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People v. Bacon

July 1, 2010

THE PEOPLE, PLAINTIFF AND RESPONDENT,
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. (Los Angeles County Super. Ct. No. MA043109)

The opinion of the court was delivered by: Flier, J.

CERTIFIED FOR PARTIAL PUBLICATION*fn1

On count 1, appellant Ronnie Eugene Bacon was convicted of possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a) (section 11377(a)).*fn2 On count 2, he was convicted of furnishing or giving away a controlled substance (§ 11379, subd. (a) (section 11379(a)). 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 a request for additional custody credit. That issue has been raised before this court via supplemental briefing. We stay count 1 pursuant to Penal Code section 654, award 10 days of additional local conduct credits and otherwise affirm.*fn3

FACTS*fn4

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 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*fn5

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 ...


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