Opinion Bank # O-253 (Re: F 12.02 n2 [Sale Of Drugs: Conspiracy To Transport (HS 11352 & HS 11379)].)
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People v. Watterson (E008121; Super.Ct.No. 16967)
CERTIFIED FOR PARTIAL PUBLICATION* filed 9-26-91
COURT OF APPEAL, FOURTH DISTRICT
STATE OF CALIFORNIA
PEOPLE OF THE STATE OF CALIFORNIA,
Plaintiff and Respondent,
JUANITA LYN WATTERSON,
Defendant and Appellant.
APPEAL from the Superior Court of Inyo County. James Cook, Judge. (Retired judge of the superior court sitting under assignment by the Chairperson of Judicial Council.) Affirmed.
Linda Casey Mackey, under appointment by the Court of Appeal, for Defendant and Appellant.
Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Harley D. Mayfield, Senior Assistant Attorney General, Pat Zaharopoulos, Supervising Deputy Attorney General, and Sara Gros-Cloren, Deputy Attorney General, for Plaintiff and Respondent.
*Parts I, II, III, V and VI are not ordered published, as they do not meet the standards for publication contained in rule 976(b) of the California Pules of Court.
Defendant was tried and convicted of conspiracy to transport and possess cocaine for purposes of sale in violation of Penal Code section 182, subdivision (1) (now Pen. Code, § 182, subd. (a)(1) (count I), possession of cocaine for sale in violation of Health and Safety Code section 11351 (count II) and transportation of cocaine in violation of Health and Safety Code section 11352 (count III). Additionally the jury found true a special allegation that the amount of cocaine possessed for sale was 28.5 grams or more, making defendant presumptively ineligible for probation within the meaning of Penal Code section 1203.073. Sentences on counts I and II were stayed pursuant to Penal Code section 654. Defendant was sentenced to one-third the middle term for count III which term was to run consecutive to a six year term imposed in Mono County Superior Court for violations of Penal Code sections 245, subdivision (a)(1) and 12022.7.
On appeal, defendant contends that (1) the jury was improperly instructed regarding overt acts necessary for the conspiracy charge; (2) the jury was improperly instructed regarding her liability for offenses committed by coconspirators; (3) the jury was improperly instructed on the elements of the transportation offense; (4) the jury was improperly instructed that the possession for sale was a general intent crime; (5) she was improperly convicted of both the transportation offense and the possession for sale offense; (6) the prosecutor committed misconduct in “vouching” for the prosecution witness; and (7) the court failed to state reasons for imposing a consecutive sentence. We find no prejudicial error and therefore affirm.
On July 8, 1989, in Bishop, California, a vehicle driven by Juan Apodaca was stopped for a traffic violation. Apodaca consented to a search of the vehicle and the officer discovered two plastic baggies containing a white powdery substance. The officers then placed Apodaca and the three passengers, Don Watterson, John Braithwaite and Froylan German under arrest. At the police station, the officer conducted a further search of the vehicle and discovered another baggie and a bindle, both of which contained a white powdery substance. Tests of the substance contained in the various baggies and in the bindle revealed that the substance was approximately 80% cocaine and weighed approximately 45 grams.
Defendant was not present in the vehicle at the time the vehicle was stopped but was later arrested, charged and convicted primarily on the testimony of a Linda Bean. Bean, who had assisted police as an informant, testified that on July 7, 1989, defendant had told her that arrangements were being made to obtain an ounce of cocaine in Los Angeles and to let defendant know if Bean knew of anyone interested in buying some cocaine. Shortly after this conversation, Bean saw defendant talking with Apodaca and German. Later that same day, Bean went to the campground where defendant was staying. Defendant told her that Apodaca had gone to Los Angeles to get the cocaine and that defendant’s brother, Don Watterson, was going with him. Defendant also told Bean that her sister, Jaimie, and a cousin were also going to Los Angeles to stay with Jaimie’s father.
On the evening of July 8, 1989, after Apodaca and German had been arrested, Bean was told defendant was looking for her. Bean, equipped with a wire monitored by the police, went to the campground. As Bean approached the campground, she saw defendant in a car along with three other women and one man. Defendant told Bean to get into the car which she did. It was mentioned that Apodaca and Watterson were arrested and defendant and the other women began asking Bean if she was a snitch. Bean was prevented from leaving the car. The wire Bean was wearing was discovered at which time Bean was beaten and then left on the road. [Footnote 1]
Defendant testified that she did not conspire with anyone to possess cocaine for sale. According to defendant, she sent Jaimie and a cousin to Los Angeles to stay with Jaimie’s father and to get some money from Jaimie’s father for her mother’s bail money. She asked Apodaca to take her sister because defendant needed to stay with the younger children. Defendant’s brother, Don Watterson, went along to show Apodaca where Jaimie’s father lived. Juan told defendant that Froylan was going along also.
