Filed 7/25/17 P. v. Harris CA5






NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT




THE PEOPLE,

Plaintiff and Respondent,

v.

NICHOLAS JOHN HARRIS,

Defendant and Appellant.

F071077

(Super. Ct. No. 1249640)


OPINION

APPEAL from a judgment of the Superior Court of Stanislaus County. Linda A. McFadden, Judge.
Robert L.S. Angres, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Jessica C. Leal, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
INTRODUCTION
In the early morning of August 12, 2008, defendant Nicholas John Harris stabbed victim Mark Henson multiple times while Henson sat in his car. After Henson, who would die from his wounds shortly thereafter, fled down the street on foot, defendant threw gasoline on the car and lit it on fire.
Almost six years later, a jury convicted defendant of second degree murder and arson, and found he used a deadly or dangerous weapon during the commission of the murder. (Pen. Code, §§ 187, subd. (a), 451, subd. (d), 12022, subd. (b).) Following the second phase of trial, the jury found defendant not insane when he committed the crimes.
The trial court sentenced defendant to a term of 15 years to life in prison for murder, plus an additional one year for the weapon enhancement. On the arson count, the court imposed the middle term of two years, to run concurrently with the murder term.
Relying on the decision in People v. Leeds (2015) 240 Cal.App.4th 822 (Leeds), defendant claims on appeal that the trial court erred during the sanity phase when it failed to give the jury a modified self-defense instruction and the error was prejudicial, entitling him to reversal of the sanity finding on the murder count. Alternatively, defendant argues that if we find no sua sponte instructional duty and instead determine it was the duty of defense counsel to request a pinpoint instruction on the issue, counsel’s failure to do so constituted ineffective assistance of counsel. Defendant also claims the trial court erred in imposing a concurrent sentence for his arson conviction rather than staying the sentence under section 654, which prohibits multiple punishment for crimes committed pursuant to a single intent and objective. (People v. Corpening (2016) 2 Cal.5th 307, 311–312 (Corpening).)
The People dispute defendant’s entitlement to relief. They contend the trial court had no sua sponte duty to instruct on self-defense because the general instructions were adequate, trial counsel’s failure to request a pinpoint instruction forfeits the claim and defendant’s ineffective assistance of counsel claim fails because he has not shown that counsel was ineffective or that he suffered any prejudice. Finally, they contend that because defendant committed the crimes pursuant to multiple intents and objectives, section 654 does not apply.
For the reasons set forth below, we conclude defendant’s claims lack merit and, accordingly, we affirm the judgment.
SUMMARY OF FACTS
Defendant and Vanessa Shanders met in 2007 when they worked at the same grocery store. They became friends and eventually began dating. Prior to their relationship, Shanders had dated Henson for approximately one month, but broke up with him after he stole money from her. Defendant, who knew Henson had stolen from Shanders and had some past drug issues, thought very poorly of him.
In the early months of defendant and Shanders’s dating relationship, Henson went to see Shanders at work to apologize and explain his past actions. Shanders told defendant about the visit and he was displeased. Although she told defendant that Henson only wanted to talk, defendant thought Henson was trying to get Shanders back. He told her he did not want her talking to Henson.
Approximately three weeks before he was killed, Henson and his mother, who was a regular customer at the grocery store, came in and Henson bought a sandwich from the deli counter where Shanders worked. They had a short, casual conversation and he left. At that point, it had been more than a year since they broke up and Shanders had been dating defendant for nine or ten months. Shanders told defendant about the encounter and although he was irritated, he did not “seem[] terribly affected.”
The next week, Henson came in again with his mother and bought a sandwich. He and Shanders had another casual conversation and she told defendant about it. This time, defendant seemed more agitated and mentioned that perhaps Henson might be stalking Shanders. Shanders did not fear Henson at all, however, and at trial she testified he was harmless.
Henson came into the store one more time. Although Shanders saw him, they did not have a conversation or any contact. She told defendant about seeing him in the store, though, and he again expressed agitation.
At some point prior to the crimes, defendant and Shanders were driving around when she recognized Henson’s mother’s house. She was surprised to realize Henson’s mother and defendant lived within walking distance of one another, and she mentioned it to defendant, who seemed to make a mental note of it.
