F 17.02

F 17.02 n1 Multiple Counts: Multiple Victims

F 17.02 n2 Multiple Counts: Violation Of Child Custody Order (PC 278.5).

By absconding with his three children, the defendant violated three separate court orders and hence was subject to three separate convictions under PC 278.5. (People v. McCoy (92) 9 CA4th 1578, 1582-83 [12 CR2d 476].)

F 17.02 n3 Multiple Counts: Multiple Takings As Constituting Single Or Multiple Theft Or Robbery Offenses.

In the case of multiple takings in theft and robbery situations the permissibility of multiple conviction turns on one, the number of victims and, two, the divisibility of the takings. When a defendant steals multiple items during the course of an indivisible transaction involving a single victim, he commits only one robbery or theft notwithstanding the number of items he steals. (People v. Brito (91) 232 CA3d 316, 326, fn 8 [283 CR 441]; see also People v. Ortega (98) 19 C4th 686, 699 [80 CR2d 489] [when a defendant steals multiple items during the course of an indivisible transaction from the same victim, he commits only one robbery or theft notwithstanding the number of items taken]; People v. Bauer (69) 1 C3d 368, 376-78 [82 CR 357]; People v. Rush (93) 16 CA4th 20, 25 [20 CR2d 15] [“a defendant who steals various items by force or fear, in a continuing transaction, commits but one offense and the loot may not be splintered into separate counts of theft for purposes of multiple conviction”]; People v. Church (89) 215 CA3d 1151, 1157-59 [264 CR 49].) “To hold otherwise would violate the hoary single larceny doctrine which has long been followed in the majority of cases wherein the issue of single or multiple larcenies has arisen, or has been discussed. [Citation.] This doctrine provides that when property properly belonging to different persons is taken at the same time and place, only one larceny will lie for the taking. [Citation]. Of the jurisdictions which at one time held to the contrary, all but one have subsequently abandoned that position in favor of the single larceny doctrine. [Citation.] It is a doctrine implicitly recognized in analogous holdings in this state.” (People v. Marquez (2000) 78 CA4th 1302, 1308-09 [93 CR2d 758].)

If there are multiple victims and the crime is violent (e.g., robbery, multiple convictions are permissible. (People v. Bauer 1 C3d at 378; see also People v. Pinholster (92) 1 C4th 865, 970 [4 CR2d 765].) However, there is a split in authority as to whether multiple convictions are permissible for non violent taking from multiple victims. (See People v. Garcia (90) 224 CA3d 297, 307-09 [273 CR 666]; see also People v. Irvin (91) 230 CA3d 180, 183-86 [281 CR 195] [taking of victim’s vehicle and personal property supports only a single robbery conviction, not robbery and auto theft].) The Irvin analysis also applies if the defendant is charged with two robberies based on the taking of the vehicle and the victim’s personal property. [An unpublished opinion on this issue is available to FORECITE subscribers, ask for Opinion Bank # 0-223. As to whether this the same analysis would also apply if carjacking and robbery are charged, see FORECITE F 17.02 n11.

RESEARCH NOTES: See Annotation, Single or separate larceny predicated upon stealing property from different owners at the same time, 37 ALR3d 1407 and Later Case Service.

F 17.02 n4 Multiple Counts: Multiple Possessions.

Absent specific legislative intent to the contrary, the propriety of multiple convictions for possession of more than one item of contraband turns upon whether separate statutes or statutory subdivisions were violated. For example, the defendant may only be convicted of one offense of illegal possession of concealable firearms (PC 12021) even though at the time of his arrest he possessed several weapons. (See FORECITE F 17.01 n6 re: juror unanimity when there are multiple possessions which are not multiply charged. See e.g., People v. Harris (77) 71 CA3d 959, 969-71 [139 CR 778] [multiple convictions impermissible for simultaneous possession of various articles described in PC 537e] and People v. Puppilo (29) 100 CA 559, 562-66 [280 P 545]; see also U.S. v. Horodner (9th Cir. 1993) 993 F2d 191, 193-94 [possession of the same shotgun twice in 10 days — once when purchased and once when picked up from a repair shop — constituted only a single offense]; People v. Schroeder (68) 264 CA2d 217, 227-28 [70 CR 491] [defendant cannot be multiply convicted of simultaneous possession of a substance or its derivatives proscribed in only one of the subdivisions of the HS Code]; but see People v. Spirlin (2000) 81 CA4th 119, 130-31 [97 CR2d 1] [where evidence shows that ex-felon used a handgun on three different occasions and had continuous constructive possession of the gun the entire time, defendant may be convicted of three counts of violating PC 12021 but two counts must be stayed pursuant to PC 654].) However, where the possession of items of contraband is proscribed by different statutes it has been held permissible to convict of two offenses. (People v. Winchell (67) 248 CA2d 580, 587 [56 CR 782] [possession of burglar tools in violation of PC 466 and possession of concealable firearms under PC 12021]; see also Schroeder 264 CA2d at 227-28 [separate convictions permissible for possession of contraband prohibited by different subdivisions of the statute].)

