Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 074988
HULL, J.A jury convicted defendant Christopher S. Bryson of two counts of assault with intent to commit rape in the commission of a first degree burglary (Pen. Code, § 220, subd. (b)--counts 1 & 8; undesignated statutory references that follow are to the Penal Code), two counts of first degree burglary (§§ 459, 460, subd. (a)--counts 2 & 9), and counts of eluding a peace officer while driving recklessly (Veh. Code, § 2800.2, subd. (a)--count 3), possession of cocaine for sale (Health & Saf. Code, § 11351--count 4), transportation of cocaine (Health & Saf. Code, § 11352, subd. (a)--count 5), misdemeanor possession of a controlled substance without a prescription (Bus. & Prof. Code, § 4060--count 6), misdemeanor transportation of less than 28.5 grams of marijuana (Health & Saf. Code, § 11360, subd. (b)--count 7), and receiving stolen property (§ 496, subd. (a)--count 11). He was acquitted of first degree burglary in count 10, to which count 11 had been alleged as an alternative.
Defendant was sentenced to state prison for six years four months plus an indeterminate term of 14 years to life, calculated as follows: the upper term of five years for count 5, eight months consecutive on counts 3 and 11, and two consecutive terms of life with the possibility of parole (§ 3046, subds. (a)(1), (b)) for counts 1 and 8. A concurrent term of three years was imposed for count 4. Sentences on counts 2 and 9 were stayed pursuant to section 654. Concurrent county jail terms of 180 days were imposed for counts 6 and 7.
On appeal, defendant contends (1) there was insufficient evidence of intent to rape, (2) the trial court’s instruction on possession of recently stolen property impermissibly lowered the standard of proof, (3) his burglary convictions are lesser included offenses of his convictions of assault in the commission of a burglary, (4) a unanimity instruction should have been given sua sponte regarding the count 9 burglary, (5) the trial court misinstructed the jury on the specific intent required for assault, and (6) the sentence for possession of cocaine for sale should have been stayed pursuant to section 654. We reverse defendant’s convictions on counts 2 and 9 and otherwise affirm the judgment.
Facts and Proceedings
Prosecution Case-In-Chief
Counts 1 and 2: Burglary and Assault
In August 2007, K.M. was a student at U.C. Davis and was living in an apartment in the 1400 block of H Street in Davis. She lived with two roommates.
On August 31, 2007, K.M. went out to dinner and returned to her apartment at around 10:00 p.m. One roommate was also home that evening. At 10:30 p.m., K.M. went to bed, sleeping without clothing. Her bedroom window was slightly open.
At 5:55 a.m. on September 1, 2007, K.M. awoke because it was light in her room. She fell asleep again and, when she next awoke, she saw defendant standing next to her.
K.M., who was sleeping on her stomach, saw that defendant had one hand on her bed and the other hand on the far side of her body, “making a bridge over” her. She quickly rolled over onto her back. Defendant jumped on top of her and straddled her waist, holding her arms down. Then he said, “Shhh, be quiet.” K.M. yelled, “Help, someone is in the house,” and she punched and kicked defendant. Defendant continued to grab K.M. and tried to hold her down. After a 30-second struggle, she got her knees up and kicked him off the end of the bed. Defendant ran out of the bedroom and K.M. heard the front door slam. She went to check on her roommate, who telephoned 9-1-1. K.M. suffered bruises on her chest and a bloody foot during the struggle.
Later that day, K.M. rode with police to Knight’s Landing to view a suspect. She identified defendant as the man who had attacked her.
At trial, K.M. identified a photograph of her other roommate and some of that roommate’s friends. The photograph, which had been in the roommate’s bedroom, was later found in defendant’s pocket.
