Filed 8/24/26 P. v. Carreon CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E085004
v. (Super.Ct.No. FWV24002007)
BRIAN CHRISTOPHER CARREON, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Melissa A.
Rodriguez, Judge. Affirmed as modified.
Lindsey M. Ball, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Assistant Attorney General,
Arlene A. Sevidal, Collette C. Cavalier and Kathryn Kirschbaum, Deputy Attorneys
General, for Plaintiff and Respondent.
1
I.
INTRODUCTION
A jury convicted defendant and appellant Brian Christopher Carreon of using a
destructive device or explosive with the intent to injure, intimidate, or terrify any person,
or with the intent to wrongfully injure or destroy any property (Pen. Code,1 § 18740;
count 1); possession of a destructive device (§ 18710; count 2); possession of the
ingredients to make a destructive device or explosive (§ 18720; count 3); and unlawful
possession of a firearm (§ 29800, subd. (a)(1); count 4). In a bifurcated proceeding, the
trial court found true that defendant had sustained a prior serious felony conviction
(§ 667, subd. (a)) and a prior strike conviction (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-
(i)). The court also found true five factors in aggravation. The trial court sentenced
defendant to a total term of 19 years in state prison as follows: the upper term of seven
years on count 1, doubled to 14 years due to the prior strike, plus an additional five years
for the prior serious felony conviction; counts 2 and 3 were stayed pursuant to
section 654; and a concurrent 16-month sentence on count 4. On appeal, defendant
contends the trial court erred in imposing an upper term sentence on count 1 and that
remand is required for a new sentencing hearing because the court abused its discretion in
relying on three factors in aggravation. He further argues that the record supports
imposition of a lower term sentence under section 1170, subdivision (b)(6), due to alleged
1 All future statutory references are to the Penal Code unless otherwise stated.
2
childhood trauma. We affirm the judgment as modified to correct unauthorized sentences
on counts 2, 3 and 4.
II.
FACTUAL AND PROCEDURAL BACKGROUND
A. Factual Background
In 2023, Jane Doe, while married at the time, began casually dating defendant.
During their relationship, about once or twice a month, defendant would talk to Jane
about making explosives and amateur bomb making. Defendant often used coded
language, and said he was “making baskets for the homeless” instead of saying he was
making explosives. On one occasion, defendant exploded a device on his dining table in
his trailer.
When Jane and defendant argued, defendant threatened Jane that he would get her
attention “one way or another.” On one occasion in February 2023, when defendant and
Jane were arguing, defendant left an explosive device in the bushes outside Jane’s former
apartment. When the device exploded, a rubber piece of the device struck Jane’s window,
and the bushes caught on fire. Defendant later admitted to Jane that he was responsible
for the explosion. On another occasion in April 2023, when defendant and Jane were not
getting along, defendant delivered a package to Jane’s door. Jane did not open the
package because she did not know if there was an explosive device inside. Law
enforcement later opened the package and discovered a live snake inside. Defendant
admitted to delivering the box to Jane’s apartment.
3
Jane eventually moved and did not tell defendant her new address. Jane attempted
to break off her relationship with defendant by blocking his communication with her.
Defendant messaged her telling her that he knew her new address and had “a basket” or
“a surprise” ready for her.
About a year later, at approximately 4:30 p.m., on June 3, 2024, Jane’s neighbor
walked out to their shared mailbox area at Jane’s new apartment complex, where she saw
a device fixed with a timer, two black tubes, and a red wire with a battery. The device
was sitting at the base of the mailbox. Jane’s neighbor called the police, who responded
within five minutes. Jane’s neighbor notified Jane, who spoke to police when they
arrived. Jane reported that defendant may have left the homemade explosive device near
the cluster of shared mailboxes and provided his phone number.
