SERIES 3500 POST-TRIAL: CONCLUDING
F 3515.2 NOTES
TABLE OF CONTENTS
F 3515.2 Note 1 Multiple Counts: Multiple Takings
F 3515.2 Note 2 Multiple Counts: Multiple Possessions
F 3515.2 Note 3 Multiple Counts: Multiple Victims
F 3515.2 Note 4 Multiple Counts: Multiple Entries
F 3515.2 Note 5 Multiple Counts: Receipt Of Multiple Items
F 3515.2 Note 6 Failure To Register (PC 290): Single Prosecution Required For PC 290 Violations Based On Single Act Of Relocating
F 3515.2 Note 7 Aggregation Of Multiple Misdemeanor Violations
F 3515.2 Note 8 Multiple Counts: Sale And Transportation
F 3515.2 Note 9 Multiple Counts: Kidnapping For Robbery And Kidnapping For Carjacking (PC 209.5; PC 209)
F 3515.2 Note 10 Multiple Counts: Arson—Individual Apartments Damaged By Fire Are Not Separate Structures Per PC 451.5(a)(3)
F 3515.2 Note 11 Evading A Peace Officer: Multiple Counts Improperly Based On Multiple Police Cars In The Chase
F 3515.2 Note 12 Conviction Permissible For Both Attempted Manslaughter And Assault For Same Act
F 3515.2 Note 13 Multiple Counts: Continuous Sexual Abuse And Individual Sexual Offenses—PC 288.5 Precludes Convictions On Both Continuous Sexual Abuse Charge And Individual Sexual Offenses
F 3515.2 Note 14 Multiple Counts: Forgery
F 3515.2 Note 15 Multiple Counts: Violation Of Child Custody Order (PC 278.5)
F 3515.2 Note 16 Multiple Counts: Medi-Cal Fraud (WI 14107)
F 3515.2 Note 17 Federal Internet Pornography Statute Held Not To Violate The First Amendment
F 3515.2 Note 18 Multiple Crimes From A Single Occasion: Predicate Crimes For Gang Enhancement (PC 186.22(b))
F 351.25 Note 19 Kidnapping: Convictions For Both Simple And Aggravated Kidnapping Not Permissible For The Same Course Of Conduct
F 3515.2 Note 20 Conviction Of Both Carjacking And Robbery
Return to Series 3500 Table of Contents.
F 3515.2 Note 1 Multiple Counts: Multiple Takings
In the case of multiple takings in theft and robbery situations, the permissibility of multiple conviction turns on (1) the number of victims and (2) 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 (1991) 232 CA3d 316, 326, fn 8; see also People v. Ortega (1998) 19 C4th 686, 699 [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 (1969) 1 C3d 368, 376-78; People v. Rush (1993) 16 CA4th 20, 25 [“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 (1989) 215 CA3d 1151, 1157-59.) “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.)
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 (1992) 1 C4th 865, 970.) 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 (1990) 224 CA3d 297, 307-09; see also People v. Irvin (1991) 230 CA3d 180, 183-86 [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. 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.
CALJIC NOTE: See FORECITE F 17.02 n3.
F 3515.2 Note 2 Multiple Counts: Multiple Possessions
Basic Principles—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 3500.4.3 Note 1 re: juror unanimity when there are multiple possessions which are not multiply charged. See e.g., People v. Harris (1977) 71 CA3d 959, 969-71 [multiple convictions impermissible for simultaneous possession of various articles described in PC 537e] and People v. Puppilo (1929) 100 CA 559, 562-66; 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 (1968) 264 CA2d 217, 227-28 [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 [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 (1967) 248 CA2d 580, 587 [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 (1989) 211 CA3d 58, 60-65. (See also People v. Monarrez (1998) 66 CA4th 710 [pursuant to PC 654 analysis simultaneous possession of different controlled substances permits separate punishment for each substance].)
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 (1999) 75 CA4th 61 [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 (1989) 211 CA3d 58, 65; but see FORECITE F 17.02 n4 [Kirk overruled by statute as to various Penal Code and Welfare and Institutions Code sections].)
CALJIC NOTE: See FORECITE F 17.02 n4 and 17.02 n10.
