People v. Alvarado CA2/2 ( 2022 )

Filed 12/16/22 P. v. Alvarado CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B317626
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA495872)
v.
ARTURO ALVARADO,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County. David R. Fields, Judge. Affirmed.
Olivia Rose Meme, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Kenneth C. Byrne and Blake
Armstrong, Deputy Attorneys General, for Plaintiff and
Respondent.
_________________________________
Arturo Alvarado appeals the judgment entered following a
jury trial in which he was convicted of possession of
methamphetamine for sale (Health & Saf. Code,1 § 11378;
count 1) and driving or taking a vehicle without consent (Veh.
Code, § 10851, subd. (a); count 2). The trial court found the prior
strike allegation true and sentenced appellant to an aggregate
term of 5 years 4 months in state prison.
Appellant’s sole contention on appeal is that the trial court
prejudicially erred in failing to instruct the jury on simple
possession as a lesser included offense of possession of
methamphetamine for sale. Although the trial court erred in
failing to give the lesser included offense instruction, we conclude
the error was harmless.
FACTUAL BACKGROUND
On May 16, 2021, around 1:50 p.m., Ayanna Stewart
parked the silver 2020 Nissan Rogue SUV she had rented from
Enterprise Rent-A-Car in the parking lot of an Office Depot store
on South Figueroa Street in Los Angeles. Without locking the
car, and leaving the key fob in the center console, Ms. Stewart
entered the store. When she returned to the parking lot
approximately 20 minutes later, the vehicle was gone. Ms.
Stewart called several tow companies, but none had towed the
vehicle away. The next day she reported the SUV stolen to
Enterprise and filed a stolen vehicle report with the Los Angeles
Police Department.
Around 4:00 in the morning on May 28, 2021, Los Angeles
Police Officer Justin Freund and his partner were on patrol near
the corridor of Grand Avenue between Gage and Florence
1 Undesignated statutory references are to the Penal Code.
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Avenues. A large population of unhoused people resides in the
area, and it is known for a high concentration of narcotics
activity, narcotics sales, and violent crime. Officer Freund
observed the silver Nissan Rogue Ms. Stewart had reported
stolen make an unsafe left turn at a high rate of speed as it
traveled away from the high crime neighborhood. When the
Nissan turned, its tires audibly “chirped” and two oncoming
vehicles slowed down to avoid a collision.
The officers initiated a traffic stop, and Officer Freund
ordered the driver, whom he identified as appellant, out of the
vehicle. When he stepped out of the car, appellant was wearing a
satchel or fanny pack across his shoulders with the pouch on the
front of his chest. Officer Freund opened the satchel and found
two clear plastic bags containing 37.8 grams of
methamphetamine as well as $387 in cash. Appellant was also
carrying a narcotics pipe and a rolled-up dollar bill, both of which
contained methamphetamine residue.
Officer Freund noticed the vehicle’s ignition had been
removed or “punched,” enabling a person to bypass the ignition
and start the engine without a key. A baseball bat was in the
footwell of the front passenger seat.
Appellant was arrested. He did not display any objective
signs of intoxication, nor did he appear to be under the influence
of a controlled substance. During booking, appellant told Officer
Freund that he was unemployed and unhoused.
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DISCUSSION
The Trial Court Erred in Failing to Instruct the
Jury on the Lesser Included Offense of Simple
Possession, but the Error Was Harmless
A. Applicable legal principles
“ ‘In criminal cases, even in the absence of a request, a trial
court must instruct on general principles of law relevant to the
issues raised by the evidence and necessary for the jury’s
understanding of the case.’ [Citation.] That duty extends to
instructions on the defendant’s theory of the case, ‘including
instructions “as to defenses ‘ “that the defendant is relying on
. . . , or if there is substantial evidence supportive of such a
defense and the defense is not inconsistent with the defendant’s
theory of the case.” ’ ” ’ ” (People v. Townsel (2016) 63 Cal.4th 25,
58; People v. Wilson (2021) 11 Cal.5th 259, 295 (Wilson); People v.
