Filed 11/17/25 P. v. Quinterosmendoza CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E083878
v. (Super.Ct.No. RIF2104727)
LOUIS ALBERT OPINION QUINTEROSMENDOZA,
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Mark E. Singerton, Judge.
Affirmed as modified.
Jeanine G. Strong, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General,
Charles C. Ragland, Assistant Attorney General, Andrew Mestman and Arlene A. Sevidal,
Deputy Attorneys General, for Plaintiff and Respondent.
1 Following a jury trial, defendant and appellant Louis Albert Quinterosmendoza
was convicted of simple battery (Pen. Code,1 § 242, count 4), simple assault (§ 240,
count 5) and two counts of lewd and lascivious conduct (§ 288, subd. (a), counts 6 & 7).
On May 6, 2024, he was sentenced to state prison for a total term of three years,
comprised of concurrent three-year terms on the lewd and lascivious conduct (counts 6 &
7) convictions and concurrent six-month terms on the battery (count 4) and assault
(count 5) convictions. Defendant contends the trial court erred in excluding a recording
of a conversation he had with the victim. He further contends, and the People concede,
his sentence on one of the lewd and lascivious conduct convictions should be stayed. We
conclude the concurrent sentences on counts 6 and 7 constitute multiple punishment
proscribed by section 654. Accordingly, we modify the sentence on count 7 as set forth
below and affirm the judgment in all other respects.
I. FACTS
Defendant is the father of A.M. (born February 2007) and her two sisters. In the
early hours of December 25, 2020, he drank to the point of getting drunk, grabbed A.M.’s
arm, took her into his bedroom, closed the door, said things to her in an “angry way,”
touched her breast, attempted to touch her vagina, and asked her if she was having sex
with two boys from school. After A.M. woke up, she called her mother and asked that
she pick up her and her sisters. Later, A.M. revealed defendant’s acts, and her mother
called 911.
1 Further unspecified statutory references are to the Penal Code.
2 Prior to the deputies arriving, A.M.’s mother recorded a pretext call between A.M.
and defendant. During the call, A.M. told him she had left his place because she felt
uncomfortable being around him after everything he had said; she never mentioned him
physically touching her. During her interview with the deputies, A.M. disclosed
defendant’s recent and prior acts of touching her. In addition to the Christmas 2020
incident, in April 2020, defendant “turn[ed] [her] over and then he put his [dick or penis]
in [her]” “ass” while she was asleep on the bed and her mom was at work. When she was
six years old, he put his fingers inside her vagina.
II. DISCUSSION
A. Exclusion of Evidence.
Defendant contends the trial court erred in refusing to admit the audio and video
recordings of A.M.’s conversation with him in which she accused him of saying
inappropriate things but not inappropriate touching.
1. Additional facts
On cross-examination, defense counsel asked A.M. about the pretext call she had
made to defendant prior to the police arriving. To refresh her memory, counsel showed
her a partial transcript of her interview with a deputy, which included the audio-recorded
conversation she had with defendant. After reading the transcript, A.M. remembered the
conversation but could not recall when it happened or talking to the deputies about it. In
response to counsel’s offer, she agreed that seeing the body-worn camera video of her
playing the audio to the deputy would help her memory.
3 During sidebar, defense counsel requested permission to provide a transcript of
and play defense exhibits 3 and 3A,2 “a brief, roughly four-minute conversation that was
audio recorded that happened between [defendant] and (Jane Doe A.M.) shortly after the
incident.” The court clarified that counsel was seeking to play the “body-cam footage of
(Jane Doe A.M.) showing the officers an [sic] audio recording of herself and
[defendant].” Defense counsel agreed, explaining it will help A.M. recall when the
conversation took place, show the jury there was a recorded conversation between A.M.
and defendant, and potentially impeach A.M.’s testimony because she did not confront
him about his touching her breasts or vagina recently or in the past. The trial court
indicated it would be helpful to review the transcript to determine if it contains
inconsistent statements or some form of impeachment.
