P. v. Childers

Filed 6/8/07 P. v. Childers CA4/1

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California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Harry M. Elias, Judge. Affirmed.

Dean A. Childers appeals his convictions of possessing marijuana for sale (Health & Saf. Code,[1]  11359), cultivating marijuana ( 11358) and possessing more than 28.5 grams of marijuana ( 11357, subd. (c)). The trial court suspended imposition of sentence and granted probation on the felony counts of possessing marijuana for sale and cultivating marijuana. On the misdemeanor count of possessing more than 28.5 grams of marijuana, the court denied probation and imposed a sentence of 49 days, the amount of time Childers had already served.

On appeal, Childers contends there is insufficient evidence to support a finding his cultivation and possession of marijuana exceeded his current medical needs, the prosecutor's theory of conviction was both legally and factually inadequate, the court erred in failing to instruct the jury on principles relating to his defense, and the court erred in imposing rather than staying the term for possessing more than 28.5 grams of marijuana. We affirm the judgment.

FACTS

Beginning in January 2005, a Riverside County sheriff's detective and others conducted surveillance on Beau Attride. Several times, Childers was observed with Attride, including at Attride's hydroponics store in Temecula. The Riverside detective contacted the San Diego County narcotics task force about Childers and directed them to a four-bedroom house in Fallbrook.

On April 6, 2005, after learning Childers paid the electric bill on the property, Detective Larry Van Wey of the San Diego County Sheriff's Department and other members of the task force went to the Fallbrook house, which Childers had rented beginning in July 2003 for $1,900 per month. A trained narcotics police dog responded positively for the presence of marijuana at the house. The task force saw Childers drive up in a new Ford Excursion and enter the house. He was alone in the house for about an hour. When Childers left, Detective Van Wey followed him, lost sight of him for about 10 to 15 minutes but then drove to a residence in Oceanside owned by Childers and his wife and found Childers's vehicle parked in the driveway.

In the early morning hours of April 11, Detective Van Wey returned to the Fallbrook house. He heard the sounds of fans and water pumps in the garage. He also smelled the wet, pungent odor of marijuana. He believed marijuana was being grown on the property.

On April 14, 2005, Detective Van Wey and others went to the Fallbrook property to execute a search warrant. After waiting two to three hours and seeing no activity on the property, the officers, knocked on a back door that opened into the garage, announced their presence and forced open the door when they received no response. There was no one in the residence. In the garage, they found equipment, including a large fan, and saw holes in the ceiling. There were also many two-by-four boards that were wet and appeared to have been previously arranged to hold plastic trays for growing. There were numerous trash cans full of rock used as a growing medium, that were still wet. There were stains on the garage floor. Given the holes in the ceiling for exhaust fans and his observations on April 11, Detective Van Wey believed that the garage had previously been used to grow marijuana.

In the adjoining kitchen, there was no furniture and only a small refrigerator. In the living room, there was a bed with fans, growing equipment, and bags of charcoal sitting on it. There were no sheets, pillows or blankets on the bed or elsewhere in the house.

In one bedroom, they found two "mother" plants of marijuana, from which cuttings are taken to grow additional plants. In another room, there were two gym-like lockers with ten shelves with an exhaust fan. In another room, there were two large water reservoirs with hoses connecting to a back bedroom where the police found 40 mature marijuana plants. It was unusual to have water reservoirs in a separate room; normally marijuana growers place water reservoirs directly beneath the growing trays, which can lead to problems such as mold. The plants were of "exceptional" quality and ready for harvesting.

The police found various documents indicating Childers's dominion and control over the property. The police also found a document with a graph apparently used to keep track of the amount of nutrients mixed into the water and pumped into the growing trays and a document that appeared to contain notations about growing the marijuana, including keeping track of the number of plants in the particular rooms, which seemed to indicate there had been 150 plants in the garage.

Every room in the house had been modified. Mylar had been attached to the walls to reflect more light. There was a PH meter in the bathroom for measuring the acidity of the soil. The equipment in the house was estimated to be worth $6,000 to $10,000. Detective Van Wey, based on his observations and experience, believed Childers was growing the marijuana to sell it.

Childers arrived at the house while the warrant was being executed. He jogged up to task force Special Agent John Gieson of the Drug Enforcement Administration and a tow truck driver and asked, "What's going on?" He did not exhibit any signs of having smoked marijuana and no marijuana, rolling papers, pipes or any other marijuana paraphernalia were found on his person or in his truck.

