Filed 3/8/13 P. v. Cruz CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                       FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F063811
         Plaintiff and Respondent,
                                                                         (Kern Super. Ct. No. BF135848B)
                   v.

JIMMY LEE CRUZ,                                                                          OPINION
         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Kern County. Charles R.
Brehmer, Judge.
         Rex Williams, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon, Harry
Joseph Colombo, and Kevin L. Quade, Deputy Attorneys General, for Plaintiff and
Respondent.
                                                        -ooOoo-
                                         INTRODUCTION
          Appellant/defendant Jimmy Lee Cruz (defendant) was charged with several drug-
related offenses: count I – possession of methamphetamine for sale (Health & Saf. Code,
§ 11378); count II – possession of hydrocodone for sale (Health & Saf. Code, §11351);
count III – unlawful possession of methamphetamine (Health & Saf. Code, § 11377,
subd. (a)); count IV – unlawful possession of hydrocodone (Health & Saf. Code, § 11350,
subd. (a)); and count V unlawful possession of drug paraphernalia (Health & Saf. Code, §
11364).1
          Defendant changed his plea to no contest in exchange for a court-indicated
sentence of three years in jail. Subsequently, he was sentenced to four concurrent three-
year jail terms on counts I through IV.
          Defendant raises a number of issues on appeal. First, he claims the superior court
erred in denying his motion to suppress evidence found in an apartment under color of a
search warrant. Second, he asserts that his sentences on counts III and IV must be stayed
pursuant to Penal Code2 section 654. Finally, he argues that equal protection
considerations require that section 4019 be applied retroactively.
          We will stay the execution of the sentences on counts III and IV and otherwise
affirm.




          1
        Defendant was also charged with one count of destruction of evidence in
connection with the drug charges (Pen. Code, § 135), which was eventually reduced to an
attempt charge (Pen. Code, §§ 135 & 664).
          2   All further statutory references are to the Penal Code unless otherwise stated.



                                                  2.
                               STATEMENT OF FACTS
The Search Warrant3
      Kern County Deputy Sheriff Juan Bravo believed defendant was using an
apartment unit in Bakersfield, California, to sell drugs. Deputy Bravo sought a warrant to
search the apartment unit.
      In his affidavit supporting the warrant request, Deputy Bravo attested that,
“[w]ithin the past thirty (30) days,” he had met with a confidential informant. The
informant told Deputy Bravo that he had seen an individual identified as “Jamaica”
possess and sell methamphetamine from the apartment unit. Deputy Bravo performed a
records check of the apartment, which yielded the defendant‟s name: Jimmy Lee Cruz.
A records check of defendant‟s name revealed that he had prior narcotics-related
violations and two outstanding misdemeanor warrants. One of the outstanding warrants
was for possession of a hypodermic syringe. Deputy Bravo obtained a booking
photograph of defendant and showed it to the informant. The informant immediately
identified the defendant as “Jamaica.”
      The affidavit further stated that “[w]ithin the last ten days,” Deputy Bravo
conducted surveillance of the apartment. During the surveillance, Deputy Bravo
observed a vehicle arrive at the apartment parking lot. Its female occupant exited the
vehicle and entered the subject apartment unit. After less than three minutes, the female
exited the apartment unit and left in her vehicle. Law enforcement stopped the vehicle
and found the female to be in possession of a bindle of suspected methamphetamine.
Two other occupants of the vehicle were later found to show signs of central nervous
system stimulant use and admitted to being methamphetamine users.


      3  The facts regarding the search warrant are taken from the affidavit in support of
the warrant, which was attached to defendant‟s motion to suppress evidence. (See People
v. Rios (1988) 205 Cal.App.3d 833, 836, fn. 2.)



                                            3.
       During approximately 20 minutes of surveillance, Deputy Bravo observed a total
of three subjects entering the apartment unit and remaining there for less than three
minutes. Based on his training and experience, Deputy Bravo concluded that the foot and
vehicular traffic was indicative of narcotics trafficking.
       The warrant was issued on February 27, 2011.
Execution of the Search Warrant4
       Deputy Sheriff Bravo responded to the apartment unit on March 2, 2011. His
colleague, Deputy Sheriff Michael Dorkin, contacted defendant at the door of the
apartment. Defendant retreated into the residence and was eventually located in a
bathroom along with codefendant, Vaughn Smith. In the bathroom, Deputy Bravo
observed a manual scale in the toilet. He also observed a substance he suspected to be
methamphetamine on the bathroom floor and in a glass smoking pipe.
       Other law enforcement personnel searched the apartment‟s only bedroom.
Multiple items were seized from the bedroom, including: digital scales, suspected
methamphetamine, bindles, plastic commonly used to package methamphetamine, more
than 20 suspected Vicodin or hydrocodone pills, and more than $2,000.
       Two cell phones were also found in the apartment. Deputy Bravo found text
messages on the cell phones with language indicative of narcotics transactions.
Preliminary Hearing
       Deputy Bravo testified at the preliminary hearing that, in his opinion, the
hydrocodone and methamphetamine located at the apartment were possessed for the
purpose of sale. Deputy Bravo did not distinguish between the methamphetamine found
in the bathroom and the methamphetamine found in the bedroom.


