Opinion
NOT TO BE PUBLISHED
San Francisco County Super. Ct. No. 203522
RIVERA, J.
Defendant appeals a judgment entered upon a jury verdict finding him guilty of sale of cocaine (Health & Saf. Code, § 11352, subd. (a)) (count 1); possession of a controlled substance (§ 11350, subd. (a)) (count 2); resisting arrest (Pen. Code, § 148, subd. (a)(1)) (count 3); and destroying evidence (§ 135) (count 4). Defendant contends that the trial court erred in failing to stay the sentence for count 2 pursuant to section 654 and that he is entitled to additional presentence work and conduct credits pursuant to the recent amendments to section 4019. We agree that he is entitled to additional credits, and shall remand to the trial court to recalculate them. In all other respects, we shall affirm.
Defendant was charged in count 2 with possession of cocaine for sale. (Health & Saf. Code, § 11351.5.) The jury found him not guilty of possession of cocaine for sale, but guilty of the lesser included offense of simple possession of a controlled substance. (Id., § 11350, subd. (a).)
All undesignated statutory references are to the Penal Code.
I. BACKGROUND
An undercover San Francisco police officer, Britt Elmore, approached defendant and a companion, Gashiya Kesselly, on October 17, 2008, and asked for a “20, ” the street term for $20 worth of cocaine base. Kesselly replied, “We got it, ” and defendant gave him a rock of cocaine base. Elmore gave Buntyn one marked $10 bill and two marked $5 bills. He signaled backup officers that he had just bought narcotics, and walked away. After about 10 or 15 seconds, he looked back and saw “arrest team” officers arresting defendant and Kesselly. Defendant had his hands under his body, and after five or ten seconds, the officers were able to pull his arms out to handcuff him.
Kesselly was a codefendant at defendant’s trial. She was found not guilty of the sole count alleged against her, sale of cocaine (Health & Saf. Code, § 11352, subd. (a)), and is not a party to this appeal.
Another officer saw defendant put something that looked like paper in his mouth and throw down an off-white “rock” as the arrest team moved toward him.
Officer Brian Schaffer was on the arrest team. As he approached defendant and Kesselly, he said, “Police. Stop. You are under arrest.” He and two other officers moved toward defendant, and Schaffer saw defendant drop what appeared to be a rock of crack cocaine onto the sidewalk. Defendant also appeared to put money into his mouth. Defendant struggled as the other officers tried to handcuff him, and put his arms under his body, but the officers subdued and handcuffed him. He appeared to be chewing as he did so. Schaffer recovered a rock of cocaine from the ground where defendant had dropped it. After defendant was handcuffed, Schaffer checked his mouth and found nothing in it. No money was found on defendant’s person. Two marked $5 bills were found on Kesselly.
Defendant testified that on the day in question, he bought a rock of crack cocaine for $8 for his own use. He denied knowing Kesselly, selling cocaine to Elmore, or eating currency. He dropped the rock of cocaine because an officer twisted his arm.
The trial court sentenced defendant to the midterm of four years for count 1, sale of cocaine, and imposed a concurrent two-year term for count 2, possession of a controlled substance, and concurrent six-month terms for counts 3 and 4. Pursuant to Health and Safety Code section 11370.2, the sentence included two consecutive three-year enhancements for two prior convictions of violations of Health and Safety Code section 11352, subdivision (a). The total prison term was 10 years.
II. DISCUSSION
A. Punishment for Counts 1 and 2
Defendant contends the trial court should have stayed the sentence for count 2 pursuant to section 654. According to defendant, he could not properly be sentenced for both sale of cocaine (count 1) and possession of cocaine (count 2) because the two offenses were part of an indivisible course of conduct.
Section 654, subdivision (a), provides in pertinent 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 shall the act or omission be punished under more than one provision.”
