Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Los Angeles County, Los Angeles County Super. Ct. No. BA288490, Ruffo Espinosa, Jr.
Niccol Kording, 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, Senior Assistant Attorney General, Scott A. Taryle and Ryan M. Smith, Deputy Attorneys General, for Plaintiff and Respondent.
Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
INTRODUCTION
The People charged defendant Tejeta Johnson with selling, transporting or offering to sell cocaine base (Health & Saf. Code, § 11352, subd. (a); count 1) and possession for sale of cocaine base (§ 11351.5; count 2). The People further alleged one prior “strike” conviction (Pen. Code, §§ 667, subds. (b)-(i), 1170.12).
All further statutory references are to the Health and Safety Code unless otherwise noted.
The possession for sale of cocaine base charge actually was captioned “Count 3” in the information. There was no count 2. Inasmuch as count 3 repeatedly was referred to as count 2 below, for purposes of consistency, we refer to the charge of possession for sale of cocaine base as count 2.
Trial was by jury. The jury was unable to reach a verdict on count 1, which was dismissed. With respect to count 2, the jury returned a verdict of not guilty. Its verdict reads: “We, the jury in the above-entitled action, find the defendant, Tejeta Johnson, NOT GUILTY of the crime of POSSESSION FOR SALE OF COCAINE BASE, in violation of . . . section 11351.5, a Felony, as charged in Count 2 of the information.” The jury went on to return a verdict of guilty on a lesser included offense. That verdict reads: “We, the jury in the above-entitled action, having found the defendant not guilty of possession for sale of cocaine, find the defendant Tejeta Johnson, GUILTY of the crime of POSSESSION OF A CONTROLLED SUBSTANCE, to wit, COCAINE, in violation of . . . section 11350(a), a Felony, a lesser offense to that charged in Count 2 of the information.” As is quite evident, the latter guilty verdict contains two unchallenged clerical errors. Specifically, it incorrectly characterizes the crime charged in count 2 as possession for sale of cocaine and incorrectly characterizes the lesser crime as simple possession of cocaine, omitting the word “base” after the word “cocaine” when describing both the greater and lesser offenses.
After the jury returned its verdicts, defendant admitted a 1994 prior “strike” conviction for residential burglary. The trial court thereafter denied defendant’s Romero motion and sentenced her to state prison for a total of four years. We affirm.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
FACTS
On the morning of August 11, 2005, Los Angeles Police Officer Darlene Shelley (Shelley) was working undercover with a narcotics unit in the vicinity of Fifth and Towne Streets in Los Angeles. Shelley was holding a $20 bill out in the open when Rory Miller (Miller) approached her and asked if she wanted to get “hooked up”—i.e., purchase drugs. Shelley said she did.
Miller took Shelley to defendant and told defendant that Shelley wanted some “yay,” which is slang for cocaine. Shelley gave defendant the $20 bill. Defendant, in turn, opened a blue cosmetic case and took out four off-white rocks, which she gave to Shelley. These rocks later were determined to contain cocaine base. Shelley observed six additional “rocks” in defendant’s cosmetic case. At no time did Shelley threaten defendant or beg her to sell her rock cocaine.
Shortly after Shelley left the area, her fellow officers arrested defendant and recovered the $20 bill Shelley had given her, as well as defendant’s blue cosmetic case. Defendant spontaneously stated “that she doesn’t sell cocaine, but she was just doing it that day so she [could] get money to buy more.”
Defense
On the morning of August 11, 2005, defendant, who was homeless, was sitting on a crate smoking “dope.” She had two pipes and rock cocaine, which she had broken up into individual “hits.”
Shelley approached with Miller as defendant was loading a pipe with a piece of “crack.” Defendant did not know Miller, who earlier that morning had asked defendant for a hit. Shelley told defendant that she wanted some “rock,” but defendant denied having any. Shelley explained that earlier she had purchased some “bullshit” dope from someone around the corner. Shelley repeated her request for rock three or four times. Defendant continued to smoke her crack cocaine while Shelley stood next to her. Defendant felt uncomfortable, in that Shelley and Miller were staring at her. Defendant thought that Miller might take her rock cocaine if she did not sell it.
Feeling intimidated and scared, defendant sold Shelley $3 worth of crack cocaine for $20. She planned to use the money to take a shower, wash her clothes and buy food. Following her arrest, defendant told the officers that she smoked dope but did not sell it.
CONTENTIONS
Defendant contends that she was denied a fair trial when the court instructed the jury that it could convict her of possession of cocaine as a lesser included offense of possession for sale of cocaine base. Defendant mischaracterizes the record. Defendant further contends that possession of cocaine is not a lesser included offense of possession for sale of cocaine base and that the evidence is insufficient to support her conviction for possession of cocaine. While we agree that possession of cocaine is not a lesser included offense of possession for sale of cocaine base, we conclude that the jury intended to find defendant guilty of simple possession of cocaine base, which is a lesser included offense of possession for sale of cocaine base, and that the absence of the term “base” from the description of the greater and lesser offenses in the jury’s guilty verdict was a mere undetected clerical error.
