Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 04F04679
BLEASE, Acting P. J.
Following his conviction for two counts of second degree robbery (Pen. Code, § 211), each with a personal use of a firearm enhancement (§ 12022.53, subd. (b)), and one misdemeanor count of carrying a concealed weapon (§ 12025, subd. (a)(2)), defendant Wayne Walen Thomas was sentenced to an aggregate term of 13 years in prison. This term consisted of the middle term of three years on one of the second degree robbery counts and a consecutive 10-year sentence for the personal firearm use enhancement attendant to that count. The court imposed an identical concurrent sentence on the second burglary count and personal use enhancement. In addition, on the misdemeanor possession of a firearm, the court imposed a “[m]iddle term of two years, eight months of which will be run concurrently.” On appeal, defendant contends the felony sentence imposed on the misdemeanor possession count must be reversed and remanded to the trial court for resentencing. The People properly concede this point. We shall accept the concession and remand the matter for resentencing on the misdemeanor conviction.
Further undesignated statutory references are to the Penal Code.
Because of the nature of the issues raised on appeal, the facts are only briefly recounted here.
On the evening of May 25, 2004, defendant went into the Payless Shoe Source wearing a hooded sweatshirt, dark sunglasses gloves, and a hat. Two employees were in the store at the time, Shandi Kayson and Cynthia Garcia. Kayson and Garcia were standing next to each other when defendant came in the store. As Kayson turned to greet defendant, he pulled out a gun, pointed it at her and demanded she give him the money in the cash register. Kayson moved to the cash register, while defendant ordered Garcia to sit down.
Kayson activated the silent alarm button in her apron. She also took the money from the cash register and put it into a Payless Shoe Source bag. Defendant asked Kayson about safes in the store. He told her to open one of the safes and give him the money in it. There is a 10 minute time delay on the safes, so after entering her code for the first safe, Kayson informed defendant it would be 10 minutes before she could open the second safe. Defendant said he would wait.
While waiting, defendant told Kayson people would be watching the store after he left, and if she called 9-1-1, set off alarms or anything else, those watching the store would put “holes in [her] head.” He appeared angry and Kayson took him seriously. When the 10 minutes had elapsed, Kayson heard a helicopter. She went to open the second safe and defendant ran out the front door.
Defendant was apprehended as he was leaving the store, by officers who had responded to the silent alarm call. A search of defendant revealed a semi-automatic pistol and a Payless Shoe Source bag with money in it. Kayson and Garcia both identified defendant as the man who had robbed them.
PROCEDURAL HISTORY
Defendant was charged with second degree robbery of Shandi Kayson and Payless Shoe Source and personal use of a firearm while committing the offense (Count 1). He was also charged with second degree robbery of Cynthia Garcia and Payless Shoe Source and personal use of a firearm while committing the offense (count 2). Count 3 charged defendant with misdemeanor carrying a concealed weapon. Following a jury trial, defendant was found guilty as charged on all counts, including both firearm enhancements.
The information actually named Shandi Hayden as the victim in count 1. At the time of trial, Shandi’s last name was changed from Hayden to Kayson.
The court selected count 1 as the principal term and sentenced defendant to the middle term of three years and a consecutive 10 years for the personal use of a firearm enhancement. The court imposed an identical sentence for count 2, run concurrently. On count 3, the court described it as a misdemeanor, but imposed a sentence of the “middle term of two years, eight months of which will be run concurrently.” Various fines and fees were also imposed.
DISCUSSION
I.
Defendant contends his sentence on count 3 must be reversed and remanded for resentencing, because the misdemeanor count was sentenced as a felony. The People properly concede this point. We shall accept the concession.
Defendant was charged with a misdemeanor count of carrying a concealed weapon on his person. (§ 12025, subd. (a)(2).) Under section 12025, subdivision (b), the maximum punishment which could be imposed upon defendant was “imprisonment in a county jail not to exceed one year, by a fine not to exceed one thousand dollars ($1,000), or by both that imprisonment and fine.” (§ 12025, subd. (b)(7).) The record clearly demonstrates that the court imposed a greater felony sentence of two years upon defendant. In so doing, the court imposed an unauthorized sentence. Accordingly, we shall vacate the sentence on count 3 and remand the matter to the trial court for resentencing. (People v. Massengale (1970) 10 Cal.App.3d 689, 693.)
II.
Defendant alternatively contends that if the case were not remanded for resentencing, the sentence should be stayed pursuant to section 654. The People respond that section 654 does not require the sentence on count 3 to be stayed. Although we are remanding the matter for resentencing, to avoid confusion, we will note our agreement with defendant that the sentence for the misdemeanor count should be stayed under section 654.
Penal Code section 654 provides in pertinent part: “An 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.” The purpose of section 654 is to ensure that a defendant’s punishment is commensurate with his culpability and that he is not punished more than once for what is essentially one criminal act. (People v. Latimer (1993) 5 Cal.4th 1203, 1211.) Section 654, subdivision (a), applies to multiple offenses if all of them “were merely incidental to, or were the means of accomplishing or facilitating one objective,” as a consequence of which the trial court could find that the defendant “harbored a single intent.” (People v. Harrison (1989) 48 Cal.3d 321, 335.)
As a general rule, “a defendant may not be punished both for possession of aweapon and for another offense in which the weapon is used, where the evidence does not show possession for any other purpose.” (People v. Jurado (1972) 25 Cal.App.3d 1027, 1033.) If, on the other hand, there is evidence the defendant possessed the weapon for some purpose other than committing the offense in which it was used, section 654, subdivision (a), does not apply. (People v. Jones (2002) 103 Cal.App.4th 1139, 1143.) Put another way, “‘[W]here the evidence shows a possession distinctly antecedent and separate from the primary offense, punishment on both crimes has been approved. [Citations.] On the other hand, where the evidence shows a possession only in conjunction with the primary offense, then punishment for the illegal possession of the firearm has been held to be improper where it is the lesser offense. [Citations.]’” (People v. Cruz (1978) 83 Cal.App.3d 308, 332-333.)
Here, there was no evidence defendant possessed the concealed gun for any purpose other than robbing the shoe store. Nor is there any evidence defendant possessed the concealed weapon at any time or place other than immediately prior to robbing the shoe store. No evidence was produced to support a finding that defendant may have possessed the concealed gun for different purposes or formed a separate intent and objective for each offense. This was one indivisible transaction and essentially one criminal act. The possession of the concealed weapon was effectuated only in conjunction with the primary offenses of robbery and the enhancement of being personally armed during the commission of that robbery. Accordingly, the sentence for the section 12025 conviction must be stayed pursuant to section 654.
DISPOSITION
The sentence on count 3 is vacated and the matter remanded to the trial court for resentencing on count 3. In all other respects, the judgment is affirmed.
We concur: DAVIS , J., NICHOLSON , J.