P. v. Chatters

Filed 6/26/08 P. v. Chatters CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

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

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Irma Castillo, 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, Susan D. Martynec and Robert S. Henry, Deputy Attorneys General, for Plaintiff and Respondent.

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Ronald Chatters, Jr. appeals from his convictions of possession of cocaine and oxycodine for sale and possession of a firearm by a convicted felon. He contends the trial court erred in not instructing the jury on the defense of momentary possession as to each offense. We need not decide whether the court should have given that instruction under the evidence in this case because we conclude that any error in failing to give the instruction was harmless. Chatters also contends, and the People agree, that the trial court erred in denying him 170 days of presentence conduct credit. We will order that the abstract of judgment be corrected.

FACTS AND PROCEEDINGS BELOW.

Police officers responded to several 911 calls reporting a gunshot and a man beating a woman in front of a building. When the officers arrived they saw Frances S. in the parking lot of the building. She was bleeding and appeared confused and disoriented. While conducting a search of the parking lot the officers saw Chatters peeking around a corner of the building. He was holding a handgun and a black plastic bag. The officers ordered Chatters to drop the gun and the bag, which he did. Inside the plastic bag were 120 grams of cocaine base, 750 grams of cocaine powder, 10 tablets of oxycodine, approximately $5,000 in cash, a digital scale and spoons covered with a white residue.

The District Attorney charged Chatters with various assault-related offenses on Frances S. as well as possession of drugs for sale and possession of a gun by an ex-felon.

The prosecution witnesses testified to the facts described above.

Chatters testified that he lived in a studio apartment in the building where the incident occurred. He and Frances had dated for a couple of years. The night before the incident, he and Frances went to dinner at a restaurant. After dinner he was tired and wanted to go home but Frances preferred to stay and sing Karaoke. Chatters gave Frances a key to his apartment and went home to bed. At about 5:00 a.m. the next morning Frances arrived at Chatterss apartment carrying a black plastic bag. Chatters questioned Frances regarding her whereabouts. She responded that she had gone to a friends house, had some drinks and stayed over. Frances told Chatters, I got over it last night. When Chatters asked her what she meant she stuck her hands in her bag and just pulled out money, just bands of money and responded that she took the money from the house where she had spent the night. Chatters warned Frances, If someone finds you or is looking for you, they may harm you, and if they find you were with me, they may harm me. In response, Frances pulled a gun out of the bag.^[1] Chatters advised Frances, the best thing you could do is possibly take it back before they miss it and call the police. Frances called Chatters stupid and told him she could not take the items back. Chatters told Frances neither those items nor you can stay here. Frances left the apartment holding the gun. Seeing that she had left the plastic bag on the dining room table, Chatters followed her. Chatters saw Frances hurry down the stairs outside his apartment and, when she reached the bottom of the staircase, he saw her feet come out from under her. As he started down the stairs to check on her, he heard a gunshot and heard her yell: Help. Help. Somebody help me; please help me.

When Chatters reached the bottom of the stairs Frances was lying on the ground bleeding. He asked her, Are you shot? Frances did not reply directly. Instead she said Im going to kill you and that bitch and reached for the gun that was on the ground. And from that point, Chatters testified, we started wrestling and fighting over the gun. Chatters managed to take the gun from Frances. He told her to meet him at his car and ran upstairs holding the gun. Back in his apartment, Chatters washed his hands, got dressed and grabbed his cell phone, watch, rings and keys. He snatched the plastic bag and the gun from the dining room table, went out the door and locked it.

Chatters testified that when he left his apartment he intended to meet Frances at his car, take her to get some help and to get rid of whatever the contents of that bag was, money included by taking the bag to the people that she had got it from. He never had the opportunity to do so, however, because when he got to the parking lot the police were there and arrested him.

Chatters denied knowing that there were drugs in the bag. He testified he never looked in the bag and the only things Frances showed him were the money and the gun. She never pulled out any drugs and he had no idea that the drugs was in there.

The jury convicted Chatters of possessing cocaine and oxycodine for sale, possession of a firearm by a convicted felon and three assault-related felonies. The court sentenced him under the Three Strikes law to five concurrent terms of 25 years to life.

Chatters filed a timely appeal challenging only the drug and firearm convictions.

DISCUSSION

I. INSTRUCTION ON MOMENTARY POSSESSION
OF THE DRUGS.

A defendant is not guilty of possession of a controlled substance if the defendant possessed the drug only for a momentary period in order to dispose of it and did not intend to prevent law enforcement officers from obtaining it. (People v. Martin (2001) 25 Cal.4th 1180, 1185.) The trial court refused Chatterss request for a momentary possession instruction with regard to the drug possession charges. Chatters argues that refusal to give the instruction was prejudicial error in light of his testimony that when arrested he was on his way to return the contraband to the place where Frances stole it.

We need not decide whether the evidence in this case supported an instruction on momentary possession. The jury convicted Chatters of possession of the drugs for sale under instructions which told the jury it could only do so if it found beyond a reasonable doubt that Chatters possessed the controlled substance with the specific intent to sell the same. Thus, the factual question posed by the omitted instruction, whether Chatters possessed the drugs only to dispose of them, was necessarily resolved adversely to the defendant under other, properly given instructions. (People v. Sedeno (1974) 10 Cal.3d 703, 721.) If the jury had believed Chatterss testimony that he intended to dispose of the drugs by returning them to the place where Frances stole them it would not have found he possessed the drugs with the specific intent to sell the same. Accordingly, any error in failing to give a momentary possession instruction was harmless under any standard of prejudice. (People v. Sullivan (1989) 215 Cal.App.3d 1446, 1453 [failure to give momentary possession instruction harmless beyond a reasonable doubt because jury convicted defendant of possession for sale; cf. People v. Wright (2006) 40 Cal.4th 81, 99 [failure to give compassionate use instruction as defense to charge of transporting marijuana harmless error under any standard because jury convicted defendant of possession for sale].)

II. INSTRUCTION ON MOMENTARY POSSESSION
OF THE FIREARM.

We also reject Chatterss argument that the court should have instructed on momentary possession of the gun.

According to Chatterss testimony, he intended to get rid of whatever the contents of that bag was, money included by taking the bag to the people that [Frances] had got it from. Chatters did not specifically state that he intended to return the gun and the gun was not in the bag.

Furthermore, the jury found Chatters possessed the drugs with the specific intent to sell them, not return them. It is inconceivable that the jury would have believed Chatters intended to keep the drugs Frances stole but return the gun.

DISPOSITION

The judgment of conviction is affirmed. The clerk of the superior court is directed to prepare an amended abstract of judgment crediting Chatters with 170 days of presentence conduct credits and to forward a certified copy of the amended abstract to the Department of Corrections.

NOT TO BE PUBLISHED.

ROTHSCHILD, J.

We concur:

MALLANO, P. J. VOGEL, J.

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^[1] It is not clear from Chatterss testimony whether Frances arrived at his apartment with one black plastic bag or two and whether she removed the money and the gun from her purse or from a black plastic bag. It is undisputed, however, that at the time Chatters was arrested, the drugs, drug paraphernalia and money were all in one black plastic bag and Chatters was holding the gun.