Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. Douglas E. Weathers, Judge. Super. Ct. No. RIF128323
Laurel M. Nelson, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Pamela Ratner Sobeck and Raymond M. DiGuiseppe, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
HOLLENHORST Acting P. J.
I. INTRODUCTION
Defendant, Robert Earl Taylor, Jr., appeals from his conviction of sale of cocaine base (Health & Saf. Code, § 11352, subd. (a) (count 1)), possession of cocaine base for sale (Health & Saf. Code, § 11351.5 (count 2)), and active participation in a criminal street gang (Pen. Code, § 186.22, subd. (a) (count 3)), along with true findings on allegations that counts 1 and 2 were committed for the benefit of a criminal street gang (Pen. Code, § 186.22, subd. (b)), and that he had suffered five prior felony convictions for which he had been committed to prison (Pen. Code, § 667.5, subd. (b)).
Defendant contends: (1) the evidence was insufficient to support the true findings on the gang enhancements as to counts 1 and 2; (2) the evidence was insufficient to support his conviction of active participation in a street gang in count 3; (3) the trial court erred in admitting gang expert opinion testimony; (4) the trial court erred under Penal Code section 654 in imposing a consecutive sentence for count 2 because counts 1 and 2 were based on a single course of conduct; (5) the conviction for count 2 should be stricken because count 2 was a lesser included offense of count 1; and (6) the trial court erred in awarding custody credits. The People concede that defendant is entitled to additional custody credits, and we accept that concession. We find no other errors, and in all other respects, we affirm the judgment.
All further statutory references are to the Penal Code unless otherwise indicated.
II. FACTS AND PROCEDURAL BACKGROUND
In February 2006, officers from the Moreno Valley Police Department and the Riverside County Sheriff’s Department conducted a joint operation to address heavy narcotics activity in the eastern part of the City of Riverside. As part of that operation, Deputy Anthony Johnson was working undercover, posing as a narcotics buyer, in the University Avenue corridor on February 2. Deputy Johnson, wearing hidden audio and video recording equipment, asked an older man if the man knew of any narcotics for sale in the area. The man led him to an alley to find someone named “Bosco” who was probably selling drugs. A narcotics detective testified it was common for street dealers in the area to work together and to send others to find buyers.
In the alley, a group of people were milling around, and the older man approached someone, later identified as defendant. Defendant was wearing black jeans, a black coat, and a blue baseball cap; no gang insignia were noted on his clothing. After a few minutes, the older man waved Deputy Johnson over. Deputy Johnson asked defendant for a “dub,” street slang for $20 worth of rock cocaine. Defendant produced a small cigar box, and a woman with him reached into the box, pulled something out of it, and put it on the ground. Defendant told Deputy Johnson to put his money on the ground, and the deputy did so. The woman or defendant picked up the money and put it in the box, and defendant picked up the box and walked away. The deputy picked up the substance, later determined to be.28 grams of cocaine base. Deputy Johnson did not recall seeing graffiti in the area, and none of the persons in the area had used gang signs or mentioned gangs.
The woman was identified as Sarah Silva. No evidence showed that she had any connection to a gang.
About 7:45 p.m. the same day, Riverside Police Department Officer David Reeves, who was not involved in the narcotics buy program, noticed a suspicious vehicle parked in the University Avenue corridor area about a block away from where the earlier transaction had been conducted. Defendant was sitting in the driver’s seat. A woman approached the vehicle and leaned inside, but when she noticed the patrol car, she quickly walked away. Defendant got out of the vehicle and also walked quickly away. The officer approached defendant, who was holding a can of malt liquor and drinking as he walked in violation of a city code.
Officer Reeves asked defendant whether he was from the area, and defendant replied, “Yep, 1200 Blocc.” The officer interpreted defendant’s response as meaning that he was a member of the 1200 Blocc Crips gang. The officer testified it was well known that the 1200 Blocc Crips gang controlled the area as its territory and normally sold drugs at that corner. Defendant was wearing a blue shirt and blue hat; blue was the gang’s color.
Defendant told Officer Reeves he was currently on parole, and the officer conducted a parole search of defendant and his vehicle. The officer found a bag hidden under the gear shift housing between the front seats of the vehicle; the bag contained 17 individually packaged baggies of a substance that appeared to be cocaine base. The officer arrested defendant for possession of cocaine base for sale. Defendant denied ownership of the drugs and stated he had just bought the car. A bill of sale was found in the car indicating that defendant had bought the car on January 28, 2006.
