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Filed 9/21/16 P. v. Miller CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,

Plaintiff and Respondent,

v.

CHRISTOPHER WENDELL MILLER

, Defendant and Appellant. A145 096

( County of San Mateo Super. Ct. No. SC080808A )

M EMORANDUM O PINION 1

In November 2014, defendant Christopher Wendell Miller was found guilty by a

jury of one count of kidnapping a child under the age of 14 years with intent to commit a

lewd a ct (Pen. Code

, § 207, subd. (b)), 2 two coun ts of lewd act upon a child (§ 288,

subd. (a)), two counts of indecent exposure with a prior conviction (§ 314

, subd. ( 1 ) ), and

one count of child molestation with a prior conviction (§ 647.6, subd. (c)(2)). The trial

court sentenced him to a combined 32 years 4 months in state prison on the kidnapping,

indecent exposure, and molestation convictions , plus concurrent 50

- year

- to

- life terms on

the lewd act convictions. Defendant raises one issue on appeal

— that the trial court erred

in failing to stay the 22

- year sentence on the kidnapping count under section 654. The

Attorney General agrees the trial court erred. Upon review of the relevant portions of the

record, we a lso agree.

1 We resolve this case by a memorandum opinion pursuant to California Standards of Judicial Administration, section 8.1.

2 All further statuto ry references are to the Penal C ode unless otherwise indicated.2

At the sentencing hearing, the trial court stated with respect to its decision to

impose concurrent sentences on the first three counts (one for kidnapping a child under

the age of 14 and two for lewd acts on a child): “ I agree that they are t wo separate acts.

And, of course, the jury so found b eyond a reasonable doubt. [¶] I also feel that this was

on the same day, separated by a stairway. And it was really an act which had begun with

the exposure upstairs and concluded with the touching and the fortunate interruption by

the lady who was taking the trash out, and the defendant seeking the residential

information of the victim. An absolutel y awful series of events. [¶] But I do believe, that

given the sen t encing rules, it is warranted to find that that is an example of what is meant

by a single period of aberrant behavior.”

The prosecutor then conceded: “The People are going to submit on Your Honor’s

discretion. Obvi ously, we had argued that Count 2 and 3 could be run consecutively;

howev er, it’s a fair reading of the law to find that they’re from the same course of

conduct. And so we’re going to s ubmit on Your Honor’s discretion

. . . . ” Defense

counsel, in turn, urged that the court reconsider its indicated refusal to grant defendant’s

Romero 3 motion, seeking to strike a prior conviction

, which would have permitted a 25

-

year

- to

- life term on the lewd act convictions.

After defendant placed a n umber of non sentencing complaints on the record, t he

trial court then pronounced se ntence on e ach of the counts. It appears to have been only

an oversight that the sentence on count one (kidnapping) was not stayed under section

6 54 in light of the 50

- year

- to

- life sentence imposed on the lewd act convictions. (See

People v. Latimer (1993) 5 Cal.4 th 1203, 1216 [ § 654 applied where defendant drove

vict im to the desert and raped her; “A lthough the kidnapping and the rapes were separate

acts, the evidence does not suggest any intent or objective behind the kidnapping other

than to facilitate the rapes .” ].)

Accordingly, t he judgment is modified to stay the 22

- year s entence imposed on

count one pursuant to section 654. The trial court is directed to am end the minute order

3 People v. Superior Court (Romero) (1996) 13 Cal.4th 497 ( Romero ).3

and forward certified copies to the appropriate entities. As so modified, the judgment is

affirmed.4 _________________________ Banke, J.

We concur:

_________________________ Humes, P. J.

_________________________ Dondero, J.

A145096, People v. Miller