Counts 8 and 9: Burglary and Assault
In September 2007, A.N. was a student at U.C. Davis, and was living in an apartment in the 1400 block of F Street in Davis. She and four other women had recently moved in, but A.N. was the only one home on the morning of September 1, 2007. Before going to bed the previous evening, A.N. had made sure that the front door and the windows of her bedroom were locked. She did not know whether the windows of her roommates’ bedrooms were locked as well. A.N. went to bed wearing long pajama pants and a tank top. Sometime in the early morning, A.N. was awakened by the sound of her bedroom door opening. She walked out into the hallway and saw defendant walk out of another bedroom. A.N. thought that defendant was her roommate’s friend, so she said “hi” and saw him leave through the front door. Then she went back to bed.
Around 5:00 a.m., A.N. again was awakened by the sound of someone opening her bedroom door. The person looked similar to the person she had seen hours earlier. She asked him if he had gotten the rent check that she had posted on her roommate’s door, and he said he had.
As A.N. reached to turn on a light, defendant placed a hand on the clothing that covered her left breast and placed his other hand on the clothing covering her vagina. He rubbed her private parts for 30 to 40 seconds. A.N. screamed and defendant ran out of the apartment.
Later, A.N. noticed that her roommate’s bedroom window was wide open, the screen was off, and muddy footprints were visible in two bedrooms and the living room. Her roommate’s designer purse was missing from her bedroom.
Count 11: Receiving Stolen Property
In August 2007, S.S. was a student at U.C. Davis and was living in a condominium in the 1500 block of Drake Drive in Davis. She had two housemates, one of whom had yet to move in.
On August 31, 2007, at 7:30 a.m., S.S. left her residence with all the doors and windows locked. At 11:00 a.m., she returned home and saw that the front door was closed but not locked. She also noticed muddy footprints all over the carpeting and up the stairs. She saw that the patio door had been tampered with and the kitchen window was open. She noticed that her digital camera, her handheld digital device, and $300 cash were missing from the residence. It appeared that someone had ransacked her closet and dresser drawers. S.S. did not know defendant and had not given him permission to be in her condominium.
S.S.’s housemate, J.S., testified that her bedroom had also been ransacked. Her scrapbook, containing photographs from four years of high school, was missing.
K.H. was staying at J.S.’s condominium until her new apartment was ready. All of her personal belongings were at the condominium. She noticed that her bank deposit bag--containing her checks, ATM cards, and photographs--was missing from the cabinet in which it had been stored.
At 6:05 a.m. on September 1, 2007, Davis Police Officer Andrew Penrose was sent to the H Street residence to investigate the H Street burglary. As he neared the apartment complex, he saw defendant driving a car. Penrose attempted to make a traffic stop of defendant’s car. Defendant initially slowed down but then accelerated to high speeds. He traveled on city streets, county roads, an Interstate freeway and a state highway, at speeds up to 130 miles per hour. Eventually defendant drove onto a dead-end street in Knight’s Landing and attempted to turn around. Penrose then rammed his car into defendant’s car. Penrose arrested defendant and collected his shoes, which had grass and mud on them. In defendant’s pants pockets, Penrose found a crumpled-up photograph of five girls in a hot tub. (Count 3.) He also possessed two benzodiazepine pills. (Count 6.)
Sergeant Rod Refredi searched defendant’s car. He found cocaine and marijuana. (Counts 4, 5, & 7.) He also found a bank bag with paperwork and an ATM card. There also was a large, oversized white shirt with elbow length sleeves.
Shortly before noon on September 1, 2007, Detective Sergeant Frank Tenedora interviewed defendant at the Davis Police Department. Tenedora advised defendant of his constitutional rights and defendant said he understood them. Defendant said also that he lived on Notre Dame Drive and was unemployed. He admitted that he had seen lights on the police cars that had chased him and said he had not pulled over because there were drugs in the car.
When asked about the photograph of the five women in the hot tub, defendant at first claimed not to have any knowledge of the photograph. Then he claimed to know the first names of two of the five women.