Martinez (2010) 47 Cal.4th 911, 953; see People v. Breverman
(1998) 19 Cal.4th 142, 154 (Breverman).)
As our Supreme Court has observed, “The obligation to
instruct on lesser included offenses exists even when as a matter
of trial tactics a defendant not only fails to request the
instruction but expressly objects to its being given. [Citations.]
Just as the People have no legitimate interest in obtaining a
conviction of a greater offense than that established by the
evidence, a defendant has no right to an acquittal when that
evidence is sufficient to establish a lesser included offense.”
(Breverman, supra, 19 Cal.4th at pp. 154–155.) Thus, “[i]t is
error for a trial court not to instruct on a lesser included offense
when the evidence raises a question whether all of the elements
of the charged offense were present, and the question is
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substantial enough to merit consideration by the jury.” (People v.
Booker (2011) 51 Cal.4th 141, 181.)
Nevertheless, “ ‘[a]n instruction on a lesser included offense
must be given only if there is substantial evidence from which a
jury could reasonably conclude that the defendant committed the
lesser, uncharged offense, but not the greater, charged offense.’ ”
(People v. Nelson (2016) 1 Cal.5th 513, 538; Wilson, supra, 11
Cal.5th at p. 295 [“There must be, at a minimum, substantial
evidence demonstrating the lesser offense was committed”].)
“The ‘substantial evidence requirement is not satisfied by “ ‘any
evidence . . . no matter how weak’ ” ’ ” (Nelson, at p. 538), and
“[s]peculative, minimal, or insubstantial evidence is insufficient
to require an instruction on a lesser included offense.” (People v.
Simon (2016) 1 Cal.5th 98, 132; Wilson, at p. 298.)
Whether the trial court had a sua sponte duty to instruct
on a lesser included offense is subject to our de novo review.
(Wilson, supra, 11 Cal.5th at p. 295; People v. Souza (2012) 54
Cal.4th 90, 113.) A trial court’s failure to instruct on a lesser
included offense supported by substantial evidence constitutes
state law error (People v. Gonzalez (2018) 5 Cal.5th 186, 196
(Gonzalez)), which requires us to evaluate whether it is
“ ‘ “reasonably probable that a result more favorable to the
appealing party would have been reached in the absence of the
error” ’ ” (id. at p. 195).
B. The trial court erred in failing to instruct on the
lesser included offense of simple possession
Simple possession of a controlled substance is a lesser
included offense of possession of the same controlled substance
for sale. (People v. Oldham (2000) 81 Cal.App.4th 1, 16; People v.
Saldana (1984) 157 Cal.App.3d 443, 456–457.) Thus, if there was
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substantial evidence that appellant was guilty of simple
possession of methamphetamine but not possession for sale, the
trial court erred in failing to instruct on the lesser offense.
(Wilson, supra, 11 Cal.5th at p. 295.)
The Attorney General contends there was no substantial
evidence to support a simple-possession instruction. We
disagree.
Appellant’s defense was that he was a drug addict and
possessed the methamphetamine for personal use, not for sale.
In addition to the large quantity of unbroken methamphetamine
and $387 in cash appellant was carrying in a satchel across his
chest, appellant also possessed a narcotics pipe and a rolled-up
dollar bill, both of which contained methamphetamine residue,
indicating personal use of the drug. No scale, baggies, “burner”
cell phones, pager, “pay/owe” ledger, or any other indicia of
narcotics sales were found in the vehicle or on appellant’s person.
After opining that the circumstances in the prosecution’s
hypothetical strongly indicated the methamphetamine was
possessed for sale, the prosecution’s expert admitted on cross-
examination that it can be less expensive to purchase
methamphetamine in bulk and the absence of sales
paraphernalia could indicate personal use. The expert further
speculated that it would not be “out of the realm of possibility”
that someone could smoke the methamphetamine in the quantity
and form it was recovered from appellant, “depending on the size
of the pipe.” And he conceded that some of the
methamphetamine recovered here could fit into the pipe
appellant had. The expert also agreed that a methamphetamine
addict could build a tolerance to the drug over time, requiring
progressively larger doses to obtain the same effect. Finally,
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observing that sometimes “bad things can happen” during a drug
deal and “even buyers need protection,” defense counsel
suggested that appellant carried a baseball bat for protection in
an area that has seen “a large uptick in violent crimes such as
shootings, robberies [and] drug-related crimes,” even if he was
not selling drugs.
