ARABIAN, J.,* Concurring and Dissenting. Defendant Kenneth Kiakin Lau committed and was convicted of kidnapping for robbery with use of a firearm. The Legislature has decreed that for this crime and enhancement, he “shall” receive a prison sentence of life with the possibility of parole plus at least three years. (Pen. Code, §§ 209, subd. (b) [kidnapping for robbery], 1203.06, subd. (a)(1)(D) [probation ineligibility], 12022.5, subd. (a) [firearm use enhancement].) The majority concludes that under Penal Code section 654, the court may impose a sentence lower than this statutory minimum. We ask what made Lau eligible for a lower sentence under the majority rule? Three circumstances: (1) he committed the additional crime of actually robbing the victim; (2) the prosecution charged that additional crime; and (3) the jury convicted him of both crimes. Lau is thus fortunate that he not only kidnapped but also carried out his intent to rob. Incredibly, because he did not have a change of heart and release the victim without robbing him he is eligible for a reduced sentence.
Believing that the purpose of the criminal justice system and the Penal Code as a whole is to deter and punish criminal conduct, not to encourage and reward it, I dissent. I would hold that the court may not impose a sentence lower than the minimum the Legislature has prescribed for the defendant’s criminal conduct because he committed and was convicted of multiple crimes.
[13]I.
On November 20, 1992, defendants Lau and Franklin Edward Norrell encountered the victim, Terry Jeong, in a parking lot in Milpitas. They forced Jeong into the backseat of Jeong’s car, and, with Norrell behind the wheel, drove off. En route Lau threatened Jeong by putting a nine-millimeter pistol next to Jeong’s head, and demanded money. Lau took Jeong’s wedding ring, checked Jeong’s wallet for money, found none, but then found $9,300 in a bundle on the car floor. Defendants then forced Jeong out of the car and continued driving. Jeong managed to contact the police, who apprehended the defendants after a chase. The $9,300 in cash and a nine-millimeter pistol were found in a dumpster near the arrest scene. Jeong’s car and wedding ring were also recovered.
The jury found defendants guilty of kidnapping for robbery (Pen. Code, § 209, subd. (b)), robbery (Pen. Code, § 211, former § 212.5, subd. (b)), and reckless driving while attempting to elude a peace officer (Veh. Code, § 2800.2). It also found that Lau personally used, and Norrell was armed with, a firearm in the commission of the kidnapping for robbery and robbery counts. (Pen. Code, §§ 12022, subd. (a)(1), 12022.5, subd. (a).) The court sentenced Lau to prison for ten years, eight months, consisting of the upper term of five years for the robbery, five years for the firearm use enhancement, and eight months (one-third of the midterm) for the Vehicle Code violation. It sentenced Norrell to prison for six years, eight months, consisting of the upper term of five years for the robbery, one year for the arming enhancement, and eight months for the Vehicle Code violation. As to both defendants, the court stayed the life sentence for the kidnapping for robbery pursuant to Penal Code section 654 (hereafter section 654).
In this appeal, the People argue that the court was required to stay the sentence for the lesser offense of robbery and impose that for the greater offense of kidnapping for robbery, rather than the other way around.
II.
As pertinent, section 654 provides: “An act or omission which is made punishable in different ways by different provisions of this code may be punished under either of such provisions, but in no case can it be punished under more than one . . . .” The parties agree that under our interpretation of this provision, the defendants may be punished for either the kidnapping for robbery or the robbery, but not both. (See generally, People v. Latimer (1993) 5 Cal.4th 1203 [23 Cal.Rptr.2d 144, 858 P.2d 611].) Where two such counts are involved, the proper procedure is to impose sentence for both of [14]the counts, and stay sentence for one of them. (People v. Pearson (1986) 42 Cal.3d 351, 359-361 [228 Cal.Rptr. 509, 721 P.2d 595].) That is what the trial court did. The sole issue here is whether the court had discretion to impose only the lesser sentence and stay the greater.
