Filed 8/22/14 P. v. Heuser 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                                           NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
                                                       (Nevada)
                                                            ----



THE PEOPLE,

                   Plaintiff and Respondent,                                            C071598

         v.                                                          (Super. Ct. Nos. SF10027, SF10165)

RONALD JAMES HEUSER,

                   Defendant and Appellant.


         In case No. SF10-027, defendant Ronald James Heuser was convicted by jury of
possession of a deadly weapon (a meat cleaver), possession of a firearm by a convicted
felon, and possession of ammunition by a convicted felon. In a bifurcated proceeding,
the trial court found true allegations defendant was previously convicted of two strike
offenses within the meaning of the three strikes law. (Pen. Code, §§ 1170.12, subds. (a)-
(d) & 667, subds. (b)-(i).)1 The trial court struck one of the prior strikes (see People v.
Superior Court (Romero) (1996) 13 Cal.4th 497) and sentenced defendant to serve an



1        Undesignated statutory references are to the Penal Code.


                                                             1
aggregate term of seven years four months in state prison (six years (upper term of three
years, doubled pursuant to the three strikes law) for possession of the meat cleaver, plus
one year four months (one-third the middle term, doubled) for possession of the firearm;
sentence for possession of ammunition was stayed pursuant to section 654).
       In case No. SF10-165, defendant was convicted by jury of transportation of
methamphetamine, possession of methamphetamine for sale, and resisting a peace
officer.2 In a bifurcated proceeding, the jury found true allegations defendant had three
prior narcotics convictions within the meaning of Health and Safety Code section
11370.2. The trial court confirmed the sentence previously imposed in case No. SF10-
027 and added a subordinate term of four years eight months (one year for transportation
of methamphetamine, plus eight months for possession of methamphetamine for sale
(one-third the middle term for each offense), plus a three-year enhancement term for one
prior narcotics conviction (the remaining two enhancement terms were “stayed” pursuant



2       Effective January 1, 2014, Health and Safety Code section 11379, defining the
crime of transportation, was amended to provide that “ ‘transport’ means to transport for
sale.” (Health & Saf. Code, § 11379, subd. (c); Stats. 2013, ch. 504, § 2.) While this
amendment applies retroactively to defendant’s transportation conviction (In re Estrada
(1965) 63 Cal.2d 740, 744, 748 [where an amended statute mitigating punishment has no
saving clause and takes effect before the judgment of conviction becomes final, “the rule
is that the amendment will operate retroactively so that the lighter punishment is
imposed”]; People v. Vinson (2011) 193 Cal.App.4th 1190, 1197-1199 [the rule
articulated in Estrada applies to amendments that add to the elements of a crime]), it does
not require reversal of this conviction because the jury found defendant guilty of
possession of methamphetamine for sale. Thus, the newly-added “for sale” element,
already an element of possession for sale, was pled and proved beyond a reasonable
doubt. (See People v. Montero (2007) 155 Cal.App.4th 1170, 1175 [intent to sell is an
element of the crime of possession for sale]; People v. Vinson, supra, 193 Cal.App.4th at
pp. 1200-1201 [while amended section 666, requiring three prior theft-related convictions
and three periods of incarceration, applied retroactively to the defendant’s conviction,
reversal not required where two such convictions and periods of incarceration were pled
and proved as section 667.5, subdivision (b), enhancements and a third was established
by stipulation at trial].)


