Filed 8/7/26 P. v. McDonald CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Siskiyou)
THE PEOPLE, C101987
Plaintiff and Respondent,
(Super. Ct. No.
v. SCCRCRF202029)
TIMOTHY CHASE MCDONALD,
Defendant and Appellant.
Defendant Timothy Chase McDonald murdered Spencer Hodgson. He drove to
Hodgson’s house, parked a short distance down the road, and waited for him to return
home. He then knocked on the front door and pretended to have a flat tire. Hodgson
agreed to drive defendant to his truck and help him change the tire. During the drive, in
the opposite direction from where his truck was parked, defendant pulled out a .44-
caliber revolver and shot Hodgson several times. Hodgson’s truck veered across the
roadway and crashed into an embankment. Defendant pulled Hodgson out of the truck
and dragged his body down a muddy roadside ravine. He then got back into Hodgson’s
truck, drove it into a creek bed a few miles away, and walked back to where he parked his
truck. The reason for the violence was jealous animosity. Defendant’s girlfriend was in
the process of ending their relationship and beginning a new one with Hodgson.
A jury found defendant guilty of first degree murder (count 1) and found that the
murder was committed by means of lying in wait and that defendant personally and
1
intentionally discharged a firearm causing death. Based on a separate incident, the jury
found defendant guilty of carrying a concealed, loaded, and unregistered firearm in a
vehicle (count 2) and armed criminal action (carrying a loaded firearm with the intent to
commit a felony) (count 3). The trial court sentenced defendant to state prison for life
without the possibility of parole (LWOP), plus 25 years to life, plus two years eight
months.
Defendant now contends (1) we must reverse the lying-in-wait special-
circumstance finding because there is insufficient evidence Hodgson was ambushed
in a surprise attack; (2) we must also reverse defendant’s count 3 conviction for armed
criminal action because the evidence is insufficient to support a finding that he intended
to commit a felony when he carried the loaded firearm; (3) the trial court incorrectly
instructed the jury on the intent required for the count 3 charge of armed criminal action;
(4) the trial court should have stayed the sentence imposed for either the count 2
conviction for carrying a concealed, loaded, and unregistered firearm in a vehicle, or the
count 3 conviction for armed criminal action; and (5) the trial court erred by failing to
dismiss the firearm enhancement.
We conclude the evidence is sufficient to establish that defendant murdered
Hodgson by means of lying in wait. The evidence also supports defendant’s conviction
for armed criminal action. In addition, defendant’s instructional error contention lacks
merit. However, as the People concede, the trial court should have stayed the sentence
imposed for either the count 2 conviction for carrying a concealed, loaded, and
unregistered firearm in a vehicle, or the count 3 conviction for armed criminal action.
We will affirm defendant’s convictions, vacate the sentence, and remand the matter for a
full resentencing hearing. For the purposes of providing guidance on remand, we will
also conclude that defendant’s firearm enhancement contention lacks merit.
2
BACKGROUND
Defendant and G.M. began dating in high school. During the relationship
defendant became jealous and periodically angry, and he engaged in controlling and
verbally abusive behavior. Defendant often accused G.M. of cheating on him. G.M.
said defendant wanted to know whenever she spoke to another man.
In April 2019, G.M. flew to Las Vegas for her sister’s baby shower. She flew
there with her mother and her sister’s friend on Thursday, April 4, and flew home on
Sunday, April 7. At the time, she and defendant were taking a break from their
relationship but continued talking. G.M. told her sister and her sister’s friend about a
new man she was interested in dating, Hodgson.
G.M. worked at a feed store in Yreka. Hodgson was a regular customer. G.M.
started spending time with Hodgson during her lunch breaks, and they flirted with each
other through Instagram.
