Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. SCN225692, Joel M. Pressman, Judge.
AARON, J.
I
INTRODUCTION
A jury found Michael Raymond Reeder guilty of resisting an executive officer (Pen. Code, § 69) (count 1), resisting an officer (§ 148, subd. (a)(1)) (count 2), and public intoxication (§ 647, subd. (f)) (count 3). Reeder subsequently waived his right to a jury trial and admitted that he had served two prior prison terms, within the meaning of section 667.5, subdivision (b). On count 1, the trial court sentenced Reeder to two years in prison. In addition, the trial court imposed two consecutive one-year terms for the prison priors. As to counts 2 and 3, the trial court imposed a term of 272 days in jail, with 272 days of credit for time served on each count. The trial court did not expressly specify whether Reeder was to serve the terms on counts 2 and 3 consecutively to, or concurrently with, the sentence on count 1. The terms are therefore deemed to be concurrent, as a matter of law. (§ 669.)
Unless otherwise specified, all subsequent statutory references are to the Penal Code.
On appeal, Reeder claims that the trial court erred in instructing the jury pursuant to CALCRIM No. 358 regarding the jury's consideration of evidence of Reeder's out of court statements. Reeder also claims that the trial court erred in imposing sentences for both resisting an executive officer (§ 69) (count 1) and resisting an officer (§ 148, subd. (a)(1)) (count 2), on the ground that count 2 is allegedly a lesser included offense of count 1. In addition, Reeder claims that section 654 precludes the trial court's imposition of sentences on counts 2 and 3, and that the trial court violated his constitutional rights to a jury trial and to proof beyond a reasonable doubt by implicitly determining that section 654 does not apply to those counts. Finally, Reeder claims that the trial court erroneously imposed a sentence of 272 days in jail on count 3, and requests that this court reduce the sentence on count 3 to 180 days in jail.
We reduce the sentence on count 3 to 180 days. In all other respects, we affirm the judgment.
II
FACTUAL BACKGROUND
On March 1, 2007, Carlsbad Police received a call regarding an unwanted person at the Coyote Bar and Grill. The caller informed a police dispatcher that the person was challenging patrons of the bar to fight, behaving in an extremely disorderly manner, and refusing to leave the bar. The person was described as a white male, over six-feet tall, bald, wearing a large green jacket and blue jeans. Carlsbad Police Officer Melissa Cobian responded to the call. When Officer Cobian arrived at the bar, two employees told her that the man had left the bar on foot. Officer Cobian got into her police car and drove away, intending to look for the man.
Officer Cobian saw the man, later identified as Reeder, about 300 yards from the bar, walking southbound. Officer Cobian, who was dressed in uniform, pulled her police car over near Reeder and got out of the car. Officer Cobian asked Reeder to stop. Reeder continued walking. Officer Cobian then yelled in a loud voice, "Carlsbad Police. You need to stop." Reeder looked over his shoulder at Officer Cobian, and said, "Fuck you."
Officer Cobian drew her taser and held it in her right hand. Officer Cobian told Reeder that she would "tase" him with 50,000 volts of electricity unless he stopped and followed her directions. Reeder turned around. Officer Cobian saw that Reeder had his hands in the pockets of his jacket. Officer Cobian told Reeder to remove his hands from his pockets. Reeder refused and asked, "Why?" At this point, Officer Cobian tried to draw her firearm. Before Officer Cobian could actually draw her firearm, Reeder took his hands out of his pockets and placed them at his sides.
Officer Cobian instructed Reeder to sit down on a planter and place his hands on his knees until additional police officers arrived. Officer Cobian kept her taser pointed at Reeder. As more officers were arriving at the scene, Reeder told Officer Cobian that he did not listen to, or respect, female police officers. Officer Cobian noted that Reeder appeared to be intoxicated, and decided to arrest him for public intoxication. Officer Cobian instructed the arriving officers, Officer Simmons and Officer Becker, to arrest Reeder. Officers Simmons and Becker grabbed Reeder, handcuffed him, and placed him in the back seat of Officer Cobian's patrol car.
While Reeder was seated in the back of the patrol car, he asked Officer Cobian why he was being arrested. Officer Cobian explained to Reeder that he was being arrested for being drunk in public. Reeder told Officer Cobian that the last time he was arrested for being drunk, he had headbutted the arresting officer in the sally port of the jail. By this time, additional officers had responded to the scene. Officer Cobian informed all of the responding officers of Reeder's statements and requested assistance in taking Reeder to jail.
