Filed 10/23/13 P. v. Clifton CA3
                                           NOT TO BE PUBLISHED



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 This opinion has not been certified for publication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
                                      THIRD APPELLATE DISTRICT
                                                        (Shasta)
                                                            ----



THE PEOPLE,                                                                                  C071446

                   Plaintiff and Respondent,                                      (Super. Ct. No. 11F1001)

         v.

MICHAEL ANGELO CLIFTON,

                   Defendant and Appellant.




         Defendant Michael Angelo Clifton committed the crime of possessing
pseudoephedrine with the intent to manufacture methamphetamine. (Health & Saf. Code,
§ 11383.5, subd. (b)(1).) Convicted by jury of the crime and placed on probation,
defendant appeals. He contends: (1) the trial court erred by not instructing the jury on
several lesser offenses, (2) his statement to police should have been suppressed, and
(3) the evidence was insufficient to support the conviction. Finding no error, we affirm.




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                                          FACTS
      Officer Todd Cogle of the Redding Police Department stopped a vehicle driven by
Jeffrey Longmire, whom Officer Cogle suspected of manufacturing methamphetamine.
Defendant was the front seat passenger. Officer Cogle observed defendant trying to hide
something. After Officer Cogle and other officers detained the occupants of the car,
including backseat passengers, a search of the car revealed a bag containing
pseudoephedrine tablets on the console between the driver and front passenger seats.
Two partially crushed tablets were on the front passenger seat. Also found were several
broken blister packs that had contained pseudoephedrine tablets on the passenger side
floorboard.
      Defendant admitted that he had been buying pseudoephedrine to give to Longmire
to manufacture methamphetamine. In return for making the purchases, Longmire had
supplied defendant with methamphetamine. Defendant had no tablets on his person, and
his hands were not stained with red dye. The search of Longmire’s car also revealed
equipment for methamphetamine manufacture in the trunk.
                                      DISCUSSION
                                             I
                         Instructions on Lesser Included Offenses
      Defendant contends that the trial court prejudicially erred by not instructing the
jury, on its own motion, on three lesser offenses. The contention is without merit.
       Defendant argues that the trial court should have instructed on “at least” three
lesser offenses: (1) attempted possession of pseudoephedrine with intent to manufacture
methamphetamine (Health & Saf. Code, § 11383.5, subd. (b)(1); Pen. Code, § 664);
(2) possession of pseudoephedrine with intent to sell for manufacture of
methamphetamine (Health & Saf. Code, §11383.7, subd. (b)(1)); and (3) furnishing




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pseudoephedrine with knowledge that recipient will manufacture a controlled substance
(Health & Saf. Code, §11104, subd. (a)).
       A.     Relevant Law
       “California decisions have held for decades that even absent a request, and even
over the parties’ objections, the trial court must instruct on a lesser offense necessarily
included in the charged offense if there is substantial evidence the defendant is guilty
only of the lesser. [Citations.]” (People v. Birks (1998) 19 Cal.4th 108, 118.) “Under
California law, a lesser offense is necessarily included in a greater offense if either the
statutory elements of the greater offense [elements test], or the facts actually alleged in
the accusatory pleading [accusatory pleading test], include all the elements of the lesser
offense, such that the greater cannot be committed without also committing the lesser.
[Citations.]” (Id. at pp. 117-118.)
       B.     Analysis
       Defendant did not request instructions on any offense other than the one charged;
therefore, to prevail on appeal he must establish that the trial court had a duty to instruct
on the other offenses on its own motion. Defendant’s argument fails in this regard.
       Before we discuss whether the trial court erred by not giving the instructions, we
must address a mistaken impression on defendant’s part. He argues in both his opening
and reply briefs that the trial court erred, in part, because the evidence at trial supported
giving the instructions he now claims should have been given. In his opening brief, he
states: “The facts in [defendant’s] case support the giving of all three of the above-noted
lesser offenses [sic], all of which are factually included in the evidence and the charged
violation [of] Health and Safety Code section 11383.5.” In his reply brief, he further
states: “There is substantial evidence supporting the giving of the lesser instructions.”
While it is true that a trial court need not instruct on a lesser offense that is not supported
by substantial evidence, there is no duty to instruct on all offenses supported by the
evidence. Therefore, the fact that there was substantial evidence of an offense does not

