DISCUSSION

Defendant correctly contends that the concurrent sentence on count two violates section 654 and should be stayed. “Section 654 prohibits multiple punishment for multiple crimes which arise out of a single act or an indivisible course of conduct. [Citation.]” (People v. Cole (1985) 165

2 Cal.App.3d 41, 53 (Cole).) “When confronted with offenses within the ambit of section 654, the procedure is to stay the execution of sentence on all but one of the offenses subject to section 654. [Citation.]” (Cole, supra, at p. 53.) As defendant points out, and the Attorney General acknowledges, the prosecutor in closing argument described the facts of attempted carjacking and attempted kidnapping in nearly identical terms. For the steps that constituted attempted carjacking, the prosecutor said: “We have [defendant] getting into her car unannounced, without permission. We have him pulling out a weapon and pointing it down at her. We have him telling her, ‘You need to drive right now.’ ” For attempted kidnapping, the prosecutor explained: “Again, [defendant] gets into [Sylvia’s] car unannounced, and he pulls out a weapon. He tells her that she needs to drive.” The word “[a]gain” that prefaced this latter statement is telling. The prosecutor effectively told jurors that the same facts were involved in both charges. The trial court was aware of the section 654 issue. At the sentencing hearing, defense counsel noted that the probation report recommended a consecutive term on the attempting kidnapping charge. Counsel told the court that he had provided cases on section 654 to the prosecutor and offered to provide them to the court. The court responded, “I don’t need it because I don’t intend to give him a consecutive term on Count 2.” The court observed, “It’s all one⸺the facts and circumstances are pretty closely matched between Count 1 and Count 2. I’m not going to say it’s [section] 654. I’m just not inclined to give him a consecutive term on that count.” To the extent the court sought to address the section 654 issue by ordering that the sentence on count two be served concurrently “under section 654, concurrent sentences for such offenses are prohibited, since they may have collateral consequences amounting to increased punishment.” (Cole, supra, 165 Cal.App.3d at p. 53.) The Attorney General urges us to remand for resentencing because “it is also possible that the court could have believed there were separate intents behind the crimes.”

3 The Attorney General, however, has skipped a step in determining the applicability of section 654, which is a two-step process. First, we “consider if the different crimes were completed by a ‘single physical act.’ [Citation.] If so, the defendant may not be punished more than once for that act. Only if we conclude that the case involves more than a single act—i.e., a course of conduct—do we then consider whether that course of conduct reflects a single ‘ “intent and objective” ’ or multiple intents and objectives.” (People v. Corpening (2016) 2 Cal.5th 307, 311 (Corpening).) “Whether a defendant will be found to have committed a single physical act for purposes of section 654 depends on whether some action the defendant is charged with having taken separately completes the actus reus of each of the relevant criminal offenses. [Citations.]” (Corpening, supra, at p. 313; People v. Beamon (1973) 8 Cal.3d 625, 637 [“ ‘the applicability of section 654 will depend upon whether a separate and distinct act can be established as the basis of each conviction . . . .’ ”].) The Attorney General does not explain how defendant committed more than a single act, i.e., separate acts that form the actus reus for attempted carjacking versus attempted kidnapping. Indeed, in Corpening, the California Supreme Court held that “the forceful taking of a vehicle on a particular occasion is a single act under section 654” (Corpening, supra, 2 Cal.5th at p. 313), in that the same action committed by the same person at the same time completed the actus reus for robbery and carjacking. (Id. at pp. 313-314.) Here, the same act⸺entering the car and ordering Sylvia to drive at gunpoint⸺accomplished both of the offenses of attempted carjacking and attempted kidnapping, as the prosecutor told the jury in closing. Since “a single physical act served as the basis for convicting defendant of two separate crimes,” we need not reach step two

4 of the section 654 question, i.e., whether multiple intents and objectives were involved.2 (Corpening, at p. 316.)

DISPOSITION

The trial court is directed to modify defendant’s sentence by staying execution of the sentence of two years six months on count two under section 654. The trial court is further directed to prepare and forward to the Department of Corrections and Rehabilitation an amended abstract of judgment that reflects the modified sentence. As modified, the judgment is affirmed.

KRAUSE , J.

We concur:

HULL , Acting P. J.

MAURO , J.

2 The Attorney General acknowledges that in refusing to apply section 654, the trial court’s “reasoning is unclear and unexplained.” In Corpening, the court observed that “[t]o facilitate meaningful appellate review, the better practice is for trial courts to state on the record their reasons for concluding that multiple offenses are or are not separately punishable under section 654.” (Corpening, supra, 2 Cal.5th at p. 316, fn. 6.)

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