California, United States of America
The following excerpt is from People v. Vegagarduno, E067712 (Cal. App. 2018):
Here, the People argued that only two separate acts supported conviction on the charged offenses: (1) defendant hitting the victim with the car; and (2) defendant punching the victim after getting out of the car. Thus, as conceded by the People, at least one of the assault charges must be stayed due to the People's election. (People v. Siko (1988) 45 Cal.3d 820, 825-826 [the People cannot posit an alternative factual basis at sentencing than the one which they argued at trial for purposes of the application of 654]; People v. McCoy, supra, 208 Cal.App.4th at p. 1339 ["[W]here there is a basis for identifying the specific factual basis for a verdict," such as the prosecutor's closing
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argument, "a trial court cannot find otherwise in applying section 654," italics added].)4 We agree with the People.
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