Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA322390, Sam Ohta, Judge.
Tara K. Hoveland, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Paul M. Roadarmel, Jr. and Margaret E. Maxwell, Deputy Attorneys General, for Plaintiff and Respondent.
EPSTEIN, P.J.
Theeron Newton argues the trial court committed reversible error by refusing an instruction on the lesser included offense of simple possession of cocaine as an alternative to the charge of possession of cocaine base for sale. We agree and, finding the error prejudicial, reverse on that charge. The judgment is affirmed in all other respects.
FACTUAL AND PROCEDURAL SUMMARY
Appellant was charged and convicted of multiple offenses including torture and assault of his cohabitant and assault of his second cousin. His only issue on appeal concerns his conviction of possession for sale of cocaine base (Health & Saf. Code, § 11351.5).
Los Angeles police officers arrested appellant and took him into custody in early May 2007. Officer Wesley Sarno participated in a strip search of appellant for contraband at the police station. During the search appellant removed a baggie containing 10 off-white solids resembling rock cocaine from his buttocks area. No drug paraphernalia was found on appellant, although he had fourteen $1 bills in his pants pocket. Detective Michael Zolezzi testified that no drug paraphernalia was found during a search of appellant’s home.
Evidence that appellant had engaged in cocaine sales a month before his arrest was presented. Los Angeles Police Officer Jeritt Severns testified as a narcotics expert. In his opinion, a person who had 10 baggies of rock cocaine (totaling 8.74 net grams) in his anus, fourteen $1 bills in a pocket, and no drug paraphernalia, possessed those narcotics for sale. Officer Severns said he would be certain that the drugs were possessed for sale if the person had been involved in a drug transaction the month before. Evidence of the person’s prior use of cocaine would not change his opinion that the drugs were possessed for sale because it was not uncommon for a seller to finance a personal habit by selling or distributing cocaine.
Appellant testified in his own defense. He denied selling cocaine, possessing drugs when arrested, or having drugs concealed in his anus when arrested. His defense to the drug charge was that a police officer planted the drugs on him. Appellant was convicted and sentenced to an aggregate prison term of 45 years to life. This timely appeal followed.
DISCUSSION
“‘A criminal defendant has a constitutional right to have his or her jury determine “every material issue presented by the evidence” and this includes the right, where appropriate, to have the jury instructed on lesser included offenses.’ [Citation.]” (People v. Friend (2009) 47 Cal.4th 1, 51.) “[T]he trial court must give ‘“‘instructions on 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.’”’ (People v. Valdez [(2004)] 32 Cal.4th [73], 115, quoting People v. Breverman (1998) 19 Cal.4th 142, 154.) ‘As our prior decisions explain, the 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.’ (People v. Breverman, supra, 19 Cal.4th at p. 162.)” (People v. Romero (2008) 44 Cal.4th 386, 402-403.) We review de novo an alleged failure of the trial court to instruct on an uncharged lesser included offense. (People v. Waidla (2000) 22 Cal.4th 690, 733.)
Appellant was charged with possession of cocaine base for sale. (Health & Saf. Code, § 11351.5.) His attorney requested an instruction on the lesser included offense of possession of cocaine base (Health & Saf. Code, § 11350, subd. (a)) on the theory that the evidence supported a guilty verdict on either charge. He argued the jury could conclude that appellant had the cocaine for his own personal use. The trial court noted the defense that the drugs had been planted by a police officer and that appellant did not “controvert the possession for sale aspect.” It concluded that substantial evidence did not support giving an instruction on the lesser included offense.
“[P]ossession of cocaine base within the meaning of section 11350 is a lesser necessarily included offense of possession of cocaine base for sale in violation of section 11351.5.” (People v. Adams (1990) 220 Cal.App.3d 680, 690.) In order to prove guilt of a violation of section 11351.5, possession for sale of cocaine base, the prosecution must prove the defendant “(1) exercised control over the cocaine, (2) had knowledge of its presence and knowledge of its nature as a controlled substance, (3) the substance was in an amount sufficient to be used for sale as a controlled substance, and (4) he or she possessed the controlled substance with the specific intent to sell it.” (In re Christopher B. (1990) 219 Cal.App.3d 455, 466.) A violation of section 11350 must be proven by evidence of possession of the narcotic with knowledge of the presence and narcotic nature of the substance. (People v. Saldana (1984) 157 Cal.App.3d 443, 454-455.)
