Opinion
E041260
6-4-2007
THE PEOPLE, Plaintiff and Respondent, v. KENNETH ROCHAE FIELDS, Defendant and Appellant.
Marta I. Stanton, 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, Senior Assistant Attorney General, Barry Carlton, Supervising Deputy Attorney General, and Bradley A. Weinreb, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
In addition to other crimes not relevant here, a jury convicted defendant of transportation of over 28.5 grams of marijuana (Health & Safe. Code, § 11360, subd. (a) (count 1)) and possession of marijuana (§ 11357, subd. (c)), the lesser included offense of count 2 (§ 11359 (possession of marijuana for sale)). On appeal, defendant contends, as to count 1, that the trial court erred in not sua sponte instructing the jury on possession of marijuana as a lesser included offense. He further asserts the trial court erred in permitting his conviction of both transportation of marijuana on count 1 and, separately, its lesser included offense of possession of marijuana on count 2. We conclude that defendants possession of marijuana was not a lesser included offense of his transportation of marijuana under either the "elements" or "accusatory pleading" tests; therefore, neither of defendants contentions have merit, and the judgment below is affirmed.
I. FACTUAL AND PROCEDURAL HISTORY
While driving on the freeway, a California Highway Patrol officer noticed defendants vehicle swerve from the fast lane onto the median, then to the right into the No. 2 lane, and back again through the fast lane and onto the median. The officer initiated a traffic stop. Defendant exited the freeway and, while still driving, reached over the front seat and deposited a small black object behind the right front seat. After approaching the vehicle, the officer observed a black toiletry bag sitting on the floorboard of the rear passenger compartment. When defendant rolled his window down, the officer smelled the odor of alcohol coming from the vehicle. Upon request, defendant exited the vehicle; as he was doing so, the female passenger reached behind the backseat, retrieved the black bag, and placed it underneath the right front seat. At some point, the passenger gave the black bag to another officer. When the officer opened the bag and removed a plastic baggie, defendant immediately exclaimed, "[t]hats [for] personal use only and thats mine." The bag contained what was later determined to be 76.7 grams of marijuana, several small baggies, a scale, and $250 in cash.
II. DISCUSSION
Defendant contends the trial court erred in not instructing the jury, on its own motion, on the lesser included offense of possession of marijuana on count 1, transportation of over 28.5 grams of marijuana. He, likewise, maintains that the trial court erred in convicting him of both the greater offense of transportation and, separately in count 2, of the lesser offense of possession for the same act. Since both defendants contentions are mutually dependent, we elect to treat them concurrently. We conclude that because, here, the possession was not a lesser included offense of the transportation, the trial court had no duty to so instruct the jury. Therefore, a fortiori, it was not error to convict him of possession in count 2 because it was not a lesser included offense of count 1.
"A court must instruct sua sponte on general principles of law that are closely and openly connected with the facts presented at trial. [Citations.] This sua sponte obligation extends to lesser included offenses if the evidence `raises a question as to whether all of the elements of the charged offense are present and there is evidence that would justify a conviction of such a lesser offense. [Citations.] [Citations.] . . . `A criminal defendant is entitled to an instruction on a lesser included offense only if [citation] "there is evidence which, if accepted by the trier of fact, would absolve [the] defendant from guilt of the greater offense" [citation] but not the lesser. [Citations.] [Citation.]" (People v. Lopez (1998) 19 Cal.4th 282, 287-288.)
"To determine whether a lesser offense is necessarily included in the charged offense, one of two tests (called the `elements test and the `accusatory pleading test) must be met. The elements test is satisfied when `"all the legal ingredients of the corpus delicti of the lesser offense [are] included in the elements of the greater offense." [Citation.] [Citations.] Stated differently, if a crime cannot be committed without also necessarily committing a lesser offense, the latter is a lesser included offense within the former. [Citations.]" (People v. Lopez, supra, 19 Cal.4th at p. 288.)
"Under the accusatory pleading test, a lesser offense is included within the greater charged offense `"if the charging allegations of the accusatory pleading include language describing the offense in such a way that if committed as specified the lesser offense is necessarily committed." [Citation.] [Citations.]" (People v. Lopez, supra, 19 Cal.4th at pp. 288-289.)
A. Elements Test
In People v. Rogers (1971) 5 Cal.3d 129, the California Supreme Court faced a similar situation. There, officers stopped the defendants vehicle for a moving violation. (Id. at p. 132.) Several other passengers were also in the defendants vehicle at the time. (Ibid.) As the passengers exited the vehicle pursuant to the officers request, a matchbox containing marijuana fell from the car. (Ibid.) The jury convicted defendant of transportation of marijuana, but acquitted him of a charge of possession. (Id. at p. 131.) On appeal, the defendant argued that since the jury acquitted him of the possession charge, it could not convict him of the transportation charge as possession was a necessary element of that charge. (Ibid.) The court "concluded that possession of marijuana is not a necessary element of the offense of transportation of marijuana . . . ." (Ibid.) It reasoned that the defendant could have knowingly agreed to aid and abet his passengers in transporting the marijuana without himself actually possessing it; thus, "[a]lthough possession [of marijuana] is commonly a circumstance tending to prove transportation, it is not an essential element of that offense . . . ." (Id. at p. 134, fn. omitted.) Therefore, under the "elements" test, possession of marijuana is not a lesser included offense of the charge of transportation of marijuana such that the trial court was required to sua sponte instruct the jury thereon.
