P. v. Koziar

Filed 10/26/06 P. v. Koziar CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Robert F. Fitzgerald, Judge. (Retired judge of the Orange Super. Ct., assigned by the Chief Justice pursuant to Cal. Const., art. VI, § 6.) Affirmed as modified and remanded with directions.

Anna M. Jauregui, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson and Mary Jo Graves, Chief Assistant Attorneys General, Gary W. Schons, Assistant Attorney General, Pamela Ratner Sobeck and Ronald A. Jakob, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant Theodore V. Koziar’s sentence for transportation of a controlled substance was enhanced by three prior drug convictions. Defendant argues that two of those convictions arose from the same set of facts, and he should therefore have been given only one enhancement for both to avoid dual punishment. We agree and therefore order the judgment modified accordingly. Defendant also argues an error was made calculating his custody credits. We find that he is partly correct and order the judgment modified accordingly.

I

FACTS

Defendant was found guilty of transportation of a controlled substance in violation of Health and Safety Code section 11379, subdivision (a), and possession of a controlled substance for purpose of sale in violation of Health and Safety Code section 11378. In a separate hearing, the court found defendant had three prior convictions within the meaning of Health and Safety Code section 11370.2 (section 11370.2), and had served two prior prison terms within the meaning of Penal Code 667.5, subdivision (b). The trial court sentenced defendant to 13 years in state prison, consisting of the upper term of four years for the transportation conviction and three years for each enhancement under section 11370.2.

Defendant appealed, and we reversed in part. (People v. Koziar (Apr. 28, 2005, G033585) [nonpub. opn.].) We remanded for a hearing on the prior conviction allegations, as the record did not contain any evidence supporting the trial court’s findings. (Ibid.) We also directed the trial court to reconsider its imposition of the upper term for the transportation conviction in light of Blakely v. Washington (2004) 542 U.S. 296. (Ibid.)

After remand, the court conducted a new hearing on the prior conviction allegations. Based on the evidence presented, the court found the allegations true regarding the three section 11370.2 and two Penal Code section 667.5, subdivision (b) prior convictions. The trial court resentenced defendant to 13 years in prison, reflecting the middle term of three years for the transportation conviction, three years for each of the section 11370.2 enhancements, and one year for one the Penal Code section 667.5, subdivision (b) enhancements. The court stayed imposition of sentence of the remaining possession for sale count pursuant to Penal Code section 654 (section 654). Defendant received 133 days of presentence custody credit, consisting of 89 actual days and 44 days of local conduct credit.

II

DISCUSSION

Sentence Enhancements

Defendant argues that section 654 barred the trial court from imposing more than two enhancements under section 11370.2 because two of the three underying convictions were based on a single act. Respondent argues there was no error because the Legislature exempted section 11370.2 from the operation of section 654, and that in any event, the prior offenses constituted separate acts.

We briefly review the circumstances of the prior offenses. On August 6, 1992, defendant was driving in a car in which police found a bag containing 18 ziplock bags of methamphetamine and burnt marijuana in a smoking pipe. On a subsequent search of defendant’s home, which apparently took place on April 7, 1993, the police found 10 grams of methamphetamine and some marijuana. Both incidents were incorporated into one case. Defendant pled guilty to one count of possession of a controlled substance for sale (Health & Saf. Code, § 11378) and one count of transportation of a controlled substance (Health & Saf. Code, § 11379, subd. (a)) based on the August 6, 1992 vehicle stop. Based on the search of his home, defendant pled guilty to possession of a controlled substance for sale (Health & Saf. Code, § 11378) and possession of a controlled substance with a firearm (Health & Saf. Code, § 11370.1).

Defendant was originally granted probation, but following a violation, he was sentenced to prison. In June 1995, defendant was sentenced to 16 months for the Health and Safety Code section 11378 conviction arising out of the 1992 vehicle stop. The court stayed imposition of sentence for all other offenses.

