People v. Walker

• Court: California Court of Appeals
• Writing for the Court: CHANEY, J.
• Citation: People v. Walker, 237 Cal.App.4th 111, 187 Cal.Rptr.3d 606 (Cal. App. 2015)
• Decision Date: 27 May 2015
• Docket Number: B251600
• Parties: The PEOPLE, Plaintiff and Respondent, v. Leelen D. WALKER, Defendant and Appellant.

237 Cal.App.4th 111

187 Cal.Rptr.3d 606

The PEOPLE, Plaintiff and Respondent,

v.Leelen D. WALKER, Defendant and Appellant.

B251600

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

Filed May 27, 2015

James Koester, Lakspur, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Lance E. Winters, Assistant Attorney General, Michael R. Johnsen and Russell A. Lehman, Deputy Attorneys General, for Plaintiff and Respondent.

CHANEY, J.

Defendant Leelen D. Walker was charged with possession of marijuana for sale in violation of Health and Safety Code section 11359, a felony, and convicted by a jury. During the trial, the superior court declined to instruct the jury that it could instead convict defendant of the lesser included offense of simple possession of less than 28.5 grams (one ounce) of marijuana, an infraction punishable by a $100 fine. ( Health & Saf.Code, § 11357, subd. (b).) We hold the trial court prejudicially erred in omitting the instruction. Accordingly, we reverse defendant's conviction.

BACKGROUND

On December 6, 2012, Los Angeles County Sheriff's Sergeant Justin Diez observed defendant sitting in a car in a motel parking lot that for years had been used for gang loitering, prostitution and drug sales. A woman stood next to the car, conversing with defendant. When Diez approached the vehicle he detected the scent of fresh (unburnt) marijuana. A search of defendant's person produced a medical marijuana card and cash totaling $249, consisting of a $100 bill, three $20 bills, four $10 bills, seven $5 bills, and fourteen $1 bills. Neither defendant nor the woman possessed any paraphernalia for ingesting marijuana. Searching the car, Diez found a thermos bottle in the center console compartment beneath some cup holders. The thermos contained 11 plastic baggies, two of which contained a total of 7.13 grams of marijuana and nine that contained a total of 16.1 grams of marijuana, for a combined total of 23.14 grams. Defendant told Diez he had obtained the marijuana from a medical marijuana dispensary six days earlier and had already smoked some of it to alleviate pain and had given some to friends, who smoked it with him.

Defendant was arrested and charged with possession of marijuana for sale.

At trial, defendant admitted he possessed the marijuana but argued it was for his own personal use. Diez testified that in his experience, the amount and various denominations of cash defendant possessed were consistent with street-level marijuana transactions, and someone possessing marijuana for personal use would more likely keep it in a single container than repackage it in small amounts.

After the presentation of evidence, the trial court and counsel conferred off the record in chambers about jury instructions. When they came back on the record, the court acknowledged that possession of marijuana is a lesser included offense of possession for sale, but stated it would not instruct on the lesser offense because simple possession of less than 28.5 grams of marijuana is merely an infraction, and "it wouldn't be proper" to try an infraction to a jury. Similarly, the court stated, defendant's medical marijuana defense would not merit a jury instruction because the defense applies only to simple possession, not possession for sale. The court stated that if the jury found defendant not guilty of possession for sale, the lesser included offense of simple possession would be tried to the court, which would at that time consider defendant's medical marijuana defense.

The jury found defendant guilty, and he was sentenced to the middle term of two years plus four one-year prior-prison-term enhancements. He timely appealed.

DISCUSSION

Defendant contends the trial court made an instructional error and an error in sentencing.

A. Instructional Error

In a criminal case, the trial court must instruct on any general principles of law relevant to issues raised by the evidence. That obligation includes giving instructions on any lesser included offense when the evidence raises a question as to whether all elements of the charged offense were present. ( People v. Valdez (2004) 32 Cal.4th 73, 115, [8 Cal.Rptr.3d 271, 82 P.3d 296].) A defendant's right to instructions on lesser included offenses is "grounded upon considerations of fundamental fairness." ( People v. Geiger (1984) 35 Cal.3d 510, 518, [199 Cal.Rptr. 45, 674 P.2d 1303] ( Geiger ), overruled on another ground by People v. Birks (1998) 19 Cal.4th 108, 136, [77 Cal.Rptr.2d 848, 960 P.2d 1073].) Although as a theoretical matter a jury must acquit when the prosecution fails to establish every element of the charged offense beyond a reasonable doubt, in practice, " ‘[w]here one of the elements of the offense charged remains in doubt, but the defendant is plainly guilty of some offense, the jury is likely to resolve its doubts in favor of conviction.’ " ( Geiger, supra, 35 Cal.3d at p. 518, 199 Cal.Rptr. 45, 674 P.2d 1303, quoting Keeble v. United States (1973) 412 U.S. 205, 212–213, [93 S.Ct. 1993, 36 L.Ed.2d 844].) A defendant " ‘should not be exposed to the substantial risk that the jury's practice will diverge from theory.’ " ( Ibid . )