After being given and waiving his Miranda rights, Childers spoke to Detective Van Wey. He said he had been growing marijuana for five to six months, using different rooms in the house. He said he had two successful "grows." He told Detective Van Wey that he had personally done all the work modifying the house and setting up the hydroponics equipment.

Childers stated he smoked eight to ten joints per day. He told Detective Van Wey he had suffered a back injury in his garage door business, was unable to work and had filed a worker's compensation claim. DetectiveVan Wey, however, did not notice any signs of physical impairment in Childers while they were at the house. Childers began to limp when he was taken to the police station; he had not been limping earlier. Childers said he received a license as a medical marijuana caregiver and patient from a doctor in Los Angeles, whose name he could not remember. He said he was growing the marijuana for himself. He did not mention growing it with other people and there was no paperwork or documentation relating to using marijuana for medical purposes.

A representative from San Diego Gas and Electric found wiring in the house that it would not have authorized. Childers had signed up for service in early July 2003 and the electric consumption at the house was "pretty standard" until April 2004 when the usage was considerably more than comparable houses; this above-normal usage continued to March 2005.

Special Agent Gieson, who participated in the search warrant, testified that each of the 40 plants found in the house were ready for harvesting and would yield two to four ounces 57 to 114 grams of usable marijuana. A typical joint contains .5 grams of marijuana. Using the low yield figure of 2 ounces or 57 grams per plant, each plant would yield 114 joints and 40 plants would yield 4,560 joints. Based on a growing cycle of 45 to 60 days or five harvests per year, the yield would be 22,800 joints if each plant yielded 57 grams of usable marijuana. Assuming a person smoked 10 joints containing .5 grams of marijuana every day for a year, he or she would smoke 3,650 joints annually and have a surplus of 19,150 joints or a surplus of over 21 pounds. Marijuana grown indoors sells wholesale in San Diego for $4,400 to $4,800 per pound. Using the low-yield figures, with a surplus just over 21 pounds, the wholesale value of the plants found in the Fallbrook house was $84,000. If the higher yield figure of four ounces per plant were used, the wholesale value was $169,000.

In Special Agent Gieson's experience, people who grow for personal use typically have five or six plants in a closet, garage or in an out building. They do not "go to the extremes" of renting a whole house.

There was also evidence that smoking eight to 10 joints per day was not consistent with using marijuana for medical reasons. Detective Van Wey testified that marijuana stays in an individual's system for four to six hours and that a person who smoked six to eight joints per day would have to smoke continuously, 24-hours-per day. Marijuana degrades over time and in a year's time, it would degrade in quality by more than 50 percent.

Evidence was presented that Childers had not worked since 2002, his wife had an income of $1,400 per month, he was paying a mortgage on a house in Oceanside as well as rent and utilities on the Fallbrook residence, and had recently purchased the Ford Explorer and a fishing boat.

Defense

Childers testified he injured his back while working in a garage door business in 2002.[2] He filed a worker's compensation claim because he was unable to work. As a result of the injury, he had severe pain, trouble walking, sleeping, sitting for long periods, and bending over. He does not jog because of the pain.[3] Epidural injections did not help and various pain medications made him ill and gave him migraines. He had back surgeries, but the pain persisted, and it remained a "7" or "8" on a scale of 10. Through research on the Internet, he learned that marijuana might help the pain. He had not used marijuana previously because he did not want it around his children and he has a sister who had "gotten into it and gotten deeper into drugs." He researched the medical use of marijuana to make sure everything he did was legal.

In January 5, 2005, Childers and his cousin Shawn Johnson went to Dr. William Eidelman in Los Angeles. Dr. Eidelman took a medical history and examined Childers.

He issued letters recommending marijuana as a medical treatment for both Childers and Shawn. Three or four days later, Childers's friend, Ryan Upum, went to Dr. Eidelman and obtained a letter authorizing marijuana use. They went to cannabis clubs in Los Angeles but found the marijuana was expensive ($400 per ounce) and the quality was "horrible." The three of them decided it would be cheaper to rent a property and grow their own marijuana.

Childers chose to rent a house in Fallbrook so his son could go to high school in Fallbrook rather than his current school, which Childers believed was one of the "worst" schools. Childers stated he moved into the Fallbrook house in July 2003 when he separated from his wife and lived there off and on. When he moved out of the house, Johnson moved in. There had previously been furniture in the house.