In the present case, defendant was sentenced to three enhancements under section 11370.2: two for prior possession for sale convictions and one for transportation of a controlled substance. Defendant claims section 654 bars the imposition of the enhancement for one of the 1992 incidents, arguing possession for sale and transportation of a controlled substance were based on the same act.

Health and Safety Code section 11370.2 creates sentence enhancements for certain drug offenders with previous drug-related felony convictions. Subdivision (c), relevant here, states: “Any person convicted of a violation of, or of a conspiracy to violate, Section 11378 or 11379 . . . shall receive, in addition to any other punishment authorized by law, including Section 667.5 of the Penal Code, a full, separate, and consecutive three-year term for each prior felony conviction of, or for each prior felony conviction of conspiracy to violate, Section . . . 11378 . . .11379 . . . whether or not the prior conviction resulted in a term of imprisonment.”

Section 654 states: “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.”

In People v. Pearson (1986) 42 Cal.3d 351 (Pearson), the California Supreme Court recognized that “[S]ubsequent sentences imposed on defendant can be enhanced on the basis of the convictions for which he served a sentence; but convictions for which service of sentence was stayed may not be so used unless the Legislature explicitly declares that subsequent penal or administrative action may be based on such stayed convictions. Without such a declaration, it is clear that section 654 prohibits defendant from being disadvantaged in any way as a result of the stayed convictions.” (Id. at p. 361.)

We agree that the Legislature intended that section 11370.2 would permit, by its plain language, the enhancement to be triggered by previous convictions for which the offender had never been sentenced to prison, such as cases where a first-time offender had been sentenced to probation. Its plain language also permits the use of multiple enhancements, such as section 11370.2 and Penal Code section 667.5, subdivision (b), arising from the same offense. (People v. Gokey (1998) 62 Cal.App.4th 932, 936.) By extension, the language “whether or not the prior conviction resulted in a term of imprisonment” would logically include stayed convictions such as defendant’s possession conviction arising from the 1993 search of his home.^[1] Thus, in most circumstances, section 11370.2 would allow the use of stayed convictions as the basis for the enhancement.

We find no indication, however, that the Legislature intended section 11370.2 to allow an offender to be punished twice where section 654 would otherwise prohibit such a sentence. Where, as here, a defendant has two prior convictions necessarily arising from the act, the previously stayed conviction cannot be used as the basis for an enhancement when it would result in being punished twice for the same act. There is no evidence that the Legislature intended such a result, nor would such a result be logical. If double punishment for the two convictions at the time the crimes were committed is not permitted, there is no logical basis for allowing double punishment for those same crimes years later. As the court noted in Pearson: “Although it is true that ‘increased penalties for subsequent offenses are attributable to the defendant’s status as a repeat offender and arise as an incident of the subsequent offense rather than constituting a penalty for the prior offense’ [citation] a defendant’s status as a repeat offender relates to the number of wrongful acts he committed, not to the number of his convictions.” (Pearson, supra, 42 Cal.3d at pp. 362-363.)

The cases respondent cites do not hold otherwise, but address different factual situations. People v. Powell (1991) 230 Cal.App.3d 438, held that section 654 did not bar the imposition of a prior prison term enhancement as well as the section 11370.2 enhancement, based on the language “in addition to any other punishment authorized by law, including Section 667.5 . . . .” People v. Gokey, supra, 62 Cal.App.4th at p. 935. addressed the same situation.

In People v. Lopez, (1992) 11 Cal.App.4th 844, the defendant was convicted of both offering to sell and transporting cocaine. He was sentenced to four years on each count, but the conviction on the transportation conviction was stayed pursuant to section 654. The court held this was proper. (Id. at p. 847.) The court further noted: “While appellant contends such a stay will not protect him from future punishment resulting from conviction on count two -- in particular, enhancement of sentence pursuant to Health and Safety Code section 11370.2 -- People v. Pearson, supra, 42 Cal.3d at page 361, holds that the Penal Code section 654 stay does adequately provide such protection. Neither [cases cited] by appellant[] involved an attempt by the trial court to impose an enhancement based upon a conviction for which punishment was stayed pursuant to Penal Code section 654, and neither case stands for the proposition that such an enhancement could be imposed under Health and Safety Code section 11370.2.” (Id. at p. 850, fn. omitted.)

