Filed 6/4/15 P. v. Joachim CA1/4
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                 DIVISION FOUR


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A140719
v.
DUANE SCOTT JOACHIM,                                                 (Contra Costa County
                                                                     Super. Ct. No. 51312354)
         Defendant and Appellant.


         Duane Scott Joachim appeals from a judgment upon a jury verdict finding him
guilty of first degree residential burglary (Pen. Code,1 §§ 459, 460, subd. (a) (count one))
and first degree residential robbery (§§ 211, 212.5, subd. (a) (count two)). The jury also
found the special allegation that the victim of the residential burglary was present during
the commission of the offense and that the offense was a violent felony (§ 667.5,
subd. (c)(21)) to be true. In a bifurcated proceeding, the court found that defendant
suffered a prior felony conviction and served a prior prison term (§ 667.5, subd. (b)). The
trial court imposed the upper term of six years on the robbery count, a one-year term for
the prior prison term allegation, and an eight-month consecutive term for a conviction in
a Sonoma County case (People v. Joachim (Super. Ct. Sonoma County, 2013,
No. SCR617792)). The court stayed the sentence on the burglary count pursuant to
section 654, but did not impose a term on the count before staying it. Defendant contends
that the matter must be remanded to allow the court to impose a term on the burglary


         1
             All further statutory references are to the Penal Code.

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count, and that the abstract of judgment incorrectly reflects an upper term on the burglary
offense. We agree that the matter must be remanded to allow the court to exercise its
sentencing discretion on the burglary count. In addition, we direct the court to correct
certain clerical errors in the abstract of judgment relating to the Sonoma County case.
                            I. FACTUAL BACKGROUND
       The underlying facts leading to the jury’s verdict are as follows: On
February 16, 2011, Catherine Woodward returned to her home in San Ramon at around
1:45 p.m. She had locked the doors before she left, but had left the window in the
downstairs office slightly open. When she entered her house, her dog was barking
ferociously, which was unusual. She then heard a noise upstairs that sounded like
someone was opening and closing drawers. She thought it was her son and proceeded to
go upstairs. As she was walking up the stairs, defendant came out of her bedroom and
ran towards her. Woodward said, “[W]hat the fuck are you doing in my house?”
Defendant kept running toward her so she reached up to stop him and pushed his chest.
Defendant grabbed Woodward by the shoulders and slammed her hard against the wall.
       Defendant ran out of the house toward the elementary school at the end of the
street. Woodward chased after him, screaming, “stop that man.” Officer Montemayor,
who was parked across the street from the elementary school, saw defendant and
Woodward running. Montemayor detained defendant who was carrying a latex glove.
Montemayor testified that latex gloves are often used by burglars to prevent fingerprints
from being found at the scene.
       A police officer escorted Woodward to her home where she found a pillowcase
full of things, including some of her jewelry on the floor of her bedroom. The drawers of
her dresser had been opened and most of her jewelry was missing. In addition,
approximately $100 that Woodward kept in her lingerie drawer was missing.
       At sentencing, the court found that section 654 was applicable and chose the
residential robbery conviction for imposition of the principal term. The court imposed
the upper term of six years on the robbery offense, reasoning that defendant had a long
history of felony convictions, had suffered a prior prison term, had apparently made


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criminal activity his profession, and hence the public needed to be protected from him.
The court also cited the additional factors that defendant lied to the police and showed no
remorse. The court stayed the sentence on the burglary conviction and imposed a one-
year term for the prior prison term allegation. The court also imposed a consecutive
sentence of eight months for a second degree burglary conviction from Sonoma County
(People v. Joachim (Super. Ct. Sonoma County, 2013, No. SCR617792)) for a total term
of seven years and eight months.2 After imposing the sentence, the court inquired of the
clerk whether there was anything else that needed to be addressed. The following
colloquy occurred: “[THE CLERK]: Count [one] you did not identify whether he’s
getting the low, mid, or high term. [¶] [THE COURT]: The sentence is stayed under
Penal Code Section 654. [¶] [THE CLERK]: On the Abstract it has to state. [¶] [THE
COURT]: No sentence is going to be imposed on that count. [¶] [THE CLERK]: All
right, sir. [¶] [THE COURT]: If I have to impose the sentence, I have to run it
concurrently and I think I’m in the wrong. I cannot do that. [¶] [THE CLERK]: You
tell me what it is then say it’s stayed. [¶] [THE COURT]: You’re saying that I have to
select a sentence and then stay it, and I’m telling you under the law I can’t do that. . . .”
                                     II. DISCUSSION
       Defendant contends that the matter must be remanded to the trial court because the
court, in staying the sentence on the first degree burglary count, failed to select a term.
We agree.
       Section 654 proscribes multiple punishment whenever more than one offense is
committed during an indivisible course of conduct with a single objective.3 In applying
section 654, a “court must impose a sentence on all counts, but stay execution of sentence
as necessary to prevent multiple punishment.” (People v. Alford (2010) 180 Cal.App.4th

