Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of San Diego County No. SCD206558. Howard H. Shore, Judge.
HUFFMAN, J.
A jury convicted Kevin McRae of selling marijuana. (Health & Saf. Code, § 11360, subd. (a).) In a bifurcated proceeding, McRae admitted to one strike prior (Pen. Code, §§ 667, subds. (b)-(i), 1170.12 & 668) and one prison prior (Pen. Code, §§ 667.5, subd. (b) & 668). The court struck McRae's prison prior, denied the motion to strike his strike prior, and sentenced him to prison for four years: the lower term of two years doubled for the strike prior.
Statutory references are to the Health and Safety Code unless otherwise noted.
McRae appeals, contending (1) the evidence was insufficient to support his conviction for selling marijuana, and (2) the court committed reversible error by failing to instruct the jury sua sponte on attempted purchase of marijuana as a lesser included offense. We disagree and affirm the judgment.
FACTS
On May 14, 2007, at about 10:00 a.m., San Diego Police Officers Jeff Gross and Stephanie Ott were conducting narcotics surveillance from a concealed location approximately 220 yards away. The officers observed McRae milling about and engaging in conversation with several people. Officers Carl Pira and Antonia Bull were also in the area on uniformed patrol.
Binoculars and a 20-power spotting scope were used to conduct the surveillance. According to Gross: "What the binoculars do is -- I can put my binoculars on a target and push a button, it puts an x on the target and it tells me it's like 148 yards from my current location." Gross also described the function of the 20-power spotting scope: "It's like a big binocular -- it's about yay long (indicating). It's about that big around, and it's about 20-powered, and it's -- it magnifies what I can see by 20-power."
Gross and Ott first saw McRae conversing with a Hispanic man. During this conversation, McRae pulled a white wad from his pocket. After a brief talk, the Hispanic man left and McRae began another conversation with a different individual, John Hill. During this conversation, Hill handed McRae some money, McRae made change for Hill, ripped a piece of white plastic bag, placed something into the plastic piece, and handed the ripped piece to Hill. After Hill placed the piece of plastic into his shirt pocket, he walked to the trolley station where he was detained and questioned by Pira and Bull at Gross's request. After briefly questioning Hill, Pira and Bull recovered 1.43 grams of marijuana wrapped in a plastic cellophane bindle from his shirt pocket and issued him a citation for possessing marijuana. Pira and Bull then contacted McRae at Gross's request and arrested him after Gross identified McRae as the individual who engaged in the suspected narcotics transaction. The only item recovered from McRae was a $20 bill.
Hill testified a Hispanic man approached him and asked if he wanted to buy some marijuana. Hill offered $5 for the marijuana, gave the Hispanic man a $20 bill and received $15 in change.
According to Pira, a "bindle is a wrapping that your narcotics would be in. Frequently, it's a piece of plastic that you get at the grocery store. They'll tear off pieces of that, or it could be the cellophane that's used to wrap a cigarette pack in. Sometimes it's a newspaper or a brown paper bag." Gross also provided clarification: "What you will have is -- sometimes when people sell marijuana, it's what's called a pinch bag or a plastic paper zip lock, or something to hold the marijuana."
DISCUSSION
I
SUFFICIENCY OF THE EVIDENCE TO SUPPORT A CONVICTION FOR SELLING MARIJUANA
McRae contends there was insufficient evidence to sustain his conviction for selling marijuana. He specifically challenges the accuracy of Gross's testimony and lack of "tangible evidence" provided at trial. We disagree.
We recognize "that our role on appeal is a limited one." (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) In determining whether a judgment or conviction can be set aside for insufficiency of the evidence, we view the evidence on the entire record favorably to the People and in support of the judgment to determine whether there is substantial evidence -- that is, evidence which is "reasonable, credible," of "solid value," and which "reasonably inspires confidence" -- such that any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307, 318-319; People v. Marshall (1997) 15 Cal.4th 1, 34; People v. Johnson (1980) 26 Cal.3d 557, 578; Ochoa, supra, 6 Cal.4th at p. 1206.) This standard of review applies even when the conviction rests primarily on circumstantial evidence. (People v. Kraft (2000) 23 Cal.4th 978, 1053; People v. Holt (1997) 15 Cal.4th 619, 668.) Thus, if the " ' "circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment." ' " (Ibid.) Ultimately, while it is the "jury's duty to acquit a defendant if it finds the circumstantial evidence susceptible of two reasonable interpretations, one of which suggests guilt and the other innocence, it is the jury, not the appellate court that must be convinced of the defendant's guilt beyond a reasonable doubt." (Kraft, supra, 23 Cal.4th at pp. 1053-1054; People v. Perez (1992) 2 Cal.4th 1117, 1124.)
Additionally, it is not our function to "reweigh the evidence" or "reappraise the credibility of witnesses." (People v. De Paula (1954) 43 Cal.2d 643, 649.) The "uncorroborated testimony of a single witness is sufficient to sustain a conviction, unless the testimony is physically impossible or inherently improbable." (People v. Scott (1978) 21 Cal.3d 284, 296 (Scott).) It is the exclusive function of the trier of fact to " ' "determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. . . ." ' "(People v. Barnes (1986) 42 Cal.3d 284, 303 (Barnes).) Any "conflict in the testimony was thus squarely placed before the jury, whose finding was resolved against defendant's contentions, and it is binding upon this court." (People v. Crooker (1956) 47 Cal.2d 348, 352 (Crooker).)
