P.v . Davis

Filed 8/30/07 P.v . Davis CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION TWO

APPEAL from a judgment of the Superior Court of Los Angeles County. Anita H. Dymant, Judge. Affirmed.

Simmons & Koester and James Koester, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Scott A. Taryle and Beverly K. Falk, Deputy Attorneys General, for Plaintiff and Respondent.

Donald Dean Davis (appellant) appeals from a judgment entered after a jury trial in which he was convicted of the sale of methamphetamine, in violation of Health and Safety Code section 11379, subdivision (a). We affirm.

CONTENTIONS

Appellant contends that: (1) the trial court erred when it failed to instruct the jury as to the lesser included offenses of possession for sale and simple possession of a controlled substance; and (2) the trial court failed to properly advise appellant before taking his admission of the prior conviction.

BACKGROUND

1. The Prosecution Evidence

Los Angeles Police Officer Michael Saragueta was assigned to a citywide narcotics buy team. The buy team was a unit that worked in an undercover capacity to combat street sales of narcotics. Members of the unit would dress in plain clothes and attempt to contact narcotics sellers and make controlled purchases.

On October 6, 2005, Officer Saragueta was in the vicinity of Hollywood Boulevard and Wilcox Avenue in Los Angeles. At approximately 8:00 p.m., he came into contact with appellants co-defendant, Christopher Kemp. Officer Saragueta asked Kemp if anyone around was selling crystal, a street name for crystal methamphetamine. Kemp asked Officer Saragueta how much he wanted. Officer Saragueta responded that he wanted $30 worth. Kemp indicated that someone would be there with it in about 20 minutes. Officer Saragueta responded that he would be back, and then walked southbound on Cahuenga.

Officer Saragueta walked approximately one block when he heard someone yell. He turned around and saw Kemp waving his arms. He approached Kemp, who informed him that the guy had arrived with Officer Saraguetas 30, referring to the $30 worth of methamphetamine. Kemp began walking, and Officer Saragueta followed approximately 10 feet behind. Saragueta then saw appellant come out of the Spotlight Bar. Kemp and appellant began speaking to each other, but Officer Saragueta could not hear what they were saying. They then told Officer Saragueta to follow them. At one point, appellant turned around and introduced himself to Officer Saragueta as Don. Appellant also told Officer Saragueta that they would be going inside somewhere to do the deal.

As they walked, Kemp explained to Officer Saragueta that when they got inside, Kemp would ask for the money, Officer Saragueta would give it to him, and then appellant would give the crystal to Kemp who would give it to Officer Saragueta. Officer Saragueta then followed appellant and Kemp into Grecos pizza restaurant on the corner of Hollywood Boulevard and Cahuenga Boulevard. As appellant walked by the counter, he ordered a soda. The three men sat down at a table at the back of the restaurant.

At the table, Kemp asked Officer Saragueta for the money. Officer Saragueta handed him six previously recorded $5 bills. Kemp handed the money to appellant, who took it and placed it on his lap. Then appellant took out a clear plastic Ziploc bag containing a crystal-like substance, which Officer Saragueta recognized as crystal methamphetamine. Appellant poured some contents from the Ziploc bag into a clear cellophane wrapper or bindle. Kemp wrapped up the bindle and handed it to Officer Saragueta. After accepting it, Officer Saragueta stood up and left. He then gave his fellow officers a predetermined signal indicating that a narcotics transaction had taken place.

Los Angeles Police Officer Jason Witt thereafter entered Grecos pizza, where appellant and Kemp were sitting, handcuffed appellant, and recovered a small, clear plastic bag containing a crystal-like substance resembling methamphetamine from appellants left front pocket. Officer Witts partner, Los Angeles Police Officer Paul Quan, entered the restaurant and handcuffed Kemp. Kemp was clutching a $5 bill in his left hand. Los Angeles Police Officer Daniel Diaz recovered five $5 bills from the restaurant table where appellant had been sitting.

