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Name: People v. Wynn
Case #: D056808
Court: CA Court of Appeal
District 4 DCA
Division: 1
Opinion Date: 05/24/2010
Summary

Multiple punishment for burglary and assault with a deadly weapon did not violate Penal Code section 654. When appellant was stopped for shoplifting cigarettes at Wal-Mart, he took out a nunchaku and started swinging it at the security guards. He was convicted of three counts of assault with a deadly weapon, possessing a prohibited weapon, burglary and a weapon-use enhancement in conjunction with the burglary. Appellant argued he was improperly sentenced for both the burglary and the assault because his objective was to commit burglary and escape. The court held dual punishment was proper because the objective of the burglary was to steal, whereas the objective of the assault was to escape, not to possess the cigarettes because he threw those on the ground before he began swinging the nunchaku.
Dual sentences for assault with a deadly weapon and prohibited possession of a weapon was also proper. The court rejected the argument that the conviction of possessing a prohibited weapon that was also used in the assault had to be stayed. Where the evidence shows antecedent possession of a weapon, section 654 does not apply. Here, appellant possessed the nunchaku when he entered the store, and before the assault. In fact, he told police he carried the nunchaku because people fear it.
Section 654 applies to a weapon-use enhancement where the defendant is also convicted of an offense arising out of his use of that weapon. The court noted it is an open question whether section 654 applies to enhancements based on the circumstances of the crime, and that there is a split of authority on the issue. When the California Supreme Court considered the application of section 654 to enhancements based on the nature of the offender, it asked whether the factual basis of the enhancement was an act or omission. (See People v. Coronado (1995) 12 Cal.4th 145.) The enhancement at issue here is based on the use of a nunchaku, so section 654 applies.