Respondent argues an instruction on a lesser included offense is not required where a defendant “completely denies complicity in the charged crime.” (People v. Gutierrez (2003) 112 Cal.App.4th 704, 709.) The cases cited by respondent in support of this argument are distinguishable. The defendant in Gutierrez was charged with attempted murder and two counts of assault with a firearm arising from an altercation at a bar during an evening of bar hopping. On appeal, Gutierrez contended the trial court should have instructed on attempted voluntary manslaughter based on sudden quarrel or heat of passion. The court rejected the argument because there was no evidence of provocation or heat of passion, and therefore no evidentiary basis for an instruction on the lesser offense. (Ibid.)
Similarly, in People v. Sinclair (1998) 64 Cal.App.4th 1012, another case cited by respondent, the defendant was convicted of second degree murder and was found to have used a firearm. On appeal, he claimed the court should have instructed on voluntary manslaughter based on heat of passion and imperfect self defense. Sinclair testified at trial that he did not fire the fatal shot. He presented no evidence that he acted in heat of passion or in actual fear of imminent harm, requisite for instructions on the lesser and necessarily included crime of voluntary manslaughter. Based on the evidence, the Court of Appeal held that Sinclair was not entitled to instructions on voluntary manslaughter based on heat of passion or imperfect self-defense. (Id. at p. 1015.) In People v. Leach (1985) 41 Cal.3d 92, the defendant, charged with robbery, argued the trial court erred in failing to instruct sua sponte on the lesser included offense of grand theft. Leach testified in his own defense that a companion took the victim’s money. The Supreme Court held that “[u]nder no view of the evidence was Leach guilty of mere theft, ” so there was no duty to instruct on grand theft. (Id. at p. 106.)
As appellant points out, the court in People v. Sinclair, supra, 64 Cal.App.4th 1012, recognized that other evidence may support an instruction on a lesser included offense even where the defendant has denied culpability. The court noted there is a sua sponte duty to instruct on a lesser included crime “even though the evidence supporting the lesser offense is inconsistent with the accused’s defense. (People v. Bradford (1997) 15 Cal.4th 1229, 1345; People v. Barton [(1995)] 12 Cal.4th [186, ] 198-199, fn. 7.)” (Sinclair, at p. 1017.) “‘[T]he trial court must instruct on lesser included offenses... [supported by the evidence]..., regardless of the theories of the case proffered by the parties.’” (People v. Breverman, supra, 19 Cal.4th at p. 159, quoting People v. Barton, supra, 12 Cal.4th 186, 203.) It explained the rule that a trial court has a sua sponte duty to instruct on all material issues presented by the evidence: “[R]egardless of the tactics or objections of the parties, or the relative strength of the evidence on alternate offenses or theories, the rule requires sua sponte instruction on any and all lesser included offenses, or theories thereof, which are supported by the evidence.” (Breverman, at p. 160.)
The Supreme Court concluded that the policies underlying this rule would be undermined if the trial court were permitted to limit instructions on lesser included offenses to those it believed to have the greatest merit or which “conform to the defense actually presented, while ignoring other theories also supported by the evidence.” (Breverman, supra, 19 Cal.4th at pp. 161-162, fn. omitted.) The court cautioned: “In deciding whether there is substantial evidence of a lesser offense, courts should not evaluate the credibility of witnesses, a task for the jury. [Citations.]” (Id. at p. 162.) Instead, “substantial evidence to support instructions on a lesser included offense may exist even in the face of inconsistencies presented by the defense itself.” (Id. at pp. 162-163.)
Applying these principles in light of the evidence, we conclude the trial court erred in denying appellant’s request for an instruction on the lesser included offense of possession of cocaine base. The evidence was sufficient to find appellant guilty of the lesser offense of possession of cocaine base. The cocaine was in his possession, it could be inferred that he was aware that it was hidden in his buttocks, and his knowledge of its nature may be inferred from the evidence that it was hidden. We turn to the question of prejudice.
