Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 04F3579
SIMS, Acting P.J.In People v. Harold Lynn Bowers (Mar. 30, 2006, C048810 [non-pub. opn.] (Bowers I)), this court reversed defendant’s conviction for transportation of a controlled substance in case No. 04F5721, and affirmed defendant’s convictions for possession of cocaine base (the possession offense) and maintaining a place for the use or sale of controlled substances (the maintaining-a-place offense) in case No. 04F3579. The trial court had imposed an aggregate state prison sentence of 11 years and four months as follows: in case No. 04F5721, the upper term of five years for the transportation offense, doubled for a strike prior; and in case No. 04F3579, a consecutive one-third the midterm or eight months, doubled, for the possession offense and a stay pursuant to Penal Code section 654 for the maintaining-a-place offense. We remanded for resentencing in case No. 04F3579.
Undesignated statutory references are to the Penal Code.
The trial court resentenced defendant to state prison for an aggregate term of six years, that is, the upper term of three years, doubled, for the possession offense, and a concurrent upper term of three years, doubled, for the maintaining-a-place offense.
Defendant appeals. He contends (1) the trial court exceeded its jurisdiction when it reversed its prior determination to stay sentence on the maintaining-a-place offense and imposed a concurrent sentence, (2) the trial court’s imposition of the upper term violated Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403] and Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856] and (3) the abstract of judgment and clerk’s minutes require correction to reflect the oral pronouncement of judgment. We will affirm the judgment.
The facts underlying the offenses are quoted from this court’s opinion in Bowers I.
“At 7:00 a.m. on May 12, 2004, Special Agent Dan Callahan of the Shasta Interagency Narcotic Task Force and other officers approached the front door of Jackson’s second-story apartment (the only apartment in the complex with a security door) to serve a search warrant. Redding Police Officer Brian Barner covered the rear of the apartment with his drug detection dog. “After agents knocked on the wall beside the door and announced their presence, a female inside said she was coming to the door; however, no one opened it after repeated announcements, and the officers thought someone might have turned the deadbolt. Agent Callahan ordered his men to breach the door.
“Five to 10 seconds after the first demand for entry, Officer Barner, observing from the rear, saw the arm of an African-American punching out a window screen and a hand tossing out two plastic bags. When Barner and other agents eventually entered the apartment, they saw the bathroom window screen was ‘pushed or ripped out.’
“The agents pried open the screen door, then battered the front door down and entered. As he came in, Agent Callahan heard a noise that sounded like a toilet flushing, which he knew was a common means for drug-crime suspects to dispose of evidence.
“The agents found Jackson just inside the living room, near the bedroom doorway; defendant, shirtless, was standing just inside the bedroom, having just come out of the bathroom. After handcuffing the two, the agents searched the premises.
“Agent Callahan found a piece of crack cocaine weighing three grams in gross field weight on a windowsill in the master bedroom, and another piece of the same size in the kitchen. Agent Callahan also discovered a baggie of cocaine in a trashcan in the apartment’s backyard. Officer Barner’s dog alerted to currency and drug paraphernalia in the bedroom. The agents found a total of $684 in currency in the apartment. The drugs seized in the apartment and sent out for analysis tested positive for cocaine base.
“Agents opined the cocaine found in the trashcan was possessed for sale because it was too large a quantity for personal use. Its street value was at least $500. It had probably been put in the trashcan for a purchaser or dealer to retrieve. The cocaine found on the windowsill, on the other hand, was in an amount consistent with personal use.
“After agents retrieved the cocaine tossed out the bathroom window, one of them questioned defendant about it; he denied any knowledge of it. He admitted the trashcan was his, but denied ownership of its contents. He did not comment when informed that the trashcan contained newspapers with bird droppings, which suggested they had come from the apartment because Jackson kept birds there.
“The agents did not find scales, packaging materials, or pay-owe sheets. However, Agent Rusty Bishop opined that the presence of baking soda, often used to transform powder cocaine into crack cocaine, indicated the drugs found in the apartment were possessed for sale.
“Jackson testified that the agents broke in before she had a chance to open the door. She denied throwing drugs out of the apartment. She indicated defendant may have gone toward the bathroom as the agents knocked.
