Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. SWF024134. Jeffrey Prevost, Judge.
Donna L. Harris, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Teresa Torreblanca and Barry Carlton, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RICHLI, J.
Defendant David Christopher Adams went to a stranger’s house, rang the doorbell, entered the garage, and then left. He later admitted that he was there to buy methamphetamine; an acquaintance had given him money to go and buy an ounce, but he had accidentally gone to the wrong house. When arrested, defendant was in possession of a little less than a gram of methamphetamine.
As a result, defendant was found guilty of first degree burglary (Pen. Code, §§ 459, 460, subd. (a)) and transportation of a controlled substance (Health & Saf. Code, § 11379, subd. (a)). A prior serious felony conviction enhancement (Pen. Code, § 667, subd. (a)) and a one-year prior prison term enhancement (Pen. Code, § 667.5, subd. (b)) were found true. Defendant was sentenced to a total of 10 years in prison.
Defendant contends:
1. The trial court erred by instructing that it is a felony to purchase — rather than to possess — a controlled substance for sale and therefore that defendant would be guilty of burglary if he entered a building with the intent to purchase.
2. There was insufficient evidence that defendant had the intent to sell.
We will affirm. Technically, the trial court misinstructed the jury. However, because defendant admitted that he intended not only to purchase but actually to possess a controlled substance, the error was harmless beyond a reasonable doubt. Moreover, defendant admitted that he was supposed to get to keep an eighth of an ounce of the methamphetamine; hence, the intended transaction constituted a sale as a matter of law.
I
FACTUAL BACKGROUND
There were actually two trials in this case. In the first trial, the jury found defendant guilty of both first degree burglary and transportation of a controlled substance. The trial court, however, granted a new trial, solely with respect to the charged burglary. In the second trial, the jury once again found defendant guilty of first degree burglary.
Defendant’s appellate contentions pertain solely to the burglary conviction. He does not challenge the transportation conviction. Accordingly, except as otherwise noted, we discuss only the evidence from the second trial.
On January 9, 2008, defendant drove to a stranger’s house in Temecula, parked, got out, and rang the doorbell. When no one answered, he went into the garage for a “[c]ouple [of] minutes,” then left.
Defendant testified (and had freely admitted to the police) that an acquaintance had given him about $1,500 and had asked him to go a certain address in Temecula and to buy an ounce of methamphetamine there. In return, the acquaintance was going to give defendant an “eight ball” — i.e., an eighth of an ounce of methamphetamine. At the time, defendant was high on methamphetamine and marijuana and had not slept for a couple of days. As a result, he must have gone to the wrong house.
At the first trial, evidence was introduced that, when defendant was arrested about five hours later, he was in possession of $1,511 in cash and 0.7 or 0.8 grams of methamphetamine. No similar evidence was introduced at the second trial.
II
INSTRUCTIONS ON PURCHASE OF A CONTROLLED SUBSTANCE FOR SALE
Defendant contends that the trial court erred by instructing on purchase of a controlled substance for sale as the intended offense underlying the charged burglary.
The trial court instructed that, in this case, burglary required “the specific intent to commit the crime of purchasing a controlled substance for sale,” which was a felony. (CALJIC No. 14.50, as modified.) It further instructed that purchasing a controlled substance for sale was a violation of Health and Safety Code section 11378. (CALJIC No. 12.01, as modified.)
Health and Safety Code section 11378, by its terms, prohibits only “possess[ing]” a controlled substance for sale. Defendant argues that it does not prohibit purchasing a controlled substance for sale. He points to Health and Safety Code section 11351, which prohibits both “possess[ing]” and “purchas[ing]” a controlled substance for sale. Health and Safety Code section 11351 applies to narcotic controlled substances. Health and Safety Code section 11378 applies to non-narcotic controlled substances, including methamphetamine. (See Health & Saf. Code, § 11055, subd. (d).) Otherwise, they are parallel statutes. From the fact that Health and Safety Code section 11351 expressly prohibits purchasing for sale, but Health and Safety Code section 11378 does not, defendant concludes that the Legislature must have determined not to criminalize the purchase for sale of a non-narcotic controlled substance such as methamphetamine.
In the vast majority of cases, a person who purchases methamphetamine also takes actual possession of it. Even in the remaining minority, the purchaser typically takes constructive possession. Thus, we cannot accept that the Legislature intended to carve out or decriminalize possession that results from a purchase.
