Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Super. Ct. No. BA297304, William C. Ryan, Judge.
Katharine Eileen Greenebaum, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Yun K. Lee and Zee Rodriguez, Deputy Attorneys General, for Plaintiff and Respondent.
DOI TODD, J.
Appellant Kevin Ainsworth appeals from a judgment entered after a jury convicted him of count 2, possession for sale of marijuana in violation of Health and Safety Code section 11359; count 3, transportation of a controlled substance in violation of section 11352, subdivision (a); count 4, possession of cocaine base in violation of section 11350 subdivision (a); count 5, possession for sale of marijuana in violation of section 11359; count 6, possession of a firearm by an ex-felon in violation of Penal Code section 12021, subdivision (a)(1); and count 7, possession for sale of phencyclidine (PCP) in violation of section 11378.5. Appellant was found guilty on one count of transportation of marijuana in violation of section 11360, subdivision (b) in a previous trial which ended in a hung jury on the remaining counts. Those remaining counts were retried and are the subject of this appeal.
All further statutory references are to the Health and Safety Code unless otherwise indicated.
The jury found true that as to all counts, appellant had suffered two prior serious or violent felony convictions within the meaning of Penal Code section 1170.12, subdivisions (a) through (d) and Penal Code section 667, subdivisions (b) through (i) (the “Three Strikes” law). The jury also found true that appellant had suffered three prior prison terms pursuant to Penal Code section 667.5, subdivision (b). The jury found true that as to counts 4 and 7, appellant had suffered five prior drug convictions pursuant to section 11370.2, subdivision (a).
The trial court sentenced appellant to 35 years in prison as follows: eight years on count 7 (see p. 14, post); one year four months each on counts 2, 4, 5, and 6 (a total of five years, four months); two years eight months on count 3; four years on the Penal Code section 12022, subdivision (c) enhancement and three years each on five section 11370.2, subdivision (a) enhancements (a total of 19 years). The trial court stayed the three Penal Code section 667.5, subdivision (b) enhancements.
Appellant contends that: (1) the trial court erred when it did not permit him to represent himself; (2) the trial court erred in denying appellant’s motion for new trial based on juror misconduct; (3) the trial court did not exercise its discretion in sentencing appellant consecutively on certain counts under the Three Strikes law; (4) the trial court erred when it did not stay sentencing on one of the convictions for possession for sale of marijuana and one of the convictions for possession of cocaine; and (5) appellant served only two prior prison terms, which the trial court should have stricken; and (6) the trial court did not correctly calculate appellant’s presentence custody credit.
Appellant filed an in propria persona petition for habeas corpus on July 18, 2007, which we considered concurrently with the appeal.
We remand for resentencing.
FACTS AND PROCEDURAL HISTORY
Appellant’s arrest
On July 15, 2005, at 5:00 a.m., undercover Los Angeles Police Officer Shawn Hetherington noticed appellant conducting several hand-to-hand exchanges with a man in a gas station parking lot. Officer Hetherington, a narcotics expert, believed that appellant was selling drugs, and the other man was working as an intermediary. He broadcast a description of appellant and his activities over the radio.
Other officers detained appellant on a traffic stop as he drove back and forth to the Hollywood Stars Inn about three blocks away from the gas station. The officers smelled marijuana coming from the car. Appellant gave the officers a driver’s license with his photo and a false name, Marcus Dion Best. He subsequently admitted his true name to the officers. He appeared to be under the influence of marijuana. A search of the car revealed a clear plastic baggie containing rock cocaine; two small plastic baggies containing marijuana; three cell phones; and two scales in the glove compartment, one of which contained an off-white powdery residue consistent with rock or powder cocaine. Officers also found a key for room No. 206 at the Hollywood Stars Inn.