When law enforcement arrived, they observed the homemade device and
evacuated the area. The device was comprised of PVC pipes, wires, and fuses, with a
battery on the bottom and a timer on the top. The PVC pipe was loaded with “flash
powder,” made from potassium perchlorate and aluminum powder, which was later found
to be energetic. There were electric matches on the side of the device. A certified bomb
expert noted that the device appeared to be “a functioning time bomb.” It took the bomb
expert one and a half to two hours to render the device safe. The bomb expert tested how
energetic the flash powder was by placing a five gram sample on the ground and lighting
it with an open flame. The substance instantly ignited with a couple of sparks, creating a
bright flash and a puff of smoke. The bomb expert concluded that the device was
4
energetic enough to support a bomb. The bomb expert did not test the operability of the
egg timer. The electronic match did not function.
Law enforcement obtained a search warrant for defendant’s trailer residence in
Devore. During the search of defendant’s trailer on June 8, 2024, police found a AAA
battery from the same lot number as the battery found in the bomb, a variety of gun
powders, a glue gun with black glue that was similar to glue found on the device’s PVC
pipe, PVC pipes in the same diameter as the device’s PVC pipe, green hobby fuse, egg
timers, electric matches, books on how to build fireworks, and a rifle.
Defendant’s former friend, Richard Hamic, had seen defendant with explosives
more than 20 times when they lived and worked together. Hamic also suspected that
defendant stole his SKS rifle from his safe, which was identified as the rifle found in
defendant’s Devore trailer. Hamic and defendant’s relationship did not end on good
terms, as Hamic had evicted defendant in June 2023. Hamic believed that defendant
would become excited about building and igniting explosives. Hamic noted that when
defendant began making explosives, he would “just take tubes, fill them with powder,
make his own little explosive device and set them off.”
Defendant’s new girlfriend, friend and landlord/employer testified on behalf of
defendant at his trial. Defendant’s girlfriend stated that she had never seen defendant
make any sort of explosive device. Defendant’s friend testified that Jane was not a
truthful person or good person and cited her affair with defendant as an example.
Defendant’s landlord/employer testified that defendant set off explosives on the property,
5
but that he did so to help with the construction of a road on the property. He noted that
defendant was living and performing construction jobs on his property between 2023 and
2024 and that defendant would drill a hole into the boulder, insert black powder, ignite it,
and the boulder would crack open to become easier to maneuver.
B. Procedural Background
After the jury convicted defendant of using a destructive device or explosive with
the intent to injure, intimidate, or terrify any person, or with the intent to wrongfully
injure or destroy any property (§ 18740; count 1); possession of a destructive device
(§ 18710; count 2); possession of the ingredients to make a destructive device or
explosive (§ 18720; count 3); and unlawful possession of a firearm (§ 29800,
subd. (a)(1); count 4), in a bifurcated proceeding, the trial court found true that defendant
had sustained a prior serious felony conviction (§ 667, subd. (a)) and a prior strike
conviction (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(i)).
Defendant also elected a court trial on the alleged factors in aggravation based on
the evidence adduced at trial, a certified rap sheet, and conviction packets. The
prosecutor argued that six aggravating factors applied: (1) the crime involved the threat
of great bodily harm; (2) the victim was particularly vulnerable; (3) the crime was carried
out in a sophisticated manner; (4) defendant engaged in conduct that is a serious danger
to society; (5) defendant’s prior convictions were numerous; and (6) defendant had served
a prior prison term. The trial court disagreed that the victim was particularly vulnerable
but found true the remaining five aggravating circumstances.
6
Specifically, the prosecutor argued that the “[c]rime involved great violence, great
bodily harm, threat of great bodily harm, or other acts disclosing a high degree of cruelty,
viciousness or callousness” because the device could have detonated, causing injury to
Jane or her neighbors. Defense counsel objected, pointing out that under CALCRIM
No. 3224, the relevant jury instruction, the prosecution failed to prove that the device
threatened to inflict great bodily harm. The trial court disagreed and found true the factor
in aggravation “[b]ased upon the evidence that was presented at trial, as well as the
expert’s testimony that had the device detonated it could have caused great bodily harm
or death to others . . . .”
