P. v. Bills

Filed 6/21/07 P. v. Bills CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(San Joaquin)

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A jury convicted Lydella Leah Bills in case No. SF098984A of one count of possession of methamphetamine for sale (Health & Saf. Code, 11378) and two counts of possession of a forged drivers license (Pen. Code, 470b).^[1] Defendant was sentenced to two years in prison.^[2]

On appeal, defendant raises three issues: first, her convictions under counts 2 and 3 (possession of forged drivers licenses; 470b) were not based on substantial evidence; second, the trial court erred in failing to instruct the jury on Vehicle Code section 14610 as a lesser included offense of section 470b; and third, the trial court erred in instructing the jury on consciousness of guilt under Judicial Council of California Criminal Jury Instructions (2006-2007) CALCRIM No. 362. We will affirm the judgment.

Background

On a January morning in 2006, two San Joaquin County deputy sheriffs responded to a call to check a silver PT Cruiser in the parking lot of a Stockton motel. The officers ordered the driver, who was the defendant, and the passenger out of the vehicle, and they allowed the passenger to leave. In searching the vehicle, the officers found a purse behind the drivers seat.

The purse contained a wallet with three drivers licenses and four credit cards inside. Two of the licenses contained defendants picture, but other peoples names. One witness, A.T., testified that one of the altered licenses found in defendants purse was hers. Another witness, J.M., testified that the other altered license and all four credit cards found in the purse were hers. J.M. added that her drivers license and credit cards had been stolen on December 20, 2005, and she had filed a report with the Stockton Police Department.

Further search of the purse revealed a gram scale, a small plastic measuring spoon, a glass pipe, and several baggies of methamphetamine. The purse also contained a cell phone and $46. In addition, one of the officers found a motel receipt in the drivers side door.

Defendant told one of the officers that she got the licenses from a friend and she was supposed to use them, but she did not actually do so because she was afraid to. She said that she did not know the people whose names were on the licenses and credit cards. When asked how her picture ended up on the licenses, defendant replied, Its amazing what you can do with computers these days.

Regarding the drugs, defendant admitted the methamphetamine was hers and said it was for her own personal use. She told one of the officers that she used the scale to weigh her jewelry and the plastic spoon to measure drugs that she gives to her friends. Defendant admitted using the pipe to smoke methamphetamine. When the officer asked defendant what she did for a living, she said she made money by hustling; doing odd jobs for people.

A criminalist tested the contents of two of the baggies found in defendants purse, and testified that one of them contained 7.56 grams of methamphetamine and the other .27 grams. A detective who qualified as a narcotics expert opined that defendant possessed the methamphetamine for sale.

Discussion

1. Sufficiency of the Evidence

Defendant contends that her two convictions for possession of a forged drivers license (counts 2 and 3) were not supported by substantial evidence. Defendant maintains that the evidence was insufficient to show that she intended to use the drivers licenses to commit a forgery. We disagree.

In assessing the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment. (People v. Johnson (1980) 26 Cal.3d 557, 576.) The record must contain evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt. (Johnson, supra, 26 Cal.3d at p. 576.) Reversal is unwarranted unless it appears that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction]. (People v. Redmond (1969) 71 Cal.2d 745, 755.)

The crime of possession of a forged drivers license comprises the following elements, as the jury was correctly instructed: (1) defendant possessed a drivers license; (2) the drivers license was altered; (3) defendant knew that the drivers license had been altered; and (4) defendant intended to use the license to commit a forgery. ( 470b; CALCRIM No. 1921.) Defendant only contests the sufficiency of the evidence to prove the fourth element of the crime, i.e., intent to commit forgery.

Here, the two deputy sheriffs found a purse in defendants car. Inside the purse they found a wallet that contained three drivers licenses. Two of the licenses had defendants picture on them, but other peoples names. The wallet also contained four credit cards that matched the name on one of the altered licenses; these credit cards and this license had previously been reported stolen.

After searching defendants car, one of the officers questioned defendant about the items found. Defendant indicated that the licenses and credit cards were given to her by a friend, but she did not act on them because she was afraid to. When asked to clarify what she meant by act on them, defendant responded, If you look at the cards and the ID, I was supposed to go in and use them.

Taking the evidence as a whole, a reasonable juror could have found, beyond a reasonable doubt, that defendant possessed the drivers licenses with the intent to commit a forgery. [I]ntent is inherently difficult to prove by direct evidence. Therefore, the act itself, together with its surrounding circumstances must generally form the basis from which the intent of the actor may legitimately be inferred. (People v. Edwards (1992) 8 Cal.App.4th 1092, 1099.)

In the instant case, defendants intent may be inferred from the circumstances surrounding her possession of the forged drivers licenses. The licenses were found in a wallet inside defendants purse, along with four stolen credit cards. Two of the licenses contained defendants picture but other peoples names. In fact, the name on one of these two licenses matched the name on all four stolen credit cards. From these circumstances, the jury could reasonably infer that defendant possessed the drivers licenses with the intent to commit a forgery.

In addition, defendants statements to one of the officers support a finding of intent to commit a forgery. While defendant denied actually using the licenses because she was afraid to do so, she also stated that she was supposed to go in and use them. This last statement is evidence of an intent to use the licenses to commit a forgery.

We conclude there was sufficient evidence to support defendants convictions under counts 2 and 3 for possession of a forged drivers license.

2. Lesser Included Offense

Defendant contends the trial court erred by failing to instruct the jury, on the courts own initiative (sua sponte), on Vehicle Code section 14610 as a lesser included offense of the section 470b offense of possession of a forged drivers license. We disagree.

