Filed 10/11/17 P. v. Decker CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FIFTH APPELLATE DISTRICT
| THE PEOPLE,
Plaintiff and Respondent,
v.
LONNIE RAY DECKER,
Defendant and Appellant.
|
F075016
(Super. Ct. No. 2061976)
OPINION |
THE COURT*
APPEAL from a judgment of the Superior Court of Stanislaus County. Shawn D. Bessey, Judge.
Robert Navarro, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Jennifer Oleksa, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Defendant Lonnie Ray Decker was convicted of transportation of a controlled substance for sale (Health & Saf. Code, § 11352, subd. (a)).[1] On appeal, he contends the trial court prejudicially erred in instructing the jury that the crime was a general intent crime. The People concede and we agree. Accordingly, we reverse.
On July 15, 2016, a jury found defendant guilty of transportation of a controlled substance for sale (§ 11352, subd. (a)) and not guilty of possession of a controlled substance for sale (§ 11351). Defendant admitted having suffered prior convictions. The trial court sentenced him to a total of 10 years in prison: the midterm of four years, doubled pursuant to the “Three Strikes” law (Pen. Code, §§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), plus two one-year prior prison term enhancements (Pen. Code, § 667.5, subd. (b)).
The parties recognize transportation of a controlled substance for sale (§ 11352, subd. (a)) has been a specific intent crime since 2014 (see People v. Lua (2017) 10 Cal.App.5th 1004, 1012), and they agree the trial court prejudicially erred when it instructed that the crime was a general intent crime. We agree the record supports a finding that the error was not harmless beyond a reasonable doubt. (Neder v. United States (1999) 527 U.S. 1, 8-15 [misinstructing/omitting an element of the crime is subject to harmless error analysis under Chapman v. California (1967) 386 U.S. 18, 24 (reversal is required unless it appears “ ‘beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained’ ”)]; People v. Hughes (2002) 27 Cal.4th 287, 348-353; People v. Flood (1998) 18 Cal.4th 470, 491-504.)
DISPOSITION
The conviction for transportation of a controlled substance for sale (Health & Saf. Code, § 11352, subd. (a)) is reversed. We remand the case for retrial on this count if the prosecutor so chooses.
