Opinion
NOT TO BE PUBLISHED
APPEAL from sentencing orders of the Superior Court of the County No. NA079895, of Los Angeles, Tomson T. Ong, Judge.
Jeffrey S. Kross, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Jaime L. Fuster and Dana M. Ali, Deputy Attorneys General, for Plaintiff and Respondent.
MOSK, J.
INTRODUCTION
A jury found defendant and appellant Albert Brunson (defendant) guilty of assault with a firearm, discharge of a firearm at an occupied vehicle, and possession of a firearm by a felon. The trial court sentenced defendant to an aggregate sentence of 27 years, 8 months.
On appeal, defendant contends that he is entitled to automatic reversal of the sentencing orders because the trial court violated his Sixth Amendment right to counsel of his choice when, after trial but prior to sentencing, the court denied defendant’s motion to discharge his retained trial counsel. Defendant also contends that the trial court violated Penal Code section 654 by imposing consecutive terms on count 2-assault with a firearm-and count 3-discharge of a firearm at an occupied vehicle-because each charge was based on the single, indivisible act of shooting at the victim’s car. And, because his restitution and parole revocation restitution fines were based upon the total length of his sentence, defendant argues that those fines should be reversed and recalculated if a portion of that sentence is stayed as requested.
All further statutory references are to the Penal Code unless otherwise indicated.
We hold that although defendant’s trial counsel advised the trial court that defendant did not want to be further represented by his trial counsel, defendant did not make a motion to discharge his trial counsel, and therefore no Sixth Amendment violation occurred. We also hold, and the Attorney General agrees, that the trial should not have imposed and executed a consecutive sentence on count 3, but rather should have imposed and stayed that sentence. Because the sentence imposed on count 3 must be stayed, the trial court may, in its discretion, recalculate the amount of the restitution and parole revocation restitution fines in light of the resulting reduction in the length of defendant’s total sentence. In all other respects, the judgment of conviction and sentencing orders are affirmed.
Defendant challenges two issues relating to sentencing, only the second of which concerning his consecutive sentences on counts 2 and 3 requires an analysis of the facts of the shooting. We therefore summarize only those facts necessary to resolve that issue.
Based on a 911 call reporting a shooting, Long Beach police responded to a residence and were informed by the victim that defendant shot him in the head. According to the victim’s report to the police, on the morning of the shooting, defendant left a threatening voicemail message for the victim concerning a debt the victim owed defendant. The victim later saw defendant standing with two other men and pulled his car over to speak to defendant. Standing five or six feet from the victim’s car, defendant said, “I... got something for nigga like you, ” and pulled a gun from his pocket. Fearing defendant was going to kill him, the victim sped away. As he fled the scene, the victim heard five or six gunshots and felt something hit the back of his head that caused a burning sensation. The police recovered bullet fragments that the victim said fell from his hair when he removed his cap and photographed damage to the victim’s car that appeared to be from bullet strikes.
A tape of the 911 call was played for the jury. In the transcript of that call, the victim confirms to the operator that defendant shot him.
The victim testified at trial that he could not recall anything that occurred prior to the shooting.
After the shooting, the victim had head and neck ache, but he chose not to seek medical attention because he was not bleeding.
The same day, the police detained defendant and asked him if he had been involved in a shooting. Defendant admitted to being involved in the shooting, explaining that the victim owed him money and when defendant confronted the victim, a heated argument ensued. During the argument, the victim produced a handgun, but defendant disarmed him. The victim then attempted to run over defendant with the victim’s car, at which point defendant fired the victim’s handgun at the car and fled the scene. Defendant identified a handgun recovered by police as “the gun [he] took from defendant and shot him with.”
