Filed 4/24/18 P. v. Ortiz CA4/3



NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE



THE PEOPLE,

Plaintiff and Respondent,

v.

LUIS MANUEL ORTIZ,

Defendant and Appellant.


G054162

(Super. Ct. No. 15WF0452)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Sheila F. Hanson, Judge. Affirmed.
Robert L.S. Angres, 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, Arlene A. Sevidal, Andrew S. Mestman and Elizabeth M. Kuchar, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
A jury convicted defendant Luis Manuel Ortiz of one count of conspiracy to sell methamphetamine, three counts of selling methamphetamine, and other related drug crimes. The jury also found true a gang allegation as to each conviction.
The trial court imposed a punishment for the conspiracy count and for each of the three sales counts. Defendant contends that his sentence violates the statutory proscription against multiple punishments. (Pen. Code, § 654.) We disagree. The conspiracy to sell methamphetamine lasted nearly a year and included hundreds of transactions, many more than three sales convictions for which defendant was punished.
Defendant also contends that his abstract of judgment incorrectly labels the conspiracy conviction as a violent felony. The conspiracy conviction was definitely not a violent felony. (See § 667.5, subd. (c).) The Attorney General agrees.
We affirm the judgment. We also order the trial court to correct the abstract of judgment.

I
FACTS AND PROCEDURAL BACKGROUND
Between June 5, 2014 and March 4, 2015, gang officers investigated drug sales occurring out of a home located on Charle Street in Costa Mesa. During this time, defendant was seen making “hundreds” of hand-to-hand sales transactions. Defendant was assisted by members of Forming Kaos (FK), a criminal street gang. The gang members acted as bodyguards; one gang member was armed with a knife, another with a gun. About 50 drug transactions per day occurred out of the Charle Street home.
On June 13, 2014, defendant left the Charle Street home and drove his truck to a nearby Travelodge motel. Defendant took a bicycle out of the truck bed and rode it to an intersection where he sold .85 grams of methamphetamine to one person.
On July 31, 2014, defendant left the Charle Street home and drove to a nearby U-Haul facility. Defendant sold .253 grams of methamphetamine to one person and .141 grams to another person.
On March 4, 2015, the police conducted a search of the Charle Street home. The police discovered methamphetamine, heroin, narcotics pipes, baggies, a scale, and just over $30,000 in cash.
On March 17, 2015, police arrested defendant. Police found about 12 total grams of methamphetamine (worth about $250) on defendant’s person and in his truck.

Court Proceedings
In an information, the prosecution charged defendant with several drug-related crimes, including that defendant conspired with six other named individuals to sell methamphetamine. (§ 182, subd. (a)(1).) The information specified eight “overt acts” of the conspiracy, specifically that defendant and the coconspirators allegedly sold drugs out of the Charle Street home on unspecified dates from June 5, 2014 to March 4, 2015. The information further alleged that each of the charged crimes were committed “for the benefit of, at the direction of, and in association with FORMING KAOS, a criminal street gang.” (§ 186.22, subd. (b)(1).)
The jury found defendant guilty of a conspiracy to sell methamphetamine (count one, June 5, 2014 to March 4, 2015), three counts of selling methamphetamine (count two, June 13, 2014; count three, July 31, 2014; count four, July 31, 2014), possession of methamphetamine for sale (count nine, March 17, 2015), and transportation of methamphetamine (count ten, March 17, 2015). (§ 182, subd. (a)(1); Health & Saf. Code, §§ 11379, subd. (a), 11378.) The jury also found true the gang allegations as to each substantive offense.
The trial court sentenced defendant to an aggregate term of seven years, eight months. The court selected the middle term (three years) for the conspiracy offense, the middle term (three years) for its gang enhancement, one-third the middle term (one year) for the sales offense alleged in count two, and one-third the middle term (eight months) for its gang enhancement. The court imposed concurrent sentences in count three (sales), count four (sales), and count ten (transportation). The court stayed the sentence in count nine (possession).