Taken as a whole, the evidence of appellant’s possession of
the pipe and rolled-up dollar bill with drug residue together with
the testimony elicited on cross-examination of the prosecution
expert sufficed to warrant instruction on the lesser included
offense of simple possession of methamphetamine. The trial
court erred in failing to so instruct the jury.
C. The error was harmless
Although the lesser included instruction on simple
possession was warranted here, the trial court’s error in failing to
give it was harmless. A “trial court’s failure to instruct on lesser
included offenses . . . is subject to harmless error review” under
People v. Watson (1956) 46 Cal.2d 818, 836. (Gonzalez, supra, 5
Cal.5th at p. 199; see People v. Hicks (2017) 4 Cal.5th 203, 215
[“In a noncapital case, the trial court’s failure to instruct on
necessarily included offenses is reviewed for prejudice under the
Watson standard”]; Breverman, supra, 19 Cal.4th at pp. 176–
178.) Our analysis of prejudice from the failure to instruct on the
lesser offenses thus “ ‘focuses not on what a reasonable jury could
do, but what such a jury is likely to have done in the absence of
the error under consideration. In making that evaluation, an
appellate court may consider, among other things, whether the
evidence supporting the existing judgment is so relatively strong,
and the evidence supporting a different outcome is so
comparatively weak, that there is no reasonable probability the
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error of which the defendant complains affected the result.’ ”
(People v. Beltran (2013) 56 Cal.4th 935, 956, quoting Breverman,
supra, 19 Cal.4th at p. 177.)
Viewing the record as a whole, we find the evidence of
intent to sell to be very strong and the evidence of simple
possession extremely weak. Accordingly, we conclude it is not
reasonably probable that if given the choice between the greater
and lesser offense, the jury would have convicted appellant of
simple possession of methamphetamine rather than possession
for sale. (Breverman, supra, 19 Cal.4th at p. 178.)
Appellant possessed 37.8 grams of unbroken
methamphetamine, enough for 74 one-half gram doses of the
drug, with a per-dose street value of approximately $1,110. At
the time of his arrest, appellant was unemployed and homeless.
Yet he was carrying $387 in cash and methamphetamine worth
more than $1,000 on his person. Appellant was also driving a
stolen vehicle at 4:00 in the morning in an area known for high
crime and narcotics activity. Despite his possession of a pipe and
rolled-up dollar bill⎯both containing methamphetamine
residue⎯appellant showed no signs of intoxication and did not
appear to be under the influence of any controlled substance.
The prosecution expert agreed that the possession of the
pipe and rolled-up bill with methamphetamine residue indicated
personal use of the drug. But this did not change the expert’s
opinion that the possession of such a large quantity of
methamphetamine was for sale, because many
methamphetamine users are also sellers in order to support their
habit. Similarly, the absence of baggies, a scale, “burner” cell
phones, a pager, a “pay/owe” ledger, or any other indicia of
narcotics sales did not change the expert’s opinion. The expert
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explained that sellers will typically keep such items separate
from their narcotics and cash to avoid being caught by police with
everything together in one place. Finally, although the expert
acknowledged that an addict could develop a tolerance to
methamphetamine and might want to buy his drugs “in bulk” so
as not to run out, the quantity and unbroken form of the
methamphetamine here⎯the size of a golf ball⎯strongly
indicated possession for sale.
Under the totality of these circumstances, it is not
reasonably probable that had the jury been instructed on simple
possession it would have found that appellant possessed the
methamphetamine for personal use rather than for sale.
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DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
LUI, P. J.
We concur:
CHAVEZ, J.
BENKE, J.*
*Retired Associate Justice of the Court of Appeal, Fourth
Appellate District, Division One, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
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