People v. Vilaysane CA4/1

Opinion

Filed 9/4/26 P. v. Vilaysane 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D086283

Plaintiff and Respondent, (Super. Ct. No. SCD304942)

v.

SOMSY VILAYSANE,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County, Rachel Cano, Judge. Affirmed as modified. Richard Jay Moller, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney General, Arlene A. Sevidal, Assistant Attorney General, Eric A. Swenson and Anastasia Sagorsky, Deputy Attorneys General, for Plaintiff and Respondent. INTRODUCTION A jury convicted Somsy Vilaysane of nine counts of burglary (Pen.

Code,1 § 459), three counts of vandalism (§ 594, subds. (a), (b)(1) & (2)(A)), and three counts of attempted burglary (§§ 459 & 664). On appeal, Vilaysane contends section 654 barred punishment for the vandalism counts because those offenses involved the same course of conduct and objective as the attempted burglaries. The People agree that the trial court erred when it failed to apply section 654 to stay punishment on all three counts of vandalism. We accept the People’s concession and modify the judgment to correct these errors. FACTS AND PROCEDURAL BACKGROUND In late 2024, Vilaysane committed a series of commercial burglaries and attempted burglaries. Vilaysane’s method generally involved throwing a rock through the front window of a restaurant, entering, taking cash from the register, and absconding. Surveillance video depicts multiple incidents. Vilaysane was charged with 14 counts of burglary (§ 459; counts 1, 2, 3, 6, 7, 8, 9, 10, 11, 14, 17, 18, 19, and 20), three counts of vandalism (§ 594, subds. (a), (b)(2)(A); count 5 [misdemeanor vandalism]; id., subds. (a), (b)(1)); counts 13 and 16 [felony vandalism]), and three counts of attempted burglary (§§ 459 & 664; counts 4, 12, and 15). The complaint further alleged out-on- bail enhancements for counts 6 through 20. A jury convicted Vilaysane of nine counts of burglary, as well as the vandalism and attempted burglary counts.

1 Undesignated statutory references are to the Penal Code.

2 Before sentencing, Vilaysane admitted to the out-on-bail enhancements; he sought probation or alternatively a sentence of seven years and four months. He contended that section 654 prohibited punishment on each of the vandalism counts related to the attempted burglary convictions. The trial court sentenced Vilaysane to a total term of 10 years and four months. Vilaysane’s sentence consisted of consecutive terms of: two years doubled for an out-on-bail enhancement for a total of four years on count 6; four months each on counts 4, 12 and 15; and eight months each for counts 7, 10, 11, 14, 17, 18, 19, 20.2 Regarding the vandalism counts, the court indicated those punishments would not run consecutively because they “are 654.” The court pronounced, “On [c]ount 5, the misdemeanor [vandalism], the Court will . . . sentence Mr. Vilaysane to 364 days concurrent with the felony counts”; “[c]ount 13 will be concurrent, as that is 654, so that will be two years concurrent”; and, “[o]n [c]ount 16, two years concurrent, as it is 654.” The abstract of judgment checked the box “654 STAY” for the vandalism counts 13 and 16, but it made no reference to the two-year concurrent term that the court orally articulated for each. As to the count 5 vandalism conviction, the abstract of judgment and minutes of the court imposed a concurrent term of 364 days. No box was checked staying that punishment. DISCUSSION “Section 654 ‘generally precludes multiple punishments for a single physical act that violates different provisions of law [citation] as well as 2 The trial court exercised its discretion to strike the remaining out-on- bail enhancements.

3 multiple punishments for an indivisible course of conduct that violates more than one criminal statute.’ [Citations.] ‘ “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.” ’ ” (In re Raymundo M. (2020) 52 Cal.App.5th 78, 94, fn. omitted (Raymundo M.).) “ ‘If, on the other hand, “[the defendant] entertained multiple criminal objectives which were independent of and not merely incidental to each other, he may be punished for independent violations committed in pursuit of each objective even though the violations shared common acts or were parts of an otherwise indivisible course of conduct.” ’ ” (Raymundo M., supra, 52 Cal.App.5th at p. 94.) When a trial court determines that section 654 prohibits multiple punishments, it must impose a sentence for the conviction for which punishment is disallowed but stay its execution. (People v. Duff (2010) 50 Cal.4th 787, 796 (Duff).) Dismissal or imposition of a concurrent sentence is prohibited. (Ibid.) The parties do not dispute that section 654 applies to bar punishment for the vandalism counts in this case. Substantial evidence supports that Vilaysane harbored a singular criminal intent and objective when he threw a rock through the windowfronts of each of the restaurants—to access the premises to commit theft. The trial court was accordingly required to impose a sentence for each of the vandalism counts, and to stay the execution of those punishments. (Duff, supra, 50 Cal.4th at p. 796.) Here, the trial court pronounced that punishments for the vandalism counts would run concurrently. While the court recognized that the 4 vandalism counts “are 654,” the court did not verbally stay the execution of these concurrent duplicative terms. As the People recognize, the court’s statements show it believed it was satisfying the requirements of section 654 by running the sentences for vandalism concurrently. But, as explained, section 654 prohibits multiple punishments when a course of criminal conduct is aimed at a singular objective despite that the conduct violates multiple criminal statutes. (Duff, supra, 50 Cal.4th at p. 796.) In such cases, imposition of a concurrent sentence for the violation for which punishment is disallowed is forbidden. (Ibid.) While the trial court’s abstract of judgment properly stayed execution of punishment on vandalism counts 13 and 16, the abstract of judgment is not the judgment of conviction and does not control when it differs from the trial court’s oral judgment. (See People v. Mitchell (2001) 26 Cal.4th 181, 185.) Here, the court’s language at sentencing was ambiguous: it said the vandalism counts would be “concurrent” and they “are 654” without expressly staying imposition of the concurrent sentences. Because the trial court verbally imposed an unauthorized sentence in violation of section 654, we direct that the abstract of judgment be corrected to the extent necessary to comply with section 654. DISPOSITION Vilaysane’s convictions are affirmed. We modify the judgment to impose: a concurrent two-year term on count 13, stayed pursuant to section 654; a concurrent two-year term on count 16, stayed pursuant to section 654; and a concurrent 364-day term on count 5, stayed pursuant to section 654. The trial court is directed to prepare an amended abstract of judgment to reflect the corrected sentence and send a copy of the amended abstract of 5 judgment to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.

HUFFMAN, J. WE CONCUR:

MCCONNELL, P. J.

CASTILLO, J.

 Retired Associate Justice of the Court of Appeal, Fourth Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.