Opinion
E071541
02-14-2020
THE PEOPLE, Plaintiff and Respondent, v. NICHOLAS SCOTT FITZGERALD, Defendant and Appellant.
Gregory L. Cannon, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and James M. Toohey, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. SWF1707143) OPINION APPEAL from the Superior Court of Riverside County. John M. Davis, Judge. Affirmed with directions. Gregory L. Cannon, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and James M. Toohey, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted defendant and appellant Nicholas Scott Fitzgerald of possession of heroin for sale (Health & Saf. Code, § 11351, count 1), transportation of heroin for sale (Health & Saf. Code, § 11352, subd. (a), count 2), and possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a), count 3). Defendant admitted he had suffered a prior strike conviction (Pen. Code, §§ 667, subds. (c) & (e)(1), 1170.12, subd. (c)(1)) and had served one prior prison term (Pen. Code, § 667.5, subd. (b)). A trial court sentenced him to a total term of eight years in state prison.
All further statutory references will be to the Penal Code, unless otherwise indicated. --------
On appeal, defendant contends: (1) his convictions on counts 1 and 2 must be reversed because the trial court failed to instruct on simple possession as a lesser included offense of possession for sale in count 1; (2) the minute order erroneously reflects that the court prohibited him from owning or possessing deadly weapons and related paraphernalia; and (3) the court's order for substance abuse counseling was not authorized by statute. We agree that the minute order should be amended to strike the references to deadly weapons and related paraphernalia, and that section 1203.096 did not authorize the court to order defendant to participate in substance abuse counseling. We remand the matter for the clerk to amend the minute order, and for the court to make the proper findings and recommendation under section 1203.096. In all other respects, the judgment is affirmed.
FACTUAL BACKGROUND
On the evening of February 20, 2017, a police officer observed a car with a commercial license plate pull into a liquor store parking lot. Since the car was not a commercial vehicle, the officer knew the license plate did not belong on that car. He ran the plate number through his computer and discovered the license plate belonged to a pickup truck. He saw a female, later identified as Hannah M., retrieve a makeup bag from the backseat of the car and place it on the front seat. As the officer approached the car, Hannah M. took the makeup bag from the front seat, walked back to the trunk, and threw it in the trunk. The officer observed that Hannah M. appeared to be under the influence of heroin, as she had track marks on her arm and looked disheveled. He had Hannah M. take a seat on the sidewalk. Defendant came out of the liquor store, and the officer directed him to come over and sit down. Defendant did not appear to be under the influence, and he denied having done anything wrong. The officer asked defendant if any items in the car belonged to him. Defendant said the items in the backseat were his, including clothes, a guitar, and a golf club.
The officer conducted a patdown search of defendant and found one gram of methamphetamine in his pants pocket, as well as $144 in cash and a cell phone. The officer called for backup, and another officer came with a narcotics-sniffing dog. The dog sniffed the exterior of the car and alerted that there were drugs in the car. The officer searched the car and found Hannah M.'s purse on the front seat. The purse contained two syringes that were loaded with liquid heroin, two needles, and 0.2 grams of methamphetamine. On top of defendant's belongings in the backseat, the officer found a Ziploc bag containing 1.5 grams of methamphetamine. He retrieved Hannah M.'s makeup bag from the trunk. It contained approximately 4.7 grams of heroin, individually packaged into three bindles. The officer placed defendant and Hannah M. under arrest.
The police officer searched defendant's cell phone later and found hundreds, possibly thousands, of text messages concerning drug sales. He found a conversation between defendant and Hannah M. from earlier that day, during which defendant said he would pay her to drive him around so he could collect money. The officer found another conversation where someone referred to defendant as "the godfather" and said, "I bet your room is a complete mess right now." Defendant responded, "Hehe. No, it's strategically placed and that's why we have women."
At trial, the officer testified that the reference to defendant being "the godfather" meant that he was climbing the ranks of selling drugs. He said the other text about something being strategically placed caught his eye because he believed defendant and Hannah M. were conspiring to sell the drugs found. The officer testified that males and females often worked together, and that male drug dealers almost always kept the cash on them, while the women held the drugs. If they were stopped by the police, the police were less likely to search women, or if the women got caught with the drugs, the men still had the cash. The officer further testified that male officers would search women, but not in certain places, such as the chest area; thus, women would just have to put contraband there and hope that a male officer was not going to search her. He opined that Hannah M. was in possession of the drugs to keep defendant out of trouble, in case they were caught by the police.
At trial, a narcotics police detective also testified. He concurred that males and females worked together in drug sales. He testified that the male often let the female hold the drugs because there was less of a chance a male officer would search her. He said it would not be unusual for drugs to be found on a female's person or in her property, since females hide drugs in many different places. The detective also testified that if a person in possession of drugs had cash on him, it was an indicator he possessed the drugs for sale. Furthermore, the detective opined that the heroin found in this case was possessed for the purpose of sales, in view of the amount of narcotics found, the text messages, the fact that defendant was not under the influence, the text message that talked about defendant being able to hand off drugs to a female when he was in trouble, and the cash found on defendant.
