Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kings County No. 06CM0068, Peter M. Schultz, Judge.
William D. Farber, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Amanda D. Cary, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Vartabedian, Acting P.J., Cornell, J. and Dawson, J.
A jury convicted appellant Jon Davis Price of possession of methamphetamine for purposes of sale (Health & Saf. Code, § 11378; count 2); transporting, importing into California, selling, furnishing, administering or giving away OxyContin (Health & Saf. Code, § 11352, subd. (a); count 3); possession of OxyContin for purposes of sale (Health & Saf. Code, § 11351; count 4); and possession of methamphetamine while armed with a firearm (Health & Saf. Code, § 11370.1, subd. (a); count 7). The jury also found true an allegation that appellant was personally armed with a firearm in the commission of the count 2 offense (Pen. Code, § 12022, subd. (c)). The court imposed a prison term of six years, consisting of the two-year midterm on count 2 plus four years for the accompanying firearm use enhancement. The court imposed a concurrent four-year term on count 3, and on counts 4 and 7 the court stayed imposition of sentence pursuant to Penal Code section 654. Thereafter, the court, pursuant to Welfare and Institutions Code section 3051, suspended criminal proceedings and ordered appellant committed to the California Rehabilitation Center for drug addiction treatment.
On appeal, appellant argues that the court erred in instructing the jury with respect to the possession-related offenses (counts 2, 4 and 7) because the court failed to instruct as to an essential element of each of those offenses, viz., “dominion and control.” We will affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Facts
On January 5, 2006, police officers assigned to the Kings County Narcotics Task Force executed a search warrant at appellant’s residence. During the search, inside the living area and the attached garage, one of the officers found, among other items, the following: three loaded rifles, approximately one-tenth of a gram of what appeared to be methamphetamine, two digital scales, a mechanical scale, an insurance policy issued to appellant for a Chevrolet S-10 pickup and approximately four grams of a substance that appeared to be marijuana.
While the search was in progress, appellant drove up, alone, in a Chevrolet S-10 pickup. He got out of the pickup and entered his house, where one of the officers made contact with him. The officer told appellant methamphetamine and marijuana had been found in the house, and appellant admitted both were his.
Another officer searched the pickup. In the cab, he found, among other items, a plastic bag containing what appeared to be methamphetamine, and a blue and black bag, inside of which were two more plastics bag containing what appeared to be methamphetamine, two digital scales and a round container containing what appeared to be methamphetamine. Inside a tool box located in the bed of the pickup the officer found a canvas bag containing the following: a plastic bag containing what appeared to be a kind of methamphetamine the officer had seen only rarely in the past, a vial containing what appeared to be methamphetamine, a pill bottle containing 13 pink pills and bearing a prescription label with the name Mark Vehlo, and a pill bottle that bore no markings and contained 58 pink pills similar to those found in the other bottle.
An officer asked appellant if the items found in the pickup belonged to him. Appellant stated that they did.
An officer placed the various quantities of suspected methamphetamine in separate plastic bags, heat sealed the bags closed, and submitted them, in a manila envelope, for chemical testing to the Department of Justice Bureau of Forensic Services (DOJ). However, the heat sealing on the plastic bags containing the suspected methamphetamine failed, the contents of the bags mixed together in the manila envelope and the DOJ refused to test the submitted material. Thereafter, an officer delivered the material to Central Valley Toxicology (CVT), an independent drug testing laboratory. There, Bill Posey, a toxicologist and the co-owner and director of CVT, tested eight different samples of a crystalline substance; each sample tested positive for methamphetamine. He also tested a sample of 13 pink pills and a separate sample of 58 pink pills, and each sample tested positive for OxyContin.
Facts – Defense Case
Appellant did not know that the drugs found in his house and in his pickup were there. In January 2006, he had a landscaping, home construction and remodeling business, and two of his employees were Mark Vehlo and Anthony Valencia. Both men had access to and used appellant’s pickup, and both men had keys to appellant’s house. The bags containing contraband found, respectively, in the cab of his pickup and in the tool box in his pickup belonged, respectively, to Vehlo and Valencia. Appellant lied to the police when he admitted the drugs found were his in order to protect his girlfriend who also had keys to his house and truck.
The “Defense Case” portion of our factual summary is taken from appellant’s testimony.
The Challenged Instructions
In instructing the jury as to counts 2 and 4, the court, using the language of CALCRIM No. 2302, stated, in relevant part, as follows:
“The defendant is charged in Count II with possession of methamphetamine for sale, … and in Count IV with possession of OxyContin for sale ….
