Filed 3/27/14


                  CERTIFIED FOR PARTIAL PUBLICATION*
                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                             FIRST APPELLATE DISTRICT

                                     DIVISION FIVE



THE PEOPLE,
        Plaintiff and Respondent,                     A135616
                  v.
ANTHONY BREWER,                                       (Contra Costa County
                                                      Super. Ct. No. 05-110750-7)
        Defendant and Appellant.

        Appellant Anthony Brewer was convicted, after a jury trial, of first degree
residential burglary (Pen. Code, §§ 459, 460, subd. (a); count one); assault with intent to
commit forcible sodomy, sexual penetration, and/or oral copulation during the course of a
burglary (id., § 220, subd. (b); count two); and false imprisonment by means of violence,
menace, fraud, or deceit (id., §§ 236, 237, subd. (a); count three).1 He argues on appeal
his conviction on count two lacks substantial evidence; he also asserts certain errors in his
sentence.
        In the published portion of this opinion, we address the following issue: Where a
defendant has served a prison term for a felony conviction and that term is alleged and
proved as an enhancement under section 667.5, subdivisions (a) and (b) (hereafter
sections 667.5(a) and 667.5(b)), after imposing the former, should the trial court stay the
latter or strike it? We conclude the court must stay the section 667.5(b) enhancement and

*   Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is
certified for publication with the exception of parts I., III., and IV.
1   All undesignated section references are to the Penal Code.
                                             1
affirm the decision to do so by the trial court, though we rely on different reasoning. In
the unpublished portion of the opinion, we reject appellant’s other contentions, save for
correcting one minor sentencing error and, as so modified, affirm.
                                     BACKGROUND
A. Charged Offenses
       The counts arose from an incident on February 20, 2011. The victim, John Doe,
was casually acquainted with appellant through a former college classmate of Doe’s. The
relationship between Doe and appellant had never been romantic or sexual.2 At the time
of the incident, Doe had neither seen nor had phone contact with appellant in seven
months.
       In the early morning hours on the date in question, Doe was in bed watching
television. Appellant broke into Doe’s house through the back door, entered Doe’s
bedroom, closed the door, and began to remove his own clothes. Doe asked appellant to
leave, but appellant continued removing his clothes. Doe tried to push appellant out of
the room but appellant, stronger and bigger than Doe, pushed Doe back onto the bed.
Appellant finished removing his clothes and climbed on top of Doe. Doe told appellant
to get off of him and to get out; appellant told Doe, “I have to do this,” “I’m going to get
you tonight,” and “Don’t move.” Doe was able to push appellant off of him, but
appellant kept trying to climb back on top of Doe and to kiss him, touch him, and put his
hand under Doe’s shorts.
       Appellant smelled of alcohol and eventually started to pass out on Doe’s bed. Doe
did not leave the room because appellant kept waking up. Eventually, Doe was able to
text a friend who called the police. Shortly thereafter, Doe escaped. The police
encountered appellant as he was leaving Doe’s bedroom.




2  Appellant’s trial testimony conflicted with Doe’s in some respects. However, when
reviewing for substantial evidence, we “ ‘ “review the whole record in the light most
favorable to the judgment below.” ’ ” (People v. Maury (2003) 30 Cal.4th 342, 396
(Maury).) Our recitation of the facts reflects this standard of review.
                                              2
       In appellant’s testimony at trial, he admitted entering Doe’s bedroom, removing
his clothes, and trying to kiss Doe. However, he claimed he wanted only a consensual
encounter with Doe.
B. Prior Incident
       S.Y. testified to an incident taking place in January 1989, when she was 15 years
old. About 4:00 a.m., she was alone in a bedroom of her house. Appellant, whom she
did not know and who had broken into her house through a window, entered the
bedroom, naked and carrying a kitchen knife. Appellant told her he was not there to hurt
her, but told her multiple times to remove her clothes. Her little brother knocked on the
bedroom door and appellant told her, “If you don’t want your brother hurt, you better tell
him to get away.” S.Y. told her brother to leave. Appellant told her again he was not
there to hurt her and gave her the knife. He then tried to retrieve the knife and they
wrestled. S.Y. broke free, left the bedroom, and woke her mother. Appellant ran out of
the house and the police apprehended him shortly thereafter.
       In appellant’s testimony about the 1989 incident, he admitted having the intent to
rape S.Y.
                                       DISCUSSION
I. Substantial Evidence Supports the Conviction on Count Two
       Appellant contends the evidence showed only an intent to sexually batter Doe, but
did not show an intent to commit sodomy, sexual penetration, or oral copulation.
       “In reviewing a criminal conviction challenged as lacking evidentiary support,
‘ “the court must review the whole record in the light most favorable to the judgment
below to determine whether it discloses substantial evidence — that is, evidence which is
reasonable, credible, and of solid value — such that a reasonable trier of fact could find
the defendant guilty beyond a reasonable doubt.” ’ [Citation.] The same standard of
review applies to cases in which the prosecution relies mainly on circumstantial evidence
[citation] . . . . An appellate court must accept logical inferences that the jury might have