Through an idle comment Shanders’s young son made and conversations defendant had with Shanders, defendant was aware that Henson drove a white Mitsubishi with a large sticker on the rear that said Cake. During the summer of 2008, defendant attempted to get additional information from Shanders about whether Henson lived with his mother and what he looked like. This struck Shanders as odd and she questioned him about it. Defendant mentioned perhaps wanting to slash Henson’s tires so he would back off. Shanders testified defendant said it jokingly, but she found it inappropriate and offensive and told him so.
Throughout the day on August 11, 2008, defendant thought about finding Henson’s car and slashing the tires. Around 9:00 p.m., he went looking for the car and found it, but left the area because there were people around. As he was walking home, defendant thought about setting the car on fire to send Henson a message. He then thought about removing the car’s tires and burning the car with the tires inside, as “a personal signature.”
Once he was home, defendant took a gas can from his father’s shed and went to the gas station to fill it. He later left his house with a kitty litter container filled with gas, a towel, a tire iron and a jack. Attached to his belt was a sheath containing a knife. After approaching Henson’s car and preparing to begin removal of a rear tire, defendant realized the driver’s seat was reclined and Henson was sleeping in it. The window was down. Defendant determined the car was unlocked and opened the rear door, hoping to retrieve a bag from the backseat so he could show it to Henson and tell Henson to stay away from his girlfriend. When the overhead light went on, Henson sat up quickly, pulled a butterfly knife and “flicked it a few times.”
Defendant told Henson things were cool, shut the rear door, grabbed the towel from behind the car, pulled his knife from its sheath and approached the driver’s side window. The driver’s door opened and defendant slammed it shut. Defendant put the towel on Henson’s face and Henson leaned forward, pinning defendant’s left arm to the steering wheel. An argument ensued and defendant stabbed Henson in the back multiple times. Henson then got out of his car and defendant tried to throw the towel over his face. When Henson threw the towel off, defendant saw he had blood coming from his mouth. Defendant began walking backward. Henson turned and ran up the street, yelling for help and saying he was dying.
Defendant walked back to Henson’s car, picked up the kitty litter container, threw gasoline in and on the car, and lit it on fire. Defendant ended up burning himself in the process and he then ran home.
Henson ran to a nearby house, rang the doorbell, pounded on the door and yelled for help. It was approximately 1:00 a.m. One of the residents woke to Henson’s yelling and pounding, saw a car on fire across the street and called the police.
Henson ceased yelling and, when police arrived, he was on the porch. He was not breathing and had no pulse. At trial, the coroner testified Henson had multiple stab wounds and bled to death from three fatal wounds to his lungs.
DISCUSSION
I. Instructional Error
A. Trial Court’s Duty to Instruct Sua Sponte
1. Legal Standard
Trial courts have a sua sponte duty to instruct “‘on those general principles of law that are closely and openly connected with the facts before the court and necessary for the jury’s understanding of the case.’” (People v. Simon (2016) 1 Cal.5th 98, 143, citing People v. Price (1991) 1 Cal.4th 324, 442; see People v. Cruz (2016) 2 Cal.App.5th 1178, 1183.) This includes a duty to instruct on defenses “‘if it appears ... the defendant is relying on such a defense, or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant’s theory of the case.’” (People v. Brooks (2017) 2 Cal.5th 674, 745; People v. Townsel (2016) 63 Cal.4th 25, 58.) However, “‘[a] party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language.’” (People v. Landry (2016) 2 Cal.5th 52, 99–100; see People v. Souza (2012) 54 Cal.4th 90, 118.)
We review defendant’s claim of instructional error de novo. (People v. Guiuan (1998) 18 Cal.4th 558, 569; People v. Cruz, supra, 2 Cal.App.5th at p. 1183.)
2. No Error
Defendant does not argue that CALCRIM No. 3450, the standard pattern instruction on insanity, is deficient. Rather, he relies on the Court of Appeal’s decision in Leeds for the proposition that the trial court had a sua sponte duty to instruct on self-defense during the sanity phase. Leeds, however, did not hold that a separate self-defense instruction, or a modification to the standard insanity instruction, is required. (Leeds, supra, 240 Cal.App.4th at p. 833.)
The defendant in Leeds shot and killed four people at his family’s wrecking yard, including his father. (Leeds, supra, 240 Cal.App.4th at pp. 825–826.) Prior to the murders, the defendant had been diagnosed with paranoid schizophrenia, but he stopped taking his medication. (Id. at p. 825.) There was evidence that, at the time of the murders, he was delusional and held a paranoid belief the victims were members of the Mexican drug cartel who intended to kill him. (Id. at pp. 825–827.) On the day of the murders, he shut himself away in an office at the wrecking yard, removed a gun from the desk drawer and cut the electricity. (Id. at p. 826.) After his father kicked open the office door, the defendant shot and killed him. (Ibid.) He then proceeded to chase down, shoot and kill two employees and a customer. (Ibid.)
