People v. Byrd, 194 Cal. App. 4th 88

Byrd was convicted of five counts including kidnapping (victim 1), kidnapping (victim 2), forcible sodomy of victim 1, forcible sodomy of a person under 18, and felon in possession of a firearm, with various enhancements.
Victim 1 and victim 2 were abducted at gunpoint; victim 2 was released, and victim 1 was taken to a remote trailer where Byrd sodomized him after a prolonged incident involving methamphetamine.
DNA evidence showed Byrd as the primary contributor of semen; Byrd was identified by victim 1 in a photo lineup the day after the incident.
At sentencing in 2009, the trial court imposed lengthy terms including a principal term for count 3 (aggravated kidnapping with forcible sodomy) and consecutive terms on counts 1 and 2, with count 4 stayed and count 5 (felon in possession) also sentenced to a consecutive term.
The defense argued for concurrent sentencing under section 654; the People contended the one-strike law (667.61) governed, with separate purposes for the counts.
The court later remanded only as to count 5, finding the court had discretion to impose concurrent terms on count 5 but failed to demonstrate it understood or exercised that discretion.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether count 1’s sentence should have been stayed.	Byrd argues under 667.61(f) and the one-strike scheme, count 1 should have been stayed because it was encompassed by count 3’s aggravated kidnapping.	Byrd contends the court erred by not staying count 1 under 667.61/f, and should have used section 654 instead.	667.61(f) governs; no error in refusing to stay count 1.
Whether consecutive sentences were mandatory for counts 1 and 3 and counts 2 and 3.	Byrd contends the court had discretion to run some counts concurrently since they arose from the same course of conduct.	People argue the three-strikes scheme required consecutive sentencing when counts were not on the same occasion or arising from the same operative facts.	Counts 1 and 3, and counts 2 and 3, were not on the same occasion or arising from the same operative facts; consecutive sentencing was required.
Whether the trial court had discretion to impose concurrent terms on count 5 (felon in possession) and if not, whether remand was needed.	Byrd used the gun in multiple related ways; court should have discretion to run count 5 concurrently.	Court’s discretion to consolidate count 5 exists; absence of clear exercise requires remand for proper ruling.	The trial court had discretion to sentence count 5 concurrently; remand required to determine if concurrent or consecutive.

People v. Mancebo, 27 Cal.4th 735 (Cal. 2002) (one-strike stay issue governed by the plain language of §667.61(f))
People v. Hendrix, 16 Cal.4th 508 (Cal. 1997) (consecutive sentencing principles under three strikes)
People v. Lawrence, 24 Cal.4th 219 (Cal. 2000) (same-occasion and same-operative-facts test for concurrent sentencing)
People v. Deloza, 18 Cal.4th 585 (Cal. 1998) (criteria for determining same occasion/operative facts)
People v. Massie, 66 Cal.2d 899 (Cal. 1967) (concept of divisible acts vs. indivisible transaction for §654)
People v. Canty, 32 Cal.4th 1266 (Cal. 2004) (distinction between aggravated and simple kidnapping within §667.61)
People v. Jones, 108 Cal.App.4th 455 (Cal. App. 2003) (elements of simple kidnapping under §207)
People v. Palmore, 79 Cal.App.4th 1290 (Cal. App. 2000) (stay under §654 when qualifying circumstances differ)
People v. Alvarado, 87 Cal.App.4th 178 (Cal. App. 2001) (stay under §654 in related sentencing scenarios)
People v. Massie, 66 Cal.2d 899 (Cal. 1967) (bootstrap of divisible acts and §654 considerations)