Detective Tenedora estimated that the distance between the F Street apartment and the H Street apartment was 20 yards and that the two complexes were connected by a walkway.
At about 7:00 p.m. on September 1, 2007, law enforcement officers searched defendant’s apartment on Notre Dame Drive. In the closet, officers found a clear plastic baggie that was later determined to contain 29.25 grams of cocaine. (Count 4.) The closet also contained several photographs of young Asian women.
Defense Evidence
Defendant testified that on the evening of August 31, 2007, he and a friend went to a bar in Davis. When the bar closed at 2:00 a.m. on September 1, they went to their friend A.J.’s house and stayed until about 4:30 a.m. Shortly thereafter, defendant went to a restaurant where some acquaintances told him that a party was underway near the little league field in Davis. He went to the party and stayed until shortly before 6:00 a.m.
As defendant walked back to his car, two African American males approached him and asked for marijuana. Defendant gave them marijuana in exchange for a grey bag that he put in his car. When he got home he emptied out the bag and picked up a photograph, which he crumpled up and put in the center console of the car. Defendant then got back in the car and went to see if the party on F Street was still going on.
When defendant got to F Street, he saw police activity, became nervous because of the drugs in his car, and tried to outrun the police.
Defendant admitted that the drugs in the car belonged to him. However, he denied entering the Drake Drive, F Street, or H Street residences. He did not know how mud got into his car.
Defendant presented the testimony of two witnesses who were standing in a park near F Street at about 6:00 a.m. on September 1 when they saw an African American man running or speed walking through the park. One witness testified that he did not know defendant and had never seen him before.
Discussion
I Sufficiency of the Evidence of Assault with Intent to Commit Rape
Defendant contends his two convictions of assault with intent to rape must be reversed because there was insufficient evidence of specific intent to rape. We disagree.
“On appeal, the test of legal sufficiency is whether there is substantial evidence, i.e., evidence from which a reasonable trier of fact could conclude that the prosecution sustained its burden of proof beyond a reasonable doubt. [Citations.] Evidence meeting this standard satisfies constitutional due process and reliability concerns. [Citations.] [¶] While the appellate court must determine that the supporting evidence is reasonable, inherently credible, and of solid value, the court must review the evidence in the light most favorable to the prosecution, and must presume every fact the jury could reasonably have deduced from the evidence. [Citations.] Issues of witness credibility are for the jury. [Citations.]” (People v. Boyer (2006) 38 Cal.4th 412, 479-480.)
“The crime of which [defendant] was convicted, assault with intent to commit rape, requires proof that he intended to have sexual intercourse with [the victim] and to use force to overcome her resistance. [Citation.]” (People v. Craig (1994) 25 Cal.App.4th 1593, 1597.) “‘Because intent is rarely susceptible of direct proof, it may be inferred from all the facts and circumstances disclosed by the evidence. [Citations.]’” (People v. Sanghera (2006) 139 Cal.App.4th 1567, 1574, quoting People v. Kwok (1998) 63 Cal.App.4th 1236, 1245.)
In this matter, the evidence was sufficient to prove that defendant intended to have sexual intercourse with A.N. and to use force to overcome her resistance. After he broke into her apartment in the early morning, he entered her bedroom and she spoke to him, believing he was a roommate’s friend. Despite almost being caught inside the apartment, defendant reentered hours later and returned to A.N.’s room. Again, A.N. mistook defendant for a roommate’s boyfriend and asked him if he had received her rent check. After responding in the affirmative, he placed one hand on the clothing that covered A.N.’s left breast and placed his other hand on the clothing covering her vagina. He rubbed those portions of her body for 30 to 40 seconds. Only when A.N. screamed did defendant run out of the apartment.