   See footnote, ante, page 1.
                                              3
drawn from the circumstantial evidence. [Citation.]” (Maury, supra, 30 Cal.4th at
p. 396.)
       Section 220 penalizes “[a]ny person who, in the commission of a burglary of the
first degree . . . assaults another with intent to commit rape, sodomy, oral copulation, or
. . . [forcible sexual penetration].” (§§ 220, subd. (b), 289.) “ ‘ “The essential element of
[assault with intent to commit rape] is the intent to commit the act against the will of the
complainant. The offense is complete if at any moment during the assault the accused
intends to use whatever force may be required.” ’ [Citation] ‘ “[I]f there is evidence of
the former intent and acts attendant to the execution of that intent, the abandonment of
that intent before consummation of the act will not erase the felonious nature of the
assault.” ’ [Citation.]” (Maury, supra, 30 Cal.4th at pp. 399-400.)
       Appellant relies on three cases, one finding no evidence of intent to rape and two
finding such evidence; he argues his case is closer to the former than the latter. In People
v. Greene (1973) 34 Cal.App.3d 622 (Greene), the defendant approached the victim and
put his arm around her waist, telling her, “ ‘Don’t be afraid. I have a gun. Don’t
move,’ ” and “ ‘I just want to play with you.’ ” (Id. at p. 650.) He moved his hand up
and down her waistline but did not try to remove her clothes; he also remained fully
dressed. (Ibid.) After a few minutes the victim pulled away and escaped. (Ibid.) The
court found this evidence did not support a finding the defendant had an intent to rape the
victim. (Id. at p. 653.)
       In People v. Bradley (1993) 15 Cal.App.4th 1144 (Bradley), disapproved on other
grounds in People v. Rayford (1994) 9 Cal.4th 1, 21-22, the defendant took the victim’s
arm and forcibly led her to a secluded area; kissed her neck; and put his hand under her
shirt and shorts, touching her breasts and near her genitals. (Bradley, at p. 1155.) The
defendant’s companion said he would not mind “getting a piece of that,” and the
defendant replied, “ ‘Don’t worry, I will.’ ” (Ibid.) When car headlights shone nearby,
the victim kicked the defendant in the shin and he fled. (Id. at p. 1150.) The court found
“ample” evidence supporting the finding the defendant intended to rape the victim. (Id.
at p. 1155.)

                                              4
       Finally, in People v. Craig (1994) 25 Cal.App.4th 1593 (Craig), the defendant
confronted the victim as she got out of her car, grabbed her hair, pushed her back into the
driver’s seat, put his hand under her shirt, and touched her breasts. (Id. at p. 1596.) At
that point someone was alerted to the struggle and pulled the defendant off the victim.
(Ibid.) In a prior “similar” incident, the defendant told another victim, “ ‘come with me
now, or I’ll do it here, now’ ” and “ ‘I want you now,’ ” and put his hand up the victim’s
skirt. (Id. at p. 1600.) The court compared the case to Greene and Bradley and
concluded it was closer to Bradley: in both Craig and Bradley, the defendants made
statements indicating a desire for intercourse; the defendants’ physical acts suggested
they were preliminary to intercourse; and the incidents only ended because of an
intervening force. (Craig, at pp. 1599-1600.) The court concluded, while other
reasonable inferences might be drawn from the evidence, the jury’s inference that the
defendant intended to commit rape was reasonable. (Id. at p. 1604.)
       Contrary to appellant’s contention, this case aligns with Bradley and Craig, not
with Greene. Appellant told Doe, “I have to do this,” “I’m going to get you tonight,” and
“Don’t move” — words consistent with an intent to commit sodomy, sexual penetration,
or oral copulation. Appellant removed all of his clothes, pushed Doe onto the bed,
climbed on top of Doe, kissed and touched him, and put his hand under Doe’s shorts —
physical acts consistent with such an intent. Appellant was apparently only deterred from
continuing this conduct because he passed out from alcohol consumption.
       Moreover, in the 1989 incident, appellant, naked and carrying a knife, told S.Y. to
remove her clothes; at trial, he admitted he intended to rape her. “We have long
recognized ‘that if a person acts similarly in similar situations, he probably harbors the
same intent in each instance’ [citations], and that such prior conduct may be relevant
circumstantial evidence of the actor’s most recent intent.” (People v. Robbins (1988) 45
Cal.3d 867, 879; see also Evid. Code, § 1101, subd. (b).) In addition, “jurors may ‘infer
the defendant has a disposition to commit sex crimes from evidence the defendant has
committed other sex offenses,’ and . . . ‘may . . . infer from this predisposition that the


