People v. Torres CA5

Filed 5/23/22 P. v. Torres CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT

THE PEOPLE,
F081272
Plaintiff and Respondent,
(Super. Ct. No. F017903313)
v.

HECTOR JOSE TORRES, OPINION
Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Fresno County. Gary R.
Orozco, Judge.

Jill M. Klein, under appointment by the Court of Appeal, for Defendant and
Appellant.
Matthew Rodriquez, Acting Attorney General, Rob Bonta, Attorney General,
Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant
Attorney General, Eric L. Christoffersen and Ross K. Naughton, Deputy Attorneys
General, for Plaintiff and Respondent.
-ooOoo-
INTRODUCTION
Defendant Hector Jose Torres was driving while under the influence of alcohol
when he made an unsafe and illegal U-turn in front of a vehicle driven by Faqir Singh
Kang (Singh), causing a motor vehicle accident. Singh initially appeared fine, but after
arriving at the hospital he suddenly stopped breathing and was unable to be resuscitated.
A jury convicted defendant of second degree murder (Pen. Code, § 187, subd. (a); count
1), felony driving under the influence (Veh. Code, § 23152, subd. (a); count 2), and
felony driving with a blood-alcohol content of 0.08 percent or higher (Veh. Code,
§ 23152, subd. (b); count 3). The jury also found true allegations defendant suffered
three prior convictions related to driving under the influence within 10 years of the
charged offense (Veh. Code, § 23550).1 The trial court imposed a 15-years-to-life term
for count 1 and a concurrent term of two years for count 2; a term of two years was
imposed and stayed for count 3. Defendant filed a timely appeal.
On appeal, defendant first argues the trial court prejudicially erred when it
instructed the jury on negligence of medical staff under CALCRIM No. 620. Defendant
next contends the trial court should have stayed imposition of sentence on count 2
pursuant to Penal Code section 654. (Undesignated statutory references are to the Penal
Code.) The People agree the court erred when it imposed a concurrent sentence on count
2 and that punishment for count 2 should be stayed. In his supplemental opening brief,
defendant further contends the matter should be remanded to the trial court for it to
determine whether to exercise its sentencing discretion under recently amended section
654. The People agree defendant is entitled to the benefits of the recent changes to
section 654.
We agree the trial court erred by failing to stay defendant’s sentence on count 2,
and the matter should be remanded to the trial court for it to determine whether to
exercise its discretion under section 654, as amended. Otherwise, the judgment is
affirmed on all other grounds.

1On March 11, 2020, defendant pleaded no contest to count 4, driving on a suspended
license (Veh. Code, § 14601.2, subd. (a)). On May 18, 2020, defendant received credit for time
served for count 4.

2.
 FACTUAL BACKGROUND
Defendant attempted to make an unlawful U-turn across double yellow lines from
the right-hand shoulder in front of Singh, causing a motor vehicle accident at
approximately 10:30 p.m. A distinct odor of alcohol was coming from defendant; his
eyes were red and watery, and his speech was thick and slurred. A preliminary alcohol
screening test was administered, and defendant’s blood alcohol was 0.134 percent at
11:03 p.m. He was placed under arrest for driving while under the influence and causing
injury to another. A subsequent blood test collected at 12:50 a.m. showed defendant’s
blood sample contained 0.142 percent alcohol.
Singh, who was 79 years old, initially appeared to be fine and in good health after
the accident. Although Singh had some blood on his face, which appeared to be from a
bloody nose, he was talking and able to stand and walk around. Singh said his head hurt
a little bit; he complained of some chest pain and had a red mark on his chest that
appeared to be from the seatbelt. However, Singh did not exhibit any signs of shock and
his vital signs were normal, including his skin, blood pressure, heart rate, respiratory rate,
lung sounds, and mental status. His chest and lungs were clear and he did not have
difficulty breathing. Singh did not complain of pain or tenderness upon palpation of his
body, including to his rib cage and abdomen.
Singh initially refused to go to the hospital, but eventually agreed based on the
strong recommendation of medical personnel at the scene who considered the severity of
the collision. There were no changes in Singh’s mental status or physical condition while
he was being transported to the hospital, nor upon his initial arrival at the hospital.
However, after about five to 10 minutes at the hospital, Singh’s condition suddenly
changed. He started gasping for breath, he became cyanotic, unconscious, and
nonresponsive to questions. His heart rate went from normal to arrhythmic. The hospital
medical staff took over and began performing cardiopulmonary resuscitation (CPR) on
Singh. CPR was performed hard and vigorously, using stiff arms at about five inches

