P. v. Hughes

Filed 2/23/06 P. v. Hughes CA4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Kings County. James LaPorte, Commissioner.

James M. Crawford, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, Wanda Hill Rouzan, Deputy Attorney General, for Plaintiff and Respondent.

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Defendant Samuel Lee Hughes challenges his convictions of marijuana cultivation and being a felon in possession of a firearm. He argues that the trial judge responded inadequately to the jury's request for clarification of a jury instruction. He also argues that the trial court improperly imposed consecutive sentences for the two crimes based on facts not found by the jury. We reject these contentions and affirm the judgment.

FACTUAL AND PROCEDURAL HISTORIES

Police searched defendant's trailer and property and found a number of live marijuana plants. They also found a loaded .22 caliber rifle under the bed. The district attorney filed an information charging defendant with cultivating marijuana (Health & Saf. Code, § 11358) and being a felon in possession of a firearm (Pen. Code, § 12021, subd. (a)(1)).

At trial, defendant's nephew testified that the marijuana plants were his, not defendant's, and that defendant knew nothing about them. The nephew also testified that the rifle belonged to his girlfriend, not to defendant. In his closing statement, the prosecutor argued that even if the plants and gun did not belong to defendant, he could be guilty if he constructively possessed them and also could be guilty as an aider and abettor.

The trial court read the jury the standard aiding-and-abetting instruction, CALJIC No. 3.01. CALJIC No. 3.01 states that a person aids or abets in the commission of a crime if (among other elements) the person â€