P. v. Moya

Filed 2/5/08 P. v. Moya CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Helios (Joe) Hernandez, Judge. Affirmed with directions.

William Flenniken, Jr., under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Rhonda Cartwright-Ladendorf, Supervising Deputy Attorney General, and Heather F. Crawford, Deputy Attorney General, for Plaintiff and Respondent.

INTRODUCTION

A jury found defendant guilty of possessing methamphetamine for sale (Health & Saf. Code, 11378) (count 1) and being a felon in possession of ammunition (Pen. Code, 12316, subd. (b)(1)) (count 2).^[1] The trial court found true the allegations that defendant suffered four prison priors.^[2] (Pen. Code, 667.5, subd. (b).) The court also found true the allegations that defendant suffered three prior felony convictions. (Health & Saf. Code, 11370.2, subd. (c).) The court sentenced defendant to state prison for a term of 15 years. Defendant contends that he should be granted a new trial or have his conviction in count 1 reduced to simple possession of a controlled substance because the trial court erred by instructing the jury on the theory of aiding and abetting. We affirm the judgment.

FACTS

Defendant was employed to perform construction work on a residential property in Riverside and to live at the construction site in order to protect the property during the night. The owner of the property testified that defendant could have visitors at the residence, but that defendant was supposed to live there by himself. Defendant informed Officer Goodson that he lived alone in the house.

In August 2005, Riverside Police Officers Goodson and Elliott were working with undercover narcotics officers to identify homes that were used in the sale of narcotics. The undercover narcotics detectives would radio other officers, such as Officers Goodson and Elliott, if they believed they observed a drug sale take place. Narcotics officers announced on the police radio a description of a man they believed was involved in a drug sale. The man was later identified as Mr. Lampkin. Mr. Lampkin entered a white vehicle, which officers attempted to stop; however, he exited the passenger side of the vehicle and entered defendants house. Also, Mr. Lampkin resided in an apartment directly across the street from where defendant lived.

Officers Goodson and Elliott observed Mr. Lampkin poke his head out of the doorway of defendants house. Officer Goodson asked Mr. Lampkin to come out of the house; he refused. Officer Goodson moved into the yard and Mr. Lampkin came out of the house. Officer Goodson then walked to the doorway of the house and instructed the people inside to show themselves. Defendant, another male, and a female exited the bedroom. A second female, Mr. Lampkins girlfriend, exited the kitchen.

Inside the bedroom, Officer Goodson observed a glass pipe used for smoking methamphetamine. Officer Goodson discovered methamphetamine inside a bedroom armoire.^[3] Officer Elliott found a lockbox inside the bedroom closet that contained a small bindle of methamphetamine, a small Tupperware container also containing methamphetamine, a digital scale, and .380-caliber Blazer brand ammunition. Officer Elliott also searched Mr. Lampkins apartment, as part of a probation search, and discovered a handgun that was loaded with the same Blazer brand ammunition as that discovered in defendants house. The lockbox was checked for fingerprints and four prints were discovered. The fingerprints on the lockbox did not match defendants fingerprints or Mr. Lampkins fingerprints.

When discussing jury instructions, the trial court questioned why an instruction regarding aiding and abetting needed to be given. The prosecution argued that if [the jury] bought the argument that it was actually Lampkins box of dope inside [defendants] house [and defendant] were allowing another person to keep a lockbox full of dope in his house . . . [defendant is] aiding and abetting that person in possessing [the dope] for sale. [The prosecution is] giving [the jury] a place to do it. The defense conceded that it planned to argue that the methamphetamine belonged to Mr. Lampkin or another person. The court concluded that it would have to give the instruction since the defense planned to argue the lockbox belonged to someone other than defendant.

During deliberations, the jury sent a note to the court stating that some jurors did not believe defendant had the intent to sell drugs. The jury asked if it would be proper to base its finding on [c]ount 1, [p]art 4 on aiding and abetting. In response, and with the trial counsels consent, the court instructed the jury to reread the instructions regarding aiding and abetting.^[4]

DISCUSSION

Defendant contends there is insufficient evidence to support the trial courts decision to instruct the jury regarding the theory of aiding and abetting. We disagree.

The test for determining whether instructions on a particular theory of guilt are appropriate is whether there is substantial evidence which would support a conviction on that theory. [Citation.] To determine whether there is substantial evidence to support a conviction we must view the record in a light most favorable to conviction . . . . We may conclude that there is no substantial evidence in support of conviction only if it can be said that on the evidence presented no reasonable fact finder could find the defendant guilty on the theory presented. [Citation.] [Citations.] Substantial evidence is evidence of ponderable legal significance . . . reasonable in nature, credible, and of solid value. [Citations.] [Citation.] (People v. Campbell (1994) 25 Cal.App.4th 402, 408.)

