P. v. Aguilar CA2/2

Filed 8/24/26 P. v. Aguilar CA2/2
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO
THE PEOPLE, B342874

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No.
v. VA153671)

JOSE ELIAS AGUILAR,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los
Angeles County, Andrew C. Kim, Judge. Affirmed with
directions.
Alan Siraco, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland and
Susan Sullivan Pithey, Assistant Attorneys General, Steven D.
Matthews and Michael J. Wise, Deputy Attorneys General, for
Plaintiff and Respondent.
_________________________________________
Jose Elias Aguilar was convicted of murder and numerous
counts of carjacking and kidnapping after he went on a spree of
stealing cars with people inside, several of whom escaped by
jumping out of the moving vehicles, and one of whom died. He
argues that the jury instructions allowed him to be convicted of
murder on an invalid theory and that insufficient evidence
supports several of the other counts. We reject his contentions
and affirm.
FACTS AND PROCEDURAL HISTORY
1. Facts
Around 6:40 p.m. on July 2, 2020, while Paris Spencer
(Spencer) and Lorena Viveros sat in a parked BMW, appellant
approached them and opened the driver’s door. Spencer grabbed
the door and closed it. Appellant told her to get out of the car,
and she refused. He asked her if she believed in Jesus, and then
swung a machete into the driver’s window, shattering it. Spencer
pepper sprayed him, but he continued to hit the car. The women
escaped through the passenger’s side. Appellant got into the
BMW and drove off.
Less than an hour later, around 7:30 p.m., Cristina
Castellanos Rodriguez (Castellanos) drove her two-door Honda
Civic to a 99-cent store. She parked on the street and walked
toward the store, leaving her three children, Wendy, Kimberly,
and Andy in the car, Wendy in the front passenger’s seat.
Appellant crossed the street, got into the driver’s seat, and locked
the doors. Wendy unlocked the door to get out of the car and
pulled the lever to fold the seat forward for her siblings to get out.
Appellant grabbed onto Wendy’s sweater and told her to “stop.”
He started driving. Wendy fell out of the car and hit her head,
and her sister fell out with her. A man with a cane got in front of

2
the car and told appellant to let the boy out, and Andy climbed
out before appellant drove off.
On July 5, 2020, Jorge Cortes drove to a market with his
wife and four kids. He parked his minivan, and he and his wife
went inside, leaving the kids in the car with the air conditioning
on. Johann and Jorge Jr. sat in the back, Isabella and Alexia in
the middle row. They chatted while they waited for their parents
to return. Appellant suddenly opened the door, got into the
driver’s seat, and said, “Vámonos.” The children screamed “No!”
and the oldest daughter, Alexia, hit appellant. She then opened
the door to the minivan and got out of the car.
Appellant began to drive the minivan, and Johann jumped
out. Appellant sped off into the streets, where he drove in a
“jerking” manner. Jorge Jr. leapt from the van and suffered a
serious head injury. Appellant kept driving, swerving into the
parking lane next to the sidewalk and then back into the lane of
traffic. He drove erratically and was seen making motions with
his arms. The last child in the car, Isabella, came out of the fast-
moving van. She slammed into a fire hydrant on the sidewalk
and died instantly.
Appellant stopped the minivan in an area with street
vendors. He jumped out of the car and ran across the street,
where he climbed into another car—this time with Daniella
Ramirez (Ramirez) and her two-year old son in the backseat.
Ramirez’s boyfriend, Pablo Pena (Pena), was buying a drink from
a vendor nearby when he heard Ramirez scream that someone
was taking the car. He ran back to the car and got into the
backseat. Appellant began driving “straight ahead.” Pena
grabbed appellant from behind in a chokehold and then hit him
in the face a few times, but appellant seemed unaffected and