The Court of Appeal found the trial court committed instructional error in the sanity phase, but concluded the error was prejudicial only as to the killing of the defendant’s father, as there was evidence he thought he was in imminent danger when his father came through the office door. (Leeds, supra, 240 Cal.App.4th at p. 833.) Critically, the appellate court concluded the trial court had affirmatively misinstructed the jury during the sanity phase through its addition of a pattern instruction on self-defense and its modification of the pattern instruction on insanity. (Id. at pp. 831–832.)
As related to the pattern insanity instruction, the defendant’s counsel had requested an instruction defining morality within the context of the Penal Code. (Leeds, supra, 240 Cal.App.4th. at p. 830.) The trial court refused counsel’s proposed instruction, but concluded the jury needed some instruction on the issue. (Ibid.) As a result and over defense counsel’s objection, the court instructed the jury during the sanity phase on self-defense pursuant to a modified version of CALCRIM No. 505, which is a pattern self-defense instruction. (Leeds, supra, at pp. 830–831.) It also modified CALCRIM No. 3450 and instructed the jury, in relevant part, as follows: “‘[T]he concept of morally and legally wrong refers to society’s generally accepted standards, and not to the subjective standards of the defendant. [¶] You may consider any evidence defining self defense ONLY to assist you in determining what may be society’s generally accepted moral and legal standards. You should not specifically apply the law of self defense to the conduct of the defendant.’” (Leeds, supra, at p. 831.)
Regarding the trial court’s modification to CALCRIM No. 3450, the appellate court found “the entire discussion of moral wrong … is misplaced,” and observed that “[t]he jury was instructed on self-defense but erroneously prohibited from applying it.” (Leeds, supra, 240 Cal.App.4th at p. 831.) In addition, the appellate court found the self-defense instruction, which informed the jury the defendant’s “conduct and belief must have been reasonable,” compounded the first error. (Id. at p. 832.) In combination, the errors required the jury to focus on objective reasonableness and precluded it from factoring in the defendant’s mental illness. (Ibid.) The court opined that the pattern self-defense instruction should have been modified for the insanity context, explaining, “The sanity verdicts turned on whether Leeds actually believed he was defending himself from imminent peril, and thus could not appreciate the wrongfulness of his actions, rather than on whether his belief was reasonable in light of the objective circumstances. The trial court’s instruction on self-defense, with its emphasis on reasonableness, was error.” (Id. at pp. 832–833.)
In this case, the linchpin in defendant’s argument that the trial court had a sua sponte duty to instruct on self-defense is the following sentence in Leeds: “[T]he jury here should have been instructed on self-defense modified in the context of insanity: Leeds was legally insane if, because of a mental disease or defect that he had when he committed the crimes, he actually believed that he was in imminent danger of being killed or suffering great bodily injury and that the immediate use of deadly force was necessary to defend against the danger.” (Leeds, supra, 240 Cal.App.4th at p. 832.) We do not find Leeds persuasive for the proposition advanced by defendant, however, because Leeds did not hold that the standard pattern instruction for insanity was deficient or that it required modification. Nor did the court have the occasion to consider either issue. Rather, its discussion of the appropriate modified self-defense instruction occurred in the context of the trial court’s affirmative misinstruction to the jury on that issue.
We observe that during the guilt phase of defendant’s trial, the California Supreme Court issued its decision in People v. Elmore (2014) 59 Cal.4th 121 (Elmore), in which it instructs, “A purely delusional belief in the need to act in self-defense may be raised as a defense, but that defense is insanity.” (Id. at p. 130.) It describes such a delusional belief “[as] a paradigmatic example of legal insanity.” (Id. at p. 135.) Here, the second phase of the trial was dedicated to the adjudication of defendant’s affirmative defense of legal insanity, and, during closing argument, his trial counsel addressed the connection between defendant’s mental state and his belief that he needed to defend himself, as was appropriate. (See People v. Landry, supra, 2 Cal.5th at p. 100 [“[H]ow a general instruction applies to specific evidence or theories is an argument for counsel to make.”].) Other than relying on the decision in Leeds, which is distinguishable, defendant cites no authority for the proposition he advances on appeal. (People v. Hovarter (2008) 44 Cal.4th 983, 1029 [points not supported by legal argument and citation to authority may be treated as waived].) Nor does he argue that the trial court here instructed the jury in a manner that was misleading or misstated the law, as did the trial court in Leeds. Thus, we conclude defendant has not met his burden of demonstrating the trial court committed instructional error during the sanity phase and we reject his claim to the contrary.
