Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. Edward D. Webster, Judge. Affirmed as modified., Super.Ct.No. SWF012817
Kevin D. Sheehy, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Peter Quon, Jr., Supervising Deputy Attorney General, and James H. Flaherty III, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
MCKINSTER, J.
Defendant and appellant Gregory Alverez Deville (hereafter defendant) is serving a nine-year sentence after a jury convicted him of felony possession of a controlled substance (Health & Saf. Code, § 11350, subd. (a)) (count 1); misdemeanor use and being under the influence of a controlled substance (§ 11550, subd. (a)) (count 2); misdemeanor possession of drug paraphernalia (§ 11364) (count 3); and misdemeanor false self-identification to a peace officer (Pen. Code, § 148.9, subd. (a)) (count 4). In this appeal, defendant argues: 1) the trial court erred by failing to instruct the jury on voluntary intoxication as a defense to several of the charges; and 2) the sentences for misdemeanor use/being under the influence and possession of drug paraphernalia should be stayed because they were part of the same course of conduct and incident to the same intent as the felony possession charge pursuant to Penal Code section 654. For the reasons discussed below, we modify the judgment to stay the sentence imposed for count 2. The remainder of the judgment is affirmed.
All further statutory references are to the Health and Safety Code unless otherwise indicated.
Facts and Procedure
This case began at approximately 1:00 a.m. on the morning of May 25, 2005, when a sheriff’s deputy and a sergeant (deputies) separately responded to a call regarding a suspicious vehicle parked on a dirt road east of Highway 74. The deputies found a panel van parked with its lights on and two occupants asleep in the front seats. Defendant was in the driver’s seat and Donnita Jensen (Jensen) was in the front passenger seat. A hypodermic needle was in plain sight on the center console. The deputies knocked on the driver’s side window and door for about 30 seconds before the occupants woke up. When defendant got out of the vehicle, the deputies noticed that his eyes were bloodshot and pupils constricted, his eyelids were droopy, his speech was slow and thick, his movements were slow, and he had drool on his shirt.
Defendant did not have identification, but told the deputies his name was Gregory Arby and gave March 17, 1957, as his birth date. In fact, as Jensen later told the deputies, defendant’s name is Gregory Deville. His correct birth date is March 18, 1957.
In the driver’s side cup holder on the van’s center console, the deputies found a syringe, a spoon with tar heroin and a lighter. In the passenger side cup holder on the center console, they found a plastic container lid containing a small amount of tar heroin, and a spoon. Jensen told the deputies that the substance on the plastic lid and one of the spoons was heroin, which she had bought earlier in the day. She also stated that, although she usually smokes heroin, she had planned to inject it with defendant that evening, but had “chickened out.”
The deputies arrested defendant and Jensen for possessing heroin and transported them to the sheriff’s station. The substance on the plastic lid and spoon tested positive for heroin. The substances together weighed 0.1 grams.
The deputies observed that defendant had old injection marks on his arms as well as one new one, and displayed symptoms consistent with someone under the influence of drugs, such as pupils that did not react to light. A phlebotomist was unable to draw defendant’s blood because of the number of injection marks and the hardness of his veins. A urine test showed opiates of free-state morphine consistent with recent heroin use. A blood test showed that Jensen was not under the influence of heroin. Jensen did not have any injection sites on her arms.
Jensen testified for the defense at trial. She had known defendant for about one year and was his girlfriend. She stated that she knew defendant as “Gregory Arby” (the name defendant gave to the deputies) and that that was his birth name. On cross-examination, Jensen testified that she knew defendant’s real name because she had seen it on his birth certificate, which she was unable to bring to court because it was in storage. She stated that defendant also went by the name “Gregory Deville, ” and that was the name he gave her when they first met.
