Filed 6/1/16 P. v. Winkle CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
                                   FIFTH APPELLATE DISTRICT


THE PEOPLE,
                                                                                           F069715
         Plaintiff and Respondent,
                                                                             (Super. Ct. No. BF149265B)
                   v.

JERRY WINKLE,                                                                            OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Kern County. Eric Bradshaw
and Colette M. Humphrey, Judges.

         John L. Staley, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and
Kevin L. Quade, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-




         *Before Poochigian,        Acting P.J., Franson, J. and Peña, J.
                                       INTRODUCTION
       Defendant Jerry Winkle appeals from his convictions for unlawful sale or giving
away of methamphetamine (Health & Saf. Code,1 § 11379, subd. (a), count 1) and
possession of methamphetamine for sale (§ 11378, count 2). Defendant contends his
conviction for count 2 is a lesser included offense of count 1 and should be vacated.
Defendant acknowledges that rulings from the California Supreme Court are contrary to
his position, but seeks to preserve the issue for review by higher courts. We find no error
and affirm the judgment.
                                        PROCEEDINGS
       On October 15, 2013, an information was filed alleging defendant and his
codefendant Rodney Lancaster sold or offered to give away methamphetamine (§ 11379,
subd. (a)) and possessed methamphetamine for sale (§ 11378). At the conclusion of a
jury trial on May 21, 2014, defendant and Lancaster were found guilty of both counts.
On June 18, 2014, the trial court placed defendant on probation upon various terms and
conditions, including that he spend a year in county jail. Defendant was awarded total
custody credits of 92 days and ordered to pay various fines, fees, and penalties, including
a restitution fine of $280.
                                             FACTS
       Deputy Logan August and Sergeant William Starr with the Kern County Sheriff’s
Department were working undercover attempting to purchase narcotics on June 25, 2013.
August saw defendant standing in front of a residence on Hickerson Drive, drove his van
up to the sidewalk, and greeted defendant. Defendant approached the van. A sheet
hanging behind the front seats concealed other deputies in the rear of the van.
       August told defendant he wanted to purchase methamphetamine. Defendant
replied he could help. Defendant asked for, and August gave him, his cell phone number.
Defendant said he would call August when he obtained the methamphetamine. August

       1Unless   otherwise designated, all statutory references are to the Health and Safety Code.

                                                 2.
told defendant he had $100 to buy methamphetamine. August and Starr drove away from
the area.
       Defendant called August about 15 minutes later. August recognized defendant’s
voice on the phone. Defendant said he had the methamphetamine and told August to
return. August and Starr returned about 10 to 15 minutes later to the residence where
they found defendant. Defendant was outside accompanied by Lancaster. The two
walked over to the passenger window of the van. Starr was in the passenger seat.
Lancaster told August he would walk down the street and obtain the methamphetamine if
August gave him $100. August replied he did not feel comfortable giving Lancaster
$100 because August did not know him. He told Lancaster to call him when he had the
methamphetamine and August would return. August and Starr left the area.
       After 45 minutes, August received a call from defendant saying he had the
methamphetamine. August and Starr returned to the residence. Again, there were
deputies in the van behind the partition. Lancaster and defendant approached the
passenger side window, said they had the methamphetamine, and defendant walked north
on Hickerson. Lancaster walked around the front of the van to the driver’s side window.
Lancaster handed August a plastic-wrapped bindle that August immediately recognized
as methamphetamine.
       Deputies emerged from the back of the van and arrested Lancaster. Defendant
was several hundred yards up the street. Deputies went up the street and arrested
defendant. Lancaster was given his rights pursuant to Miranda v. Arizona (1966) 384
U.S. 436. Lancaster indicated he understood his rights and told August he was just trying
to feed his family, he had fallen on hard times, and he did not have any money.
Lancaster did not want to say where he obtained the methamphetamine. The substance
Lancaster handed August was tested and determined to be 2.83 grams of
methamphetamine, a usable amount of the drug.




                                            3.
                                      DISCUSSION
       Defendant argues both the statutory elements test and accusatory pleading test
should be applied where a defendant is convicted of multiple offenses, and that doing so
here would make his conviction for section 11378 for possession of methamphetamine
for sale a necessarily included offense of section 11379 for sale or furnishing of
methamphetamine. Defendant candidly concedes the argument he tenders has been
rejected by the California Supreme Court and that section 11378 does not share the same
statutory elements as section 11379, but defendant seeks to preserve this issue for further
review.
       Multiple convictions cannot be based on necessarily included offenses. (People v.
Reed (2006) 38 Cal.4th 1224, 1227 (Reed); People v. Pearson (1986) 42 Cal.3d 351,
355.) In People v. Rogers (1971) 5 Cal.3d 129, 134, the California Supreme Court
construed former section 11531, a predecessor statute to section 11360, holding that
possession is not an essential element of the offense of transporting marijuana or other
drugs, and one can transport narcotics even though they are not in the exclusive
possession of another. Furthermore, an acquittal of a possession of narcotics charge does
not necessarily preclude conviction for transportation. The code section not only
prohibits transportation of marijuana, but also importing, selling, furnishing,
administering, or giving it away. The prohibitions are in the disjunctive, not the
conjunctive, and prosecution can be made for transporting the drug for personal use.
(People v. Rogers, supra, at pp. 134-135.)
       Defendant argues that footnote 3 of the opinion in Rogers supports his contention
that his possession of methamphetamine was only incidental to his intent to sell the drug.
Footnote 3 states: “In cases where defendant’s possession is incidental to, and a
necessary part of, the transportation charged, and no prior, different or subsequent
possession is shown, the offense of possession is deemed to be necessarily included in the