A trial court has a sua sponte duty to instruct a jury on a lesser included offense if the evidence raises a question as to whether all of the elements of the charged offense are present and there is evidence that would justify a conviction of such a lesser offense. [Citations.] [Citations.] (People v. Lopez (1998) 19 Cal.4th 282, 287-288.) To find a lesser included offense, one of two tests must be met. (Id. at p. 288.) Under the statutory elements test, if [the statutory definition of] a crime cannot be committed without also necessarily committing a lesser offense, the latter is a lesser included offense within the former. (Ibid.) The accusatory pleading test is satisfied if the charging document describes the elements of the crime in such a way that commission of the charged crime necessarily leads to commission of a lesser offense. (Id. at pp. 288-289.)

Defendant was charged with two violations of section 470b, which provides in relevant part:

Every person who displays . . . or has in his possession any [altered] drivers license or identification card . . . with the intent that such drivers license or identification card be used to facilitate the commission of any forgery, is punishable by . . . .

Vehicle Code section 14610, subdivision (a), provides as pertinent:

(a) It is unlawful for any person: []  (1) To display . . . or have in his possession any canceled, revoked, suspended, fictitious, fraudulently altered, or fraudulently obtained drivers license.

As defendant concedes, Vehicle Code section 14610 is not a lesser included offense of section 470b under the statutory elements test. A violation of section 470b can be accomplished with either a drivers license or an identification card, but Vehicle Code section 14610 applies only to drivers licenses. ( 470b; Veh. Code, 14610.) A person in possession of a fraudulent identification card with the intent to commit a forgery would violate section 470b but not Vehicle Code section 14610. Therefore, the elements test is not met in the instant case.

However, defendant contends Vehicle Code section 14610 is a lesser included offense to the section 470b charge here when analyzed under the accusatory pleading test. We disagree.

The charging information alleges that defendant unlawfully possessed, under section 470b, a drivers license and identification card. In order for Vehicle Code section 14610 to be a lesser included offense under the accusatory pleading test, the pleading would have to narrow the language of the section 470b charge to eliminate identification cards. The pleading alleges both a drivers license and an identification card. An alleged violation of section 470b involving an identification card does not amount to an alleged violation of Vehicle Code section 14610.

Even assuming for the sake of argument that Vehicle Code section 14610 is a lesser included offense of section 470b, we still find that the trial court did not have a duty to instruct on the lesser offense. The trial court is only required to instruct on a lesser included offense if the evidence raises a question as to whether all of the elements of the charged offense were present. (People v. Breverman (1998) 19 Cal.4th 142, 154.) There is no duty to instruct when the evidence is not substantial enough to merit consideration by the jury. (Id. at p. 162.)

Defendant essentially argues that the lack of sufficient evidence as to her intent to commit a forgery shows that the jury might have found her guilty of mere possession of an altered license, as opposed to possession with intent to commit a forgery. As we stated previously in our discussion of the sufficiency of the evidence, there was sufficient evidence to establish defendants intent to commit a forgery.

We conclude the trial court did not err in failing to instruct sua sponte on Vehicle Code section 14610 as a lesser included offense of section 470b.

3. CALCRIM No. 362: Consciousness of Guilt

Finally, defendant contends the trial court erred prejudicially by instructing the jury with CALCRIM No. 362. Defendant argues there was insufficient evidence to support the instruction and it was an improper factual pinpoint instruction. We disagree.

The court instructed the jury with CALCRIM No. 362 as follows:

If the defendant made a false or misleading statement relating to the charged crime, knowing the statement was false or intending to mislead, that conduct may show she was aware of her guilt of the crime and you may consider it in determining her guilt. []  If you conclude that the defendant made the statement, it is up to you to decide its meaning and importance. []  However, evidence that the defendant made such a statement cannot prove guilt by itself.

CALCRIM No. 362 is the successor to CALJIC No. 2.03, regarding consciousness of guilt and false statements. The California Supreme Court has repeatedly rejected the argument that CALJIC No. 2.03 is an impermissible pinpoint instruction. (People v. Kipp (1998) 18 Cal.4th 349, 375; People v. Jackson (1996) 13 Cal.4th 1164, 1222-1224; People v. Arias (1996) 13 Cal.4th 92, 142; People v. Kelly (1992) 1 Cal.4th 495, 531-532.) Accordingly, the instruction in the present case was not an improper pinpoint instruction.

Defendants argument that the instruction was not supported by sufficient evidence is equally without merit. Defendants statements to the questioning officer regarding the methamphetamine, gram scale, measuring spoon, and her employment provided sufficient evidentiary support for the instruction as to the possession for sale charge. When the officer questioned defendant about the drugs found in her purse, she said they were for her own personal use. Additionally, she said she used the scale to weigh her jewelry and the plastic spoon to measure drugs that she gives to her friends. In response to the deputys questions about her employment, defendant said she made her money by hustling; doing odd jobs for people. The narcotics detective opined, as an expert, that defendant possessed the methamphetamine for sale, and that it was not unusual for someone in defendants position to claim that she merely possessed the drug for personal use.

Defendants statements and the detectives expert testimony provided the jury with sufficient evidence to determine whether defendants statements were false or misleading. If the jury did not find the statements to be false or misleading, then it could not use them as evidence of a consciousness of guilt. (CALCRIM No. 362.)

We conclude the trial court properly instructed the jury with CALCRIM No. 362.

Disposition

The judgment is affirmed.

DAVIS, Acting P.J.

We concur:

RAYE , J.

HULL, J.

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^[1] Hereafter, undesignated section references are to the Penal Code.

^[2] At the time of these three convictions in case No. SF098984A, defendant was on probation for a previous conviction (case No. SF097697A) for selling a controlled substance. (Health & Saf. Code, 11379.) Probation was revoked in case No. SF097697A and a concurrent sentence imposed.