People v. Montero

• Decision Date: 02 October 2007
• Docket Number: No. C052423.,C052423.
• Citation: 66 Cal.Rptr.3d 668,155 Cal.App.4th 1170
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Vincent MONTERO, Defendant and Appellant.

66 Cal.Rptr.3d 668

155 Cal.App.4th 1170

The PEOPLE, Plaintiff and Respondent, v. Vincent MONTERO, Defendant and Appellant.

No. C052423.

Court of Appeal, Third District.

October 2, 2007.

Certified for Partial Publication^*.

William D. Farber, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, John G. McLean and George M. Hendrickson, Deputy Attorneys General, for Plaintiff and Respondent.

NICHOLSON, Acting P.J.

A jury convicted defendant Vincent Montero of possession of methamphetamine for sale (Health & Saf.Code, § 11378). The trial court also determined that defendant had previously been convicted of a serious felony (first degree burglary) and had served two prison terms. (Pen.Code, §§ 667, subds. (b)-(i), 1170.12, 667.5, subd. (b).)¹ The court sentenced defendant to a state prison term totaling six years: the doubled two-year middle term plus one year for each of the two prior prison terms.

Defendant appeals, alleging the following grounds for reversal:

(1) The use of Judicial Council of California Criminal Jury Instructions (2006-2007), CALCRIM No. 2302, regarding possession for sale omitted essential elements of that crime;

(2) The court erred in failing to give additional instructions in response to the jury's request for clarification on the elements of possession for sale;

(3) The court erred in refusing defendant's proposed pinpoint instructions on constructive possession;

(4) The cumulative effect of instructional errors denied defendant a fair trial (5) Insufficient evidence supported defendant's conviction of possessing methamphetamine for sale; and

(6) Insufficient evidence supported the determination that defendant's prior burglary conviction qualified as a serious felony.

We disagree with each of defendant's contentions and affirm the judgment.

FACTS

Sacramento County sheriffs deputies conducted a parole search of a residence and a detached garage on the property. The residence did not belong to defendant. The door to the garage was slightly opened, and officers could see a large male behind the door. They opened the door and saw two other males in the garage, one of whom was defendant standing toward the rear of the building. The officers directed the men to come out of the garage and get on the ground.

Detective Stephen Buccellato took control of defendant. Buccellato determined defendant was on parole, and he performed a parole search on him. The detective found a small Ziploc bag, about one-inch square, containing .99 grams of crystal methamphetamine in defendant's pocket. He found other identical-sized empty Ziploc bags on defendant. Buccellato also found $483 in cash on defendant, consisting of one $100 bill, 15 $20 bills, three $10 bills, eight five-dollar bills and 13 one-dollar bills.

Inside defendant's wallet, Buccellato found a "pay/owe sheet," 1-1/2 inches square, with the writing, "August 22nd of 005 $40 Jr," "August 23rd," followed by illegible writing, and a dollar sign with no other notation. He found 11 similarly sized blanks sheets of paper on defendant. He also found an ATM card and a bank slip bearing defendant's name and showing a $2,800 disbursement. Buccellato read defendant his rights.

Inside the garage, deputies found drugs and drug paraphernalia. Searching in the rear of the garage where defendant was first seen, deputies located a cigarette pack containing three baggies of methamphetamine weighing 1.16, 1.28 and .13 grams, packaged in the same type of small Ziploc bags found on defendant. The cigarette pack and its contents were found near a cellular telephone defendant said was his. In the same area as the cigarette pack and the phone, deputies found a baggie containing two small Ziploc bags of methamphetamine, weighing .14 grams each, and a piece of yellow lined paper with the notation "$20" followed by some writing.

Also near the cigarette pack, deputies found another small Ziploc bag containing a price tag and residue of apparent methamphetamine. They also found a larger green package of methamphetamine weighing 3.14 grams, a methamphetamine smoking pipe, an electronic scale, and a second, nondigital scale.

In other locations in the garage, deputies found a small bag of methamphetamine weighing .11 grams, and two packages of methamphetamine weighing 3.10 grams and 2.92 grams.

Detective Sean Berry again informed defendant of his rights. Defendant told Berry that the drugs in his pockets belonged to him but the drugs in the garage did not. He said he used drugs but he did not sell them. Defendant said he had used methamphetamine that morning.

The prosecution's expert witness testified that in his opinion, based on the totality of the evidence, the methamphetamine found in defendant's pocket was possessed for the purpose of sale.

We will provide additional facts as necessary.

