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Conviction for P.C. 245(a)(1) and (a)(4) in Same Case?

In a Nutshell: A defendant cannot be convicted of violating Penal Code § 245(a)(4) and Penal Code § 245(a)(1) if the conduct (and the victim) is the same for each charge, as this violated Penal Code § 954.
In 2015, a jury in Orange County Superior Court convicted Emmanuel Cota of assault with a deadly weapon (Penal Code § 245(a)(1) and assault with force likely to produce great bodily injury (Penal Code § 245(a)(4)).  As to both counts, the jury found that Cota inflicted great bodily injury upon the victim.

Judge Maria D. Hernandez sentenced Cota to six years in state prison, comprised of three years for assault with a deadly weapon and a consecutive term of three years for the great bodily injury enhancement attached to that count.  She imposed a concurrent sentence for the assault with force likely to produce great bodily injury, but stayed the term under Penal Code § 654.

The underlying facts were that Mr. Cota had a girlfriend named Cindy who lived in a house in Santa Ana with a family that included the victim, Morales.  On the morning of August 1, 2014, Morales, who had recently had a partial leg amputation, was sitting at the kitchen table eating when Cindy entered the kitchen and began arguing with him.  Defendant then came into the kitchen and began calling Morales names and saying he deserved to have his “ass kicked.”

Morales then stood up and holding on the side of the table with one hand and a knife in the other, told Cindy and Cota to leave him alone.

In response, Cota picked up a heavy metal chair and swung it at Morales.  Morales raised his left arm to block the chair and it fractured his wrist in three places.  Cota then punched Morales in the face, causing a small cut to his lip.  Morales went to the hospital and had surgery on his wrist.

4th Appellate District Division 3 Orange County4th Appellate District Division 3 Orange County

Cota appealed his convictions to the Fourth Appellate District in Santa Ana, arguing that the convictions for assault with a deadly weapon and assault with force likely to cause great bodily injury violated Penal Code § 954 because he was convicted of two statements of the same offense and both were based on the same conduct.  

The prosecution opposed the appeal, arguing that since there were different code sections, “the Legislature unambiguously intended both provisions to be different offenses” and therefore, Cota was properly convicted of both counts of assault.  

The Fourth Appellate District disagreed with the prosecution by noting that Penal Code § 954 “authorizes multiple convictions for different or distinct offenses, but does not permit multiple convictions for a different statement of the same offense when it is based on the same act or course of conduct.”  People v. Vidana (2016) 1 Cal.5th 632, 650.  In People v. Gonzalez (2014) 60 Cal.4th 533, at 537, the California Supreme Court observed that whether statutory provisions “define different offenses or merely describe different ways of committing the same offense properly turns on the Legislature’s intent in enacting these provisions, and if the Legislature meant to define only one offense, we may not turn it into two.”  

However, a statute’s “literal terms will not be given effect if to do so would yield an unreasonable or mischievous result.” Vidana, supra, at 637-638.

The Fourth Appellate District then looked at Penal Code § 245(a)(1) and § 245(a)(4) more closely, noting that they are merely different statements of the same offense.  Accordingly, a defendant may not be convicted of both subparts of the subdivision.  People v. Brunton (2018) 23 Cal.App.5th 1097, 1104.  The offense of assault by means of force likely to produce great bodily injury is not an offense separate from assault with a deadly weapon.

Therefore, dual convictions were prohibited under Penal Code § 954 and the appellate court vacated the conviction for Cota’s violation of Penal Code § 245(a)(4) and the great bodily injury enhancement (Penal Code § 12022.7(a)) was stricken.  The appellate court then instructed the trial court judge to prepare an amended abstract of judgment reflecting the judgment as modified.

We present this summary of the appellate court decision not as criticism of the aggressive prosecutors in Orange County and the judges that seem to enable this.  Instead, this is a situation we see in not only Orange County, but Los Angeles, Riverside and San Bernardino County, too.  While many complaints do plead in the alternative, which is permissible, convictions for both counts violates § 954, so any plea bargain offered that “stacks” time from each counts should be declined.

The citation for the Fourth Appellate District Court ruling discussed above is People v. Emmanuel Cota (4th App. Dist., 2020) 44 Cal. App. 5th 720, 257 Cal. Rptr. 3d 863.

For more information about assault with a deadly weapon, please click on the following articles:

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