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Filed 10/8/20 P. v. Sith CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(San Joaquin)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

VEASNA SITH,

Defendant and Appellant.

C088896

(Super. Ct. No. STK-CR-FE2004-0008089)

Defendant Veasna Sith was convicted of assault with a firearm, together with 

other counts. The jury also found true two enhancement allegations: that he personally 

used a firearm and the assault benefited a gang. The court stayed defendant’s sentence 

for the assault and also stayed a four-year enhancement for personal use of a firearm and 

a 10-year enhancement for the conviction of a violent felony (assault with the use of a 

firearm) committed for the benefit of a gang. By statute, where more than a single 

enhancement may be imposed using a firearm in the commission of a single offense, only 

the greatest shall be imposed. 
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The parties agree that both enhancements were imposed for using the same firearm 

in the commission of a single offense. The question presented by this appeal is whether 

the cited code section applies when, as here, the court imposes multiple enhancements 

but stays their execution. Defendant insists that it does and seeks a remand for 

resentencing. We conclude not. What is prohibited by Penal Code section 1170.1 is 

multiple punishment based on the use or possession of the same firearm. The effect of 

the court’s stay is to foreclose execution of both enhancements and thereby preclude 

multiple punishment. We therefore affirm but direct the trial court to amend the abstract 

of judgment to reflect the court’s stay of the enhancements.

BACKGROUND

A jury found defendant guilty of robbery (Pen. Code, § 212.5, subd. (a)),1

residential burglary (§ 459), and assault with a firearm (§ 245, subd. (a)(2)). The jury 

also found defendant had committed each of these crimes for the benefit of a criminal 

street gang (§ 186.22, subd. (b)(1)) and with the personal use of a firearm (§§ 12022.5, 

subd. (a), 12022.53, subd. (b)), and further found him guilty of active participation in a 

criminal street gang (§ 186.22, subd. (a)).

The trial court sentenced defendant to the upper term of nine years for the robbery, 

plus 10 years each for the gang (§ 186.22, subd. (b)(1)) and firearm (§ 12022.53, subd. 

(b)) enhancements, and eight months for participating in a gang. He was sentenced to 

concurrent midterms for the assault with a firearm and for the burglary, enhanced as to 

each by four years for firearm use (§§ 12022.5, subd. (a)) and 10 years for gang

(§ 186.22, sub. (b)(1)) enhancements.

In an unpublished opinion, we affirmed the judgment on appeal, but ordered the 

judgment modified to stay the concurrent sentences imposed for burglary and assault with 

1 All further statutory references are to the Penal Code.
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a firearm, pursuant to section 654. (People v. Sith (June 9, 2009, C057637) [nonpub. 

opn.].) The abstract of judgment was modified to reflect a stay of the base terms but as 

modified did not reflect a stay of their associated enhancements.

The trial court resentenced defendant on February 11, 2019, reducing his sentence 

for robbery from nine years to six years, and thus reducing his overall sentence to 26 

years eight months. The court maintained all other terms and orally stayed the burglary 

and assault with a firearm counts pursuant to section 654. The abstract of judgment noted 

the stay of these counts but again did not list the enhancements to these counts as stayed.

DISCUSSION

I

Defendant first contends that the trial court’s imposition of a gang enhancement to 

the stayed assault count, premised on his use of a firearm to benefit a gang (§ 186.22, 

subd. (b)(1)), and imposition of another enhancement for his personal use of a firearm

based on the same firearm (§ 12022.5, subd. (a)), violates section 1170.1, subdivision (f). 

The parties agree that the enhancement under section 186.22, subdivision (b)(1), and the 

enhancement under section 12022.5, subdivision (a), were both imposed for using a 

firearm in the commission of a single offense. They disagree as to the effect this has on 

defendant’s sentence. 

Section 1170.1, subdivision (f), states in pertinent part, “When two or more 

enhancements may be imposed for being armed with or using a dangerous or deadly 

weapon or a firearm in the commission of a single offense, only the greatest of those 

enhancements shall be imposed for that offense.”

Defendant contends that “Penal Code section 1170.1 bars punishment for both use 

of a firearm and use of the same firearm to benefit a gang” and thus the case must be 

remanded for resentencing. The People insist the trial court properly imposed and then 

stayed both enhancements.
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In other contexts, a sentence enhancement “ ‘may be imposed or stricken, but . . . 

may not be stayed; to do so is an illegal sentence.’ ” (People v. Haykel (2002) 

96 Cal.App.4th 146, 151.) Thus, in Haykel, the trial court stayed the prior prison term 

enhancement as an alternative to striking the enhancement, the option preferred by the 

defendant. The appellate court rejected the attempt. So also in People v. Harvey (1991) 

233 Cal.App.3d 1206, the case relied on in Haykel for its rule, the defendant asked the 

court to impose a partial enhancement. Rejecting the defendant’s plea, the court 

declared: “Enhancements do not define a crime but merely impose an additional 

punishment to that which accompanies the criminal offense itself. [Citation.] An 

enhancement is not a sentencing choice. [Citation.] Unless a statute says otherwise, an 

enhancement may be imposed or stricken, but this is the extent of the trial court's 

discretion.” (Id. at p. 1231.) And in People v. Eberhardt (1986) 186 Cal.App.3d 1112, 

1119-1124, another in the line of cases supporting the Haykel rule, the appellate court 

ruled a trial court could not stay execution of an enhancement as an alternative to striking 

it so as to deprive the prosecution of its right to appeal, a right that clearly pertained to an 

order striking an enhancement, though no authority at the time permitted an appeal by the 

prosecution from an order staying an enhancement. 