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support an argument that the trial court had a duty to instruct the jury on that offense if
that offense was not necessarily included in the charged offense. In other words, there is
no duty for the trial court to instruct, on its own motion, concerning related offenses
supported by the evidence. (People v. Birks, supra, 19 Cal.4th at pp. 130-131.)
       Instead of focusing on what the evidence supported (at least at the outset of our
analysis), we focus on the charged crime and what elements are necessarily included in
that offense. (People v. Birks, supra, 19 Cal.4th at pp. 117-118.) Here, the charged
crime was a violation of Health and Safety Code section 11383.5, subdivision (b)(1),
which states, in pertinent part: “Any person who, with the intent to manufacture
methamphetamine, . . . possesses . . . pseudoephedrine, . . . is guilty of a felony . . . .”
Thus, the elements of the crime are: (1) possession of pseudoephedrine and (2) intent to
use the pseudoephedrine to manufacture methamphetamine. (CALCRIM No. 2337,
given to the jury in this case.) Considering that there are only two elements of the crime
charged, which proposition defendant agrees with as stated in his opening brief, it is
immediately apparent that, if a crime is to be necessarily included in the crime charged, it
can, as a logical matter, have only one element -- either possession of pseudoephedrine or
intent to manufacture methamphetamine. But neither of these elements, alone, is a crime.
Therefore, under the elements test, the crime charged (a violation of Health & Saf. Code,
§ 11383.5) has no necessarily included offenses.
       Defendant makes no attempt to apply the accusatory pleading test to the question
of whether the trial court had a duty to instruct on lesser included offenses. Therefore,
we need not discuss that test. (In any event, the crime was charged in language
substantially similar to the statutory language.)
       With these principles in mind, we consider each of the crimes defendant claims
were lesser included offenses of the charged offense.
       Defendant first claims that an attempt to commit the crime was a lesser included
offense and, therefore, the trial court should have instructed on attempt. In support of this

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proposition, defendant states that the trial court, after instructing the jury and sending it
off to deliberate, worried that it should have instructed on attempt as a lesser included
offense. That the trial court thought it might have erred, however, does not support an
argument on appeal that the trial court actually erred.
       An attempt to commit a crime is generally not a lesser included offense of the
substantive crime because the attempt requires that the person have the specific intent to
commit the crime. (See, e.g., People v. Bailey (2012) 54 Cal.4th 740, 749-750 [specific
intent to escape an element of attempt to escape].) Here, while there was an element of
specific intent involved -- that is, to manufacture methamphetamine -- there was no
specific intent required to possess the pseudoephedrine. But to prove that defendant
attempted to possess pseudoephedrine with intent to manufacture methamphetamine, the
prosecution would have been required to prove the additional element that defendant had
the specific intent to possess the pseudoephedrine. (See ibid.) Accordingly, even if
defendant had not based his argument on the trial court’s belief that it may have erred,
defendant’s argument that the trial court erred by not instructing on attempt to commit the
charged offense would have been without merit.
       Defendant’s second and third assertions of included offenses on which the trial
court had a duty to instruct are based on the same argument, which fails. Defendant notes
that the Legislature has criminalized the various steps toward manufacturing
methamphetamine. He cites People v. Perez (2005) 35 Cal.4th 1219, a case discussing
those steps and the statutes criminalizing those steps. The court stated: “In the case
where A supplies precursors to B, who manufactures methamphetamine, there are in
essence four sequential steps: (1) A possesses the precursors, with the intent to sell or
transfer them for manufacture; (2) A sells or transfers them to B, with the knowledge or
intent that B will manufacture; (3) B possesses them with the intent to manufacture; and
(4) B manufactures. The Legislature has enacted a series of statutes that separately
address these steps in the manufacturing chain.” (Id. at p. 1229.) The court reviewed the

