Opinion
G057005
05-28-2020
THE PEOPLE, Plaintiff and Respondent, v. SANY AU, Defendant and Appellant.
John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pitney, Acting Assistant Attorney General, Scott A. Taryle and Daniel C. Chang, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 15CF0960) OPINION Appeal from a judgment of the Superior Court of Orange County, Julian W. Bailey, Judge. Affirmed. John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pitney, Acting Assistant Attorney General, Scott A. Taryle and Daniel C. Chang, Deputy Attorneys General, for Plaintiff and Respondent.
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I. Introduction
A jury convicted Sany Au, as charged, of one count of transportation of methamphetamine for sale (Health & Saf. Code, § 11379, subd. (a) [count 1]) and one count of possession of methamphetamine for sale (id., § 11378 [count 2]). The methamphetamine that was the subject of count 1 was the same methamphetamine that was the subject of count 2. For that reason, Au argues the prohibition on double jeopardy, due process, and the rule against convictions for both the greater offense and a lesser included offense require the conviction under count 2 to be vacated.
Double jeopardy principles are not implicated by the convictions because Au has been tried only once and does not face retrial. None of Au's arguments has merit because possession of methamphetamine for sale is not a lesser included offense of transportation of methamphetamine for sale. We therefore affirm.
II. Facts
On November 11, 2014, Orange County Sheriff's Department Sergeant Ryan Dierckman conducted a surveillance from outside of Au's apartment. Five days earlier, Dierckman had obtained a warrant to search Au's apartment, car, and person. At about 2:00 p.m., Dierckman saw Au and a man, later identified as Raul Mejia, leave the apartment, get into a Lexus automobile, and drive away. Au was driving and Mejia sat in the front passenger seat.
Dierckman directed Orange County Sheriff's Deputy Richard Franco, who was in a marked patrol car, to follow the Lexus and conduct a vehicle stop. Franco pulled in behind the Lexus to stop it. As the Lexus entered a commercial parking lot, Franco saw a small object tossed out of the front passenger's side window. The object tossed from the Lexus was later identified as a small plastic Ziploc-type baggie containing about 6.8 grams of methamphetamine.
The Lexus came to a stop in the parking lot. Backup vehicles arrived and Au and Mejia were instructed to get out of the car and sit on a nearby curb. Au told Dierckman she became scared when Franco pulled in behind her and threw the baggie containing the methamphetamine out the car window. Au said the methamphetamine belonged to her, not Mejia. Au said her bedroom was in the back of the apartment near the patio and her "stuff" was on a computer desk.
Dierckman and sheriff's deputies executed the search warrant on the apartment. On a computer desk in Au's bedroom they found three small baggies containing a total of eight grams of methamphetamine, a digital scale, and 13 unused baggies similar to the baggie that had been tossed from the Lexus. Dierckman, testifying as the prosecution expert on drug use and trafficking, concluded Au was in possession of the methamphetamine in order to sell it.
III. Discussion
Au argues the conviction under count 2 (possession of methamphetamine for sale) must be vacated for two reasons, both premised on the notion that count 2 was a lesser included offense of count 1. First, she contends a conviction for a greater offense and a lesser included offense in the same proceeding violates the double jeopardy provisions of the federal constitution (U.S. Const., 5th Amend.) and the state constitution (Cal. Const., art. I, § 15). Second, she argues due process and case law bar convictions for both a greater offense and a lesser included offense. (See, e.g., People v. Ramirez (2009) 45 Cal.4th 980, 984.)
The double jeopardy clause does not apply to this case for the fundamental reason that Au has been tried only once. The double jeopardy clause protects against (1) a second prosecution for the same offense following an acquittal, (2) a second prosecution for the same offense following a conviction, and (3) multiple punishments for the same offense. (Brown v. Ohio (1977) 432 U.S. 161, 165.) None of those protections is implicated in this case because Au was tried only once: The double jeopardy clause applies only in successive, multiple criminal proceedings. (Hudson v. United States (1997) 522 U.S. 93, 99; People v. Sloan (2007) 42 Cal.4th 110, 121.) Penal Code section 1023, the codification of the double jeopardy clause, is not implicated when, as here, the defendant is subjected only to a single prosecution. (People v. Polowicz (1992) 5 Cal.App.4th 1082, 1088.)
