Filed 11/19/18 P. v. Guerrero CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT*

APPEAL from a judgment of the Superior Court of Fresno County. Michael G. Idiart, Judge.

Conness A. Thompson, 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, Amanda Cary and Louis M. Vasquez, Deputy Attorneys General, for Plaintiff and Respondent.

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Appellant Francisco Raymond Guerrero pled no contest to possession of an illegal substance in a jail facility (Pen. Code, § 4573.6, subd. (a)/count 1),[1] possession of methamphetamine while required to register pursuant to section 290, subdivision (c) (Health & Saf. Code, § 11377, subd. (a)/count 2), and he admitted allegations that he had a prior conviction within the meaning of the “Three Strikes” law (§ 667, subds. (b)-(i)).

On appeal, Guerrero contends his sentence violates section 654’s proscription against multiple punishment. We agree, modify Guerrero’s sentence accordingly, and affirm as modified.

FACTS

On August 29, 2017, at approximately 8:22 p.m., while being booked into jail on an unrelated warrant, Guerrero had a baggie containing 0.261 grams of methamphetamine hidden in his shoe. Later that night, it was discovered by a correctional officer.

On August 31, 2017, the Fresno County District Attorney filed a complaint charging Guerrero with the charges he pled to and the Three Strikes allegation he admitted.

On November 7, 2017, Guerrero entered his plea, as noted above, pursuant to an indicated sentence that provided for a lid of a mitigated prison term of two years, which could only be imposed if the court struck the Three Strikes allegation.

On December 8, 2017, the court struck Guerrero’s prior strike conviction and sentenced him to a mitigated prison term of two years on count 1 and a concurrent, mitigated term of 16 months on count 2.

DISCUSSION

Guerrero contends that the court violated section 654 when it imposed a concurrent term of 16 months on count 2 because both counts were based on the single act of possessing methamphetamine. Respondent concedes.

“As relevant, section 654, subdivision (a), provides: ‘An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision.’

“ ‘It has long been established that the imposition of concurrent sentences is precluded by section 654 [citations] because the defendant is deemed to be subjected to the term of both sentences although they are served simultaneously.’ [Citation.] Instead, the accepted ‘procedure is to sentence defendant for each count and stay execution of sentence on certain of the convictions to which section 654 is applicable.’ ” (People v. Jones (2012) 54 Cal.4th 350, 353.)

Further, when a defendant’s convictions are based on a single act, section 654 prohibits multiple punishment. (People v. Jones, supra, 54 Cal.4th at p. 360.) Since Guerrero’s two convictions were based on the single act of possessing methamphetamine, section 654 prohibited the court from imposing a concurrent term on his possession of methamphetamine conviction in count 2.

DISPOSITION

The judgment is modified to stay the concurrent 16-month term the court imposed on Guerrero’s possession of methamphetamine conviction in count 2. The trial court is directed to issue an amended abstract of judgment that incorporates this modification and to forward a certified copy to the appropriate authorities. As modified, the judgment is affirmed.