                                              5
defendant was likely to commit and did commit the charged offense.’ [Citation.]”
(People v. Villatoro (2012) 54 Cal.4th 1152, 1166-1167; see also Evid. Code, § 1108.)3
       Substantial evidence supports the jury’s verdict on count two.
II. Sentencing on Section 667.5(b) Enhancements
       The information alleged two enhancements pursuant to section 667.5(a) based on
prior prison terms imposed after violent felony convictions in 1989 and 2002,
respectively. Section 667.5(a) authorizes a three-year enhancement “for each prior
separate” term of imprisonment served, if one of the current offenses and an offense for
which that prior separate term of imprisonment was served are enumerated violent
felonies, unless a certain “washout” period applies.4 The information also alleged two
enhancements pursuant to section 667.5(b) based on prior prison terms imposed after the
1989 and 2002 felony convictions. Section 667.5(b) similarly authorizes, “[e]xcept
where subdivision (a) applies,” a one-year enhancement “for each prior separate” term of
imprisonment served, if one of the current offenses and an offense for which that prior
separate term of imprisonment was served are felonies.5 One of these felonies may but
need not be a violent felony covered by section 667.5(a).


3  Appellant does not challenge the trial court’s ruling that evidence of the 1989 incident
was admissible for these purposes.
4   Section 667.5(a) provides: “Where one of the new offenses is one of the violent
felonies specified in subdivision (c), in addition to and consecutive to any other prison
terms therefor, the court shall impose a three-year term for each prior separate prison
term served by the defendant where the prior offense was one of the violent felonies
specified in subdivision (c). However, no additional term shall be imposed under this
subdivision for any prison term served prior to a period of 10 years in which the
defendant remained free of both prison custody and the commission of an offense which
results in a felony conviction.”
5   Section 667.5(b) provides: “Except where subdivision (a) applies, where the new
offense is any felony for which a prison sentence or a sentence of imprisonment in a
county jail under subdivision (h) of Section 1170 is imposed or is not suspended, in
addition and consecutive to any other sentence therefor, the court shall impose a one-year
term for each prior separate prison term or county jail term imposed under subdivision (h)
of Section 1170 or when sentence is not suspended for any felony; provided that no
additional term shall be imposed under this subdivision for any prison term or county jail
                                             6
       All four section 667.5 enhancement allegations were found true. The trial court
imposed sentence on the two section 667.5(a) enhancements and stayed sentence on the
two section 667.5(b) enhancements pursuant to section 654. Initially, appellant argued
on appeal the section 667.5(b) enhancements should have been stricken because the trial
court had no authority to stay them under section 654, and the People conceded the
section 667.5(b) enhancements should be stricken. Because we were hesitant to accept
the concession, we ordered supplemental briefing. In that briefing, both appellant and the
People concluded the trial court’s decision to stay the enhancements should be affirmed.
We agree with this conclusion.
       It is clear that the section 667.5(b) enhancements in this case are prohibited by
law. First, these enhancements were imposed for the same prison terms that served as the
basis for the enhancements alleged under section 667.5(a). Section 667.5, subdivision
(g), “indicates after a defendant is committed to state prison, additional concurrent or
consecutive sentences imposed in the same or subsequent proceedings are deemed to be
part of the same prison term. [Citations.] Generally, the number of separate prison terms
available for enhancement is determined by identifying the ‘continuous completed’ terms
of prison incarceration served. [Citations.] For example, multiple prior convictions
served concurrently constitute one separate prison term for which only one sentence
enhancement can be imposed. [Citations.]” (People v. Cardenas (1987) 192 Cal.App.3d
51, 56.) Here, the two section 667.5(a) enhancements were based on prison terms served
after convictions on May 15, 1989, and June 17, 2002, respectively. The two section
667.5(b) enhancements were based on prison terms served after convictions on the same