PROCEDURAL BACKGROUND
In an information alleging four felony counts, the Los Angeles County District Attorney charged defendant in count 1 with attempted, willful, deliberate, premeditated murder in violation of sections 664 and 187, subdivision (a); in count 2 with assault with a firearm in violation of section 245, subdivision (a)(2); in count 3 with discharge of a firearm at an occupied vehicle in violation of section 246; and in count 4 with possession of a firearm by a felon in violation of section 12021, subdivision (a)(1). The District Attorney further alleged as to count 1 that defendant personally and intentionally discharged a handgun within the meaning of section 12022.53, subdivision (c) and, as to counts 1 and 2, that defendant personally used a handgun within the meaning of section 12022.53, subdivision (b). As to all counts, the District Attorney alleged that defendant had suffered a prior conviction of a serious or violent felony within the meaning of sections 1170.12, subdivisions (a) through (d) and 667, subdivisions (b) through (i). And, as to counts 1 through 3, the District Attorney alleged that defendant had suffered a prior conviction of a serious felony within the meaning of section 667, subdivision (a)(1) and had served a prior prison term within the meaning of section 667.5, subdivision (b). Defendant pleaded not guilty to all counts.
Following trial, the jury found defendant not guilty on count 1-attempted murder-and on the lesser included offense of attempted voluntary manslaughter. But the jury found defendant guilty on counts 2 through 4, assault with a firearm, discharge of a firearm at an occupied vehicle, and possession of a firearm by a felon, respectively. As to the assault with a firearm charge in count 2, the jury found true the allegation that defendant personally used a handgun within the meaning of sections 12022.5, 1192.7, subdivision (c), and 667.5, subdivision (c). Defendant admitted the allegations that he suffered a prior conviction within the meaning of sections 1170.12, subdivisions (a) through (d), 667, subdivisions (b) through (i), 667, subdivision (a)(1), and that he served a prior prison term under 667.5, subdivision (b).
At the sentencing hearing, the trial court sentenced defendant to an aggregate term of 27 years, 8 months, comprised of the following: On count 2, an upper term sentence of four years, doubled to eight years pursuant to section 1170.12, subdivisions (a) through (d), plus a five-year term pursuant to section 667, subdivision (a)(1), plus an additional 10 year sentence pursuant to section 12022.5, subdivisions (a) through (d), all to run consecutively, for a total sentence on count 2 of 23 years; on count 3, a one-third the middle term sentence of 60 months, or 20 months, plus an additional 20 months pursuant to section 1170.12, subdivisions (a) through (d), for a total sentence of 40 months, to run consecutively with the sentence on count 2; and, on count 4, a one-third the middle term sentence of 24 months, or eight months, plus an additional eight months pursuant to section 1170.12, subdivisions (a) through (d), for a total sentence on count 4 of 16 months, to run consecutively with the sentences on counts 2 and 3.
The trial court imposed the following assessments and fines: a $90 court security assessment pursuant to section 1465.8, subdivision (a)(1); a $90 criminal conviction assessment pursuant to Government Code section 70737; a $5,400 restitution fine pursuant to section 1202.4, subdivision (b); and a $5,400 parole revocation restitution fine pursuant to section 1202.45, which fine was stayed by the trial court.
DISCUSSION
A. Right to Discharge of Retained Counsel
1. Background
The original sentencing hearing was scheduled for July 29, 2009. Because defendant was a “miss-out, ” and therefore not in attendance, the trial court announced its intention to continue the matter to July 31, 2009. When defendant’s trial counsel asked to be heard concerning a section 1050 motion for continuance, the trial court replied, “I’m not going to rule on that. I cannot rule on that because your client is not here. If I’m going to grant it, he needs to give me a time waiver for sentencing. If I deny it, then it goes forward for sentencing. [Defendant] needs to be here for the [section] 1050 [motion].... [Y]ou cannot appear [pursuant to section] 977(A). He is a miss-out. He’s entitled to a hearing.” Although defendant’s trial counsel thereafter had an extended colloquy with the trial court concerning a scheduling conflict on July 31, he did not advise the trial court of any issues concerning his continued representation of defendant or that defendant wanted to discharge him as retained counsel.
