Opinion
NOT TO BE PUBLISHED
Los Angeles County Super. Ct. No. NA071779, Joan Comparet-Cassani, Judge
ORDER MODIFYING OPINION AND DENYING REHEARING
THE COURT:
IT IS ORDERED that the opinion filed herein on July 6, 2010, be modified in the following particulars:
On pages 19 to 20, delete the text beginning with the second full paragraph under “Correction of the Abstract of Judgment” through and including the Disposition and replace it with the following:
The Attorney General contends that the abstract of judgment improperly reflects the judgment in two other respects and should be amended. We agree that a correction is required because the abstract of judgment fails to contain a reference to the one-year section 12022, subdivision (a)(1) enhancement in count 1. (People v. Mitchell (2001) 26 Cal.4th 181, 185-186.) In asserting another clerical error surrounding the imposition of count 2, the Attorney General overlooks the rule that the imposition of terms for felony murder and its underlying offense constitute multiple punishment. (People v. Holt (1997) 15 Cal.4th 619, 692 [terms for the underlying offenses of rape robbery and burglary properly ordered stayed where defendant was also convicted of felony murder]; People v. Wader (1993) 5 Cal.4th 610, 670 [term imposed for robbery properly stayed where defendant also convicted of felony murder based on the commission of that offense]; see People v. Price (1991) 1 Cal.4th 324, 491.) Flint was found guilty of first degree murder only on a theory that he shot Rosa during the course of an attempted robbery and committed felony murder. Rather than amending the abstract of judgment, section 654 requires that we modify the judgment to stay the three-year term imposed for attempted robbery. (See People v. Osband (1996) 13 Cal.4th 622, 730.) We make that order.
Section 654, subdivision (a) provides that “[a]n act or omission that is 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 or omission be punished under more than one provision. An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other.”
This point was not raised in the trial court and only in Flint’s reply brief. There is no forfeiture, however, as by failing to stay the three-year term pursuant to section 654, the trial court acted in excess of its jurisdiction and imposed an unauthorized sentence. (People v. Hester (2000) 22 Cal.4th 290, 294-295.)
DISPOSITION
The judgment is modified to impose court security fees in the amount of $40 ($20 for each of two convictions) and to stay the term imposed for count 2, attempted robbery, pursuant to section 654. The total term imposed is 26 years to life, consisting of a term of 25 years to life for the count 1 first degree murder, enhanced by one year pursuant to section 12022, subdivision (a)(1). As modified, the judgment is affirmed.
The superior court shall cause its clerk to prepare and send to the Department of Corrections and Rehabilitation an amended abstract of judgment setting out the judgment, as modified.
This modification effects a change in the judgment.
Appellant’s petition for rehearing is denied.
MALLANO, P. J., ROTHSCHILD, J., CHANEY, J.