People v. Corpening

Filed 12/29/16

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE, )
)
Plaintiff and Respondent, )
) S228258
v. )
) Ct.App. 4/1 D064986
TORY J. CORPENING, )
) San Diego County
Defendant and Appellant. ) Super. Ct. No. SCS258343
____________________________________)

Because our Penal Code is so expansive, the same conduct can violate more
than one criminal statute. When that happens, Penal Code section 654,
subdivision (a),1 prohibits ―punish[ment] under more than one provision‖ for any
―act or omission that is punishable in different ways by different provisions of
law.‖ The defendant in this case was convicted of both carjacking and robbery
based on the same forceful taking of a vehicle. What we must decide is whether
the forceful taking of this vehicle –– the same taking that, according to the
prosecution, accomplished the crimes of both robbery and carjacking ––
constitutes a single physical act subject to the prohibition on multiple punishment
under section 654. Since the same action completed the actus reus for each of
these two crimes, we hold that section 654 forbids punishment under both
provisions.

1 Further statutory references are to the Penal Code.

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 I. BACKGROUND
The relevant facts are not in dispute, and provided the basis for defendant‘s
guilty plea. In the early morning hours of July 22, 2012, Walter Schmidt, Sr., and
his son loaded their van with valuable coins they were planning to sell at a San
Diego swap meet where Schmidt, a rare coin dealer, operated a booth. The van
was parked in the driveway in front of Schmidt‘s home and contained roughly
$70,000 worth of coins. With the van loaded, Schmidt‘s son went to lock up the
house. Schmidt meanwhile got into the driver‘s seat and prepared to pull away.
At that moment, a man approached the vehicle pointing a gun at Schmidt‘s face
and yelling, ―Get out of the car or I‘ll shoot you.‖ Schmidt complied. But as the
man climbed into the vehicle, Schmidt tried unsuccessfully to wrestle the gun
away. The man again pointed the gun at Schmidt, who began retreating from the
van. As the man climbed into the van a second time, Schmidt once again tried to
stop the robbery, lunging for the gun. This time, however, the man quickly threw
the vehicle into reverse gear and began pulling away. With the van rolling
backwards, Schmidt grabbed onto the steering wheel. He was dragged
approximately 18 feet down the driveway before he lost his grip and fell to the
pavement. The man drove some 50 yards down the street before picking up a
confederate. Those two were then followed by several other accomplices to an
apartment complex where the group began unloading the boxes of coins. In one of
the trailing vehicles was defendant Tory J. Corpening, Jr., who, according to one
accomplice, had hatched the scheme to rob Schmidt after following him home one
day from the swap meet.
After Schmidt called the police, officers arrested some members of the
group near the apartment complex. Corpening, who had fled when the police
arrived, eventually turned himself in. Corpening pleaded guilty to carjacking
(§ 215, subd. (a)), robbery (§ 211), assault with a deadly weapon (§ 245, subd.

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(a)(1)), receiving stolen property (§ 496, subd. (a)), and witness intimidation
(§ 136.1, subd. (a)(1)). The basis for Corpening‘s plea on the first two charges,
according to the record, were allegations that his accomplice ―did unlawfully take
a motor vehicle in the possession of Walter Schmidt by force and fear,‖ and ―did
unlawfully and by means of force and fear take personal property from the person,
possession, and immediate presence of Walter Schmidt.‖ The record also
indicates that the personal property in question was inside the vehicle at the time
the vehicle was forcefully taken and was not removed from the vehicle before or
during the incident that resulted in its forceful taking.
In its sentencing brief, the prosecution recommended that the trial court
stay the robbery sentence, because –– in the prosecution‘s view –– section 654
barred punishment for the robbery charge in addition to punishment for the
carjacking charge. The trial court rejected this recommendation. Without any
elaboration, the court concluded based on the foregoing facts that ―[the robbery] is
a separate offense [from] the carjacking.‖ The court sentenced Corpening to six
years and eight months in prison — a term that included five years for carjacking
plus a consecutive one-year term for robbery. Corpening also received eight
months for witness intimidation. Pursuant to section 654, the court stayed the
remaining punishments for assault with a deadly weapon and receiving stolen
property.
On appeal, Corpening argued that section 654 barred his consecutive one-
year term for robbery, because the robbery and carjacking comprised a single
physical act. The Court of Appeal was not persuaded. Relying on Neal v. State of
California (1960) 55 Cal.2d 11, 19 (Neal), the appellate court understood the
inquiry to turn on the intent or objective of the actor — specifically, whether the
defendant‘s course of conduct reflected but one objective. The Court of Appeal
then held that the trial court made an implicit finding that the robbery and

