What is the range of enhancements to a sentence under section 654 of the California Penal Code for stalking and criminal threats?

Under Penal Code section 654, subdivision (a), "[a]n act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." (Italics added.) The trial court is required to include enhancements in its determination of which provision provides for the longest prison term. (People v. Kramer (2002) 29 Cal.4th 720, 723.)

Here, although the three-year upper term on the criminal threats count is lower than the five-year upper term on the stalking count, once the three-year criminal threats term is doubled due to appellant's prior strike and the three five-year enhancements are added, it becomes the longest potential term of imprisonment under section 654. Hence, the court should have imposed sentence on that count instead and stayed imposition of sentence on the stalking count, rather than the other way round. (See 654, subd. (a); People v. Kramer, supra, 29 Cal.4th at p. 723.) The matter must be remanded for resentencing to correct this error.

The matter is remanded for resentencing as set forth herein. The judgment is otherwise affirmed.

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/s/_________
Kline, P.J.

We concur:

/s/_________
Richman, J.

/s/_________
Miller, J.

Footnotes:

^1. All further statutory references are to the Evidence Code unless otherwise indicated.