Upum and Johnson did all the heavy work installing the growing and ventilation equipment. Childers did not tell Detective Wey about their involvement because he did not want to get them in trouble if he was doing something wrong. They started out with 12 plants. The first four times they tried to grow marijuana, they were unsuccessful, having problems with plants initially dying from the lack of ventilation, going to seed, being pollinated by an inferior strain, or not being very productive.

In the fifth grow, they had 40 plants. They had some problems with bugs and mold. They harvested approximately two pounds of usable marijuana. At the time of the search warrant, they were on their sixth grow. His intent was to continue growing marijuana in the same amount as found at the time the search warrant was executed.

Childers testified an estimate of two ounces of usable marijuana per plant was reasonable if it were "a really good plant." He preferred to use marijuana in food, rather than to smoke it because it lasted longer. More marijuana is used in food, and he would use two grams in food versus a half gram to a gram when smoking. He did not tell Detective Van Wey about using marijuana in food because the detective did not ask him about it.

Childers also testified about his financial circumstances. When he was laid off from work, his employer told him he would have to cash out his 401(k) account, which he did. This amounted to about $19,000, which he deposited in a bank account. He used $12,500 of this money to purchase a fishing boat in September 2004. The same month, he also refinanced his house and used about $23,000 in cash to pay bills and other expenses. In February 2005, he refinanced the house or obtained an equity line of credit and used $175,000 or $110,000 for necessities. In April or March 2005, he bought his wife a new motorcycle as an anniversary present. The Ford Excursion was new, costing $32,000 and was being financed at $800 per month, but Childers was not making the payments. A garage door company owned by Childers and his brother in Cathedral City was making the payments on the Excursion. Childers received disability checks amounting to about $2,500 monthly. His wife's income was about $3,000 monthly. They also received money from his wife's uncle who was staying in the house and paying for food and rent.

Childers denied cultivating marijuana for sale. He testified that the 100 to 200 pots found in the garage had been given to them and had not been used. He claimed the police put various equipment on the one bed in the house. He asserted the detectives would be lying if they said there was no food in the house. He speculated that the rocks in the trash can were wet from general humidity in the air or from the sprinklers, as they had not been used during the last three grows.

On cross-examination, Childers admitted that although he had testified he had conducted research on the Internet to ensure that his marijuana cultivation and possession was legal, he started growing marijuana in April 2004, well before he obtained a letter from a physician authorizing medical marijuana use in January 2005. He testified he believed the information on the Internet indicated a "license" from a physician was only recommended and not necessary.

Dr. Eidelman testified that after taking a medical history and examining Childers, he concluded Childers was a "classic candidate" for medical marijuana use; he "fit all of the qualifications." During Childers's testimony, it had been brought out that Childers had two different letters from Dr. Eidelman, one of which authorized him to be in possession of more than eight ounces of marijuana. Dr. Eidelman testified he provided both letters to Childers on January 5. He also issued letters to Johnson and Upum. He did not have Johnson's file with him. As for Upum, Dr. Eidelman's medical records showed that Upum complained only about a lack of appetite and stress during the past year. He did not test Upum's blood or otherwise try to determine a physical cause of his symptoms nor did he recommend counseling, instead he issued the letter authorizing marijuana use.

In one year, Dr. Eidelman issued a "couple of thousand" approval recommendations and denied approval only to a small number of patients. He was on probation with the Medical Board of California, which had determined his evaluations as well as his medical histories fell below the standards of care.

Rebuttal

The Riverside County detective who had conducted the surveillance on Attride and had observed Childers in February and March 2005, testified he never observed Childers limping, having any physical impairment, or problems sitting in a vehicle. On one occasion, he saw Childers use a ladder to go onto the roof of Attride's hydroponics business, walk across the roof to what appeared to be an air conditioning unit and then bend over the unit as if he were working on it. Childers walked back and forth from the air conditioning unit to the ladder two or three times.

DISCUSSION

I

Sufficiency of Evidence

Childers contends the evidence is insufficient to support a finding he did not cultivate or possess the marijuana for personal medical use.

