P. v. Balandran
Filed 6/21/13 P. v. Balandran CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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.
IN THE COURT OF APPEAL OF THE STATE OF
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff
and Respondent,
v.
THOMAS EDWARD BALANDRAN,
Defendant
and Appellant.
E057715
(Super.Ct.No.
BAF1200569)
OPINION
APPEAL
from the Superior Court
of
County. Becky Dugan,
Judge. Affirmed as modified with
directions.
Mark
D. Johnson, under appointment by the Court of Appeal, for Defendant and
Appellant.
No
appearance for Plaintiff and Respondent.
Pursuant
to a plea agreement, defendant and appellant Thomas Edward Balandran pled
guilty to burglary (Pen. Code, § 459)
theft with a prior theft-related conviction (§§ 484, subd. (a), 666, subd.
(b)(1)).
prior prison terms (§ 667.5, subd. (b)), and one prior serious or violent
strike conviction (§§ 667, subds. (c) & (e)(1), 1170.12, subd. (c)(1)). In exchange, the prior prison term
allegations were stricken and defendant was sentenced to a total term of four
years in state prison with credit for time served. Defendant appeals from the judgment,
challenging the sentence or other matters occurring after the plea. As explained post, we will affirm the judgment but order the judgment modified
and abstract of judgment corrected.
I
FACTUAL AND
PROCEDURAL BACKGROUND
name="_ftnref3" title="">[3]
On
January 26, 2012, defendant
entered a Kohl’s store in Banning and stole merchandise having had previously
been convicted of a robbery.
On
August 31, 2012, a felony
complaint was filed charging defendant with one count of felony burglary (§
459) and one count of felony petty theft with a prior theft-related conviction
(§§ 484, subd. (a), 666, subd. (b)(1)).
The complaint further alleged that defendant had suffered one prior
serious or violent strike conviction (§§ 667, subds. (c) & (e)(1),
1170.12, subd. (c)(1)), and four prior prison terms (§ 667.5, subd. (b)).
On
October 18, 2012, in a
plea to the court, defendant pled guilty as charged in exchange for a four year
sentence. He also admitted that he had
“at least three prior theft offenses,†four prior prison terms, and one prior
strike conviction. The trial court found
that the plea and admissions were entered into freely and voluntarily and that
defendant knowingly and intelligently waived his rights. The court also found a factual basis for the
plea, relying on the felony complaint.
Defendant
was thereafter immediately sentenced to four years in state prison with credit
for time served. The court imposed a
middle term of two years on count 1, doubled to four years due to the prior
strike conviction, and struck the four one-year prior prison term
allegations. The court, however, failed
to sentence defendant on count 2, which as a matter of law should have been
stayed pursuant to section 654.
Defendant
filed a notice of appeal, challenging
the sentence or other matters occurring after the plea.
II
DISCUSSION
Defendant
appealed and, upon his request, this court appointed counsel to represent
him. Counsel has filed a brief under the
authority of
and Anders v. California (1967) 386
U.S. 738, setting forth a statement of the case, a summary of the facts and
potential arguable issues, and requesting this court conduct an independent
review of the record.
We
offered defendant an opportunity to file a personal
supplemental brief, but he has not done so.
Pursuant to the mandate of People
v. Kelly (2006) 40 Cal.4th 106, we have independently reviewed the record
for potential error and find an arguable issue.
As
noted ante, the record clearly shows
that (1) defendant pled guilty to petty theft with a prior (§§ 484, subd. (a),
666) as alleged in count 2; and that (2) the trial court failed to impose a
sentence on count 2.
Section
654 bars double punishment, including concurrent sentences, for a course of
conduct constituting one indivisible transaction with one criminal
objective. (Neal v. State of California (1960) 55 Cal.2d 11, 19;
People v. Lee (1980) 110 Cal.App.3d
774, 785.) “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.†(
p. 19.) Here, the burglary and the
petty theft with a prior constituted one indivisible transaction with one
criminal objective. (
1455, 1458.) The lesser of the two
terms—the sentence for petty theft—must be stayed. (§ 654, subd. (a).)
The
California Supreme Court has stated: “[W]hen a court determines that a
conviction falls within the meaning of section 654, it is necessary to
resolution we anticipated would prevent the addition of incremental
punishment.†(People v. Duff (2010) 50 Cal.4th 787, 796.) “‘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.’
[Citations.] [¶] A sentence must be imposed on each count, . . .†(People
v. Alford (2010) 180 Cal.App.4th 1463, 1468-1469.) “Therefore, although defendant was validly
convicted of that count, no sentence at all was imposed for it. This results in an unauthorized absence of
sentence.†(Id. at p. 1472.) Because the trial court in this case erred by
not orally pronouncing sentence on count 2 and applying a section 654 stay, the
court’s failure to impose a sentence was unauthorized. (Ibid.)
“As
for the remedy in this case, in which the trial court imposed an unauthorized
sentence by failing to sentence defendant on the theft count, we could remand
for a new sentencing hearing, . . . That would mean pulling defendant out of his
prison programming and busing him to [Riverside] for a new sentencing hearing
that will not change his actual prison time.
The futility and expense of such a course militates against it. Instead . . . we will exercise our
authority to modify the judgment. (§
1260.)†(People v. Alford, supra,
180 Cal.App.4th at p. 1473.)
We
impose a midterm sentence of two years for petty theft with a prior
theft-related conviction, because that is undoubtedly the sentence the trial
court would have imposed. (See
§ 1170, subd. (h).) And,
because the theft involved the same conduct as the burglary, we will stay
execution of the theft sentence (count 2).
(§ 654.)
III
DISPOSITION
The
judgment is modified by imposing and staying the sentence for petty theft with
a prior theft conviction (§§ 484, subd. (a), 666) (count 2) as described in
this opinion. The clerk of the superior
court is directed to prepare an amended abstract of judgment and to forward it
to the Department of Corrections and
Rehabilitation. As modified, the
judgment is affirmed.
NOT
TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.
We concur:
MILLER
J.
CODRINGTON
J.
name="_ftn1" title=""> [1] All further statutory references are to the
Penal Code unless otherwise indicated.
name="_ftn2" title=""> [2] As explained below, defendant actually pled
guilty to petty theft with a prior (§ 666, subd. (b)(1)) rather than petty
theft (§ 484, subd. (a)).