The majority concludes that a lesser sentence may be imposed than is prescribed for the greatest crime if, but only if, the defendant also committed, and was charged with and convicted of, an additional lesser crime. It relies primarily on the language of section 654, which it reads as permitting no limitations on the power of the court to choose which sentence to impose and which to stay. It interprets that provision as allowing the court to impose a sentence that is lower than the statutorily mandated minimum for one of the crimes the defendant committed. The majority is correct that nothing in the literal language of section 654 expressly limits the power of the court to “punish[] under either” of the crimes; nothing expressly states that the court must act within the bounds of discretion. But the literal language must be construed and, if necessary, may be disregarded, to avoid absurd results and to fulfill the intent of the framers. (Amador Valley Joint Union High Sch. Dist. v. State Bd. of Equalization (1978) 22 Cal.3d 208, 245 [149 Cal.Rptr. 239, 583 P.2d 1281].) Here the literal language need not be disregarded to avoid the absurd result of the majority. All statutory grants of judicial authority require the reasonable exercise of discretion, sometimes expressly, otherwise impliedly. Section 654 is no exception. The discretion it provides is not unbridled but is “guided and controlled by fixed legal principles, to be exercised in conformity with the spirit of the law, and in a manner to subserve and not to impede or defeat the ends of substantial justice.” (People v. Warner (1978) 20 Cal.3d 678, 683 [143 Cal.Rptr. 885, 574 P.2d 1237].)
Section 654 does not exist in a vacuum. Like any statute, it must be construed with reference to the entire system of law of which it is a part, so that all may be harmonized and have effect. (People v. Thomas (1992) 4 Cal.4th 206, 210 [14 Cal.Rptr.2d 174, 841 P.2d 159].) It should go without saying that the Penal Code as a whole is designed to punish criminal behavior. More specifically, numerous Penal Code sections prescribe minimum punishments for criminal offenses. These provisions inform the proper interpretation of section 654. The general language of section 654 does not trump the specific language of Penal Code sections 209, subdivision (b), 1203.06, subdivision (a)(1)(D), and 12022.5, subdivision (a), that a defendant “shall” receive a minimum sentence for those crimes committed by Lau.
Section 654, by its language, prohibits multiple punishment. That is all. It does not address the question of sentencing discretion, much less create an exception to statutorily mandated minimum sentences. It was certainly not intended to reward extra criminality.
[15]As we have often stated, the purpose of section 654 “is to insure that a defendant’s punishment will be commensurate with his culpability.” (People v. Perez (1979) 23 Cal.3d 545, 551 [153 Cal.Rptr. 40, 591 P.2d 63]; accord, People v. Latimer, supra, 5 Cal.4th at p. 1211; Neal v. State of California (1960) 55 Cal.2d 11, 20 [9 Cal.Rptr. 607, 357 P.2d 839].) A person who commits two crimes is not less culpable than if that person had committed only one of those two crimes. Allowing a reduced sentence because of increased criminal behavior is not reasonable, and does not make punishment commensurate with culpability.
III.
Not only is the majority’s interpretation of section 654 unwarranted by its language, as policy it is irrational. It is, indeed, trebly irrational; each of the three prerequisites for a lower sentence under the majority’s rule is an illogical basis for leniency.
First, to be eligible for a reduced sentence under today’s ruling, the defendant must commit a lesser crime as well as the greater. If the defendants here had not committed the additional crime of robbery, if they had stopped after the kidnapping itself and released their victim, not even the majority would find them eligible for a sentence lower than that prescribed for the crime of kidnapping for robbery. It requires no complicated analysis to illustrate the irrationality of premising leniency on increased criminal behavior.
Here, the defendants forcibly kidnapped the victim, Jeong, in his car intending to rob him. En route, they committed the actual robbery. If someone had stopped them after the kidnapping but before the robbery, or if the victim had escaped, or if the defendants had had a change of heart and freed their captive, they could still have properly been convicted of the kidnapping, but not of the robbery. There would thus not have been any robbery sentence to impose, and the court would not have been able to stay the more serious offense under the guise of section 654. But the defendants’ culpability is not reduced because they also robbed the victim. They should not benefit from the fact they not only kidnapped with intent to rob, but also carried out that intent.