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carjacking were separate acts with different objectives, even though, the appellate
court acknowledged, the crimes ―arose out of the same transaction.‖
Corpening petitioned for review. He claimed that our more recent decision
in People v. Jones (2012) 54 Cal.4th 350 (Jones), which the parties had failed to
cite and the Court of Appeal apparently did not consider, required that the
punishment for his robbery conviction be stayed. Jones clarified that the inquiry
into whether a defendant‘s criminal conduct reflects a single intent or objective,
pursuant to Neal, is relevant only after it has been determined that such conduct
involves more than ―a single act.‖ (Id. at pp. 359-360.) We therefore granted
review and transferred the matter back to the appellate court so it could apply the
Jones framework. The Court of Appeal again affirmed Corpening‘s sentence. The
court explained that Jones involved ―one act of possessing one firearm‖ but here
there were ―several discrete physical acts‖ necessary to complete the crimes of
robbery and carjacking: ―forcing the victim out of the car, struggling with him as
he attempted to resist, then again struggling with the victim, [and] then driving off
with the van.‖ Having determined this to be a course of conduct case, rather than
a single physical act case, the appellate court applied ―the multiple objectives test‖
from Neal. The Court of Appeal then found ―sufficient evidence in this record
from which the [trial] court could have concluded there were two intents, close in
time‖ — one intent to steal the coins and a second to take the van for purposes of
escaping the scene. We granted review once more.
II. DISCUSSION
Section 654, subdivision (a), provides: ―An act or omission that is
punishable in different ways by different provisions of law shall be punished under
the provision that provides for the longest potential term of imprisonment, but in
no case shall the act or omission be punished under more than one provision.‖ So

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if the forceful taking of Schmidt‘s vehicle constitutes a single ―act,‖ then section
654 forbids Corpening from being punished for robbery in addition to carjacking.2
Whether a defendant may be subjected to multiple punishment under
section 654 requires a two-step inquiry, because the statutory reference to an ―act
or omission‖ may include not only a discrete physical act but also a course of
conduct encompassing several acts pursued with a single objective. (See Neal,
supra, 55 Cal.2d at p. 19; People v. Beamon (1973) 8 Cal.3d 625, 639.) We first
consider if the different crimes were completed by a ―single physical act.‖ (Jones,
supra, 54 Cal.4th at p. 358.) If so, the defendant may not be punished more than
once for that act. Only if we conclude that the case involves more than a single act
— i.e., a course of conduct — do we then consider whether that course of conduct
reflects a single ―intent and objective‖ or multiple intents and objectives. (Id. at
p. 359; see also People v. Mesa (2012) 54 Cal.4th 191, 199 (Mesa) [―Our case law
has found multiple criminal objectives to be a predicate for multiple punishment
only in circumstances that involve, or arguably involve, multiple acts‖].) At step
one, courts examine the facts of the case to determine whether multiple
convictions are based upon a single physical act. (See Mesa, supra, 54 Cal.4th at
p. 196.) When those facts are undisputed — as they are here — the application of
section 654 raises a question of law we review de novo. (See People v. Harrison

2 Section 215, subdivision (c), makes clear that a person may be charged and
convicted under both the robbery and carjacking statutes. It also emphasizes that
―no defendant may be punished‖ under both laws ―for the same act which
constitutes a violation of both.‖ (Ibid.) In this way, the Legislature removed any
doubt that section 654 applies to these two crimes when they arise from a single
physical act. We therefore analyze the multiple punishment issue in this case
relying on the well-settled principles governing section 654. (See People v.
Dominguez (1995) 38 Cal.App.4th 410, 417-418 (Dominguez).)