3
continued driving. Ramirez grabbed the steering wheel and
pulled it, turning the car into a guardrail. The impact caused the
car to stall, and the airbags deployed. Appellant got out and tried
to climb into other cars, but was unsuccessful. A group of
bystanders apprehended and restrained him until the police
came.
2. Procedural history
Appellant was charged with one count of murder (Pen.
1
Code , § 187, subd. (a)), 11 counts of carjacking (§ 215, subd. (a));
five counts of kidnapping during the commission of a carjacking
(§ 209.5); one count of corporal injury to a child (§ 273d, subd.
(a)); and two counts of attempted kidnapping during a carjacking
(§§ 664, 209.5, subd. (a)). It was further alleged that appellant
committed the murder during the commission of a carjacking and
kidnapping (§ 190.2, subd. (a)(17)), that appellant caused great
bodily injury (§ 12022.7, subd. (a)) in connection with the
kidnapping and corporal injury of Jorge Jr., and that various
aggravating factors applied (Cal. Rules Court, rule 4.421). It was
also alleged that appellant had a prior conviction (§ 667, subd.
(a)) and a prior strike (§§ 667, subd. (d), 1170.12, subd. (b)). He
pleaded guilty to one count of carjacking for a separate incident
that occurred on May 9, 2020. In connection with that count, he
admitted the prior strike and two aggravating factors.
On September 5, 2024, a jury convicted appellant of first
degree murder and all remaining counts except for one count of
kidnapping (concerning Andy), on which it instead found
appellant guilty of the lesser offense of attempted kidnapping for
carjacking. The court dismissed seven counts of carjacking and

1 Undesignated statutory references are to the Penal Code.

4
the five-year enhancement (§ 667, subd. (a)) under section 1385.
It sentenced appellant to 44 years 8 months, life without the
possibility of parole, plus 45 years to life.
DISCUSSION
1. There was no instructional error
Appellant argues that the instructions allowed the jury to
find him guilty of felony murder without finding he was the
“actual killer,” as required by the 2019 amendments to section
189 (Sen. Bill No. 1437). This is so, he urges, because the
instruction given on general causation principles (CALCRIM No.
240) “negated” the instruction that the actual killer be someone
“who personally commits an act that directly causes the victim’s
death” (CALCRIM No. 540A). Assuming appellant did not forfeit
this point by failing to object below (§ 1259), we find no such error
in the instructions.
A claim of instructional error is reviewed de novo. (People
v. Mitchell (2019) 7 Cal.5th 561, 579.) A defendant who
challenges an instruction as being subject to an erroneous
interpretation must show a reasonable likelihood that the jury
understood it that way. (People v. Hin (2025) 17 Cal.5th 401,
492; People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335,
433.) The correctness of the jury instructions is determined from
the entire charge of the court, not from consideration of any
instructions in isolation. (Hin, at p. 492; People v. Solomon
(2010) 49 Cal.4th 792, 822.)
Appellant does not dispute that the jury received the
correct instructions on the actual-killer theory of felony murder
with CALCRIM No. 540A, providing: “To prove that the
defendant is guilty of first degree murder under this theory, the
People must prove that: [¶] 1. The defendant committed or

5
attempted to commit a carjacking or kidnapping during a
carjacking; [¶] 2. The defendant intended to commit carjacking or
kidnapping during the carjacking; AND [¶] 3. While committing
or attempting to commit carjacking or kidnapping during a
carjacking, the defendant personally committed an act that
directly caused the death of another person. [¶] A person who was
the actual killer may be guilty of felony murder even if the killing
was unintentional, accidental, or negligent. [¶] The actual killer
is a person who personally commits an act that directly causes the
victim’s death.” (Italics added.) Nor does appellant dispute that
the jury was correctly instructed on the murder-
carjacking/kidnapping special circumstance with CALCRIM No.
730, which required proof that: “1. The defendant committed a
carjacking or kidnapping; [¶] 2. The defendant intended to
commit a carjacking or kidnapping; AND [¶] 3. The defendant
personally committed an act that directly caused the death of
another person.” (Italics added.)
Instead, appellant argues that CALCRIM No. 240, the
instruction given on general causation principles, conflicted with
the requirement that appellant be the “actual killer”—that is, one
who personally committed the act that directly caused the
victim’s death. CALCRIM No. 240 provides: “An act causes
death if the death is the direct, natural, and probable
consequence of the act and the death would not have happened
without the act. A natural and probable consequence is one that
a reasonable person would know is likely to happen if nothing
unusual intervenes. In deciding whether a consequence is
natural and probable, consider all the circumstances established
by the evidence. [¶] There may be more than one cause of death.
An act causes death only if it is a substantial factor in causing

