People v. Peregrina-Larios — 22 Cal. App. 4th 1522

Majority

p. 1522

[No. G012219.

Fourth Dist., Div. Three.

Feb. 28, 1994.]

THE PEOPLE, Plaintiff and Respondent, v. JESUS PEREGRINA-LARIOS, Defendant and Appellant.

p. 1523

Counsel

Donna S. Davis, under appointment by the Court of Appeal, for Defendant and Appellant.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, and Gary W. Schons, Assistant Attorney General, for Plaintiff and Respondent.

Opinion

of $40 worth of cocaine to an undercover police officer. He had additional cocaine on his person. Convicted of one count of selling cocaine, he now contends the trial court erred in failing to instruct sua sponte on simple possession as a lesser included offense. He also challenges the constitutionality of CALJIC No. 2.90, the standard reasonable doubt instruction. We affirm.

Relying on dicta in People v. Mitchell (1975) 53 Cal.App.3d 21 , 24 [ 125 Cal.Rptr. 543 ] (“ ‘Possession’ offenses are normally included offenses

II

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within the offense of sale of amphetamines”),^[1] Peregrina-Larios first asserts the trial court erred when it failed to instruct sua sponte on simple possession. (Health & Saf. Code, § 11350; see People v. Springfield (1993) 13 Cal.App.4th 1674 , 1679-1680 [ 17 Cal.Rptr.2d 278 ]; 5 Witkin & Epstein, Cal. Criminal Law (2d ed. 1989) Trial, § 2926, pp. 3587-3590.) But, as the Mitchell opinion itself illustrates, simple possession of a controlled substance cannot be a necessarily lesser included offense of selling or offering to sell—although it could be a lesser related offense (see People v. Geiger (1984) 35 Cal.3d 510 [ 199 Cal.Rptr. 45 , 674 P.2d 1303 , 50 A.L.R.4th 1055 ])—because the former crime contains elements a sales offense does not: knowing possession of a usable quantity. (People v. Rubacalba (1993) 6 Cal.4th 62 , 65-66 [ 23 Cal.Rptr.2d 628 , 859 P.2d 708 ].) A conviction for selling controlled substances does not require proof of possession at all, much less possession of a usable quantity. (See People v. Rogers (1971) 5 Cal.3d 129 [ 95 Cal.Rptr. 601 , 486 P.2d 129 ]; People v. Watterson (1991) 234 Cal.App.3d 942 [ 286 Cal.Rptr. 13 ].)

Defendant’s argument also fails for another reason: “It is settled the trial court need not, even if requested, instruct the jury on a lesser and included offense where the evidence establishes if the defendant was guilty at all, he was guilty of the higher offense.” (People v. Ellers (1980) 108 Cal.App.3d 943 , 954 [ 166 Cal.Rptr. 888 ]; see also People v. Bacigalupo (1991) 1 Cal.4th 103 , 127 [ 2 Cal.Rptr.2d 335 , 820 P.2d 559 ].) Here, the uncontradicted evidence was that defendant committed both offenses. He sold a portion of his inventory and had the balance on his person when arrested; under these facts he properly could have been charged and convicted of both sale and possession (or possession for sale). (People v. Watterson, supra, 234 Cal.App.3d at p. 947 [defendant properly convicted of possession for sale and transporting same narcotics]; but see People v. Richardson (1970) 6 Cal.App.3d 70 [85 607].)

Peregrina Lados also attacks the giving of CALJIC No. 2.90, the standard reasonable doubt instruction, in the wake of the United States Supreme Court’s grant of certiorari in Sandoval v. California, certiorari granted September 28, 1993, _ U.S. _ [ 125 L.Ed.2d 789 , 114 S.Ct. 40 ]. We reject his argument under the compulsion of Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450 , 455 [ 20 Cal.Rptr. 321 , 369 P.2d 937 ]. (See People v. Webb (1993) 6 Cal.4th 494 , 531 [ 24 Cal.Rptr.2d 779 , 862 P.2d 779 ]; People v. Jennings (1991) 53 Cal.3d 334 , 385 [ 279 Cal.Rptr. 780 , 807 P.2d 1009 ], cert. den. _ U.S. _ [ 116 L.Ed.2d 462 , 112 S.Ct. 443 ].)

1 In Mitchell the court held lesser included instructions for possession or possession for sale were inappropriate because defendant, who was accused of a sale, did not have dominion and control, i.e., possession, over the amphetamine tablets.

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Judgment affirmed.

Sills, P. J., and Wallin, J., concurred.

Cases cited

People v. Mitchell 53 Cal.App.3d 21 Cal. Ct. App. 1975-11-14 at 24 p. 1523
People v. Springfield 13 Cal.App.4th 1674 Cal. Ct. App. 1993-03-05 at 1679-1680 p. 1524
People v. Geiger 35 Cal.3d 510 Cal. 1984-02-02 p. 1524
People v. Rubacalba 6 Cal.4th 62 Cal. 1993-10-25 at 65-66 p. 1524
People v. Rogers 5 Cal.3d 129 Cal. 1971-06-22 p. 1524
People v. Watterson 234 Cal.App.3d 942 Cal. Ct. App. 1991-09-26 p. 1524
People v. Ellers 108 Cal.App.3d 943 Cal. Ct. App. 1980-08-04 at 954 p. 1524
People v. Bacigalupo 1 Cal.4th 103 Cal. 1991-12-09 at 127 p. 1524
People v. Richardson 6 Cal.App.3d 70 Cal. Ct. App. 1970-03-27 p. 1524
Auto Equity Sales, Inc. v. Superior Court 57 Cal.2d 450 Cal. 1962-03-22 at 455 p. 1524
People v. Webb 6 Cal.4th 494 Cal. 1993-12-07 at 531 p. 1524
People v. Jennings 53 Cal.3d 334 Cal. 1991-04-11 at 385 p. 1524