Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA331424, John S. Fisher, Judge.
Darryl O. Dickey, 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, Steven E. Mercer and Tita Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.
JOHNSON, J.
A jury found Ricky Thomas guilty of one count of sale of a controlled substance and one count of possession for sale of cocaine base. Thomas appeals, arguing that the trial court erred in allowing expert testimony on specific intent, the evidence was insufficient to convict him of possession for sale of cocaine base, and the trial court should have sua sponte given an instruction on criminal solicitation.
FACTS
An information dated December 3, 2007 charged Thomas with two felonies: sale of a controlled substance, in violation of Health and Safety Code section 11352, subdivision (a) (count 1), and possession of cocaine base for sale, in violation of section 11351.5 (count 2). The information also alleged that Thomas had two prior convictions: one for which he had served a prison term, pursuant to Penal Code section 667.5, subdivision (b), and one for possession of cocaine base for sale in violation of section 11351.5. Thomas pleaded not guilty and denied the special allegations. After trial, the jury convicted him on both counts. Thomas received a sentence of seven years.
All further statutory references are to the Health and Safety Code unless otherwise specified.
At trial, Los Angeles Police Department Officer Alonzo Williams testified that he worked as a member of a narcotics “buy team,” a group of approximately nine undercover officers who worked with several uniformed detectives and “chase officers.” The buy team traveled to areas of Los Angeles with a high volume of narcotics sales to make undercover buys and arrests. Wearing a one-way transmitter, the “buy” officer looked for someone from whom to buy narcotics. Other undercover officers served as “point” and “cover” officers, staying as close as possible to the buy officer to observe the narcotics transaction and to protect the buy officer. The point and cover officers used two-way radios to communicate with the uniformed detectives and officers, who stayed at a distance, and who also listened to the one-way transmissions of the buy officer’s conversations with the narcotics sellers. Officer Williams had been on the buy team for three years, and had been involved in 4,036 arrests, in 669 of which he had been the buy officer.
On November 2, 2007, the buy team was at Stanford Street and Seventh Avenue in the Skid Row area of Los Angeles, where sales of narcotics (mostly cocaine base, or “rock cocaine”) took place night and day. At around 9:10 p.m., Officer Williams, the assigned buy officer, saw Thomas standing on the sidewalk by a street light about 10 feet away. Officer Williams saw another man hand Thomas money, and then saw Thomas approach a woman identified as Sharon Jordan, standing three to five feet to Thomas’s north. Thomas gave Jordan the money, and Jordan gave Thomas “off-white solids” from a clear plastic “bindle” she held in her left hand. Thomas returned to the man who had given him the money, and gave the man the off-white solids. The man walked away.
Officer Williams then walked up to Thomas and asked Thomas for “a 20,” which was street vernacular for narcotics, and in the Stanford and Seventh area, rock cocaine. Thomas said okay, and told Officer Williams to wait. Again, Thomas approached Jordan and asked Jordan, “Let me get a 20.” Jordan took off-white solids from the bindle in her left hand and gave them to Thomas. Thomas turned to Officer Williams and waved him over, saying, “Brother come and get this 20.” Officer Williams approached Thomas and Jordan, and handed Thomas a $20 bill. Officer Williams had “prerecorded” the bill by photocopying it before going out, and had given the photocopy to the detectives working with the buy team so that the money could be verified upon recovery after an arrest.
Thomas handed Jordan the prerecorded $20 bill. Jordan placed the bill in her fanny pack. Thomas then gave Officer Williams the off-white solids. Officer Williams walked away north and gave a predetermined buy signal to the other officers. The “chase unit” and the detectives arrived and arrested Thomas and Jordan.
The off-white solids were tested and identified as.39 grams of cocaine base (rock cocaine). The detectives seized a clear plastic bindle from the waist band of Jordan’s underwear containing 2.1 grams of cocaine base. Another officer searched Thomas, and recovered six $20 bills, two $10 bills, six $5 bills, and three $1 bills, for a total of $173. A detective recovered $99 from Jordan’s fanny pack and $50 from the waistband of her underwear, including the prerecorded $20 bill that Officer Williams had given to Thomas. The parties also stipulated that Thomas received $198.90 each month in general relief.