Defendant knew about Hodgson. He found out when he looked through G.M.’s
cell phone and saw some of Hodgson’s Instagram messages. Defendant called and texted
G.M. “over and over” while she was in Las Vegas. She ignored many of his calls and
texts. When she answered one of his calls, he sounded like he was crying and threatened
to kill himself. During another conversation, defendant told G.M. that he was going to
find Hodgson’s house and “beat him up” or “kick his ass.” He later sent her a text
message saying, “I figured out where your little boyfriend live[s] and I’m sitting outside
his house right now.”
Hodgson lived on Walker Road in Klamath River. On April 7, 2019, he went to a
community fundraiser not far from his house. At around 6:00 or 7:00 p.m., two attendees
drove past Hodgson’s house on their way to retrieve a forgotten item. A black truck
matching the description of defendant’s truck was parked at the edge of Hodgson’s
property near a logging machine. It was still there when they returned to the fundraiser a
short time later. Another attendee, C.S., saw the same truck a short time later and
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identified it as defendant’s truck. C.S. saw defendant’s truck parked at the convergence
of Walker Road and Barkhouse Road, about a mile from Hodgson’s house.
R.W. lived about 100 yards from Hodgson’s house. Sometime around 8:00 p.m.,
defendant knocked on her door and said his truck broke down. He told her that someone
had given him a ride to a phone and his brother was on his way from Yreka, but he
needed a ride back to his truck to wait for him. Because it was raining and getting dark
out, and he reminded her of one of her sons, R.W. gave defendant a ride to his truck,
which was still parked where C.S. had seen it about an hour earlier.
Defendant moved his truck to the other side of Hodgson’s house, next to a corral
near Walker Bridge. One of the fundraiser attendees who saw it parked at the edge
of Hodgson’s property earlier in the night spotted it at this new location at around
10:00 p.m. and again after midnight. He thought it was “ ‘very odd’ that the same
truck was parked in two different locations that evening.”
By 8:20 p.m., Hodgson was home and played an online video game until around
9:30 p.m. Sometime after that, defendant knocked on his door. Defendant later admitted
that he had knocked on Hodgson’s door earlier that night, but he was not home, so
defendant “waited him out” and knocked again after he got home. Defendant told
Hodgson that he had a flat tire about a quarter mile down the road and asked for help
changing his tire. Hodgson agreed to give defendant a ride and told him to grab a jack
that was near the front door. Defendant grabbed the jack and the two headed to
Hodgson’s truck. Defendant directed Hodgson to drive in the opposite direction of where
his truck was parked.
At some point while Hodgson was driving down a remote stretch of Yreka Walker
Road a few miles from his house, defendant pulled out a .44-caliber revolver and shot
Hodgson multiple times. Glass from Hodgson’s driver’s side window was found in the
roadway and confirmed that at least the first shot was fired while the truck was driving
down the road. From there, tire tracks led to an impact depression in an embankment.
4
The parties stipulated that Hodgson’s truck veered across the roadway and crashed into
the embankment.
Defendant got out of the truck, pulled Hodgson out, and dragged his body down a
muddy roadside ravine. Defendant got back in the truck, backed it out of the
embankment, and drove away. Defendant drove Hodgson’s truck about a mile further
down Yreka Walker Road. He then went off road and drove the truck about 20 feet down
a different ravine and into a creek bed. After wiping down the truck, defendant walked
about five miles back to his truck. Hodgson’s autopsy revealed that he died from several
gunshot wounds. Defendant had obtained a Ruger Super Blackhawk .44 Magnum
revolver from his father less than two months before the murder.
The prosecution also adduced testimony regarding a separate incident that gave
rise to the count 2 charge of carrying a concealed, loaded, and unregistered firearm in a
vehicle, and the count 3 charge of armed criminal action. In July 2018, defendant got
into a physical altercation with Kenneth and Ronald Reed. Defendant was angry that
Kenneth had driven G.M. off the road about a week earlier. He decided to go to the Reed
house with his friend Caleb Pierce and his coworker Scott Sutton to beat Kenneth’s ass or
“fuck him up.” Pierce drove defendant and Sutton to the Reed house and parked two
houses away. Defendant brought a handgun, but left it in Pierce’s truck, saying “in case
anything happens we won’t be the ones in trouble for using it.” Defendant and Pierce
walked over to the Reed house. Sutton stayed in the truck. At the house, defendant got
into a heated argument with both Kenneth and Ronald. Kenneth pulled out a rifle.
