Opinion
NOT TO BE PUBLISHED
Humboldt County Super. Ct. No. CR071062
Sepulveda, J.
Defendant was found guilty by jury trial of the following charges: felony possession of heroin for purpose of sale (Health & Saf. Code, § 11351—count one); felony transportation of a controlled substance (§ 11352, subd. (a)—count two); felony possession of heroin (§ 11350, subd. (a)—count three); felony possession of methamphetamine (§ 11377, subd. (a)—count four); felony management of a location for unlawful manufacture, storage, or distribution of a controlled substance (§ 11366.5, subd. (a)—count seven); and misdemeanor possession of marijuana (§ 11357, subd. (c)—count nine). Defendant was sentenced to a total of nine years and eight months in prison. We reject defendant’s argument that there was insufficient evidence to support two of the convictions (for possession for sale and transportation, counts one and two). However, we agree with defendant that he was improperly convicted of possession of heroin (count three), and that the trial court should have stayed his sentence for his conviction of possession of heroin for purpose of sale (count one) pursuant to Penal Code section 654. We also agree with defendant that there was insufficient evidence to support his conviction of management of a location for unlawful purposes (count seven), and that we may not amend the judgment to reflect a conviction for a separate crime as respondent urges. We otherwise affirm the judgment.
All statutory references are to the Health and Safety Code unless otherwise specified.
I.
Factual and Procedural
Background
About 7:30 a.m. on February 1, 2007, law enforcement from several agencies set up surveillance of a residence on Pine Street in Eureka. They had a warrant to search the residence, defendant, and a blue Toyota coupe registered to him. Law enforcement observed the house and blue Toyota coupe described in the search warrant for about three-and-a-half hours from various positions to the north and south of the house.
Shortly after law enforcement set up surveillance, agents observed a woman (later identified as Yvonne Lynn Ross, who lived with defendant) drive away from the house in the blue Toyota with a young child inside the car; she returned later without the child. At some point the Toyota returned to the house with two women inside, apparently after a second trip away from the house. California Department of Justice Agent Jack Nelson later saw a man (who was never identified) place “like a hamper basket” into the trunk of the blue Toyota and then return to the house. California Highway Patrol Officer Douglas John Mertz observed various people coming and going from the residence during the surveillance.
About 11 a.m., Dan Fagetan, a special agent with the FBI, saw a woman and two men leave the house and get into the blue Toyota. The woman got into the driver’s seat, and one of the men got into the rear passenger seat. The second man was observed with items in his hand and a dark-colored bag over his shoulder. He walked behind the car to where the trunk was open, closed the trunk, then got in the front passenger seat without items in his hands. Fagetan observed the man from about two blocks away and could not see what the man was doing in the trunk area of the car; however, the man was the only person near the rear of the Toyota at the time, and there were no items on the ground when the car drove away.
After the vehicle drove away from the residence, it drove past Officer Mertz, who identified defendant sitting in the front passenger seat. The driver was later identified as Ross, and the man in a back seat was identified as Bartholomew Starritt. A marked car stopped the blue Toyota after it left the residence. Various agents kept the car in their view the entire time between when it left the residence and when it was stopped, apparently a few blocks away. Defendant was arrested and searched. Four hundred twenty-five dollars were found in his right front pants pocket.
Officers later searched the trunk of the blue Toyota and found the following items: a green backpack containing 23.19 grams of heroin, several pills, and cash (a total of $3,778 was found in the trunk); a soft-sided red fabric lunchbox containing 25.25 grams of heroin, cash, an electronic digital scale with heroin residue, a metal spoon with suspected heroin residue, and a glass methamphetamine smoking pipe; a yellow metal lunch box containing 6.72 grams of heroin wrapped in three individual packages; a plastic bag containing 121.73 grams of marijuana; a metal canister with used and unused syringes; and two laundry baskets filled with clothes. Only one backpack was found in the trunk. Agent Nelson, a task force commander for the Humboldt County Drug Task Force, testified that based on the amount of heroin seized and the fact that it was seized along with a scale and a large amount of cash, the heroin was possessed for sale.