                                               5
statutes making each step a criminal act, and the court observed: “These statutes
generally reflect a legislative judgment that each successive step that moves closer to the
actual manufacture of methamphetamine is a more serious crime meriting increased
punishment . . . .” (Ibid.)
       Defendant surmises that, since each step in the process toward manufacture of
methamphetamine is more serious than the previous step, the previous step is a lesser
included offense of the next step. Therefore, according to defendant, possession of
pseudoephedrine with intent to sell for manufacture of methamphetamine (step 1) (Health
& Saf. Code, § 11383.7, subd. (b)(1)) and furnishing pseudoephedrine with knowledge
that the recipient will manufacture a controlled substance (step 2) (Health & Saf. Code, §
11104, subd. (a)) are lesser included offenses of the offense charged in this case --
possession of pseudoephedrine with intent to manufacture methamphetamine (step 3).
       Perez, however, did not hold that the previous steps in the sequence are included
offenses in the later steps. It did not discuss the concept of lesser included offenses at all.
Furthermore, the additional elements of the other crimes that defendant now claims
should have been presented to the jury defeat an argument that they are lesser included
offenses of the charged offense: one requires the intent to sell (Health & Saf. Code, §
11383.7, subd. (b)(1)) and the other requires furnishing of pseudoephedrine and
knowledge that a recipient of the pseudoephedrine will use it to manufacture
methamphetamine (Health & Saf. Code, § 11104, subd. (a)). Since those are not
elements of the charged offense, the trial court had no duty to instruct on the other
offenses.
       Defendant’s contention that the trial court had a duty to instruct on other offenses,
on its own motion, is without merit.
                                              II
                                   Custodial Interrogation



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       Defendant was detained when the car in which he was a passenger was stopped by
an officer because the driver, Jeffrey Longmire, was suspected of manufacturing
methamphetamine. After defendant was handcuffed and placed in the back of a patrol
car, he made statements (which were recorded) to the officer. Later, the officer arrested
defendant and gave him a Miranda advisement.1 At trial, defendant moved to suppress
statements he made to the officer before the Miranda advisement, claiming that the
statements were part of a custodial interrogation. The trial court denied the motion,
finding that defendant was not in custody at the time. On appeal, defendant renews his
objection to admission of the preadvisement statements. We conclude the trial court did
not err.
       A.     Relevant Law
       In Miranda, the United States Supreme court held that “the prosecution may not
use statements, whether exculpatory or inculpatory, stemming from custodial
interrogation of the defendant unless it demonstrates the use of procedural safeguards
effective to secure the privilege against self-incrimination. By custodial interrogation, we
mean questioning initiated by law enforcement officers after a person has been taken into
custody or otherwise deprived of his freedom of action in any significant way.”
(Miranda, supra, 384 U.S. at p. 444, fn. omitted.)
       “Custody determinations are resolved by an objective standard: Would a
reasonable person interpret the restraints used by the police as tantamount to a formal
arrest? (Berkemer[ v. McCarty (1984)] 468 U.S.[ 420,] 442 [82 L.Ed.2d 317, 336];
People v. Aguilera (1996) 51 Cal.App.4th 1151, 1161.) The totality of the circumstances
surrounding an incident must be considered as a whole. (People v. Boyer (1989) 48
Cal.3d 247, 272, disapproved on another ground in People v. Stansbury (1995) 9 Cal.4th




1      Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694] (Miranda).