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(1989) 48 Cal.3d 321, 335 [―the applicability of [section 654] to conceded facts is
a question of law‖]; accord, People v. Perez (1979) 23 Cal.3d 545, 552, fn. 5.)
Precisely how to resolve whether multiple convictions are indeed based on
a single physical act has often left courts with more questions than answers. (See
Jones, supra, 54 Cal.4th at p. 358 [acknowledging ―that what is a single physical
act might not always be easy to ascertain‖].) Neither the text nor structure of
section 654 resolves when exactly a single act begins or ends, for example, or how
to take account of the fact that virtually any given physical action may, in
principle, be divided into multiple subsets that each fit the colloquial definition of
an ―act.‖
Because we had to survey some of this terrain in Jones to address a related
question, we look to that case for guidance. The defendant in Jones had been
sentenced concurrently for three crimes: ―possession of a firearm by a felon,‖
―carrying a readily accessible concealed and unregistered firearm,‖ and ―carrying
an unregistered loaded firearm in public.‖ (Jones, supra, 54 Cal.4th at p. 352.)
We held that possessing a particular firearm on a single occasion constituted a
single physical act that ―may be punished only once under section 654.‖ (Id. at
p. 357.) We did so because, as the prosecutor had acknowledged, ― ‗the same
exact conduct‘ ‖ accomplished the actus reus — or act requirement — for each of
the relevant crimes. (Id. at p. 359; see Black‘s Law Dict. (10th ed. 2014) p. 44,
col. 1 [defining ―actus reus‖ as ―[t]he wrongful deed that comprises the physical
components of a crime‖].) In particular, it was the defendant‘s possession of a
specific firearm on a specific date that, according to the charging document,
completed the actus reus for all three crimes. (See Jones, at p. 359 [―The record
establishes that the jury convicted defendant of each crime due to his being caught
with the gun in the car on May 26, 2008, not due to any antecedent possession.
The amended information alleged that defendant committed all three crimes on or

6
about May 26, 2008, the day he was arrested, and the verdicts all found defendant
guilty as charged.‖].) In the absence of any distinct actions that could be
associated with the actus reus for each of those crimes, we held that the
defendant‘s concurrent sentences were improper. (Id. at pp. 353, 360.)
Jones expressly overruled In re Hayes (1969) 70 Cal.2d 604 (Hayes). The
defendant in Hayes had been sentenced for violating two different penal statutes:
driving while intoxicated and driving with an invalid license. (Id. at p. 605.) We
held that section 654 did not prohibit multiple punishment for the two crimes.
(Hayes, 70 Cal.2d at p. 611.) In Jones, however, we found Hayes contrary to the
plain language of section 654, which bars multiple punishment for any ― ‗act . . .
that is punishable in different ways by different provisions of law.‘ ‖ (See Jones,
supra, 54 Cal.4th at p. 356.) Driving while intoxicated and driving while on an
expired license, we explained, are a ―single physical act.‖ (Id. at p. 355.) Because
the same physical action — the defendant‘s driving — completed the actus reus of
each charged crime, that action amounted to a single physical act under section
654.
A similar principle underlies our decision in Mesa, which is also
instructive. What we held is that section 654 did not permit punishment for active
participation in a street gang in addition to the defendant‘s permissible
punishments for assault with a firearm and possession of a firearm by a felon.
(Mesa, supra, 54 Cal.4th at p. 201.) We reached this conclusion because the crime
of active participation in a street gang requires ―willful promotion, furtherance, or
assistance in felonious conduct by members of the gang.‖ (Id. at p. 200.) That
crime was not completed until the defendant either shot the victims or possessed a
firearm. (Ibid. [explaining that mere active participation in a gang and knowledge
of the gang‘s pattern of criminal activity ―do not complete the offense‖].) The
defendant‘s ―shooting the victims or possessing a firearm,‖ we explained, ―was the

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only evidence that he promoted, furthered, or assisted felonious criminal conduct
by members of the gang.‖ (Ibid.) Because these actions separately accomplished
the actus reus for active participation in a gang — and the charging document and
evidence at trial demonstrated they had done so — shooting the victims and
possessing the firearm were each treated as single acts barring multiple
punishment. (See ibid. [―the information alleged that defendant committed each
assault and related gang participation offense on the same day; in other words, he
committed both offenses simultaneously‖].)
These decisions reflect a common idea: Whether a defendant will be found
to have committed a single physical act for purposes of section 654 depends on
whether some action the defendant is charged with having taken separately
completes the actus reus for each of the relevant criminal offenses. (See Jones,
supra, 54 Cal.4th at pp. 359-360; Mesa, supra, 54 Cal.4th at p. 200.) On these
facts, the forceful taking of a vehicle on a particular occasion is a single physical
act under section 654. The forceful taking of Schmidt‘s van, and the rare coins
contained therein, completed the actus reus for robbery — the felonious taking of
another‘s personal property by force.3 Precisely the same action, not a separate
but related one taken at a separate time or in a distinct fashion, was also the basis
for the contention that the defendant completed the actus reus for carjacking — the
felonious taking of another‘s motor vehicle by force.4 It was the same show of

3 ―Robbery is the felonious taking of personal property in the possession of
another, from his person or immediate presence, and against his will,
accomplished by means of force or fear.‖ (§ 211.) A robbery conviction also
requires that the defendant ―intend to deprive the victim of the property
permanently.‖ (People v. Huggins (2006) 38 Cal.4th 175, 214.)

