People v. Alford

• Decision Date: 13 January 2010
• Docket Number: No. C060251.,C060251.
• Citation: 103 Cal. Rptr. 3d 898,180 Cal.App.4th 1463
• Parties: THE PEOPLE, Plaintiff and Respondent, v. ANTHONY MARK ALFORD, JR., Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

180 Cal.App.4th 1463

103 Cal. Rptr. 3d 898

THE PEOPLE, Plaintiff and Respondent, v. ANTHONY MARK ALFORD, JR., Defendant and Appellant.

No. C060251.

Court of Appeals of California, Third District.

January 13, 2010.

David Annicchiarico, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, and Craig S. Meyers, Deputy Attorney General, for Plaintiff and Respondent.

OPINION

CANTIL-SAKAUYE, J.

In this appeal pursuant to People v. Wende (1979) 25 Cal.3d 436 [158 Cal.Rptr. 839, 600 P.2d 1071], we solicited supplemental briefing to clarify the proper way to implement Penal Code section 654.¹

(1) 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.

(2) This should not be a controversial proposition. It has been the law for many years. However, California Rules of Court,² 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 or omission be punished under more than one provision."

(3) Section 654 has been construed broadly: "Few if any crimes, however, are the result of a single physical act. `Section 654 has been applied not only where there was but one "act" in the ordinary sense ... but also where a course of conduct violated more than one statute and the problem was whether it comprised a divisible transaction which could be punished under more than one statute within the meaning of section 654.' [Citation.]

"Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one." (Neal v. State of California (1960) 55 Cal.2d 11, 19 [9 Cal.Rptr. 607, 357 P.2d 839]; see People v. Hairston (2009) 174 Cal.App.4th 231, 240 .)

(4) In particular, section 654 has been held to preclude punishment for both burglary and theft where, as in this case, the burglary is based on an entry with intent to commit that theft. (People v. Bernal (1994) 22 Cal.App.4th 1455, 1458 [burglary and petty theft], discussed with approval in People v. Allen (1999) 21 Cal.4th 846, 864-866 & fn. 20 [89 Cal.Rptr.2d 279, 984 P.2d 486].)

The question in this case is how to implement section 654.

(5) Imposition of concurrent sentences is not the correct method of implementing section 654, because a concurrent sentence is still punishment. (See In re Wright (1967) 65 Cal.2d 650, 654-655 [56 Cal.Rptr. 110, 422 P.2d 998] (Wright); People v. Cruz (1995) 38 Cal.App.4th 427, 434 .) For this reason, the imposition of concurrent terms is treated as an implied finding that the defendant bore multiple intents or objectives, that is, as a rejection of the applicability of section 654. (See, e.g., People v. Garcia (2008) 167 Cal.App.4th 1550, 1564-1565 (Garcia) ["implicit in the trial court's concurrent sentencing order is that defendant entertained separate intentions ..."]; see People v. Jones (2002) 103 Cal.App.4th 1139, 1147 [same].)

Nor is staying imposition of sentence an option. "Upon conviction it is the duty of the court to pass sentence on the defendant and impose the punishment prescribed. (Pen. Code, § 12; [case citations].) Pursuant to this duty the court must either sentence the defendant or grant probation in a lawful manner; it has no other discretion." (People v. Cheffen (1969) 2 Cal.App.3d 638, 641 (Cheffen) [a § 654 case].)

(6) A sentence must be imposed on each count, otherwise if the non-stayed sentence is vacated, either on appeal or in a collateral attack on the judgment, no valid sentence will remain. A seminal case—People v. Niles (1964) 227 Cal.App.2d 749 (Niles)—found a procedural solution: A trial court can impose sentence on all counts, and then stay execution of sentence as necessary to comply with section 654; that way, if the unstayed sentence is reversed, a valid sentence remains extant. (Niles, supra, at p. 756, approved on this point in Wright, supra, 65 Cal.2d at pp. 655-656, fn. 4; see Cheffen, supra, 2 Cal.App.3d at pp. 641-642.)

Thus—under what Witkin coined the "Niles formula"—to implement section 654, the trial court must impose sentence on all counts, but stay execution of sentence as necessary to prevent multiple punishment. (People v. Deloza (1998) 18 Cal.4th 585, 591-592 [76 Cal.Rptr.2d 255, 957 P.2d 945] (Deloza) [§ 654 "requires the sentence for one conviction to be imposed, and the other imposed and then stayed"]; see People v. Pearson (1986) 42 Cal.3d 351, 359-360 [228 Cal.Rptr. 509, 721 P.2d 595] (Pearson); 3 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Punishment, § 147 ["The Niles formula is now the accepted approach"]; Cal. Criminal Law Procedure and Practice (Cont.Ed.Bar 2009) Felony Sentencing, § 37.50, p. 1162 ["sentence for all counts must be imposed, then § 654-barred counts must be stayed"]; Couzens & Bigelow, Basic Elements of Felony Sentencing (Barrister Press 2009) Basic State Prison Sentence (Multiple Counts) p. 74 ["If section 654 applies to a particular count, the court should impose the term normally applicable to the crime, including any count-specific conduct enhancements, then stay the sentence"]; Ryan, Felony Sentencing Script (2009) Multiple Count Cases, § 7.2, p. 7-1.)

In Pearson, supra, 42 Cal.3d at pages 359-361, the California Supreme Court traced the various procedures courts had used to comply with section 654, including reversing counts and imposing concurrent terms, before adoption of the "Niles formula" in Wright, supra, 65 Cal.2d at pages 655-656. The Pearson court explained:

"In Wright we ... balanced the potential windfall to the defendant of reversing multiple convictions against the prejudice to him of allowing sentencing for such convictions. We then determined that the procedure of staying execution of sentence for multiple convictions instead of reversing such convictions `reasonably reconciles the policies involved in applying section 654 to protect the rights of both the state and the defendant,' and follows logically from the section 654 prohibition against punishing the defendant under more than one provision based on a single criminal act. [Citation.]

"In the case at bar the trial court used the procedure developed in Niles and Wright; it stayed execution of sentence on each of the sodomy counts, the stays to become permanent on completion of the sentence on the lewd conduct counts." (Pearson, supra, 42 Cal.3d at pp. 360-361.)

This has been the settled law, stated without qualification by the California Supreme Court. For example: "Section 654 precludes multiple punishment for a single act or omission, or an indivisible course of conduct. [Citations.] If, for example, a defendant suffers two convictions, punishment for one of which is precluded by section 654, that section requires the sentence for one conviction to be imposed, and the other imposed and...