Under the Compassionate Use Act (the Act), a qualified patient who cultivates and possesses marijuana for specified medical purposes upon the recommendation of a physician is not subject to criminal prosecution. ( 11362.5; People v. Wright (2006) 40 Cal.4th 81, 84, 85, 89-90.) The Compassionate Use Act defense is a limited one. (People v. Mower (2002) 28 Cal.4th 457, 470.) For a patient, it is limited to possession or cultivation of marijuana for physician-approved personal medical use. (Ibid; People v. Wright, at p. 84.) Under the Compassionate Use Act "[a] qualified patient . . . may also possess no more than eight ounces of dried marijuana" plus "may also maintain no more than six mature or 12 immature marijuana plants." ( 11362.77, subd. (a).) However, if the patient "has a doctor's recommendation that this quantity does not meet the qualified patient's medical needs, the qualified patient . . . may possess an amount of marijuana consistent with the patient's needs." ( 11362.77, subd. (b).)

When an appellant challenges the sufficiency of the evidence to support a conviction, "we review the entire record in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Bolin (1998) 18 Cal.4th 297, 331; People v. Jennings (1991) 53 Cal.3d 334, 364.) We " ' "presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." ' " (People v. Davis (1995) 10 Cal.4th 463, 509; In re Manuel G. (1997) 16 Cal.4th 805, 822.) We draw all reasonable inferences in support of the judgment. (People v. Pensinger (1991) 52 Cal.3d 1210, 1237.)

Childers's argument that the evidence was insufficient relies on his own testimony and that of Dr. Eidelman. The jury, however, was not required to accept this testimony as true. Thus, for example, the jury was entitled to reject Childers's testimony that he suffered from severe back pain and his reactions to pain medications were such that he required medical marijuana as not credible, given the observations of Childers. The police saw no signs of physical impairment, and a Riverside County detective saw Childers engaging in activities that he testified were too painful for him to engage in such as jogging and bending over. Similarly, the jury was not required to believe Dr. Eidelman's testimony that Childers was a classic candidate for medical marijuana use, given evidence of Dr. Eidelman's apparent willingness to prescribe marijuana for nearly anyone who asked for it.

There was abundant evidence to support a conclusion that even if Childers suffered from back pain, his cultivation and possession of the marijuana was not limited to personal use but for sale. Both Detective Van Wey and Special Agent Gieson testified that in their expert opinion the Fallbrook house was being used to cultivate marijuana for sale. A reasonable jury could conclude the rental of an entire house for medical marijuana purposes was not believable. They could also conclude the expenses and sophistication of the growing equipment and the installation were more consistent with cultivation and possession for sale.

Additionally, there was evidence indicating the quantity of marijuana was inconsistent with personal use. Forty mature plants were found in the house. The harvest from these plants would have yielded, on the low side, 4,560 joints. If Childers, who told Detective Van Wey he smoked eight to 10 joints per day, smoked his maximum number of 10 joints per day every day for a year, he would only smoke 3,650 joints of the joints produced by this one harvest. Further, Childers testified he was intending to continue growing marijuana in the same quantities as that found during the April 14 execution of the search warrant. Other evidence indicated the garage had recently contained about 150 plants, which had been harvested mere days before the search warrant was executed. Thus, there was evidence of a significant disparity between Childers's personal medical needs and the amount of marijuana he was producing.

The jury was entitled to disbelieve Childers's testimony he was cultivating the marijuana with Johnson and Upum. Neither Upum nor Johnson was ever observed at the house; only Childers was seen there. Nor was anything found in the house suggesting Johnson's or Upum's presence despite Childers's assertion that all three men had posted their medical marijuana approval letters from Dr. Eidelman in the house. Further, Childers had told Detective Van Wey that he alone was responsible for cultivating and using the marijuana.

Finally, there was evidence indicating that Childers was spending more money than was explained by legitimate sources of income. At the time he was growing marijuana, Childers was unemployed. He was paying about $1,400 to $1,500 monthly for the mortgage on the Oceanside house and paying $2,200 monthly for rent and utilities on the Fallbrook house. Childers had invested $6,000 to $10,000 in start-up costs for the growing system in the Fallbrook house, he had spent $12,500 for a fishing boat in September 2004, he spent $32,000 and had monthly payments of $800 for a new Ford Excursion, and within a month or so of being arrested he had purchased a new motorcycle as a present for his wife. At the time he spoke to Detective Van Wey, he stated his wife earned $1,400 monthly, that he had filed a worker's compensation claim, which Detective Van Wey was unable to confirm, and he did not claim to be receiving any disability income.

