People v. Barela

¶1I concur.

¶2Section 654 provides in part: “An act or omission which is made punishable in different ways by different provisions of this code may be punished under either of such provisions, but in no case can it be punished under more than one; ...” Section 654 has been consistently interpreted to permit the court to punish, by imprisonment, for the lesser offense or less severely punishable offense and stay the execution of sentence for the greater offense. (See cases collected in People v. Mendevil (1978) 81 Cal.App.3d 84, 89 [146 Cal.Rptr. 65].)

¶3The amendment of section 1203.06 in 1975 prohibiting the granting of probation or the suspension of the execution or suspension of sentence did not expressly prohibit the staying of service of the sentence, but the implication is that it is included in the prohibition of section 1203.06. Nor did section 1203.06 expressly prohibit the application of section 654 to stay the *162greater or more severe sentence. We may presume that the Legislature enacted section 1203.06 with full knowledge of the interpretation that had been given to section 654 as illustrated in the cases cited in Mendevil, supra.

¶4As stated in Buckley v. Chadwick (1955) 45 Cal.2d 183, at page 200 [288 P.2d 12, 289 P.2d 242]: “It is a generally accepted principle that in adopting legislation the Legislature is presumed to have had knowledge of existing domestic judicial decisions and to have enacted and amended statutes in the light of such decisions as have a direct bearing upon them.” (Fn. omitted.)

¶5The Legislature in enacting section 1203.06 did not specifically address the situation where section 654 prohibits the service of two terms of imprisonment. Nor does section 1203.06 address the question of whether the trial court, in a section 654 situation, retains the option to impose sentence on the lesser crime or impose the less severe term. Given this lack of expression I conclude that section 1203.06, in a section 654 situation, does not require the trial court to sentence the defendant to the greater or more severe sentence. (See contra People v. Bradley (1981) 115 Cal.App.3d 744 [171 Cal.Rptr. 487].)

¶6The Legislature can express its intention clearly if it so desires. (See § 667.6, subd. (a) requiring consecutive sentence or merging terms; § 4501 et seq., expressly prohibiting concurrent sentences.) If there is any doubt about the interpretation or application of penal statutes the defendant is entitled to the benefit of every reasonable doubt. (People v. Ralph (1944) 24 Cal.2d 575 [150 P.2d 401].)

¶7See discussion and disposition in People v. Tanner (1979) 24 Cal.3d 514 [156 Cal.Rptr. 450, 596 P.2d 328], relating to section 1203.06 in both majority and concurring opinions.

¶8For the foregoing reasons, I would affirm the action of the trial court.