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down from Singh’s neckline. Medical personnel were unable to resuscitate Singh and he
was confirmed deceased at 12:10 a.m. Those who were at the scene of the motor vehicle
accident were surprised to learn Singh had died. Singh was described as being the
walking wounded, where it was not apparent there was something wrong.
Dr. Michael Chambliss was the forensic pathologist who performed the autopsy on
Singh. Based on the external and internal injuries, Dr. Chambliss concluded Singh’s
cause of death to be chest and abdominal injuries and internal bleeding due to blunt
impact from the motor vehicle accident.
DISCUSSION
I. Medical Negligence Instruction in CALCRIM No. 620
Defendant first argues the court prejudicially erred by instructing the jury
regarding medical negligence in CALCRIM No. 620, which he contends was factually
unsupported, inconsistent with the defense theory of the case, and could have only served
to confuse the jury. Defendant contends there was no evidence that any medical
negligence caused or contributed to the victim’s fatal injuries. Defendant contends the
instruction allowed the jury to find him guilty based on a factually unsupported theory of
causation, violating his state and federal constitutional rights. While we agree there was
no evidence medical negligence caused or contributed to Singh’s death to support the
instruction, we find the instructional error harmless.
A. Relevant Factual Background
Dr. Chambliss noted it was common to see bruising on the face, nose, and chest
area in motor vehicle accidents. He noticed a three-inch bruise covering Singh’s nose
and dried blood beneath his nostrils, which is consistent with the deployment of the
airbag in the victim’s vehicle. There was a bruise and an abrasion on top of Singh’s left
shoulder, consistent with a seatbelt injury; and an injury on the front of his left hip that
could be associated with the lap portion of the seatbelt. An external exam also revealed a

4.
circular bruise above the breast line in the chest region, to the right of the sternum, that
was over eight inches wide. This injury was determined to be consistent with CPR.
An internal examination revealed the victim had multiple rib fractures under the
upper right chest area, starting from below the clavicle and extending down to about the
fourth rib on the upper anterior right side. There were also a few rib fractures to the
anterior left rib cage, which were on the upper first through third ribs. There was a
separation of the muscles between the fourth and fifth ribs on the right chest wall
laterally. In the upper right chest area, where the clavicle meets the neck area and the
sternum, there was a noticeable area of bleeding in the large veins that go back to the
right side of the heart. These major veins were determined to be the source of about 700
milliliters of blood that had pooled in the right chest cavity. The pooling of blood
changed the pressure in the cavity and caused the right lung to collapse. There was
bruising on the surface of the right lung, which Dr. Chambliss determined was from the
blunt trauma of the motor vehicle accident. There was also a bruise on the right front
heart involving the right ventricle and septum, a few bruises present in the right chest
cavity, and a few bruises to the right lung.
The emergency room doctor, Dr. Aaron Carter, testified that CPR is performed at
about five to six inches down from the neckline. In order to perform CPR, one must push
down very hard and fast, using upper body weight and stiff arms. It is common for ribs
to break while performing CPR, especially in older patients. CPR can cause rib fractures
and bruising over the sternum or chest region. Dr. Chambliss noted that CPR causes rib
fractures in the front of the chest wall, from about the third rib down to the seventh or
eighth rib. Rib fractures can occur higher up if CPR is improperly performed higher.
External and internal injuries from CPR can also vary based on the length of time of the
resuscitation process; the shorter the time frame, the less external and internal injuries.
Given that CPR was performed on the victim at five inches below the neckline, which
was consistent with the bruise located by the sternum, Singh’s rib injuries were deemed

