California Court of Appeal Jan 6, 2014 No. E055598Unpublished
Filed 1/6/14 P. v. Murguia CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E055598
v. (Super.Ct.No. RIF10000348)
GREGORIO MURGUIA, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Elisabeth Sichel, Judge.
Affirmed as modified.
Ava R. Stralla, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Sean M.
Rodriquez, Deputy Attorneys General, for Plaintiff and Respondent.
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A jury found defendant and appellant Gregorio Murguia, guilty of possessing
marijuana in prison (Pen. Code, § 4573.6)1 and possessing marijuana for sale (Health &
Saf. Code, § 11359). The trial court found true the allegations defendant suffered (1) a
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.” Thus, “‘a single possession . . . on a single occasion may be punished only
once under section 654.’ [Citation.]” (People v. Jones (2012) 54 Cal.4th 350, 357.)
Thus, a central question in the section 654 analysis is whether there is a single physical
act, as opposed to criminal/legal acts. (Jones, at pp. 355-357.)
Possessing volumes of a single substance in the same location at the same time is
a single act. (People v. Schroeder (1968) 264 Cal.App.2d 217, 228.) In this case, there
is a only a single act underlying defendant’s convictions: possession of marijuana
located in defendant’s locker. Thus, there is a single physical act of possession: one
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substance, one location, and one time. As a result, the trial court should have applied
section 654 to the lesser sentence because there was only one act.
Our analysis is unaffected by the very real possibility that defendant harbored
multiple criminal objectives in possessing the marijuana. The number of criminal
objectives a defendant entertains is only relevant in cases involving multiple physical
acts. (People v. Mesa (2012) 54 Cal.4th 191, 199.) There is only a single physical act
in this case. So, rather than attempting to divine what possible objectives defendant
might have had in possessing the marijuana, “we find it better to rely on [Penal Code]
section 654’s actual language in resolving this single-act case.” (See People v. Jones,
supra, 54 Cal.4th at p. 360.) In so doing, our analysis becomes simple: The trial court
imposed multiple sentences on a single physical act. Under Jones, this was
impermissible. Defendant’s one year, four month prison term for possessing marijuana
for sale (Health & Saf. Code, § 11359) (Count 2) must be stayed pursuant to Penal Code
section 654.
The People assert defendant’s possession of marijuana constituted two acts
because defendant could have intended to sell a portion of the drugs while keeping the
remaining portion for himself. We agree that selling drugs and possessing drugs are
two separate offenses. However, defendant was not convicted of selling and possessing.
He was convicted of two crimes of possession; one concerned the location of the
possession and the other concerned the reason for the possession. Defendant was not
convicted of selling marijuana.
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For example, in People v. Goodall (1982) 131 Cal.App.3d 129, 135-136, four
defendants were convicted on three counts: possession of PCP ingredients with intent
to manufacture PCP, possession of PCP for sale, and manufacturing PCP. In that case,
there was evidence the defendants manufactured some PCP, intended to sell a portion of
the PCP in their possession, and planned to use the ingredients to manufacture more
PCP. (Id. at p. 147.) The appellate court noted the crimes could be viewed as “part of
an indivisible course of conduct with a single objective,” or as having multiple criminal
objectives. Since the court was applying the substantial evidence test, it upheld the trial
court’s conclusion that there were multiple criminal objectives. (Id. at p. 148.)
Our case is distinguishable from Goodall. In Goodall, the defendants possessed
two separate substances—PCP and the components to make PCP. The Goodall
defendants also committed two separate physical acts: possession and manufacturing.
In the instant case, there is one act and one substance: possession of marijuana in a
locker. Thus, we are not persuaded by the People’s argument that defendant’s act can
be broken into two separate acts, because possessing volumes of a single substance in
the same location at the same time is a single act. (People v. Schroeder, supra, 264
Cal.App.2d at p. 228.)