Officer Williams testified as an expert regarding the sale of rock cocaine in the Skid Row area. He stated his opinion that the rock cocaine found in the bindle in Jordan’s waistband was possessed for sale, based on his observations that Jordan supplied Thomas with rock cocaine for the two transactions, and that Jordan held numerous rocks in her bindle (“that’s a lot of rock for one individual to be holding”). Sellers frequently kept their narcotics in a bindle like the one Jordan kept in her waistband. Officer Williams also explained that users generally smoked the cocaine they purchased right away, instead of carrying a bag of rocks. A user could break down rocks like those in Jordan’s bindle into smaller pieces for smoking in a pipe.
Officer Williams believed that Thomas and Jordan were working together the night of November 2, 2007, because he saw the previous transaction in which Thomas received money from an unidentified male, approached Jordan, received the drugs, and brought the drugs back to the unidentified buyer. When Officer Williams approached Thomas, the same pattern occurred, and Officer Williams could actually hear the conversation between Thomas and Jordan.
Officer Williams testified that in other buy team situations he would use a “hook,” someone who is always around and known to street sellers. Officer Williams would give the hook money and the hook would go out, buy the drugs, and bring them back, with money or a cut of the drugs in payment. Thomas was not a hook, but was part of the transaction working with Jordan. Usually, if two individuals were working together, one would hold the narcotics, and the other held the money and conducted the sales. If the police stopped both, one individual would be holding only money. The other, holding the drugs, would be arrested for possession. Officer Williams believed that the rock cocaine was possessed for sale because he had seen one transaction and participated in another, rather than because of the amount of money found on Jordan and Thomas when they were arrested.
On cross-examination, Officer Williams explained that the buy from Thomas was his only buy during his shift, because he served as a point officer the rest of the night. He wore a one-way transmitter, and the conversation was not recorded. The transaction took less than a minute. In each of the two transactions, Jordan handed Thomas some of what was in her bindle; Thomas did not reach into her bindle or fanny pack. Officer Williams did not hear any conversation about Thomas’s relationship with Jordan or see Thomas receive any payment. He based his conclusion that they were partners only on his observations.
Officer Jackeline Orellana testified that she was a cover officer on the buy team on November 2, 2007, assigned to watch over Officer Williams, the buy officer. She heard Officer Williams talk to someone on her radio. She turned and saw him talking to Thomas. Although she couldn’t hear what they were saying, she could see that they were having a conversation. She then saw Thomas make contact with Jordan, and saw Jordan hand Thomas some off-white solids resembling rock cocaine. Officer Orellana watched Officer Williams approach Thomas and Jordan and hand Thomas money. Thomas handed the money to Jordan, and handed Officer Williams the off-white solids. Officer Williams walked away northbound, and Officer Orellana saw the team arrest Thomas and Jordan within the next few minutes.
The defense moved to dismiss both counts for insufficient evidence, arguing that Jordan had control of both the drugs and the money, so that Thomas never had dominion, control, or ownership of the drugs. The court denied the motion, and the defense rested without presenting evidence. Over defense objections, the trial court gave instructions on aiding and abetting possession for sale.
In closing, the prosecution argued that Thomas possessed the cocaine base for sale (count 2) under one of two theories: constructive possession or aiding and abetting. The defense argued that Thomas did not have the right to control the narcotics in Jordan’s bindle, and so could not be found guilty on either theory.
During deliberations, the jury asked for clarification on what constituted possession, “specifically, the ‘right to control’ and whether that ‘right to control’ can be applied to the two transactions.” The trial court explained that there were two theories of culpability on count 2: “One, as a flat out aider and abettor not touching it” [the narcotics]. You don’t need to touch it. He was an aider and abettor as defined based on all of the evidence. Or, once again, not touching it, in that count but did he under the evidence have a right to control it either personally or through another person... what we call constructive possession.”
The jury convicted Thomas of count 1, sale of cocaine base, and count 2, possession for sale of cocaine base (writing “aiding and abetting” on the verdict form). In a bifurcated proceeding, Thomas admitted that he served a prior prison term and the court found the allegation to be true, striking the remaining special allegation. The trial court sentenced Thomas to seven years in state prison (the midterm of four years on count 1 plus three years under Section 11370.2 on count 2). The court also ordered Thomas to pay fines and fees and credited him with 426 days of custody. Thomas appeals.
DISCUSSION
I. The trial court properly admitted Officer Williams’s expert testimony regarding Jordan’s specific intent to sell the rock cocaine.
Thomas argues that the trial court erred when, over his objection, it allowed Officer Williams to testify that in his opinion Jordan possessed the drugs for sale. That expert testimony, Thomas argues, improperly substituted Officer Williams’s opinion on an ultimate issue for the judgment of the jury. We do not disturb a trial court’s decision to admit expert testimony “unless a manifest abuse of discretion is shown.” (People v. Kelly (1976) 17 Cal.3d 24, 39).
