Opinion
D047999
12-15-2006
THE PEOPLE, Plaintiff and Respondent, v. STEVEN DONNELL KING, Defendant and Appellant.
A jury convicted Steven Donnell King of transportation of a controlled substance (count 1: Health & Saf. Code, § 11352, subd. (a)), and possession of a controlled substance (Health & Saf. Code, § 11350) as a lesser included offense of possession of a controlled substance for sale, which was charged as count 2. In a bifurcated proceeding, the court found true (1) allegations that King had two prison priors within the meaning of Penal Code section 667.5, subdivision (b), three prior strike convictions within the meaning of section 667, subdivisions (b) through (i); and (2) the special enhancement allegations under section 11370.2.
All further statutory references are to the Penal Code unless otherwise specified.
The court struck two of Kings three prior strikes, found him ineligible for Proposition 36 probation, and sentenced him to a total of 13 years in prison. The 13-year prison term consisted of (1) the middle term of four years for count 1, doubled to eight years due to the prior strike; (2) a consecutive three-year term for the enhancement under section 11370.2; and (3) two consecutive one-year terms for the prison prior enhancements. The sentence on count 2 was stayed pursuant to section 654.
King contends (1) the court erred in failing to instruct the jury sua sponte on possession of a controlled substance as a lesser included offense of transportation of a controlled substance (count 1); (2) alternatively, his conviction under count 2 of possession of a controlled substance must be vacated because such offense is a lesser included offense of transportation of a controlled substance; (3) the court violated Blakely v. Washington (2004) 542 U.S. 296 (Blakely), in finding that King was ineligible for Proposition 36 probation; and (4) the jurys finding that King did not possess the narcotics for sale is binding on this court through the doctrine of collateral estoppel. Because King cannot lawfully be convicted of both a greater and a lesser included offense, we reverse Kings count 2 conviction of possession of a controlled substance as this possession offense is a lesser included offense of transportation of a controlled substance, of which he was charged and convicted in count 1. In all other respects, the judgment is affirmed.
In addition, King filed a supplemental opening brief contending that, if this court upholds his convictions under both counts 1 and 2, his conviction under count 2 should be stayed pursuant to section 654. As King correctly concedes in his reply brief, however, the trial court has already stayed his conviction under count 2 pursuant to section 654. We therefore reject this contention.
FACTUAL BACKGROUND
A. The Peoples Case
In July 2005 King was standing next to his bicycle on the sidewalk outside of a convenience store in the mid-city area of San Diego. King was standing with a group of several males. San Diego Police Officers McCoy and Davis observed the group of men and suspected narcotics activity. The area is known among police officers for high narcotics activity.
When King noticed Officers McCoy and Davis drive by in their police car, he rode his bicycle down the sidewalk in the opposite direction. It is a violation to ride a bicycle on the sidewalk in a business district. The officers stopped King for this violation in a gas station parking lot a short distance away. Officer McCoy searched King and found six pieces of rock cocaine in his pocket. Officer McCoy also found five one-dollar bills, a cellular phone, and a pocket knife. No drug paraphernalia was discovered on King.
King informed Officer McCoy that he had received the drugs from some friends two days prior. King admitted using some of the drugs the day before.
Detective Beamesderfer testified as an expert that, in his opinion, King possessed the rock cocaine for sale.
B. The Defense
Thomas Griffin, a supervising counselor at Volunteers of America Sobriety House, testified as an expert for the defense. In Griffins opinion, the facts did not indicate that King possessed the narcotics for sale, but rather indicated that King possessed the narcotics for personal use.
DISCUSSION
I. DUTY TO INSTRUCT ON SIMPLE POSSESSION
King contends the court had a sua sponte duty to instruct on possession of a controlled substance as a lesser included offense of the count 1 transportation of a controlled substance charge. We conclude that, under the facts of this case, possession is a lesser included offense of transportation. However, we also conclude the trial court did not have a sua sponte duty to instruct the jury on simple possession as a lesser included offense of the count 1 transportation of a controlled substance charge because substantial evidence supported the greater offense.
