (2000) 22 Cal.4th 290, 294.)  Imposing duplicate fines constituted multiple punishment for the same act or course of conduct in violation of section 654, which was applicable even though defendant’s sentence was suspended, and the Health and Safety Code section 25189.5, subdivision (e) fine was imposed as a condition of probation.  The trial court erred in imposing five court security fees when defendant was convicted of only three offenses and in imposing a court construction fee because that fee statute was not yet in effect at time of defendant’s sentencing.

  52. People v. Thompson (2009) 180 Cal.App.4th 974, in 2009 Los Angeles Daily Journal 18051, the Fourth Appellate District, Division 1 held that the trial court did not err by imposing consecutive sentences on defendant's convictions for manslaughter and driving under the influence, where two persons are injured or killed, as section 654 does not prohibit such a sentence.  (See People v. McFarland (1989) 47 Cal.3d 798, 803-804.)

  53. People v. Alford (2010) 180 Cal.App.4th 1463, the Third Appellate District held that when it is determined by the trial court that section 654 precludes imposition of a prison term as to a particular count, it must impose sentence on that count and then stay execution of that sentence.  The court merely cannot refrain from imposing sentence on those counts, except where probation is granted. California Rules of Court, Rule 4.424, is inconsistent with section 654 to the extent it provides for a stay of imposition of sentence, rather than for imposing sentence and staying execution.

  54. People v. Wynn (2010) 184 Cal.App.4th 1210, the Fourth Appellate District, Division 1 held that the trial court did not err in failing to stay, pursuant to section 654, where substantial evidence supported the finding that the defendant had a different objective in committing a burglary than the assault where he walked out of a store without paying for an item, then threw the item on the ground, and did not attempt to retrieve it before assaulting loss prevention officer who had attempted to detain defendant.  (People v. Vidaurri (1980) 103 Cal.App.3d 450, 465-466 [substantial evidence supported finding of two different intents].)  The trial court did not err in failing to stay the possession of the nunchaku where he carried them into the store, before the assault took place, and said he carried the weapon because people were afraid of them.  It was not unreasonable for the trial court to conclude that the possession of the weapon was distinctly antecedent and separate from the offense of assault with a deadly weapon.  (People v. Ratcliff (1990) 223 Cal.App.3d 1401, 1413.)  If there was no evidence of antecedent possession, then it would be stayed pursuant to section 654.  (People v. Bradford (1976) 17 Cal.3d 8, 22; People v. Venegas (1970) 10 Cal.App.3d 814, 821.) However the court did err in failing to stay, pursuant to section 654 the gun enhancement within the meaning of section 12022, subdivision (b)(1), which occurred during the commission of a burglary when it was based on the same act as the assault counts. (See People v. Britt (2004) 32 Cal.4th 944, 952.)

  55. People v. Newton (2010) 189 Cal.App.4th 314, the Second Appellate District, Division 6 held that an enhancement under Health and Safety Code section 11370.2, subdivision (a), may be imposed in the current matter even when execution of sentence on the prior convictions were stayed under section 654 in the prior proceeding.  In the current matter appellant was found guilty of two counts of sales under Health and Safety Code section 11352.  Appellant had two priors that qualified under Health and Safety Code section 11370.2, subdivision (a), which the court found true in a bifurcated proceeding.  The wording of Health and Safety Code section 11370.2, subdivision (a) requires an enhancement for a prior offense irrespective of whether a defendant served a prior prison term.

  56. People v. Atencio REVIEW GRANTED (S189461); FORMERLY AT: (2010) 190 Cal.App.4th 695, the Third Appellate District held that the defendant's theft of a gun and then his possession of the weapon thereafter did not violate section 654 as the defendant harbored different intents.  (See People v. Garfield (1979) 92 Cal.App.3d 475, 478.)  The court rejected appellant's contention that there was but one intent, to possess the weapon, and rejected the rationale of People v. Bradford (1976) 17 Cal.3d 8, 22, and People v. Venegas (1970) 10 Cal.App.3d 814, 821.