Ronald displayed a knife and pushed defendant against a wall. Seeing the altercation
unfold, Sutton grabbed defendant’s handgun and ran over. He pointed the gun at
Kenneth and told him to drop the rifle. Kenneth ran inside the house. Sutton gave the
gun to defendant, who put it in his waistband. Ronald got in defendant’s face. Defendant
punched him, knocking him into a rose bush.
5
Defendant, Pierce, and Sutton left the Reed house and were pulled over a short
time later. When Pierce gave deputies consent to search the truck, defendant admitted the
handgun in the center console was his. The gun was loaded and defendant was not the
registered owner.
DISCUSSION
I
Defendant claims the evidence is insufficient to support the lying-in-wait special-
circumstance finding.
“In reviewing the sufficiency of the evidence for a special circumstance, as for a
conviction, we ask whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the
allegation beyond a reasonable doubt.” (People v. Dickey (2005) 35 Cal.4th 884, 903;
People v. Stevens (2007) 41 Cal.4th 182, 201.)
Penal Code1 section 190.2, subdivision (a)(15) sets forth a penalty of death or
LWOP for first degree murder where “[t]he defendant intentionally killed the victim by
means of lying in wait.” This lying-in-wait special circumstance requires that the
defendant (1) intended to kill the victim, (2) concealed that purpose from the victim,
(3) engaged in a substantial period of watching and waiting for an opportune time to act,
and (4) carried out a surprise attack on the unsuspecting victim from a position of
advantage. (People v. Parker (2022) 13 Cal.5th 1, 58 (Parker).) The second and fourth
elements overlap in the sense that the concealment of purpose required “ ‘ “is that which
puts the defendant in a position of advantage, from which the factfinder can infer that
lying-in-wait was part of the defendant’s plan to take the victim by surprise.” ’
[Citation.]” (People v. Johnson (2016) 62 Cal.4th 600, 632 (Johnson).) Although the
1 Undesignated statutory references are to the Penal Code.
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period of watching and waiting required to satisfy the third element must be
“substantial,” the amount of time is “ ‘not critical.’ ” (People v. Moon (2005) 37 Cal.4th
1, 23.) All that is required is enough time “ ‘to show a state of mind equivalent to
premeditation or deliberation.’ [Citation.]” (Ibid.)
Defendant only challenges the sufficiency of the evidence supporting the fourth
element -- that he carried out a surprise attack on an unsuspecting victim from a position
of advantage -- arguing that because “the record is silent about what happened after
[Hodgson] entered the truck,” the evidence does not support a finding that Hodgson “was
suddenly ambushed in a surprise attack.”
Defendant was upset about G.M.’s communications with Hodgson. He found out
where Hodgson lived and drove to his house, bringing a loaded .44 Magnum revolver.
He parked a short distance from Hodgson’s house, moved his truck at least once, and
waited for Hodgson to get home. Defendant concealed the revolver when he knocked on
Hodgson’s door and pretended to have a flat tire. Defendant then lured Hodgson down a
rural stretch of road in the opposite direction from where his truck was parked before
shooting him to death. The jury could have reasonably concluded that the ruse was
designed to put defendant in a position of advantage, i.e., that of an armed passenger
telling Hodgson where to drive, whereas Hodgson would be focused on driving and at a
disadvantage when defendant decided to pull out the revolver and take him by surprise.
