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People v. Vang

May 17, 2010

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
YANG VANG, DEFENDANT AND APPELLANT.



APPEAL from a judgment of the Superior Court of Sacramento County, Peter N. Mering, Judge. (Retired Judge of the Sacramento Sup. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed as modified. (Super. Ct. No. 07F07938).

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

CERTIFIED FOR PARTIAL PUBLICATION*fn1

A jury found defendant Yang Vang guilty of being a felon in possession of a firearm (Pen. Code, § 12021, subd. (a)(1)), a felon in possession of ammunition (Pen. Code, § 12316, subd. (b)(1)), possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)), possessing methamphetamine while armed with a loaded, operable firearm (Health & Saf. Code, § 11370.1, subd. (a)), possession of codeine and thebaine (Health & Saf. Code, § 11350, subd. (a)), and possession of drug paraphernalia (Health & Saf. Code, § 11364). The court sentenced defendant to four years four months in prison.

On appeal, defendant contends: (1) his sentence for felon in possession of a firearm should have been stayed pursuant to Penal Code section 654; (2) there was insufficient evidence to support his conviction for possessing methamphetamine while armed with a loaded, operable firearm; (3) the court should not have informed the jury of the nature of his prior felony conviction; and (4) ineffective assistance of counsel. We modify the award of credits and affirm the judgment as modified.

FACTS AND PROCEEDINGS

On August 16, 2007, Sacramento police and probation officers conducted a probation search on defendant's home. When they arrived, they found defendant working on the car in the driveway. They searched him and found on him a glass pipe for smoking methamphetamine and $2,070 in cash.

In the house, officers found Nancy Thow, Xai Fang, and Sherrie Ly sitting on the couch with defendant's son. They searched the house and found.56 grams of methamphetamine in one closet, 4.21 grams of codeine and thebaine in another closet, and two digital scales in one of the closets. The house had a surveillance camera on the front door, which could be viewed through a television monitor inside the house.

Officers went into a locked bedroom in the northwest corner of the house after obtaining a key from defendant. They found a loaded, operable.357 magnum revolver under a pillow on the bed and.357 caliber bullets in the bedroom closet.

Fang was interviewed by a detective after the search, and admitted buying $20 worth of methamphetamine from defendant that day, which she, Thow, and defendant smoked a few hours before the search. Testifying, Fang denied buying methamphetamine from defendant or telling the officer she had done so. The night before, defendant drove Fang and Thow so they could buy methamphetamine, which the three smoked that night.

The People submitted expert testimony that the methamphetamine was possessed for sale in light of the amount of drugs, the digital scales, the $2,070 cash in defendant's possession, and the surveillance system. The parties stipulated defendant had a 2005 felony conviction for possession of methamphetamine (Health & Saf. Code, § 11377).

Defendant testified and denied selling methamphetamine or possessing the drugs, gun, or ammunition. He did not have a bank account; the $2,070 in cash was from his son's disability benefits and his daughter, who worked. He had a surveillance system because he lived in a high crime area and was afraid of break-ins.

DISCUSSION

I. Penal Code Section 654

The court sentenced defendant as follows: a three-year middle term for the principal count (possessing methamphetamine while armed with a loaded, operable firearm), with consecutive eight-month terms for felon in possession of a firearm and possession of codeine and thebaine. The court imposed consecutive sentences for possession of methamphetamine while armed and felon in possession of a firearm because defendant's "status as a felon, is a separate element in this case and adds to the seriousness of his offending." Appellant contends the court should have stayed its sentence for felon in possession of a firearm pursuant to Penal Code section 654 because it was inseparable from possession of methamphetamine while armed.

Penal Code section 654, subdivision (a) provides in relevant part: "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 ...


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