People v. Cortez, Cr. F003567

CourtCalifornia Court of Appeals
Writing for the CourtGEO. A. BROWN
Citation166 Cal.App.3d 994,212 Cal.Rptr. 692
PartiesThe PEOPLE, Plaintiff and Respondent, v. Jose Modesto CORTEZ, Defendant and Appellant.
Decision Date15 April 1985
Docket NumberCr. F003567

Page 692

212 Cal.Rptr. 692
166 Cal.App.3d 994
The PEOPLE, Plaintiff and Respondent,
v.
Jose Modesto CORTEZ, Defendant and Appellant.
Cr. F003567.
Court of Appeal, Fifth District, California.
April 15, 1985.
Certified for Partial Publication. *
Review Denied Aug. 1, 1985. **.

Page 693

[166 Cal.App.3d 996] Eric L. Henrikson, under appointment by the Court of Appeal, Oakland, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Eddie T. Keller and Jane N. Kirkland, Deputy Attys. Gen., Sacramento, for plaintiff and respondent.

166 Cal.App.3d 997

OPINION

GEO. A. BROWN, Presiding Justice.

Appellant, Jose Modesto Cortez, appeals from a judgment entered upon a jury verdict finding him guilty of possession of heroin (HEALTH & SAF.CODE, § 11350)1, transportation of heroin ( § 11352), and being under the influence of heroin, a misdemeanor ( § 11550). He was sentenced to the four-year midterm on the transportation count, and imposition of sentence on the possession count was stayed pursuant to Penal Code section 654. A one-year concurrent term in the county jail was imposed for being under the influence of heroin.

Appellant's complaints deal with the transportation count.

FACTS

On October 7, 1983, Merced Police Officer Richard Rentfrow heard the sound of an automobile accident. Officer Rentfrow quickly responded to the scene of the accident, about one block away, and shortly thereafter was joined by Officer Ray Zarate.

Upon arrival, Rentfrow observed that the driver of one vehicle, a blue Plymouth, had already left the scene of the accident on foot. The passenger in the right front seat of the Plymouth (appellant) was just emerging from the car when Rentfrow arrived. Appellant began to walk away from the car, and Rentfrow called for him to stop. Appellant turned and faced Officer Rentfrow and then took four or five steps to the side while maintaining eye contact with Rentfrow. Appellant then stopped by some shrubbery, put his right hand inside the waistband of his pants, pulled out an object, and threw it into the bushes. Rentfrow retrieved a metal vial from the bushes, and later it was found to contain 1.05 grams of heroin. Appellant appeared to be under the influence of heroin. Later tests confirmed this observation.

DISCUSSION
PART I

Appellant argues that section 11352 (transportation of heroin) should not prohibit the transportation of small amounts of heroin for personal use. As appellant acknowledges, our Supreme Court in People v. Rogers (1971) 5 Cal.3d 129, 95 Cal.Rptr. 601, 486 P.2d 129 has spoken to this issue and held contrary to appellant's contention. The court in Rogers stated:

[166 Cal.App.3d 998] "Nor can we agree with defendant's further contention that the offense of illegal transportation requires a specific intent to transport contraband for the purpose of sale or distribution, rather than personal use. Neither the word 'transport,' the defining terms 'carry,' 'convey,' or 'conceal,' nor section 11531 read in its entirety, suggests that the offense is limited to a particular purpose or purposes.

"...

"... [I]n the absence of any legislative intent to the contrary, we conclude that section 11531 requires only a knowing transportation of marijuana, whether for personal use, sale, distribution or otherwise." (Id., at pp. 134, 137, 95 Cal.Rptr. 601, 486 P.2d 129.)

We are bound by that decision. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 20 Cal.Rptr. 321, 369 P.2d 937.) Any change must be made by the Supreme Court.

PART II

Next appellant urges that the court had a sua sponte duty to instruct the jury on the meaning of "transports" as used in section 11352. We disagree.

Page 694

Although the trial court has a duty to instruct sua sponte as to those principles of law openly and closely associated with the case, it has no duty, absent a request, to define words and phrases when the terms used in the instruction given do not have a technical meaning peculiar to the law but are commonly understood by those familiar with the English language. (People v. Kimbrel (1981) 120 Cal.App.3d 869, 872, 174 Cal.Rptr. 816.) In Kimbrel, the court held "great bodily injury" did not require definition. Similarly, in People v. Anderson (1966) 64 Cal.2d 633, 639-640, 51 Cal.Rptr. 238, 414 P.2d 366, it was held that "force" and "fear" as used in the definition of the offense of robbery do not have technical meanings. (See Witkin, Cal.Criminal Procedure (1963) § 481, p. 487.) Likewise, in People v. Bill (1934) 140 Cal.App. 389, 397, 35 P.2d 645, the court held that "possession" did not have to be defined because it was "well understood by all persons of average intelligence."

