53 Cal.App.3d 21, 2153, People v. Mitchell

Docket Nº:2153
Citation:53 Cal.App.3d 21, 125 Cal.Rptr. 543
Party Name:People v. Mitchell
Case Date:November 14, 1975
Court:California Court of Appeals
 
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Page 21

53 Cal.App.3d 21

125 Cal.Rptr. 543

The PEOPLE, Plaintiff and Appellant,

v.

Claren MITCHELL, Defendant and Respondent.

Cr. 2153.

California Court of Appeal, Fifth District

Nov. 14, 1975.

Page 22

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Arnold O. Overoye, Asst. Atty. Gen., Marjory Winston Parker and Kevin M. Corrington, Deputy Attys. Gen., Sacramento, for plaintiff and appellant.

Page 23

Sprague, Milligan & Beswick, Richard R. Beswick and Stephany J. Wagner, San Bernardino, for defendant and respondent.

OPINION

GEO. A. BROWN, Presiding Justice.

Respondent, Claren Mitchell, was convicted by a jury of violating Health and Safety Code section 11352 (sale of amphetamines). She made a motion for a new trial based upon the single ground that the trial court erred in not instructing Sua sponte on the lesser included offenses of possession of amphetamines (Health & Saf.Code, § 11350) and possession of amphetamines for sale (Health & Saf.Code, § 11351). The motion was granted and the People appeal.

The issue determinative of this appeal is whether there was sufficient evidence of 'possession' by respondent to have required the trial court to instruct on the included offenses. We have concluded that there was not such evidence and reverse the order granting a new trial.

On September 21, 1973, Tulare County Deputy Sheriff Frank Smith was an undercover officer working the drug detail. Respondent, not being aware he was so employed, asked Smith to buy some 'whites' from her stepfather, one Donald Jacobs. Smith and respondent went together to Jacobs' residence. Respondent said she wanted to speak to Jacobs first, meaning she wanted to open the conversation. In Smith's presence she told Jacobs that 'Frank would like to buy some whites from you.' No conversation between respondent and Jacobs was held outside the presence of Smith. Jacobs asked Smith 'how many do you want.' Smith replied 'a dime bag,' meaning $10 worth. Jacobs told them to wait and went alone to some other part of the house and returned after a few moments with a bag of 'whites' (amphetamine pills). Smith gave him $10. The pills were delivered to Smith, and he and respondent then left Jacobs' residence together. Respondent never had physical possession of the pills.

Respondent did not testify, but she called Jacobs as a witness. Jacobs testified that...

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