                                             4.
offense of transportation, and defendant may not be convicted of both charges.” (People
v. Rogers, supra, 5 Cal.3d at p. 134, fn. 3 (maj. opn.).)
       People v. Watterson (1991) 234 Cal.App.3d 942, 945-947 found footnote 3 of the
Rogers opinion to be dicta unnecessary to the resolution of the issue before the court, and
the cases cited in Rogers are themselves inconsistent. Watterson concluded possession of
narcotics for sale is not a necessarily included offense of transportation of narcotics.
(Watterson, supra, at p. 947.) The California Supreme Court denied a petition for review
in Watterson on January 8, 1992, S023596. (Watterson, at p. 948.)
       Our Supreme Court in Reed determined that in deciding whether multiple
convictions are proper, a court should consider only the statutory elements test. The
accusatory pleading test arose to ensure defendants receive notice before they can be
convicted of an uncharged crime. (People v. Reed, supra, 38 Cal.4th at p. 1229; People
v. Ramirez (2009) 45 Cal.4th 980, 984-985.) Reed criticized earlier cases holding both
the statutory elements and accusatory pleading tests should be applied in determining
whether multiple convictions could be applied to the defendant. (People v. Reed, supra,
at p. 1228.) The Reed court noted it could find no case invalidating multiple convictions
pursuant to the accusatory pleading test. (Ibid.) Reed further noted the continuing
validity of the rule announced in Rogers was dubious in light of more recent authorities,
citing Watterson and People v. Thomas (1991) 231 Cal.App.3d 299, 304-305. But the
court stated it did not have to decide that question because Rogers and two other
authorities, even if valid, were not relevant to the elements test issue decided in Reed.
(Reed, supra, at p. 1228, fn. 2.)
       Justice Moreno in a concurring and dissenting opinion in Reed argued for the
application of both the elements test and a modified version of the accusatory pleading
test when deciding whether multiple convictions were proper. (People v. Reed, supra, 38
Cal.4th at pp. 1231-1236 (conc. & dis. opn. of Moreno, J.).) Justice Moreno specifically
noted Rogers found a defendant could not be convicted of both possessing and


                                              5.
transporting drugs where the act of transporting the drugs included possessing them.
(Reed, at p. 1232.) As noted above, defendant acknowledges the argument he tenders has
been rejected by the California Supreme Court in Reed, that we are bound to our high
court’s determination (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450,
455), and he seeks to preserve this issue for further review.
       Defendant argues Justice Moreno’s position, though a minority position, was
correct. Defendant concedes that under the statutory elements test, the “elements of a
violation of section 11379 (unlawful sale, giving away, transportation, etc., of
methamphetamine) do not include all the elements of a violation of section 11378
(possession of methamphetamine for sale) because (1) section 11358 requires an intent to
sell the drug and section 11379 does not include that element; (2) a violation of section
11379 may occur in ways that does not require possession of the drug for sale.”
       The People agree with defendant’s assessment of the application of the statutory
elements test, noting under the statutory elements test, a defendant can be convicted
under section 11379, subdivision (a) without having the intent to sell, which is an element
of section 11378. Under the “offering” theory of the crime, a conviction pursuant to
section 11379, subdivision (a) is permissible without proof of actual or constructive
possession of methamphetamine, which is a necessary element of section 11378.2 A
defendant can be convicted under section 11379, subdivision (a) without having an intent
to sell, as required in section 11378. The proscribed act under section 11379, subdivision
(a) is making the offer, with the offense being complete upon an offer made with the
accompanying requisite intent. (People v. Daniels (1975) 14 Cal.3d 857, 861.) Delivery
of the promised narcotic is not an essential element of the crime. (People v. Medina
(1972) 27 Cal.App.3d 473, 476.) To sustain a conviction for possession of narcotics for
sale, the prosecution must show the accused had control over the contraband with



       2The jury was   instructed here with CALCRIM Nos. 2300, 2301, and 2302.

                                              6.
knowledge of its character, and possession was for the purpose of sale. (See People v.
Shipstead (1971) 19 Cal.App.3d 58, 77.)
       Because section 11379, subdivision (a) can be accomplished in multiple ways
without satisfying all the elements of section 11378, the latter offense is not necessarily
included within the former under the statutory elements test applicable pursuant to Reed.
(See People v. Ramirez, supra, 45 Cal.4th at p. 985.) Under the elements test, a
defendant may be convicted of both sale or offering methamphetamine and possession for
sale of the same drugs.
                                      DISPOSITION
       The judgment is affirmed.




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