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December 1, 2010


APPEAL from an order of the Superior Court of Butte County, Thomas W. Kelly, Judge. Affirmed.


This case deals with the vexing issue of when one physical act can constitute multiple criminal "acts" for purposes of Penal Code*fn1 section 654.

A jury found defendant Angelo Atencio, Jr., guilty of two felonies -- grand theft of a firearm and firearm possession by a felon. The trial court found defendant had a prior serious felony conviction and a prior strike and had served a prior prison sentence. The court sentenced defendant to an aggregate prison term of 12 years 4 months. On appeal, defendant contends his sentence for the unlawful firearm possession conviction must be stayed pursuant to section 654 because his two offenses were incidental to only "one criminal intent and objective, namely to possess the [firearm]." In the alternative, he argues the trial court abused its discretion by imposing consecutive sentences after finding that his two offenses were predominantly independent of one another. We disagree and affirm the judgment.


On May 6, 2009, Vanessa Trew went to the house of her mother, Debra Trew, to clean for money.*fn2 Defendant joined Vanessa at the house. After looking around, defendant brought a lockbox and small caliber handgun to Vanessa, which she told him to put back.

Vanessa called Jason Duensing and asked him to pick her and defendant up from Debra's house. Around noon, Vanessa and defendant loaded three or four garbage bags, a box, a duffel bag, and a lamp into the back of Duensing's truck. Vanessa asked Duensing to take defendant to her apartment and to return for her in about an hour. After unloading all the items at Vanessa's apartment, except the duffel bag, which defendant kept in his possession, defendant asked Duensing to drive him to Thermalito. Duensing dropped defendant off at an intersection and returned to Debra's house to pick up Vanessa. Later that afternoon, Debra's husband, John Kuhn, found five guns missing from the unlocked gun safe, including a .45-caliber semiautomatic pistol.

The next day, defendant called Shannon McCraney "wanting to sell [her] some jewelry or something." Before noon, defendant stopped by McCraney's home carrying a plastic bag. McCraney saw jewelry and a handgun in the bag and asked defendant why he had a gun in her home. Defendant responded that the gun was not loaded. Approximately 10 minutes later, "cops surround[ed] [the] house," and McCraney left the home. Defendant hid behind the couch and remained in the home for approximately four and one-half hours before being taken into custody.

On May 8, 2009, the Butte County Sheriff's Department searched McCraney's home and found a loaded semiautomatic .45-caliber AMT firearm among other items in the stove's broiler pan. Kuhn identified the gun as his, and the serial number confirmed his ownership.

Defendant was charged with grand theft of a firearm, receiving stolen property, and firearm possession by a felon. All charges pertained to the same firearm, Kuhn's .45-caliber gun.

The trial court instructed the jury that defendant could not be found guilty on both the grand theft and receipt of the stolen property charges. The court explained that the unlawful firearm possession charge was "independent of that instruction" because "[i]t's legally possible to steal something or receive it, and then be a felon in possession of it." The jury found defendant guilty of grand theft (finding that defendant acted with the "intent to permanently deprive a person of property") and firearm possession by a felon. The trial court found defendant had served a prior prison term, had a prior serious felony conviction, and had a prior strike. After finding the "two crimes and their objectives were predominantly independent of each other," the court imposed consecutive sentences and sentenced defendant to the upper term of six years for the grand theft of a firearm and one-third of the middle term (16 months) for the unlawful firearm possession. In accordance with the three strikes law, the court further imposed a five-year enhancement for defendant's prior serious felony and a stayed one-year enhancement for his prior prison term. Defendant filed a timely notice of appeal.


I Standard Of Review Whether section 654 applies to the facts in a given case is one of fact for the trial court to decide, and such findings will be upheld on appeal if there is any substantial evidence to support them. (People v. Akins (1997) 56 Cal.App.4th 331, 339, citing People v. Liu (1996) 46 Cal.App.4th 1119, 1135-1136.) We review the trial court's findings "'in a light most favorable to the respondent and presume in support of the [sentencing] order the existence of every fact the trier could reasonably deduce from the evidence.'" (People v. Green (1996) 50 Cal.App.4th 1076, 1085, quoting People v. Holly (1976) 62 Cal.App.3d 797, 803.)
II Section 654: The Statute And The Judicial Interpretation Section 654, subdivision (a), provides in relevant part that "[a]n 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." "Notwithstanding the apparent simplicity of [section 654's] language," the statute has proven difficult to apply. (In re Adams (1975) 14 Cal.3d 629, 633.) At its simplest, "section 654 proscribes double punishment for multiple violations of the Penal Code based on the 'same act or omission.'" (People v. Siko (1988) 45 Cal.3d 820, 822.) "The 'singleness of the act,' however, is [not] the sole test of the applicability of section 654." (People v. Beamon (1973) 8 Cal.3d 625, 637.) Our Supreme Court's decisions "have engrafted onto section 654 a judicial gloss interpreting 'same act or omission' to include multiple violations committed in an 'indivisible' or 'single transaction.'" (Siko, at p. 822.) This judicial gloss was introduced in Neal v. State of California (1960) 55 Cal.2d 11. In Neal, the defendant was convicted on two counts of attempted murder and one count of arson after he threw gasoline into his victims' bedroom and ignited it. (Id. at p. 15.) Our Supreme Court established the following rule: "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." (Id. at p. 19.) Applying this rule, the court found "the arson was the means of perpetrating the crime of attempted murder" and that "the arson was merely incidental to the primary objective of killing" the victims. (Id. at p. 20.) Therefore, the defendant could be punished only for attempted murder, the more serious crime. (Id. at p. 19.)
Conversely, if a defendant "entertained multiple criminal objectives which were independent of and not merely incidental to each other, he may be punished for independent violations committed in pursuit of each objective even though the violations shared common acts or were parts of an otherwise indivisible course of conduct." (People v. Beamon, supra, 8 Cal.3d at p. 639.) In other words, "what may appear on the surface to be a single act may embody separately punishable violations." (Id. at p. 638.) The Neal formulation was criticized from the beginning. (See Neal v. State of California, supra, 55 Cal.2d at pp. 25-26. (dis. opn. of Schauer, J.).) In a subsequent attack on Neal, our Supreme Court explained that the Neal test defeats the purpose of section 654, which is to provide punishment commensurate with criminal liability, in some circumstances. (People v. Latimer (1993) 5 Cal.4th 1203, 1211.) The Latimer court indicated that, if faced with the issue for the first time, it might "adopt a rule that is truer to the language of section 654 and its purpose," but declined to overrule Neal on stare decisis grounds due to the long-standing judicial and legislative reliance on the rule. (Id. at pp. 1212-1216.) The court endorsed subsequent limitations on the Neal rule's application as more consistent with the purpose of section 654. (Latimer, at pp. 1211-1212.) For example, multiple punishment will not be prohibited if, under the particular circumstances of the case, it appears the defendant acted pursuant to similar but consecutive objectives, if the defendant harbored separate, although simultaneous, criminal objectives, or if the defendant committed crimes of violence against multiple victims. (Ibid.) "Because of the many differing circumstances wherein ...

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