Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. FWV033891, Steve C. Malone, Judge. Affirmed in part; reversed in part with directions.
John F. Schuck, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Gary W. Schons, Assistant Attorney General, and Barry Carlton and Sharon L. Rhodes, Deputy Attorneys General, for Plaintiff and Respondent.
HOLLENHORST, Acting P. J.
I. INTRODUCTION
Defendant Frederick Lee Mitchell appeals from his conviction of two counts of possession of cocaine for sale (Health & Saf. Code, § 11351, counts 1 and 3) and one count of sale/transportation of cocaine (§ 11352, subd. (a), count 4). Defendant contends the trial court erred in failing to instruct the jury on the lesser included offense of simple possession of cocaine (§ 11350) as to count 1. He further contends that although he was convicted of possession for sale and sale of cocaine, the evidence showed he instead possessed cocaine base, and his convictions must therefore be reversed. We conclude that the trial court erred in failing to instruct the jury on the lesser included offense as to count 1, and we therefore reverse as to that count. We find no other errors, and in all other respects, we affirm the judgment.
All further statutory references are to the Health and Safety Code unless otherwise indicated.
II. FACTS AND PROCEDURAL BACKGROUND
Defendant requested to represent himself at trial, and the trial court granted the request.
On February 3, 2005, San Bernardino County Police Officers Williams and Watson were conducting an undercover narcotics investigation. That afternoon, the officers, in plain clothes, drove their unmarked car into an apartment complex, where they had received complaints of narcotics activity. The officers saw defendant standing in front of the complex, and they drove up to him and asked for a person named “E,” from whom Officer Williams had previously bought narcotics. Defendant said he did not know “E,” but that “he had information on some cocaine.” The officers told defendant they would look for “E,” but if they did not find him, they would be back. The officers drove away. They did not find “E,” so they recontacted defendant, who called himself “Rome.” Defendant got into the back seat of the officers’ car. He said he “only had two,” which Officer Williams understood to mean two pieces of rock cocaine. Officer Williams gave defendant $20, and defendant gave the officer a piece of rock cocaine in a usable quantity. Defendant gave the officers his name and telephone number and explained he could obtain fraudulent business checks that could be cashed. A third officer, Officer Fuller, observed the transaction.
The next day, Officer Williams telephoned defendant but got no response. On February 8, 2005, the officer called him again, and they talked about the checks. The officer said he “wanted the same thing that [he] got last time,” and defendant asked him to call back. Defendant later called the officer back and said it would be better if he bought two rocks for $40. The officer agreed and arranged to meet defendant.
Officer Williams drove to the apartment complex with Officer Watson in the passenger seat. Defendant walked up to the driver’s side and sold Officer Williams two pieces of rock cocaine for $40. The rocks were a usable quantity. Officer Fuller observed the transaction, and he requested Officer Zendejas, a patrol officer in full uniform and in a marked patrol car, to stop defendant, identify him, and complete a field identification card. Officer Fuller provided a description of defendant, his location, and the clothes he was wearing. Officer Fuller continued to watch defendant.
One or two minutes later, Officer Zendejas saw defendant in the location Officer Fuller had provided, wearing the clothing Officer Fuller had described. When Officer Zendejas contacted defendant, defendant became belligerent and would not cooperate. Defendant was taken into custody. During the booking process at the police station, a suspected piece of rock cocaine fell out of defendant’s sock while he was being searched. Defendant stepped on it to “destroy it and break it up.” Officer Zendejas retrieved the pieces, which were a usable quantity. The officer stated his opinion that the cocaine had been possessed for sale based on “the information [the officer] had that he had just conducted a hand to hand and [defendant] had no other drug paraphernalia on him to ingest it....” Officer Williams did not form an opinion about why defendant possessed that piece of cocaine.
A video/audio tape of the booking room incident was played for the jury. During the incident, defendant denied having any cocaine and accused Officer Zendejas of planting the rock on him.
The booking receipt from defendant’s arrest showed that defendant had only 15 cents on his person.
Verdicts and Sentence
The jury found defendant guilty of two counts of possession of cocaine for sale (Health & Saf. Code, § 11351, counts 1 and 3) and one count of sale/transportation of cocaine (Health & Saf. Code, § 11352, subd. (a), count 4).) The jury could not reach a verdict as to count 2 (Health & Saf. Code, § 11352, subd. (a)), and that count was later dismissed. Defendant admitted two prison term priors (Pen. Code, § 667.5, subd. (b)). The trial court sentenced him to 11 years in prison, comprised of the upper term of five years for count 4, one year for count 1, three years for the enhancement under Health and Safety Code section 11370.2, and one year for each of the two enhancements under Penal Code section 667.5, subdivision (b). The court imposed a one-year term for count 3 but stayed that term under Penal Code section 654.