6
death. A substantial factor is more than a trivial or remote
factor. However, it does not have to be the only factor that causes
death.” (Italics omitted.)
CALCRIM Nos. 540A and 240 do not contradict one
another. Our Supreme Court has recognized that “[p]roximately
causing and personally inflicting [death] are two different
things.” (People v. Bland (2002) 28 Cal.4th 313, 336; see, e.g.,
People v. Sanchez (2001) 26 Cal.4th 834, 847 [two men engaged in
shootout, only one of whom shot and killed a bystander, were
both proximate causes of death].) The term “actual killer” does
not exclude the possibility of concurrent causes of death. (People
v. Garcia (2022) 82 Cal.App.5th 956, 967 [Senate Bill No. 1437
“contains no expressed intent to modify the felony-murder rule’s
application to a perpetrator whose acts were a concurrent cause
of the death”]; see People v. Carney (2023) 14 Cal.5th 1130, 1138–
1139 [a cause is concurrent if it was operative at time of murder
and coincided with another cause to produce the murder].)
Appellant relies on People v. Vang (2022) 82 Cal.App.5th 64
to argue that the instructions allowed the jury to convict him
without finding he was the actual killer. Assuming Vang was
correctly decided—a premise our Supreme Court has not opined
on (People v. Oyler (2025) 17 Cal.5th 756, 842 [“we express no
view . . . at this time”])—it is distinguishable both legally and
factually. In Vang, the jury was instructed that the defendant
was guilty of first degree felony murder “if the People proved
that: (1) defendant committed the crime of kidnapping; (2)
defendant intended to commit a kidnapping; and (3) while
committing the kidnapping, defendant caused the death of
another person.” (Vang, at p. 80, italics added.) The jury received
substantially the same instruction on the “[kidnapping-murder]

7
special circumstance allegation.” (Vang, at p. 80, fn. 3.)
Appellant’s jury, on the other hand, was instructed that it had to
find appellant personally committed the act that directly caused
the victim’s death—i.e., that he was the “actual killer” (Vang, at
p. 89)— in order to convict him on both the murder count and the
special circumstance.
Vang also concluded that the evidence was insufficient to
“permit any inference that [the] defendant was the direct cause of
[the victim’s] death.” (Vang, supra, 82 Cal.App.5th at p. 91.)
Appellant does not challenge the sufficiency of the evidence for
his murder conviction, but we note some significant differences in
the facts. Although this case and Vang both involve victims who
died after leaping from cars, the Vang victim was an adult who
had been the defendant’s girlfriend, and there was no evidence
that the defendant pushed her or encouraged her to jump from
his car. (Id. at p. 84.) Here, the victim was a child to whom
appellant was a complete stranger; appellant had just stolen her
parents’ van with her and her siblings still inside; the victim’s
siblings had already jumped from the van, after which appellant
continued driving fast and erratically; and a witness saw him
moving his arms before she exited the van, from which a jury
could reasonably infer that he was telling her to get out (if not
pushing her) from the van.
To support his argument that the jury could have found
him guilty of murder without finding he was the actual killer,
appellant points to the People’s statement in their closing
argument that appellant could be convicted of murder whether or
not he physically pushed Isabella out of the van. Nothing in this
statement suggests the jury might have convicted appellant on
an invalid theory. Appellant’s driving the van at a fast speed

8
(with a kidnapped child inside whose siblings had all jumped out)
played an essential role in her death from slamming at a high
velocity into a fire hydrant upon exiting the van, whether or not
appellant encouraged her to jump or physically shoved her. Had
the child gotten out of a stationary van, she would have reached
the ground safely. That she may have played a role in exiting
from the van does not negate the possibility that appellant also
personally committed an act that directly caused her death,
which the jury necessarily found. (People v. Bertsch and Hronis
(2026) 19 Cal.5th 183, 242 [we assume the jurors understood and
followed the instructions].) Because the record does not
affirmatively show the jury relied on an invalid theory, we reject
appellant’s claim of instructional error.
2. Substantial evidence supports the carjacking counts
Appellant argues that substantial evidence does not
support his convictions for carjacking Castellanos and two of her
children, Kimberly and Andy, outside of the 99-cent store. “In
reviewing the sufficiency of the evidence to support a judgment of
conviction, we examine the entire record in the light most
favorable to the prosecution, presuming in support of the
judgment the existence of every fact the trier could reasonably
deduce from the evidence, to determine whether a rational trier
of fact could have found the defendant guilty beyond a reasonable
doubt.” (People v. Hayes (1990) 52 Cal.3d 577, 631.)
“ ‘Carjacking’ ” is “the felonious taking of a motor vehicle in
the possession of another, from his or her person or immediate
presence, or from the person or immediate presence of a
passenger of the motor vehicle, against his or her will and with
the intent to either permanently or temporarily deprive the
person in possession of the motor vehicle of his or her possession,

