Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County. Stephan G. Saleson, Judge. Affirmed in part; reversed in part. No. FVA800015
Jan B. Norman, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Peter Quon, Jr., and Chandra E. Appell, Deputy Attorneys General, for Plaintiff and Respondent.
RAMIREZ P. J.
Defendant and appellant Sergio Alvarez was charged with one count of transporting methamphetamine (Health & Saf. Code, § 11379, subd. (a)) and one count of possessing methamphetamine for sale (§ 11378). Under both counts, the jury convicted him of the lesser-included offense of possession of methamphetamine. (§ 11377, subd. (a).) Defendant contends, and the People agree, that only one conviction of possession should stand. The judgment is affirmed as to count 1 and reversed as to count 2.
All further statutory references are to the Health and Safety Code.
BACKGROUND
On November 16, 2006, a sheriff’s deputy searched defendant’s truck and found a gray pouch containing a clear baggy holding other small baggies, a digital scale, and a baggy containing methamphetamine. Defendant was arrested. Upon being booked defendant was searched and a baggie containing methamphetamine was found in one of his pant pockets.
In the charging instruments, verdict forms, and jury instructions, there was no distinction between the methamphetamine from the pocket and the methamphetamine from the truck. The prosecution’s closing argument tied the two baggies of methamphetamine together, both to cumulate the usable amount and to argue for defendant’s awareness of his possession of the methamphetamine in the truck, which, like the baggie found in defendant’s pocket, was marked with a spade. The lab report stated on a single page that two substances were tested and that both were methamphetamine.
Defendant was placed on probation for three years, with a condition that he serve 90 days in jail.
DISCUSSION
Defendant contends, and the People agree, that only one conviction of possession should stand. They are correct.
Possession of a single narcotic is a single offense. (People v. Schroeder (1968) 264 Cal.App.2d 217, 228.)
The lesser-included offense in both charged counts was the possession of the same narcotic—methamphetamine. While some methamphetamine was located on defendant’s person, and some was located in his truck, the methamphetamine was collectively treated as being one possession. Accordingly, the second count should be reversed.
DISPOSITION
Defendant’s conviction for the second count of possessing methamphetamine (Count 2—§ 11377, subd. (a)) is reversed. In all other respects, the judgment is affirmed.
We concur: HOLLENHORST J., McKINSTER J.