Although, as defendant points out, the record does not reveal exactly what
happened in the truck immediately after Hodgson got inside, the physical evidence
supports a reasonable inference that defendant fired on Hodgson while the truck was
driving down Yreka Walker Road, causing the truck to veer across the roadway and into
the embankment. This inference arises from the glass in the roadway, the tire marks
leading to the embankment, the impact depression in the embankment from the front of
Hodgson’s truck, and the fact that the bullet strikes inside the truck indicate that Hodgson
was shot from the passenger side of the vehicle.
7
People v. Cage (2015) 62 Cal.4th 256 (Cage) is instructive. There, the defendant
physically and emotionally abused his wife, Clari, who eventually left him with the help
of her mother, Bruni. (Id. at p. 263.) The defendant knocked on Bruni’s door holding a
laundry basket containing his and Clari’s clothes. Hidden in the basket was a loaded
shotgun. Bruni allowed the defendant to come inside. They spoke for a few minutes.
The defendant then removed the shotgun from the basket, shot her to death, and went
upstairs, where he also shot and killed her son, David. (Id. at p. 279.) Concluding the
evidence was sufficient to support the jury’s lying-in-wait special-circumstance finding,
the California Supreme Court explained: “A jury could rationally deduce from these
facts that defendant planned and undertook a deliberate subterfuge aimed at making his
presence appear to be an innocuous offer to return Clari’s clothes or request to do laundry
so that Bruni would open the door and admit him. The ruse disguised his intent to kill.”
(Ibid.) With respect to watchful waiting, the court concluded that the few minutes the
defendant spent talking to Bruni before shooting her sufficed to show “a state of mind
equivalent to premeditation or deliberation.” (Ibid.) The court added: “It is also
apparent from the record that defendant’s surprise attack on Bruni and David followed in
a continuous flow of events upon defendant’s successful use of his ruse to persuade Bruni
to open her front door. The jury could reasonably determine that defendant’s actions met
the requirement of an immediate surprise attack on unsuspecting victims from a position
of advantage.” (Id. at p. 280.)
Here, the jury could have reasonably concluded that defendant engaged in a
subterfuge by knocking on Hodgson’s door and pretending to have a flat tire, while
concealing his loaded .44 Magnum revolver. The ruse hid his intent to kill by making his
presence at Hodgson’s doorstep appear to be innocent. Defendant’s period of watchful
waiting was much longer than the few minutes in Cage. And defendant’s act of shooting
Hodgson flowed directly from his successful ruse to persuade Hodgson to drive him to
his purportedly incapacitated truck. Just as pulling a shotgun out of a basket to shoot an
8
unsuspecting woman in her home amounted to a surprise attack, the jury in this case
could have reasonably concluded that defendant pulled his revolver on an unsuspecting
Hodgson and opened fire.2
Nevertheless, defendant posits a number of scenarios that he claims are
inconsistent with a surprise attack. For example, defendant argues, “Hodgson could have
realized [defendant’s] flat-tire story was a ruse and confronted him about it, leading to an
argument, physical struggle, and car crash before the shooting.” However, “[w]e need
not credit defendant’s contrary claims … because sufficient evidence supports the
[jury’s] conclusions.” (Parker, supra, 13 Cal.5th at p. 60.) Moreover, the glass in the
road supports an inference that at least the first shot was fired while the truck was in the
roadway before the crash. Even if Hodgson became suspicious and confronted defendant
before he opened fire, defendant still shot him from a position of advantage that was
made possible by the ruse. And this posited scenario also does not necessarily negate the
otherwise reasonable inference that Hodgson was taken by surprise. (See People v.
Hillhouse (2002) 27 Cal.4th 469, 501 [lying-in-wait special circumstance upheld where
the defendant announced his intent—“ ‘I ought to kill you’ ”—before stabbing the
victim].) The lying-in-wait special-circumstance finding is supported by substantial
evidence.