In response, the prosecutor noted that “ about 90 percent” of the transcript is
defendant’s statements, which is not impeachment, “just hearsay.” Regarding A.M.’s
statements, the prosecution argued her testimony is the same as the recorded statements—
that she does not want to be around defendant. As to refreshing her recollection about
when the conversation happened, the prosecution asserted the “transcript” itself will not
“accomplish that . . . aside from maybe a time stamp.” The trial court agreed that if the
2 Defense exhibits 3 and 3A were never admitted into evidence, played for, or provided to the jury. The People augmented the record to include the transcript of the recorded conversation between defendant and A.M. captured by the deputy’s body- camera on December 25, 2020. We note that in a pretrial motion in limine, the prosecution requested to admit the body-cam video of the forensic interview of A.M. on December 25, 2020, if she testifies inconsistent with her statement to the deputies. The trial court denied the motion but agreed “the interview would come in . . . if [her statements] are inconsistent.”
4 recording was mostly defendant’s statements, then that is hearsay, and “this would sort of
be a back doorway of getting that in.” If the recording is to impeach A.M. via
inconsistent statements, then defense counsel should show her the transcript and video,
“directly go to those particular statements,” and ask specific questions about what was
and was not said. Otherwise, the court found no “particular relevance for the video,” and
it is hearsay.
Outside the presence of the jury, A.M. reviewed the body-cam video of her
showing the deputy a recording of her conversation with defendant. During cross-
examination, she explained that her mother recorded this conversation at the direction of
law enforcement. She testified that during the conversation, she told defendant she was
uncomfortable being around him because of everything he said; she did not mention his
recent or past physical touching of her.
During redirect, A.M. testified that several months to a year after the Christmas
2020 incident, defendant “kinda” apologized to her in a restaurant parking lot. While her
sisters went inside to get food, A.M. and defendant stayed in the car. When he asked her
what was wrong, she “just kind of like . . . exploded[, and] . . . it just all came out. And
then we talked about it, and then that was the last time I really brought it up.” In light of
this testimony about an apology in the car, defense counsel asked the trial court to
reconsider its prior ruling and admit the recorded phone conversation between defendant
and A.M. into evidence. Counsel argued, “At this point, that’s impeachment. The basis
for that is that (Jane Doe A. M.) has put forth to the jury that there was this one incident
that happened with the apologies that happened in the car, whereas there was a
5 completely separate apology incident that happened that would tend to rebut her
testimony and would go to the weight and credibility of her statements on this particular
topic.”
Again, the prosecutor objected, claiming this was just a way to get defendant’s
hearsay statements admitted. She explained there could be no confusion because defense
counsel “already made clear that during that phone conversation, no mention was made
of touching. And . . . based off of [A.M.’s] testimony on the stand [regarding the one-
time apology] . . . she also said that that was the only time they have ever brought up the
touching.” Thus, the prosecutor argued the recording of the phone conversation is
“simply hearsay” and “[im]proper impeachment.”
The trial court indicated that it had not reviewed the recording, did not know if the
apology at the restaurant parking lot is what is in the recording, and needed further
foundation to show how the recording is probative. According to the court, defendant’s
statements in the recording are only probative if they “directly rebut something that
[A.M.] says he said that’s different.” After reiterating that it failed to see “what the
relevance of the entire recorded phone call is,” the court refused to allow defense counsel
to play the recording without further information.
During recross, defense counsel questioned A.M. about the recording of her
conversation with defendant on December 25, 2020. She agreed that during that
conversation, she told him she was upset over the things he had said but never discussed
his recent or past physical touching of her. On further redirect, when asked what
6 defendant was apologizing for when they were sitting in the restaurant parking lot, A.M.
replied, “I guess the whole touching situation.”