Officer Hetherington spoke to the manager of the Hollywood Stars Inn who gave him a room registration card and invoice showing that room No. 206 was registered to Marcus Dion Best. The manager also gave Officer Hetherington a master key to room No. 206. Both the master key and the key the officers found on appellant opened the door to room No. 206. Officer Hetherington and other officers searched the room and found a large bag containing marijuana underneath the box spring of the bed. A.38-caliber revolver loaded with five live rounds fell out of the box spring. Officers also discovered a safe disguised as a power outlet; a cell phone in a nightstand; and $1,450 in cash between the mattress and box spring. Four hundred dollars of the cash was later found to be counterfeit. Officers also found a pot and lid; a one-pound box of baking soda; and a hot plate near the refrigerator. Officers discovered 11 glass vials which contained PCP inside a pizza box in the refrigerator. On top of the bed, the officers found a duffel bag containing three live rounds of the same model, make and caliber as the loaded rounds in the revolver; 268 plastic baggies in three different sizes; eight small vials; and mail addressed to appellant. Officers found a small baggie of marijuana in appellant’s right shoe when he was searched at the police station.
One forensic print specialist found inconclusive results, but three other forensic print specialists testified that appellant’s prints were on the gun. The parties stipulated to the amounts of narcotics contained in the People’s exhibits as:.47 grams of cocaine,.97 grams of marijuana, 425.84 grams of marijuana, and 2.4 grams of PCP. The parties also stipulated that prior to July 15, 2005, appellant was a convicted felon.
Motions for substitute counsel and self-representation
Appellant made four motions pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden) in his first trial. Two days before his retrial on the remaining counts before a different judge, the trial court denied appellant’s fifth Marsden motion. The day before trial was to begin, and immediately before the jury was to be sworn, appellant made his sixth Marsden motion, which the trial court denied. Appellant then made a motion for self-representation, which is a subject of this appeal. Upon being questioned by the trial court, appellant stated that he would behave properly and was ready to start trial the next day. The People opposed appellant’s request for self-representation, arguing that the motion was late; appellant made the motion solely to manipulate the trial; and appellant had gone back and forth with motions made pursuant to Marsden and Faretta v. California (1975) 422 U.S. 806 (Faretta). The People argued that appellant would continue to make improper and misleading statements before the jury, such as stating he was a “third striker.” When questioned by the trial court, appellant’s counsel, who had represented appellant in his first trial, conceded that appellant had misbehaved.
The trial court denied appellant’s request for self-representation based on his previous misbehavior, his previous in propria persona status, his current misbehavior, and his manipulative tactics. The trial court stated that appellant “won’t listen to anything I say, you won’t listen to your lawyer, I won’t let you go pro per.... I don’t believe you’ll behave yourself. I believe you’re attempting to manipulate the system, and if you blurt out again, I’ll declare a mistrial and I’ll do it again until you behave.”
On October 11, 2006, the trial court denied appellant’s seventh Marsden motion. On October 23, 2006, the trial court denied appellant’s eighth Marsden motion as well as a request for self-representation before the trial on his prior conviction allegations. The trial court denied appellant’s ninth Marsden motion on October 24, 2006 on the prior conviction allegations.
Jury deliberations, motion for mistrial, and motion for new trial
After beginning deliberations, the jury requested a readback of the testimony of three witnesses. The trial court informed the jury that the court reporter could not prepare the readback until the following Monday, and that it would excuse the jury until then. The jury returned to the jury room and determined that it did not want the readback. It reached a verdict that afternoon. Prior to taking the verdict, the trial court asked the jury if anyone still wanted a readback. None of the jurors indicated they wanted a readback.
During the jury trial on the prior conviction allegations, appellant testified on his own behalf. As he was leaving the stand, he complained that the jury had not wanted the readback. He stated that the jury could have heard the readback that day; that he was looking at 20 to 30 years in jail; and that his life was at stake. The trial court admonished the jury that it could not consider appellant’s statements. Appellant stated three times “My life is on the line,” which the trial court ordered stricken. The trial court recessed, and upon reconvening outside the presence of the jury, the trial court read a note from Juror No. 11 which she wrote about five minutes after appellant’s outburst. The note stated: “I would like reconsideration of verdict. I think everyone was more interested in going home. No one considered any evidence of testimony, only pressed, rushed to make a judgment to go home. No one wanted to wait for readback of tapes requested. Only 3 willing to listen, pressure to decide and get verdict. One only wanted to celebrate his birthday, another only wanted, due to his experience as a defendant, a guilty verdict.”
