P.v. Armenta

Filed 1/19/07  P.v. Armenta CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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  This opinion has not been certified for publication or ordered published for purposes of rule 977.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

SECOND APPELLATE DISTRICT

DIVISION THREE

            APPEALS from judgments of the Superior Court of Los Angeles County, Bruce F. Marrs, Judge.  Affirmed.

            Marylou Hillberg, under appointment by the Court of Appeal, for Defendant and Appellant Edgar Moises Armenta.

            John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant Johnny Armenta.

            Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lawrence M. Daniels, Susan Sullivan Pithey and J. Michael Lehmann, Deputy Attorneys General, for Plaintiff and Respondent.

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            Edgar Moises Armenta and Johnny Armenta appeal from judgments entered following the convictions by jury of Edgar Moises Armenta on count 1 – possession of a controlled substance for sale (Health & Saf. Code, §  11378) personally armed with a firearm (Pen. Code, §  12022, subdivision (c)), and count 2 – possession of a controlled substance with a firearm (Health & Saf. Code, §  11370.1, subd. (a)), and the conviction by jury of Johnny Armenta on count 1 – possession of a controlled substance for sale (Health & Saf. Code, §  11378) with a court finding he suffered a prior felony conviction (Pen. Code, §  667, subd. (d)).  The court sentenced Edgar Moises Armenta and Johnny Armenta to prison for eight years and six years, respectively.

            In this case, we reject Edgar's claim that whether he had specific intent to sell, as opposed to whether the narcotics were intended merely for personal use, was the primary issue in this case and, therefore, the trial court erred by failing to give the CALJIC No.  2.02 instruction on the sufficiency of circumstantial evidence to prove specific intent.  The claim is irrelevant to Edgar's conviction on count 2 because specific intent to sell is not an element of the crime at issue in that count.  As to count 1, the trial court instructed the jury with CALJIC No. 2.01, the more inclusive instruction on sufficiency of circumstantial evidence.  Use of that instruction, rather than CALJIC No. 2.02, is proper where, as here, the element of specific intent to sell is not the only element the proof of which depends upon circumstantial evidence, but is instead one of several such elements.  Further, the claimed error was harmless since the jury, instructed on possession of a controlled substance as a lesser offense of count 1, rejected convicting Edgar of the lesser offense in favor of convicting him of the greater offense, and therefore necessarily rejected the notion that the narcotics were possessed merely for personal use.

            We reject Edgar's claim that the trial court erred as to count 1 by giving a modified CALJIC No. 17.16.1 instruction on the elements of the Penal Code section 12022, subdivision (c), arming enhancement, because the instruction did not advise the jury that there had to be a facilitative nexus between the possession of methamphetamine for sale and the arming, that is, that the arming had to be in furtherance of said possession.  The instruction told the jury that they had to find that Edgar was armed â€