ANALYSIS
I. There Was No Substantial Evidence to Support an Instruction on the Lesser Included
Offense of Simple Possession on Count 1
Defendant contends his convictions on counts 1 and 2 must be reversed because the trial court failed to sua sponte instruct on simple possession as a lesser included offense of possession of heroin for sale (count 1). We conclude there was no duty to instruct on simple possession.
A. Relevant Law
Simple possession of a controlled substance is generally a lesser included offense of the crime of possession of the same contraband for purposes of sale. (See People v. Becker (2010) 183 Cal.App.4th 1151, 1157; People v. Oldham (2000) 81 Cal.App.4th 1, 16.) The elements of possession for sale are: (1) the defendant possessed a controlled substance; (2) the defendant knew of its presence; (3) the defendant knew of the substance's nature or character as a controlled substance; (4) when the defendant possessed the controlled substance, he intended to sell it, or that someone else sell it; (5) the controlled substance was heroin (in this case); and (6) the controlled substance was in a usable amount. (CALCRIM No. 2302.) The elements of simple possession are the same, minus the element of the intent to sell. (CALCRIM No. 2304.)
"A trial court has a sua sponte duty to instruct the jury on a lesser included uncharged offense if there is substantial evidence that would absolve the defendant from guilt of the greater, but not the lesser, offense. [Citation.] Substantial evidence is evidence from which a jury could conclude beyond a reasonable doubt that the lesser offense was committed." (People v. Simon (2016) 1 Cal.5th 98, 132.) In other words, a trial court must instruct on a lesser included offense if there is substantial evidence the defendant is guilty only of the lesser. (People v. Birks (1998) 19 Cal.4th 108, 118 (Birks).)
The claim that a trial court failed to instruct on a lesser included offense "may be waived under the doctrine of invited error if trial counsel both ' "intentionally caused the trial court to err" ' and clearly did so for tactical reasons. [Citation.] Invited error will be found, however, only if counsel expresses a deliberate tactical purpose in resisting or acceding to the complained-of instruction." (People v. Souza (2012) 54 Cal.4th 90, 114 (Souza).)
"On appeal, we review independently the question whether the trial court improperly failed to instruct on a lesser included offense." (Souza, supra, 54 Cal.4th at p. 113.)
B. There Was No Substantial Evidence That Defendant Was Guilty Only of Simple Possession
We initially note the People's argument that defendant has waived his claim by the doctrine of invited error. In discussing the jury instructions to be given, the prosecutor stated that there was a lesser included offense of simple possession to count 1. Defense counsel replied, "Right. I don't want that." The court then stated: "Okay. Let's put on the record that there is a recognition that there is a lesser included offense to Count 1. But for strategy purposes, the defense is not requesting that we give that lesser. So we won't give that lesser." The People now contend that because defense counsel "made a deliberate tactical choice" to request that the trial court not instruct the jury on simple possession, and the court erred as a result, the error was invited. However, while defense counsel did state that he did not want the instruction on the lesser included offense, he did not "express[] a deliberate tactical purpose" in doing so. (Souza, supra, 54 Cal.4th at p. 114.) He simply said he did not want it. Although the court stated it was "for strategy purposes," the record does not actually reflect a tactical purpose. (Ibid.) Therefore, we decline to find invited error.
In any event, the court had no duty to instruct on the lesser included offense of simple possession, since there was no substantial evidence that defendant was guilty only of simple possession. (Birks, supra, 19 Cal.4th at p. 118.) Rather, the evidence showed that he was in possession of heroin for the purpose of sales. The police officer found Hannah M.'s makeup bag in the trunk of the car, and the makeup bag contained approximately 4.7 grams of heroin. The heroin was individually packaged into three separate bindles. Each bindle contained about one and one-half grams. The officer testified that such amount was what one would sell to a very heavy drug user. The officer also found $144 in cash and a cell phone in defendant's pants pocket. Defendant's cell phone contained hundreds (possibly thousands) of text messages concerning drug sales. The narcotics detective testified that if a person with drugs had cash on him, it was an indicator that he possessed the drugs for sale. We note that, in his closing argument, defense counsel actually conceded that defendant was involved in selling drugs, in view of the text messages on his phone.
Defendant argues the evidence "suggested" the heroin belonged to Hannah M. However, the arresting officer testified that the heroin found in her purse was the amount one would sell to three people who were heavy users. Furthermore, Hannah M. was apparently a drug user, as she appeared to be under the influence of heroin and had track marks on her arm. The arresting officer testified that drug users usually did not carry with them a day's or week's worth of their own supply because they did not want to be caught with it.
