P. v. Brown
Filed 2/5/13 P. v. Brown CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff
and Respondent,
v.
CHARLES LEE BROWN,
Defendant
and Appellant.
E056519
(Super.Ct.No.
FVI902533)
OPINION
APPEAL
from the Superior Court
of
Bernardino County. Lynn
M. Poncin, Judge. Affirmed with
directions.
Richard
Schwartzberg, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Melissa Mandel and
Marissa Bejarano, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant
and appellant Charles Lee Brown pled guilty to
(Health & Saf. Code, §§ 11350, 11352, counts 5 & 6, respectively);
possession and transportation of cocaine base (Health & Saf. Code,
§§ 11350, 11352, counts 7 & 8, respectively), and possession of
marijuana while in custody (Pen. Code, § 4573.8,
Defendant
was granted supervised probation on February
4, 2010, but on February
23, 2012, as a consequence of a new criminal filing, probation was
revoked. On June 8, 2012, defendant was sentenced to the upper term of
five years on count 6 for transportation of cocaine, and a consecutive one-year
four-month term on count 8 for transportation of cocaine base, for an aggregate
prison term of six years four months.
Concurrent two-year terms were imposed as to the remaining counts 5, 7,
and 10.
Defendant
contends that the concurrent sentences for counts 5 and 7 should have been
stayed pursuant to section 654. The
People agree that the imposition of concurrent sentences was improper. Accordingly, we affirm the conviction with
directions to correct the minute order
of June 8, 2012.
DISCUSSION
The
facts relevant to the sole issue raised by defendant are these: a clear white baggie containing cocaine and a
black plastic bag containing rock cocaine were discovered by sheriff’s deputies
in searching a car occupied by defendant.
Penal
Code section 654 provides that an act or omission that is made punishable in
different ways by different provisions of this code may be punished under
either of such provisions, but in no case can it be punished under more than
one. It applies to penal provisions of
the Health and Safety Code. Under Penal
Code section 654, courts are generally precluded from imposing multiple
punishment where a defendant engages in a course of conduct that violates more
than one statute and comprises an indivisible transaction punishable under more
than one statute. (People v. Avalos (1996) 47 Cal.App.4th 1569, 1583.)
Here,
the transporting and possession offenses stem from the same acts occurring at
the same time: the presence of cocaine
and cocaine base in a car occupied by the defendant. He had a single objective to move the
substances in that car. Accordingly, his
conduct arose from an indivisible course of conduct, and his sentence on counts
5 and 7 for possession of those substances must be stayed.
DISPOSITION
The
judgment is affirmed and the superior court clerk is directed to amend the
minute order of June 8, 2012, to reflect that sentences imposed as to counts 5
and 7 are stayed pursuant to section 654.
NOT
TO BE PUBLISHED IN OFFICIAL REPORTS
KING
J.
We concur:
RAMIREZ
P. J.
RICHLI
J.
unless otherwise stated.
