Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County Nos. VCF173808, VCF177831 and PCF181628, Gerald F. Sevier, Judge.
William A. Malloy, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Michael A. Canzoneri and David A. Lowe, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Harris, Acting P.J.; Wiseman, J.; and Levy, J.
INTRODUCTION AND GENERAL FACTS
Appellant John Christopher Hanford entered into a negotiated plea agreement resolving three cases.
Appellant is also known as John Christopher Handford.
In Tulare County Superior Court case number 173808 (the first case), appellant pled no contest to violating Penal Code section 4573.6 by possessing methamphetamine inside a jail facility. He admitted a section 667.5, subdivision (b) prison prior.
Unless otherwise specified all statutory references are to the Penal Code.
In Tulare County Superior Court case number 181628 (the second case), appellant pled no contest to violating section 273.5, subdivision (a) by committing a corporal injury upon M.Z., who is the mother of his child (count 1). He admitted using a utility knife during the commission of count 1 in violation of sections 1192.7 and 667. He pled no contest to violating section 245, subdivision (a)(1) by assaulting M.Z. with a deadly weapon (count 2). He admitted personally using a deadly weapon during the commission of count 2.
In Tulare County Superior Court case number 177831 (the third case), appellant pled no contest to violating section 273.5, subdivision (a) by committing a corporal injury upon J.B., who is a cohabitant (count 1). He admitted a section 12022.7, subdivision (e) great bodily injury enhancement allegation attached to count 1. He pled no contest to violating section 261.5, subdivision (c) by having unlawful sexual intercourse with J.B. (count 3).
Appellant was sentenced to an aggregate term of six years imprisonment, calculated as follows: A two-year term for count 1 in the third case plus a consecutive three-year term for the great bodily injury enhancement attached to this offense plus a consecutive one-year term for the prison prior. A concurrent two-year term was imposed for count 3 in the third case. On the second case, a concurrent three-year term was imposed for count 1 and a concurrent three-year term was imposed for count 2. On the first case, a concurrent three-year term was imposed for count 1 and appellant was ordered to register as a narcotics offender pursuant to Health and Safety Code section 11590. Various fines, fees and restitution orders were imposed.
Appellant argues that the term imposed for count 2 in the second case should have been stayed pursuant to section 654 because the two counts arose from the same conduct. Respondent concedes this point and we accept the concession as properly made. Furthermore, appellant argues the narcotics registration requirement must be stricken because he was not convicted of an offense listed in Health and Safety Code section 11590, subdivision (a). Appellant is correct. Also, respondent seeks correction of the abstract of judgment to reflect that the three-year term for the great bodily injury enhancement attached to count 1 in the third case was imposed pursuant to section 12022.7 and not section 1203.4, subdivision (e)(4). This correction is necessary. We will modify the judgment and order preparation of an amended abstract of judgment. As modified, we will affirm.
DISCUSSION
I. Section 654 requires the term imposed for count 2 in the second case to be stayed.
A. Facts
On August 14, 2006, M.Z. was outside a residence when appellant approached her. He asked her to come across the street to his home. When she refused, appellant pushed and shoved M.Z. and tried to drag her back to his residence. While M.Z. struggled to get away, appellant cut her face, neck and wrist with a utility knife.
When the court accepted the change of plea in the second case, it asked, “Count 2 would be [section] 654 to Count 1, would it not?” Defense counsel replied, “Yes.” The prosecutor did not reply.
When appellant was sentenced, the court did not make any findings concerning potential applicability of section 654.
B. Counts 1 and 2 arose from the same act.
The purpose of section 654 is to prevent multiple punishments for a single act or omission, even though the act or omission constitutes more than one crime. (People v. Myers (1997) 59 Cal.App.4th 1523, 1529.) Section 654 also prohibits multiple punishments when a course of conduct is committed with a single criminal objective or purpose. (People v. Beamon (1973) 8 Cal.3d 625, 637.) Although distinct crimes may be charged in separate counts and may result in multiple verdicts of guilt, a trial court may punish the defendant for only one of the offenses. (People v. Myers, supra, 59 Cal.App.4th at p. 1529.) Here, we agree with the parties that the two crimes appellant committed in the second case stemmed from a single act involving one victim and they were committed with a single criminal objective or purpose. Consequently, the three-year term imposed for count 2 must be stayed.
