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People v. Spence

Court of Appeals of California, Fourth District, Division Three.
Nov 13, 2003
No. G031730 (Cal. Ct. App. Nov. 13, 2003)

Opinion

G031730.

11-13-2003

THE PEOPLE, Plaintiff and Respondent, v. LINDA SUE SPENCE, Defendant and Appellant.

Leonard J. Klaif, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Gil P. Gonzalez and Ronald A. Jakob, Deputy Attorneys General, for Plaintiff and Respondent.


In 2002, police officers served a search warrant on Linda Sue Spence and in her bedroom found several small bags of methamphetamine, a glass pipe, a digital gram scale, a pager, and a notebook containing various names and dollar amounts consistent with pay/owe sheets used by drug dealers. When the police searched Spence, they found she had a small plastic bag of methamphetamine hidden under her bra. Spence was charged with and found guilty of possessing a controlled substance for the purpose of sale in violation of Health and Safety Code section 11378 and possession of a controlled substance in violation of section 11377. The court placed Spence on three years of formal probation and one of the conditions of probation was to serve 180 days in the county jail.

In the record there appears to be no dispute regarding the validity of the search warrant or the scope of the subsequent search.

All further statutory references are to the Health and Safety Code.

On appeal, Spence maintains her conviction for simple possession must be dismissed because it is a lesser included offense of her other conviction (possession for sale). The Attorney General agrees. They are right.

It appears from the record that the simple possession count was originally intended to address the bag of methamphetamine found in Spences bra. However, during trial the prosecutions case strategy changed after a police officer opined that all the baggies of drugs found (including the one hidden in Spences bra) were possessed for the purpose of sale. Indeed, in closing argument the prosecutor focused on that testimony stating, "Detective Placentia was asked about the fact that she possessed a certain amount of methamphetamine within her bra, in and of itself, and would that, in and of itself, indicate just straight possession. He said if thats all we had, sure it would, but in totality, with all the other evidence, he said its possessed for sale, based on everything else." The prosecutor emphasized that the baggy found in Spences bra was the same color and size as the other baggies found in the room.

In light of the above, Spences conviction for simple possession of methamphetamine must be reversed "because it is necessarily included in the greater offense of possessing the same substance for sale based on the same evidence. [Citations.]" (People v. Oldham (2000) 81 Cal.App.4th 1, 16; People v. Magana (1990) 218 Cal.App.3d 951, 954.)

Disposition

The judgment as to count two for simple possession of methamphetamine is reversed. The trial court is directed to prepare a new order granting probation reflecting such reversal. In other respects, the judgment is affirmed.

WE CONCUR: RYLAARSDAM, ACTING P. J., and BEDSWORTH, J.


Summaries of

People v. Spence

Court of Appeals of California, Fourth District, Division Three.
Nov 13, 2003
No. G031730 (Cal. Ct. App. Nov. 13, 2003)
Case details for

People v. Spence

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. LINDA SUE SPENCE, Defendant and…

Court:Court of Appeals of California, Fourth District, Division Three.

Date published: Nov 13, 2003

Citations

No. G031730 (Cal. Ct. App. Nov. 13, 2003)