                                             2
to section 1385); sentence for resisting a peace officer was deemed served), for an
aggregate prison term of 12 years.
       On appeal, with respect to case No. SF10-027, defendant contends the prosecutor
committed prejudicial misconduct by (a) violating an in limine ruling restricting his
ability to impeach defendant with specific prior convictions, “especially with respect to
[two prior weapon-related convictions] which are similar in nature” to the charged
offenses, (b) impeaching defendant with prior weapon-related arrests and prosecutions,
and (c) stating during closing argument the jury could “consider the fact that on other
occasions [defendant] possessed weapons” and “acknowledged being previously arrested
for other weapons cases and other weapons violations.” Acknowledging defense counsel
did not object to the prosecutor’s conduct, thereby forfeiting the claim of prosecutorial
misconduct, defendant argues reversal is nevertheless warranted because counsel’s failure
to object amounted to constitutionally deficient performance and resulted in prejudice.
With respect to case No. SF10-165, defendant asserts two sentencing errors: (1) the
judgment must be modified to stay execution of the sentences imposed for (a) possession
of methamphetamine for sale and (b) the prior narcotics conviction enhancement; and
(2) the judgment must be further modified to strike the two prior narcotics conviction
enhancements the trial court improperly “stayed” pursuant to section 1385.
       We modify the judgment and affirm. As we explain, in case No. SF10-027,
defendant’s prosecutorial misconduct claim is forfeited because defendant did not object
to the alleged misconduct or request a curative admonition. Assuming defense counsel’s
failure to object and request such an admonition fell below an objective standard of
reasonableness, defendant has not carried his burden of demonstrating a more favorable
outcome is reasonably probable absent counsel’s omissions. In case No. SF10-165, we
conclude the sentence imposed for transportation of methamphetamine must be stayed




                                             3
pursuant to section 654 and the two prior narcotics conviction enhancements must be
stricken pursuant to section 1385.
                                         FACTS3
       On January 28, 2010, defendant was driving southbound on Indian Springs Road
in Penn Valley. He was returning to Carl Fiesel’s property after running an errand.
Fiesel’s daughter, Becky, was in the passenger seat. A short distance from the property,
Deputy Jeff Martin of the Nevada County Sheriff’s Department initiated a traffic stop.
Instead of pulling to the right shoulder, defendant continued to Fiesel’s property and
pulled into the driveway on the left side of the road. After driving about 60 feet down the
driveway, defendant made a three point turn and parked his car near Fiesel’s truck, facing
Deputy Martin’s patrol vehicle. When defendant’s car came to a stop, Becky got out and
ran to her father’s mobile home. She appeared to be “extremely upset and agitated.”
Martin, who was now standing outside his vehicle, directed her to get back in the car, but
she did not comply.
       Deputy Martin then ordered defendant to get out of the car. Defendant yelled to
Martin through an open window, demanding an explanation for the traffic stop. Several
times, Martin ordered defendant to show his hands and step out of the car. Eventually,
defendant got out of the car and walked over to Fiesel’s truck. Martin approached
defendant and explained he would be conducting a pat-down search for weapons.
Defendant indicated he would comply, but when Martin placed his hand on defendant’s
wrist, defendant “immediately pulled away and retreated back towards his vehicle.”
Martin called for backup and followed in pursuit. As defendant reached the car, Martin
“grabbed onto him and closed the door and pushed him past his vehicle to prevent him




3     Because defendant raises only sentencing errors with respect to case No. SF10-
165, we do not recite the facts of that case.


                                             4
from accessing any of the doors.” Martin repeatedly ordered defendant to stop and
followed defendant as he circled back around to Fiesel’s truck. At the truck, Martin
warned defendant he would be hit with a baton or pepper-sprayed if he did not keep his
hands where Martin could see them. Defendant turned away from Martin, who then
sprayed him in the face with pepper spray and tried to take him into custody. Defendant
resisted, “slipped out of a leather vest that he was wearing and swung it at [Martin] as
[the deputy] backed up.” At this point, another deputy arrived on the scene. After Martin
told the second deputy to use his taser, defendant lay down on the ground and was taken
into custody without further incident.
       Deputy Martin first searched the vest defendant threw at him, finding a small
black bag containing 24 unfired .22-caliber rounds of ammunition. Martin then searched
defendant’s car and found a meat cleaver between the driver’s seat and the center console
and a loaded .22-caliber revolver beneath the driver’s seat. On the scene, defendant twice
yelled that the handgun belonged to him and he bought it for protection, elaborating he
“received threats against his life down in Marysville.” Later, at the hospital where
defendant was treated for exposure to pepper spray, he told Martin “he bought the firearm
off the street for 50 dollars so he could protect himself.”
       Defendant testified in his own defense. According to defendant, as he approached
Fiesel’s property with Becky in the passenger seat, he saw “bright lights” and “somebody
driving up really fast” behind them, but did not know he was being pulled over because
there were no “flashing lights.” Defendant pulled into Fiesel’s driveway, turned around,
and parked on the property. As he did so, the approaching vehicle came “screeching up”
the driveway with its high-beam headlights on and stopped in front of defendant’s car.
Defendant and Becky sat in the car for “a few minutes” asking each other who could be
in the other vehicle. Defendant “couldn’t tell what kind of vehicle it was” until Deputy
Martin got out and defendant saw the Sheriff’s Department decal on the driver’s door. At