The prosecutor also argued that the manner in which the crime was carried out
indicates planning, sophistication, or professionalism because the timer made the bomb
into a sophisticated bomb. Defense counsel objected, stating the evidence did not show
that the bomb was particularly sophisticated or that it required much planning in light of
the fact that defendant already used explosives for work. The trial court found true the
factor in aggravation based on “the level of planning that was carried out, the
sophistication involved in making explosives, as well as the timer that was used and the
removing of the center of the timer and placing the paperclip in place of the center of the
timer.”
The prosecutor further argued that defendant has engaged in violent conduct that
indicates a serious danger to society. Defense counsel objected, arguing there is no
evidence that the device would detonate causing great bodily injury. The trial court found
7
true the factor in aggravation, explaining “The Court does believe that the placing of an
IED outside of a mailbox where other residents live and people live and could have come
into contact with it and could have potentially suffered serious bodily injury or death
based upon the expert’s testimony, the Court does believe that 8 is an aggravating factor.”
Before sentencing, defense counsel filed a sentencing brief in which she requested
that the trial court impose the low term pursuant to section 1170, subdivision (b)(6).
Defense counsel argued defendant has experienced “psychological, physical, or
childhood trauma, including, but not limited to, abuse, neglect, exploitation, or sexual
violence,” based on a confidential letter from defendant’s sister. The People thereafter
filed their sentencing brief. The People argued that the interest of justice would not be
served by imposing the lower or middle term as the aggravating circumstances
outweighed the mitigating circumstances and that the court should deny defendant’s
motion to strike his prior strike conviction.
At the sentencing hearing, the trial court acknowledged that it could not exceed the
middle term unless it found that the circumstances in aggravation justified an upper term
sentence. The court also noted that it was required to consider defendant’s alleged
childhood trauma, which it noted as being “mentioned” in defense counsel’s sentencing
brief. The court denied defendant’s motion to strike his prior strike conviction and
imposed the upper term on count 1, relying on the five aggravating circumstances the
court had previously found to be true. The court explained as follows: “Pursuant to
Rule 4.420 and selecting the term of imprisonment pursuant to Rule A, the Court must
8
not exceed the middle term unless the Court has considered the circumstances in
aggravation of the crime that justified the upper term that the Court found true pursuant
to the court trial. The Court does note that there were five aggravating factors that the
Court found true. The Court also notes that pursuant to Rule 4.420 and Penal Code
section 1170(B)(1), the Court shall not impose the upper term without considering
childhood trauma, which includes physical abuse and neglect, mentioned by [defense
counsel] in her moving papers related to the defendant’s upbringing. [¶] The Court has
also considered the following factors [in] aggravation pursuant to Rule 4.421. The crime
involved great violence, the threat of great bodily harm, and displayed a high degree of
cruelty, viciousness or callousness. The defendant was convicted of other crimes for
which consecutive sentences could have been imposed but for which concurrent
sentences are being imposed. The manner in which the plan was carried out indicates
planning, sophistication or professionalism. [¶] In terms of 4.421 subsection (b) factors
relating to the defendant, the defendant has engaged in violent conduct that indicates a
serious danger to society. The defendant’s prior convictions as an adult are numerous or
of increasing serious[ness]. [¶] The defendant has served a prior term in prison. [¶] In
terms of Rule 4.423, the circumstances in mitigation, the Court finds that there are no
circumstances in mitigation that apply as to subsection (a) factors relating to the crime.
As to subsection (b), the Court does find that factors relating to the defendant include
No. 3, the defendant experienced physical childhood trauma that included abuse or
potentially neglect as defined in the moving papers by [defense counsel]. [¶] In terms of
9
the appropriate sentence, the defendant was armed with a weapon, he was an active
participant and the crime carried out demonstrated criminal sophistication.”
