P. v. SITHIXAY

Filed 4/28/06

CERTIFIED FOR PARTIAL PUBLICATION^*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Tulare County. Valeriano Saucedo, Judge.

Susan Burke, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, Wanda Hill Rouzan, Deputy Attorney General, for Plaintiff and Respondent.

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This case again raises the unsettled question of whether Penal Code section 654 requires the trial court to stay one of two sentences imposed for the same act where one of the sentences was for an enhancement, not a punishment for a freestanding offense. In the published portion of this opinion, we hold that section 654 was applicable because the enhancement was based on defendant's conduct in committing the crime--not a status such as having a record of prior convictions. We also reject the People's argument that the two sentences were not based on a single indivisible course of conduct with a single objective and accept defendant's contention regarding which of the sentences must be stayed.

In the unpublished portion of the opinion, we explain that we will remand to permit the trial court to determine, in light of our decision, whether one of the other sentences it imposed should run consecutively, subject to the limitation that the aggregate sentence on remand not exceed the original sentence.

FACTUAL AND PROCEDURAL HISTORIES

Police entered the home of defendant Sithixay Manila's parents to search for narcotics pursuant to a search warrant. Defendant fled through the back door and was apprehended outside.

In a bedroom, officers found a loaded handgun under a mattress, $1,500 in $100 bills in a shirt in the closet, two cell phones, two digital scales, and a bag containing five bindles of an off-white substance. Mail addressed to defendant and a wallet containing defendant's California identification card were also in the room. More bindles of an off-white substance were found elsewhere in the house. The contents of the bindles were later tested and found to be cocaine base and methamphetamine. Defendant's mother told officers the bedroom was defendant's, though she later said other people also used it.

The District Attorney filed an information charging four counts: (1) possession of cocaine base for sale (Health & Saf. Code, § 11351.5); (2) possession of methamphetamine for sale (Health & Saf. Code, § 11378); (3) possession of a firearm by a convicted felon (Pen. Code, § 12021, subd. (a)(1)); and (4) resisting arrest (Pen. Code, § 148, subd. (a)(1)). The information further alleged that defendant was personally armed with a firearm in the commission of the crimes charged in counts 1 and 2 (Pen. Code, § 12022, subd. (c)), and that defendant had a prior strike (a voluntary manslaughter conviction) within the meaning of the three strikes law (Pen. Code, § 1170.12, subd. (c)(1)).

A jury found defendant guilty of counts 1, 2, and 4 and found true the allegation of being armed in the commission of the drug offenses. In a separate proceeding, the court found defendant guilty of count 3 and found the prior-strike allegation true. It sentenced defendant to a term of 12 years on count 1, consisting of the middle term of four years, doubled for the prior strike, and four years for the enhancement of being armed. The court imposed concurrent sentences for the remaining charges, including a four-year concurrent sentence for being a felon in possession of a firearm, consisting of the middle term of two years, doubled for the prior strike.

DISCUSSION

Defendant's appeal is addressed only to his sentence. He contends that the concurrent sentence for being a felon in possession of a firearm and the consecutive sentence for the enhancement for being armed in the commission of the cocaine possession offense were for the same criminal act. Consequently, he alleges one of them (specifically, the consecutive one for the enhancement) should have been stayed pursuant to section 654.

Section 654 provides:

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