The People cite a variety of other cases to support their position that defendant’s
possession constitutes two acts; however, all the cases suffer from the same issue of
involving two different substances or two different locations. (People v. Briones (2008)
167 Cal.App.4th 524, 528-530 [methamphetamine and heroin]; People v. Bell (1968)
258 Cal.App.2d 450, 452-453 [marijuana and amphetamine sulphate]; People v. Von
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Latta (1968) 258 Cal.App.2d 329, 340 [possession of marijuana in Garden Grove and
Newport Beach].) As set forth ante, defendant’s act involves a single substance in a
single location at one time, thus, creating only one physical act of possession.
C. SENTENCING DISCRETION
1. PROCEDURAL HISTORY
At the sentencing hearing, the trial court noted that the probation report set forth
“several alternatives” and the trial court was following the report “in part.” The court
sentenced defendant to the midterm for the principle count of possessing marijuana in
prison. The court considered mitigating factors, such as “defendant’s personal
situation,” in that defendant was “making an attempt to rehabilitate himself.” However,
the court found those mitigating factors were balanced by defendant’s “prior record,”
which reflected “ongoing issues with substance abuse.” Thus, the court concluded the
midterm was appropriate.
Next, the trial court stated it had discretion to “run this case concurrent or
consecutive,” and then stated it would select a concurrent sentence. The prosecutor
stated the sentence had to be consecutive, due to defendant’s prior strike conviction.
The trial court acknowledged the prosecutor was correct and imposed consecutive
prison terms.
2. ANALYSIS
Defendant contends the case should be remanded for resentencing because the
trial court was unaware of the sentencing discretion it had as evinced by (1) the court
not applying section 654, (2) the court not applying the low term, (3) the court imposing
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consecutive rather than concurrent terms, and (4) the court not striking the sentence for
the prison prior. We disagree.
Where the record reveals the court was unaware of its discretion a defendant is
entitled to remand for resentencing. (People v. Askey (1996) 49 Cal.App.4th 381, 388.)
The section 654 issue is moot given our conclusion ante. (People v. Travis
(2006) 139 Cal.App.4th 1271, 1280 [when no effective relief can be granted the issue is
moot].) As to the other issues, defendant asserts the trial court, upon learning it had to
impose a consecutive term, appeared not to realize that it could have imposed the low
term and struck the sentence for the prison prior. It appears defendant is questioning
why the court did not reverse-engineer a lower sentence upon learning that consecutive,
rather than concurrent terms, would be required. Given the trial court’s thoughtful
comments concerning its reasons for selecting the midterm, and the prosecutor’s reasons
for why consecutive terms were required, we are not persuaded that the trial court was
acting without knowledge of its discretionary authority when sentencing defendant,
because the record reflects why the sentencing choices were made, which ergo reflects
knowledge that other choices could have been made. In sum, we conclude the trial
court did not err.
DISPOSITION
Defendant’s sentence for Count 2 (Health & Saf. Code, § 11359) is modified to
reflect the sentence is stayed pursuant to Penal Code section 654. The trial court is
directed to prepare an amended abstract of judgment and to forward a certified copy to
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the Department of Corrections and Rehabilitation. (Pen. Code, §§ 1213, 1216.) In all
other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER J.
We concur:
RAMIREZ P. J.
HOLLENHORST J.
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AI Brief
AI-generated · verify before citing
Holding. The court held that the trial court properly admitted evidence of the defendant's prior uncharged criminal conduct to prove intent, but erred by failing to stay the sentence for one of two possession convictions arising from a single physical act.
Issues
Did the trial court abuse its discretion by admitting evidence of the defendant's prior uncharged criminal conduct?
Did the trial court violate Penal Code section 654 by imposing separate sentences for two possession offenses arising from a single act?
Did the trial court misunderstand its discretionary sentencing authority regarding the imposition of consecutive terms and the striking of enhancements?
Disposition. Affirmed as modified.
Quotations verified verbatim against the opinion
“The charged and uncharged crimes are similar because they both involve defendant possessing multiple bindles of marijuana, which law enforcement officers opined were possessed for purposes of sale.”
“Possessing volumes of a single substance in the same location at the same time is a single act.”
“Defendant’s one year, four month prison term for possessing marijuana for sale (Health & Saf. Code, § 11359) (Count 2) must be stayed pursuant to Penal Code section 654.”