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Court of Appeal, Second District, Division 4, California.

The PEOPLE, Plaintiff and Respondent, v. David H. MORALES, Defendant and Appellant.

No. B101352.

Decided: February 17, 1999

Richard Jay Moller, under appointment by the Court of Appeal, Garberville, for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Carol Wendelin Pollack, Senior Assistant Attorney General, Jaime L. Fuster, Supervising Deputy Attorney General, and Brenda G. O'Neil, Deputy Attorney General, for Plaintiff and Respondent.

Appellant was convicted of possession of phencyclidine (Health & Saf.Code, § 11377, subd. (a).)  It was also found true that appellant previously had been convicted of two robberies, which qualified as “strikes” pursuant to Penal Code section 1170.12, subdivision (a) through (d) and section 667, subdivision (b) through (i) and that he had served one prior prison term (Pen.Code, § 667.5, subd. (b)).  He was sentenced to prison for 25 years to life for the conviction and given one additional year for the Penal Code section 667.5, subdivision (b) finding, for a total of 26 years to life.   Appellant contends:  (1) the prosecutor argued an improper basis for conviction;  (2) the trial court erred in not instructing the jury on a lesser-related offense of being under the influence;  (3) remand for resentencing is required pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 53 Cal.Rptr.2d 789, 917 P.2d 628;  and (4) the sentence is cruel and unusual under the circumstances of the case.

Initially, we concluded that the trial court had erred prejudicially when it refused to grant appellant's request for instruction on the lesser related offense of being under the influence, and we reversed.   In reaching that result, we relied primarily on People v. Geiger (1984) 35 Cal.3d 510, 199 Cal.Rptr. 45, 674 P.2d 1303 (Geiger ).   Respondent petitioned the California Supreme Court to review and to hold our decision pending the outcome of People v. Birks (S057191).   The Court granted the petition, and on August 31, 1998, it filed People v. Birks (1998) 19 Cal.4th 108, 77 Cal.Rptr.2d 848, 960 P.2d 1073 (Birks ), which reversed the relevant holding of Geiger.   On November 18, 1998, the Court transferred the instant case to this court with directions to vacate our decision and reconsider the cause in light of Birks.   We granted appellant's request to submit a supplemental brief, which he filed on January 21, 1999.   Respondent did not file additional briefing.

We conclude that Birks is controlling, and our consideration of appellant's remaining contentions requires affirmance of the judgment.


We state the evidence in the light most favorable to the judgment (People v. Ochoa (1993) 6 Cal.4th 1199, 1206, 26 Cal.Rptr.2d 23, 864 P.2d 103).   On the evening of November 3, 1995, appellant's wife entered the Foothill police station and advised Officers Efrain Contreras, Victor Castro, and Austin Gregory that she needed help with her husband.   The officers accompanied the woman to a van parked askew in a handicapped parking section located behind the police station.   The officers had not seen who had driven the van to the station and did not know who owned it.

Appellant was sitting in the sliding-door opening of the van with his feet on the pavement.   When the officers were about 10 to 12 feet from appellant, Officer Contreras ordered appellant to stand up and put his hands behind his head.   Appellant only complied after Officer Contreras repeated the command approximately five times.   Appellant's movements were slow, he was sweating, and he had a blank stare.   As Officer Contreras handcuffed appellant he noticed that appellant exuded an odor of ether, which the officer associated with being under the influence of phencyclidine (PCP).

After appellant was taken into custody, Officer Castro performed a routine search of the van.   The door on the driver's side was ajar, and Officer Castro noticed a small glass vial, part of which was under the driver's seat.   He retrieved the vial and observed that it contained a yellowish liquid and had an odor commonly attributed to PCP. The vial was booked into evidence.

At trial, prosecution expert witness Charles Taylor testified the vial contained about three cubic centimeters (approximately one teaspoonful) of PCP dissolved in a yellow liquid.


1. The Theory of Guilt

Appellant asserts that the prosecution presented an improper theory of guilt to the jury:  that if the jury were to find appellant not in possession of the vial found in the van, it could still find him guilty of possession of PCP because he could not have been under the influence of PCP without first possessing PCP in some form.