Jaimie’s father, Jesus Ruiz, testified that he had told defendant to find someone to bring Jaimie to Los Angeles and that he had intended to give Don a money order for his former wife’s bail.
Apodaca testified that defendant had asked him to take Jaimie to Los Angeles and to pick up a money order. When he got to Los Angeles he dropped Froylan off and then took the girls to the Ruiz apartment. Don and he waited for a couple of hours and when Ruiz did not show up, they left without the money order and picked up Froylan. On the way home, Apodaca picked up John Braithwaite in Bishop. Apodaca stated that he did not know there were any drugs in the car.
Froylan testified that he bought the drugs after Apodaca dropped him off and that the drugs were his. He testified that defendant did not ask him to buy the cocaine and that although he did not know what he was going to do with the cocaine he had no intention of selling it.
The only issue raised with respect to count I for conspiracy relates to the requirement that an overt act as alleged in the information must be proved at trial. Specifically, defendant contends the court’s instruction regarding overt acts was erroneous because it referred to acts committed by defendant when there were no such acts and that the prosecution failed to prove an overt act alleged in the information as required by Penal Code section 182, subdivision (b). [Footnote 2] The contentions are completely without merit.
The amended information alleged that “the said defendant committed the following overt act and acts at and in the County of Inyo: co-conspirators Juan Apodaca and Froiland German [sic]  did in fact drive through Inyo County to obtain cocaine and  did in fact obtain and possess cocaine for sale, and  did in fact transport cocaine.” The jury was instructed in nearly identical language. [Footnote 3] Thus in both the information and in the jury instruction, the overt acts relied upon were specified as having been committed by the co-conspirators.
It has long been recognized that to establish conspiracy, it is sufficient to show that any of the conspirators committed an overt act. (People v. Parker (1961) 196 Cal.App.2d 704, 709.) Thus a defendant is properly charged and convicted of a conspiracy when a co-conspirator commits the overt act in furtherance of the conspiracy even though the defendant herself committed no such act.
Here the information alleged and the jury was instructed that the overt acts relied upon were actually committed by the co-conspirators. Although both the information and the instruction may have been inartfully drawn by stating that defendant committed the following overt acts and then specifying acts committed only by co-conspirators, this did not render the information fatally defective or the jury instruction misleading or confusing. The information, instructions and the argument of counsel made clear that the overt acts relied upon were actually committed by co-conspirators. We find no error.
TRANSPORTATION AND POSSESSION COUNTS
1. Conspirator’s Vicarious Liability.
Although defendant did not directly participate in the transportation or the possession for sale of the cocaine, she was nonetheless charged with these substantive offenses on the theory that a defendant is liable for crimes committed by coconspirators if the crime was committed pursuant to the conspiracy. Defendant, relying on the United States Supreme Court decision in Pinkerton v. United States (1946) 328 U.S. 640, contends the jury was not adequately instructed on the issue of a co-conspirator’s vicarious liability.
In Pinkerton, two brothers were charged with ten counts of violating provisions of the Internal Revenue Code and one count of conspiracy to do so. All of the substantive offenses were actually committed by only one of the brothers. The jury was instructed that if it found that at the time the offenses were committed by the one brother, there was a conspiracy between the two defendants, then both defendants could be convicted of the substantive offenses if the jury also found the offenses were committed pursuant to the conspiracy. The nonparticipating brother challenged this theory of vicarious liability contending that he could not be found guilty of the substantive offenses unless he directly participated in the offenses.
Relying on the rule that the overt act of one co-conspirator is attributable to all co-conspirators to establish their liability for the conspiracy, the United State Supreme Court
stated: “we fail to see why the same or other acts in furtherance of the conspiracy are likewise not attributable to the others for the purpose of holding them responsible for the substantive offense.” (Id., at p. 647.) Accordingly, the defendant was liable for the substantive offenses committed solely by his brother.
Pinkerton is not directly applicable in California as it involved federal conspiracy law — not constitutional law. [Footnote 4] (People v. Bradley (1969) 1 Cal.3d 80, 86.) Nonetheless, the same concept of vicarious liability for acts of co-conspirators, including acts amounting to substantive offenses, has long been the law in California as well. Thus in People v. Kauffman (1907) 152 Cal. 331, defendant who had conspired with five other persons to commit a robbery, who did not carry a weapon and who simply stood still when one of the co-conspirators shot and killed a police officer was nonetheless guilty of murder. “[W]here several parties conspire or combine together to commit any unlawful act, each is criminally responsible for the acts of his associates or confederates committed in furtherance of any prosecution of the common design for which they combine. In contemplation of law the act of one is the act of all. Each is responsible for everything done by his confederates, which follows incidentally in the execution of the common design as one of its probable and natural consequences, even though it was not intended as a part of the original design or common plan.” (Id., at p. 334.) For the same reason if the crime committed was the object of the conspiracy then defendant would be liable even though she did not directly participate in the act.