As explained in People v. McGuire (1993) 14 Cal.App.4th 687, 697-698, “ ‘[I]t is well settled that section 654 applies not only where there was but one act in the ordinary sense, but also where there was a course of conduct which violated more than one statute but nevertheless constituted an indivisible transaction. [Citation.] Whether a course of conduct is indivisible depends upon the intent and objective of the actor. [Citation.] If all the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one. [Citation.]’ [Citation.] However, where... the defendant ‘ “entertained multiple criminal objectives which were independent of and not merely incidental to each other, he may be punished for the independent violations committed in pursuit of each objective even though the violations were parts of an otherwise indivisible course of conduct.” [Citation.]’ [Citation.] ‘Whether the defendant held “multiple criminal objectives is primarily a question of fact for the trial court, whose finding will be upheld on appeal if there is any substantial evidence to support it.” [Citations.]’ [Citation.] We must ‘view the evidence in a light most favorable to the respondent and presume in support of the order the existence of every fact the trier could reasonably deduce from the evidence. [Citation.]’ [Citation.]”
Defendant was found guilty of both sale and possession of cocaine. Two pieces of cocaine base were at issue in this case: the first, which defendant sold to Elmore; and the second, which he dropped on the sidewalk when approached by officers. The prosecutor’s closing argument indicated that the relevant piece of cocaine base for purposes of the possession charge was the second piece of cocaine.
Defendant’s opening brief on appeal does not mention or consider the relevance of the second rock of cocaine. He acknowledges this omission in his reply brief.
It has long been the rule in California that “if a person sells only part of the narcotics he possesses, both the offenses of possession and sale may be punished, since possession of the excess unsold narcotics was not necessary to the sale.” (In re Adams (1975) 14 Cal.3d 629, 633.) As explained in People v. Barger (1974) 40 Cal.App.3d 662, 672, “[e]ven the sale and possession of the same drug can be punished separately if the sale consumes only part of a defendant’s entire inventory of drugs.” Thus, in People v. Fortier (1970) 10 Cal.App.3d 760, 765-766, the Court of Appeal upheld separate sentences for sale and possession for sale of narcotics, where the police officer had bought only a portion of the drugs defendant possessed. (Accord, People v. Fusaro (1971) 18 Cal.App.3d 877, 894 (disapproved on another point in People v. Brigham (1979) 25 Cal.3d 283, 292, fn. 14) [“[w]here... each sale consumes only part of [the peddler’s] inventory, he may be punished separately for the possession of his unsold stock in trade”]; People v. Flores (1982) 128 Cal.App.3d 512, 526-527.) Under these authorities, defendant could properly be punished both for the sale of the first rock of cocaine base to Elmore and for his subsequent possession of the second rock.
Defendant’s reliance on People v. Murphy (2007) 154 Cal.App.4th 979 (Murphy), does not persuade us otherwise. There, the defendant sat in her car as an officer arranged with one Jimmy Cunningham to buy cocaine. (Id. at p. 981.) Cunningham went to the car, reached in, and returned with a rock of cocaine, which he gave to the officer. When the officer said he wanted more, Cunningham returned to the car and reached into it. An arrest team approached, and the defendant drove away. When she was apprehended, her car was found to have a second piece of cocaine in it. (Id. at p. 982.) On appeal, the defendant contended that possession of cocaine was a necessarily included offense of sale of cocaine, and that therefore she had been improperly convicted of both selling the cocaine rock in count one and possessing the same rock for sale in count two. (Ibid.) She argued, and the Court of Appeal acknowledged, that the record did not show upon which rock the jury founded the count two conviction; if it relied upon the first rock, the defendant argued, she was improperly convicted of both selling the first rock and possessing the same rock for sale. (Id. at p. 983.) The Court of Appeal rejected this contention, reasoning that the statutory elements of the crime of selling the cocaine could be met by brokering a sale, and did not necessarily require possession of the drug. (Id. at p. 984.) The court went on to note, without discussion, that the trial court had properly stayed the sentence for the possession conviction pursuant to section 654. (Ibid.)
Murphy is inapposite. The appellate court’s analysis of whether the defendant was properly convicted of both possession and sale of cocaine assumed that the two convictions at issue were based on the same rock. Here, the record indicates the convictions were based on separate pieces. Accordingly, the court in Murphy had no occasion to consider the effect of the rule that a defendant may be punished separately for sale of a drug and possession of the unsold inventory.