5.
inconsistent with CPR. Therefore, Dr. Chambliss determined that Singh’s rib injuries
were more attributed to the motor vehicle accident than CPR.
Singh’s other internal injuries were also attributed to blunt force trauma from the
motor vehicle accident. The inverted “V” shaped bruise on his right side and the
separation of muscles between the fourth and fifth ribs on the right side were considered
blunt trauma injuries consistent with a motor vehicle accident and not resuscitation.
Additionally, a tear on the left lobe of the liver was deemed a deceleration-type injury
associated with sudden stops in motor vehicle accidents.
Although Dr. Chambliss, when conducting the autopsy, was unaware the victim
did not receive CPR until after he arrived at the hospital, this fact did not change his
opinion on the cause of death. Dr. Chambliss knew Singh was initially doing well at the
scene of the accident and then suddenly collapsed. Given Singh’s injuries, it was
possible for him to have been able to walk around and interact with others for
approximately 20 to 30 minutes. Blunt trauma to the chest can give unusual
presentations and an individual can still die. Dr. Chambliss testified that he had seen this
in at least five cases in the last couple of years.
Dr. Carter noted the cause of death was cardiac arrest, but explained it was a
general term for the heart stopping, whatever the cause, and did not mean Singh had a
heart attack. Dr. Carter explained his team worked on the victim for about 30 minutes,
which included performing CPR on Singh from between 15 to 30 minutes. Dr. Carter
could not say what caused the cardiac arrest, indicating a pathologist is more qualified to
determine the cause of death in this particular case since a pathologist has the ability to
look internally and see things he could not see. Dr. Chambliss stated Singh did not have
a heart attack. He determined Singh’s cause of death to be chest and abdominal injuries
due to blunt impact from the motor vehicle accident.
The People asked the court to include the optional medical negligence language in
CALCRIM No. 620 when it instructed the jury. Based upon the testimony elicited at

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trial, the People believed one of the defense’s theories was that the hospital staff’s efforts
to resuscitate Singh either exacerbated his injuries or were a factor in causing his death.
Defense counsel never formally objected to the inclusion of the medical
negligence language in CALCRIM No. 620. Rather, defense counsel questioned the
basis for the additional instruction, arguing there was no evidence of improper medical
treatment, and he stated he did not intend to argue CPR contributed to the victim’s death.
Ultimately, defense counsel appeared to agree there could be a basis for the medical
negligence instruction, stating, “Counsel’s right. I guess I could … I guess it could be
argued ….” The trial court chose to give the medical negligence instruction, concluding
each party had asked questions on the “edges,” neither doctor ruled out CPR as the cause
of some of the injuries, and it was possible one or more jurors could come up with the
theory that CPR was performed too hard on the 79-year-old man, or at least “it
contributed in part.”
CALCRIM No. 620 was read to the jury as follows (the challenged portion is
italicized):

“There may be more than one cause of death. An act causes death
only if it is a substantial factor in causing the death. A substantial factor is
more than a trivial or remote factor. However, it does not need to be the
only factor that causes the death.

“The failure of the doctors or medical staff to use reasonable care in
treating [Singh] may have contributed to the death. But if the injury
inflicted by the defendant was a substantial factor causing the death, then
the defendant is legally responsible for the death even though the doctors
or medical staff may have failed to use reasonable care. On the other
hand, if the injury inflicted by the defendant was not a substantial factor
causing the death, but the death was caused by grossly improper treatment
by the doctors or medical staff, then the defendant is not legally responsible
for the death.

“[Singh] may have suffered from an illness or physical condition
that made him more likely to die from the injury than the average person.
The fact that [Singh] may have been more physically vulnerable is not a
defense to murder. If the defendant’s act was a substantial factor causing

7.
 the death, then the defendant is legally responsible for the death. This is
true even if [Singh] would have died in a short time as a result of other
causes or if another person of average health would not have died as a
result of the defendant’s actions.

“If you have a reasonable doubt whether the defendant’s act caused
the death, you must find him not guilty.” (First italics in original, second
italics added.)
In closing argument, defense counsel challenged the evidence the car accident
caused Singh’s death; he argued Singh’s injuries documented in the autopsy could have
been caused by CPR. He argued “there’s no … evidence that the injuries actually did
occur prior to CPR except possibly the bruised lungs. [W]e’re gonna find that the
evidence … is that the internal injuries were likely caused by CPR … after [Singh] had
died or after he had collapsed and he was dying.” Defense counsel argued, “CPR can
cause blood to get in the pericardial sac. It can cause internal bleeding in the chest
cavity. … CPR, if it hits a vein, if you burst a vein, it starts to bleed and you continue to
do CPR, it can increase the production of internal bleeding, can make it worse. Although
rare, the liver can be injured from CPR.” He asserted, because the evidence of the
victim’s liver laceration did not establish his liver bled, the injury to the liver likely did
not occur at the crash site but rather when CPR was administered. He suggested there
was evidence Singh could have possibly had a heart attack. He asserted he did not “think
the evidence in this case, as far as the causation, was something that can prove that the
accident itself was the cause of death.”
The People countered in rebuttal: “Defense Counsel also went into … the
causation, about the CPR, about the medical personnel. But he essentially proved the
People’s case for us, because what [CALCRIM No.] 620 tells you is that medical
intervention or preexisting conditions do not matter. [Defendant] is still guilty regardless
of what any medical personnel did or any preexisting conditions [Singh] had.”

