(Super. Ct. No. 11F00282)
The opinion of the court was delivered by: Robie , Acting P. J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury found defendant Jaime L. Clark guilty of possessing marijuana (Health & Saf. Code,*fn1 § 11357, subd. (c) (section 11357(c))); selling or furnishing marijuana (Health & Saf. Code, § 11360, subd. (a) (section 11360(a))); and selling or furnishing marijuana to a minor 14 years or older (Health & Saf. Code, § 11361, subd. (b) (section 11361(b))). On appeal, defendant contends: (1) he was improperly convicted of selling or furnishing marijuana under section 11360(a) because that offense is a lesser included offense of selling or furnishing marijuana to a minor 14 years or older under section 11361(b); and (2) he is entitled to 190 day-for-day conduct credits for 190 days served in presentence custody under former Penal Code section 2933 as it was previously amended on September 28, 2010. We agree with defendant on both points and therefore reverse his conviction for selling or furnishing marijuana under section 11360(a) and award him 94 additional conduct credits for time served in presentence custody.
FACTUAL AND PROCEDURAL BACKGROUND
On January 6, 2011, Officer Douglas Nelson and three other peace officers were patrolling the area around 7th and K Streets in Sacramento. Officer Nelson saw defendant trying to converse with pedestrians as they passed him. First, defendant offered marijuana to an adult who walked away without purchasing any. After a period of surveillance, Officer Douglas saw defendant contact 15-year-old Axel M. Defendant asked Axel if he needed any marijuana or "weed." Axel responded that he did not have any money, but had a "Metro PC card." Axel proposed a trade. Defendant took Axel's "Metro PCS card" in exchange for marijuana wrapped in a plastic bag. Axel also gave defendant $1.25 to buy him a tobacco cigar. He removed the tobacco from it in order to fill it with marijuana. When Axel saw the police in pursuit, he boarded a light rail train. Officers boarded the train and detained him. He was found with 1.22 grams of marijuana in a torn piece of plastic bag. Defendant was also detained and searched. A white plastic bag containing marijuana was found in his inner coat pocket. The marijuana was later found to weigh 30.1 grams. He was also carrying a data card and scan-disc flash drive.
Defendant was charged with selling marijuana, possession of marijuana for sale, and selling marijuana to a minor. The information further alleged that defendant had served a prior prison term following a felony conviction. A jury returned a verdict of guilty on selling or furnishing marijuana under section 11360(a), selling or furnishing marijuana to a minor under section 11361(b), and simple possession of marijuana under section 11357(c). In bifurcated proceedings, the court found true the allegation that defendant served a prior prison term following a felony conviction.
Defendant was sentenced to the midterm of four years for selling or furnishing marijuana to a minor under section 11361(b); three years for selling or furnishing marijuana under 11360(a), which was stayed; 30 days stayed for simple possession of marijuana under section 11357(c); and one year for the prison prior enhancement. In a different case, defendant was sentenced to an additional eight months in prison to run consecutively for a total sentence of five years eight months. The trial court awarded defendant credit for time served of 190 days, plus 96 days of conduct credit for a total of 286 days of presentence credit. This timely appeal followed.
Selling Or Furnishing Marijuana Is A
Lesser Included Offense Of Selling
Or Furnishing Marijuana To ...