The substance in four of the individual baggies was laboratory tested and was found to contain cocaine base. The gross weight of the baggies and their contents was 15.8 grams. Each of the 17 pieces was a usable quantity. A narcotics detective testified that the amount of drugs, their packaging, and the absence of any paraphernalia associated with drug use indicated the drugs had been possessed for sale.
Officers testified that defendant had admitted gang membership and the moniker “Blue Dog” in contacts in October 2005, December 2005, and February 2, 2006. Photographs taken of defendant in January 2004 and December 2005 showed that defendant had acquired a new gang tattoo in that period. At the time of his arrest and when he was being booked at the detention center, defendant admitted membership in the 1200 Blocc Crips (Crips).
Defendant testified on his own behalf. He admitted he had been a Crips member since he was 14 years old, but he was no longer an active member. He defined active membership as keeping weapons, looking out for rival gangs, and committing violent acts, robberies, and carjackings.
In February 2006, he was living with his wife and children in San Bernardino. He admitted selling drugs in February 2006. He had purchased the drugs with his own money from a person who was not a Crips member, and no Crips member had given him money. He sold drugs to feed his family because he did not have a job. No Crips member had directed him where to sell drugs; both Crips members and non-Crips members sold drugs in the University Avenue area. The woman who was with him at the time of the sale was not a Crips member. The Crips gang had never demanded any proceeds or benefit from defendant’s drug sales, and he had never used any of the proceeds to help other Crips members.
The jury found defendant guilty of sale of cocaine base (Health & Saf. Code, § 11352, subd. (a)), possession of cocaine base for sale (Health & Saf. Code, § 11351.5), and active participation in a criminal street gang (Pen. Code, § 186.22, subd. (a)), and found true the allegations that counts 1 and 2 were committed for the benefit of a criminal street gang (Pen. Code, § 186.22, subd. (b)). Defendant admitted the allegations that he suffered five prior felony convictions for which he served prison terms. (Pen. Code, § 667.5, subd. (b).)
Other facts are set forth in the discussion of the issues to which they pertain.
III. DISCUSSION
A. Sufficiency of Evidence
Defendant contends the evidence was insufficient to support the true findings on the gang enhancements (§ 186.22, subd. (b)) as to counts 1 and 2 and his conviction of the crime of active gang membership (§ 186.22, subd. (a)) in count 3.
1. Standard of Review
When a criminal defendant challenges the sufficiency of the evidence to support his conviction, this court reviews the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307, 318-319; People v. Johnson (1980) 26 Cal.3d 557, 578.) We presume in support of the judgment the existence of every fact the trier of fact could reasonably deduce from the evidence (People v. Johnson, supra, at p. 576), and we do not substitute our judgment for that of the jury (People v. Ceja (1993) 4 Cal.4th 1134, 1139). The same standards apply to true findings on enhancement allegations. (People v. Villalobos (2006) 145 Cal.App.4th 310, 321-322.)
2. Additional Factual Background
At trial, Detective Joe Miera testified as a gang expert. He had been a police officer for over 16 years and had worked in the gang unit since 2001. He had extensive training and field experience in regards to gang activity and investigations, and he had the most expertise with the two gangs that claim the east side of the City of Riverside surrounding the University Avenue corridor; one of those gangs is called the 1200 Blocc Crips.
As part of his law enforcement work, Detective Miera kept tabs on who were members of the gang and what their activities were, including by undercover surveillance. He estimated that in February 2006, there were about 250 members of the 1200 Blocc Crips and its subsets. The 1200 Blocc Crips had a common color—blue, and a common sign or symbol—the number 12.
Detective Miera testified that the primary activity of the 1200 Blocc Crips was selling rock cocaine along the University Avenue corridor and in surrounding neighborhoods. He testified that 1200 Blocc Crips members, Mark Roberts and Antyon Dodson, had been convicted of sale of rock cocaine with gang allegations based on a December 2004 incident. Detective Miera testified about another member of that gang, Trevon Williams, who had been convicted of the sale of rock cocaine and marijuana in 2003.
