People v. Reed

Opinion

SIMS, Acting P. J.

A jury convicted defendant John Henry Reed of the sale of cocaine base (Health & Saf. Code, § 11352, subd. (a); undesignated section references are to the Health and Safety Code). In bifurcated proceedings, defendant admitted a strike prior for robbery (Pen. Code, §§211, 667, subds. (b)-(i), 1170.12), a prior drug conviction (§ 11370.2, subd. (a)) and two prior prison term allegations (Pen. Code, § 667.5, subd. (b)).

[1283]

Sentenced to state prison for an aggregate term of 13 years, defendant appeals, contending the three-year enhancement for his prior drug conviction is unauthorized and must be stricken because his prior conviction for

attempted

possession of a controlled substance for sale is not an included offense in section 11370.2, subdivision (a). The Attorney General concedes. We accept the concession and will modify the judgment accordingly.

Defendant’s contention requires no recitation of the facts underlying the offense. With respect to the prior drug conviction, the information alleged that on May 14, 1993, defendant was convicted in Sacramento County of “the crime of attempted possession of a controlled substance for sale in violation of Section 664/11351 of the Health and Safety Code, within the meaning of . . . Section 11370.2(a).” During jury deliberations on the underlying offense, defendant admitted the prior drug conviction allegation. In sentencing defendant to state prison for an aggregate term of 13 years, the court imposed a three-year enhancement for the prior drug conviction.

Section 11370.2, subdivision (a), provides: “Any person convicted of a violation of, or of a conspiracy to violate, Section 11351, 11351.5, or 11352 shall receive, in addition to any other punishment authorized by law, including Section 667.5 of the Penal Code, a full, separate, and consecutive three-year term for each prior felony conviction of, or for each prior felony conviction of conspiracy to violate, Section 11351, 11351.5, 11352, 11378, 11378.5, 11379, 11379.5, 11379.6, 11380, 11380.5, or 11383, whether or not the prior conviction resulted in a term of imprisonment.”

Although certain crimes and a conspiracy to commit certain crimes are listed, an