To explain the discrepancies between his spending and his income, Childers testified his wife actually made about $1,400 bi-weekly and had a monthly take home income of about $3,000 and he received disability checks amounting to about $2,500 monthly. He also testified about receiving income from cashing out his 401(k) at his former place of employment, refinancing or obtaining a line of credit on his Oceanside house, and receiving money from his wife's uncle. He also claimed that the payments on the Ford Excursion were being paid by a garage door business he owned with his brother. However, given the discrepancies between what Childers told Detective Van Wey and his trial testimony and the lack of documentation to support all of his claimed sources of income or payments being made by others, a reasonable jury could conclude that Childers's spending patterns could not be explained simply by legitimate sources of income.

In sum, there was ample evidence to support a finding Childers was not cultivating or possessing marijuana for personal medical use but rather was doing so for the purpose of selling it.

II

Prosecution Theory

Childers contends the prosecutor's theory of conviction was both legally and factually inadequate because "it asked the jurors to find that [he] was guilty based on marijuana [he] may have in the future and not based on a quantity of marijuana not [sic] in his possession at the time of his arrest." Childers's contention is based on testimony of Special Agent Gieson about the amount of marijuana he would be able to produce in a year's time and on the prosecutor's closing argument referring to this testimony.

Initially, we note that Childers failed to object to Special Agent Gieson's testimony and thus cannot raise this evidentiary matter for the first time on appeal. (See Evid. Code,  353, subd. (a); Coit Drapery Cleaners, Inc. v. Sequoia Ins. Co. (1993) 14 Cal.App.4th 1595, 1611.) Similarly, to preserve a claim of prosecutorial misconduct for appeal, Childers was required to object below and request an admonition to the jury unless an objection would not have cured the harm. (People v. Foster (2003) 111 Cal.App.4th 379, 383.) This is not one of those rare situations where an objection and admonition would not have cured any potential harm.

Moreover, the prosecution theory was proper. Childers conceded that he had been growing marijuana for a year from April 2004 to April 2005 and that he intended to continue growing marijuana. His past conduct and future intent to grow more marijuana was relevant to determining whether he was growing amounts consistent with personal use rather than sales. Extrapolating from the number of plants found April 14 to the harvest Childers might have had in the past year or the coming year if he had not been caught, merely emphasized the incredibility of his argument he was growing only for personal use.

Further, the prosecutor's theory that Childers was engaged in selling marijuana was not based solely on Special Agent Gieson's testimony about an annual harvest. The prosecutor also presented evidence that the number of plants found on April 14 was itself inconsistent with personal use since the plants would have produced vastly more marijuana than Childers would reasonably need for personal use. There was also evidence that Childers had recently harvested an even greater number of marijuana plants in the garage a few days before the search warrant was issued.

III

Instructional Error

Childers contends the court erred in failing to fully instruct the jury on his Compassionate Use Act defense, specifically, that it failed to instruct the jury the Act applies to a collective operation for cultivating and possessing marijuana. He argues this instruction was warranted by defense evidence that the Fallbrook operation was conducted by himself, Johnson, and Upum, who were all qualified patients, and that when the amount of marijuana was divided among the three of them, the amount was consistent with personal medical use.

The court did generally instruct the jury about the Act defense, but did not specifically instruct the jury on the lawfulness of cultivating marijuana for medical use with other persons. Section 11362.775 allows qualified patients to collectively or cooperatively cultivate marijuana for medical purposes.

The Attorney General concedes that under the recent California Supreme Court decision in People v. Wright, supra, 40 Cal.4th 81, the court should have instructed the jury that the Act allows collective cultivation. We agree, however, we conclude reversal is not warranted. Regardless of what standard of review is used, the error here was harmless.

The jury was faced with a simple choice between Childers's theory that his cultivation and possession was strictly for his personal use as justified by his medical needs or the prosecution's theory that his cultivation and possession was for the purpose of sales. The jury was properly instructed on the offense of possession for sale and the requirement that it must find Childers had a specific intent to sell. (CALJIC No. 12.21.) The jury found, under these instructions, that Childers had the specific intent to sell and thus clearly and unequivocally rejected his claim that he intended only personal use. In People v. Wright, supra, 40 Cal.4th at page 99, the Supreme Court engaged in this same analysis and similarly concluded that because the jury found under other proper instructions that the defendant possessed the marijuana with the specific intent to sell, " 'the jury necessarily resolved . . . the same factual question that would have been presented by the missing instruction' [citation] in a manner adverse to the defendant" and therefore concluded "that the instructional error was harmless under any standard of prejudice."

