Does Section 654 of the Penal Code apply to Count 3 of the Unlawfully Possessed Controlled Substitute?

Defendant further argues he should not have been convicted of counts 2 and 4 (sale of a controlled substance) because he was also convicted in counts 1 and 3 of possessing cocaine base for sale. This is because under People v. Schroeder (1968) 264

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Cal.App.2d 217, each conviction involved the same type of drug, cocaine base. In People v. Schroeder, the defendant was charged with and convicted of nine counts of unlawfully possessing a controlled substance when he was found in possession of a box of prescription drugs stolen from a pharmacy. The appellate court concluded the defendant should have been convicted of two counts rather than nine because the drugs that he possessed were of only two typesopiates and morphine derivatives. (Id. at p. 228) We agree with the People that the reasoning in People v. Schroeder does not apply here. Whereas counts 2 and 4 are for sale of a controlled substance, counts 1 and 3 are for possession for sale of cocaine base. People v. Schroeder might apply here only if all of the counts were for possession.⁴ They are not, and so defendant's argument fails.

3. Penal Code Section 654 Does Not Apply to Count 3.