Can a defendant be convicted of assault with a deadly weapon under section 654 of the California Penal Code?

" ' "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." ' [Citation.] However, if the offenses were independent of and not merely incidental to each other, the defendant may be punished separately even though the violations shared common acts or were parts of an otherwise indivisible course of conduct. [Citations.] If all the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one. [Citation.]" (People v. Green (1996) 50 Cal.App.4th 1076, 1084-1085.)

" 'Whether the facts and circumstances reveal a single intent and objective within the meaning of Penal Code section 654 is generally a factual matter; the dimension and meaning of section 654 is a legal question.' [Citation.] We apply the substantial evidence standard of review to the trial court's implied finding that a defendant harbored a separate intent and objective for each offense. [Citations.]" (People v. Dowdell (2014) 227 Cal.App.4th 1388, 1414.)

Page 40

In People v. Nunez (2012) 210 Cal.App.4th 625, the defendant escaped from a mental health inpatient facility and approached the victim, who was sitting in his parked car. Defendant "slammed" the victim's window and screamed at him. The victim opened the car door and pushed defendant back a couple of feet; defendant swung a hammer at the victim, striking him on the forearm and hand, entered the victim's vehicle, and drove away. (Id. at p. 628.)

Defendant was convicted of carjacking (count 1) and assault with a deadly weapon (count 2). The trial court separately sentenced defendant for the two convictions, concluding that the assault with a deadly weapon was not incidental to the carjacking for section 654 purposes because defendant did not need to assault the victim in order to take his car. (People v. Nunez, supra, 210 Cal.App.4th at p. 628.)