The court thus sentenced defendant to an aggregate term of 19 years in state prison
with 321 days credit for time served as follows: the upper term of seven years on
count 1, doubled to 14 years due to the prior strike, plus an additional five years for the
prior serious felony conviction; counts 2 and 3 were stayed pursuant to section 654; and a
concurrent 16-month sentence on count 4. Defendant timely appealed.
III.
DISCUSSION
Defendant contends the trial court erred in imposing an upper term sentence on
count 1 and that remand is required for a new sentencing hearing because the court
abused its discretion in relying on three factors in aggravation. He also appears to argue
that the record supports imposition of a lower term sentence under section 1170,
subdivision (b)(6) due to alleged childhood trauma.
We review for abuse of discretion the trial court’s discretionary sentencing
decisions. (People v. Salazar (2023) 15 Cal.5th 416, 428, fn. 8.) “Under an abuse of
discretion standard, ‘ “we ask whether the trial court’s findings of fact are supported by
substantial evidence, whether its rulings of law are correct, and whether its application of
the law to the facts was neither arbitrary nor capricious.” ’ ” (People v. Garcia (2024)
101 Cal.App.5th 848, 857; see People v. Hilburn (2023) 93 Cal.App.5th 189, 206 [“That
‘discretion must be exercised in a manner that is not arbitrary and capricious, that is
10
consistent with the letter and spirit of the law, and that is based upon an “individualized
consideration of the offense, the offender, and the public interest.” ’ ”].)
“The abuse of discretion standard is highly deferential.” (People v. Mendoza
(2023) 88 Cal.App.5th 287, 298.) “First, ‘ “[t]he burden is on the party attacking the
sentence to clearly show that the sentencing decision was irrational or arbitrary.
[Citation.] In the absence of such a showing, the trial court is presumed to have acted to
achieve legitimate sentencing objectives, and its discretionary determination to impose a
particular sentence will not be set aside on review.” ’ [Citations.] Second, a ‘ “decision
will not be reversed merely because reasonable people might disagree. ‘An appellate
tribunal is neither authorized nor warranted in substituting its judgment for the judgment
of the trial judge.’ ” ’ [Citations.] Taken together, these precepts establish that a trial
court does not abuse its discretion unless its decision is so irrational or arbitrary that no
reasonable person could agree with it.” (People v. Carmony (2004) 33 Cal.4th 367, 376-
377.)
Effective January 1, 2022, Senate Bill No. 567 amended section 1170, the
determinate sentencing law. (Stats. 2021, ch. 731, § 1.3.) The legislation amended
section 1170, subdivision (b)(2), to prohibit imposition of an upper term sentence unless
circumstances in aggravation justify the upper term and the facts underlying those
circumstances “have been stipulated to by the defendant or have been found true beyond
a reasonable doubt at trial by the jury or by the judge in a court trial.” (§ 1170,
subd. (b)(2).)
11
The legislation also amended section 1170, subdivision (b)(6), to make the lower
term the presumptive sentence “if any of the following was a contributing factor in the
commission of the offense: [¶] (A) The [defendant] has experienced psychological,
physical, or childhood trauma, including, but not limited to, abuse, neglect, exploitation,
or sexual violence. [¶] (B) The person is a youth or was a youth . . . at the time of the
commission of the offense. [¶] (C) Prior to the instant offense, or at the time of the
commission of the offense, the person is or was a victim of intimate partner violence or
human trafficking.” (Ibid.) The lower-term presumption may be overcome if the court
“finds that the aggravating circumstances outweigh the mitigating circumstances [such]
that imposition of the lower term would be contrary to the interests of justice.” (§ 1170,
subd. (b)(6).)
California Rules of Court, rule 4.421, subdivisions (a) and (b), list the three
circumstances in aggravation at issue here: the crime involved great violence, great
bodily harm, threat of great bodily harm, or other acts disclosing a high degree of cruelty,
viciousness, or callousness (rule 4.421(a)(1)); the manner in which the crime was carried
out indicates sophistication (rule 4.421(a)(8)); and the defendant has engaged in violent
conduct that indicates a serious danger to society (rule 4.421(b)(1)).2 Contrary to
defendant’s contention, we find substantial evidence supports the challenged aggravating
circumstances to support the upper term sentence.