2 We note that Cage applied a version of the lying-in-wait special circumstance that
required the murder to have been committed “ ‘while lying in wait,’ ” (Cage, supra,
62 Cal.4th at p. 278, quoting § 190.2, former subd. (a)(15).) As defendant acknowledges,
the version of the special circumstance applicable to him required only that he killed
Hodgson “by means of lying in wait.” (§ 190.2, subd. (a)(15).) This change in the
statutory language “eliminate[d] the temporal distinction between the special
circumstance and lying-in-wait first degree murder.” (Johnson, supra, 62 Cal.4th at
p. 636.) Under the new formulation, although the elements remain the same, the killing
itself need not have been committed while the defendant was lying in wait so long as the
concealment of purpose, watchful waiting, and surprise attack provided the means by
which defendant committed the murder. (See Parker, supra, 13 Cal.5th at pp. 59-60.)
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II
Defendant also claims we must reverse his count 3 conviction for armed criminal
action (carrying a loaded firearm with the intent to commit a felony) because the
evidence is insufficient to support a finding that he intended to commit a felony when he
carried the loaded firearm.
Section 25800, subdivision (a) provides: “Every person who carries a loaded
firearm with the intent to commit a felony is guilty of armed criminal action.” This
section “punishes the passive or static act of carrying a firearm with the intent to commit
a felony, and the offense is complete when the firearm is carried with that intent.”
(People v. Stout (2019) 38 Cal.App.5th 669, 676.) The People based the charge on the
separate incident when defendant, Caleb Pierce, and Scott Sutton went to the home of
Ronald and Kenneth Reed to beat Kenneth’s ass or “fuck him up.” Defendant brought a
handgun and left it in Pierce’s truck, but Sutton later brought the gun to defendant, who
put it in his waistband and punched Ronald. The People’s theory was that defendant,
while armed with a loaded handgun, went to the Reed house in July 2018 with the intent
to commit the following felonies: (1) assault by means of force likely to produce great
bodily injury; and/or (2) battery causing serious bodily injury.
Defendant does not dispute that he was armed with a loaded handgun when he
went to the Reed house that day. He also does not challenge the sufficiency of the
evidence supporting a conclusion that he went there to commit an assault and/or battery.
However, simple assault and simple battery are not felonies. Assault by means of force
likely to produce great bodily injury is a felony. (§ 245, subd. (a)(4).) So is battery
causing serious bodily injury. (§ 243, subd. (d).) Defendant challenges the sufficiency of
the evidence supporting a conclusion that he went to the Reed house with the specific
intent to commit either felony.
Where, as here, a defendant asserts a sufficiency of the evidence challenge to a
conviction that is based on two legally valid theories, we must generally affirm if the
10
evidence is sufficient to support either theory. (People v. Guiton (1993) 4 Cal.4th 1116,
1127.) Because the evidence is sufficient to support a conclusion that defendant went to
the Reed house, while armed with a loaded firearm, with the intent to commit an assault
by means of force likely to produce great bodily injury, we need not assess whether the
evidence also supports a finding that he intended to commit a battery causing serious
bodily injury.
Defendant was convicted of armed criminal action, not assault by means of force
likely to produce great bodily injury. He argues that even though he could have been
convicted of the latter crime without specifically intending to use force likely to produce
great bodily injury, to be convicted of armed criminal action, he must have specifically
intended to use such force. We agree.
As stated previously, armed criminal action requires (1) carrying a loaded firearm,
(2) with the intent to commit a felony. (§ 25800, subd. (a).) Thus, in order to be
convicted of the offense based on his intent to commit an assault by means of force likely
to produce great bodily injury, defendant must have carried a loaded firearm with the
specific intent to commit an assault by using force likely to produce great bodily injury.
