Filed 10/8/13 P. v. Bacon CA2/8
Opinion on remand from Supreme Court
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                 DIVISION EIGHT

THE PEOPLE,                                                          B214314

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. MA 043109)
         v.

RONNIE EUGENE BACON,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County. Charles
Chung, Judge. Affirmed as modified.


         Tracy A. Rogers, under appointment by the Court of Appeal, for Defendant and
Appellant.

         Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan D. Martynec
and Robert M. Snider, Deputy Attorneys General, for Plaintiff and Respondent.


                                                       ******
       We revisit the appeal of Ronnie Eugene Bacon after the California Supreme Court
transferred the case back to this court. On count 1, appellant was convicted of possession
of a controlled substance (Health & Saf. Code, § 11377, subd. (a) (section 11377(a))).1
On count 2, he was convicted of furnishing or giving away a controlled substance
(§ 11379, subd. (a) (section 11379(a)).2 He was sentenced to prison for three years on
count 1, with a concurrent term of three years on count 2.
       Appellant contends that (1) count 2 must be reversed because his actions did not
constitute a violation of section 11379(a), and (2) count 1 must be stricken because it is a
lesser included offense of count 2.
       Subsequent to the initial briefing, the trial court denied appellant’s request for
additional custody credits. During our initial consideration of this appeal, the issue was
raised via supplemental briefing. In our opinion filed on July 1, 2010, we awarded
appellant additional conduct credits pursuant to then recently amended Penal Code
section 4019 (Senate Bill No. 18). (Pen. Code, § 4019, subds. (b) & (c), as amended by
Stats. 2009, 3d Ex. Sess. 2009-2010, ch. 28, § 50; Sen. Bill No. 3X 18 (2009-2010 3d Ex.
Sess.) § 50.)3 Our ruling applied Senate Bill No. 18 retroactively.
       Our initial opinion stayed appellant’s sentence on count 1 and awarded 10 days of
additional conduct credits but otherwise affirmed the trial court’s judgment. Appellant
filed a petition for review with the California Supreme Court, which the court denied.
However, our Supreme Court ordered review on its own motion and deferred further


1     Subsequent statutory references are to the Health and Safety Code unless
otherwise stated.
2      The amended information originally named the section 11379(a) violation as
count 1 and the section 11377(a) violation as count 2. Before the trial started, an oral
amendment by the prosecutor made the section 11377(a) violation count 1 and the
section 11379(a) violation count 2.
3      Senate Bill No. 18 was only in effect for eight months and has since been
superseded, as discussed further in footnote 4, post. (People v. Brown (2012) 54 Cal.4th
314, 317-318, 320.)


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action pending consideration and disposition of the conduct credits issue in People v.
Brown (Mar. 16, 2010, C056510), review granted June 9, 2010, S181963. Thereafter, in
People v. Brown, supra, 54 Cal.4th 314, our high court held Senate Bill No. 18 must be
applied prospectively, and the equal protection clauses of the federal and state
Constitutions (U.S. Const., 14th Amend.; Cal. Const., art. I, § 7, subd. (a)) do not require
retroactive application. (54 Cal.4th at pp. 318, 325-329.)
       The Supreme Court transferred the case back to this court with directions to vacate
our former decision in this case and reconsider the cause in light of its decision in People
v. Brown, supra, 54 Cal.4th 314. No party has filed a supplemental brief in this court
following the Supreme Court’s order transferring the cause to this court. (Cal. Rules of
Court, rule 8.200(b).) In accordance with the Supreme Court’s directions, we vacate our
former decision in this matter and reconsider part 3. of the Discussion, but in all other
respects, we reissue our original opinion in this matter. We stay count 1 pursuant to
Penal Code section 654 but otherwise affirm the judgment.
                                          FACTS
1. Prosecution Evidence
       While on patrol on August 11, 2008, two deputy sheriffs saw that a group of
people were standing next to a van that was parked in the parking lot of a bar. The
deputies left their car and walked toward the van because its license plate had expired. A
woman frantically moved around inside the van, as if trying to hide something.
Appellant stood outside the van, apparently warning the woman of the deputies’
approach. Appellant then walked into the bar with a woman later identified as Jetti
Coleman. The deputies saw a plastic bag of methamphetamine in plain view in the van.
They found various items relating to narcotics transactions when they searched the van
and the people who were still standing around it.
       The first two deputies gave a description of appellant and Coleman to two other
deputies who arrived at the scene. The latter two deputies walked into the bar to detain
appellant and Coleman. They saw appellant and Coleman standing near the bar’s