       4  With the exception of facts regarding the search warrant, these background facts
that follow are taken from the preliminary hearing, as this appeal arises from a no contest
plea. (See, e.g., People v. Le (2006) 136 Cal.App.4th 925, 928.)



                                              4.
       A criminalist from the district attorney‟s crime lab testified at the preliminary
hearing regarding the substances found in the apartment. Color and crystal tests showed
that the substances found on the floor of the bathroom, inside the smoking pipe, and in
the bedroom were methamphetamine. The criminalist further testified that, based on their
markings, the pills found in the bedroom were Vicodin.
Motion to Suppress
       Defendant moved to quash the search warrant and suppress the evidence seized
thereunder. Defendant argued that: (1) the search warrant was not supported by probable
cause; and (2) that the warrant was not executed with a good faith belief in its validity.
Defendant posited that the search warrant lacked probable cause because (1) the
supporting affidavit failed to show that the confidential informant was reliable and
truthful; and (2) the information contained in the supporting affidavit was stale.
       The superior court denied the motion.
No Contest Plea
       At a subsequent pretrial proceeding on September 29, 2011, defendant changed his
plea to no contest in exchange for a court-indicated sentence of concurrent three-year
terms.5 At this change of plea hearing, the superior court discussed what it referred to as
defendant Cruz‟s “Waiver of Constitutional Rights Form.” Presumably, the court was
referring to the Felony Advisement of Rights, Waiver and Plea Form (plea form) which
was signed, but not dated, by defendant. This form contained the following typed text:

                “2. I have not been induced to enter this plea by any promise or
                representation of any kind, except for the following terms and
                conditions (state any agreement with the District Attorney or the
                Court, including any indicated sentence).”



       5   Codefendant Vaughn Smith also changed his plea to no contest at the same
hearing.



                                              5.
       Immediately below this typed text, the following was handwritten:

              “Ct.-indicated 3 years jail under PC 1170(h). U/T on Ct. 1; M/T on
              Ct. 2; U/T on Ct. 3; U/T on Ct. 4. all to run concurrent.”
       The court recited the terms of the court-indicated sentence, and defense counsel
raised a section 654 claim as follows:

              “THE COURT: … Upper term on Count One, mid term on Count
              Two, upper term on Count Three, upper term on Count Four all to
              run concurrent. [¶] Mr. Moran [defense counsel], is that your
              understanding?

              “MR. MORAN [defense counsel]: Yes, your Honor. [¶] And I
              failed to put on there, two of those counts will have to be stayed
              under Section 654, but that can be taken up at the time of sentencing.

              “THE COURT: All right. Mr. Cruz, is that your understanding?

              “DEFENDANT CRUZ: Yes, sir.”
       The prosecution and defense stipulated that the preliminary hearing transcript
would provide the factual basis for the plea. Defendant then entered his no contest pleas.
Sentencing
       On November 3, 2011, the court held a sentencing hearing. Before the hearing,
defendant filed a “Statement in Mitigation.” In the statement, defendant reasserted his
section 654 claim. At the sentencing hearing, defense counsel argued that counts III and
IV were “lesser includeds” of counts I and II and, therefore, section 654 applied.
       The record indicates that there was confusion as to what was discussed at the
September 29, 2011, change of plea hearing. Apparently, codefendant Vaughn Smith‟s
plea form contained language explicitly staying his sentences on counts III and IV. But,
defendant Cruz‟s form did not contain such language. This was apparently an oversight,
as defendant Cruz‟s counsel indicated that he “didn‟t make [it] clear” on the plea form
that the sentences on counts III and IV would be stayed under section 654. The superior
court reviewed defendant Cruz‟s plea form and observed that it stated the sentences were


                                            6.
to run concurrently. The court then asked whether defendant Cruz wished to withdraw
his plea, to which defense counsel responded, “No, your Honor.”
       The superior court sentenced defendant to concurrent three-year sentences as to
each of counts I through IV.6
                                        ANALYSIS

                               I.
  THE TRIAL COURT DID NOT ERR IN DENYING DEFENDANT’S MOTION
                         TO SUPPRESS
       Defendant argues the judgment must be reversed because (1) the search warrant
used to search the apartment was not supported by probable cause and (2) that law
enforcement‟s reliance on the warrant was not objectively reasonable. We find that
defendant‟s first contention lacks merit and therefore do not reach the second.
       “The standard of appellate review of a trial court‟s ruling on a motion to suppress
is well established. We defer to the trial court‟s factual findings, express or implied,
where supported by substantial evidence. In determining whether, on the facts so found,
the search or seizure was reasonable under the Fourth Amendment, we exercise our
independent judgment. [Citations.]” (People v. Glaser (1995) 11 Cal.4th 354, 362.) Our
review “is confined to the correctness or incorrectness of the trial court‟s ruling, not the
reasons for its ruling. [Citations.]” (People v. Dimitrov (1995) 33 Cal.App.4th 18, 27.)
       Defendant raises three bases for its lack of probable cause contention: (1) the
confidential informant cited in the supporting affidavit was not shown to be reliable; (2)
the information supplied by the confidential informant was not sufficiently corroborated;
and (3) the supporting affidavit is stale because it lacks information as to when the
confidential informant observed defendant selling drugs in the apartment.