“[] Jackson testified that she had been married to defendant but had annulled the marriage sometime after the date of the search, and that defendant was unemployed and made his living by drug sales. She also testified that he did not use rock cocaine.”
On remand, the trial court announced its tentative decision to deny probation, impose the upper term for the possession offense and to either stay or impose a concurrent term for the maintaining-a-place offense. Defense counsel noted that he had renewed his motions to strike the strike prior and to reduce both offenses to a misdemeanor. Having not seen the renewed motions, the court continued sentencing.
At the continued sentencing hearing, defense counsel argued the court should continue to stay the maintaining-a-place offense which would allow defendant to request Proposition 36 treatment. Defense counsel claimed that the offenses were not aggravated in that defendant had but two felony convictions, one found to be a strike prior, and requested a mitigated term. The prosecutor asserted that the possession offense could not be reduced pursuant to section 17, subdivision (b). The court rejected the prosecutor’s argument that defendant was maintaining a place for selling controlled substances; defendant was acquitted of possession for sale. The prosecutor claimed that defendant did not fall outside the scheme of the Three Strikes law in that he had a “continued criminal history of increased seriousness.” Citing People v. Ferrando (2004) 115 Cal.App.4th 917, the prosecutor argued that a conviction for maintaining a place renders a defendant ineligible for Proposition 36 treatment. The prosecutor requested that the maintaining-a-place offense be run concurrent since defendant’s spouse had testified that drug sales from the house had been taking place.
The court denied the motion to strike the strike prior as well as the motion to reduce the maintaining-a-place offense to a misdemeanor, citing defendant’s extensive criminal history, that is, “two prior felonies” and “a number of violent offenses.” The court continued the matter to further consider whether defendant was eligible for Proposition 36 treatment.
At the subsequent hearing, defense counsel argued that the stay on the maintaining-a-place offense had to be continued based on law of the case. The court was convinced that if the stay remained in effect, then defendant would be entitled to Proposition 36 treatment:
“This is kind of how I analyzed it because I think it raises a unique issue, to tell you the truth. Because my question was what was -- what is the current effect of a stay of sentence on the Count 1, [Health and Safety Code section] 11366. I think I am persuaded by Pearson and Phelon that if the stay has to remain in effect, then [defendant] would be entitled to Prop[osition] 36 treatment.
“So I tried to see if there was some guidance from the court of appeal when a matter is remanded for sentencing. I know, as best I could tell, you can’t impose a greater sentence, and you can’t alter a discretionary decision that w[as] previously made, so I wondered whether or not staying a sentence pursuant to [section] 654 was an exercise of discretion. “What I -- that took me to the next line of thought, was because, as I thought about it now [sic], it seemed to me that a [section] 654 stay was probably not the current -- legally correct option for the court. If the court wanted to avoid additional punishment for similar facts, it seemed to me that probably a concurrent sentence would have been the appropriate sentence at the time I imposed the sentence originally because it seemed to me that the objectives were different. So I did a little research on that, and I did come up with, I believe it’s People versus Green, which is at 200 Cal.App.3d, 538, and that was a case in which I believe the court did not stay a[] [Health and Safety Code section] 11366 when there was also a[] [Health and Safety Code section] 11350 conviction, and, in fact, what the court concluded was that there were very distinct and separate criminal objectives and that a [section] 654 stay was not required under [] Section 654.
“So my conclusion is that the appropriate sentence either is a consecutive sentence under [section] 1170.12 or [] concurrent terms, because they’re based on the same facts and circumstances. I am not inclined to impose consecutive sentences because they’re the same facts and circumstances, but I think the [section] 654 stay was a legally incorrect sentence and therefore is properly corrected by the court which would result in what I am going [to] do, and that is impose concurrent terms on the [Health and Safety Code section] 11350 and the [Health and Safety Code section] 11366 which would result in the defendant being ineligible for Prop[osition] 36.
“Now, one can make an argument that the court simply c[a]me up with this to justify a result. I did not do that. I don’t do that. I don’t care what people think. That’s not what I do. I did assess the law as best I could, and if I am wrong, I am wrong, but those are the reasons that I am coming to the conclusion that I am.”
