People v. Barno CA4/1

California Court of Appeal · D068807 · 2016-06-17 · Unpublished

Proceeding: appeal from a judgment
Trial court: Superior Court of San Diego County · No. SCD177819
Trial judge: David J. Danielsen
Outcome: affirmed — Affirmed.
Area: criminal
Panel: Richard D. Huffman, Sr. (author), Cynthia Aaron

Analysis

A model's reading — qwen3.8-27b, prompt v1, 2026-10-13T05:47Z · confidence high

The trial court resentenced the defendant under Proposition 36, imposing a concurrent determinate sentence on count 1 rather than staying it under Penal Code section 654. The Court of Appeal affirmed, finding the trial court reasonably concluded the conduct underlying count 1 was separate from the other counts.

Ruling reviewed	Standard	The court	The model
Trial court's imposition of a concurrent determinate sentence on count 1 instead of staying it under Penal Code section 654. “Thus the court could reasonably conclude that the acts in count 1 were different and separate from the remaining counts. That they involved the same victim does not undermine the trial court's reasoning.”	abuse of discretion	correct	agree with court The appellate court correctly applied the abuse of discretion standard to the trial court's factual finding that the conduct underlying count 1 (stalking in Feb-Apr 2003) was separate from the conduct underlying counts 3 and 4 (threats in Apr-May 2003). Because the acts were not part of a single course of conduct, the trial court was not required to stay the sentence under section 654, and the concurrent sentence was a valid alternative to staying the term.

Authorities

relied: People v. Price (1986) 184 Cal.App.3d 1405 — Supports the trial court's authority to select a serious felony count as the principal term for a life sentence when the original principal count no longer qualifies for a life term under Proposition 36.
relied: People v. Alford (2010) 180 Cal.App.4th 1463 — Supports the trial court's authority to select a serious felony count as the principal term for a life sentence when the original principal count no longer qualifies for a life term under Proposition 36.

The appellate opinion: sound — The opinion correctly identifies that the trial court's decision to impose a concurrent sentence rather than stay the sentence under section 654 was supported by the factual finding that the conduct was separate. The court properly notes that the temporal gap between the stalking acts and the threat acts supports the conclusion that they were not part of a single course of conduct, making a stay unnecessary.

How this analysis was made · dispute it

unusual disposition

A model's reading — claude-fable-5-1, prompt v1, 2026-10-13T04:30Z · confidence low

On a Proposition 36 (Pen. Code, § 1170.126) petition, the San Diego Superior Court recalled Barno's 2004 third-strike sentence, selected the serious-felony criminal-threats count (count 3) as the principal term, imposed consecutive 25-year-to-life terms on counts 3 and 6, stayed count 2 under section 654, and ran a determinate concurrent term on count 1 (stalking) without staying it. The Court of Appeal affirmed, holding the trial court could reasonably find the count 1 stalking (Feb. 19–Apr. 25, 2003) was separate conduct from the threats in counts 3 and 4 (Apr. 30–May 8, 2003), so no section 654 stay was required.

Ruling reviewed	Standard	The court	The model
Refusal to stay the determinate sentence on count 1 (stalking) under Penal Code section 654 at Proposition 36 resentencing; imposition of a concurrent term instead “Thus the court could reasonably conclude that the acts in count 1 were different and separate from the remaining counts.”	substantial evidence	correct	agree with court The opinion never names its standard of review but applies the deferential 'could reasonably conclude' formulation used for section 654 findings. The date ranges recited (count 1 ending April 25, 2003; counts 3 and 4 beginning April 30, 2003) support a finding of temporally distinct acts with separate objectives, and the same-victim point does not by itself trigger section 654. The result is defensible, though the court cites no section 654 authority and does not address the other threat counts (6–10) or explain why stalking's course-of-conduct nature does not sweep in the later threats.
Selection of count 3 (criminal threats, a serious felony) as the principal term on resentencing after count 1 could no longer carry a life term “However, count 3 was a serious felony and the court properly selected that count as the principal term.”	unclear	correct	agree with court Appellant did not challenge this, and the court noted it only in passing with citations to Price and Alford for restructuring a sentence on resentencing. After the Reform Act, only a serious or violent current felony supports a third-strike life term, so choosing count 3 as the principal term was consistent with section 1170.126 and general resentencing principles.