B. Presentence Work and Conduct Credits
In supplemental briefing, defendant contends he should receive the benefit of the recent amendments to section 4019, increasing the amount of work and conduct credits available for time spent in custody before sentencing. Defendant was sentenced on May 21, 2008, before the amendments went into effect.
As explained in People v. Brown (2010) 182 Cal.App.4th 1354, 1360 (Brown): “Prior to January 25, 2010, subdivisions (b) and (c) of section 4019 provided that ‘for each six-day period in which a prisoner is confined in or committed to’ a local facility, one day is deducted from the period of confinement for performing assigned labor and one day is deducted from the period of confinement for satisfactorily complying with the rules and regulations of the facility. (Stats. 1982, ch. 1234, § 7, p. 4553.) Former subdivision (f) of section 4019 provided that ‘if all days are earned under this section, a term of six days will be deemed to have been served for every four days spent in actual custody.’ (Stats. 1982, ch. 1234, § 7, pp. 4553, 4554.) [¶] In October 2009, the Legislature passed Senate Bill No. 18 (2009-2010 3d Ex. Sess.) (Senate Bill 18) which, among other things, amended section 4019... to provide for the accrual of presentence credits at twice the previous rate for all prisoners except those ‘required to register as a sex offender, ’ ‘committed for a serious felony, as defined in Section 1192.7’ or who have a prior conviction for a serious or violent felony. (§ 4019, subd. (b)(2); see also id., subd. (c)(2); Stats. 2009, 3d Ex. Sess., ch. 28, § 50.) New subdivisions (b)(1) and (c)(1) of Section 4019 provide that one day of work credit and one day of conduct credit may be deducted for each four-day period of confinement or commitment. According to revised subdivision (f), ‘if all days are earned under this section, a term of four days will be deemed to have been served for every two days spent in actual custody....’ (§ 4019, subd. (f); see also Stats. 2009, 3d Ex. Sess., ch. 28, § 50.) Senate Bill 18 went into effect on January 25, 2010.”
A split has arisen in the appellate districts regarding whether these amendments are retroactive, that is, whether they are available to inmates who had already been sentenced at the time the amendments went into effect, but whose convictions were not yet final on appeal. In People v. Rodriguez (2010) 183 Cal.App.4th 1 (Rodriguez), the Fifth Appellate District held that the amendments apply only prospectively. In doing so, it noted the general rule that the provisions of the Penal Code are not retroactive unless expressly so declared (§ 3), and distinguished In re Estrada (1965) 63 Cal.2d 740 (Estrada), which established the general rule that an enactment that reduces punishment for a crime operates retroactively, so that the lighter punishment is imposed. (Rodriguez, 183 Cal.App.4th at pp. 6-8.)
Rodriguez was previously printed at 182 Cal.App.4th 535, and was reprinted as modified at 183 Cal.App.4th 1.
In Estrada, the courtstated: “When the Legislature amends a statute so as to lessen the punishment it has obviously expressly determined that its former penalty was too severe and that a lighter punishment is proper as punishment for the commission of the prohibited act. It is an inevitable inference that the Legislature must have intended that the new statute imposing the new lighter penalty now deemed to be sufficient should apply to every case to which it constitutionally could apply.” (Estrada, 63 Cal.2d at p. 745.) The Rodriguez court declined to apply this rule to the amendments to section 4019, distinguishing Estrada on the ground that “the amendment [to section 4019] in question, to the extent it reduces punishment for some felons, does so by allowing such persons to accrue conduct credits at a greater rate than other felons, and not, as in Estrada, by reducing the penalty for a specific offense.” (Rodriguez, 183 Cal.App.4th at p. 8.) The court also noted that the purpose of presentence conduct credit was to encourage good behavior by those detained in local custody before conviction and sentencing, and this purpose would not be served by applying the custody credit to those who had already completed their presentence confinement. (Ibid.) In addition, the Rodriguez court reasoned, the express purpose of the amendments was to reduce prison population in order to address the state fiscal emergency, and the amendments did not necessarily reflect a legislative determination that the punishment for certain criminals was too severe. (Id. at p. 8-9; Stats. 2009, 3d Ex. Sess., ch. 28, § 62.)