Jensen testified that the van in which the deputies found her and defendant belonged to her, and that she was driving it earlier that evening when she pulled over to the side of the road because “[t]here was something wrong with it.” Jensen testified that she woke up defendant, who had fallen asleep around 6:30 p.m., and that he attempted to fix the van but couldn’t, so they decided to spend the night in the van. She said that she had purchased the heroin at 10:30 in the morning, had picked up defendant around noon, and that defendant did not know about the heroin. She stated she kept the heroin, spoon and syringe inside a glasses case on top of the center console, and that the items were in the glasses case, not in the center console, when the deputies found them in the van. Jensen testified that she took the heroin out of her purse about 6:30 p.m., and prepared it in the spoon. Defendant was asleep at that time and remained asleep until the deputies arrived. Jensen planned to put the heroin in the syringe to snort it by tilting her head back and squeezing the syringe into her nose. She had never injected heroin. She testified on cross-examination that the second spoon found on the center console was an eating spoon, and that she did not know why two lighters were also found.
One of the deputies testified on rebuttal that he had never heard of heroin being ingested by squirting a syringe up one’s nose.
Jensen also testified that she had already pled guilty to felony possession of heroin and possession of the syringe.
Jensen testified that defendant had had a “medical incident” prior to the arrest that resulted in his speech becoming thicker and slower and his “coordination” becoming “slower.”
After the close of evidence but before final instructions and closing arguments, defendant’s trial counsel asked the trial court to give CALJIC Nos. 4.21.1 [“VOLUNTARY INTOXICATION – TRIAL WITH GENERAL AND SPECIFIC INTENT CRIMES”] and 4.22 [“VOLUNTARY INTOXICTION – DEFINED”]. Counsel explained that, although the defense would argue that defendant was not under the influence, “in an abundance of caution, ” counsel was requesting the voluntary intoxication instructions: “If the jury decides to think [defendant] was under the influence [of heroin], then the being intoxicated would be a defense to the mental state in the specific intent that’s in Count 4 and to the mental state in the other counts.”
CALJIC No. 4.21.1 provides in pertinent part, as to a charged crime with a “necessary” or “essential” element of a certain “specific intent” or “mental state”:
CALJIC No. 4.22 defines “voluntary intoxication” to include, inter alia, “the voluntary ingestion, injecting or taking by any other means of any intoxicating liquor, drug or other substance.”
The trial court cited two reasons for denying the request to give the voluntary intoxication instructions: “First is if you become intoxicated after you’ve used the drug that does not mean that you did not know at the time you used the drug you had possession at that time. The second point before you can get into evidence he was so intoxicated that he did not have the mental state you need some evidence of that other than speculation. So you would need the testimony, essentially, of the defendant in this case, and since you don’t have it, you won’t get it.”
Next, rejecting counsel’s argument that if, as charged, defendant had been under the influence of heroin while allegedly intentionally giving false information to a police officer, the voluntary intoxication instructions should be required for count 4, the court stated: “But that would mean that any time a person has two drinks and goes into a house and does a burglary you can give that instruction where the person doesn’t testify to anything other than that. You need something more than mere intoxication to give the instruction. There’s a whole line of cases that talk about that.”
In closing argument, defense counsel argued to the jury that defendant was not under the influence of a controlled substance. Rather, counsel argued his physiological symptoms observed by the arresting deputies were consistent with Jensen’s testimony regarding an unspecified medical problem, and with having been awakened from a deep sleep at 1:00 a.m. Counsel also argued that if the jury believed defendant was under the influence, then that would exonerate him of count 4, the false self-identification charge.
The jury convicted defendant of all four charged offenses. The trial court sentenced defendant to the middle term of two years on count 1, doubled to four years for a prior strike, plus five one-year enhancements for prior prison terms, for a total of nine years. Defendant also received concurrent 180-day jail sentences on counts 2, 3 and 4, along with 301 days of credit for time served. This appeal followed.