Reasonable jurors could infer that, having twice risked getting caught in the apartment and having twice singled out the same victim whose ability to identify him grew with each encounter, defendant intended to persist in his efforts to accomplish an act of sexual intercourse. The jurors also could reasonably infer that his efforts included using physical force necessary to overcome his victim’s resistance. The fact that defendant responded to A.N.’s scream for help by running for safety, rather than applying the force needed to complete the sexual act, does not mean that the proof of intent to use force was insufficient. (Cf. People v. Craig, supra, 25 Cal.App.4th at p. 1596.)
Similarly, reasonable jurors could find the evidence sufficient to prove that defendant intended to complete an act of sexual intercourse and did not intend merely to massage A.N.’s breast and vagina. A reasonable inference can be drawn that defendant would have continued to pursue an act of sexual intercourse by force if necessary, had he not been interrupted by A.N.’s screams. (People v. Craig, supra, 25 Cal.App.4th at p. 1600.) The fact the evidence could also support a contrary inference does not require reversal of the judgment. (People v. Ceja (1993) 4 Cal.4th 1134, 1139; People v. Bunyard (1988) 45 Cal.3d 1189, 1213.)
Defendant’s assault of K.M. involved greater force than his assault of A.N. He jumped on top of K.M., straddled her waist, and held her arms down. K.M. yelled, and she punched and kicked defendant. He continued to grab her and tried to hold her down. After a 30-second struggle, she got her knees up and kicked him off the bed. Although he evidently did not fondle K.M. as he had A.N., reasonable jurors could conclude from these facts that he intended first to take physical control of K.M. and then to engage in sexual acts including intercourse with his fortuitously naked victim.
This court recently explained that an appellant “must affirmatively demonstrate that the evidence is insufficient,” and that he “does not show the evidence is insufficient by... arguing about what evidence is not in the record.” (People v. Sanghera, supra, 139 Cal.App.4th at p. 1573.) Here, however, defendant’s argument is limited to a recitation of evidence that was not produced: no evidence that he made a statement of intent to rape, no evidence that he took his penis out of his pants, no evidence of a prior rape, no evidence that he had condoms, no evidence that he tried to undress A.N., and, although he had climbed on top of K.M. and straddled her, no evidence that he had touched K.M. in a sexual manner. But the lack of this evidence does not negate the sufficiency of the evidence on counts 1 and 8. (Ibid.)
II The Burglary Counts
Defendant contends counts 2 and 9 (first degree burglary) must be reversed because they are necessarily included offenses of counts 1 and 8 (assault with intent to commit rape in the commission of first degree burglary). This contention has merit.
Section 220 provides in relevant part:
“(a) Except as provided in subdivision (b), any person who assaults another with intent to commit... rape... shall be punished by imprisonment in the state prison for two, four, or six years.
“(b) Any person who, in the commission of a burglary of the first degree, as defined in subdivision (a) of Section 460, assaults another with intent to commit rape... shall be punished by imprisonment in the state prison for life with the possibility of parole.”
The parties agree that, under the legal elements test, if the statutory elements of a greater offense include all of the statutory elements of a lesser offense, the latter is necessarily included in the former. A defendant may not be convicted of multiple charged crimes if one is necessarily included in the other. (People v. Reed (2006) 38 Cal.4th 1224, 1227.)
Defendant makes the obvious point that, having been convicted of assault of another with the intent to commit rape during the commission of a first degree burglary, he must necessarily have been found guilty of first degree burglary, the latter offense being one of the elements of the former.
The Attorney General responds that section 220, subdivision (b), does not define an offense; thus, it cannot include a lesser offense such as burglary. According to the Attorney General, section 220, subdivision (b), is either an enhancement or a “special sentencing circumstance,” neither of which can be equated with an offense.
In our view, section 220, subdivision (b) is not “an enhancement, which provides for an additional term of imprisonment” following a base term; rather, subdivision (b) “sets forth an alternate penalty for the underlying felony,” the assault. (People v. Jefferson (1999) 21 Cal.4th 86, 101.)
