Filed 9/4/26 P. v. Vilaysane CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D086283
Plaintiff and Respondent, (Super. Ct. No. SCD304942)
v.
SOMSY VILAYSANE,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Rachel Cano, Judge. Affirmed as modified.
Richard Jay Moller, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant
Attorney General, Arlene A. Sevidal, Assistant Attorney General, Eric A.
Swenson and Anastasia Sagorsky, Deputy Attorneys General, for Plaintiff
and Respondent.
INTRODUCTION
A jury convicted Somsy Vilaysane of nine counts of burglary (Pen.
Code,1 § 459), three counts of vandalism (§ 594, subds. (a), (b)(1) & (2)(A)),
and three counts of attempted burglary (§§ 459 & 664). On appeal, Vilaysane
contends section 654 barred punishment for the vandalism counts because
those offenses involved the same course of conduct and objective as the
attempted burglaries. The People agree that the trial court erred when it
failed to apply section 654 to stay punishment on all three counts of
vandalism. We accept the People’s concession and modify the judgment to
correct these errors.
FACTS AND PROCEDURAL BACKGROUND
In late 2024, Vilaysane committed a series of commercial burglaries
and attempted burglaries. Vilaysane’s method generally involved throwing a
rock through the front window of a restaurant, entering, taking cash from the
register, and absconding. Surveillance video depicts multiple incidents.
Vilaysane was charged with 14 counts of burglary (§ 459; counts 1, 2, 3,
6, 7, 8, 9, 10, 11, 14, 17, 18, 19, and 20), three counts of vandalism (§ 594,
subds. (a), (b)(2)(A); count 5 [misdemeanor vandalism]; id., subds. (a), (b)(1));
counts 13 and 16 [felony vandalism]), and three counts of attempted burglary
(§§ 459 & 664; counts 4, 12, and 15). The complaint further alleged out-on-
bail enhancements for counts 6 through 20. A jury convicted Vilaysane of
nine counts of burglary, as well as the vandalism and attempted burglary
counts.
1 Undesignated statutory references are to the Penal Code.
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Before sentencing, Vilaysane admitted to the out-on-bail
enhancements; he sought probation or alternatively a sentence of seven years
and four months. He contended that section 654 prohibited punishment on
each of the vandalism counts related to the attempted burglary convictions.
The trial court sentenced Vilaysane to a total term of 10 years and four
months. Vilaysane’s sentence consisted of consecutive terms of: two years
doubled for an out-on-bail enhancement for a total of four years on count 6;
four months each on counts 4, 12 and 15; and eight months each for counts 7,
10, 11, 14, 17, 18, 19, 20.2 Regarding the vandalism counts, the court
indicated those punishments would not run consecutively because they “are
654.” The court pronounced, “On [c]ount 5, the misdemeanor [vandalism],
the Court will . . . sentence Mr. Vilaysane to 364 days concurrent with the
felony counts”; “[c]ount 13 will be concurrent, as that is 654, so that will be
two years concurrent”; and, “[o]n [c]ount 16, two years concurrent, as it is
654.”
The abstract of judgment checked the box “654 STAY” for the
vandalism counts 13 and 16, but it made no reference to the two-year
concurrent term that the court orally articulated for each. As to the count 5
vandalism conviction, the abstract of judgment and minutes of the court
imposed a concurrent term of 364 days. No box was checked staying that
punishment.
DISCUSSION
“Section 654 ‘generally precludes multiple punishments for a single
physical act that violates different provisions of law [citation] as well as
2 The trial court exercised its discretion to strike the remaining out-on-
bail enhancements.
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multiple punishments for an indivisible course of conduct that violates more
than one criminal statute.’ [Citations.] ‘ “Whether a course of criminal
conduct is divisible and therefore gives rise to more than one act within the
meaning of section 654 depends on the intent and objective of the actor. If all
of the offenses were incident to one objective, the defendant may be punished
for any one of such offenses but not for more than one.” ’ ” (In re Raymundo
M. (2020) 52 Cal.App.5th 78, 94, fn. omitted (Raymundo M.).)
“ ‘If, on the other hand, “[the defendant] entertained multiple criminal
objectives which were independent of and not merely incidental to each other,
he may be punished for independent violations committed in pursuit of each
objective even though the violations shared common acts or were parts of an
otherwise indivisible course of conduct.” ’ ” (Raymundo M., supra, 52
Cal.App.5th at p. 94.)
When a trial court determines that section 654 prohibits multiple
punishments, it must impose a sentence for the conviction for which
punishment is disallowed but stay its execution. (People v. Duff (2010) 50
Cal.4th 787, 796 (Duff).) Dismissal or imposition of a concurrent sentence is
prohibited. (Ibid.)
The parties do not dispute that section 654 applies to bar punishment
for the vandalism counts in this case. Substantial evidence supports that
Vilaysane harbored a singular criminal intent and objective when he threw a
rock through the windowfronts of each of the restaurants—to access the
premises to commit theft. The trial court was accordingly required to impose
a sentence for each of the vandalism counts, and to stay the execution of
those punishments. (Duff, supra, 50 Cal.4th at p. 796.)
Here, the trial court pronounced that punishments for the vandalism
counts would run concurrently. While the court recognized that the
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vandalism counts “are 654,” the court did not verbally stay the execution of
these concurrent duplicative terms. As the People recognize, the court’s
statements show it believed it was satisfying the requirements of section 654
by running the sentences for vandalism concurrently. But, as explained,
section 654 prohibits multiple punishments when a course of criminal
conduct is aimed at a singular objective despite that the conduct violates
multiple criminal statutes. (Duff, supra, 50 Cal.4th at p. 796.) In such cases,
imposition of a concurrent sentence for the violation for which punishment is
disallowed is forbidden. (Ibid.)
While the trial court’s abstract of judgment properly stayed execution
of punishment on vandalism counts 13 and 16, the abstract of judgment is
not the judgment of conviction and does not control when it differs from the
trial court’s oral judgment. (See People v. Mitchell (2001) 26 Cal.4th 181,
185.) Here, the court’s language at sentencing was ambiguous: it said the
vandalism counts would be “concurrent” and they “are 654” without expressly
staying imposition of the concurrent sentences. Because the trial court
verbally imposed an unauthorized sentence in violation of section 654, we
direct that the abstract of judgment be corrected to the extent necessary to
comply with section 654.
DISPOSITION
Vilaysane’s convictions are affirmed. We modify the judgment to
impose: a concurrent two-year term on count 13, stayed pursuant to section
654; a concurrent two-year term on count 16, stayed pursuant to section 654;
and a concurrent 364-day term on count 5, stayed pursuant to section 654.
The trial court is directed to prepare an amended abstract of judgment to
reflect the corrected sentence and send a copy of the amended abstract of
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judgment to the Department of Corrections and Rehabilitation. As modified,
the judgment is affirmed.
HUFFMAN, J.
WE CONCUR:
MCCONNELL, P. J.
CASTILLO, J.
Retired Associate Justice of the Court of Appeal, Fourth Appellate
District, assigned by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
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