Opinion
G062422
04-23-2024
THE PEOPLE, Plaintiff and Respondent, v. RICHARD HUSTON BROWNING, Defendant and Appellant.
Nicholas Seymour, 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, A. Natasha Cortina, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, Super. Ct. No. 17WF2793 Cheri T. Pham, Judge. Affirmed with directions.
Nicholas Seymour, 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, A. Natasha Cortina, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
SANCHEZ, ACTING P. J.
Defendant Richard Browning was charged with kidnapping to commit a sex offense (Pen. Code § 209, subd. (b)(1); count 1); forcible rape (§ 261, subd. (a)(2); count 2); forcible oral copulation (§ 288a, subd. (c)(2)(A); count 3); first degree residential burglary of an inhabited dwelling (§§ 459, 460, subd. (a); count 4); and misdemeanor domestic violence battery (§ 243, subd. (e)(1); count 5). A jury found defendant guilty on all counts except for count 1, in which the jury found him guilty of the lesser included offense of kidnapping. (§ 207, subd. (a).)
All statutory references are to the Penal Code.
Both parties agree that the court erred in sentencing Browning. It imposed a total of eight years imprisonment. As to count 3, the court imposed the midterm of six years, and imposed a consecutive one-third midterm sentence of two years in count 2. So far so good. But here is the error: as to kidnapping and burglary (counts 1 &4), the court imposed a midterm sentence for each and ordered they be served concurrently. The parties agree that the court needed to stay the sentence on one of the two counts pursuant to section 654. We agree and will remand for resentencing.
Under section 654, subdivision (a), "[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." Thus, the statute prohibits a court from imposing multiple punishments where "a course of conduct . . . violates more than one statute but nevertheless constitutes an indivisible transaction." (People v. Hairston (2009) 174 Cal.App.4th 231, 240.) If a defendant commits more than one offense, but "'all the offenses were incident to one objective, the defendant may be punished for any one of such offense, but not for more than one.'" (People v. Wynn (2010) 184 Cal.App.4th 1210, 1214-1215.)
When a crime is the object of a simultaneously charged burglary, the two offenses are indivisible and section 654 bars multiple punishment. (See People v. Hester (2000) 22 Cal.4th 290, 294 [burglary and assault]; People v. Le (2006) 136 Cal.App.4th 925, 930-931 [robbery and burglary].) "Section 654 does not allow any multiple punishment, including either concurrent or consecutive sentences." (People v. Deloza (1998) 18 Cal.4th 585, 592.)
The record establishes that kidnapping was the object of the burglary. The jury was instructed in order to find defendant guilty of burglary, "the People must prove that" when defendant "entered the building, he intended to commit [k]idnapping." It is thus clear that the jury's finding of guilt on the burglary count entailed a finding that the object of the burglary was kidnapping. Section 654 bars multiple punishment in such a scenario.
Under section 654, the court has discretion in choosing which sentence to stay. (People v. Renteria (2023) 96 Cal.App.5th 1276, 1283.) Because the court has not exercised that discretion, remand is necessary for the court to do so in the first instance.
DISPOSITION
The matter is remanded with instructions to strike the sentence on counts 1 and 4 and to resentence defendant on those counts in a manner consistent with the views expressed in this opinion. Following resentencing, the trial court is directed to prepare an amended abstract of judgment and forward a certified copy to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
WE CONCUR: DELANEY, J. GOODING, J.