People v. Louie

NICHOLSON, J., Concurring.

I concur in the opinion, except as to part IVB. As to that part, I concur in the result, but my reasoning differs. In my opinion, Penal Code section 654 prohibits punishment for the substantive street terrorism counts (Pen. Code, § 186.22, subd. (a)) because defendants were already punished for the same gang aspect of the crimes when their sentences were enhanced for committing the crimes for the benefit of a gang (Pen. Code, § 186.22, subd. (b)(4)(C)).¹

Both defendants were punished for the gang enhancement associated with the dissuading a witness crime committed on January 6, 2007, as alleged in count 3 of the information. The gang enhancement turned a determinate term into an indeterminate life term for that crime. (§ 186.22, subd. (b)(4)(C).) (The gang enhancement associated with the arson count was stayed pursuant to § 654.) In addition to that, both defendants were punished for the substantive street terrorism count also committed on January 6, 2007, as alleged in count 4.

Punishment for the gang enhancement and the substantive street terrorism count for the same aspect of the criminal activity violates section 654.² “The purpose of [section 654’s] protection against punishment for more than one violation arising out of an ‘act or omission’ is to insure that a defendant’s punishment will be commensurate with his culpability. (See Neal v. State of California [(1960)] 55 Cal.2d [11,] 20 [9 Cal.Rptr. 607, 357 P.2d 839].) ‘Because of the many differing circumstances wherein criminal conduct involving multiple violations may be deemed to arise out of an “act or omission,” there can be no universal construction which directs the proper application of section 654 in every instance.’ [Citations.]” (People v. Perez (1979) 23 Cal.3d 545, 550-551 [153 Cal.Rptr. 40, 591 P.2d 63].)

I believe, therefore, that the determination of whether a defendant can be punished for two crimes or, on the other hand, must be punished for only one of them rests on the simple question of whether punishing the defendant for just one of those crimes “insure[s] that [the] defendant’s punishment will be commensurate with his culpability.” (People v. Perez, supra, 23 Cal.3d at p. 551; see also People v. Nunes (2011) 200 Cal.App.4th 587, 608-609 [132 Cal.Rptr.3d 764] (cone. opn. of Nicholson, J.).)

Punishment for dissuading a witness, enhanced considerably to an indeterminate life term because of the gang enhancement, provides punishment commensurate with defendants’ culpability, including the gang aspect of that culpability. Adding to that term additional punishment for the substantive street terrorism counts goes beyond defendants’ culpability because the street terrorism counts were based on the same gang activity used to enhance the punishment for dissuading a witness.

This is a problem that was overlooked in People v. Herrera (1999) 70 Cal.App.4th 1456 [83 Cal.Rptr.2d 307] (Herrera), in which, like this case, the defendant was punished separately for both the gang enhancement and the street terrorism count. In Herrera, the trial court sentenced the defendant on one of the attempted murder counts to a life term plus an additional determinate term for a gang enhancement (§ 186.22, subd. (b)(1)). The court also sentenced the defendant to a concurrent term for a violation of the substantive street terrorism crime (§ 186.22, subd. (a)). (Herrera, supra, at p. 1462.) On appeal, the Herrera court struck the determinate gang enhancement because it was not authorized for an indeterminate term. However, it directed the trial court to modify the abstract of judgment “to reflect that he cannot be considered for parole for a minimum of fifteen years under section 186.22, subdivision (b)(4),” as punishment for the gang enhancement. (Id. at p. 1465.) Then, without recognizing that the defendant had already been punished for the gang aspect of the crime when the minimum term was applied to the punishment for attempted murder pursuant to section 186.22, subdivision (b)(4), the court additionally allowed the term for the street terrorism count to stand unstayed because the attempted murder and the substantive street terrorism count involved separate intents and objectives.

Therefore, I would not follow Herrera here because it did not consider the double punishment problem that I believe is critical to the section 654 determination both in that case and here. On the facts of this case, involving punishment for both a gang enhancement and a street terrorism count, as to each defendant, based on the same aspect of the criminal activity, I agree that we must modify the sentence with a section 654 stay on the substantive street terrorism counts.

Hoch, L, concurred.

The petitions of all appellants for review by the Supreme Court were denied May 9, 2012, S200371.

1 Further references to an unidentified section are to the Penal Code.

2 Consistent with the Supreme Court’s recent decision in People v. Ahmed (2011) 53 Cal.4th 156 [133 Cal.Rptr.3d 856, 264 P.3d 822], we refer to the gang activity as an “aspect” of the criminal conduct.