Filed 10/18/18 P. v. Morales CA3

NOT TO BE PUBLISHED

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Butte)

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Defendant Eliceo Morales appeals a judgment entered after his plea of no contest to felony cultivating more than six marijuana plants with specified priors (Health & Saf. Code, former § 11358, subd. (d)(1)) and diverting the natural flow of a stream (Fish & G. Code, § 1602, subd. (a)) for which he received a sentence of three years in county prison and one year county jail to run concurrently. He argues the trial court erred in failing to stay the portion of his sentence attributable to the diversion of water pursuant to Penal Code section 654 because that water was diverted to cultivate the marijuana. We requested supplemental briefing addressing: (1) the power of this court to conform defendant’s plea and sentence to reflect a violation of Health and Safety Code section 11358, former subdivision (d)(3)(D), instead of former subdivision (d)(1); and (2) what effect, if any, this discrepancy had on defendant’s sentence, including the application of Penal Code section 654.

We conclude we can and should correct the clerical error, and that given this correction, Penal Code section 654 requires that we stay defendant’s sentence for the violation of Fish and Game Code section 1602, subdivision (a). We otherwise affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

These facts are taken from the probation report, which served as the factual basis for defendant’s plea. Defendant was detained by authorities during a raid on an illicit marijuana grow. Thereafter, he admitted to helping cultivate the marijuana by caring for plants in a greenhouse on the property using pond water. A total of 3,648 marijuana plants were found on the property. A large pond behind the residence supplied water to the marijuana plants behind the residence. This pond was supplied by water diverted from a nearby creek.

Defendant was charged via felony complaint with cultivating more than six marijuana plants with specified priors (Health & Saf. Code, former § 11358, subd. (d)(1)—count 1), misdemeanor possession of marijuana for sale (Health & Saf. Code, § 11359, subd. (b)—count 2), and misdemeanor diversion of the natural flow of a stream (Fish & G. Code, § 1602, subd. (a)—count 3). The complaint also alleged that the commission of count 1 resulted in a violation of Fish and Game Code section 1602 and that defendant was armed with a firearm within the meaning of Penal Code section 12022, subdivision (a)(1).

Defendant pleaded no contest and was sentenced for violations of counts 1 and 3. A prerequisite for a violation of Health and Safety Code section 11358, former subdivision (d)(1), is a prior conviction for certain specified offenses. The record discloses no prior qualifying convictions. However, defendant’s conduct would constitute a violation of Health and Safety Code section 11358, former subdivision (d)(3)(D) in that he admitted to violating Fish and Game Code section 1602, subdivision (a) as part of the plea agreement (an admission that he used illicitly obtained water to cultivate the marijuana). That the Fish and Game Code section 1602 violation was used to elevate the Health and Safety Code former section 11358 offense is reflected in the allegations of the felony complaint, and in the trial court’s handwritten amending of the complaint at the time of sentencing to read with specified “violations” instead of specified “PRIORS.”

DISCUSSION

The parties agree that the reference to Health and Safety Code section 11358, former subdivision (d)(1) found in the felony complaint and repeated thereafter is inadvertent clerical error requiring correction. We concur that we can and should conform defendant’s plea and resulting judgment to reflect the facts as understood by the parties and the trial court, as reflected in the factual allegations of the complaint, as well as the trial court’s amendment of the complaint at sentencing. (See People v. Mitchell (2001) 26 Cal.4th 181, 185 [court retains jurisdiction to correct clerical errors in abstract of judgment].) Thus, we must decide defendant’s Penal Code section 654 challenge in the context of a plea of no contest to and sentence for violations of Health and Safety Code section 11358, former subdivision (d)(3)(D) and Fish and Game Code section 1602, subdivision (a).

At the time of defendant’s plea, Health and Safety Code section 11358, former subdivision (d) provided in pertinent part: “Notwithstanding subdivision (c), a person 18 years of age or over who plants, cultivates, harvests, dries, or processes more than six living marijuana plants, or any part thereof, except as otherwise provided by law, may be punished by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code if any of the following conditions exist: . . . (3) The offense resulted in any of the following: [¶] . . . [¶] (D) Violation of Section 1602 of the Fish and Game Code relating to rivers, streams and lakes.” (Stats. 2011, ch. 15, § 160, eff. Apr. 4, 2011, operative Oct. 1, 2011.) In the absence of a qualifying condition under former subdivision (d), defendant’s violation of Health and Safety Code former section 11358 would be a misdemeanor. (Health & Saf. Code, § 11358, former subd. (c).)

The parties agree that under the circumstances, Penal Code section 654 requires the staying of the sentence for the Fish and Game Code section 1602 violation. We concur with this conclusion. Here, the Fish and Game Code violation, occurring at the same time as the unlawful cultivation, was the very thing that elevated the sentence for that unlawful cultivation (Health & Saf. Code, § 11358, former subd. (d)(3)(D)). Penal Code section 654 prohibits punishment for both the crime requiring intentional commission of the underlying offense and the actual underlying offense. (People v. Mesa (2012) 54 Cal.4th 191, 197-198, 200-201.)

DISPOSITION

We modify defendant’s plea and the resulting judgment to reflect a violation of Health and Safety Code section 11358, former subdivision (d)(3)(D), instead of former subdivision (d)(1). We further order that the sentence for the violation of Fish and Game

Code section 1602, subdivision (a) must be stayed pursuant to Penal Code section 654. As modified, the judgment is affirmed.

BUTZ , J.

We concur:

ROBIE , Acting P. J.

RENNER , J.