People v. Thomas

• Decision Date: 14 June 1991
• Docket Number: No. H007159,H007159
• Citation: 231 Cal.App.3d 299,282 Cal.Rptr. 258
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Mark Renee THOMAS, Defendant and Appellant.

Page 258

282 Cal.Rptr. 258

231 Cal.App.3d 299

The PEOPLE, Plaintiff and Respondent, v. Mark Renee THOMAS, Defendant and Appellant.

No. H007159.

Court of Appeal, Sixth District, California.

June 14, 1991.

As Modified July 3, 1991.

[231 Cal.App.3d 301] Jackson W. Wallace, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Richard B. Iglehart, Chief Asst. Atty. Gen., John H. Sugiyama, Sr. Asst. Atty. Gen., Laurence K. Sullivan, Supervising Deputy Atty. Gen., Jeffrey M. Bryant, Deputy Atty. Gen., for plaintiff and respondent.

ELIA, Associate Justice.

After a jury trial appellant Mark Thomas was convicted of possession of cocaine base (Health & Saf.Code, § 11350) and transportation of cocaine base (Health & Saf.Code, § 11352). On appeal, he contends 1) the trial court coerced the jury into returning a verdict, in violation of his rights to an impartial jury and fair trial, and 2) his conviction of possession should have been stricken because possession is a lesser included offense of transportation. We affirm the judgment.

BACKGROUND

Because appellant raises exclusively procedural issues related to trial and sentencing, a detailed statement of underlying facts is unnecessary. The charges of which appellant was convicted arose from a routine traffic stop during which appellant gave the investigating officer consent to search the car. ¹ In the course of that search the officer removed 21 "rocks" of cocaine base from the car. After placing appellant under arrest the officer searched him and recovered $216 in cash from appellant's pants pocket. Based on this evidence appellant was accused by information of possession of cocaine base for sale (Health & Saf.Code, § 11351.5) and transportation of cocaine.

During its deliberations at trial the jury sent a note to the trial judge requesting "direction on the following decision:

No agreement on 11351.5 Deadlocked

No agreement on 11352 Deadlocked

Agreement on 11350

The court reminded the jury that "[t]he court cannot accept a guilty verdict on a lesser crime unless the jury also unanimously finds and returns a signed verdict form of not guilty as to the charged or greater crime." The court observed that the jury had been deliberating for "somewhat over a day." By questioning the foreperson the court learned that approximately seven ballots had already been taken and that the jury was split 9 to 3 on count 1 (possession for sale) and 11 to 1 on count two (transportation).

The trial court asked each juror if he or she thought it would be productive for the jury to continue to deliberate; each answered in the negative. The court then requested a show of hands in response to the question, "Do you think it would be at all helpful to you if the court gave you further instructions on the law?" One juror indicated that further instruction would be helpful. No juror responded to the court's next question, whether a rereading of evidence presented would be useful.

The court then instructed the jury, "You've been deliberating for a day. That's not an inordinate amount of time in a case. I'd like you to go back into the jury deliberation room and I'd like you to discuss, if you would, the issue of whether or not you think that further instructions on the law could be helpful to you. [p ] And if you think that they could, give me a note telling me what particular areas of the law you think the court can assist you with. Would you do that?" The jurors all nodded in the affirmative and returned to the jury room. One hour and nineteen minutes later the jury announced that it had reached a verdict.

The jury found appellant not guilty of possession of cocaine base for sale, but guilty of the lesser included offense of possession of cocaine base. Appellant was also found guilty of transportation of cocaine base. Appellant admitted three prior convictions. Several other prior conviction allegations were stricken.

The trial court sentenced appellant to four years in state prison for the transportation charge and a concurrent term of two years for the possession charge. An additional one-year enhancement was imposed for a prior prison term (Pen.Code, § 667.5, subd. (b)) for a total sentence of five years. Punishment for two other priors was stayed. The court thereafter modified its earlier judgment by staying the sentence on the possession charge pursuant to Penal Code section 654, and by striking the enhancements previously stayed.

DISCUSSION

1. The jury was not coerced into reaching a verdict.

Penal Code section 1140 provides: "Except as provided by law, the jury cannot be discharged after the cause is submitted to them until they have agreed upon their verdict and rendered it in open court, unless by consent of both parties, entered upon the minutes, or unless, at the expiration of such time as the court may deem proper, it satisfactorily appears that there is no reasonable probability that the jury can agree."

