Opinion
NOT TO BE PUBLISHED
Super. Ct. No. CRF04-7486
DAVIS, P.J.
A jury convicted defendant Jessie Roy, Jr., of possession of a controlled substance (phenobarbital), transportation of that controlled substance, possession of controlled substance paraphernalia, and possession of not more than 28.5 grams of marijuana. (Health & Saf. Code, §§ 11377, subd. (a), 11379, subd. (a), 11364 & 11357, subd. (b), respectively.)
On appeal, defendant contends: (1) the evidence found on him should have been suppressed; (2) the evidence was insufficient that he transported phenobarbital; (3) the trial court erred prejudicially in instructing the jury on the transportation charge; and (4) the prosecution failed to disclose the identity of a key material witness in violation of Brady v. Maryland (1963) 373 U.S. 83 [10 L.Ed.2d 215] (Brady). We shall correct a minor clerical error in the abstract of judgment and affirm.
BACKGROUND
At approximately 5:45 p.m. on December 3, 2004, a police officer was dispatched to respond to an anonymous report of three males smoking a controlled substance at an apartment complex playground on Madrone Avenue in West Sacramento. The officer was familiar with the described complex as he had previously received calls reporting drug activity and drinking in public in the area. The dispatcher described the suspects as three Black males, one heavyset and another thin and bald. One individual wore a green jacket, one wore a black jacket, and the third wore dark clothing. The officer arrived on the scene within approximately three minutes and observed two males who matched the general description given over dispatch. As the officer approached the playground area in his patrol car, the two individuals noticed the car and “immediately began,” as the officer testified, “walking at a swift pace slash running” toward the rear of the apartment complex. The officer radioed for more units and exited the car.
The facts are drawn from trial testimony and evidence, as well as from the hearing on the motion to suppress evidence. Any pertinent differences between the two sources are noted.
The officer ran behind the two individuals and yelled, “West Sacramento Police, stop.” Defendant stopped, but the other individual continued to run away. The officer estimated that defendant had moved approximately 75 yards from his initial spot to where he was stopped. When the officer approached defendant, he observed that defendant’s eyes were bloodshot, his speech was slurred, and he appeared unsteady on his feet. The officer also smelled a strong odor of alcohol and marijuana on defendant.
In the motion to suppress hearing, the officer testified that defendant ran about 60 feet before he was stopped.
Defendant’s hands were underneath a large, puffy jacket when the officer approached him. The officer ordered defendant to show his hands, but defendant did not comply and looked around in other directions. The officer again ordered defendant to show his hands and pointed his gun at defendant, but defendant still did not obey. Then the officer ordered defendant to the ground with his hands visible, and defendant lay down with his hands out from under his coat. The officer handcuffed defendant and asked if he had had anything to drink. Defendant replied that he had some beer. The officer informed defendant that he had received a call about individuals smoking marijuana at the playground, and defendant matched the caller’s description. Defendant then told the officer that he had smoked marijuana and “meth” (methamphetamine). When the officer asked defendant if had any drugs on his person, defendant admitted that he had some marijuana on him. The officer then searched the pockets of defendant’s pants and found marijuana, a plastic pill bottle containing 13 pills, and two glass pipes. Eight of the pills found were later determined to be phenobarbital. The remaining five pills were not found to be illegal substances.
Defendant moved to suppress the evidence the officer found on him. Defendant principally argued that the officer did not have reasonable suspicion to initially detain him. The trial court denied defendant’s motion to suppress, finding that the officer had reasonable suspicion to detain defendant based on the corroboration of the anonymous tip and defendant “walking away” or “immediately attempt[ing] to flee” from the officer, and that no infringement occurred after the initial detention.
After being found guilty on all counts, defendant moved for a new trial based on newly discovered evidence and prosecutorial violations of Brady, supra, 373 U.S. 83 (failing to disclose material exculpatory evidence). Defendant later withdrew his motion for new trial, and the trial court dismissed one of defendant’s two alleged prior strike convictions. Defendant received a seven-year term.
DISCUSSION
1. Lawfulness of Warrantless Search
Defendant argues on appeal that although the responding officer had reasonable suspicion to detain him and conduct a detention search (pat-down) for weapons, the officer exceeded the permissible scope of a detention search by removing objects from defendant’s pockets without first conducting a pat-down search and without having probable cause. Defendant relies on a well-established line of authority which holds that a detention search based on reasonable suspicion must be limited to a protective pat-down search of the outer garments. (Minnesota v. Dickerson (1993) 508 U.S. 366 [124 L.Ed.2d 334]; Sibron v. New York (1968) 392 U.S. 40 [20 L.Ed.2d 917]; Kaplan v. Superior Court (1971) 6 Cal.3d 150; People v. Collins (1970) 1 Cal.3d 658; People v. Martines (1964) 228 Cal.App.2d 245.) If the detention exceeds the scope of a permissible stop, the detention becomes a de facto arrest requiring probable cause. (In re Justin B. (1999) 69 Cal.App.4th 879, 887.)
