145 Cal.App.3d 152, 42157, People v. Barela

Docket Nº:42157
Citation:145 Cal.App.3d 152, 193 Cal.Rptr. 257
Opinion Judge:[10] Amerian
Party Name:People v. Barela
Attorney:[7] John K. Van de Kamp and Robert H. Philibosian, District Attorneys, Donald J. Kaplan and Dirk L. Hudson, Deputy District Attorneys, for Plaintiff and Appellant. [8] Dennis L. Cava, under appointment by the Court of Appeal, for Defendant and Respondent.
Case Date:July 20, 1983
Court:California Court of Appeals
 
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Page 152

145 Cal.App.3d 152

193 Cal.Rptr. 257

The PEOPLE, Plaintiff and Appellant,

v.

Daniel Cecil BARELA, Defendant and Respondent.

Cr. 42157.

California Court of Appeal, Second District, Fourth Division

July 20, 1983.

Page 153

[Copyrighted Material Omitted]

Page 154

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.

Page 155

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.

Page 156

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...

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