However, effective 1/1/96 the legislature per PC 12020(k) and PC 12020(l) specifically permitted multiple convictions under the same statute for multiple possessions of firearms and weapons charged under PC 12020, PC 12021, PC 12021.1, PC 12025, PC 12070, PC 12072, PC 12073, PC 12078, PC 12101, WI 8100, WI 8101 and WI 8103 thus overruling People v. Kirk (89) 211 CA3d 58, 60-65 [259 CR 44]. (See also People v. Monarrez (98) 66 CA4th 710 [78 CR2d 247] [pursuant to PC 654 analysis simultaneous possession of different controlled substances permits separate punishment for each substance].)

F 17.02 n5 Multiple Counts: Multiple Entries Vis à Vis Burglary.

Entry of several rooms in a single structure constitutes a single burglary unless each room constituted a separate, individual dwelling space. (See FORECITE F 14.50 n4.)

People v. Washington (96) 50 CA4th 568, 578-79 [57 CR2d 774] held that each separate entry into a structure supports a separate conviction as long as there is the requisite intent (i.e., to commit a felony; see also People v. Elsey (2000) 81 CA4th 948, 963 [97 CR2d 269] [entry into main office and classrooms constitutes separate burglaries where classrooms and office are separately secured and largely located in separate buildings].)

F 17.02 n6 Multiple Counts: Forgery.

Multiple convictions permissible. (People v. Neder (71) 16 CA3d 846, 852-53 [94 CR 364].)

F 17.02 n7 Multiple Counts: Receiving Stolen Property.

Receipt on a single occasion of multiple items of property stolen from different victims constitutes a single offense unless there is evidence that the goods were not received at the same time or in the same transaction. (People v. Bullwinkle (1980) 105 CA3d 82, 92.)

F 17.02 n8 Multiple Counts: Medi-Cal Fraud. (WI 14107)

Multiple convictions possible. (People v. Gregory (90) 217 CA3d 665, 669-72 [266 CR 527].)

F 17.02 n9 Multiple Counts: Sale and Transportation.

Even when the defendant’s activities are directed to the single goal of selling drugs, conviction for both sale and transportation of the drugs is permissible. (People v. Orbe (94) 29 CA4th 1532, 1540-41 [35 CR2d 339].) However, PC 654 precludes double punishment under such circumstances. (Ibid.)

F 17.02 n10 No Multiple Convictions For Simultaneous Possession Of Multiple Weapons.

See U.S. v. Cappas (7th Cir. 1994) 29 F3d 1187 [multiple weapon convictions based on a single occurrence impermissible because defendant would receive multiple punishment for committing the same offense]; see also People v. Rowland (99) 75 CA4th 61 [88 CR2d 900] [prison inmate who possessed three sharpened sticks simultaneously could only properly be convicted of one count of possessing a dirk or dagger per PC 4502(a)]; People v. Kirk (89) 211 CA3d 58, 65 [259 CR 44]; but see FORECITE F 17.02 n4 [Kirk overruled by statute as to various Penal Code and Welfare and Institutions Code sections].)

F 17.02 n11 Multiple Counts: Robbery/Carjacking — Multiple Victims Or Takings.

Multiple convictions for carjacking are permissible if a single car is taken from the presence of multiple victims. (People v. Hamilton (95) 40 CA4th 1137 [47 CR2d 343].)

If both robbery and carjacking are charged based on a single course of conduct, the reasoning of People v. Irvin (91) 230 CA3d 180, 183-86 [218 CR 195] would require that only one conviction could be returned. (See also FORECITE F 17.02 n3.) However, People v. Green (96) 50 CA4th 1076 [58 CR2d 259] held that conviction of both carjacking and robbery is proper because carjacking is not a lesser included offense of robbery. The Green decision was based on its interpretation of People v. Dominguez (95) 38 CA4th 410, 419 [45 CR2d 153], which held that carjacking involves an element “unlawful driving” which is not included within robbery. (Green 50 CA4th at 1084.) However, this analysis was contradicted by the decision in People v. Montero DEPUBLISHED (96) 48 CA4th 1524, 1532-33 [56 CR2d 303] which held that carjacking merely requires the defendant to secure dominion and control over the vehicle. In this sense, it is difficult to logically reconcile Irvin’s conclusion that vehicle theft is a lesser included of robbery with Green’s conclusion that securing dominion and control over a vehicle is not.