Here, the evidence is sufficient to support McRae's conviction. Gross, the officer conducting the narcotics surveillance, testified that he saw McRae hand Hill a wrapped piece of plastic in exchange for money. When Hill was stopped by Pira and Bull, he handed over 1.43 grams of marijuana wrapped in a similar piece of plastic. Hill testified he gave a man a $20 bill in exchange for that marijuana. McRae had a $20 bill on him at the time of his arrest. From this circumstantial evidence, a reasonable jury could infer that McRae is guilty of selling marijuana to Hill. Although McRae asks us to question the accuracy of Gross's testimony, we cannot "determine the credibility of a witness." (Barnes, supra, 42 Cal.3d at p. 303.) Moreover, McRae's view of the record is misguided as he analyzes the evidence favorably to his case. The proper test is " 'whether there is substantial evidence to support the conclusion of the trier of fact,' " not whether " 'guilt is established beyond a reasonable doubt.' " (People v. Hillery (1965) 62 Cal.2d 692, 702.) We therefore conclude the evidence supports an inference of guilt drawn by the jury below.
Even if we were not persuaded by the accumulation of circumstantial evidence in this case, the "uncorroborated testimony" of Gross is sufficient to sustain McRae's conviction. (Scott, supra, 21 Cal.3d at p. 296.) Gross's observations were neither "physically impossible" nor "inherently improbable." (Ibid.) Moreover, even if Gross's testimony contained some inaccuracies or discrepancies, these deficiencies were considered by the trier of fact whose finding was resolved to give credence to the testimony of the prosecution witnesses, and it is binding upon this court. (Crooker, supra, 47 Cal.2d at p. 352.) Substantial evidence supports McRae's conviction for selling marijuana.
II
FAILURE TO INSTRUCT SUA SPONTE ON ATTEMPTED PURCHASE OF MARIJUANA AS A LESSER INCLUDED OFFENSE
McRae also contends the court committed reversible error by failing to instruct sua sponte on attempted purchase of marijuana as a lesser included offense of selling marijuana. We disagree.
" 'A defendant has a constitutional right to have the jury determine every material issue presented by the evidence . . . . ' [Citation.]" (People v. Haley (2004) 34 Cal.4th 283, 312.) Consequently, a trial court is required to instruct the jury "on the general principles of law relevant to the issues raised by the evidence," even where counsel has failed to make such a request. (People v. St. Martin (1970) 1 Cal.3d 524, 531.) The policy behind this obligation to instruct sua sponte is to prevent the jury from facing "an all-or-nothing" choice where the People have no "legitimate interest in obtaining a conviction" of a greater offense than that established by the evidence, and where "the state has no interest in a defendant obtaining an acquittal where he is innocent of the primary offense charged but guilty of a necessarily included offense." (Id. at p. 533.)
Two tests exist for determining whether an offense is necessarily included within another offense: the "elements" test and the "accusatory pleading" test. (People v. Lopez (1998) 19 Cal.4th 282, 288.) Under the elements test, "if the statutory elements of the greater offense include all of the statutory elements of the lesser offense, the latter is necessarily included in the former." (People v. Reed (2006) 38 Cal.4th 1224, 1227.) Under the accusatory pleading test, "if the facts actually alleged in the accusatory pleading include all of the elements of the lesser offense, the latter is necessarily included in the former." (Id. at pp. 1227-1228.) Here, neither the accusatory pleading test nor the elements test justifies an instruction of attempted purchase of marijuana as a lesser included offense to selling marijuana.
Attempted purchase of marijuana is not an essential element of selling marijuana. Attempted purchase of marijuana does not require proof of possession. Alternatively, no sale of narcotics "is possible without such actual or constructive possession." (People v. Francis (1964) 71 Cal.2d 66, 73.) Therefore, under the elements test, attempted purchase of marijuana is never a lesser included offense of selling marijuana.
Attempted purchase of marijuana in this case is also not a lesser included offense of selling marijuana under the accusatory pleading test. By his own admission, McRae attempted to purchase marijuana from "an unknown Hispanic male." This alleged transaction is different from that charged in the information. Because the "doctrine of included offenses is applicable only when the same act is relied upon for more than one conviction," (People v. Greer (1947) 30 Cal.2d 589, 600, overruled on other grounds in People v. Fields (1996) 13 Cal.4th 289, 308), the court was not obligated to instruct the jury on attempted purchase of marijuana as a lesser included offense because the transaction for the attempted purchase was not the same transaction as the alleged sale transaction between McRae and Hill.
The court did not err in failing to instruct the jury on attempted purchase of marijuana as a lesser included offense of selling marijuana.
DISPOSITION
The judgment is affirmed.
WE CONCUR: BENKE, Acting P. J., O'ROURKE, J.