A. Possession as a Lesser Included Offense of Transportation
King contends simple possession of a controlled substance is a lesser included offense of transportation of a controlled substance. Based on the facts of this case, we agree.
1. Background
The information filed in this case charged King with two felony counts. In count 1, the information alleged that on July 21, 2005, King transported a controlled substance in violation of Health and Safety Code section 11352, subdivision (a). In count 2, the information alleged that on that same date (July 21, 2005), King possessed a controlled substance for sale in violation of Health and Safety Code section 11351.5.
A jury convicted King of two offenses: (1) transportation of a controlled substance, as charged in count 1; and (2) possession of a controlled substance, as an uncharged lesser included offense of the offense charged in count 2, possession of a controlled substance for sale.
2. Applicable legal principles
There are two tests for determining whether one offense is necessarily included within another offense: the "elements" test and the "accusatory pleading" test. (People v. Lopez (1998) 19 Cal.4th 282, 288.) "Under the elements test, if the statutory elements of the greater offense include all of the statutory elements of the lesser offense, the latter is necessarily included in the former. Under the accusatory pleading test, if the facts actually alleged in the accusatory pleading include all of the elements of the lesser offense, the latter is necessarily included in the former." (People v. Reed (2006) 38 Cal.4th 1224, 1227-1228 (Reed).)
"Although possession is commonly a circumstance tending to prove transportation, it is not an essential element of that offense and one may transport marijuana or other drugs even though they are in the exclusive possession of another." (People v. Rogers (1971) 5 Cal.3d 129, 134, fn. omitted (Rogers ).) Therefore, under the elements test, possession of a controlled substance is never a lesser included offense of transportation of a controlled substance. (Ibid.)
However, the California Supreme Court in Rogers held in a footnote (Rogers footnote 3) that "[i]n 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." (Rogers, supra, 5 Cal.3d at p. 134, fn. 3.) Therefore, under the accusatory pleading test, possession of a controlled substance will be a lesser included offense of transportation of a controlled substance if the accusatory pleading indicates the possession was incidental to, and a necessary part of, the transportation. (Ibid.) If, however, the accusatory pleading indicates the possession was not incidental to, and was not a necessary part of, the transportation, or if the accusatory pleading indicates some prior, different, or subsequent possession (such as on a different date or at a different time), then in that particular case, possession of a controlled substance will not be a lesser included offense of transportation of a controlled substance. (Ibid.)
See also People v. Richardson (1970) 6 Cal.App.3d 70, 78, holding that possession and transportation constituted the same act and therefore defendant should only have been convicted of transportation.
3. Analysis
The accusatory pleading, which alleged that King both transported and possessed the cocaine base, demonstrates that possession was incidental to the transportation. Indeed, the information alleged in count 2 that King possessed the cocaine base on the very same date, July 21, 2005, that (as charged in count 1) he transported the cocaine base. Based on the facts alleged in the accusatory pleading, King could not have transported the cocaine base unless he was also in possession of that cocaine base. Stated another way, Kings possession of the controlled substance was incidental to, and a necessary part of, his transportation of that controlled substance. As such, in this case, the offense of possession of a controlled substance is a lesser included offense of transportation of a controlled substance.
The People rely on People v. Watterson (1991) 234 Cal.App.3d 942, 945, to support their contention that possession of a controlled substance is not a lesser included offense of transportation of a controlled substance. In Watterson, the court declined to follow Rogers footnote 3 (discussed, ante), stating it was merely dicta and the cases cited by Rogers were inconsistent. (Watterson, supra, at p. 945.) We decline to follow Watterson. We regard Rogers footnote 3 as Supreme Court precedent that is binding on this court under Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.
B. Sua Sponte Duty To Instruct on Lesser Included Offenses
King contends that because in this case possession is a lesser included offense of transportation, the court had a sua sponte duty to instruct the jury on the elements of simple possession as a lesser included offense of transportation. We reject this contention.