What if one of the defendants had had a change of heart, and abandoned the criminal enterprise before the actual robbery, and the other then robbed the victim alone? According to the majority, if the one who had a change of heart was convicted only of kidnapping for robbery, and the other was convicted of both the kidnapping and the robbery, the one convicted of both [16]could get a sentence lower than that required for the kidnapping; only the other, the one who did not personally rob, must pay the full price. Is this justice? Is this what the Legislature intended when it prohibited multiple punishment in section 654? Is this punishment commensurate with culpability?
The lead opinion protests that its rule does not “ ‘reward’ ” defendants for committing multiple offenses (lead opn., ante, at p. 8), but in inescapable fact it does just that. Once the defendants kidnapped Jeong intending to rob him, the only way they could become eligible for a sentence lower than the minimum for that crime was to commit an additional crime, such as the robbery. Beyond question, this is a reward for committing that additional crime.
Second, in order to be eligible for a reduced sentence, the prosecutor must charge the additional crime. If it is not charged, not even the majority would find the defendant eligible for a lower sentence. We have often stressed that when the evidence would support conviction of lesser offenses as well as the greatest crime charged, juries should generally not be limited to either convicting of the greatest crime or completely acquitting the defendant. The jury should be given the full range of choices the evidence justifies. (People v. Barton (1995) 12 Cal.4th 186, 196 [47 Cal.Rptr.2d 569, 906 P.2d 531]; People v. Geiger (1984) 35 Cal.3d 510, 526, 530 [199 Cal.Rptr. 45, 674 P.2d 1303, 50 A.L.R.4th 1055].) We should not transform giving the jury choices into a basis for a reduced sentence.
Let us consider another example of the absurdity of the majority’s rule. Assume a person shoots someone under circumstances in which a jury reasonably might, but would not necessarily, find an intent to kill. The victim survives. The prosecution would be justified in charging attempted murder, which requires an intent to kill. It might reasonably, however, also choose to charge the lesser related offense of assault with a firearm, which does not have that intent requirement. If the jury found an intent to kill, it would convict of attempted murder, but if not, at least it could convict of assault, a crime certainly committed. But if the jury does find an intent to kill, and therefore convicts of both offenses, the charging decision should not provide an excuse to sentence the defendant solely on the assault charge, and not on the more serious attempted murder. The defendant’s culpability should be measured by the shooting with intent to kill, not the same act without murderous intent.
Under the majority rule, which places no limitations on which sentence may be stayed, if a defendant is charged and convicted of both attempted [17]murder and assault with a firearm, the court could impose a sentence on the assault charge as low as two years plus any enhancement, and stay sentence on the attempted murder. (Pen. Code, § 245, subd. (a)(2).) If the defendant is charged with and convicted of only attempted murder, the minimum sentence would have to be five years plus any enhancement. (Pen. Code, § 664, subd, (a); see People v. Bright (1996) 12 Cal.4th 652, 655-656 [49 Cal.Rptr.2d 732, 909 P.2d 1354].)
Third, to be eligible for a reduced sentence, the defendant must be convicted of both the greater and the lesser offenses. If the jury convicts the defendant of the greater offense but then, unwittingly thinking it was exercising leniency, acquits of the lesser, under today’s ruling, this acquittal would preclude the court from imposing a lower sentence. No doubt that jury would be astonished if subsequently informed by a dismayed defense attorney that the presumed act of leniency instead prevented leniency. Similarly, if the jury convicted what it considered the more culpable of two defendants of all charged crimes, and acquitted the less culpable of the lesser offense, it would be likewise be dismayed to learn that only the one convicted of all crimes was eligible for leniency.
IV.
The lead opinion relies in part on a supposed “virtually unanimous” line of Court of Appeal decisions reaching the same conclusion. (Lead opn., ante, at p. 7.) Upon inspection, however, this reliance is misplaced. The first case the lead opinion cites contained no analysis of the merits of the issue; most of the rest merely cite earlier cases without analysis, often while distinguishing them.