[P]roof of aider and abettor liability requires proof in three distinct areas: (a) the direct perpetrators actus reusa crime committed by the direct perpetrator, (b) the aider and abettors mens reaknowledge of the direct perpetrators unlawful intent and an intent to assist in achieving those unlawful ends, and (c) the aider and abettors actus reusconduct by the aider and abettor that in fact assists the achievement of the crime. [Citation.] (People v. Perez (2005) 35 Cal.4th 1219, 1225.) Whether defendant aided and abetted the crime is a question of fact, and on appeal all conflicts in the evidence and reasonable inferences must be resolved in favor of the judgment. [Citation.] (People v. Campbell, supra, 25 Cal.App.4th at p. 409.)

A. Direct Perpetrators Actus Reus

We begin by examining whether there was substantial evidence to support a finding that Mr. Lampkin possessed the drugs for sale. (Health & Saf. Code, 11378.)

Unlawful possession of a controlled substance for sale requires proof the [direct perpetrator] possessed the contraband with the intent of selling it and with knowledge of both its presence and illegal character. [Citation.] [Citations.] Intent to sell may be established by circumstantial evidence. [Citation.] (People v. Harris (2000) 83 Cal.App.4th 371, 374.)

The police officers observed Mr. Lampkin in what they believed to be a drug sale. Mr. Lampkins gun was loaded with the same brand of ammunition as that found in the lockbox. Mr. Lampkins girlfriend was present in defendants house when the police arrived. Mr. Lampkin ran into defendants house when the police stopped him. The lockbox contained a digital scale, a package of methamphetamine that weighed 8.56 grams, and another package of methamphetamine that weighed 3.48 grams. A medical dosage of methamphetamine is typically .005 grams. A jury could reasonably infer from this evidence that Mr. Lampkin was aware of the presence of the drugs in the lockbox, that he knew the drugs were illegal, and that he possessed the drugs with the intent of selling them.

B. Defendants Mens Rea

Now we address whether substantial evidence supports findings that defendant had knowledge of Mr. Lampkins unlawful intent and that defendant intended to assist Mr. Lampkin in possessing drugs for sale.

The lockbox was found in defendants closet. Methamphetamine was discovered in defendants bedroom armoire. A glass pipe for smoking methamphetamine was located in defendants bedroom. Mr. Lampkins girlfriend was in defendants house at the time the police officers arrived. A jury could reasonably infer from this evidence that defendant was friends with Mr. Lampkin, knew of Mr. Lampkins intent to sell the drugs, and that he intended to assist Mr. Lampkin by storing the drugs in his home.

C. Defendants Actus Reus

Now we discuss whether substantial evidence supports a finding that defendant acted in a manner that, in fact, assisted Mr. Lampkin with the crime of possessing drugs for sale.

The lockbox was discovered in defendants house. A jury could reasonably infer that defendants act of storing the methamphetamine at his home assisted Mr. Lampkin with the crime of possessing drugs for sale.

D. Conclusion

We conclude that there is substantial evidence that would support a reasonable trier of fact finding defendant guilty of possessing drugs for sale based upon the theory of aiding and abetting. Therefore, the trial court did not err in instructing the jury on this theory.

E. Defendants Argument

Defendant argues that the theory of aiding and abetting is irrelevant to the crime of possessing drugs for sale because he could have been found guilty of possessing drugs via evidence that he knowingly stored the drugs in his house. Therefore, defendant contends there was no need to rely on the theory of aiding and abetting and it was improper to instruct the jury as to that theory. We disagree.

When two or more persons commit a crime together, both may act in part as the actual perpetrator and in part as the aider and abettor of the other, who also acts in part as an actual perpetrator. (People v. McCoy (2001) 25 Cal.4th 1111, 1120.) The aider and abettor doctrine merely makes aiders and abettors liable for their accomplices actions as well as their own. It obviates the necessity to decide who was the aider and abettor and who the direct perpetrator or to what extent each played which role. (Ibid.)

Defendant was convicted of possessing drugs for sale, not simple possession. Accordingly, the prosecution needed to prove that defendant did more than merely possess the drugs. (Health & Saf. Code, 11378.) The prosecutions reliance on the theory of aiding and abetting obviated the necessity of deciding who intended to sell the methamphetamine and who intended to aid and abet in the sale. Accordingly, the theory of aiding and abetting was relevant.

DISPOSITION

The superior court clerk is directed to correct the abstract of judgment to reflect that defendant was found guilty by a jury, and forward a corrected copy of the abstract to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER

Acting P.J.

We concur:

GAUT

J.

KING

J.

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^[1] The abstract of judgment incorrectly notes that defendant pled guilty to the charged offenses.

^[2] Defendant admitted the four prison priors; however, the court took the admissions as evidence in a bench trial rather than as an admission.

^[3] The search was conducted as a parole search; however, that was not disclosed to the jury.

^[4] The court stated that it would instruct the jury to reread Judicial Council of California Criminal Jury Instructions (2007-2008), CALCRIM Nos. 2302, 400, and 401; however, in the written note to the jury, the court only referred to CALCRIM Nos. 400 and 401.