What is the effect of section 654 of the California Vehicle Code on a defendant's sentence for a violation of section 23153 of the Vehicle Code?

The defendant contends, and the People concede, that the trial court erred when it failed to stay either the sentence for count 4 or 5 (violations of Vehicle Code section 23153, subdivisions (a) and (b)). Section 654, subdivision (a) provides: "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." "Section 654 prohibits multiple punishment for an indivisible course of conduct even though it violates more than one statute. [Citation.] Whether a course of conduct is indivisible depends on the intent and objective of the actor. [Citation.]" (People v. Chacon (1995) 37 Cal.App.4th 52, 65.)

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" 'It has long been established that the imposition of concurrent sentences is precluded by section 654 [citations] because the defendant is deemed to be subjected to the term of both sentences although they are served simultaneously.' [Citation.] Instead, the accepted 'procedure is to sentence defendant for each count and stay execution of sentence on certain of the convictions to which section 654 is applicable.' [Citations.]" (People v. Jones (2012) 54 Cal.4th 350, 353.)

In People v. Duarte (1984) 161 Cal.App.3d 438, the court found that section 654 precluded concurrent sentencing for violations of subdivisions (a) and (b) of Vehicle Code section 23153. (Id. at pp. 446-447.) "In [such a] case, for punishment purposes, [] section 654 require[s] the sentencing judge to select between two offenses carrying the same penal term." (Id. at p. 447.) Section 654 "calls for imposing sentence on each count after first determining which count should be the principal one. . . . [E]xecution of the sentence on the other count or counts is [then] stayed pending the finality of the judgment; the stay becomes permanent when service of sentence is completed. [Citation.]" (Id. at p. 446.)

In this case, the defendant was also charged with violating subdivisions (a) and (b) of Vehicle Code section 23153 based on her driving her car on the evening of June 16, 2012. We conclude, as the court did in People v. Duarte, that the two-year sentence for driving under the influence punishes the defendant for the same criminal act as the two-year sentence for driving with a blood-alcohol content of .08 percent or higher; the two offenses arose from the same prohibited activity of driving after excessive drinking. As one of these sentences was unauthorized under section 654, we remand the matter so that the court can determine which sentence should be stayed.

3. The Sentence for Count 3 Was Proper