Surdi

I concur with the result and with the reasoning of the majority in parts I through III, but I am compelled to write separately concerning the Penal Code section 654 1 issue discussed in part IV. The majority relies on People v. Trotter (1992) 7 Cal.App.4th 363 [ 8 Cal.Rptr.2d 648 ], our court’s decision in a multiple shooting case, for the proposition separate punishment was justified for the multiple stabbings here. (Maj. opn., ante, at pp. 688-689.) The trouble is that the issue presented is whether the trial court could sentence separately for the stabbings and the kidnapping.

And the trouble does not stop there. People v. Latimer (1993) 5 Cal.4th 1203 [ 23 Cal.Rptr.2d 144 , 858 P.2d 611 ], in which the Supreme Court reaffirmed the vitality of the intent and objective test used to determine whether the section applies, 2 has created a conundrum in determining proper application of the section.

Latimer expressly approved People v. Trotter, supra, 7 Cal.App.4th 363 (People v. Latimer, supra, 5 Cal.4th at p. 1216 ). Trotter's analysis provides the basis for my colleagues’ conclusion section 654 does not apply here because the acts “were separated by considerable periods of time…

[Opinion certified for partial publication. [1] ]

OPINION

SONENSHINE, Acting P.J.

Kenneth Luis Surdi was convicted of aggravated mayhem (Pen. Code, [2] § 205), torture (§ 206), kidnapping (§ 207, subd. (a)), attempted murder (§§ 664, 187), and conspiracy to commit second degree murder (§§ 182, subd. (a)(1), 187). He was sentenced to consecutive terms of 15 years to life and life on the conspiracy and mayhem counts, plus 10 years and 8 months for the attempted murder and kidnapping counts. [3] On appeal, he contends the court erred in (1) refusing his proffered duress instructions, (2) failing to instruct sua sponte on the defense of necessity, (3) failing to stay sentence on the attempted murder and kidnapping counts, and (4) imposing the upper term on the attempted murder count. We agree the attempted murder count must be stayed and modify the judgment accordingly. In all other respects, we affirm.

Surdi associated with a group known as the Family Mob (Mob). One evening, Surdi and other Mob members were partying at Victor Lomeli's house when Mob rival Ruben Sanchez was spotted walking down the street. Sanchez was confronted by Mob members and told to choose one of them to…

*687 Opinion

Kenneth Luis Surdi was convicted of aggravated mayhem (Pen. Code, 2 § 205), torture (§ 206), kidnapping (§ 207, subd. (a)), attempted murder (§§ 664, 187), and conspiracy to commit second degree murder (§§ 182, subd. (a)(1), 187). He was sentenced to consecutive terms of 15 years to life and life on the conspiracy and mayhem counts, plus 10 years and 8 months for the attempted murder and kidnapping counts. 3 On appeal, he contends the court erred in (1) refusing his proffered duress instructions, (2) failing to instruct sua sponte on the defense of necessity, (3) failing to stay sentence on the attempted murder and kidnapping counts, and (4) imposing the upper term on the attempted murder count. We agree the attempted murder count must be stayed and modify the judgment accordingly. In all other respects, we affirm.

I

Surdi associated with a group known as the Family Mob (Mob). One evening, Surdi and other Mob members were partying at Victor Lomeli’s house when Mob rival Ruben Sanchez was spotted walking down the street. Sanchez was confronted by Mob members and told to choose one of them to fight. He declined but nonetheless was hit in the face and beaten.

The Mob…