Two Crimes Arising Out of the Same Set of Facts in California

In People v. Benson (1998) 18 Cal.4th 24, the defendant had two prior felony convictions, residential burglary and assault with intent to commit murder, arising out of the same set of facts. "The trial court in the earlier action imposed sentence for one of those convictions, but stayed the sentence on the other under Penal Code section 654, which prohibits multiple punishment under certain circumstances." (Id. at p. 26.)

The appellant in Benson argued that when a court has stayed sentence on an otherwise qualifying conviction under section 654, the conviction should not be treated as a strike. The court rejected this contention. "In our view, the language of section 1170.12, subdivision (b)(1), unequivocally establishes that the electorate intended to qualify as separate strikes each prior conviction that a defendant incurred relating to the commission of a serious or violent felony, notwithstanding the circumstance that the trial court, in the earlier proceeding, may have stayed sentence on one or more of the serious or violent felonies under compulsion of the provisions of section 654." (Benson, supra, 18 Cal.4th at p. 31.)

Section 1170.12, subdivision (b)(1) states in pertinent part:

"The determination of whether a prior conviction is a prior felony conviction for purposes of this section shall be made upon the date of that prior conviction and is not affected by the sentence imposed unless the sentence automatically, upon the initial sentencing, converts the felony to a misdemeanor. None of the following dispositions shall affect the determination that a prior conviction is a prior felony for purposes of this section: ... (B) The stay of execution of sentence." (See also § 667, subd. (d)(1).) A dissenting opinion of Justice Chin in Benson took the position that deeming a prior conviction to be a strike, even though execution of the sentence on that conviction was stayed pursuant to section 654, would violate "section 654 itself and its fundamental principle that a person may be punished only once for the same act." (Benson, supra, 18 Cal.4th at p. 45 (dis. opn. of Chin, J.).)

In Justice Chin's view, the electorate and the Legislature did not intend that a defendant who is convicted of two felonies resulting from the same act, and who is punished for one of those two crimes, would later incur a third strike (i.e. life) sentence upon a third conviction (as opposed to a less severe second strike sentence) in part on the basis of a crime for which he could not lawfully be punished (the second conviction). "Mine is but a modest proposal: A single act that may be punished only once may generate one strike, not two." (Id. at p. 46 (dis. opn. of Chin, J.).)

The majority opinion in Benson nevertheless pointed out that a trial court retains discretion to strike a prior strike "if the trial court properly concludes that the interests of justice support such action. " (Benson, supra, 18 Cal.4th at p. 36.)

The court further stated:

"In view of the language and objectives of the Three Strikes law, we believe the inflexible result advocated by defendant - precluding a conviction on which sentence was stayed under section 654 from ever being treated as a separate strike - is untenable. Instead, we believe that the statute properly must be interpreted to permit - but not necessarily require - a qualifying prior conviction to be treated as a strike even if the sentence on the conviction has been stayed pursuant to the provisions of section 654." (Ibid.)

In People v. Burgos (2004) 117 Cal.App.4th 1209, the defendant's prior felony convictions were for attempted robbery and attempted carjacking. (Id. at p. 1212.) These convictions "arose from a single criminal act" (id. at p. 1212, fn.3) against a single victim, "a man at a gas station." (Ibid.) The defendant in Burgos was punished for one of these two crimes. (Id. at p. 1216.)

He later committed two more felonies. The sentencing court refused to strike one of the prior felony convictions, and the defendant was sentenced to two consecutive terms of 25 years to life, plus some enhancements.

The Burgos court stated:

"As the Supreme Court indicated in Benson, a prior conviction which qualifies as a strike may have been stayed pursuant to section 654 under either of two different rationales - either because the defendant's multiple convictions resulted from multiple acts arising from an indivisible course of conduct, or because those convictions resulted from the same single act. (Benson, supra, 18 Cal.4th at p. 36, fn. 8.)

The Supreme Court's language in footnote 8 in Benson ... strongly indicates that where the two priors were so closely connected as to have arisen from a single act, it would necessarily constitute an abuse of discretion to refuse to strike one of the priors." (Burgos, supra, 117 Cal.App.4th at p. 1215.)

The court further stated: "We conclude that, in view of the particular offenses that constituted the two prior strike convictions in this case, it was an abuse of discretion to fail to strike one of those convictions in furtherance of justice under Romero . . . and section 1385." (Id. at pp. 1216-1217.)

The Third District has expressed the view that the above-quoted language of Burgos misinterpreted footnote 8 of Benson. "We conclude the 'same act' circumstances posed by robbery and carjacking cases provide a factor for a trial court to consider, but do not mandate striking a strike." (People v. Scott (2009) 179 Cal.App.4th 920, 931.)