Opinion
NOT TO BE PUBLISHED
Super. Ct. No. NCR76685
Retired Presiding Justice of the Court of Appeal, Third Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
While on probation for possessing methamphetamine for sale and possessing marijuana for sale, defendant Michael Anthony Christie, sold to a police informant five pills of the prescription drug OxyContin. About 30 minutes later, defendant sold another five pills to the same informant.
A jury convicted him of two counts of selling a controlled substance, and defendant admitted having been previously convicted of possessing a controlled substance for sale. His probation was revoked, and he was sentenced to an aggregate term of seven years and eight months in prison (concurrent middle terms of four years for each count of selling a controlled substance, plus a consecutive three-year enhancement for the prior conviction and a consecutive eight-month term (one-third the middle term of two years) for possessing a controlled substance for sale).
On appeal, defendant contends that one of his four-year terms for selling a controlled substance should have been stayed pursuant to Penal Code section 654. (Further section references are to the Penal Code unless otherwise specified.) We disagree. However, defendant correctly asserts he is entitled to more presentence custody credits pursuant to amended section 4019. We shall modify the judgment accordingly and affirm as modified.
FACTS
In April 2009, an informant working with agents of the Tehama County Interagency Drug Enforcement Task Force (TIDE), was at defendant’s residence in Red Bluff when defendant mentioned he had received 20-milligram OxyContin pills from his girlfriend. Defendant, who said his own prescription for OxyContin had been cancelled but would be reinstated the next day, offered to sell half of the pills for $10 each. He stated he typically sold half of his prescription each month, making between $1,200 and $1,500 a month.
The informant told TIDE agent Eric Clay that defendant was willing to sell OxyContin pills and would have more pills the next day. The informant met with Clay and other TIDE agents, who searched him, wired him with an audio transmitter and digital recorder, and gave him $50 to buy five pills.
The informant then returned to defendant’s residence and bought from him five 20-milligram OxyContin pills. After defendant said that he would sell some 80-milligram OxyContin pills from his own prescription, the informant asked if he could come back in 30 minutes with another $50 to buy five more pills. Defendant agreed.
The informant then left, met with TIDE agents, handed over the five pills he had purchased from defendant, was searched, and was given another $50 to buy five more pills.
About 30 minutes later, the informant returned to defendant’s residence and bought five more 20-milligram OxyContin pills from defendant, which he later turned over to TIDE agents.
DISCUSSION
I
Defendant claims that one of his four-year terms for selling a controlled substance should have been stayed pursuant to section 654. He argues the “two sales ‘were merely incidental to, or were the means of accomplishing or facilitating one objective, [and he] therefore may be punished only once.’” This single objective, he says, was to sell half of his 20-milligram OxyContin pills for $10 a pill; and the fact the informant and the TIDE agents split the buy into two transactions does not increase his culpability. We are not persuaded.
Section 654, subdivision (a), states in pertinent part that “[a]n 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).) “The purpose of this statute 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 these 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 of the separate offenses arising from the single act or omission--the offense carrying the highest punishment.” (People v. Hutchins (2001) 90 Cal.App.4th 1308, 1312; People v. Mendoza (1997) 59 Cal.App.4th 1333, 1345.)
“Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.” (Neal v. State of California (1960) 55 Cal.2d 11, 19; People v. Britt (2004) 32 Cal.4th 944, 951-952; see also People v. Latimer (1993) 5 Cal.4th 1203, 1207-1208.) However, “where a defendant entertains multiple criminal objectives independent of and not merely incidental to each other, he may be punished for more than one crime even though the violations share common acts or are parts of an otherwise indivisible course of conduct.” (People v. Blake (1998) 68 Cal.App.4th 509, 512; People v. Mendoza, supra, 59 Cal.App.4th at p. 1345 [multiple punishment is proper if evidence “discloses a defendant entertained multiple criminal objectives which were independent of and not merely incidental to each other”].)
Moreover, “a course of conduct divisible in time, although directed to one objective, may give rise to multiple violations and punishment.” (People v. Beamon (1973) 8 Cal.3d 625, 639, fn. 11; People v. Kwok (1998) 63 Cal.App.4th 1236, 1253.) Thus, in determining whether criminal offenses are temporally divisible, courts consider whether the defendant had an “opportunity to reflect and to renew his or her intent before committing the next [offense], thereby aggravating the violation of public security or policy already undertaken.” (People v. Gaio (2000) 81 Cal.App.4th 919, 935; People v. Kwok, supra, 63 Cal.App.4th at pp. 1255-1256.) This is so because the purpose of section 654 is “to insure that a defendant’s punishment will be commensurate with his [or her] culpability.” (People v. Perez (1979) 23 Cal.3d 545, 552.)
“Whether section 654 applies in a given case is a question of fact for the trial court, which is vested with broad latitude in making its determination. [Citations.] Its findings will not be reversed on appeal if there is any substantial evidence to support them. [Citations.] We review the trial court’s determination in the light most favorable to the respondent and presume the existence of every fact the trial court could reasonably deduce from the evidence. [Citation.]” (People v. Jones (2002) 103 Cal.App.4th 1139, 1143; People v. Hutchins, supra, 90 Cal.App.4th at pp. 1312-1313.)
Here, there were two separate drug transactions separated by approximately 30 minutes. Although the intent was identical in each transaction, namely, to sell 20-milligram OxyContin pills for $10 each, defendant had ample time to reflect after the first sale and chose to again violate the law. Substantial evidence supports the court’s implied finding that defendant harbored successive and independent, albeit identical, criminal objectives with respect to each transaction.