Detective Vip Kamchanamongkol was present when Officer Quan recovered the $5 bill from Kemp. He took possession of the $5 bill as well as the bag containing the crystal-like substance. Detective Kamchanamongkol turned over the evidence to Detective Rickey Green, who was in charge of the operation. Los Angeles Police Officer Alexander Howell arrived at the restaurant as Officers Witt and Quan were leaving with the suspects. Officer Howell recovered two Ziploc bags containing a white crystal-like substance resembling methamphetamine from the floor at the back table. The bags were also given to Detective Green.

Detective Green in turn gave the evidence in his possession to Officer Saragueta. Officer Saragueta booked into evidence the bindle he obtained as well as the items from Detective Green. Officer Saragueta verified that the currency matched the photocopy he had made before the sale.

Jeffrey Lowe, a criminalist for the Los Angeles Police Department Scientific Investigation Division, examined the evidence. He concluded that the crystal-like substance in all four bags was methamphetamine.

2. The Defense Evidence

Glenda Joanne Vasquez testified that she was inside Grecos pizza at around 8:00 p.m. on October 6, 2005. She saw three men, including appellant, enter the restaurant. Appellant was at the counter ordering while the other two men sat at a table. Appellant was still at the counter when one of the men at the table walked away. Appellant walked to the table a couple of minutes before some officers entered the restaurant and handcuffed appellant and his companion. Vasquez did not know any of the men involved in the incident, but claimed that one of her friends told her that he had met an individual in jail who was arrested that night at Grecos pizza. She went to Mens Central Jail to see if it was the same individual she observed that night. Upon seeing appellant, she knew it was the same person she had seen that night. She gave him her contact information and let him know that she would be willing to testify if his lawyer got in touch with her. Vasquez indicated that she was not promised or given anything in return for her testimony, but testified because she believed that an innocent person did not belong in jail.

Kemp waived his right to remain silent and testified on appellants behalf. He testified that he obtained the methamphetamine from someone other than appellant. However, he refused to identify the individual who allegedly gave him the methamphetamine. He testified that when he saw appellant outside of the bar on Cahuenga Boulevard, he asked appellant if he had any change. The bar wouldnt let him inside because he didnt have any identification, so they continued walking. They went into Grecos so that Kemp could get a soda.

According to Kemps testimony, as they were walking toward Grecos, Kemp saw Officer Saragueta. He told Officer Saragueta to follow them. Once in the restaurant, appellant went to the counter to get a soda and Kemp and Saragueta sat down at a table in the back. Kemp testified that he put the crystal in a bag and handed it to Saragueta, who then gave him the money. According to Kemps testimony, appellant never came back to the table because he got caught in line waiting for a soda. Kemp specifically testified that appellant didnt have nothing to do with it. He also testified that appellant had no knowledge of the drugs or the drug transaction.

3. The Trial

Appellant and Kemp were tried by a jury on a one-count information alleging that on or about October 6, 2005, they sold a controlled substance, methamphetamine, in violation of Health and Safety Code section 11379, subdivision (a). It was further alleged as to appellant that he suffered a prior conviction of a serious or violent felony within the meaning of Penal Code section 1170.12, subdivisions (a) through (d) and Penal Code section 667, subdivisions (b) through (i) (the Three Strikes law).^[1]

Prior to the submission of instructions to the jury, appellant requested an instruction as to the lesser related offense of simple possession. The court denied the request on the ground that it did not have the power to instruct on lesser related offenses unless the People agreed.

After the matter was submitted to the jury, but prior to the verdict, appellant agreed to waive his right to a jury trial on the allegation that he had suffered a prior conviction of a serious or violent felony or juvenile adjudication pursuant to the Three Strikes law. Thereafter, the jury found both appellant and Kemp guilty of the charged offense. The court trial on the prior conviction allegation was put off until the sentencing date. At the sentencing date, appellant decided to waive his right to a court trial and admit the prior conviction allegation.

The court denied probation and sentenced appellant to the mid-term of three years, doubled to six years because of the prior strike. The court awarded appellant custody credits of 280 days actual, plus 140 days of good time/work time credits for a total of 420 days. The court ordered appellant to pay a $200.00 restitution fine under Penal Code section 1202.4, subdivision (b) and imposed and stayed, pending successful completion of parole, a parole revocation fine of $200.00. Additionally, the court imposed a $20.00 court security fee and a $50.00 fee for the analysis of the drugs recovered and ordered appellant to register as a narcotics offender.