Officer Cobian drove Reeder to jail. Officers Thomas and Winters followed Officer Cobian in a separate car. As Officer Cobian was getting out of her car at the jail, Reeder told her that he would be looking for her at a time when she did not have her gun in her possession. Reeder added, "I guarantee I will find you." Officer Cobian asked Reeder what he meant by the statement. Reeder smiled and responded that he was too smart to answer that question.
Officers Cobian, Winters and Thomas removed Reeder from Officer Cobian's car and walked him to an intake area in the jail. Officer Winters instructed Reeder to stand on a red line and face a plexiglass window. While still handcuffed, Reeder began to twist and jab his elbows at Officers Winters and Thomas. Officers Cobian, Winters, and Thomas immediately pushed Reeder against a wall and instructed him to stop resisting. Reeder refused to comply with the officers directions. He pushed and jerked his body and head back toward the officers, and kicked at the officers with his feet. Officer Cobian looked at Officer Thomas and said, "To the ground." The three officers then pulled Reeder to the ground and pushed his chest against the floor. Additional officers came to the scene. The officers eventually subdued Reeder and conducted an intake search.
After the officers completed the intake search, Officers Cobian, Thomas and Winters took Reeder to a nearby medical area of the jail for additional intake processing. Officer Cobian instructed Reeder to sit on a bench. Reeder refused. Officers Thomas, Winters, and Cobian then attempted to physically force Reeder to sit on the bench. Reeder refused and tensed up, thwarting the officers' efforts. The officers decided to allow Reeder to stand, but kept him handcuffed. Officer Cobian instructed a nurse that the nurse would have to skip those portions of the physical examination that required Reeder to sit.
The nurse asked Reeder several questions about medications and medical problems. Reeder answered the nurse's questions. Officer Cobian remained in the room, standing to the nurse's left side. The nurse asked Reeder whether he was feeling suicidal. Reeder looked at the nurse and said, "No." Reeder then turned, looked at Officer Cobian, and said, "Just homicidal against Carlsbad."
III
DISCUSSION
A. The trial court did not err in instructing the jury regarding its consideration of evidence of Reeder's out-of-court statements pursuant to CALCRIM No. 358; Reeder has forfeited any claim that the court failed to clarify the applicability of the instruction to this case
Reeder claims that the trial court erred in instructing the jury pursuant to CALCRIM No. 358 regarding its consideration of evidence of Reeder's out-of-court statements.
1. Factual and procedural background
At trial, Officer Cobian testified regarding various statements that Reeder made on the evening he was arrested. In providing this testimony, Officer Cobian referred to her police report concerning the incident. For example, Officer Cobian testified that Reeder, "made statements to the effect [that the] last time he was taken for being drunk[,] he headbutted the officer in the sally port." The prosecutor asked Officer Cobian whether Reeder had said anything to Officer Cobian about "watching out." The following colloquy then occurred:
"[Officer Cobian]: I would have to refer to my report for any direct sentences or statements from him.
"[Prosecutor]: If you could please do. Let us know when you do.
"[Officer Cobian]: Yes. His direct quote to me ─
"[Defense counsel]: Objection. Appears she's reading from the report.
"[Officer Cobian]: I apologize.
"The Court: Thank you. Sustained.
"[Officer Cobian]: To answer you question, his direct quote was, 'Last time somebody took me in for being drunk I headbutted them in the sally port. You better watch out.'"
During a conference outside the presence of the jury regarding jury instructions, the trial court indicated that it intended to instruct the jury pursuant to CALCRIM No. 358. Defense counsel neither objected to the instruction nor requested that the court modify the instruction.
The trial court instructed the jury pursuant to a modified version of CALCRIM No. 358, as follows:
"You have heard evidence that the defendant made oral or written statements before trial. You must decide whether or not the defendant made any such statements, in whole or in part. If you decide that the defendant made such statements, consider the statements[,] along with all the other evidence[,] in reaching your verdict. It is up to you to decide how much importance to give to such statements.
"You must consider with caution evidence of a defendant's oral statement unless it was written or otherwise recorded." (Italics added.)
The trial court also instructed the jury that evidence pertaining to police reports had been received in the case, but that the actual physical copies of the reports were not admissible evidence. The court further instructed the jury, "You should draw no inferences from the fact the actual physical copies of these reports were not marked or offered or received into evidence. You are, however, to evaluate any testimony related to these reports in the same manner you evaluate all other evidence."