1. Applicable legal principles
It is well settled that "a defendant has a constitutional right to have the jury determine every material issue presented by the evidence." (People v. Sedeno (1974) 10 Cal.3d 703, 720, overruled on other grounds in People v. Flannel (1979) 25 Cal.3d 668, 684-685, fn. 12.) As a result, a trial court is required to instruct the jury "on the general principles of law relevant to the issues raised by the evidence," even where counsel has failed to make a request for the instruction. (People v. St. Martin (1970) 1 Cal.3d 524, 531.) The policy behind the trial courts obligation to instruct sua sponte is to prevent the jury from being faced with "an unwarranted all-or-nothing choice" where "the People have no legitimate interest in obtaining a conviction of a greater offense than that established by the evidence, [and where the] defendant has no right to an acquittal when that evidence is sufficient to establish a lesser included offense. [Citation.]" (People v. Wickersham (1982) 32 Cal.3d 307, 324, disapproved on other grounds in People v. Barton (1995) 12 Cal.4th 186, 200.)
Failure to instruct sua sponte on a lesser included offense constitutes error only if the evidence of defendants guilt of the lesser offense alone is "substantial enough to merit consideration by the jury." (People v. Breverman (1998) 19 Cal.4th 142, 162, quoting People v. Flannel, supra, 25 Cal.3d at p. 684, fn. 12.) In this context, "substantial evidence" means ""evidence from which a jury composed of reasonable [persons] could . . . conclude []" that the lesser offense, but not the greater, was committed. [Citations.]" (Breverman, supra, 19 Cal.4th at p. 162.) "[T]he existence of any evidence, no matter how weak will not justify instructions on a lesser included offense." (Ibid.) Furthermore, a trial courts error in failing to instruct sua sponte on a lesser included offense is not subject to reversal "unless an examination of the entire record establishes a reasonable probability that the error affected the outcome." (Id. at p. 165.)
"[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 controlled substance . . . shall be punished by imprisonment." (Health & Saf. Code, § 11379, subd. (a).) There is no "minimal movement" necessary to constitute transportation of a controlled substance. The evidence need only show the controlled substance was "transport[ed]," or moved, while under the defendants control. (People v. Emmal (1998) 68 Cal.App.4th 1313, 1315.) "Transport, as used in this statute, has no technical definition." (People v. LaCross (2001) 91 Cal.App.4th 182, 185.) "To transport [simply] means to carry or convey from one place to another." (Ibid.) A bicycle may be used to transport a controlled substance for purposes of Health and Safety Code section 11379. (LaCross, supra, at pp. 186-187.) Walking is likewise a form of transportation. (People v. Ormiston (2003) 105 Cal.App.4th 676, 685.)
2. Analysis
Here, the evidence does not support the notion that King committed the lesser offense of simple possession, but did not commit the greater offense of transportation. To the contrary, the evidence overwhelmingly supports Kings conviction for transportation of a controlled substance. It is undisputed that King knowingly possessed the cocaine base discovered in his pocket. Indeed, evidence was presented that King admitted to having received the cocaine base two days prior and had actually used some of the drugs himself the day before. It is likewise undisputed that King transported the cocaine base when he rode away from the officers on his bicycle. All of the elements of transportation of a controlled substance were clearly satisfied by the evidence presented at trial. Therefore, a reasonable jury could not conclude King committed the lesser offense of possession, but not the greater offense of transportation. We conclude the court did not err by not instructing the jury on count 1 that possession was a lesser included offense of transportation. (See People v. Breverman, supra, 19 Cal.4th at p. 162.)
II. MULTIPLE CONVICTIONS
King alternatively contends his count 2 conviction for possession of a controlled substance should be reversed because he could not be lawfully convicted of both the greater offense of transportation of a controlled substance charged in count 1 and the uncharged lesser included offense of possession of a controlled substance in count 2. We agree.