                                              5
this point, defendant told Becky: “You better go tell your father that the police are here
on the property.” Becky got out of the car and ran to her father’s mobile home.
Defendant then rolled down the window and told Martin: “[T]his is private property.
You’re trespassing.” Martin responded: “Get out of the car and let me see your hands.”
Defendant complied. He was holding his cell phone. When Martin ordered defendant to
put his hands in the air, defendant responded: “I’m going to record this on a video.”
Martin asked defendant to produce identification and then “rushed [him] to grab the
phone.”
       A “scuffle” ensued, during which defendant told Deputy Martin: “[Y]ou should
be calling your backup. You should wait for backup.” Unable to take defendant into
custody, Martin went back to his patrol vehicle and turned the emergency lights on for
the first time. He apparently also called for backup, although defendant did not hear him
do so. Martin then resumed his attempt to take defendant into custody on his own. As
defendant stood next to Fiesel’s truck, Martin sprayed him in the face with pepper spray.
The pepper spray “put [defendant] in a real bad state.” He took off his jacket and leather
vest, wiped off his face, and threw them on the ground, saying to Martin: “What did you
do that for?” At this point, the second deputy arrived on the scene and defendant was
taken into custody.
       Defendant admitted to being a convicted felon. With respect to the handgun and
ammunition in his possession at the time of his arrest, defendant testified he bought them
for protection. He explained that about two weeks earlier, he reported to Child Protective
Services that his daughter had accused a certain individual of sexual abuse. The night
before he was pulled over by Deputy Martin, someone fired two shots at him while he
stood in front of his house. The following day, defendant bought the handgun and
ammunition. According to defendant, the handgun and ammunition were in the trunk of
the car when he was pulled over. Defendant also testified the meat cleaver was in the



                                             6
trunk of the car. He bought the cleaver for his mother the previous weekend and forgot it
was in the trunk.
       Defendant also called two defense witnesses. The first was Carlos Medina, who
was at defendant’s house the night defendant claimed to have been fired upon. While
Medina did not hear any gun shots, he confirmed defendant ran into the house and said,
“somebody’s triggering me.” Defendant “was really agitated.” Medina believed this was
two days before defendant was arrested in this case. The second was Fiesel, who
confirmed defendant ran an errand for him the night he was arrested, taking Becky with
him, and Becky ran into the mobile home when they returned and said, “there’s a cop
right there.” Fiesel also testified he saw Deputy Martin’s vehicle enter his property and
the “red and blue lights” were turned on as Martin pulled into the driveway. Fiesel
immediately went out to his truck with his daughter and stood leaning against the seat
while Becky stood next to him. However, despite being in a position to see the entire
altercation between defendant and Martin, Fiesel offered no testimony regarding the
incident.
                                      DISCUSSION
                                             I
                                   Case No. SF10-027
       Defendant’s claim of prosecutorial misconduct is forfeited because he did not
object to the prosecutor’s alleged misconduct and request a curative admonition. (People
v. McDowell (2012) 54 Cal.4th 395, 436.) Anticipating forfeiture, defendant argues
reversal is nevertheless required because defense counsel’s failure to object and request
such an admonition amounted to ineffective assistance of counsel. Assuming counsel’s
performance fell below an objective standard of reasonableness, defendant has not carried
his burden of demonstrating a more favorable outcome is reasonably probable absent
counsel’s omissions.