The evidence shows that defendant was angry at Kenneth for driving G.M. off of
the road. He went to the Reed house with Pierce and Sutton to “beat his ass” or “fuck
him up.” That statement supports a reasonable inference that defendant went to the Reed
house with the intent to commit more than a simple misdemeanor assault. Even though
defendant left his gun in the truck before walking over to the Reed house with Pierce,
“[o]ne may be guilty of assault by means of force likely to produce great bodily injury
though the attack is made by use of the hands. What force is likely to produce great
bodily injury is a question of fact to be determined by the jury.” (People v. Pierre (1960)
178 Cal.App.2d 585, 590-591.) Thus, even though defendant likely did not intend to
commit an assault with a firearm when he arrived at the Reed house armed with the
loaded firearm, the jury could have concluded that he nevertheless intended to assault
11
Kenneth with enough force to “fuck him up.” Whether that amount of force would
also be likely produce “significant or substantial injury” (People v. Brown (2012)
210 Cal.App.4th 1, 7) was for the jury to decide. Moreover, defendant used similar
language in describing what he planned to do to Hodgson when he went over to his
house. Based on what defendant did to Hodgson, the jury could reasonably have
concluded that he went to the Reed house with the intent not only to assault Kenneth,
but to do so by means of force likely to cause significant injury.
III
In addition, defendant contends the trial court incorrectly instructed the jury on the
intent required for the count 3 charge of armed criminal action. But he did not object to
the instructions he now challenges on appeal. “Failure to object to instructional error
forfeits the issue on appeal unless the error affects defendant’s substantial rights.
[Citations.] The question is whether the error resulted in a miscarriage of justice … .
[Citation.]” (People v. Anderson (2007) 152 Cal.App.4th 919, 927.) We conclude there
was no error, much less a miscarriage of justice.
The trial court provided the jury with the standard instruction on the elements of
armed criminal action in violation of section 25800: “To prove that the defendant is
guilty of this crime, the People must prove that: [¶] 1. The defendant carried a firearm;
[¶] 2. The defendant knew that he was carrying the firearm; [¶] 3. When the defendant
carried the firearm, he intended to commit Assault By Means of Force Likely to Cause
Great Bodily Injury … and/or Battery with Serious Bodily Injury … ; [¶] 4. The firearm
was loaded; [¶] [and] [¶] 5. The defendant knew that the firearm was loaded.” The
jury was also instructed that this was a specific intent crime, and that the specific intent
required was the intent to commit either of those felony offenses. The instructions
accurately set forth the elements of the crime, including the requisite specific intent.
Defendant does not argue to the contrary.
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The trial court then instructed the jury on the elements of assault by means of
force likely to cause great bodily injury (a section 245(a)(4) offense) and battery with
serious bodily injury (a section 243(d) offense), i.e., the crimes that defendant was
alleged to have intended to commit while he carried the loaded firearm. We need not set
forth those instructions in any detail. Defendant does not dispute that they correctly set
forth the elements of those offenses. He argues that because they are general intent
offenses, and the jury was so instructed, the jury would have been misled to believe “that
the prosecutor satisfied his burden of proving [defendant] intended to commit a felony
based on proof that he intended only a misdemeanor assault or battery.” He rests this
argument on the following language, contained in the instruction for the section 245(a)(4)
offense and the section 243(d) offense: “Someone commits an act willfully when he or
she does it willingly or on purpose. It is not required that he or she intend to break the
law, hurt someone else, or gain any advantage.” The section 245(a)(4) instruction also
stated: “The People are not required to prove that the defendant actually intended to use
force against someone when he acted.”
“We review a claim of instructional error de novo to ascertain whether the
instruction accurately states the applicable law. [Citation.] In doing so, we consider the
challenged instruction in the context of all the instructions given to the jury and the trial
record. [Citations.] ‘ “ ‘A defendant challenging an instruction as being subject to
erroneous interpretation by the jury must demonstrate a reasonable likelihood that the
jury understood the instruction in the way asserted by the defendant.’ ” ’ [Citation.] We
presume that jurors are capable of understanding and correlating the court’s instructions
and we further presume those instructions were followed by the jury. [Citations.]”
(People v. Pierce (2025) 114 Cal.App.5th 508, 534.)