A. Applicable Legal Principles
"In general, a person may be convicted of, although not punished for, more than one crime arising out of the same act or course of conduct." (Reed, supra, 38 Cal.4th at p. 1226, citing § 954.) An exception to the general rule permitting multiple convictions "prohibits multiple convictions based on necessarily included offenses." (People v. Montoya (2004) 33 Cal.4th 1031, 1034.)
In determining whether an uncharged offense is necessarily included in a charged offense and would therefore fall subject to the prohibition against multiple convictions based on necessarily included offenses, courts should consider both the elements test and the accusatory pleading test. The California Supreme Court has explained that "[c]ourts should consider the statutory elements and accusatory pleading in deciding whether a defendant received notice, and therefore may be convicted, of an uncharged crime, but only the statutory elements in deciding whether a defendant may be convicted of multiple charged crimes." (Reed, supra, 38 Cal.4th at p. 1231.)
B. Analysis
The issue we must decide is whether the uncharged lesser included offense of simple possession of a controlled substance in count 2 is necessarily included in the charged offense of transportation of a controlled substance in count 1. We conclude it is.
King was not convicted of multiple charged offenses. Rather, he was convicted of one charged crime — transportation of a controlled substance—and one uncharged crime—possession of a controlled substance. Under Reed, supra, 38 Cal.4th at page 1231, we thus may consider both the statutory elements and the accusatory pleading filed in this case in determining whether possession is a lesser included offense of transportation.
The People contend Kings two convictions arose not from a single criminal act, but from different conduct: the conviction for transportation resulted from Kings transportation of the cocaine base on his bicycle when he rode away from the group of males and ended when the police stopped him at a gas station, and the conviction of simple possession resulted from his possession of cocaine base for two days. The People also contend that because Kings convictions did not result from the same conduct, the prohibition against multiple convictions involving a lesser included offense does not apply. We reject these contentions.
Kings possession of cocaine base while riding his bicycle was the act that resulted in his convictions of both possession of a controlled substance and transportation of a controlled substance. Kings possession of cocaine base for two days prior was not the basis for his conviction for possession of a controlled substance. This is supported by the information, which alleged Kings conduct in both count 1 and count 2 occurred on the same date, July 21, 2005. Moreover, the fact that Kings sentence for his count 2 conviction for possession of a controlled substance was stayed under section 654 further supports our conclusion that Kings convictions arose from the same criminal act.
The same offense of simple possession was a lesser included offense of both charged offenses: transportation of a controlled substance (count 1) and possession of a controlled substance for sale (count 2). King therefore suffered multiple convictions based on necessarily included offenses in violation of People v. Montoya, supra, 33 Cal.4th 1031. Specifically, he was convicted of both the greater offense of transportation of a controlled substance and the lesser included offense of simple possession of a controlled substance. Thus, Kings conviction for simple possession was unlawful and cannot stand. Accordingly, we reverse Kings count 2 conviction of possession of a controlled substance.
III. PROPOSITION 36 PROBATION
King contends he should be placed on Proposition 36 probation because (1) the court violated Blakely v. Washington, supra, 542 U.S. 296, in determining he was ineligible for Proposition 36 probation by finding he did not possess the cocaine base for personal use; (2) he should be eligible for Proposition 36 probation notwithstanding his prior strikes; and (3) the jurys finding that King did not possess the narcotics for sale is binding on this court through the doctrine of collateral estoppel. We reject these contentions.
A. Judicial Fact Finding for Proposition 36 Purposes
Relying on Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi), Blakely, supra, 542 U.S. 296, and United States v. Booker (2005) 543 U.S. 220 (Booker), King contends the jury, not the court, should have determined the facts that governed his eligibility for Proposition 36 probation. Specifically, King contends the jury should have decided whether he possessed the cocaine base for personal use. We reject this contention.
1. Background
During the sentencing phase of the trial, the court stated: "Under Penal Code section 1210, [the] court will be required to make a finding that this was for personal use. I could not do that. . . . I cant find its personal use." The court proceeded to find that King was ineligible for Proposition 36 probation because of his prior strike convictions.