Law enforcement searched the house on Pine Street and found the following items: a small amount of methamphetamine, a black vinyl “hype kit” for using methamphetamine, 10.5 ounces of marijuana, “several smoking like bong pipes,” prescription pills, syringes, and a scale. One room of the house appeared to have been converted into a room to grow marijuana. Law enforcement concluded that defendant and Ross lived in a downstairs bedroom, based on personal items found in the room. Methamphetamine and marijuana also were found in their bedroom.
Defendant was charged by information with several felony counts: possession of a controlled substance for purpose of sale; sale or transportation of a controlled substance; possession of heroin; possession of methamphetamine; management of a place for manufacturing, storing, or distributing a controlled substance; and possession of marijuana for sale. He was convicted by jury trial of all those charges except for count nine. On that charge, he was convicted not of the charged offense (possession of marijuana for sale), but of the lesser included offense of misdemeanor possession of marijuana. The information also alleged a prior prison conviction, pursuant to Penal Code section 667.5, subd. (b), which was found true following a court trial. The court also found true a special allegation pursuant to section 11370.2, subdivision (a).
Three of the original charges in the information were dismissed by the prosecution after the jury deadlocked and the trial court declared a mistrial as to those counts.
Defendant was sentenced to a total of nine years and eight months in prison. The sentence was composed of the upper term of five years on count two; the upper term of four years on count one, which was ordered to run concurrently; the upper term of three years on count three, which was stayed pursuant to Penal Code section 654; eight months on count four, which was ordered to run consecutively; and the upper term of three years on count seven, which was ordered to run concurrently. The court imposed one year for the prison prior and three years for the special allegation pursuant to section 11370.2. The court also sentenced defendant to 174 days in county jail on count nine, which was ordered to be served consecutively, with credit for time served. This timely appeal followed.
II.
Discussion
A. Conviction on Possession of Heroin Count Should Be Reversed.
Defendant argues, and respondent concedes, that he was improperly convicted of possession of heroin (§ 11350, subd. (a)—count three) because the crime was necessarily a lesser included offense of possession of heroin for sale (§ 11351—count one), a fact acknowledged by the trial court during a discussion about jury instructions. Defendant’s possession of heroin was incidental to the offense of possession for sale, because both offenses were based on his possession of heroin found in the trunk of the blue Toyota. “ ‘[I]f a crime cannot be committed without also necessarily committing a lesser offense, the latter is a lesser included offense within the former.’ ” (People v. Reed (2006) 38 Cal.4th 1224, 1227 [multiple convictions based on necessarily included offense prohibited]; see also People v. Kilborn (1970) 7 Cal.App.3d 998, 1003 [defendant cannot be convicted of both possession for sale and simple possession where latter is necessarily lesser included offense].) “The proper appellate procedure, under the circumstances, is to reverse the conviction of the lesser offense (possession) and to permit the conviction of the greater offense (possession for sale) to stand.” (People v. Kilborn, supra, at p. 1003.) The judgment is reversed as to count three.
B. Substantial Evidence Supports Possession for Sale and Transportation Convictions.
Defendant argues that there was insufficient evidence to support his conviction of possession of heroin for purpose of sale (§ 11351—count one) and transportation of heroin (§ 11352, subd. (a)—count two). When reviewing a claim of insufficiency of the evidence, “we review the entire record in the light most favorable to the prosecution to determine whether it contains evidence that is reasonable, credible and of solid value, from which a rational trier of fact could find that the elements of the crime were established beyond a reasonable doubt. [Citations.] We need not be convinced of the defendant’s guilt beyond a reasonable doubt; we merely ask whether ‘ “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” [Citation.]’ [Citation.] We must draw all reasonable inferences in support of the judgment. [Citation.] It is not our function to reweigh the evidence, reappraise the credibility of witnesses, or resolve factual conflicts, as these are functions reserved for the trier of fact. We may not reverse a conviction for insufficiency of the evidence unless it appears that upon no hypothesis whatever is there sufficient substantial evidence to support the conviction. [Citation.]” (People v. Tripp (2007) 151 Cal.App.4th 951, 955, original italics.) “This standard of review also applies to circumstantial evidence. [Citation.] If the circumstances, plus all the logical inferences the jury might have drawn from them, reasonably justify the jury’s findings, our opinion that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment. [Citations.]” (Ibid.)