       6   Defendant was also sentenced to concurrent 90-day sentences on counts V and
VI.



                                              7.
A.     Reliability and Corroboration
       As defendant‟s brief correctly notes, the affidavit supporting the warrant does not
contain facts directly establishing the reliability of the informant (e.g., that the informant
was a disinterested citizen or had a track record for accuracy). However, as we will
explain, the supporting affidavit is nonetheless sufficient.

              1. Informant Reliability Jurisprudence Before Illinois v. Gates
       Prior to the Supreme Court‟s clarification in 1983, some courts applied a rigid
two-prong test for determining whether an informant‟s tip establishes the requisite
probable cause to support a search warrant. (Illinois v. Gates (1983) 462 U.S. 213, 230 &
fn. 5 (Gates) citing Stanley v. State (Md.Ct.App. 1974) 313 A.2d 847, 861 and People v.
Gates (Ill. 1981) 423 N.E.2d 887 revd. 462 U.S. 213.) The “original phrasing” of the
two-pronged test is set forth in an earlier Supreme Court case, Aguilar v. State of Texas
(1964) 378 U.S. 108 (Aguilar), abrogated by Gates, supra, 462, U.S. 213. (Gates, supra,
at p. 230, fn. 6.) The two Aguilar prongs, as applied by some courts, required that a
warrant‟s supporting affidavit set forth both: (1) the basis for the informant‟s knowledge;
and (2) facts establishing the informant‟s veracity or the reliability of the informant‟s
report. (Gates, supra, 462 U.S. at pp. 228-229.) Some courts were treating the two
prongs as entirely separate requirements which must be independently satisfied in every
case to sustain a determination of probable cause. (Id. at p. 229, fn. 4.)
              2. Gates’s Replacement of the Two-Prong Test
       In Gates, the Supreme Court abandoned this two-pronged test and replaced it with
a totality-of-the-circumstances analysis. (Gates, supra, 462 U.S. at p. 238.) In so doing,
the Supreme Court clarified both the role of the magistrate issuing the warrant and our
role as a reviewing court:

       “The task of the issuing magistrate is simply to make a practical, common-
       sense decision whether, given all the circumstances set forth in the affidavit
       before him, including the „veracity‟ and „basis of knowledge‟ of persons


                                              8.
       supplying hearsay information, there is a fair probability that contraband or
       evidence of a crime will be found in a particular place. And the duty of a
       reviewing court is simply to ensure that the magistrate had a „substantial
       basis for ... conclud[ing]‟ that probable cause existed. [Citation.]” (Id. at
       pp. 238-239. See also People v. Kraft (2000) 23 Cal.4th 978, 1040-1041,
       overruled on other grounds by People v. Rundle (2008) 43 Cal.4th 76.)
       Gates has a number of implications relevant here. First, Gates makes clear that
the “reliability” prong is no longer a strict, unyielding prerequisite to a finding of
probable cause. Thus, the supporting affidavit‟s lack of information regarding the
informant‟s reliability is not necessarily fatal to the warrant here. Rather, it is one
important factor to have been considered by the magistrate.
       Second, Gates makes equally clear that the “reliability” issue remains important to
the probable cause analysis. That is, the reliability issue remains relevant whether it is
viewed as an Aguilar “prong” or a Gates “circumstance.” What defendant fails to
appreciate is that reliability concerns can be satisfied in a variety of ways.
       Aguilar set forth the original phrasing of the two prong test as follows:

               “Although an affidavit may be based on hearsay information and
       need not reflect the direct personal observations of the affiant, [citation], the
       magistrate must be informed of some of the underlying circumstances from
       which the informant concluded that the narcotics were where he claimed
       they were, and some of the underlying circumstances from which the
       officer concluded that the informant … was „credible‟ or his information
       „reliable.‟ ” (Aguilar, supra, 378 U.S. at 114 revd. Gates, supra, 462 U.S.
       213, fn. omitted, emphasis added.)
       Reliability concerns can be assuaged by facts tending to show the credibility of
either the informant or the information provided (or both). This explains why, post-
Gates, an informant‟s track record is only one of many ways to establish veracity.
(United States v. Angulo-Lopez (9th Cir. 1986) 791 F.2d 1394, 1397.) Veracity may also
be established by admission against penal interest or independent police corroboration.
(Ibid.) An untested informant‟s tip can also supply probable cause where firsthand
knowledge of a crime is shown. (Cf. United States v. Tirado (3d Cir. 2005) 133