Defendant’s reliance on In re Johnson (1966) 65 Cal.2d 393 (hereafter Johnson) does not help him. An undercover agent met the defendant in that case at a bar and discussed a sale of heroin. The agent wanted a sample of the heroin and offered to buy five spoons for $30 a spoon “‘if it’s good.’” The defendant agreed and offered to sell the agent an additional five spoons at a discounted price; the deal would be either five spoons for $150 or 10 spoons for $250. The defendant delivered five spoons so the agent could “‘try it out.’” The agent took the heroin to other agents, who determined it was real, and then called the defendant and agreed to meet later to pay him $150 for the five spoons already delivered. When the defendant asked the agent whether he wanted the other five spoons for another $100, the agent said yes but that he would have to pay the additional $100 the following day. The defendant agreed. The agent then delivered the $150, and the defendant delivered five more spoons. The defendant was convicted of two counts of selling heroin. (Id. at p. 394.)
The California Supreme Court held the defendant engaged in a single sale of heroin: “[His] course of criminal conduct during the two hours from 9 until 11 p.m. was a single transaction. It was only because the agent wished to try out some of the ‘stuff’ before buying that the heroin was delivered in two installments instead of one. Furthermore, the two acts of delivery were substantially contemporaneous in time. Although the number of deliveries may be relevant in determining the number of crimes committed, it is not conclusive. The entire transaction must be considered. To find that the two deliveries in this case constituted separate crimes, it would be necessary to attach independent criminal significance to the bifurcation of the delivery, a circumstance that had nothing to do with [the defendant’s] culpability. Since one price was agreed upon at the outset and since [the defendant] intended from the outset to sell [the agent] either 10 spoons for $250 or five spoons for $150, he intended to make but one sale. Moreover, that sale was not carried out over such an extended period of time that the bifurcation of delivery posed separate, independent dangers.” (Johnson, supra, 65 Cal.2d at pp. 394-395.)
Unlike in Johnson--where there was an intent to make a single sale of heroin, the quantity (either five spoons for $150 or 10 spoons for $250) to be determined by the buyer after sampling the product-- defendant in this case made two separate and distinct sales to the informant, separated by the passage of time during which defendant had the opportunity to abandon his intent to make the second sale. The same opportunity was not present in Johnson. From the outset, the sale in Johnson was for either five spoons or 10 spoons. Here, defendant agreed to sell five pills, carried out this sale, and then agreed to sell another five pills, and did this separate sale about 30 minutes later. Although defendant’s intent was identical as to each sale, substantial evidence supports the trial court’s implied finding that defendant renewed his intent to violate the law after making the initial sale.
We are not persuaded by defendant’s assertion that punishing him for both the transactions is not commensurate with his culpability because, at the outset, he expressed his willingness to sell half of his stock of 20-milligram OxyContin pills, and it was the informant who chose to buy the pills in two separate transactions. Not so. Only after defendant made the first sale did it appear to the informant that defendant might be willing to sell more pills if the informant could get the money. According to defendant, “[t]he danger to society did not increase in any way because of the fragmentation of the sale into two transactions.” Again, we disagree. A second sale that doubles the amount of OxyContin in a buyer’s possession certainly increases the risk that the buyer or the public would be harmed by the drug.
In sum, the court did not violate section 654 by imposing concurrent terms for each of the sale of a controlled substance convictions.
II
The trial court concluded that, having served 236 days of presentence custody, defendant was entitled to 118 days of conduct credit, as provided by section 4019 when defendant was sentenced.
Defendant asserts that subsequent amendments to section 4019 in Senate Bill No. 18 (2009-2010 3d Ex. Sess.) entitle defendant to additional presentence custody credits because he does not have a current or prior convictions for serious or violent felonies and is not required to register as a sex offender. We agree.
The Legislature amended section 4019, effective January 25, 2010, to provide for the accrual of presentence credits at twice the previous rate. “[I]f all days are earned under this section, a term of four days will be deemed to have been served for every two days spent in actual custody....” (§ 4019, subd. (f).) Excepted from this increased calculation of presentence credits are defendants who are convicted of a serious felony, or have a prior serious felony conviction, or are required to register as a sex offender. (§ 4019, subds. (b)(2) & (c)(2).)
We conclude the amendments to section 4019 apply retroactively to cases, like defendant’s appeal, not yet final on January 25, 2010. (See In re Estrada (1965) 63 Cal.2d 740, 745 (hereafter Estrada) [amendment lessening punishment for crime applies “to acts committed before its passage provided the judgment convicting the defendant of the act is not final”]; People v. Doganiere (1978) 86 Cal.App.3d 237, 239-240 [applying Estrada to an amendment involving conduct credits]; People v. Hunter (1977) 68 Cal.App.3d 389, 393 [applying Estrada to an amendment allowing award of custody credits].)
The California Supreme Court has granted review to resolve a split in authority over whether the January 2010 amendments to section 4019 apply to pending appeals. (People v. Brown (2010) 182 Cal.App.4th 1354, review granted June 9, 2010, S181963.)
Because he does not fall within the persons who are excluded from the benefit of the amendments, defendant is entitled to an additional 118 days of conduct credit.
DISPOSITION
The judgment is modified to reflect defendant is entitled to 472 days of presentence custody credit (236 days of actual custody credit plus 236 days of conduct credit). As modified, the judgment is affirmed. The trial court is directed to amend the abstract of judgment to reflect this modification and shall send a certified copy of the amended abstract to the Department of Corrections and Rehabilitation.
We concur: NICHOLSON, J., HULL, J.