F 3515.2 Note 3 Multiple Counts: Multiple Victims
Basic Principles – California law is well settled that with regard to crimes of violence against persons, such as assault, homicide or robbery, if a single act injures more than one victim, there are as many crimes as there are victims. (People v. Majors (1884) 65 C 138, 146-147; Neal v. State of California (1960) 55 C2d 11, 20-21; People v. Smart (2006)145 CA4th 1216, 1224; People v. Lagomarsino (1950) 97 CA2d 92, 98-99; see 1 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Elements, § 25, p. 231.)
However, “this principle of multiple victims-multiple offenses has been applied only where each victim is the subject of a separately charged offense; that is, the number of offenses charged aligns with the number of victims injured. [Citations.]” (People v. Smart, 145 CA4th at 1224.) Thus, even if there are multiple victims, if only one offense is charged then the defendant may only be convicted of a single offense. (Id. at 1224-25.)
Multiple Victims: Carjacking – Multiple convictions for carjacking are permissible if a single car is taken from the presence of multiple victims. (People v. Hamilton (1995) 40 CA4th 1137.)
Multiple Counts: Attempt Directed Towards Two Victims – If the defendant specifically intends to commit a crime against two victims (e.g., to rob each of two victims), then conviction for two counts of attempt may be proper. (See People v. Bonner (2000) 80 CA4th 759, 763; compare FORECITE F 17.02 n14 [Whether Single Act Intentionally Directed Toward One Victim Can Constitute Multiple Counts Of Attempted Murder].)
Multiple Assault Victims—People v. Raviart (2001) 93 CA4th 258, held that two convictions of assault are permissible when the defendant, who was confronted by two police officers, drew a loaded handgun and pointed it at one of the officers under circumstances from which the jury could conclude that the defendant had the intent to shoot both officers.
CALJIC NOTE: See FORECITE F 9.00 n13.
Multiple Convictions: Brandishing At More Than One Person—(See In re Peter F. (2005) 132 CA4th 877; People v. Hall (2000) 83 CA4th 1084 [brandishing a firearm at more than one police officer does not permit multiple sentences].)
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 8.66 n16 and F 17.02 n21.)
Propriety Of Multiple GBI Enhancements For Single Count Alleging Two Victims—See FORECITE F 3160 Note 10; F 17.20 n11.
IAC For Failure To Request Instruction That Charges Must Be Considered Separately—[See Brief Bank # B-883 for briefing on this issue.]
CALJIC NOTE: See FORECITE F 17.02 n11, F 17.02 n14, F 17.02 n17, F 17.02 n20 and F 17.02 n21.
F 3515.2 Note 4 Multiple Counts: Multiple Entries
General Principles—Entry of several rooms in a single structure constitutes a single burglary unless each room constituted a separate, individual dwelling space. (See FORECITE F 1700 Note 4; F 14.50 n4.)
People v. Washington (1996) 50 CA4th 568, 578-79 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 [entry into main office and classrooms constitutes separate burglaries where classrooms and office are separately secured and largely located in separate buildings].)
Multiple Counts: Stealing From Multiple Victims After Single Entry Is Only A Single Burglary—(See People v. Elsey (2000) 81 CA4th 948, 958; see also People v. James (1977) 19 C3d 99 [“a thief who enters a house and steals articles belonging to different members of the same family can be punished for only one burglary” ]; cf., People v. Thomas (1991) 235 CA3d 899, 906 fn 2 [“where a burglar enters several rooms in a single structure, each with felonious intent, and steals something from each, ordinarily he or she cannot be charged with multiple burglaries and punished separately for each room burgled unless each room constituted a separate, individual dwelling place within the meaning of section 459 and 460″ ].)
See also FORECITE F 14.50 n4.
CALJIC NOTE: See FORECITE F 17.02 n5, 17.02 n18.
F 3515.2 Note 5 Multiple Counts: Receipt Of Multiple Items
Receipt on a single occasion of multiple items of property stolen from different victims constitutes a single receiving stolen property offense. (People v. Green (1980) 27 C3d 1, 32-34.)
CALJIC NOTE: See FORECITE F 17.02 n7.
F 3515.2 Note 6 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 (1966) 63 C2d 822. (People v. Britt (2004) 32 C4th 944.)
CALJIC NOTE: See FORECITE F 17.02 n25.
F 3515.2 Note 7 Aggregation Of Multiple Misdemeanor Violations
People v. Bailey (1961) 55 C2d 514, 546 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 (1996) 42 CA4th 592, 597 [declining to extend Bailey to forgery prosecution]; see also People v. Woods (1986) 177 CA3d 327 331-32.) 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. (1997) 52 CA4th 304.)
