Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kings County No. 08CM0820. Peter M. Schultz, Judge.
Tracy A. Rogers, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Louis M. Vasquez and Sarah J. Jacobs, Deputy Attorneys General, for Plaintiff and Respondent.
Before Vartabedian, Acting P.J., Wiseman, J., and Levy, J.
INTRODUCTION
On June 4, 2008, appellant, Ronal Lee Owens, was charged in an information with felony transportation of methamphetamine (Health & Saf. Code, § 11379, subd. (a), count one), felony possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a), count two), misdemeanor resisting arrest (Pen. Code, § 148, subd. (a)(1), count three), and misdemeanor possession of narcotic paraphernalia (Health & Saf. Code, § 11364, count four). The information alleged two prior prison term enhancements (Pen. Code, § 667.5, subd. (b)).
A jury found appellant guilty of all four counts and found the enhancements true. On October 30, 2008, the trial court sentenced appellant to prison for the upper term of four years on count one and imposed consecutive one-year terms for each prior prison term enhancement. The court stayed appellant’s sentence on count two pursuant to Penal Code section 654. Appellant’s total prison term is six years. Appellant contends that count two is a lesser included offense of count one and the trial court erred in failing to dismiss it. We disagree and will affirm the judgment.
FACTS
On January 26, 2008, at 7:34 p.m., Corcoran Police Officer John Harris was on duty. He wore a uniform and a badge and drove a marked police car. Harris saw a blue Ford Expedition pull into the eastbound lane of traffic directly in front of a white Honda. The driver of the Honda had to apply its brakes to avoid hitting the Expedition. Harris drove around the Honda to make a traffic stop of the Expedition.
Harris activated his red and blue lights to stop the Expedition, which immediately turned west into an alley and stopped. Appellant exited the car and ran away. Harris saw appellant drop a small item on the ground. Harris canvassed the path where appellant ran and specifically searched the area where he saw appellant drop the object. He recovered a small plastic container containing three bags with a crystal-like substance. He also found a coin-sized bag with a substance in it and a smoking device at the scene.
The substance tested positive for 0.42 grams of methamphetamine. According to the criminalist who tested the substance, this is a usable amount of methamphetamine.
Appellant testified asserting that Harris was biased against him. On prior occasions, appellant had run from Harris. Appellant denied having a methamphetamine problem and explained he does not currently use it.
DISCUSSION
Appellant contends his conviction for transportation of methamphetamine must be reversed because the trial court failed to dismiss count two because possession of a controlled substance is a lesser included offense of transportation of a controlled substance.
The California Supreme Court has previously rejected appellant’s argument and determined that one need not possess a substance in order to be found guilty of transporting the substance. Possession is not an “essential element” of transportation and a defendant may be found guilty of transporting drugs even though they are in the “exclusive possession of another.” (People v. Rogers (1971) 5 Cal.3d 129, 134 (Rogers); People v. Watterson (1991) 234 Cal.App.3d 942, 947.)
“Under the accusatory pleading test, a lesser offense is included within the greater charged offense ‘“if the charging allegations of the accusatory pleading include language describing the offense in such a way that if committed as specified the lesser offense is necessarily committed.” [Citation.]’” (People v. Lopez (1998) 19 Cal.4th 282, 288-289.)
Count one of the information charged appellant with transportation of methamphetamine, specifying appellant’s name and the date of the offense, but otherwise only using the words of the statute. (See Health & Saf. Code § 11379, subd. (a).) Count one does not contain any other specific factual allegations and does not state that defendant possessed the drugs. Because, as Rogers held, possession is not necessarily included among the elements of transportation as set forth in the statute, it also is not necessarily included in the offense of transportation as set forth in an information that merely uses the statutory language. Therefore, possession was not a necessarily included offense of transportation under the accusatory pleading test in this case.
Furthermore, under the legal elements test, possession is not a lesser included offense of the greater offense. (See Rogers, supra, 5 Cal.3d 129, 134; People v. Peregrina-Larios (1994) 22 Cal.App.4th 1522, 1523-1524; People v. Watterson, supra, 234 Cal.App.3d 942, 947.) We therefore reject appellant’s legal elements test analysis.
Under the holding set forth in Rogers, transportation of a controlled substance can be committed even though the elements of possession are not present. Drawing his analysis from the law of aiding and abetting, appellant attacks the underlying reasoning of Rogers. He further asserts that Rogers is not stare decisis for issues Rogers has not reached. We disagree with appellant because Rogers held that the elements of the two offenses are not identical. This is the dispositive issue before us on appeal. Although appellant asks this court to reject the holding of Rogers, we cannot do so because we are bound by its holding. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Possession of methamphetamine is not a lesser necessarily included offense of transportation of methamphetamine under either of the applicable tests. As a result, appellant’s conviction in count two for possession of methamphetamine is affirmed.
DISPOSITION
The judgment is affirmed.