Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County No. LA053232. Richard H. Kirschner, Judge.
Stephen M. Hinkle, 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, Assistant Attorney General, Lance E. Winters and David Zarmi, Deputy Attorneys General, for Plaintiff and Respondent.
RUBIN, J.
FACTS AND PROCEDURAL HISTORY
One day in August 2006, a female police officer working undercover on the street asked appellant if he knew where to buy drugs. Appellant said yes, took $20 from her, and began searching in the neighborhood for a drug dealer. After finding a dealer, he collected another $10 from the officer, purchased between $15 and $20 of cocaine base from the dealer and kept the remaining money. Although he gave the officer most of the cocaine, he kept some for himself. After completing the sale, he was arrested and charged with sale of a controlled substance. (Health & Saf. Code, § 11352, subd. (a).) At trial, appellant argued the officer had entrapped him by feigning sexual interest and the court instructed the jury on the elements of entrapment. The jury nonetheless convicted appellant as charged.
DISCUSSION
Appellant contends the court erred in not instructing the jury that it had the option of convicting him of simple possession of cocaine base as a lesser included offense of selling that drug. His contention rests on his theory that he was an equal partner with the undercover officer in copurchasing the drugs, making him a buyer, rather than seller, of the drugs. Citing possession as a lesser included offense, he asserts the court had a sua sponte duty to instruct the jury on simple possession.
Trial courts have a sua sponte duty to instruct juries on lesser-included offenses. (People v. Barton (1995) 12 Cal.4th 186, 194-195.) This duty applies only when there is evidence that supports a finding that the lesser-included offense was committed and the greater offense was not. (Ibid.) If a crime is only a lesser related offense to another, there is no sua sponte duty to instruct. (People v. Majors (1998) 18 Cal.4th 385, 408-409; People v. Toro (1989) 47 Cal.3d 966, 972, 975 disapproved on another point in People v. Guiuan (1998) 128 Cal.4th 558, 568 fn.3.)
A crime is a lesser-included offense of another if it satisfies one of two tests: the statutory definition test or the charging document test. (People v. Toro, supra, 47 Cal.3d at p. 972; People v. Lohbauer (1981) 29 Cal.3d 364, 368-69). Under the statutory definition test, a crime is a lesser-included offense “if under the statutory definition of the charged offense it cannot be committed without committing the lesser offense.” (People v. Toro, supra, 47 Cal.3d at p. 972.) Similarly, under the charging document test, an offense is lesser-included “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.” (Ibid.) Here, both tests fail.
The statutory definition test fails because neither of the elements required for a sales conviction requires possession. The statute requires two elements: sale of a controlled substance, and knowledge about its nature. (CALJIC No. 12.02; Health & Saf. Code, § 11352, subd. (a).) Neither element requires possession. “For example, one can broker a sale of a controlled substance that is within the exclusive possession of another.” (People v. Murphy (2007) 154 Cal.App.4th 979, 984 (citing People v. Peregrina-Larios (1994) 22 Cal.App.4th 1522, 1524).) In short “possession is not an essential element of the sale offense.” (Ibid.)
Appellant’s contention also fails the charging document test. The information filed against appellant alleges that he offered to, attempted to, or “did unlawfully transport, import into the State of California, sell, furnish, administer, [or] give away” a controlled substance. None of the acts described necessarily require possession of a controlled substance. Much like one can broker the sale of a controlled substance without possessing it, one may also broker its transportation, importation, administration, or furnishing. The information did not make any additional allegation that would have required possession of a controlled substance; therefore, the charging document test fails.
Since both tests fail, appellant’s contention that he was entitled to a lesser-included instruction also fails. He argues for a third test by citing People v. Francis (1969) 71 Cal. 2d 66, 73-74, a California Supreme Court case holding that sale of a drug sometimes presupposes its possession. Appellant is correct that Francis used a third, evidence based, test that considered if evidence presented at trial made it factually impossible to commit the greater offense without committing the lesser offence. However, this test was implicitly overruled by People v. Lohbauer, supra, 29 Cal.3d at pages 368-369. (See also People v. Toro, supra, 47 Cal.3d at p. 972; People v. Geiger, supra, 35 Cal.3d at p. 517; People v. Thomas (1991) 231 Cal.App.3d 299, 305 (providing a detailed overview of cases considering the issue of lesser included offenses).)
Moreover, even under the overruled Francis test, appellant is not entitled to relief. Evidence in the record undermines his contention raised for the first time on appeal that he bought the drugs in an imagined partnership with the undercover officer for his and her personal use, making him merely a co-buyer believing he was acting on the officer’s behalf instead of a link in a chain of sales to her. But according to his own testimony, he inserted himself in the drug transaction hoping for monetary gain or sexual favors. He testified that he earned a profit of either $10 or $15 dollars and was motivated in part because he “needed a couple of dollars [him]self.” Similarly, he testified he hoped the officer would engage in sexual acts with him if he procured drugs for her. In fact, he described an exchange with the officer where he claimed to have negotiated 45 minutes of her company in return for his help in procuring the drugs. Whether motivated by money or sex, he was seeking a reward of some sort from the undercover officer, making him a seller to her of drugs for valuable consideration; as such, he was not simply a buyer acting for the two of them in an unlawful partnership to buy drugs solely for their personal use in which he, by happenstance, was the one to deal directly with the dealer.
DISCUSSION
The judgment is affirmed.
WE CONCUR: COOPER, P. J., FLIER, J.