People v. Eastman

• Decision Date: 17 February 1993
• Docket Number: No. E010412,E010412
• Citation: 13 Cal.App.4th 668,16 Cal.Rptr.2d 608
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Mark Allen EASTMAN, Defendant and Appellant.

Page 608

16 Cal.Rptr.2d 608

13 Cal.App.4th 668

PEOPLE of the State of California, Plaintiff and Respondent, v. Mark Allen EASTMAN, Defendant and Appellant.

No. E010412.

Court of Appeal, Fourth District, Division 2, California.

Feb. 17, 1993.

Review Denied May 13, 1993.

Philip A. Zywiciel, Anaheim, under appointment by the Court of Appeal, for defendant and appellant

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Gary W. Schons, Sr. Asst. Atty. Gen., and Esteban Hernandez, Supervising Deputy Atty. Gen., for plaintiff and respondent.

OPINION

DABNEY, Associate Justice.

A jury convicted defendant and appellant Mark Allen Eastman of transportation of a controlled substance--in this case, methamphetamine. (Health & Saf.Code, § 11379, subd. (a).) ¹ The jury returned a verdict of not guilty on a charge of possessing the methamphetamine for sale. (§ 11378.) Appellant was placed on probation and ordered to serve 210 days in the county jail, with credit for 18 days served.

On appeal, Eastman asserts that the jury was incorrectly instructed concerning the meaning of the word "transportation," as used in section 11379, in that the term must be construed to imply an intent, at the end of the transportation, to transfer possession. He also asserts that the evidence was not sufficient to support the finding that he personally possessed and transported the contraband. Finally, he argues that he should be credited with an appropriate amount of presentence conduct credit pursuant to Penal Code section 4019, subdivision (a)(2). We agree with the last contention, but otherwise affirm the judgment.

STATEMENT OF FACTS

Deputy Timothy Smith stopped appellant for speeding about 12:30 a.m. Appellant was the only occupant of the vehicle, a late model red Chevrolet pick-up truck.

While Deputy Smith was asking appellant for his license and car registration (appellant had no license), he noticed that appellant's right hand was out of sight underneath the seat, next to his right thigh; appellant was not, however, bent over. Appellant complied with the deputy's request to bring his hand into view.

Appellant then got out of the truck and Deputy Smith noticed a bulge under his clothing at the small of his back, towards which appellant was reaching. Deputy Smith ordered him to stop, and removed the object, which proved to be a buck knife with a four-inch blade.

Appellant acquiesced in the deputy's request to search the truck, remarking "It's not my truck. Sure, go ahead and search it." The deputy found a small white pill bottle directly under the seat in the area where appellant's hand had been briefly concealed. Inside the bottle were five baggies containing a white powder. Two were later tested by a criminalist, who testified that they contained, respectively 2.84 and 1.58 grams of methamphetamine.

After Deputy Smith arrested appellant, appellant spontaneously stated "The speed's not mine. I use speed, but I didn't have any speed...." He said that he had borrowed the truck from a friend; it was later found to be registered to one Barry Leon Norton. The deputy further testified that when he first approached appellant on the traffic stop, appellant appeared "extremely agitated and fidgety," far beyond that usual for a person stopped for a mere traffic violation.

Sergeant Harvey Lorett testified that he had stopped appellant--or otherwise "came in contact" with him--at approximately 2:00 a.m. two weeks before his arrest. At that time, appellant was driving a late model pick-up truck which Sergeant Lorett recalled as being blue. ² That truck was registered to Barry Norton.

There was testimony that the street value of the drugs in the vehicle ranged from $800 to $1,200.

Michael Gibbons testified for the defense, and stated that appellant and Barry Norton were friends of long standing, and lived together on and off. He described Norton's red pick-up truck as virtually a "community vehicle," available for use not only by appellant but by anyone else sharing the apartment; indeed, he indicated that the keys were generally available for any of Norton's friends. He testified that up to 20 people used the truck at various times. He further testified that on the night of Eastman's arrest, he had met Eastman and Norton at a bowling alley about 11:30 p.m. The three left together, and appellant drove off in the red truck belonging to Norton.

Finally, Gibbons testified that Norton had disappeared--in fact, had jumped bail posted by Gibbons--and at that time whereabouts were unknown. ³ Norton's unavailability was confirmed by a private investigator who had attempted to subpoena him.