2 Undesignated rule references are to the California Rules of Court.
12
CALCRIM No. 3224 discusses the aggravating factor involving great violence,
great bodily harm, and/or a high degree of cruelty, viciousness, and/or callousness. The
instruction defines all of these terms. For instance, “[a]n act discloses cruelty when it
demonstrates the deliberate infliction of physical or mental suffering.” (Ibid.) “An act
discloses callousness when it demonstrates a lack of sympathy for the suffering of, or
harm to, the victim[s].” And “[v]iciousness means dangerously aggressive or marked by
violence or ferocity. Viciousness is not the same as violence. For example, some acts
which may be described as vicious do not involve violence at all, but rather involve acts
such as deceit and slander. On the other hand, many violent acts do not indicate
viciousness, but instead show frustration, justifiable rage, or self-defense.” (Ibid., italics
omitted.)
CALCRIM No. 3234 involving violent conduct that is a serious danger to society
does not define violent conduct but states: “To determine whether the defendant is a
serious danger to society, you may consider the defendant’s conduct before or after
commission of the crime [as well as evidence about the defendant’s background].” And
the two instructions additionally provide: “You may not find the allegation true unless all
of you agree that the People have proved that the defendant’s conduct was distinctively
worse than an ordinary commission of the underlying crime.” (CALCRIM Nos. 3224;
see CALCRIM No. 3234.)
In this case, the above requirements were met. Defendant left a timed explosive
device near a group of shared mailboxes outside an apartment complex. When the bomb
13
was discovered by Jane’s neighbor, there were multiple people nearby, including Jane and
her three grandchildren, who were getting ready to go swimming. When the police
arrived, they had to evacuate the residents in the apartment complex. A bomb expert
testified that someone in close proximity to the device when it ignited would experience
“some type of great bodily injury or even death.” Moreover, defendant’s action disclosed
“callousness when it demonstrates a lack of sympathy for the suffering of, or harm to, the
victim[s].” (CALCRIM No. 3224.)
Under these circumstances, the threat of bodily harm and callousness posed by
defendant’s conduct was “distinctively worse” than what was necessary to commit a
section 18740 violation. A person is guilty under section 18740 if they only possess a
device with the requisite intent. (§ 18740.) Defendant not only possessed the homemade
explosive device, he chose to bring it to a public place and leave it where it could injure
or kill anyone in close proximity when it detonated. Furthermore, section 18740 does not
require an intent to injure anyone—one can be found guilty under the statute if they
possess, use, or attempt to use a destructive or explosive device with the intent to cause
only property damage. (§ 18740.) Here, however, defendant’s actions threatened far
more than property damage. He left his device in a residential area where multiple
people would approach it to check their mailboxes, putting all those people at risk of
harm. His conduct also showed callousness because he showed a lack of sympathy for
the suffering of, or harm to, the victims. There was sufficient evidence to support the
14
trial court’s true finding that the crime involved threat of great bodily harm, or other acts
disclosing a high degree of callousness (rule 4.421(a)(1)).
In arguing otherwise, defendant primarily argues that the People failed to show
that the device was operational, and therefore the device could not pose a threat of great
bodily harm. However, there was sufficient evidence that the device was operational.
While it does not appear as though the bomb expert actually detonated the device, the
bomb expert testified that the device appeared to be “a functioning time bomb.” Police
conducted a “burn test” on the device and saw that the flash powder ignited, providing
that it was “energetic.” Police also tested the hobby fuse and found it to be functional.
