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Name: People v. Briones
Case #: B195452
Court: CA Court of Appeal
District 2 DCA
Division: 6
Opinion Date: 10/09/2008

Where there is a single conspiracy to possess several kinds of drugs, a defendant can only be sentenced for a single offense of conspiracy. Appellant borrowed money from a friend to buy drugs. After he bought the drugs, he invited the friend to his motel room to see them. These acts resulted in appellant’s conviction for possession of heroin for sale, conspiracy to possess heroin for sale, possession of methamphetamine, and conspiracy to possess methamphetamine for sale. The court sentenced appellant to 25 to life for possessing heroin for sale, a concurrent term of 25 to life for possessing methamphetamine for sale, a consecutive 25 to life for conspiring to possess methamphetamine for sale, and a concurrent 25 to life term for conspiring to possess heroin for sale. Appellant argued, and respondent conceded the trial court erred in sentencing on both counts of conspiracy because there was only a single conspiracy to possess both types of narcotics. The appellate court struck one of the terms imposed for conspiracy. (People v. Liu (1996) 46 Cal.App.4th 1119.) [Editor’s note: It seems either the conspiracy conviction (not the sentence) should have been stricken, or the sentence stayed.]
Penal Code section 667, subdivision (c)(6) does not allow consecutive sentences for conspiracy and drug possession for sale where the sale of the drugs was the object of the conspiracy. Appellant argued the court was mistaken in its belief that mandatory consecutive sentences were required under section 667, subdivision (c)(6) which mandates consecutive sentences for current felony convictions “not committed on the same occasion, and not arising from the same set of operative facts.” Respondent claimed consecutive sentences were required because the conspiracy occurred on an earlier date than the substantive offense (i.e., when the money changed hands). The appellate court agreed consecutive sentences were not required. Even though a conspiracy requires only an agreement and an overt act, it does not necessarily end upon the completion of the first overt act. It continues while the agreement continues. Here, the conspiracy and the possession of the drugs for sale arose from the same set of operative facts, so sentencing under section 667, subdivision (c)(6) was not required. Further, since possessing the drugs in order to sell them was the object of the conspiracy, the sentence on the conspiracy count should have been stayed.