Appellant filed a timely notice of appeal.^[2]

DISCUSSION

I. The Trial Court Did Not Err in Declining to Instruct the Jury on Possession of a Controlled Substance or Possession for Sale

Prior to the submission of the case to the jury, defense counsel asked the court to instruct the jury as to simple possession of a controlled substance. While defense counsel initially described simple possession as a lesser included offense, he immediately backed away from that description, referring to it as a lesser and related offense: We would like a lesser-included for simple possession for the drugs that were found -- I am sorry, lesser and related . . . for the drugs found separately on Mr. Davis by Officer Witt in his pocket. In response, the court indicated its understanding of the law to be that it had no power to instruct on a lesser related offense unless the prosecution moved to amend its charges.

Appellant now argues that both simple possession, and possession of a controlled substance for sale, are lesser included offenses to the sales charge, not lesser related offenses. The court has a duty to instruct the jury on any lesser included offense supported by substantial evidence. (People v. Breverman (1998) 19 Cal.4th 142, 153.) Because the possession crimes are lesser included offenses, appellant argues, the trial court had a sua sponte obligation to instruct the jury on these offenses. (People v. Birks (1998) 19 Cal.4th 108, 118-119.)

A claim that the trial court erred in failing to instruct the jury on a lesser included offense is reviewed for a determination of whether it is reasonably probable that a result more favorable to the defendant would have been reached in the absence of such error. (People v. Breverman, supra, 19 Cal.4th at p. 165.)

A. Possession is Not a Lesser Included Offense to the Charge of Sale of Contraband

[W]here an offense cannot be committed without necessarily committing another offense, the latter is a necessarily included offense to the former. (People v. Pearson (1986) 42 Cal.3d 351, 355, quoting People v. Greer (1947) 30 Cal.2d 589, 596, overruled on other grounds in People v. Fields (1996) 13 Cal.4th 289.) A lesser charge meets this description if it satisfies one of two tests. The elements test is satisfied if the statutory elements of the greater offense include all the elements of the lesser offense [citation], so that the greater offense cannot be committed without committing the lesser offense. The accusatory pleading test is satisfied if the facts actually alleged in the accusatory pleading, include all the elements of the lesser offense, such that the greater [offense] charged cannot be committed without committing the lesser [offense]. [Citation.] (People v. Cook (2001) 91 Cal.App.4th 910, 918.)

1. The Elements Test

We do not agree with appellants position that the elements of simple possession and possession for sale are necessarily included in the elements of the sales offense. The essential elements of unlawful possession of a controlled substance are dominion and control of the substance in a quantity usable for consumption or sale, with knowledge of its presence and of its restricted dangerous drug character. (People v. Martin (2001) 25 Cal.4th 1180, 1184.) In contrast, a conviction for selling a controlled substance does not require proof of possession at all, much less possession of a usable quantity. (People v. Peregrina-Larios (1994) 22 Cal.App.4th 1522, 1524; see also People v. Murphy (2005) 134 Cal.App.4th 1504, 1508-1509, vacated and remanded on another ground in Murphy v. California (2007) ___ U.S. ___ [127 S.Ct. 1242] [finding that possession is not an essential element of the sale offense because one can broker a sale of a controlled substance that is within the exclusive possession of another].)

The Peregrina-Larios court used the elements test to arrive at the conclusion that simple possession of a controlled substance cannot be a necessarily lesser included offense of selling or offering to sell--although it could be a lesser related offense. [Citation.] (People v. Peregrina-Larios, supra, 22 Cal.App.4th at p. 1524.) The court explained that one of the elements of simple possession is knowing possession of a usable quantity. Because this is not a required element of the crime of sale of amphetamines, the court concluded that a conviction for selling controlled substances does not require proof of possession. Following the guidance of Peregrina-Larios and Murphy, we conclude that possession is not a lesser included offense to the sales charge under the elements test.^[3]

