Can a defendant be convicted of a lesser included crime of the same crime under both sections of the California Penal Code and Section 654 of the Penal Code?

California, United States of America

The following excerpt is from People v. Duarte, 161 Cal.App.3d 438, 207 Cal.Rptr. 615 (Cal. App. 1984):

Because neither subdivision describes a lesser included crime of the other, dual convictions are both possible and proper. (People v. Rocha (1978) 80 Cal.App.3d 972, 975, 146 Cal.Rptr. 81.) However, a problem arises when the defendant suffers convictions under both subdivisions. What must the sentencing judge do? Is dual punishment permissible? If the convictions survive appeal, are they both viable for purposes of separate enhancements when subsequent convictions are obtained?

Penal Code section 654 provides as follows:

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Can a defendant be convicted of a lesser included crime of the same crime under both sections of the California Penal Code and Section 654 of the Penal Code?

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