Thus, the court may not stay an enhancement as a means of modulating the 

punishment that would otherwise apply, or to avert an appeal. But that is not the 

objective of the stay imposed in the present case. Rather, the stay here aligns perfectly 

with California Rules of Court, rule 4.447 (Rule 4.447), which recognizes that a stay is 

appropriate when “imposition of the term is prohibited by law or exceeds limitations on 

the imposition of multiple enhancements.” (Rule 4.447(a).) Under this circumstance, a 

“court may not strike or dismiss an enhancement,” but instead “the court must: [¶] (1)

[i]mpose a sentence for the aggregate term of imprisonment computed without reference 

to those prohibitions or limitations; and [¶] (2) [s]tay execution of the part of the term 

that is prohibited or exceeds the applicable limitation.” (Ibid.) Rule 4.447 covers 
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enhancements limited by section 1170.1, subdivision (f). (Advisory Com. com., 23 pt. 2 

West’s Ann. Codes, Court Rules (2020 supp.) foll. rule 4.447, p. 49.) As explained in the 

Advisory Committee comment to this rule, “Present practice of staying execution is 

followed 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.” (Advisory Com. com., 23 pt. 2 

West’s Ann. Codes, Court Rules (2020 supp.) foll. rule 4.447, p. 49.) This was also the 

practice under the prior version of the rules. (See People v. Cavanaugh (1983) 

147 Cal.App.3d 1178, 1183 [citing former Cal. Rules of Court, rule 449 when finding 

trial courts “are directed to stay, not dismiss or reverse” counts violating section 1170.1].) 

Rule 4.447 mirrors courts’ procedures in handling section 654 violations. Section 

654 prohibits multiple punishments for the same “act or omission.” (§ 654, subd. (a).) 

Instead of dismissing the offending conviction, courts impose and stay execution of the 

lesser punishment deriving from the same act or omission. (People v. Duff (2010) 

50 Cal.4th 787, 796.) We ordered this in defendant’s prior appeal, concluding 

defendant’s convictions for burglary and assault with a firearm derived from defendant’s 

robbery and ordered the sentences to those convictions stayed, but did not reverse the 

convictions themselves. (People v. Sith, supra, C057637.)

Under both section 654 and Rule 4.447 “the stay has no express statutory basis. It 

is implied, so that a defendant who is subject to one of two alternative punishments will 

not be wrongly subjected to the other; if, however, one of the two punishments is 

invalidated, the defendant will still be subject to the remaining one.” (People v. Lopez

(2004) 119 Cal.App.4th 355, 365.) Defendants are not doubly punished in violation of 

section 654 when the offending punishment is imposed but stayed. Similarly, defendants 

are not subject to multiple enhancements violating section 1170.1, subdivision (f) when 

the additional enhancements are imposed and stayed. (Cf. People v. Cavanaugh, supra, 
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147 Cal.App.3d at 1183 [“Staying the counts rather than reversing, dismissing or setting 

them aside prevents double jeopardy violations”].)

Implicit in Rule 4.447’s procedure is a recognition that “imposed,” as used in 

various sentencing provisions, means “impose and execute.” Our Supreme Court in 

People v. Gonzalez (2008) 43 Cal.4th 1118 reached this conclusion in construing the 

language of section 12022.53, subdivision (f), which has language directly paralleling 

that of section 1170.1, subdivision (f).2 The court began its analysis: “[I]t is important to 

understand that the word ‘impose’ applies to enhancements that are ‘imposed and then 

executed’ as well as those that are ‘imposed and then stayed. However, as a practical 

matter, the word “impose” is often employed as shorthand to refer to the first situation, 

while the word “stay” often refers to the latter.’ ” (Gonzalez, at p. 1125.) The court then 

looked to the context of “imposed” within section 12022.53, subdivision (f) to interpret 

its meaning. (Gonzalez, at p. 1126; see Hsu v. Abbara (1995) 9 Cal.4th 863, 871 

[“Statutory ambiguities often may be resolved by examining the context in which the 

language appears and adopting the construction which best serves to harmonize the 

statute internally and with related statutes”].) It determined “imposed” to mean “impose 

and then execute” because it best harmonized the subdivision’s internal construction. 

