P. v. Warr
Filed 6/20/13 P. v. Warr CA2/6
Reposted to correct index line; no change to text
NOT TO BE PUBLISHED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 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opinion has not been certified for publication or ordered published for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 CALIFORNIA
SECOND APPELLATE
DISTRICT
DIVISION SIX
>
THE PEOPLE, Plaintiff and Respondent, v. MICQUAWN C. WARR, Defendant and Appellant. | 2d Crim. No. B240627 (Super. Ct. No. MA054155 & MA054636) (Los Angeles County) |
This
appeal involves two cases: MA054155 and MA054636. In MA054155 a jury found Micquawn Warr
(appellant) guilty of possession of
marijuana for sale. (Health &
Saf. Code, § 11359.) The jury found
true an "on bail" allegation.
(Pen. Code, § 12022.1.)
Appellant admitted one prior serious or violent felony conviction
("strike") within the meaning of California's "Three Strikes"
law. (
In
MA054636 a jury found appellant guilty on count 1, transportation of marijuana
(Health & Saf. Code, § 11360, subd. (a)), and on count 2, possession
of marijuana for sale. (
The jury found true an "on bail" allegation and a prior strike
allegation.
In
MA054636 the trial court imposed the upper term of four years on count 1,
transportation of marijuana, doubled to eight years because of the strike, plus
two years for the "on bail" allegation. On count 2, possession of marijuana for sale,
the court imposed a concurrent sentence of the middle term of two years,
doubled to four years because of the strike.
The total prison sentence for MA054636 is 10 years.
In
MA054155 the trial court imposed a consecutive sentence of eight months
(one-third the middle term of two years), doubled to one year, four months
because of the strike. The court struck
the "on bail" allegation.
Thus, the aggregate sentence for both cases is 11 years, 4 months.
Appellant's
sole contention on appeal concerns
MA054636. He argues that, pursuant to
Penal Code section 654 (section 654), the trial court should have stayed
execution of the four-year sentence imposed on count 2, possession of marijuana
for sale. We agree and modify the
judgment accordingly.
Police
officers followed a vehicle until it stopped in an alley by an apartment
complex. The officers approached the
vehicle and saw a bag of marijuana inside. ( Appellant was the sole occupant of
the vehicle. The officers ordered
appellant out of the vehicle and searched it for marijuana. They recovered 47.7 grams. An expert opined that the marijuana was
possessed for sale.
"
'Section 654 precludes multiple punishments for a single act or indivisible
course of conduct. [Citation.]' [Citation.]
' "Whether a course of criminal conduct is divisible . . . depends
on the intent and objective of the actor." ' [Citation.]
'[I]f all of the offenses were merely incidental to, or were the means
of accomplishing or facilitating one objective, defendant may be found to have
harbored a single intent and therefore may be punished only once. [Citation.]
[¶] If, on the other hand,
defendant harbored "multiple criminal objectives," which were
independent of and not merely incidental to each other, he may be punished for
each statutory violation committed in pursuit
each objective, "even though the violations shared common acts or were
parts of an otherwise indivisible course of conduct." [Citation.]'
[Citation.]" (
Cal.App.4th 1253, 1262-1263.)
The People concede that, in MA054636, section
654 bars punishment for transportation of marijuana (count 1) and possession of
marijuana for sale (count 2) because both offenses were
part of an indivisible course of conduct.
We accept the concession. The
People note that "the same marijuana which was found in appellant's car .
. . formed the basis for both" offenses.
Moreover, for both offenses appellant harbored the same criminal
objective: the sale of the marijuana in the vehicle.
When
punishment for an offense is barred by section 654, the correct procedure is to
impose sentence for that offense and then stay execution of the sentence. (People
v. Deloza (1998) 18 Cal.4th 585, 591-592.)
"Section 654 does not allow any multiple punishment, including
either concurrent or consecutive sentences." (Id.,
at p. 592.) The stay of execution
of sentence on count 2 will not reduce appellant's 10-year prison term on count
1.
Disposition
In MA054155 the judgment is
affirmed. Pursuant
to section 654, the judgment in MA054636 is modified
to stay execution of the four-year prison sentence imposed on count 2,
possession of marijuana for sale, the stay to become permanent upon completion
of the service of sentence on count 1, transportation of marijuana.
amended abstract of judgment in MA054636 and to transmit a certified copy to
the Department of Corrections and
rehabilitation.
NOT TO BE PUBLISHED.
YEGAN,
J.
We concur:
GILBERT, P.J.
PERREN, J.
Kathleen
Blanchard, Judge
Superior
Court County of Los Angeles
______________________________
Gloria C. Cohen, under
appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris,
Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E.
Winters, Senior Assistant Attorney General, Paul M. Roadamel Jr. , Supervising Deputy Attorney General, Rama
R. Maline, Deputy Attorney General, for Plaintiff and Respondent.
name="_ftn1" title="">[1] We omit a summary of the facts in
MA054155 because those facts are irrelevant to the issues on appeal.
the defendant will not receive 'a windfall of freedom from penal sanction' if
the conviction on which the sentence has not been stayed is overturned. [Citation.]" (People
v. Salazar (1987) 194 Cal.App.3d 634, 640.)
