P. v. Warr CA2/6 ( 2013 )

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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.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, 2d Crim. No. B240627
(Super. Ct. No. MA054155 & MA054636)
Plaintiff and Respondent, (Los Angeles County)
v.
MICQUAWN C. WARR,
Defendant and Appellant.
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. (Id., §§ 667,
subds. (b)-(i), 1170.12, subds. (a)-(d).)
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. (Id., § 11359.) 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
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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.
MA054636: Facts1
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.
Discussion
" '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
1
We omit a summary of the facts in MA054155 because those facts are irrelevant
to the issues on appeal.
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not merely incidental to each other, he may be punished for each statutory violation
committed in pursuit of each objective, "even though the violations shared common
acts or were parts of an otherwise indivisible course of conduct." [Citation.]'
[Citation.]" (People v. Galvez (2011) 195 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.2 As modified, the judgment is affirmed. The trial court is directed to
2
"This procedure ensures that 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.)
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prepare an 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.
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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.
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