PEOPLE v. HOOPER (1978)

Defendant appeals from a judgment entered after a jury found him guilty of forcible rape (Pen.Code, s 261, subd. 2), being armed with a deadly weapon (Pen.Code, s 12022), first degree burglary (Pen.Code, ss 459, 460), and assault with a deadly weapon (Pen.Code, s 245, subd. (a)). Defendant was sentenced to state prison, and the sentence as to the assault was stayed pending completion of sentence on the rape and burglary convictions. (Pen.Code, s 654.)

Defendant entered the residence of Nancy Gillett on April 22, 1977, between 2 a. m. and 4 a. m., went to her bedroom and when she awoke and attempted to scream, placed his hands across her nose and mouth. He then put a knife to her throat and threatened to harm her daughter if she made a sound. He subsequently raped her.

We agree, and respondent concedes, that the court erred in its imposition of consecutive sentences for the rape and burglary. Since rape was the underlying felony the intent to commit which made the entry into Gillett's residence burglary, punishment may not be imposed on both the rape and the burglary. (Pen.Code, s 654; People v. Hicks (1965) 63 Cal.2d 764, 765, 48 Cal.Rptr. 139, 408 P.2d 747.)

The proper sentencing procedure is to impose and execute sentence on the more serious of the two convictions to which section 654 applies and impose sentence but stay execution as to the other. (People v. Wein (1977) 69 Cal.App.3d 79, 94, 137 Cal.Rptr. 814.) Under the laws in existence at the time of sentence, the punishment for first degree burglary was greater than that for forcible rape. (Former Pen.Code, ss 264, 461, 671.) However, defendant was also charged and found to have been armed with a deadly weapon (a butcher knife) during the commission of the rape. Former section 12022 of the Penal Code imposed an additional term of not less than 5 nor more than 10 years for being so armed. Therefore rape while armed with a deadly weapon was the more serious crime.

It is contended that the 1977 amendment to section 12022 (Stats.1977, ch. 165, s 91, operative July 1, 1977) precludes its use to enhance defendant's term of imprisonment since that section is now inapplicable to one who is armed with a deadly weapon other than a firearm in the commission or attempted commission of a felony. (Pen.Code, s 12022, subd. (a); see People v. Rossi (1976) 18 Cal.3d 295, 299-302, 134 Cal.Rptr. 64, 555 P.2d 1313.) Penal Code section 1170.2, subdivision (a), specifically provides that “(i)n the case of any inmate who committed a felony prior to July 1, 1977, who would have been sentenced under Section 1170 if he had committed it after July 1, 1977, the Community Release Board shall determine what the length of time of imprisonment would have been under Section 1170 without consideration of good-time credit and utilizing the middle term of the offense bearing the longest term of imprisonment of which the prisoner was convicted increased by any enhancements justified by matters found to be true and which were imposed by the court at the time of sentencing for such felony. Such matters include: being armed with a deadly or dangerous weapon as specified in Section . . . 12022 prior to July 1, 1977, . . .” This constitutes the “saving clause” found lacking in People v. Rossi, supra, 18 Cal.3d at pages 299-302, 134 Cal.Rptr. 64, 555 P.2d 1313.

The judgment is therefore modified as follows: Sentence on count 2 (burglary) is stayed pending service of sentence on count 1 (rape), such stay to become permanent when service of sentence on count 1 is completed. (People v. Miller (1977) 18 Cal.3d 873, 886, 135 Cal.Rptr. 654, 558 P.2d 552.) The trial court is directed to prepare abstract of judgment and furnish a certified copy thereof to the Director of the Department of Corrections.

The judgment, as modified, is affirmed.

REGAN, Associate Justice.

PUGLIA, P. J., and PARAS, J., concur.