Opinion
NOT TO BE PUBLISHED
Mendocino County Super. Ct. No. SCUKCRCR0778017
Siggins, J.
Jesus Barragan was convicted by a jury of transportation of methamphetamine and possession of methamphetamine for sale, each while armed with a firearm; being under the influence of methamphetamine while in possession of a firearm; and two drug-related misdemeanors. On appeal, he contends (1) the trial court erred by failing to instruct the jury on simple possession because it is a lesser included offense of both transportation of methamphetamine, and possession for sale of methamphetamine; and (2) there was insufficient evidence to convict him of being under the influence of methamphetamine while in possession of a firearm.
We conclude that possession, while not a lesser included offense of transportation of methamphetamine, is a lesser included offense of possession of methamphetamine for sale. Because there was evidence from which the jury could have concluded that Barragan was guilty of possession, but not possession for sale, Barragan was entitled to a jury instruction on possession as a lesser included offense to the possession for sale charge. There was a reasonable probability the jury could have returned a verdict on the lesser included offense had it been so instructed. Therefore, we reverse the conviction for possession for sale. We also conclude that the determination Barragan was under the influence of methamphetamine when he possessed a firearm is supported by substantial evidence. Except for the reversal of the conviction for possession of methamphetamine for sale, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Barragan was in the front passenger seat of a Chevy Tahoe when it was stopped by a Mendocino sheriff’s deputy for a traffic violation. Deputy Sheriff Jesse Van Wormer observed Barragan during the stop and noticed that he was nervous and sweating, his pupils were enlarged, and “his carotid artery [was] pulsating.” Sergeant Joseph Comer, who was Deputy Van Wormer’s field training officer, had similar observations and believed Barragan and the other two occupants of the Tahoe were under the influence of a central nervous system stimulant. All three were arrested, and the deputy’s pat-down search of Barragan uncovered a glass pipe of the type used to smoke methamphetamine that contained a white powdery residue. He also had a single live.45 caliber round, more than $900 in cash, and a wallet that contained no identification. A blue bag on the Tahoe’s center console contained a small digital scale and a camera. Deputy Van Wormer testified that Barragan reached for the bag when he was asked to identify himself, but took nothing out of it. A loaded.45 caliber handgun was found in a paper bag on the rear floor of the passenger compartment within reach of any of the car’s three occupants.
The driver and another passenger were also in the Tahoe when it was stopped.
Some of the bullets in the handgun’s magazine were similar to the bullet in Barragan’s pocket.
Barragan was handcuffed and transported to the sheriff’s substation in the back seat of cover officer Deputy Sheriff Dustin Lorenzo’s patrol car. It is unclear whether Barragan’s seat belt was engaged. When Barragan got out at the station, his right shoe was coming off. As a result, Deputy Lorenzo decided to search the passenger compartment of his patrol car to determine whether Barragan had removed something from his shoe or sock. Deputy Lorenzo found “some small crystalline-looking rocks” on the rear seat where Barragan had been sitting. In a small compartment behind the seat, Deputy Lorenzo found a.45 caliber round and a small plastic bag later determined to contain 21.5 grams (somewhat less than an ounce) of methamphetamine. The bag was not there when Deputy Lorenzo inspected the compartment before he transported Barragan. Sergeant Comer testified that even if a person was handcuffed, it would be possible for them to reach into the compartment behind the seat through an opening near the seat belt receptacle. White crystalline powder was also found in Barragan’s shoe, and a urine sample taken from Barragan tested positive for the presence of amphetamine and methamphetamine, but the report did not specify its concentration.
Deputy Lorenzo also transported another occupant of the Tahoe. When they arrived at the substation, Barragan remained alone in the back seat of the patrol car while Deputy Lorenzo escorted the other arrestee into the facility.
