P. v.
Filed 3/5/12 P. v.
Jordan CA3
NOT
TO BE PUBLISHED
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
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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opinion has not been certified for publication or ordered published for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
THIRD APPELLATE
DISTRICT
(Placer)
----
THE PEOPLE,
Plaintiff and Respondent,
v.
MARK DAVID JORDAN,
Defendant and Appellant.
C067002
(Super.
Ct. No. 62099807)
This case comes to
us pursuant to People v. Wende (1979) 25 Cal.3d
436. Having reviewed the record as required
by Wende, we modify and affirm
the judgment. We provide the following
brief description of the facts and procedural history of the case. (See People v.
Kelly (2006) 40 Cal.4th 106, 110, 124.)
While investigating a reported theft,
Roseville Police Officer Jeremy Guess followed defendant Mark David Jordan’s
car for about one-fourth of a mile.
Defendant voluntarily pulled his car over and Officer Guess went to
speak with him. Defendant was nervous and shaking. He gave Officer Guess his California identification card because his
driver’s license had been suspended.
Defendant consented to a vehicle search.
In the trunk area of the car, Guess found a digital scale and two
baggies containing cocaine. A canine
officer conducted a search as well and found a third baggie containing cocaine
underneath the casing around the gear shift.
The total aggregate weight of the cocaine was over
27 grams. Defendant said he was
taking the drugs to a buyer in the city who was going to take them to Las Vegas.
Roseville Police Officer Jeff Kool testified as an expert and
opined that, based on the quantity and the packaging, the drugs
were possessed for sale.
Defendant was charged with
(Health & Saf. Code, § 11352, subd. (a)) and possession
of cocaine for sale (Health & Saf. Code, § 11351), along
with a misdemeanor count of driving a motor vehicle with
a license suspended for driving under the influence of
drugs or alcohol (Veh. Code, § 14601.2, subd. (a)). As to each of the felony counts, it was
further alleged that defendant had sustained a prior conviction for
transportation of a controlled substance (Health & Saf. Code, § 11370.2,
subd. (a)) and had served a prior prison term (Pen. Code, § 667.5,
subd. (b)).
Following a jury trial, defendant was found
guilty on all counts. In
admitted the prior conviction allegations.
Defendant was sentenced to the low term of three years for
transportation of cocaine, which was designated as the principal term. As to that count, the court struck the
punishment for the prior drug conviction enhancement. Defendant was also sentenced to three years
for possession of cocaine for sale, “stricken” pursuant to Penal Code
section 654; a concurrent term of six months for the misdemeanor count of
driving with a suspended license; and one year for the prior prison term
enhancement. Defendant was awarded
168 days of actual credit and 168 days of conduct credit, for a total
of 336 days of credit. Various
fines and fees were imposed.
Appointed counsel set forth the facts of
the case and requested this court to review the record and determine whether
there are any arguable issues on
appeal. (Wende, supra,
25 Cal.3d 436.) Defendant was
advised by counsel of the right to file a supplemental brief within
30 days of the date of filing of the opening brief. More than 30 days have elapsed, and we
have received no communication from defendant.
Having undertaken an examination of the
entire record, we find no arguable error that would result in a
disposition more favorable to defendant.
However, we note one error related to defendant’s sentencing. As noted ante,
the trial court ordered that the sentence on count two be “stricken” pursuant
to Penal Code section 654.
Specifically, the court stated:
“Count Two, [Health & Safety Code section 11351. That is the 654, so that would be three years. 654 to Count One, which means that it’s the
same behavior, so it cannot be imposed twice. That is true for the [Health and Safety
Code Section] 11352[ conviction].
That is stricken pursuant to 654.” The minutes and the
abstract of judgment, on the other hand, show that the term of three years
was imposed on count two and stayed pursuant to Penal Code
section 654.
“[I]f a defendant commits two crimes,
punishment for one of which is precluded by [Penal Code]
section 654, that section requires the sentence for one conviction to
be imposed, and the other imposed and then stayed.” (People v. Deloza (1998)
18 Cal.4th 585, 594; accord, People v. Alford (2010)
180 Cal.App.4th 1463, 1469.) A
sentence must be imposed on each count, otherwise if the unstayed sentence
is vacated, either on appeal or in a collateral attack on the judgment, no
valid sentence will remain. (Alford,
supra, 180 Cal.App.4th at
p. 1469.) The stay is to be
effective pending the successful service of sentence for the count that reflected
the same conduct, at which time the stay is to become permanent. (People v.
Miller (1977) 18 Cal.3d 873, 886.)
Execution of the three-year sentence
imposed for count two, possession of cocaine for sale (Health &
Saf. Code, § 11351), is ordered stayed,
the stay to become permanent on completion of the sentence imposed for
count one, transportation of cocaine (Health & Saf. Code,
§ 11352, subd. (a)). As
modified, the judgment is affirmed.
We need not order the trial court to prepare
an amended abstract of judgment as the current abstract accurately reflects the
judgment as modified.
MURRAY , J.
We concur:
NICHOLSON , Acting P. J.
BUTZ , J.