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bathroom. Appellant handed a small plastic bag to Coleman, who immediately went into
the bathroom. Appellant started yelling that the deputies had no right to search him. One
of the deputies followed Coleman into the bathroom. Coleman was standing next to the
trash can. Inside the trash can, the deputy found a plastic bag that contained a usable
amount of methamphetamine. No drugs were found on appellant.
2. Defense Evidence
       Danielle Kitchen testified that she was inside the van when the deputies arrived in
the parking lot. The deputies said that people who were on probation or parole were to
stay outside, and everyone else was to go back into the bar or leave. Appellant was not
on probation or parole, so he went into the bar. Kitchen also testified that she had used
methamphetamine before. She also had previously been convicted of possessing a
controlled substance for sale and giving false identification to the police.
                                       DISCUSSION
1. The Issue Regarding Count 2
       Section 11379(a) penalizes “every person who transports, imports into this state,
sells, furnishes, administers, or gives away, or offers to transport, import into this state,
sell, furnish, administer, or give away, or attempts to import into this state or transport
any controlled substance . . . .”
       The language of count 2 in the amended information named all of the crimes in
section 11379(a). The prosecutor clarified in opening statement and final argument that
count 2 concerned “[t]he giving of drugs to somebody else.” The prosecutor further
explained that count 2 was based on appellant’s handing the drugs to Coleman, who went
into the bathroom to hide or dispose of them. The specific offense for which appellant
was prosecuted was therefore “[t]he crime of furnishing, administering, or giving away a
controlled substance . . . .” (2 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Crimes
Against Public Peace and Welfare, § 100, p. 615.)
       Appellant argues that he did not furnish or give away the drugs, within the
meaning of section 11379(a), because the People had to prove that he handed the drugs to



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Coleman for the purpose of consumption or further sale, but the evidence showed that he
handed the drugs to Coleman for the purpose of destruction or concealment. The
contention lacks merit. The People had to prove that appellant gave away a controlled
substance with knowledge of its presence and nature as a controlled substance. (CALJIC
No. 12.02; see 2 Witkin & Epstein, Cal. Criminal Law, supra, § 100, pp. 615-616; People
v. Castro (1959) 167 Cal.App.2d 332, 337.) There is no requirement that the drugs be
given away for a specific purpose.
       Respondent argues that a violation of section 11379(a) was proven because
appellant transported the bag of methamphetamine when he walked with it from the
parking lot into the bar. (See, e.g., People v. Ormiston (2003) 105 Cal.App.4th 676,
682.) Appellant counters in the reply brief that transportation cannot be used as the basis
for affirming count 2 because the People relied below on the crime of furnishing or
giving away the drug and not the crime of transporting it. We need not analyze the
problem in detail because there was substantial evidence that appellant gave away the
methamphetamine, and that is the crime on which the People relied below.
2. The Issue Regarding Count 1
       As previously indicated, count 1 alleged a violation of section 11377(a),
possession of a controlled substance, while count 2 involved a violation of section
11379(a), based on furnishing or giving away a controlled substance.
       The jury was instructed that count 1 was a lesser offense of count 2, and if it found
appellant guilty on count 2, all other verdict forms were to be left unsigned. Even so, the
jury returned guilty verdicts on both counts 1 and 2. At the sentencing hearing, the trial
court imposed concurrent three-year sentences on both counts.
       Appellant contends that count 1 must be stricken, as count 1 is a lesser included
offense of count 2, and multiple convictions cannot be based on necessarily included
offenses. (People v. Medina (2007) 41 Cal.4th 685, 702; People v. Pearson (1986) 42
Cal.3d 351, 355.) Respondent counters that count 1 is not a lesser included offense of
count 2, but count 1 must be stayed due to Penal Code section 654’s prohibition against