III. DISCUSSION
A. Jury Instructions
Defendant contends the trial court erred in refusing his request to instruct the jury on the lesser included offense of simple possession of cocaine (§ 11350) as to count 1.
1. Additional Factual Background
Counts 1 and 2 were based on the events that took place on February 8, 2005. Counts 3 and 4 were based on the events that took place on February 3. Defendant requested the trial court to instruct the jury on the lesser included offense of simple possession as to count 1. The trial court refused the instruction on the ground that it believed instructions on lesser included offenses are not required when the defense is mistaken identity. As noted, the jury did not reach a verdict as to count 2 (sale of cocaine on February 8, 2005), and that count was dismissed.
2. Analysis
Simple possession is a lesser included offense of possession for sale. (People v. Saldana (1984) 157 Cal.App.3d 443, 445-455.) The trial court must instruct the jury regarding lesser included offenses “‘when the evidence raises a question as to whether all of the elements of the charged offense were present [citation], but not when there is no evidence that the offense was less than that charged. [Citations.]’” (People. v Breverman (1998) 19 Cal.4th 142, 154-155.) Instructions on lesser included offenses are required even if the offense is inconsistent with the defense the defendant has elected. (People v. Brito (1991) 232 Cal.App.3d 316, 326, fn. 9 [alibi defense].)
Count 1 was based on defendant’s possession of a piece of cocaine base in his sock at jail on February 8. Officer Zendejas stated his opinion that defendant had possessed that cocaine for sale, and he based his opinion in part on the claim that defendant “had just conducted a hand to hand [sale].” However, the jury could not agree that the supposed sale on February 8 had ever occurred. Notably, at booking, defendant had only 15 cents on him, even though Officer Williams testified he had given defendant $40 to purchase cocaine. The trial court declared a mistrial as to count 2 and later dismissed it.
The only other basis for Officer Zendejas’s opinion was that defendant did not have any paraphernalia for drug use on his person. The People argue that defendant never presented evidence that he was a user of cocaine, and the absence of such evidence showed that he possessed the cocaine for sale. That assertion turns the burden of proof on its head: “The People must prevail on their own evidence,” (People v. Samarjian (1966) 240 Cal.App.2d 13, 18) and “the burden never shifts to the defendant to prove that he is innocent.” (People v. Fiu (2008) 165 Cal.App.4th 360, 383.) We therefore conclude the trial court erred in failing to instruct the jury on the lesser included offense of simple possession as to count 1.
Erroneous failure to instruct with necessarily lesser included offenses requires reversal when “the entire record establishes a reasonable probability that the error affected the outcome” of the trial. (People v. Breverman, supra, 19 Cal.4th at p. 165.) Here, in light of the fact that the jury could not reach a verdict as to count 2 (sale of cocaine on February 8), we conclude it is reasonably likely the jury might have convicted defendant of simple possession on count 1, had the jury been properly instructed on that offense. When we reverse a greater offense, and a lesser included offense could be affirmed, we allow the prosecutor the option of retrying the greater offense or accepting a reduction to the lesser included offense. (People v. Kelly (1992) 1 Cal.4th 495, 528.) We will therefore reverse the judgment provisionally to afford the prosecutor an opportunity to do so.
B. Elements of Offense
Defendant contends that although he was convicted of possession for sale and sale of cocaine, the evidence showed he instead possessed cocaine base, and his convictions must therefore be reversed because, as a matter of law, a defendant may not be convicted of an uncharged offense. (People v. Lohbauer (1981) 29 Cal.3d 364, 368.)
1.Additional Background
Defendant was charged with and convicted of violations of sections 11351 and 11352, subdivision (a). Section 11351 makes it a crime to possess for sale, among other substances, “(1) any controlled substance... or specified in subdivision (b) or (c) of Section 11055,...” The controlled substances listed in section 11055 include “[c]ocaine, except as specified in Section 11054.” (§ 11055, subd. (b)(6).) Section 11054 lists Schedule I controlled substances, which include “[c]ocaine base.” (§ 11054, subd. (f)(1).)