4 ― ‗Carjacking‘ is the felonious taking of a motor vehicle in the possession
of another, from his or her person or immediate presence, . . . against his or her
(footnote continued on next page)

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force — committed at the same time, by the same person — that yielded for
Corpening and his coconspirators the rare coins contained within the carjacked
van, giving rise to the robbery conviction. Neither offense was accomplished until
completion of the single forceful taking identified by the prosecution as the basis
for conviction under the carjacking and robbery statutes. These circumstances
render it all but impossible to accept the contrary contention that the forceful
taking in this case constitutes multiple physical acts for purposes of section 654.
(Cf. People v. Vargas (2014) 59 Cal.4th 635, 638 [holding that a defendant‘s prior
felony convictions, ―one for robbery and one for carjacking,‖ did not qualify as
separate strikes for purposes of sentence enhancement where they ―were based on
the same act, committed at the same time, against the same victim‖].)
Applying section 654 to similar facts, the Court of Appeal arrived at the
same conclusion in Dominguez, supra, 38 Cal.App.4th 410. The victim there had
parked his van near a restaurant where he had planned to eat. Suddenly, a man
entered the van through the side sliding door. The assailant then grabbed the
victim, pressed what felt to the victim like a gun against the back of his neck, and
demanded he relinquish everything he had. After about five minutes, the victim
handed over two rings and a chain before running away from the vehicle to call
the police. The van was missing when the police arrived at the scene; it was later
recovered less than a mile away. (Id. at pp. 414-415.)
A jury then convicted the defendant of both robbery and carjacking.
(Dominguez, supra, 38 Cal.App.4th at p. 414.) The trial court imposed a

(footnote continued from previous page)

will and with the intent to either permanently or temporarily deprive the person in
possession of the motor vehicle of his or her possession, accomplished by means
of force or fear.‖ (§ 215, subd. (a).)

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concurrent sentence for the robbery after concluding, ― ‗out of an abundance of
caution,‘ ‖ that section 654 barred the sentences from running consecutively. (Id.
at p. 416.) On appeal, the defendant argued, inter alia, that he could be punished
for only one of the offenses. (Id. at pp. 416-417.) The appellate court agreed,
finding that because ―the carjacking and robbery here constituted ‗the same act,‘ ‖
punishment for both would run afoul of section 654. (Id. at p. 420.) The court
explained that the defendant had ―placed a cold metallic object to the back of the
victim‘s neck and demanded ‗everything he had . . . .‘ ‖ (Ibid.) ―Simultaneously,‖
the court continued, ―the victim handed over his jewelry and van by handing over
the jewelry and fleeing the van.‖ (Ibid.) The court held that this specific forceful
taking — which completed both the robbery and carjacking — was a single
physical act for purposes of section 654. (See ibid. [―The long-standing rule is
that ‗. . . the theft of several articles at one same time constitutes but one offense
[even where] such articles belong to several different owners.‘ ‖].) Separate
punishments were forbidden as a result. (See ibid. [―the same act was essential to
both offenses and thus is not separately punishable under Penal Code section
654‖].)5
So too here. The forceful taking of Schmidt‘s van was a single physical act
for purposes of section 654 because that act simultaneously accomplished the
actus reus requirement for both the robbery and carjacking. It matters not that this
act, just like the acts in Hayes and Dominguez, can be broken down into
constituent parts. (See Black‘s Law Dict., supra, at p. 44, col. 1 [actus reus is

5 Because the trial court in Dominguez had also found section 654 applicable,
the only correction the Court of Appeal made was to stay the robbery sentence,
rather than allowing it to run concurrently. (See Dominguez, supra, 38
Cal.App.4th at p. 420.)

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―[t]he wrongful deed that comprises the physical components of a crime‖ (italics
added)].) Indeed, any act can be so subdivided theoretically. To commit the
single physical act of driving in Hayes, supra, 70 Cal.2d 604, for example, the
defendant would have had to enter the vehicle, turn on the ignition, put the car into
gear, press the accelerator, and steer the vehicle for some distance. The forceful
taking in Dominguez, moreover, required the defendant to enter the victim‘s van,
press a gun against the victim‘s neck, grab him, demand his belongings, wait five
minutes while the victim removed his rings, collect the jewelry from him, and
drive away. But these were nothing more than components of a single physical act
because none of these acts on their own completed the actus reus required for the
relevant crimes. In Dominguez, for example, simply entering the vehicle or
grabbing the victim completed neither the robbery nor the carjacking. In this case,
the Court of Appeal found ―several discrete physical acts‖ were necessary to
complete the crimes of robbery and carjacking — to wit, ―forcing the victim out of
the car, struggling with him as he attempted to resist, then again struggling with
the victim, [and] then driving off with the van.‖ But, as in Dominguez, none of
these actions on their own completed the actus reus for either robbery or
carjacking. Only the forceful taking of the van –– and with it, of the rare coins
contained therein –– did so.
Nor does it matter that other criminal acts may have been committed in the
course of this forceful taking. For example, the accomplice‘s forcing Schmidt out
of the vehicle at gunpoint could, alone, give rise to criminal liability. Indeed,
Corpening was also convicted of assault with a deadly weapon (§ 245, subd.
(a)(1)). The trial court stayed this conviction under section 654. But the question
we must answer is specific to the crimes of robbery and carjacking: whether both
of these crimes were accomplished by means of a single forceful taking, thereby
precluding multiple punishment. That other crimes may also have been