F 17.02 n12 Aggregation Of Multiple Misdemeanor Violations.

People v. Bailey (61) 55 C2d 514, 546 [11 CR 543] allowed a felony grand theft conviction based on several instances of misdemeanor petty theft committed by the defendant against the same victim. However, since Bailey, the courts have not extended this doctrine beyond theft prosecutions. (See People v. Drake (96) 42 CA4th 592, 597 [49 CR2d 765] [declining to extend Bailey to forgery prosecution]; see also People v. Woods (86) 177 CA3d 327 331-32 [222 CR 868].) Accordingly, the Bailey doctrine should not be available to aggregate numerous misdemeanor graffiti offenses per PC 594(b)(2) into a single felony charge. (See In re David D. (97) 52 CA4th 304 [69 CR2d 552].)

F 17.02 n13 Kidnapping: Convictions For Both Simple And Aggravated Kidnapping Not Permissible For The Same Course Of Conduct.

In People v. Jackson (98) 66 CA4th 182 [77 CR2d 564] the court followed People v. Thomas (94) 26 CA4th 1328 [32 CR2d 177] and held that a kidnapping cannot be divided into separate acts resulting in multiple convictions when there is a single abduction followed by a continuous period of detention.

F 17.02 n14 Multiple Counts: Whether Single Act Intentionally Directed Toward One Victim Can Constitute Multiple Counts Of Attempted Murder.

See People v. Smith (2005) 37 C4th 733 [firing single shot at two victims permitted inference of intent to kill both victims; “kill zone” instruction not required]; compare People v. Bland (2002) 28 C4th 313, 326-331[unless the defendant specifically intended to kill the second victim, or if the second victim was in the “killing zone,” the defendant may not be convicted of attempting to murder the second victim based solely on the intent to kill the first victim].

See also FORECITE F 14.50 n4.

F 17.02 n19 Conviction Permissible For Both Attempted Manslaughter And Assault For Same Act.

(See People v. Ortega (2000) 84 CA4th 659 [101 CR2d 253].)

F 17.02 n20 Multiple Convictions: Brandishing At More Than One Person.

(See People v. Hall (2000) 83 CA4th 1084 [100 CR2d 279] [brandishing a firearm at more than one police officer does not permit multiple sentences].)

F 17.02 n21 IAC For Failure To Request Instruction That Charges Must Be Considered Separately.

[See Brief Bank # B-883 for briefing on this issue.]

F 17.02 n22 Multiple Counts: Continuous Sexual Abuse And Individual Sexual Offenses — PC 288.5 Precludes Convictions On Both Continuous Sexual Abuse Charge And Individual Sexual Offenses.

PC 288.5(c) clearly mandates the charging of continuous sexual abuse and specific sexual offenses, pertaining to the same victim over the same period of time, only in the alternative. (People v. Johnson (2002) 28 C4th 240, 248 [121 CR2d 197].) Therefore, the prosecution may not obtain multiple convictions for both a PC 288.5 violation and the discrete sexual offenses.

(See FORECITE F 10.42.6 n9.)

F 17.02 n23 Multiple Counts: Arson — Individual Apartments Damaged By Fire Are Not Separate Structures Per PC 451.5(a)(3).

See People v. Muszynski (2002) 100 CA4th 672, 683 [122 CR2d 764].

F 17.02 n24 Evading A Peace Officer: Multiple Counts Improperly Based On Multiple Police Cars In The Chase.

(See FORECITE F 12.85 n6.)

F 17.02 n25 Failure To Register (PC 290): Single Prosecution Required For PC 290 Violations Based On Single Act Of Relocating.

A person who moves once from one county to another in California without notifying authorities in either county may be prosecuted and punished only once, even though technically he violated two subsections of the statute. (PC 290(a) and (f).) If the prosecution knows or should know of both offenses, he may be prosecuted only once under Kellett v. Superior Court (66) 63 C2d 822. (People v. Britt (2004) 32 C4th 944.)

F 17.02 n26 Multiple Crimes From A Single Occasion: Predicate Crimes For Gang Enhancement (PC 186.22(b)).

People v. Zermeno held that the two predicate crimes necessary for a PC 186.22(b) gang enhancement cannot be found from the commission of a single crime done by two gang members. People v. Vo REV GTD/REMANDED/DEPUB (2005) 128 CA4th 733, held that the gang enhancement (PC 186.22(b)) requires proof that two or more predicate offenses were committed on two or more persons. Two different perpetrators are not required.

