PEOPLE v. CARTER

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Court of Appeal, Third District, California.

The PEOPLE, Plaintiff and Respondent, v. Raymond CARTER, Defendant and Appellant.

No. C001316.

Decided: July 29, 1988

Albert W. Brodie, Sacramento, under appointment by the Court of Appeal, for defendant and appellant. John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., Edmund D. McMurray and Doris A. Calandra, Deputy Attys. Gen., for plaintiff and respondent.

In this case, we hold that CALJIC No. 12.02 (1979 Rev.) correctly states the elements of the crime of transportation of a controlled substance defined by Health and Safety Code section 11352.1

After a jury trial, defendant Raymond Carter was convicted of transportation of a controlled substance (cocaine).  (§ 11352.)

Sentenced to state prison, defendant appeals contending:  (1) the trial court erroneously instructed the jury and (2) there is insufficient evidence to sustain the conviction.

In this published portion of the opinion, we shall consider and reject defendant's claim of instructional error.   Since the circumstances of the crime are not germane to this issue, we set them forth in an unpublished portion of the opinion where we discuss and reject defendant's claim of insubstantial evidence.

DISCUSSION

I

Defendant argues the trial court erroneously failed to instruct the jury that knowledge of the presence of a controlled substance is a necessary element of the crime of transportation of a controlled substance defined by section 11352.   We do not agree.

At the time of defendant's crime, as now, section 11352 did not expressly require that a violator have knowledge of the presence or nature of a controlled substance.2  However, construing identical statutory language in former section 11531 (Stats.1970, ch. 1098, § 9, p. 1950, repealed Stats.1972, ch. 1407, § 2, p. 2987), our Supreme Court has held that the offense of transportation of an unlawful drug is committed only where a defendant has knowledge of both the presence of the drug and its narcotic character.  (People v. Rogers (1971) 5 Cal.3d 129, 133, 95 Cal.Rptr. 601, 486 P.2d 129;  see People v. Daniels (1975) 14 Cal.3d 857, 860, 122 Cal.Rptr. 872, 537 P.2d 1232;  Rideout v. Superior Court (1967) 67 Cal.2d 471, 474–475, 62 Cal.Rptr. 581, 432 P.2d 197.)

As relevant here, the trial court instructed the jury with CALJIC No. 12.02 (1979 Rev.), as follows:  “Defendants are charged in Count One of the information, with the commission of the crime of violation of Section 11352 of the Health and Safety Code.  [¶] Every person who transports any controlled substance, such as cocaine, with knowledge of its nature as a controlled substance, is guilty of the crime of violation of Section 11352 of the Health and Safety Code.  [¶] In order to prove the commission of such crime, each of the following elements must be proved:  [¶] 1. That a person unlawfully transported cocaine, a controlled substance, [¶] 2. That such person had knowledge of its nature as a controlled substance.”

Defendant complains the instruction did not tell the jury it had to find defendant knew of the presence of the controlled substance.

However, the instruction informed the jury it could convict only if it found defendant knew the transported substance was a controlled substance during its transportation.   Thus, the second paragraph of the instruction defines a violator as “Every person who transports any controlled substance ․ with knowledge of its nature as a controlled substance, ․”  The reasonable meaning of this language is that a defendant must know of the nature of the transported substance during its transportation.   This meaning is reinforced by the use of the past tense in the last paragraph of the instruction, which requires:  “That such person had knowledge of its nature as a controlled substance,” i.e., had such knowledge during the transportation.

Since the instruction reasonably required the jury to find defendant knew of the nature of the transported substance during its transportation, the instruction necessarily required the jury to find defendant knew the substance was present, because defendant could not know what the substance was unless he knew it was there.   Further instruction on the point, as suggested by defendant, would have been redundant.   There was no error.

II ***

DISPOSITION

The judgment is affirmed.

FOOTNOTES

1.   All further statutory references are to the Health and Safety Code.

2.   Health and Safety Code section 11352 provided in 1986 as follows:  “Except as otherwise provided in this division, every person who transports, imports into this state, sells, furnishes, administers, or gives away, or offers to transport, import into this state, sell, furnish, administer, or give away, or attempts to import into this state or transport (1) any controlled substance specified in subdivision (b), (c), or (e) of Section 11054, specified in paragraph (14), (15), or (20) of subdivision (d) of Section 11054, or specified in subdivision (b) or (c) of Section 11055, or (2) any controlled substance classified in Schedule III, IV or V which is a narcotic drug, unless upon the written prescription of a physician, dentist, podiatrist, or veterinarian licensed to practice in this state, shall be punished by imprisonment in the state prison for three, four, or five years.”  (Stats.1984, ch. 1635, § 52.)   The current statute contains no express requirement of knowledge.  (See Stats.1987, ch. 970, § 3.)

FOOTNOTE.   See footnote *, ante.

SIMS, Acting Presiding Justice.

MARLER and DEEGAN †, JJ., concur.