Later during the trial, defense counsel once more requested the court revisit its
ruling on the request to admit the audio recorded conversation between A.M. and
defendant because it had been referenced multiple times with A.M. and the deputy, but
the jury only heard “tidbits of it” and may speculate about its contents. According to
counsel, under the rule of completeness, the recording would provide “content or context
for the apology that was provided by [defendant] so that the jury does not have some type
of misapprehension about what that apology was, and it provides context for (Jane Doe
A.M.’s) statements as well regarding, um, why she didn’t feel comfortable at home.” The
court declined to reverse its prior ruling but indicated it would look at the transcript.3
3 A.M.’s recorded conversation with defendant provides: “FATHER: (Unintelligible). Okay. And then, you know, it’s just you don’t want to come. (Unintelligible). I was thinking you guys could open your gifts like today later on. Okay? Because, uh, yesterday, she didn’t come. And then, um, that’s why I know— you gotta understand something (unintelligible), okay I said a lot of things, okay I was upset because—because they always said they want to come and never come. That’s why I told you what I told you. Like if that’s what you guys wanted, you know, my last name too (unintelligible). Okay, I’m not saying I’m not (unintelligible). Okay? I said a lot of things because sometimes, you know, like you know (unintelligible) talked to Bonnie and Samantha, I talked to Bonnie, we go over there and was almost one. What time did we go over there? Wasn’t it like 3:00 in the morning? “DOE: 1:00 am. “FATHER: Yeah, okay. And she’s supposed to be reading and she comes without a car. Maybe—maybe (unintelligible), right? “DOE: No. I’m not upset about that. I’m upset about the things that you told me last night. “FATHER: Okay. I’m so—(unintelligible), I drank and I said a lot of things. Okay? So I’m sorry. Okay? You know I drank. Okay? I’ve been drinking a while and I drank and that’s okay. Okay? Yeah. I said a lot of things and maybe that’s why you’re [footnote continued on next page]
7 After reviewing the transcript, the trial court maintained its prior ruling.4 The
court found the apologies to be hearsay because they were being elicited from defense
hurt and everything. Okay? But like you said, (unintelligible) I never tried to stop you guys when you guys don’t want to stay here. ‘Cause I—I know sometimes you want to stay here and sometimes you don’t want to stay here. Okay? You got to remember like when people is—is upset, they say a lot of things and I was upset yesterday because we really didn’t talk about it. We were planning our (unintelligible) you guys were going to come here at 1:00 am. 1:00 am, you guys were going to open your presents, okay? And—and the reason I told you like if you don’t want (unintelligible). That’s what I told you. (Unintelligible). I mean sometimes I know I said a lot of things and most of the time I regret saying things, you know. “DOE: Well, it doesn’t change the fact that I’m still not—don’t want to be around you because I feel uncomfortable being around you now after everything you said. “FATHER: Okay. How I said it—it was fine. You don’t want to come, that’s fine mami. Okay? That’s fine. You don’t want to come, that’s fine. You don’t want to come, that’s fine. (Unintelligible) she doesn’t want to come. “DOE: Okay. “FATHER: Yeah, but, yeah, but I mean—but I just say I love you and make that everything. Okay? And I know it because I said a lot of things and maybe that’s why you’re hurt. Okay? But I mean you (unintelligible) and everything. Okay? (Unintelligible). Because maybe that’s why you’re hurt and (unintelligible). Because all the things that I said. I was upset, that’s it. (Unintelligible). “DOE: They’re in the room. “FATHER: And you? “DOE: I’m here.”
4 Defendant asserts, “Although the [trial] court at one point agreed to review the transcript, the record does not reflect that the court did so.” Not so. After a brief recess, the court made comments that show, albeit implicitly, that it had reviewed the transcript. Specifically, the court described the recording as “relatively short,” adding “it confirms what the parties have represented, that, in essence, [defendant], um, is apologizing, in essence, for some potential inappropriate statements that he may have made to his daughter while he was intoxicated.” Also, the court referred to the exact page and line numbers of the transcript of the conversation when quoting what defendant and A.M. said: “Um, specifically in the recording on page two, um, lines 15 through 17, [defendant] says, ‘Sometimes, I know I say a lot of things, and next time I regret—that I said that,’ I’m assuming—it says, ‘unintelligible,’ but I am assuming it’s ‘I regret that I said that, you know?’ And then (Jane Doe A. M.) responds, ‘Well, it doesn’t change the fact that I’m still—I don’t want to be around you. Because I feel uncomfortable being around you now, after everything you said.’”
