PEOPLE v. RHUDY

No. D070773.

THE PEOPLE, Plaintiff and Respondent, v. MICHAEL LEE RHUDY, Defendant and Appellant.

Court of Appeals of California, Fourth District, Division One.


Attorney(s) appearing for the Case

Jill Kent , under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra , Attorney General, Gerald A. Engler , Chief Assistant Attorney General, Julie L. Garland , Assistant Attorney General, Collette C. Cavalier and Heidi Salerno , Deputy Attorneys General, for Plaintiff and Respondent.


NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

HUFFMAN, Acting P. J.

This appeal arises from two separate offenses which were sentenced at the same time. In one case Michael Lee Rhudy pleaded guilty to felony resisting arrest (Pen. Code,1 § 69). A jury convicted Rhudy of one count of unlawful taking and driving a vehicle (Veh. Code, § 10851, subd. (a)) and one count of receiving stolen property (§ 496, subd. (a)). Rhudy admitted two strike priors (§ 667, subds. (b)-(i)) and four prison priors (§ 667.5, subd. (b)).

The court sentenced Rhudy to a six-year term for count 1 (vehicle theft) and a concurrent six-year term for count 2 (receiving stolen property). The court imposed four years for the prison priors. The court imposed a concurrent three-year term for the resisting arrest conviction.

Rhudy appeals challenging only the concurrent sentences for counts 1 and 2. He contends the trial court erred in its application of section 654 to those sentences. The Attorney General agrees the trial court was incorrect in the imposition of the two sentences. We agree with both parties. As we will discuss the court made a simple mistake. The court found section 654 applied to the two counts relating to the taking and possessing of the same vehicle. Unfortunately, the court deemed concurrent sentences complied with section 654. As the parties agree, once section 654 is applicable to the two offenses the sentence for one of them must be stayed, not merely imposed concurrently. We will order the sentence modified and the abstract of judgment amended accordingly.2

DISCUSSION

At the time of sentencing the trial court said:

"And with respect to the People's position on 654, it appears to me that this is now a 654 situation. So, I'm going to run both counts 1 and 2 concurrent with each other."

The court also found both crimes were committed in a single period of aberrant behavior and that they had objectives which were dependent on each other. When a court finds that section 654 prohibits multiple punishment for several counts, it must stay the sentence for all but the most serious offense. (People v. Alford (2010) 180 Cal.App.4th 1463, 1471.) Unfortunately, nobody brought the error to the trial court's attention, so it is our task to remedy the error.

We will modify the sentence by ordering the sentence for count 2 to be stayed pursuant to section 654.

DISPOSITION

The sentence imposed on count 2 is modified to reflect that it is stayed pursuant to section 654. The trial court is directed to amend the abstract of judgment to reflect this modification, and forward it to the Department of Corrections and Rehabilitation. In all other respects the judgment is affirmed.

HALLER, J. and AARON, J., concurs.

FootNotes


1. All further statutory references are to the Penal Code unless otherwise specified.
2. The facts of the underlying offenses are not relevant here. The parties and the court agreed section 654 was applicable to the two offenses. The sentence imposed presents a pure question of law about which the facts are not important.

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