2. The Accusatory Pleading Test

We further conclude that possession is not a lesser included offense under the accusatory pleading test set forth in People v. Cook, supra, 91 Cal.App.4th at page 918. Under that test, the facts actually alleged in the accusatory pleading must include all the elements of the lesser offense, such that the greater offense charged cannot be committed without commission of the lesser offense. Here, the information charged appellant with only one crime: sale of a controlled substance. The facts alleged included no charges of possession, but simply mirrored the language of Health & Safety Code section 11379, subdivision (a), charging that appellant did unlawfully transport, import into the State of California, sell, furnish, administer, and give away, and offer to transport, import into the State of California, sell, furnish, administer, and give away, and attempt to import into the State of California and transport a controlled substance, to wit, methamphetamine. This language does not encompass the element of possession. As noted in People v. Murphy, supra, 134 Cal.App.4th at pages 1508-1509, it is possible to broker a transaction and still be guilty of this crime without ever having knowing possession of a usable quantity.

In sum, we find that neither simple possession nor possession for sale are necessarily included offenses to the charge of sale of contraband under either the elements test or the accusatory pleading test. Because they are not lesser included offenses, the trial court did not err in failing to instruct the jury as to simple possession or possession for sale.

B. Possession is Not a Lesser Included Offense Under the Facts of This Case

Appellant asks that we follow People v. Tinajero (1993) 19 Cal.App.4th 1541, in which the Court of Appeal concluded that, possession for sale, and simple possession, are lesser included offenses of the sale of cocaine under the facts of this case. [Citations.] (Id. at p. 1547.)^[4] In Tinajero, the appellant agreed to meet an undercover police officer at a highway rest stop in order to sell the officer a kilo of cocaine. The appellant drove to the designated spot and permitted the officer to enter his car and observe the contraband. Before the officer could transfer the money to complete the sale, backup officers arrived and the appellant was taken into custody. (Id. at pp. 1544-1545.) Thus, as the appellate court noted, there was a question as to whether all of the elements of the greater offense were present. (Id. at p. 1547.) In concluding that simple possession and possession for sale were necessarily included, the court made it clear that it was limiting its finding to the facts of [that] case. (Ibid.) The court then went on to note that the record specifically indicated that appellant arrived at the rest stop with a kilo of cocaine in his automobile. (Ibid.) Further, the evidence could have shown that the crime was less than that charged because the jury could have concluded that appellant never took possession of the money such that the sale was never completed. The jury could have discounted actual completion of a sale and instead found that appellant either possessed the cocaine for purposes of sale or . . . simply possessed the narcotics. (Ibid.) Thus, substantial evidence supported the lesser charge.

The facts of this case are different. In contrast to Tinajero, all of the required elements of the sale were present, therefore the jury could not have discounted the actual completion of [the] sale (Tinajero, supra, 19 Cal.App.4th at p. 1547) on the part of appellant unless it believed the testimony indicating that appellant was entirely uninvolved because he was buying a soda throughout the entire drug transaction.^[5]

The courts duty to instruct on lesser included offenses extends to every lesser included offense supported by substantial evidence. (People v. Breverman, supra, 19 Cal.4th at p. 153.) Here, the prosecution evidence supported appellants involvement with the sale of the methamphetamine. The defense evidence supported the theory that appellant was entirely uninvolved with that sale. No evidence which was the subject of any charge could have led the jury to conclude that appellant simply possessed the contraband independent of the sale.

In sum, we conclude that the trial court had no duty to instruct the jury on the crime of possession because it was not a lesser included offense to the sales charge. As appellants trial counsel indicated, possession was a lesser related offense. The trial court properly concluded that it was not permitted to instruct on this lesser related crime unless the prosecution agreed to an amendment of the charges. (People v. Birks (1998) 19 Cal.4th 108, 136-137.)