2. Governing law
"When the evidence warrants, the court must instruct the jury sua sponte to view evidence of a defendant's oral admissions or confession with caution. [Citations.]" (People v. Dickey (2005) 35 Cal.4th 884, 905.) CALCRIM No. 358 constitutes a standard instruction embodying this law. However, the cautionary sentence from CALCRIM No. 358 italicized above "is not required when the defendant's incriminating statements are written or tape-recorded." (Bench Notes to Judicial Council of Cal. Crim. Jury Instns. (2008) CALCRIM No. 358; see People v. Hines (1964) 61 Cal.2d 164, 173, disapproved on another ground in People v. Murtishaw (1981) 29 Cal.3d 733, 763, fn. 40.)
We assume for purposes of this decision that Reeder is correct that, in light of this law, the trial court had a sua sponte duty to instruct the jury to view his out-of-court statements with caution. (But see People v. Zichko (2004) 118 Cal.App.4th 1055, 1060 [concluding trial court does not have sua sponte duty to instruct the jury to view a defendant's statement with caution where the statement is an element of the crime rather than an admission or confession].)
"A defendant challenging an instruction as being subject to erroneous interpretation by the jury must demonstrate a reasonable likelihood that the jury understood the instruction in the way asserted by the defendant." (People v. Cross (2008) 45 Cal.4th 58, 67-68.) A defendant may not complain on appeal that the trial court erred in failing to clarify a legally correct jury instruction unless he requested such clarification in the trial court. (See People v. Coffman (2004) 34 Cal.4th 1, 122.)
3. Application
Reeder contends that the jury might have erroneously believe that his out-of-court statements constituted "written or otherwise recorded" statements within the meaning of CALCRIM No. 358 because Officer Cobian testified regarding those statements by referring to her police report. Reeder argues that the jury may have understood CALCRIM No. 358 to provide that the jury need not view with caution the out-of-court statements as to which Officer Cobian testified.
We disagree. The language of the sentence at issue, and in particular, the use of the pronoun "it" (CALCRIM No. 358), properly conveyed to the jury the notion that the jury was to view evidence of Reeder's statement with caution unless the statement itself was recorded in such a manner so as to obviate any concern with respect to whether the statement was in fact made. (Cf. People v. Slaughter (2002) 27 Cal.4th 1187, 1200 ["'[T]he purpose of the cautionary instruction is to assist the jury in determining if the statement was in fact made. [Citation.]' [Citation.]".) We do not believe that there is a reasonable likelihood that the jury would have understood the instruction to provide that Reeder's statements were "written or otherwise recorded" because Officer Cobian documented the statements in an inadmissible police report.
"You must consider with caution evidence of a defendant's oral statement unless it was written or otherwise recorded." (Italics added.)
To the extent that Reeder is claiming that the trial court erred by failing to clarify the meaning of "otherwise recorded," it was incumbent upon him to request such clarification in the trial court. Since he did not request clarification of the instruction, Reeder has forfeited any challenge on appeal that is premised on the lack of such clarification. (See People v. Coffman, supra, 34 Cal.4th at p. 122.)
B. The trial court did not err in imposing sentences for both resisting an executive officer (§ 69) and resisting an officer (§ 148, subd. (a)(1) )
Reeder claims that the trial court erred in imposing sentences both for resisting an executive officer (§ 69) (count 1) and resisting an officer (§ 148, subd. (a)(1)) (count 2), because, he contends, count 2 is a lesser included offense of count 1.
Reeder's claim that resisting an officer (§ 148, subd. (a)(1)) is a lesser included offense of resisting an executive officer (§ 69) is premised on People v. Lacefield (2007) 157 Cal.App.4th 249, 254 (Lacefield). In Lacefield, the court explained that one may violate section 69 in two different ways:
"'The first is attempting by threats or violence to deter or prevent an officer from performing a duty imposed by law; the second is resisting by force or violence an officer in the performance of his or her duty.' [Citations.] The two ways of violating section 69 have been called 'attempting to deter' and 'actually resisting an officer.' [Citation.]" (Lacefield, supra, 157 Cal.App.4th at p. 255.)
The Lacefield court further concluded that section 69 specifies two distinct offenses, which have different elements. (Lacefield, supra, 157 Cal.App.4th at p. 258.) The Lacefield court noted that the prosecutor in that case had relied on the offense of "actually resisting an officer" (Lacefield, supra, 157 Cal.App.4th at p. 255), specified in section 69, and that the jury was instructed pursuant to CALCRIM No. 2652, which sets forth the elements of the offense of "actually resisting an officer" (Lacefield, supra, 157 Cal.App.4th at p. 255), specified in section 69. (See Lacefield, supra, 157 Cal.App.4th at p. 256.)