“To prove that the defendant is guilty of these crimes, the People must prove that, one, the defendant possessed the controlled substance alleged in each count; two, the defendant knew of its presence; three, the defendant knew of the substance’s nature or character as a controlled substance; four, when the defendant possessed the controlled substance he intended to sell it; and five, the controlled substance was in a usable amount…. [¶] … A person does not have to actually hold or touch something to possess it. It is enough if the person knowingly has control over it or the right to control it either personally or through another person.”
The court instructed the jury as to count 7 (possession of methamphetamine for purposes of sale) and the lesser included offense of simple possession, in the language of CALCRIM Nos. 2303 and 2304, respectively. These instructions define possession in language substantively identical to that in CALCRIM No. 2302.
DISCUSSION
Appellant contends the court erred in instructing the jury in the language of CALCRIM Nos. 2302, 2303 and 2304 because those instructions do not tell jurors that conviction of the possession-related offenses requires proof beyond a reasonable doubt that the accused had “dominion and control” over the controlled substance. Appellant argues that dominion is different from control, and that the portion of the challenged instructions which told the jury that “[i]t is enough if the person knowingly has control over it or the right to control it either personally or through another person” was not adequate to convey this difference. There is no merit to appellant’s contention.
In People v. Montero (2007) 155 Cal.App.4th 1170 (Montero), the court rejected a claim virtually identical to that raised by appellant here, and upheld the giving of CALCRIM No. 2302. The court acknowledged, as appellant asserts, that “[m]any courts have long stated” that the possession element of offenses prohibiting possession of a controlled substance require a showing of “dominion and control over the controlled substance.” (Montero, supra, at p. 1176; see, e.g., People v. Palaschak (1995) 9 Cal.4th 1236, 1242 [“essential elements of possession of a controlled substance are ‘dominion and control of the substance in a quantity usable for consumption or sale, with knowledge of its presence and of its restricted dangerous drug character’”]; People v. Parra (1999) 70 Cal.App.4th 222, 225-226 [“prosecution must prove beyond a reasonable doubt that … the defendant exercised dominion and control over the controlled substance”].)
This factor notwithstanding, the court rejected the defendant’s claim that the trial court erred in not using the phrase “dominion and control” in defining the possession element and held that CALCRIM No. 2302 “correctly restates the possession requirement.” (Montero, supra, 155 Cal.App.4th at p. 1176.) The court reasoned, “The phrase itself is redundant and archaic. The word ‘dominion’ is defined as ‘Control; possession’ (Black's Law Dict. (8th ed. 2004) p. 525); or ‘rule; control; domination.’ (Random House Dict. of the English Language (2d ed. 1987) p. 582.) To ‘dominate’ is ‘to rule over; govern; control.’ (Ibid.) The authors of CALCRIM No. 2302 were instructed to develop instructions that were legally accurate, understandable to the average juror, and written in plain English. (Preface to Judicial Council of Cal. Crim. Jury Instns. (2006-2007) p. ix.) They wisely decided not to perpetuate the redundancy. They did so by omitting the phrase in the instruction.” (Id. at p. 1177.)
The court found support for its conclusion that the phrase “dominion and control” is “merely a different way of saying the defendant possessed the substance physically or constructively” in two California Supreme Court decisions: “Our Supreme Court has approved this summary of the elements of simple possession, a formula that does not contain the phrase ‘dominion and control’: ‘“The defendant exercised control over the narcotics, he or she knew of its nature and presence, and possessed a usable amount. (CALJIC No. 12.00.)”’ (People v. Martin (2001) 25 Cal.4th 1180, 1191, quoting People v. Spry (1997) 58 Cal.App.4th 1345, 1369.) CALJIC No. 12.00, the predecessor to CALCRIM No. 2302, also does not contain the phrase ‘dominion and control,’ but the Supreme Court nonetheless declared the instruction ‘accurately restated the law.’ (People v. Morales (2001) 25 Cal.4th 34, 47-48.)” (Montero, supra, 155 Cal.App.4th at pp. 1176-1177, fn. omitted.)
Appellant contends Montero was wrongly decided because the court there “failed to appreciate that the element of dominion and control is more complex than the superficial and insufficient ‘control or right to control’ language used in the CALCRIM Nos. 2302, 2303, and 2304 instructions given by the trial court in this case.” We disagree. We agree with the Montero court’s conclusion that the phrase is redundant. As the court in Montero concluded, “CALCRIM No. 2302 captures all of the elements of the crime of possession for sale. It correctly states the elements of possession and knowledge in a manner reasonable jurors are able to understand.” (Montero, supra, 155 Cal.App.4th at p. 1177.) Therefore, appellant’s challenge to the jury instructions defining possession of a controlled substance is without merit.
DISPOSITION
The judgment is affirmed.