Filed 1/22/20 P. v. Murray CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

SHANE TIMOTHY MURRAY,

Defendant and Appellant.

H046565

(Santa Clara County

Super. Ct. No. C1526507)
After defendant Shane Timothy Murray violated probation, he was sentenced to a total term of four years and four months on several charges of both transporting and possessing controlled substances for sale. On appeal, Murray argues the trial court erred in failing to stay the sentences on two of the counts under Penal Code section 654. He also argues that certain fines and fees related to those counts must be stricken.

The Attorney General concedes that multiple punishment in this situation was improper, and we find the concession appropriate. With respect to the fines and fees claim, the Attorney General contends that the trial court did not impose the fees in question. Our review of the record shows that the Attorney General is incorrect. At sentencing, the trial court expressly directed that the abstract of judgment reflect all of the fines, fees, and assessments imposed at the time Murray was ordered to probation.

We will reverse and remand the matter for resentencing and recalculation of the relevant fees.

I. FACTUAL AND PROCEDURAL BACKGROUND

On October 20, 2015, San Jose police officers pulled over a vehicle which they observed both speeding and making lane changes without signaling. Murray, the driver of the vehicle, was placed under arrest for being under the influence of a controlled substance. On searching his vehicle, police discovered a “pay-owe” sheet, two bottles of methadone, a digital scale, and a plastic bag containing 5 grams of heroin.

On December 14, 2015, Murray was charged by felony complaint with transporting methadone (Health & Saf. Code, § 11352, subd. (a); count 1); transporting heroin (Health & Saf. Code, § 11352, subd. (a); count 2); possession of methadone with intent to sell (Health & Saf. Code, § 11351; count 3); possession of heroin with intent to sell (Health & Saf. Code, § 11351; count 4); and misdemeanor being under the influence of opiates (Health & Saf. Code, § 11550, subd. (a); count 5).

After entering into a plea agreement, Murray pleaded no contest to all five counts on May 4, 2017. On June 16, 2017, the trial court, in accordance with the plea agreement, suspended imposition of sentence and placed Murray on three years’ formal probation, including a condition that he serve nine months in county jail. As further conditions of probation, the trial court imposed a restitution fine of $500 plus 10 percent administrative fee (§ 1202.4), a probation revocation restitution fine (suspended) (§ 1202.44), a criminal laboratory analysis fee of $250 plus a penalty assessment of $775 (Health & Saf. Code, § 11372.5), a drug program fee of $600 plus penalty assessment of $1,860 (Health & Saf. Code, § 11372.7), an AIDS education fine of $70 plus penalty assessment of $217 (Health & Saf. Code, § 11550, subd. (d)). The trial court ordered the following additional fees, not as conditions of probation: a $200 court security fee (§ 1465.8), a $150 criminal conviction assessment (Gov. Code, § 70373), a $129.75 booking fee (Gov. Code, §§ 29550, 29550.1, 29550.2), probation supervision fees of $60 per month (§ 1203.1b), and a supervised own recognizance program fee of $100 “pursuant to Santa Clara County Ordinance Code section A28-6.”

On August 9, 2018, a Morgan Hill police officer pulled Murray over for making an illegal U-turn. The police officer then determined that Murray was unlawfully driving the vehicle because his driver’s license had been suspended.

On September 10, 2018, the probation department petitioned to revoke Murray’s probation, based in part on his citation for driving on a suspended license (Veh. Code, § 14601.1). Following a contested hearing, the trial court found that Murray violated his probation.

After Murray rejected the offer of further probation services, the trial court sentenced him to a total term of four years and four months in prison. The sentence consisted of the lower term of three years on count 1, transportation of methadone, plus a consecutive sentence of one year and four months (one third the middle term of four years) on count 2, transportation of heroin. On count 3 and count 4 (possession for sale of methadone and possession for sale of heroin, respectively), the trial court imposed concurrent lower term two year sentences on each count.

