People v. Barela

• Decision Date: 20 July 1983
• Docket Number: Cr. 42157
• Citation: 193 Cal.Rptr. 257,145 Cal.App.3d 152
• Parties: The PEOPLE, Plaintiff and Appellant, v. Daniel Cecil BARELA, Defendant and Respondent.
• Court: California Court of Appeals Court of Appeals

Page 257

193 Cal.Rptr. 257

145 Cal.App.3d 152

The PEOPLE, Plaintiff and Appellant, v. Daniel Cecil BARELA, Defendant and Respondent.

Cr. 42157.

Court of Appeal, Second District, Division 4, California.

July 20, 1983.

John K. Van de Kamp and Robert H. Philibosian, Dist. Atty., Donald J. Kaplan, Dirk L. Hudson, Deputy Dist. Attys., for plaintiff and appellant.

Dennis L. Cava, Beverly Hills, under appointment by the Court of Appeal, for defendant and respondent.

AMERIAN, Associate Justice.

To an information charging three counts, respondent Daniel Cecil Barela (respondent) entered a plea of guilty to all counts. In count I of the information filed October 6, 1981, respondent was charged with a violation of PENAL CODE SECTION 211¹, for which the sentence range is two, three or five years (§ 213). In count II he was charged with violation of section 245, subdivision (a), for which the sentence range is two, three or four years. In count III he was charged with violation of sections 664 and 187, for which the sentence range is five, seven or nine years (§ 664, subd. 1).

Additionally there was alleged in the information a two-year enhancement for use of a firearm under section 12022.5 as to all three counts. As to counts I and III only, a three-year enhancement under section 12022.7 was alleged. As to count I only, a one-year enhancement under section 12022.6, subdivision (a) was alleged.

By amended information filed on December 18, 1981, the day respondent's plea was taken, enhancements under section 667.5, subdivision (b) were alleged as to all three counts. These enhancements grew out of two separate prior felony convictions suffered by respondent.

Respondent admitted all enhancements at the time he entered his plea, including the enhancements in the amended information.

The facts supporting the charges were that respondent and another person entered a jewelry store. Respondent was armed with a handgun, forced the proprietor to open a safe and took diamonds, jewelry and watches valued at $55,000 to $60,000 and $2,000 in cash. The proprietor began to fight with respondent and respondent struck the proprietor in the head several times with the butt of the gun. Respondent then fired several rounds at the proprietor, narrowly missing him.

In the face of these circumstances, respondent entered a sentence bargain with the court under the terms of which, in exchange for a plea of guilty to all counts and admission of all enhancements, respondent would be sentenced to a total of six years in prison. The People vigorously objected to the bargain at the time the pleas were taken. At the time of sentence on January 14, 1982, the People again made it clear that their side was not a party to any agreement concerning sentence, and observed, "The People feel that Mr. Barela deserves far more than the agreed-upon amount in this particular case." Just before sentence was pronounced, the prosecutor indicated again that the People were not going along with the agreement on the particular sentence in the case.

In sentencing respondent, the following format was used by the trial court: First, the midterm of three years on count I was imposed. The three-year enhancement under section 12022.7 was imposed on count I, to run consecutively to the sentence on that count. The two-year enhancement under section 12022.5 on count I was imposed and stayed. The two-year enhancement under section 12022.6 on count I was imposed and stayed. Two enhancements of one year each under section 667.5, subdivision (b) were imposed and stayed. Thus, on count I the total sentence of six years matched the bargained for sentence. ²

Turning to count II, a sentence of three years, together with two years for the section 12022.5 enhancement was imposed and was ordered to run concurrent to the sentence on count I.

On count III, the sentence choice was the midterm of seven years. An additional two years were imposed consecutively for the 12022.5 enhancement. An additional three years were imposed consecutively for the 12022.7 enhancement. The enhancements were ordered to run consecutive to the base term and consecutive to each other.

Finally, the court ruled that under section 654, punishment both on count I and on count III was not proper. Accordingly, the court stayed the sentence on count III and ordered that the stay become permanent once the sentence on count I was served. Thus, when he left the courtroom at the conclusion of the proceedings on January 14, 1982, respondent had received the six-year state prison sentence he had bargained for with the court on December 18, 1981.

The appeal of the People is from the order staying execution of sentence on count III.