Upon being questioned, Juror No. 11 stated that she had requested the readback, but the other jurors did not want to listen to it because they wanted to leave. She stated that appellant’s outburst had no bearing on her note. She felt pressure from three jurors, including Juror No. 1 and Juror No. 9. Juror No. 11 stated that one of the jurors wanted to celebrate his birthday and wanted to go to work on Monday and that Juror No. 1 wanted to convict appellant because he “has gone through this,” as a defendant. She also stated she had asked the foreman if he could talk to the judge about reconsidering her decision when she arrived in the morning, prior to hearing appellant’s outburst. She stated that Juror No. 6 and Juror No. 9 also wanted to hear the readback. She acknowledged that when polled she indicated she no longer wanted a readback, but that she “should have.” When asked by the trial court if she could start deliberations over again fairly, she answered “yes and no in part,” because the other jurors knew she had come in to talk to the trial court.
The court then questioned the remaining jurors who represented that the jury had based its decision on the evidence; that the consideration of each individual count clarified the decisionmaking process; that no one mentioned he or she did not want to return on Monday; that the jurors decided the readback was unnecessary; that all the jurors were very nice to Juror No. 11 and did not pressure her; that Juror No. 11 initially had difficulty coming to a decision but in the end had voted with everyone else and seemed happy with the verdict. Juror No. 1 and Juror No. 4 recalled that someone mentioned a birthday well after the verdict had been reached and the jury buzzed the court. Juror No. 5 stated that he had celebrated his birthday the prior Friday, and had discussed his impending birthday celebration after reaching a verdict. He stated that the jury was given enough time to reach a verdict. Juror No.1 had mentioned his past experiences as a defendant, but his decision was based on the evidence and not on his past.
The trial court found that there was no misconduct and denied defense counsel’s motion for a mistrial. The trial court then stated that it was considering dismissing Juror No. 11 and putting in an alternate for the trial on the prior convictions because Juror No. 11 said she could not deliberate with the jurors. Defense counsel agreed that she should be excused. Upon further questioning, Juror No. 11 stated that she was concerned about deliberating further with the other jurors because she was worried about what the other jurors thought of her. The trial court dismissed the juror and replaced her with an alternate. Prior to sentencing, appellant retained private counsel who moved for a new trial based on the same grounds raised on the mistrial motion. The trial court denied appellant’s motion for new trial based on jury misconduct.
DISCUSSION
I. The trial court did not err when it denied appellant’s request to represent himself at trial
Appellant contends that the trial court erred in denying his request to represent himself at trial because the People misstated that appellant had been in propria persona during the trial. Rather, according to appellant, the record shows that appellant misbehaved only when he was represented by counsel with whom he had disagreements, and not when he had been in propria persona. We disagree and conclude that the trial court did not abuse its discretion in denying appellant’s request for self-representation.
“A trial court must grant a defendant’s request for self-representation [pursuant to Faretta]if the defendant knowingly and intelligently makes an unequivocal and timely request after having been apprised of its dangers. [Citations.]” (People v. Valdez (2004) 32 Cal.4th 73, 97 (Valdez).) “‘[I]n order to invoke the constitutionally mandated unconditional right of self-representation, a defendant must assert that right within a reasonable time prior to trial. The latter requirement serves to prevent a defendant from misusing the motion to delay unjustifiably the trial or to obstruct the orderly administration of justice. [Citation.] If the motion is untimely—i.e., not asserted within a reasonable time prior to trial—the defendant has the burden of justifying the delay.’ [Citation.]” (Valdez, supra, at p. 102.) An untimely assertion of the right to self-representation, such as the day preceding trial, is addressed to the sound discretion of the trial court. (Ibid.) “‘In exercising this discretion, the trial court should consider factors such as “‘the quality of counsel’s representation of the defendant, the defendant’s prior proclivity to substitute counsel, the reasons for the request, the length and stage of the proceedings, and the disruption or delay which might reasonably be expected to follow the granting of such a motion.’”’” (Id. at p. 102.)
“[A] trial court must undertake the task of deciding whether a defendant is and will remain so disruptive, obstreperous, disobedient, disrespectful or obstructionist in his or her actions or words as to preclude the exercise of the right to self-representation. The trial court possesses much discretion when it comes to terminating a defendant’s right to self-representation and the exercise of that discretion ‘will not be disturbed in the absence of a strong showing of clear abuse.’” (People v. Welch (1999) 20 Cal.4th 701, 735 [trial court did not abuse its discretion in denying defendant’s motion for self-representation where defendant engaged in disruptive behavior prior to making his motion, including belligerently denying awareness of a calendar date that was set in his presence; turning his back on the trial court when addressing it; interrupting the trial court several times to argue what the court had declared to be a nonmeritorious point; accusing the court of misleading him; and refusing to allow the court to speak and refusing several times to follow the court’s admonishment of silence].)