The court explained the subdivision requires courts to first “ ‘impose upon that person the 

enhancement that provides the longest term of imprisonment,’ it would be unreasonable 

2 Section 12022.53, subdivision (f), states: “Only 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 12021.5, 12022, 12022.3, 12022.4, 12022.5, or 

12022.55 shall not be imposed on a person in addition to an enhancement imposed 

pursuant to this section. An enhancement for great bodily injury as defined in Section 

12022.7, 12022.8, or 12022.9 shall not be imposed on a person in addition to an 

enhancement imposed pursuant to subdivision (d).”
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for the Legislature to direct the court to impose the longest enhancement in the sense of 

‘impose and stay.’ . . . [T]he word ‘impose’ ensures that the statute’s punishment and 

legislative intent will be carried out only if it is interpreted as shorthand for ‘impose and 

then execute.’ ” (Gonzalez, at pp. 1126-1127.) Applying this meaning consistently 

throughout section 12022.53, subsection (f), “it directs that only one enhancement may 

be imposed and then executed per person for each crime, and allows a trial court to 

impose and then stay all other prohibited enhancements.” (Gonzalez, at p. 1127.) This 

interpretation also harmonizes “section 12022.53 with the rationale underlying both 

section 654 and the Judicial Council’s general rule that sets forth the procedure courts 

should follow when pronouncing sentence on any prohibited enhancement. (Cal. Rules 

of Court, rule 4.447.)” (Id. at p. 1128.) Thus, additional enhancements violating section 

12022.53, subdivision (f) “must be imposed and then stayed.” (Gonzalez, at p. 1130.)

The same interpretation of “imposed” is required here to best internally harmonize 

section 1170.1, subdivision (f). When multiple enhancements for being armed with a 

deadly weapon “may be imposed,” subdivision (f) requires “only the greatest of those 

enhancements shall be imposed for that offense.” (§ 1170.1, subd. (f).) Though this 

limits imposition to one enhancement, it still requires the greatest enhancement to be 

“imposed.” As Gonzalez found, understanding this to mean “imposed and executed” is 

the only way to satisfy the legislative intent of punishing the greatest qualifying 

enhancement. Similarly, subdivision (f) also states it “shall not limit the imposition of 

any other enhancements applicable to that offense.” In this context “imposition” must 

also be interpreted as “impose and execute.” And applying this definition consistently 

means additional lesser enhancements that “may be imposed” do not violate subdivision 

(f) if imposed and stayed. (See People v. Vega (2013) 214 Cal.App.4th 1387, 1395-1396 

[finding that for an additional enhancement satisfying section 1170.1, subdivision (g), 

“the trial court should have imposed and then stayed that enhancement”]; see also People 

v. Crites (2006) 135 Cal.App.4th 1251, 1255 [section 1170.1, subd. (f) “prevents 
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execution of sentences for multiple enhancements, but not the procedure of imposing but 

staying all but the greatest enhancement falling within the statute”].)

Defendant argues People v. Rodriguez (2009) 47 Cal.4th 501 requires a different 

result. We disagree. Rodriguez found that enhancements “imposed” under section 

12022.5 and section 186.22 for the same firearm use violated section 1170.1, subdivision 

(f). But the trial court had not stayed either enhancement so the Supreme Court analyzed 

whether the additional enhancement could be imposed and executed but did not address 

whether the enhancement may be imposed and stayed. (Rodriguez, at pp. 508-509.) We 

decline to read Rodriguez as implicitly interpreting subdivision (f) to disallow additional 

enhancements imposed and stayed when the court had no occasion to do so. (People v. 

Johnson (2012) 53 Cal.4th 519, 528 [“ ‘ “[C]ases are not authority for propositions not 

considered” ’ ”].)

The court’s oral order satisfies section 1170.1, subdivision (f). Though the court’s 

order does not explicitly analyze Rule 4.447, the result is the same—the additional 

enhancement that could be “imposed” under section 1170.1, subdivision (f), was properly 

imposed and stayed along with the underlying base term.

II

Defendant next contends that the abstract of judgment misstates the trial court’s 

oral finding at defendant’s resentencing hearing. The People agree and so do we.

“It is, of course, important that courts correct errors and omissions in abstracts of 

judgment. An abstract of judgment is not the judgment of conviction; it does not control 

if different from the trial court’s oral judgment and may not add to or modify the 

judgment it purports to digest or summarize.” (People v. Mitchell (2001) 26 Cal.4th 181, 

185.)

At defendant’s resentencing hearing, the trial court orally ordered the burglary and 

assault counts stayed. The abstract of judgment correctly notes these counts as stayed 
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under section 654 but does not list their enhancements as stayed. This is an error as 

enhancements must be stayed when the base term is stayed. (People v. Guilford (1984) 

151 Cal.App.3d 406, 412.)

DISPOSITION

The trial court is directed to amend the abstract of judgment as indicated in part II

of this opinion and to forward a certified copy of the amended abstract to the Department 

of Corrections and Rehabilitation. The judgment is otherwise affirmed.

 /s/

RAYE, P. J.

We concur:

 /s/

BLEASE, J.

 /s/

DUARTE, J.