On July 31, 2009, defendant appeared at the sentencing hearing represented by his trial counsel. During the discussion of the motion to continue sentencing to allow a psychiatrist to examine defendant, the following colloquy took place between the trial court and counsel: “[Court]: Today is the date for sentencing. He has been convicted and the priors have been proven true and correct? There is a [section] 1050 [motion]. [¶] First of all, [defense counsel] applied for the court appointment of a psychiatrist of some sort. Are you declaring doubt, [defense counsel], for sentencing? Today is the date for sentencing. Are you declaring doubt? [¶] [Defense Counsel]: I’m not declaring doubt at this time. [¶] [Court]: So let me ask you this: do you waive further arraignment for judgment, time for sentence? [¶] [Defense Counsel]: Your Honor, may I briefly be heard on a separate matter? [¶] [Court]: Well, let’s go through. [Y]ou have a motion to continue. The continuance is based upon the appointment of a psychiatrist. Usually the only issue with respect to [a] psychiatrist at this stage is whether or not [defendant] is competent to be sentenced. If you are not declaring doubt [as] to his competency to be sentenced, why do I need to entertain that issue? [¶] [Defense Counsel]: Well, [defendant] does not want me as his counsel anymore. [¶] [Court]: He can have appellate counsel, and he will have appellate counsel at some point in time. Today is the date for sentencing. You have been the counsel for now.” (Italics added.)
The trial court then proceeded formally to arraign defendant for judgment. During the arraignment, defense counsel interrupted the trial court and the following colloquy occurred: “[Defense Counsel]: Your Honor -- [¶] [Court]: Since you are not waiving arraignment for judgment, time for sentence, I have to go through and arraign him, counsel. [¶] [Defense Counsel]: I would like to declare a doubt if we are not going to have a psychiatrist. [¶] [Court]: Wait a second. You just told me you are not declaring doubt. [¶] [Defense Counsel]: I want to have him evaluated. [¶] [Court]: Are you declaring incompetency for him to be sentenced today? [¶] [Defense Counsel]: Yes, your Honor. [¶] [Court]: That is the legal cause why sentence should not be pronounced today? [¶] [Defense Counsel]: Yes. [¶] [Court]: Doubt is declared.... The sentencing proceeding is suspended.... And we will go ahead and set a competency hearing for about 60 days; is that right?... [¶]... [¶] [Defense Counsel]: Your Honor, [defendant] has also advised me that -- [¶] [Court]: He can’t advise you of anything. He’s incompetent at this time. [¶]... [¶] [Court]: We will have a competency hearing on [defendant] on September 30th. The proceedings are suspended pending the competency hearing before sentencing.”
On September 30, 2009, the trial court held a hearing on the reports of the appointed psychiatrist and psychologist. After the prosecutor and defendant’s trial counsel stipulated to the conclusions of the appointed psychiatrist and psychologist, the trial court found defendant competent to be sentenced, concluding there was no legal cause to delay sentencing due to defendant’s competency. Defendant’s trial counsel waived formal arraignment for judgment and time for sentencing. When asked by the trial court whether there was any other legal cause why sentence should not be imposed, defendant’s trial counsel responded that there was “[n]o legal cause.” Although defendant’s trial counsel advised the trial court that defendant’s father wanted to be heard, and thereafter made certain arguments concerning sentencing, he did not raise any issue concerning his representation of defendant at the sentencing hearing and, specifically, made no mention of a motion to discharge him as retained counsel.