  57. People v. Bui (2011) 192 Cal.App.4th 1002, the First Appellate District, Division 4 held that pursuant to section 654, a defendant may not be punished for both attempted  murder (§ 664/187) and mayhem (§ 203), based on the same occasion and same set of operative facts.  (See People v. Pitts (1990) 223 Cal.App.3d 1547, 1560).  The trial court erred in imposing consecutive enhancements pursuant to People v. Palacios (2007) 41 Cal.4th 720, 723, 725, and People v. Oates (2004) 32 Cal.4th 1048, 1066 as the enhancements simply follow from the convictions of the substantive offense.  (People v. Mustaffa (1994) 22 Cal.App.4th 1305, 1310 [the tail does not wag the dog].)  When the substantive offense is imposed concurrently, the enhancement cannot be imposed consecutively. (Ibid.)  The matter is remanded for the trial court to determine if the substantive offenses should be stayed pursuant to section 654, or whether they should be imposed concurrently or consecutively, and the enhancement follows the substantive offense.

  58. People v. Robinson REVIEW GRANTED (S193289); FORMERLY AT: (2011) 194 Cal.App.4th 672, the majority in Second Appellate District, Division 5 held that, contrary People v. Ahmed (2011) 191 Cal.App.4th 1407, which is adopted by the dissent in this matter, hold that section 654's proscription against multiple punishments arising out of the same criminal act does not apply to enhancements for personally using a firearm under section 12022.5, subdivision (a) and for inflicting great bodily injury pursuant to section 12022.7, subdivision (a) when certain sex crimes are committed as directed by section 1170.1 subdivision (h).  Section 1170.1, subdivision (f) and (g) do not limit the use of enhancements for both firearm use and great bodily injury, within “this subdivision.”  However as the dissent points out, section 654 is still applicable to limit enhancements for a single act so that multiple layers of punishment are not added for that single act.

  59. People v. Jaska (2011) 194 Cal.App.4th 971, the Fourth Appellate District, Division 1 held that, based on the facts of the case, a series of thefts, from a single employer, completed by a series of transactions over a period of time, was not a single criminal plan, but a series of thefts whenever the need or occasion arose; therefore the Court of Appeal did not apply the single plan or scheme doctrine set forth in People v. Bailey (1961) 55 Cal.2d 514, People v. Packard (1982) 131 Cal.App.3d 622, or People v. Richardson (1978) 83 Cal.App.3d 853.

  60. People v. Powell (2011) 194 Cal.App.4th 1268, the Sixth Appellate District held that where the defendant played movies in an unavailing effort to arouse the victim sexually, then raped her, the exhibition of harmful matter under section 288.2 and the rape under section 288.7, were committed with separate intents, so punishment for both crimes did not violate section 654's ban on multiple punishments for a single crime.  (See People v. Harrison (2009) 174 Cal.App.4th 231, 240.)

  61. People v. Tran (2011) 51 Cal.4th 1040, the California Supreme Court held that the prosecution is permitted to prove the predicate offense to establish the pattern of gang activity by establishing that the defendant’s offense on a separate occasion may qualify as a predicate offense within the meaning of section 186.22, subdivision (f).

  62. People v. Murillo REHEARING GRANTED; FORMERLY AT: (2011) 201 Cal.App.4th 1382, the Fourth Appellate District, Division 1 held that the imposition of separate and consecutive sentences for deadly weapon enhancement  and great bodily injury enhancement  was mandated by section 1170.1, subdivisions (f) and (g).  The majority found that in enacting the legislation, they were seeking to eliminate the extension of section 654, and "free" enhancements.  The Court of Appeal found People v. Palacios (2007) 41 Cal.4th 720, 730-731 supportive of this position.

  63. People v. Ahmed (2011) 53 Cal.4th 156, the California Supreme Court held that the imposition of  two separate enhancement under section 12022.7, subdivision (a) and section 12022.5, subdivision (a), can both be imposed pursuant to section 1170.1, which specifically authorizes imposition of a weapons enhancement and a great bodily injury enhancement for the same crime.  Said section is the more specific statute and it takes precedence over the more general section 654, which prohibits imposition of multiple punishments for the same crime.  But if the specific sentencing statutes do not provide the answer, then section 654 does apply.  Section 1170.1, subdivision (f) and (g) do not limit the use of enhancements for both firearm use and great bodily injury, within "this subdivision," and therefore since section 1170.1 provides the answer in this case as to whether multiple enhancement can be imposed, then section 654 does not come into play.