2. Applicable legal principles
The Substance Abuse and Crime Prevention Act of 2000, commonly known as Proposition 36, is codified in sections 1210, 1210.1, and 3063.1 of the Penal Code, and division 10.8 of the Health and Safety Code (§ 11999.4 et seq.). (People v. Dove (2004) 124 Cal.App.4th 1, 6.) Proposition 36 provides, in relevant part: "Notwithstanding any other provision of law, and except as provided in subdivision (b), any person convicted of a nonviolent drug possession offense shall receive probation." (§ 1210.1, subd. (a).)
Proposition 36 "dramatically changed the penal consequences for those convicted of nonviolent drug possession offenses. [Citation.]" (People v. Guzman (2003) 109 Cal.App.4th 341, 346, quoting People v. Letteer (2002) 103 Cal.App.4th 1308, 1322, fn. 8, which was overruled on other grounds in Peracchi v. Superior Court (2003) 30 Cal.4th 124.) "[N]onviolent drug possession offense," as defined in Proposition 36, includes "the unlawful personal use, possession for personal use, or transportation for personal use" of specified controlled substances, including cocaine base. (§ 1210, subd. (a); see also Health & Saf. Code, § 11054, subd. (f)(1).) Proposition 36 excludes "the possession for sale" of any controlled substance. (§ 1210, subd. (a).)
In Apprendi, supra, 530 U.S. at page 490, the United States Supreme Court stated that, "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." In Blakely, supra, 542 U.S. at pages 303-304, the Supreme Court defined the "statutory maximum" as "not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings."
In People v. Barasa (2002) 103 Cal.App.4th 287, 294, this court held that Apprendi does not apply to a personal use finding under section 1210.1. In reaching this conclusion, this Court stated: "In this case, the issue concerns a sentencing provision which lightens, rather than increases, punishment for crime. Because [] section 1210.1 effects a sentencing reduction, rather than an increase in the prescribed statutory maximum sentence, the analysis of a related sentencing provision which also provides for a possible mitigation of punishment, rather than an increase in the prescribed statutory maximum punishment, is applicable." (Barasa, supra, at p. 294.)
In People v. Glasper (2003) 113 Cal.App.4th 1104, 1115, the Court of Appeal agreed with the reasoning in Barasa by likewise holding that Apprendi does not apply to a personal use finding under section 1210.1 because section 1210.1 decreases, rather than increases, the sentence imposed. This line of analysis was subsequently adopted by the California Supreme Court in In re Varnell (2003) 30 Cal.4th 1132, 1142 (Varnell), in which the court stated that "nothing in section 1210.1 could [create] an enhancement to petitioners sentence since, when it applies, section 1210.1 reduces the potential punishment. [Citations.]"
In People v. Dove, supra, 124 Cal.App.4th at pages 8-9, the Court of Appeal followed the reasoning of Barasa, Glasper, and Varnell in holding that, because Proposition 36 probation reduces, rather than increases, the potential sentence, Apprendi was inapplicable. The Dove court also determined that the United States Supreme Courts Blakely decision did not affect the holdings in Barasa, Glasper, or Varnell. (People v. Dove, supra, at pp. 10-12.)
In Booker, supra, 543 U.S. 220, the United States Supreme Court revisited Apprendi and Blakely, this time to determine the constitutionality of the federal sentencing guidelines. The high court affirmed its holding in Apprendi, stating: "Any fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt." (Id. at p. 244.) The Court also eliminated the previously mandatory nature of the federal sentencing guidelines by rendering them advisory, and in so doing, permitting the guidelines to survive constitutional muster. (Id. at p. 246.)
3. Analysis
The reasoning of the California courts in Barasa, Glasper, Varnell, and Dove is clear: Apprendi does not apply to a factual determination of personal use for Proposition 36 purposes. We are now presented with the question of whether the United States Supreme Courts ruling in Booker alters this precedent. We conclude that it does not. As already discussed, Booker, like Apprendi and Blakely, concluded that judicial fact finding is improper when used to impose a sentence above the statutory maximum. Proposition 36 probation, however, reduces the potential sentence imposed.
