Opinion
NOT TO BE PUBLISHED
Super. Ct. No. CRF08-813
RAYE, Acting P. J.A jury convicted defendant Martin Sanchez in count 1 of transporting two quantities of methamphetamine (Health & Saf. Code, § 11379, subd. (a)) and in count 2 of possessing unspecified methamphetamine for sale (Health & Saf. Code, § 11378), along with other offenses not directly relevant to this appeal. The trial court then sustained on-bail enhancements. (Pen. Code, § 12022.1, subd. (b).) It sentenced defendant to state prison, staying the sentence on count 2 (presumably because it was the same methamphetamine as in count 1 (Pen. Code, § 654)) and one of the enhancements because the prosecution dismissed the case for which he had been on bail at the time of some of these later offenses.
All further statutory references are to the Penal Code unless otherwise indicated.
Defendant’s sole contention on appeal is the failure of the court to instruct on the lesser offense of simple possession sua sponte in connection with count 2, asserting that substantial evidence supports the lesser offense. We shall affirm.
FACTS
A car caught the attention of officers in an unmarked vehicle who were patrolling for gang activity in September 2007. The officers determined from the license plate that the car had been stolen from Redding a few days earlier. They activated their emergency lights and siren as the car turned onto a freeway on-ramp. The car came to a stop almost immediately. Defendant was the driver; there was a woman in the front passenger seat and another man in the rear. The officers ordered them out of the car.
This was the basis for count 3, receiving or buying a stolen car.
Complying with their directives, defendant walked backward from the car with his hands behind his head, then knelt with his legs crossed. A quick frisk of defendant after handcuffing him did not disclose anything, but a more thorough search of his person afterward found a small plastic bag in a front pocket of his pants with 0.1 to 0.2 gram of what defendant admitted was his methamphetamine. After all three of the car’s occupants were in custody, one of the officers noticed a clean plastic bag on the ground about three inches behind the right rear tire of the police vehicle in which defendant was sitting on the right side. This plastic bag, which was larger than the one found in defendant’s pocket, contained just about 28 grams of methamphetamine. The camera in an arriving patrol car showed the plastic bag had not been on the ground previously.
No one had noticed defendant discarding anything, but he was the only one of the three people from the car who had walked in that area before the discovery of the plastic bag on the ground. When the police later interviewed him, defendant denied ownership of the plastic bag found on the ground. The forensic analyst could not retrieve fingerprints from either bag (noting that she had never been successful In retrieving fingerprints from plastic bags).
Defendant’s conviction in count 5 for simple possession (with the unstayed bail enhancement) is based on an incident in January 2008 while on bail for the September 2007 offenses. Defendant consented to a search of his person after police responded to a report of a domestic dispute. The officer found a substance in a “little coin bag” (a plastic bag approximately one inch tall by one inch wide) in defendant’s right front coin pocket, and placed him under arrest. There were 1.22 grams of methamphetamine in the plastic bag.
According to a prosecution expert, the average dose for a user is 0.1 to 0.2 gram. The methamphetamine found on defendant’s person was worth $20 to $40, which is a common amount to purchase on the street for personal use. The plastic bag, however, was much too large for this small amount of methamphetamine, which would lead to waste in the form of methamphetamine residue stuck to the sides of the bag. The larger bag on the ground contained 280 doses (at the higher usage rate of 0.1 gram per dose), which would be enough to keep even a user with high tolerance under the influence 24 hours per day for 45 days, a rate of consumption the expert had never encountered in users. It is unlikely that someone would buy “in bulk” to get a better price, because addicts rarely think in the long term and usually do not have the resources to afford $1,200 to $1,800 for one purchase (the approximate street value of the methamphetamine in the larger plastic bag). He therefore believed the large quantity of the drug was possessed with intent to sell, and that the baggie found on defendant’s person represented the remnant of a larger quantity possessed for sale based on the packaging, although he admitted the amount was consistent with personal use. The absence of any indicia of sales in the car did not affect his opinion, because defendant could have been en route to the location where he kept such items and the amount itself established an intent to sell. On the other hand, the absence in the car of any paraphernalia relating to use would undermine any claim of possession for personal use. The expert conceded that there could be circumstances in which a person had purchased a large quantity on behalf of a group and therefore possessed it with an intent to distribute rather than sell.
As a rule of thumb, the expert believed that any amount in excess of 3.5 grams is possessed for sale.
The jury submitted questions for counsel to ask the expert. The prosecutor asked two of them: whether there was a typical place or situation in which the sales of drugs took place, and whether it was common for a group of users to pool their money “to get a better price on a large quantity... like many people do at Costco.” (With respect to the latter question, the expert also offered the opinion that dividing the amount in the plastic bag on the ground by three still resulted in an amount consistent with possession for sale.) The third question asked whether, in the expert’s experience, “a dealer [would] ever sell the larger bag as a personal use bag.” It does not appear that anyone posed this question to the expert, but his testimony regarding the uncustomary nature of bulk purchasing for personal use touched upon the issue.