II
DISCUSSION
As noted above, the trial court imposed a sentence for defendant’s conspiracy conviction, as well consecutive and concurrent sentences for his three sales convictions. Defendant contends that this constitutes error under section 654. Section 654 prohibits more than one punishment for a single act or an indivisible course of conduct. (People v. Deloza (1998) 18 Cal.4th 585, 591.) When a defendant is convicted of multiple offenses that are part of an indivisible course of conduct, the sentence for only one of the offenses can be imposed; the others must be stayed. (Id. at pp. 591-592.) The purpose of section 654 is to ensure that a defendant’s punishment is commensurate with his or her culpability. (People v. Latimer (1993) 5 Cal.4th 1203, 1211.)
Whether a course of conduct is divisible so as to allow multiple punishment depends on whether the defendant had a separate criminal objective for each offense. (People v. Latimer, supra, 5 Cal.4th at pp. 1207-1208.) A course of conduct that is divisible in time ordinarily supports a finding of separate criminal objectives even though the conduct shares a common overall objective. (People v. Louie (2012) 203 Cal.App.4th 388, 399 [“where a course of conduct is divisible in time it may give rise to multiple punishment even if the acts are directive to one objective”].) On appeal, we apply the substantial evidence test as to an issue concerning divisibility. (People v. Jones (2002) 103 Cal.App.4th 1139, 1143.)
“The necessary elements of a criminal conspiracy are: (1) an agreement between two or more persons; (2) with the specific intent to agree to commit a public offense; (3) with the further specific intent to commit that offense; and (4) an overt act committed by one or more of the parties for the purpose of accomplishing the object of the agreement or conspiracy.” (People v. Liu (1996) 46 Cal.App.4th 1119, 1128.)
Once a defendant is convicted of a conspiracy, the section 654 proscription against multiple punishments means that the defendant may not be punished for both a conspiracy to commit a public offense and that public offense. (In re Cruz (1966) 64 Cal.2d 178, 180-181.) “If, however, a conspiracy had an objective apart from an offense for which the defendant is punished, he may properly be sentenced for the conspiracy as well as for that offense.” (Ibid.; People v. Ramirez (1987) 189 Cal.App.3d 603, 615-616, [“Punishment for both conspiracy and substantive offenses has been upheld when the conspiracy has broader or different objectives from the specific substantive offenses”].)
Punishment for both a conspiracy and its substantive offenses is proper under section 654 when the conspiracy includes offenses for which the defendant has not been punished. (People v. Scott (1964) 224 Cal.App.2d 146, 152 [conspiracy lasted for months; evidence of numerous incidents other than those comprising the substantive offenses]; People v. Collins (1966) 242 Cal.App.2d 626, 640 [conspiracy went beyond instances of theft for which defendant was convicted]; People v. Amadio (1971) 22 Cal.App.3d 7, 15 [conspiracy to receive stolen property included more than receipt of property in substantive counts]; People v. Moringlane (1982) 127 Cal.App.3d 811, 819 [conspiracy to murder A and B; substantive offense of murdering C].)
The section 654 proscription against multiple punishments “cannot apply where . . . there are multiple objectives or transactions. [T]o give effect to this argument would allow persons who conspired to commit 10 different robberies to escape punishment for the conspiracy upon being [punished] for one of the robberies.” (People v. Scott, supra, 224 Cal.App.2d at p. 152, italics added.) The rationale for the section 654 proscription against multiple punishments “is to prohibit double punishment where, to continue the analogy, the objective of the conspiracy was to commit only one robbery and there was a trial for that particular offense.” (Ibid.)
Here, defendant was part of a broad conspiracy with six other people (four of them FK gang members) to sell methamphetamine. The conspiracy lasted for nearly a year out of the Charle Street home. The conspiracy to sell methamphetamine included hundreds of methamphetamine sales transactions during the period of the alleged conspiracy. But defendant was only punished for three of those sales transactions. Every transaction consisted of an unlawful act, divisible in time, with an individual objective: the exchange of methamphetamine for money. In sum, the trial court did not punish defendant for both the conspiracy to sell methamphetamine and the hundreds of methamphetamine sales transactions (as part of the conspiracy) for which defendant was not convicted or punished. Thus, defendant’s sentence does not violate section 654.
Defendant cites a seminal case for the general proposition that: “Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.” (Neal v. California (1960) 55 Cal.2d 11, 19, disapproved of on other grounds in People v. Correa (2012) 54 Cal.4th 331, 341.) Defendant argues that “the sole purpose of the conspiracy and the substantive sales charges was to make money for the criminal enterprise . . . .”
But defendant’s argument fails to persuade because each sale of methamphetamine was a punishable offense within the meaning of section 654. “Because each unlawful sale occurred at different times for different amounts of money to different victims, punishment for each separate sale is not prohibited by Penal Code section 654. A single object, to obtain money, does not bar multiple punishment for separate crimes.” (People v. Lochmiller (1986) 187 Cal.App.3d 151, 153.)
Here, the objective of the conspiracy was undoubtedly to make money. And every drug sale was in furtherance of that objective. But an illicit profit motive does not mean that the conspiracy and every sale of methamphetamine (as part of the conspiracy) somehow fuse to form an indivisible course of conduct under section 654. To accept defendant’s argument would allow him to escape punishment that is commensurate with his culpability. (See People v. Latimer, supra, 5 Cal.4th at p. 1211.)


III
DISPOSITION
The trial court is directed to prepare an amended abstract of judgment (to reflect that defendant’s conspiracy conviction is not a violent felony); the court is also directed to forward a certified copy to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.



MOORE, J.

WE CONCUR:



BEDSWORTH, ACTING P. J.



ARONSON, J.