Discussion
1. Voluntary Intoxication Instruction
Defendant argues the trial court erred when it refused his request to instruct the jury on voluntary intoxication to negate the mental state elements of the possession and false self-identification counts, i.e., counts 1, 3 and 4. Specifically, defendant contends the court should have instructed the jury using CALJIC Nos. 4.21.1 and 4.22 because there was evidence from which the jury could have concluded that defendant was “already under the influence of heroin at noon [] when . . . [he] got into the vehicle being driven by Jensen, who had earlier purchased the heroin for her sole use and had never made him aware of the heroin’s presence in the vehicle or shared it with him before the officers arrested them. . . . [Defendant] could have fallen asleep by 6:30 p.m. while still intoxicated from his pre-vehicular usage and then remained unconscious, both while Jensen commenced and then aborted her plan to inject the drug alone in the vehicle, and until the officers arrived at about 1 a.m.” In other words, the evidence could have led the jury to conclude that defendant did not know about the heroin or paraphernalia because he was intoxicated from heroin use when Jensen picked him up at noon, she did not tell him about the heroin or paraphernalia, and he slept in the van from 6:30 p.m. until 1:00 a.m. in a heroin-induced stupor while she prepared the heroin for her own use. Further, defendant did not have the intent to deceive the deputies about his identity because at 1:00 a.m. he was too intoxicated to form the specific intent to deceive, whether from having used heroin prior to Jensen picking him up at noon or from using the heroin that was found in the van.
A. Specific versus General Intent
The People argue that the trial court properly refused to give the voluntary intoxication instructions because counts 1, 3 and 4 are general intent crimes and thus voluntary intoxication is not a defense to those crimes, citing Penal Code section 22. As explained below, we conclude that count 4, false self-identification to a peace officer, is a specific intent crime and thus voluntary intoxication can be raised as a defense if sufficient evidence is presented. We also conclude that, although the two possession counts, 1 and 3, are general intent crimes, evidence of voluntary intoxication is admissible to raise reasonable doubt as to the knowledge element of these crimes.
Penal Code section 22 provides in pertinent part: “(a) No act committed by a person while in a state of voluntary intoxication is less criminal by reason of his or her having been in that condition. Evidence of voluntary intoxication shall not be admitted to negate the capacity to form any mental states for the crimes charged, including, but not limited to, purpose, intent, knowledge, premeditation, deliberation, or malice aforethought, with which the accused committed the act. [¶] (b) Evidence of voluntary intoxication is admissible solely on the issue of whether or not the defendant actually formed a required specific intent . . . .”
The state Supreme Court has “set forth a general definition distinguishing the two intents: ‘When the definition of a crime consists of only the description of a particular act, without reference to intent to do a further act or achieve a future consequence, we ask whether the defendant intended to do the proscribed act. This intention is deemed to be a general criminal intent. When the definition refers to defendant’s intent to do some further act or achieve some additional consequence, the crime is deemed to be one of specific intent.’ [Citation.]” (People v. Atkins (2001) 25 Cal.4th 76, 82, quoting People v. Hood (1969) 1 Cal.3d 444, 456-457.)
Generally, specific intent crimes are denoted by language such as “with the intent” or “for the purpose of” achieving some further act or additional consequence. (People v. Hering (1999) 20 Cal.4th 440, 446.) In contrast, general intent crimes are often described with terms such as “knowingly, ” “willfully, ” or “maliciously.” (People v. Williams (1980) 102 Cal.App.3d 1018, 1029.)
i. Possession Counts (1 and 3)
The basic elements of possession of a controlled substance are “actual or constructive possession in an amount sufficient to be used as a controlled substance with knowledge of its presence and its nature as a controlled substance.” (People v. Rushing (1989) 209 Cal.App.3d 618, 621.) The knowledge element logically applies to count 3, misdemeanor possession of drug paraphernalia, as well.