8.
 B. Standard of Review
Instructional errors are questions of law, which we review de novo. (People v.
Posey (2004) 32 Cal.4th 193, 218; People v. Cole (2004) 33 Cal.4th 1158, 1210.) We
must ascertain the relevant law and determine whether the given instruction correctly
stated it. (People v. Kelly (1992) 1 Cal.4th 495, 525–526; People v. Warren (1988) 45
Cal.3d 471, 487.)
“Trial courts have the duty to screen out invalid theories of conviction, either by
appropriate instruction or by not presenting them to the jury in the first place.” (People v.
Guiton (1993) 4 Cal.4th 1116, 1131.) Therefore, a trial court should only give a
requested jury instruction if it is supported by substantial evidence. (People v. Marshall
(1997) 15 Cal.4th 1, 39; People v. Williams (1992) 4 Cal.4th 354, 361; People v. Flannel
(1979) 25 Cal.3d 668, 685 [it is error to instruct on a theory that is entirely unsupported
by the evidence], superseded by statute on other grounds as stated in People v. Elmore
(2014) 59 Cal.4th 121, 138; People v. Burnett (1991) 9 Cal.App.4th 685, 690; People v.
Derello (1989) 211 Cal.App.3d 414, 426.)
In determining whether an instructional error prejudiced the defendant, the entire
record should be examined, including the facts and the instructions, the arguments of
counsel, any communications from the jury during deliberations, and the entire verdict.
(People v. Guiton, supra, 4 Cal.4th at p. 1130; see People v. Hayes (1990) 52 Cal.3d 577,
642 [the entire record is examined to determine whether the instructions may have misled
the jury to defendant’s detriment].) The challenged instruction is viewed “in the context
of the instructions as a whole and the trial record to determine whether there is a
reasonable likelihood the jury applied the instruction in an impermissible manner.”
(People v. Houston (2012) 54 Cal.4th 1186, 1229.) “‘[N]ot every ambiguity,
inconsistency, or deficiency in a jury instruction rises to the level of a due process
violation.’ [Citation.] … ‘A single instruction is not viewed in isolation, and the ultimate
decision on whether a specific jury instruction is correct and adequate is determined by

9.
consideration of the entire instructions given to the jury.’” (People v. Covarrubias
(2016) 1 Cal.5th 838, 906; accord, People v. Williams (2013) 56 Cal.4th 630, 688.)
Corrective instructions given to a jury may be considered in assessing the prejudicial
effect of an improper instruction. (People v. Saddler (1979) 24 Cal.3d 671, 684.)
C. Applicable Law
“If a person inflicts a dangerous wound on another, it is ordinarily no defense that
inadequate medical treatment contributed to the victim’s death.” (People v. Roberts
(1992) 2 Cal.4th 271, 312; accord, People v. McGee (1947) 31 Cal.2d 229, 240; People v.
Dilworth (1969) 274 Cal.App.2d 27, 33.) However, “when medical treatment is grossly
improper, it may discharge liability for homicide if the maltreatment is the sole cause of
death and hence an unforeseeable intervening cause.” (Roberts, supra, at p. 312; see
McGee, supra, at p. 240; see also People v. Calvaresi (1975) 188 Colo. 277 [534 P.2d
316, 319]; State v. Jacobs (1984) 194 Conn. 119 [479 A.2d 226, 230]; Annot., Homicide:
Liability Where Death Immediately Results from Treatment or Mistreatment of Injury
Inflicted by Defendant (2021) 50 A.L.R.5th 467.)
D. Analysis
Defendant argues the medical negligence instruction was factually unsupported,
inconsistent with the defense theory of the case, and could have only served to confuse
the jury. He asserts the instruction was prejudicial because it “focused the jury on an
irrelevant theory of causation and detracted it from fully considering the defense theory
that [Singh] simply had a heart attack.” Defendant claims “instructing the jury on
medical negligence, untethered to any actual evidence of improper treatment or to any
theory of causation proffered by the People or the defense, could only serve to confuse
the jury and mislead it into believing that medical negligence was at issue.” He also
argues the instruction focused the jury on an irrelevant theory of causation and detracted
it from fully considering the defense theory that Singh had a heart attack. He contends
the error resulted in a deprivation of his Fourteenth Amendment due process rights. The