Defendant also argues that there is insufficient evidence to support his conviction of possession of heroin (§ 11350, subd. (a)—count three); however, this argument is moot in light of our reversal as to that count. (Ante, § II.A.)
1. Sufficient evidence that defendant possessed heroin.
As the trial court instructed the jury in the present case, possession of heroin for sale consists of the following elements: “(1) actual or constructive possession of the narcotic, (2) for the purpose or intent of selling it, with (3) knowledge of its presence and (4) knowledge of its narcotic character.” (Williams v. Superior Court (1974) 38 Cal.App.3d 412, 421.) It is well settled that each of these elements may be proved by circumstantial evidence and any reasonable inferences drawn from such evidence. (People v. Newman (1971) 5 Cal.3d 48, 52-53, disapproved on another ground in People v. Daniels (1975) 14 Cal.3d 857, 862.) Defendant argues there was insufficient evidence that he possessed the heroin found in the trunk of the blue Toyota. “Constructive possession occurs when the accused maintains control or a right to control the contraband; possession may be imputed when the contraband is found in a place which is immediately and exclusively accessible to the accused and subject to his dominion and control, or to the joint dominion and control of the accused and another.” (Id. at p. 52, citing People v. Francis (1969) 71 Cal.2d 66, 71.)
We conclude that there was sufficient evidence that defendant controlled the backpack containing heroin that was found in the trunk of the blue Toyota. Defendant argues in his opening brief that he was never identified as being a person who placed any bag in the trunk. In fact, he was identified sitting in the front passenger seat of the car shortly after a man placed a “dark-colored bag” that had been over his shoulder into the trunk and got into the front passenger seat. When the trunk of the car was searched, agents found a single backpack containing 23.19 grams of heroin and cash. This is not a case where the prosecution showed only defendant’s “mere presence at the scene” (People v. Boddie (1969) 274 Cal.App.2d 408, 411) or that defendant had merely an “opportunity of access to a place where narcotics are found” (People v. Kortopates (1968) 264 Cal.App.2d 176, 179). Instead, the prosecution showed that defendant actually accessed the trunk of the Toyota, and that he placed a backpack inside later found to contain heroin.
Defendant concedes in his reply brief that “[t]here is sufficient evidence that [he] put a dark colored bag into the trunk,” and that “if [he] put the green backpack in the trunk, then the convictions are supported by the evidence.” (Original italics.) He argues, however, that there were two dark-colored bags in the trunk (one of which was black and blue and contained only cash), and that the jury could therefore only “guess” which bag defendant placed in the trunk. A review of the record does not support this argument. Agent Nelson testified that “a small blue bag, blue and black bag with U.S. currency” was found in the trunk. A picture of the bag to which Nelson referred reveals that the bag was a small pouch with no handles or straps. In other words, it could not have been the bag that defendant was seen carrying over his shoulder before placing it in the trunk. Far from resembling a duffle bag, as defendant’s counsel suggested at oral argument, the pouch was hardly larger than a wallet. As respondent stated at oral argument, the green backpack found in the trunk was the only bag that could have been carried over one’s shoulder, as a man later identified as defendant was seen doing. The jury easily could have concluded that defendant possessed the backpack containing heroin. (People v. Tripp, supra, 151 Cal.App.4th at p. 955.)
Twenty-one pictures of items found in the trunk were admitted into evidence, and Nelson described them to the jury. The exhibits were not included in the record on appeal but were subsequently transferred to this court for review. (Cal. Rules of Court, rule 8.224(d).)