                                             7
                                              A.
                                   Additional Background
       During a hearing on the prosecution’s motion to impeach defendant with prior
convictions in the event he testified, defense counsel stated: “I’m aware that my client
has, you know, a record. And so he does have some convictions that I believe would be
proper to use if they were to be sanitized. I’m going to ask the court because they’re so
similar to limit it to one conviction and indicate that he has multiple convictions. So, in
other words, if my client takes the stand, I would propose that the [prosecutor] could ask
him about whether or not he has prior felony convictions involving moral turpitude. He
could also ask whether he has multiple convictions involving a particular crime that has
been found to involve moral turpitude. But unless my client denies those two things, he
would be precluded from going into further details.” The trial court agreed that was “the
general rule” and asked the prosecutor to address the sanitation issue. The prosecutor
also agreed “sanitation is appropriate” for purposes of impeachment, but argued: “[A]t
the point at which they proffer some kind of self-defense defense, I think I get to revisit
this issue.”
       The trial court ruled defendant could be impeached with a number of his prior
convictions, with the following qualifications: “I think doing it along the lines of asking
him if he has prior convictions involving moral turpitude; if he doesn’t deny that, I think
there doesn’t seem to be a need to go into it in further detail, especially with respect to
[two weapon-related convictions] which are similar in nature. The other ones were drug
sales, I believe, and manufacturing. [¶] With respect to whether or not you get to go into
further details with respect to the specifics . . . that’s an issue for another argument. I
think once we know if the defendant is putting on a case and what that case looks like,
and then you can re-raise that issue. And we’ll address it at that time.” The prosecutor
responded: “Sure. And just so I’m not playing hide the ball, I think if there’s a proffered



                                               8
self-defense claim to the gun possession, where it gets particularly probative is the fact
that there are prior gun prosecutions and especially prior gun prosecutions
contemporaneous with drug prosecutions.” The trial court replied: “Correct. And I
know [defense counsel] has arguments in that regard as well.” Defense counsel stated:
“Yes.” The trial court concluded: “And we’ll certainly address those at a later date.”
       The following exchange took place during the prosecutor’s cross-examination of
defendant:
       “Q.    [Defense counsel] asked you about your prior convictions. You actually
have several moral turpitude felony convictions in your past, don’t you, sir? Several?
       “A.    Yes.
       “Q.    And I think three times you’ve previously been prosecuted for felony
weapons violations; is that correct, sir?
       “A.    I’m not sure.
       “Q.    Well, were you prosecuted once for felony weapons violations out of
Contra Costa County?
       “A.    Yes, I was.
       “Q.    Were you prosecuted once for felony weapons violations out of Placer
County?
       “A.    Not to my knowledge.
       “Q.    Never for weapons violations out of Placer County?
       “A.    I thought I was --
       “Q.    Perhaps with other charges?
       “A.    Yes.
       “Q.    And ever prosecuted for weapons violations out of Yuba County?
       “A.    No.
       “Q.    Or Sutter County?



                                              9
       “A.    I don’t recall the Sutter County.”
       Following a brief change of subject, the prosecutor continued with this line of
questioning: “Okay. Going back to my prior questions regarding your histories. You
don’t recall in May 2002 being arrested and prosecuted out of Yuba County for weapons
violations?” Defense counsel interjected: “Is that a charge or a conviction?” The
prosecutor responded: “I think I’m entitled to ask him about conduct. So [defense
counsel’s] concern in my opinion is moot.” Defense counsel replied: “Well, then I’ll
object as unclear. The question is unclear and confusing.” After the trial court sustained
the objection, the prosecutor asked: “Were you arrested in May 2002 for weapons
violations?” Defendant answered: “No.”
       During the prosecutor’s closing argument, he urged the jury to “consider the fact
that on other occasions the defendant’s possessed weapons not under circumstances
supporting a claim of self-defense” and “acknowledged being previously arrested for
other weapons cases and other weapons violations.”
       Following the jury’s verdict, defendant (now represented by a new attorney)
moved for a new trial and argued, among other things, (1) the prosecutor engaged in
misconduct during his cross-examination of defendant, and (2) defense counsel rendered
constitutionally deficient assistance by failing to object to the prosecutor’s improper
cross-examination. Trial counsel submitted a declaration in response to the new trial
motion in which he explained his decision not to object to the prosecutor’s cross-
examination of defendant: “It is correct that the prosecutor overstepped. I chose not to
object at that time because the jury had been admonished about convictions versus
charges, and I objected early-on in the testimony, and argued the point again to the jury
asking them to consider only the present facts. As admitted by [defendant], there is an
extensive record of conviction that was kept away from the jury as a result of my




