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In re Noelle M.

December 16, 2008; as modified January 8, 2009

IN RE NOELLE M., A PERSON COMING UNDER THE JUVENILE COURT LAW.
THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
NOELLE M., DEFENDANT AND APPELLANT.



APPEAL from a judgment of the Juvenile Court of Lassen County, Stephen D. Bradbury, Judge. Affirmed as modified. Tim Warriner, Under the appointment by the Court of Appeal, for Defendant and Appellant. (Super. Ct. No. J5127).

The opinion of the court was delivered by: Morrison, J.

CERTIFIED FOR PARTIAL PUBLICATION*fn1

Noelle M. (the minor) appeals from an order of the Lassen County Juvenile Court declaring her a ward of the court and committing her to the Department of Juvenile Justice (DJJ) based upon her admission of two counts of involuntary manslaughter (Pen. Code, § 192, subd. (b)(counts I, II)); one count of conspiracy to sell methadone (§ 182, subd. (a)(1)(count III)); and five counts of selling methadone (Health & Safety Code, § 11352, subd. (a)(counts XI-XV)).

On appeal, the minor contends the court violated Penal Code section 654*fn2 by sentencing her for both conspiracy to sell methadone and selling methadone, and by imposing separate sentences for the five counts of selling methadone. She also contends the trial court improperly calculated both her maximum period of confinement and her precommitment credits. We agree that the court erred as claimed in the minor's first, third and fourth contentions, but disagree that she was improperly sentenced on the five sale counts.

FACTS

As to the eight counts the minor admitted, the facts are uncontested. The minor and Ryan F. conspired to steal the latter's grandmother's methadone pills and sell them to other juveniles at a high school homecoming football game. The minor sold pills to seven students, two of whom died from overdosing.

The court determined the minor's maximum period of confinement was 13 years 4 months, calculated as follows: The upper term of 4 years for the manslaughter in count I; a consecutive term of 16 months for the manslaughter in count II; a consecutive term of 16 months for the conspiracy in count III; and five consecutive terms of 16 months for each of the five sales in counts XI through XV.

DISCUSSION

I.

The minor contends the trial court violated section 654's proscription against multiple punishments for a single act or course of conduct by sentencing her for both the conspiracy to sell methadone pills and the sale of those pills.*fn3 The People agree and so do we.

Punishment for both conspiracy and the underlying substantive offense has been held impermissible when the conspiracy contemplated only the act performed in the substantive offense. (In re Cruz (1966) 64 Cal.2d 178, 181; People v. Mason (1969) 276 Cal.App.2d 386, 389.) Consequently, the sentence imposed for the conspiracy count must be stayed.

II.

The minor contends that sentencing her to consecutive terms for each of the five sales counts is prohibited by section 654 because "all of the counts of furnishing Methadone were pursuant to a single objective, i.e., furnishing of the drug at the football game, and represent an indivisible course of conduct[.]" The minor is incorrect.

"[I]t is well settled that section 654 applies not only where there was but one act in the ordinary sense, but also where there was a course of conduct which violated more than one statute but nevertheless constituted an indivisible transaction. [Citation.] Whether a course of conduct is indivisible depends upon the intent and objective of the actor. [Citation.] If all the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one. [Citation.]... [ΒΆ] On the other hand, if the evidence discloses that a defendant entertained multiple criminal objectives which were independent of and not merely incidental to each other, he may be punished for the independent violations committed in ...


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