Barragan was charged with transportation of methamphetamine and possession for sale of methamphetamine, both while armed with a firearm; being under the influence of methamphetamine while armed with a firearm; using or being under the influence of methamphetamine; and possession of drug paraphernalia. Deputy Sheriff Robert Moore testified at trial as an expert in the sale of narcotics. In his opinion, the bag of methamphetamine recovered from the patrol car was possessed for sale based upon its weight and presence of the firearm, the scale, and the cash found on Barragan’s person. Deputy Moore testified that his opinion was not affected by evidence that Barragan smoked methamphetamine because most narcotics users buy in bulk and sell the remainder to support their habits. Although the methamphetamine was not individually packaged for sale, that may have been due to the possibility that “it hadn’t been divvied up yet or they were taking this large quantity to go sell it and make a delivery. Maybe they were delivering their product to somebody.”
The jury convicted Barragan as charged. Barragan was sentenced to the low term of two years for transportation of methamphetamine, with a consecutive three-year term due to his use of a firearm. Two-year concurrent terms were imposed for possession for sale of methamphetamine, and being under the influence of methamphetamine while in possession of a firearm. The court also imposed a $1,000 restitution fine, suspended a parole-revocation restitution fine in the same amount, and awarded nine days of custody credits. Barragan timely appealed.
The deputy district attorney reminded the court during sentencing that Barragan was also found guilty of misdemeanor possession of drug paraphernalia, and the court stated it would sentence him to 60 days to be served concurrent to the main term. The record does not indicate any sentence was imposed for Barragan’s additional misdemeanor conviction for being under the influence of methamphetamine.
DISCUSSION
A. Jury Instructions
Barragan contends his convictions for transportation of methamphetamine and possession of methamphetamine for sale must be reversed because the trial court failed to instruct the jury sua sponte on his possible possession of methamphetamine in violation of Health and Safety Code section 11377, as a lesser included offense of both charges. We reject Barragan’s argument that possession is a lesser included offense of transportation of methamphetamine, but we agree that the court was required to instruct on possession as a lesser included offense of possession of methamphetamine for sale. In light of the evidence, the error was not harmless. We therefore reverse Barragan’s conviction for possession of methamphetamine for sale.
1. Legal Standards
“Under California law, a lesser offense is necessarily included in a greater offense if either the statutory elements of the greater offense, or the facts actually alleged in the accusatory pleading, include all the elements of the lesser offense, such that the greater cannot be committed without also committing the lesser.” (People v. Birks (1998) 19 Cal.4th 108, 117-118.) The trial court must instruct the jury sua sponte on all lesser necessarily included offenses that find substantial support in the evidence. (People v. Breverman (1998) 19 Cal.4th 142, 148-149, 162.) This rule avoids an unwarranted all-or-nothing choice for the jury, and insures a verdict no harsher or more lenient than the evidence merits. (Id. at p. 155.) Failure to instruct on necessarily lesser included offenses supported by the evidence is grounds for reversal when “it appears ‘reasonably probable’ the defendant would have achieved a more favorable result had the error not occurred.” (Id. at pp. 149, 178.) “Probability, ” in this context, “does not mean more likely than not, but merely a reasonable chance, more than an abstract possibility.” (People v. Superior Court (Ghilotti) (2002) 27 Cal.4th 888, 918, summarizing the holding of People v. Watson (1956) 46 Cal.2d 818, 836-837.)
2. Possession is Not a Lesser Included Offense of Transportation
Barragan argues that possession of methamphetamine under Health and Safety Code section 11377 is a necessarily included lesser offense of transportation of a controlled substance under section 11379. He bases his argument on a comparison of the two offenses drawn from the language of CALCRIM No. 2300, the jury instruction on transportation, and People v. Tinajero (1993) 19 Cal.App.4th 1541. Since Barragan is making no claim based upon the allegations of the accusatory pleading in this case, we will analyze the issue by determining whether a defendant may transport methamphetamine in violation of section 11379 without also being guilty of possession under section 11377.
