Louie

I concur in the opinion, except as to part IVB. As to that part, I concur in the result, but my reasoning differs. In my opinion, Penal Code section 654 prohibits punishment for the substantive street terrorism counts (Pen. Code, § 186.22, subd. (a)) because defendants were already punished for the same gang aspect of the crimes when their sentences were enhanced for committing the crimes for the benefit of a gang (Pen. Code, § 186.22, subd. (b)(4)(C)).

Both defendants were punished for the gang enhancement associated with the dissuading a witness crime committed on January 6, 2007, as alleged in count 3 of the information. The gang enhancement turned a determinate term into an indeterminate life term for that crime. (§ 186.22, subd. (b)(4)(C).) (The gang enhancement associated with the arson count was stayed pursuant to § 654.) In addition to that, both defendants were punished for the substantive street terrorism count also committed on January 6, 2007, as alleged in count 4.

Punishment for the gang enhancement and the substantive street terrorism count for the same aspect of the criminal activity violates section 654. 2 “The purpose of [section 654’s] protection against…

The sentencing portion of this opinion highlights the difficulty courts face reconciling Penal Code section 654 with Penal Code section 186.22, subdivision (a), the substantive gang offense. Section 654 prohibits punishing an act or omission under more than one provision of law. Section 186.22, subdivision (a) imposes state prison time for anyone who actively participates in a criminal street gang and willfully promotes, furthers, or assists in felonious criminal conduct by members of the gang. The difficulty arises because the same act results in a conviction for the underlying “felonious criminal conduct” and for the substantive gang offense. Although a defendant may be convicted on multiple theories for the same act, a defendant may not be subjected to multiple punishments for the same act.

Defendants Michael Hong Louie and Soriyaa Ek, both validated gang members, were tried and convicted on multiple counts after they set fire to the apartment of a woman who repeatedly reported gang activity in her neighborhood. Just prior to setting fire to the apartment, Ek called the victim a “cop caller,” and told her, “[yjou’re going to get yours.” After the fire, but before any…