P. v. Lockhart

Filed 7/31/07 P. v. Lockhart CA4/1

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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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, John M. Thompson, Judge. Affirmed as modified.

In a bench trial, John D. Lockhart was convicted of selling marijuana (Health & Saf. Code,  11360, subd. (a)) and possession of marijuana for sale (Health & Saf. Code,  11359). Lockhart admitted two prior strike convictions (Pen. Code,  667, subds. (b) - (i))^[1]and two prior prison terms ( 667.5, subd. (b)). The trial court granted Lockhart's request to dismiss the prior strike conviction allegations, and sentenced him to three years in prison for selling marijuana and a concurrent two years in prison for possession of marijuana for sale. The court dismissed the two prior prison term enhancement allegations.

Lockhart contends the court erred by imposing a concurrent sentence for the possession for sale count rather than staying execution of the sentence for that count under section 654. In a supplemental brief, Lockhart claims his conviction for possession of marijuana for sale violated double jeopardy principles because under the facts of this case the possession for sale crime is a lesser included offense of the selling crime. He also contends the principles of double jeopardy preclude his conviction for possession for sale even if that offense is not a lesser included offense of sale.

FACTS

On July 20, 2006, a San Diego Police Department undercover detective approached Lockhart and two other individuals at 14th Street and Imperial Avenue and asked for a "dime," or $10 worth of marijuana. Lockhart responded, and the detective handed him a prerecorded $10 bill. Lockhart told the detective to wait and watch his belongings. Lockhart walked away and had a brief conversation with another man. The detective believed he observed a hand-to-hand transfer between Lockhart and the other man. Lockhart walked back to the detective, and placed a "green leafy substance" in the detective's hand. The detective believed the substance was marijuana and noted it covered his palm. The detective concluded it was a usable amount and signaled to other officers at the location to arrest Lockhart. A subsequent test showed the substance was marijuana.

DISCUSSION

Lockhart contends we should reverse his conviction for possession of marijuana for sale because that offense is necessarily included within the offense of selling marijuana. Lockhart claims the multiple convictions violate his constitutional protection against double jeopardy.

Section 954 generally permits multiple convictions. A defendant may be charged in a single pleading with two or more different offenses connected together in their commission and may be convicted of any number of the offenses charged. ( 954.) Consequently, a defendant may be convicted of, although not punished for, more than one crime arising out of the same act or course of conduct. ( 654, 954.) Section 654 prohibits multiple punishments. Under section 654, the trial court must stay execution of sentence on the conviction(s) for which multiple punishment is prohibited. (People v. Reed (2006) 38 Cal.4th 1224, 1226-1227.)

California courts have recognized an exception to the general rule permitting multiple convictions─namely, "multiple convictions may not be based on necessarily included offenses." (People v. Pearson (1986) 42 Cal.3d 351, 355.) Although two tests have traditionally been used to identify necessarily included offenses─the elements test and the accusatory pleading test─it is now established that only the statutory elements may be used when deciding whether a defendant may be convicted of multiple charged crimes. (People v. Reed, supra, 38 Cal.4th at pp. 1227-1228, 1231.) "Under the elements test, if the statutory elements of the greater offense include all of the statutory elements of the lesser offense, the latter is necessarily included in the former." (Id. at p. 1227.) The evidence at trial is not to be considered in determining whether one offense necessarily is included within another. (People v. Ortega (1998) 19 Cal.4th 686, 698, overruled on another point in People v. Reed, supra, at pp. 1228-1229, 1231.)

Under the elements test, possession of marijuana for sale is not a necessarily lesser included offense of selling marijuana because the possession offense contains an element that the sale offense does not─knowing possession of a usable quantity. A conviction for selling a controlled substance does not require proof of possession or of a usable amount. (People v. Peregrina-Larios (1994) 22 Cal.App.4th 1522, 1524; see also Judicial Council of Cal. Crim. Jury Instns. (2006-2007), CALCRIM No. 2350 [elements of sale offense are (i) the defendant sold a controlled substance; (ii) the defendant knew of its presence; (iii) the defendant knew of the substance's nature or characteristic as a controlled substance; and (iv) the controlled substance was marijuana].) Because possession and amount are not required elements of the sale offense, possession for sale of marijuana is not a lesser included offense under the elements test. (See People v. Murphy (2005) 134 Cal.App.4th 1504, 1508 [for example, "one can broker a sale of a controlled substance that is within the exclusive possession of another"], disapproved on another ground in People v. Reed, supra, 38 Cal.4th at p. 1228; see also People v. Thomas (1996) 42 Cal.App.4th 798, 804; People v. Watterson (1991) 234 Cal.App.3d 942, 947.) Lockhart was properly convicted of both possessing marijuana for sale and selling marijuana.

Lockhart relies on People v. Sheldon (1967) 254 Cal.App.2d 174 to challenge his convictions for possession for sale and sale. In that case, the Court of Appeal held a defendant could properly be convicted of both selling marijuana and possession of marijuana for sale where the sale involved marijuana distinct from other marijuana in the defendant's possession (id. at p. 182), but "where the only possession shown is necessarily incidental to its sale . . . separate convictions for sale and possession cannot be had." (Id. at p. 182.) Lockhart points out that in this case the only marijuana he possessed was also sold. Because the Sheldon analysis requires consideration of evidence admitted at trial, it has effectively been overruled by People v. Ortega, supra, 19 Cal.4th at page 698 and People v. Reed, supra, 38 Cal.4th at pages 1229-1230. Accordingly, we decline to follow the language in People v. Sheldon, supra, 254 Cal.App.2d 174, on which Lockhart relies.

The Attorney General concedes Lockhart was improperly sentenced on both counts. Although section 654 permits multiple convictions, it prohibits multiple punishment. (In re Adams (1975) 14 Cal.3d 629, 636; People v. Avalos (1996) 47 Cal.App.4th 1569, 1583.) Section 654's proscription applies to both concurrent and consecutive sentences because even concurrent sentences may be disadvantageous to a defendant when fixing his term and parole date. (In re Adams, supra, at p. 636.)

Here, both of Lockhart's convictions derived from his selling marijuana to an undercover detective. Because Lockhart cannot be punished for both possessing marijuana for sale and selling the same marijuana, execution of his concurrent two-year sentence on the possession for sale count must be stayed under section 654, subdivision (a). On remand, execution of the two-year sentence for possessing marijuana for sale shall be stayed.

Lockhart contends that double jeopardy principles prohibit his conviction of possession for sale even if that offense is not a lesser included offense to sale. The guarantees against double jeopardy in the United States and California Constitutions bar successive prosecutions and multiple punishments for greater and lesser included offenses, but they do not bar multiple convictions within a single prosecution for which only one punishment is imposed. (See Brown v. Ohio (1977) 432 U.S. 161, 169; People v. Seel (2004) 34 Cal.4th 535, 541-542.) In a single prosecution, Lockhart was convicted of selling marijuana and possession for sale of marijuana and, on remand, execution of his sentence on the possession count will be stayed. Therefore, Lockhart will receive only one punishment for his conviction on the two counts. Under these circumstances, there is no double jeopardy violation.

DISPOSITION

The sentence on the possession for sale count (count 2) is modified to stay execution of the sentence. The trial court is directed to correct the abstract of judgment to reflect the sentence on count 2 is stayed under section 654, prepare an amended abstract of judgment reflecting this modification, and forward a certified copy of the

amended abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.

McDONALD, J.

WE CONCUR:

NARES, Acting P. J.

McINTYRE, J.

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^[1] All subsequent statutory references are to the Penal Code.