When the trial court inquired whether defendant wanted to be heard, defendant’s trial counsel replied, “I’m too hesitant just based on his – I don’t understand him. The prior attorney had trouble understanding him.” The trial court then addressed defendant directly and inquired whether he wished to be heard. Defendant replied in the affirmative and made these comments: “[Defendant]: I want to say throughout this whole trial I feel like I wasn’t represented right and I was trying to get a couple motions filed in my behalf. As far as like not just my competency level, but like my prior conviction. I was not convicted of 211. I never owned or had a gun in my life. They are trying to say that I was a 211, but it wasn’t a 211 when I got convicted, they told me -- [¶] [Court]: It was 212.5, second degree robbery? [¶] [Defendant]: But they told me it was a second degree because I never robbed anyone. I was at the scene and somebody had got robbed and they picked me up so the public defender told me when I was fighting the strike I didn’t think I had a strike. I can do county time. I never went to the penitentiary for that. It was county time. So I was trying to get my lawyer to file a motion saying you can’t use the prior conviction against me. I had no knowledge of it, your Honor. I had no knowledge that I had got convicted of robbery when I didn’t rob anybody and they said that in the evidence in the courtroom when I got charged with it. [¶] So I was unaware. I didn’t know. So I was trying to see if I can get that not to be held against me because I know that’s going to carry, that right there is the reason why I’m going to get so much time and I feel like I wasn’t represented right because the whole time during the trial I didn’t get any motions filed in my behalf. Like I feel like I could have at least gotten a something a little bit more reasonable because I didn’t get a chance to get any motions filed or anything like that. [¶] So I feel that should be grounds for like a retrial because I didn’t get a chance to like get any motions in. We didn’t do any expert investigation type work. And I didn’t have any transcript the whole time we were doing the trial. I did not get a chance to look over my trial or nothing and, my constitutional rights, I should have paperwork and transcripts. I didn’t have anything to [sic] whole time.” (Italics added.)
Following defendant’s remarks, the trial court sentenced defendant as detailed above. The trial court also indicated that defendant’s privately retained trial counsel had provided competent representation, that defendant was not entitled to the trial tactics of his choice, and that, to the extent defendant was requesting a new trial, that request was denied.
2. Legal Principles
In People v. Ortiz (1990) 51 Cal.3d 975, the Supreme Court recognized that, under the Sixth Amendment, a defendant’s right to discharge retained counsel was broader than the right to discharge appointed counsel and explained the standard under which a motion to discharge retained counsel should be determined. “In People v. Marsden (1970) 2 Cal.3d 118 [84 Cal.Rptr. 156, 465 P.2d 44], we held that a defendant is deprived of his constitutional right to the effective assistance of counsel when a trial court denies his motion to substitute one appointed counsel for another without giving him an opportunity to state the reasons for his request. A defendant must make a sufficient showing that denial of substitution would substantially impair his constitutional right to the assistance of counsel (People v. Smith (1985) 38 Cal.3d 945, 956 [216 Cal.Rptr. 98, 702 P.2d 180]), whether because of his attorney’s incompetence or lack of diligence (In re Banks (1971) 4 Cal.3d 337, 342 [93 Cal.Rptr. 591, 482 P.2d 215]; People v. Crandell (1988) 46 Cal.3d 833, 854 [251 Cal.Rptr. 227, 760 P.2d 423]), or because of an irreconcilable conflict (People v. Stankewitz (1982) 32 Cal.3d 80, 93-94 [184 Cal.Rptr. 611, 648 P.2d 578, 23 A.L.R.4th 476]; Brown v. Craven (9th Cir. 1970) 424 F.2d 1166, 1170). We require such proof because a defendant’s right to appointed counsel does not include the right to demand appointment of more than one counsel, and because the matter is generally within the discretion of the trial court. (People v. Marsden, supra, 2 Cal.3d at p. 123.)” (People v. Ortiz, supra, 51 Cal.3d at p. 980, fn.1.)
After noting the limitations on the right of a defendant to substitute a new appointed counsel, the court in People v. Ortiz, supra, 51 Cal.3d 975 described the broader right to discharge retained counsel. “The right of a nonindigent criminal defendant to discharge his retained attorney, with or without cause, has long been recognized in this state (Gage v. Atwater (1902) 136 Cal. 170, 172 [68 P. 581]; Echlin v. Superior Court (1939) 13 Cal.2d 368, 372 [90 P.2d 63, 124 A.L.R. 719]; 1 Witkin, Cal. Procedure (3d ed. 1985) Attorneys, § 82, p. 101), and is governed by Code of Civil Procedure section 284, subdivision 2 (Mandell v. Superior Court (1977) 67 Cal.App.3d 1, 4 [136 Cal.Rptr. 354]; People v. Bouchard (1957) 49 Cal.2d 438, 440-442 [317 P.2d 971]). (Footnote omitted.) The right to discharge retained counsel is based on ‘“necessity in view both of the delicate and confidential nature of the relation between [attorney and client], and of the evil engendered by friction or distrust.”’ (Todd v. Superior Court of San Francisco (1919) 181 Cal. 406, 413 [184 P. 684, 7 A.L.R. 938].) In order to ensure effective assistance of counsel, a nonindigent defendant is accorded the right to discharge his retained attorney: ‘the attorney-client relationship... involves not just the casual assistance of a member of the bar, but an intimate process of consultation and planning which culminates in a state of trust and confidence between the client and his attorney. This is particularly essential, of course, when the attorney is defending the client’s life or liberty. (Smith v. Superior Court (1968) 68 Cal.2d 547, 561 [68 Cal.Rptr. 1, 440 P.2d 65].) Thus, we conclude that the right to counsel of choice reflects not only a defendant’s choice of a particular attorney, but also his decision to discharge an attorney whom he hired but no longer wishes to retain.” (People v. Ortiz, supra, 51 Cal.3d at p. 983.)
