P. v. Manila 5/30/06 CA5

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: F046611M

Case Date: 09/20/2006

Preview:IN THE

Court of Appeal of the State of California
IN AND FOR THE

Fifth Appellate District
THE PEOPLE, F046611 Plaintiff and Respondent, (Super. Ct. No. 122031) v. SITHIXAY MANILA, Defendant and Appellant. ORDER MODIFYING OPINION AND DENYING REHEARING

THE COURT IT IS ORDERED that the partially published opinion filed herein on April 28, 2006, be modified in the following particulars: 1. At the top of page 1, replace the notation CERTIFIED FOR PARTIAL

PUBLICATION with CERTIFIED FOR PUBLICATION and delete the footnote. 2. Delete the first paragraph of the opinion, beginning on page 1 and continuing on

page 2, and insert in its place the following paragraph: This case again raises the unsettled question of whether Penal Code section 654 requires the trial court to stay one of two sentences imposed for the same act where one of the sentences was for an enhancement, not a punishment for a freestanding offense. We hold that section 654 was applicable because the enhancement was based on defendant's conduct in committing the crime--not a status such as having a record of prior convictions. We also reject the People's argument that the two sentences were not based on a single indivisible course of conduct with a single objective, but accept the People's contention regarding which of the sentences must be stayed. We will order stayed the sentence for being a felon in possession of a firearm, which the court ordered to be served concurrently, and otherwise affirm the judgment. 3. Delete the first full paragraph on page 2.

4.

In the first sentence of the first full paragraph on page 4, delete the first instance

of the word "first," so that "we must first decide" becomes "we must decide." 5. On page 12, delete the last sentence (beginning "We agree with defendant's ... ")

of the first paragraph of section III. Insert in the following sentence in its place: We agree with the People's argument that the enhancement provision provided a longer potential term of imprisonment in this case, so the felon-in-possession sentence must be stayed. 6. Delete the first two full paragraphs on page 13. Insert in their place the following

two paragraphs: If these were the only pertinent provisions, the matter would be straightforward: The maximum under the felon-in-possession statute, applied in conjunction with the three strikes law, is one year longer than the maximum for the enhancement for being armed, so the latter should be stayed and the former should remain. It is also necessary, however, to take account of Penal Code section 1170.1. Section 1170.1 provides that when a defendant is convicted of two felonies and consecutive sentences are imposed, one sentence is deemed the principal term and one the subordinate term. The principal term is the "the greatest term of imprisonment imposed by the court for any of the crimes, including any term imposed for applicable specific enhancements." The subordinate term "shall consist of one-third of the middle term of imprisonment prescribed" for the consecutive offense, plus one-third of applicable specific enhancements. (

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