Three other districts, however, have concluded that Estrada governs the question of the retroactivity of the amendments to section 4019. In Brown, the Third Appellate District reasoned, “Whatever the ultimate purpose or purposes of the amendment to section 4019, the effect of the amendment is to reduce the overall time of imprisonment, and, thus, the punishment, for those less serious offenders who have demonstrated good behavior while in custody. A prisoner released from prison one day sooner has been punished one day less in prison than he would have been had there not been a change in the law. This conclusion is consistent with other provisions of the legislation intended to provide additional means of reducing prison population and with the overall intent of the Legislature to address the state’s fiscal emergency. (See Stats. 2009, 3d Ex. Sess., ch. 28, § 62.) [¶] We recognize that, in Estrada, the Legislature’s stated purpose in passing the law there at issue was to lessen the punishment for certain crimes. The Legislature has not been as direct in making its purposes known here. Even so, it appears to us that the Legislature plainly did intend with this legislation to ease budgetary concerns by reducing the prison population. To accomplish this, the Legislature reduced the total term of imprisonment by increasing conduct credits which necessarily reduces the punishment for certain crimes. The holding of Estrada logically applies here.” (Brown, supra, 182 Cal.App.4th at pp. 1363-1364.)
In reaching this conclusion, Brown relied in part on People v. Hunter (1977) 68 Cal.App.3d 389, 392-393 (Hunter), which concluded that an amendment to section 2900.5 allowing for an award of presentence custody credits lessened punishment within the meaning of Estrada, and People v. Doganiere (1978) 86 Cal.App.3d 237, 239-240, which applied Estrada to an amendment involving conduct credits. (Brown, supra, 182 Cal.App.4th at pp. 1361-1362.) The Brown court rejected the People’s reliance on In re Stinnette (1979) 94 Cal.App.3d 800, 804-806, in which Division Four of the First Appellate District concluded that an amendment to section 2931 under the Determinate Sentencing Act (DSA) allowing prisoners to earn conduct credits, but expressly limiting the amendment to time served after the effective date, did not violate equal protection. As Brown noted, the Stinnette court did not consider whether in the absence of an express limitation, it must be presumed that the Legislature intended retroactive application. (Brown, supra, 182 Cal.App.4th at p. 1362.)
Since Brown was decided, Divisions Two, Three, and Five of the First Appellate District and Divisions One and Six of the Second Appellate District have also concluded that the amendments in question are retroactive. (People v. Landon (2010) 183 Cal.App.4th 1096, 1105-1108 (Landon); People v. Norton (May 5, 2010) __ Cal.App.4th __ [2010 Cal.App. Lexis 612, *10-24]; People v. Pelayo (May 6, 2010) __ Cal.App.4th __ [2010 Cal.App. Lexis 627, *15-19]; People v. House (2010) 183 Cal.App.4th 1049, 1054-1057 (House); People v. Delgado (April 29, 2010) 184 Cal.App.4th 271.) Division Two of the Fourth Appellate District and the Sixth Appellate District, on the other hand, have concluded that the amendments to section 4019 apply only prospectively. (People v. Otubuah (April 7, 2010) __ Cal.App.4th __ [2010 Cal.App. Lexis 622, *15-26]; People v. Hopkins (May 11, 2010) __ Cal.App.4th __ [2010 Cal.App. Lexis 657, *13-22].)
We find the reasoning of Brown, House, and Landon and the cases following them persuasive, and likewise conclude that the amendments apply retroactively. We therefore must respectfully disagree with the conclusion reached in Rodriguez and the cases following it.
III. DISPOSITION
The matter is remanded to the trial court with directions to recalculate the defendant’s credits under amended section 4019. The trial court shall then prepare an amended abstract of judgment, and forward a copy to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
We concur: RUVOLO, P.J.SEPULVEDA, J.