term imposed under subdivision (h) of Section 1170 or when sentence is not suspended
prior to a period of five years in which the defendant remained free of both the
commission of an offense which results in a felony conviction, and prison custody or the
imposition of a term of jail custody imposed under subdivision (h) of Section 1170 or any
felony sentence that is not suspended. A term imposed under the provisions of paragraph
(5) of subdivision (h) of Section 1170, wherein a portion of the term is suspended by the
court to allow mandatory supervision, shall qualify as a prior county jail term for the
purposes of the one-year enhancement.”
                                             7
dates. The conviction records show only two continuous prison terms imposed in 1989
and 2002, respectively.
       Second, under the express language of section 667.5(b), because the trial court
imposed sentence for the section 667.5(a) enhancements based on these prison terms,
sentence for the section 667.5(b) enhancements based on the same prison terms was not
allowed. (§ 667.5(b) [enhancement pursuant to subd. (b) authorized “[e]xcept where
subdivison (a) applies”].)
       The trial court erroneously stayed the section 667.5(b) enhancements pursuant to
section 654 because section 654 does not apply to prior prison term enhancements that
focus on a defendant’s status as a repeat offender rather than on the acts underlying the
convictions. (People v. Coronado (1995) 12 Cal.4th 145, 157-158.) Further, “[t]he trial
court has no authority to stay an enhancement, rather than strike it . . . when the only
basis for doing either is its own discretionary sense of justice. [Citations.]” (People v.
Lopez (2004) 119 Cal.App.4th 355, 364 (Lopez).) However, California Rules of Court,
rule 4.447 (rule 4.447) expressly authorizes a stay of an enhancement when “an
enhancement that otherwise would have to be either imposed or stricken is barred by an
overriding statutory prohibition. In that situation — and that situation only — the trial
court can and should stay the enhancement.” (Lopez, supra, at p. 365.)6 “This rule is
intended ‘to avoid violating a statutory prohibition or exceeding a statutory limitation,
while preserving the possibility of imposition of the stayed portion should a reversal on
appeal reduce the unstayed portion of the sentence. [Citation.]’ [Citation.]” (Id. at
p. 364.) As the section 667.5(b) enhancements were precluded by statute, rule 4.447
authorizes the trial court’s stay. This approach serves the purpose of rule 4.447 by


6   Rule 4.447 provides: “No finding of an enhancement may be stricken or dismissed
because imposition of the term either is prohibited by law or exceeds limitations on the
imposition of multiple enhancements. The sentencing judge must impose sentence for
the aggregate term of imprisonment computed without reference to those prohibitions and
limitations, and must thereupon stay execution of so much of the term as is prohibited or
exceeds the applicable limit. The stay will become permanent on the defendant’s service
of the portion of the sentence not stayed.”
                                              8
allowing for the imposition of the stayed sentence if, for example, the qualifying section
667.5(a) felonies are reversed on appeal. (Lopez, supra, at p. 365 [“it is the possibility
that the actual sentence may be invalidated that requires the trial court to stay, rather than
dismiss, the prohibited portion of the sentence”]; People v. Walker (2006) 139
Cal.App.4th 782, 794, fn. 9; Couzens, Bigelow & Prickett, Sentencing California Crimes
(The Rutter Group 2013) § 12:5, pp. 12-17 to 12-18 [“If a defendant is found to have
both a prior prison term under section 667.5(b) and a prior serious felony enhancement
under section 667(a) for the same offense, . . . likely the better practice is to impose, then
stay, any lesser enhancement”].)
       People v. Gonzalez (2008) 43 Cal.4th 1118 (Gonzalez) is instructive. In Gonzalez,
the defendant was convicted of attempted premeditated murder (§§ 187, 664), and the
jury found true the firearm enhancement in section 12022.5, former subdivision (a)(1)7
and the firearm enhancements of subdivisions (b), (c), and (d) of section 12022.53.8