9
accomplished by means of force or fear.” (§ 215, subd. (a).) One
“may be deprived of possession not only when the perpetrator
physically forces the victim out of the vehicle, but also when the
victim remains in the car and the defendant exercises dominion
and control over the car by force or fear.” (People v. Gray (1998)
66 Cal.App.4th 973, 985.)
A. Substantial evidence supports the “force or fear”
required for carjacking
“ ‘Force’ ” and “ ‘fear’ ” are terms that “have no technical
meaning peculiar to the law and must be presumed to be within
the understanding of the jurors.” (People v. Anderson (1966) 64
Cal.2d 633, 640; People v. Lopez (2017) 8 Cal.App.5th 1230, 1235.)
Direct proof of fear is unnecessary; it may be inferred from the
circumstances under which the property is taken. (People v.
Morehead (2011) 191 Cal.App.4th 765, 775 (Morehead).) Because
carjacking is a “ ‘direct offshoot of robbery,’ ” and the carjacking
statute “ ‘tracks the language in the robbery statute (§ 211),’ ”
“we look to interpretations of the force [or fear] requirement in
the robbery context in construing the requirement in the
carjacking context.” (People v. Hudson (2017) 11 Cal.App.5th
831, 835; accord, People v. Lopez (2003) 31 Cal.4th 1051, 1060–
1061.)
Section 212 defines “fear” as either the “fear of an unlawful
injury to the person or property of the person robbed, or of any
relative of his or member of his family,” or “fear of an immediate
and unlawful injury to the person or property of anyone in the
company of the person robbed at the time of the robbery.” The
requisite fear need not be the result of an express threat. (People
v. Flynn (2000) 77 Cal.App.4th 766, 772 (Flynn).)

10
Substantial evidence supports the “fear” element with
respect to Castellanos, Andy, and Kimberly.2 The mere
circumstance that appellant—a stranger to this family—got into
the driver’s seat of their car provides a sufficient basis to infer
that he inspired fear in Andy and Kimberly, who were sitting in
the backseat. (People v. Holt (1997) 15 Cal.4th 619, 690 [“Fear
may be inferred from the circumstances in which a crime is
committed or property is taken”].) Although not required (ibid.;
Morehead, supra, 191 Cal.App.4th at p. 775), the record also
contains direct proof: Kimberly testified she was scared, and
Wendy testified that “everyone was yelling” when appellant got
into the car.3
Castellanos testified that when she heard her children
screaming, she turned around and saw appellant in the car with
Andy still inside. A man with a cane stood in front of the car,
telling appellant to let the boy out. A jury could reasonably infer
from these circumstances that Castellanos was afraid for her
son’s life, and that her fear prevented her from taking any action
to reclaim possession of her car before appellant drove it away.

2 We exercise our discretion to address appellant’s
argument with respect to Andy and Kimberly, even though the
trial court dismissed these carjacking counts.
Appellant does not challenge his conviction for carjacking
Wendy, who was sitting in the front seat of the two-door car,
presumably because the record shows appellant used “force”
when he pulled on her sweater and told her to “stop” getting out
of the car.
3 Andy did not testify because he has autism and is
nonverbal.

11
B. Substantial evidence shows the car was taken
from Castellanos’s “immediate presence”
Appellant argues that the evidence does not show appellant
took the car from Castellanos’s immediate presence. “ ‘A vehicle
is within a person’s immediate presence for purposes of
carjacking if it is sufficiently within [her] control so that [she]
could retain possession of it if not prevented by force or fear.”
(People v. Johnson (2015) 60 Cal.4th 966, 989 (Johnson).)
Carjacking “does not require that the victim be inside or touching
the vehicle at the time of the taking.” (People v. Medina (1995)
39 Cal.App.4th 643, 650 [by using terms “from the person” or
“from the immediate presence,” the Legislature was using more
expansive view of presence]; People v. O’Neil (1997) 56
Cal.App.4th 1126, 1131 (O’Neil); People v. Coryell (2003) 110
Cal.App.4th 1299, 1303.)
Castellanos was only steps away from her car—close
enough to hear the screams of her children and to turn around to
see that her daughters had fallen onto the ground and that
appellant was driving off with her son. A jury could reasonably
find that she would have retained possession of her car had
appellant not prevented her from doing so. (Cf. Johnson, supra,
60 Cal.4th at p. 990 [car was taken from victim’s immediate
presence where car was taken from the garage and victim was in
the kitchen].) That appellant seized the opportunity to get into
the driver’s seat of the car just after Castellanos had gotten out
and walked a few steps away does not mean the taking occurred
outside her “immediate presence.” (See People v. Webster (1991)
54 Cal.3d 411, 441 [“ ‘trick or device by which the physical
presence of the [robbery victim] was detached from the property
under [her] protection and control’ ” should not avail a defendant