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multiple punishment. (People v. Ortega (1998) 19 Cal.4th 686, 692, disapproved on
another point in People v. Reed (2006) 38 Cal.4th 1224, 1228-1229, 1231.)
       To decide whether the correct result is to strike count 1 or to stay it, we must
determine whether count 1 is a lesser included offense of count 2.
       There are two possible tests. The first is whether the statutory elements of the
greater offense are such that the greater offense cannot be committed without also
committing the lesser. The second is whether the facts actually alleged in the accusatory
pleading include all the elements of the lesser offense, so that the greater offense cannot
be committed without also committing the lesser offense. (See People v. Birks (1998)
19 Cal.4th 108, 117.) If the greater and lesser offenses appear in the charges, as they do
here, only the statutory elements test is used. (People v. Reed, supra, 38 Cal.4th at
p. 1231.)
       Possession of a controlled substance is not a necessarily lesser included offense of
selling that same substance because the elements of possession and a usable quantity
exist for the former and not the latter crime. (People v. Murphy (2007) 154 Cal.App.4th
979, 984 (Murphy); People v. Peregrina-Larios (1994) 22 Cal.App.4th 1522, 1524
(Peregrina-Larios).) “For example, one can broker a sale of a controlled substance that
is within the exclusive possession of another.” (Murphy, at p. 984.)
       Appellant cites People v. Tinajero (1993) 19 Cal.App.4th 1541, 1547, which
stated that possession for sale and simple possession of cocaine are lesser included
offenses of the sale or transportation of cocaine. We do not find Tinajero to be
persuasive because, unlike Peregrina-Larios and Murphy, Tinajero did not recognize that
an aider and abettor can sell a drug without possessing it.
       Similarly, due to the possibility of aiding and abetting, a defendant can furnish or
give away a controlled substance without actually possessing it. For example, “one who
acts as a go-between or agent of either the buyer or seller clearly may be found guilty of
furnishing as an aider and abettor to the seller.” (People v. Edwards (1985) 39 Cal.3d
107, 114, fn. 5.)



                                              6
       We therefore conclude that the offense in count 1 is not a lesser included offense
of the offense in count 2. That conclusion means that count 1 must be stayed pursuant to
Penal Code section 654 and not stricken.
3. The Credits Issue
       Appellant spent 18 days in jail prior to the sentencing hearing. The issue is the
appropriate formula for computing local conduct credit. The crimes occurred on
August 11, 2008. When the court sentenced appellant on February 9, 2009, he received
26 days of total presentence credits, which was 18 days of actual credits and eight days of
local conduct credits.
       That computation of local conduct credits complied with Penal Code former
section 4019, subdivision (f) (section 4019(f)), which provided that “a term of six days
will be deemed to have been served for every four days spent in actual custody.”
Pursuant to that language of former section 4019, a “total of two days of conduct credit”
applied to “every four-day period of incarceration.” (People v. Dieck (2009) 46 Cal.4th
934, 939.)
       Effective January 25, 2010, the Legislature amended Penal Code former section
4019(f) through Senate Bill No. 18, so that, except for crimes not involved here, “a term
of four days will be deemed to have been served for every two days spent in actual
custody.” (Pen. Code, § 4019, subds. (b) & (c), as amended by Stats. 2009, 3d Ex. Sess.
2009-2010, ch. 28, § 50; Sen. Bill No. 3X 18 (2009-2010 3d Ex. Sess.) § 50.) The
amendment did not include a savings clause.4
       While this appeal was pending, appellant applied to the trial court for 10 more
days of local conduct credit, based on a retroactive application of Senate Bill No. 18. If
Senate Bill No. 18 applied, appellant would have had 36 days of total presentence credit,

4       “[Senate Bill No. 18] remained in effect only until September 28, 2010, when the
Legislature further amended the statute to restore the original, lower credit-earning rate.
(Stats. 2010, ch. 426, § 2.) Thereafter, the Legislature amended the statute yet again to
raise the rate. (Stats. 2011, ch. 15, § 482, eff. April 4, 2011.)” (People v. Brown, supra,
54 Cal.4th at p. 318, fn. 3.)


                                             7
through the combination of 18 days of actual custody and 18 days of local conduct credit.
The trial court refused to award the additional credit because appellant was convicted and
sentenced prior to the effective date of Senate Bill No. 18.
       In People v. Brown, supra, 54 Cal.4th 314, our Supreme Court rejected appellant’s
argument and held Senate Bill No. 18 must be applied prospectively, and the equal
protection clauses of the federal and state Constitutions (U.S. Const., 14th Amend.; Cal.
Const., art. I, § 7, subd. (a)) do not require retroactive application. (People v. Brown,
supra, at pp. 318, 325-329.) Accordingly, we hold Senate Bill No. 18 did not apply
retroactively and appellant is not entitled to additional conduct credits. (People v. Brown,
supra, at pp. 318, 325-329.)
                                      DISPOSITION
       The trial court shall prepare an amended abstract of judgment to show that
execution of sentence on count 1 is stayed pursuant to Penal Code section 654 pending
service of sentence on count 2, and the stay shall become permanent when service of
sentence on count 2 is completed. A copy of the amended abstract of judgment shall be
forwarded to the Department of Corrections and Rehabilitation. As so modified, the
judgment is affirmed.




                                                  FLIER, J.
WE CONCUR:




       RUBIN, Acting P. J.




       GRIMES, J.




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