8 regarding defendant’s statements. The court stated, “It very well may be that it could be a
prior consistent statement if he, you know, took the stand and he said, Hey, all this
business about me apologizing, it’s being taken out of context.· I wasn’t apologizing
about touching her at all. I don’t know where that’s coming from, okay?· The only time I
apologized to her was about something I said to her, you know?” The court also found
this was not a rule of completeness issue as the parties were free to ask further questions
about the apology given the circumstances surrounding it. In the end, the trial court ruled
that while “it certainly would be easy and convenient to just let it in. . . . [I]t still has to
have an evidentiary basis. I just don’t see what it is.”
During deliberations, the jury requested “the video recording of the initial
interaction of [A.M.] and the deputies on 12/25/20.” The trial court responded, “The jury
may review any evidence already submitted in the case, & such evidence only.”
2. Applicable legal principles
“A statement by a witness that is inconsistent with his or her trial testimony is
admissible to establish the truth of the matter asserted in the statement under the
conditions set forth in Evidence Code sections 1235 and 770.” (People v. Johnson (1992)
3 Cal.4th 1183, 1219, fn. omitted.) We review a trial court’s ruling on the admissibility of
evidence for abuse of discretion. (People v. Homick (2012) 55 Cal.4th 816, 859.)
3. Analysis
Defendant contends the recorded phone conversation between A.M. and defendant
should have been admitted because “[t]he fact that [she], during the pretext phone
conversation with [defendant], did not accuse him of touching her inappropriately is
9 inconsistent with her trial testimony that he touched her inappropriately.” He asserts this
evidence was necessary because the record is replete with indications that both the jurors
and the trial court found A.M. less than credible and her testimony and reporting were
suspect.
Initially, defendant was charged with two counts of lewd and lascivious conduct
upon a child under 14 years of age by force, violence, or duress (§ 288, subd. (b)(1),
counts 1 & 2 [Christmas 2020]); sodomy upon a child under 14 years of age by force,
violence, or duress (§§ 269, subd. (a)(3), 286, subds. (c) & (d), count 3 [Christmas
2020]); and oral copulation or sexual penetration of a child under 10 years of age
(§ 288.7, subd. (b), count 4 [February 2012 to 2015]). At the close of the prosecution’s
case, the trial court granted defendant’s section 1118.1 request to dismiss counts 1, 2, and
3 (based on a lack of evidence of duress or physical force), but denied the request as to
count 4. As to count 4, the court noted that the evidence was unclear as to the dates on
which the acts occurred, the age of A.M. when the acts occurred, and whether it was in
April 2020.
On March 6, 2024, the People filed a second amended information, charging
defendant with oral copulation or sexual penetration of a child under 10 years of age
(§ 288.7, subd. (b), count 4 [February 2012 to 2015]); sodomy of a child under 14 years
of age (§ 286, subd. (c)(1), count 5 [April 2020]); and two counts of lewd and lascivious
conduct upon a child under 14 years of age (§ 288, subd. (a), counts 6 & 7 [Christmas
2020]). The second amended information reflected A.M.’s testimony alleging the
sodomy occurred in April of 2020. As previously stated, the jury convicted defendant of
10 a lesser included offense of simple battery (§ 242, count 4), lesser included offense of
simple assault (§ 240, count 5), and two counts of lewd and lascivious conduct (§ 288,
subd. (a), counts 6 & 7).