People v. Palaschak (1995) 9 Cal.4th 1236, 40 Cal.Rptr.2d 722, 893 P.2d 717 is instructive.   In that case, the Supreme Court stated in commenting on the same line of cases relied upon by appellant:  “There may be some justification for holding, as prior cases have held, that evidence of ingestion of drugs, standing alone, should not be deemed adequate to sustain a possession charge, although that issue is not presently before us.   Ingestion, whether or not accompanied by useless traces or residue, at best raises only an inference of prior possession.  [¶] ․ [¶] Although Fein [People v. Fein (1971) 4 Cal.3d 747, 94 Cal.Rptr. 607, 484 P.2d 583] and Sullivan [People v. Sullivan (1965) 234 Cal.App.2d 562, 44 Cal.Rptr. 524] reached defensible results on their facts, we disapprove the broad dictum in those cases to the effect that evidence of past possession cannot sustain a conviction for present possession.   If, as in the present case, direct or circumstantial evidence establishes that the defendant possessed an illegal drug during the period of the applicable statute of limitations, no compelling reason appears why that evidence should not be sufficient to sustain a possession conviction.   Certainly, the drug possession statutes contain no such requirement.   The additional, fortuitous fact that the defendant has consumed or ingested the drug likewise should not preclude a finding of his prior unlawful possession of it.”  (People v. Palaschak, supra, 9 Cal.4th at pp. 1240-1243, 40 Cal.Rptr.2d 722, 893 P.2d 717, some italics added.)

 Palaschak teaches that being under the influence is circumstantial evidence of prior possession and, in connection with other direct or circumstantial evidence of possession, may be considered by the jury to prove the charge of possession.   While, in light of Palaschak, it is true that a charge of possession may not be sustained solely on the basis of being under the influence, the prosecutor did not so argue in this case.   When viewed in context, it is clear that the prosecutor was urging the jurors to use the fact that appellant was under the influence as one item of circumstantial evidence, among others, which pointed to appellant's guilt of possession:

“As you look at this evidence, certainly the most compelling evidence is that the defendant was under the influence of P.C.P. And you think to yourself, ‘well, gosh, is there any way on this planet you could physically become under the influence of P.C.P. if you didn't possess it at some time before you became under the influence?’   It's kind of hard to sit and get drunk on beer if you don't have any beer;  okay?  [¶] ․ [¶] So the only evidence that you have before you, ladies and gentlemen, all points to the fact that the defendant was clearly under the influence that night in the back of the police department, and in the van that he is sitting-found sitting by the police officers, is a vial of P.C.P. [¶] Now, you can go into your deliberation room and you can say, ‘well, gee, how do we know that was the vial and we know he's on P.C.P.’? We know he got there by being in possession of P.C.P. How do we know that was the P.C.P.? Maybe he had another bottle at home, or maybe he had five other bottles at home.   That's not the issue.  [¶] The only issue for you to decide, ladies and gentlemen, is, do you believe in the truth of this allegation that on November-or about November the 3rd, 1995, the defendant was in possession of a controlled substance, that controlled substance being P.C.P.? [¶] And it does not necessarily require that you all unanimously agree that it was some P.C.P. from this vial.   That is simply additional evidence that what he was under the influence was clearly P.C.P., and in order to get under the influence, he had to possess P.C.P. Pretty simple process.”  (Italics added.)

In response to the argument by the prosecutor, counsel for appellant advised the jury as follows:  “Now, why does the prosecutor go through all of this trouble to bring this vial and put it in evidence and have testimony of officers who found it under the seat with an expert for chemical analysis of that substance, if the prosecutor doesn't want you to believe that [appellant], by circumstantial evidence, was in possession of that P.C.P. in that vial ?  Where is the evidence beyond a reasonable doubt that [appellant] exercised control over that vial?”  (Italics added.)