While the bomb expert testified that he was unable to test the egg timer attached to the
device, he explained that the timer was modified such that the knob was removed and
replaced with a paper clip. The bomb expert opined that if the paper clip had connected
with another metal clip elsewhere on the device, that would have completed the electrical
circuit, causing the device to ignite. The testimony of the bomb expert was sufficient
proof that the device was capable of causing great bodily injury. In any event, even if the
device was not proven to be operational, appellate courts have repeatedly held that a
device need not be ready to detonate or contain all of the necessary parts before it can
qualify as a destructive device. (People v. Morse (1992) 2 Cal.App.4th 620, 646-647
[safety device preventing bomb from detonating did not disqualify the bomb as a
destructive device]; People v. Heideman (1976) 58 Cal.App.3d 321, 335 [rejecting the
15
defendant’s argument that he did not possess a destructive device because he possessed
dynamite but did not possess the blasting caps necessary to detonate the dynamite].)
For these same reasons, we reject defendant’s claim that there was insufficient
evidence to show defendant has engaged in violent conduct that indicates a serious
danger to society (rule 4.421(b)(1)). As previously noted, to determine whether
defendant is a serious danger to society, the court could consider defendant’s conduct
before or after commission of the offense. (CALCRIM No. 3234.) The trial court must
also find that the violent conduct was distinctively worse than that posed by an ordinary
commission of the underlying crime. (CALCRIM No. 3234.)
As discussed previously, a violation of section 18740 does not require an intent to
injure a person, as the intent to destroy property is sufficient. Defendant here not only
intended to injure Jane, his conduct demonstrated a willingness to injure, intimidate, or
terrify any and all of the residents of the apartment complex where he left his explosive
device by the shared mailbox area. By leaving the device next to the shared mailboxes—
a location that all residents would likely visit on a daily basis—defendant was potentially
exposing all of the residents to harm. Because defendant’s conduct indicated a readiness
to expose large numbers of innocent people to harm, it was “distinctively worse” than
that necessary to commit the offense, as that could be accomplished by only an intent to
damage property or by an intent to intimidate a single, targeted victim. In addition,
defendant’s background showed that this was not an isolated incident. He had a history
of making homemade bombs and leaving them at Jane’s residence when he was upset
16
with her. The evidence also showed that defendant’s trailer contained ample material for
making additional explosive or destructive devices. There was substantial evidence to
support the trial court’s true finding that defendant posed a risk not only to Jane, but to
society at large.
We also reject defendant’s challenge that there was insufficient evidence to
support the trial court’s true finding that the manner in which the crime was carried out
indicates sophistication or professionalism (rule 4.421(a)(8)). CALCRIM No. 3230
instructs that to prove the sophistication or professionalism aggravating factor, “the
People must prove that the defendant’s manner of committing the crime involved
planning, sophistication, or professionalism[,]” which “depends on the totality of the
circumstances surrounding the offense.” The instruction defines “sophistication” as
referring “to conduct demonstrating knowledge or awareness of the complexities or
details involved in committing the crime.” “Professionalism” is defined as referring “to
conduct demonstrating particular experience or expertise.” As with the previous
circumstances in aggravation, the factfinder should also find that the defendant’s conduct
was distinctively worse than an ordinary commission of the underlying crime.
As explained previously, an “ordinary” commission of section 18740 can involve
far less sophistication than defendant demonstrated here. Section 18740, which penalizes
use and possession of both explosives and destructive devices, can be violated in several
ways, including by possession of “any projectile containing any explosive or incendiary
material or any other chemical substance” or possession of “any breakable container that
17
contains a flammable liquid with a flashpoint of 150 degrees Fahrenheit or less and has a
wick.” (See CALCRIM No. 2573; § 16460 [defining destructive devices].) Defendant
here manufactured an explosive timed device that included a modified egg timer, electric
matches, hobby fuses, PVC pipes, and flash powder made from multiple chemical
substances. There was also evidence that defendant’s bomb-making grew increasingly
more sophisticated over time. One witness testified that when defendant first began
making explosives, he would “just take tubes, fill them with powder, make his own little
explosive device and set them off.” The explosive device at issue here was more
sophisticated, as it included a modified timer, electric matches, a battery, and hobby
fuses. As such, the trial court properly found the manner in which the crime was carried
out indicates sophistication or professionalism (rule 4.421(a)(8)).
