What are the implications of section 654 of the California Criminal Code when a defendant is convicted of sexual assault, assault and false imprisonment?

Defendant argues that the sentences imposed on the burglary, assaults and false imprisonment convictions should have been stayed because they were all indivisible from the sexual penetration. Generally, section 654 precludes separate punishment for both the burglary and the felony the burglar intends to commit when he enters the building, because both crimes are committed with the same intent and objective. (See People v. Hester (2000) 22 Cal.4th 290, 294.) In this case, however, the charging language of the burglary count alleged that defendant entered the victim's house "with the intent to commit larceny and any felony" and the jury was instructed that it should find him guilty of burglary if it found he entered the house "with the intent to commit theft or forcible rape, or false imprisonment, or sexual battery, or kidnapping, or forcible oral copulation, or unlawful forcible sexual penetration." The People acknowledge that defendant did not steal anything from this victim's home, but argue that there is substantial evidence that he entered with the intent to commit a theft because he committed thefts at most of the other victims' homes. While the People are correct that a defendant need not commit, or even attempt the underlying theft or felony to be found guilty of burglary (see People v. Gbadebo-Soda (1995) 38 Cal.App.4th 160, 166), in this case there is absolutely no evidence suggesting that defendant intended to commit both a theft and a sex offense when he entered the premises. Accordingly, defendant is correct that the sentence imposed on the burglary conviction (count 14) must be stayed.

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