People v. Provost CA4/3 ( 2021 )

Filed 10/26/21 P. v. Provost CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, G059248
v. (Super. Ct. No. 17WF0720)
BRIAN ANTHONY PROVOST, OPINION
Defendant and Appellant.
Appeal from a judgment of the Superior Court of Orange County, Michael
J. Cassidy, Judge. Affirmed in part, reversed in part and remanded with directions.
Gene D. Vorobyov, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Susan Sullivan Pithey, Assistant Attorney General, Noah P. Hill and Kathy S.
Pomerantz, Deputy Attorneys General, for Plaintiff and Respondent.
This appeal involves a straightforward application of Penal Code section
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654. The parties agree that because four of the offenses of which appellant was
convicted arose from a single criminal act – his unlawful possession of a firearm – he
should have been punished for only one of those offenses, not all four. The abstract of
judgment is also incorrect, and the trial court did not resolve a key factual issue relating
to appellant’s presentence credits. Therefore, we reverse certain aspects of appellant’s
sentence and remand with directions but in all other respects, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
A detailed statement of facts is set forth in our prior opinion in People v.
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Provost (Mar. 4, 2020, G056297) [nonpub. opn.].) Suffice it to say, when the police
arrested appellant as part of an undercover drug sting, they found heroin,
methamphetamine and a loaded handgun in his vehicle.
Following a jury trial, appellant was convicted of 10 crimes. As relevant
here, in counts four through seven, the jury found appellant guilty of possessing a firearm
after having previously been convicted of a violent offense, possessing a firearm in a
vehicle by a felon, possessing a firearm by a felon, and possessing heroin while armed
with a loaded firearm. (§§ 29900, 25400, 29800; Health and Saf. Code, § 11370.1.) It is
undisputed all four of those counts stemmed from appellant’s single act of unlawfully
possessing a firearm in his car. As a third-strike offender, appellant was sentenced to 33
years to life in prison. The trial court granted him 377 days of presentence custody
credit, but it did not award him any presentence conduct credit.
On appeal, we affirmed appellant’s convictions but remanded the matter for
resentencing with directions for the trial court to confirm the period of appellant’s actual
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Unless noted otherwise, all further statutory references are to the Penal Code.
2
At respondent’s request, we take judicial notice of the appellate record in that case. (Evid. Code,
§§ 452, subd. (d), 459.)
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presentence custody and award him presentence credits as appropriate. (People v.
Provost, supra, G056297, at pp. 15-16.)
On remand, the trial court sentenced appellant to 25 years to life, plus 7
years and 4 months. That sentence included a 6-year term on count 7, plus concurrent 4-
year sentences on counts 4 through 6. The court also awarded appellant 403 days of
custody credit and 403 days of conduct credit, for a total of 806 days of presentence
credit. This appeal followed.
DISCUSSION
Section 654
Appellant contends the trial court violated section 654 by imposing
sentence on counts four through six because they were based on the same act that formed
the basis for his conviction on count seven. As respondent concedes, the claim is well
taken.
Under section 654, “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.” (§ 654, subd. (a).) This prohibition applies
even if the defendant harbored multiple objectives for his crimes. (People v. Mesa (2012)
54 Cal.4th 191, 199.) While the presence of multiple objectives may justify multiple
punishment when the defendant’s crimes involve multiple acts, that is not the case when
the defendant’s crimes are based upon a single act or omission. (Ibid.)
Here, appellant was convicted of four separate crimes in counts four
through seven based on the lone act of unlawfully possessing a single firearm in his car.
Since count seven carries the longest term of imprisonment, the trial court should have
imposed sentence on that count alone and stayed sentence on the remaining three counts.
(§ 654, subd. (a); People v. Jones (2012) 54 Cal.4th 350, 357 [section 654 bars multiple
punishment for multiple offenses based on the unlawful possession of a single firearm];
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People v. Washington (2021) 61 Cal.App.5th 776, 777-780 [same].) We will therefore
reverse appellant’s sentences on counts four through six and remand with directions to
stay sentence on those counts.
Presentence Credits
As noted above, the trial court did not award appellant any presentence
conduct credits at his original sentencing hearing. On appeal, respondent conceded this
was error, and we agreed. However, because the record was unclear as to when appellant
was taken into custody, we remanded for the trial court to determine the period of
appellant’s actual custody and award him appropriate custody and conduct credits based
on that determination.
On remand, the trial court did not comply with this order. Instead, the court
calculated appellant’s presentence credits based on the date he was transported to prison.
This was error. The court also failed to recognize appellant was entitled to presentence
custody credit from the time he was taken into custody until the time of his resentencing
hearing. (See People v. Buckhalter (2001) 26 Cal.4th 20, 29 [although a defendant
cannot receive presentence conduct credit once he has started serving his prison sentence,
“when a prison term already in progress is modified as a result of an appellate sentence
remand, the sentencing court must recalculate and credit against the modified sentence all
actual time the defendant has already served, whether in jail or prison”].) Accordingly,
we reverse the trial court’s credit award and direct the court to recalculate appellant’s
presentence credits.
Abstract of Judgment
Lastly, the parties agree that while the trial court stayed sentence on count
11 pursuant to section 654, the abstract of judgment does not reflect that stay. As the trial
court’s oral pronouncement of judgment controls over the abstract (People v. Mitchell
(2001) 26 Cal.4th 181, 185), we direct the trial court to correct this clerical oversight.
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DISPOSITION
Appellant’s sentence on counts four through six is reversed, as is his
presentence credit award, and the matter is remanded for further proceedings. On
remand, the trial court shall: 1) Stay execution of sentence on counts four through six per
section 654; 2) ascertain the date appellant was arrested and calculate his presentence
custody and conduct credits accordingly; 3) amend the abstract of judgment to reflect
appellant’s sentence on count 11 was stayed pursuant to section 654; and 4) forward a
corrected abstract of judgment to the Department of Corrections and Rehabilitation. In
all other respects, the judgment is affirmed.
BEDSWORTH, J.
WE CONCUR:
O’LEARY, P. J.
ZELON, J.*
*Retired Justice of the Court of Appeal, Second Appellate District, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.
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