Filed 1/20/21 P. v. Taylor CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,

Plaintiff and Respondent,

v.

TRACY TAYLOR,

Defendant and Appellant.

 B302929

 (Los Angeles County

 Super. Ct. No. TA148198)

APPEAL from a judgment of the Superior Court of the 

County of Los Angeles, Danette J. Gomez, Judge. Reversed and 

remanded with directions.

David R. Greifinger, under appointment by the Court of 

Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Senior 

Assistant Attorney General, William H. Shin and Roberta L. 

Davis, Deputy Attorneys General, for Plaintiff and Respondent.
2

I. INTRODUCTION

A jury found defendant Tracy Taylor guilty on two counts of 

assault and two counts of making criminal threats against two 

victims. On appeal, defendant contends that the trial court erred 

by failing to stay under Penal Code section 6541 the execution of 

his sentences on the two assault counts. According to defendant, 

because those two counts were based upon the same indivisible 

course of conduct as the criminal threats counts on which he was 

sentenced, the sentences imposed for the assaults should have 

been stayed. Defendant also contends that the court erred by 

sentencing him on each of the criminal threats counts because 

the multiple-victim exception to section 654 did not apply to those 

crimes.

We reverse defendant’s sentences on the two assault counts 

only and remand the matter to the trial court with directions to 

stay execution of those sentences and reconsider the amount of 

the restitution and the parole revocation fines imposed under 

sections 1202.4 and 1202.45.

II. FACTUAL BACKGROUND

On February 2, 2019, 18-year-old K.T. and her mother left 

their home to walk to K.T.’s high school. As the two women 

walked toward the school, K.T. saw defendant, who had 

previously dated K.T.’s mother, across the street. When the 

women crossed to defendant’s side of the street, he stopped, 

turned to face them, and asked why they were following him. 

1 All statutory references are to the Penal Code.
3

Defendant then lifted his shirt, and K.T. saw the handle of a 

black gun as defendant angrily yelled to K.T.’s mother, “‘I’ll kill 

you and your baby, bitch.’” At that point, defendant pulled what 

appeared to be a gun from his waistband and pointed it at both 

K.T. and her mother, moving it back and forth for about a 

minute.2 Afraid that defendant would shoot her, K.T. reached 

out to her mother and both began backing up. She and her 

mother then ran across the street and, without looking back at 

defendant, proceeded home.

III. PROCEDURAL BACKGROUND

In an information, the Los Angeles County District 

Attorney charged defendant in count 1 with the 

February 2, 2019, assault of K.T.’s mother with a firearm in 

violation of section 245, subdivision (a)(2); in count 2 with the 

February 2 assault of K.T. with a firearm in violation of section 

245, subdivision (a)(2); in count 3 with making criminal threats 

against K.T.’s mother on February 2 in violation of section 422, 

subdivision (a); and in count 4 with making criminal threats 

against K.T. on February 2 in violation of section 422, 

subdivision (a).3

2 According to K.T.’s mother, defendant lifted his shirt and 

pulled a gun partially from his waistband, but did not completely 

remove it from his pants or point it at her.

3 The information also charged defendant in count 5 with 

making criminal threats against K.T.’s mother during a 

subsequent incident on February 12, 2019, and in count 6 with 

being a felon in possession of a firearm.
4

Following trial, the jury found defendant guilty of the 

lesser included offense of assault in violation of section 240 on 

counts 1 and 2, and guilty as charged on counts 3 and 4.4 

Defendant submitted a sentencing memorandum arguing, among 

other things, that his actions constituted a single course of 

conduct. The trial court sentenced defendant on count 3—

criminal threats against K.T.’s mother—to a base term of two 

years; on count 4—criminal threats against K.T.—to a concurrent 

two-year-term; and on counts 1 and 2—the assaults of K.T. and 

her mother—to concurrent terms of six months each.5

In addition to imposing court operation and criminal 

conviction assessments on each count, the trial court imposed a 

restitution fine under section 1202.4 as follows: “The court also 

orders a restitution fine in the formula set out by [] section 

1202.4 sub[division] (b)(2), which takes $200 [and] multiplies it 

by the [number of] years [to which] he’s sentenced . . . [,] which is 

two[,] times the [number of] counts[,] which is a total of five[,] or 

for an amount of $2,000 of restitution fine . . . .”6 In addition, the 

court awarded defendant 505 days of presentence custody credit.

