v. Fisher
Filed 7/2/12 P. v. Fisher CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits
courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE
DISTRICT
THE PEOPLE,
Plaintiff and Respondent,
v.
RAYMOND MICHELLE FISHER, JR.,
Defendant and Appellant.
F063175
(Super. Ct. No. F10904569)
THE COURT
APPEAL
from a judgment of the Superior Court of
County. Denise Lee Whitehead, Judge.
Gregory
Marshall, under appointment by the Court of Appeal, for Defendant and
Appellant.
Office
of the State Attorney General, Sacramento, California, for Plaintiff and
Respondent.
-ooOoo-
Appellant,
Raymond Michelle Fisher, Jr., pled no contest to
Code, § 11350, subd. (a)) and admitted three prior prison term enhancements
(Pen. Code, § 667.5, subd. (b))
prior conviction within the meaning of the three strikes law (§ 667, subds.
(b)-(i)). Following independent review
of the record pursuant to
(Wende), we affirm.
FACTUAL AND PROCEDURAL HISTORY
On
September 6, 2010, Fresno police officers detained Fisher after seeing him
holding an open container of beer in public.
The officers conducted a parole search after Fisher admitted being on
parole. In one of Fisher’s socks the
officers found a baggie containing rocks of cocaine that weighed a combined
total of 1.39 grams.
On May 17, 2011,
the district attorney filed an information charging Fisher with possession of
cocaine, three prior prison term enhancements, and with having a prior
conviction within the meaning of the three strikes law.
On
July 5, 2011, in exchange for an indicated sentence of four years, Fisher pled
no contest to the possession charge and admitted the prior prison term
enhancements and the allegation that he had a prior conviction within the
meaning of the three strikes law.
On
July 25, 2011, Fisher filed a Romero
the court to strike his prior strike conviction.
On
August 2, 2011, the district attorney filed an amended information that: 1) changed the date of one of two
convictions underlying one prior prison term enhancement; and 2) substituted a
prior prison term enhancement that was based on Fisher’s December 13, 1989,
conviction for grand theft for a prior prison term enhancement that was based
on Fisher’s December 9, 1997, conviction for domestic violence (§ 273.5, subd.
(a)). The court then allowed Fisher to
withdraw his admission of the two pertinent prior prison term enhancements in
the original information and took his admission of the two pertinent prior
prison term enhancements in the first amended information.
After
denying Fisher’s Romero motion, the
court struck Fisher’s three prior prison term enhancements and sentenced him to
a four-year term, the middle term of two years on his possession of cocaine
conviction, doubled to four years because of Fisher’s strike conviction.
Fisher’s
appellate counsel has filed a brief which summarizes the facts, with citations
to the record, raises no issues, and asks this court to
2012, Fisher appears to contend that section 654 prohibited him from being
prosecuted for possession of cocaine because his possession of cocaine on the
date of his arrest had already been used to violate his parole and impose a
parole term. Fisher is mistaken.
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.â€
“The purpose
of section 654 is to prevent multiple punishment for a single act or omission,
even though that act or omission violates more than one statute and thus
constitutes more than one crime.
Although the distinct crimes may be charged in separate counts and may
result in multiple verdicts of guilt, the trial court may impose sentence for
only one offense—the one carrying the highest punishment. [Citation.]
The ‘act’ necessary to invoke section 654 need not be an act in the
ordinary sense of a separate, identifiable, physical incident, but may instead
be a ‘course of conduct’ or series of acts violating more than one statute and
comprising an indivisible transaction punishable under more than one
statute.†(People v. Liu (1996) 46 Cal.App.4th 1119, 1135, fn. omitted.)
“[Moreover,]
[r]ather than being an ad hoc exercise of clemency, parole is an established
variation on imprisonment of convicted criminals. Its purpose is to help
individuals reintegrate into society as constructive individuals as soon as
they are able, without being confined for
the full term of the sentence imposed.
It also serves to alleviate the costs to society of keeping an
individual in prison. The
essence of parole is release from prison, before the completion of sentence, on
the condition that the prisoner abide by certain rules during the balance of
the sentence. Under some systems,
parole is granted automatically after the service of a certain portion of a
prison term. Under others, parole is
granted by the discretionary action of a board, which evaluates an array of
information about a prisoner and
makes a prediction whether he is ready to reintegrate into society.
“To accomplish the purpose of parole, those who are allowed to leave
prison early are subjected to specified conditions for the duration of their
terms.…
“¶ … ¶
“The enforcement leverage that supports the parole conditions
derives from the authority to return the parolee
prison to serve out the balance of his
sentence if he fails to abide by the rules.…†(Morrissey
v. Brewer (1972) 408 U.S. 471, 477-479, italics added.)
Fisher’s
singular act of possessing cocaine resulted in only one conviction, i.e., for
possession of cocaine in violation of Health and Safety Code section 11350,
subdivision (a). Further, although
Fisher’s possession of cocaine also resulted in his parole being revoked
because it violated the terms of Fisher’s conditional release, he did not
receive any additional punishment as a result of the parole revocation
process. Instead, this process merely
resulted in Fisher being returned to prison to serve part of a sentence
originally imposed on the offense that resulted in Fisher’s prison
commitment. Therefore, since the parole
revocation process did not result in Fisher being punished for his possession
of cocaine offense, the four-year term the court imposed on his conviction for
that offense did not violate section 654’s prohibition against multiple
punishment.
Further,
following an independent review of the record we find that no reasonably
arguable factual or legal issues exist.
DISPOSITION
The judgment is
affirmed.
Gomes, Acting P.J., Poochigian, J., and Franson, J.
further statutory references are to the Penal Code.
