From Casetext: Smarter Legal Research

People v. Acosta

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO
Jan 31, 2012
E053177 (Cal. Ct. App. Jan. 31, 2012)

Opinion

E053177 Super.Ct.No. RIF10002041

01-31-2012

THE PEOPLE, Plaintiff and Respondent, v. JOSE EZEKIEL ACOSTA, Defendant and Appellant.

Allison H. Ting, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, William M. Wood and A. Natasha Cortina, Deputy Attorneys General, for Plaintiff and Respondent.


NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

OPINION

APPEAL from the Superior Court of Riverside County. John M. Davis, Judge. Affirmed in part; reversed in part; affirmed as modified.

Allison H. Ting, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, William M. Wood and A. Natasha Cortina, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant and appellant Jose Ezekiel Acosta appeals seeking reversal of one of his two jury convictions for possession of contraband in prison. (Pen. Code, §§ 4573.6, 4573.8.) He also contends the record and abstract of judgment must be corrected to show one of his three prior prison terms (§ 667.5, subd. (b)) as stricken rather than stayed and to indicate his conviction is by jury rather than by a guilty plea.

All further statutory references are to the Penal Code unless otherwise indicated.

FACTUAL AND PROCEDURAL HISTORY

Following a security check of a dormitory-style correctional rehabilitation center on April 10, 2009, defendant was charged with possession of heroin in prison (count 1— § 4573.6) and possession of a syringe in prison (count 2—§ 4573.8). It was further alleged defendant had two prior strike convictions (§§ 667, subds. (c) & (e)(2)(A), 1170.12, subd. (c)(2)(A)), and had served three prior prison terms (§ 667.5, subd. (b)).

At trial, a correctional officer testified he was standing near defendant's bunk during the security check and saw defendant quickly put his hand under a blue towel. Only one other inmate was standing nearby. When a search was performed, a razor, pen, and two spoons, one of which contained 0.14 grams of heroin, were found under the blue towel. A cup of hot water was sitting nearby on the floor. One of the correctional officers testified that hot water is used to melt heroin on a spoon before it is injected, and a syringe can be made out of a pen.

A jury found defendant guilty of both charges. In a separate proceeding, defendant admitted all prior convictions and strikes alleged in the charging document. The court ordered one of defendant's two prior strike convictions stricken in the interest of justice and sentenced defendant to a total of 11 years, 4 months in state prison. To reach the total term, the court imposed the upper term of 4 years on count 1, doubled to eight years as a result of the remaining strike. On count 2, the court imposed one-third the middle term of 8 months, doubled to 16 months as a result of the prior strike. Since two of the three prior prison terms were served at the same time, the court only added a total of two years under section 667.5, subdivision (b).

DISCUSSION

A. SIMULTANEOUS POSSESSION OF MULTIPLE ITEMS OF CONTRABAND IN PRISON

Defendant contends, and the People, that agree count 2, possession of a syringe in prison, must be reversed under the reasoning of People v. Rouser (1997) 59 Cal.App.4th 1065 (Rouser). Based on our review of Rouser, we agree with the parties.

The defendant in Rouser was convicted under section 4573.6 of two counts of possession of a controlled substance by a prisoner, when methamphetamine and heroin were both found in his cell at the same time and in the same location. (Rouser, supra, 59 Cal.App.4th at p. 1067) Section 4573.6 states in part as follows: "Any person who knowingly has in his or her possession in any state prison . . . any controlled substances, . . . any device, contrivance, instrument, or paraphernalia intended to be used for unlawfully injecting or consuming controlled substances, without being authorized to so possess the same . . . is guilty of a felony . . . ." (Italics added.) Focusing on the use of the term "any" in section 4573.6, the appellate court in Rouser concluded that "contemporaneous possession in a state prison of two or more discrete controlled substances . . . at the same location constitutes but one offense under Penal Code section 4573.6." (Rouser, at pp. 1067, 1069-1070.)

In this case, defendant was charged under two separate statutes, sections 4573.6 and 4573.8, for simultaneous possession of contraband. Although section 4573.8 is more general, the two statutes are almost identical. Section 4573.8 reads in part as follows: "Any person who knowingly has in his or her possession in any state prison . . . drugs in any manner, shape, form, dispenser, or container, any device, contrivance, instrument, or paraphernalia intended to be used for unlawfully injecting or consuming drugs, or alcoholic beverages, . . . without being authorized to possess the same . . . is guilty of a felony."

"Prosecution under a general statute is precluded when the facts of the alleged offense parallel the acts proscribed by a special statute." (People v. DeLaCruz (1993) 20 Cal.App.4th 955, 958.) Thus, we agree with the parties. It would be anomalous to preclude multiple convictions for simultaneous possession of different items of contraband under section 4375.6, but then allow such prosecutions simply because an inmate happens to be charged with simultaneous possession of contraband under both 4375.6 and 4375.8. We therefore agree with the parties that count 2 must be reversed and dismissed, and defendant's sentence should be reduced by the term imposed on count 2 of one year, four months.

Because we agree with the parties that count 2 should be reversed, it is unnecessary for us to address defendant's alternative argument that the sentence on count 2 should be stayed pursuant to section 654.
--------

B. STAYED PRISON PRIOR

The abstract of judgment indicates the trial court stayed the sentence on one of defendant's three prior prison terms. However, the record clearly shows the court did not impose a sentence on one of the prison priors because it was served concurrently with another. Defendant contends, and the People agree, this prison prior should have been stricken rather than stayed.

At defendant's sentencing hearing, the prosecutor represented there were in fact only two prison priors within the meaning of section 667.5, because two of the three prison priors alleged in the charging document were served concurrently. When such an enhancement is not imposed, our Supreme Court has indicated it should be stricken rather than stayed. (People v. Riel (2000) 22 Cal.4th 1153, 1203.) We therefore agree with the parties that defendant's abstract of judgment should be amended to show the redundant prison prior as stricken rather than stayed.

C. TRIAL BY JURY

The parties agree the abstract of judgment incorrectly shows defendant pled guilty to counts 1 and 2, when defendant was in fact found guilty by a jury. "Courts may correct clerical errors at any time, and appellate courts . . . that have properly assumed jurisdiction of cases have ordered correction of abstracts of judgment that did not accurately reflect the oral judgments of sentencing courts." (People v. Mitchell (2001) 26 Cal.4th 181, 185.) Accordingly, we shall direct the trial court to correct the cited clerical error.

DISPOSITION

Count 2, possession of a syringe in prison (§ 4573.8) is reversed and dismissed, and the total sentence is therefore reduced by the term imposed on this count, of one year, four months. Further, the clerk of the superior court is directed to make the following corrections to the record: first, the "S" designating one of defendant's three prior prison terms under subdivision (b) of section 667.5, subdivision (b), as stayed must be modified to indicate this prior prison term is stricken. Second, the "X" on the abstract of judgment indicating defendant pled guilty must be modified to show defendant was convicted by a jury. The trial court is directed to prepare an amended abstract of judgment and to forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation. (§§ 1213, 1216.) In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

MILLER

J.
We concur:

HOLLENHORST

Acting P. J.

McKINSTER

J.


Summaries of

People v. Acosta

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO
Jan 31, 2012
E053177 (Cal. Ct. App. Jan. 31, 2012)
Case details for

People v. Acosta

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. JOSE EZEKIEL ACOSTA, Defendant…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO

Date published: Jan 31, 2012

Citations

E053177 (Cal. Ct. App. Jan. 31, 2012)