  64. People v. Louie (2012) 203 Cal.App.4th 388, the Third Appellate District held that the trial court erred in failing to stay the conviction for the substantive offense of street terrorism (§ 186.22, subd. (a)) when the defendants were convicted of and punished for arson, dissuading a witness, and the gang enhancement pursuant to section 186.22, subdivision (b)(1).  Where the same conduct that resulted in the arson and dissuading convictions, the defendants could not, under section 654, be separately punished for street terrorism for the same conduct.  (People v. Mendoza (1997) 59 Cal.App.4th 1333, 1345-1346 [a single criminal act, even if committed incident to multiple objectives, may be punished only once].)  Section 654 did not bar separate punishments for arson and dissuading a witness where there was sufficient evidence to support a finding that the defendants harbored multiple independent objectives when they threatened the victim and set her apartment on fire.  (See People v. Beamon (1973) 8 Cal.3d 625, 639, fn. 11 [where a course of conduct is divisible in time it may give rise to multiple punishment even if the acts are directive to one objective].)

  65. People v. Schoenbachler (2012) 203 Cal.App.4th 1382, the Sixth Appellate District held that when the defendant visited grandmother in facility, with the sole criminal intent and objective of gaining control of her grandmother's annuity, separate punishments for embezzlement and elder financial abuse, based on that conduct, violated section 654's prohibition against multiple punishments for the same crime.  (See People v. Bailey (1961) 55 Cal.2d 514.)  When the defendant and other relatives went to the care facility where the victim was residing, and threw various items of the victim's property from a van, including a jewelry box that the defendant had emptied of its contents without victim's permission, separate punishments for elder abuse and grand theft did not violate section 654.  The trial court could have reasonably deduced from the evidence that the defendant had two intents: (1) to steal jewelry, and (2) to humiliate victim in retaliation for her refusal to continue providing the defendant with financial support.  Substantial evidence supported defendant's convictions for embezzlement and grand theft as separate crimes, rather than as a single ongoing offense.

  66. People v. Wensinger (2012) 204 Cal.App.4th 90, the Fourth Appellate District, Division 3 held that the prosecution's concession that the criminal threats allegation was supported by insufficient evidence at defendant's first trial precluded retrial on that charge, under the double jeopardy clause, even though the judgment of conviction resulting from the first trial was reversed on other grounds.  (See United States v. Marolda (9th Cir. 1981) 648 F.2d 623, 624-625.)  The jury convicted appellant of the charge in the first trial.  The trial court was required either to grant dismissal based on the prosecution's concession or independently review record of the first trial to determine sufficiency of the evidence.  (Ibid.)

  67. People v. Kurtenbach (2012) 204 Cal.App.4th 1264, the Fourth Appellate District, Division 1 held that the trial court did not err in failing to stay either the arson count or concealing an insurance claim (§ 550, subd. (b)(3), since the two crimes constituted a course of conduct divisible in time, and therefore, the defendant can be punished for both.  (People v. Beamon (1973) 8 Cal.3d 625, 639, fn.11.)  However, the trial court did err in failing to stay the punishment for vandalism when considering the arson count, since this is an indivisible course of conduct incident to one objective (People v. Perez (1979) 23 Cal.3d 545, 551.)  The preclusion of section 654 for multiple victims is not applicable here since the crimes are not both against a person (see People v. Miller (1977) 18 Cal.3d 873, 886), as vandalism is not a crime against a person.

  68. People v. Daniels (2012) 208 Cal.App.4th 29, the Second Appellate District, Division 1 held that following a retrial, and a second conviction the trial court increased the restitution fine and the parole revocation fine from what it had imposed after the first conviction.  The Court of Appeal found that this increase violated the protections against double jeopardy. (People v. Hanson (2000) 23 Cal.4th 355, 365-367 [did the increase operate to penalize the defendant for exercising his right to appeal;  when the sentence is a mix of time and money each must be measured against like components of the earlier sentence for the purposes of determining whether the aggregate sentence has been increased].)  An increase in one component of a monetary sentence will not render punishment more severe if another component is reduced by an equal amount because the protection against double jeopardy requires only that the aggregate monetary sentence, not each component, be equal to or less than that originally imposed.

  69. People v. Correa (2012) 54 Cal.4th 331, the California Supreme Court held that a defendant found in possession of seven firearms was properly sentenced on seven separate counts. Since possession of each firearm was a distinct offense, such sentencing did not violate section 654. To the extent that a "separate and individual purpose" for each offense is required to treat possession of multiple firearms as multiple crimes, the requirement was met on the basis of the evidence that each weapon had its own ammunition and, therefore, each could have served a different purpose or been used to commit a different crime. Section 654 does not expressly preclude double punishment when an act gives rise to more than one violation of the "same" Penal Code section.  It only precludes punishment in different ways for different provision of the law. The court expressly overruled its previous dicta in Neal v. State of California (1960)  55 Cal.2d 11, 18, footnote 1, and instead conclude that Penal Code section 654 does not govern multiple convictions of the same provision of law.