At the outset, it is important to note that, as even the lead opinion concedes (lead opn., ante, at pp. 6-7), we have never directly addressed this issue. Both sides cite certain of our decisions that appear to support their position. The view that the court must impose sentence on the greater offense and stay the lesser claims support in numerous cases in which the trial court erroneously imposed multiple punishment. In those cases, we indicated that the court could impose only the punishment for the more serious offense. (E.g., People v. Pearson, supra, 42 Cal.3d 351, 359-360; People v. Milan (1973) 9 Cal.3d 185, 197 [107 Cal.Rptr. 68, 507 P.2d 956]; People v. McFarland (1962) 58 Cal.2d 748, 762-763 [26 Cal.Rptr. 473, 376 P.2d 449]; Neal v. State of California, supra, 55 Cal.2d at p. 20; People v. Knowles (1950) 35 Cal.2d 175, 189 [217 P.2d 1]; see People v. Superior Court (Himmelsbach) (1986) 186 Cal.App.3d 524, 539 [230 Cal.Rptr. 890].) Typical is this statement in Neal v. State of California, supra, 55 Cal.2d at [18]page 20: “Petitioner, therefore, can only be punished for the more serious offense, which is attempted murder.”
The lead opinion claims support in People v. Hood (1969) 1 Cal.3d 444 [82 Cal.Rptr. 618, 462 P.2d 370], in which the trial court in fact imposed sentence on the lesser offense, and stayed that for the greater. We reversed both convictions because of instructional error. In remanding the matter, we stated that if defendant is again convicted of either or both offenses, to avoid penalizing him for appealing, the court may not impose a greater sentence than before. (Id. at p. 459.) We did not discuss the propriety of the original sentence, but defendants argue that by prohibiting a greater sentence after retrial, we “appearf] to have sanctioned a trial court’s imposition of the less severe among possible double punishments.” (People v. Wesley (1970) 10 Cal.App.3d 902, 912 [89 Cal.Rptr. 377], disapproved on other grounds in People v. Hansen (1994) 9 Cal.4th 300, 316 [36 Cal.Rptr.2d 609, 885 P.2d 1022].)
The simple, yet complete, response to both sides’ citation to our cases, and the lead opinion’s reliance on People v. Hood, supra, 1 Cal.3d 444, is found in the venerable maxim that decisions are not authority for propositions not considered. (Roberts v. City of Palmdale (1993) 5 Cal.4th 363, 372 [20 Cal.Rptr.2d 330, 853 P.2d 496]; In re Tartar (1959) 52 Cal.2d 250, 258 [339 P.2d 553].) In People v. Hood, supra, 1 Cal.3d 444, the People might have challenged the original sentence, but they did not; they do here. In the other cases, the defendants did not argue that the greater sentence could have been stayed; they do here. “The most that can be said is that the point was in the cases if anyone had seen fit to raise it. Questions which merely lurk in the record, neither brought to the attention of the court nor ruled upon, are not to be considered as having been so decided as to constitute precedents.” (Webster v. Fall (1925) 266 U.S. 507, 511 [69 L.Ed. 411, 413, 45 S.Ct. 148].) As Chief Justice Marshall said long ago, the question “passed sub silentio, and the court does not consider itself as bound by that case [or, here, those cases].” (United States v. More (1805) 7 U.S. (3 Cranch) 159, 172 [2 L.Ed. 397, 401-402].)
With this backdrop, I review the Court of Appeal decisions. The first, People v. Wesley, supra, 10 Cal.App.3d at pages 911-912, cited only People v. Hood, supra, 1 Cal.3d 444, without independent analysis. As noted above, however, Hood is not dispositive because it did not consider this question.