B. Accusatory Pleading Test
Defendant implicitly argues that possession of marijuana is a lesser included offense of transportation in this case under the "accusatory pleading" test. Defendant argues that, in the present case, his "possession of the marijuana was incidental to, and a necessary part of, the transportation of the marijuana." Thus, he concludes the trial court was required to instruct the jury on the lesser included offense of possession on count 1.
In applying the "accusatory pleading" test, the reviewing court looks to the specific language contained in the charging document, rather than the statutory definition of the crime or the evidence ultimately presented at trial. (People v. Montoya (2004) 33 Cal.4th 1031, 1036; In re Stanley E. (1978) 81 Cal.App.3d 415, 421; People v. Clenney (1958) 165 Cal.App.2d 241, 250-251.) Hence, "in order to have found that the [lesser] offense for which the defendant was convicted was included within the [greater] charged offense the charging information would have required an additional allegation limiting the scope of the charge." (In re Stanley E., supra, at p. 421, italics added.) The People are required to specifically tailor the charging instrument to permit such a result. Here, as we noted above, possession is not a necessary element for conviction of a charge of transportation of marijuana. Thus, we must look to the charging document to determine whether it has been modified such that, based on the facts as pled, one can inexorably conclude that the transportation allegation necessarily included possession.
Looking at count 1 of the information filed October 25, 2005, we can discern no substantive difference between it and the statutory definition. Count 1 reads: "The District Attorney of the County of Riverside hereby accuses KENNETH ROSHAE FIELDS of a violation of Health and Safety Code section 11360, subdivision (a), a felony, in that on or about June 11, 2005, in the County of Riverside, State of California, he did wilfully and unlawfully sell, furnish, and administer, and offer to sell, furnish, and administer, marijuana and transport and give away, and offer to transport and give away, and attempt to transport more than 28.5 grams of marijuana." The statutory definition of the crime of transportation of marijuana reads: "[E]very person who transports, imports into this state, sells, furnishes, administers, or gives away, or offers to transport, import into this state, sell, furnish, administer, or give away, or attempts to import into this state or transport any marijuana shall be punished by imprisonment in the state prison for a period of two, three or four years." (§ 11360, subd. (a).) Thus, the charging document appears a virtual regurgitation of the statutory definition, nowhere adapted to permitting the conviction on a lesser charge of mere possession.
Nevertheless, defendant maintains that he cannot be convicted of both transportation and possession where the possession was incidental to the transportation. In support, he cites a footnote in Rogers which reads: "In cases where defendants possession is incidental to, and a necessary part of, the transportation charged, and no prior, different or subsequent possession is shown, the offense of possession is deemed to be necessarily included in the offense of transportation, and defendant may not be convicted of both charges." (People v. Rogers, supra, 5 Cal.3d at p. 134, fn. 3.)
However, defendant concedes that this court has expressly declined to adopt the language of the Rogers footnote as binding authority for the proposition that a defendant cannot be convicted of both transportation and possession of controlled substances based on the same incident. (People v. Watterson (1991) 234 Cal.App.3d 942.)
In Watterson, two individuals were arrested after a consensual search of their vehicle resulted in the discovery of 45 grams of cocaine. (People v. Watterson, supra, 234 Cal.App.3d at p. 944, fn. 12.) The defendant was charged with and convicted of conspiracy to possess cocaine for sale and to transport cocaine; possession of cocaine for sale; and transportation of cocaine. (Id. at pp. 943-944.) The defendant maintained on appeal, relying on the same footnote in Rogers, that separate convictions for possession and transportation were precluded because possession was a lesser included offense of the later charge. (People v. Watterson, supra, at p. 944.) We "concluded that the multiple convictions were proper because possession was not necessarily included in the offense of transportation as statutorily defined or as charged in the information." (Id. at p. 947, fn. 15, italics omitted.) We reasoned that the Rogers footnote was not binding precedent because it was dicta unnecessary to the resolution of the issues before that court and due to the inconsistency of the cases cited for authority therein. (People v. Watterson, supra, at p. 945.) We still believe our analysis in Watterson was correct.
Here, possession of marijuana is not an element of the statutory definition of the crime of transportation of marijuana and the information filed in this case did not specifically tailor the allegation of transportation to necessarily include possession. Therefore, the trial court did not commit error in failing to give an instruction to the jury that possession was a lesser included offense of transportation or in permitting convictions for both possession and transportation of marijuana.
III. DISPOSITION
The judgment is affirmed.
We concur:
Ramirez, P.J.,
Richli, J. --------------- Notes: All further statutory references are to the Health and Safety Code unless otherwise indicated.