Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Super. Ct. No. FVA022533
ORDER MODIFYING OPINION AND DENYING PETITION FOR REHEARING; NO CHANGE IN JUDGMENT
ARONSON, J.
It is ordered that the opinion filed herein on November 20, 2007, be modified as follows:
1. On page 27, in the first new paragraph, insert a closing parenthesis after the citation to “(People v. Guiton (1993) 4 Cal.4th 1116, 1122.”
2. On page 27, in the second sentence of the second new paragraph, delete and replace “a $208,000 drug exchange” with “a $200,000-plus drug exchange.”
3. On page 28, at the top of the page and after the closing parenthesis in the citation to People v. Brown,insert a new footnote number 4 and corresponding footnoted text, as follows:
4 In a petition for rehearing, Najar contends the prosecutor did not misunderstand the crime of possession of contraband currency but instead purposefully elected to target only the sellers in a $100,000-plus transaction, based on his unsupported view the defendants participated in some previous sale that netted $208,000. Najar points to what he claims was the prosecutor’s decision to excise a portion of CALJIC No. 12.35 concerning buyers. We cannot know, however, whether it was the prosecutor’s decision or his or the court’s inadvertence that resulted in the omission. But we do know the omitted portion of the instruction only restated what the first paragraph of the instruction already told the jury, i.e., that buyers — like sellers — who possess $100,000 or more in contraband currency violate Health and Safety Code section 11370.6, subdivision (a). Where, as here, the jury was properly instructed on the elements of the crime and substantial evidence supports the jury’s verdict, Najar has no grounds to complain of a conviction secured in spite of, rather than because of, the prosecutor’s acumen.
4. On page 28, in the first new paragraph, delete and replace the sentence beginning “Indeed, Najar’s own overt acts . . .” with the following sentences:
Najar points out the jury acquitted him on the transportation charge. That, however, is not fatal to the jury’s true finding on the weight enhancement. The jury convicted Najar of possessing methamphetamine for sale. Based on the $6,000 police found in his pocket upon arrest, Najar construes the jury’s conviction as relating only to $6,000 worth of methamphetamine, an amount insufficient to justify the weight enhancement. But the jury could reasonably conclude, based on Najar’s active participation in moving the drugs from the shopping mall to the point of exchange, that he was in the “in the game” for the whole pie and not just a $6,000 slice. In other words, the $6,000 he carried was not for a personal purchase but rather, joined with the $208,000 in the Jetta, constituted the purchase price for the whole haul in the Celica — more than enough to warrant the weight enhancement. In sum, the jury could reasonably conclude the $6,000 pegged Najar as a buyer and he therefore was not liable for transporting the drugs — a seller’s duty — to the exchange location, but he was liable for the weight enhancement on the full amount purchased.
These modifications do not change the judgment. Defendant Santiago Najar’s petition for rehearing is DENIED.
WE CONCUR: BEDSWORTH, ACTING P. J., O’LEARY, J.