It has been held, however, that it is possible to purchase methamphetamine without taking either actual or constructive possession of it. For example, in People v. Barnes (1997) 57 Cal.App.4th 552, there was evidence that the defendant had paid an unnamed Cuban $20 for some rock cocaine. The defendant then discovered, however, that the cocaine was fake. He went back to the Cuban and demanded either real cocaine or his money back. At that point, police appeared on the scene. The Cuban threw a blue vial at the defendant; it bounced off his chest and fell to the ground. The defendant just walked away. The blue vial later turned out to contain real cocaine. (Id. at pp. 554-555.)
The Court of Appeal held that, on this view of the facts, the defendant was never in actual or constructive possession of the cocaine: “Appellant, who had been given ‘bunk’ instead of $20 worth of rock cocaine, had no legal claim against the Cuban. When appellant demanded a ‘real rock’ or his money back he did not have the ‘right to control’ a blue vial he had not yet seen. When, immediately thereafter, both appellant and the Cuban saw the officers and the Cuban tossed the blue vial at appellant’s chest appellant cannot be said to have ‘knowingly exercise[d]... the right to control’ an object he only glimpsed in flight and made no attempt to possess or touch.” (People v. Barnes, supra, 57 Cal.App.4th at p. 557; see also In re Rothwell (2008) 164 Cal.App.4th 160, 169-171; Armstrong v. Superior Court (1990) 217 Cal.App.3d 535, 538-540.)
Health and Safety Code section 11378, by its terms, does not make the purchase of methamphetamine for sale a crime, standing alone; the purchase must entail or result in possession. (Armstrong v. Superior Court, supra, 217 Cal.App.3d at p. 540, fn. 2.) It follows that the trial court did misinstruct the jury.
On these facts, however, the error was harmless under any standard. Even under the federal constitutional harmless error standard, “we must ultimately look to the evidence considered by defendant’s jury under the instructions given in assessing the prejudicial impact or harmless nature of the error.” (People v. Harris (1994) 9 Cal.4th 407, 428.) “[W]e must inquire whether it can be determined, beyond a reasonable doubt, that the jury actually rested its verdict on evidence establishing the requisite... element... independently of the force of the... misinstruction. [Citation.]” (Id. at p. 429; see, e.g., People v. Flood (1998) 18 Cal.4th 470, 505 [where “all of the evidence at trial relevant to the issue in question” indicated that the persons defendant attempted to evade were peace officers, error in instructing jury that they were peace officers was harmless].)
In People v. Hughes (2002) 27 Cal.4th 287, the Supreme Court held that the trial court erred by failing to instruct on the elements of rape as the intended offense underlying the charged burglary. (Id. at pp. 348-350.) However, it also held that the error was harmless because the evidence showed that, if the defendant intended to commit a nonconsensual sex act at all, it was either rape or unlawful sexual penetration, both of which would support a burglary conviction. (Id. at pp. 351-353.)
Defendant tries to distinguish Hughes on the ground that there, the trial court wholly failed to instruct on the elements of the intended offenses, whereas here, it misinstructed on them. This is a distinction without a difference. If overwhelming evidence can render harmless a total failure to instruct, surely it can do the same for a misinstruction.
Here, defendant admittedly intended to take actual, physical possession of the methamphetamine. “[I]nstructional error removing an element of the crime from the jury’s consideration has been deemed harmless is where the defendant concedes or admits that element.” (People v. Flood, supra, 18 Cal.4th at p. 504.) While defendant did not similarly admit that he also intended to sell the methamphetamine, the jury found that he did, and he does not challenge any of the instructions leading to this finding. Moreover, as we will hold in part III, post, the evidence showed intent to sell as a matter of law.
In any event, even if there were some doubt regarding defendant’s intention to commit possession for sale, he indisputably intended to commit simple possession. This, too, would have required the jury to find him guilty of burglary.