"The determination whether there is reasonable probability of agreement rests in the sound discretion of the trial court. [Citation.] The court must exercise its power, however, without coercion of the jury, so as to avoid displacing the jury's independent judgment 'in favor of considerations of compromise and expediency.' " People v. Rodriguez (1986) 42 Cal.3d 730, 775, 230 Cal.Rptr. 667, 726 P.2d 113, quoting People v. Carter (1968) 68 Cal.2d 810, 817, 69 Cal.Rptr. 297, 442 P.2d 353; see also People v. Miller (1990) 50 Cal.3d 954, 994, 269 Cal.Rptr. 492, 790 P.2d 1289.)

Appellant contends that the trial court abused its discretion in this case by ignoring the consensus of all jurors that further deliberations would not be productive and "forcing" them to continue deliberating. Such action, he argues, conveyed to the lone dissenting juror as to count 2 that the court expected that person to abandon his or her independent judgment and conform to the majority opinion.

We disagree. The trial court did not "force" the jurors to continue deliberating; it did not even ask them to do so. The judge merely asked the jury to consider whether further instruction on the law would assist them in reaching a verdict. Such an inquiry was entirely within the scope of the court's discretion. A trial court is entitled under Penal Code section 1140 to ascertain whether there is a reasonable probability the deadlock might be broken. (Cf. People v. Miller, supra, 50 Cal.3d at pp. 993-994, 269 Cal.Rptr. 492, 790 P.2d 1289; People v. Sheldon (1989) 48 Cal.3d 935, 959, 269 Cal.Rptr. 492, 771 P.2d 1330.) The court made no remarks that could reasonably be interpreted as coercive, nor did it urge the jury to come to an agreement on either of the counts. Furthermore, the jury had been instructed, pursuant to CALJIC No. 17.40, that it was each juror's duty to act individually. ² (Cf. People v. Miller, supra, 50 Cal.3d at p. 994, 269 Cal.Rptr. 492, 790 P.2d 1289.) In short, we see no impropriety in the court's management of the impasse in the jury's deliberations.

2. Appellant was properly convicted of both simple possession and transportation.

Appellant further contends that his possession of cocaine was incidental to the offense of transporting the same contraband, and therefore cannot be used as the basis of a separate conviction. Instead, he argues, the possession count was "necessarily included" within the greater offense of transportation and therefore must be stricken.

In support of this position appellant relies on People v. Rogers (1971) 5 Cal.3d 129, 95 Cal.Rptr. 601, 486 P.2d 129. In Rogers, the court observed that possession of contraband is not an essential element of transportation, since one may transport contraband that is in the exclusive possession of another. Accordingly, the court held that the defendant's acquittal of possession of marijuana did not necessarily preclude a conviction of transportation of marijuana. In a footnote, however, the court qualified this statement: "In cases where defendant's possession is incidental to, and a necessary part of, the transportation charged, and no prior, different or subsequent possession is shown, the offense of possession is deemed to be necessarily included in the offense of transportation, and defendant may not be convicted of both charges. [Citations.]" (5 Cal.3d at p. 134, fn. 3, 95 Cal.Rptr. 601, 486 P.2d 129.)

Here, appellant argues, the possession of the cocaine found in appellant's car was, under the circumstances, a necessary element of the offense of transportation. Appellant points out that "the only contraband involved in the case was the cocaine found between the seat and the backrest where appellant was sitting in the car ... No evidence was presented as to any different contraband which might have been possessed by appellant either before or subsequently, thus the contraband used to prove transportation was the identical contraband used to prove possession. [p ] Further, the charge of transportation could not have been proven in the absence of that cocaine. Thus it is clear that possession of that specific cocaine was necessary to convict appellant of the charge of transportation."

Appellant's argument finds support in the Rogers dictum quoted above as well as in decisions prior to that case. (See, e.g., People v. Francis (1969) 71 Cal.2d 66, 75 Cal.Rptr. 199, 450 P.2d 591 [under some circumstances possession of narcotics may be necessarily included within sale of narcotics]; People v. Richardson (1970) 6 Cal.App.3d 70, 78, 85 Cal.Rptr. 607 [under the circumstances, possession of heroin was a lesser included offense of transportation]; People v. Johnson (1970) 5 Cal.App.3d 844, 847, 85 Cal.Rptr. 238 [possession proved was incidental to and a necessary part of transportation, therefore a necessarily included offense]; People v. Mandell (1949) 90 Cal.App.2d 93, 98, 202 P.2d 348 [absent prior or subsequent possession, possession and transportation may not be treated as separate offenses]; People v....