The Attorney General does not dispute that a section 220, subdivision (b) assault includes all of the statutory elements of the lesser offense of first degree burglary. The only issue is whether the existence of the alternate penalty suffices to take section 220, subdivision (b), outside the rule of People v. Reed, supra, 38 Cal.4th at page 1227. We conclude it does not.
The Attorney General’s argument is based on People v. Palmore (2000) 79 Cal.App.4th 1290, 1298, which considered an issue not presented here. The defendant in Palmore was convicted of forcible rape, forcible sodomy, and robbery; the jury found true a special allegation that the rape and sodomy had been committed during the commission of a burglary of a commercial establishment, which was then closed to the public. (§ 667.61, subds. (b), (c) & former (e)(2).)
Although Palmore is somewhat similar to the present case factually, in that it involved sex crimes (albeit completed, not intended) during a burglary, the defendant was not convicted of both the sex crimes and a burglary; rather, he was convicted of the sex crimes and robbery, and the issue was whether the sentence for robbery had to be stayed pursuant to section 654. The court answered that question in the negative, explaining, “The forcible rape offense with its one strike sentencing allegation is not identical to the robbery count. Palmore's criminal intent and objectives were different in carrying out these crimes, and there was no double punishment under section 654.” (People v. Palmore, supra, 79 Cal.App.4th at p. 1298.)
Nothing in Palmore supports the Attorney General’s argument that a lesser offense is not included in a greater offense simply because, as here, the greater offense carries an alternative punishment applicable to the particular facts before the court. We shall reverse counts 2 and 9 and order the trial court to enter dismissals of those counts.
III CALCRIM No. 376
Defendant contends the trial court improperly and prejudicially instructed the jury with CALCRIM No. 376 on possession of recently stolen property. He claims the instruction reduces the prosecution’s burden of proof “below that of ‘beyond a reasonable doubt.’” This contention is moot.
The jury was instructed: “If you conclude that the defendant knew he possessed property and you conclude that the property had in fact been recently stolen, you may not convict the defendant of burglary based on those facts alone. However, if you also find that supporting evidence tends to prove his guilt, then you may conclude that the evidence is sufficient to prove he committed burglary. [¶] The supporting evidence need only be slight and need not be enough by itself to prove guilt. You may consider how, where, and when the defendant possessed the property, along with any other relevant circumstances tending to prove his guilt of burglary. [¶] Remember that you may not convict the defendant of any crime unless you are convinced that each fact essential to the conclusion that the defendant is guilty of that crime has been proved beyond a reasonable doubt.” (Italics added.)
Thus, CALCRIM No. 376 pertained, at most, to the three charged counts of first degree burglary. (Counts 2, 9, & 10.) Defendant was acquitted of count 10. In part II, ante, we concluded that counts 2 and 9 must be reversed as lesser included offenses of counts 1 and 8. Any error with respect to CALCRIM No. 376 is therefore moot.
IV Unanimity Instruction
Defendant contends his count 9 burglary conviction must be reversed because the trial court failed to give a unanimity instruction (CALCRIM No. 3500) on its own motion. In part II, ante, we concluded count 9 must be reversed as a lesser included offense of count 8. Thus, any instructional error on count 9 is moot.
V Specific Intent for Assault with Intent to Commit Rape
Defendant contends the trial court erroneously instructed the jury on the specific intent required to prove assault with the intent to commit rape. Specifically, he claims CALCRIM No. 890 on assault with intent to commit rape “did not explain the specific intent necessary for conviction of that offense, i.e., the specific intent to have sexual intercourse against the victim’s will.” Instead, the instruction simply told the jury that defendant must have acted willfully. We disagree.
“‘“‘[T]he correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction.’” [Citations.]’ [Citation.]” (People v. Smithey (1999) 20 Cal.4th 936, 963-964.)
The trial court instructed the jury with CALCRIM No. 252 on specific intent, CALCRIM No. 890 on assault with intent to commit a sex offense, and CALCRIM No. 1000 on rape.