10.
People contend there was evidence that could have led some jurors to think CPR could
have been applied with too much force such that it was “not done properly.” They assert,
accordingly, the court properly instructed the jurors excessive CPR would not constitute a
failure to show causation unless it was so “grossly improper” that the motor vehicle
accident could not be deemed “a substantial factor” in causing Singh’s death.
Initially, we note defense counsel never formally objected to the challenged
portion of the instruction as he contends; instead, he agreed the evidence could support
the instruction, waiving his claim of error.2 (See People v. Bolin (1998) 18 Cal.4th 297,
326 [defense counsel waived claim of error by agreeing evidence supported the
instruction].) However, even if the issue was sufficiently preserved for our review, as
discussed further post, we cannot conclude defendant was prejudiced by the challenged
portion of CALCRIM No. 620.
It is true that it is error to give an instruction which correctly states a principle of
law but has no application to the facts of the case. (People v. Guiton, supra, 4 Cal.4th at
p. 1129; People v. Anderson (1965) 63 Cal.2d 351, 360; People v. Eggers (1947) 30
Cal.2d 676, 687.) Upon review of the record, we find the record devoid of any evidence
demonstrating medical staff failed to use reasonable care or that Singh received
inadequate medical treatment. While the record shows some of Singh’s external and
internal injuries could have been caused, at least in part, by CPR, there was no evidence
CPR was improperly or unreasonably performed. The evidence reflected CPR was
appropriately performed at about five inches below the neckline, which was confirmed by
a circular bruise at the sternum attributed to CPR. While the evidence shows the extent
of injuries from CPR can differ depending on the age of the patient and the duration of
the CPR, there was no testimony that CPR for approximately 30 minutes on a 79-year-old

2Notably, “[t]he appellate court may … review any instruction given, refused or
modified, even though no objection was made thereto in the lower court, if the substantial rights
of the defendant were affected thereby.” (§ 1259.) For the reasons discussed further post, we
cannot conclude the challenged instruction affected defendant’s substantial rights.

11.
man was improper or excessive. Thus, the jury would have had to speculate, based on
evidence it did not have, to conclude negligence by medical personnel was an intervening
cause of the victim’s death. Because the challenged portion of CALCRIM No. 620 did
not apply to the facts of the case, it was error to give it. Accordingly, here, the trial court
erred when it instructed the jury with the additional medical negligence language in
CALCRIM No. 620. (See People v. Roberts, supra, 2 Cal.4th at pp. 312–313 [court
properly refused to instruct jury defendant was not liable for killing if victim received
inadequate medical care that was sole cause of death where “record [was] devoid of any
evidence of grossly improper treatment,” noting “[t]he jury need not be instructed on a
theory for which no evidence has been presented”]; People v. Stanley (2006) 39 Cal.4th
913, 946 [court did not err in refusing to instruct jury with pinpoint instruction on
proximate cause where evidence established victim died from stab wounds inflicted by
defendant rather than incompetent and inadequate medical care].)
However, contrary to defendant’s contention, we cannot conclude the error was
one of federal constitutional dimension. (See People v. Guiton, supra, 4 Cal.4th at pp.
1129–1130 [citing statement in Griffin v. United States (1991) 502 U.S. 46, 60 that “it
would generally be preferable” to remove an unsupported theory from jury’s
consideration but failure to do so would not violate the federal Constitution].) Rather, the
error here is one of state law subject to the traditional test under People v. Watson (1956)
46 Cal.2d 818, 836. (See Guiton, supra, at p. 1130; People v. Ervin (2000) 22 Cal.4th 48,
91 [errors regarding pinpoint instructions are reviewed under Watson harmless error].)
Under Watson, we must determine whether defendant demonstrated a reasonable
probability he would have obtained a more favorable result had the error not occurred.
(People v. Moore (2011) 51 Cal.4th 1104, 1130; People v. Brown (1988) 46 Cal.3d 432,
446–447.)
Defendant fails to demonstrate prejudice. As read to the jury, the unchallenged
portion of CALCRIM No. 620 explained there may be more than one cause of death and