Here, the jury was correctly instructed that in order to be convicted of armed
criminal action, defendant had to have possessed the specific intent to commit either the
section 245(a)(4) offense or the section 243(d) offense when he carried the loaded
13
firearm. The jury was also correctly instructed regarding the elements of each of those
offenses. Read together, any rational juror would have understood the instructions to
require defendant to have possessed the specific intent to satisfy each element of the
offenses. For example, as stated previously, the section 245(a)(4) offense requires both
(1) an assault, and (2) the force used must be likely to produce great bodily injury.
(People v. Covino (1980) 100 Cal.App.3d 660, 667.) Although it is a general intent
offense, because the armed criminal action instruction required defendant to have
specifically intended to commit the offense, the jury would have understood that
defendant had to have specifically intended to use force likely to produce great bodily
injury. This does not mean defendant had to have intended to inflict great bodily injury
(ibid.), but only that he “act[ed] with awareness of facts that would lead a reasonable
person to realize that great bodily injury would directly, naturally, and probably result
from his act.” (People v. Wyatt (2010) 48 Cal.4th 776, 781.)
Similarly, the section 243(d) offense requires both (1) a battery, and (2) “the use of
force or violence inflicted serious bodily injury on the other person.” (People v. Lewis
(2004) 120 Cal.App.4th 882, 887.) Although it is also a general intent offense, because
the armed criminal action instruction required defendant to have specifically intended to
commit the offense, the jury would also have understood that defendant had to have
specifically intended to use force that would inflict serious bodily injury.
The jury was properly instructed on the specific intent required for conviction of
armed criminal action. Notwithstanding the fact that the jury was also informed that the
section 245(a)(4) and section 243(d) offenses were themselves general intent offenses,
reading all of the instructions together, there is no reasonable likelihood that the jury
understood the instructions to require only a general intent to commit a misdemeanor
assault or battery.
14
IV
Defendant further asserts that the trial court should have stayed the sentence
imposed for either the count 2 conviction for carrying a concealed, loaded, and
unregistered firearm in a vehicle, or the count 3 conviction for armed criminal action.
The People agree.
“[S]ection 654, subdivision (a), prohibits ‘punish[ment] under more than one
provision’ for any ‘act or omission that is punishable in different ways by different
provisions of law.’ ” (People v. Corpening (2016) 2 Cal.5th 307, 309.) That section
“applies not only where there was but one act in the ordinary sense, but also where there
was a course of conduct which violated more than one statute but nevertheless constituted
an indivisible transaction. [Citation.] Whether a course of conduct is indivisible depends
upon the intent and objective of the actor. [Citation.] If all the offenses were incident to
one objective, the defendant may be punished for any one of such offenses but not for
more than one.” (People v. Perez (1979) 23 Cal.3d 545, 551.)
Whether a defendant possessed a single intent and objective is a factual
question subject to substantial evidence review on appeal. (People v. Moseley (2008)
164 Cal.App.4th 1598, 1603.) However, where the facts are undisputed, whether
section 654 precludes multiple punishment is a legal question, subject to de novo review.
(People v. Goode (2015) 243 Cal.App.4th 484, 493.)
During closing argument, the prosecutor argued the count 2 and 3 crimes were
based on the same act of carrying a loaded firearm in Pierce’s truck when defendant went
to the Reed house. After the jury found defendant guilty of both crimes, the trial court
sentenced defendant to the middle term of two years on count 2 and eight months (one-
third the middle term) on count 3. But as the People concede, “[b]ecause the physical act
underlying both counts was the same, it ‘cannot give rise to multiple punishment.’ ”
According to the People, the evidence adduced at trial would support a finding that
defendant also possessed the gun outside of Pierce’s truck, when Sutton brought it to him
15
and defendant put it in his waistband prior to punching Ronald. However, as the People
concede, “to the extent counts 2 and 3 ‘involved multiple divisible acts of carrying a
firearm that day, they were plainly part of one indivisible course of conduct, namely,
[defendant’s] single trip to and from the [Reed house] to confront the brothers.’ ”
We will therefore vacate defendant’s sentence and remand the matter for a full
resentencing hearing, during which the trial court shall exercise its discretion with respect
to which sentence to stay under section 654. (See People v. Buycks (2018) 5 Cal.5th 857,
893; People v. Jones (2022) 79 Cal.App.5th 37, 46.)
