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People v. Alford

January 13, 2010

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
ANTHONY MARK ALFORD, JR. DEFENDANT AND APPELLANT.



APPEAL from a judgment of the Superior Court of Yolo County, David Rosenberg, Judge. Affirmed as modified. (Super. Ct. No. 082214).

The opinion of the court was delivered by: Cantil-sakauye, J.

CERTIFIED FOR PUBLICATION

In this appeal pursuant to People v. Wende (1979) 25 Cal.3d 436, we solicited supplemental briefing to clarify the proper way to implement Penal Code section 654.*fn1

Broadly speaking, one branch of section 654 precludes multiple punishment when a criminal act or omission violates multiple penal provisions. We conclude that when a trial court determines that section 654 applies to a particular count, the trial court must impose sentence on that count and then stay execution of that sentence. There is no authority for a court to refrain from imposing sentence on all counts, except where probation is granted. And failing to impose sentence on all counts can lead to procedural difficulties if the count on which sentence was imposed is later reversed or vacated.

This should not be a controversial proposition. It has been the law for many years. However, California Rules of Court,*fn2 rule 4.424 provides that a sentencing court "must determine whether the proscription in section 654 against multiple punishments for the same act or omission requires a stay of imposition of sentence on some of the counts." Rule 4.424 misstates the correct way to implement section 654, and therefore can cause mischief in cases, such as this one appears to be, where it is followed by busy trial courts.

Accordingly, we publish this opinion to emphasize the appropriate method of implementing section 654 and the need to rewrite the misleading rule.

FACTUAL AND PROCEDURAL BACKGROUND

In April 2008, defendant Anthony Mark Alford, Jr., entered a Wal-Mart, loaded a shopping cart with meat, put most of the meat in a 150-quart ice chest, placed some other items in the cart, and tried to leave the store without paying. The total value of the items in the cart was $515.20. Defendant told a peace officer he was going camping and did not have money to pay for the meat.

A jury convicted defendant of second degree burglary and grand theft. (§§ 459, 484, 487.) The jury also found he had a strike and had served two prison terms. (§§ 667, subds. (b)-(i), 667.5, subd. (b).)

At sentencing, the trial court declined to reconsider a prior decision not to strike the strike and sentenced defendant to the midterm of two years for burglary, doubled to four for the strike, and added two years for the prison terms, for a total state prison sentence of six years. The trial court stayed imposition of sentence for grand theft.

Defendant timely filed this appeal.

DISCUSSION

We appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the facts of the case and asks this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende, supra, 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing of the opening brief. More than 30 days elapsed, and we received no communication from defendant. Having undertaken an examination of the entire record, we find no arguable errors that would result in a disposition more favorable to defendant.

However, we have found an error that results in an unauthorized sentence that we must correct.

Section 654, subdivision (a) provides:

"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 ...


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