PEOPLE v. RUSCO (1997)

Court of Appeal, Fifth District, California.

The PEOPLE, Plaintiff and Respondent, v. Rodney J. RUSCO, Defendant and Appellant.

No. F024218.

Decided: January 28, 1997

Alan C. Messarra, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Robert R. Anderson, Assistant Attorney General, John G. McLean and R. Todd Marshall, Deputy Attorneys General, for Plaintiff and Respondent.

Convicted of both possession of marijuana for sale and simple possession of the same marijuana (Health & Saf.Code, § 11357, subd. (c), more than 28.5 grams),¹ defendant complains of numerous errors.   Of his contentions, one has merit.   Accordingly, we will reverse the conviction of simple possession.²

FACTS **

PROCEDURAL SUMMARY

Defendant was charged with possession of marijuana for sale (count 1, § 11359), misdemeanor possession of more than 28.5 grams of marijuana (count 2, § 11357, subd. (c)) (106.05 grams in total), and driving while under the influence of alcohol and with a suspended license (counts 3 [Veh.Code, § 23152, subd. (a) ], 4 [Veh.Code, § 23152, subd. (b) ] and 5 [Veh.Code, § 14601.5, subd. (a) ] ).  Various enhancements were alleged.

The jury found defendant guilty of all counts;  defendant then admitted prior conviction allegations as to counts 1, 3 and 4.

DISCUSSION

I. Conviction of Both Possession and Possession for Sale

 Defendant contends the trial court erred by refusing to instruct the jury that possession of more than 28.5 grams of marijuana is an alternative charge and a lesser included offense of possession of marijuana for sale.   We agree.

 An offense is included in another if reference to its elements reveals it is necessarily committed when the greater offense is committed.  (People v. Pearson (1986) 42 Cal.3d 351, 228 Cal.Rptr. 509, 721 P.2d 595.)   Possession of marijuana for sale is defined as possession of marijuana in an amount usable for consumption or sale with knowledge of its presence and narcotic nature and with the specific intent to sell it.  (Weber v. Superior Court (1973) 30 Cal.App.3d 810, 815, 106 Cal.Rptr. 593.)   Possession of marijuana is defined as possession of marijuana with knowledge of its narcotic character and presence.  (People v. Francis (1969) 71 Cal.2d 66, 73, 75 Cal.Rptr. 199, 450 P.2d 591.)   Traditionally possession for sale has been considered to be an aggravated form of possession, and it has been recognized that simple possession is a necessarily included lesser offense of possession for sale.   (People v. Clay (1969) 273 Cal.App.2d 279, 284-285, 78 Cal.Rptr. 56.)

 Essentially, the People contend that the minimum threshold amount necessary for a violation of section 11357, subdivision (c) (possession of more than 28.5 grams of marijuana) adds an element which is not requisite to a violation of section 11359 (possession of marijuana for sale), which requires no minimum amount.   Therefore, “[s]ince it is possible to commit the crime of possession for sale without necessarily possessing more than 28.5 grams … possession of more than 28.5 grams of marijuana is not a necessarily lesser included offense .…” The People's argument overlooks a line of authority which generally recognizes that when a statute defining a crime merely differentiates among circumstances of its commission for the sake of gradation or fixing degree, the lesser manner of violation is necessarily included in the greater.  (People v. Collins (1960) 54 Cal.2d 57, 59, 4 Cal.Rptr. 158, 351 P.2d 326 [forcible rape of a female necessarily includes unlawful sexual intercourse with a female under the age of 18 years (former Pen.Code, § 261) ];  People v. Garcia (1995) 41 Cal.App.4th 1832, 1853-1855, 50 Cal.Rptr.2d 127, and People v. Watson (1983) 150 Cal.App.3d 313, 320, 198 Cal.Rptr. 26 [gross vehicular manslaughter is necessarily included in murder despite the fact that murder may be committed without a vehicle or gross negligence];  see also People v. Miller (1974) 43 Cal.App.3d 77, 81, 117 Cal.Rptr. 491, recognizing that robbery is simply an aggravated form of theft [which may be committed in two degrees, depending upon the value or type of property stolen (Pen.Code, §§ 484, 486, 487-490), with the additional element of force or fear].)  Subdivision (b) and (c) of section 11357 simply establish, on the basis of quantity, grades of the misdemeanor offense of simple possession of marijuana (subdivision (b) provides a lesser penalty for those in possession of not more than 28.5 grams).   Before 1976 the law prohibited possession of marijuana without specification of quantity (Stats.1973, ch. 1078, § 8);  in response to concern over the severity of the punishment for marijuana possession,³ the Legislature enacted the statute essentially in its present form, significantly lowering the penalty for simple possession and differentiating by quantity.  (Governing Board v. Mann (1977) 18 Cal.3d 819, 826-828, 135 Cal.Rptr. 526, 558 P.2d 1.)   Nothing on the face of the statute reveals any intent to displace the established principle that simple possession is necessarily included in possession for sale.   By changing only the penalty provisions of a statute and not the basic substantive provisions, the Legislature presumably acquiesced in previous constructions given to possession statutes by the courts.  (People v. Rogers (1971) 5 Cal.3d 129, 136, 95 Cal.Rptr. 601, 486 P.2d 129.)   Accordingly, just as robbery encompasses forcible taking of any value, so too, does possession for sale necessarily include possession of any amount of marijuana.   Our conclusion compels reversal of count 2.⁴ (People v. Pearson, supra, 42 Cal.3d at p. 355, 228 Cal.Rptr. 509, 721 P.2d 595;  People v. Garcia, supra, 41 Cal.App.4th at pp. 1851-1852, 50 Cal.Rptr.2d 127.)

II.-III.***

DISPOSITION

Judgment on count 2 is reversed.   The superior court is directed to prepare an amended abstract of judgment and send it to the California Rehabilitation Center.   In all other respects, the judgment is affirmed.

FOOTNOTES

1.   All statutory references are to the Health and Safety Code unless otherwise indicated.

2.   All other contentions are addressed in the unpublished portion of this opinion.

FOOTNOTE.   See footnote *, ante.

3.   A first offense of possession of any amount of marijuana had been punishable by up to one year in jail or from one to ten years in prison.

4.   Defendant also argues this error affects both counts and compels their reversal.   We conclude that the error only affects the lesser count.   It is established that a failure to instruct on a lesser included offense is not prejudicial to the greater offense where the jury necessarily resolved the factual question adversely to the defendant under the instructions given.  (People v. Turner (1990) 50 Cal.3d 668, 690-691, 268 Cal.Rptr. 706, 789 P.2d 887.)   Here, the jury's verdict reflects that it considered both simple possession and possession for sale and found defendant guilty of both;  the offenses are not factually or logically inconsistent.

FOOTNOTE.   See footnote *, ante.

BUCKLEY, Associate Justice.

ARDAIZ, P.J., and STONE (WM.A.), J., concur.