2. Sufficient evidence that defendant was aware of presence of heroin.
Defendant challenges his conviction of possession for sale on the additional basis that there was insufficient evidence of his knowledge of the presence of heroin and its narcotic character. (Williams v. Superior Court, supra, 38 Cal.App.3d at p. 421.) He also challenges his conviction of transportation of heroin on this basis. (People v. Rogers (1971) 5 Cal.3d 129, 133-134 [essential element of transportation is knowledge by defendant of presence of drug and its narcotic character; possession not a necessary element of offense]; People v. Meza (1995) 38 Cal.App.4th 1741, 1746 [transportation of controlled substance established by carrying usable quantity of controlled substance with knowledge of its presence and illegal character].) Defendant again claims that “[t]here was no evidence as to when the drugs were placed in the trunk, or who placed them there.” Again, however, there was substantial evidence that defendant placed a backpack containing heroin and cash in the trunk of the blue Toyota. A rational trier of fact could find that defendant was aware of the presence of the heroin and its narcotic character. (People v. Tripp, supra, 151 Cal.App.4th at p. 955.) We conclude that the evidence supports defendant’s conviction on both counts.
C. Trial Court Should Have Stayed Sentence Imposed on Count One.
The trial court sentenced defendant to the upper term of five years for the transportation count (count two), with a concurrent four-year sentence on the possession for sale count (count one). Defendant argues, and respondent agrees, that the trial court erred in imposing punishment for two offenses arising from the same act. (Pen. Code, § 654; People v. Latimer (1993) 5 Cal.4th 1203, 1208 [where single act is charged as basis for conviction, defendant can be punished only once].) The trial court stated during sentencing, “I treat the transportation of heroin and the possession of heroin for sale as having a single purpose, a single criminal intent,” but nonetheless concluded (contrary to the probation department’s recommendation) that the sentence should not be stayed pursuant to Penal Code section 654. We agree with the parties that the trial court erred, and that the abstract of judgment should be modified accordingly.
D. Conviction of Count Seven Should Be Reversed.
Defendant was charged in count seven with management of a location for unlawful manufacturing, storing, or distributing a controlled substance, a violation of section 11366.5, subdivision (a). The statute provides, in relevant, part: “Any person who has under his or her management or control any building . . ., either as an owner, lessee, agent, employee, or mortgagee, who knowingly rents, leases, or makes available for use, with or without compensation, the building . . . for the purpose of unlawfully manufacturing, storing, or distributing any controlled substance for sale or distribution shall be punished . . . .” “To convict under section 11366.5 the prosecution must prove: (1) the accused knowingly permitted a controlled substance to be manufactured or stored; (2) for the purpose of sale or distribution to others; (3) in a building under his or her management or control.” (People v. Sanchez (1994) 27 Cal.App.4th 918, 923.)
With respect to count seven, the jury was instructed on the elements of a different crime (with which defendant was not charged), maintaining a location for unlawful activities, a violation of section 11366. As the jury was instructed, the elements of that offense are that defendant “(a) opened or maintained a place (b) with a purpose of continuously or repeatedly using it for selling, giving away, or using a controlled substance.” (People v. Hawkins (2004) 124 Cal.App.4th 675, 680; see also CALCRIM 2440.) The prosecutor emphasized these elements in her closing argument to the jury. There is nothing in the record to indicate that the information was ever amended to formally charge defendant with a violation of section 11366, although it almost certainly could have been. (Pen. Code, § 1009 [trial court may permit amendment of information at any stage of proceedings to conform to proof].) Both the jury’s verdict form and the abstract of judgment reflect a conviction of section 11366.5, as opposed to section 11366.
That statute provides, in relevant part: “Every person who opens or maintains any place for the purpose of unlawfully selling, giving away, or using any [specified] controlled substance . . . shall be punished . . . .”
Indeed, defendant does not argue in his appellate briefs that there was insufficient evidence to convict him of a violation of section 11366. We agree with respondent that there was overwhelming evidence that defendant was guilty of this crime, because of the evidence seized from defendant’s home and the observations law enforcement made during surveillance. The fact remains, however, that defendant was never formally charged with a violation of section 11366.
