Opinion
A142462
05-31-2017
THE PEOPLE, Plaintiff and Respondent, v. LEONARD LEE WARFORD, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Lake County Super. Ct. Nos. CR 927266, CR 930303, CR 931365-A)
Defendant Leonard Lee Warford was charged with criminal offenses in three separate cases filed between 2011 and 2013. He was sentenced to an aggregate term of 10 years 8 months in all three cases in 2014.
On appeal, he contends that his conviction for transporting a controlled substance (Health & Saf. Code, § 11352, subd. (a)) must be reversed because the statute under which he was convicted was amended before he was sentenced to provide that a defendant must transport the controlled substances for purposes of sale. He claims the stipulated factual basis for his plea did not include any facts indicating he had an intent to sell the drug he was transporting. He also argues that his conviction for possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)) must be reversed because he was tried by the court without expressly waiving his right to a jury trial. Finally, he urges that he cannot be convicted of, or punished for, both battery and assault by means of force likely to produce great bodily injury.
We shall reverse defendant's convictions for transporting a controlled substance and possession of a controlled substance. We reject defendant's claim that he was not properly convicted of both misdemeanor battery and felony assault by means of force likely to produce great bodily injury, but we agree with his claim that he may not be punished for both crimes where they arise out of the same course of conduct. In all other respects, we shall affirm the judgment.
PROCEDURAL BACKGROUND
Because the facts of defendant's offenses are largely immaterial to the issues he raises on appeal, we limit out recitation of the facts to the procedural history of his three criminal cases, except where the facts of the underlying offenses are relevant to a claim of error raised by defendant.
Case No. CR 927266
In a two-count complaint filed in July 2011, the Lake County District Attorney charged defendant in count one with transporting a controlled substance, hydromorphone. (Health & Saf. Code, § 11352, subd. (a).) As to count one, it was alleged that defendant had suffered two prior convictions for drug-related offenses. (Health & Saf. Code, § 11370.2, subd. (a).) In count two, the district attorney charged defendant with possession of a controlled substance, hydromorphone. (Health & Saf. Code, § 11350, subd. (a).)
Pursuant to a negotiated disposition, in January 2012 defendant pleaded no contest to transporting a controlled substance (Health & Saf. Code, § 11352, subd. (a)) and admitted the special allegation that he has suffered prior drug-related convictions within the meaning of Health and Safety Code section 11370.2, subdivision (a). In exchange for his plea, the parties agreed that defendant would be placed on Proposition 36 probation and that the prosecutor would dismiss the charge of possession of a controlled substance. The stipulated factual basis for defendant's plea was that on March 3, 2011, he had been driving a vehicle and was "in constructive possession of a usable amount of a drug called hydromorphone which is a morphine compound prohibited within the schedule of the Health and Safety Code knowing its nature and that it was in a usable quality [sic] without legal justification." The stipulated factual basis for the plea did not include any indication that defendant intended to sell the hydromorphone in his possession. The court suspended imposition of sentence and placed defendant on probation for three years and ordered him to complete an appropriate Proposition 36 drug treatment program.
The trial court summarily revoked defendant's probation when he was arrested on a new charge in August 2012. In April 2014, the trial court found defendant in violation of his probation.
Case No. CR 930303
In an information filed in January 2013, the Lake County District Attorney charged defendant with one count of possession of a controlled substance, methamphetamine. (Health & Saf. Code, § 11377, subd. (a)). The district attorney further alleged that defendant had served a prior prison term within the meaning of Penal Code section 667.5, subdivision (b).
On April 3, 2014, the court, sitting without a jury, found defendant guilty of the drug possession offense and found the prior prison term allegation true.
Case No. CR 931365-A
The Lake County District Attorney filed a four-count, first amended information in December 2013 charging defendant with second degree burglary (Pen. Code, § 459), false imprisonment (Pen. Code, § 236), assault by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(4)), and misdemeanor battery (Pen. Code, § 242). The misdemeanor battery and felony assault involved the same victim and were allegedly committed on the same date. It was further alleged that defendant had served a prior prison term within the meaning of Penal Code section 667.5, subdivision (b).
Defendant expressly waived his right to a jury trial. The evidence before the court at trial was that defendant and an accomplice entered an auto repair shop early in the morning in January 2013 and proceeded to assault the shop's owner with closed fists and a flashlight. The victim knew defendant and the other assailant. Defendant told the victim he owed defendant for items that defendant had provided to the victim. Defendant left a note listing the items for which the victim supposedly owed him. The court found defendant guilty of second degree burglary, not guilty of false imprisonment, guilty of assault by means of force likely to cause great bodily injury, and guilty of misdemeanor battery. The court also found true the allegation that defendant had served a prior prison term.
