When a defendant has been convicted of first degree murder based on a felony-murder theory, can the underlying felony be stayed?

California, United States of America


The following excerpt is from People v. Gallardo, B224387 (Cal. App. 2011):

Section 654, subdivision (a) provides, in pertinent part, "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." "In Neal v. State of California (1960) 55 Cal.2d 11, this court construed the statute broadly: '"Section 654 has been applied not only where there was but one 'act' in the ordinary sense . . . but also where a course of conduct violated more than one statute and the problem was whether it comprised a divisible transaction which could be punished under more than one statute within the meaning of section 654." [Citation.] [] Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.' (Id. at p. 19, italics added.)" (People v. Rodriguez (2009) 47 Cal.4th 501, 507.) When a defendant has been found guilty of first degree murder based on a felony-murder theory, section 654 requires that the punishment for the underlying felony be stayed. (See People v. Meredith (1981) 29 Cal.3d 682, 696; People v. Boyd (1990) 222 Cal.App.3d 541, 575-576.)

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