People v. West CA2/6

Filed 1/23/14 P. v. West CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B243448 (Super. Ct. No. 1363298) Plaintiff and Respondent, (Santa Barbara County)

v.

STANLEY ROBERT WEST,

Defendant and Appellant.

Stanley Robert West appeals his conviction, by jury, of numerous methamphetamine and firearm possession offenses. He contends the trial court should have stayed, pursuant to Penal Code section 6541, a concurrent term of three years imposed for one of the firearm offenses, and that the trial court improperly used the same factors to impose an upper term sentence and to impose consecutive terms. We affirm. Facts On three separate occasions, appellant sold methamphetamine to a confidential informant who was working with the Lompoc police department. Based on those sales, police officers obtained a search warrant for appellant's residence. When they executed the warrant, they discovered a .380 caliber handgun and a .22

1 All statutory references are to the Penal Code unless otherwise stated.

1

caliber rifle with a modified grip and a barrel measuring only 13 1/2 inches. Appellant was arrested and released on bail. While on bail, he was found to be under the influence of methamphetamine and in possession of the same substance. Appellant was convicted of three felonies relating to the purchases made by the confidential informant: counts 1 and 2, sale and/or transportation of methamphetamine (Health & Saf. Code, § 11379, subd. (a)), and count 3, sale of a substitute substance. (Health & Saf. Code, § 11382, subd. (a).) Based on items discovered during the search of his residence, appellant was convicted of count 6, possession of a firearm by a felon, e.g., the handgun and the short-barreled rifle (§ 29800, subd. (a), formerly § 12021, subd. (a)); and count 7, possession of a short- barreled rifle. (§ 33215, formerly § 12020, subd. (a)(1).) Appellant's final three convictions relate to conduct that occurred after his release on bail: count 8, sale or transportation of methamphetamine with an on-bail enhancement (Health & Saf. Code, § 11379, subd. (a); § 12022.1, subd. (b)); count 9, possession of methamphetamine with an on-bail enhancement (Health & Saf. Code, § 11378); and count 11, a misdemeanor count of being under the influence of methamphetamine (Health & Saf. Code, § 11550). The jury acquitted appellant of count 12, dissuading a witness (the confidential informant) from testifying. (§ 136.1, subd. (a)(1).) It was unable to reach verdicts on counts 4, 5 and 10, for possession of a firearm while in possession of methamphetamine (Health & Saf. Code, § 11370.1, subd. (a)), possession of methamphetamine during the search of his residence (Health & Saf. Code, § 11377, subd. (a)), and bringing a controlled substance into the jail during his second arrest. (§ 4573.) The trial court declared a mistrial as to those charges. The trial court sentenced appellant to an aggregate term of 10 years, calculated as follows: the upper term of four years on count 1, the primary offense, and consecutive terms of one year, eight months, and eight months on counts 2, 3 and 6. It imposed a concurrent term of three years on count 7, for possession of the short