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824, 830, fn. 1.) Although no one factor is controlling, the following circumstances
should be considered: ‘(1) [W]hether the suspect has been formally arrested; (2) absent
formal arrest, the length of the detention; (3) the location; (4) the ratio of officers to
suspects; and (5) the demeanor of the officer, including the nature of the questioning.’
(People v. Forster (1994) 29 Cal.App.4th 1746, 1753.) Additional factors are whether
the suspect agreed to the interview and was informed he or she could terminate the
questioning, whether police informed the person he or she was considered a witness or
suspect, whether there were restrictions on the suspect’s freedom of movement during the
interview, and whether police officers dominated and controlled the interrogation or were
‘aggressive, confrontational, and/or accusatory,’ whether they pressured the suspect, and
whether the suspect was arrested at the conclusion of the interview. (Aguilera, at p.
1162.)” (People v. Pilster (2006) 138 Cal.App.4th 1395, 1403-1404, fn. omitted.)
       B.     Facts
       Officer Cogle stopped the car being driven by Longmire because Officer Cogle
suspected Longmire was operating a methamphetamine manufacturing operation.
Several officers arrived at the scene of the stop. Other people were in Longmire’s car,
including defendant, who was in the front passenger seat. A firearm was found on the
floorboard under the driver’s seat. For officer safety, the occupants of the car, including
defendant, were removed from the car and handcuffed, and defendant was placed in the
backseat of Officer Cogle’s car. Officer Cogle told defendant that he was not under
arrest and that the officers were just trying to figure out what was going on. About five
minutes after defendant was placed in the backseat and after the officers stabilized the
situation by handcuffing and detaining all of the car’s occupants, Officer Cogle went to
talk to defendant, who was not formally under arrest at the time. The investigation, at
that point, was focused on Longmire.
       Inside Officer Cogle’s car, defendant initiated the conversation, trying to
determine whether Officer Cogle was someone defendant had heard about before.

                                               8
Officer Cogle asked about defendant’s name and inquired whether defendant knew that,
when someone buys “pills,” they must sign for them. Defendant said that he had bought
the pills three times a month but never made methamphetamine with them. He also said,
in response to questions, that he bought the pills and gave them to Longmire who would,
in return, let defendant “smoke a bowl.” Further responding to questions, defendant told
Officer Cogle that he had been using methamphetamine for 15 years but was not
addicted. He also answered questions about Longmire’s manufacturing activities and
how he had helped Longmire by buying the pseudoephedrine. The conversation was
recorded, and a double-spaced transcript of the conversation is only about six pages long,
indicating that it was brief.
       The conversation ended, and Officer Cogle left the patrol car, returning about 10
minutes later to arrest defendant.
       C.     Analysis
       We conclude defendant was not in custody when he made the preadvisement
statements; therefore, his claim of a Miranda violation is without merit. Although
defendant was handcuffed and detained in the backseat of Officer Cogle’s patrol car, the
circumstances otherwise would not lead a reasonable person to interpret the restraints
used by the police as tantamount to a formal arrest. (People v. Pilster, supra, 138
Cal.App.4th at p. 1403.)
       At the time defendant made the statements in question, he was not formally under
arrest, and he had been told that the officers were trying to figure out what was going on.
Everyone in Longmire’s car had been similarly detained. The conversation between
Officer Cogle and defendant took place just five minutes into defendant’s detention. The
tenor of the conversation, which was initiated by defendant, was light, not accusative or
aggressive. Also, the conversation was relatively brief, lasting just a few minutes. Under
the totality of these circumstances, the trial court did not err in concluding that there was