However, if an officer possesses probable cause to arrest an individual, it is also well-settled that he may conduct a more thorough search. (See, e.g., People v. Simon (1955) 45 Cal.2d 645, 648-649; People v. Valdez (1987) 196 Cal.App.3d 799, 806 (Valdez).) The trial court here found that the responding officer had reasonable suspicion to detain defendant, and found no “infringement whatsoever” after the detention. Defendant argues that the officer did not have probable cause to arrest him before searching the interior of his pockets. While we agree that probable cause was necessary to justify a search of defendant’s pockets, we find the facts sufficiently establish probable cause to arrest defendant, and the officer therefore properly conducted a search incident to arrest.
As noted in Valdez, an officer may search an individual’s pockets if he has probable cause to arrest the individual “before the entry into the pocket.” (Valdez, supra, 196 Cal.App.3d at p. 806, italics in original.) If an officer has probable cause to arrest, then the warrantless search is justified as a search incident to arrest. (Ibid.; People v. Dibb (1995) 37 Cal.App.4th 832, 835-836.) A court may not suppress evidence obtained as a result of a de facto arrest if the arrest is supported by probable cause. (People v. Gomez (2004) 117 Cal.App.4th 531, 538, citing Dunaway v. New York (1979) 442 U.S. 200, 212 [60 L.Ed.2d 824].)
Here, the search was properly incident to an arrest for purposes of the Fourth Amendment. Before he searched defendant, the officer had probable cause to arrest him for being under the influence of a controlled substance and for possessing marijuana in violation, respectively, of Health and Safety Code sections 11550, subdivision (a), and 11357, subdivision (b). The following facts gave rise to probable cause to believe that defendant had committed these offenses: the anonymous tip of a person matching defendant’s description smoking contraband after nightfall in an area with a known history of drug activity; defendant’s flight and that of his companion upon observing the patrol car; the companion’s refusal to stop as ordered; defendant’s red eyes, slurred speech, and unsteadiness; the strong odor of marijuana coming from defendant; defendant’s refusal, twice, to show the officer his concealed hands; and defendant’s admissions that he “smoked some marijuana and some meth” and possessed marijuana. Therefore, the officer was authorized to search the contents of defendant’s pockets incident to arrest. Correspondingly, no Fourth Amendment violation occurred and the motion to suppress was properly denied.
2. Sufficiency of the Evidence to Support Transportation Conviction
Defendant argues that the evidence is insufficient to support his conviction for transportation of a controlled substance (phenobarbital). Defendant urges this court to conclude that there is no violation of the transportation offense of Health and Safety Code section 11379, subdivision (a) where a defendant’s movement is incidental to his possession of the drugs, and the conduct does not facilitate trafficking, distribution, or personal use of the drugs. We decline to address the merits of defendant’s proposed limitation because we find that defendant’s movement here facilitated his personal use of the drugs.
The California Supreme Court has interpreted the controlled substance transportation statutes to include transportation solely for personal use. (People v. Rogers (1971) 5 Cal.3d 129, 135.) The high court reasoned that, in the absence of any legislative intent to the contrary, “a more severe penalty for those who transport drugs may have been deemed appropriate to inhibit the frequency of their own personal use and to restrict their access to sources of supply.” (Id. at pp. 136-137; see also People v. Emmal (1998) 68 Cal.App.4th 1313, 1316.)
In People v. Ormiston (2003) 105 Cal.App.4th 676, the Court of Appeal held that the term “transport” in Health and Safety Code section 11379 encompasses moving controlled substances from one location to another by walking. (Id. at pp. 684-685.) The court ruled that the defendant’s use of foot travel, rather than some other mode of travel, did not negate the element of transportation. (Id. at p. 684.) The court reasoned that the requirement of volitional travel of a controlled substance from one place to another “avoids any unwarranted extension of the statute to restrained minimal movement within a residence or other confined area that does not facilitate trafficking, distribution or personal use of drugs.” (Id. at pp. 684-685.)
Based on the evidence in the present case, a jury could find that defendant was moving contraband from one location to another when he was stopped. Defendant observed the responding officer’s patrol car and moved quickly in the opposite direction. By the time the officer stopped defendant, defendant had jogged approximately 75 yards away. Despite defendant’s argument to the contrary, this movement did in fact facilitate his personal use of drugs. Defendant saw the police car approach and he moved swiftly in the opposite direction to evade police supervision or interaction. This volitional movement was meant, at least in part, to afford defendant an opportunity to continue to possess the drugs for personal use. By purposefully moving to a location further away from the police officer while carrying phenobarbital, defendant was transporting phenobarbital to facilitate his personal use. Therefore, there was sufficient evidence that defendant transported phenobarbital in violation of Health and Safety Code section 11379, subdivision (a).
3. Instructional Error on Transportation Charge
Defendant alleges that the trial court erred prejudicially in instructing the jury by omitting the third element of the transportation offense. (Health & Saf. Code, § 11379, subd. (a).) Using CALJIC No. 12.02, the trial court instructed the jury that the prosecution must prove the following two elements to constitute this offense: (1) defendant transported phenobarbital, a controlled substance; and (2) defendant knew of its presence and nature as a controlled substance. However, the Use Note to CALJIC No. 12.02 states that a trial court must modify the jury instructions for the transportation offense by adding a third element: “‘that the substance (transported, etc.) was in an amount sufficient to be used as a controlled substance.’” (Use Note to CALJIC No. 12.02 (Apr. 2006 ed.) p. 745.)