                                              9.
Fed.Appx. 13, 17. See also People v. Dolly (2007) 40 Cal.4th 458, 468 citing United
States v. Perkins (2004) 363 F.3d 317, 322 [contemporaneous viewing of suspicious
activity enhances tip‟s reliability].)
         Therefore, we hold that the absence of facts in a supporting affidavit directly
showing reliability of the informant (e.g., track record of accuracy, etc.) is not fatal to the
warrant where, as here, credibility is shown through: (1) the informant‟s personal,
firsthand observation of criminal activity, and (2) corroboration by law enforcement.
                3. The Informant‟s Personal Observation of Criminal Activity
         The informant cited in Deputy Bravo‟s affidavit personally observed defendant
sell drugs in the apartment. This weighs in favor of the tip‟s credibility. (United States v.
Tirado, supra, 133 Fed.Appx. at p. 17; People v. Dolly, supra, 40 Cal.4th at p. 468.)
Moreover, it distinguishes the primary case on which defendant relies: Bailey v. Superior
Court (1992) 11 Cal.App.4th 1107 (Bailey).
         In Bailey, two informers observed heavy foot traffic in and out of an apartment.
(Bailey, supra, 11 Cal.App.4th at p. 1110.) Based on the heavy foot traffic, the
informants concluded that the defendant was dealing drugs and engaging in prostitution.
(Id. at p. 1112.) This inferential step troubled the Bailey court. (Ibid. [“ „Heavy foot
traffic‟ does not necessarily engender criminal behavior.”].) The Second District held
that heavy foot traffic, alone, was insufficient to establish probable cause. (Id. at pp.
1111-1113.)7
         Bailey is inapposite to the present case. Bailey‟s probable cause analysis was not
focused on the alleged unreliability of the informants, but rather on the propriety of
inferences drawn from their observations. (See Bailey, supra, 11 Cal.App.4th at pp.1111-
1113.)


         Indeed the superior court impliedly agreed with Bailey‟s holding, stating that
         7
foot traffic alone does not necessarily mean illegal activity is occurring.



                                              10.
       There was no indication that the informants in Bailey had ever witnessed a crime.
(Bailey, supra, 11 Cal.App.4th at p. 1113.) In contrast, the supporting affidavit here sets
forth the informant‟s personal observation of defendant selling drugs in the apartment.8

              4. Law Enforcement Corroboration of the Confidential Informant‟s
                 Information
       The veracity of the informant‟s information was further bolstered by law
enforcement‟s independent corroboration.
       It is important to note at the outset that law enforcement need not corroborate
every single tip or piece of information provided by an informant. (See United States v.
Martinez-Garcia (9th Cir. 2005) 397 F.3d 1205, 1216; People v. Medina (1985) 165
Cal.App.3d 11, 20 fn. 6.)
       Here, the superior court was satisfied that law enforcement sufficiently
corroborated the informant by surveilling the premises and finding methamphetamine on
a female subject who was stopped after exiting the apartment and driving away.
Moreover, law enforcement confirmed the identity of defendant and his prior narcotics-
related violations.
       From these facts, the magistrate and superior court concluded that sufficient
probable cause had been established. Under the Gates “totality of the circumstances”
test, we see no basis for disturbing those determinations.



       8 Bailey is distinguishable on other points as well. Here, the relevant probable
cause inferences were drawn from more than mere foot traffic. (Cf. Bailey, supra, 11
Cal.App.4th at p. 1112 [“Both informants saw „heavy foot traffic‟ and from this
concluded that Ms. Bailey was dealing drugs and was engaged in prostitution.”].) In
addition to unusual foot traffic, law enforcement observed an individual exit the
apartment less than three minutes after arriving. The individual was stopped and found
with bindles of suspected methamphetamine. Even the fact that law enforcement
conducted surveillance at all further distinguishes Bailey. (Id. at p. 1114 [“The officers
could have conducted surveillance to confirm the suspected activities.”].)



                                            11.
B.     “Staleness”
       Defendant next argues that the information set forth in the affidavit was “stale”
and therefore incompetent to supply probable cause.
       The law on this issue is well-established:

       “No bright-line rule defines the point at which information is considered
       stale. [Citation.] Rather, „the question of staleness depends on the facts of
       each case.‟ [Citation.] „If circumstances would justify a person of ordinary
       prudence to conclude that an activity had continued to the present time,
       then the passage of time will not render the information stale.‟ [Citation.]
       [¶] Courts have upheld warrants despite delays between evidence of
       criminal activity and the issuance of a warrant, when there is reason to
       believe that criminal activity is ongoing or that evidence of criminality
       remains on the premises. [Citations.]” (People v. Carrington (2009) 47
       Cal.4th 145, 163-164.)
       We look at the circumstances without applying bright-line rules or counting days
like “a merchant would beads on an abacus.” (United States v. Tiem Trinh (1st. Cir.
2011) 665 F.3d 1, 13.)
       Here, there were a number of facts contained in the affidavit that were
undoubtedly “fresh”: heavy and unusual foot traffic at the apartment, and a female being
stopped with methamphetamine after leaving the apartment. These facts justify a
conclusion that the illegal activity witnessed by the informant continued to the time the
warrant was sought.9 Therefore, the passage of time did not render the information stale.
(See People v. Carrington, supra, 47 Cal.4th at pp. 163-164.)