                                             10
argument . . . , and the [trial court] also allowed us to present the necessity defense as
well.”4 The new trial motion was denied.
                                              B.
                                          Analysis
       A criminal defendant has the right to the assistance of counsel under both the Sixth
Amendment to the United States Constitution and article I, section 15, of the California
Constitution. (People v. Ledesma (1987) 43 Cal.3d 171, 215.) This right “entitles the
defendant not to some bare assistance but rather to effective assistance. [Citations.]
Specifically, it entitles him [or her] to ‘the reasonably competent assistance of an attorney
acting as his [or her] diligent conscientious advocate.’ [Citations.]” (Ibid., quoting
United States v. DeCoster (D.C.Cir. 1973) 487 F.2d 1197, 1202.) “ ‘In order to
demonstrate ineffective assistance of counsel, a defendant must first show counsel’s
performance was “deficient” because his [or her] “representation fell below an objective
standard of reasonableness . . . under prevailing professional norms.” [Citations.]
Second, he [or she] must also show prejudice flowing from counsel’s performance or lack
thereof. [Citation.] Prejudice is shown when there is a “reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceeding would have been
different. A reasonable probability is a probability sufficient to undermine confidence in
the outcome.” ’ ” (In re Harris (1993) 5 Cal.4th 813, 832-833; accord, Strickland v.
Washington (1984) 466 U.S. 668, 687 [80 L.Ed.2d 674, 693].) The burden of proving a
claim of ineffective assistance of counsel is squarely upon the defendant. (People v.
Camden (1976) 16 Cal.3d 808, 816.)



4      It is unclear to us what defense counsel meant by having “objected early-on in the
testimony.” The record reveals no objection to the prosecutor’s questioning regarding
defendant’s prior weapon-related convictions and arrests, except for asking that the
prosecutor clarify whether he was referring to charges or convictions.


                                              11
       While we agree, as defendant’s trial counsel put it, “the prosecutor overstepped,”
defendant has not carried his burden of demonstrating a reasonable probability that, but
for counsel’s failure to object and request a curative admonition regarding the
prosecutor’s cross-examination of defendant and statements made during closing
argument, the result of the proceeding would have been different.5 For the following
reasons, our confidence in the outcome remains unshaken.
       Defendant admitted to being a convicted felon in possession of the handgun and
ammunition, but claimed the defense of necessity. Even had the jury believed his
testimony in its entirety, this defense fails as a matter of law. For the defense to apply,
defendant must have “violated the law (1) to prevent a significant evil, (2) with no
adequate alternative, (3) without creating a greater danger than the one avoided, (4) with
a good faith belief in the necessity, (5) with such belief being objectively reasonable, and
(6) under circumstances in which he [or she] did not substantially contribute to the
emergency.” (People v. Pepper (1996) 41 Cal.App.4th 1029, 1035.) “By definition, the
necessity defense is founded upon public policy and provides a justification distinct from
the elements required to prove the crime. [Citation.] The situation presented to the
defendant must be of an emergency nature, threatening physical harm, and lacking an
alternative, legal course of action. [Citation.] The defense involves a determination that
the harm or evil sought to be avoided by such conduct is greater than that sought to be
prevented by the law defining the offense charged. [Citation.] Necessity does not negate
any element of the crime, but represents a public policy decision not to punish such an
individual despite proof of the crime. [Citations.]” (People v. Heath (1989) 207
Cal.App.3d 892, 900-901.)


5      This conclusion makes it unnecessary to determine whether or not the failure to
object and request such an admonition fell below an objective standard of reasonableness
under prevailing professional norms.


