Opinion
D040694.
7-11-2003
THE PEOPLE, Plaintiff and Respondent, v. ROBERTO MARTINEZ GUZMAN, Defendant and Appellant.
A jury convicted Roberto Martinez Guzman (Guzman) of possessing amphetamine (Health & Saf. Code, § 11377, subd. (a)), unlawfully possessing ammunition (Pen. Code, § 12316, subd. (b)(1)), being a felon in possession of a firearm (Pen. Code, § 12021, subd. (a)(1)), possessing methamphetamine for sale (Health & Saf. Code, § 11378), and selling methamphetamine (Health & Saf. Code, § 11379, subd. (a)). The court simultaneously sentenced Guzman on this case and unrelated superior court case No. SCE211792. The crimes here were subordinate to a crime in case No. SCE211792 on which the court imposed three years. On the convictions here the court imposed one year for selling methamphetamine, eight months for possessing a firearm, and eight months for possessing amphetamine (one-third the middle terms). It imposed a concurrent term for possessing ammunition and stayed sentence for possessing methamphetamine for sale (Pen. Code, § 654). Guzman contends the trial court erred in failing to instruct the jury on simple possession of methamphetamine as a lesser included offense of possession for sale.
FACTS
On April 3, 2002, as part of a narcotics operation San Diego Police Officer Cyndi Beilstein went to a home at 6234 Wunderlein. She was not wearing a uniform. After some difficulty getting the attention of the house occupant, while standing outside the side door, Beilstein spoke with a man she identified as Guzman. Beilsteins requested some "tweek," methamphetamine. Guzman removed .18 grams of methamphetamine from his waistband and exchanged it with Beilstein for $ 20. Two days later, officers executed a search warrant and found a bullet in Guzmans pocket, a gun in a sleeping bag on the sofa, and 2.68 grams of amphetamine.
DISCUSSION
Guzman argues the trial court erred in refusing to give his requested instruction on simple possession of methamphetamine. As the People correctly point out, it is unclear whether Guzman requested an instruction on the lesser included offense of simple possession of methamphetamine. At one point the trial court said, "both defense counsel confirmed that there was no request for any lesser included instructions," but two days later it said, "during our discussion on instructions where there was a request on the part of the defense and this would come . . . primarily from Mr. Guzman for an instruction on simple possession as an L. I. O. and of the possession for sale." However, "a trial court must instruct on a lesser included offense, whether or not so requested, whenever there is [sufficient] evidence . . . from which a reasonable jury composed of reasonable persons could have concluded a lesser offense, rather than the charged crime, was committed." (People v. Marshall (1996) 13 Cal.4th 799, 846, 919 P.2d 1280.)
Here, the uncontested evidence was that Guzman transferred methamphetamine to Officer Beilstein in exchange for $ 20. To transfer the methamphetamine to the officer Guzman had to possess it and when he handed it to the officer he displayed, even if momentarily, the undisputed intent to furnish her with the drug. Guzmans sole defense was mistaken identification — he was not the person who transferred the drugs to Officer Beilstein. The jury obviously rejected this defense when it convicted Guzman of selling the drugs. It could not have convicted Guzman on the evidence in this case without determining he had the intent to furnish or sell the drug he possessed to Officer Beilstein while she stood outside his door. Under these circumstances it is frivolous to argue that the jury should have been instructed on simple possession.
DISPOSITION
The judgment is affirmed.
WE CONCUR: HUFFMAN, Acting P. J., and McDONALD, J.