       9 See also People v. Wilson (1986) 182 Cal.App.3d 742 (Wilson). In Wilson, a
search warrant was issued against two suspected methamphetamine labs. (Id. at p. 746.)
The warrant was based, in part, on a nearby resident reporting a strong odor of ether,
which can accompany the manufacture of methamphetamine. (Id. at pp. 746-747.) The
last date on which the resident smelled ether was February 1, 1984, but the supporting
affidavit was not executed until March 12, 1984. (Id. at p. 754.) On appeal, the
defendant attacked the warrant‟s supporting affidavit on “staleness” grounds. The Sixth
District rejected the defendant‟s “staleness” claim. The Wilson court concluded that the
nature of the crime and the inference that the lab would likely be functioning when the


                                            12.
                               II.
 SECTION 654 REQUIRES A STAY OF THE CONCURRENT SENTENCES ON
                       COUNTS III AND IV
       Defendant argues that section 654 requires that the sentences on counts III and IV
be stayed. In deciding this issue, we must first determine whether defendant‟s claim is
cognizable on appeal. We conclude that it is. Therefore, we subsequently address the
merits of defendant‟s claim and conclude that a stay of the sentences on counts III and IV
is required.
A.     Defendant’s section 654 claim is not barred on appeal
       Section 654 claims are not waived by failing to object in the lower court. (People
v. Hester (2000) 22 Cal.4th 290, 295.) “ „Errors in the applicability of section 654 are
corrected on appeal regardless of whether the point was raised by objection in the trial
court or assigned as error on appeal.‟ [Citation.]” (Ibid., quoting People v. Perez (1979)
23 Cal.3d 545, 549-550 fn. 3.)
       However, California Rules of Court, rule 4.412(b) sets forth an explicit exception
to this general rule of nonwaiver. The rule states:

       “By agreeing to a specified prison term personally and by counsel, a
       defendant who is sentenced to that term or a shorter one abandons any
       claim that a component of the sentence violates section 654‟s prohibition of
       double punishment, unless that claim is asserted at the time the agreement
       is recited on the record.” (Cal. Rules of Court, rule 4.412(b) (“Rule
       4.412(b)”).)
       The People argue defendant is estopped10 from raising a section 654 claim, relying
on the California Supreme Court case, People v. Hester, supra, 22 Cal.4th 290 (Hester),


warrant was executed defeated the defendant‟s staleness contentions. (Id. at pp. 754-
755.)
       10  Various courts have used terms like “waiver”; “estoppel”; and “abandonment”
all to reference the exception found in Rule 4.412(b). (See, e.g., Hester, supra, 22
Cal.4th 290, 295 [“estopped”; “waiver”], 296 [“abandoned”]; In re Giovani M. (2000) 81
Cal.App.4th 1061, 1066 [“estopped”; “waived” and “abandoned”].) We use whatever


                                            13.
which in turn relied on California Rules of Court, rule 4.412(b). We conclude that Hester
is inapposite and that no abandonment of the section 654 claim occurred.
       In Hester, the defendant entered no contest pleas to five substantive counts and
admitted a deadly weapon allegation in exchange for an agreed term of four years in
prison. (Hester, supra, 22 Cal.4th at p. 293.) At the sentencing hearing, no section 654
claim was made by defense counsel. (Ibid.) The superior court imposed a four-year
prison term for the burglary count, concurrent three-year terms for the counts of felony
assault and dissuading a witness, and concurrent jail terms for the misdemeanor counts.
(Ibid.) Defendant appealed and petitioned for a writ of habeas corpus. (Id. at p. 294.)
The Court of Appeal modified the judgment to reflect a stay of the concurrent terms
imposed for the felony assault and dissuading counts. The Supreme Court reversed,
holding that the conditions for abandonment of section 654 claims set forth in Rule
4.412(b)‟s predecessor, rule 412(b), had been met. (Hester, supra, at p. 296.)
Specifically, the defendant had agreed to a specified prison term and was sentenced to
that same term; and no claim was asserted at the change of plea hearing on section 654
grounds. (Hester, supra, at p. 296.) Therefore, the Court held, rule 412(b)‟s
abandonment rule applied, and the defendant could not raise a section 654 claim on
appeal. (Hester, supra, at pp. 295-296.)
       Hester is distinguishable.11 Rule 4.412(b) requires that a defendant assert his or



term is used in the authority we are citing. If no authority is being cited, we use the term
“abandonment” (or its conjugates) in conformity with Rule 4.412(b)‟s language.
       11 Hester involved a plea bargain while the present case involves a court-indicated
sentence. The law is currently unsettled on whether Rule 4.412(b) applies to court-
indicated sentences for a specific term (versus plea bargains for a specific term).
However, we need not propose an answer to this open question because other facts are
dispositive here. (Cf. State of California ex rel. Dept. Water Resources v. Texaco, Inc.
(1972) 25 Cal.App.3d 514, 518.) If Rule 4.412(b) does not apply to court-indicated
sentences for a specific term, then Hester is instantly distinguishable on that basis. Even