The court then sentenced defendant to state prison for the upper term of three years, doubled for the strike prior, for a total of six years for the possession offense, “because of the prior history of the defendant, numerous prior convictions.” The court determined that it had “discretion under [section] 1170.12 to impose a concurrent term” for the maintaining-a-place offense and imposed the same sentence, that is, the upper term of three years, doubled, to six years.
DISCUSSION
I
Defendant contends the trial court had no authority to change the stay on the maintaining-a-place offense for four reasons. He argues (1) the trial court exceeded this court’s remand instructions, (2) the trial court’s resentencing on the maintaining offense violated the doctrine of the law of the case, (3) substantial evidence supported the trial court’s original stay order and (4) the trial court in effect unconstitutionally punished defendant for his prior successful appeal. We find no error.
Section 1260 provides: “The court may reverse, affirm, or modify a judgment or order appealed from, or reduce the degree of the offense or attempted offense or the punishment imposed, and may set aside, affirm, or modify any or all of the proceedings subsequent to, or dependent upon, such judgment or order, and may, if proper, order a new trial and may, if proper, remand the cause to the trial court for such further proceedings as may be just under the circumstances.”
Section 1262 provides in relevant part: “If a judgment against the defendant is reversed such reversal shall be deemed an order for a new trial, unless the appellate court shall otherwise direct.”
Defendant argues that Bowers I did not direct or authorize the trial court to change the applicability of section 654 to the maintaining-a-place offense. More importantly, Bowers I did not preclude the trial court from doing so. Nothing in the opinion discusses the trial court’s prior sentencing decision staying sentence for the maintaining-a-place offense. The directions on remand were to resentence defendant in case No. 04F3579, which included both convictions, possession and maintaining a place. The trial court followed the court’s directions. As defendant concedes, the trial court was allowed to “reconsider an entire sentencing structure in multicount cases where a portion of the original verdict and resulting sentence has been vacated by a higher court.” (People v. Burbine (2003) 106 Cal.App.4th 1250, 1258.)
“‘If the conviction underlying the principal term is reversed, it then becomes necessary for the trial court to select the next most serious conviction to compute a new principal term. Thus, whenever an appellate court reverses a conviction for the principal term, the trial court retains jurisdiction over the entire cause as needed to make the necessary modifications in the sentence.’ [Citation.]” (People v. Begnaud (1991) 235 Cal.App.3d 1548, 1552.)
The law of the case doctrine did not preclude the trial court’s sentencing here. “As its name suggests, the doctrine applies only to an appellate court’s decision on a question of law; it does not apply to questions of fact.” (People v. Barragan (2004) 32 Cal.4th 236, 246.) The doctrine applies when “‘“the point of law involved must have been necessary to the prior decision, that the matter must have been actually presented and determined by the court, and that application of the doctrine will not result in an unjust decision.” [Citations.]’ [Citation.]” (People v. Ramos (1997) 15 Cal.4th 1133, 1161.)
Bowers I did not discuss section 654 nor was it necessary to the decision. It simply was not considered. Law of the case does not apply here.
The trial court reconsidered whether section 654 applied. Defendant argues the trial court’s prior determination that it did apply should not have been disturbed because it was supported by substantial evidence, that is, defendant’s “possession of cocaine occurred at the same place as, and temporally overlapped with, the conduct supporting his conviction” for maintaining a place. In reconsidering, the trial court determined that it had previously erred in concluding that section 654 should apply. The trial court cited People v. Green (1988) 200 Cal.App.3d 538, which upheld multiple punishment for convictions of possession of a controlled substance and maintaining a place for use or sale of the same. The trial court, here, determined that defendant was not selling cocaine base since the jury acquitted him of possession for sale but convicted him of the lesser offense of possession. The officers found a three gram piece of cocaine in the master bedroom and another piece the same size in the kitchen. An officer testified that the piece found in the master bedroom was for personal use. An officer testified that a baggie of cocaine found in the trashcan in the backyard was possessed for sale because it was too large for personal use. When interviewed, defendant denied any knowledge about the cocaine in the trashcan as well as the cocaine thrown out the bathroom window upon the officers’ arrival. No indicia of sales was found in the apartment other than a box of baking soda. The jury could reasonably conclude that defendant possessed the cocaine found in the apartment but not the cocaine found in the trashcan. The cocaine found in the apartment was not enough to sustain a conviction for possession for sale. The evidence supports the trial court’s implied finding that defendant entertained separate intents and objectives in possessing cocaine base and in maintaining the apartment for sale, use or giving away controlled substances. Defendant’s spouse testified that defendant was unemployed, earned money only from selling drugs and did not use cocaine. The court could reasonably conclude that defendant maintained the apartment to sell drugs or to provide a place for others to gather and use drugs. Substantial evidence supports the trial court’s finding of separate intents and objectives. (People v. Jones (2002) 103 Cal.App.4th 1139, 1143.)
