People v. Sosa

Opinion

ROTHSCHILD, Acting P. J. Sergio Sosa challenges his conviction for possession of a controlled substance, in violation of subdivision (a) of Health and Safety Code section 11350, on the ground that it is a lesser included offense of possession of a controlled substance while armed with a firearm, in violation of subdivision (a) of Health and Safety Code section 11370.1, of which he was also convicted on the basis of the same conduct.1 We reject his argument because some of the controlled substances listed in subdivision (a) of section 11370.1 are not listed in subdivision (a) of section 11350, making it possible to commit the putatively greater offense without committing the putatively lesser offense. We therefore affirm the judgment.

BACKGROUND

The information charged Sosa with one count of possession of a firearm by a felon in violation of subdivision (a)(1) of Penal Code former section 12021 (count 1), one count of possession of a controlled substance while armed with a firearm in violation of subdivision (a) of Health and Safety Code section 11370.1 (count 2), and one count of possession of a controlled substance in violation of subdivision (a) of section 11350 (count 3). The information further alleged that Sosa had suffered one prior serious or violent felony conviction within the meaning of subdivisions (a) through (d) of Penal Code section 1170.12 and subdivisions (b) through (i) of Penal Code section 667 (the three strikes law).

Sosa initially pleaded not guilty and denied all special allegations. He later decided to proceed with an open plea of guilty on all charges and an admission of the truth of the allegations.

[949]The trial court sentenced Sosa to four years in state prison, calculated as follows: the low term of 16 months on count 1, doubled pursuant to the three strikes law, plus eight months (one-third of the midterm) on count 3, doubled pursuant to the three strikes law. The court stayed imposition of sentence on count 2 pursuant to Penal Code section 654. The court also imposed various statutory fines and fees, ordered Sosa to provide DNA samples, and credited him with one day of presentence custody. Sosa appealed after seeking and obtaining a certificate of probable cause.

The evidence introduced at the preliminary hearing showed the following facts: In the morning of November 3, 2010, a Los Angeles County Sheriff’s deputy saw Sosa discard a plastic bag containing a white powdery substance, which was later determined by laboratory analysis to contain cocaine. The deputy searched Sosa and found that he was carrying a handgun.