The record contains ample evidence that the trial court did not abuse its discretion in denying appellant’s request for self-representation. “Equivocation of the right of self-representation may occur where the defendant tries to manipulate the proceedings by switching between requests for counsel and for self-representation, or where such actions are the product of whim or frustration.” (People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1002.) During the course of his first trial before a different trial court, appellant made four unsuccessful motions to substitute counsel pursuant to Marsden. He was granted self-representation after his first Marsden request was denied, obtained standby counsel while attempting to retain private counsel, and requested and was granted appointment of counsel twice.
We conclude that the trial court’s belief that appellant was trying to manipulate the proceedings was well founded, because the record shows that appellant made a total of nine Marsden motions, and made two requests for self-representation as well as attempts at hiring private counsel. His request for self-representation at issue here was made on the eve of trial, suggesting that he was attempting to manipulate the proceedings. Moreover, his request for self-representation was made after the trial court denied his Marsden motion and warned appellant that he would either represent himself or be represented by defense counsel and that if he misbehaved, he would spend the entire trial in lockup. Thus, his request for self-representation may have been made out of frustration. The trial court acted within its discretion by taking into account appellant’s actions of blurting out improper information to the jury in the first trial, refusing to listen to the court and to counsel in the second trial, requesting self-representation the day prior to the second trial, and behaving badly during the second trial.
We reject appellant’s argument that the trial court abused its discretion because the People’s comments misled the trial court into believing that appellant had been in propria persona during the first trial. He urges that he only misbehaved when he was represented by counsel with whom he had disagreements, and did not misbehave when he was in propria persona. As the record shows, the trial court understood that appellant was represented by counsel in the first trial, and that he had gone back and forth with Marsden motions, with representing himself, and with being represented by counsel. In fact, defense counsel confirmed the People’s characterization of appellant’s misbehavior. Appellant does not cite to any evidence in the record to support his further claim that the basis for the trial court’s ruling was the People’s strong dislike for him because his first trial had ended in a hung jury.
We find no abuse of discretion in the trial court’s denial of appellant’s request for self-representation.
II. The trial court did not abuse its discretion in denying appellant’s motion for new trial based on juror misconduct
Appellant complains that because the trial court excused Juror No. 11 from the subsequent trial on the prior convictions, the trial court abused its discretion in denying appellant’s motion for new trial on the underlying charges. We disagree.
“A trial court has broad discretion in ruling on a motion for a new trial, and there is a strong presumption that it properly exercised that discretion.” (People v. Davis (1995) 10 Cal.4th 463, 524.) “When the overt event is a direct violation of the oaths, duties, and admonitions imposed on actual or prospective jurors, such as when a juror conceals bias on voir dire, consciously receives outside information, discusses the case with nonjurors, or shares improper information with other jurors, the event is called juror misconduct.” (In re Hamilton (1999) 20 Cal.4th 273, 294.) “A sitting juror’s involuntary exposure to events outside the trial evidence, even if not ‘misconduct’ in the pejorative sense, may require similar examination for probable prejudice. Such situations may include attempts by nonjurors to tamper with the jury, as by bribery or intimidation.” (Id. at pp. 294-295.)
Where a party seeks a new trial based on jury misconduct, the trial court must first determine whether the evidence presented for its consideration is admissible, then consider whether the facts establish misconduct; if misconduct is found to have occurred, the court must determine whether the misconduct was prejudicial. (People v. Duran (1996) 50 Cal.App.4th 103, 112-113.) We review the trial court’s determination on a motion for new trial for abuse of discretion. (Id. at p. 113.)