12.
that an act causes death only if it is a substantial factor in causing death, but it need not be
the only factor that causes the death. The instruction then explained that the failure of
medical staff to use reasonable care may have contributed to his death. The instruction
does not tell the jury the medical staff contributed to Singh’s death—only that it may
have happened. The trial court reinforced the jury’s factfinding role by instructing,
“Some of these instructions may not apply, depending on your findings about the facts of
the case. Do not assume just because I give a particular instruction that I’m suggesting
anything about the facts. After you have decided what the facts are, follow the
instructions that do apply to the facts as you find them.” We presume the jury understood
and followed these instructions. (People v. Silveria and Travis (2020) 10 Cal.5th 195,
350–352; see People v. Sandoval (2015) 62 Cal.4th 394, 422; People v. Pearson (2013)
56 Cal.4th 393, 414.) Thus, to the extent the challenged instruction did not apply to the
facts of the case, we presume the jury did not consider it. (See People v. Frandsen
(2011) 196 Cal.App.4th 266, 278 [“appellant’s assertion that no substantial evidence
supported the instruction does not warrant our finding reversible error because the jury is
presumed to disregard an instruction if the evidence does not support its application”].)
Moreover, the evidence does not show defendant would have obtained a more
favorable outcome had the error not occurred. (See People v. Moore, supra, 51 Cal.4th at
p. 1130; People v. Brown, supra, 46 Cal.3d at pp. 446–447; People v. Breverman (1998)
19 Cal.4th 142, 177, 178.) Under Watson, we consider not “what a reasonable jury could
do, but what such a jury is likely to have done in the absence of the error under
consideration.” (Breverman, supra, at p. 177.) “In making that evaluation, an appellate
court may consider, among other things, whether the evidence supporting the existing
judgment is so relatively strong, and the evidence supporting a different outcome is so
comparatively weak, that there is no reasonable probability the error of which the
defendant complains affected the result.” (Ibid.)

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 Here, the evidence overwhelmingly shows that Singh died from blunt trauma
caused by the motor vehicle accident. Even assuming the jury believed that some of the
victim’s injuries were caused by CPR, there was no evidence or argument Singh died as a
result of CPR. Importantly, there was no expert testimony to support defendant’s theory
of the case—that Singh died of a heart attack, unrelated to the accident. Therefore, we
cannot conclude it is reasonably probable defendant would have obtained a more
favorable verdict if the court had not instructed the jury with the challenged portion of
CALCRIM No. 620. Rather, the trial court’s error in giving the medical negligence
instruction in CALCRIM No. 620 was harmless.
II. Section 654 Prohibits Punishment for Both Count 1 and Count 2
Defendant next contends the trial court erred by imposing and executing sentences
for both second degree murder and driving under the influence. The People concede the
sentence for count 2 should have been stayed. However, in defendant’s supplemental
opening brief, he adds the matter should be remanded for the trial court to determine
whether to exercise its new discretion under section 654, as amended by Assembly Bill
No. 518 (Reg. Sess. 2021–2022) (Assembly Bill 518), to decide which sentence to stay.
The People agree. We, too, agree the trial court erred by imposing and executing
punishment on both count 1 and count 2, and the matter should be remanded to the trial
court for it to exercise its newfound discretion under section 654, as amended.
A. Relevant Procedural History
On May 18, 2020, the trial court sentenced defendant to 15 years to life for count
1. The trial court noted counts 2 and 3 arose from the same course of conduct that led to
count 1 and sentenced defendant to the middle term of two years for count 2, to run
concurrently with the sentence on count 1. The court sentenced defendant to the middle
term of two years on count 3 and stayed that sentence.