                                             14.
her section 654 claim when the plea agreement is recited on the record to avoid
abandoning the claim. (Cal. Rules of Court, rule 4.412(b).) The Hester defendant did not
do so. (Hester, supra, 22 Cal.4th at p. 296.) This failure to assert the section 654 claim
was an integral part of Hester‟s Rule 4.412(b) analysis and holding.

       “He [defendant] did not raise a section 654 objection to any possible
       concurrent terms „at the time the agreement [was] recited on the record,‟
       namely, at the change of plea hearing. Therefore, he abandoned „any claim
       that a component of the sentence violates section 654‟s prohibition of
       double punishment.‟ ” (Hester, supra, at p. 296, first brackets added.)
       Conversely, the defendant before us did assert a section 654 claim at the change of
plea hearing. At the hearing, defense counsel stated: “… two of those counts will have
to be stayed under Section 654, but that can be taken up at the time of sentencing.” This
assertion of the section 654 claim triggered the exception set forth in Rule 4.412(b). It
also distinguishes this case from Hester and other abandonment cases. (See Hester,
supra, 22 Cal.4th at pp. 293, 296; People v. Cole (2001) 88 Cal.App.4th 850, 873
[defendant raised no section 654 claim with trial court]; People v. Valenzuela (1993) 14
Cal.App.4th 837, 841 [defense counsel did not raise double punishment issue when
defendant entered plea].)
       Concluding that no abandonment of defendant‟s section 654 claims occurred at the
change of plea hearing, we next consider the People‟s apparent contention that grounds
for estoppel arose later, at the sentencing hearing.
       Before and during the sentencing hearing, defense counsel asserted a section 654
claim. Nonetheless, the court indicated that there must have been a misunderstanding,
because the plea form stated all sentences were to run concurrently. The court then




if Rule 4.412(b) does apply, defendant did not abandon his claim under the rule‟s plain
language.



                                             15.
stated: “I‟m assuming Mr. Cruz does not wish to withdraw his plea?” Defense counsel
responded: “No, your Honor.”
       First, we note that under Rule 4.412(b)‟s exception, a section 654 claim need only
be raised at the time the plea agreement is recited on the record. (Cal. Rules of Court,
rule 4.412(b).) In this case, the agreement was recited on the record at the September 29,
2011, change of plea hearing. Defendant‟s section 654 claim was raised at that hearing.
Rule 4.412(b) contains no requirement that a defendant must subsequently reassert a
section 654 claim after the initial assertion. Therefore, we question whether the
sentencing hearing is relevant at all, given that Rule 4.412(b)‟s exception was triggered at
the prior change of plea hearing.
       Second, Rule 4.412(b) does more than set forth conditions for finding
abandonment in positive terms. The rule also sets forth an exception which, when
applicable, precludes a finding of abandonment. When a defendant (1) agrees to a
specified term; (2) is sentenced to an equal or lesser term, and (3) asserts a section 654
claim when the agreement is recited on the record, no abandonment occurs. (Cal. Rules
of Court, rule 4.412(b).) Defense counsel asserted the section 654 claim at the change of
plea and sentencing hearings.12
B.     Does section 654 apply?
       Section 654, subdivision (a) states, in part:

              “An act or omission that is punishable in different ways by different
       provisions of law shall be punished under the provision that provides for
       the longest potential term of imprisonment, but in no case shall the act or
       omission be punished under more than one provision.…” (§ 654(a).)

       12  Defense counsel‟s declination of the court‟s invitation to withdraw the plea does
not alter our conclusion. Even if this was an acquiescence to the term indicated by the
court, it does not alter the applicability of Rule 4.412(b). Rule 4.412(b) explicitly
envisions a scenario in which a defendant both agrees to a specific term and yet still
asserts a section 654 claim. (Cal. Rules of Court, rule 4.412(b).)