In People v. Ortiz, supra, 51 Cal.3d 975, however, the court emphasized that a defendant’s right to discharge retained counsel was not unlimited. “A nonindigent defendant’s right to discharge his retained counsel, however, is not absolute. The trial court, in its discretion, may deny such a motion if discharge will result in ‘significant prejudice’ to the defendant (People v. Gzikowski (1982) 32 Cal.3d 580, 587 [186 Cal.Rptr. 339, 651 P.2d 1145]), or if it is not timely, i.e., if it will result in ‘disruption of the orderly processes of justice’ (ibid.; People v. Lau (1986) 177 Cal.App.3d 473, 478-479 [223 Cal.Rptr. 48]; [People v.] Crovedi [(1966)] 65 Cal.2d [199, ] 208). As the court stated in Sampley v. Attorney General of North Carolina (4th Cir. 1986) 786 F.2d 610, 613, the ‘fair opportunity’ to secure counsel of choice provided by the Sixth Amendment ‘is necessarily [limited by] the countervailing state interest against which the sixth amendment right provides explicit protection: the interest in proceeding with prosecutions on an orderly and expeditious basis, taking into account the practical difficulties of “assembling the witnesses, lawyers, and jurors at the same place at the same time.”’ The trial court, however, must exercise its discretion reasonably: ‘a myopic insistence upon expeditiousness in the face of a justifiable request for delay can render the right to defend with counsel an empty formality.’ (Crovedi, supra, 65 Cal.2d at p. 207 [defendant was entitled to two-month continuance so that he could be represented by retained counsel who was hospitalized at time of trial].)” (People v. Ortiz, supra, 51 Cal.3d at pp. 983-984.)
3. Did Defendant Make a Motion to Discharge?
Defendant and the Attorney General agree as to the general legal principles that govern defendant’s Sixth Amendment right to discharge retained counsel. They disagree, however, whether defendant made the requisite motion to discharge.
As noted by the court in People v. Ortiz, supra, 51 Cal.3d at page 983, a defendant’s right to discharge his retained attorney is governed by the procedure set forth in Code of Civil Procedure section 284, subdivision (2), which provides: “The attorney in an action or special proceeding may be changed at any time before or after judgment of final determination, as follows: [¶]... [¶] 2. Upon the order of the court, upon the application of either client or attorney, after notice from one to the other.” (Code Civ. Proc. § 284, subd. (2), italics added.)
“[Code of Civil Procedure section 284] is applicable to criminal cases.” (Mandell v. Superior Court (1977) 67 Cal.App.3d 1, 4, citing In re Haro (1969) 71 Cal.2d 1021, 1029.)
California Code of Civil Procedure section 1003 provides that an application to the trial court for an order is a “motion.” “Every direction of a court or judge, made or entered in writing, and not included in a judgment, is denominated an order. An application for an order is a motion.” (Code Civ. Proc., § 1003, italics added.) Thus, to discharge his retained counsel, defendant was required to move the trial court for an order allowing him to change attorneys. According to defendant, his trial counsel made the requisite motion for such an order at the July 31, 2009, sentencing hearing when his counsel stated, “Well [defendant] does not want me as his counsel anymore.” The issue is whether that statement by counsel constituted the requisite “motion” to discharge counsel under Code of Civil Procedure section 284, subdivision (2).