Detective Miera testified that he had a conversation with defendant in December 2005 and had filled out a field interview card. Defendant had admitted membership in the 1200 Blocc Crips. Defendant’s gang moniker was “Blue Dog.” Defendant had a number of gang-related tattoos, including the words “Dirty” and “Dozen” on his right and left hands. Detective Miera testified that “Dozen” is a variation of the number 12, which is the gang’s common sign and symbol. Defendant also had “ES” tattooed on his stomach. Detective Miera testified that “ES” stands for East Side. Another of defendant’s tattoos was “East Riv 1200 ECBC,” which Detective Miera testified stood for East Riverside 1200 Blocc Crips and East Coast Blocc Crips. Defendant had a tattoo of a pit bull or bulldog on his stomach. A bulldog is a common sign or symbol of a subset of the 1200 Blocc Crips.
Detective Miera testified that, in his opinion, defendant was an active member of the 1200 Blocc Crips in February 2006. He based his opinion on “the information [he] received on reviewing all the field interview cards, the circumstances on the incident we’re talking about, the tattoos on [defendant’s] body, the information that a very significant gang tattoo was added... just prior to the incident in 2006, all of his gang admissions, reports that [he] reviewed, speaking to other officers, and the fact that during [the drug buy] program, [he] was involved in... part of the surveillance team [that] had seen [defendant] along the University corridor on numerous occasions.”
Detective Miera testified that while he was participating in the buy program, he had regularly seen defendant in the area. Defendant drove a blue car and was photographed wearing blue clothing. Detective Miera testified that the blue color indicated alignment with a Crips gang. Detective Miera testified that gang member sales of rock cocaine in the University Avenue corridor benefited the gang because it developed the gang’s ongoing drug dealing enterprise and provided a known location for drug users to purchase rock cocaine. Detective Miera testified that gang members do not typically mention the gang during drug transactions, but their gang affiliation would be obvious from the sort of prominent tattoos defendant sported.
Detective Miera testified that the 1200 Blocc Crips “controlled primarily” the University Avenue corridor. Although nonmembers occasionally made drug sales in that area, they did so furtively, and “they had to do it without being discovered.”
3. Substantial Evidence of Gang Enhancement Allegations
Under section 186.22, subdivision (b), a defendant is subject to additional punishment for a felony committed “for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members....”
Defendant argues that upholding the gang enhancement on the basis of Detective Miera’s testimony would violate federal constitutional protections because it would criminalize bare group membership, and such an interpretation would also render the statute impermissibly vague. Section 186.22, subdivision (b) has been upheld as not prohibiting mere gang membership, but as prohibiting “‘the promotion, furtherance or assistance in any felonious criminal conduct by members.’” (People v. Gamez (1991) 235 Cal.App.3d 957, 972, disapproved on another ground in People v. Gardeley (1996) 14 Cal.4th 605, 624, fn. 10.)
Defendant argues, however, that as the statute was applied in his case, every drug offense committed by a gang member would automatically be committed as part of the perpetrator’s participation in a gang. The factual premise for defendant’s argument is flawed. Detective Miera did not testify that every drug offense committed by a gang member would support an enhancement under section 186.22, subdivision (b). Rather, the detective testified that sales of rock cocaine were among the primary activities of the gang; the 1200 Blocc Crips gang “claimed” a specific area in the east side of Riverside; and gang members selling rock cocaine in that specific area benefitted the gang because such sales provided a known area for drug users to purchase drugs. Here, defendant was in the heart of 1200 Blocc Crips territory; he was wearing gang colors and sporting visible gang tattoos; and he was engaged in the primary activity of the gang. Thus, he was not punished merely for selling drugs and being a gang member.
The gang enhancement allegation includes an element of specific intent: to “promote, further, or assist in any criminal conduct by gang members.” (§ 186.22, subd. (b).) “Because intent is rarely susceptible of direct proof, it may be inferred from all the facts and circumstances disclosed by the evidence.” (People v. Kwok (1998) 63 Cal.App.4th 1236, 1245.) The jury could reasonably find the required specific intent based on the evidence described above.
Defendant points out that many cases in which gang enhancement allegations have been upheld involved multiple gang members. However, the involvement of multiple gang members in the charged offense is not an element of the gang enhancement allegation. (§ 186.22, subd. (b).)