4 The jury also found defendant guilty on count 6, but not 

guilty on count 5.

5 The trial court sentenced defendant on count 6 to a 

concurrent two-year term.

6 The court also imposed, but stayed, a parole revocation 

restitution fine in the same amount under section 1202.45.
5

IV. DISCUSSION

A. Stay of Sentences on the Two Assault Counts

Defendant contends that the trial court erred by imposing 

sentences on counts 1 and 2 for the assaults of K.T. and her 

mother. According to defendant, execution of those sentences 

should have been stayed under section 6547 because those counts 

were based on the same indivisible course of conduct as the 

criminal threats counts for the same two victims.

Defendant “may raise the applicability of section 654 on 

appeal even if no objection was made in the trial court.” (People 

v. Leonard (2014) 228 Cal.App.4th 465, 499.) We review the trial 

court’s implied determination that section 654 did not apply for 

substantial evidence. (Ibid.)

The Attorney General concedes, and we agree, that the trial 

court’s implicit finding that section 654 did not apply is not 

supported by substantial evidence. Both victims testified that 

the threat to kill them was made contemporaneously with 

defendant’s display of what appeared to be a handgun; and the 

prosecution argued that defendant’s intent to have his statement 

taken as a serious threat was proven by his simultaneous use of a 

gun. The threats against and assaults of the victims were 

therefore committed as part of an indivisible course of conduct 

intended to instill fear in them. Consequently, once the court 

7 Section 654 provides, in pertinent part: “An 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.”
6

sentenced defendant to two years on count 3—for criminal 

threats against K.T.’s mother—and two concurrent years on 

count 4—for criminal threats against K.T.—it should have stayed 

execution of the sentences on the two assault counts. (Neal v. 

State of California (1960) 55 Cal.2d 11, 19.)

In the respondent’s brief, the Attorney General asserted 

that defendant’s section 654 argument was moot because the 

award of 505 days of presentence custody credit meant that 

defendant had already served the six-month sentences on counts 

1 and 2 and therefore a reversal of those sentences “would have 

no effect on [defendant’s] custodial time,” citing People v. Travis

(2006) 139 Cal.App.4th 1271, 1280. In his reply brief, defendant 

argued that the issue was not moot because the restitution fines 

imposed as punishment by the court had been erroneously 

calculated using the two assault counts on which execution of 

sentence should have been stayed, citing People v. Gaynor (2019) 

42 Cal.App.5th 794 (Gaynor).) At oral argument, the Attorney 

General conceded that defendant’s argument was not moot and 

that reversal under Gaynor for the limited purpose of 

reconsidering defendant’s restitution fines was the appropriate 

remedy. We agree with the parties and therefore reverse 

defendant’s sentences on the two assault counts and remand with 

directions to stay execution of the sentences on those counts and 

to reconsider the restitution and parole revocation fines.

B. Stay of Sentence on the Second Criminal Threats Conviction

Defendant also contends that the two-year concurrent 

sentence imposed on count 4—criminal threats against K.T.—

should have been stayed under section 654 because the conviction 
7

on that count was based on the same course of conduct as 

count 3—criminal threats against K.T.’s mother. We disagree.

“‘[T]he limitations of section 654 do not apply to crimes of 

violence against multiple victims.’ (People v. King (1993) 5 

Cal.4th 59, 78 . . . .)” (People v. Oates (2004) 32 Cal.4th 1048, 

1063.) The crime of making a criminal threat under section 422, 

as charged here, is an act of violence within the meaning of the 

multiple-victim exception to section 654. (People v. Solis (2001) 

90 Cal.App.4th 1002, 1024.)8 The trial court therefore did not err 

in sentencing defendant on both counts 3 and 4 because each

crime involved a separate act of violence against the person of 

each victim.

8 Defendant acknowledges that the imposition of sentence on 

count 4 was authorized under the multiple-victim exception to 

section 654 as stated in People v. Solis, supra, 90 Cal.App.4th at 

page 1024, but urges us not to follow that precedent. We decline 

to do so.
8

V. DISPOSITION

The judgment is reversed and the matter is remanded with 

directions to stay execution of the sentences imposed on counts 1 

and 2 and to reconsider the amounts of the restitution fine 

imposed under section 1202.4 and the parole revocation fine 

imposed under section 1202.45. In all other respects, the 

judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KIM, J.

We concur:

RUBIN, P. J.

BAKER, J.