                                             16.
       This provision prohibits multiple punishments for: (1) a single act; (2) a single
omission; or (3) an indivisible course of conduct. (People v. Deloza (1998) 18 Cal.4th
585, 591.) When a defendant is convicted of two offenses falling within the ambit of
section 654, the execution of one of the sentences must be stayed. (People v. Deloza,
supra, at p. 592.)
       The recent California Supreme Court decision in People v. Jones (2012) 54
Cal.4th 350 (Jones) is instructive in resolving the section 654 issue presented here. In
Jones, the defendant was driving with a loaded .38-caliber revolver. (Jones, supra, at
p. 352.) The defendant was convicted of three crimes: (1) possession of a firearm by a
felon; (2) carrying a readily accessible concealed and unregistered firearm; and (3)
carrying an unregistered loaded firearm in public. (Ibid.) He was sentenced to
concurrent three-year prison terms on each of the three counts, plus a one-year
enhancement. (Ibid.)
       The defendant appealed, arguing that execution of his sentences on two of the
counts had to be stayed under section 654. (Jones, supra, 54 Cal.4th at p. 352.) The
California Supreme Court agreed, holding that a single physical act which violates
multiple provisions of law may only be punished once under section 654. (Jones, supra,
at p. 358.)
       The court concluded that the current state of section 654 jurisprudence was
untenable. (Jones, supra, 54 Cal.4th at p. 357.) In that vein, the court reversed In re
Hayes (1969) 70 Cal.2d 604 (Hayes) and disapproved People v. Harrison (1969) 1
Cal.App.3d 115 (Harrison). These reversals help shape the contours of section 654 law,
which in turn guides our analysis.
       In Hayes, the defendant drove while intoxicated and without a valid license.
(Jones, supra, 54 Cal.4th at p. 355.) He pled guilty to the separate offenses of driving
with knowledge of a suspended license and while under the influence of intoxicating
liquor. (Hayes, supra, 70 Cal.2d at p. 605.) He was sentenced for both offenses. (Ibid.)

                                            17.
       The Hayes court held that the sentencing on both violations did not run afoul of
section 654. (Hayes, supra, 70 Cal.2d at p. 605.) Hayes recognized that the crucial
inquiry in section 654 cases is determining whether there is a “single act” being punished.
(Hayes, supra, at pp. 605-606.) The Hayes court held that the appropriate mode of
analysis was to examine only the criminal acts at issue (e.g., driving with a suspended
license and driving while intoxicated), not the noncriminal acts (e.g., driving), to
determine if there was a “single act.” (Id. at pp. 607-608.) Hayes rejected the contention
that because both violations were predicated on the singular act of driving, they can only
be punished once. (Ibid.) This contention, rejected by the Hayes court, is now an
accurate statement of California law under Jones. As the Supreme Court succinctly held:
“Section 654 prohibits multiple punishment for a single physical act that violates
different provisions of law.” (Jones, supra, 54 Cal.4th at p. 358.)
       Similarly, in Harrison, the defendant was convicted of possession of a revolver by
a felon and carrying a loaded firearm in a vehicle on a public street. (Harrison, supra, 1
Cal.App.3d at p. 118.) Relying on Hayes, the Harrison court held that the defendant‟s
sentence did not violate section 654.
       The Harrison decision added an additional component to its reasoning. The
Harrison decision describes the distinct goals of the two violated statutes: eliminating
the potential hazard posed by an ex-felon‟s possession of firearms (whether loaded or
not); and eliminating the potential hazard posed by any person carrying a loaded firearm
in public (whether a felon or not). (Harrison, supra, 1 Cal.App.3d at p. 122.) Citing
Neal v. State of California (1960) 55 Cal.2d 11, 19-20, disapproved on other grounds by
People v. Correa (2012) 54 Cal.4th 331, the Harrison court concluded that the “intent or
objective” underlying the criminal conduct was therefore not singular, but several.
(Harrison, supra, at p. 122.) In Jones, the Supreme Court rejected this analysis as well,
noting that the legal rules it logically engenders are inconsistent with section 654‟s actual
language. (See Jones, supra, 54 Cal.4th at p. 355.)

                                             18.
       We glean two points of law from Jones‟s negative treatment of Hayes and
Harrison that are particularly relevant here. First, we are to look at whether a single
physical act is being punished (not whether distinct criminal acts are being punished).
(Jones, supra, 54 Cal.4th at pp. 355-357.) Second, we do not look to whether the statutes
that defendant violated have distinct purposes. (Id. at 355.)
       It is against this backdrop that we evaluate the facts of the present case. In count
I, it was alleged that defendant willfully and unlawfully possessed methamphetamine for
purpose of sale. Count III alleged that defendant willfully and unlawfully possessed
methamphetamine. As explained ante, the relevant inquiry is whether there is a single
physical act at issue with respect to both counts.
       Only a single physical act occurs by virtue of possessing an object, regardless of
how many intentions the possessor may have for the object. The same principle applies
to possession of volumes of a particular substance. (Cf. In re Johnson (1966) 65 Cal.2d
393; People v. Schroeder (1968) 264 Cal.App.2d 217, 227-228 [possession of volumes of
the same type of substance is a single criminal offense].) Here, there is only one physical
act underlying counts I and III: possession of methamphetamine; and one physical act
underlying counts II and IV: possession of hydrocodone.13 Neither the information nor
Deputy Bravo‟s testimony regarding intent to sell distinguish between the

       13 Our analysis on this issue is consistent with the Second District‟s analysis in
People v. Branch (1953) 119 Cal.App.2d 490 (Branch). In Branch, the defendant was
convicted of two counts: possession of marijuana and offering to sell marijuana. He was
sentenced on both counts, with the sentences to run concurrently. (Id. at p. 491.) The
Branch court held that the violations were “but one offense,” as the possession was
incidental to the sale. (Id. at p. 496.)
       Here, the facts are even more indicative of a single act. While Branch involved
two ostensibly separate physical acts (i.e., the physical act of possessing of marijuana and
the physical act of offering to sell marijuana), the present case involves double
punishment of the singular physical act of possessing methamphetamine with multiple
intents, and the singular physical act of possessing hydrocodone with multiple intents.