Reversal for failure to instruct on a necessarily lesser included offense is not warranted unless “an examination of ‘the entire cause, including the evidence, ’ discloses that the error produced a ‘miscarriage of justice.’ (Cal. Const., art. VI, § 13.) This test is not met unless it appears ‘reasonably probable’ the defendant would have achieved a more favorable result had the error not occurred. (People v. Watson (1956) 46 Cal.2d 818, 836.)” (People v. Breverman, supra, 19 Cal.4th at pp. 149, 178.)
The prosecution presented evidence that appellant was in possession of cocaine base when he was strip searched following his arrest. The evidence as to whether he possessed the narcotics for personal use, or for sale, was conflicting. Appellant admitted that he smokes rock cocaine. He denied selling cocaine. Michael Williams testified that appellant supplied him with cocaine; sometimes for free, and other times in exchange for performing chores. Robin C. testified that she smoked cocaine with appellant and that he gave it to her rather than selling it to her. She also testified she saw appellant sell cocaine “a lot, ” outside his house, or at the buyer’s house.
A month before appellant’s arrest, Los Angeles Police Officer Severns saw appellant engage in a hand-to-hand drug transaction. The buyer was stopped after he left appellant’s house and was found to be in possession of several pieces of cocaine base and a cocaine pipe. No drugs or drug paraphernalia were found in a search of appellant’s house after his arrest. When arrested, appellant was not in possession of a cocaine pipe or drug paraphernalia. The jury also heard testimony by the narcotics expert that a person who possessed fourteen $1 bills, no drug paraphernalia, and 10 individual rocks of cocaine “most likely” possessed the narcotics for sale.
The evidence as to whether the 10 rocks of cocaine were individually wrapped within the baggie was in conflict. Officer Sarno testified that he recovered 10 individually wrapped off-white solids resembling rock cocaine in a baggie. He turned the evidence over to Detective Zolezzi for booking.
Detective Zolezzi was asked whether the 10 rocks were individually wrapped in plastic. After looking at the photograph, People’s exhibit 12, Detective Zolezzi testified: “No, they were not.” The prosecutor asked whether it would refresh the officer’s recollection to look at his report. Detective Zolezzi answered: “I didn’t indicate that they each were individually wrapped in my report.” On recross-examination, Detective Zolezzi confirmed that the 10 solid pieces he counted were not individually wrapped.
The narcotics expert, Officer Severns, testified that he had never seen the narcotics recovered from appellant. During his testimony he was asked to examine exhibit 12, a photograph which was taken by the criminalist who tested the evidence booked by Detective Zolezzi after it was taken from appellant. Officer Severns described exhibit 12A as depicting 10 pieces of cocaine placed inside plastic, twisted and tied in a small knot on top and all placed inside of a sandwich bag, which is typical of how sellers carry their product. Typically, if someone would purchase as a user, they would have the individual rocks without the larger packaging around it. Officer Severns said that looking at the photograph, some of the knots on top of the smaller plastic bindles appeared to be white, similar to cocaine, “[s]o it’s kind of hard to distinguish without really looking at it in great detail that some of that is the cocaine and some of it is actually the knot in [sic] which I described.”
There was substantial evidence that appellant used cocaine with Robin C. In addition, Officer Severns opined that it is not uncommon for a long-term cocaine addict to use the amount of cocaine found on appellant in a single day.
On this record, it is reasonably probable that the omission of the instruction on the lesser included offense of possession of cocaine base affected the outcome of the trial. In light of the conflicting evidence as to whether or not the cocaine rocks were individually wrapped, the jury could reasonably have concluded that appellant was guilty only of simple possession rather than possession for sale. It was for the jury to decide. (See People v. Burns (2009) 172 Cal.App.4th 1251, 1258.) We reverse the conviction.
DISPOSITION
The conviction for possession of cocaine base for sale is reversed and the cause remanded to the superior court with directions to enter a judgment of guilty on simple possession of cocaine base if the prosecutor consents to forgo prosecuting appellant for possession for sale of cocaine base; or in the alternative, to set the cause for retrial on this count if the prosecutor does not so consent. (See People v. Woods (1991) 226 Cal.App.3d 1037, 1059.) In all other respects the judgment is affirmed.
We concur: WILLHITE, J., MANELLA, J.