11
accomplished by that act or one of its component parts simply means the
punishments for such crimes, if any were charged, should be stayed as well.
Neither is it relevant that, in some other case, the prosecution could conceivably
have identified two separate physical acts — even if arguably related — that
would have provided a basis for arguing that two separately punishable crimes had
been committed. The prosecution did not, because it could not, make any such
allegation here.
What is instead relevant in this case is that a single physical act served as
the basis for convicting the defendant of two separate crimes. As a result, we do
not reach step two of the section 654 analysis: whether the forceful taking
involved multiple intents and objectives. (See Jones, supra, 54 Cal.4th at pp. 359-
360; Mesa, supra, 54 Cal.4th at pp. 199-200; see also People v. Louie (2012) 203
Cal.App.4th 388, 397 [―A single criminal act, even if committed incident to
multiple objectives, may be punished only once‖].) Rather, we must conclude that
Corpening‘s one-year robbery sentence, which was based on the same act as his
carjacking sentence, cannot stand. Section 654 requires that the robbery sentence
be stayed. (See Dominguez, supra, 38 Cal.App.4th at p. 420.)6

6 Although the trial court thoroughly explained other aspects of its sentencing
decisions, the court concluded, without explanation, that ―[the robbery] is a
separate offense [from] the carjacking.‖ The court did so despite the prosecution‘s
contrary recommendation. To facilitate meaningful appellate review, the better
practice is for trial courts to state on the record their reasons for concluding that
multiple offenses are or are not separately punishable under section 654. (See
People v. Lewis (2006) 39 Cal.4th 970, 1063-1064; see also People v. Williams
(1980) 103 Cal.App.3d 507, 519 [explaining that a ―clear purpose‖ of requiring a
statement of reasons ―is to permit appellate review‖].)

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 III. CONCLUSION
A defendant may not be punished more than once for a single physical act
that violates multiple provisions of the Penal Code. The charging document in this
case identified the same forceful taking of a vehicle as the physical act completing
the actus reus for both robbery and carjacking. Where the same physical act
accomplishes the actus reus requirement for more than one crime, that single act
cannot give rise to multiple punishment. Because that is precisely what happened
here, Corpening‘s one-year robbery sentence must be stayed. We reverse the
judgment of the Court of Appeal and remand for proceedings consistent with this
opinion.
CUÉLLAR, J.

WE CONCUR:

CANTIL-SAKAUYE, C. J.
WERDEGAR, J.
CHIN, J.
CORRIGAN, J.
LIU, J.
KRUGER, J.

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See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Corpening
__________________________________________________________________________________

Unpublished Opinion XXX NP opn filed 6/24/16 – 4th Dist., Div. 1
Original Appeal
Original Proceeding
Review Granted
Rehearing Granted

__________________________________________________________________________________

Opinion No. S228258
Date Filed: December 29, 2016
__________________________________________________________________________________

Court: Superior
County: San Diego
Judge: Francis M. Devaney and Kathleen M. Lewis

__________________________________________________________________________________

Counsel:

Cynthia M. Jones, under appointment by the Supreme Court, for Defendant and Appellant.

Kamala D. Harris, Attorney General, and Gerald A. Engler, Chief Assistant Attorney General, Julie L.
Garland, Assistant Attorney General, Steven T. Oetting, Deputy State Solicitor General, Charles C.
Ragland, Scott C. Taylor, Robin Urbanski, Barry J.T. Carlton and Christopher P. Beesley, Deputy
Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):

Cynthia M. Jones
Avatar Legal
19363 Willamette Dr., #194
West Linn, OR 97068
(858) 793-9800

Christopher P. Beesley
Deputy Attorney General
600 West Broadway, Suite 1800
San Diego, CA 92101
(619) 645-2567