The parties do not dispute that the possession counts are general intent crimes, and so voluntary intoxication is not a defense under Penal Code section 22. However, as defendant points out, under People v. Reyes (1997) 52 Cal.App.4th 975, voluntary intoxication, while not a defense, can be “‘proffered in an attempt to raise a doubt on an element of a crime which the prosecution must prove beyond a reasonable doubt. In such a case the defendant is attempting to relate his evidence of intoxication to an element of the crime.’” (Id. at p. 985.) In that case, the crime was receiving stolen property, which, like the possession charges above, requires that the prosecution prove a knowledge element beyond a reasonable doubt. Thus, under the proper circumstances, evidence of voluntary intoxication can be relevant to the knowledge element of the two possession charges.
“Evidence of voluntary intoxication is admissible solely on the issue of whether or not the defendant actually formed a required specific intent . . . .” (Pen. Code, § 22, subd. (b).)
ii. False Self-Identification (Count 4)
The elements of count 4, false self-identification to a peace officer, are: 1) false self-identification or representation; 2) to a peace officer; 3) upon a lawful detention or arrest; 4) for the purpose of either evading court process or evading proper identification by the investigating officer. This is a specific intent crime rather than a general intent crime because the offense is committed not by simply misidentifying one’s self to a peace officer, but by doing so “for the purpose of” specifically evading court process or proper identification by the peace officer. Thus, voluntary intoxication can be a defense to false self-identification if enough evidence is presented.
After having determined the relevance of voluntary intoxication to the possession and false self-identification charges, we now turn to whether enough evidence was presented to warrant jury instructions on voluntary intoxication.
B. Evidence of Diminished Capacity
Defendant contends that the trial court should have granted his request to instruct the jury on voluntary intoxication to negate the knowledge element of the heroin and paraphernalia possession charges, and to show that he could not have had the specific intent to misidentify himself to the arresting deputies for the purpose of evading identification.
The People reply that not enough evidence was presented at the trial to allow the jury to conclude that defendant: 1) was so intoxicated from using heroin prior to noon that he did not know that Jensen had placed the plastic lid and spoon containing heroin and the syringe in the center console; and 2) was so intoxicated, regardless of when he ingested the heroin, that he could not form the specific intent to give the wrong name and birth date for the purpose of preventing the deputies from determining his true identity.
“A defendant is entitled to [a voluntary intoxication] instruction only when there is substantial evidence of the defendant’s voluntary intoxication and the intoxication affected the defendant’s ‘actual formation of specific intent.’ [Citations.]” (People v. Williams (1997) 16 Cal.4th 635, 677, quoting People v. Horton (1995) 11 Cal.4th 1068, 1119.) “‘Normally, merely showing that the defendant had consumed alcohol or used drugs before the offense, without any showing of their effect on him, is not enough to warrant an instruction on . . .’ . . . lack of intent.” (People v. Mayfield (1993) 5 Cal.4th 142, 205, quoting People v. Pensinger (1991) 52 Cal.3d 1210, 1241.)
For example, in People v. Payton (1992) 3 Cal.4th 1050, there was evidence that the defendant was speaking more slowly than usual and “shuffling his feet” in a characteristic manner as a result of drinking three beers before committing the charged stabbings. (Id. at pp. 1057, 1060.) However, “[t]here was no evidence that the three beers affected defendant’s ability to think in any way.” (Id. at p. 1060.) “[H]e had no trouble walking, and his speech was otherwise fine. He knew what he was talking about, and he could respond. At the time of the stabbing, his reflexes, coordination and balance seemed normal.” (Ibid.) The Supreme Court held that this was insufficient “‘evidence that [he] lacked the capacity to form the requisite mental states . . . .’” (People v. Payton, supra, at p. 1061, quoting People v. Pensinger, supra, 52 Cal.3d at p. 1241.)