Appellant argued that because the trial court removed Juror No. 11 from the trial on the prior convictions allegations, it should have granted a new trial as to the guilt phase. At the hearing on the motion for new trial, the trial court noted that Juror No. 11 felt pressured, rather than coerced, and that she was excused because of her unwillingness to further deliberate. The trial court carefully questioned each juror as to the charges raised by Juror No. 11 in her note. None of the jurors substantiated her claims. Rather, they each stated that Juror No. 11 was the only one who requested a readback, that when they returned to the jury room after the request, they were able to reach clarification by addressing each count individually, that no one based the verdict on his past experience as a defendant, and that they did not pressure Juror No. 11. Instead, all the jurors were nice to Juror No. 11 and she seemed happy to have reached a verdict. Also, birthday plans were mentioned only after the verdict was reached and the jury had buzzed the court. Furthermore, Juror No. 11’s statements that she would have liked to have had more time to think about her vote are demonstrative of mental thought process that are inadmissible to impeach a verdict. (People v. Steele (2002) 27 Cal.4th 1230, 1260, 1261-1264.)
Appellant’s further claim that the trial court should either have granted the motion for new trial or retained Juror No. 11 on the jury, fails. The trial court’s order of the discharge of a juror and replacement with an alternate rests within its sound discretion. (People v. Samuels (2005) 36 Cal.4th 96, 132.) Defense counsel asked that Juror No. 11 be dismissed from the jury because, as he put it, she perceived she was threatened by the other jurors. Appellant has therefore waived his claim that she should have been retained. (See People v. Saunders (1993) 5 Cal.4th 580, 589-590, fn. 6 [failure to object to discharge of jury after guilty verdict but before findings on prior conviction allegations forfeits claim on appeal].) The trial court decided to dismiss Juror No. 11 based on her fear of what the other jurors would think of her because they knew she had sent a note and had spoken to the court about her concerns. The trial court did not abuse its discretion in discharging her based on her self-professed concern about what the other jurors would think of her, and its effect on her ability to deliberate fairly in the prior conviction trial.
We conclude that the trial court did not abuse its discretion in denying the motion for new trial.
I. The trial court had discretion to sentence appellant to consecutive or concurrent terms on certain counts
Appellant contends that the trial court abused its discretion in sentencing him to consecutive terms on counts 2 through 7 because it erroneously believed that consecutive sentencing was mandated pursuant to the Three Strikes law. The People concede that the trial court had discretion under the Three Strikes law to impose consecutive or concurrent terms on counts 2, 3, and 4, because the crimes occurred on the same occasion in appellant’s car, and on counts 5, 6, and 7, because those offenses occurred on the same occasion in the motel room. Furthermore, the People urge that offenses committed in the car, counts 2, 3, and 4, did not occur on the same occasion and did not arise from the same set of facts as the offenses committed in the motel room, counts 5, 6, and 7, and therefore the trial court was required to impose a consecutive term as to at least one of the subordinate crimes in counts 2, 3, and 4.
Penal Code sections 667, subdivision (c)(6) and 1170.12, subdivision (a)(6) provide that where a defendant suffered a prior conviction for a qualifying felony, “[i]f there is a current conviction for more than one felony count not committed on the same occasion, and not arising from the same set of operative facts, the court shall sentence the defendant consecutively on each count pursuant to [these sections].” Consecutive sentences are not mandatory if the multiple current felony convictions are “‘“committed on the same occasion”’” or “‘“aris[e] from the same set of operative facts.”’” (People v. Deloza (1998) 18 Cal.4th 585, 591.)
The record shows that at sentencing, the trial court found several factors in aggravation warranting imposition of consecutive sentences. The trial court found that appellant (1) was on active parole (Cal. Rules of Court, rule 4.421(b)(4)); (2) had a lengthy record dating back to 1981; (3) had been to state prison (Cal. Rules of Court, rule 4.421(b)(3)); and (4) exhibited planning and sophistication in the way he committed the crimes, as reflected in the way the gun was hidden and the drugs were secreted.
The trial court selected count 7 as the base term and imposed the midterm of six years. It then imposed consecutive terms of one year and four months for count 2 (one-third the midterm of two years for possession for sale of marijuana, doubled pursuant to the Three Strikes law), and two years and eight months for count 3 (one-third the midterm of four years for transportation of a controlled substance, doubled pursuant to the Three Strikes law). As the trial court sentenced appellant on counts 4 and 5, it stated: “I can’t grant concurrent in Three Strikes. I must sentence consecutively[,] right?” The People agreed, and the trial court then imposed consecutive terms of one year and four months for counts 4, 5, and 6, which was one-third the midterm of two years for each offense, doubled pursuant to the Three Strikes law.