King looks to the mandatory nature of Proposition 36 probation to support his position, citing Bookers concern with the mandatory nature of the federal sentencing guidlines. This does not, however, change the fact that Proposition 36 is not a sentencing increase and therefore is not subject to the holdings of Apprendi, Blakely, and Booker.
King also argues that the personal use determination for Proposition 36 probation purposes directly dictates what the maximum sentence for any given defendant will be. However, last year, the California Supreme Court held that, under Californias determinate sentencing law, the upper term is the "statutory maximum." (People v. Black (2005) 35 Cal.4th 1238, 1254.) The issue is now before the United States Supreme Court in Cunningham v. California (2006) __ U.S. __ . However, we remain bound to follow Black until such time, if ever, as that court rules otherwise. (Auto Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d at p. 455.) Accordingly, Kings contention fails.
Because Apprendi, Blakely, and Booker concern sentencing increases and are therefore inapplicable to findings made to impose a sentencing decrease under Proposition 36, it is not necessary to reach Kings derivative claim that this court is collaterally estopped from remanding the case for a personal use finding.
B. Kings Ineligibility for Proposition 36 Probation
King contends his should be eligible for Proposition 36 probation notwithstanding his prior strike convictions. We reject this contention.
1. Background
In a bifurcated proceeding, the court found true the allegation that King had suffered three prior strike convictions. Kings prior strikes were as follows: (1) a robbery conviction, in violation of section 211; (2) an additional robbery conviction, in violation of section 211; and (3) a conviction for assault with a firearm upon a peace officer, in violation of section 245, subdivision (d)(1). Robbery is enumerated as a violent felony in section 667.5, subdivision (c)(6), and assault with a firearm upon a peace officer is enumerated as a serious felony in section 1192.7, subdivision (c)(11).
The court struck two of Kings three prior strikes. Specifically, the court struck one of Kings two convictions under section 211, in addition to Kings conviction under section 245, subdivision (d)(1), leaving one of Kings convictions under section 211 to remain for sentencing. The court found King was ineligible for Proposition 36 probation because of his prior strikes and sentenced him to a total of 13 years in prison.
2. Applicable Legal Principles
One of the enumerated exceptions to the mandatory imposition of probation under section 1210.1, subdivision (a) provides: "Subdivision (a) shall not apply to . . . [a]ny defendant who previously has been convicted of one or more violent or serious felonies as defined in subdivision (c) of Section 667.5 or subdivision (c) of Section 1192.7, respectively, unless the nonviolent drug possession offense occurred after a period of five years in which the defendant remained free of both prison custody and the commission of an offense that results in a felony conviction other than a nonviolent drug possession offense, or a misdemeanor conviction involving physical injury or the threat of physical injury to another person." (§ 1210.1, subd. (b)(1).)
3. Analysis
King had three prior convictions for serious or violent felonies and was not free from prison custody for five years prior to commission of the current offense. Indeed, King had only been out of prison for two months prior to committing the current offense. Under the plain language of section 1210.1, subdivision (b)(1) (discussed, ante), King was ineligible for mandatory imposition of Proposition 36 probation. We thus conclude the court properly found King was ineligible for Proposition 36 probation.
C. Collateral Estoppel
King asserts the court refused to place him on Proposition 36 probation because it believed he did not possess the cocaine base for personal use. King contends the court erred by finding he was ineligible for Proposition 36 probation because under the doctrine of collateral estoppel the court was bound by the jurys implied factual determination that he possessed the cocaine base for personal use.
We need not reach the merits of this claim of error because, for reasons already discussed, we have concluded that Kings strike prior rendered him ineligible for Proposition 36 probation, as the court correctly found.
DISPOSITION
We reverse Kings count 2 conviction for possession of a controlled substance and otherwise affirm the judgment.
We Concur:
McDONALD, J.
IRION, J.