II. Appellants Admission to the Prior Strike Violation Was Knowingly Given

Appellants second argument is that the trial court failed to properly advise him of the potential consequences of admitting the prior conviction allegation. Specifically, appellant argues that the court failed to advise him that he was giving up his right to force the prosecution to prove that he had suffered the foreign prior conviction beyond a reasonable doubt. In addition, appellant argues that the court failed to inform him that the prosecution was required to prove all facts necessary to conclude that the prior conviction was a serious felony under the Three Strikes law beyond a reasonable doubt. Appellant notes that because the prior felony was from Florida, a foreign jurisdiction, the fact of the prior conviction itself was not necessarily per se proof that the prior conviction was a serious felony within the meaning of the Three Strikes law.

Before a trial court may accept a criminal defendants admission of a prior conviction, the court must ensure that the defendant has voluntarily and intelligently waived his constitutional trial rights, including the privilege against self-incrimination, the right to trial by jury, and the right to confront ones accusers. (People v. Howard (1992) 1 Cal.4th 1132, 1175.) However, the record need not show explicit admonitions and waivers of each of these constitutional rights. (Id. at pp. 1177-1178.) Instead, in reviewing an admission of a prior conviction, we must determine whether, under the totality of the circumstances, the record affirmatively shows that the waiver was voluntarily and intelligently made. (Ibid.) Under this standard, we find that the record shows that appellant was advised of the consequences of his admission as required by law.

Prior to trial, appellant sought dismissal of the prior strike conviction allegation pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497, primarily emphasizing the age of the offense. There was no dispute that the offense was a murder, which the court described as the most serious [offense] on your record.^[6] The court declined to grant the Romero motion.

On the record, it was disclosed that the prosecution had made a plea offer of four years as a second strike. The prosecutor explained that the other three felonies of which appellant had been convicted should have been filed as second strike cases, but the prosecution was not aware of the information regarding the prior strike alleged in this case. The prosecutor explained the plea offer as follows:

I told him I will keep the offer open, today only, of four years. Thats two years doubled. Thats the lowest I can go. Its the low term times two or four. Besides that, the case is not worth four years. Its a six-year case or greater. So after this moment, if you reject the case, its now a six-year case, and thats what the People [have] offered. But its four years right now.

The prior conviction allegations were bifurcated. After the jury retired to deliberate, the court inquired whether or not there would be a jury waiver or an admission of the prior conviction allegations so that the court would know what to do if the jury announced a verdict. Appellants counsel indicated that he had not yet spoken to appellant about it, but Kemps counsel indicated that Kemp intended to admit his prior strike allegation. In appellants presence, the court informed Kemp that he had a partial right to a jury trial on the issue of whether or not the prior conviction happened. The prosecutor also informed Kemp, in appellants presence, that he had a right to confront and cross-examine any witnesses that testified in connection with the prior strike allegation, and that Kemp would have the right to either testify or remain silent. Kemp then admitted the prior, having acknowledged the rights that he was giving up. His counsel joined the admission, and the court accepted it.

Appellants counsel requested a five-minute recess to confer with his client. Following the recess, appellants counsel informed the court that, if the jury returned a guilty verdict, appellant would have a court trial on the prior conviction allegation and would waive a jury trial. The court then proceeded with the jury waiver. The court asked appellant if he had enough time to talk with his attorney about his options regarding the prior conviction, to which appellant responded in the affirmative. The court then asked appellant if he understood that he had the right to a jury trial. Appellant again responded in the affirmative. The court then asked appellant, Do you now waive and give up your right to have a jury decide the truth of the prior conviction allegation and agree that for this court to make that decision if it becomes necessary? Appellant responded, Yes, Your Honor, I do. Appellants counsel and the People joined in the waiver and the court accepted it.

The jury found both Kemp and appellant guilty. Appellants sentencing was continued until after the court trial on the prior conviction allegation and Romero motion. At the commencement of the continued hearing, appellants counsel announced that appellant intended to admit the prior strike allegation. The prosecutor summarized the amended prior strike allegation and asked whether appellant would like to admit it. Appellant responded in the affirmative. The following exchange then took place:

MS. HULEY [Deputy District Attorney]: Do you understand that as to that prior conviction you have a right to a -- well, youve waived your right to a jury trial. So you have a right to a court trial, and at that court trial you have a right to -- let me get it together here.