ISSUE

Appellant urges that the trial court exceeded its jurisdiction when, in dealing with two crimes listed in section 1203.06, it stayed service of a prison term imposed for a more serious offense until completion of a term imposed for a less serious offense. We hold that this action was not in excess of the court's jurisdiction.

DISCUSSION

Although in several cases under section 654 the Supreme Court has spoken of punishment of only the more serious crime, that language has come in the context of appellate court action staying sentence on certain counts where a trial court has sentenced on more than one count. ³

It is clear that a trial court generally has the discretion in sentencing on more than one count to select the count on which sentence is to be carried out and stay sentence on the remaining counts as to which sentence is imposed. In People v. Mendevil (1978) 81 Cal.App.3d 84, 146 Cal.Rptr. 65, a defendant was convicted of violation of both section 12303 and of section 12303.3. Section 12303.3 carried the greater penalty. The trial court chose to stay execution of sentence under section 12303.3 until defendant finished his term on section 12303. The stay was to become permanent after completion of the sentence under 12303.

In affirming the order of the trial court, the court stated, "While most trial courts and appellate courts, which at times have straightened out section 654 sentencing problems, have tended to stay execution on the less seriously punishable offense, section 654 does not require that. Rather, section 654 allows the trial court to exercise discretion and to punish under either of the provisions by which the act or omission is made punishable. [Citations.]" (People v. Mendevil, supra, at p. 89, 146 Cal.Rptr. 65.)

Here the court chose to impose sentence on all three counts and, under Mendevil, designated that as between robbery and attempted murder, the robbery charge was the one which was to be served. The midterm of three years was selected. ⁴ Service of the midterm of seven years on the attempted murder was stayed. Service of the sentence on the assault was ordered to run concurrent.

Appellant urges that the trial court acted in excess of its jurisdiction in sentencing respondent. It is appellant's view that the proscription of section 1203.06 is applicable to this case. That section provides, in part, "(a) Probation shall not be granted to, nor shall the execution or imposition of sentence be suspended for, any of the following persons: [p] (1) Any person who personally used a firearm during the commission or attempted commission of any of the following crimes: [p] (i) Murder. [p] .... [p] (iii) Robbery, in violation of section 211."

The trial court did not grant probation to respondent. Imposition of sentence was not suspended as to any of the counts. Thus, the only possible transgression of a section 1203.06 requirement is of the portion of that section which provides that execution of sentence shall not be suspended in the case of conviction of certain crimes.

The first paragraph of section 1203.1 provides, in part, "The court or judge thereof, in the order granting probation, may suspend the imposing, or the execution of the sentence and may direct that such suspension may continue for such period of time not exceeding the maximum possible term of such sentence, except as hereinafter set forth, and upon such terms and conditions as it shall determine. The court, or judge thereof, in the order granting probation and as a condition thereof may imprison the defendant in the county jail for a period not exceeding the maximum time fixed by law in the instant case; provided, however, that where the maximum possible term of such sentence is five years or less, then such period of suspension of imposition or execution of sentence may, in the discretion of the court, continue for not over five years; may fine the defendant in such sum not to exceed the maximum fine provided by law in such case; or may in connection with granting probation, impose either imprisonment in county jail, or fine, or both, or neither ...." (Italics added.)

A stay of sentence which has been imposed is not expressly covered by the language of section 1203.06. The stay is a commonly used procedure which assures, in part, that a defendant who commits and is convicted of more than one offense does not escape punishment in the event conviction on one of the counts is reversed on appeal. (People v. Niles (1964) 227 Cal.App.2d 749, 755-756, 39 Cal.Rptr. 11.) The use of the stay "arose as a device to preclude the windfall of freedom from penal sanction upon reversal of the conviction for which punishment was imposed." (People v. Avila (1982) 138 Cal.App.3d 873, 879, 188 Cal.Rptr. 754.) The Niles court approved use of the stay to avoid the consequences of a potential problem under section 654.

The sentencing rules for the superior courts, Rules of Court, rule 401 et seq. recognize use of the stay. (See, e.g., Rules of Court, rule 447 and rule 449.) The stays imposed by the trial judge in this case are in conformance with those rules.

Appellant urges that People v. Bradley (1981) 115 Cal.App.3d 744, 171 Cal.Rptr. 487, is controlling. In Bradley, the defendant had been...