V
Defendant claims the trial court erred by failing to dismiss the firearm
enhancement. Although we need not address this claim of sentencing error given that we
will remand for resentencing, for the purposes of providing guidance on remand, we
conclude the claim lacks merit.
“Effective January 1, 2022, Senate Bill No. 81 (2021-2022 Reg. Sess.) (Stats.
2021, ch. 721, § 1) added subdivision (c) to section 1385, providing in relevant part that
‘the court shall dismiss an enhancement if it is in the furtherance of justice to do so.’
(§ 1385, subd. (c)(1).) Section 1385, subdivision (c)(2) further provides: ‘In exercising
its discretion under this subdivision, the court shall consider and afford great weight to
evidence offered by the defendant to prove that any of the mitigating circumstances in
subparagraphs (A) to (I) are present. Proof of the presence of one or more of these
circumstances weighs greatly in favor of dismissing the enhancement, unless the court
finds that dismissal of the enhancement would endanger public safety. “Endanger public
safety” means there is a likelihood that the dismissal of the enhancement would result in
physical injury or other serious danger to others.’ ” (People v. Torres (2025) 113
Cal.App.5th 88, 92 (Torres).)
As in Torres, defendant “contends only one mitigating circumstance enumerated
in section 1385 applies, subdivision (c)(2)(C), which provides in relevant part: ‘The
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application of an enhancement could result in a sentence of over 20 years.’ ” (Torres,
supra, 113 Cal.App.5th at p. 92.) However, also like Torres, defendant was sentenced
well after the effective date of the new subdivision, and he “did not object or raise any
issue under this subdivision in the trial court. Failure to do so forfeits the issue on
appeal.” (Ibid.)
In Torres, this court nevertheless addressed the defendant’s claim on the merits
notwithstanding the forfeiture, holding that section 1385, subdivision (c)(2)(C) did not
apply because his sentence exceeded 20 years without the enhancement. This court
explained that “subdivision (c)(2)(C) of section 1385 provides in relevant part, ‘The
application of an enhancement could result in a sentence of over 20 years.’ A sentence
exceeding 20 years could result from an enhancement where a sentence of that length
arises as a consequence of the enhancement. [Citation.] Thus, the effect of applying the
enhancement itself leads to a sentence exceeding 20 years. The word result denotes a
causal relationship between the enhancement and a sentence exceeding 20 years.
Accordingly, this subdivision concerns ‘enhancements increasing [a] sentence above 20
years.’ [Citation.] In this instance, the sentence already exceeded 20 years without any
enhancement, so application of the firearm enhancement did not result in the effect
addressed by this provision.” (Id. at p. 93.)
Torres is directly on point. The trial court sentenced defendant to LWOP for
special circumstance murder, plus 25 years to life for the firearm enhancement, plus two
years eight months on counts 2 and 3. The sentence exceeded 20 years without the
enhancement. And because “the enhancement itself does not ‘result’ in a sentence
exceeding 20 years,” section 1385, subdivision (c)(2)(C) does not apply. (Torres, supra,
113 Cal.App.5th at p. 93.)
Defendant disagrees with Torres and “encourages [this] court to reconsider that
decision.” Having considered his arguments, we decline to deviate from that holding.
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DISPOSITION
Defendant’s convictions are affirmed, the sentence is vacated, and the matter
is remanded for a full resentencing hearing. Following resentencing, the trial court
shall prepare a new abstract of judgment and forward a certified copy to the Department
of Corrections and Rehabilitation.
/S/
MAURO, J.
We concur:
/S/
EARL, P. J.
/S/
ROBIE, J.
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