       2
        Defendant was serving a four-year county jail term on the Sonoma County
offense at the time of sentencing.
       3
         Section 654 provides in pertinent part: “An act or omission that is punishable in
different ways by different provisions of a 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.” (§ 654, subd. (a).)

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1463, 1469 (Alford).) As explained in Alford, “[a] sentence must be imposed on each
count, otherwise if the non-stayed sentence is vacated, either on appeal or in a collateral
attack on the judgment, no valid sentence will remain.” (Ibid.) The failure to impose
sentence on each count results in an unauthorized sentence. (Id. at p. 1472.)
       Here, the court, not only did not impose a sentence on the stayed count of
burglary, the abstract of judgment incorrectly states that a six-year term was imposed and
stayed. Both errors require correction.
       The Attorney General argues that we need not remand the matter because she
opines that it is “highly likely that the court would have imposed an upper term on the
burglary count if it had selected a term on that count.” She relies on Alford, supra,
140 Cal.App.4th at page 1473. In Alford, the court imposed a mid-term sentence on the
theft count, a count on which the trial court had failed to impose a sentence, reasoning
that it was “undoubtedly” the sentence the court would have imposed. (Id. at p. 1473.)
The court reasoned that a remand for a new sentencing hearing “would mean pulling
defendant out of his prison programming and busing him to Woodland for a new
sentencing hearing that will not change his actual prison time. The futility and expense
of such a course militates against it. Instead, as requested by the Attorney General, we
will exercise our authority to modify the judgment. (§ 1260.)” (Ibid.)
       We decline the Attorney General’s suggestion to impose the upper term on the
burglary count. The record is not clear that the trial court would have done so. Instead,
we remand the case to the trial court for the sole purpose of imposing sentence on the
burglary count. We are mindful of the time and expense associated with conducting a
hearing that will not change defendant’s prison time (Alford, supra, 180 Cal.App.4th at
p. 1473, citing § 1260), but in the absence of any expression of the court’s intent and in
view of comments at the sentencing hearing reflecting that the court misunderstood the
scope of its discretion, we decline to exercise our authority to modify the judgment to
impose a term on the burglary count ourselves. We also note that unlike Alford, where
the court imposed the mid-term on the unsentenced theft count, here the Attorney General



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is requesting that we impose an aggravated term on the burglary count, a decision which
requires the exercise of judicial discretion in sentencing. (§ 1170, subd. (b).)
       Defendant also contends that the abstract of judgment must be modified to correct
two clerical errors relating to the Sonoma County case—the abstract incorrectly states
that defendant was convicted of second degree robbery instead of second degree burglary
and it states that the upper term was imposed instead of the mid-term that the court
selected. The Attorney General concedes the errors and the record substantiates that
defendant was convicted of burglary and that the court imposed the mid-term. Where
there is a discrepancy between the abstract of judgment and the court’s oral
pronouncement of judgment, the latter controls. (People v. Mitchell (2001)
26 Cal.4th 181, 185.) We direct the trial court to modify the abstract of judgment to
correct the two clerical errors.
                                   III. DISPOSITION
       The matter is remanded to the trial court with directions to impose and stay the
term on the first degree burglary conviction (count one). The court is further directed to
correct the clerical errors in the abstract of judgment regarding the Sonoma County case
(People v. Joachim (Super. Ct. Sonoma County, 2013, No. SCR617792)) to state that
defendant was convicted of second degree burglary and that the mid-term was imposed.
The trial court shall forward an amended abstract of judgment to the Department of
Corrections and Rehabilitation. In all other respects, the judgment is affirmed.




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                                _________________________
                                Rivera, J.


We concur:


_________________________
Reardon, Acting P.J.


_________________________
Streeter, J.




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