In People v. DeVaney (1973) 33 Cal.App.3d 630, 637-638 [109 Cal.Rptr. 276] the defendant claimed the court erroneously imposed the lesser sentence rather than the greater. It was unclear, in the overall context, which was the [19]greater and which the lesser crime. The court rejected defendant’s claim for several reasons, including the statement that “a trial court is not required to punish a defendant being sentenced on more than one conviction to the more severe penalty that may be imposed.” (Id. at p. 639, italics in original.) It cited only Wesley and Hood, and engaged in no pertinent analysis. This brief reference in the middle of a ruling against the defendant is hardly persuasive. The third case, People v. Mendevil (1978) 81 Cal.App.3d 84, 89 [146 Cal.Rptr. 65], cited only Wesley and DeVaney, and contained no analysis.
In People v. Bradley (1981) 115 Cal.App.3d 744, 752-754 [171 Cal.Rptr. 487], the defendant contended the trial court imposed sentence on the greater offense—like here, kidnapping for robbery—under the mistaken impression it was required to. The court cited the “general rule” that the court may stay the greater offense, citing Hood, DeVaney, and Mendevil without analysis, but then found that rule inapplicable. It concluded that under the specific circumstances, the trial court had to impose the greater sentence. Its reasons echo my own: “[The defendant’s] argument [that the court could stay the sentence for kidnapping for robbery and impose the one for a lesser crime], if accepted, would result in the following: Where a prosecutor elects to charge a defendant with a single crime, for example, kidnapping for robbery, and where instructions on lesser offenses are not proper, a conviction would require imposition of a life sentence with possibility of parole. If, however, the prosecutor charges multiple offenses, such as the case here, the ostensibly more culpable criminal obtains the benefit of judicial discretion which somehow gives the court the power to finesse the mandated prison sentence for the most serious offense, i.e., the kidnapping for robbery pending completion of one of the lesser sentences. We are unwilling to accept this illogical result which frustrates the clear intent of the Legislature.” (People v. Bradley, supra, 115 Cal.App.3d at p. 753.)
People v. Avila (1982) 138 Cal.App.3d 873, 879 [188 Cal.Rptr. 754] and People v. Barela (1983) 145 Cal.App.3d 152 [193 Cal.Rptr. 257] merely relied upon previous cases with no analysis. In People v. Smith (1985) 163 Cal.App.3d 908, 914, footnote 10 [210 Cal.Rptr. 43], the court only cited Avila while at the same time ordering imposition of the more severe sentence. People v. Cole (1985) 165 Cal.App.3d 41, 53 [211 Cal.Rptr. 242], only cited Avila in rejecting the defendants claim the court had to impose the supposed longer sentence. There, imposing what the defendant claimed was the longer sentence would have resulted in an overall shorter term because an enhancement could not have been imposed.
After Cole came People v. Superior Court (Himmelsbach), supra, 186 Cal.App.3d 524, which contained the first independent analysis of the merits [20]of this question. It supports my position, and concludes, as do I, that section 654 was “meant to ensure against multiple punishment for an indivisible transgression,” not to “provide courts with discretion to avoid imposition of the punishment prescribed for the most egregious offense of which the defendant stands convicted.” (186 Cal.App.3d at p. 537.)
Then came People v. Salazar (1987) 194 Cal.App.3d 634 [239 Cal.Rptr. 746], which disagreed with Himmelsbach. Salazar contains the first analysis of the merits of the issue by a court finding discretion to impose the lesser sentence. As set forth above, all previous cases merely cited Hood or earlier cases in the line, often while rejecting arguments by the defense. The lead opinion finds persuasive Salazar’s discussion that the “court should impose sentence on the offense which is most appropriate for the defendant’s conduct and not simply the one carrying the greatest penalty. Only in this way will a defendant’s punishment ‘be commensurate with his culpability’ and the purpose of Penal Code section 654 fulfilled.” (People v. Salazar, supra, at p. 639; see lead opn., ante, at p. 8.) I repeat what I said before. A person who commits two crimes is not less culpable than if that person had committed only one of those two crimes. Someone who kidnaps for robbery and then also robs is not less culpable than if that person had not actually robbed.
