Opinion
H044563
06-28-2018
THE PEOPLE, Plaintiff and Respondent, v. ANTHONY LACHARLES BROWN, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Monterey County Super. Ct. Nos. SS150420A; SS162083A)
Defendant appeals from the trial court's decision to revoke mandatory supervision and execute a previously suspended sentence for possessing cocaine base for sale (Health & Saf. Code, § 11351.5) with a prior drug-related conviction (Health & Saf. Code, § 11370.2, subd. (a)). The Attorney General concedes that the abstract of judgment in that case, as well as the abstract of judgment in the new case that led to the revocation, must be amended to accurately reflect the sentences imposed by the trial court. We will modify the judgments and affirm them as modified.
I. TRIAL COURT PROCEEDINGS
A. 2015 POSSESSION FOR SALE CONVICTION
According to a probation report, a peace officer observed defendant riding a bicycle at night without a headlight turned on. The officer recognized defendant and knew he was on post release community supervision with search terms. The officer searched defendant and found three baggies of cocaine; four baggies of marijuana; two glass pipes the officer recognized as the type used to smoke cocaine; and a single pill later identified as prescription antianxiety medication.
Defendant was arrested, held to answer, and charged by amended felony information in case No. SS150420A (2015 case) with transporting controlled substances for sale (Health & Saf. Code, § 11352, subd. (a); unspecified references are to this Code); possessing cocaine base for sale (§ 11351.5); possessing marijuana for sale (§ 11359); and possessing drug paraphernalia, a misdemeanor (§ 11364, subd. (a)). Regarding cocaine base possession, the information alleged defendant had a prior drug-related conviction for purposes of a section 11370.2, subdivision (a) enhancement. The information also alleged defendant had served two prior prison terms (Pen. Code, § 667.5, subd. (b)).
As part of a negotiated disposition, defendant pleaded no contest to possessing cocaine base for sale (§ 11351.5) and admitted the section 11370.2, subdivision (a) enhancement. The prosecutor agreed to move to dismiss the remaining counts and enhancements, and the parties stipulated to a five-year split sentence consisting of two years in county jail and three years released on mandatory supervision. (Pen. Code, § 1170, subd. (h)(5).) The trial court sentenced defendant consistent with the parties' agreement, but did not orally state how the term was calculated. The sentencing minute order and the abstract of judgment list the term as the lower term of three years for possessing cocaine base for sale and a two-year enhancement under section 11370.2.
B. 2016 POSSESSION IN JAIL COMPLAINT
According to a summary in a probation report, defendant was arrested on an outstanding warrant in late 2016 while released on mandatory supervision for the 2015 conviction. A correctional officer found methamphetamine and heroin wrapped in toilet paper near defendant's anus during a strip search in the booking process. Defendant was charged in case No. SS162083A (2016 case) with knowingly possessing heroin and methamphetamine in jail (Pen. Code, § 4573.6, subd. (a)). The complaint alleged defendant had served six prior prison terms (Pen. Code, § 667.5, subd. (b)).
C. JOINT DISPOSITION OF THE TWO CASES
As part of a negotiated disposition, defendant pleaded no contest to possessing controlled substances in jail (Pen. Code, § 4573.6, subd. (a)) and admitted one of the prior prison term allegations (Pen. Code, § 667.5, subd. (b)). The parties stipulated that mandatory supervision in the 2015 case would be terminated and that defendant would serve the remainder of the sentence in that case. The parties further stipulated that defendant would receive a two-year sentence in the 2016 case consecutive to the sentence in the 2015 case, and that the remaining prior prison term allegations would be dismissed.
The trial court sentenced defendant consistent with the parties' agreement. In the 2015 case, mandatory supervision was revoked and terminated and defendant was ordered to serve the remainder of his five-year sentence. He received a total of 1017 days credit (including pre- and post-sentence custody from the first two years of his split sentence), consisting of 589 actual days plus 428 days conduct credit. (That custody credit was never added to an amended abstract of judgment.) In the 2016 case defendant was sentenced to an additional two years in jail, based on one year for possessing controlled substances in jail (one-third the middle term (Pen. Code, §§ 4573.6, subd. (a); 1170.1, subd. (a))) plus one year for the prior prison term enhancement (Pen. Code, § 667.5, subd. (b)).
II. DISCUSSION
The parties agree that the abstracts of judgment in the 2015 and 2016 cases contain errors that can be corrected by modification on appeal.
First, the parties note that the sentence calculation currently reflected in the 2015 abstract of judgment is unauthorized for two reasons: (1) it lists a three-year low term sentence for possessing cocaine base for sale (§ 11351.5) whereas the actual low term for that offense is two years; and (2) it lists a two-year enhancement for the section 11370.2, subdivision (a) allegation whereas the applicable enhancement under that section is three years. We will order that the abstract of judgment in the 2015 case be modified to impose a five-year sentence calculated as: a two-year low term for possessing cocaine base for sale (§ 11351.5) plus a three-year term for the section 11370.2, subdivision (a) enhancement.
Second, the parties agree that defendant's updated custody credit calculation in the 2015 case must be included in an amended abstract of judgment. (Citing People v. Buckhalter (2001) 26 Cal.4th 20, 41 ["[T]he trial court, having modified defendant's sentence, should have determined all actual days defendant had spent in custody, whether in jail or prison, and awarded such credits in the new abstract of judgment."].) We will order that the amended abstract of judgment in the 2015 case include 1017 days of custody credit, consisting of 589 actual days plus 428 days of conduct credit.
Third, the parties agree that the abstract of judgment in the 2016 case should be amended to clarify that the sentence in that case is to run consecutive to the sentence in the 2015 case. We will order the trial court to prepare an amended abstract of judgment in the 2016 case that refers to the 2015 case as the term to which the 2016 sentence is to run consecutive.
III. DISPOSITION
The judgment in case No. SS150420A is modified as follows: the five-year term is the sum of a two-year low term for possessing cocaine base for sale (Health & Saf. Code, § 11351.5) and a three-year term for the Health & Safety Code section 11370.2, subdivision (a) enhancement; and defendant is entitled to 1017 days of custody credit, consisting of 589 actual days plus 428 days of conduct credit. The trial court is directed to prepare an amended abstract of judgment in case No. SS150420A reflecting those modifications and to forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation.
The judgment in case No. SS162083A is modified to add a reference to case No. SS150420A as the sentence to which the 2016 sentence is consecutive. The trial court is directed to prepare an amended abstract of judgment in case No. SS162083A reflecting that addition and to forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation.
/s/_________
Grover, J.
WE CONCUR:
/s/_________
Greenwood, P. J. /s/_________
Bamattre-Manoukian, J.