12
of the claim that the property was taken outside of her
“ ‘immediate presence’ ”].)
Nor does the fact that Castellanos experienced fear
moments after appellant took possession of the vehicle change
our analysis. (O’Neil, supra, 56 Cal.App.4th at p. 1133 [harm
sought to be addressed by the carjacking statute “exists whenever
there is a confrontation between the taker . . . and the victim ‘and
in no way depends on whether the confrontation and use of “force
or fear” occurs before, while, or after the defendant initially takes
possession of the vehicle’ ”]; People v. Gomez (2008) 43 Cal.4th
249, 261; Flynn, supra, 77 Cal.App.4th at p. 772.)
Our conclusion furthers the purpose of the carjacking
statute, which is to address “a particularly serious crime that
victimizes persons in vulnerable settings and, because of the
nature of the taking, raises a serious potential for harm to the
victim, the perpetrator and the public at large.” (People v.
Antoine (1996) 48 Cal.App.4th 489, 495; People v. Hill (2000) 23
Cal.4th 853, 859–860 [citing this purpose of the carjacking
statute in concluding that an infant can be victim of carjacking
despite inability to give or withhold consent].)
3. Substantial evidence supports the attempted
kidnapping of Andy
Appellant argues that his moving Andy “approximately two
car lengths before stopping and allowing” him to get out was “a
very short distance” and “did not expose Andy to an increased
risk of harm.” This argument ignores that the crime of
attempted kidnapping does not require any asportation, let alone
movement that substantially increases harm. (E.g., People v.
Cole (1985) 165 Cal.App.3d 41, 50, citing People v. Fields (1976)
56 Cal.App.3d 954 [attempted kidnapping occurred where the

13
defendant tried to force a young girl on the street into a car but
bailed when she screamed].)
4. Substantial evidence supports the kidnapping for
carjacking counts as to Ramirez and Pena
Kidnapping during the commission of carjacking occurs
when a “person who, during the commission of a carjacking and
in order to facilitate the commission of the carjacking, kidnaps
another person” (§ 209.5, subd. (a)), and “the movement of the
victim is beyond that merely incidental to the commission of the
carjacking, . . . a substantial distance from the vicinity of the
carjacking, and the movement . . . increases the risk of harm to
the victim over and above that necessarily present in the crime of
carjacking itself” (id., subd. (b)). The risk of harm may be either
physical or psychological. (People v. Waqa (2023) 92 Cal.App.5th
565, 578 (Waqa).)
Kidnapping for carjacking “does not require that the
physical movement of the victim substantially increase the risk of
harm.” (People v. Ortiz (2002) 101 Cal.App.4th 410, 415.)
Rather, “once the elements of carjacking have been satisfied,
there needs to be asportation only for ‘a substantial distance’ as
defined in simple kidnapping.” (People v. Moore (1999) 75
Cal.App.4th 37, 46.)
The asportation element does not require a specific
minimum distance—the fact finder “ ‘should instead consider the
totality of the circumstances,’ ” such as “ ‘ “whether that
movement increased the risk of harm above that which existed
prior to the asportation, decreased the likelihood of detection, and
increased both the danger inherent in the victim’s foreseeable
attempts to escape and the attacker’s enhanced opportunity to

14
commit additional crimes.” ’ ” (Waqa, supra, 92 Cal.App.5th at
pp. 577–578.)
Substantial evidence supports the jury’s finding that
appellant moved Pena and Ramirez a substantial distance for the
purpose of kidnapping for carjacking. Although the record does
not disclose a specific distance, it provides an ample basis to
conclude that the movement increased the risk of harm and
danger inherent in the victim’s attempts to escape. Ramirez
grabbed the steering wheel to crash the car into a guardrail to
prevent appellant from driving farther away and facilitate her
and Pena’s escape. She would not have been compelled to make
this dangerous maneuver had appellant not driven the car away
with her and Pena still inside. The other instances of carjacking
in this case provide vivid illustrations of the kinds of harm
appellant risked by taking and driving cars with passengers
inside. A reasonable fact finder could also conclude that the
movement decreased appellant’s likelihood of detection and
enhanced his opportunity to commit further crimes. Indeed, it
was only because the car stalled upon hitting the guardrail that
appellant got out of the vehicle and was apprehended by
bystanders. He might otherwise have gotten out of the area and
had the opportunity to carjack and kidnap yet another set of
victims.
5. Substantial evidence supports appellant’s conviction
for inflicting injury on Jorge Jr. and the great bodily
injury enhancement
The crime of inflicting corporal injury on a child (§ 273d)
requires “ ‘1. A person willfully inflicted cruel or inhuman
punishment or an injury upon the body of a child; and [¶] 2. The
infliction of this punishment or this injury resulted in a