The Lacefield court went on to compare the elements of the two offenses specified in section 69 with the elements of section 148, subd. (a)(1). The court noted that an earlier decision, People v. Belmares (2003) 106 Cal.App.4th 19, disapproved on another ground in People v. Reed (2006) 38 Cal.4th 1224, 1228, was correct in holding that section 148, subdivision (a) is not a lesser included of the "attempt[ing] to deter" offense (Lacefield, supra, 157 Cal.App.4th at p. 255) specified in section 69. (See Lacefield, supra, 157 Cal.App.4th at p. 258.) However, the Lacefield court "part[ed] company" (id. at p. 254) with Belmares, and held, "section 148(a)(1) is a lesser included offense of the second type of offense in section 69 [actually resisting an officer] . . . ." (Lacefield, supra, 157 Cal.App.4th at p. 259, italics added.) The Lacefield court further held that a trial court is required to instruct on section 148, subdivision (a)(1) as a lesser included offense to a count that alleges a violation of section 69, if there is an evidentiary basis for the instruction.
Reeder does not claim that the trial court erred in failing to instruct the jury on count 1, resisting an executive officer (§ 69), with respect to the alleged lesser included offense of resisting an officer (§ 148, subd. (a)(1)). Rather, Reeder claims only that he cannot stand convicted of both counts 1 and 2, on the ground that multiple convictions may not be based on an offense and a lesser included offense.
We assume for the sake of argument that Lacefield is correctly decided. However, unlike in Lacefield, the jury in this case was instructed on count 1 solely as to the "attempt[ing] to deter" offense (Lacefield, supra, 157 Cal.App.4th at p. 255), specified in section 69. The Lacefield court recognized that section 148, subdivision (a) is not a lesser included offense of the "attempting to deter" offense specified in section 69. Accordingly, we conclude that under the circumstances of this case, the trial court did not err in imposing sentences for both resisting an executive officer (§ 69) and resisting an officer (§ 148, subd. (a)(1)).
In this case, the trial court instructed the jury pursuant to CALCRIM No. 2651, while in Lacefield the trial court instructed the jury pursuant to CALCRIM No. 2652. (Lacefield, supra, 157 Cal.App.4th at p. 256.)
In light of our conclusion, we need not consider the People's argument that Reeder was properly punished of both counts because each conviction arose from a separate act. (See People v. Greer (1947) 30 Cal.2d 589, 600, overruled on another ground in People v. Fields (1996) 13 Cal.4th 289, 308, fn. 6 [stating that there is no bar to a criminal defendant suffering convictions of both a lesser and a greater offense in the same case, where the convictions arise from separate acts].)
C. Section 654 does not prohibit the trial court's imposition of sentence on both counts 2 and 3
Reeder claims that the trial court erred in imposing sentences for resisting an officer (§ 148, subd. (a)(1)) (count 2) and public intoxication (§ 647, subd. (f)) (count 3) in addition to sentencing him for resisting an executive officer (§ 69) (count 1), because, he maintains, section 654 precludes the sentences on counts 2 and 3.
Although Reeder failed to raise a section 654 claim in the trial court, "[i]t is well settled . . . that [a] court acts in 'excess of its jurisdiction' and imposes an 'unauthorized' sentence when it erroneously stays or fails to stay execution of a sentence under section 654. [Citations.]" (People v. Scott (1994) 9 Cal.4th 331, 354, fn. 17.) Reeder is not precluded from raising a section 654 claim for the first time on appeal. (See People v. Flowers (1982) 132 Cal.App.3d 584, 589 ["The question of the applicability of Penal Code section 654 was not raised at the sentencing hearing, but the absence of any objection does not obviate our duty to review the section 654 question"].)
Section 654 provides in relevant part: "(a) An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision. An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other."
Section 654 prohibits multiple punishment where a single criminal act or omission violates more than one penal statute. This statutory prohibition has also been extended to cases in which an indivisible course of conduct with a single objective violates several different penal statutes. (See Neal v. State of California (1960) 55 Cal.2d 11, 19.) "If all of the crimes were merely incidental to, or were the means of accomplishing or facilitating one objective, a defendant may be punished only once. [Citation.] If, however, a defendant had several independent criminal objectives, he may be punished for each crime committed in pursuit of each objective, even though the crimes shared common acts or were parts of an otherwise indivisible course of conduct. [Citation.]" (People v. Perry (2007) 154 Cal.App.4th 1521, 1525.)