Sentencing
On June 23, 2014, defendant was sentenced in all three cases.
In case number CR 927266, the court sentenced defendant to the upper term of five years for transporting a controlled substance (Health & Saf. Code, § 11352, subd. (a)), with a consecutive three-year term for the prior-drug related conviction (Health & Saf. Code, § 11370.2, subd. (a)).
In case number CR 930303, the court sentenced defendant to a consecutive term of eight months for possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)), with a one-year consecutive term for the prior prison term (Pen. Code, § 667.5, subd. (b)).
In case number CR 931365-A, the court sentenced defendant to a consecutive term of one year for assault by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(4)). The court also imposed a concurrent sentence of three years for second degree burglary (Pen. Code, § 459) and a concurrent sentence of one year for misdemeanor battery (Pen. Code, § 242).
The total aggregate prison sentence imposed was 10 years 8 months. Defendant timely appealed. Although defendant only listed case number CR 931365-A on his notice of appeal, we construed the notice of appeal to encompass all three cases on which he was sentenced.
DISCUSSION
1. Because Health and Safety Code section 11352 was amended before defendant was sentenced to apply only to transportation of controlled substances for sale , the conviction in case number CR 927266 must be reversed.
Defendant argues that his conviction for transportation of a controlled substance in case number CR 927266 must be reversed in light of a 2014 amendment to Health and Safety Code section 11352 that requires the transportation of the controlled substance to be for purposes of sale. He contends he pleaded no contest simply to transporting hydromorphone, not to transporting the drug for sale, and that the stipulated facts upon which the plea is based do not suggest he intended to sell the pills. For the reasons that follow, we agree that the conviction must be reversed.
At the outset, we consider the People's contention that defendant is barred from appealing his conviction and sentence. The People point out that defendant entered his plea in January 2012, and that what he is now appealing is the revocation of his probation in April 2014. According to the People, defendant could have challenged his conviction in an appeal from the 2012 order granting probation, and he cannot do so now on appeal from the final judgment. Under the circumstances presented here, we do not agree.
A trial court may grant probation by either suspending the imposition of a sentence or by imposing a sentence and suspending its execution. (People v. Segura (2008) 44 Cal.4th 921, 932.) The imposition of a sentence is equated with entry of a final judgment, even if its execution is suspended and the defendant is placed on probation. (People v. Mora (2013) 214 Cal.App.4th 1477, 1482.) When an order imposing sentence and suspending its execution is not appealed, the order becomes final. (People v. Ramirez (2008) 159 Cal.App.4th 1412, 1421.) Thus, if a lawful sentence is imposed but its execution is suspended during probation, the trial court has no jurisdiction to do anything other than order the exact sentence into execution if probation is subsequently revoked, even if circumstances change during the probationary period so that the sentence would be unauthorized if it were being imposed in the first instance. (People v. Martinez (2015) 240 Cal.App.4th 1006, 1017.) If the trial court here had imposed sentence in 2012 and suspended its execution, we would agree with the People that defendant is barred from challenging his sentence as unauthorized based upon a change in the law during his probationary period. But that is not what transpired in this case.
The court granted probation in 2012 after suspending the imposition of sentence. When a court "suspends imposition of sentence, no judgment is then pending against the probationer, who is subject only to the terms and conditions of the probation. [Citations.] The probation order is considered to be final judgment only for the 'limited purpose of taking an appeal therefrom.' " (People v. Howard (1997) 16 Cal.4th 1081, 1087.) The order does not have the effect of a judgment for other purposes. (People v. Superior Court (Giron) (1974) 11 Cal.3d 793, 796.) In such a case, if a change in the law during the probationary period makes conduct that was the subject of a plea no longer punishable, the defendant may challenge the conviction when it is reduced to final judgment. (Cf. People v. Collins (1978) 21 Cal.3d 208, 212-213 (Collins).) Indeed, in a recent case with a procedural history similar to this case, the People conceded that the defendant's sentence was not final at the time amendments to the statutes criminalizing transportation of controlled substances were amended, "as the trial court had suspended imposition of sentence and placed defendant on probation." (People v. Eagle (2016) 246 Cal.App.4th 275, 279 (Eagle).) The People also conceded in Eagle that the defendant was entitled to benefit from the changes in the law because the judgment was not yet final when those changes took effect. (Ibid.) Accordingly, defendant is not barred from challenging his conviction on the ground that a change in the law during his probationary period made the conduct supporting his plea no longer punishable. Further, although defendant did not object at the time of sentencing to the term imposed for violating Health and Safety Code section 11352, there was no waiver of the claim for purposes of appeal because the sentence was unauthorized at the time it was pronounced. (See People v. Nasalga (1996) 12 Cal.4th 784, 789, fn. 4.) We therefore turn to the merits of the claim.