The statement by defendant’s trial counsel could be understood as an advisement to the trial court that defendant was so dissatisfied with his current representation that he wanted to terminate his attorney-client relationship with trial counsel. But it stopped short of unequivocally requesting a discharge order, and failed completely to address the issues of significant prejudice and timeliness discussed in Ortiz, supra, 51 Cal.4th 975. Moreover, the statement was made in response to the trial court’s inquiry about why the court should entertain the issue of appointment of a psychiatrist if trial counsel was not declaring doubt as to defendant’s competency. In that context, the statement suggests that because defendant was dissatisfied with his legal representation, he was seeking a continuance of the sentencing hearing and the appointment of a psychiatrist. Therefore, when read in the context of the trial court’s question, the statement is not clear that defendant wanted an immediate order discharging trial counsel as contrasted with a request for additional time to address his issues with counsel. Moreover, the nexus between defendant’s dissatisfaction with his current legal representation and his request for the appointment of a psychiatrist is likewise unclear. Although trial counsel made a motion to continue the sentencing hearing, he did not expressly move the trial court for a discharge order, i.e., he did not make an application to the court for that specific form of relief.
In addition, shortly after advising the trial court that defendant no longer wished to retain him, trial counsel advised the trial court that he had doubt as to defendant’s competency to be sentenced. Based on that advice, the trial court stayed further proceedings pending the appointment of a psychiatrist and psychologist to examine defendant and report on the competency issue. That process took 60 days to complete, during which time no issues concerning the status of defendant’s legal representation were raised with the trial court. At the September 30, 2009, hearing, neither trial counsel nor defendant attempted to make an application for an order discharging trial counsel. Instead, trial counsel stipulated that there was no legal cause why defendant should not be sentenced and went forward with arguments on the merits of the sentencing issues. Thereafter, defendant made arguments on both sentencing issues and the effectiveness of his legal representation prior to trial, but made no request for relief other than his reference to a “retrial.” Based on that reference, the trial court understood defendant’s complaints about his legal representation as the basis for a motion for new trial, not an application for an order discharging trial counsel.
Under these circumstances, the trial court would not be expected to discharge counsel.
Defendant contends that his counsel’s statement should be construed as an application for a discharge order. He explains his trial counsel’s failure to elaborate on the discharge issue by noting the trial court’s response to the statement, which he characterizes as a denial of the motion, making any further argument or comment futile. Although the trial court’s response to the statement could be viewed as dismissive, it must be read in context-the discussion of defendant’s motion to continue and appoint a psychiatrist. As discussed, in that context, the statement did not clearly request a discharge order. Therefore, the trial court’s response cannot be construed as a denial of an application for a discharge order, as no such application was unequivocally or even inferentially made; and the court’s reaction should not be viewed as rendering any application futile.
Based on the record, trial counsel’s statement cannot reasonably be construed as an application under California Code of Civil Procedure section 284, subdivision (2), for an order discharging him as counsel of record. Absent such a motion, defendant could not exercise his right under the Sixth Amendment to change retained counsel, and it follows that no violation of that right occurred
B. Consecutive Sentences on Counts 2 and 3
1. Background
In sentencing defendant to consecutive terms on counts 2 and 3, the trial court found and concluded as follows: “[T] he court also finds that the counts, particularly counts 2 and 3, are discrete of each other in that count 2 involves the pointing of the weapon, the assault with a firearm. It does not require the discharge of the firearm. As I understand it requires pointing of the firearm. In fact, the weapon need not be operable. [¶] Count 3 involves the shooting. As the car is driving away, shots were fired. They are discrete locations, discrete counts, discrete acts and that’s the reason why they are discrete and not merged under Penal Code section 654.”
Defendant contends that the trial court violated section 654 when it sentenced him to consecutive sentences on count 2-assault with a firearm-and count 3-discharging a firearm at an occupied vehicle-because both counts were based on the same indivisible act of shooting at the victim’s car. The Attorney General concedes that under section 654, consecutive sentences should not have been imposed on counts 2 and 3 and agrees that the appropriate remedy is to reverse the sentencing order on count 3 and remand for a new order imposing but staying sentence on count 3.
