>PEOPLE v.
BACON















Filed 7/1/10

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>CERTIFIED FOR PARTIAL PUBLICATION^*



IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA



SECOND
APPELLATE DISTRICT



DIVISION
EIGHT


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THE PEOPLE, Plaintiff and Respondent, v. RONNIE EUGENE BACON, Defendant and Appellant.

B214314 (Los Angeles County Super. Ct. No. MA043109)

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.





On count 1, appellant Ronnie Eugene
Bacon 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)). 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.^[2]

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 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
â€