Officer Williams testified that in his expert opinion, Jordan held the rock cocaine in the bindle in her waistband for sale, because he watched Jordan supply Thomas with rocks for sale on two occasions and she held an amount that was “a lot of rock for one individual to be holding.” He also testified that sellers frequently kept their supply of narcotics in a bindle like Jordan’s, and that users typically smoked the rock they carried right away instead of, like Jordan, carrying a bag of rocks.
In cases involving possession for sale of a controlled substance, “experienced officers may give their opinion that the narcotics are held for purposes of sale based upon such matters as quantity, packaging and normal use of an individual; on the basis of such testimony convictions of possession for purpose of sale have been upheld.” (People v. Newman (1971) 5 Cal.3d 48, 53, overruled on other grounds in People v. Daniels (1975) 14 Cal.3d 857, 862.) Whether Jordan possessed rock cocaine for sale rather than for use is a question beyond the experience of the average juror, and therefore is a proper subject for expert testimony. (See People v. Doss (1992) 4 Cal.App.4th 1585, 1595–1596; Evid. Code, § 801, subd. (a) [expert testimony in the form of an opinion is limited to “a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact”].)
It was up to the jury to decide whether to accept or reject Officer Williams’s opinion. The trial court did not abuse its discretion in admitting the testimony over Thomas’s objection.
II. Substantial evidence supported the instruction on aiding and abetting possession of cocaine base for sale.
Thomas argues that the prosecution did not present sufficient evidence to justify instructing the jury on aiding and abetting on count 2, possession of cocaine base for sale in violation of section 11351.5. He claims there was insufficient evidence that Jordan had the specific intent to sell the cocaine in her bindle.
“The test for determining whether instructions on a particular theory of guilt are appropriate is whether there is substantial evidence which would support conviction on that theory. [Citation.]” (People v. Nguyen (1993) 21 Cal.App.4th 518, 528-529.) In reviewing Thomas’s challenge to the sufficiency of evidence on the element of intent, “‘the question we ask is “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found [the intent element] of the crime beyond a reasonable doubt.”’” (People v. Young (2005) 34 Cal.4th 1149, 1175.) We view the record in a light most favorable to conviction, resolving all conflicts in the evidence and drawing all reasonable inferences in support of conviction. (People v. Johnson (1980) 26 Cal.3d 557, 576.)
“[A]iding and abetting liability cannot attach unless the substantive elements of a predicate offense are met.” (People v. Perez (2005) 35 Cal.4th 1219, 1227.) “The actual perpetrator must have whatever mental state is required for each crime charged....” (People v. Mendoza (1998) 18 Cal.4th 1114, 1123.) In order for Thomas to be guilty of aiding and abetting a violation of section 11351.5, Jordan (the principal perpetrator) must have had the specific intent to sell the cocaine base. (People v. Parra (1999) 70 Cal.App.4th 222, 227.)
Officer Williams gave his expert opinion regarding “quantity, packaging and normal use of an individual.” (People v. Parra, supra, 70 Cal.App.4th at p. 227.) He testified that those factors convinced him that Jordan held the rock cocaine with the specific intent to sell it. We concluded above that the trial court did not abuse its discretion in admitting Officer Williams’s expert opinion. Further, Officer Williams testified that he saw Jordan sell twice, and the prerecorded $20 that Officer Williams gave Thomas for the cocaine base was found in Jordan’s fanny pack. The evidence was sufficient for a reasonable factfinder to conclude that Jordan had the specific intent to sell the rock cocaine. Substantial evidence supported the trial court’s giving of the aiding and abetting instruction.
When clarifying the instructions for the jury, the trial court stated: “So there’s two theories on count 2, two ways to look at it in terms of legal culpability. One, as a flat out aider and abettor not touching it. You don’t need to touch it. He was an aider and abettor as defined based on all of the evidence. Or, once again, not touching it, in that count but did he under the evidence have a right to control it either personally or through another person based on the totality of all of the evidence. [¶] I don’t know if that is more specifically an answer, but it’s a factual conclusion under those two theories, aider or abettor. Yes or no. Or under the facts did he have what we call constructive possession where you don’t actually hold it or touch it, but do you have the power to exercise control over it either personally or through another person.” (Emphasis added.)