15
traumatic condition.’ ” (People v. Cockburn (2003) 109
Cal.App.4th 1151, 1160.) A deliberate intent to cause a
traumatic condition is unnecessary—a general intent to inflict
upon a child any cruel or inhuman corporal punishment or injury
is sufficient. (People v. Sargent (1999) 19 Cal.4th 1206, 1219–
1220.)
An enhancement under section 12022.7 requires that the
defendant “personally inflict” a great bodily injury. Whether
conduct “personally inflicts” injury “depends on the
circumstances underlying the offense and the defendant’s actions
in committing the crime.” (People v. Ollo (2021) 11 Cal.5th 682,
688 (Ollo).) The phrase “personally inflicts” means that someone
directly and not through an intermediary causes harm to be
endured. (Ibid.) Nothing in the terms “personally” or “inflicts”
“implies that the defendant must act alone in causing the victim’s
injuries.” (People v. Modiri (2006) 39 Cal.4th 481, 493.)
Appellant urges that insufficient evidence shows appellant
“personally inflicted” Jorge Jr.’s injuries.4 Substantial evidence
supports the jury’s finding that appellant personally and willfully
inflicted Jorge Jr.’s injuries when he kidnapped Jorge Jr. and
drove fast as Jorge Jr. fell from the van. The jury could find from
the circumstances that Jorge Jr. did not act as an “independent
intermediary” when he exited from the van. (Ollo, supra, 11
Cal.5th at p. 690–691 [“Whereas a victim with full capacity who
voluntarily chooses to ingest a controlled substance is an
independent intermediary, a victim who ingests drugs as a result
of coercion or with diminished capacity is not”].) Rather, the

4 We note that section 273d does not by its language
require such “personal infliction,” and appellant does not cite any
case that reads that requirement into the statute.

16
record makes clear that even if Jorge Jr. deliberately jumped or
fell from the moving van, that decision was based on sheer terror
from being kidnapped by a stranger and was thus not voluntary
in any meaningful sense.
Moreover, the record supports that Jorge Jr.’s injuries were
caused not merely by his exit from the van, but also by the speed
and erratic movement of the van as appellant was driving it.
(See People v. Berch (2026) 120 Cal.App.5th 401, 405–406
[overwhelming evidence showed the defendant’s erratic driving
was a direct cause of the victim’s injuries, where the defendant
accelerated as the victim tried to exit the car]; People v. Guzman
(2000) 77 Cal.App.4th 761, 764 [the defendant’s intoxication and
unsafe turn into oncoming traffic supported enhancement for
great bodily injury to his passenger, even if the oncoming car
actually caused the injury].)
6. One of appellant’s sentences concerning Jorge Jr.’s
injuries must be stayed
Appellant contends that the great bodily injury
enhancement in connection with the kidnapping of Jorge Jr. and
the corporal-injury-on-a-child count both concern the same
conduct, such that one of the sentences must be stayed under
section 654. The People agree, and so do we. The People urge us
to stay the sentence on the corporal injury count, which is 2 years
8 months. Appellant correctly notes that he received a three-year
sentence for the enhancement, and argues that we should
remand to allow the trial court to exercise its discretion in
determining which sentence to stay. We agree that remand is
appropriate because the trial court has discretion where “[a]n act
. . . that is punishable in different ways by different provisions of

17
law [to punish a defendant] under either of such provisions.”
(§ 654; see People v. Mani (2022) 74 Cal.App.5th 343, 351.)
DISPOSITION
The matter is remanded for the trial court to stay one of
two aforementioned sentences—corporal injury on a child (Pen.
Code, § 273d; count 6) or the great-bodily-injury enhancement
(Pen. Code, § 12022.7, subd. (a)) imposed in connection with
count 5. The court is directed to prepare an amended abstract of
judgment reflecting its modification and to forward a certified
copy to the Department of Corrections and Rehabilitation. In all
other respects, the judgment is affirmed.
NOT TO BE PUBLISHED.

LUI, P. J.
We concur:

RICHARDSON, J.

GOORVITCH, J.

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