Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. C152116
RIVERA, J.
Defendant Guy Wade appeals a judgment entered upon a jury verdict finding him guilty of a violation of Health and Safety Code section 11352, subdivision (a). The evidence at trial showed that he had sold cocaine to an undercover police officer. Defendant’s sole contention on appeal is that the trial court erred in instructing the jury. We affirm.
I. BACKGROUND
On February 2, 2006, two Oakland police officers, Leo Sanchez and Frank Rojas, carried out a “buy-bust” operation along San Pablo Avenue. Sanchez saw defendant standing near a liquor store. He walked toward defendant and said, “Hey, who has got it out here,” which he explained meant he wanted to know who would sell him narcotics. Defendant replied, “Right here, partner. I got you.” They walked down San Pablo together, and defendant told Sanchez, “Give me your money.” Sanchez gave defendant $15 in cash. Defendant told Sanchez to wait, and went to a nearby gate and spoke briefly with two other men. Defendant returned to Sanchez and gave him three rocks of cocaine, which were later found to weigh .13 grams, .09 grams, and .06 grams, respectively. An officer who searched defendant found in his pocket marked currency that had been provided to Sanchez before the operation.
Sanchez explained that crack cocaine was usually sold in increments of $10, $20, or $25.
By the time of trial, the crack cocaine was broken up into many fragments.
II. DISCUSSION
Defendant contends the trial court erred by failing to instruct the jury that he was not guilty of transportation of a controlled substance unless the drugs were in a usable quantity. The information alleged that defendant “did unlawfully transport, import into the State of California, sell, furnish, administer, and give away, and offer to transport, import into the State of California, sell, furnish, administer, and give away, and attempt to import into the State of California and transport a controlled substance, to wit: COCAINE BASE.” The jury found defendant guilty “as charged in Count One of the Information.”
The trial court instructed the jury pursuant to CALJIC No. 12.02 as follows: “Defendant is accused in the information of having violated section 11352 of the Health and Safety Code, a crime. [¶] Every person who transports, sells, furnishes, administers, or gives away cocaine base, a controlled substance, is guilty of a violation of Health and Safety Code [section] 11352, a crime. [¶] Sale means any exchange of cocaine base for cash, favor, services, goods or other non-cash benefits. [¶] In order to prove this crime, each of the following elements must be proved: [¶] 1. A person transported, sold, furnished, administered or gave away cocaine base, a controlled substance; and [¶] 2. That person knew of its presence and nature as a controlled substance.”
As defendant points out, “ ‘[t]ransportation of a controlled substance is established by carrying or conveying a usable quantity of a controlled substance with knowledge of its presence and illegal character.’ ” (People v. Ormiston (2003) 105 Cal.App.4th 676, 682; see also People v. Emmal (1998) 68 Cal.App.4th 1313, 1316.) A conviction of sale of a controlled substance, however, does not require proof of possession of a usable quantity. (People v. Peregrina-Larios (1994) 22 Cal.App.4th 1522, 1524.)
It is true that the information alleged defendant had not only sold, but also transported, furnished, administered, and given away cocaine. However, the evidence, the prosecutor’s closing argument, and the instructions make clear that the basis of the charge against defendant—and of the conviction—was the sale of cocaine to Sanchez. Sanchez testified that he gave defendant money and defendant returned with cocaine. Marked bills that Sanchez had given him were found in defendant’s clothing. The prosecutor told the jury: “There’s only one charge here, nothing to be confused about. He’s charged with the act of the sale. And from the moment, as the law defines, money or any kind of other favor is exchanged for crack cocaine, that is a sale.” The defense did not contend that defendant had transported an unusable quantity of cocaine but had not sold it to Sanchez. In the circumstances, we see neither error nor prejudice in the trial court’s failure to instruct the jury that defendant must have possessed a usable quantity of cocaine to be convicted of transporting it.
III. DISPOSITION
The judgment is affirmed.
We concur: REARDON, Acting P. J. SEPULVEDA, J.