F 17.02 n27 Propriety Of Multiple GBI Enhancements For Single Count Alleging Two Victims.

(See FORECITE F 17.20 n11.)

F 17.02 n28 Multiple Counts: Kidnapping For Robbery And Kidnapping For Carjacking (PC 209.5; PC 209).

Multiple convictions based on the same conduct are generally permitted when the conduct violates more than one statute. (See generally People v. Palacios (2007) 41 C4th 720 [defendant convicted of kidnapping for robbery (PC 209) and kidnapping for carjacking (PC 215)].)

F 17.02a

Series Of Wrongful Taking Acts May

Constitute Only A Single Offense

*Add the following to CJ 17.02 when appropriate:

A series of wrongful acts may constitute a single offense.

When those acts are committed pursuant to one general intent or impulse and one plan, the acts constitute a single offense.

If you find the acts of the defendant to be wrongful and if you find that those acts were committed pursuant to one general intent or impulse and one plan, then you may find that the acts constitute a single offense.

Points and Authorities

In People v. Sullivan (78) 80 CA3d 16 [145 CR 313], the defendant was convicted of 12 counts of grand theft arising from the disposition of proceeds from the sale of a home. Defendant maintained that each offense was committed against the same victims pursuant to one criminal intent or one plan and, therefore, she could be properly convicted of only violation. To support this theory, defendant requested that instruction set forth above. The trial court denied defendant’s request. She appealed, contending reversal was required due to instructional error. The Court of Appeal agreed, referring to People v. Bailey (61) 55 C2d 514, 518-20 [11 CR 543].

In Bailey, the Supreme Court held that whether a series of wrongful acts constitutes a single offense or multiple offenses depends upon the facts of each case. A defendant may be properly convicted upon separate counts charging grand theft from the same person if the evidence shows the offenses were separate and distinct and were not committed pursuant to one intention, one general impulse, and one plan. The evidence in Sullivan did not compel the conclusion that only one offense was involved in the takings alleged in the information. However, substantial evidence did exist to this effect. Therefore, the trial court erred in failing to give the instruction requested by the defendant. That instruction would have permitted the jury to pass upon the question of whether the acts were committed pursuant to one general intent or impulse and one plan.

The Sullivan/Bailey rule applies in theft and embezzlement cases. (Bailey 55 C2d at 519; see also In re David D. (97) 52 CA4th 304 [69 CR2d 552] [Bailey doctrine should not be extended to allow a prosecutor to aggregate numerous misdemeanor graffiti offenses committed against multiple victims into one felony charge].)

[For briefing on this issue, see Brief Bank # B-969.]

NOTES

There is a split in authority as to whether a non-violent taking from multiple victims pursuant to an indivisible transaction is a single offense or multiple offenses. (See FORECITE F 17.02 n3.)

If force or fear is applied to two victims in joint possession of property, two convictions of robbery are proper. (People v. Ramos (82) 30 C3d 553, 589 [180 CR 266]; People v. Clay (84) 153 CA3d 433, 459 [200 CR 269].)

F 17.02b

Multiple Defendants, Multiple Counts: Jury Must Find On Each

*When the charges involve multiple defendants and multiple counts, the following instruction should be given (CJ 17.02 addresses multiple counts with one defendant):

As you know, _____ defendants are on trial here: __________ [name them]. Because some of the charges in this case have been made against some of the defendants and not against others, I want to tell you once again which individuals were charged with which crimes: __________ [e.g.: Ralph Rich has been charged with conspiracy and possession, Patty Poor has been charged with conspiracy and distribution]. You are required to give separate consideration to the evidence against and in behalf of each individual defendant. Each defendant is entitled to your separate consideration. Do not think of the defendants as a group. I also remind you that you must consider separately each crime charged against each individual defendant.

Points and Authorities

CALJIC contains no instruction specifically designed for use in a case involving multiple counts and multiple defendants. (See CJ 17.00 — multiple defendants and CJ 17.02 — several counts, single defendant.) The above proposed instruction (adapted from Fed. Jud. Ctr., Pattern Crim. Jury Instructions (1988), Instr. #46, Alternative B and C, p. 56.) addresses the situation not covered by the CALJIC instructions.

Jury consideration of improper matters lessens the prosecution’s burden of proof in violation of the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury and due process. [See generally, FORECITE PG VII(C).]

[See also FORECITE F 17.00a.]