Citing People v. Henderson (1963) 60 Cal.2d 482 at page 497, defendant contends he was effectively punished for his prior successful appeal. As defendant acknowledges, there is an exception for an unauthorized sentence which may be corrected at any time, including on remand for resentencing even if a more severe sentence results. (See People v. Craig (1986) 66 Cal.App.4th 1444, 1448, 1450 [“after successful appeal of a conviction a defendant may not upon reconviction be subjected to an aggregate sentence greater than that imposed at the first trial” but “an unlawful or unauthorized sentence may be increased without offending double jeopardy”].)
Defendant argues the exception does not apply because the court’s prior determination was supported by substantial evidence and was thus authorized. The court concluded that it had legally erred and corrected its ruling. Thus, the trial court concluded that it had previously misunderstood section 654. “[A]n incorrect application of section 654 produces an unauthorized sentence which may be rectified on remand.” (People v. Price (1986) 184 Cal.App.3d 1405, 1411.) In any event, on remand the trial court could not impose a sentence exceeding 11 years four months that it imposed when defendant was first sentenced; on remand, the trial court imposed an aggregate six-year term. There was no error.
II
Defendant challenges the court’s imposition of the upper term based on Blakely and Cunningham. Defendant’s contention lacks merit.
In imposing the upper term, the trial court cited in aggravation defendant’s prior history and his numerous prior convictions and no factors in mitigation. The probation report reflects that defendant suffered a prior juvenile adjudication for assault with a deadly weapon and adult convictions as follows: 1983 possession of marijuana; 1985 petty theft; 1987 spousal abuse; 1988 petty theft with a prior; 1989 battery; 1990 brandishing a weapon, assault with a deadly weapon, and driving under the influence; and 2002 driving under the influence. He violated probation and parole, each three separate times. He served a prior prison term.
Blakely and Cunningham apply to factors “other than a prior conviction.” (Blakely, supra, 542 U.S. at p. 301; Cunningham, supra, 549 U.S. ___ [166 L.Ed.2d at p. 864].) A prior conviction has been broadly interpreted to include recidivism factors which, as applied here, means defendant’s prior criminal history as cited by the trial court. (People v. Black (2007) 41 Cal.4th 799, 816.) We reject defendant’s contention of Blakely/Cunningham error.
III
Defendant complains that the clerk’s minutes do not reflect the fines/fees orally imposed. Defendant cites the various fines/fees listed in the minutes, that is, a $31.50 crime prevention fine, a $400 domestic violence fee and a $128 booking fee. The minutes have dollar amounts listed for various fines/fees with boxes next to the dollar amounts. The boxes next to the challenged fines/fees were not checked in the minutes. The minutes include the following notation: “See MO,” which presumably means the minute order signed by the judge. The challenged fines/fees do not appear in the minute order signed by the judge. No correction is required.
Defendant also complains that the minutes do not reflect the oral pronouncement of the amount for the criminal laboratory analysis fee (lab fee). According to the reporter’s transcript, the court imposed a $152.50 lab fee. The abstract of judgment reflects $157.50 for the lab fee as does the minute order signed by the judge. The minute order reflects the breakdown of the fee, surcharges and penalties which correctly totals $157.50. We conclude that the reporter’s transcript simply reflects a typographical error. No correction of the minutes or abstract is required.
DISPOSITION
The judgment is affirmed.
We concur: HULL, J., BUTZ, J.