People v. Thao CA3

Filed 12/10/14 P. v. Thao CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Butte)

THE PEOPLE, C075586

Plaintiff and Respondent, (Super. Ct. Nos. CM036649 & CM039168) v.

PETER THAO,

Defendant and Appellant.

Defendant Peter Thao appeals from the sentence imposed in case No. CM039168 after he pled guilty to bringing contraband into a jail (Pen. Code, § 4573, subd. (a))1 and admitted a prior drug conviction (Health & Saf. Code, § 11370.2, subd. (c)). Defendant contends the trial court erred by imposing an enhancement for the prior drug conviction and an order to register as a drug offender, because neither sanction applies to his current offense. He asks us to strike the enhancement and the registration order. The Attorney General agrees that the enhancement must be stricken and the registration requirement could not be imposed based on defendant’s current offense. The Attorney General asserts, however, that registration could be ordered based on

1 Undesignated statutory references are to the Penal Code.

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defendant’s prior offense (Health & Saf. Code, § 11378) (case No. CM036649), on which the court resentenced defendant when it sentenced him on the current offense. We shall remand the matter to the trial court for further proceedings. FACTUAL AND PROCEDURAL BACKGROUND According to the probation report in case No. CM036649, in June 2012 agents executed a search warrant at the residence where defendant lived with his family. In defendant’s bedroom they found $13,869 in cash, 179.46 grams of methamphetamine, digital gram scales, baggies, and a cell phone with text messages indicating drug sales. Defendant pled no contest to violating Health and Safety Code section 11378. The trial court imposed the upper term of three years, to be served in county jail. According to the probation report in case No. CM039168, in July 2013, while defendant was serving his term in case No. CM036649, the jail authorities discovered he was instructing others how to smuggle drugs into the jail. After they did so, the jail authorities immediately located the contraband, which included 5.28 grams of methamphetamine and 4.94 grams of marijuana. The People filed a felony complaint charging defendant with bringing contraband into the jail and alleging his prior conviction. Defendant pled guilty to the new charge and admitted the prior conviction. When defendant entered his plea it was understood that at sentencing the trial court would also resentence him in case No. CM036649. The trial court sentenced defendant to an aggregate term of seven years eight months in county jail in case No. CM039168, consisting of four years (the upper term) for the offense plus three years consecutive for the prior conviction enhancement. The court then resentenced defendant in case No. CM036649 to three years (the upper term), stayed except for eight months consecutive to the principal term in case No. CM039168. The court ordered defendant to register as a narcotics offender (Health & Saf. Code,