Gregg L. Prickett

Retired Judge,

The objective of this article and accompanying self-study test is to familiarize readers with the multiple punishment and multiple prosecution provisions in Penal Code section 654. The article will cover how to determine whether multiple counts arise from a single act and from an individual course of conduct, the applicability of the rule to enhancements, and the bar to multiple prosecution when prosecutors are, or should be aware, of more than one offense in which the same act or course of conduct plays a significant part.

Overview

Penal Code section 654, subdivision (a), provides, “[a]n act or omission that is punishable in different ways by different provisions of law may be punished under either of such provisions, but in no case shall the act or omission be punished under more than one provision.” (All statutory references are to the Penal Code unless otherwise stated.) This is the multiple punishment part of the statute.

The second sentence of section 654, subdivision (a), provides, “[a]n acquittal or conviction and sentence under any one [provision of law] bars a prosecution for the same act or omission under any other [provision].” This is the multiple prosecution portion.

Multiple Punishment

“Since its origin in 1872, the Penal Code has prohibited multiple punishment for a single ‘act or omission.’ (§ 654.) Although our interpretation of that provision has varied somewhat over the years, we have consistently held that it bars imposing multiple sentences for a single act or omission, even though the act or omission may violate more than one provision of the Penal Code. Since 1962 we have interpreted section 654 to allow multiple convictions arising out of a single act or omission, but to bar multiple punishment for those convictions. Execution of the sentence for one of the offenses must be stayed.” (People v. Mesa, 54 Cal.4th 191 (2012) citations omitted.)

“Whether multiple convictions are based upon a single act is determined by examining the facts of the case.” (Mesa.) A court should also examine the charging document, the verdicts, the prosecutor’s closing arguments, and the jury instructions. (People v. Siko, 45 Cal.3d 820 (1988).)

Section 654 also prohibits multiple punishment for an indivisible course of conduct even though it violates more than one statute. (People v. Hicks, 6 Cal.4th 784 (1993).) The purpose of section 654 is to ensure that punishment will be commensurate with a defendant’s culpability. (People v. Latimer, 5 Cal.4th 1203 (1993).)

Whether a course of conduct is indivisible depends on the intent and objective of the actor. (Neal v. State of California, 55 Cal.2d 11 (1960); People v. Palmore, 79 Cal.App.4th 1290 (2000).) “If all the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.” (People v. Perez, 23 Cal.3d 545 (1979).) Whether the defendant pursued multiple criminal objectives is a question of fact for the trial court. (People v. Akins, 56 Cal.App.4th 331 (1997).) “Our case law has found multiple criminal objectives to be a predicate for multiple punishment only in circumstances that involve, or arguably involve, multiple acts.” (Mesa.)

Nonetheless, even though a defendant entertains a single principal objective during an indivisible course of conduct, the defendant may be convicted and punished for each crime of violence committed against a different victim. (People v. Ramos, 30 Cal.3d 553 (1982).) “Whether a crime constitutes an act of violence … depends upon whether the crime … is defined to proscribe an act of violence against the person.” (People v. Solis, 90 Cal.App.4th 1002 (2001).)

“[W]hen a trial court determines that section 654 applies to a particular count, the trial court must impose sentence on that count and then stay execution of that sentence. There is no authority for a court to refrain from imposing sentence on all counts, except where probation is granted. And failing to impose sentence on all counts can lead to procedural difficulties if the counts on which sentence was imposed is later reversed or vacated.” (People v. Alford, 180 Cal.App.4th 1463 (2010).)

Section 654 & Enhancements

Appellate courts agree “that there are two different categories of sentence enhancements: status enhancements which go to the nature of the offender, such as recidivist enhancements; and conduct enhancements which go to the nature of the offense, such as firearm or bodily injury enhancements. … Because a ‘repeat offender (recidivist) enhancement’ does not implicate multiple punishment of an act or omission, section 654 is inapplicable.” (People v. Martinez, 132 Cal.App.4th 531 (2005).)

The California Supreme Court decided a long-standing issue on the application of Section 654 to sentencing enhancements. In People v. Ahmed, 53 Cal.4th 156 (2011), the defendant was charged with shooting his girlfriend in the stomach with a handgun and was convicted of one felony count of assault with a firearm and two different enhancements, use of a firearm (§ 12022.5(a)) and infliction of great bodily injury (§ 12022.7(e)). The trial court imposed a full consecutive sentence for both of the enhancements. The Supreme Court affirmed.

The Court stated, “We conclude that a court deciding how multiple enhancements interact should first examine the specific sentencing statutes. If, as is often the case, these statutes provide the answer, the court should apply that answer and stop there. Because specific statutes prevail over general statutes, consideration of the more general section 654 will be unnecessary. Only if the specific statutes do not provide the answer should the court turn to section 654. We conclude that section 654 does apply in that situation, but the analysis must be adjusted to account for the differing natures of substantive crimes and enhancements. [¶ In this case, the relevant specific statute, section 1170.1, permits the court to impose both one weapon enhancement and one great-bodily-injury enhancement. Accordingly, the trial court properly imposed both enhancements. Because the specific statute provides the answer, we do not turn to section 654.” (Ahmed.) The Supreme Court examined first the language of sub-divisions (f) and (g) of section 1170.1 and then their corresponding legislative histories and found that each allowed for the imposition of sentences for both enhancements. (Ahmed.)

Multiple Prosecution

The second sentence of section 654 bars multiple prosecution for the same act or omission where the defendant has already been tried and acquitted or convicted and sentenced. This preclusion is primarily a procedural safeguard against harassment of the defendant. (Neal.)

In Kellett v. Superior Court, 63 Cal.2d 822 (1966), the defendant had earlier pled guilty to a misdemeanor brandishing (§ 417) and then was charged with being a felon in possession of the same gun which the court held was barred by section 654. “When … the prosecution is or should be aware of more than one offense in which the same act or course of conduct plays a significant part, all such offenses must be prosecuted in a single proceeding unless joinder is prohibited or severance permitted for good cause. Failure to unite all such offenses will result in a bar to subsequent prosecution of any offense omitted if the initial proceedings culminate in either acquittal or conviction and sentence.” (Kellett.) As with the multiple punishment prong of the statute, “Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor.” (Kellett.)

The question of whether the prosecution “should have known of the two offenses, [is] a question distinct from that of actual knowledge.” (In re Dennis B., 18 Cal.3d 687 (1976).) A court answers the question by considering various factors, including (1) the “disparity in gravity between the two charged offenses,” (2) the “state’s substantial interest in maintaining the summary nature of minor motor vehicle violation proceedings” in cases where one of the offenses is a Vehicle Code crime, and (3) the “undeniable state interest in prosecuting serious misdemeanors and felonies” (Dennis B.).