Health and Safety Code section 11377, subdivision (a), provides, in relevant part, “every person who possesses any controlled substance [as defined by the statute]... shall be punished by imprisonment in a county jail for a period of not more than one year or in the state prison.” Section 11379, subdivision (a) provides, in relevant part, “every person who transports, imports into this state, sells, furnishes, administers, or gives away, or offers to transport, import into this state, sell, furnish, administer, or give away, or attempts to import into this state or transport any controlled substance [as defined by the statute]... shall be punished by imprisonment in the state prison for a period of two, three, or four years.”
The accusatory pleading test would not benefit Barragan anyway. The amended information charged Barragan in the most conclusory fashion by simply reiterating the words of section Health and Safety Code section 11379. There is nothing in the charging documents to indicate the crime was committed in any specific way. “An offense is... 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.” ’ ” (People v. Lagunas (1994) 8 Cal.4th 1030, 1034.)
The simple answer to the question is that under a statutory elements analysis, one may be guilty of transporting drugs without possessing them. Thus, possession is not a necessarily included offense of transportation of controlled substances. In People v. Rogers (1971) 5 Cal.3d 129, our Supreme Court considered whether a trial court had adequately instructed on transportation of a controlled substance and said the following about its elements. “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. [Citations.] For example, were defendant shown to have aided and abetted his passengers in carrying, conveying or concealing drugs in their possession, his conduct would have sustained a conviction of transportation.” (Id. at p. 134, fn. omitted.)
A footnote we have omitted from the preceding quote contains dictum that qualifies the court’s statement and provides: “In cases where defendant’s 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.” (People v. Rogers, supra, 5 Cal.3d at p. 134, fn. 3.) However, this footnote is referring to consideration of the circumstances in which a defendant may be convicted of both possession and transportation, and does not apply to an analysis of possession as a possible necessarily included offense to transportation under a statutory elements test. The purported rule expressed in this footnote has also been discounted by courts that have since considered the question presented in Rogers, and has been described as “dubious” by our Supreme Court. (People v. Watterson (1991) 234 Cal.App.3d 942, 945; People v. Reed (2006) 38 Cal.4th 1224, 1228-1229, fn. 2.) We agree with the statement in Rogers that possession of a controlled substance is not an essential element of transportation of a controlled substance prohibited by Health and Safety Code section 11379.
Barragan’s reliance on Tinajero is misplaced. Tinajero considered the question of whether possession is a necessarily lesser included offense of sale of a controlled substance, not transportation. In Tinajero, the defendant was charged with, and convicted of, one count of sale or transportation of cocaine. (People v. Tinajero, supra, 19 Cal.App.4th at p. 1548.) He argued on appeal that the trial court had a sua sponte duty to instruct on both possession and possession for sale as lesser included offenses of sale of cocaine. (Id. at pp. 1545-1546.) The appellate court agreed with defendant, but affirmed his conviction because the transportation charge was “overwhelmingly supported by the record, ” and thus the jury was not left with an “all or nothing” choice were it to find insufficient evidence of sale. (Id. at pp. 1547, 1551-1552.)
The Attorney General also contends Tinajero was wrongly decided because it relied on evidence presented at trial, rather than the accusatory pleading, to determine that simple possession was a lesser included offense in that case. (See People v. Cheaves (2003) 113 Cal.App.4th 445, 454.)
Tinajero did not address whether possession is a necessarily lesser included offense of transportation of a controlled substance. Moreover, Tinajero supports our conclusion that it is not. The Tinajero court recognized error in the failure to instruct on possession offenses as they relate to the sale element of the single count charged against the defendant, but concluded the guilty verdict on the transportation element of the charge was sufficient to support the conviction. There is nothing in Tinajero that suggests the trial court instructed on possession as a lesser included offense of the transportation element of the single count complaint alleging transportation or sale of a controlled substance. We are not surprised. Possession is not a necessarily included offense of transportation.