III. The trial court properly instructed the jury.
Thomas argues that we should reverse his convictions on both counts because the trial court did not sua sponte instruct the jury on solicitation in violation of Penal Code section 653f, subdivision (d). Thomas did not request a solicitation instruction at trial, but he contends that an instruction was required because solicitation is a “lesser included offense” of sale of a controlled substance in violation of section 11352, subdivision (a) (count 1) and of aiding and abetting possession of a controlled substance for sale in violation of section 11351.5 (count 2). We disagree.
Trial courts on their own initiative must instruct juries on lesser included offenses, even in the absence of a request, when there is evidence that supports a finding that the defendant committed the lesser, but not the greater, offense. (People v. Hagen (1998) 19 Cal.4th 652, 672; see People v. Breverman (1998) 19 Cal.4th 142, 162.) There is no sua sponte duty to instruct if a crime is only a lesser related offense. (People v. Majors (1998) 18 Cal.4th 385, 408–449.)
Penal Code section 653f, subdivision (d) provides “every person who, with the intent that the crime be committed, solicits another to commit an offense specified in Section 11352... shall be punished by imprisonment in a county jail not exceeding one year.” Solicitation is an offer or an invitation to another to commit a crime. (People v. Sanchez (1998) 60 Cal.App.4th 1490, 1494.) “[T]he solicitation offense found in section 653f requires only an invitation to another to sell the contraband, without any further act towards the crime’s commission, and carries only a misdemeanor penalty.” (Ibid.)
Solicitation, however, is not a lesser included offense of the crime of selling a controlled substance in violation of section 11352 subdivision (a), as charged in count 1. Thomas could have sold the cocaine base to Officer Williams without soliciting anyone to sell a controlled substance. Solicitation is not an essential element of the sale offense, and therefore it is not a lesser included offense of count 1.
A crime is a lesser included offense of another crime if it satisfies one of two tests, the “elements” test and the “accusatory pleading” test. “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.) The information in this case charges both crimes using only the statutory language and includes no language describing the facts of the transactions, and therefore we apply the elements test.
For the same reason, solicitation is also not a lesser included offense of count 2, which charged Thomas with possession for sale and purchase for purposes of sale for cocaine base, in violation of section 11351.5. Thomas could have possessed cocaine base for sale, and could have aided and abetted the possession of cocaine base for sale (as the jury ultimately found he did), without soliciting anyone to sell the cocaine.
If Thomas had only invited Jordan to sell the cocaine, without any of his other overt acts toward the crimes of selling cocaine and aiding and abetting its possession with the intent to sale, under the Swann-Gilbert rule the sole charge he could have faced was misdemeanor solicitation. (People v. Sanchez, supra, 60 Cal.App.4th at p. 1495 [“Under the Swann-Gilbert rule, prosecution under the generalized statutes is barred when a specific law is intended by the Legislature for a given factual situation.”]; see People v. Gilbert (1969) 1 Cal.3d 475, 479; People v. Swann (1963) 213 Cal.App.2d 447, 449.) He made no motion to dismiss on the rule that a more specific statute preempted prosecution under the more general statutes with which he was charged. At any rate, because he did more than simply invite Jordan to sell, his behavior was not limited to the crime of solicitation.
As Thomas could have sold the cocaine base and could have possessed the cocaine base with the intent to sell it without soliciting anyone else to commit either crime, solicitation is not a lesser included offense of count 1 or count 2. The trial court did not have an obligation to sua sponte instruct the jury on solicitation in violation of Penal Code section 953f, subdivision (d).
DISPOSITION
The judgment is affirmed.
We concur: ROTHSCHILD, Acting P. J., CHANEY, J.
We asked the parties to submit letter briefs addressing whether the italicized language constituted a directed verdict. We conclude that, viewed in the context of the preceding discussion of constructive possession and aiding and abetting (the two prosecution theories on count 2), this did not constitute a directed verdict. Rather than expressing a conclusion about Thomas’s culpability and directing the jury to find him guilty, it is clear that the statement was part of an explanation of the prosecution’s theories and would have been understood by the jury as such. Further, the court instructed the jury that it must decide what the facts are and base its conclusion about what happened based only on the evidence presented at trial, and that the jury must not “assume just because I give a particular instruction that I am suggesting anything about the facts”.
“In finding that the trial court’s comment did not amount to a directed verdict we do not mean to suggest that the comment was proper. A judgment generally will not be reversed, however, where the defendant fails to object to the error at trial and an admonition could have cured the error. [Citations.] In the instant case, appellant does not contend that the comment was so serious as to render any attempt at cure futile, nor do we see any basis for so finding.” (People v. Richie (1994) 28 Cal.App.4th 1347, 1364.)