B. Ineffective Assistance of Counsel
Having concluded the trial court did not have a sua sponte duty to instruct the jury on self-defense during the sanity phase, we turn to defendant’s argument that his trial counsel rendered ineffective assistance of counsel in failing to request a pinpoint instruction on the issue. The People contend counsel may have reasonably believed a more specific instruction was unnecessary and defendant cannot demonstrate prejudice.
1. Standard of Review
“To secure reversal of a conviction upon the ground of ineffective assistance of counsel under either the state or federal Constitution, a defendant must establish (1) that defense counsel’s performance fell below an objective standard of reasonableness, i.e., that counsel’s performance did not meet the standard to be expected of a reasonably competent attorney, and (2) that there is a reasonable probability that [the] defendant would have obtained a more favorable result absent counsel’s shortcomings.” (People v. Cunningham (2001) 25 Cal.4th 926, 1003; see generally Strickland v. Washington (1984) 466 U.S. 668, 687–694.) “‘A reasonable probability is a probability sufficient to undermine confidence in the outcome.’” (People v. Cunningham, supra, at p. 1003.) “[I]n assessing a Sixth Amendment attack on trial counsel’s adequacy mounted on direct appeal, competency is presumed unless the record affirmatively excludes a rational basis for the trial attorney’s choice.” (People v. Musselwhite (1998) 17 Cal.4th 1216, 1260; accord, People v. Stewart (2004) 33 Cal.4th 425, 459.)
2. Analysis
The decision on which jury instructions to request is inherently a tactical decision to be made by counsel. (People v. Padilla (2002) 98 Cal.App.4th 127, 136–137.) Tactical decisions must be viewed based upon facts at the time rather than in hindsight and rarely warrant a reversal. (People v. Hinton (2006) 37 Cal.4th 839, 876; People v. Weaver (2001) 26 Cal.4th 876, 925–926.)
The sanity phase began in August 2014. At that juncture in time, the California Supreme Court had recently issued its decision in Elmore and Leeds had not yet been decided. As explained in Elmore, “A claim of unreasonable self-defense based solely on delusion is quintessentially a claim of insanity under the M’Naghten standard of inability to distinguish right from wrong. Its rationale is that mental illness caused the defendant to perceive an illusory threat, form an actual belief in the need to kill in self-defense, and act on that belief without wrongful intent.” (Elmore, supra, 59 Cal.4th at p. 140.) Under these circumstances, counsel could have very reasonably concluded that the pattern insanity instruction was adequate.
As we have pointed out, defendant does not argue that the pattern insanity instruction was inadequate or cite to any authority for the proposition that further instruction on self-defense was required during the sanity phase, and the decision in Leeds, which defendant relies on for both his instructional error claim and his ineffective assistance of counsel claim, is distinguishable. We conclude defendant “fails to show that there could be no conceivable reason for trial counsel not to request such a clarifying instruction.” (People v. Nguyen (2015) 61 Cal.4th 1015, 1051–1052.)
Moreover, even if we were to assume error, it is evident there was no prejudice. Defendant bore the burden of proof during the sanity phase and although his family members testified that he was insane when he committed the crimes, none of the three psychologists who testified as expert witnesses agreed. One expert was retained by the defense and the other two experts were appointed by the court. The expert retained by the defense testified it was his diagnostic impression that defendant has bipolar 1 disorder, but that he was not insane when he committed his crimes. The court-appointed experts disagreed that defendant has bipolar 1 disorder, but they testified that even assuming he is bipolar, he was not legally insane at the time he committed the crimes. Thus, while there was some evidence presented that defendant was insane by virtue of his family’s testimony, the contrary evidence was compelling given the three psychologists’ opinions he was not insane.
Further, the evidence of self-defense was not particularly strong in this case, based on delusion or otherwise. Defendant testified during the guilt phase and the jury was instructed it could consider all the evidence. Defendant testified that Henson sat up and pulled a knife when defendant opened the rear car door, causing defendant to fear for his life. However, after closing the rear car door, defendant went to the back of the car to retrieve his towel and he then returned to the driver’s side window with his knife already drawn. Henson was still sitting inside his car when defendant approached and fatally stabbed him, and defendant could not explain why he did not just flee when Henson sat up and pulled out a butterfly knife.
