People v. Terrell CA3

Filed 7/11/23 P. v. Terrell CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Yuba) ----

THE PEOPLE, C096318

Plaintiff and Respondent, (Super. Ct. No. CRF18-01944)

v.

KENNETH MORGAN TERRELL,

Defendant and Appellant.

Defendant Kenneth Morgan Terrell argues that we must vacate his five-year prison sentence because the trial court improperly imposed punishment for more than one offense based on a single act, in violation of Penal Code section 654.1 Defendant also contends the trial court imposed fines, fees, and assessments in violation of his constitutional rights. The Attorney General concedes defendant must be resentenced to

1 Undesignated statutory references are to the Penal Code.

1

stay the sentences imposed for all but one of his convictions pursuant to section 654. We will accept the Attorney General’s concession, vacate defendant’s sentence, and remand for resentencing. Because we are remanding for a full resentencing, defendant’s claims regarding fines, fees, and assessments can be addressed to the trial court in the first instance. BACKGROUND The prosecution charged defendant with possession of methamphetamine for sale (Health & Saf. Code, § 11378); transportation of methamphetamine for sale (Health & Saf. Code, § 11379, subd. (a)); possession of methamphetamine while armed with a loaded, operable firearm (Health & Saf. Code, § 11370.1, subd. (a)); and possession of a firearm by a felon. (§ 29800, subd. (a)(1).) Because defendant only challenges his sentence in this appeal, we relate the evidence adduced at trial for these offenses only to the extent they are relevant to the sentencing issues raised. A sheriff’s deputy saw defendant driving erratically with an expired registration sticker on his truck and pulled him over. The officer saw a bag containing a large quantity of methamphetamine on the floorboard of the truck. After arresting defendant, the officer searched the truck and found another large bag of methamphetamine and a loaded handgun hidden together below the steering column. At trial, defendant’s counsel argued the evidence failed to show he intended to sell the methamphetamine. To prove this intent, the prosecution adduced testimony from an expert in the possession, sale, and distribution of controlled substances. The expert testified that methamphetamine dealers often have firearms alongside their stash of drugs for protection in case they are robbed. The prosecution did not offer any evidence that defendant possessed the methamphetamine or the handgun before his arrest or had any intent for possessing the handgun other than protecting the inventory and proceeds of his methamphetamine business. Likewise, the charging document and the jury instructions do not indicate that