On closing, the prosecutor argued as follows:  “The reality here is that [appellant] is sitting in this van;  okay?  [¶] ․ [¶] And [appellant] is wasted;  okay?   He is intoxicated on P.C.P. [¶] And then ․ one could speculate.  ‘Well, gee, how do we know that this was not an immaculate intoxication?   That he was simply overcome with P.C.P. spirit or something, out of outer space or something?’  [¶] We know because we have a lifetime of experience.   You don't get drunk unless you take in the intoxicant.   You can't take in the intoxicant if you don't have it.   Very simple.   Very simple deductive process.   I can't drink beer until I'm drunk unless I have beer to drink.  [¶] And counsel adeptly says there are the elements of the offense of possession, one must exercise control in order to ingest the intoxicant ․ unless of course, someone is holding me down and force-feeding me this intoxicant;  okay?   But you cannot speculate on things, these kind of wild imaginations, what might have been or could have been.   You have to rely on the evidence.  [¶] Now, you have to be aware of the presence.   It's a little hard to get yourself loaded if you're not aware of the presence of what you're getting yourself loaded on.   And the nature of it.   If I sit down with a six-pack of Budweiser, and I drink that six-pack of Budweiser, I know the nature of it.   And if I get intoxicated on that six-pack, it's because I knew the nature of it.   That's why I drank it.  [¶] And it has to be an amount sufficient to be used as a controlled substance․  He was high.   He was intoxicated.  [¶] Actually, the amount needed for the offense, you have to have enough to get loaded.   He had certainly enough to get loaded on it.   If he didn't he would have been sober.   So all of those elements are conclusively proven based upon the condition that [appellant] is in at the time he's found․  [¶] Now, the vial of P.C.P. in the van in which [appellant] is found is certainly circumstantial evidence, that it is P.C.P. we're talking about.   Okay? [¶] If someone finds me [ly]ing in the street, smelling of beer and heavily intoxicated, and I am surrounded by Budweiser bottles, it's going to be pretty easy to figure out what substance it is that got me drunk.   Okay? Although, maybe I didn't get drunk on one of those bottles or two of those bottles;  it may have been one that's over behind the bushes that added the final touch.   That's not the issue here, so don't be misled, ladies and gentlemen.”  (Italics added.)

We conclude that the prosecutor did not argue an impermissible theory but merely urged the jury to consider, along with other evidence, the fact that appellant was under the influence.   This was appropriate under Palaschak.

2. The Lesser Related Offense of Under the Influence

During trial, appellant's counsel requested that the court instruct on being under the influence as a lesser related offense of simple possession.   The court took the matter under submission and later noted:  “I'm not going to give [the instruction] in the context of [CALJIC No.] 17.10, because, in that sense, I don't think it is a lesser-related offense, because I think the evidence is fairly strong as to the charged offense.”   Appellant's counsel then requested that the court instruct on Health and Safety Code section 11550 and CALJIC No. 16.060, misdemeanor under-the-influence.   The court again refused:  “I don't think it's a lesser-related offense that's used in [People v. ] Geiger [, supra, 35 Cal.3d 510, 199 Cal.Rptr. 45, 674 P.2d 1303] and [People v. ] Woods [ (1991) 226 Cal.App.3d 1037, 277 Cal.Rptr. 269].”

 Appellant contends that the court erred.   We initially agreed, relying on Geiger.   Given that Birks is now controlling on the issue, we address appellant's supplemental briefing that argues Birks does not apply to this case.   We conclude that appellant's position is incorrect and that reversal is no longer required.

Geiger held that “in certain circumstances, the defendant has a state constitutional right to instructions on lesser offenses that are not necessarily included in the stated charge, but merely bear some conceptual and evidentiary ‘relationship’ thereto.   Because the accusatory pleading gives the defendant no notice of such ‘nonincluded’ offenses, Geiger concluded that instructions on lesser merely ‘related’ offenses can be given only upon the defendant's request.”  (Birks, supra, at p. 112, 77 Cal.Rptr.2d 848, 960 P.2d 1073.)