2. Section 654
Section 654 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. An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other.”
“In Neal v. State of California (1960) 55 Cal.2d 11 [9 Cal.Rptr. 607, 357 P.2d 839], this court construed the statute broadly: ‘“Section 654 has been applied not only where there was but one ‘act’ in the ordinary sense... but also where a course of conduct violated more than one statute and the problem was whether it comprised a divisible transaction which could be punished under more than one statute within the meaning of section 654.” [Citation.] [¶] 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 of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.’ (Id. at p. 19, italics added.)” (People v. Rodriguez (2009) 47 Cal.4th 501, 507.)
In People v. Kramer (2002) 29 Cal.4th 720 (Kramer), the defendant fired a gun at a moving car containing two occupants and was convicted of both discharging a firearm at an occupied vehicle in violation of section 246 and of assault with a firearm in violation of section 245, subdivision (a)(2). (Kramer, supra, 29 Cal.4th at p. 722.) In determining the issue presented concerning which count provided for the longest potential term of imprisonment under section 654, the court in Kramer assumed that section 654 applied to ban punishment for both discharging a firearm at an occupied vehicle and assault with a firearm in a factual context similar to this one, i.e., where each conviction was based on the same act of shooting at an occupied vehicle.
Although the court in Kramer, supra, 29 Cal.4th 720 was not directly presented with the issue of whether section 654 applied to the two convictions-because neither party contended that the two convictions were based on a divisible course of conduct-that issue had earlier been presented to and decided by a Court of Appeal in People v. Kane (1985) 165 Cal.App.3d 480 (Kane). In that case, the victim engaged in an argument and fist fight with the defendant outside a bar. (Id. at p. 484.) The victim then entered his car and another brief confrontation with defendant occurred causing the victim to accelerate away from the scene. (Ibid.) As he exited the parking lot, the victim heard something hit his car and, thinking the defendant had thrown a rock, he backed up his car to confront the defendant. (Ibid.) When the victim saw the defendant pointing a gun at him, he “crouched low in the driver’s seat and drove away as fast as possible.” (Ibid.)
In Kane, supra, 165 Cal.App.3d 480, a jury found defendant guilty of assault with a deadly weapon in violation of section 245, subdivision (a)(2), discharging a firearm at an occupied vehicle in violation of section 246, and possession of a firearm by a felon in violation of section 12021. (Id. at p. 483.) The trial court imposed concurrent terms on the charges of assault with a firearm and discharging a firearm at an occupied vehicle. (Id. at p. 488.) On appeal, the defendant argued, inter alia, that the trial court violated section 654 by imposing the concurrent terms when it should have stayed the sentence on the less serious offense. (Id. at p. 488.) As in this case, the Attorney General in Kane conceded the error. (Ibid.)
In a terse holding, the court in Kane, supra, 165 Cal.App.3d 480 agreed with the parties. “Defendant possessed the firearm, fired it at [the victim] and hit the [the victim’s car] in an indivisible course of conduct. (See People v. Bauer (1969) 1 Cal.3d 368, 377 [82 Cal.Rptr. 357, 461 P.2d 637, 37 A.L.R.3d 1398], cert. den. 400 U.S. 927 [27 L.Ed.2d 187, 91 S.Ct. 190].) The [trial] court imposed concurrent sentences when it should have stayed the terms imposed upon the less serious offenses of sections 246 and 12021. (See People v. Miller (1977) 18 Cal.3d 873, 888 [135 Cal.Rptr. 654, 558 P.2d 552].)” (Kane, supra, 165 Cal.App.4th at p. 488.)
In this case, the trial court found that the assault charge was based on defendant’s “discrete” act of pointing the handgun at the victim and that the charge of discharge of a firearm at an occupied vehicle was based on the separate and subsequent act of shooting at the victim’s vehicle as it fled the scene. The record, however, does not contain evidence that defendant pointed the handgun at the victim during the confrontation prior to the victim’s flight. Rather, the victim told the police that he saw defendant “pull” a handgun, and he, the victim, immediately sped away as defendant shot at him.
