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People v. Newton

October 18, 2010

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
GREEN NEWTON, DEFENDANT AND APPELLANT.



(Ventura County Super. Ct. No. 2008019670). Patricia M. Murphy, Judge.

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

CERTIFIED FOR PUBLICATION

Health and Safety Code section 11370.2, subdivision (a) requires a three-year enhancement when a defendant is convicted of certain drug offenses and has suffered prior convictions for the same or other specified drug convictions whether or not the prior conviction resulted in a term of imprisonment.*fn1

Here we conclude the enhancement may be imposed even when execution of sentence on the prior conviction was stayed under Penal Code section 654 (hereafter section 654). We affirm.

FACTS

A jury found Green Newton guilty of two counts of sale of a controlled substance, cocaine. (§ 11352, subd. (a).) In a bifurcated proceeding, the trial court found true that Newton suffered two prior drug convictions in 2007, possession for sale (§ 11351) and transportation (§ 11352) of a controlled substance. The prior convictions were charged as enhancements under section 11370.2, subdivision (a).

The trial court sentenced Newton to the middle term of four years on count 1, and a consecutive 16 months (one-third the middle term) on count 2. The court also sentenced Newton to two consecutive three-year enhancements pursuant to section 11370.2, subdivision (a), for a total term of 11 years 4 months.

PRIOR CONVICTIONS

In June of 2006, Newton was stopped by the police while driving in Newport Beach. The police found a plastic baggie in his pocket containing eight one-inch by one-inch plastic squares. The one-inch plastic squares contained cocaine. In Newton's car, the police found a plastic baggie containing 13 grams of loose cocaine and numerous empty one-inch plastic squares.

Newton pled guilty to both possession for sale (§ 11351) and transportation (§ 11352) of a controlled substance. The advisement and waiver of rights form he signed shows his "Maximum Total Punishment." The form shows the violation of section 11351 as count 1; the sentence range is shown as 2, 3 or 4; and under "Total Penalty Years" is "[654]." The violation of section 11352 is shown as count 2; the sentence range is shown as 3, 4 or 5; and the "Total Penalty Years" is 5. Finally, "5 yrs." is listed as the "Maximum Total Punishment." The trial court placed Newton on probation.

DISCUSSION

Newton contends the trial court erred in imposing two three-year enhancements under section 11370.2, subdivision (a). Newton argues the enhancement does not apply to count 1 of his prior conviction because punishment for that count was stayed under section 654.

Section 11370.2, subdivision (a) provides in part: "Any person convicted of a violation of . . . Section . . . 11352 shall receive, in addition to any other punishment authorized by law, including Section 667.5 of the Penal Code, a full, separate, and consecutive three-year term for each prior felony conviction of . . . Section 11351, . . . 11352, . . . whether or not the prior conviction resulted in a term of imprisonment."

Section 654 prohibits multiple punishment for a single act or a continuous and indivisible course of conduct. (People v. Akins (1997) 56 Cal.App.4th 331, 338.) In People v. Pearson (1986) 42 Cal.3d 351, 361, our Supreme Court concluded that unless the Legislature explicitly declares otherwise, the defendant cannot be subjected to future enhancements based on convictions for which service of the sentence was stayed. The court said, "[I]t is clear that ...


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