Appellant testified in his own behalf. He testified that, after meeting Norton and Michael Gibbons at the bowling alley, Norton asked him to drive the truck home. He reiterated that the truck was available for use by Norton's friends, and stated that he drove it about once a week. He denied having made any gestures or reaching motions under the seat. He explained that he carried a knife to "humor" a friend who gave it to him (who was also at the bowling alley that night), and confirmed that he had consented to Deputy Smith's search of the car. He denied that he had said "I use speed, but that's not my speed," or words to that effect, to the deputy, and denied knowledge of the presence of the methamphetamine in the truck.

DISCUSSION

A.

The jury was instructed with CALJIC 12.02 (5th ed. 1989 rev.), which informed them generally that the elements of a violation of section 11379, subdivision (a), were 1) that a person transported a controlled substance, and 2) that the person had knowledge of the presence and the nature of the controlled substance. Appellant, however, asserts that the trial court had a sua sponte duty to define the term "transport" or "transportation."

The trial court has no duty, in the absence of a request (the record reflects none here) to instruct on words in common usage. "When a term is commonly understood by those familiar with the English language and is not used in a technical sense peculiar to the law, an instruction as to its meaning is not required in the absence of a request." (People v. Williams (1988) 45 Cal.3d 1268, 1314, 248 Cal.Rptr. 834, 756 P.2d 221.) Thus, "conspiracy" need not, as a rule, be defined (Id., at pp. 1314-1315); nor need the court explain the meaning of a term such as "making friends," when used in the context of facilitating lewd conduct with a child. (People v. Thompson (1988) 205 Cal.App.3d 871, 883, 252 Cal.Rptr. 698.)

At first blush, "transport" and "transportation" appear to be words commonly understood and of a plain, non-technical meaning. But appellant argues that section 11379 does use the word "transport" in a technical sense, and that the statute excludes transportation which is incidental to personal use. ⁴ He recognizes that case law is against him, but urges us to reexamine the question.

In People v. Rogers (1971) 5 Cal.3d 129, 95 Cal.Rptr. 601, 486 P.2d 129, the court expressly rejected the position taken by appellant. "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 ... had the Legislature sought to restrict the offense of transportation to situations involving sale or distribution, it could easily have so provided." (Ibid., at pp. 134-135, 95 Cal.Rptr. 601, 486 P.2d 129.)

As appellant concedes, we are customarily bound to follow the precedents of the Supreme Court. "Otherwise, the doctrine of stare decisis makes no sense.... Courts exercising inferior jurisdiction must accept the law declared by courts of superior jurisdiction. It is not their function to attempt to overrule decisions of a higher court." (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, 20 Cal.Rptr. 321, 369 P.2d 937.) He insists, however, that the decision in Rogers must be disregarded because it rests on flawed reasoning, and that subsequent legislative changes indicate that it no longer represents the law.

We reject his first contention out of hand; the language of Auto Equity Sales, Inc., supra, makes it clear that we may not substitute our judgment and analysis of prior precedent and the legislative intent for that of the court which decided Rogers. Thus, in People v. Greenwood (1986) 182 Cal.App.3d 729, 734, 227 Cal.Rptr. 539, ⁵ the court refused to depart from the existing state Supreme Court precedent on trash searches, commenting that "... reexamination must be undertaken by our state Supreme Court. It is not this court's place to question the pronouncements of our state Supreme Court." For this reason we do not consider further appellant's assault on the specific reasoning and cases cited by the Rogers court. ⁶

Appellant's next argument is that subsequent legislation has invalidated the result in Rogers. Where an issue of law has been affected by later legislation, the changes may lead the highest court of a jurisdiction to overrule an earlier decision. (See e.g., People v. Valentine (1946) 28 Cal.2d 121, 144, 169 P.2d 1, in which the court relied on the 1872 overhaul of penal law to support its rejection of earlier cases on the issue of provocation sufficient to reduce murder to manslaughter.) It is a closer question whether a lower court can rely on the legislation to authorize departure from precedent established by a higher court. In some cases, of course, the altered intent of the legislature is so clear that the lower court cannot reasonably cling to precedents based on statutes which have been completely rewritten. (See Lane & Pyron, Inc. v. Gibbs (1968) 266 Cal.App.2d 61, 66, 71 Cal.Rptr. 817.) We will accept arguendo that we have the power to scrutinize the Rogers holding in light of later legislation, but, having done so, we conclude that no reason can be found for ignoring its authority....