P. v. Mariani
Defendant appeals from the judgment entered following his convictions
by jury on count 1 possession of a flammable substance with malicious intent
(Pen. Code, 453, subd. (a)) and count 2 unauthorized taking of a vehicle
(Veh. Code, 10851, subd. (a)). The court sentenced him to prison for four years four months, including upper terms on both counts. Court accept appellants claim that imposition of the upper terms was reversible error in violation of Cunningham v. California (2007) 549 U.S. [166 L.Ed.2d 856]. There was substantial evidence that appellant entered a fuel truck parked in a San Pedro terminal and drove the truck, loaded with fuel, around the terminal. When detained, appellant said, inter alia, he had intended to blow up the terminal, get his children, and blow up the Torrance office of the Department of Child and Family Services (DCFS). The trial court imposed the upper terms based on the fact that this conduct is particularly, since Oklahoma City and other things that have happened in this country, is just egregious[.] However, the above fact was not found true by a jury beyond a reasonable doubt, and the error warrants reversal under a harmless-beyond a reasonable doubt standard. Moreover, since reversible Cunningham error occurred, there is no need to reach the issue of whether the trial court abused its discretion by imposing the upper terms.
Court conclude the trial court may have imposed multiple punishment on both counts in violation of Penal Code section 654. The trial court indicated the offenses may not merge pursuant to [Penal Code section] 654, the court later imposed punishment on both counts, and there was substantial evidence upon which the trial court properly could have relied to do so. On the other hand, the court, referring to the offenses at issue in the counts, stated its all one and the same transaction, suggesting the court had concluded the offenses were committed as part of an indivisible transaction. However, if that was the courts conclusion, multiple punishment was error. Court remand the matter to permit the trial court to clarify its ruling and for resentencing. Court accept respondents concessions that appellants sentences in his two probation cases must be served concurrently to one another, and that appellant is
entitled to additional precommitment credit in those two cases.
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