4. Substantial Evidence of Active Participation in a Street Gang
Section 186.22, subdivision (a) defines the crime of active participation in a street gang: “Any person who actively participates in any criminal street gang with knowledge that its members engage in or have engaged in a pattern of criminal gang activity, and who willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang, shall be punished [as specified].” Defendant argues that the only evidence in support of his conviction of active participation in a street gang (§ 186.22, subd. (a)) was Miera’s conclusionary opinion, and that did not constitute substantial evidence.
The elements of the crime are that (1) the defendant is more than a nominal or passive member of a gang; (2) the defendant knew that the gang’s members “‘engage in or have engaged in a pattern of criminal gang activity’”; and (3) the defendant “‘willfully promot[ed], further[ed], or assist[ed] in... felonious criminal conduct’” by members of the gang. (People v. Lamas (2007) 42 Cal.4th 516, 523-524.)
Defendant contends that more than nominal or passive involvement is required to uphold the crime of active participation in a gang. He argues that the evidence showed only past gang membership, and he expressly denied current active participation in the gang. However, defendant as much as conceded current gang membership in his statements to officers the night of his arrest. Moreover, Detective Miera’s testimony amply supported the jury’s finding that defendant was a current active gang member. The evidence of defendant’s current gang membership was substantial.
Defendant also argues that no substantial evidence supported the finding that defendant’s acts were intended to promote, further, or assist the criminal acts of other gang members. We reject that challenge for the same reasons we rejected defendant’s similar argument with respect to the gang enhancement allegations.
B. Admission of Gang Expert’s Testimony
Defendant contends the trial court erred in allowing Detective Miera to give opinion testimony that defendant’s intent and objective were to benefit the gang.
1. Standard of Review
We review the trial court’s ruling on the admissibility of expert opinion testimony for abuse of discretion (People v. Mendoza (2000) 24 Cal.4th 130, 177), and we do not interfere with the exercise of that discretion unless it was clearly abused (People.v Garcia (2007) 153 Cal.App.4th 1499, 1512).
2. Forfeiture
The People argue that defendant did not object to Detective Miera’s testimony in the trial court, and he has therefore forfeited his challenge. (See People v. Ashmus (1991) 54 Cal.3d 932, 972-973, fn. 10, abrogated on other grounds as stated in People v. Yeoman (2003) 31 Cal.4th 93, 117.) Because the People have also briefed the issue on the merits, and the issue is easily disposed of, we will reach the merits of the issue.
3. Analysis
Our Supreme Court has held that expert testimony is admissible to show the culture and habits of street gangs. (People v. Gonzalez (2006) 38 Cal.4th 932, 944.) Thus, an expert may properly testify as to “the size, composition, or existence of a gang”; “‘motivation for a particular crime’”; and “‘“whether and how a crime was committed to benefit or promote a gang.”’” (People v. Garcia, supra, 153 Cal.App.4th at pp. 1512-1513.) Expert testimony is admissible on these issues even when they are the ultimate issues in the case. (People v. Olguin (1994) 31 Cal.App.4th 1355, 1370-1371; Evid. Code, § 805.)
Although an expert “may not testify that an individual had specific knowledge or possessed a specific intent” (People v. Garcia, supra, 153 Cal.App.4th at p. 1513), the prosecution may properly elicit expert testimony “to provide the jury with information from which the jury may infer the motive for a crime or the perpetrator’s intent.” (People v. Gonzalez (2005) 126 Cal.App.4th 1539, 1551) Detective Miera did not render an opinion on defendant’s specific intent or knowledge; rather, he stated his opinions that defendant was an active member of the gang and had committed the offenses for the benefit of the gang. Moreover, other evidence supported those opinions: Defendant stated he was a gang member when arrested and when being booked. Although he denied in his testimony that he was an active gang member, he also gave his own very restrictive definition of what constitutes active gang membership, i.e., keeping weapons, looking out for rival gangs, and committing violent crimes. He was in the heart of his gang’s territory, wearing gang colors, sporting gang tattoos, and selling cocaine base, the primary activity of the gang. Detective Miera’s expert opinion testimony fell well within permissible standards, and the trial court did not abuse its discretion in admitting his testimony.
C. Lesser Included Offenses
Defendant contends his conviction for count 2 should be stricken because count 2 was a lesser included offense of count 1.
