Opinion
F041529.
7-11-2003
THE PEOPLE, Plaintiff and Respondent, v. LEOBARDO FRAIRE AMADOR, Defendant and Appellant.
Andrew Cappelli, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Jo Graves, Assistant Attorney General, Janis Shank McLean and Clayton S. Tanaka, Deputy Attorneys General, for Plaintiff and Respondent.
Before Vartabedian, Acting P.J., Buckley, J., and Levy, J.
FACTS AND PROCEEDINGS
On October 22, 2001, the defendant, Leobardo Fraire Amador, and Javier Nunez smoked methamphetamine and then decided to go for a ride in Nunezs car. Nunez drove and Amador sat in the backseat. Sergeant Chris Jennings of the Tulare County Sheriffs Department noticed Nunez driving and pulled him over because he recognized Nunez as someone who he had previously stopped for driving without a license. During the stop, Sergeant Jennings opened the rear door and defendant stepped out of the car with his right front pants pocket turned inside out. The sergeant observed the physical characteristics and behavior of Amador and determined that he was under the influence of methamphetamine. Upon searching the car, Sergeant Jennings discovered 22.05 grams of methamphetamine under Nunezs seat and 79.95 grams and a methamphetamine smoking pipe in the back with Amador.
Defendant was charged with transportation of a controlled substance in violation of Health and Safety Code section 11379, subdivision (a), possession of a controlled substance in violation of Health and Safety Code section 11377, subdivision (a) and a misdemeanor offense of being under the influence of a controlled substance. Defendant pled no contest to count three (under the influence) and was tried and convicted of count one (transportation of a controlled substance), and count two (possession of a controlled substance). He was sentenced to a total term of eight years in state prison. The sole issue on appeal is whether defendant can be convicted and punished for both transportation and possession of a controlled substance. We conclude that, under the circumstances presented here, it was legally permissible.
DISCUSSION
Conviction of Both Transportation and Possession
In People v. Pearson (1986) 42 Cal.3d 351, 228 Cal. Rptr. 509, 721 P.2d 595, the Supreme Court explained that multiple convictions are improper when one offense is necessarily included in another offense. A "necessarily included offense" is an offense that is necessarily committed when another offense is committed. (Id. at p. 355.) Defendant argues that possession is necessarily included in the transportation count and that, as a result, the judgment on the possession count must be reversed. He cites People v. Cuevas (1971) 16 Cal. App. 3d 245, 93 Cal. Rptr. 916 and People v. Johnson (1970) 5 Cal. App. 3d 844, 85 Cal. Rptr. 238 as support for his contention.
In People v. Cuevas, supra, 16 Cal. App. 3d at page 250, this court determined that a count of possession was necessarily included in the other counts of possession for sale and transportation. As it is axiomatic that possession is a lesser included offense of possession for sale and the court did not decide separately whether simple possession is a lesser included offense of transportation, People v. Cuevas is inapposite.
In People v. Johnson, supra, 5 Cal. App. 3d at page 847, the Fourth District held that possession is a necessarily included offense of transportation when "the possession proved ... [is] incidental to, and a necessary part of, the transportation charged," and "no prior, different or subsequent possession of the [drugs]" is shown. In that case, both convictions were based on possession and transportation of a single pill. However, the evidence in this case differs from that in Johnson, for there was a showing of a prior possession when defendant testified that he had a "little bit" of methamphetamine in his pocket earlier that day, before the defendant left for his car ride with Nunez, and that defendant was under the influence of methamphetamine.
Furthermore, the Fourth District clarified any remaining ambiguities present in its ruling in Johnson with People v. Watterson (1991) 234 Cal. App. 3d 942, 286 Cal. Rptr. 13. In Watterson, the defendant was convicted of both possession of cocaine for sale and transportation of cocaine. (Id. at p. 944.) The court simply looked at the statutory definition of the offenses to determine whether possession for sale was a necessarily included offense. (Id . at pp. 946-947.) The court cited People v. Rogers (1971) 5 Cal.3d 129, 95 Cal. Rptr. 601, 486 P.2d 129, which noted that while possession is often a circumstance that tends to prove transportation, one could transport drugs without being in possession of the drugs; thus, committing the offense of transportation does not necessarily entail committing the offense of possession. (Id. at p. 947.)
People v. Rogers, supra, 5 Cal.3d at page 134, footnote 3, noted that: "In cases where defendants possession is incidental to, and a necessary part of, the transportation charged, and no prior, different or subsequent possession is shown, the offense of possession is deemed to be necessarily included in the offense of transportation, and defendant may not be convicted of both charges."
As the facts herein support discrete offenses (viz., transportation of large packaged quantities and possession of a smaller separate amount for use), we affirm the conviction.
The defendant notes that the court instructed the jury that they could not convict him of both transportation and possession, apparently urging some form of waiver and estoppel theory. However, he presents no authority for the implied premise that reversal must necessarily follow.
DISPOSITION
The judgment is affirmed.