Similarly, in People v. Kaurish (1990) 52 Cal.3d 648, although the evidence showed that the defendant “consumed an unspecified quantity of alcohol, and possibly marijuana and cocaine, . . . shortly before the murder was committed, ” two eyewitnesses “testified that defendant did not appear intoxicated: he was capable of holding a normal conversation, and did not walk irregularly . . . .” (Id. at pp. 695-696.) The Supreme Court concluded that instructions on the theory that the defendant lacked the requisite specific intent were not required: “[T]he record contains no evidence either that defendant consumed an inordinate quantity of drugs or alcohol, or that his behavior actually demonstrated diminished capacity.” (Id. at p. 696.)
Here, unlike in People v. Payton and People v. Kaurish, there is substantial evidence that defendant’s behavior did demonstrate diminished capacity. As described below, both arresting deputies, each of whom has extensive experience in performing field evaluations for heroin intoxication, testified that, based on their training, experience and observation of defendant, defendant was under the influence of heroin at the time of the arrest. More important, each deputy described in detail the specific symptoms that defendant exhibited, which is substantial evidence that defendant could have lacked the specific intent to mislead the deputies for the purpose of avoiding identification.
Sergeant Vergara testified that he had been “involved in 3, 000 or 4, 000 cases where people have been under the influence of drugs. I teach other officers in that arena.” Sergeant Vergara observed: “When he came out of the car, I noticed that he was very slow in his responses. He had – on his shirt he had drool all over himself. There was like slobber running down the middle of his shirt. His pupils were constricted below 3 millimeters. His eyelids were droopy, his speech was guttural and slow.” Sergeant Vergara then gave his opinion that defendant “was under the influence of a narcotic analgesic, more than likely heroin.” He elaborated as to the effects of heroin – “Basically, it makes you – if you can imagine the worse drunk you’ve ever seen, but also with painkillers on board. You don’t feel pain. That’s what heroin does to you.” Sergeant Vergara later summed up the basis for his opinion that defendant was under the influence of heroin – “The totality of what I saw in the field as far as the symptomatology, the constricted pupils, slow reaction, slurred and guttural speech, and the fact that he was relaxed and slobbering on his shirt. His low pulse, and obviously the physical signs which would be all injection and tracking marks throughout his arms.”
Deputy Bommer testified that he had 16 years of experience, including formal, informal and on-the-job training, in “identification and symptomatology of drug usage with a variety of drugs including heroin.” He described the signs that a person is under the influence of heroin as “the movement will be slow, the eyes droopy, the pupil’s pinpoint is below the normal range, their speech will thicken and may be slow, very slow movements . . . .” Deputy Bommer then described his observations of defendant: “His movement was very slow and deliberate”; his speech was “very slow and thick sounding . . . [t]he best way to describe it his tongue was swollen – guttural speech.” He also testified that he conducted a field evaluation of defendant, during which he asked defendant whether he had any medical problems, to which defendant answered “no.” Deputy Bommer shined a flashlight into defendant’s eyes, and their reaction was consistent with that of a person under the influence of heroin in that his pupils pulsated within the range of 1.5 to 2.0 millimeters, whereas normal dilation is between 3.5 and 6.5 millimeters. Deputy Bommer described this reaction to light as a “hippus” reaction. Defendant’s muscle tone was “rigid, ” that is, lacking in the normal elasticity. Deputy Bommer then stated that, based on defendant’s symptoms, he was of the opinion that defendant was under the influence of heroin.
i. False Self-Identification
This evidence, while certainly not conclusive, is substantial evidence that could have supported a conclusion by the jury that defendant’s voluntary heroin intoxication was such that it may have affected his ability to form the intent to lie about his name and/or birth date for the purpose of evading identification by the deputies. Consequently, the trial court should have given the requested instructions as to count 4.