Defendant argues the granting of his motion to dismiss and the jury’s verdicts
convicting him of significantly lesser charges indicate that both the trial court and the
jurors “had serious doubts about A.M.’s credibility.” He further claims the jury rejected
the conclusion that her memory lapses were consistent with or explained by Child Sexual
Abuse Accommodation Syndrome (CSAAS)5 evidence. He points out the court’s
observation that A.M.’s testimony had “quite a bit of ambiguity for the Court, evidently
the jury must have found there was some ambiguity because Count 1 went from life
offense to misdemeanors. It’s pretty significant.” Also, defendant emphasizes the jury’s
request for a “complete readback of A.M.’s testimony,” which had “numerous
inconsistencies” regarding the extent of the touching, along with the timing (nine months
after the December 2020 incident) of her mentioning the April 2020 incident and
defendant’s second apology. Thus, he argues that “[h]ad the defense been able to
establish conclusively that A.M. failed to mention the alleged touching on December 25th
5 CSAAS evidence refers to the common reactions of child molestation victims, including delayed reporting. (People v. McAlpin (1991) 53 Cal.3d 1289, 1300.) “[E]xpert testimony on the common reactions of child molestation victims is not admissible to prove that the complaining witness has in fact been sexually abused; it is admissible to rehabilitate such witness’s credibility when the defendant suggests that the child’s conduct after the incident—e.g., a delay in reporting—is inconsistent with his or her testimony claiming molestation.” (Ibid.) The expert testimony is “admissible for the limited purpose of disabusing a jury of misconceptions it might hold about how a child reacts to a molestation.” (People v. Patino (1994) 26 Cal.App.4th 1737, 1744.)
11 when she spoke to [defendant] and the police, and that she failed to mention the April
2020 event at all, that evidence would have cast further doubt on her testimony.” We are
not persuaded.
Hearsay is an out-of-court statement “offered to prove the truth of the matter
stated” and is inadmissible unless authorized by a recognized exception. (Evid. Code,
§ 1200, subds. (a), (b).) An out-of-court statement offered for some other purpose is not
hearsay and may be admitted for that nonhearsay purpose. (People v. Ervine (2009)
47 Cal.4th 745, 775.) Here, the phone recording contains nonhearsay statements because
defendant’s statements to A.M. are admissible under Evidence Code section 1220 as a
hearsay exception for admissions of a party, and A.M.’s statements to defendant are
admissible if they are inconsistent with her trial testimony. (Evid. Code, § 1235.)
Contrary to defendant’s assertion, A.M.’s statements to defendant during the pretext
phone call were not inconsistent with her trial testimony.
A prior statement is inconsistent with in-court testimony if it tends to contradict or
disprove the witness’s testimony, or it tends to contradict any inference or impression one
may reasonably deduce from the testimony. (People v. Cowan (2010) 50 Cal.4th 401,
501-503 [A prior statement is inconsistent with in-court testimony if it tends to contradict
or disprove the witness’s testimony, or it tends to contradict any inference or impression
one may reasonably deduce from the testimony].) During the phone call A.M. told
defendant that she was uncomfortable being around him because of the things he had
said. She never broached the subject of his touching her even though she disclosed the
touching to the deputies. At trial, she acknowledged that (1) she never brought up his
12 recent or past physical touchings during their conversation, and (2) she attributed her
discomfort with being around him only because of the things he had said. Her testimony
did not contradict, nor tend to contradict, her prior statements. Accordingly, we conclude
the trial court did not abuse its discretion in refusing to admit the recording of the pretext
phone conversation as a prior inconsistent statement.
Alternatively, defendant contends the rule of completeness dictates that the entire
conversation should have been admitted. (Evid. Code, § 356.)
Evidence Code section 356, in relevant part, provides: “Where part of an act,
declaration, conversation, or writing is given in evidence by one party, the whole on the
same subject may be inquired into by an adverse party; . . . and when a detached act,
declaration, conversation, or writing is given in evidence, any other act, declaration,
conversation, or writing which is necessary to make it understood may also be given in
evidence.” “The purpose of this section is to prevent the use of selected aspects of a
conversation, act, declaration, or writing, so as to create a misleading impression on the
subjects addressed. [Citation.] Thus, if a party’s oral admissions have been introduced in
evidence, he may show other portions of the same interview or conversation, even if they
are self-serving, which ‘have some bearing upon, or connection with, the admission . . .
in evidence.’” (People v. Arias (1996) 13 Cal.4th 92, 156.)
