People v. Provost CA4/3

Filed 3/16/22 P. v. Provost CA4/3 Opinion following rehearing

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 is the third opinion we have written in this case. Following our most recent one, we granted rehearing to consider the effect of Assembly Bill No. 518 (AB 518) on appellant’s sentence. Effective January 1, 2022, AB 518 amended Penal Code section 654 to give trial courts the authority to impose sentence for any offense, not just the greatest offense, when that section applies to preclude multiple punishment for crimes 1 that were based upon a single act or omission. Because the judgment in this case is not yet final, we agree with the parties that appellant is entitled to the benefit of AB 518, as well as any other new sentencing provisions that may apply to his case. Therefore, we reverse appellant’s sentence and remand the matter for a new sentencing hearing. We also direct the trial court to resolve a key factual issue relating to appellant’s presentence credits. In all other respects, we affirm the judgment. FACTUAL AND PROCEDURAL BACKGROUND A detailed statement of facts is set forth in our first opinion in this case, 2 People v. Provost (Mar. 4, 2020, G056297) [nonpub. opn.] (Provost I).) For purposes of this appeal, it is sufficient to note that when the police arrested appellant as part of an undercover drug sting, they found heroin, methamphetamine, and a loaded handgun in his car. Following a jury trial, appellant was convicted of 10 crimes. As relevant here, in counts 4 through 7, the jury found appellant guilty of possessing a firearm after having previously been convicted of a violent offense, possessing a firearm in a vehicle while a felon, possessing a firearm while a felon, and possessing heroin while armed with a loaded firearm. (§§ 29900, 25400, 29800; Health & 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