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 B Standard of Review and Applicable Law
“Section 654 precludes multiple punishments for a single act or indivisible course
of conduct.” (People v. Hester (2000) 22 Cal.4th 290, 294.) “[I]t is well settled that
section 654 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.” (People v. Perez (1979) 23 Cal.3d
545, 551; see People v. Beamon (1973) 8 Cal.3d 625, 637.) “‘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 the
offenses were incident to one objective, the defendant may be punished for any one of
such offenses but not for more than one.’” (Beamon, supra, at p. 637, quoting Neal v.
State of California (1960) 55 Cal.2d 11, 19, disapproved on other grounds in People v.
Correa (2012) 54 Cal.4th 331, 334; accord, Perez, supra, at p. 551.)
“Whether a defendant may be subjected to multiple punishment under section 654
requires a two-step inquiry.” (People v. Corpening (2016) 2 Cal.5th 307, 311.) “At step
one, courts examine the facts of the case to determine whether multiple convictions are
based upon a single physical act. [Citation.] When those facts are undisputed—as they
are here—the application of section 654 raises a question of law we review de novo.”
(Ibid.; accord, People v. Harrison (1989) 48 Cal.3d 321, 335 [“the applicability of
[section 654] to conceded facts is a question of law”]; People v. Valli (2010) 187
Cal.App.4th 786, 794 [“We review de novo the legal question of whether section 654
applies”].)
Assembly Bill 518 became effective January 1, 2022, while defendant’s appeal
was pending. Under the previous version of section 654, it was required that an act or
omission punishable in different ways by different laws be punished under the law
providing the longest possible term of imprisonment. However, Assembly Bill 518
amended section 654 to provide that an act or omission punishable in different ways by

15.
different laws may be punished under either of such provisions, but in no case shall the
act or omission be punished under more than one provision. (See § 654, subd. (a), as
amended by Stats. 2021, ch. 441, § 1.) As such, the trial court is no longer required to
impose punishment for the crime carrying the longest term of imprisonment, but now has
discretion in deciding which term of punishment to impose.
C. Analysis
Initially, we note defendant failed to object to the court’s failure to stay his
sentence on count 2 at the time of sentencing. However, errors regarding section 654
may be corrected on appeal regardless of whether the issue was raised by objection in the
trial court. (People v. Perez, supra, 23 Cal.3d at p. 549, fn. 3.)
Defendant contends, and the People concede, there was one criminal act that
formed the basis for all of defendant’s convictions in this case: defendant’s driving under
the influence of alcohol. Indeed, the record shows the trial court acknowledged counts 1,
2 and 3 arose from the same incident. We agree the single act of driving under the
influence formed the basis for defendant’s second degree murder conviction on count 1
and his conviction on count 2. Accordingly, we conclude the trial court erred in failing to
stay the sentence on count 2 pursuant to section 654.
As amended, section 654 now provides an act or omission punishable in different
ways by different laws may be punished under either of such provisions. (§ 654, subd.
(a).) As such, the trial court is no longer required to impose punishment for the crime
carrying the longest term of imprisonment, but now has discretion in deciding which term
to impose as punishment.
In In re Estrada (1965) 63 Cal.2d 740, 748, the California Supreme Court held,
where the amended statute mitigates punishment and there is no saving clause, the
amendment will operate retroactively to all defendants whose judgments are not yet final
on the amendment’s operative date. (See People v. Frahs (2020) 9 Cal.5th 618, 627–628;
People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 307–308; People v. Brown (2012)

16.
54 Cal.4th 314, 323; People v. Francis (1969) 71 Cal.2d 66, 75–76 [Estrada applies
where a reduced punishment is possible].) Assembly Bill 518, which no longer requires
punishment under the longest possible term of imprisonment when multiple offenses are
based on the same act or omission, reduces possible punishment and should apply
retroactively to sentences that are not yet final. (See, e.g., People v. Mani (2022) 74
Cal.App.5th 343, 379–380 [concluding Assem. Bill 518 applies retroactively].)
Here, defendant was sentenced on May 18, 2020, and his case was not final when
Assembly Bill 518 became effective. As such, he is entitled to the benefits of amended
section 654. Therefore, remand is necessary to permit the court to exercise its newfound
discretion under the amended statute. (See People v. Mani, supra, 74 Cal.App.5th at p.
381; cf. People v. Navarro (2007) 40 Cal.4th 668, 681.)
DISPOSITION
The matter is remanded to the trial court for it to exercise its sentencing discretion
under section 654, as amended. In all other respects, the judgment is affirmed.

PEÑA, J.
WE CONCUR:

FRANSON, Acting P. J.

SMITH, J.

17.