You have a right to call witnesses or you have the right to remain silent.

You have a right to use the subpoena power of the court to bring in any witnesses to testify on your behalf.

You have a right to -- someone help me out.

You have a right to see, confront and cross-examine through your attorney any witnesses who would testify on behalf of the People.

And I am drawing a blank. I am sorry, Your Honor.

THE COURT: Thats okay. I think you have pretty much gone through them.

MS. HULEY: Okay. And you also have the right to remain silent, which means that if you chose to -- you dont have to testify on your own behalf, and if you chose to remain silent, you could do that as well. By admitting to the prior conviction, you are giving up that right to remain silent.

Do you understand those rights?

[APPELLANT]: Yes, I do.

MS. HULEY: And as to those rights, do you waive and give them up?

[APPELLANT]: Yes.

MS. HULEY: Okay. Then as to the second degree murder conviction with the date of 10-9-1985 with the case No. 84-1315-CFA, do you admit that you had that prior conviction?

[APPELLANT]: Yes.

The record thus affirmatively shows that, under the totality of the circumstances, appellant was advised of and knowingly waived his privilege against self-incrimination, right to trial by jury, and the right to confront his accusers.

Appellant cites no authority for the proposition that the court was required to specifically inform him that the prosecution was required to prove that he had suffered the prior conviction beyond a reasonable doubt. Nor does appellant provide authority for the proposition that the court was required to specifically inform him that the prosecution was required to prove that the prior conviction was a serious felony under the Three Strikes law beyond a reasonable doubt. We decline to extend the current waiver requirements set forth by the Supreme Court in People v. Howard, supra, 1 Cal.4th at page 1175 as the privilege against self-incrimination, the right to trial by jury, and the right to confront ones accusers to include explanation of the reasonable doubt standard in connection with the fact of the prior conviction or its qualification as a serious felony under the Three Strikes law.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

____________________, J.

CHAVEZ

We concur:

____________________, P. J.

BOREN

____________________, J.

DOI TODD

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^[1] The specific conviction alleged was WILLFUL HOMICIDE WIT, later amended to second degree murder, committed in the state of Florida.

^[2] After codefendant Kemp was sentenced, he was advised of his right to file an appeal, but declined to do so.

^[3] Appellant argues that [t]he Peregrina-Larios reasoning on that point is simply wrong. Requisite to the sale of the product, the seller must have either actual possession of the product or constructive possession through the right to transfer possession. We disagree. As both the Peregrina-Larios court and the Murphy court concluded, neither actual nor constructive possession of the drugs is necessary in order for an individual to be convicted of the sale of contraband. As respondent points out, if appellant had handed the methamphetamine directly to Officer Saragueta, thus permitting Kemp to argue that he never had actual possession of the drugs, Kemp still would have been guilty of selling the drugs. Under this hypothetical, Kemp could be guilty even if the prosecution could not prove that Kemp had the dominion or control over the drugs necessary for a showing of constructive possession.

^[4] In People v. Murphy, supra, 134 Cal.App.4th at page 1508, the Court of Appeal suggested that the current law no longer supports a fact-based analysis of whether a lesser charge is necessarily included in a greater offense. After explaining the elements test and the accusatory pleading test, the court clarified: Unlike the former test, the current test of a necessarily included offense does not encompass an offense in which the facts established by evidence at trial make it impossible to commit one offense without also committing another. [Citation.] (Ibid.) However, as we will discuss, even under the apparently outdated fact-based analysis set forth in Tinajero, possession is not a lesser included offense to the sales charge.

^[5] The only evidence tending to establish simple possession was Officer Witts retrieval of a small, clear plastic bag of methamphetamine from appellants left front pocket after he had already handcuffed appellant. Appellants possession of methamphetamine after the sale was not the subject of any charge or conviction, thus any error in failing to instruct as to possession of that contraband was harmless.

^[6] In addition to the 1985 second degree murder in Florida, appellants probation report also reflected a 1987 felony conviction in Florida, 1997 and 1998 misdemeanor convictions in California, three 1999 misdemeanor convictions in California, and three 2005 felony convictions in California.