Opinion
A148250
01-10-2017
THE PEOPLE, Plaintiff and Respondent, v. RONNIE THEODORE MEYER, SR., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Del Norte County Super. Ct. No. CRF159448)
Defendant Ronnie Theodore Meyer, Sr. was sentenced to eight years in state prison after a jury convicted him of conspiring to pass counterfeit bills. Defendant's sole contention on appeal is that his concurrent one-year jail term for a misdemeanor violation of passing counterfeit bills violates the proscription against being punished for both the conspiracy to commit a crime and the crime itself when the conspiracy had no objective apart from carrying out the substantive offense. We shall modify the sentence to stay execution of the one-year jail term but otherwise affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On September 30, 2015, defendant and his codefendant, Krystal Evans, exchanged counterfeit money with a face value of $600 for legal currency and goods at the Wayside Liquor Market in Crescent City. Evans was employed at the store as a clerk and was working the register that day. Another employee and the store's owner discovered the counterfeit bills in the register later that day after Evans had left work. Surveillance video recorded during Evans's shift showed defendant in the store at two different times during the day. The video showed defendant giving Evans a number of counterfeit bills in exchange for real money or goods on each occasion.
Defendant was charged with and convicted by a jury of one count of conspiring to pass counterfeit money (Pen. Code, § 182, 476) as well as one misdemeanor count of passing counterfeit money (§ 476). Defendant admitted suffering a prior serious felony conviction under the Three Strike's law (§ 1170.12) and three prior prison terms within the meaning of section 667.5, subdivision (b). Before sentencing, the trial court declined an invitation to dismiss the strike but did exercise its discretion to strike the additional punishment for one of the prior prison term enhancements. The court imposed an aggregate sentence of eight years in state prison, composed of the upper term of three years for conspiracy, doubled to six years because of the prior strike, plus one year for each of the two remaining prior prison term enhancements. The court also imposed a concurrent term of one year in county jail for the misdemeanor offense of passing counterfeit money. Defendant timely appealed.
Further statutory references are to the Penal Code. --------
DISCUSSION
Defendant contends the trial court erred in imposing a concurrent term for the misdemeanor offense of passing counterfeit money. The Attorney General concedes that the court erred and urges that we modify the sentence accordingly. The concession is well taken.
Section 654, subdivision (a) admonishes that an act 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 . . . be punished under more than one provision." The statute prohibits separate punishment for conspiracy to commit a crime and for the crime itself if the conspiracy contemplated " 'only the act performed in the substantive offense [citations], or when the substantive offenses are the means by which the conspiracy is carried out [citation].' " (People v. Vargas (2001) 91 Cal.App.4th 506, 571.) Thus, section 654 bars separate punishment for a conspiracy and the substantive offense when the conspiracy had no objective apart from carrying out the substantive offense. (See In re Cruz (1966) 64 Cal.2d 178, 180-181; People v. Briones (2008) 167 Cal.App.4th 524, 529; see also People v. Lawley (2002) 27 Cal.4th 102, 171.)
When section 654 applies to a particular count, imposition of a concurrent sentence for that count is improper. (People v. Dydouangphan (2012) 211 Cal.App.4th 772, 779.) Instead, the trial court must impose sentence on that count and then stay execution of the sentence. (Ibid.)
Here, defendant and Evans conspired to pass counterfeit money and exchanged real money and goods for the counterfeit money. Defendant's criminal conduct did not go beyond that contemplated by the conspiracy, and both crimes shared the same objective, which was to pass counterfeit money. Section 654 thus precludes separate punishment in this case for conspiring to pass and passing counterfeit money. The trial court should have imposed but stayed execution of the punishment for the misdemeanor offense. (People v. Dydouangphan, supra, 211 Cal.App.4th at p. 779.)
The Attorney General acknowledges that we could remand the matter for resentencing but urges instead that we exercise our authority to modify the sentence. (See § 1260 [authority to modify unauthorized sentence].) Where, as here, the correction of the section 654 error will not change defendant's aggregate sentence, we agree that it is appropriate and serves the interests of judicial economy to modify the sentence without a remand. (See People v. Burns (1984) 158 Cal.App.3d 1178, 1184 [staying execution of penalty for lesser offense is preferred remedy for section 654 violation where effect on aggregate sentence is minor].)
DISPOSITION
The sentence is modified to stay the one-year concurrent term for passing counterfeit bills (§ 476; count two) pursuant to section 654. The trial court is directed to prepare a corrected abstract of judgment in accordance with the disposition and forward a certified copy of the corrected abstract of judgment to the California Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
/s/_________
McGuiness, P.J. We concur: /s/_________
Pollak, J. /s/_________
Jenkins, J.