                                              9
no custodial interrogation, even though defendant was handcuffed and detained in the
patrol car when it occurred.
       Therefore, defendant’s assertion that the statements should have been excluded is
without merit.
                                            III
                                 Sufficiency of Evidence
       As we noted, the two elements of the crime for which defendant was convicted are
possession of pseudoephedrine and intent to manufacture methamphetamine. Defendant
contends that the evidence was insufficient for the jury to conclude that he possessed the
pseudoephedrine. The contention is without merit.
       A.     Relevant Law
       “ ‘To determine sufficiency of the evidence, we must inquire whether a rational
trier of fact could find defendant guilty beyond a reasonable doubt. In this process we
must view the evidence in the light most favorable to the judgment and presume in favor
of the judgment the existence of every fact the trier of fact could reasonably deduce from
the evidence. To be sufficient, evidence of each of the essential elements of the crime
must be substantial and we must resolve the question of sufficiency in light of the record
as a whole.’ [Citation.]” (People v. Carpenter (1997) 15 Cal.4th 312, 387, quoting
People v. Johnson (1993) 6 Cal.4th 1, 38; see Jackson v. Virginia (1979) 443 U.S. 307,
317-320 [61 L.Ed.2d 560, 572-574].)
       “The essential elements of the offense of unlawful possession of a controlled
substance are actual or constructive possession in an amount sufficient to be used as a
controlled substance with knowledge of its presence and its nature as a controlled
substance. The elements may be proven by circumstantial evidence. [Citations.]
       “Actual or constructive possession is the right to exercise dominion and control
over the contraband or the right to exercise dominion and control over the place where it
is found. [Citation.] Exclusive possession is not necessary. A defendant does not avoid

                                            10
conviction if his right to exercise dominion and control over the place where the
contraband was located is shared with others. [Citations.]” (People v. Rushing (1989)
209 Cal.App.3d 618, 621-622.)




                                            11
       B.     Analysis
       Defendant argues the evidence that he possessed the pseudoephedrine was
insufficient because the evidence showed that (1) he had previously purchased
pseudoephedrine tablets for Longmire, (2) the tablets were in Longmire’s car, and (3) the
tablets had already been transferred to Longmire. According to defendant, this means he
had no dominion or control over the pseudoephedrine. This argument fails because (1)
the evidence did not require the jury to find that the pseudoephedrine had already been
transferred to Longmire and (2) the evidence was sufficient, in any event, to show that
Longmire and defendant jointly possessed the pseudoephedrine at the time of the traffic
stop. Also, as the Attorney General additionally argued, the evidence was sufficient to
establish that defendant aided and abetted Longmire’s possession of pseudoephedrine
with intent to manufacture methamphetamine.
       Defendant is wrong that the evidence necessarily showed that defendant had
already transferred the pseudoephedrine to Longmire at the time of the traffic stop. The
evidence supported a reasonable inference that defendant bought the pseudoephedrine
tablets and that the tablets were still within his immediate control when Longmire was
pulled over. Defendant was seated in the front passenger seat, and the tablets were found
around where he was sitting. In his reply brief, defendant asserts that it is “questionable”
whether he exercised dominion or control over the contents of Longmire’s car, but
whether it was questionable is not the standard for a sufficiency-of-evidence review.
Here, there was substantial evidence supporting reasonable inferences by the jury that
defendant bought the pseudoephedrine tablets found in Longmire’s car and had dominion
and control over the tablets found in his immediate presence.
       The fact that defendant purchased the tablets intending to turn them over to
Longmire does not change this analysis. The tablets were still in defendant’s immediate
presence and control, and the jury could infer that defendant still possessed them.


                                             12
      Furthermore, the jury could have found defendant guilty based on his aiding and
abetting Longmire. The jury was instructed on aiding and abetting, including the four
requirements that (1) someone committed the crime, (2) defendant knew he intended to
commit the crime, (3) defendant intended to aid in its commission, and (4) defendant’s
acts in fact aided in its commission. (CALCRIM Nos. 400, 401.) Defendant, himself,
contends that the evidence showed that Longmire possessed the pseudoephedrine, and the
evidence was overwhelming that Longmire intended to use it to manufacture
methamphetamine. Defendant was well aware of Longmire’s intention and aided and
abetted by supplying the pseudoephedrine. Therefore, the jury’s verdict may also be
upheld based on the aiding and abetting theory.
      Finally, defendant argues that the evidence was insufficient to establish that
defendant was in constructive possession of the pseudoephedrine. We need not consider
this argument because the evidence was sufficient that defendant was in actual possession
of the pseudoephedrine.
                                     DISPOSITION
      The judgment is affirmed.



                                                      NICHOLSON             , J.



We concur:



         RAYE             , P. J.



         BLEASE           , J.



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