CALCRIM No. 252 told the jury in relevant part: “The crimes charged in Count 1 through 11 require proof of the union, or joint operation, of act and wrongful intent. [¶]... [¶] The following crimes require a specific intent or mental state:... assault with intent to commit rape charged in Counts 1 and 8.... For you to find a person guilty of these crimes, that person must not only intentionally commit the prohibited act, but must but [sic] do so with the specific intent and/or mental state. The act and the specific intent and/or mental state required are explained in the instruction for that crime.”
CALCRIM No. 890 told the jury in relevant part: “The defendant is charged in Counts 1 and 8 with assault with intent to commit rape in violation of Penal Code Section 220. [¶] To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant did an act that by its nature would directly and probably result in the application of force to a person; [¶] 2. The defendant did that act willfully; [¶] 3. When the defendant acted, he was aware of facts that would led [sic] a reasonable person to realize that his act by its nature would directly and probably result in the application of force to someone; [¶] 4. When the defendant acted, he had the present ability to apply force to a person; [¶] 5. When the defendant acted, he intended to commit rape; [¶] AND [¶] 6. The assault with intent to commit rape occurred during the commission of a burglary and [sic] degree. [¶]... [¶] To decide whether the defendant intended to commit rape, please, refer to Instruction 1000 which defines that crime.”
Finally, CALCRIM No. 1000 told the jury in relevant part: “The defendant is charged in Counts 1 and 8 with assault with intent to commit rape. The elements for rape are set forth below. The defendant is not charged with committing rape. Thus, the elements of rape are listed to assist you in deciding whether the defendant assaulted the victim with intent to commit rape. [¶] The elements of rape are: [¶] 1. The defendant had sexual intercourse with a woman; [¶] 2. He and the woman were not married at the time of the intercourse, the woman did not consent to the intercourse, and the defendant accomplished the intercourse by force, violence, duress, menace, or fear of immediate and unlawful bodily injury to the woman or to someone else. [¶]... [¶] To consent, a woman must act freely and voluntarily and know the nature of the act. [¶] Intercourse is accomplished by force if a person used enough physical force to overcome the woman’s will.”
As can be seen, CALCRIM No. 252 told the jury that counts 1 and 8 required a specific intent, and that the specific intent required for those counts would be explained in the instruction for those crimes.
CALCRIM No. 890 told the jury that, in order to prove that defendant was guilty of counts 1 and 8, the People had to prove, among other things, that “[w]hen the defendant acted, he intended to commit rape.” This instruction also advised the jury, “[t]o decide whether the defendant intended to commit rape, please refer to Instruction 1000 which defines that crime.”
CALCRIM No. 1000 told the jury that defendant was not charged with rape and that the elements of rape were listed in order to assist the jury in deciding whether the defendant assaulted the victims with the intent to commit rape. This instruction advised the jury that rape requires unconsented sexual intercourse by force, violence, duress, menace, or fear.
Defendant argues that, contrary to the Attorney General’s claim, “no instruction told the jury that, in order to find [him] guilty of the section 220 charges, ‘he needed to have the specific intent to commit rape.’” We disagree. Although CALCRIM No. 890 did not label the requisite intent “specific,” a label lay jurors are not expected to understand, the instruction plainly told the jury that defendant must have “intended to commit rape.” That was sufficient.
In their entirety, the instructions told the jury that counts 1 and 8 required specific intent; that the People must prove that when defendant acted, he intended to commit rape; and that rape consists of sexual intercourse to which the victim did not consent. There was no error. (People v. Smithey, supra, 20 Cal.4th at pp. 963-964.)
VI Counts 4 and 5
Defendant contends his convictions on counts 4 (possession of cocaine for sale) and 5 (transportation of cocaine) arose out of the same act. Because a five-year term was imposed for count 5, he claims the three-year term on count 4 should not have been run concurrent but should have been stayed pursuant to section 654. We disagree.