The prosecutor argued that defendant both transported the two plastic bags in September 2007 and possessed them for purposes of sale. Defense counsel asserted the prosecution had failed to prove defendant transported the larger bag of drugs or possessed it for sale, and that while defendant admitted transporting the smaller bag, it was not possessed for purposes of sale. The jury made a special finding that defendant transported both the plastic bag in his pocket and the one on the ground. It did not make a similar finding with respect to possession for sale, but had received an instruction that it must agree unanimously on the factual basis for that count.
DISCUSSION
I
A trial court has the obligation to instruct sua sponte on all theories of lesser included offenses “which find substantial support in the evidence” such that a reasonable jury could find a defendant guilty of the lesser offense but not the greater. (People v. Breverman (1998) 19 Cal.4th 142, 162.) A breach of this duty does not warrant reversal unless we are convinced that there is a reasonable probability of a more favorable result to a defendant in the absence of the error. (Id. at p. 149.)
Defendant’s invocation of the more exacting federal standard (error must be harmless beyond a reasonable doubt) disregards this controlling authority, citing instead the dissent.
As substantial evidence of his guilt of simple possession (Health & Saf. Code, § 11350) of the larger amount of drugs left on the ground, defendant cites the expert’s concession that there could be a situation in which a person intends to distribute a large quantity of drugs to others rather than to sell it. However, this is not evidence of the lesser crime of simple possession; this is the alternative crime of furnishing. (Health & Saf. Code, § 11379.) The expert did not otherwise concede that defendant could be guilty of only simple possession of this plastic bag, believing that ordinary users lack both the means and the temperament for accumulating a “Costco” quantity for personal use. The jury did not have any nonarbitrary basis for doubting this opinion, nor was there otherwise affirmative evidence to support a finding that defendant had purchased in bulk, rendering such a finding mere speculation insufficient to support an instruction on simple possession. (People v. Stein (1979) 94 Cal.App.3d 235, 239; People v. Drolet (1973) 30 Cal.App.3d 207, 217; People v. Berti (1960) 178 Cal.App.2d 872, 875; Matthews v. Civil Service Com. (1958) 158 Cal.App.2d 169, 173.) Therefore, the trial court did not have an obligation to instruct on simple possession with respect to the larger plastic bag.
Defendant is correct that the expert conceded defendant’s possession of the smaller bag was consistent with simple possession (although the size of the bag convinced him otherwise). In theory, then, defendant was entitled to an instruction on simple possession of this plastic bag. However, the jury found defendant transported both bags. His sole argument regarding the larger was that someone else had transported it, asserting only in passing that the prosecution did not prove he had also possessed it for sale. We do not find it reasonably probable that a reasonable juror would have found that he transported this large quantity but possessed it only for personal use—absent substantial evidence that the possession of nearly an ounce of methamphetamine is for personal use (cf. People v. Guiton (1993) 4 Cal.4th 1116, 1129 [will not presume jury chose theory not supported with sufficient evidence absent some affirmative sign to that effect])—and sustained count 2 only on the basis that he possessed a mere 0.1 to 0.2 gram for sale. Therefore, foreclosing the option of simple possession could not have harmed defendant.
Defendant attempts to establish prejudice through the jury query regarding the pooling of funds to buy a larger amount for personal use and the unasked question about whether dealers sold large bags for personal use (which presumes that dealers would ever inquire about the use to which a buyer puts the purchase). These do not have any effect on our conclusion that, whatever its musings in the course of trial, the jury ultimately could not rationally have based count 2 solely on possession for sale of the smaller bag.
II
Pursuant to this court’s miscellaneous order number 2010-002, filed March 16, 2010, we have deemed defendant to have raised an issue (without additional briefing) of whether amendments to section 4019, effective January 25, 2010, apply retroactively to his pending appeal and entitle him to additional presentence conduct credits. In our recent opinion in People v. Brown (Mar. 16, 2010, C056510) ___ Cal.App.4th ___, we concluded that the amendments apply to pending appeals.
As defendant does not have a present or prior conviction for a violent or “serious” felony and is not subject to registration as a sex offender, he is entitled to accrue work and conduct credits at a rate of two days for every four days served (§ 4019, subds. (b)(1) & (c)(1)), and thus a period of four days is deemed served for every two-day period of actual custody (§ 4019, subd. (f)). With 251 days of actual custody, defendant is now entitled to 250 days of conduct credits rather than 124. We will direct the trial court to amend the abstract accordingly.
DISPOSITION
The judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment reflecting an additional 126 days of presentence custody credit and to forward a certified copy of said amended abstract to the Department of Corrections and Rehabilitation.
We concur: BUTZ, J. CANTIL-SAKAUYE, J.