NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
| THE PEOPLE,
Plaintiff and Respondent,
v.
JOHNNY LIVERNE WARE,
Defendant and Appellant.
|
F076490
(Super. Ct. No. BF167596A)
OPINION |
THE COURT*
APPEAL from a judgment of the Superior Court of Kern County. Gary T. Friedman, Judge.
John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephanie A. Mitchell and Daniel B. Bernstein, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Defendant Johnny Liverne Ware contends on appeal that one of his two convictions must be reversed because it is a lesser included offense of the other. The People concede. We agree, and reverse the lesser included offense conviction.
BACKGROUND
On March 12, 2017, defendant was arrested in an alley for possession of a pipe that appeared to be used for smoking methamphetamine. The officer placed defendant in his patrol car and warned him that if he had any illegal drugs on him while being booked into the jail, he would be charged with a felony. The officer asked defendant if he had any drugs on him. Defendant claimed he did not. At the jail, the officer found a bindle of methamphetamine in defendant’s pocket.
On August 7, 2017, defendant was convicted by jury trial of possession of methamphetamine in a penal institution (Pen. Code, § 4573.6;[1] count 1), possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a); count 2), and possession of drug paraphernalia (Health & Saf. Code, § 11364, a misdemeanor; count 3). The trial court found true the allegation that defendant had suffered a prior felony conviction within the meaning of the “Three Strikes” law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)).
On September 11, 2017, the trial court sentenced defendant to six years in prison on count 1 (the midterm of three years, doubled); four years on count 2 (the midterm of two years, doubled), stayed pursuant to section 654; and 180 concurrent days on count 3.
On October 24, 2017, defendant filed a notice of appeal.
DISCUSSION
Defendant contends his conviction for possession of methamphetamine (count 2) must be reversed because it is a lesser included offense of possession of methamphetamine in a penal institution (count 1). The People concede, and we agree.
“[A] crime is necessarily included within a greater crime if the greater crime ‘cannot be committed without also necessarily committing’ the lesser offense.” (People v. Milward (2011) 52 Cal.4th 580, 588.) “A defendant … cannot be convicted of both an offense and a lesser offense necessarily included within that offense, based upon his or her commission of the identical act.” (People v. Sanchez (2001) 24 Cal.4th 983, 987, overruled on another ground in People v. Reed (2006) 38 Cal.4th 1224-1228-1229.) A person cannot possess methamphetamine in a penal institution without possessing methamphetamine. Defendant’s convictions for these two offenses were both based on his possession of the bindle of methamphetamine that was found in his pocket at the jail. Accordingly, defendant’s conviction for possession of methamphetamine (count 2) must be reversed.
DISPOSITION
The judgment of conviction for possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a); count 2) is reversed. In all other respects, the judgment is affirmed. The matter is remanded to the trial court with instructions to prepare an amended abstract of judgment and to forward certified copies to the appropriate entities.
