People v. Mendevil (81 Cal. App. 3d 84, 1978)

Opinion

BEACH, J. —

Respondent herein was convicted after a jury trial of violating Penal Code sections 12303 (possessing a bomb) and 12303.3 (recklessly possessing a destructive device in a public building). Although count 2 provides for greater punishment (both under the determinate sentencing law and the indeterminate sentencing law), the trial court stayed execution of the sentence as to count 2 until defendant finished his term on count 1 or until the time for appeal has passed, the stay to become permanent after the completion of sentences to count 1. The People appeal from the “order reducing the degree of. . . punishment imposed,” citing Penal Code section 1238, subdivisions (a)(5) and (a)(6). The People have also filed a petition for writ of mandate seeking the same result, that is, that the trial court resentence respondent and stay the sentence on the less serious offense. We consolidated the appeal and the petition for writ of mandate.

Contentions on Appeal:

The People contend:

1. The order is appealable, and

2. The court should have stayed execution of the sentence on the less serious offense rather than the sentence on the more serious offense.

Discussion:

1. The order is appealable.

The People have filed both an appeal and a petition for writ of mandate. Respondent does not argue that issue of appealability, but prays only in his brief that the petition for writ of mandate be denied. In light of the decision in People v. Drake, 19 Cal.3d 749 [139 Cal.Rptr. 720, 566 P.2d 622], we deem it appropriate to discuss the issue of appealability-

Penal Code section 1238, subdivision (a) provides in parts applicable here:

“(a) An appeal may be taken by the people from any of the following: