>PEOPLE v.
BUSCH

















Filed 8/4/10









CERTIFIED
FOR PUBLICATION







IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE
DISTRICT

(Sacramento)

----






>

THE PEOPLE, Plaintiff and Respondent, v. ANDREW BENSON BUSCH, Defendant and Appellant.

C061186 (Super. Ct. No. 08F02819)

APPEAL
from a judgment of the Superior Court
of Sacramento
County, Daniel E. Creed, Judge. Affirmed.



David
L. Annicchiarico, under appointment by the Court of Appeal, for Defendant and
Appellant.



Edmund
G. Brown Jr., Attorney General, Dane R. Gillette, Michael P. Farrell, Assistant
Attorneys General, Carlos A. Martinez, and Christina Hitomi Simpson, Deputy
Attorneys General, for Plaintiff and Respondent.









A jury found
defendant Andrew Benson Busch guilty of transportation of more than 28.5 grams
of marijuana (Health & Saf. Code, § 11360, subd. (a); undesignated
statutory references are to the Health and Safety Code), possession of more
than 28.5 grams of marijuana (§ 11357, subd. (c); and driving with a
suspended license (Veh. Code, § 14601.1, subd. (a)). The court suspended imposition of sentence on
the marijuana offenses and placed him on formal probation.[1]


On appeal, defendant
contends his convictions for transportation and possession of marijuana must be
reversed because the jury was not instructed that defendant had to know he
transported or possessed more than 28.5 grams of marijuana. He contends further that his conviction for
possession of marijuana must be reversed as a lesser-included offense of
transportation, and there is insufficient
evidence to support his conviction for possession of marijuana. Finding no error, we shall affirm the
judgment.

BACKGROUND

While on patrol in
South Natomas, Sacramento Police Officer Ben Spencer
stopped defendant's GMC Jimmy for expired registration. Officer Spencer's partner, Officer Daniel
Paiz, contacted defendant, the driver.
Defendant did not have a license and admitted the car was his. He got out of the car and was searched. Nothing was found.

Anthony Cooper was
in the truck's front passenger seat, and
two other men were in the back seat.
Officer Spencer approached the truck and contacted Cooper. Officer Paiz saw a shiny object as Cooper
moved his hands from his lap to an area between the front passenger seat and
the door. Officer Paiz inspected the
area and found a handgun on the floorboard.


Officer Spencer
smelled marijuana in the car and obtained consent to search Cooper, who had 43
one-inch Ziploc baggies with a Batman logo.
Officer Paiz obtained defendant's consent to search the car, finding a
large clear baggie containing 95.5 grams of marijuana in the center console and
another bag containing 22.5 grams of marijuana on the rear passenger side
between the wall and the seat. In
addition, he found 2.74 grams of methamphetamine under the marijuana in the
center console. Officer Paiz remembered
a scale was recovered from the car, although he could not recall where it was
found. Officer Spencer did not recall
finding a scale.

After executing a >Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694] waiver, defendant
told Officer Paiz he drove up from Pacifica to a friend's house and needed to
pick up some items. He also admitted
there was marijuana in the center console and his driver's license was
suspended. Defendant told the officer he
was not a drug dealer, and said, â€