Defendant disagrees. He argues that, unlike possession of methamphetamine for sale, which is a straight felony (Health & Saf. Code, § 11378), simple possession of methamphetamine is a “wobbler” (Health & Saf. Code, § 11377, subd. (a)). Surprisingly, we have found no case expressly addressing the question of whether a burglary conviction may be based on the intent to commit a wobbler. However, a felony is defined as “a crime which is punishable with death or by imprisonment in the state prison.” (Pen. Code, § 17, subd. (a), italics added.) Moreover, a wobbler is a misdemeanor only under certain circumstances (Pen. Code, § 17, subd. (b)) — most notably, “[a]fter a judgment imposing a punishment other than imprisonment in the state prison.” (Pen. Code, § 17, subd. (b)(1).) Hence, it has repeatedly been held that a wobbler “‘is deemed a felony for all purposes up to the imposition of sentence.’ [Citations.]” (People v. Walker (1969) 272 Cal.App.2d 252, 254, italics added, and see cases cited; accord, People v. Williams (1945) 27 Cal.2d 220, 228-229.) For example, “[i]n a homicide prosecution, evidence that the killing was in the perpetration of [a wobbler] supports a determination that the homicide was second degree murder in the perpetration of a felony. [Citation.]” (People v. Banks (1959) 53 Cal.2d 370, 382, fn. 7, citing People v. Doyle (1958) 162 Cal.App.2d 158, 161.) It follows that evidence that the defendant intended to commit a wobbler supports a conviction of burglary. And even though, again, we have found no case specifically considering this question, there are cases generally upholding such convictions. (E.g., People v. Rathert (2000) 24 Cal.4th 200, 208 [burglary conviction based on intent to commit false personation, Pen. Code, § 529]; People v. Rehmeyer (1993) 19 Cal.App.4th 1758, 1767-1769 & fn. 4 [burglary conviction based on intent to commit unlawful entry for indecent exposure, Pen. Code, § 314, subd. 1].)
In sum, then, the trial court erred by instructing on purchase, rather than possession, of a controlled substance for sale as the intended offense underlying the charged burglary; the error, however, was harmless beyond a reasonable doubt.
III
THE SUFFICIENCY OF THE EVIDENCE OF INTENT TO SELL
Defendant also contends that there was insufficient evidence that he had the intent to sell.
Defendant admitted that he was acting in the expectation of receiving an eight ball in exchange for his services. In People v. Peck (1996) 52 Cal.App.4th 351, 357 [Fourth Dist., Div. Two], we held that a similar transaction constituted a sale. There, the defendant and two others pooled their money to buy some marijuana; the defendant contributed less than one-quarter of the total. He then drove to Tijuana and purchased a large quantity of marijuana. He intended to distribute it to members of his church, who used marijuana as a sacrament. He admitted, however, that he was to receive one-quarter of the marijuana in return for providing the rest to the other members. (Id. at pp. 356-357.) We held that this was sufficient evidence of intent to sell: “[A] ‘sale’ of drugs ‘includes transfers other than for money.’ [Citation.]... Receiving a valuable commodity — here, the additional marijuana beyond the amount defendant paid for — in return for providing the commodity to another qualifies as a sale....” (Id. at p. 357.)
In his reply brief, defendant does not address Peck directly. He does argue, however, that he was, at worst, buying the drugs — i.e., with his labor — rather than selling them. The same argument, however, could have been made in Peck. Thus, Peck implicitly rejected it. We reject it now explicitly.
“‘The law respects form less than substance.’ (Civ. Code, § 3528.)” (People v. Newton (2007) 155 Cal.App.4th 1000, 1005.) Suppose the unnamed person had agreed to pay defendant $1,500 for seven-eighths of an ounce of methamphetamine, payable on delivery. It would go without saying that defendant would have had to advance some lesser amount to buy the methamphetamine; thus, he would benefit only to the extent of his profit on the transaction — either in the form of cash or the excess one-eighth of an ounce. In that case, too, defendant’s net loss would be his labor; his net gain would be an eight ball. Nevertheless, that would be a sale. In both instances, defendant has turned over possession of drugs to another in return for a bargained-for compensation. The only difference here was that the unnamed person paid the $1,500 in advance.
Moreover, the Legislature presumably decided to punish possession for sale more heavily than simple possession because a person who profits from furnishing drugs for use by others is more culpable than one who merely uses drugs personally or gives them away. Defendant is precisely the type of person it had in mind.
In sum, then, defendant’s admissions established, as a matter of law, that he intended to possess methamphetamine for sale.
However, we also note, alternatively, that even if there were insufficient evidence of intent to sell, we would not be required to reverse the conviction. The conviction at issue is for burglary, not for possession of methamphetamine with the intent to sell. As we held in part II, ante, defendant could be guilty of burglary even if he intended to commit only simple possession, rather than possession for sale. Accordingly, there would still be sufficient evidence to support the burglary conviction. The jury’s implied finding that defendant had the intent to sell, even if unsupported, would be surplusage.
IV
DISPOSITION
The judgment is affirmed.
We concur: McKINSTER, Acting P.J., MILLER, J.