                                             19.
methamphetamine found in the bathroom with the methamphetamine found in the
bedroom.14 Thus, the record indicates that there was a singular act of possession
underlying both counts.
       Our analysis is unaffected by the very real possibility that defendant harbored
multiple criminal objectives in possessing the methamphetamine. The number of
criminal objectives a defendant entertains is only relevant in cases involving multiple
physical acts. (People v. Mesa (2012) 54 Cal.4th 191, 198-199. See also People v.
Mendoza (1997) 59 Cal.App.4th 1333, 1345-1346, superseded by statute or other grounds
as recognized in People v. Franz (2001) 88 Cal.App.4th 1426.) As explained above, this
is not such a case. So, rather than attempting to divine what objective or objectives
defendant might have had in possessing the methamphetamine, “we find it better to rely
on section 654‟s actual language in resolving this single-act case.” (See Jones, supra, 54
Cal.4th at p. 360.) In so doing, our analysis becomes simple: the superior court imposed
multiple concurrent15 jail sentences on a single physical act. Under Jones, this was
impermissible.




       14Even if this were not the case, the simultaneous possession of two or more
“batches” of a single type of controlled substance would still only be one physical act.
(See People v. Schroeder, supra, 264 Cal.App.2d at pp. 227-228.)
       15 The fact that the sentences were concurrent rather than consecutive does not
bring them into compliance with section 654. (See People v. Deloza, supra, 18 Cal.4th at
pp. 591-592 [“If, for example, a defendant suffers two convictions, punishment for one of
which is precluded by section 654, that section requires the sentence for one conviction to
be imposed, and the other imposed and then stayed. [Citation.] Section 654 does not
allow any multiple punishments, including either concurrent or consecutive sentences.
[Citation.]”]. See also Branch, supra, 119 Cal.App.2d at p. 496.)



                                            20.
                              III.
 SECTION 4019 DOES NOT VIOLATE DEFENDANT’S EQUAL PROTECTION
                            RIGHTS
       Defendant argues that equal protection considerations require that section 4019 be
applied retroactively. We reject this contention briefly, having recently rejected it at
greater length in People v. Ellis (2012) 207 Cal.App.4th 1546 (Ellis). (See also People v.
Brown (2012) 54 Cal.4th 314 (Brown); People v. Kennedy (2012) 209 Cal.App.4th 385.)
       The first prerequisite to an equal protection claim is a showing that a legal
classification treats similarly situated groups unequally. (Ellis, supra, 207 Cal.App.4th at
p. 1551 quoting Brown, supra, 54 Cal.4th at pp. 328-329.) Reviewing courts determine
whether groups are “similarly situated” in the specific context of the law being
challenged; not whether the groups are “similarly situated” in all respects. (Ellis, supra,
at p. 1551.)
       In Brown, the California Supreme Court noted that the purpose of section 4019 is
incentivizing good behavior.16 This goal is not served “ „by rewarding prisoners who
served time before the incentives took effect and thus could not have modified their
behavior in response.…‟ ” (Ellis, supra, 207 Cal.App.4th at p. 1551, quoting Brown,
supra, 54 Cal.4th at pp. 328-329.) Therefore, prisoners who served time before and after
amendments to section 4019 are not “similarly situated” for equal protection purposes.
(Ellis, supra, at p. 1551.) Because defendant fails to show that section 4019 treats
“similarly situated” groups unequally, he asserts no cognizable equal protection claim.
                                      DISPOSITION
       The judgment is modified to reflect a stay of the execution of the two concurrent
three-year jail sentences on counts III and IV, pursuant to section 654. The imposition of


       16 Though Brown dealt with a different amendment to section 4019, we have
applied its reasoning to the October 1, 2011, amendments to section 4019 which are at
issue here. (See Ellis, supra, 207 Cal.App.4th at pp. 1551-1552.)



                                             21.
the $50 drug laboratory fees and $100 drug program fees on counts III and IV, are stayed
pursuant to section 654. (People v. Sharret (2011) 191 Cal.App.4th 859 [drug laboratory
fee is a penalty]; People v. Sierra (1995) 37 Cal.App.4th 1690 [drug program fee is a
penalty].) As modified, the judgment is affirmed. The matter is remanded to the trial
court to amend the abstract of judgment accordingly, and to transmit certified copies of
the amended abstract to all appropriate parties and entities.



                                                                 _____________________
                                                                Poochigian, J.
WE CONCUR:


 _____________________
Cornell, Acting P.J.


 _____________________
Kane, J.




                                             22.