                                             12
         Viewing the evidence in the light most favorable to defendant, he had an adequate
alternative to buying a handgun and ammunition for protection and keeping these items
in the trunk of his car. He could have sought protection from law enforcement.
Moreover, when defendant bought the firearm and ammunition, the immediate need for
the weapon, i.e., the shooting incident at his house, had passed. Thus, there was no
longer an emergency situation. Finally, by keeping a handgun and ammunition in his car,
available for use in the event of any future altercation, defendant created a greater danger
than the one sought to be avoided. “As a matter of public policy, the Legislature has
made it a crime for convicted felons to possess firearms. [Citation.] The purpose of this
law is to protect public welfare by precluding the possession of guns by those who are
more likely to use them for improper purposes. [Citation.] Due to the potential for death
or great bodily injury from the improper use of firearms, public policy generally abhors
even momentary possession of guns by convicted felons who, the Legislature has found,
are more likely to misuse them.” (People v. Pepper, supra, 41 Cal.App.4th at pp. 1037-
1038.)
         With respect to defendant’s conviction for possession of a deadly weapon, i.e., the
meat cleaver, his defense was that he bought the cleaver for the innocent purpose of
giving it to his mother and forgot he had left it in his trunk. This defense does not fail as
a matter of law. (See People v. Fannin (2001) 91 Cal.App.4th 1399, 1404 [“if the object
is not a weapon per se, but an instrument with ordinary innocent uses, the prosecution
must prove that the object was possessed as a weapon”].) The jury simply did not
believe defendant’s explanation for possessing the cleaver. This is not surprising given
defendant’s version of the traffic stop is inherently implausible. Moreover, despite
Fiesel’s presence outside the mobile home during the entire altercation between
defendant and Deputy Martin, he offered no testimony to corroborate defendant’s version
of events. Indeed, the brief testimony Fiesel did offer contradicted defendant’s



                                              13
testimony. Defendant testified Martin came up the driveway at a high rate of speed,
pulled up in front of defendant’s car with the high-beam headlights on, and then waited
“a few minutes” before getting out of his vehicle. According to defendant, Martin did not
turn on his emergency lights until after the first scuffle and before the pepper spray was
used. Fiesel, however, testified the “red and blue lights” were turned on as Martin pulled
into the driveway. Thus, defendant’s own witness contradicted his testimony. And the
jury would reasonably have questioned why Fiesel did not provide any account of the
altercation between defendant and Martin unless this would also have contradicted
defendant’s version of events. (See People v. Redmond (1981) 29 Cal.3d 904, 911
[“entirely proper for a jury, during its deliberations, to consider logical gaps in the
defense case”].) The jury was also properly informed defendant had multiple felony
convictions, which weighed against his credibility.
       In short, while the prosecutor improperly elicited the fact two of defendant’s
convictions were for felony weapons violations, and insinuated defendant was arrested
for similar crimes on two other occasions, we conclude there is no reasonable probability
the jury’s assessment of defendant’s credibility would have changed had defense counsel
successfully objected to the improper questions posed during cross-examination and
statements made during closing argument.
                                              II
                                     Case No. SF10-165
       Defendant’s claims of sentencing error have merit, although we disagree with his
proposed remedy.
                                              A.
                                         Section 654
       Defendant was sentenced to serve a term of four years eight months for the crimes
committed in case No. SF10-165 (subordinate to the term already imposed in case



                                              14
No. SF10-027), calculated as follows: one year for transportation of methamphetamine,
plus eight months for possession of methamphetamine for sale (one-third the middle term
for each offense), plus a three-year enhancement term for one prior narcotics conviction.
Defendant claims section 654 required the trial court to stay execution of the eight-month
sentence imposed for possession of methamphetamine for sale and the attached three-
year prior narcotics conviction enhancement, leaving an executed sentence of one year
for this case. The Attorney General agrees section 654 applies, but argues the trial court
should have stayed execution of the one-year sentence for transportation of
methamphetamine, leaving an executed sentence of three years eight months. We agree
with the Attorney General.
       Section 654 provides in relevant 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, subd. (a).)
       This section “prohibits punishment for two crimes arising from a single indivisible
course of conduct. [Citation.] If all of the crimes were merely incidental to, or were the
means of accomplishing or facilitating one objective, a defendant may be punished only
once. [Citation.] If, however, a defendant had several independent criminal objectives,
he [or she] may be punished for each crime committed in pursuit of each objective, even
though the crimes shared common acts or were parts of an otherwise indivisible course of
conduct. [Citation.] The defendant’s intent and objective are factual questions for the
trial court, and we will uphold its ruling on these matters if it is supported by substantial
evidence. [Citation.]” (People v. Perry (2007) 154 Cal.App.4th 1521, 1525; People v.
Correa (2012) 54 Cal.4th 331, 341.)
       Defendant argues, and the Attorney General concedes, “there is insufficient
evidence to support the implied finding by the trial court that [defendant] harbored