Childers's reliance on People v. Urziceanu (2005) 132 Cal.App.4th 747 (Urziceanu) for the proposition the instructional error requires reversal is misplaced as Urziceanu is distinguishable. In Urziceanu, the defendant was charged with conspiracy to sell marijuana. Defendant sought to present evidence that he was seeking to establish a medical marijuana cooperative and believed he could legally distribute marijuana to individuals who had medical certificates for marijuana. The trial court sustained objections to the evidence, ruling that the defendant's mistake of law was not a defense. The Urziceanu court reversed noting that since the defendant was charged with conspiracy which requires proof of a specific intent to commit an unlawful act, the defendant was entitled to raise as a defense his good faith or mistake of law. (Id. at pp. 778-779.) Further, the Urziceanu court noted that section 11362.775 "exempted those qualifying patients and primary caregivers who collectively or cooperatively cultivate marijuana for medical purposes from criminal sanctions for possession for sale, transportation or furnishing marijuana, maintaining a location for unlawfully selling, giving away, or using controlled substances, managing a location for the storage, distribution of any controlled substance for sale, and the laws declaring the use of property for these purposes a nuisance." (Urziceanu, at p. 785.) The Urziceanu court held reversal was required, explaining:

"Faced with this evidence and proper jury instructions directing [it] to consider defendant's status as a qualified patient or primary caregiver under the . . . Act, the jury acquitted him of two marijuana charges, including charges of cultivation and sale of marijuana. Further, the jury was unable to reach a unanimous verdict on two other charges of possession for sale and conspiracy to possess marijuana for sale. On the cultivation charge, we cannot conclude, as a matter of law, that the jury believed that defendant was a qualified patient, or was acting as a primary caregiver. At the same time, however, we cannot conclude the jury would reject defendant's claim on retrial that his cooperative falls within the parameters of section 11362.775. Thus, we must remand the case for a new trial on this issue." (Urziceanu, supra, at p. 786.)

In contrast here, Childers was not charged with conspiracy to sell marijuana. He was allowed to present evidence he was cultivating the marijuana with others and the jury was instructed on a medical marijuana defense. Unlike Urziceanu, it is clear this jury, under other proper instructions, rejected Childers's claim that he was growing marijuana with two others for personal medical purposes and not for sale. We further note that any claim of prejudice is undermined by the strong evidence showing the amount of marijuana being grown greatly exceeded personal use needs even if it were shared among three people.

IV

Concurrent Term versus Stay on Count Three

Childers contends the court erred in imposing a concurrent term rather than staying the term on the misdemeanor count of possession of more than 28.5 grams of marijuana. We disagree.

At the time Childers was sentenced, he had served 33 days in actual custody, had 16 days of Penal Code section 4019 credits, and thus was credited with 49 days of custody. On the felony counts of cultivating marijuana and possessing marijuana for sale, the court suspended imposition of sentence and granted probation. As to the misdemeanor count of possessing more than 28.6 grams of marijuana, the court denied probation and imposed a sentence of 49 days "so the misdemeanor [was] out of the loop."

Penal Code section 654 prohibits multiple punishment for an indivisible course of conduct even though it violates more than one statute. (People v. Hicks (1993) 6 Cal.4th 784, 789.) Whether a course of conduct is indivisible depends on the intent and objective of the actor. (People v. Evers (1992) 10 Cal.App.4th 588, 602.) "If all the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one." (People v. Perez (1979) 23 Cal.3d 545, 551.)

While it is true the misdemeanor possession count involved the same course of conduct as the possession for sale count, there was no multiple punishment in this case because the court imposed sentence only on the misdemeanor possession count; sentence on the other two counts was suspended and probation granted. If probation should be revoked and the court imposes a sentence on the felony counts, then to avoid the problem of multiple punishment, the court should credit the time served on the misdemeanor count to the sentence imposed on the felony counts. (People v. Crowder (2000) 79 Cal.App.4th 1365, 1370-1372.)

DISPOSITION

The judgment is affirmed.

McCONNELL, P. J.

WE CONCUR:

NARES, J.

AARON, J.

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[1] All statutory references are to the Health and Safety Code unless otherwise specified.

[2] Childers also testified about other injuries, including breaking his left foot in 1994 and having shoulder surgery in 1997 or 1998.

[3] According to Childers, Special Agent Gieson lied when he testified Childers jogged up to him when he arrived at the house.