Appellant’s opening brief and reliance on Tinajero can be read to suggest that the evidence presented at trial must be considered in order to determine whether one offense is necessarily included in another. We disagree. The trial court’s duty to instruct on a lesser included offense arises where the evidence may support conviction of the lesser crime, but a determination of whether one offense is necessarily included in another arises from analysis of the crimes’ statutory elements or the allegations charged against a defendant, not the evidence. (People v. Birks, supra, 19 Cal.4th at pp. 117-118; People v. Cheaves, supra, 113 Cal.App.4th at p. 454.)
3. Possession is a Lesser Included Offense of Possession for Sale
The Attorney General acknowledges that possession is a lesser included offense of possession for sale of a controlled substance. (See People v. Saldana (1984) 157 Cal.App.3d 443, 454-455.) Even so, the Attorney General argues that no instruction on possession was required in this case because no reasonable jury could have found Barragan possessed the drugs without intending to sell them. We disagree.
Health and Safety Code section 11377, subdivision (a), authorizes imprisonment in county jail or state prison for “every person who possesses any controlled substance [as defined by the statute], ” while section 11378 provides, in relevant part, “every person who possesses for sale any controlled substance [as defined by the statute]... shall be punished by imprisonment in the state prison.”
The Attorney General says there are “several tell-tale facts that marked [Barragan] as a drug dealer.” He had $900 in cash when he was arrested, a scale was nearby and a bullet in his pocket fit a gun recovered from a place that was within his reach when he first encountered the police. In context, these facts do not compel the conclusion that Barragan possessed methamphetamine for sale. The gun was also within reach of the other two occupants of the Tahoe that Barragan was riding in. Barragan was carrying a meth pipe, and all three occupants of the Tahoe appeared to be under the influence of methamphetamine. Perhaps most importantly, the methamphetamine was not packaged in a manner to suggest it was possessed for sale. Although a police expert testified that the amount of methamphetamine recovered from Barragan, combined with recovery of the cash and the gun, prove that he possessed the drugs for sale, this opinion evidence is not conclusive. An “officer’s opinion is merely circumstantial evidence of intent to sell....” (See People v. Saldana, supra, 157 Cal.App.3d at pp. 455-456; see also People v. Breverman, supra, 19 Cal.4th at p. 162 [“In deciding whether there is substantial evidence of a lesser offense, courts should not evaluate the credibility of witnesses, a task for the jury”].) In the absence of direct evidence that Barragan possessed the methamphetamine for sale, he was entitled to have the jury instructed on the lesser and necessarily included offense of simple possession. The jury could have reasonably found he possessed the drug without the intent to sell it, regardless of whether defense counsel argued such a theory. (See People v. Saldana, supra, at pp. 456-457 [concluding the jury could have determined the defendant possessed 18 packaged-for-sale balloons of heroin for his brother’s personal use, despite the defendant’s denial that he possessed the drugs at all]; see also People v. Barton (1995) 12 Cal.4th 186, 195-196 & fn. 4 [court must instruct on a lesser included offense, despite defendant’s express objection, “when the evidence is substantial enough to merit consideration by the jury”].)
Even though we have assessed the prejudicial effect of the trial court’s failure to instruct in the customary way by comparing the strength of the evidence of the charged and lesser included offenses to determine whether there is a reasonable probability the jury could have returned a verdict on the lesser included offense had it been properly instructed, the Attorney General argues the error was harmless for another reason. He says that since Barragan was tried on several counts, the customary analysis of the prejudicial effect of the trial court’s instructional error need not be undertaken because the jury was not faced with an “all or nothing” choice between conviction or acquittal. The Attorney General says, “When, as here, the jury did not face an ‘all or nothing’ choice, that circumstance constitutes both an easier and more precise determination of no prejudice (at least when, as here, any contrary indications are present).”
The Attorney General argues that this alternative approach to harmless error analysis is preferred because our conclusion that Barragan was prejudiced by the failure to instruct on possession is “tantamount to a determination that the jury violated its instructions by failing to acquit.” Hardly. Our conclusion says nothing more about the verdict than the evidence raised a reasonable chance that had it been properly instructed, the jury may have convicted Barragan of possession rather than possession for sale. We reach no conclusion on the independent sufficiency of the evidence to support the possession for sale conviction.
