Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. 5-070366-0
Richman, J.
A jury convicted defendant Lucciano Dupes of reckless driving while evading a peace officer (Veh. Code, § 2800.2, subd. (a)), vehicle theft (Veh. Code, § 10851, subd. (a)), and receiving a motor vehicle he knew to be stolen (Pen. Code, § 496). The trial court sentenced him to state prison for a total term of two years. On this timely appeal, defendant raises a single claim of sentencing error; that “the abstract of judgment should be amended to delete any reference to concurrent terms” for the theft and stolen property counts. We find no error, and affirm.
BACKGROUND
Defendant’s sole claim of error does not challenge the sufficiency of the evidence to support the jury’s verdicts. Only the briefest recital of the underlying crimes is therefore required.
On the evening of February 2, 2007, José Peña was driving a friend’s car in Richmond. When he stopped the car at one point, a man with a hooded jacket, and accompanied bye a woman, came up to the car. A gun was pointed, possession of the car demanded, and the car taken. Peña promptly reported the theft to police.
Several hours later, Richmond Police Officer Silva spotted the vehicle, which was reported as stolen. Silva followed the car, which he observed was being driven by defendant. Silva called for assistance. Silva observed the car run a red light and attain dangerously excessive speed. Silva then activated his emergency lights and siren, and began a high speed pursuit. Another police vehicle joined the chase, as did a police helicopter. After running two more stop lights, the pursued vehicle started driving eastbound in the westbound lanes of a freeway. Due to the danger, Silva discontinued the chase. The helicopter continued to follow the stolen car, which was soon abandoned and found by Silva on a highway onramp. Officer Cooper detained defendant in Pinole; Silva came to the scene of the detention and identified defendant.
The sentencing hearing commenced on June 15, 2007, with the court hearing argument on defendant’s request that he be admitted to probation. However, desiring “more input,” the court referred defendant to the Department of Corrections and Rehabilitation for a diagnostic report pursuant to Penal Code section 1203.03.
The hearing resumed on October 5, 2007. After denying defendant’s request for probation, the trial court imposed sentence as follows:
“I’m going to sentence Mr. Dupes to the mid-term of two years on Count 1. [¶] And the mid-term on Count 2 also of two years to run concurrent—actually, that should be stayed pursuant to Penal Code section 654. [¶] As well as Count 3, the mid-term of two years, stayed pursuant to Penal Code section 654, for an aggregate term of two years State Prison.”
DISCUSSION
The abstract of judgment has large “X”s in columns showing that defendant was sentenced to two-year concurrent terms of imprisonment for the theft and the receiving counts, and also that each of these terms was stayed pursuant to Penal Code section 654. This is what defendant perceives as error requiring amendment of the abstract.
As he sees it: “Here, there is no question the court stayed the terms on counts 2 and 3, under section 654 rather than running them concurrently. In fact, a term cannot be imposed concurrently and simultaneously stayed under section 654. (People v. Lopez (2004) 119 Cal.App.4th 132, 137, citing People v. Miller (1977) 18 Cal.3d 873, 887 [where applicable, section 654 precludes imposition of concurrent sentence]; see also People v. Britt (2004) 32 Cal.4th 944, 951-954.) Therefore, to avoid any possible confusion on the part of the Department of Corrections and Rehabilitation as to appellant’s actual sentence, appellant requests that this court order the superior court to prepare an amended abstract of judgment, deleting the references to concurrent terms on counts 2 and 3.”
It is true that in one of the authorities cited by defendant, our Supreme Court did state: “Section 654 when applicable precludes punishment ‘under’ more than one criminal provision. It has long been established that the imposition of concurrent sentences is precluded by section 654 [citations] because the defendant is deemed to be subjected to the term of both sentences although they are served simultaneously.” (People v. Miller, supra, 18 Cal.3d 873, 887.) However, the court at the same time also stated: “When a defendant suffers multiple convictions, sentencing for some of which is precluded by operation of section 654, an acceptable procedure is to sentence defendant for each count and stay execution of sentence on certain of the convictions to which section 654 is applicable.” (Id. at p. 886.)
The Attorney General focuses upon the latter excerpt as demonstrating that it was proper to order the sentences, even though stayed pursuant to section 654, to run concurrently. We agree. Miller describes a sentencing formula, namely, impose sentence and then stay execution of that sentence, but do not make it concurrent unless stayed. And it appears that the court is adhering to this approach. Thus, in one of the authorities cited by the Attorney General, the court stated: “Section 654 precludes multiple punishment for a single act or omission, or an indivisible course of conduct. [Citations.] If, for example, a defendant suffers two convictions, punishment for one of which is precluded by section 654, that section requires the sentence for one conviction to be imposed, and the other imposed and then stayed. [Citation.] Section 654 does not allow any multiple punishment, including either concurrent or consecutive sentences.” (People v. Deloza (1998) 18 Cal.4th 585, 591-592, twice citing Miller.)
Although the practical import appears close to nil, it does appear that there is a distinction to which the Supreme Court has held and continues to hold. Any overlap of sentences, even if purely abstract, qualifies as the “multiple” punishment forbidden by section 654. But if sentence is imposed and then stayed, there is no sentence overlap and thus no multiple punishment. This is demonstrated by People v. Lopez, supra, 119 Cal.App.4th 132, cited by defendant. The defendant there was convicted of unlawfully possessing a firearm and a particular type of ammunition. The ammunition was found in the firearm. The trial court imposed concurrent sentences. The Court of Appeal sustained the defendant’s argument that section 654 applied. The relief ordered was squarely in line with Miller: “The six-year concurrent sentence for count 2, unlawful possession of ammunition, is stayed pending finality of judgment and service of sentence on count 1, such stay to become permanent upon completion of sentence as to count 1.” (Id. at pp. 137-139, italics added.) Thus, Lopez does not support defendant’s assertion that “a term cannot be imposed concurrently and simultaneously stayed under section 654.” By contrast, defendant does not cite a single decision where a reviewing court granted precisely the relief he now seeks.
There is no section 654 problem with concurrent sentences if those sentences are stayed. As that is precisely the procedure used here, there was no error.
DISPOSITION
The judgment of conviction is affirmed.
We concur: Kline, P.J.; Lambden, J.