In addition to arguing that his device was not sufficiently sophisticated to warrant
an aggravated sentence or shown to be operational, defendant further argues that because
he “already had the foundational knowledge to effectuate the crime” due to his
background in construction, “no additional planning or sophistication was involved in
this particular incident.” He appears to argue that even if the device was sophisticated, he
should not be punished for that sophistication since he gained the expertise for a non-
criminal purpose. This argument lacks merit. A sentence can properly be aggravated
under this circumstance if the offense can be shown to involve planning or sophistication
or professionalism—it does not matter how, when, or why the defendant gained the
knowledge or experience for that level of sophistication. Because defendant’s explosive
18
device far exceeded the minimal level of sophistication necessary for a conviction under
section 18740, there is substantial evidence to support this aggravating factor.
Finally, we reject defendant’s claim that a lower term sentence should have been
imposed under section 1170, subdivision (b)(6), due to childhood trauma. The trial court
here accepted defense counsel’s claim of childhood trauma and considered it before
imposing the upper term on count 1. The trial court noted “that pursuant to Rule 4.420
and Penal Code section 1170(b)(1), the Court shall not impose the upper term without
considering childhood trauma, which includes physical abuse and neglect, mentioned by
[defense counsel] in her moving papers related to the defendant’s upbringing.” The court
also stated “In terms of Rule 4.423, the circumstances in mitigation, the Court finds that
there are no circumstances in mitigation that apply as to subsection (a) factors relating to
the crime. As to subsection (b), the Court does find that factors relating to the defendant
include No. 3, the defendant experienced physical childhood trauma that included abuse
or potentially neglect as defined in the moving papers by [defense counsel].” The court,
however, impliedly concluded the aggravating circumstances outweighed the mitigating
circumstance such that “imposition of the lower term would be contrary to the interests of
justice.” (§ 1170, subd. (b)(6).)
Defendant’s arguments are not persuasive. The trial court provided substantial
detail regarding its discretionary determination that the factors found in aggravation
outweighed those found in mitigation. Unlike People v. Moreno (1982) 128 Cal.App.3d
103, 110 (Moreno), cited by defendant, where the court improperly determined use of a
19
knife to commit a violent felony was sufficient to support the upper term, the trial court’s
decision in this case focused on a wide array of facts related to the offenses and
defendant, including the threat of great bodily harm, sophistication and planning, conduct
that is a serious danger to society, prior convictions being numerous, and defendant
having served a prior prison term to support its findings. Nothing in the court’s reasoning
suggests it improperly relied on the existence of the crime itself or the mere possession of
an explosive device to support its conclusions. Nor does it suggest the court was unaware
of or improperly failed to consider factors in mitigation. Rather, the court looked at the
totality of the circumstances, identified aspects of the crimes that were particularly
concerning to public safety or to the threat of great bodily harm, and weighed those
circumstances against the mitigating factor and in the context of the relevant analysis. In
light of the substantial factors present in the record and identified by the trial court that
supported its imposition of the upper term on count 1, we find no abuse of discretion in
its sentencing decision.
Although not raised by either party, we note some sentencing errors related to
counts 2, 3 and 4. The court imposed 16 months (one-third the midterm, plus eight
months for the prior strike) on count 2; two years (one-third the middle term, one year
doubled due to the prior strike) on count 3; and a concurrent 16 months (one-third the
midterm for eight months, doubled for the prior strike) on count 4. The court stayed the
sentences on counts 2 and 3 pursuant to section 654.
20
But if a court makes multiple terms concurrent, they must all be full terms, not
one-third the midterm. (People v. Quintero (2006) 135 Cal.App.4th 1152, 1156, fn. 3,
disapproved on another ground in People v. Poisson (2016) 246 Cal.App.4th 121, 125.)