II. The narcotics registration requirement in the first case must be stricken.
Appellant pled no contest to a charge that he violated section 4573.6 by possessing methamphetamine inside a jail facility. He was ordered to register as a narcotic offender pursuant Health and Safety Code section 11590.
Appellant argues the narcotics registration requirement must be stricken because violation of section 4573.6 is not an offense listed in Health and Safety Code section 11590, subdivision (a). In support of this argument, appellant relies on People v. Brun (1989) 212 Cal.App.3d 951 at page 954 (Brun) and In re Luisa Z. (2000) 78 Cal.App.4th 978 at pages 984 to 991. In both of these cases, the appellate courts struck registration requirements because the appellants were not convicted of an offense listed in section 11590, subdivision (a). Brun explained that in listing the specific crimes subject to the narcotics registration requirement, the Legislature
“expressed an intent to differentiate between different drug-related crimes and to require registration only for designated ones. Had the Legislature intended to require all drug offenders to register, it could have drafted the statute to accomplish that purpose. The sentencing court is therefore not free to impose registration under section 11590 for convictions of crimes not listed in the statute. If it were otherwise, every sentencing court could nullify the Legislature’s decision to treat convictions for different crimes in a different manner.” (Brun, supra, 212 Cal.App.3d at p. 954.)
Section 4573.6 is a broad statute prohibiting possession of any controlled substance in a custodial facility without authorization. Respondent concedes that violation of section 4573.6 is not an offense listed in Health and Safety Code section 11590, subdivision (a). Nonetheless, respondent argues the registration requirement is proper because appellant pled no contest to possessing methamphetamine inside a jail facility and possession of methamphetamine in violation of Health and Safety Code section 11377, subdivision (a) is an offense listed in Health and Safety Code section 11590, subdivision (a). We are not convinced. Possession of methamphetamine is a wobbler offense that is punishable as a misdemeanor or a felony. Health and Safety Code section 11590, subdivision (c) provides the section does not apply to a misdemeanor conviction of section 11377. Appellant was not charged or convicted of violating Health and Safety Code section 11377. On this record, we cannot simply assume that the amount of methamphetamine appellant possessed was sufficient to constitute a felony violation of section 11377.
Accordingly, we hold that because section 4573.6 is not an offense listed in Health and Safety Code section 11590, subdivision (a), the narcotics registration requirement is unauthorized as a matter of law and must be stricken.
III. The abstract of judgment must be corrected.
The abstract of judgment reflects that the three-year term for the great bodily injury enhancement attached to count 1 in the third case was imposed pursuant to section 1203, subdivision (e)(4). Respondent correctly notes that this enhancement was charged and admitted pursuant to section 12022.7, subdivision (e). The trial court maintains jurisdiction to correct an abstract of judgment. (People v. Flores (1960) 177 Cal.App.2d 610, 612-614.) This was not an error in the judgment itself because the court stated during the sentencing hearing that the three-year term for the great bodily injury enhancement was imposed pursuant to section 12022.7, subdivision (e). Therefore, modification of the judgment is not required. Issuance of an order directing the clerk of the superior court to prepare a corrected abstract of judgment is the appropriate remedy.
DISPOSITION
The sentence is modified to strike the narcotics registration requirement imposed in Tulare County Superior Court case number 173808 and to stay the three-year concurrent term imposed for count 2 in Tulare County Superior Court case number 181628. The clerk of the Tulare County Superior Court is directed to prepare an amended abstract of judgment reflecting these sentencing modifications and also reflecting that in Tulare County Superior Court case number 177831 the three-year term for the great bodily injury enhancement attached to count 1 was imposed pursuant to section 12022.7, subdivision (e). The clerk is directed to transmit a copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.