P. v. Monteverde
Filed 9/24/08 P. v. Monteverde CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE, Plaintiff and Respondent, v. JOSE MONTEVERDE, Defendant and Appellant. | H031351 (Santa Clara County Super. Ct. No. BB516010) ORDER MODIFYING OPINION AND DENYING REHEARING NO CHANGE IN THE JUDGMENT |
THE COURT:
It is ordered that the opinion filed herein on August 28, 2008, be modified as follows:
1. At the end of the second full paragraph on page 19, after the citation (People v. Ybarra (1988) 206 Cal.App.3d 546, 550.) add as footnote 12 the following footnote:
12 In a letter brief, defendant belatedly cited this courts decision in People v. Fry (1993) 19 Cal.App.4th 1334 (Fry). In Fry, the Attorney General conceded that section 654 precluded imposition of sentences for arson of a vehicle concurrent to a sentence of arson of a structure that contained the vehicle. (Id. at p. 1340.) Relying on Pearson, we modified the sentence that had been imposed (id. at p. 1341), though its execution had been stayed in favor of a grant of probation. (Id. at p. 1336.)
Fry would be relevant if a sentence had been imposed on defendant with its execution suspended. A defendant who claims sentencing error must raise that claim on appeal from the imposition of the sentence, though its execution is suspended in favor of probation. (People v. Howard (1997) 16 Cal.4th 1081, 1095; People v. Ramirez (2008) 159 Cal.App.4th 1412, 1421.) However, in this case imposition of sentence was suspended, so there is no sentence to challenge. The possible future application of section 654 requires speculation we decline to engage in.
There is no change in the judgment.
Appellants petition for rehearing is denied.
Dated: ____________________________________
RUSHING, P.J.
WE CONCUR:
_________________________________
PREMO, J.
_________________________________
ELIA, J.
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