People v. Williams

Opinion

STEPHENS, J.

A jury convicted defendant of first degree burglary (Pen. Code. § 459) as charged in count I of the information and attempted rape (Pen. Code, §§ 664, 261, subd. 3) as charged in count II. Probation was denied. Defendant was sentenced to state prison on each count. Execution of sentence on count II was stayed pending appeal, the stay to become permanent when judgment on count I becomes final. Defendant was credited with having already served 624 days. He appeals from the judgment.

[67]

The facts, briefly stated, are as follows: At about 3 a.m., February 2. 1973, defendant broke into the apartment of Theresa Williams and attempted to rape her. Mrs. Williams was neither married to nor acquainted with defendant. She screamed when defendant entered her apartment. A neighbor heard her scream and called the police. Defendant was apprehended while running in the vicinity of Mrs. Williams’ apartment by a police unit which was in the area and which arrived at the location 30 seconds after receiving the radio call. Defendant’s fly was open and his clothing disarranged when he was taken into custody. He claimed, both to the officer and to the jury, that he was running from a man who had tried to shoot him.

Defendant contends on appeal that the sentencing procedure followed below violates section 654 of the Penal Code. There is no merit to this claim. The prescribed procedure for avoiding multiple punishments in a situation where section 654 applies is to stay execution of sentence as to the less seriously punishable offense.

(People

v. Beamon, 8 Cal.3d 625 [105 Cal.Rptr. 681, 504 P.2d 905];

In re

Wright, 65 Cal.2d 650 [56 Cal.Rptr. 110, 422 P.2d 998].) To the extent that

People

v.

Allen,

41 Cal.App.3d 196 [115 Cal.Rptr. 839], relied on by defendant, is in conflict with

Beamon