(Santa Cruz County Super. Ct. No. F20400) Trial Court: Santa Cruz County Superior Court Trial Judge: Honorable Paul M. Marigonda
The opinion of the court was delivered by: Mihara, J.
CERTIFIED FOR PUBLICATION
Defendant Alan Charles Tinker pleaded no contest to transportation of methamphetamine (Health & Saf. Code, § 11379, subd. (a)) and possession of methamphetamine for sale (Health & Saf. Code, § 11378), and admitted prior controlled substance conviction enhancement allegations (Health & Saf. Code, § 11370.2, subd. (c)).*fn1 The court imposed concurrent two-year terms for the two substantive counts and a consecutive three-year term for one of the prior conviction enhancements. Defendant was awarded 198 days of actual custody credit and 98 days of conduct credit. On appeal, he argues that the trial court violated Penal Code section 654*fn2 by imposing prison terms for both substantive counts, and he claims that the trial court erred in failing to award him additional conduct credit under former section 2933, subdivision (e). The Attorney General concedes that defendant was eligible for the additional conduct credit he seeks under former section 2933, subdivision (e) but argues that only the California Department of Corrections and Rehabilitation (the CDCR) had the power to award such credit. We agree with defendant on both points and modify the judgment accordingly.
On February 3, 2011, a sheriff's deputy pulled over defendant's minivan because he recognized defendant and knew he lacked a valid driver's license. The deputy also knew that defendant was a "narcotics user" and that he was on probation for possession of narcotics. Defendant and his dog were alone in the minivan. While the deputy was pat searching defendant, defendant pulled an object out of his waistband and "popped" it into his mouth. The deputy forced defendant to spit it out. The object was a clear bag containing a nearly "golf ball" sized amount of methamphetamine. The deputy found another "identical" bag with the same contents in defendant's pocket. Each of these bags contained about an eighth of an ounce of methamphetamine. A user would not ordinarily have that quantity of methamphetamine.
A search of the minivan revealed that it contained a large quantity of personal belongings and that defendant had been living in it. The deputy found in the minivan paperwork bearing defendant's name, an expensive digital camera, three pellet guns, an iPod, and three cell phones. One of the cell phones was sitting on the driver's seat and alerting. A text message on the phone said: "Need teen or ball now." "Teen" describes a sixteenth of an ounce of narcotics, while "ball" describes an eighth of an ounce.
In the back of the minivan, behind the front passenger's seat, there was a cardboard box about the size of a shoe box. The box was "partially opened" and was "right there on top of everything." This box contained three quart-sized Ziploc bags. One of the quart-sized Ziploc bags contained 16 other bags. The 16 bags each contained a half-ounce of methamphetamine. A second quart-sized Ziploc bag contained 13 bags, 12 of which contained the identical amounts that the 16 bags contained. The 13th bag contained an ounce of methamphetamine. The third quart-sized Ziploc bag contained three bags that each contained a quarter-ounce of methamphetamine. In all, the box contained about a pound of "very high quality," "very pure" methamphetamine with a value of more than $30,000. A pound is "an enormous amount of methamphetamine." A typical methamphetamine user ordinarily possesses only a gram or less. The smaller bags were the same type of bags as the ones found on defendant's person. No methamphetamine paraphernalia was found in the minivan or on defendant's person.
Defendant admitted that the minivan was his, that he was living out of it, and that the contents were his except for the methamphetamine in the box. He claimed that he "didn't know anything about that." Defendant admitted that the methamphetamine in his pockets was his, and he claimed that it was for his "[p]ersonal use." He said that his preferred method of drug use was injection. Defendant explained that he was unable to lock the van, and people would use it as a crash pad or a place to "shoot dope in or hide out in." Defendant insisted that he had never seen the box before the deputy found it in his van.
II. Procedural Background
In the midst of a jury trial on the transportation and possession for sale counts, after the prosecution had rested and defendant had begun his testimony for the defense, defendant pleaded no contest to both counts and admitted the allegations. The court indicated that he would receive a state prison sentence of between four years, four months and seven years. This sentence would include defendant's "probation cases," which were also then pending before the trial court. Defendant admitted violating his probation in those other three "probation" cases. When the court took defendant's pleas and admissions, it said: "Now, as a result of this conviction, since it is 654, if you ever are -- I mean, Court will find obviously 654 which means encompasses the same crime . . . ."
The prosecution sought the maximum of seven years, while the defense sought the minimum term of four years and four months. The probation report recommended a nine-year prison term and noted that the prison term for the possession for sale count should be "stayed per 654 PC."
The court imposed a five-year prison term. It selected the lower term of two years for the transportation count and a two-year concurrent middle term for the possession for sale count. In imposing the concurrent term, the court explained that it was doing so because the possession for sale count "arises out of the same facts and circumstances" as the transportation count. A three-year consecutive term was imposed for one of the prior conviction allegations, and the court struck the other prior conviction allegation. Defendant was granted 198 days of actual custody credit and 98 days of conduct credit for a total of 296 days of credit. Defendant timely filed a notice of appeal from the judgment, and he sought and obtained a certificate of probable cause.