“A court[, however,] does not abuse its discretion when under Evidence Code
section 356 it refuses to admit statements from a conversation or interrogation to explain
statements made in a previous distinct and separate conversation. [Citation.]” (People v.
Johnson (2010) 183 Cal.App.4th 253, 287; see People v. Williams (2006) 40 Cal.4th 287,
13 319 [within court’s discretion not to admit statements made by defendant in first
interview with detectives to explain statements made in another interview 24 hours
later].)
Here, defendant sought to admit the recording of the telephone conversation
between A.M. and defendant because the jury’s request for this evidence indicates “it was
not able to glean from A.M.’s testimony alone a complete understanding of the events.”
We conclude there was no justification under Evidence Code section 356 for the jury to
hear almost the entirety of her police interview because the prosecution did not use
“selected aspects” from that conversation to create a “misleading impression” of the
remaining subject matter. (People v. Clark (2016) 63 Cal.4th 522, 600 [The purpose of
the rule of completeness is “‘to prevent the use of selected aspects of a conversation, act,
declaration, or writing, so as to create a misleading impression on the subjects
addressed’”].)
Quite simply, the rule of completeness cannot be used as a means to rehabilitate or
impair a witness’s credibility to show the remainder of the witness’s statement was
consistent or inconsistent with his or her testimony. (See People v. Riccardi (2012)
54 Cal.4th 758, 803, overruled on other grounds as stated in People v. Rangel (2016)
62 Cal.4th 1192, 1216 [concluding the rule of completeness did not warrant admission of
an audio recording of the victim’s friend’s two-hour interview with the police when only
selected portions of the recording were necessary to refute the defense’s claim that the
friend’s testimony was fabricated, and when the remaining portion was unnecessary to
the understanding of the otherwise admissible portion].) Instead, the jury was
14 specifically instructed regarding its role in determining the credibility of witnesses and
the weight, if any, to be given to witness testimony. (CALCRIM No. 226.) Here, the
jury was able to judge A.M.’s credibility based on her testimony and defense counsel’s
thorough cross-examination. During closing argument, defense counsel pointed out the
inconsistencies in her testimony.
Even if we assume the trial court erred in excluding the recording of the phone
conversation, we find the error harmless. (People v. Watson (1956) 46 Cal.2d 818, 836.)
As previously discussed, A.M.’s statement that she “fe[lt] uncomfortable being around
[defendant] now after everything [he] said” would not have assisted the jury in
determining her credibility since she never testified otherwise. When defense counsel
questioned her about the statement, she agreed that she told defendant she was upset over
the things he had said but never discussed his recent or past physical touching of her.
During closing argument, defense counsel emphasized her failure to point to defendant’s
inappropriate touching as the cause of her discomfort.6 Thus, any error in refusing to
admit the phone conversation was harmless.
6 “(Jane Doe A. M.) confronts [defendant], and you heard about the phone conversation because we really dissected it with [the investigating deputy].· I was trying to make sure that we understood. One conversation; two conversations.· The first conversation, she feels uncomfortable.· That’s what she said.· It’s not that I left because he did this.· I left because he put his penis in my butthole one time.· I left because he’s been molesting me for years.· Like, that’s not what she’s talking about.· She said, I left because I was uncomfortable. [¶] And then the recorded phone conversation that you heard, between [defendant] and (Jane Doe A. M.)—or you heard reference to it, excuse me.· Again, she’s not saying, I’m mad at you because you put your penis in my butt. I’m mad at you because when I was five, six, or seven, you fingered my vagina.· I’m mad at you.· She didn’t say any of those things in a recorded phone call with her own father. [¶] [footnote continued on next page]
15 B. Multiple Punishment under Section 654.
Defendant argues, and the People concede, the punishment on either count 6 or 7
should have been stayed. We agree.
Defendant was convicted in counts 6 and 7, of lewd and lascivious acts. The trial
court sentenced him to three years in state prison, comprised of concurrent low terms of
three years on each count; count 6 was deemed the principal count. At sentencing,
defense counsel argued the sentence for either count 6 or 7 should be stayed under section
654. In choosing to run the counts concurrently, the court found “this was all part of the
same pattern of aberrant behavior from December 25th. As I’ve already noted, there was
a grabbing of (Jane Doe A.M.)’s arm taking her to his room where he did the touching.
