Opinion
C055498
4-16-2008
THE PEOPLE, Plaintiff and Respondent, v. ALVIN JEROME COX, Defendant and Appellant.
NOT TO BE PUBLISHED
This case has returned to us after we remanded it for resentencing. (People v. Cox (Nov. 30, 2006, C051474) [nonpub. opn.] (Cox I).) In the underlying prosecution, defendant entered guilty pleas to two counts of second degree commercial burglary, one count of petty theft with a prior theft conviction, and one count of attempted theft, a misdemeanor. In Cox I, we affirmed his convictions, but modified the judgment "such that count two (petty theft with a prior) and count four (misdemeanor attempted theft) are stayed [pursuant to Penal Code section 654]." We then remanded the matter to the trial court "to pronounce a term as to count four, and to further dispose of the enhancements according to this opinion and give its reasons therefor on the record."
On resentencing, when the trial court pronounced sentence on count four, it "order[ed] the defendant to serve 180 days in the county jail . . . . The 180 days will be concurrent with the prison term that he is currently serving." It did not stay the sentence on count four, as this court directed in our opinion in Cox I.
On appeal, defendant asks that we remand again to the trial court, with an order that it comply with our opinion in Cox I. The People concede the trial court erred and we accept the concession. The trial courts sentence on count four exceeded the scope of the remand.
It is not necessary, however, to again return the matter to the trial court. We will strike that portion of the judgment ordering that the sentence on count four is to be served concurrently with the prison term defendant is now serving and order the sentence on count four stayed.
DISPOSITION
The judgment is modified by staying the sentence on count four pursuant to Penal Code section 654. As modified, the judgment is affirmed. The trial court shall amend the abstract of judgment to reflect the sentence imposed on count four and, further, to reflect that imposition of that sentence is stayed pursuant to Penal Code section 654. The trial court shall then forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation.
We concur:
SCOTLAND, P.J.
BLEASE, J.