The jury also heard a recorded conversation between defendant and Shanders after the crimes and it heard defendant’s interrogation. During the recorded conversation with Shanders, defendant denied fighting Henson in self-defense, said he knew “where to hit [Henson]” and said he was not going to let Henson live. He also said, “I was just looking for a reason to do that. You know, that was almost Travis’[s] state when I was up with you at, umm, Chico,” but he was talked out of it by Jim.
In sum, we find no reasonable probability defendant would have obtained a more favorable result had counsel requested a pinpoint instruction on self-defense modified for the sanity phase such as that described in Leeds, supra, 240 Cal.App.4th at page 832. We therefore reject defendant’s claim that trial counsel rendered ineffective assistance of counsel. (People v. Cunningham, supra, 25 Cal.4th at p. 1003.)
II. Applicability of Section 654 to Concurrent Arson Sentence
A. Background
Finally, defendant argues the trial court erred in imposing a concurrent sentence for his arson conviction rather than staying the sentence under section 654, which bars multiple punishment for the same act or omission. (Corpening, supra, 2 Cal.5th at p. 311.) As defendant contends, it is error for a trial court to impose a concurrent sentence if section 654 applies. (People v. Jones (2012) 54 Cal.4th 350, 353.) The proper procedure if the statute applies is to impose a sentence but stay its execution, despite little practical difference between a concurrent sentence and a stayed sentence. (Ibid.)
Defendant did not object to his sentence in the trial court, but because a sentence imposed in contravention of section 654 is an unauthorized sentence, the error may be raised on appeal even in the absence of an objection. (People v. Brents (2012) 53 Cal.4th 599, 618.) On appeal, “[a] trial court’s express or implied determination that two crimes were separate, involving separate objectives, must be upheld … if supported by substantial evidence” (ibid.), that is, evidence which is reasonable, credible and of solid value (People v. Armstrong (2016) 1 Cal.5th 432, 450).
The statutory purpose underlying section 654 “is to ensure that a defendant’s punishment will be commensurate with his culpability.” (People v. Correa (2012) 54 Cal.4th 331, 341.) To that end, the statute prohibits courts from imposing multiple punishment for the same act or omission but, as the California Supreme Court recently observed, the application of section 654 can leave courts with more questions than answers. (Corpening, supra, 2 Cal.5th at p. 312.) This is because “[n]either the text nor structure of section 654 resolves when exactly a single act begins or ends, for example, or how to take account of the fact that virtually any given physical action may, in principle, be divided into multiple subsets that each fit the colloquial definition of an ‘act.’” (Ibid.)
As the court explained in Corpening, determining “[w]hether a defendant may be subjected to multiple punishment under section 654 requires a two-step inquiry, because the statutory reference to an ‘act or omission’ may include not only a discrete physical act but also a course of conduct encompassing several acts pursued with a single objective. [Citations.] We first consider if the different crimes were completed by a ‘single physical act.’ [Citation.] If so, the defendant may not be punished more than once for that act. Only if we conclude that the case involves more than a single act—i.e., a course of conduct—do we then consider whether that course of conduct reflects a single ‘“intent and objective”’ or multiple intents and objectives.” (Corpening, supra, 2 Cal.5th at p. 311.)
B. Trial Court’s Implied Determination Supported by Substantial Evidence
In this case, defendant does not argue his crimes were the result of a single discrete act, nor could he logically. Rather, while he does not advance any specific argument showing that his two crimes were part of a single, indivisible course of conduct, he cites to cases concerning a single, indivisible transaction or course of conduct and argues section 654 applies because he “possessed a single criminal intent that evening and … the homicide was incidental to the arson.” We find this argument unavailing.
When there is no “explicit ruling by the trial court at sentencing, we infer that the court made the finding appropriate to the sentence it imposed, i.e., either applying section 654 or not applying it.” (People v. Mejia (2017) 9 Cal.App.5th 1036, 1045, citing People v. Tarris (2009) 180 Cal.App.4th 612, 626–627.) Here, the trial court impliedly determined section 654 does not apply to defendant’s arson conviction because it did not stay the arson sentence and we must affirm that determination if it is supported by substantial evidence, as previously stated. (People v. McKinzie (2012) 54 Cal.4th 1302, 1368, disapproved on another ground in People v. Scott (2015) 61 Cal.4th 363, 391, fn. 3; People v. Mejia, supra, at p. 1045.)