DISCUSSION

I CALCRIM No. 2302

Defendant claims CALCRIM No. 2302 erroneously omits the elements of "dominion and control" and the "knowing exercise of control" from its definition of possessing methamphetamine for sale. We disagree.

Witkin summarizes the common elements of all drug possession offenses as follows:

"(a) A specified controlled substance, in a sufficient quantity and in a usable form.

"(b) Possession, which may be physical or constructive, exclusive or joint.

"(c) Knowledge of the fact of possession and of the illegal character of the substance." (2 Witkin and Epstein, Cal.Criminal Law (3d ed. 2000) Crimes Against Public Peace and Welfare, § 82, p. 592, citations omitted.)

The crime of possession for sale contains the additional element of proof of a specific intent to sell the substance. (2 Witkin and Epstein, supra, Crimes Against Public Peace and Welfare, § 82, p. 592.) (See In re Christopher B. (1990) 219 Cal.App.3d 455, 466, 268 Cal.Rptr. 8.)

CALCRIM No. 2302 adequately captures and conveys each of these elements to the jury. As given by the trial court, the instruction reads:

"The defendant is charged with possession for sale of methamphetamine, a controlled substance.

"To prove that the defendant is guilty of this crime, the People must prove that:

"1. The defendant possessed a controlled substance;

"2. The defendant knew of its presence;

"3. The defendant knew of the substance's nature as a controlled substance;

"4. When the defendant possessed the controlled substance, he intended to sell it;

"5. The controlled substance was methamphetamine;

"AND

"6. The controlled substance was in a usable amount. [¶] ... [¶]

"A person does not have to actually hold or touch something, to possess it. It is enough if the person has control over it or the right to control it, either personally or through another person."

Defendant faults the instruction for not requiring the jury to find the defendant knowingly exercised control and for not using the phrase "dominion and control" as part of the possession element. Both points are meritless.

The instruction correctly expresses the knowledge requirement. Two kinds of knowledge are required: "knowledge of the fact of possession," and "knowledge of the character of the thing possessed." (2 Witkin and Epstein, supra, Crimes Against Public Peace and Welfare, § 90, p. 602.) Repeating these elements, the instruction requires the jury to find that the defendant knew of the substance's presence, and that he also knew the substance was a controlled substance. No knowledge of additional possession or control was required.

The instruction also correctly restates the possession requirement. Many courts have long stated this requirement as a showing that defendant exercised dominion and control over the controlled substance. (See, e.g., People v. Palaschak (1995) 9 Cal.4th 1236, 1242, 40 Cal.Rptr.2d 722, 893 P.2d 717 ["essential elements of possession of a controlled substance are `dominion and control of the substance in a quantity usable for consumption or sale, with knowledge of its presence and of its restricted dangerous drug character.'"]; People v. Parra (1999) 70 Cal.App.4th 222, 225-226, 82 Cal.Rptr.2d 541 ["prosecution must prove beyond a reasonable doubt that (1) the defendant exercised dominion and control over the controlled substance..."].)

This phrase is merely a different way of saying the defendant possessed the substance physically or constructively. Our Supreme Court has approved this summary of the elements of simple possession, a formula that does not contain the phrase "dominion and control": "'The defendant exercised control over the narcotics, he or she knew of its nature and presence, and possessed a usable amount. (CALJIC No. 12.00.)"' (People v. Martin (2001) 25 Cal.4th 1180, 1191, 108 Cal.Rptr.2d 599, 25 P.3d 1081, quoting People v. Spry (1997) 58 Cal.App.4th 1345, 1369, 68 Cal.Rptr.2d 691.) CALJIC No. 12.00, the predecessor to CALCRIM No 2302, also does not contain the phrase "dominion and control," but the Supreme Court nonetheless declared the instruction "accurately restated the law." (People v. Morales (2001) 25 Cal.4th 34, 47-48, 104 Cal.Rptr.2d 582, 18 P.3d 11.)²

The phrase itself is redundant and archaic. The word "dominion" is defined as "Control; possession" (Black's Law Diet. (8th ed.2004) p. 525); or "rule; control; domination." (Random House Diet, of the English Language (2d ed.1987) p. 582.) To dominate is "to rule over; govern; control." (Ibid.) The authors of CALCRIM No. 2302 were, instructed to develop instructions that were legally accurate, understandable to the average juror, and written in plain English. (Preface to Judicial Council of Cal.Crim. Jury Instns. (2006-2007) p. ix.) They wisely decided not to perpetuate the redundancy. They did so by omitting the phrase in the instruction.

CALCRIM No. 2302 captures all of the elements of the crime of possession for sale. It correctly states the elements of...