At trial, a criminalist testified that she first performed a color test from which she “obtained a color change consistent with cocaine, consistent with the base form.” She explained the test further, “There are two types of cocaine, cocaine salt and cocaine base. Each one will react differently in this reagent. Ultimately, they give you the same color, but the base form is not soluble in liquid. You have to do something to make it dissolve into liquid and only once it dissolves do you get color. If you have the salt form, you get color reaction immediately. If you have the base form, it is there until you add another chemical reagent to it, and then it dissolves and changes color.”
The criminalist next performed a thin layer chromatography test on the samples. The results of the tests were that “[i]n both cases the unknown migrated to the position of the cocaine standard and it was the same color as the cocaine standard.” The criminalist then performed two different microcrystal tests. The prosecutor asked if the results were consistent with cocaine, and the criminalist responded, “Not consistent. They were cocaine. It is a definitive identifier of cocaine.” (Italics added.) As a result of her tests, the criminalist formed the opinion that “[e]ach item analyzed contain[ed] cocaine and consistent with the base form of cocaine.” During cross-examination, the criminalist repeated her opinion that the substances tested “contained cocaine, definitely, and it is consistent with the base form.” The criminalist explained there are two types of cocaine: cocaine salt, i.e., cocaine hydrochloride, and cocaine base, i.e., rock cocaine. Cocaine salt is used to make cocaine base.
2. Analysis
In People v. Howell (1990) 226 Cal.App.3d 254 (Howell), the court explained, “Cocaine base or crack is simply cocaine hydrochloride after the hydrochloride is removed from the cocaine during the heating process. [Citation.]” (Id. at p. 260.) Thus, “[d]espite the difference between cocaine base, crack, or rock on one hand and cocaine hydrochloride on the other hand, both substances are still cocaine.” (Id. at p. 261.) The People argue, therefore, that a defendant may be convicted of possession of cocaine for sale when the evidence shows possession of cocaine base.
The People have requested this court to take judicial notice of various documents comprising the legislative history of (1) Statutes 1986, chapter 1044, which added section 11351.5 and added cocaine, except cocaine hydrochloride, as a Schedule I controlled substance under section 11054; and (2) Statutes 1987, chapter 1174, which redefined Schedule I cocaine as cocaine base and Schedule II cocaine as cocaine other than cocaine base. The request is granted.
Defendant contends that although he was convicted of possession for sale and sale of cocaine, the evidence showed he instead possessed cocaine base, and his convictions must therefore be reversed. To support his argument, defendant cites People v. Adams (1990) 220 Cal.App.3d 680. In that case, the court stated that “there is a chemical difference between cocaine base and cocaine hydrochloride,” and “the Legislature regards cocaine base and cocaine hydrochloride as different drugs and they are treated as such.” (Id. at pp. 686-687.) The court concluded that possession of cocaine was not a lesser included offense of possession of cocaine base for sale. (Ibid.) (See also People v. Howington (1991) 233 Cal.App.3d 1052, 1056 (Howington) [“the Legislature regards cocaine base as a controlled substance separate and distinct from all other forms of cocaine.”]; Howell, supra, 226 Cal.App.3d at p. 260 [“cocaine base is not cocaine hydrochloride”].)
As the court in Howington suggested, there might be a problem if a defendant were charged with and convicted of possession of cocaine base, but the evidence showed merely possession of cocaine. (Howington, supra, 233 Cal.App.3d at p. 1058.) However, the converse is not true. As the court noted in Howell, “both substances are still cocaine.” (Howell, supra, 226 Cal.App.3d at p. 260, italics added.) Because cocaine base is a form of cocaine, defendant was properly convicted of possession of cocaine for sale (§ 11351) in count 3.
Defendant’s challenge to his conviction of sale of a controlled substance (§ 11352, subd. (a)) in count 4 is equally unavailing. As discussed above, despite the differences between the substances, cocaine base is still cocaine. (Howell, supra, 226 Cal.App.3d at p. 261.) Moreover, section 11352 proscribes the sale of both cocaine and cocaine base, and a conviction under that section may be based on either cocaine or cocaine base. (Howington, supra, 233 Cal.App.3d at p. 1058.) Here, the criminalist testified that the samples tested contained cocaine consistent with cocaine base. We therefore reject defendant’s claim of error.
IV. DISPOSITION
We reverse defendant’s conviction on count 1 with directions that if the People do not bring defendant to trial on that count within 60 days after the filing of the remittitur in the trial court, the trial court shall proceed as if the remittitur constituted a modification of the judgment to reflect a conviction of section 11350 and resentence defendant accordingly. In all other respects, the judgment is affirmed.
We concur: MCKINSTER J., MILLER J.