The trial court further awarded a total of 429 days of credits, consisting of 215 custody credits plus 214 days of conduct credit. The trial court also ordered “[t]he abstract of judgment shall affect [sic][ ] all fines, fees and assessments that were imposed when probation was originally granted in this matter on June 16th of 2017. [¶] In addition, the $500 supervision revocation restitution fine that was previously suspended under . . . section 1202.44 is now imposed.”

Murray timely filed a notice of appeal.

II. DISCUSSION

A. Section 654

Murray argues that, because he was sentenced to a three year term for transportation of methadone (count 1) and a consecutive 16 month term for transportation of heroin (count 2), the trial court erred in not staying the sentences on the charges of possessing methadone for sale (count 3) and possessing heroin for sale (count 4) under section 654. The Attorney General concedes that the sentences on each of these counts should have been stayed and we agree that the concession is appropriate.

Section 654, subdivision (a) provides, in pertinent part, “[a]n 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.” Section 654 is intended “to insure that a defendant’s punishment [is] commensurate with his [or her] culpability.” (People v. Perez (1979) 23 Cal.3d 545, 552.) The statute bars multiple punishment for both a single act that violates more than one criminal statute and multiple acts, where those acts comprise an indivisible course of conduct incident to a single criminal objective and intent. (People v. Latimer (1993) 5 Cal.4th 1203, 1208.)

If section 654 applies, the proper procedure is to “stay the sentence on the lesser offense[] while permitting execution of the greater offense consistent with the intent of the sentencing court.” (People v. Thompson (1989) 209 Cal.App.3d 1075, 1080.) Courts have held that the preferred remedy when section 654 has been violated and the maximum legal sentence has already been imposed by the trial court is to stay execution of the penalty on the lesser offense rather than remand for resentencing. (People v. Burns (1984) 158 Cal.App.3d 1178, 1184.)

Murray pleaded no contest to transporting both methadone and heroin and possessing, on the same occasion, those drugs for sale. A defendant who is found in possession of a controlled substance cannot be separately punished “for the same act of transporting for sale the controlled substance and possessing it for sale.” (People v. Buchanan (2016) 248 Cal.App.4th 603, 613.) Accordingly, upon imposing sentences on the charges of transporting methadone and heroin, the trial court should have stayed Murray’s sentences for possessing that same methadone and heroin for sale pursuant to section 654.

B. Laboratory analysis and drug program fees

Murray also argues that, if his convictions for possession for sale of methadone and heroin should have been stayed under section 654, the drug program and laboratory analysis fees (and corresponding penalty assessments) for those two counts must be stricken as well. The Attorney General responds that Murray is mistaken and “the trial court did not impose either kind of fees in this case.”

As outlined above, the trial court did impose a criminal laboratory analysis fee of $250 plus a penalty assessment of $775 (Health & Saf. Code, § 11372.5), a drug program fee of $600 plus penalty assessment of $1,860 (Health & Saf. Code, § 11372.7) when it suspended imposition of sentence and placed Murray on probation on June 16, 2017. At the probation revocation hearing, the trial court expressly directed that the “abstract of judgment shall [reflect] all fines fees, and assessments that were imposed when probation was originally granted.” The abstract of judgment reflects the $500 probation revocation restitution fee (§ 1202.44), but further notes in section 13, entitled “Other orders,” the following “All prev ord fines/fees remain (6/16/17).” Since Murray’s sentences on counts 3 and 4 must be stayed, the trial court will also need to recalculate the drug program and criminal laboratory analysis fees and penalty assessments imposed, and stay the amounts imposed in connection with counts 3 and 4. (People v. Sharret (2011) 191 Cal.App.4th 859, 869.)

III. DISPOSITION

The judgment is reversed and remanded for the limited purpose of resentencing.

The trial court is directed to stay Murray’s convictions for possession of methadone for sale (count 3) and possession of heroin for sale (count 4) pursuant to Penal Code section 654. As to those stayed counts, the trial court shall also impose and stay the corresponding criminal laboratory analysis fees and penalty assessments imposed pursuant to Health and Safety Code section 11372.5 and the drug program fees and penalty assessments imposed pursuant to Health and Safety Code section 11372.7.

Premo, Acting P.J.

WE CONCUR:

Elia, J.

Mihara, J.

People v. Murray

H046565