Defendant argues, and respondent concedes, that there is insufficient evidence to support a conviction of the charged crime. Indeed, there was no evidence that defendant was a property owner, lessee, agent, employee, or mortgagee of the home where he lived, or that he allowed a third party to use the property for manufacturing, storing, or distributing a controlled substance, which are necessary elements for a conviction under section 11366.5, subdivision (a). (People v. Dillon (2007) 156 Cal.App.4th 1037, 1045.) Moreover, as defendant argues, the jury was not actually instructed with the elements of that crime, which deprived him of his right to have jurors determine each element of the crime beyond a reasonable doubt. (Apprendi v. New Jersey (2000) 530 U.S. 466, 490.)
Trial counsel discussed jury instructions with the trial court off the record. Defendant did not object to the jury being instructed with CALCRIM 2440, the standard jury instruction for section 11366. This court may review a claim of instructional error absent objection where defendant’s substantial rights are affected. (Pen. Code, § 1259; People v. Graham (1969) 71 Cal.2d 303, 319-320.) Even assuming that this issue was somehow waived, we nonetheless address the merits to forestall what would otherwise be a likely meritorious ineffective assistance of counsel claim.
Respondent argues, however, that this court should “modify the judgment to the lesser included offense of” section 11366. We agree with defendant that this argument fails because section 11366 is not a lesser included offense of the charged offense, section 11366.5. “A defendant may be convicted of an uncharged crime if, but only if, the uncharged crime is necessarily included in the charged crime. [Citations.] The reason for this rule is settled. ‘ “This reasoning rests upon a constitutional basis: ‘Due process of law requires that an accused be advised of the charges against him in order that he may have a reasonable opportunity to prepare and present his defense and not be taken by surprise by evidence offered at his trial.’ [Citation.]” ’ [Citation.]” (People v. Reed, supra, 38 Cal.4th at p. 1227.) “To qualify as a lesser offense that is necessarily included in another offense, ‘ “all the legal ingredients of the corpus delicti of the lesser offense must be included in the elements of the greater offense.” ’ [Citations.] Stated another way, when a crime cannot be committed without also committing another offense, the latter is necessarily included within the former. [Citations.] An offense is also included within a charged offense ‘ “if the charging allegations of the accusatory pleading include language describing the offense in such a way that if committed as specified the lesser offense is necessarily committed.” ’ [Citations.]” (People v. Lagunas (1994) 8 Cal.4th 1030, 1034.)
A comparison of the statutes reveals that a defendant who commits a violation of section 11366.5 does not necessarily commit a violation of section 11366 under the “ ‘ “elements” ’ ” test. (Cf. People v. Lagunas, supra, 8 Cal.4th at p. 1034.) For example, a defendant could knowingly permit the manufacture or storage of a controlled substance for the purpose of sale or distribution to others in a building under his management or control (§ 11366.5, subd. (a)) without necessarily opening or maintaining the place for the purpose of unlawfully selling, giving away, or using a controlled substance (§ 11366). For the same reason, section 11366 is not a lesser included offense under the “accusatory pleading” test. The information tracked the language of section 11366.5, subdivision (a), alleging that defendant “did willfully, unlawfully and feloniously rent, lease or make available for use a building, room, space or enclosure for the purpose of unlawfully manufacturing, storing, or distributing a controlled substance.” As charged, defendant could be found guilty of making available a place for the “manufacturing” or “storing” of a controlled substance without necessarily violating section 11366’s prohibition against opening or maintaining a place for “selling, giving away, or using” controlled substances. (Cf. People v. Lagunas, supra, 8 Cal.4th at p. 1034.)
Because there is insufficient evidence to sustain defendant’s conviction under section 11366.5, and because a conviction under section 11366 cannot be sustained on the basis of any notice of the charge contained in the accusatory pleading, we reverse defendant’s judgment of conviction on count seven.
III. Disposition
The judgment is reversed as to counts three (possession of heroin) and seven (management of a location for unlawful manufacture, storage, or distribution of a controlled substance). The judgment on count one (possession of heroin for purpose of sale) is modified to reflect that defendant’s sentence on this count is stayed pursuant to Penal Code section 654. The trial court is directed to prepare an amended abstract of judgment and to forward a certified copy to the Department of Corrections. In all other respects, the judgment is affirmed.
We concur:Ruvolo, P.J., Rivera, J.