The most thorough discussion of the cases is found in Justice Baxter’s opinion in People v. Thompson (1989) 209 Cal.App.3d 1075, 1078-1086 [257 Cal.Rptr. 658]. After taking a “rather exhaustive trip through 30 years of citations,” the Thompson court concluded that our decisions stating the procedure on appeal when section 654 is violated do not necessarily limit the trial court’s discretion in the first place, and that although reliance on People v. Hood, supra, 1 Cal.3d at page 459, “seems more reasonable,” even that case does not “firmly support[]” the conclusion that the trial court has discretion to impose the lesser sentence. (209 Cal.App.3d at p. 1085.) The court ultimately found it “unnecessary in this case to choose between Salazar and Himmelsbach.” (Ibid.)1
The final decision is People v. Thompson (1992) 7 Cal.App.4th 1966, 1975 [10 Cal.Rptr.2d 15], which merely cited previous cases with no analysis.
We thus find that of all these cases, only three contain an analysis of the issue rather than mere reliance on Hood or earlier decisions; (1) People v. [21]Superior Court (Himmelsbach), supra, 186 Cal.App.3d 524, which supports my view; (2) People v. Salazar, supra, 194 Cal.App.3d 634, which reaches the opposite conclusion; and (3) People v. Thompson, supra, 209 Cal.App.3d 1075, which did not choose between them. An additional case, People v. Bradley, supra, 115 Cal.App.3d 744, refused to apply the rule of the earlier cases for reasons that support my view. This authority is far from conclusive. This court has the right, indeed the obligation, to consider the merits of the controversy itself for the first time, and to reach its own conclusion.
V.
I do not suggest that courts have no discretion in sentencing, or that the facts of the individual case may not be considered in deciding how long the defendant will remain incarcerated. Courts still have the usual discretion to impose concurrent or consecutive sentences, or to choose the upper, middle or lower term when that is at issue, or to make the myriad other sentencing choices they are required to make. If, as for kidnapping for robbery, the prescribed sentence is life with the possibility of parole, the Board of Prison Terms may consider the individual facts in exercising its discretion whether and when to grant parole. But this discretion must be within the range of punishments the Legislature has prescribed for the defendant’s criminal conduct.
Subject to constitutional limits not relevant here, the Legislature has the exclusive authority to define crimes and prescribe punishment. (People v. Tanner (1979) 24 Cal.3d 514, 519, fn. 3 [156 Cal.Rptr. 450, 596 P.2d 328]; People v. Superior Court (Himmelsbach), supra, 186 Cal.App.3d at p. 537.) The lead opinion asserts that the crime of this case was “essentially a robbery by youthful defendants.” (Lead opn., ante, at p. 8.) A robbery it surely was; it was also beyond question a kidnapping. There is no claim that the kidnapping charge was improper or the conviction is factually unsupported. The Legislature has prescribed the punishment for both kidnapping for robbery and robbery, and determined the former crime to be the more serious. When the lead opinion states that this was merely a robbery and should not be punished as seriously as a kidnapping for robbery, it is either invading the jury’s function by second-guessing the guilty verdict for the kidnapping, or the legislative function by disagreeing that kidnapping for robbery is the more serious crime, or both. Either is improper.
Contrary to the implication of the lead opinion (lead opn., ante, at p. 8), I do not argue that the court must “mechanically” impose sentence on any particular offense. The overall sentence must be considered. Sentencing rules are complex; enhancements and other factors may properly play a role [22]in deciding which sentence to impose and which to stay. I would merely hold that a court may not manipulate the punishments it chooses to stay and not stay under section 654 so as to impose a lesser total sentence than would have been possible if the defendant had committed and been convicted of fewer crimes.
The only difference between the majority and me—and it is momentous —is that I would not allow a court to impose a sentence lower than the statutory minimum solely because the defendant committed additional crimes.
VI.
In this particular case, I concur in the result because I find no violation of what I view the rule to be. Again, I do not argue the court must mechanically impose one sentence or the other, only that the overall sentence must not be lower than the legislatively mandated minimum for any of the crimes.