We now turn to the issue of prejudice to defendant from the failure to instruct. Under the state law standard of prejudice, we must reverse “‘only if [we] find[] a reasonable probability the error affected the verdict adversely to defendant.’” (People v. Mendoza (1998) 18 Cal.4th 1114, 1134-1135, quoting People v. Humphrey (1996) 13 Cal.4th 1073, 1089.) A reasonable probability standard requires a showing that lies somewhere between a mere possibility and an actual likelihood. (Strickland v. Washington (1984) 466 U.S. 668, 694; see also People v. Kaurish, supra, 52 Cal.3d at p. 689.) “There is a reasonable probability of a more favorable result within the meaning of [People v.] Watson [(1956) 46 Cal.2d 818]when there exists ‘at least such an equal balance of reasonable probabilities as to leave the court in serious doubt as to whether the error affected the result.’” (People v. Mower (2002) 28 Cal.4th 457, 484, quoting People v. Watson, supra, at p. 837.) “In making that evaluation, an appellate court may consider, among other things, whether the evidence supporting the existing judgment is so relatively strong, and the evidence supporting a different outcome is so comparatively weak, that there is no reasonable probability the error of which the defendant complains affected the result.” (People v. Breverman (1998) 19 Cal.4th 142, 177, italics omitted.)
Here, we stress the above principles of “equal balance” and the relative strength of the evidence supporting acquittal versus conviction of the charge of false self-identification to a peace officer. Even if the jury had been properly instructed that voluntary intoxication is a defense to false self-identification, the evidence supporting conviction is relatively strong. This is because defendant had the presence of mind to give a false last name, implying both a consciousness of guilt and that his actual mental capacity to have the intent to lie was not all that diminished. (See People v. Lewis (1990) 50 Cal.3d 262, 276 [the use of an alias or false name is evidence of a consciousness of guilt].) In contrast, the evidence supporting acquittal is relatively weak, consisting only of Jensen’s testimony that the name defendant gave was his real name. This testimony is relatively weak evidence, first because Jensen was a generally unreliable witness and second because neither Jensen nor the defense bothered to bolster her testimony by producing defendant’s birth certificate. Jensen claimed the birth certificate listed defendant’s name as “Gregory Arby, ” the name he gave the deputies, but said she did not bring it to court because it was in storage. Thus, defendant did not suffer prejudice under the state law standard.
We take judicial notice of the commonly known fact that copies of birth certificates are readily available from the recorder’s office in the county of one’s birth.
Even under the more stringent federal harmless error standard, we conclude that defendant did not suffer prejudice from the instructional error. Under this standard, a due process or other “trial” error is harmless, and thus not reversible, only if the People can show “beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained, ” and that such error was, therefore, harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24.) Here, the jury heard evidence that defendant identified himself to the deputies using not just one but two false pieces of information -- his name and date of birth. And again, although Ms. Jensen testified that the name defendant gave was actually his birth name, her testimony overall was unreliable. Thus, we have no trouble concluding beyond a reasonable doubt that, even if the jury had been instructed on voluntary intoxication, the result would have been the same.
ii. Possession Counts
As to the possession counts however, no evidence was introduced at all from which the jury could have concluded that defendant was intoxicated when Jensen picked him up at noon so that he did not know about the heroin, syringe and spoon because he was intoxicated. Jensen simply did not state in her testimony that defendant was intoxicated at that time she picked him up, and defendant chose not to testify. While Jensen did testify that she did not tell defendant about the heroin and that he did not know about it, there was no evidence presented relating defendant’s alleged lack of knowledge to being under the influence of heroin prior to getting in the van. The trial court did not err as to counts 1 and 3.
2. Penal Code Section 654 – Double Punishment
Defendant also argues that the concurrent sentences for counts 2 (misdemeanor using and being under the influence) and 3 (misdemeanor possession of drug paraphernalia) should have been stayed as double punishment under Penal Code section 654. Defendant argues that his use of the heroin in count 2 and possession of the drug paraphernalia (syringe and spoon) in count 3 were incident to the same objective as his felony possession of the heroin in count 1 – to satisfy his heroin addiction.