When defendant’s car was stopped, a searching officer found 83.05 grams of cocaine in the car. When his residence was searched later that day, officers found a clear plastic baggie that contained 29.25 grams of cocaine.
In her opening summation, the prosecutor argued with respect to count 4 that “the People have to prove the defendant unlawfully possessed unlawful substance. We know he had cocaine. He knew of its presence. He told Officer Tenedora he knew that he had weed and cocaine in the car.” With respect to count 5, the prosecutor argued, “It was sitting right next to him on the passenger side seat.” Thus, in her summation, the prosecutor relied on the cocaine in the car to prove count 4 and did not address whether the cocaine in the residence could also prove that count.
The probation officer recommended that count 4 be stayed pursuant to section 654 because “[t]he cocaine depicted in Count 4 is the same as that in Count 5.”
At sentencing, the prosecutor argued that count 4 should not be stayed because counts 4 and 5 involve separate acts and intents. She did not explain whether her claim of separate acts relied on the cocaine found in the house.
Defense counsel argued that count 4 should be stayed because “[i]t’s exactly essentially the same conduct. The cocaine, according to the testimony, was in the car, and that was the conduct. There was cocaine in the house, too. I’m not certain which part of which charge the jury found to be true, but we don’t have that information....”
The trial court imposed a three-year concurrent term on count 4. It did not explain its reasoning.
“‘The proscription against double punishment in section 654 is applicable where there is a course of conduct which... comprises an indivisible transaction punishable under more than one statute.... The divisibility of a course of conduct depends upon the intent and objective of the actor, and if all the offenses are incident to one objective, the defendant may be punished for any one of them but not for more than one.’ [Citation.] ‘The defendant’s intent and objective are factual questions for the trial court; [to permit multiple punishments,] there must be evidence to support a finding the defendant formed a separate intent and objective for each offense for which he was sentenced.’” (People v. Coleman (1989) 48 Cal.3d 112, 162; see People v. Latimer (1993) 5 Cal.4th 1203, 1208.)
On appeal, the only issue is whether substantial evidence supports the trial court’s implied finding that defendant’s intent and objective in counts 4 and 5 were separate. Because the court is the factfinder on the section 654 issue, it could consider the cocaine in the residence even though the prosecutor had focused the jury’s attention on the cocaine in the car. The court could deduce that defendant’s intent and objective in count 5 (transporting cocaine to a customer) was separate from his intent and objective in count 4 (possessing the cocaine in the house for a later sale).
Defendant concedes that, “had the case been presented to the jury in a different posture, the cocaine found in [his] room could have supported the conviction on count 4. But the prosecutor expressly elected to base count 4 on the cocaine found in the car (thereby obviating the need for a unanimity instruction).” In a footnote, defendant argues that if “count 4 could be based on either the cocaine in the car or the cocaine found at [the] house, then a unanimity instruction was required. In that event, the failure to give the instruction requires reversal of count 4.”
Defendant’s argument overlooks the fact that the trial court, not the jury, was the factfinder as to the applicability of section 654. The court’s decision rests on the evidence presented at trial rather than upon the implied findings of the jury. The fact the jury unanimously concluded that defendant possessed other cocaine in the car does not allow him to escape responsibility for the cocaine in the house. No unanimity instruction was required.
VII Abstract of Judgment
We note a minor error on the abstract of judgment. Defendant’s local conduct credits were calculated pursuant to section 2933.1, not section 4019. The abstract must be corrected to so indicate.
Disposition
Defendant’s convictions on counts 2 and 9 are reversed and the trial court is directed to dismiss those counts. In all other respects, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment reflecting the dismissal of counts 2 and 9 and corrected to show conduct credits calculated pursuant to section 2933.1, and to forward a certified copy to the Department of Corrections and Rehabilitation.
We concur: RAYE, Acting P. J., BUTZ, J.