At the time defendant entered his no contest plea in 2012, Health and Safety Code section 11352, subdivision (a) provided that any person who "transports" specified controlled substances shall be punished by imprisonment. (Former Health & Saf. Code, § 11352, subd. (a), as amended by Stats. 2011, ch. 15, § 154.) The term "transports" had been interpreted to include transporting controlled substances for personal use. (Eagle, supra, 246 Cal.App.4th at p. 278.) Effective January 1, 2014, after defendant's conviction, the Legislature amended Health and Safety Code section 11352 to define "transports" as meaning to transport for sale. (Health & Saf. Code, § 11352, subd. (c); Stats. 2013, ch. 504, § 1.) The Legislature made a similar change to Health and Safety Code section 11379, which is analogous to Health and Safety Code section 11352 but applies to a different subset of controlled substances. (Stats. 2013, ch. 504, § 2; see Eagle, supra, at p. 278.)
"The amendment explicitly intended to criminalize the transportation of drugs for the purpose of sale and not the transportation of drugs for nonsales purposes such as personal use." (Eagle, supra, 246 Cal.App.4th at p. 278.) Because the amendatory " 'statute mitigates punishment and there is no savings clause, the rule is that the amendment will operate retroactively so that the lighter punishment is imposed' if the amended statutes takes effect before the judgment of conviction is final." (Id. at p. 279.) Accordingly, defendant is entitled to the retroactive application of the amended statute because his judgment of conviction was not yet final when the amendments took effect. (Ibid.; People v. Ramos (2016) 244 Cal.App.4th 99, 103 [2014 amendment to Health and Safety Code section 11352 is retroactive].)
Because the record here does not establish a factual basis to show that defendant transported hydromorphone with the intent to sell the drug, rather than for personal use, the conviction and the associated sentence enhancement must be reversed. (See Eagle, supra, 246 Cal.App.4th at p. 280.)
But that leaves the question of what should transpire upon remand. In Eagle, the appellate court permitted the defendant to be retried on the transportation for sale charge upon remand because the question of whether the defendant transported a controlled substance for sale had not previously been tried. (Eagle, supra, 246 Cal.App.4th at p. 280.) That question was not relevant to the charges against defendant at the time of his plea, so a retrial was not barred by the double jeopardy clause or ex post facto principles. (Ibid.) Therefore, upon remand, defendant may be retried on the transportation for sale charge under the amended statute.
There is also the question of whether the People may reinstate the charge that was dismissed pursuant to defendant's plea—i.e., the charge of possession of a controlled substance (Health & Saf. Code, § 11350, subd. (a)). The Supreme Court addressed a similar issue in Collins, supra, 21 Cal.3d 208. There, the defendant pleaded guilty to a violation of Penal Code section 288a in exchange for dismissal of multiple charges. (Id. at p. 211.) The court suspended criminal proceedings and committed defendant to a state hospital. The Legislature subsequently amended Penal Code section 288a and enacted a new version of the statute that no longer criminalized the conduct supporting defendant's guilty plea. (Ibid.) After criminal proceedings were reinstated, the court sentenced defendant under the version of Penal Code section 288a that existed at the time of his plea. (Id. at pp. 211-212.) The Supreme Court concluded the Penal Code section 288a conviction must be reversed but also considered whether the People could reinstate the dismissed counts upon remand. (Id. at pp. 213-214.) The court explained the nature of plea bargaining, pointing out that "[t]he state, in entering a plea bargain, generally contemplates a certain ultimate result; integral to its bargain is the defendant's vulnerability to a term of punishment. . . . When a defendant gains total relief from his vulnerability to sentence, the state is substantially deprived of the benefits for which it agreed to enter the bargain." (Id. at p. 215.) The court set out to "fashion a remedy that restore[d] to the state the benefits for which it bargained without depriving [the] defendant of the bargain to which he remain[ed] entitled." (Id. at p. 216.) It thus permitted the state to restore the dismissed counts, but limited defendant's potential sentence to no more than he would have faced under his plea bargain. (Ibid.) The court reasoned that the defendant could not be penalized for pursuing a successful appeal by receiving a greater sentence than the one originally imposed. (Id. at pp. 216-217.)