Finally, defendant contends that the trial court abused its discretion in denying her Romero motion. No abuse of discretion has been demonstrated.
DISCUSSION
Lesser Included Offense
Defendant correctly points out that possession of cocaine base is a lesser included offense of possession for sale of cocaine base (People v. Adams (1990) 220 Cal.App.3d 680, 690), but possession of cocaine is not (id. at pp. 690-691), as the Legislature has deemed fit to distinguish between cocaine base and cocaine (id. at pp. 685-686). Nevertheless, there is no merit to defendant’s contention that the trial court instructed the jury that it could find her guilty of possession of cocaine as a lesser included offense of possession for sale of cocaine base. After instructing the jury on the elements of possession for sale of cocaine base, the court orally instructed the jury as follows:
Section 11054 in pertinent part provides: “(a) The controlled substances listed in this section are included in Schedule I. [¶] . . . [¶] (f) Unless specifically excepted or unless listed in another schedule, any material, compound, mixture, or preparation which contains any quantity of the following substances having a stimulant effect on the central nervous system, including its isomers: [¶] (1) Cocaine base.”
“If you are not satisfied beyond a reasonable doubt that the defendant is guilty of a crime charged, you may nevertheless convict [her] of any lesser crime, if you are convinced beyond a reasonable doubt that the defendant is guilty of the lesser crime. [¶] The crime of simple possession of a controlled substance, a violation of . . . section 11350(a) is lesser to that of possession of a controlled substance for sale charged in count 2. [¶] Thus, you are to determine whether the defendant is guilty or not guilty of the crime charged in count 2 or of any lesser crime. . . . However, the court cannot accept a guilty verdict on a lesser crime unless you have unanimously found the defendant not guilty of the charged greater crime.
“Every person who possesses cocaine base, a controlled substance, is guilty of a violation of . . . [section] 11350(a). [¶] . . . [¶] In order to prove this crime, each of the following elements must be proved: [¶] 1. A person exercised control over or the right to control an amount of cocaine base, a controlled substance; [¶] 2. That person knew of its presence; [¶] 3. That person knew of its nature as a controlled substance; and [¶] 4. The substance was in an amount sufficient to be used as a controlled substance.” (Italics added.)
At the conclusion of closing arguments, the trial court gave the following additional instructions: “In this case the defendant has been charged with possession of a controlled substance in count 2, which is a felony. The foregoing charged crime includes the lesser offense of simple possession of a controlled substance. [¶] You will be given verdict forms encompassing both the charged crimes and the lesser included offense. Since the lesser offense is included in the greater crime, you are instructed that, if you find the defendant guilty of the greater offense, you should not complete the verdict on the corresponding lesser offenses, and that verdict should be returned to the court unsigned by the foreperson.
“If you find the defendant not guilty of the felony charge, then you need to complete the verdict on the lesser included offense by determining whether the defendant’s guilty or not guilty of the lesser included crime, and the corresponding verdict should be completed and returned to the court signed by the foreperson.”
These instructions indisputably negate defendant’s assertion that the court instructed the jury that possession of cocaine was a lesser included offense of possession for sale of cocaine base. The only controlled substance expressly mentioned by the court in its instructions was “cocaine base.” It therefore stands to reason that the jury understood this and, having found defendant not guilty of possession for sale of cocaine base, found her guilty of the lesser included offense of simple possession of cocaine base.
The problem in this case stems not from the court’s instructions to the jury but rather from two undetected and unchallenged clerical errors in the jury verdict for the lesser included offense. As previously noted, the not guilty verdict pertaining to the greater offense correctly listed the charged offense as possession for sale of cocaine base. In comparison, the jury’s guilty verdict as to the lesser crime on count 2 incorrectly listed the crime charged as possession for sale of cocaine. The omission of the word “base” following the word “cocaine” then was repeated when the lesser included offense was listed.
Defendant admits that “[t]he entire evidence regarding controlled substance attributed to defendant was that it was a cocaine base.” She further “acknowledges that the conviction for possession of cocaine instead of possession of cocaine base may have been inadvertent.” She nevertheless urges that “the verdict remains improper and unsupported by the evidence.” We are unconvinced. There is no question in our minds that the jury intended to find defendant guilty of the crime of possession of cocaine base, which is the only lesser included offense on which the court instructed the jury. Inasmuch as defendant admitted that she possessed the items the police confiscated, and the parties stipulated that a chemical analysis of the items revealed that they “contained cocaine in the form of cocaine base”, we reject defendant’s sufficiency of the evidence challenge.