They do not appear to be, in terms of Count 6 and 7, separate and distinct crimes
predominantly independent of each other. It does not appear that [defendant] had the
time to really reflect on touching, let’s say for instance, from grabbing (Jane Doe A.M.)’s
arm to then touching her breast.· It appears to all have happened within moments of each
other.· So they do all appear to be part of the same transaction occurrence, if you will.·
And so I don’t find that there’s separate and distinct crime, therefore, I would run Count 7
concurrent, that would be at the low term as well running concurrent with Count 6.”
You heard her testimony, I’m uncomfortable, um, I’m upset about the things that you said.· That’s what she’s referencing.· Even the comment that happens in the [restaurant]’s parking lot, there’s, like, no—you weren’t offered any real specificity.· Okay?· You weren’t offered any specificity.· Just kind of a, I’ve talked about everything, and then he said he was sorry.”
16 2. Analysis
Section 654, subdivision (a) provides: “An act or omission that is punishable in
different ways by different provisions of law may be punished under either of such
provisions, but in no case shall the act or omission be punished under more than one
provision. An acquittal or conviction and sentence under any one bars a prosecution for
the same act or omission under any other.” In other words, section 654 proscribes
multiple punishment for crimes arising from a single act. (People v. Harrison (1989)
48 Cal.3d 321, 335.) This statutory protection has also been extended to proscribe
punishment for multiple crimes arising from an indivisible course of conduct. (Ibid.)
“‘Errors in the applicability of section 654 are corrected on appeal regardless of whether
the point was raised by objection in the trial court or assigned as error on appeal.’
[Citation.] This is an exception to the general rule that only those claims properly raised
and preserved by the parties are reviewable on appeal. This exception is not required by
the language of section 654, but rather by case law holding that a court acts in excess of
its jurisdiction and imposes an unauthorized sentence when it fails to stay execution of a
sentence under section 654.” (People v. Hester (2000) 22 Cal.4th 290, 295.)
Here, the People concede the trial court found that count 7 was based on the same
transaction or occurrence as his conviction in count 6 (principal count) and imposed a
concurrent sentence for count 7. However, the imposition of a concurrent sentence is
“‘precluded by section 654 [citations] because the defendant is deemed to be subjected to
the term of both sentences although they are served simultaneously.’ [Citation.] Instead,
the accepted ‘procedure is to sentence defendant for each count and stay execution of
17 sentence on certain of the convictions to which section 654 is applicable.’” (People v.
Jones (2012) 54 Cal.4th 350, 353.) Accordingly, the sentence for either count 6 or 7
should be stayed instead of running concurrent as the court did here.
While the People request remand for resentencing to correct this section 654 error,
defendant asks this court to order the trial court to stay the sentence on one count. An
appellate court has the discretion to modify a judgment to stay sentences that should have
been stayed. (See § 1260 [appellate court may reverse, affirm, or modify a judgment, or
may remand for further proceedings “as may be just under the circumstances”].) In
People v. Alford (2010) 180 Cal.App.4th 1463, 1473, the appellate court exercised its
discretion to modify a judgment where a new sentencing hearing would not have changed
the defendant’s actual prison time, and thus the “futility and expense” of remand
“militate[d] against it.” The same reasoning applies here: A new sentencing hearing to
stay the concurrent sentence for one of counts 6 and 7 would consume judicial resources
without changing defendant’s prison time. Accordingly, we will exercise our discretion
to modify the judgment. Since count 6 was deemed the principal count, defendant’s
concurrent sentence for count 7 is stayed.
18 III. DISPOSITION
The concurrent sentence on count 7 is stayed. The trial court is directed to
forward to the Department of Corrections and Rehabilitation a new abstract of judgment
that reflects the above modification. As modified, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER Acting P. J.
We concur:
MILLER J.
RAPHAEL J.