In reviewing the trial court's implicit determination that section 654 does not apply, we determine only whether there is substantial evidence to support the trial court's finding. (See People v. Osband (1996) 13 Cal.4th 622, 730-731 (Osband).)
Accordingly, in this case, we must determine whether there is substantial evidence to support the trial court's implicit finding that Reeder held different objectives when he committed the offenses underlying counts 1, 2, and 3. (See Id. at pp. 730-731 [considering whether "substantial evidence sustains the court's implicit determination that [defendant] held more than one objective when he committed the crimes against [victim]"].)
In proving that Reeder was guilty of public intoxication (§ 647, subd. (f)) (count 3), the People presented evidence that Reeder "was willfully under the influence of alcohol." CALCRIM No. 2966. Specifically, Officer Cobian testified that Reeder smelled of alcohol, that his gait was unsteady, that his speech was slow and slurred, and that he had difficulty following her questions. Plainly, there was substantial evidence to support a finding that Reeder's objective in becoming intoxicated in a public place differed from his objective in committing either of the offenses charged in counts 1 and 2, which relate to Reeder's conduct in threatening and resisting Officer Cobian. Thus, section 654 does not preclude imposition of a separate sentence on count 3.
With respect to count 1, the People presented evidence that Reeder told Officer Cobian that the last time that he was arrested for being drunk, he "headbutted" the arresting officer. Reeder made this statement while he was in Officer Cobian's car, shortly after having been arrested. The trial court could have reasonably found that Reeder's objective in making such a statement was to threaten and intimidate Officer Cobian.
With respect to count 2, the People presented evidence that Reeder refused to comply with Officer Cobian's commands, as well as those of her fellow officers, during the booking process, and that Reeder physically resisted the officers when they attempted to gain his compliance with their instructions. The trial court could reasonably have found that Reeder's intent in offering such resistance was to inhibit the officers from completing the booking process. Thus, the record contains substantial evidence to support the trial court's implicit finding that Reeder held different objectives when he committed counts 1 and 2.
In his brief, Reeder notes that during the prosecutor's closing argument, she referred to the statements Reeder made to Officer Cobian after his arrest in her patrol car, and also referred to Reeder's threats and his resistance during the booking process, in support of her claim that the People had proven count 1. Reeder further notes that the prosecutor referred to the same acts in arguing that the People had also proven count 2. Assuming that this is true, in determining whether the trial court erred in failing to stay imposition of the sentences on counts 2 and 3, this court must determine whether there is substantial evidence to support the trial court's implicit findings that Reeder harbored separate criminal objectives with respect to each count for which the trial court imposed punishment. (See People v. Andra (2007) 156 Cal.App.4th 638, 640 [in reviewing section 654 claim on appeal, "The defendant's intent and objective present factual questions for the trial court, and its findings will be upheld if supported by substantial evidence"].) There is such evidence in this case, as discussed in the preceding paragraphs. Reeder provides no authority or argument for the proposition that the prosecutor's closing argument to the jury is dispositive of this question.
Reeder does not claim on appeal that the trial court erred in failing to instruct the jury that it must unanimously determine which acts constituted the violations alleged in counts 1, 2, and 3.
Accordingly, we conclude that section 654 does not preclude the trial court from imposing sentences on both counts 2 and 3.
D. The trial court did not violate Reeder's constitutional rights to a jury trial or to proof beyond a reasonable doubt in imposing sentences on counts 2 and 3
Reeder claims that the trial court violated his constitutional rights to a jury trial and to proof beyond a reasonable doubt in sentencing him on counts 2 and 3, by implicitly determining that section 654 does not apply to those counts. Reeder's claim raises a question of law, which we review de novo. (E.g., People v. Butler (2003) 31 Cal.4th 1119, 1127.)
Reeder notes that "[a] criminal defendant has the right to jury trial and proof beyond a reasonable doubt as to any fact, other than the fact of a prior conviction 'that increases the penalty for a crime beyond the prescribed statutory maximum.'" (Quoting Apprendi v. New Jersey (2000) 530 U.S. 466, 470 (Apprendi) and Cunningham v. California (2007) 549 U.S. 270, ___, 127 S.Ct. 856, 864 (Cunningham).) Reeder contends that, pursuant to section 654, "the statutory maximum penalty that may be imposed for a series of offenses committed during a single indivisible transaction is the punishment authorized by the code section authorizing the greatest punishment," unless the defendant harbored separate purposes or intents in committing the offenses. Reeder argues that a trial court may not make findings of fact that are relevant to determining whether section 654 applies, because to do so would violate a criminal defendant's constitutional rights to a jury trial and to proof beyond a reasonable doubt.