  70. People v. Mesa (2012) 54  Cal.4th 191, the California Supreme Court held that where the defendant was convicted of two counts of assault with a firearm for two separate incidents in which he shot and severely wounded two complete strangers, and the jury also found true great bodily injury and personal firearm allegations with respect to both convictions.  It was error to impose multiple gang crime penalties for violations of section 186.22, subdivision (a), since it was a violation of section 654, since the assault and the firearm enhancement were already imposed.  The majority relied in part on  People v. Sanchez (2009) 179 Cal.App.4th 1297, 1310-1313, which precludes sentencing the defendant for both the substantive offense of gang participation and for the underlying crime.  However, the defendant did not escape without being punished for his gang involvement, as his sentence was enhanced by 10 years pursuant to the gang enhancement, within the meaning of section 186.22, subdivision (b)(1)(C).  The majority reject the notion that generalized harm to the community rendered it a victim for purposes of the multiple victim exception to section 654. (See In re M.S. (1995) 10 Cal.4th 1048, 1063.)

  71. People v. Jones (2012) 54 Cal.4th 350, the California Supreme Court held that a defendant may not be punished separately for the crimes of possession of a firearm by a felon, carrying a readily accessible concealed and unregistered firearm, and carrying an unregistered loaded firearm in public, with respect to the same firearm, as these are a single act under section 654.  The court specifically overruled In re Hayes (1969) 70 Cal.2d 604, and disapprove People v. Harrison (1969) 1 Cal.App.3d 115.

  72. People v. Atencio (2012) 208 Cal.App.4th 1239, the Third Appellate District held that the trial court erred in imposing consecutive sentences for grand theft of a firearm and firearm possession by a felon as it constituted multiple punishments for the same crime in violation of section 654, where defendant had a single criminal intent and objective. (See People v. Jones (2012) 54 Cal.4th 350, 352, 358-360.)

  73. People v. Calles REHEARING GRANTED; FORMERLY AT: (2012) 209 Cal.App.4th 1200, the Second Appellate District, Division 5 held that the trial court erred in many different ways, mostly pertaining to the application to section 654, as to both substantive counts and enhancements.  Appellant was convicted of vehicular manslaughter (§ 192, subd. (c)(1)) in count 1 (Rocha) and count 2 (Santee); in counts 3, 7 and 8 of leaving the scene of an accident  with injury (Veh. Code § 20001, subd. (a)), count 3 applicable to victim Medina, count 7 victim Santee, count 8 victim Rocha; and in count 9, second degree murder of Santee.  Appellant was also charged as to counts 1 and 2 with 2 enhancements under section 12022.7, subdivision (a), and 1 enhancement under Vehicle Code section 20001, subdivision (c).  As to count 1, the Court of Appeal held that since gross vehicular manslaughter is a crime of violence (People v. McFarland (1989) 47 Cal.3d 798, 803-804), and the trial court erred in staying that count pursuant to section 654.  However, the Court of Appeal found that the enhancements that applied to that count had to be stayed pursuant to section 654 since appellant was sentenced on count 9 for the death of Santee, and he was sentenced he was enhanced in count 9 with the great bodily injury to Medina, therefore he has already been sentenced with that enhancement for Medina.  (See People v. Ahmed (2011) 53 Cal.4th 156, 165-167.)  The enhancement for count 1 under Vehicle Code section 20001, subdivision (c) must be stayed, as will be shown below, it is imposed with either counts 3, 7 or 8.) (See People v. Verlinde (2002) 100 Cal.App.4th 1146, 1168.)  Whether section 654 applies to enhancements is still somewhat of an open question, however, it was partially answered in Ahmed, by applying the "modern trend", section 654 applies to the enhances applicable here. (People v. Ahmed, supra, 53 Cal.4th at p. 162.)  Count 2 was properly stayed as sentence for the murder of Santee was imposed in count 9.  Since there can only be one conviction for a violation of Vehicle Code section 20001, subdivision (a), (People v. Newton (2007) 155 Cal.App.4th 1000, 1002), it can be imposed on either count 3, 7 or 8, and the other 2 counts must be dismissed.  As to the great bodily injury enhancement on count 7, if the court selects that count instead of either counts 3 or 8 to impose, then the enhancement must be stayed as the defendant was sentenced on count 9 for those injuries.  As to the section 12022.7, subdivision (a) enhancements applicable to count 9 the court found that they were committed "in the commission" of the gross vehicular manslaughter in count 1, and in violation of leaving the scene of an accident with injury in counts 3 and 8, and therefore they could be imposed with the murder count.  The enhancement for the leaving the scene of the accident as to count 1 and 2 must be stayed as it was imposed under either the substantive offense in count 3, 7 or 8.  The trial court erred in imposing the 5-year enhancement for Vehicle Code section 20001, subdivision (c) as to count 9, since it is specifically applicable to vehicular manslaughter and not murder, and it was only alleged as to counts 1 and 2.