Penal Code section 654, subdivision (a) states, in pertinent part: “An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision.” The purpose of Penal Code section 654 is to ensure that punishment is commensurate with culpability. (People v. Latimer (1993) 5 Cal.4th 1203, 1211.)
Penal Code section 654 “applies not only where there was but one act in the ordinary sense, but also where there was a course of conduct which violated more than one statute but nevertheless constituted an indivisible transaction. [Citation.] Whether a course of conduct is indivisible depends upon the intent and objective of the actor. [Citation.] If all the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.” (People v. Perez (1979) 23 Cal.3d 545, 551.) “On the other hand, if the evidence discloses that a defendant entertained multiple criminal objectives which were independent of and not merely incidental to each other, he may be punished for the independent violations committed in pursuit of each objective even though the violations were parts of an otherwise indivisible course of conduct.” (Ibid., fn. omitted.) Thus, the focus of inquiry is whether the defendant entertained single or multiple criminal objectives. Whether the defendant had more than one objective is a factual determination, which will not be reversed on appeal unless unsupported by the evidence presented at trial. (People v. Macias (1982) 137 Cal.App.3d 465, 470.)
A. Count 2 – Use and Being Under the Influence
The key to determining whether a defendant can be convicted of both possession and use/being under the influence of a drug is to look to the evidence as to whether the amount of drugs possessed can be consumed in a “relatively short time.” If the answer is “yes, ” and there is nothing else to indicate that the drugs were intended to be used other than in a relatively short time, then the defendant harbored only a single criminal intent when he possessed and used the drugs. (People v. Holly (1976) 62 Cal.App.3d 797, 805; see also People v. Maese (1980) 105 Cal.App.3d 710, 727.)
Here, defendant was convicted of possessing 0.1 grams of heroin. This was much less than the 2.2 grams of heroin possessed by the defendant in People v. Holly, which that court found to be an amount that could be consumed in a relatively short time. Further, the emphasis in the current case was whether the 0.1 grams was even a “usable quantity” at all. Thus, the evidence is insufficient to support a finding that defendant harbored two separate criminal intents when he possessed and used the heroin, and so the sentence on count 2 should be stayed.
B. Count 3 – Drug Paraphernalia
Defendant’s conviction for heroin possession was based on the “tadpole” of heroin on the lid of the plastic container, and another “tadpole” of heroin in the metal spoon on the driver’s side of the center console. However, the syringe, which formed part of the basis for the drug paraphernalia charge, did not contain heroin and was not being used by defendant at the time the deputies found it. In addition, the trial court could reasonably have inferred that defendant had not acquired or possessed the syringe and spoons specifically and only for the purpose of ingesting the heroin on that occasion. Defendant had both old and new needle marks on his arm, indicating that he had used heroin before and supporting the inference that he possessed the spoon and/or syringe for using heroin on a prior occasion. Thus, the evidence supports the trial court’s implied conclusion that defendant had more than one criminal objective in possessing the paraphernalia and the heroin, and so the sentence for possessing drug paraphernalia does not violate Penal Code section 654.
Disposition
The judgment is modified to reflect that the sentence imposed for count 2, misdemeanor use and being under the influence of a controlled substance, is stayed. The trial court is directed to prepare an amended abstract of judgment reflecting these modifications and to forward a copy of this amended abstract of judgment to the Department of Corrections and Rehabilitation. The remainder of the judgment is affirmed.
We concur: HOLLENHORST Acting P.J., RICHLI J.
“[Y]ou should consider the defendant’s voluntary intoxication in deciding whether the defendant possessed the required specific intent or mental state at the time of the commission of the alleged crime. [¶] . . . [¶] If the evidence shows that a defendant was intoxicated at the time of the alleged crime, you should consider that fact in deciding whether or not that defendant had the required specific intent or mental state. [¶] If from all the evidence you have a reasonable doubt whether a defendant had the required specific intent or mental state, you must find that defendant did not have that specific intent or mental state.”