7   Section 12022.5, former subdivision (a)(1) provided: “Except as provided in
subdivisions (b) and (c), any person who personally uses a firearm in the commission or
attempted commission of a felony shall, upon conviction of that felony or attempted
felony, in addition and consecutive to the punishment prescribed for the felony or
attempted felony of which he or she has been convicted, be punished by an additional
term of imprisonment in the state prison for 3, 4, or 10 years, unless use of a firearm is an
element of the offense of which he or she was convicted.” (Stats. 1999, ch. 129, § 5,
p. 1803.)
8   Subdivisions (b), (c), and (d) of section 12022.53 provide:
    “(b) Notwithstanding any other provision of law, any person who, in the commission
of a felony specified in subdivision (a), personally uses a firearm, shall be punished by an
additional and consecutive term of imprisonment in the state prison for 10 years. The
firearm need not be operable or loaded for this enhancement to apply.
    “(c) Notwithstanding any other provision of law, any person who, in the commission
of a felony specified in subdivision (a), personally and intentionally discharges a firearm,
shall be punished by an additional and consecutive term of imprisonment in the state
prison for 20 years.
    “(d) Notwithstanding any other provision of law, any person who, in the commission
of a felony specified in subdivision (a), Section 246, or subdivision (c) or (d) of Section
26100, personally and intentionally discharges a firearm and proximately causes great
bodily injury, as defined in Section 12022.7, or death, to any person other than an
                                               9
(Gonzalez, supra, at p. 1123.) The statutory scheme regulating firearm enhancements,
like section 667.5, anticipates that multiple enhancements may be found true in
circumstances where only one may be imposed. Section 12022.53, subdivision (f)
provides, in part, that “[o]nly one additional term of imprisonment under this section
shall be imposed per person for each crime. If more than one enhancement per person is
found true under this section, the court shall impose upon that person the enhancement
that provides the longest term of imprisonment. An enhancement involving a firearm
specified in Section . . . 12022.5 . . . shall not be imposed on a person in addition to an
enhancement imposed pursuant to this section.”
       Gonzalez resolved a conflict in the appellate courts on an issue analogous to the
one we face: after a trial court imposes punishment for the section 12022.53 firearm
enhancement with the longest term of imprisonment, should the remaining section
12022.53 firearm enhancements and any section 12022.5 firearm enhancements that were
found true for the same crime be stayed or stricken? (Gonzalez, supra, 43 Cal.4th at
p. 1122.) The court concluded the trial court should not strike these enhancements, but,
instead, should impose a sentence and then stay it. (Id. at pp. 1122-1123.) This
interpretation was driven by the court’s understanding of the purpose behind section
12022.53 and the reasoning in Lopez: “[I]t becomes apparent that section 12022.53 was
enacted to ensure that defendants who use a gun remain in prison for the longest time
possible and that the Legislature intended the trial court to stay, rather than strike,
prohibited enhancements under section 12022.53. As noted above, staying rather than
striking the prohibited firearm enhancements serves the legislative goals of section
12022.53 by making the prohibited enhancements readily available should the section
12022.53 enhancement with the longest term be found invalid on appeal and by making


accomplice, shall be punished by an additional and consecutive term of imprisonment in
the state prison for 25 years to life.”
    The version of section 12022.53 referred to in Gonzalez (see Gonzalez, supra, 43
Cal.4th at p. 1123, fn. 4) was subsequently repealed and the current version was added,
without substantive change. (Stats. 2010, ch. 711, §§ 4, 5, operative Jan. 1, 2012.)
                                              10
‘the trial court’s intention clear — it is staying part of the sentence only because it thinks
it must. If, on the other hand, the trial court were to strike or dismiss the prohibited
portion of the sentence, it might be misunderstood as exercising its discretionary power
under Penal Code section 1385.’ ” (Gonzalez, supra, 43 Cal.4th at p. 1129, quoting
Lopez, supra, 119 Cal.App.4th at p. 365.)9
       We conclude the analysis in Gonzalez is compelling and affirm the trial court’s
stay of the section 667.5(b) enhancements.
III. Sentencing on Section 667.5(a) Enhancements
       Appellant next contends the imposition of enhancements under both section 667,
subdivision (a) (section 667(a)) and section 667.5(a) was improper.
       Section 667(a)(1) provides, in relevant part, “any person convicted of a serious
felony who previously has been convicted of a serious felony . . . shall receive, in
addition to the sentence imposed by the court for the present offense, a five-year
enhancement for each such prior conviction on charges brought and tried separately.” In
People v. Jones (1993) 5 Cal.4th 1142 (Jones), a single prior conviction resulting in a
prison term was the basis for an enhancement under section 667(a) and section 667.5(b).
(Jones, supra, at p. 1145.) The California Supreme Court held, “when multiple statutory
enhancement provisions are available for the same prior offense, one of which is a
section 667 enhancement, the greatest enhancement, but only that one, will apply.” (Id. at