  74. People v. Arauz (2012) 210  Cal.App.4th 1394, the Second Appellate District, Division 6 held that the trial court erred when if failed to stay, pursuant to section 654, the substantive gang crime under section 186.22, subdivision (a) when it had imposed the penalty for attempted premeditated murder which was used to satisfy the gang participation element. (People v. Mesa (2012) 54 Cal.4th 191, 197-198.)  Additionally, the Court of Appeal struck the 10-year penalty for section 186.22, subdivision (b)(1)(C), where it had been imposed and stayed, but found that the section 186.22, (b)(5) gang enhancement which is a minimum eligible parole date of 15-L on the attempted murder counts. (See People v. Lopez (2005) 34 Cal.4th 1002, 1004.)

  75. People v. Sanders (2012) 55 Cal.4th 731, the California Supreme Court held that the defendant may not be separately punished for violations of sections 12021, subdivision (a)(1) and 12021.1, subdivision (a) based on his possession of the same firearm, but he may be punished for two violations of both sections for the possession of the two weapons.  (People v. Correa (2012) 54 Cal.4th 331, 334,  341-345.)

  76. People v. Dydouangphan (2012) 211 Cal.App.4th 772, the Fifth Appellate District held that the trial court did not err in sentencing appellant on count 2, voluntary manslaughter, concurrently to count 1, shooting at an occupied vehicle within the meaning of section 246, as there were 7 persons in the vehicle, and section 654 does not preclude the imposition of punishment for this single act which was the same conduct. (People v. Oates (2004) 32 Cal.4th 1048, 1063 [multiple victim exception to sec. 654].)  Appellant was also sentenced consecutively on count 1 with an enhancement within the meaning of  section 12022.53, subdivision (d), with an additional 25-L.  Separate enhancements focus on different aspects of the criminal act, here the personal use of the firearm arose from shooting the victim, which warranted additional punishment.  (See People v. Ahmed (2011) 53 Cal.4th 156, 163-164 [applies to prohibit multiple punishment for multiple enhancements for a single event].)  Here, the aspect of the criminal act that the Legislature has determined requires "increased" punishment is the personal use of the firearm that caused the death.  The "criminal acts"  being punished are the voluntary manslaughter and the shooting at an occupied vehicle.  The Court of Appeal found that it would be illogical to use a provision intended to increase punishment for an aspect of a criminal act to pre punishment for the act itself.  (Id., at pp. 164, 168.)

  77. People v. Tinker (2013) 212 Cal.App.4th 1502, the Sixth Appellate District held that the trial court erred by imposing a concurrent term rather than staying, pursuant to section 654, a count of possession of methamphetamine for sale when that possession arose out of the same facts and circumstances as a count for transportation of the same drug.

  78. People v. Wooten (2013) 214 Cal.App.4th 121, the Third Appellate District, after remand from the California Supreme Court to consider the points raised by appellant's petition for review, reaffirmed its prior opinion and hold that neither section 654, nor People v. Ahmed (2011) 53 Cal.4th 156, preclude the imposition of multiple enhancements, primarily because the Court of Appeal found that appellant's attacks on one of the victims, here M.S., was not the result of a single course of conduct, but arose out of separate acts, one for the sexual assaults and the other for the attempted murder.  Therefore, the Court of Appeal found that 2 sentence enhancements for great bodily injury (§ 12022.7, subd. (a)), imposed for the attempted murder and forcible oral copulation of the same victim did not constitute multiple punishments for the same crime.  Had the Court of Appeal found that appellant's conduct was a continuous course of conduct under section 654, only one GBI enhancement would have been permitted. (See People v. Reeves (2001) 91 Cal.App.4th 14; People v. Alvarez (1992) 9 Cal.App.4th 121 People v. Morlinglane (1982) 127 Cal.App.3d 811, and People v. Culton (1979) 92 Cal.App.3d 113.