This is not a case where the evidence of intent to sell was overwhelming. Instead the record suggests “a reasonable chance” or “more than an abstract possibility” of a more favorable verdict had the jury been instructed on simple possession as a lesser included offense. (See People v. Superior Court (Ghilotti), supra, 27 Cal.4th at p. 918.) Barragan’s conviction for possession for sale of methamphetamine must therefore be reversed.
“When a greater offense must be reversed, but a lesser included offense could be affirmed, we give the prosecutor the option of retrying the greater offense, or accepting a reduction to the lesser offense.” (People v. Kelly (1992) 1 Cal.4th 495, 528.) Such an option is appropriate here because Barragan argues no error other than the failure to instruct the jury on the lesser included offense of possession in addition to the instruction on possession for sale.
B. Sufficiency of the Evidence to Support the Conviction for Being Under the Influence of Methamphetamine While in Possession of a Firearm
Barragan argues his conviction for being under the influence of methamphetamine must be reversed for insufficient evidence. He says that even though a toxicology lab report showed that he tested positive for use of methamphetamine, nothing showed he was under the influence when he was arrested. But the officers who observed Barragan when they stopped the Tahoe testified that he exhibited symptoms of someone under the influence of a controlled substance, including enlarged pupils, a pulsating carotid artery, nervousness, sweating, and rapid speech. The officers’ observations were corroborated by the lab report that confirmed Barragan’s urine tested positive for methamphetamine. Barragan cites no relevant legal authority to support his suggestion that an expert evaluation was required to determine whether his symptoms “were necessarily attributable to a particular controlled substance.”
Health and Safety Code section 11550, subdivision (e) states, in relevant part, “any person who is unlawfully under the influence of... methamphetamine... while in the immediate personal possession of a loaded, operable firearm is guilty of a public offense punishable by imprisonment in a county jail for not exceeding one year or in state prison.” The jury was instructed that a person is “under the influence of a controlled substance if that person has taken or used a controlled substance that has appreciably affected the person’s nervous system, brain, or muscles or has created in the person a detectable abnormal mental or physical condition.”
Barragan contends there was no behavioral evidence to show he was under the influence, and cites the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders in support of the proposition that “[a] diagnosis of amphetamine intoxication generally requires use, symptoms and behavior.” But the People were not required to substantiate a diagnosis of amphetamine intoxication. They were only required to show that Barragan’s use of a controlled substance had “appreciably affected [his] nervous system, brain, or muscles or ha[d] created... a detectable abnormal mental or physical condition.” (Italics added.) The officers’ observations provided substantial evidence of detectable abnormal mental and/or physical conditions that support Barragan’s conviction for being under the influence of methamphetamine while in possession of a firearm. (See People v. Canty 2004) 32 Cal.4th 1266, 1278 [“One may be guilty of being under the influence of drugs in violation of Health and Safety Code section 11550 by being in that state in any detectable manner”].) The jury’s determination that Barragan was under the influence of methamphetamine is supported by substantial evidence.
DISPOSITION
Defendant’s conviction for possession of methamphetamine for sale in violation of Health and Safety Code section 11378 is reversed. If, after the filing of the remittitur in the trial court, the People do not retry Barragan on count two within the time limit set forth in Penal Code section 1382, subdivision (a)(2), the trial court shall treat the remittitur as a modification of the judgment as to count two to reflect a conviction of simple possession of methamphetamine in violation of Health and Safety Code section 11377, and resentence Barragan accordingly. (See People v. Edwards (1985) 39 Cal.3d 107, 118; People v. Racy (2007) 148 Cal.App.4th 1327, 1336, 1338; People v. Woods (1992) 8 Cal.App.4th 1570, 1596.) In all other respects, the judgment is affirmed.
We concur: Pollak, Acting P.J., Jenkins, J.