People v. Magana

• Decision Date: 13 March 1990
• Docket Number: No. D008552,D008552
• Citation: 218 Cal.App.3d 951,267 Cal.Rptr. 414
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Rafael Velasquez MAGANA, Defendant and Appellant.

Page 414

267 Cal.Rptr. 414

218 Cal.App.3d 951

The PEOPLE, Plaintiff and Respondent, v. Rafael Velasquez MAGANA, Defendant and Appellant.

No. D008552.

Court of Appeal, Fourth District, Division 1, California.

March 13, 1990.

As Modified March 28, 1990.

[218 Cal.App.3d 952] Jeffrey J. Stuetz, San Diego, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Richard B. Iglehart, Chief Asst. Atty. Gen., Harley D. Mayfield, Sr. Asst. Atty. Gen., Robert M. Foster and Janelle B. Davis, Deputy Attys. Gen., for plaintiff and respondent.

BENKE, Associate Justice.

Appellant Rafael Velasquez Magana was charged in count one of an information with possession of heroin for sale (HEALTH & SAF.CODE, § 11351)¹, in count two with possession of cocaine for sale (§ 11351) and in count three with possession of cocaine and heroin (§ 11350, subd. (a)). Convicted on all three counts, appellant was sentenced to the upper term of four years on count one and to a concurrent four-year term on count two. The upper term of three years was imposed as to count three but stayed pursuant to Penal Code section 654.

Appellant contends he could not lawfully be convicted of the crime of possession in count three since that crime is a necessarily lesser included offense of that charged in counts one and two, the trial court erred in instructing that an extrajudicial confession should be view with caution and the court erred in instructing that, in the context of evaluating circumstantial evidence as between a reasonable interpretation of the evidence and an unreasonable one, it was the duty of the jury to accept the reasonable interpretation.

I FACTS

A. Prosecution Case

On April 10, 1988, at approximately 8:45 a.m. Deputy Sheriff Robert Luke approached appellant and three other men who were standing on a street in Solana Beach. As he did so he noticed a white bindle about eight to ten inches from appellant's feet. Opening the bindle, the deputy found heroin. Appellant was searched. Two clear plastic baggies containing cocaine and a bindle containing heroin were discovered in his right front pocket. In another pocket the deputies found more cocaine. Appellant also had three $20 bills in his possession. None of the other men were found to possess drugs.

Appellant waived his rights and was asked what the substances were. Appellant stated heroin and cocaine. When asked where he got the contraband, appellant replied he got it from from a man in a blue Mustang. Appellant stated he paid $140 for the drugs.

An expert on the sale of drugs, concluded that based on the facts of the case, the manner in which the drugs were packaged, the amount of drugs found and the absence of tools for using the drugs, the contraband found on or near appellant was being held for sale. The expert testified it was possible the entire amount of drugs found on or near appellant could have been purchased for $140.

B. Defense Case

Appellant testified in his own behalf and stated he bought the drugs the day of his arrest for $140. Appellant paid with two $100 bills and received as change the three $20 bills found on his person. Appellant also testified the bindle of heroin found on the ground was not his. Appellant stated the drugs were for personal use and would last six days.

II DISCUSSION

A. Lesser Included Offense

Appellant argues his conviction for simple possession of a controlled substance as charged in count three should be reversed. He contends simple possession is a necessarily lesser included offense of possession for sale. Since appellant was convicted of possession for sale based on possession of the same contraband supporting the conviction for simple possession, the conviction for the lesser offense must be reversed. (See People v. Moran (1970) 1 Cal.3d 755, 763, 83 Cal.Rptr. 411, 463 P.2d 763.)

The Attorney General suggests reversal is not necessary since conviction for the offense of simple possession could have been based on possession of some of the contraband while conviction of possession for sale could have been based on the possession of the remaining drugs.

While perhaps theoretically true, a serious defect in the People's argument is that the jury was never alerted to the possibility of such a subtle division of the contraband. Consequently we can only presume the convictions for possession for sale and the conviction for simple possession were based on the same evidence.

The conviction for simple possession (count three) is reversed.

B. Instruction on Circumstantial Evidence

Appellant argues the trial court's instructions on the use of circumstantial evidence were fundamentally flawed and requires reversal of his possession for sale convictions.

Appellant notes the trial court instructed the jury concerning circumstantial evidence in the terms of CALJIC Nos. 2.00 (direct and circumstantial evidence--inferences), 2.01 (sufficiency of circumstantial evidence--generally) and 2.02 (sufficiency of circumstantial evidence to prove specific intent). CALJIC No. 2.00 explains that circumstantial evidence is evidence that "if found to be true, proves a fact from which an inference of the existence of another fact may be drawn." An inference in turn is described as "a deduction of fact that may logically and reasonably be drawn from another fact or group of facts established by the evidence."

CALJIC No. 2.01, an instruction generally considered favorable to the defense, ² tells the jury they may not base a finding of guilt on circumstantial evidence "unless the proved circumstances are not only (1) consistent with the theory that the defendant is guilty of the crime, but (2) cannot be reconciled with any other rational conclusion."

After telling the jury that each fact necessary to complete a set of circumstances necessary to establish guilt must be proved beyond a reasonable doubt, the instruction states that if the circumstantial evidence is susceptible of two reasonable interpretations, one of which points to the defendant's guilt and the other to his innocence, it is the jury's duty to adopt that interpretation which points to the defendant's innocence.

It is with the following concluding paragraph that appellant takes issue: "If, on the other hand, one interpretation of such evidence appears to you to be reasonable and the other interpretation to be unreasonable, it would be your duty to accept the reasonable interpretation and reject the unreasonable."

Appellant argues this paragraph negates the presumption of innocence since it allows the jury to convict merely by finding the defense theory of the case to be unreasonable. (CALJIC No. 2.02 dealing with circumstantial evidence of specific intent contains the same paragraph.) Appellant argues that merely because an explanation is unreasonable does not mean it is untrue. Since that is the case, the instruction may compel the jury to reject a defense theory which is unreasonable but yet is true.

We disagree. The correctness of jury instructions is determined from the entire charge of the court and not from a consideration of parts of an instruction or from a particular instruction. (People v....