  79. People v. Calderon (2013) 214 Cal.App.4th 656, the Second Appellate District, Division 3 held that section 654, and People v. Ahmed (2011) 53 Cal.4th 156, do not bar imposition of sentence for the personal use of a deadly weapon enhancement within the meaning of section 12022, subdivision (b)(2), since said enhancement is an implied exception to section 654. Even if section 12022, subdivision(b)(2) did not operate as an implied exception to section 654, the enhancement could be imposed in addition to the penalty for the underlying offense of carjacking, as the car jacking can be completed without the use of the deadly weapon, which adds punishment for that conduct or aspect of the act that is not always present in a carjacking.

  80. People v. Eroshevich (2013) 214 Cal.App.4th1335, the Second Appellate District, Division 5 held, following rehearing, that the trial court erred when it set aside the defendant/physician’s conviction (Dr. Eroshevich), in the interests of justice, under section 1385 after it erroneously concluding that there was insufficient evidence as a matter of law to convict her codefendant (Mr. Stern), so that it would be unfair to convict her of conspiring with him; as a result  there was no double jeopardy bar to retrial. The federal and state constitutions double jeopardy protections apply to both trials (People v. Salgado (2001) 88 Cal.App.4th 5, 133 [jury returns a not guilty verdict]), and sentences. (Illinois v. Vitale (1980) 447 U.S.410, 415 [65 L.Ed.2d 228, 100 S.Ct. 2260].)  An acquittal for double jeopardy purposes also can occur when a trial court grants a defendant's new trial motion for evidentiary insufficiency. (Hudson v. Louisiana (1981) 450 U.S. 40, 44; People v. Lagunas (1994) 8 Cal.4th 1030, 1038, fn.6.)  Additionally, an acquittal can occur for double jeopardy purposes when a trial court dismisses a case pursuant to section 1385 for evidentiary insufficiency. (People v. Hatch (2000) 22 Cal.4th 260, 273.)  In other words, evidence is sufficient as a matter of law.  Here the Court of Appeal found that the  evidence against the defendant, the manager/companion of Anna Nichole Smith, knew that multiple prescriptions in his own name and names of other persons were for drugs that were obtained with intent that they be used by his client, who did in fact use them, was sufficient to convict him of conspiring with prescribing physician to obtain drugs by fraud and misrepresentation. Where trial court erroneously ruled that there was insufficient evidence to convict defendant of conspiracy, double jeopardy principles precluded retrial but did not preclude trial court from dismissing charges on other grounds or reinstating the conviction.

  81. People v. Carbajal (2013) 56 Cal.4th 521, the California Supreme Court held that where the defendant was tried for sexually molesting two victims, and there was a multiple victim allegation under section 667.61 (the "One Strike" law).  The jury did not have authority to return any verdict on multiple-victim "One Strike" allegation after it found defendant guilty on some counts involving a single victim but deadlocked on all counts involving the other alleged victim.  Neither the first jury’s original finding that the allegation was true, nor its subsequent finding that the allegation was not true after further deliberations had been ordered by the court, was binding, and a second trial on the allegation following a mistral did not constitute double jeopardy.  Section 1161 provides that when there is a verdict of conviction, in which it appears to the Court that the jury have mistaken the law, the Court may explain the reason for hat opinion and direct the jury to reconsider their verdict, and if, after the reconsideration, they return the same verdict, it must be entered; but after a verdict of acquittal, the jury cannot reconsider it.  After hearing the verdict for the second time, the court should have, within the meaning of sections 1147 and 1149, proper adherence to the statutory scheme would have led to the jury's declaration of a verdict.  Here the trial court did not attempt to clarify an unintelligible verdict.  A  verdict of true or not true on the special allegation would have been inconsistent with the jury's findings of the substantive counts, but it would not have been unintelligible in the way that a finding of guilt and acquittal on the same count is.  In sum, once the jury deadlocked on the counts involving one of the alleged victims, they could not have returned a verdict on the penalty allegation, and double jeopardy thus did not bar retrial on that allegation.