Opinion
E065486
08-28-2017
THE PEOPLE, Plaintiff and Respondent, v. ALAN RAY VIZCARRA, Defendant and Appellant.
Stephanie M. Adraktas, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Jennifer B. Truong, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. RIF1501924) OPINION APPEAL from the Superior Court of Riverside County. Steven G. Counelis, Judge. Affirmed in part; reversed in part. Stephanie M. Adraktas, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Jennifer B. Truong, Deputy Attorneys General, for Plaintiff and Respondent.
FACTUAL AND PROCEDURAL HISTORY
A. PROCEDURAL HISTORY
On July 22, 2015, an information charged defendant and appellant Alan Ray Vizcarra with transportation of methamphetamine for the purpose of sale under Health and Safety Code section 11379, subdivision (a) (count 1); possession of methamphetamine for purpose of sale under section 11378 (count 2); and being under the influence of a controlled substance, a misdemeanor, under section 11550, subdivision (a) (count 3). As to counts 1 and 2, the information alleged that defendant possessed and transported for sale 28.5 grams or more of methamphetamine, or 57 grams or more of a substance containing methamphetamine under section 1203.073.
All further statutory references are to the Health and Safety Code unless otherwise indicated.
After a jury trial, the jury returned verdicts of not guilty as to counts 1 and 2 and found the associated special allegations as to the amount of methamphetamine not true. As to counts 1 and 2 the jury found defendant guilty of the lesser included offenses of simple possession of methamphetamine under section 11377. The jury also found defendant guilty of the misdemeanor offense of being under the influence of a controlled substance under section 11550 (count 3).
On February 25, 2016, the trial court imposed a sentence of 365 days in jail on each of two counts of simple possession of methamphetamine, to be served concurrently. The court also imposed a concurrent 365-day sentence on count 3. The court then imposed fines and fees.
B. FACTUAL BACKGROUND
On April 17, 2015, at 11:25 p.m., Riverside County Deputy Sheriff Herington conducted a traffic stop of defendant's vehicle because it was swerving within a lane. Deputy Herington thought that defendant appeared to be "under the influence." After defendant got out of the car, Deputy Herington placed him in the patrol car to wait for backup. Defendant produced his driver's license, but not his registration and insurance as those were in his vehicle. Defendant told Deputy Herington he locked his keys in his car on purpose, effectively locking himself out of his own vehicle. Defendant said he consumed one beer.
Because defendant was acquitted of the charges that he possessed and transported methamphetamine for the purpose of sale, details related to those charges are not included. --------
After performing an "under the influence evaluation," Deputy Herington and a colleague, Deputy Jason Hughes, concluded that defendant was under the influence of methamphetamine and other drugs.
Deputy Herington also found 140.879 grams of methamphetamine on the floorboard of defendant's vehicle. The methamphetamine was inside three sandwich baggies that were inside a sandwich baggie box. Two of the baggies contained about 56 grams of methamphetamine each and the third baggie contained about 28 grams.
Defendant provided a urine sample, which was analyzed and found to contain methamphetamine, benzodiazepine (also known as Xanax), heroin (codeine), and THC (a component of marijuana). According to toxicologist Ala Bawardi, the test results indicated that defendant had used methamphetamine "within the last couple of days."
Defendant testified that he had been using methamphetamine for about 21 years, since he was 14 years old. Defendant stopped using for about an 11-month period when he was in a drug rehabilitation program. On the date of his arrest, defendant had purchased about five ounces of methamphetamine for his own use. He had purchased more than he usually did because he wanted to celebrate his birthday with 10 to 15 other people at a party where he would have shared the methamphetamine with the others. Defendant used about an eighth of an ounce of methamphetamine a day, or slightly less than one ounce per week.
In rebuttal, the prosecution called Riverside County's Sheriff's Deputy Arturo Mendez, who testified that a typical methamphetamine user would not be able to consume an ounce of methamphetamine every seven days because that would make the user "sick."
DISCUSSION
Defendant contends that convicting him for two counts of possession of methamphetamine violates the double jeopardy clause. The People contend that the double jeopardy principles are not implicated in this case. However, the People agree that one of the possession convictions should be vacated under Penal Code section 954. We agree with the People.
Penal Code section 954 provides in pertinent part as follows: "An accusatory pleading may charge two or more different offenses connected together in their commission, or different statements of the same offense or two or more different offenses of the same class of crimes or offenses, under separate counts . . . . The prosecution is not required to elect between the different offenses or counts set forth in the accusatory pleading, but the defendant may be convicted of any number of the offenses charged."
In People v. Whitmer (2014) 59 Cal.4th 733, the California Supreme Court held that when a defendant commits a series of separate and distinct acts, even if committed under a single overarching scheme, he may be convicted of multiple violations. (Id. at pp. 735, 740.) Here, however, defendant was convicted of two counts of simple possession, which is a continuing offense based on the same conduct—possessing 140 grams of methamphetamine. (See People v. Bland (1995) 10 Cal.4th 991, 999.) Moreover, the evidence showed that defendant had a single intent—to possess the drugs for personal use. Because defendant did not commit two separate and distinct acts of possession, one of the two convictions must be reversed.
DISPOSITION
Count 2, defendant's conviction for possess of methamphetamine under Health and Safety Code section 11377 is reversed. The superior court is directed to prepare a new minute order and abstract of judgment reflecting the reversal, and forward certified copies to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J. We concur: RAMIREZ
P. J. McKINSTER
J.