In this case, as in Eagle and Collins, an intervening act by the Legislature decriminalized the conduct for which defendant was convicted, resulting in a reversal of the only conviction upon which his plea agreement was based. To safeguard the rights of the People, who would otherwise be deprived of the benefit of their bargain as a result of the amendment of Health and Safety Code section 11352, we conclude the People are entitled to proceed on the original charges against defendant in case number CR 927266. (Eagle, supra, 246 Cal.App.4th at p. 277; Collins, supra, 21 Cal.3d at p. 215.) We stress that if the People elect to proceed with the original charges and defendant is convicted of any offense, the trial court may not impose a greater sentence than that which was originally imposed, with credit for time already served. (See Collins, supra, at p. 216.) 2. Defendant's conviction in case number CR 930303 must be reversed because defendant did not expressly waive his right to a jury trial.
Defendant contends his conviction for possession of a controlled substance in case number CR 930303 must be reversed because he was erroneously denied his right to a jury trial. The People concede the judgment must be reversed. The concession is well taken.
The record demonstrates that on March 28, 2014, the court assigned case number CR 930303 for jury trial on April 3. Defense counsel proposed that the matter be conducted as a court trial. The court then stated, "Okay. So that will be a court trial then." Although defense counsel responded by saying, "Yes," defendant did not respond or expressly confirm that he waived his right to jury trial. When the case was called for trial on April 3, 2014, the court proceeded to try the matter without obtaining an express jury trial waiver from defendant.
"A defendant in a criminal prosecution has a right to a trial by jury under both the federal Constitution [citation] and our state Constitution [citation]. [Citations.] The California Constitution permits the defendant and the prosecution to waive their right to a jury and elect a court trial, but specifies the following manner for doing so: 'A jury may be waived in a criminal cause by the consent of both parties expressed in open court by the defendant and the defendant's counsel.' " (People v. Ernst (1994) 8 Cal.4th 441, 444-445; see Cal. Const., art. I, § 16.) A waiver by counsel is insufficient. (People v. Traugott (2010) 184 Cal.App.4th 492, 500.)
As the People concede, defendant did not expressly waive his right to jury trial in case number CR 930303. "The failure to obtain a proper jury trial waiver constitutes a structural defect requiring reversal of the conviction." (People v. Foster (2001) 89 Cal.App.4th Supp. 1, 3; accord, People v. Ernst, supra, 8 Cal.4th at p. 449.) Accordingly, the judgment of conviction in case number CR 930303 must be reversed and the matter remanded for a new trial. (See People v. Solis (1998) 66 Cal.App.4th 62, 67.) The prior prison term enhancement (Pen. Code, § 667.5, subd. (b)) found true by the court must likewise be reversed. 3. Defendant was properly convicted of both misdemeanor battery and felony assault by means of force likely to produce great bodily injury in case number CR 931365-A.
We observe that the court found a prior prison term enhancement true in case number CR 931365-A based upon the same factual basis as that alleged in case number CR 930303. The court imposed a one-year consecutive term in case number CR 930303 but not in case number CR 931365-A, presumably because the prior prison term enhancements in each case were based upon the same facts. The reversal of the prior prison term enhancement in case number CR 930303 does not affect the court's finding in case number CR 931365-A that defendant had served a prior prison term within the meaning of Penal Code section 667.5, subdivision (b).
Defendant contends he cannot be convicted of, or punished for, both assault by means of force likely to produce great bodily injury and battery in case number CR 931365-A. He relies upon the principle that multiple convictions cannot be based upon necessarily included offenses and urges that assault is a necessarily included offense of battery. As we explain, although simple assault is a necessarily included offense of battery, aggravated assault, such as assault by means of force likely to produce great bodily injury, is not. Therefore, while we agree with defendant that he may not be punished for both aggravated assault and battery under the circumstances presented here, he was properly convicted of both crimes.