                                              15
separate criminal intents and objectives with regards to the transportation and possession
of methamphetamine charges. It is undisputed that the only methamphetamine recovered
was found on [defendant’s] person. There was not any additional methamphetamine
found in [defendant’s] vehicle at the time of the traffic stop or found anywhere else in
this case.” We agree. The evidence shows the possession and transportation offenses
arose out of the same indivisible course of conduct and were incident to the same
objective. (See People v. Avalos (1996) 47 Cal.App.4th 1569, 1583 [possession for sale
and transportation of methamphetamine not separately punishable].) Thus, defendant
must be “punished under the provision that provides for the longest potential term of
imprisonment,” but not both. (§ 654, subd. (a).)
       But this is where our agreement with defendant ends. According to defendant,
“[b]ecause the one-year term imposed [for transportation] was the longer term of
punishment, the eight-month term imposed [for possession for sale] should have been
stayed under section 654.” He then argues that if “the sentence for [possession for sale]
is stayed under section 654, no punishment is imposed, and as a corollary, [he] may not
be punished for the enhancement to that underlying offense,” i.e., the three-year prior
narcotics conviction enhancement. (See People v. Smith (1985) 163 Cal.App.3d 908,
914.) We disagree section 654 requires defendant be given such a windfall. “The
purpose of section 654 is to ensure that a defendant’s punishment is commensurate with
his [or her] culpability and that he [or she] is not punished more than once for what is
essentially one criminal act. [Citation.] Courts have devised various rules for proper
application of section 654, but ‘[b]ecause of the many differing circumstances wherein
criminal conduct involving multiple violations may be deemed to arise out of an “act or
omission,” there can be no universal construction which directs the proper application of
section 654 in every instance.’ [Citation.]” (People v. Kwok (1998) 63 Cal.App.4th
1236, 1252.) In these circumstances, the provision providing for the longest potential



                                             16
term of imprisonment is the enhancement provision, which is attached to the sentence
imposed for possession for sale. Accordingly, the trial court should have stayed
execution of the one-year sentence imposed for transportation. We modify the judgment
accordingly.
                                             B.
                                       Section 1385
       Finally, defendant argues the judgment must be modified to strike the two prior
narcotics conviction enhancements the trial court improperly “stayed” pursuant to
section 1385. The Attorney General agrees. We concur. “Ordinarily, an enhancement
must be either imposed or stricken ‘in furtherance of justice’ under . . . section 1385.
[Citations.] The trial court has no authority to stay an enhancement, rather than strike
it―not, at least, when the only basis for doing either is its own discretionary sense of
justice. [Citations.]” (People v. Lopez (2004) 119 Cal.App.4th 355, 364.) Here, in
staying two of defendant’s prior narcotics conviction enhancements, the trial court stated:
“In addition, allegations made pursuant to [Health and Safety Code section] 11370.2 of
prior convictions, . . . two of the prior convictions are from case 997452MC, committed
in June of 1996 in Contra Costa County. Because of the remoteness of those and the age,
those are being stayed pursuant to [section] 1385.” We conclude the trial court simply
misspoke when it said “stayed” rather than “stricken.” The judgment is modified to
strike these enhancements.
                                      DISPOSITION
       The judgment entered in case No. SF10-027 is affirmed. The judgment entered in
case No. SF10-165 is modified as follows: (1) sentence imposed for transportation of
methamphetamine is stayed pursuant to Penal Code section 654; and (2) two Health and
Safety Code section 11370.2 enhancements are stricken pursuant to Penal Code
section 1385. As modified, the judgment is affirmed. The trial court is directed to



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prepare an amended abstract of judgment to reflect these modifications and to send a
certified copy to the Department of Corrections and Rehabilitation.



                                                      HOCH            , J.



We concur:



      ROBIE        , Acting P. J.



      BUTZ         , J.




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