1. Standard of Review
Whether an offense is necessarily included in another offense is a question of law which this court reviews de novo. (See People v. Turk (2008) 164 Cal.App.4th 1361, 1367.)
2. Analysis
“[M]ultiple convictions may not be based on necessarily included offenses.” (People v. Pearson (1986) 42 Cal.3d 351, 355.) “In applying the rule prohibiting multiple convictions in the context of necessarily included charged offenses, a lesser offense is deemed necessarily included in a greater offense only if the statutory elements of the greater offense include all of the statutory elements of the lesser offense.” (People v. Murphy (2007) 154 Cal.App.4th 979 (Murphy).)
Defendant argues that, “Under California law, a lesser offense is necessarily included in a greater offense if either the statutory elements of the greater offense, or the facts actually alleged in the accusatory pleading, include all the elements of the lesser offense, such that the greater cannot be committed without also committing the lesser. [Citations.]” (See People v. Birks (1998) 19 Cal.4th 108, 117-118, fn. omitted.) Although courts continue to apply both the statutory elements test and the accusatory pleading test when determining whether instructions on an uncharged lesser offense are required, it is now well established that only the statutory elements test applies when determining whether a defendant may be convicted of multiple charged offenses. (People v. Reed (2006) 38 Cal.4th 1224, 1231.)
In Murphy,the defendant was convicted of selling cocaine base and possessing cocaine base for sale; both offenses were based on the same supply of cocaine. The defendant argued she had been improperly convicted of both offenses because the possession for sale offense was necessarily included in the sale offense. (Murphy, supra, 154 Cal.App.4th at p. 982.) The court rejected the defendant’s argument, stating: “[A] conviction for the greater offense of selling the cocaine... does not require, as one of its statutory elements, the lesser offense of possessing the cocaine for sale....” (Id. at p. 984.) The court explained that possession is not an essential element of the sale offense because a person could broker a sale of controlled substance that was in the exclusive possession of another. (Ibid.)
Other courts have stated in dicta, or without any thorough analysis, that possession of cocaine for sale is a necessarily included offense of the sale of cocaine. (E.g., People v. Parker (1992) 8 Cal.App.4th 110, 112 [the issue was conceded, and the concession was accepted without analysis]; People v. Solorzano (1978) 84 Cal.App.3d 413, 415 [same]; People v. Tinajero (1993) 19 Cal.App.4th 1541, 1547 [trial court had a duty to instruct on lesser included offenses of possession for sale and simple possession when both were lesser included offenses under the facts of the case].) However, none of those cases noted that possession of a controlled substance is not a necessary element of the offense of sale of a controlled substance. We therefore reject those authorities, on which defendant relies, and adopt the compelling reasoning of the Murphy court. The offense of possession of cocaine base for sale was not a lesser included offense of sale of cocaine base, and we therefore conclude defendant was properly convicted of both offenses.
D. Section 654
Defendant contends the trial court erred under section 654 in imposing a consecutive sentence for count 2, because counts 1 and 2 were based on a single course of conduct.
1. Standard of Review
Whether a defendant had a single intent and objective, and whether his conduct constituted a single act or indivisible course of conduct, are factual questions for the trial court. We review those findings, whether explicit or implicit, in the light most favorable to the judgment, presuming in support of the findings the existence of every fact the trial court could reasonably deduce from the evidence. (People v. Green (1996) 50 Cal.App.4th 1076, 1085; People v. Moseley (2008) 164 Cal.App.4th 1598, 1603.)
2. Trial Court’s Finding
The trial court sentenced defendant to consecutive terms for counts 1 and 2, from which we may imply a finding that the offenses of selling cocaine base in count 1 and possession of cocaine base for sale in count 2 involved separate and independent criminal objectives. (See People v. Garcia (2008) 167 Cal.App.4th 1550, 1564.) Defendant argues, however, that in denying his motion to dismiss the gang allegations, the trial court expressly indicated it believed the narcotics involved in both offenses were part of the same supply and were possessed for the same purpose, and that express indication should prevail over an implied finding.