The requirement to instruct on lesser included offenses applies " ‘ "even when as a matter of trial tactics a defendant not only fails to request the instruction but expressly objects to its being given." [Citation.]’ " ( People v. Banks (2014) 59 Cal.4th 1113, 1159–1160, [176 Cal.Rptr.3d 185, 331 P.3d 1206].) "The state has no interest in a defendant obtaining an acquittal where he is innocent of the primary offense charged but guilty of a necessarily included offense. Nor has the state any legitimate interest in obtaining a conviction of the offense charged where the jury entertains a reasonable doubt of guilt of the charged offense but returns a verdict of guilty of that offense solely because the jury is unwilling to acquit where it is satisfied that the defendant has been guilty of wrongful conduct constituting a necessarily included offense. Likewise, a defendant has no legitimate interest in compelling the jury to adopt an all or nothing approach to the issue of guilt. Our courts are not gambling halls but forums for the discovery of truth." ( People v. St. Martin (1970) 1 Cal.3d 524, 533, [83 Cal.Rptr. 166, 463 P.2d 390].)

"On appeal, we review independently the question whether the trial court improperly failed to instruct on a lesser included offense." ( People v. Souza (2012) 54 Cal.4th 90, 113, [141 Cal.Rptr.3d 419, 277 P.3d 118].) Error in failing to give a lesser included instruction is reviewed for prejudice under the People v. Watson (1956) 46 Cal.2d 818, standard. ( People v. Breverman (1998) 19 Cal.4th 142, 165, [77 Cal.Rptr.2d 870, 960 P.2d 1094].)

A violation of Health and Safety Code section 11357, subdivision (b) —possession of less than 28.5 grams of marijuana—is "an infraction punishable by a fine of not more than one hundred dollars ($100)."¹ It is therefore an offense, albeit a minor one, and is necessarily included in the greater offense of possession for sale. (See People v. Buchanan (1929) 106 Cal.App.Supp. 765, 771, [possession of alcohol an included offense of sale or transportation of alcohol].)

An instruction on simple possession was therefore plainly necessary. The trial court declined to give the instruction only because it believed it would not be proper to try an infraction to a jury. We disagree.

First, it is sometimes proper to try an infraction to a jury. Although a person charged solely with an infraction is not entitled to a jury trial ( Pen.Code, § 19.6 ), when the infraction is accompanied by a felony or misdemeanor charge and a jury trial is not waived, the court may order all offenses tried together ( Pen.Code, § 1042.5 ).² In any event, a jury may find a defendant "guilty of any offense, the commission of which is necessarily included in that with which he is charged." ( Pen.Code, § 1159.) Therefore, lesser included infractions are perforce tried to the jury whenever a felony or misdemeanor is tried. Because a jury may find a defendant guilty of a lesser included offense, the court must instruct on it.

Respondent urges us to adopt the rationale expressed in People v. Sava (1987) 190 Cal.App.3d 935, , which held a felony defendant is not entitled to jury instructions on lesser related offenses that are mere infractions in light of the "fundamental procedural differences between the treatment of infractions and more serious offenses." ( Ibid . ) We decline the invitation because procedural distinctions do not excuse the court from fulfilling its constitutional duty to instruct on all pertinent issues, even issues involving infractions.³

Here, it was undisputed that defendant possessed marijuana. It was also undisputed that simple possession of marijuana was a lesser included offense of possession of marijuana for sale. Without a simple possession instruction, the jury had only two choices: convict on the felony sales count or acquit altogether. This is precisely the all-or-nothing choice that People v. Birks concluded was improper. ( People v. Birks, supra, 19 Cal.4th at p. 119, 77 Cal.Rptr.2d 848, 960 P.2d 1073.) To make matters worse, it was also undisputed that defendant had a medical marijuana defense that the jury was precluded from considering because, as the trial court found, the defense was irrelevant to the sales charge. These facts and "decades" of case law ( id . at p. 118, 77 Cal.Rptr.2d 848, 960 P.2d 1073 ) compel our conclusion that the jury should have been instructed on a third choice, to wit, simple possession, irrespective of whether that lesser offense was an infraction.

B. Substantial Evidence Supported the Instruction, and Failure to Instruct Was Prejudicial

A defendant is entitled to instructions on lesser included offenses only if some basis exists, "other than an unexplainable rejection of prosecution evidence, on which...