"In general, a person may be convicted of, although not punished for, more than one crime arising out of the same act or course of conduct. 'In California, a single act or course of conduct by a defendant can lead to convictions "of any number of the offenses charged." [Citations.]' [Citation.] [Penal Code section] 954 generally permits multiple conviction. [Penal Code section] 654 is its counterpart concerning punishment. It prohibits multiple punishment for the same 'act or omission.' When [Penal Code] section 954 permits multiple conviction, but [Penal Code] section 654 prohibits multiple punishment, the trial court must stay execution of sentence on the convictions for which multiple punishment is prohibited." (People v. Reed (2006) 38 Cal.4th 1224, 1226-1227 (Reed).)
Under a judicially created exception to the general rule permitting multiple convictions, a defendant may not be convicted of two separate crimes if one is a necessarily included offense of the other. (Reed, supra, 38 Cal.4th at p. 1227.) An offense is necessarily included in another offense if the greater offense cannot be committed without also committing the lesser, or necessarily included, offense. (Ibid.) This court-created exception to the general rule permitting multiple convictions is based on the rationale that permitting conviction of both the greater and lesser offense in effect convicts the defendant twice of the lesser offense. (People v. Medina (2007) 41 Cal.4th 685, 702.)
We apply the "elements" test in assessing the propriety of multiple convictions for offenses arising out of the same act or course of conduct. (Reed, supra, 38 Cal.4th at p. 1229.) Under the elements test, an offense is necessarily included in another offense if all the legal elements of one offense are included in the legal elements of the other offense. (People v. Montoya (2004) 33 Cal.4th 1031, 1034.)
The question presented here is whether assault by means of force likely to produce great bodily injury is a necessarily included offense of battery. Battery is "any willful and unlawful use of force or violence upon the person of another." (Pen. Code, § 242.) A battery cannot be accomplished without touching the victim. (People v. Marshall (1997) 15 Cal.4th 1, 38.) An assault is an attempt to commit a battery and the present ability to do so. (Pen. Code, § 240; see People v. Elam (2001) 91 Cal.App.4th 298, 308.) A defendant who commits a battery has necessarily committed a simple assault, because a simple assault is "nothing more than an attempted battery." (People v. Fuller (1975) 53 Cal.App.3d 417, 421 (Fuller).) Simple assault is therefore a necessarily included offense of battery. (Ibid.; People v. Yeats (1977) 66 Cal.App.3d 874, 878.)
Relying upon case authority generally describing assault as a necessary element of battery, defendant argues more generally that "[a]ssault, in whatever form it happens to occur, is a necessarily included offense of battery." (Italics added.) Defendant is mistaken.
The Legislature created the crime of aggravated assault (Pen. Code, § 245, subd. (a)) as distinct from the crime of simple assault (Pen. Code, § 242) in order to allow for a more serious punishment for a defendant "who attempts to commit a more serious injury by the use of a deadly weapon or means of force likely to produce great bodily injury." (Fuller, supra, 53 Cal.App.3d at p. 421; cf. People v. Milward (2011) 52 Cal.4th 580, 585-586 [referring to both assault with a deadly weapon, including a firearm, and assault by means of force likely to produce great bodily injury as "aggravated assault"].) "A person can commit battery without using a deadly weapon or means likely to produce great bodily harm. While an aggravated assault in violation of Penal Code section 245 and battery both include the elements of a simple assault, a violation of Penal Code section 245 is a greater offense than and separate and distinct from either simple assault or battery." (Fuller, supra, 53 Cal.App.3d at p. 422.) Therefore, aggravated assault, including assault by means of force likely to produce great bodily injury, is not a necessarily included offense of battery. A person convicted of aggravated assault may also be convicted of battery. (Ibid.; People v. Parrish (1985) 170 Cal.App.3d 336, 343.)
Defendant argues that assault by means of force likely to produce great bodily injury "is still [an] assault" and not a separate crime for purposes of assessing whether an offense is necessarily included in another offense. As support for his argument, he relies upon People v. Ortega (1998) 19 Cal.4th 686, 695 (Ortega), in which the Supreme Court examined whether grand theft is a necessarily included offense of robbery. Robbery is an aggravated form of theft with the additional element of force or fear. (Ibid.) As explained in Ortega, a dispute arose over whether grand theft if a necessarily included offense of robbery, because a robbery can be committed without necessarily committing a grand theft, which requires money or property above a threshold value to be taken from the victim. (Id. at p. 695-696.) The Supreme Court concluded that grand theft is not a separate offense but simply the "higher degree of the crime of theft." (Id. at p. 696, fn. omitted.) Thus, the court held that "[t]heft, in whatever form it happens to occur, is a necessarily included offense of robbery." (Id. at p. 699.) Defendant reasons that, "[j]ust as grand theft is still theft, assault by means of force likely to produce great bodily injury is still assault." We disagree.