Thus, it appears from the record that the trial court believed it did not have discretion to sentence consecutively or concurrently with respect to the crimes that arose out of the same occasion. The People concede that the crimes appellant committed in his car, counts 2, 3, and 4, occurred on the same occasion because the officers found marijuana and cocaine base in his car after they conducted a traffic stop. From these circumstances, appellant was charged with and convicted of count 2, possession for sale of marijuana; count 3, transportation of a controlled substance; and count 4, possession of cocaine base. The trial court had the discretion to sentence appellant to concurrent or consecutive terms as to counts 2, 3, and 4, but believed that it was required to sentence consecutively. The People also concede that the crimes committed in the motel room, counts 5, 6, and 7, occurred on the same occasion because the officers searched appellant’s motel room and found a firearm, vials of PCP, and marijuana inside. From these circumstances, appellant was charged with and convicted of count 5, possession for sale of marijuana; count 6, possession of a firearm by a convicted felon; and count 7, possession for sale of PCP. Again, the trial court had the discretion to sentence appellant to concurrent or consecutive terms as to counts 5, 6, and 7, but believed that it was required to sentence consecutively. The People agree that the matter should be remanded to allow the trial court an opportunity to exercise its discretion as to whether to sentence consecutively or concurrently with respect to counts 2, 3, and 4, and with respect to counts 5, 6, and 7.
Furthermore, the People also contend that the trial court was required to impose a consecutive sentence as to at least one of the subordinate terms for counts 2, 3, or 4, because those offenses which arose out of the traffic stop did not occur on the same occasion as counts 5, 6, and 7, which arose out of the search of the motel room. Thus, the trial court must select the term for at least one of the offenses committed in the car, counts 2, 3, or 4, and impose it consecutively to the term imposed on count 7.
The People also urge that the trial court should clarify the sentence imposed on count 7, which it selected as the base term. While the abstract of judgment reflects the proper sentence of eight years, the reporter’s transcript shows that the trial court imposed the midterm of six years. Because section 11378.5 provides for terms of three, four, or five years, the midterm for count 7 is four years, which when doubled pursuant to the Three Strikes law, is eight years. Although the abstract of judgment reflects the proper sentence of eight years, the People seek clarification on remand.
Further, the People contend that the record reflects that the trial court stated that there were “three 11370.2 three year priors” for a total of “15 years consecutive.” But, there were five section 11370.2 enhancements, and not three. Given the total of 15 years, it appears that the reporter’s transcript was incorrect or the trial court misspoke. Although the abstract of judgment reflects the proper number of enhancements, the People seek clarification on remand.
We agree with appellant and the People and accordingly, the matter is remanded for the trial court to determine whether to sentence consecutively or concurrently as to counts 2, 3, and 4, and to determine whether to sentence counts 5, 6, and 7 consecutively or concurrently. The trial court must also select the term for at least one of the offenses committed in the car, counts 2, 3, or 4, and impose it consecutively to the term imposed on count 7. The trial court is also ordered to clarify or correct the term selected as the midterm for count 7 and the number of enhancements pursuant to section 11370.2
II. The matter must be remanded for the trial court to determine whether Penal Code section 654 applies
Appellant contends that the trial court should have stayed appellant’s sentence on count 4, possession of cocaine, because it was based on the same facts as count 3, transportation of cocaine. The People urge that the matter should be remanded for the trial court to consider whether section 654 applies to any of the terms which were subject to the court’s discretion. Appellant also contends that his convictions on counts 2 and 5 resulted in improper multiple convictions for the same act because both were convictions for possession for sale of marijuana. The People, however, contend that appellant did not suffer improper multiple convictions based on the same act.
Penal Code section 654 provides that: “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.” Penal Code section 654 does not apply when consecutive sentences are mandated under the Three Strikes law, but may be applicable where the trial court has discretion to sentence to concurrent or consecutive terms under the Three Strikes law. (People v. Danowski (1999) 74 Cal.App.4th 815, 822-824.)