“Because concurrent terms are not part of the principal and subordinate term computation
under section 1170.1, subdivision (a), they are imposed at the full base term, not
according to the one-third middle term formula, even though they are served at the same
time. A concurrent term begins when it is imposed and runs together with the other
terms, with the latest expiring term controlling.” (Quintero, at p. 1156, fn. 3, citing
§§ 669, 1170.1, subd. (a); People v. Bruner (1995) 9 Cal.4th 1178, 1182, fn. 3; and
People v. Matthews (1999) 70 Cal.App.4th 164, 169, fn. 4.)
Section 654 prohibits multiple punishment where the same act or omission or “ ‘a
course of conduct deemed to be indivisible in time’ ” results in multiple statutory
violations. (People v. Harrison (1989) 48 Cal.3d 321, 335.) A trial court must determine
whether to stay execution of a sentence under section 654, thereby avoiding multiple
punishment, before deciding whether to impose concurrent or consecutive sentences.
(Cal. Rules of Court, rule 4.424.) If the court decides to stay a sentence, it must impose
and stay execution of the sentence on that count with no determination made as to
whether it is consecutive or concurrent. (People v. Cantrell (2009) 175 Cal.App.4th
1161, 1164 (Cantrell); see People v. Bruner (1995) 9 Cal.4th 1178, 1182, fn. 3.) This is
because a term “cannot be both consecutive and stayed simultaneously because the two
are mutually exclusive.” (Cantrell, at p. 1164.)
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In addition, “[t]he one-third-the-midterm rule of section 1170.1, subdivision (a),
only applies to a consecutive sentence, not a sentence stayed under section 654.”
(Cantrell, supra, 175 Cal.App.4th at p. 1164.) When a sentence is required to be stayed
under section 654, the trial court should impose a full-term sentence to ensure the
“defendant’s punishment is commensurate with his criminal liability” if the stay is lifted.
(Ibid.) Accordingly, the trial court must impose a full term on any count that it stays
under section 654. (Ibid.) If the count for which sentence is not stayed is reversed or
otherwise undone, imposition of sentence on the stayed count is preserved. (People v.
Alford (2010) 180 Cal.App.4th 1463, 1468; Cantrell, at p. 1164.)
Here, the transcript of the sentencing hearing, the court’s sentencing minute order
and the abstract of judgment reflect the court imposed unauthorized terms of one-third
the midterm for counts 2, 3 and 4. Such unauthorized sentences are subject to correction
on review. (People v. Menius (1994) 25 Cal.App.4th 1290, 1295.)
Accordingly, we vacate the unauthorized sentences on counts 2, 3 and 4 and
correct it to reflect imposition of a full midterm of two years, doubled to four years due to
the prior strike on count 2, a full midterm of three years, doubled to six years due to the
prior strike on count 3, a full midterm of two years, doubled to four years due to the prior
strike on count 4 to run concurrently with count 1 and order the trial court to amend its
sentencing minute order and abstract of judgment accordingly. We do so rather than
remand for resentencing because the record clearly reflects the trial court’s intention to
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run the sentence on count 4 concurrently with count 1 and stay the terms on counts 2
and 3. (§ 1260.)
IV.
DISPOSITION
The sentences on counts 2, 3 and 4 are modified as follows: a full midterm of two
years, doubled to four years due to the prior strike on count 2, a full midterm of three
years, doubled to six years due to the prior strike on count 3, and a full midterm of two
years, doubled to four years due to the prior strike on count 4 to run concurrently with
count 1. The sentences on counts 2 and 3 are stayed. The superior court is directed to
amend the abstract of judgment to reflect the modified sentences and to forward a copy of
the amended abstract of judgment to the Department of Corrections. In all other respects,
the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
Acting P. J.
We concur:
MENETREZ
J.
LEE
J.
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