Birks held that Geiger represented “an unwarranted extension of the right to instructions on lesser offenses.”  (Birks, supra, at p. 112, 77 Cal.Rptr.2d 848, 960 P.2d 1073.)   The Court concluded that the Geiger rule can be unfair to the prosecution because a defendant can seek and obtain conviction for an offense the prosecution neither pled nor sought to prove, which was exactly the situation in the instant case.  (Birks, supra, at p. 129, 77 Cal.Rptr.2d 848, 960 P.2d 1073.)   The Court also expressed concern that the Geiger rule was violative of the separation of powers clause of the state constitution because, although the prosecution has exclusive charging discretion, Geiger permitted a defendant to place before the jury an uncharged, nonincluded offense over the prosecution's objection.  (Birks, supra, at p. 113, 77 Cal.Rptr.2d 848, 960 P.2d 1073.)

Appellant first challenges the retroactive applications of Birks.   Appellant states that the Court limited the retroactivity when it indicated that Birks would not apply when a defendant established that “his case would have been conducted differently absent the Geiger rule.”   (Birks, supra, at p. 137, 77 Cal.Rptr.2d 848, 960 P.2d 1073.)   Appellant argues that he falls within this exception.

The quoted language from Birks in context reads:

“We further determine that our holding, as is customary for judicial case law, may be applied to the instant defendant himself, and is otherwise fully retroactive.   Due process does not preclude such a result, since the new rule we announce today neither expands criminal liability nor enhances punishment for conduct previously committed.  [Citations.]  On the contrary, our holding merely withdraws the procedural opportunity for conviction of a reduced offense not encompassed by the accusatory pleading and selected solely by the defendant.

“No other inequity arises from retroactive application of today's decision.   When he committed his criminal conduct, defendant acquired no cognizable reliance interest [citation] in escaping conviction on the pleadings by means set forth in Geiger.   Defendant does not suggest his case would have been conducted differently absent the Geiger rule [citation], and neither he nor any other defendant could easily make such a claim.   With or without Geiger, a criminal defendant has the same incentive to establish, by whatever available means, that the prosecution has failed to prove the elements of charged or necessarily included offenses beyond a reasonable doubt.

“Nor would retroactive operation sandbag defendants by applying against their appeals a new and unforeseen objection and waiver requirement which it is then too late for them to satisfy.  [Citations.]  Indeed, defendant in this case fully preserved his Geiger claim for appeal by requesting lesser related offense instructions.”  (Birks, supra, at pp. 136-137, 77 Cal.Rptr.2d 848, 960 P.2d 1073.)

 Appellant asserts that he relied upon Geiger in forming his trial strategy.   Appellant provides only one example, which he describes as conceding his guilt of the lesser related offense of being under the influence in order to focus “the jury's attention on the lack of proof that he possessed the PCP” found in the van.  “Thus, the jury, if properly instructed at appellant's request, could have found that the burden of proof as to possession of PCP was not met but that instead found appellant merely was under the influence of it.”   The question, according to appellant, is whether he still would have “concede[d]” that he was under the influence had he understood that the jury would not be given a choice whether to convict him of being under the influence.

The only reference to the record that appellant provides in support of his position is a limited portion of the discussion between the parties and the trial court regarding jury instructions.   Defense counsel states in pertinent part:  “I do believe it could be a lesser-related offense, and I'm going to request that because I think ․ the jurors could well come to the conclusion that although he was under the influence, ․ he did not possess the controlled substance.”   The prosecutor urged that it would be improper to instruct on an uncharged offense which had no element in common with the charged offense.

Going beyond appellant's single reference, the record reflects that the prosecutor then argued that such instruction would misdirect the jury:  “Simply, it's a way of inviting the jury to compromise as opposed to go[ing] for the only issue in the case.   Did he possess at the relevant time period or not?”   The trial court expressed its concern that if the requested instruction were given, it would bolster the prosecution case because there was no evidence that appellant's wife was under the influence.   The trial court cautioned that such instruction would allow the prosecutor to argue that appellant was guilty of both offenses.   The trial court characterized the situation as “a tactical decision” for the defense.   Defense counsel responded:  “Correct.   And certainly the court's observation is correct.   It could be argued.   My only problem is, I don't want to argue that before the jury if the judge ultimately does not want to allow that instruction.”  (Italics added.)   The trial court responded:  “Let me think about it.   We'll let you know before you have to argue.”  (Italics added.)   The prosecutor indicated his intention “to include that argument as to his being under the influence anyway, ․” Defense counsel indicated he had anticipated that the prosecutor would do so.