The trial court did not consider whether Penal Code section 654 barred multiple punishment on any of the counts because it believed that consecutive sentencing was mandatory under the Three Strikes law. Accordingly, the matter shall be remanded to the trial court with directions to make findings on whether Penal Code section 654 barred multiple punishment on any of the counts.
Appellant’s contention that he suffered multiple convictions for the same act is not well taken because a defendant may suffer multiple convictions for a single act or course of conduct as long as multiple convictions are not suffered for lesser included offenses. (Pen. Code, § 954; People v. Montoya (2004) 33 Cal.4th 1031, 1034.) Count 2, possession of marijuana, was not a lesser included offense of Count 5 or vice versa, because the counts were based on two separate offenses—one for marijuana found in appellant’s car, and the other for marijuana found in appellant’s motel room. Count 4, possession of cocaine base in violation of section 11350, subdivision (a) was not a lesser included offense of count 3, transporting a controlled substance section 11352, subdivision (a) because the elements of transporting a controlled substance do not include all of the elements for possessing cocaine base. (People v. Rogers (1971) 5 Cal.3d 129, 134 [“Although possession is commonly a circumstance tending to prove transportation, it is not an essential element of that offense and one may ‘transport’ marijuana or other drugs even though they are in the exclusive possession of another”].)
Section 11350, subdivision (a) provides: “Except as otherwise provided in this division, every person who possesses (1) any controlled substance specified in subdivision (b) or (c), or paragraph (1) of subdivision (f) of Section 11054, specified in paragraph (14), (15), or (20) of subdivision (d) of Section 11054, or specified in subdivision (b) or (c) of Section 11055, or specified in subdivision (h) of Section 11056, or (2) any controlled substance classified in Schedule III, IV, or V which is a narcotic drug, unless upon the written prescription of a physician, dentist, podiatrist, or veterinarian licensed to practice in this state, shall be punished by imprisonment in the state prison.”
Section 11352, subdivision (a) provides: “Except as otherwise provided in this division, every person who transports, imports into this state, sells, furnishes, administers, or gives away, or offers to transport, import into this state, sell, furnish, administer, or give away, or attempts to import into this state or transport (1) any controlled substance specified in subdivision (b), (c), or (e), or paragraph (1) of subdivision (f) of Section 11054, specified in paragraph (14), (15), or (20) of subdivision (d) of Section 11054, or specified in subdivision (b) or (c) of Section11055, or specified in subdivision (h) of Section11056, or (2) any controlled substance classified in Schedule III, IV, or V which is a narcotic drug, unless upon the written prescription of a physician, dentist, podiatrist, or veterinarian licensed to practice in this state, shall be punished by imprisonment in the state prison for three, four, or five years.”
We conclude that the matter must be remanded for the trial court to determine whether Penal Code section 654 applies.
III. The matter shall be remanded for the trial court to determine whether to impose two one-year terms for the two remaining Penal Code section 667.5, subdivision (b) enhancements or strike them
Appellant contends that he served two, rather than three, prior prison terms, and that the trial court should have stricken the enhancements rather than imposed them and stayed the terms. The People concede the point.
Penal Code section 667.5, subdivision (b) provides: “Enhancement of prison terms for new offenses because of prior prison terms shall be imposed as follows: [¶]... (b)... where the new offense is any felony for which a prison sentence is imposed, in addition and consecutive to any other prison terms therefor, the court shall impose a one-year term for each prior separate prison term served for any felony; provided that no additional term shall be imposed under this subdivision for any prison term served prior to a period of five years in which the defendant remained free of both prison custody and the commission of an offense which results in a felony conviction.”
Penal Code section 667.5, subdivision (e) provides: “The additional penalties provided for prior prison terms shall not be imposed for any felony for which the defendant did not serve a prior separate term in state prison.” Penal Code section 667.5, subdivision (g) defines a prior separate term as: “a continuous completed period of prison incarceration imposed for the particular offense alone or in combination with concurrent or consecutive sentences for other crimes, including any reimprisonment on revocation of parole which is not accompanied by a new commitment to prison, and including any reimprisonment after an escape from incarceration.”