Defendant Norrell, who did not personally use a firearm, was eligible for probation, so the Legislature did not require imposition of any actual prison sentence at all. The six-year, eight-month prison sentence he did receive was not, therefore, lower than the statutory minimum.
The question regarding defendant Lau is more complex. Because he “personally used a firearm,” both the kidnapping for robbery and the robbery convictions made him ineligible for probation. (Pen. Code, § 1203.06, subd. (a)(1)(B), (D).) The sole prescribed sentence for kidnapping for robbery is life with the possibility of parole. (Pen. Code, § 209, subd. (b).) At the time of the crime, the prescribed additional sentence for the firearm use enhancement was three, four or five years. (Pen. Code, former § 12022.5, subd. (a).) Thus, the minimum sentence for the kidnapping for robbery crime is life plus three years. That establishes a floor below which the court may not go, no matter how many other crimes the defendant committed.
To determine whether the sentence imposed in this case is lower than this floor, we face the difficulty of comparing an indeterminate sentence with the actual determinate sentence. To my mind, the only fair and reasonable way to do this is to compare the theoretical minimum period of custody for the indeterminate offense with the actual determinate term. This may not be [23]entirely accurate; indeed, as the lead opinion suggests (lead opn., ante, at pp. 9-10), it may operate to a defendant’s advantage, because it does not take into account the variable of behavior and other credits. A determinate term may, and often does, result in actual confinement shorter than the prescribed term. But a sentencing court has no way of quantifying this factor. I am thus content to compare the minimum period of confinement of an indeterminate term with the actual determinate term.
When the sentence is life with the possibility of parole, the minimum period of confinement before being eligible for parole is seven years. (Pen. Code, § 3046.) Thus, the effective minimum term is seven years for the life sentence on the substantive offense plus the lower term of three years for the enhancement, for a total of ten years. Although the sentence the court imposed for the lesser offenses could have been lower than 10 years, and thus could have been an abuse of discretion, this one was not. The court imposed the upper term for the robbery plus the upper term for the enhancement, and made the sentence for the Vehicle Code violation consecutive. The resultant overall sentence was ten years, eight months. I therefore concur in the result in this particular case.
Conclusion
Although I hope society’s miscreants do not hear it, the message the majority sends is unmistakable: if you commit a crime, and hope to avoid the punishment the Legislature has prescribed for that crime, be sure also to commit a lesser crime along the way. Woe to the person who kidnaps intending to rob but then decides not to actually rob. To that person, leniency is forbidden. Only if the victim is actually robbed may the defendant obtain a reduced sentence.
I agree with the lead opinion that it is “the Legislature’s role to amend statutes, not this court’s.” (Lead opn., ante, at p. 10.) But it is this court’s role, indeed duty, to give a statute a rational interpretation in the context of the entire system of law of which it is a part. The majority does not do so. I also agree that the Legislature may modify the rule any time it chooses. (Lead opn., ante, at p. 9; conc. opn., ante, at p. 12.) Until today there was no need to amend section 654 regarding this issue. Now there certainly is. I hope the Legislature will heed my call, and amend that statute to make clear what should have been clear all along: when a person commits multiple crimes, the court may not manipulate the sentences to be stayed and not stayed so as to impose a lower overall sentence than the minimum the [24]Legislature has decreed for any of those crimes. Additional criminality must never be rewarded.
Kennard, J., and George, J., concurred.
Retired Associate Justice of the Supreme Court, sitting under assignment by the Chairperson of the Judicial Council.
The lead opinion asserts that People v. Thompson, supra, 209 Cal.App.3d at page 1085, “concluded . . . : ‘If the trial court had abused its discretion in Hood, the Supreme Court would not have placed such a limitation on the maximum sentence on retrial.’ ” (Lead opn., ante, at p. 7.) In fact, Thompson merely described that as the rationale of People v. Wesley, supra, 10 Cal.App.3d 902. Thompson found reliance on Hood “not firmly supported,” and expressly did not choose between the conflicting cases. (209 Cal.App.3d at p. 1085.)