Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 05F09571
DAVIS, Judge.
A jury convicted defendant Jeffrey Michael Gomes of possession of methamphetamine for sale (Health & Saf. Code, § 11378), transportation of methamphetamine (Health & Saf. Code, § 11379, subd. (a)), and unlawful possession of a deadly weapon, a billy (Pen. Code, § 12020, subd. (a)(1)). The trial court sustained an allegation that defendant had a prior strike conviction and sentenced defendant to nine years four months in prison.
On appeal, defendant contends the court should have given an instruction on possession of methamphetamine as a lesser included offense to possession for sale; he was entitled to an instruction on the definition of a billy; and his upper term sentence violates the rule of Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435] (Apprendi) and Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403] (Blakely). We reject the contentions and affirm.
BACKGROUND
Sacramento County Sheriff’s Deputy David Cuneo executed a traffic stop on a green Ford sports utility vehicle (SUV) driven by defendant, who also had three passengers. Deputy Cuneo approached and asked defendant to exit the SUV. As defendant got out, the deputy spotted an expandable baton within inches of where defendant was sitting. The baton, a common police weapon, expands to 21 inches with the flick of a wrist.
Deputy Cuneo radioed for assistance and searched the truck. The officers found on the front floorboard a beam scale with a powdery residue and a jar containing dimethyl sulfone, or DSM, a substance frequently used to cut methamphetamine. Several clear plastic baggies were in the center console along with a green Tommy Hilfiger bag which held six baggies containing a white crystalline substance, a spoon with white residue on it, and a digital scale. The baggies held a total of 71 grams of methamphetamine with a street value of about $7,000.
Defendant was searched, and Deputy Cuneo found $1,442 in small bills of various denominations in his front pocket. None of the passengers possessed narcotics or any substantial amount of cash.
Sacramento County Sheriff’s Detective Scott Kolb, testifying as an expert on possession of methamphetamine for the purpose of sale, was of the opinion that the methamphetamine was possessed for sale. Among the reasons for the opinion were the street value of the methamphetamine, its packaging, the presence of a digital scale, the amount and denominations of cash carried by defendant, the presence of MSM, and the presence of empty baggies.
On December 7, 2005, defendant was entering the Sacramento County Courthouse when the pat-down deputy found a note in defendant’s possession.
The note, which was read into the record by the deputy who seized it, was from defendant to one of the passengers of the SUV. In the note, defendant asks the passenger to take the prosecution’s offer, which would result in a 16-month sentence, after defendant pleaded not guilty. The recipient would then testify at defendant’s trial, where he would state the drugs and the club were owned by him rather than defendant and claim defendant knew nothing about them.
Defendant was in court that day for a joint hearing with Brian Johnson, who was in the SUV with defendant at the time of his arrest. Johnson and defendant were seated at the same table during the hearing.
DISCUSSION
I
Defendant contends the trial court erred in failing to instruct the jury sua sponte on possession of methamphetamine as a lesser included offense of possession of methamphetamine for sale. We disagree, as there was insufficient evidence to support an instruction on the lesser included offense.
“[A] trial court errs if it fails to instruct, sua sponte, on all theories of a lesser included offense which find substantial support in the evidence. On the other hand, the court is not obliged to instruct on theories that have no such evidentiary support.” (People v. Breverman (1998) 19 Cal.4th 142, 162.) This is true even when a defendant fails to request the instruction or expressly objects to it being given. (Id. at p. 154.) “[T]he existence of ‘any evidence, no matter how weak’ will not justify instructions on a lesser included offense, but such instructions are required whenever evidence that the defendant is guilty only of the lesser offense is ‘substantial enough to merit consideration’ by the jury. [Citations.] ‘Substantial evidence’ in this context is ‘“evidence from which a jury composed of reasonable [persons] could . . . conclude[]”’ that the lesser offense, but not the greater, was committed.” (Id. at p. 162.)
Defendant contends the presence of the individually packaged methamphetamine in the center console along with the scales in the truck supports an inference that two or more occupants of the SUV were dividing up the methamphetamine for their personal use. His contention is untenable.