Penal Code section 667.5 has been construed to mean that only one enhancement is proper where concurrent sentences are imposed in two or more prior felony cases. (People v. Jones (1998) 63 Cal.App.4th 744, 747-750.) Where a defendant’s parole is revoked and he is returned to prison on the violation as well as a new offense, the new term would be considered a separate prior prison term under Penal Code section 667.5, subdivision (b). (In re Kelly (1983) 33 Cal.3d 267, 270-271 [overruled on other grounds in People v. Langston (2004) 33 Cal.4th 1237, 1245].)
The record shows that appellant served only two prior prison terms. While on probation for a 1989 conviction for possession for sale of cocaine, appellant committed an attempted murder in 1990. He was convicted of attempted murder on November 7, 1990 and sent to prison, where he also served two concurrent terms for two counts of possession for sale of cocaine base committed on November 7, 1990 and on November 13, 1990, respectively, and a concurrent term for the 1989 conviction for possession for sale of cocaine. The concurrent terms appellant served for the probation violation, attempted murder offense, and possession of cocaine base for sale offense consisted of one prior prison term that began in 1990 and ended in 1992.
Appellant was sentenced to another prison term on October 14, 2004 for possession of a controlled substance; possession of cocaine for sale; and sale of a controlled substance. He served a term of two years on the possession of a controlled substance offense with concurrent terms of two years for the remaining two counts. Accordingly, appellant served only two prior prison terms within the meaning of Penal Code section 667.5, subdivision (b): the 2004 prison sentence and the time served from 1990 to 1992.
As conceded by the People, upon resentencing appellant, the trial court may impose only two one-year terms under Penal Code section 667.5, subdivision (b). Moreover, it must either impose the one-year terms for the two remaining Penal Code section 667.5, subdivision (b) enhancements or strike them. (People v. Langston, supra, 33 Cal.4th at p. 1241 [the one-year term for Penal Code section 667.5 subdivision (b) enhancements are mandatory unless stricken and the trial court may not impose and stay the terms].)
Accordingly, the matter is remanded for the trial court to correct the abstract of judgment to indicate that appellant served only two prior prison terms under Penal Code section 667.5, subdivision (b). The trial court is also directed to impose the one-year terms for the two Penal Code section 667.5, subdivision (b) enhancements or strike them.
IV. Appellant is entitled to additional presentence custody credit
Appellant contends that he is entitled to an additional 17 days of custody credit. The People urge that appellant is entitled only to 10 additional days.
Pursuant to Penal Code section 4019, a defendant is entitled to credit from the date of arrest to and including the date of sentence for any presentence custody time served in the county jail, industrial farm, or road camp, or any city jail, industrial farm, or road camp. Penal Code section 4019, subdivision (f) provides: “if all days are earned under this section, a term of six days will be deemed to have been served for every four days spent in actual custody.”
Appellant was arrested on July 15, 2005, and sentenced on June 15, 2007. He was entitled to 701 days of actual credit, which includes the date of his arrest and the date he was sentenced. Seven hundred one divided by four equals 175 sets of four days, with one day left over. (People v. Smith (1989) 211 Cal.App.3d 523, 526-527.) The 175 sets of four days multiplied by two equals 350 days of credit for goodtime/worktime. Accordingly, appellant was entitled to credit for 701 days of actual custody, plus 350 days for goodtime/worktime, for a total of 1,051 days of presentence custody credit.
DISPOSITION
The matter is remanded for resentencing. The trial court is directed to determine whether to sentence consecutively or concurrently as to counts 2, 3, and 4, and to determine whether to sentence consecutively or concurrently as to counts 5, 6, and 7; select the term for at least one of the offenses committed in counts 2, 3, or 4, and impose it consecutively to the term imposed on count 7; clarify or correct the term selected as the midterm for count 7 and clarify or correct the number of enhancements pursuant to section 11370.2; determine whether Penal Code section 654 applies to any of the terms where consecutive sentences are not mandated by the Three Strikes law; modify the judgment to indicate that appellant served only two prior prison terms under Penal Code section 667.5, subdivision (b); impose the one-year terms for the two Penal Code section 667.5, subdivision (b) enhancements or strike them; modify the judgment to reflect a total of 1,051 days of presentence custody credit; and send a certified copy of the corrected abstract of judgment to the Department of Corrections and Rehabilitation.
In all other respects, the judgment is affirmed.
We concur: BOREN, P. J., ASHMANN-GERST, J.