F 17.02c

Separate Determination of Enhancement Allegation as to Each Count

*Add to CJ 17.02:

The allegation that the defendant __________ is charged in connection with Counts _____, _____, and _____. You must determine the truth of this allegation separately with regard to each count on which you return a conviction. The allegation may be found true or not true with respect to [any or all] [either or both] counts on which you return a conviction. Thus even if you find that the defendant __________ at some point during an incident or series of incidents, you must still determine the truth of that allegation on a count by count basis. You may only find that allegation true with regard to a particular count if you are convinced beyond a reasonable doubt that the defendant __________ in the commission of the specific offense charged in that count.

Points and Authorities

People v. Funtanilla (91) 1 CA4th 326, 333 [1 CR2d 875].

F 17.02d

Multiple Sex Acts Violating The Same Statute:

Each Act Must Be Preceded by Separate, Intervening Act of Force

*Add to CJ 17.02:

In the crime of _____________[insert offense–e.g., rape] a necessary element is ____________[insert appropriate element–e.g., penetration of the alleged victim’s vagina with the defendant’s penis] . To sustain multiple convictions of ____________ based on multiple _____________ [e.g., penetrations] committed in short succession against a single alleged victim the jury must unanimously agree beyond a reasonable doubt that:

1. As to each separate count all elements of the offense as stated in these instructions have been proven beyond a reasonable doubt; and

2. Each separate count is based on a separate act of nonconsensual ____________ [e.g., penetration]; and

3. Each separate act of nonconsensual _________________ was preceded and accomplished by a separate, intervening act of force which was committed against the victim after the preceding act of _____________ [eg., penetration].

If from all the evidence you have a reasonable doubt as to whether any of the elements of ___________ were proven as to any separate count, including the requirement that each separate count be preceded and accomplished by a separate, intervening act of force, you must give the defendant the benefit of the doubt and find him not guilty of the separate count.

Points and Authorities

It has been held that multiple sex offense convictions for different statutory violations may be returned based on multiple acts occurring during a short, continuous course of conduct against a single victim. (See People v. Harrison (89) 48 C3d 321, 330-31 [256 CR 401] and cases cited therein. Multiple convictions and sentences are justified in such a situation based upon the rationale that each statutory violation represents a separate “criminal objective.” (See Harrison, 48 C3d at 335; see also People v. Perez (79) 23 C3d 545, 551-52 [153 CR 40].)

However, a different issue is presented when the multiple acts violate a single statute and, thus, do not evince separate criminal objectives. Harrison resolved this issue by holding that separate convictions are permissible based on multiple penetrations provided “that each penetration was accomplished with the statutorily prescribed intent; that the required degree of force or fear preceded, and was used to accomplish, each penetration….” [original emphasis] (Harrison 48 C3d at 329.) For example, in Harrison each successive penetration was preceded by an intervening act of force which enabled the penetration to be accomplished. This intervening act of force was identified by the Court as an essential element which allowed each count to stand on its own as a separate statutory violation. “We hold that each of the digital penetrations committed in the course of defendant’s assault upon [the victim], and highlighted by intervening acts of force, constituted a separate violation of [PC 289(a)].” (Harrison, 48 C3d at 334.)

Accordingly, the jury should be instructed to make it clear that all necessary elements must be proven as to each separate count including that each separate count be preceded by an intervening act of force.

The defendant has the right to “‘direct attention to evidence from … which a reasonable doubt could be engendered.’ [Citation].” (People v. Hall (80) 28 C3d 143, 159 [167 CR 844]; People v. Sears (70) 2 C3d 180, 190 [84 CR 711].) Hence, the defendant may obtain a pinpoint instruction which relates “his [evidentiary theory] to an element of the offense.” (People v. Saille (91) 54 C3d 1103, 1120 [2 CR2d 364]; see also, People v. Wharton (91) 53 C3d 522, 570 [280 CR 631]; People v. Wright (88) 45 C3d 1126, 1136-37 [248 CR 600] [pinpoint instruction proper if it is predicated upon defendant’s theory].)

Failure to adequately instruct the jury upon matters relating to proof of any element of the charge and/or the prosecution’s burden of proof thereon violates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury and due process. [See generally, FORECITE PG VII(C).]

F 17.02e

Separate Consideration Of Multiple Counts: Alternative Instruction

*Replace 2nd sentence of CJ 17.01 with the following:

Evidence applicable to each offense charged must be considered as if it were the only accusation before the jury.

Points and Authorities

In People v. Catlin (2001) 26 C4th 81, 153 [109 CR2d 31] the California Supreme Court suggested that this instruction and CJ 17.02 serve the same purpose. Hence, it would not be proper to give the above instruction instead of CJ 17.02.