People v. Carrillo CA4/1

Filed 3/28/24 P. v. Carrillo CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D081946

Plaintiff and Respondent,

v. (Super. Ct. No. SCN400895)

ALVARO ANTONIO CARRILLO,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County, Sim von Kalinowski, Judge. Affirmed as modified; remanded with directions. Reed Webb, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Arlene A. Sevidal and James M. Toohey, Deputy Attorneys General, for Plaintiff and Respondent. MEMORANDUM OPINION A jury convicted Alvaro Antonio Carrillo of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1); count 2) and assault with force likely

to cause great bodily injury (§ 245, subd. (a)(4); count 3). The court sentenced Carrillo to prison for a term of five years, consisting of four years on the upper term for count 2 and a consecutive one-year term on count 3. Carrillo appeals, contending: (1) he could not be convicted under counts 2 and 3 because both counts were based on the same conduct and (2) the trial court erred by failing to stay his sentence under count 3 pursuant to section 654. Resolving this matter by memorandum opinion (see generally People v. Garcia (2002) 97 Cal.App.4th 847, 851-854), we agree with Carrillo as to his first argument and do not reach the second. Thus, we vacate his conviction under count 3, strike the corresponding one-year sentence, and affirm the judgment as modified. Section 954 authorizes multiple convictions for different or distinct offenses, “‘but does not permit multiple convictions for a different statement of the same offense when it is based on the same act or course of conduct.’” (People v. Vidana (2016) 1 Cal.5th 632, 650.) Assault with a deadly weapon and assault with force likely to cause great bodily harm are “‘different statements of the same offense.’” (People v. Aguayo (2022) 13 Cal.5th 974, 979 (Aguayo), quoting § 954.) Therefore, a defendant cannot be convicted of both offenses unless separate acts support each offense. (Id. at pp. 993-995.) In evaluating whether these two offenses are based on different acts, we look to the jury’s findings of fact, the charging document, the jury verdict forms, jury instructions, and the prosecutor’s closing argument. (Id. at pp. 993-994.) Here, Carrillo chased the victim through a parking lot. Upon catching up to the victim, Carrillo hit him over the head with the butt of a knife. Then, after the victim fell to the ground, Carrillo continued to strike the victim, ultimately stabbing him in the chest and killing him. The People claim the jury based count 2 (assault with a deadly weapon) on Carrillo’s use