While this is dicta, we agree with the analysis. Indeed, if not adopted, it would frustrate the course of both legislation and jurisprudence undertaken since Neal v. State of California (1960) 55 Cal.2d 11, that has gone to great lengths to permit multiple convictions while avoiding multiple punishment for the same acts.

Permitting two enhancements from the convictions arising from the 1992 vehicle stop would create just such a result. Defendant would be punished twice for a single course of conduct. We further reject respondent’s argument that the two convictions based on the 1992 vehicle stop -- possession for sale and transportation of a controlled substance -- were not an indivisible transaction. Offenses involving transportation of the same drugs that are possessed to sell have only a single goal and objective, and can only be punished once. (See, e.g., People v. Lopez, supra, 11 Cal.App.4th at p. 850.) To hold otherwise, as defendant notes, would allow an offender who was walking down the street while possessing drugs for sale to be punished for both possession and transportation, a clearly absurd result.

In sum, while in most situations section 11370.2 may be used to enhance a sentence regardless of whether imprisonment was imposed, it cannot be when it would result in sentencing an offender to two enhancements for the same act. “[D]efendant’s status as a repeat offender relates to the number of wrongful acts he committed, not to the number of his convictions.” (Pearson, supra, 42 Cal.3d at pp. 362-363.) Thus, we find that both the transportation and possession for sale counts from 1993 arose from the same acts, and only one enhancement is appropriate. The enhancement for the second 1993 possession conviction arose from a later act, and is also appropriate. Therefore, defendant’s sentence may enhanced twice, but not three times, under section 11370.2, and we shall order the judgment modified accordingly.

Because we agree with defendant on the question of statutory construction, we need not address his arguments regarding double jeopardy or ineffective assistance of counsel.

Custody Credits

At the resentencing hearing on August 26, 2005, defendant received 133 days of presentence custody credit, consisting of 89 actual days and 44 days of local conduct credit. These are the same credits he received at the original sentencing hearing in February 2004. Defendant argues the court failed to recalculate the actual time he served up until the date of the new sentence and conduct credits from the date of the reversal (April 28, 2005) to the date of the resentencing. Respondent agrees that defendant is entitled to actual time credits, and we shall order those recalculated and the judgment corrected accordingly.

With respect to the conduct credits, defendant argues he is entitled to credit for the period between our partial reversal and his resentencing. He argues this case is closer to those in cases where a conviction was reversed, as opposed to the case being remanded for correction of sentencing error. We believe, however, that this case is closer to those in which a limited remand occurred to correct a sentencing error. In the case upon which defendant relies, People v. Donan (2004) 117 Cal.App.4th 784, the entire judgment, including all convictions, was reversed, not merely the sentence.

(Id. at p. 786.) Unlike the defendant in Donan, defendant remained a convicted felon and was therefore not entitled to conduct credits. (People v. Johnson (2004) 32 Cal.4th 260.)

III

DISPOSITION

The judgment is affirmed as modified. The matter is remanded to the superior court. The court is directed to recalculate defendant’s actual time credits and to amend the abstract of judgment accordingly.

The clerk of the superior court is directed to amend the abstract of judgment to delete one of the three-year enhancements pursuant to section 11370.2, subdivision (c), for a total sentence of 10, rather than 13, years.

The clerk of the superior court is further directed to forward a certified copy of the amended abstract of judgment to the Department of Corrections forthwith.

MOORE, J.

WE CONCUR:

RYLAARSDAM, ACTING P. J.

FYBEL, J.

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^[1] From the abstract of judgment of the 1993 convictions it is not clear precisely why the three remaining convictions were stayed. Notably, the “654 stay” boxes are not checked. The abstract merely notes: “Sentence stayed pending successful completion of [sentence] on count 1, then stayed perm.” While count two, which, like count one, arose from the vehicle stop, should, logically, have been stayed pursuant to section 654, no legal basis is indicated for staying the other counts.