Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. LA054196. Susan M. Speer, Judge.
Alan Mason, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Margaret E. Maxwell and Thomas C. Hsieh, Deputy Attorneys General, for Plaintiff and Respondent.
COOPER, P. J.
On December 27, 2006, the Los Angeles District Attorney filed an information charging appellant with transportation of a controlled substance (Health and Saf. Code § 11352, subd. (a), count 1) and possession for sale of cocaine base (Health and Saf. Code § 11351.5; count 2). As to both counts, it was further alleged that appellant had served two prior prison terms (Pen. Code § 667.5, subd. (b)) and had prior convictions within the meaning of Health and Safety Code section 11370, subdivisions (a) and (c) and two prior convictions within the meaning of Health and Safety Code section 11370.2, subdivision (a).
Appellant pled not guilty and denied the special allegations. Trial on the prior convictions was bifurcated. A jury found appellant guilty as charged. Appellant admitted one prior prison term allegation, and two prior convictions within the meaning of Health and Safety Code section 11370, subdivisions (a) and (c), and two prior convictions within the meaning of Health and Safety Code section 11370.2, subdivision (a). One prior prison term allegation and one prior conviction allegation within the meaning of Health and Safety Code section 11370, subdivisions (a) and (c) were dismissed.
Appellant was sentenced to a total state prison term of seven years, calculated as follows: four years, the midterm on Count 1, plus three years for the Health and Safety Code section 11370.2 prior conviction. The trial court imposed a concurrent sentence of four years on Count 2. The trial court dismissed the other prior conviction allegations. The trial court ordered appellant to pay a $1,400 restitution fine (§ Pen. Code § 1202.4, subd. (b)), a $20 court security assessment (Pen. Code §1465.8, subd. (a)(1)), a $50 lab analysis fee (Health and Saf. Code § 11372.5), and imposed and stayed a $1,400 parole revocation fine (Pen. Code § 1202.45). Appellant was given 188 days of presentence custody credit, consisting of 126 actual days and 62 days of conduct credits. Appellant appeals from the judgment of conviction.
STATEMENT OF FACTS
On November 29, 2006, at 1:15, p.m., Los Angeles Police Officers Brenda Nix and Oscar Cordova were working undercover in an unmarked police car at a parking lot in Van Nuys and Arminta. Officer Nix knew the parking lot to be a narcotic location and frequented by buyers and sellers of narcotics.
Officer Nix saw an African-American male waiting along the side wall of a store, pacing back and forth and looking in all directions. A green Honda circled the parking lot and stopped in the middle of the lot. Two persons were inside the Honda. Appellant was in the front passenger seat, and a Hispanic male was in the driver’s seat. The driver yelled out and the African-American male ran toward the car. The African-American male appeared to have a conversation with appellant and the driver. The African-American male reached into his right front pants pocket and pulled out some cash. The African-American male entered the rear seat of the Honda. After about 30 seconds, the African-American male exited the Honda and walked to the parking lot. The Honda started to pull out of the parking lot.
The officers followed the Honda because they believed appellant and the driver were possibly selling narcotics. After about 15 minutes, Officers Nix and Cordoba and additional backup officers stopped the Honda. Officer Nix searched appellant, recovering $120 from his right sock and a cell phone from his right jacket pocket. A clear sandwich bag containing an off-white, solid wafer resembling rock cocaine was in the rear passenger seat of the Honda. Officer Nix asked appellant if he used an “a.k.a.” Appellant responded that he used the name “Pudge.” The driver was searched by Officer Cordoba and he did not locate any cash on the driver.
Appellant’s cell phone rang. The caller asked for “Pudge.” Officer Nix answered it, and said that “Pudge” was not available and that she was taking his orders. The caller said he “needed a 40.” Officer Nix asked the caller where he was located and he responded Nordhoff and Sepulveda. Appellant’s cell phone rang again. The next caller asked for a “20” and said he was waiting at the corner of Lankershim and Telfair. Based on her training and experience, Officer Nix knew that a “40” meant $40 worth of narcotics, and that a “20” meant $20 worth of narcotics.
Criminalist Stephanie Thomas tested the off-white solid wafer recovered from the Honda and determined it was cocaine base.
Detective Kathleen Burns opined that because a large amount of narcotics was recovered from the Honda, it was for purposes of sales. Given a hypothetical based on the fact pattern on the case, Detective Burns gave the opinion that the narcotics were possessed for sale.
Appellant did not testify and presented no evidence on his behalf.
CONTENTION AND DISCUSSION
Appellant and respondent agree that the trial court erred in sentencing appellant. The trial court imposed a four year sentence for transportation of a controlled substance and a concurrent four-year term for possession for sale of cocaine base. Appellant contends that the sentence for the transportation conviction should be stayed pursuant to Penal Code section 654, subdivision (a).
Section 654, subdivision (a) provides: “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. An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other.”
Respondent agrees with appellant’s contention that, in this case, the purpose of the act of transporting cocaine was “to facilitate the objective of the other offense of which Mr. Ivy was convicted.” Therefore, while appellant was properly subject to multiple convictions for these separate acts, section 654 prohibits multiple punishment. (People v. Thompson (1990) 50 Cal.3d 134.) We agree with the parties that this is the proper analysis of the sentencing in this case and the sentence must be corrected.
DISPOSITION
The case in remanded to the trial court with directions to stay the four-year mid term sentence on Count 2. In all other respects, the judgment is affirmed.
We concur: FLIER, J., EGERTON, J.
Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.