Although the trial court included the element of usable amount in its instruction regarding the charged offense of possession of phenobarbital, defendant argues that this was insufficient to correct its error regarding the transportation instruction. Defendant claims that this instructional error violated his constitutional rights to a jury verdict and to due process of law. The prosecution admits that the trial court erred in its instruction, but argues that the error was harmless.
Before a court can find a federal constitutional error harmless, “the court must be able to declare a belief that it was harmless beyond a reasonable doubt.” (Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705] (Chapman).) An error is harmless beyond a reasonable doubt if there is no reasonable possibility that the error might have contributed to the conviction. (Id. at p. 23, citing Fahy v. Connecticut (1963) 375 U.S. 85, 86-87 [11 L.Ed.2d 171]; see also Yates v. Evatt (1991) 500 U.S. 391, 403 [114 L.Ed.2d 432].) In People v. Flood (1998) 18 Cal.4th 470 (Flood), the California Supreme Court held that the harmless error analysis enunciated in Chapman applies to an instructional error that omits an element of the offense. (Id. at pp. 502-503.)
At issue in Flood was the offense of evading a vehicle operated by a pursuing peace officer resulting in serious bodily injury. The trial court in Flood instructed the jury that the pursuers were “peace officers,” in effect removing this element of the offense from the jury’s consideration. (Id. at p. 475.) The high court in Flood concluded that this instructional error was harmless under the Chapman standard because the instruction was based upon overwhelming and uncontradicted evidence, and defendant had not attempted, either in the trial court or on appeal, to argue that the pursuers were not peace officers. (Id. at p. 503.)
Likewise, here, there is no reasonable possibility that the instructional error of omitting the element of usable amount might have contributed to defendant’s transportation conviction. The prosecution presented uncontradicted evidence that defendant possessed eight pills embossed with markings identical to those found on phenobarbital pills. The defense did not dispute whether these pills were of a sufficient quantity to be used as a controlled substance. Instead, the defense focused on whether the pills were actually phenobarbital. Furthermore, the usable amount element can be established without demonstrating the amount of controlled substance needed to produce a narcotic effect or the purity of the substance. (See People v. Rubacalba (1993) 6 Cal.4th 62, 66.)
Additionally, the jurors were instructed on the possession charge that they were required to find that the controlled substance was in an amount sufficient to be used as a controlled substance. The trial court explained that proof of the usable amount of a controlled substance could be established by expert testimony or by evidence that the amount possessed was sufficient to be used in any manner customarily employed by users of the substance. The trial court also instructed the jury to consider the instructions as a whole and each in light of all the others. Finally, the jury found that the prosecution had proved all of the elements of the possession charge, which included the usable amount element. We conclude that the instructional error omitting the usable amount element from the transportation charge was harmless beyond a reasonable doubt.
4. Brady Violation
Defendant also claims that the prosecution failed to disclose the identity of a key material witness, which violated his constitutional right to due process of law. He argues that the prosecution violated the requirements of Brady, supra, 373 U.S. 83 by failing to hand over a police dispatch log until the day of the hearing on the motion to suppress. The dispatch log contained the name of another individual, Cliff Mahoney, who was detained along with defendant by the responding officer, but who turned out to be just a passerby. Defendant claims that Mahoney’s potential testimony was both material and exculpatory in that it contradicted the responding officer’s account of defendant’s detention, and was in the exclusive custody of the government. Defendant presented this claim of Brady error in his motion for new trial, but subsequently withdrew this motion before the trial court could hear the merits of the claim or rule on it.
Certain commonsense conclusions result from defendant’s actions in withdrawing his motion. (See Vogelsang v. Wolpert (1964) 227 Cal.App.2d 102, 129.) A party is deemed to forfeit issues not raised in the trial court because the trial court should be given an opportunity to correct the error or abuse. (People v. Burgener (2003) 29 Cal.4th 833, 889; People v. Green (1980) 27 Cal.3d 1, 27.) If a party does not present an issue for the trial court to rule upon, that party may be deemed to have “‘“waived or abandoned it.”’” (People v. Braxton (2004) 34 Cal.4th 798, 813.)
Here, defendant has forfeited his claim of Brady error. By withdrawing his motion for new trial, he never allowed the trial court an opportunity to rule on this issue. Therefore, defendant abandoned this claim and may not present it for the first time on appeal.
DISPOSITION
The judgment is affirmed. There is a minor clerical error in the abstract of judgment. The conviction on count 2 for Health and Safety Code section 11379, subdivision (a), is for transportation of a controlled substance rather than for possession of controlled substance paraphernalia. The trial court is directed to amend the abstract of judgment accordingly and to send a certified copy of the amended abstract to the Department of Corrections and Rehabilitation.
We concur: ROBIE, J., BUTZ, J.