During closing argument to the jury, the prosecutor correctly reminded the jury, as the court had instructed, that “[c]ount 2 also has a lesser included charge of just simple possession of cocaine base.” As to the lesser, the prosecutor stated, “The lesser, we have got it. You know, everybody agrees she had cocaine base. She possessed it. She told you that.” The prosecutor then argued that the jury would not have to get to the lesser offense, however, in that the evidence established that defendant committed the charged offense, possession for sale of cocaine base.
Romero Motion
Because a decision to strike or not to strike a prior conviction lies within the discretion of the trial court, we cannot reverse that decision except for an abuse of discretion. (People v. Superior Court (Romero), supra, 13 Cal.4th at pp. 504, 529-530.) The abuse of discretion standard is a deferential one. (People v. Williams (1998) 17 Cal.4th 148, 162.) We are limited to a determination whether the trial court’s action “‘falls outside the bounds of reason’ under the applicable law and the relevant facts.” (Ibid.) That is, discretion is not abused unless the trial court’s decision is so arbitrary or irrational that no reasonable person could agree with it (People v. Carmony (2004) 33 Cal.4th 367, 377) or the trial court has acted “in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice” (People v. Jordan (1986) 42 Cal.3d 308, 316).
Additionally, “‘[t]he burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.’ [Citation.] Concomitantly, ‘[a] decision will not be reversed merely because reasonable people might disagree. “An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.” [Citations.]’ [Citation.]” (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978.)
In deciding whether to dismiss a prior conviction under Penal Code section 1385, subdivision (a), the trial court must consider the defendant’s background, the nature of her current offense and other individualized considerations (People v. Superior Court (Romero), supra, 13 Cal.4th at p. 531; People v. Dent (1995) 38 Cal.App.4th 1726, 1731), including all of the relevant factors, both aggravating and mitigating (People v. Tatlis (1991) 230 Cal.App.3d 1266, 1274; see People v. Jordan, supra, 42 Cal.3d at p. 318). It must determine whether, in light of defendant’s present and past offenses, “and the particulars of [her] background, character, and prospects, the defendant may be deemed outside the [three strikes] scheme’s spirit, in whole or in part, and hence should be treated as though [she] had not previously been convicted of one or more serious and/or violent felonies.” (People v. Williams, supra, 17 Cal.4th at p. 161.)
The record reflects that the trial court considered all relevant factors in making its decision and thus did not act arbitrarily or capriciously in denying defendant’s motion to strike her prior conviction. (People v. Jordan, supra, 42 Cal.3d at p. 318.) Defendant’s criminal history was more than two decades long and included 22 arrests, 6 felony convictions and numerous state prison sentences. Although defendant was a drug addict, “drug addition is not necessarily regarded as a mitigating factor when a criminal defendant has a long-term problem and seems unwilling to pursue treatment.” (People v. Martinez (1999) 71 Cal.App.4th 1502, 1511.) The trial court characterized defendant as “a severe recidivist,” whose prospects for rehabilitation were not good, and concluded that “I don’t think this is an appropriate case to strike a strike.” Under the circumstances presented, sentencing defendant to state prison under the three strikes law did not result in a miscarriage of justice, even though she was acquitted on the possession for sale charge and her “strike” conviction was not too recent (1994). Here, rather than striking defendant’s prior conviction, the court elected to forego imposing the high term, sentencing her instead to the middle term.
That it might not have been an abuse of discretion to strike defendant’s prior conviction under the circumstances does not establish an abuse of discretion in refusing to do so. (People v. Superior Court (Alvarez), supra, 14 Cal.4th at pp. 977-978.) Accordingly, the trial court did not abuse its discretion in denying her motion to strike her prior burglary conviction. (People v. Jordan, supra, 42 Cal.3d at p. 318.)
The judgment is affirmed.
We concur: MALLANO, Acting P. J., VOGEL, J.
Section 11055 states: “(a) The controlled substances listed in this section are included in Schedule II. [¶] (b) Any of the following substances, except those narcotic drugs listed in other schedules, whether produced directly or indirectly by extraction from substances of vegetable origin, or independently by means of chemical synthesis . . . : [¶] . . . [¶] (6) Cocaine, except as specified in Section 11054.”
Section 11350 provides: “(a) Except as otherwise provided in this division, every person who possesses (1) any controlled substance specified . . . in paragraph (1) of subdivision (f) of Section 11054 . . . or specified in subdivision (b) or (c) of Section 11055 . . . shall be punished by imprisonment in the state prison.”
Section 11351 provides: “Except as otherwise provided in this division, every person who possesses for sale or purchases for purposes of sale (1) any controlled substance specified in . . . subdivision (b) or (c) of Section 11055 . . . shall be punished by imprisonment in the state prison for two, three, or four years.
Section 11351.5 provides: “Except as otherwise provided in this division, every person who possesses for sale or purchases for purposes of sale cocaine base which is specified in paragraph (1) of subdivision (f) of Section 11054, shall be punished by imprisonment in the state prison for a period of three, four, or five years.”