Opinion
C088622
05-18-2020
THE PEOPLE, Plaintiff and Respondent, v. LANCE JAMES LOGAN, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. S18CRF0034)
Appointed counsel for defendant Lance James Logan filed an opening brief that sets forth the facts of the case and asked this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) We ordered supplemental briefing to address a possible sentencing error we discuss post. Having reviewed the record as required by Wende, and concluded that there was no sentencing error, we will affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The People's April 2018 amended information alleged that on or about October 19, 2017, defendant endangered the physical safety of his two young children (Pen. Code, § 273a, subd. (a); counts 1 & 2), and that defendant was under the influence of a controlled substance (heroin), a misdemeanor (Health & Saf. Code, § 11550, subd. (a); count 3)). Defendant pleaded no contest to counts 1 and 2, in exchange for the People's promise "not to argue more than midterm at the sentencing hearing." Count 3 was dismissed. The plea form that defendant signed contained a general waiver of his right to appeal and the prosecutor referenced the provision at the change of plea hearing.
Further undesignated statutory references are to the Penal Code.
The preliminary hearing transcript was identified as the factual basis for defendant's plea. That transcript reflects that defendant consumed narcotics in a hotel room and then passed out, leaving his two young children (ages three and one) to wander around the hotel parking lot.
The trial court denied probation, and sentenced defendant to the middle term of four years on count 1, and a consecutive term of 16 months on count 2 (one-third the midterm), for a total sentence of five years four months in prison. For each count, the court imposed a $300 restitution fine (§ 1202.4, subd. (b)), a $300 suspended parole revocation restitution fine (§ 1202.45), a $40 court operations assessment (§ 1465.8), and a $30 court facilities assessment (Gov. Code, § 70373).
Defendant timely appealed and requested a certificate of probable cause, which the trial court granted.
DISCUSSION
Appointed counsel filed an opening brief that sets forth the facts and procedural history of the case and requested that this court review the record and determine whether there are any arguable issues on appeal. (Wende, supra, 25 Cal.3d 436.) Defendant was advised by counsel of his right to file a supplemental brief within 30 days from the date the opening brief was filed. More than 30 days elapsed, and defendant had not filed a supplemental brief.
In our review of the record, we found a possible sentencing error, and invited briefing from the parties on the question of "[w]hether the sentence on count 2 should be stayed pursuant to Penal Code section 654."
Defendant's appellate waiver does not preclude review of possible postplea error. (See People v. Wright (2019) 31 Cal.App.5th 749, 755 [a nonspecific waiver is a general waiver that does not apply to possible future error that was outside the defendant's contemplation at the time the waiver is made].) --------
In supplemental briefing, appointed counsel argued that the sentence on count 2 must be stayed pursuant to section 654, because count 1 and count 2 "were incident to one objective." Quoting Neal v. State of California (1960) 55 Cal.2d 11, 19 (Neal), defendant argues that "to the extent that leaving both children unattended while he slept was 'incident to one objective,' that is, to spend quiet time in the motel room, [defendant] 'may be punished for any one of such offenses but not for more than one.' "
The People argue the sentence on count 2 should not be stayed pursuant to section 654 because this case "involves multiple violations of the same statute," and in People v. Correa (2012) 54 Cal.4th 331 (Correa), the Supreme Court ruled that section 654 does not bar multiple punishment for multiple violations of the same statute.
We agree with the People, and therefore affirm the judgment.
Section 654, subdivision (a) provides: "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, 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 Neal, "the court added a 'gloss' to section 654 that has been a subject of continuing controversy and given rise to much confusion. . . . [¶] Even though section 654 refers to an 'act or omission,' the Neal court opined that '[f]ew if any crimes . . . are the result of a single physical act.' (Neal, supra, 55 Cal.2d at p. 19.) Accordingly, the relevant question is typically whether a defendant's ' "course of conduct . . . comprised a divisible transaction which could be punished under more than one statute within the meaning of section 654." ' [Citation.] To resolve this question, the Neal court announced the following test: '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. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.' " (Correa, supra, 54 Cal.4th at pp. 335-336.)
In a footnote, "the [Neal] majority remarked: 'Although section 654 does not expressly preclude double punishment when an act gives rise to more than one violation of the same Penal Code section or to multiple violations of the criminal provisions of other codes, it is settled that the basic principle it enunciates precludes double punishment in such cases also. [Citations.]' (Neal, supra, 55 Cal.2d at p. 18, fn. 1, italics added.)" (Correa, supra, 54 Cal.4th at p. 337.)
In Correa, our Supreme Court rejected the proposition announced in the Neal footnote, acknowledging that intermediate appellate courts had faithfully applied it to stay punishment in cases where a defendant was convicted of multiple violations of the same criminal statute. (See Correa, supra, 54 Cal.4th at pp. 343-344 [discussing cases that "expressly relied on" the Neal footnote, and stating, "having reconsidered the Neal footnote, we conclude that section 654 does not bar multiple punishment for violations of the same provision of law"].)
In light of Correa, we agree with the People that defendant's sentence for count 2 need not be stayed pursuant to section 654.
Defendant argues that Correa is distinguishable, because here, defendant "did not separately and with impunity endanger each child with a separate intent and objective to do so," whereas in Correa the court considered application of section 654 as a bar to punishment for multiple violations of a weapons possession statute, which application would have meant "that once a felon had acquired one firearm ' "he may thereafter with impunity" ' acquire as many guns as he wishes, at least as long as he keeps his arsenal in one place and is arrested while possessing all of its contents." (Correa, supra, 54 Cal.4th at pp. 342-343.)
Defendant's argument is unpersuasive, as the court's holding in Correa was clear and directly on point with the instant case, and we are bound to follow it. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 [decisions of the Supreme Court are binding on lower tribunals].) Before a section 654 "intent and objective" inquiry takes place (pursuant to Neal's " 'gloss' ") to determine whether multiple punishments are proper, a threshold question that must be answered is whether defendant's multiple convictions were violations of the same provision. Here, they were.
Because section 654 "does not bar multiple punishment for violations of the same provision of law" (Correa, supra, 54 Cal.4th at p. 344), defendant can be punished for his two child endangerment offenses.
Having undertaken an examination of the entire record pursuant to Wende, we find no errors that would result in a disposition more favorable to defendant.
DISPOSITION
The judgment is affirmed.
KRAUSE, J. We concur: BLEASE, Acting P. J. DUARTE, J.