California, United States of America
The following excerpt is from People v. Burns, 157 Cal.App.3d 185, 203 Cal.Rptr. 594 (Cal. App. 1984):
In arguing that remand is improper, appellant places considerable reliance upon our statement in People v. Masten, supra, 137 Cal.App.3d 579, 187 Cal.Rptr. 515, that "[t]he appropriate procedure for remedying a section 654 violation is to stay execution of the sentence imposed for the lesser offense, such stay to become permanent when service of sentence for the greater offense is completed." (Id., at p. 590, 187 Cal.Rptr. 515, citing In re Adams, supra, 14 Cal.3d 629, 636-637, 122 Cal.Rptr. 73, 536 P.2d 473.) In Masten, however, the case was actually returned to the trial court for resentencing because other sentencing error in that case (an improper enhancement) required remand. (Masten, supra, 137 Cal.App.3d at 590-591, 187 Cal.Rptr. 515.) Moreover, upon remand, the maximum reduction in sentence the defendant in Masten could have achieved was 20 months. Thus, we were not in Masten, as we are here, directly confronted with the question whether to permit a convicted criminal defendant to substantially benefit from fortuitous sentencing error.
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