The prosecution's remaining two witnesses testified.   Appellant did not testify and did not call any witnesses.   Both sides rested.

The court held a further conference on appellant's request to instruct on a lesser related offense.   Defense counsel stated in part:  “Yes, I'm going to ․ just reiterate my request that the instruction be given and I be allowed to argue the lesser-related to the jury.”   The trial court indicated it would not give CALJIC No. 17.10, treating with conviction of a lesser included or related offense and implied acquittal of greater crime, because of the strength of the evidence supporting the charged crime.   It suggested that defense counsel “may want to rethink how you're going to proceed.”   Defense counsel indicated that he had considered requesting an instruction on a separate and additional charge only because the court was refusing his request for a lesser-related instruction.

After a recess, the court stated:  “We did discuss the jury instructions.   The [appellant] is now present, and what I will do, rather than take the time to go over each of the instructions that we discuss[ed], what I'll do is, when I read the instructions, it will be deemed that the instructions I read are the ones we agreed upon, unless there is some objection that I've missed something.”   Defense counsel and the prosecutor stipulated.

The defense argument to the jury included that no one had seen anybody in “direct control” of the vial, a review of instructions on circumstantial evidence, and a discussion of the burden of proof.   Defense counsel stated there was no evidence that appellant owned or had driven the van, and no evidence as to how long the vial, which had not been tested for fingerprints, had been in the van.   He reminded the jury that the vial had been found under the driver's seat but that the officers had observed appellant to be sitting in the open sliding-door area of the van.   Counsel argued there was insufficient evidence to prove all the elements of the charged offense beyond a reasonable doubt.

The trial court instructed the jury solely on the charged offense.   Appellant made no objection either during or at the conclusion of the instructions.

As the above review reflects, appellant never “concede[d]” to the jury that he was under the influence.   Given defense counsel's knowledge in advance of argument that the court would not instruct on lesser related offenses and the fact that appellant did not testify he was under the influence, we conclude that appellant could not have relied on the Geiger rule in structuring the defense case, and the exception to Birks ' retroactivity does not apply.

 Appellant also argues that the denial of the under-the-influence instructions denied him his due process right to present a defense.   According to appellant, Birks did not “expressly address the fact that a lesser offense can be a ‘defense.’  [Citation.]” citing Delaney v. Superior Court (1990) 50 Cal.3d 785, 809, 268 Cal.Rptr. 753, 789 P.2d 934.   To the contrary, in Birks the concept of the lesser related offense as a kind of defense is central to the understanding, discussion, and resolution of the problems created by its use:  “The Geiger rule can be unfair to the prosecution, and actually promotes inaccurate fact-finding, because it gives the defendant a superior trial right to seek and obtain conviction for a lesser uncharged offense whose elements the prosecution has neither pled nor sought to prove.”   (19 Cal.4th at p. 112, 77 Cal.Rptr.2d 848, 960 P.2d 1073, italics added.)   Delaney merely mentions the lesser related offense concept as one of several possible aspects of a defense case in a fair trial, an inclusion which today would be unwarranted given the holding of Birks.

Employing another tact, appellant states that “domestic rules of evidence may not be invoked to preclude a criminal defendant from establishing that he has been denied a fair trial.  [Citations.]”  Appellant continues:  “[B]ecause the lesser-related offense was a primary focus of the defense theory in appellant's case, the state rule enunciated in Birks was violative of his right to present a defense and cannot be applied to him.”   Appellant is attempting to equate the denial of requests for instruction on lesser related offenses with the exclusion of evidence.   The argument is specious.

Appellant further argues that the lesser related offense instruction was essential to clarify the elements of the charged possession offense and should have been given for comparison even if the jury could not find appellant guilty of the lesser related offense.   Appellant states in support of this position:  “Thus, appellant should still have a right after Birks to an instruction that informs the jury that if it finds that he committed the related offense but not the charged offense, it must acquit,” citing the pre-Birks cases People v. Preston (1973) 9 Cal.3d 308, 107 Cal.Rptr. 300, 508 P.2d 300, and People v. Johnson (1950) 99 Cal.App.2d 717, 222 P.2d 335.   Such comparison was not needed because the record reflects that the trial court instructed the jury on all of the elements of the charged offense,1 as well as evaluation of evidence, burden of proof, and intent.