Taking the trial court’s remarks in context, we do not believe they indicated an express finding that defendant had a single objective within the meaning of section 654. At the close of the prosecution’s case, defendant moved, pursuant to section 1118.1, to dismiss the gang allegations as to counts 1 and 2 and the substantive gang crime alleged in count 3. The motion was based on the same ground now raised on appeal—that the evidence was insufficient to support the allegations that the crimes were committed for the benefit of a gang. The trial court conceded that it was “a very, very close call, and about the only evidence that I think would support allowing this to go to the jury is the fact that it is Crip[s] territory and recognized as such by law enforcement in the community, and that the sales are carried on in that area, and the testimony is not overwhelming, but the evidence that the only outside sales occur apparently in a concealed or furtive fashion when people sneak in and then sneak out.” The trial court held, however, that the evidence was sufficient to go to the jury. Defense counsel then argued that the evidence was different as to count 2, because there was no evidence that possession with intent to sell would benefit the gang. The court responded, “I think that would be inconsistent for me to carve that out, having made the prior ruling, when we’ve got the possession case involving some 15.8 grams or some number similar to that, and it seems illogical to me that the dope that you sell at 5:15 on a corner should be treated completely differently from dope that’s found on the same person two hours and 15 or 20 minutes later than that.”
Thus, it is apparent that the trial court’s remarks were limited to the issue whether the evidence was sufficient to establish that defendant’s intent as to both counts 1 and 2 was to benefit the gang for purposes of section 186.22, subdivision (b). The court was not called upon to consider whether defendant had separate objectives as to the crimes alleged in counts 1 and 2 apart from the gang allegations.
Based on the trial court’s subsequent sentencing decision, the trial court impliedly found that defendant did have separate objectives, and we will examine that implied finding under the substantial evidence standard of review set forth above.
3. Evidence to Support Finding
Under section 654, a defendant convicted of multiple criminal offenses arising out of a single act or indivisible course of conduct may be punished only for the offense that calls for the longest term of imprisonment. (§ 654, subd. (a); People v. Villa (2007) 157 Cal.App.4th 1429, 1434.)
Other courts have upheld findings of separate objectives as to defendants convicted of crimes similar to those here. In People v. Fortier (1970) 10 Cal.App.3d 760, the defendant was convicted of selling marijuana based on his sale of the drug to a police officer at the defendant’s apartment and of possessing drugs for sale based on the seizure of marijuana and other drugs found in a subsequent search of the defendant’s apartment. (Id. at p. 763.) The court rejected the defendant’s challenge to his sentence under section 654, reasoning that the possession of narcotics after a sale was not incident to and involved a separate objective from the prior sale. (People v. Fortier, supra, at p. 765.) Other courts have similarly held that a defendant may be punished both for possession and sale if he sells only a portion of his supply. (In re Adams (1975) 14 Cal.3d 629, 633; People v. Barger (1974) 40 Cal.App.3d 662, 672; People v. Fusaro (1971) 18 Cal.App.3d 877, 893-894, disapproved on another ground in People v. Brigham (1979) 25 Cal.3d 283, 292, fn. 15.)
In Murphy, the court stated, without discussion, that while the defendant was properly convicted of both the sale of cocaine and the possession of cocaine for sale, the trial court had properly stayed the defendant’s conviction for possession of cocaine for sale under section 654. (Murphy, supra, 154 Cal.App.4th at p. 984.) However, in that case, the defendant was arrested for a sale of rock cocaine but sped off, and following her capture after a car chase, the police found a single piece of rock cocaine in her car. (Id. at p. 982.)
Here, in contrast, defendant sold Deputy Johnson a rock of cocaine base for $20, but defendant was not immediately arrested. A few hours later, and a block away, in a parole search of defendant’s car, officers found 17 individually wrapped pieces of cocaine base. At trial, defendant admitted he had possessed those drugs for sale. We conclude substantial evidence supports the trial court’s implied finding that defendant had different intents and objectives in the two incidents, and section 654 does not therefore require staying his sentence on count 2.
E. Custody Credits
Defendant contends the trial court erred in awarding custody credits. The People concede that defendant is entitled to additional custody credits. We will accept the People’s concession for the reasons stated in their brief, and we will direct the trial court to issue an amended abstract of judgment awarding defendant a total of 1,167 days of presentence custody credit.
IV. DISPOSITION
The trial court is directed to prepare an amended abstract of judgment awarding defendant 1,167 days of presentence custody credits and to send a copy of the amended abstract to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
We concur: MCKINSTER J., GAUT J.