The Ortega court relied upon a "long and unbroken line of authority" treating theft as a necessarily included offense of robbery, regardless of the form of theft. (Ortega, supra, 19 Cal.4th at p. 699.) By contrast, there is no long and unbroken line of authority treating all assaults, including aggravated assaults, as necessarily included offenses of battery. Indeed, the case law is to the contrary. (See Fuller, supra, 53 Cal.App.3d at pp. 421-422.) The Ortega court also pointed out that theft is divided into two degrees by statute (Pen. Code, § 486), and that it is not necessary to specify in the charging document whether the alleged crime constitutes grand or petty theft. (Ortega, supra, at p. 696.) In the case of assault, there is no statute describing simple assault and aggravated assault as different degrees of the same crime, and defendant has pointed to no authority declaring that all forms of assault are considered one crime that is simply divided into different degrees. Consequently, Ortega does not support the notion that all forms of assault should be treated as a single offense for purposes of assessing whether one crime is a necessarily included offense of another crime.
In People v. Milward, supra, 52 Cal.4th at page 586, the Supreme Court declined to address whether all forms of aggravated assault (with or without a firearm) constitute one crime for purposes of assessing whether an offense is necessarily included in another offense. Plainly, if all forms of assault constitute one crime, as defendant suggests, the much narrower question faced by the Supreme Court involving different forms of aggravated assault would have been easy to answer.
Further, there is good reason to distinguish between theft and robbery, on the one hand, and assault and battery, on the other. Robbery simply adds the element of force or fear to whatever form of theft is committed, so it is reasonable to treat theft as a necessarily included offense of robbery, even though a robbery could theoretically be committed without committing certain types of theft. By contrast, a battery does not simply add the element of an offensive touching to whatever form of assault is committed. An aggravated assault with a firearm or by means of force likely to produce great bodily injury may be followed by a simple battery that involves a touching that causes no serious injury. Thus, the assault may be more serious and merit greater punishment than the actual battery that is committed. Indeed, that is the case here because defendant was convicted of felony aggravated assault and misdemeanor battery.
Because assault by means of force likely to produce great bodily injury is not a necessarily included offense of battery, defendant was properly convicted of both crimes. (See Fuller, supra, 53 Cal.App.3d at p. 422.) Nevertheless, defendant cannot be punished for both crimes, which arose out of the same act or course of conduct. (Reed, supra, 38 Cal.4th at p. 1227.) Here, the trial court imposed a one-year concurrent sentence for the battery conviction. A concurrent sentence does not satisfy the bar against multiple punishment. (People v. Roberson (1988) 198 Cal.App.3d 860, 872.) The appropriate course of action under Penal Code section 654 is to stay execution of the term with the lesser penalty. (See Reed, supra, at p. 1227; In re McGrew (1967) 66 Cal.2d 685, 688-689.) Thus, the one-year term for the misdemeanor battery conviction must be stayed.
Defendant contends that his multiple convictions violate the double jeopardy clause of the federal Constitution, which protects against multiple punishments for the same offense. (See North Carolina v. Pearce (1968) 395 U.S. 711, 717.) Because aggravated assault is a crime separate and distinct from battery (Fuller, supra, 53 Cal.App.3d at p. 422), defendant's double jeopardy argument necessarily fails. In any event, in light of our disposition staying the sentence for the battery offense pursuant to Penal Code section 654, there is no longer a concern about multiple punishment for offenses arising from the same course of conduct. --------
DISPOSITION
In case number CR 927266, defendant's conviction for transporting a controlled substance (Health & Saf. Code, § 11352, subd. (a)) and the associated enhancement for having suffered prior drug-related convictions (Health & Saf. Code, § 11370.2) are reversed.
In case number CR 930303, defendant's conviction for possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)) and the associated enhancement for serving a prior prison term (Pen. Code, § 667.5, subd. (b)) are reversed.
In case number CR 931365-A, the judgment is modified to reflect that the one-year sentence for misdemeanor battery (Pen. Code, § 242) is stayed.
In all other respects, the judgment is affirmed. The matter is remanded for further proceedings consistent with this opinion.
/s/_________
McGuiness, P.J. We concur: /s/_________
Pollak, J. /s/_________
Jenkins, J.