In evaluating whether a criminal transaction is indivisible, the defendant’s intent and objectives are determinative, not the temporal proximity of the offenses. (People v. Capistrano (2014) 59 Cal.4th 830, 886; accord, People v. Jackson (2016) 1 Cal.5th 269, 354.) Intent and objectives are factual questions, and multiple punishments are permissible if there is “‘“evidence to support the finding [the] defendant formed a separate intent and objective for each offense for which he was sentenced.”’” (People v. Capistrano, supra, at p. 886; accord, People v. Jackson, supra, at p. 354.)
The murder of Henson and the burning of his car were distinct crimes “necessarily accomplished through separate actions .…” (People v. Jackson, supra, 1 Cal.5th at p. 354.) Defendant’s assertion that the murder was incidental to the arson is simply not supported by the facts underlying the crimes. While he set out that night intending to commit the arson and he ultimately did so, the murder did not occur during the commission of the arson; that is, defendant did not commit one of the crimes as a means of committing the other. (People v. Rodriguez (2015) 235 Cal.App.4th 1000, 1006; see People v. Pearson (2012) 53 Cal.4th 306, 334 [robbery and sexual assault were committed with different criminal objectives]; People v. Clark (1990) 50 Cal.3d 583, 637 [arson sentence should have been stayed under section 654 where arson, murder and attempted murders committed by act of igniting fires in victims’ house].)
In defendant’s own words following the murder, “I probably stood there a good 5 to 10 seconds and I was like, ‘I just stabbed him. I came here to, to vandalize his car and this all went wrong’ and I was standing there by his car I was just like, it’s, I’m already screwed for life when I get this when I get, I’m not going to lie, when I get taken in, because I will get taken in, it’s done. So, I picked up the bucket of gas and I poured it in his car and I think I, uhh, got some on the roof and on the inside of his car and I think I threw the bucket in with it and I took the lighter out of my pocket and I lit it and I held it inside and as soon as it hit the fumes there was backdraft.” His trial testimony and recorded conversation with Shanders similarly reveal a break between events and defendant testified that after stabbing Henson, he experienced a “jolt” and realized he was standing on the street, had just been in a knife fight with someone who could die and “realized … there was something that was very wrong with the situation.” Despite being “snapped out of [his] state of mind” at the sight of the blood coming out of Henson’s mouth, however, defendant returned to the car and took the additional steps necessary to set it on fire.
Accordingly, we find substantial evidence supports the determination that section 654 does not apply to defendant’s arson sentence. We acknowledge the trial court stated it viewed the crimes as “one situation, one event,” as defendant points out. Out of context, this may appear inconsistent with the court’s implied determination that section 654 does not apply, but we conclude that defendant’s argument does not accurately characterize the record.
Subject to exceptions not relevant here, trial courts have the discretion to impose concurrent or consecutive sentences when confronted with multiple convictions. (§ 669, subd. (a); People v. Woodworth (2016) 245 Cal.App.4th 1473, 1479.) Moreover, by rule, the determination whether section 654 applies precedes the determination whether to impose a concurrent or consecutive sentence (Cal. Rules of Court, rule 4.424) and, in making the latter determination, the court considers factors such as whether “[t]he crimes and their objectives were predominantly independent of each other” (rule 4.425(a)(1)). Hence, notwithstanding the trial court’s implied determination that the sentence for arson was not required to be stayed pursuant to section 654, it still had to impose a concurrent or consecutive arson sentence and, in doing so, evaluate factors that overlap with section 654 considerations.
During the sentencing hearing, the prosecutor requested the court impose a consecutive sentence for the arson conviction. The court instead elected to impose a concurrent sentence and it stated that although the arson occurred after the murder and defendant did not have to burn the car, it viewed the crimes as “one situation, one event.” Given the circumstances underlying defendant’s two crimes, the court’s statutory authority to select either a concurrent or a consecutive term for the arson conviction and the rule governing the criteria for making that selection, we find the court’s comment was made in context of explaining why it was exercising its discretion to impose a concurrent term and reject defendant’s contrary argument.
DISPOSITION
The judgment is affirmed.



MEEHAN, J.
WE CONCUR:



DETJEN, Acting P.J.



PEÑA, J.