In light of the holdings in Kramer, supra, 29 Cal.4th 720and Kane, supra, 165 Cal.App.3d 480, we agree with the parties that the trial court violated the multiple punishment proscription in section 654 when it imposed consecutive sentences on counts 2 and 3. Under either version of the facts relating to the shooting that were presented at trial, defendant fired a handgun at the victim’s car as it left the scene, and in neither of those scenarios did defendant point the handgun at the victim and then, after some lapse of time, shoot at the victim’s vehicle. The act of pulling out the handgun and shooting at the vehicle as it sped away was one indivisible course of conduct, and, as such, section 654 applied to ban punishment for both crimes.
3. Restitution and Parole Revocation Restitution Fines
Defendant also argues that if the trial court is directed to stay sentence on count 3, it should also be directed to recalculate the restitution and parole revocation restitution fines imposed by the trial court. According to defendant, because the trial court used the length of his original sentence in calculating both fines, a stay of sentence on count 3 will result in a reduced sentence upon which the fines should be recalculated. The Attorney General disagrees, arguing that although the trial court applied a formula that used the length of defendant’s sentence as a multiplier in calculating the fines, the amount of the fines is a matter within the discretion of the trial court and no abuse of discretion has been demonstrated here.
In calculating the $5,400 amount of the restitution fine under section 1202.4-which section the trial court also used to calculate the amount of the parole revocation restitution fine under section 1202.45-the trial court stated: “Pursuant to Penal Code section 1202.4, defendant is ordered to pay a restitution fine to the State Restitution Fund in the amount of $200 for 27 years for a total of $5,400, plus a parole revocation fine pursuant to Penal Code section 1202.45 in the same amount, to be suspended unless parole is revoked. 27 years adds up to $5,400.”
Section 1202.4 provides in pertinent part: “(b) In every case where a person is convicted of a crime, the court shall impose a separate and additional restitution fine, unless it finds compelling and extraordinary reasons for not doing so, and states those reasons on the record. [¶] (1) The restitution fine shall be set at the discretion of the court and commensurate with the seriousness of the offense, but shall not be less than two hundred dollars ($200), and not more than ten thousand dollars ($10,000), if the person is convicted of a felony.... [¶] (2) In setting a felony restitution fine, the court may determine the amount of the fine as the product of two hundred dollars ($200) multiplied by the number of years of imprisonment the defendant is ordered to serve, multiplied by the number of felony counts of which the defendant is convicted.”
Section 1202.45 provides in pertinent part: “In every case where a person is convicted of a crime and whose sentence includes a period of parole, the court shall at the time of imposing the restitution fine pursuant to subdivision (b) of Section 1202.4, assess an additional parole revocation restitution fine in the same amount as that imposed pursuant to subdivision (b) of Section 1202.4. This additional parole revocation restitution fine... shall be suspended unless the person’s parole is revoked.” (Italics added.)
Although the amount of the fine under section 1202.4 is a matter left to the discretion of the trial court, that section suggests a calculation based on the length of a defendant’s sentence that the trial court used in arriving at the $5,400 amount for both fines. It therefore follows that the trial court may decide on remand to recalculate the amount of those fines using the same formula, but in light of the stay of sentence on count 3 and the resulting reduction in the total length of defendant’s sentence. Ultimately, the amount of the restitution fine under section 1202.4 is a matter within the trial court’s discretion. Our remand order will afford the trial court the opportunity to exercise that discretion with reference to the reduced total sentence.
DISPOSITON
The consecutive sentence imposed and executed on count 3 is reversed and remanded with directions to the trial court to impose and stay the sentence on that count pursuant to section 654 and to exercise its discretion to determine the amount of the restitution and parole revocation restitution fines in light of the stay of sentence on count 3 and resulting reduction in the length of defendant’s total sentence. In all other respects, the judgment of conviction and sentencing orders are affirmed.
We concur: ARMSTRONG, Acting P. J., KRIEGLER, J.