The large amount of cash in small bills found on defendant, the presence of a popular cutting agent for methamphetamine in the truck, the amount and value of the methamphetamine, and the note asking Johnson to admit to owning the drugs all point to a single inference--that the drugs were possessed for sale. Defendant’s claim that the drugs were jointly possessed for personal use simply can not be reconciled with the overwhelming evidence showing the methamphetamine was possessed for sale.
II
The trial court instructed the jury with alternative 3B of Judicial Council of California Criminal Jury Instructions (2007-2008) CALCRIM No. 2500, which provides, in pertinent part, as follows:
“The defendant is charged in Count Three with unlawfully possessing a weapon, specifically a billy.
“To prove that the defendant is guilty of this crime, the People must prove that:
“1. The defendant possessed a billy;
“2. The defendant knew that he possessed the billy;
“AND
“3. The defendant knew that the object was a billy and could be used as a weapon for the purpose of offense or defense.”
Defendant contends that since a collapsible baton is not specifically mentioned in Penal Code section 12020, the jury should have been instructed with alternative 3A of CALCRIM No. 2500, which replaces part 3 with: “The defendant possessed the object as a weapon. When deciding whether the defendant possessed the object as a weapon, consider all of the surrounding circumstances relating to that question, including when and where the object was possessed and whether the object was changed from its standard form and any other evidence that indicates whether the object would be used for a dangerous, rather than a harmless, purpose.” (Italics omitted.) He claims this instruction would allow the jury to determine whether the baton was a billy and whether defendant knew it was a billy within the meaning of Penal Code section 12020.
The alternative 3A instruction urged by defendant is appropriate “if the object [in question] is capable of innocent uses,” while the alternative used by the trial court is proper when “the object ‘has no conceivable innocent function’ [citation].” (Bench Notes to CALCRIM No. 2500, supra, p. 378, quoting People v. Fannin (2001) 91 Cal.App.4th 1399, 1405.) Webster’s Dictionary defines a billy club as a “a heavy usu. wooden club; specif: police officer’s club.” (Webster’s 11th Collegiate Dict. (2006) p. 122.) According to the trial testimony, the collapsible baton found in the Expedition is commonly used by police as a weapon designed to inflict force on another person.
The baton defendant was convicted of possessing had no legitimate use other than as a police weapon, and thus comes within the common definition of a billy. (See People v. Mercer (1995) 42 Cal.App.4th Supp. 1, 5.) Since this weapon had no innocent uses, defendant was not entitled to the alternative instruction.
III
Defendant contends that his upper term sentence for transportation of methamphetamine violated his right to jury trial on the aggravating factors used to enhance his sentence. We disagree.
In Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856], the United States Supreme Court, applying Blakely, supra, 542 U.S. 296, held that, under California’s Determinate Sentencing Law, the middle term is the statutory maximum which a judge may impose solely based on the facts reflected in the jury verdict or admitted by the defendant. (Cunningham, supra, 549 U.S. at p. ___ [166 L.Ed.2d at p. 873].) Thus, except for a prior conviction, any fact that increases the penalty for a crime beyond the middle term must be tried to the jury and proved beyond a reasonable doubt. (549 U.S. at p. ___ [166 L.Ed.2d at p. 864].)
Applying Cunningham, in People v. Black (2007) 41 Cal.4th 799 (Black II), the California Supreme Court declared “imposition of the upper term does not infringe upon the defendant’s constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendant’s record of prior convictions.” (Id. at p. 816.)
In sentencing defendant to the upper term, the court found as aggravating factors the large quantity of methamphetamine involved in the crime, defendant’s “numerous” prior convictions, his poor performance on parole, namely that he was on parole at the time of the offense, and his attempt to manipulate the system to his favor through the letter to Johnson. Under Black II, the court’s reliance on defendant’s numerous prior convictions is sufficient justification for his upper term. Defendant’s claim is therefore without merit.
DISPOSITION
The judgment is affirmed.
We concur: SCOTLAND, P.J., CANTIL-SAKAUYE, J.