CALJIC NOTE: See FORECITE F 17.02 n12.
F 3515.2 Note 8 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 (1994) 29 CA4th 1532, 1540-41.) However, PC 654 precludes double punishment under such circumstances. (Ibid.)
CALJIC NOTE: See FORECITE F 17.02 n9.
F 3515.2 Note 9 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 kidnaping for robbery (PC 209) and kidnapping for carjacking (PC 215)].)
CALJIC NOTE: See FORECITE F 17.02 n28.
F 3515.2 Note 10 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.
CALJIC NOTE: See FORECITE F 17.02 n23.
F 3515.2 Note 11 Evading A Peace Officer: Multiple Counts Improperly Based On Multiple Police Cars In The Chase
See FORECITE F 2181 Note 3, F 12.85 n6.
CALJIC NOTE: See FORECITE F 17.02 n24.
F 3515.2 Note 12 Conviction Permissible For Both Attempted Manslaughter And Assault For Same Act
(See People v. Ortega (2000) 84 CA4th 659.)
CALJIC NOTE: See FORECITE F 17.02 n19.
F 3515.2 Note 13 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.) Therefore, the prosecution may not obtain multiple convictions for both a PC 288.5 violation and the discrete sexual offenses.
(See FORECITE F 1120 Notes; F 10.42.6 n9.)
CALJIC NOTE: See FORECITE F 17.02 n22.
F 3515.2 Note 14 Multiple Counts: Forgery
Multiple convictions permissible. (People v. Neder (1971) 16 CA3d 846, 852-53.)
CALJIC NOTE: See FORECITE F 17.02 n6.
F 3515.2 Note 15 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 (1992) 9 CA4th 1578, 1582-83.)
CALJIC NOTE: See FORECITE F 17.02 n2.
F 3515.2 Note 16 Multiple Counts: Medi-Cal Fraud (WI 14107)
Multiple convictions possible. (People v. Gregory (1990) 217 CA3d 665, 669-72.)
CALJIC NOTE: See FORECITE F 17.02 n8.
F 3515.2 Note 17 Federal Internet Pornography Statute Held Not To Violate The First Amendment
Ashcroft v. Free Speech Coalition (2002) 535 US 234 [152 LEd2d 403; 122 SCt 1389] held that the 1998 Child Online Protection Act is not unconstitutionally overbroad and does not improperly regulate speech on the Internet. However, the court did not resolve how Congress may regulate speech on the web, and the ultimate resolution of the statute is still unclear.
In Reno v. American Civil Liberties Union (1997) 521 US 844 [138 LEd2d 874; 117 SCt 2329], the United States Supreme Court invalidated the 1996 Communications Decency Act as unconstitutionally overbroad. The 1998 Child Online Protection Act was enacted in response to Reno, making it a crime to “knowingly and with knowledge of the character of the material, in interstate or foreign commerce by means of the world wide web, [make] any communication for commercial purposes that is available to any minor and that includes any material that is harmful to minors.” (47 USC 231(a)(1).)
“Material that is harmful to minors” is defined in 47 USC 231(e)(6).
CALJIC NOTE: See FORECITE F 17.02 n16.
F 3515.2 Note 18 Multiple Crimes From A Single Occasion: Predicate Crimes For Gang Enhancement (PC 186.22(b))
People v. Zermeno (1999) 21 C4th 927 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 committed by two gang members. People v. Vo DEPUBLISHED (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.
CALJIC NOTE: See FORECITE F 17.02 n26.
F 3515.2 Note 19 Kidnapping: Convictions For Both Simple And Aggravated Kidnapping Not Permissible For The Same Course Of Conduct
In People v. Jackson (1998) 66 CA4th 182 the court followed People v. Thomas (1994) 26 CA4th 1328 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.
CALJIC NOTE: See FORECITE F 17.02 n13.
F 3515.2 Note 20 Conviction Of Both Carjacking And Robbery
People v. Green (1996) 50 CA4th 1076, 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 (1995) 38 CA4th 410, 419, which held that carjacking involves an element “unlawful driving” which is not included within robbery. (Green, 50 CA4th at 1084.) This analysis was contradicted by the decision in People v. Montero DEPUBLISHED (1996) 48 CA4th 1524, 1532-33, 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 the conclusion People v. Irvin (1991) 230 CA3d 180, 183-86 that vehicle theft is a lesser-included of robbery with Green’s conclusion that securing dominion and control over a vehicle is not.