In reliance on People v. Scott (2000) 83 Cal.App.4th 784, 796, Au argues double jeopardy "forbids conviction for a greater and lesser included offense in the same proceedings." That case does not help her. The issue in People v. Scott was whether the double jeopardy clause prohibited retrial of forcible sex offenses because in the first trial the defendant had been convicted of nonforcible sex offenses that were lesser included offenses under an accusatory pleading test. (Id. at p. 789.) The Court of Appeal concluded retrial was not prohibited because the nonforcible sex offenses "were not necessarily included in [the] forcible sex offenses." (Id. at pp. 796-797.) Au has been tried only once and is not facing retrial.
Even if Au were correct that the double jeopardy clause prohibits convictions for a greater and lesser include offenses in the same proceeding, we would affirm the conviction on count 2 because possession of a controlled substance for sale is not a lesser included offense of transportation of a controlled substance for sale. Her arguments based on due process and the prohibition against multiple convictions for necessarily included offenses fail for the same reason.
Au argues due process prohibits conviction of a greater and a lesser included offense. Due process requires that the accused be advised of the charges in order to have a reasonable opportunity to prepare and present a defense (People v. Lohbauer (1981) 29 Cal.3d 364, 368) and prohibits a conviction for an uncharged crime unless the uncharged crime is necessarily included in the charged crime (People v. Reed (2006) 38 Cal.4th 1224, 1227). Due process is not implicated here because Au was charged with both transportation of methamphetamine for sale and possession of methamphetamine for sale.
For purposes of double jeopardy analysis, the elements test, rather than the accusatory pleading test, is the "appropriate yardstick" for determining whether an offense is included within another. (People v. Scott, supra, 83 Cal.App.4th at pp. 796-797; see Aslam v. Superior Court (2019) 41 Cal.App.5th 1029, 1034 [elements test, not accusatory pleading test, applies to double jeopardy analysis]; People v Spicer (2015) 235 Cal.App.4th 1359, 1371 [same]; accord, United States v. Dixon (1993) 509 U.S. 688, 696 [elements test is used for double jeopardy analysis].) For purposes of the rule against convictions for both greater and lesser included offenses, only the elements test may be used to determine whether a charged offense is necessarily included within another charged offense. (People v. Reed, supra, 38 Cal.4th at pp. 1227, 1231.) Au was charged by information with both transportation of methamphetamine for sale (count 1) and possession of methamphetamine for sale (count 2); therefore, the elements test must be used to determine whether count 2 is a lesser included offense of count 1.
Either the elements test or the accusatory pleading test may be used in deciding whether a defendant may be convicted of an uncharged lesser included offense. (People v. Reed, supra, 38 Cal.4th at p. 1231.) --------
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." (People v. Reed, supra, 38 Cal.4th at p. 1227.) Possession of a controlled substance is not a lesser included offense of transportation of a controlled substance under the elements test. (People v. Rogers (1971) 5 Cal.3d 129, 134.) "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." (Ibid.; see People v. Eagle (2016) 246 Cal.App.4th 275, 279 ["possession of methamphetamine is not a lesser included offense of transporting methamphetamine"]; People v. Watterson (1991) 234 Cal.App.3d 942, 947 ["possession of narcotics for sale is not necessarily included in the offense of transportation of narcotics"].)
Count 2 was not a lesser included offense of count 1. Thus, Au's double jeopardy and due process arguments fail, and her conviction under count 2 does not violate the rule against convictions for both a greater offense and a lesser included offense in a single proceeding.
IV. Disposition
The judgment is affirmed.
FYBEL, J. WE CONCUR: O'LEARY, P. J. THOMPSON, J.