We conclude there are no grounds upon which Geiger continues to apply to the instant case.

3. Request for Remand

At a February 27, 1996 sentencing hearing, appellant asked the court to strike his prior convictions in the interests of justice (Pen.Code, § 1385).   The court denied the request, stating that it did not believe it had the discretion to do so, “[a]nd in any event, if the court does have the power to strike the strike under 1385, it has to be in the furtherance of justice, and I see nothing set forth in counsel's moving papers or in the preplea report that would indicate that justice would be furthered by striking the strike.”   The court did not agree with defense counsel that “a husband-and-wife situation,” the amount of narcotics involved, and the nature of the underlying felony were mitigating factors.   The court noted that appellant had been on probation at the time of the instant offense, his prior performance on probation had been unsatisfactory, and he had served a prison term, finding that the aggravating factors predominated.   The court continued:  “I just don't see that this is a case where I could state reasons on the record that would justify striking the strike, even if I had the power to do so.”

Appellant notes that People v. Superior Court (Romero), supra, 13 Cal.4th 497, 53 Cal.Rptr.2d 789, 917 P.2d 628, which determined that the trial court does have discretion to strike Three Strikes priors in the interest of justice, was filed June 20, 1996, after the sentencing hearing in the instant case.   Appellant argues that the case must be remanded to permit the trial court an opportunity to exercise its discretion.   We disagree.

 Romero provides that a petition or appeal “may be summarily denied if the record shows that the sentencing court was aware that it possessed the discretion to strike prior felony conviction allegations without the concurrence of the prosecuting attorney and did not strike the allegations, or if the record shows that the sentencing court clearly indicated that it would not, in any event, have exercised its discretion to strike the allegations.  [Citation.]”  (People v. Superior Court (Romero), supra, 13 Cal.4th at p. 530, fn. 13, 53 Cal.Rptr.2d 789, 917 P.2d 628, italics added;  see also People v. Askey (1996) 49 Cal.App.4th 381, 388-389, 56 Cal.Rptr.2d 782.)   Here, the court did give a clear indication that it would not exercise such discretion in appellant's favor.   Remand is not required.

4. The Sentence Imposed

The trial court sentenced appellant to a base term of 25 years to life, enhanced by a consecutive sentence of 1 year (Pen.Code, § 667.5, subd. (b)), a total of 26 years to life.   The trial court indicated its belief that although the punishment was severe it was not so grossly disproportionate that it would shock the conscience of the court, and it did not agree with defense counsel that the sentence violated the Eighth Amendment prohibition against cruel and unusual punishment.   It had previously found that appellant had been on probation at the time of the instant offense, his prior performance on probation had been unsatisfactory, and he had served prison terms in the past.

 Appellant contends that his sentence constitutes cruel and unusual punishment under the circumstances of this case and must be modified.   He asserts that the sentence is grossly disproportionate.   He points out the nature of the committing offense;  the fact that his two other “strikes,” both robbery convictions, occurred in the “1980's” and resulted in “short” prison terms;  and he compares the sentence imposed to those mandated for other offenses within this jurisdiction, such as first and second degree murder, and suggests that it compares unfavorably with those imposed in sister states.

Appellant focuses primarily on the committing offense.   Although case law holds that it is the recidivism that is being punished (People v. Cooper (1996) 43 Cal.App.4th 815, 823-828, 51 Cal.Rptr.2d 106), appellant gives only passing recognition to the fact that recidivism is relevant to sentencing.   Instead of fully addressing this issue, he analogizes his situation to that of the defendant in In re Lynch (1972) 8 Cal.3d 410, 105 Cal.Rptr. 217, 503 P.2d 921, wherein the Court reversed as disproportionate, and therefore violative of the state constitutional ban on cruel or unusual punishment, a potential life sentence for a second offense of indecent exposure.   The two cases are not comparable.   The Lynch Court determined that although the potential for recidivism was high, the offense of indecent exposure did not justify the greatly enhanced punishment.  (In re Lynch, supra, 8 Cal.3d at p. 433, 105 Cal.Rptr. 217, 503 P.2d 921.)   Appellant's record reflects that he is a danger to society.