Authorities

relied: People v. Price (1986) 184 Cal.App.3d 1405 — On resentencing a trial court may restructure the entire sentence, including selecting a different principal term.
relied: People v. Alford (2010) 180 Cal.App.4th 1463 — A sentencing court may redesignate the principal term and restructure components of an aggregate sentence when the original structure can no longer stand.
missed: Neal v. State of California (1960) 55 Cal.2d 11 — Section 654 bars multiple punishment for an indivisible course of conduct where all offenses were incident to one intent and objective; the opinion decided a section 654 claim without citing or articulating this governing test.
missed: People v. Latimer (1993) 5 Cal.4th 1203 — Reaffirms the Neal intent-and-objective test for section 654; the opinion resolved the section 654 question without stating the standard or the deferential review applied to the trial court's implied findings.

The appellate opinion: sound with gaps — The court reaches a defensible result because the recited date ranges show the count 1 stalking preceded and was distinct from the count 3 and 4 threats, which supports the trial court's implied finding of separate acts and objectives. However, the opinion cites no section 654 authority, does not state the governing intent-and-objective test or the standard of review, and does not explain why the concurrent count 1 term need not be compared with the remaining threat counts.

How this analysis was made · dispute it

Opinion

Filed 6/17/16 P. v. Barno 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, D068807

Plaintiff and Respondent, v. (Super. Ct. No. SCD177819)

RODNEY BERNARD BARNO,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County, David J.

Danielsen, Judge. Affirmed.

Nancy Olsen, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Scott C. Taylor and Warren W.

Williams, Deputy Attorneys General, for Plaintiff and Respondent.

This appeal arises from a petition to recall a sentence under the Three Strikes Reform Act of 2012 (Proposition 36). The appellant was originally convicted of a number of offenses with true findings on three strike priors. The original sentence was 50 years to life, with a number of stayed and concurrent sentences. After filing a petition under Proposition 36 (Pen. Code,1 § 1170.126), the court restructured the sentence since the original life terms were for nonserious felonies. The court granted the petition and again imposed a 50-year-to-life term based on two serious felony convictions. The appellant does not challenge the life sentences. Instead, he complains that one of the determinate terms (count 1) should have been stayed under section 654. We will reject that contention and affirm.

In 2004, Rodney Bernard Barno was convicted of two counts of stalking (§ 646.9, subd. (a); counts 1, 2); seven counts of making criminal threats (§ 422; counts 3-4, 6-10);

one count of felony vandalism (§ 594, subd. (a)(b)(1); count 11); six misdemeanor counts of vandalism (§ 594, subd. (a)(b)(2)(A); counts 5, 12-16); and two misdemeanor counts of harassing by telephone (§ 653m, subd. (a); counts 17-18). The alleged strike priors were also found true (§ 667, subds. (b)-(i)).

The original sentence imposed was 25 years to life for counts 1 through 4 and 6.

Count 1 was the principal term and the sentence on count 6 was ordered to be consecutive to count 1. The remaining life terms were concurrent except counts 3 and 4, which were stayed under section 654.

When Barno was resentenced under Proposition 36, the court imposed consecutive 25-year-to-life terms for counts 3 and 6. The court imposed determinate terms for counts 1 All further statutory references are to the Penal Code unless otherwise specified. 2 1 and 2, but stayed the sentence on count 2 under section 654. The sentence on count 1 was ordered to run concurrently with the other sentences.

As we have noted, Barno only challenges the sentence for count 1. He contends that sentence should have been stayed under section 654.

DISCUSSION

When Barno was originally sentenced the law permitted imposition of a life term for subsequent felonies where a person had two or more strike priors. After the reform act was passed, life terms could only be imposed where the "third strike" is a serious or violent felony. Thus, when the case was resentenced, count 1 could no longer support a life term. However, count 3 was a serious felony and the court properly selected that count as the principal term. (People v. Price (1986) 184 Cal.App.3d 1405, 1412; People v. Alford (2010) 180 Cal.App.4th 1463, 1466.)

When the court imposed a determinate sentence on count 1, the court ordered it served concurrently with the other terms, but did not stay the sentence under section 654.

The court did stay the sentence on count 2, finding it involved, at least in part, the same conduct as in counts 3 and 4.

The stalking in count 1 involved acts done between February 19, 2003 and April 25, 2003. Counts 3 and 4 involved acts committed between April 30, 2003 and May 8, 2003. Thus the court could reasonably conclude that the acts in count 1 were different and separate from the remaining counts. That they involved the same victim does not undermine the trial court's reasoning. The trial court properly imposed a concurrent sentence on count 1 and it was not necessary to stay it under section 654.

3 DISPOSITION

The judgment is affirmed.

HUFFMAN, Acting P. J.

WE CONCUR:

AARON, J.

PRAGER, J.* * Judge of the San Diego Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. 4

Cites, in this corpus

People v. Alford C060251 · 2010-01-13
People v. Price F004359 · 1986-08-27