Filed 4/3/18 P. v. Guzman CA4/3






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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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE


THE PEOPLE,

Plaintiff and Respondent,

v.

AMPARO JOSE GUZMAN,

Defendant and Appellant.


G054842

(Super. Ct. No. 16NF2629)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Gary S. Paer, Judge. Affirmed as modified.
Donna L. Harris, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry J. Carlton and Susan Elizabeth Miller, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
Defendant Amparo Jose Guzman was charged in the information with transporting methamphetamine for sale (Health & Saf. Code, § 11379, subd. (a); count one), possession of methamphetamine for sale (§ 11378; count two), and driving on a suspended license (Veh. Code, §14601.1, subd. (a); count three). Guzman pled guilty to the Vehicle Code violation before trial and sentencing was continued until after the trial on the drug charges. The jury acquitted defendant of the offenses charged in counts one and two, and convicted him of two counts of misdemeanor possession of methamphetamine (§ 11377, subd. (a)), as lesser included offenses of counts one and two. The court placed defendant on three years of informal probation and, in addition to other terms and conditions of probation, ordered defendant to serve 60 days in custody and register as a narcotics offender, purportedly pursuant to section 11590. The court imposed a fine on the Vehicle Code conviction.
Defendant contends one of his two convictions for possession of methamphetamine must be vacated because both convictions are based on the same possession. He also argues the drug registration requirement must be stricken because it does not apply to misdemeanor convictions for possession of methamphetamine. He is correct on both points and the Attorney General properly concedes.
I
FACTS
For purposes of the issues raised, the following limited rendition of the facts suffice. A vehicle driven by Guzman was stopped by a Placentia Police Officer on September 23, 2016. Defendant and the vehicle were searched. The officer found a clear plastic baggie containing 25.805 grams of methamphetamine in a pocket of defendant’s. Two pipes used for smoking methamphetamine were found in the vehicle. A defense expert testified the methamphetamine was possessed for personal use.
II
DISCUSSION
Defendant was charged with violation of two different Health and Safety Code violations based on the same possession of methamphetamine: Transportation for purposes of sale (§ 11379, subd. (a)), and possession of methamphetamine for sale (§ 11378). The Penal Code permits a defendant to be charged and convicted of two different offenses based on the same conduct. (Pen. Code, § 954.) If convicted of the two different offenses, the defendant may be punished for one, but not both offenses. (Pen. Code, §654, subd. (a).) However, a defendant cannot be convicted of two violations of the same statute based on a single act of possession. (People v. Vidana (2016) 1 Cal.5th 632, 647-648 [defendant cannot be convicted of two thefts based on one act of theft]; People v. Smith (2012) 209 Cal.App.4th 910, 917 [defendant cannot be convicted of multiple counts of indecent exposure based on a single act of exposure]; People v. Coyle (2009) 178 Cal.App.4th 209, 217-218 [defendant could not be convicted of three counts of murder based on one death].)
Defendant was convicted of two counts of possessing methamphetamine (§ 11377, subd. (a)), as lesser included offenses in counts one and two. Defendant possessed only one item containing methamphetamine, the baggie in his pocket. Because he cannot be convicted of multiple counts of the same offense for a single act of possessing a drug, we will order his conviction for possession of methamphetamine in count two vacated.
The trial court ordered defendant to register as a drug offender based on his misdemeanor convictions for possession of methamphetamine. Section 11590, the drug registration statute, by its express terms, does not apply to misdemeanor convictions of section 11377, subdivision (a). “This section does not apply to a conviction of a misdemeanor under Section 11357, 11360, or 11377.” (§ 11590, subd. (c).) Thus, the trial court erred when it ordered defendant to register as a drug offender pursuant to section 11590.
III
DISPOSITION
Defendant’s conviction for violation of section 11377, subdivision (a), as a lesser included offense of count two is vacated, and the drug registration requirement imposed by the trial court is stricken. In all other respects, the judgment is affirmed.



MOORE, J.

WE CONCUR:



O’LEARY, P. J.



BEDSWORTH, J.