Moreover, the evidence showed that defendant and Hannah M. were working together. Defendant's cell phone reflected a conversation between them from that earlier that day, during which he asked her to drive him around so he could collect money. The narcotics detective testified about the different roles male and female partners had in drug dealing. The male often had the female hold the drugs since it was less likely a male officer would search her. Furthermore, the male almost always carried the cash on them, so that if they were stopped by the police, and the police caught the woman with the drugs, the male still had the cash. Here, Hannah M. had the heroin in her makeup bag, and defendant carried the cash. The officer who arrested them opined they were conspiring to sell the drugs found, and that Hannah M. was in possession of them to keep defendant out of trouble, in case they were caught by the police.
In sum, there was no evidence that the offense was less than that charged. (People v. Breverman (1998) 19 Cal.4th 142, 155 (Breverman).) In other words, there was no evidence from which a jury could conclude that defendant was guilty only of simple possession, but not guilty of possession for sale. (See Birks, supra, 19 Cal.4th at p. 118.) Therefore, the trial court had no sua sponte duty to instruct the jury on the lesser included offense of simple possession on count 1.
Defendant contends that reversal is required unless this court can find the error harmless beyond a reasonable doubt. Even assuming arguendo the court erred by not instructing on the lesser included offense, any error was harmless. The California Supreme Court has held that failure to instruct on a lesser included offense is reviewed under People v. Watson (1956) 46 Cal.2d 818. (See Breverman, supra, 19 Cal.4th at pp. 177-178.) Here, it is not reasonably probable that defendant would have obtained a more favorable outcome if the court had instructed the jury on the lesser included offense of simple possession. He asserts the evidence "suggested" the heroin belonged to Hannah M. However, the jury believed defendant possessed the heroin, since possession was the first element required to find him guilty of possession for sale in count 1. Moreover, as discussed ante, there was clear evidence of sales.
Defendant further claims that count 2 should also be reversed because of the court's error in failing to instruct on simple possession as a lesser included offense in count 1. However, in light of our conclusion that the court did not err in its jury instructions as to count 1, there is no reason to reverse count 2.
II. The Minute Order Should Be Modified to Delete the Provision Prohibiting Defendant
From Owning or Possessing Deadly Weapons or Related Paraphernalia
Defendant contends the sentencing minute order should be corrected to delete the language prohibiting him from owning or possessing "deadly weapons" or "related paraphernalia," since the trial court did not orally impose those terms. Respondent correctly concedes.
At sentencing, the trial court stated that defendant was "prohibited from owning, purchasing, receiving, possessing, or having under [his] custody or control any firearms, ammunition, and ammunition feeding devices, including, but not limited to, magazines." However, the minute order reflects that the court ordered him to not knowingly own, possess, or have under his control "any firearm, deadly weapon, ammunition, or related paraphernalia, for life." (Italics added.) Since the trial court clerk added in the minute order terms that were never orally imposed by the trial judge, such terms must be stricken. (People v. Zackery (2007) 147 Cal.App.4th 380, 387-388 [The clerk cannot supplement the judgment the court actually pronounced by adding a provision to the minute order.].)
III. The Matter is Remanded For the Court To Make a Recommendation for Defendant
to Participate in Substance Abuse Counseling
Defendant contends the court's order requiring him to participate in a counseling or educational program having a substance abuse component must be stricken as unauthorized by statute. The People respond that the court's order was authorized by section 1203.096, as cited by the probation report and the minute order.
Section 1203.096, subdivision (a), provides: "Upon conviction of any felony in which the defendant is sentenced to state prison and in which the court makes the findings set forth in subdivision (b), a court shall, in addition to any other terms of imprisonment, fine, and conditions, recommend in writing that the defendant participate in a counseling or education program having a substance abuse component while imprisoned." (Italics added.) The findings in subdivision (b) include that the offense for which the defendant was convicted is drug related. (§ 1203.096, subd. (b).)
As defendant points out, section 1203.096 does not authorize a court to actually order a defendant to participate in substance abuse counseling or education in prison. (§ 1203.096, subd. (a).) Rather, it provides for a court to make a true finding that a defendant was convicted of a drug-related offense and then requires the court to recommend in writing that the defendant participate in substance abuse counseling or education. (§ 1203.096.) Therefore, we will strike the current order and remand the matter for the trial court to properly make the finding and written recommendation in accordance with the statute.
DISPOSITION
The matter is remanded for the superior court clerk to strike from the sentencing minute order the terms "deadly weapon" and "related paraphernalia" from the condition prohibiting defendant from owning any firearms, ammunition, etc. Furthermore, the order requiring defendant to participate in a counseling or educational program having a substance abuse component is stricken, and the trial court is directed to make the finding and written recommendation, in accordance with section 1203.096. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
Acting P. J. We concur: MILLER
J. CODRINGTON
J.