P. v. Manila 4/28/06 CA5

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: F046611

Case Date: 09/20/2006

Preview:Filed 4/28/06

CERTIFIED FOR PARTIAL PUBLICATION* IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT THE PEOPLE, F046611 Plaintiff and Respondent, (Super. Ct. No. 122031) v. SITHIXAY MANILA, Defendant and Appellant.

OPINION

APPEAL from a judgment of the Superior Court of Tulare County. Valeriano Saucedo, Judge. Susan Burke, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, Wanda Hill Rouzan, Deputy Attorney General, for Plaintiff and Respondent. -ooOooThis case again raises the unsettled question of whether Penal Code section 654 requires the trial court to stay one of two sentences imposed for the same act where one to California Rules of Court, rules 976(b) and 976.1, this opinion is certified for publication with the exception of part IV.
*Pursuant

of the sentences was for an enhancement, not a punishment for a freestanding offense. In the published portion of this opinion, we hold that section 654 was applicable because the enhancement was based on defendant's conduct in committing the crime--not a status such as having a record of prior convictions. We also reject the People's argument that the two sentences were not based on a single indivisible course of conduct with a single objective and accept defendant's contention regarding which of the sentences must be stayed. In the unpublished portion of the opinion, we explain that we will remand to permit the trial court to determine, in light of our decision, whether one of the other sentences it imposed should run consecutively, subject to the limitation that the aggregate sentence on remand not exceed the original sentence. FACTUAL AND PROCEDURAL HISTORIES Police entered the home of defendant Sithixay Manila's parents to search for narcotics pursuant to a search warrant. Defendant fled through the back door and was apprehended outside. In a bedroom, officers found a loaded handgun under a mattress, $1,500 in $100 bills in a shirt in the closet, two cell phones, two digital scales, and a bag containing five bindles of an off-white substance. Mail addressed to defendant and a wallet containing defendant's California identification card were also in the room. More bindles of an offwhite substance were found elsewhere in the house. The contents of the bindles were later tested and found to be cocaine base and methamphetamine. Defendant's mother told officers the bedroom was defendant's, though she later said other people also used it. The District Attorney filed an information charging four counts: (1) possession of cocaine base for sale (Health & Saf. Code,

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