California v. Gaynor
Annotate this CaseDavid Gaynor was convicted by jury of: using the personal identification information of another (counts 1, 4 and 7); forgery, possessing a completed check with the intent to defraud (count 2); burglary (count 3); possession of a forged driver's license (counts 5 and 6); and failure to appear while on bail (count 8). In addition, the jury found true the allegation that Gaynor had a prior strike conviction, and the trial court found true an allegation that Gaynor was on bail from another case at the time of the commission of count 8 (failing to appear). At sentencing, the trial court struck the prior strike in the interest of justice and sentenced Gaynor to a total term of five years and eight months in prison. The court sentenced Gaynor to the upper term of three years on count 1, a consecutive eight-month term on count 8, and a two-year consecutive term for the on-bail enhancement. The court also imposed concurrent two-year terms on counts 2, 4, and 7 and stayed execution of the sentences on counts 3, 5, and 6 pursuant to Penal Code section 654. The trial court imposed a restitution fine of $4,500 and a corresponding parole revocation restitution fine in the same amount. On appeal, Gaynor argued the trial court erred in failing to stay execution of the sentences on three of the counts (counts 2, 4 and 7) pursuant to section 654 and also requested the Court of Appeal remand the matter to permit the trial court to reconsider the amount of the restitution fine and the corresponding parole revocation restitution fine, arguing that the court erred in imposing a restitution fine based on a count for which the execution of sentence was stayed pursuant to section 654. The State conceded the trial court erred in failing to stay execution of the sentences on 4 and 7 pursuant to section 654, but contended the trial court properly declined to apply section 654 with respect to count 2. With respect to the restitution fine, the State contended no remand was required because Gaynor did not demonstrate any prejudice. The Court of Appeal accepted the State's concession, and concluded substantial evidence supported the trial court's implicit finding that section 654 did not apply with respect to count 2. In addition, the Court concluded there was a reasonable probability the trial court would have imposed a different restitution fine and corresponding parole revocation restitution fine if the court had properly stayed execution of the sentences on counts 4 and 7 pursuant to section 654. Accordingly, judgment was reversed and the matter remanded for the trial court to stay execution of the sentences imposed on counts 4 and 7 pursuant to section 654, and for reconsideration of the restitution and parole revocation restitution fines.
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