Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. BLF004587, Harold W. Hopp, Judge.
Cynthia M. Jones, 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, and James D. Dutton and Melissa Mandel, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
HOLLENHORST, Acting P. J.
A jury found defendant and appellant, Von Dedric Miles, guilty of transportation of phencyclidine (PCP) (Health & Saf. Code, § 11379.5, subd. (a), count 1), possession of PCP (Health & Saf. Code, § 11377, subd. (a), count 2), and being under the influence of PCP (Health & Saf. Code, § 11550, subd. (a), count 3). The information alleged that defendant had one prior strike conviction (Pen. Code, §§ 667, subds. (c) & (e)(1), 1170.12, subd. (c)(1)), and had served four prior prison terms (§ 667.5, subd. (b)). The People could not produce the records to prove the prior strike or two of the prison priors (two & four). The trial court thus found the allegations of the prior strike and prison priors two and four not true. Defendant admitted the allegations of prison priors one and three. The court sentenced defendant to six years in state prison, consisting of the midterm of four years on count 1, a concurrent term of two years on count 2, and a concurrent 180 days in county jail on count 3, plus one year for each of the prison priors.
All further statutory references will be to the Penal Code unless otherwise noted.
On appeal, defendant contends: 1) the trial court improperly denied him probation under section 1210.1; and 2) the sentences on counts 2 and 3 should be stayed under section 654. The People concede, and we agree, that the sentences on counts 2 and 3 should be stayed. Otherwise, we affirm.
Because the issues on appeal concern sentencing, we will only render a brief recitation of the facts.
A police officer observed defendant driving the wrong way down a one-way street. The officer pulled defendant over and noticed that he was sweating profusely on a cool night. The officer had defendant step out of the car so he could search him. As the officer was searching him, a clear glass vial fell out of the bottom of defendant’s right pant leg. The liquid substance contained in the vial was tested and came back positive for PCP. The police also found two grams of marijuana in defendant’s pocket.
Defendant later provided a urine sample. The test of the sample detected both PCP and cannabinoids in the urine.
ANALYSIS
I. The Trial Court Properly Concluded that Defendant Was Not Eligible for Probation Under Section 1210.1, Subdivision (b)
Defendant contends that his state prison sentence was unauthorized because he qualified for a mandatory grant of probation under section 1210.1, subdivision (b). We disagree.
“In November 2000, California voters enacted Proposition 36, which requires that certain classes of offenders receive probation and drug rehabilitation treatment.” (People v. Superior Court (Henkel) (2002) 98 Cal.App.4th 78, 81 (Henkel).) Section 1210.1, subdivision (a) provides that “any person convicted of a nonviolent drug possession offense shall receive probation.” Subdivision (b)(1) provides an exception to the mandatory probation rule set forth in subdivision (a). It states that the rule shall not apply to “[a]ny defendant who previously has been convicted of one or more violent or serious felonies as defined in subdivision (c) of Section 667.5 or subdivision (c) of Section 1192.7, respectively, unless the nonviolent drug possession offense occurred after a period of five years in which the defendant remained free of both prison custody and the commission of an offense that results in a felony conviction other than a nonviolent drug possession offense, or a misdemeanor conviction involving physical injury or the threat of physical injury to another person.” The “five-year period of freedom from commission of a felony... [is] often referred to as a ‘wash-out’....” (Henkel, supra, at p. 81.) The legislative analyst of Proposition 36 stated the following about the five-year wash-out period: “‘[O]ffenders with one or more violent or serious felonies on their record, and thus subject to longer prison sentences under the Three Strikes law, would not be sentenced under this measure to probation and drug treatment, unless certain conditions existed. Specifically, during the five years before he or she committed a nonviolent drug possession offense, the offender (1) had not been in prison, (2) had not been convicted of a felony (other than nonviolent drug possession), and (3) had not been convicted of any misdemeanor involving injury or threat of injury to another person.’ [Citation.]” (Henkel, supra, at p. 82.)
Here, defendant’s convictions were for transportation of PCP, possession of PCP, and being under the influence of PCP on September 18, 2007. The information alleged a prior strike conviction for voluntary manslaughter. (§ 192, subd. (a).) Voluntary manslaughter is a “serious felony” within the meaning of section 1192.7, subdivision (c)(1). Furthermore, the probation report showed, and the court noted, that defendant had been convicted of a felony (possession of cannabis) in 2005 and served time in state prison for such offense. Since defendant had been in prison during the five years before he committed the current offenses, he was ineligible for probation under section 1210.1, subdivision (b).
At the sentencing hearing, while discussing whether defendant was eligible for probation under section 1210.1, the court stated that defendant had a strike. Although the prosecutor could not produce a record of the strike, the court noted that the probation report indicated defendant had the strike, and defense counsel did not offer any evidence to the contrary. Thus, for purposes of considering defendant’s probation eligibility, the court found that he did have a strike. Defendant does not dispute the strike on appeal.
Defendant contends that, based on the public policy underlying Proposition 36 and section 1210.1, “it is irrational to interpret the statutory language as disqualifying from treatment someone who committed a strike felony in the past, but in the most recent five years has not committed any felonies other than a nonviolent drug possession felony, simply because that nonviolent drug possession felony resulted in a prison sentence rather than probation.” He argues that the statute “should be interpreted to apply the excepting language ‘other than a nonviolent drug possession offense’ to both the requirement that the defendant be free of felony conviction and prison custody.” (Italics in original.) Defendant’s argument is simply unsupported by the plain language of the statute. Section 1210.1, subdivision (b)(1) provides that any person who has suffered a prior strike is ineligible for Proposition 36 treatment unless the current offense “occurred after a period of five years in which the defendant remained free of both prison custody and the commission of an offense that results in a felony conviction other than a nonviolent drug possession offense....” (Italics added.) Defendant’s interpretation of the statute would permit the referral to drug treatment of a “strike” offender who did not remain free of prison custody for the required five-year period before the current offense.
The court properly found that defendant was not eligible for probation under section 1210.1.
II. The Sentences on Counts 2 and 3 Should Be Stayed Under Section 654
Defendant argues that the sentences on counts 2 and 3 violated section 654, since counts 1 through 3 arose from an indivisible course of conduct. The People correctly concede.
“Section 654 precludes multiple punishment for a single act or omission, or an indivisible course of conduct. [Citations.]” (People v. Deloza (1998) 18 Cal.4th 585, 591.) “Whether a course of criminal conduct is a divisible transaction which could be punished under more than one statute within the meaning of section 654 depends on the intent and objective of the actor. [Citation.]” (People v. Saffle (1992) 4 Cal.App.4th 434, 438.)
Defendant was sentenced to four years on count 1 (transportation of PCP), and was given concurrent sentences on count 2 (possession of PCP) and count 3 (being under the influence of PCP). There was no evidence, however, that the possession preceded the transportation or extended beyond it. Thus, defendant’s possession and transportation offenses were part of an indivisible course of conduct. (See People v. Solo (1970) 8 Cal.App.3d 201, 208.) Furthermore, the parties stipulated that the transportation of PCP was for personal use. Defendant’s transportation and possession of PCP, therefore, were incident to his objective of being under the influence. (See People v. Holly (1976) 62 Cal.App.3d 797, 805.) Since defendant was convicted of multiple offenses arising from an indivisible course of conduct, the sentences on counts 2 and 3 should be stayed under section 654.
DISPOSITION
The judgment is modified to stay the sentences imposed on counts 2 and 3 under section 654. The trial court is directed to amend the abstract of judgment to reflect this modification and to forward a copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
We concur: MCKINSTER, J., GAUT, J.