In People v. Steele (2008) 164 Cal.App.4th 1195, 1211 (Steele), the court rejected a nearly identical argument, stating, "A section 654 finding does not increase the maximum statutory penalty for the particular crimes." The Steele court also rejected the defendant's claim that, under Cunningham, supra, 549 U.S. 270, a jury must determine whether section 654 applies. The Steele court reasoned:
"In People v. Black (2005) 35 Cal.4th 1238, 1263-1264, 29 Cal.Rptr.3d 740, 113 P.3d 534 (Black I), the California Supreme Court concluded that a section 654 decision did not require a jury trial. Although other portions of Black I were undermined by Cunningham, this portion was not addressed by the United States Supreme Court. We must follow existing California Supreme Court precedent." (Steele, supra, 164 Cal.App.4th at p. 1211.)
In Black I, the California Supreme Court stated:
"In addition, California cases held that Apprendi does not apply to the factual determinations made by the trial judge in connection with the decision whether to stay sentences on particular counts under the provisions of Penal Code section 654 prohibiting multiple punishment. [Citations.] Nothing in [Blakely v. Washington (2004) 542 U.S. 296] or [United States v. Booker (2005) 543 U.S. 220] undermines the conclusions reached in these cases. For purposes of the right to a jury trial, the decision whether section 654 requires that a term be stayed is analogous to the decision whether to sentence concurrently. Both are sentencing decisions made by the judge after the jury has made the factual findings necessary to subject the defendant to the statutory maximum sentence on each offense, and neither implicates the defendant's right to a jury trial on facts that are the functional equivalent of elements of an offense." (Black I, supra, 35 Cal.4th at pp. 1263-1264.)
In People v. Black (2007) 41 Cal.4th 799, 821 (Black II), the California Supreme Court concluded that "Cunningham . . . does not undermine our previous conclusion that imposition of consecutive terms . . . does not implicate a defendant's Sixth Amendment rights." While the Black II court did not expressly address its conclusion in Black I regarding section 654, in view of the fact that the two issues are "analogous" (Black I, supra, 35 Cal.4th at p. 1264), we agree with the Steele court that Cunningham did not abrogate Black I's conclusion that the decision whether to apply section 654 does not implicate a defendant's constitutional right to a jury trial or to proof beyond a reasonable doubt, pursuant to Apprendi and its progeny. (Steele, supra, 164 Cal.App.4th at p. 1211.)
E. The trial court's imposition of a 272-day sentence on count 3 for Reeder's misdemeanor conviction for public intoxication (§ 647, subd. (f)) is unauthorized
Reeder claims that the trial court's imposition of a 272-day sentence on count 3 for his misdemeanor conviction for public intoxication (§ 647, subd. (f)) is unauthorized and requests that this court reduce his sentence to 180 days.
The People concede the error and agree that Reeder's sentence on count 3 should be reduced to 180 days. Section 647 provides in relevant part: "Every person who commits any of the following acts is guilty of disorderly conduct, a misdemeanor [¶] . . . [¶] (f) Who is found in any public place under the influence of intoxicating liquor . . . ." Section 647 does not provide a punishment for a violation of subdivision (f) of the statute. Section 19 provides, "Except in cases where a different punishment is prescribed by any law of this state, every offense declared to be a misdemeanor is punishable by imprisonment in the county jail not exceeding six months, or by fine not exceeding one thousand dollars ($1,000), or by both."
Accordingly, we conclude that Reeder's sentence on count 3 shall be reduced to 180 days in imprisonment in the county jail.
The People do not argue that the $1,000 fine must be imposed, nor does Reeder argue that this court must remand the matter to the trial court for resentencing for the possible imposition of a sentence of less than the 180 day statutory maximum. Under these circumstances, we conclude that it is appropriate to order Reeder's sentence reduced to 180 days in accordance with the parties' contentions on appeal.
IV
DISPOSITION
The sentence on count 3 is modified to 180 days imprisonment in the county jail. The trial court is instructed to prepare an amended abstract of judgment reflecting this change and to deliver the abstract to the Department of Corrections and Rehabilitation. In all other respects the judgment is affirmed.
WE CONCUR: McCONNELL, P. J., McDONALD, J.