Appellant was born August 23, 1964.   He was convicted on February 5, 1986, of armed robbery and received a 2-year prison term.   He was ordered into a diagnostic commitment for up to 90 days.   He was discharged from custody on August 18, 1986, but on March 10, 1987, he was returned from work furlough to finish his term.   On September 14, 1988, appellant again was convicted of robbery, receiving a 7-year term.   The record indicates that appellant also was convicted of robbery on February 21, 1989, and released on September 7, 1993.   On October 6, 1994, appellant was convicted of battery and sentenced to 10 days in jail and 24 months probation.   On March 17, 1995, appellant again was convicted of battery and was sentenced to 30 days in jail and 24 months probation, consecutive to the probation term imposed in the 1994 case.   The probation officer's report indicates that appellant reported he had used a variety of drugs over the previous 19 years.   The probation officer assessed appellant's 5-year employment and income stability as poor.   The report continues:  “[Appellant] has already served prison terms and knew full well that any breach of the law would have serious repercussions.   He chose to ignore this fact and again, continued his involvement in criminal activity.   [¶] ․ [Appellant], by committing the present offense, has shown that he is a threat to the community and as such, must be removed for an extended period of time.  [Appellant], in the past, has been afforded other opportunities to become a productive member of society, but it is evident by the present offense that these efforts have failed.   It is therefore recommended that [appellant] again be sent back to state prison.”   The probation officer included as facts in aggravation that the evidence indicated premeditation, that appellant had been on summary probation when he committed the instant offense, and that his prior performance on summary probation had been unsatisfactory.   There were no circumstances in mitigation.

In appellant's record, crimes of violence predominate.   His recidivist behavior and failure to avail himself of opportunities for rehabilitation support the sentence imposed.  (People v. Cartwright (1995) 39 Cal.App.4th 1123, 1136, 46 Cal.Rptr.2d 351;  People v. Shippey (1985) 168 Cal.App.3d 879, 887, 214 Cal.Rptr. 553.)   The record discloses no basis for reversal on the ground of disproportionality.  (Harmelin v. Michigan (1991) 501 U.S. 957, 965, 111 S.Ct. 2680, 115 L.Ed.2d 836;  Rummel v. Estelle (1980) 445 U.S. 263, 268, 284-285, 100 S.Ct. 1133, 63 L.Ed.2d 382;  People v. Kinsey (1995) 40 Cal.App.4th 1621, 1630-1631, 47 Cal.Rptr.2d 769.)


The judgment is affirmed.


1.   The trial court instructed the jury pursuant to CALJIC No. 12.00 as follows:  “Defendant is accused in the information of having committed the crime of illegal possession of a controlled substance, a violation of Section 11377(a) of the Health and Safety Code. [¶] Every person who possesses a controlled substance, namely, Phencyclidine, commonly referred to as ‘PCP’ is guilty of the crime of illegal possession of a controlled substance, in violation of Health and Safety Code, Section 11377(a).  [¶] In order to prove such crime, each of the following elements must be proved:  [¶] 1. A person exercised control or the right to control a certain controlled substance, [¶] 2. Such person had knowledge of its presence, [¶] 3. Such person had knowledge of its nature as a controlled substance, and [¶] 4. The substance was in an amount sufficient to be used as a controlled substance.  [¶] There are two kinds of possession:  actual possession and constructive possession.  [¶] Actual possession requires that a person knowingly exercise direct physical control over a thing.  [¶] Constructive possession does not require actual possession but does require that a person knowingly exercise control or the right to control a thing, either directly or through another person or persons.  [¶] One person may have possession alone, or two or more persons together may share actual or constructive possession.”


CHARLES S. VOGEL, P.J., and CURRY, J., concur.

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