People v. Provost CA4/3

Filed 10/26/21 P. v. Provost CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE

THE PEOPLE,

Plaintiff and Respondent, G059248

v. (Super. Ct. No. 17WF0720)

BRIAN ANTHONY PROVOST, OPINION

Defendant and Appellant.

Appeal from a judgment of the Superior Court of Orange County, Michael J. Cassidy, Judge. Affirmed in part, reversed in part and remanded with directions. Gene D. Vorobyov, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Noah P. Hill and Kathy S. Pomerantz, Deputy Attorneys General, for Plaintiff and Respondent.

This appeal involves a straightforward application of Penal Code section 1 654. The parties agree that because four of the offenses of which appellant was convicted arose from a single criminal act – his unlawful possession of a firearm – he should have been punished for only one of those offenses, not all four. The abstract of judgment is also incorrect, and the trial court did not resolve a key factual issue relating to appellant’s presentence credits. Therefore, we reverse certain aspects of appellant’s sentence and remand with directions but in all other respects, we affirm the judgment. FACTUAL AND PROCEDURAL BACKGROUND A detailed statement of facts is set forth in our prior opinion in People v. 2 Provost (Mar. 4, 2020, G056297) [nonpub. opn.].) Suffice it to say, when the police arrested appellant as part of an undercover drug sting, they found heroin, methamphetamine and a loaded handgun in his vehicle. Following a jury trial, appellant was convicted of 10 crimes. As relevant here, in counts four through seven, the jury found appellant guilty of possessing a firearm after having previously been convicted of a violent offense, possessing a firearm in a vehicle by a felon, possessing a firearm by a felon, and possessing heroin while armed with a loaded firearm. (§§ 29900, 25400, 29800; Health and Saf. Code, § 11370.1.) It is undisputed all four of those counts stemmed from appellant’s single act of unlawfully possessing a firearm in his car. As a third-strike offender, appellant was sentenced to 33 years to life in prison. The trial court granted him 377 days of presentence custody credit, but it did not award him any presentence conduct credit. On appeal, we affirmed appellant’s convictions but remanded the matter for resentencing with directions for the trial court to confirm the period of appellant’s actual