People v. Caldwell CA3

Filed 11/13/14 P. v. Caldwell CA3 NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Yolo) ----

THE PEOPLE,

Plaintiff and Respondent, C075066

v. (Super. Ct. No. CRF131075)

KORY BLAINE CALDWELL,

Defendant and Appellant.

A jury convicted defendant Kory Blaine Caldwell of transportation of a controlled substance (count 1), possession of a controlled substance for sale (counts 2 and 3), being a felon in possession of a firearm (count 4), being a felon in possession of ammunition (count 5), and possession of a switchblade knife in a vehicle (count 6). In addition, the jury found true an enhancement allegation that defendant was personally armed with a firearm during the commission of the offense charged in count 3, and the trial court found

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true enhancement allegations that defendant had a prior drug conviction and a prior prison term. The trial court sentenced defendant to an aggregate of 12 years in prison. In his first contention on appeal, defendant claims his count 2 conviction for possession of a controlled substance for sale must be stricken because the conduct alleged in counts 2 and 3 amounted to a single crime. The Attorney General agrees, and we do too. In his second contention, defendant argues his three-year concurrent sentence on count 4 for being a felon in possession of a firearm should be stayed pursuant to Penal Code section 654, because he was punished for the same possession on the enhancement to count 3. We conclude the substantive criminal act in count 4 was not the same as the “aspect” of the substantive criminal act in count 3 requiring increased punishment, and thus Penal Code section 654 does not require a stay of defendant’s concurrent sentence on count 4. We will strike defendant’s conviction and sentence on count 2 for possession of a controlled substance for sale. This will not affect his aggregate sentence because the trial court had stayed his count 2 sentence pursuant to Penal Code section 654. In all other respects, we will affirm the judgment. BACKGROUND Defendant rented a storage unit at Streng Storage. Agent Jeff Moe, with the City of Woodland Police Department, was investigating defendant and saw him drive into the storage facility. When defendant left the facility, officers searched him and the vehicle, finding 12.79 grams of methamphetamine, $150 in cash, 3.5 grams of marijuana, and a switchblade. In a search of defendant’s storage unit, officers found two digital scales (one with a cup of methamphetamine on top), four packages of methamphetamine, sandwich bags, a .380-caliber gun in a pocket of a hanging jacket, a box of .22-caliber