California Court of Appeals, Third District, Sacramento
CERTIFIED FOR PARTIAL PUBLICATION[*]
APPEAL from a judgment of the Superior Court of Sacramento County, Nos. 08F09057, 11F08400 Troy L. Nunley, Judge.
James Bisnow, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Catherine Tennant Nieto, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant James Edward Oakley was convicted on multiple criminal charges, including transportation of methamphetamine. (Health & Saf. Code, § 11379, subd. (a).) As a repeat offender, defendant was sentenced to an aggregate term of 11 years four months in state prison. Defendant appeals his sentence, arguing that the trial court wrongly sentenced him to an additional three-year term under Health and Safety Code section 11370.2, because the transportation of methamphetamine charge for which he was convicted was based on transportation for personal use. Defendant also contends the trial court wrongly believed it lacked discretion under the three strikes law to sentence defendant to a concurrent term for his conviction on the charge of failure to appear.
In the published portion of this opinion, we conclude that the trial court did not err in imposing the three-year enhancement pursuant to Health and Safety Code section 11370.2, because that enhancement applies regardless of whether transportation of a controlled substance is for personal use.
In the unpublished portion of this opinion, we conclude that the trial court properly sentenced defendant to a consecutive term on his conviction for failure to appear, because defendant’s failure did not arise from the same operative facts as defendant’s drug-related crimes.
We remand to the trial court to correct an error in an abstract of judgment, but otherwise affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant was charged in Sacramento County case No. 08F09057 (the first case) with transportation of methamphetamine (Health & Saf. Code, § 11379, subd. (a)), possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)), and possession of paraphernalia for smoking a controlled substance (Health & Saf. Code, § 11364). The amended information also alleged recidivist enhancements: a prior conviction for voluntary manslaughter, a serious and violent felony (Pen. Code, §§ 667, subds. (b)-(i), 1170.12); a prior conviction for possession of methamphetamine for sale, a drug-related offense (Health & Saf. Code, § 11370.2); and a prior prison term (Pen. Code, § 667.5, subd. (b)).
Defendant pleaded not guilty to the charges and waived his right to an attorney. A jury later found defendant guilty of the charged offenses. Following the verdict, defendant requested an attorney. The court appointed counsel. Thereafter, defendant admitted the prior convictions and the prior prison term allegation.
Prior to being sentenced in the first case, defendant was charged in Sacramento County Superior Court case No. 11F08400 (the second case) with receiving stolen property while released from custody (Pen. Code, §§ 496, subd. (a), 12022.1), failing to appear (Pen. Code, § 1320.5), and providing false information to a police officer (Pen. Code, § 148.9, subd. (a)). It was further alleged that defendant previously had been convicted of a serious or violent felony (Pen. Code, §§ 667, subds. (b)-(i), 1170.12) and previously had served a term in prison (Pen. Code, § 667.5, subd. (b)).
For purposes of the Penal Code section 1320.5 charge and the Penal Code section 12022.1 enhancement, defendant admitted he was out on bail on a felony in the first case at the time of the alleged offenses in the second case. A jury then found defendant not guilty of the receiving stolen property charge, but guilty of failure to appear and providing false information to a police officer in the ...