In People v. Kilborn (1970) 7 Cal.App.3d 998, 87 Cal.Rptr. 189, a case involving a conviction for violation of section 11912 (transportation of a restricted dangerous drug), the court stated, "[t]o transport means to carry or convey from one place to another" (id., at p. 1002, 87 Cal.Rptr. 189), and "[t]he crux of the crime of transporting is movement of the contraband from one [166 Cal.App.3d 999] place to another." (Id., at p. 1003, 87 Cal.Rptr. 189; see also, People v. One 1941 Cadillac Club Coupe (1944) 63 Cal.App.2d 418, 421, 147 P.2d 49.) An identical definition is found in Black's Law Dictionary (4th ed.) at page 1344. Similarly, the American Heritage Dictionary (1969 ed.), at page 1365, defines the word "transport" simply as "to convey from one place to another; convey." As so defined, it is manifest that the word "transport" has no technical meaning but is used in the sense as it is commonly understood.

We...

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43 practice notes
  • People v. Petronella, G044628
    • United States
    • California Court of Appeals
    • October 23, 2013
    ...violating the former statute is not similarly situated to one who is convicted of violating the latter statute. People v. Cortez (1985) 166 Cal.App.3d 994, 212 Cal.Rptr. 692 presents an analogous circumstance. A defendant convicted of transporting heroin argued it was “ ‘a violation of equa......
  • Gomez v. Superior Court, No. S118489.
    • United States
    • United States State Supreme Court (California)
    • June 16, 2005
    ...Thus, a roller coaster no more "transport[s]" its riders (ibid.) than does a mechanical bull. (See People v. Cortez (1985) 166 Cal.App.3d 994, 998-999, 212 Cal.Rptr. 692 [as "commonly understood," the term "`[t]o transport means to carry or convey from one place to ......
  • People v. Ormiston, No. A094813.
    • United States
    • California Court of Appeals
    • January 22, 2003
    ...their access to sources of supply, as well as to deter occurrences of sales or distributions to others. (People v. Cortez (1985) 166 Cal.App.3d 994, 1001 [212 Cal. Rptr. While movement of methamphetamine by walking does not increase the incidence of traffic accidents to the same extent as t......
  • People v. Arndt, No. G021783
    • United States
    • California Court of Appeals
    • January 12, 1999
    ...and Safety Codesection 11352, subdivision (a) occurs when a person moves contraband from one place to another. (People v. Cortez (1985) 166 Cal.App.3d 994, 998-999, 212 Cal.Rptr. 692.) Witnesses testified they observed defendant driving his car for two to three miles over a period of severa......
  • Request a trial to view additional results
43 cases
  • People v. Petronella, G044628
    • United States
    • California Court of Appeals
    • October 23, 2013
    ...violating the former statute is not similarly situated to one who is convicted of violating the latter statute. People v. Cortez (1985) 166 Cal.App.3d 994, 212 Cal.Rptr. 692 presents an analogous circumstance. A defendant convicted of transporting heroin argued it was “ ‘a violation of equa......
  • Gomez v. Superior Court, No. S118489.
    • United States
    • United States State Supreme Court (California)
    • June 16, 2005
    ...Thus, a roller coaster no more "transport[s]" its riders (ibid.) than does a mechanical bull. (See People v. Cortez (1985) 166 Cal.App.3d 994, 998-999, 212 Cal.Rptr. 692 [as "commonly understood," the term "`[t]o transport means to carry or convey from one place to ......
  • People v. Ormiston, No. A094813.
    • United States
    • California Court of Appeals
    • January 22, 2003
    ...their access to sources of supply, as well as to deter occurrences of sales or distributions to others. (People v. Cortez (1985) 166 Cal.App.3d 994, 1001 [212 Cal. Rptr. While movement of methamphetamine by walking does not increase the incidence of traffic accidents to the same extent as t......
  • People v. Arndt, No. G021783
    • United States
    • California Court of Appeals
    • January 12, 1999
    ...and Safety Codesection 11352, subdivision (a) occurs when a person moves contraband from one place to another. (People v. Cortez (1985) 166 Cal.App.3d 994, 998-999, 212 Cal.Rptr. 692.) Witnesses testified they observed defendant driving his car for two to three miles over a period of severa......
  • Request a trial to view additional results

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