9   In the initial round of briefing, the People correctly noted that in People v. Langston
(2004) 33 Cal.4th 1237 the California Supreme Court stated: “Once the prior prison term
is found true within the meaning of section 667.5(b), the trial court may not stay the one-
year enhancement, which is mandatory unless stricken. [Citations.]” (Id. at p. 1241.)
However, the proper treatment of such an enhancement, where the defendant is sentenced
under section 667.5(a) for the same prior prison term, was not at issue in Langston, and
“cases are not authority for propositions not considered.” (People v. Brown (2012) 54
Cal.4th 314, 330.) Moreover, Langston never mentioned rule 4.447, and the authority
cited by Langston on the point involved discretionary determinations to not impose an
enhancement, and therefore did not implicate the ability to stay an enhancement under
rule 4.447.
   See footnote, ante, page 1.
                                              11
p. 1150.) Accordingly, the court concluded the same prior conviction could not be the
basis of enhancements under sections 667 and 667.5. (Jones, supra, at p. 1153.)
       In contrast to Jones, appellant’s 1989 and 2002 cases each involved two
convictions for serious felonies under section 667(a), one of which was also a violent
felony for purposes of section 667.5(a). Under similar circumstances, courts have held
Jones does not bar the imposition of enhancements under both section 667 and section
667.5. (People v. Brandon (1995) 32 Cal.App.4th 1033, 1055; People v. Sandoval (1994)
30 Cal.App.4th 1288, 1303-1304; People v. Wiley (1994) 25 Cal.App.4th 159, 164
(Wiley); People v. Gonzales (1993) 20 Cal.App.4th 1607, 1610-1611 (Gonzales).)
       Appellant’s sole response is to contend Jones applies unless the multiple
convictions arose from charges brought in two independent cases, for which a single
prison term was imposed. Although this was the fact pattern in at least one of the cases
cited above (Gonzales, supra, 20 Cal.App.4th at pp. 1610-1611), others have involved
multiple convictions arising from charges brought in a single case (Wiley, supra, 25
Cal.App.4th at p. 164). Moreover, Gonzales does not suggest it was necessary that the
charges have been brought in independent cases to distinguish Jones. Accordingly, we
conclude appellant has failed to demonstrate the sections 667(a) and 667.5(a)
enhancements were improperly imposed.
IV. Sentencing on Counts One and Three
       At sentencing, the trial court stated: “The court does find that count one and three
are 654. Count one, the burglary, [and] the assault, I do find to be 654. When it comes to
the 220 and the false imprisonment, . . . he’s trying to assault this person, . . . to sodomize
him, and . . . holding him there so he can attempt to do that assault. [¶] So I do find count
three, as well as count one 654 to count two, meaning it’s the same set of operative acts,
it was the same occasion, therefore the sentencing should be concurrent with regard to
count[s] one and three.”



   See footnote, ante, page 1.
                                              12
       “ ‘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.’ [Citation.] Instead,
the accepted ‘procedure is to sentence defendant for each count and stay execution of
sentence on certain of the convictions to which section 654 is applicable.’ [Citations.]”
(People v. Jones (2012) 54 Cal.4th 350, 353.)
       Appellant urges us to modify the judgment to stay sentences on counts one and
three. The People correctly agree. We will modify the judgment accordingly.
                                      DISPOSITION
       The judgment is modified to reflect the sentences on counts one and three are
stayed pursuant to section 654 and, as so modified, is affirmed. The trial court is ordered
to prepare and forward to the California Department of Corrections and Rehabilitation an
abstract of judgment modified accordingly.




                                                  SIMONS, Acting P.J.



We concur.




NEEDHAM, J.




BRUINIERS, J.




                                             13
Superior Court of Contra Costa County, No. 05-110750-7, Mary Ann O’Malley, Judge.

Eric Weaver, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Gerald A. Engler, Assistant Attorney General, Laurence K. Sullivan and Catherine A.
Rivlin, Deputy Attorneys General, for Plaintiff and Respondent.




                                          14