Defendant contends, however, that the court erred in failing to give a “Pinkerton” instruction [Footnote 5] as used in federal court and therefore in evaluating the sufficiency of the evidence to support her convictions for transportation and possession for sale we are required to ignore her liability as a co-conspirator. She relies on U.S. v. Batimana (9th Cir. 1980) 623 F.2d 1366 and U.S. v. Disla (9th Cir. 1986) 805 F.2d 1340. There is no merit
to this contention.
First, as noted above Pinkerton is not binding on California courts. Accordingly, the court here was not obligated to give an instruction based on Pinkerton and the question is whether the jury was adequately instructed under California law.
The jury was given a modified version of CALJIC No. 6.11. [Footnote 6] The jury was instructed that “[e]ach member of a criminal conspiracy is liable for each act and bound by each declaration of every other member of the conspiracy if said act or said declaration is in furtherance of the object of the conspiracy. The act of one conspirator pursuant to or in furtherance of the common design of the conspiracy is the act of all conspirators.” [Footnote 7] This instruction adequately explained a co-conspirator’s
liability for acts committed by other coconspirators. The vicarious liability of a co-conspirator was also explained by the prosecutor when he stated that if the jury found that defendant was a member of a conspiracy the objects of which were to transport cocaine and possess cocaine for sale then she was liable for the transportation and possession of her coconspirators.
Further, the cases cited by defendant do not support her claim. In Batimana and Disla the court ignored the conspiracy theory when reviewing the sufficiency of the evidence not because the instructions on a co-conspirator’s vicarious liability were inadequate as contended by defendant here but rather because this theory of liability was not presented to the jury in any form. Here the sole theory of defendant’s liability for the substantive offenses presented to the jury was as a co-conspirator. Defendant does not and surely cannot contend the evidence was insufficient to establish defendant’s liability under this theory. In our view the instructions given adequately explained a conspirator’s vicarious liability for crimes committed by coconspirators. If defendant sought further clarification based on Pinkerton, she could have requested additional instructions. Having failed to do so, she has waived the issue on appeal. [Footnote 8] (People v. Duran (1983) 140 Cal.App.3d 485, 493.)
Although we have found that CALJIC No. 6.11 as modified was adequate to explain defendant’s liability for crimes committed by her co-conspirators, our discussion of the propriety of defendant’s conviction of transportation and possession of the cocaine does not end as it appears that errors were made in the instructions regarding the substantive offenses.
The jury was instructed that “[e]very person who transports a controlled substance, namely, cocaine,, is guilty of a violation of Section 11352 of the Health and Safety Code, a crime. [¶] In order to prove such crime, each of the following elements must be proved: [¶] 1. A person transported a controlled substance, and [¶] 2. The Defendant had knowledge that it was to be transported and of its nature as a controlled substance, and [¶] 3. That the substance transported was in an amount sufficient to be used as a controlled substance.” By referring to the defendant’s knowledge as opposed to the co-conspirator’s knowledge, the instruction failed to advise the jury that the person transporting the cocaine must have had knowledge that it was being transported and knowledge that the cocaine was a controlled substance. In that respect the instruction was erroneous and the sole issue is whether the error was prejudicial. We think not.
In People v. Garcia (1984) 36 Cal.3d 539, [Footnote 9] the court held that the giving of instructions which have the effect of denying a defendant the right to have the jury decide each element of a charged offense is generally reversible error. (Id., at p. 550.) There are, however, four exceptions to this rule. First, “`if the erroneous instruction was given in connection with an offense for which the defendant was acquitted and if the instruction had no bearing on the offense for which he was convicted,”‘ the error is not reversible. (Id., at 554-555.) Second, the error is not reversible when the defendant concedes the issue. (Id., at p.555.) Third, when “`the factual question posed by the omitted instruction was necessarily resolved adversely to the defendant under other, properly given instructions . . . the issue should not be deemed to have been removed from the jury’s consideration since it has been resolved in another context, and there can be no prejudice to the defendant . . . . “‘ (Ibid.) Finally, “where the parties recognized that [the element] was in issue, presented all evidence at their command on that issue, and in which the record not only establishes the necessary [element] as a matter of law but shows the contrary evidence not worthy of consideration,” a retrial would be meaningless and reversal is not required. (Id., at p. 556.)
Here, we believe the error is not reversible under the third exception because the factual issue of whether the coconspirators had knowledge of the cocaine they were transporting was necessarily resolved adversely to the defendant under other proper instructions. The jury determined that defendant had entered into a conspiracy with both co-conspirators the objects of which were to transport and possess cocaine for purposes of sale. The only conceivable way for the jury to reach this determination was to accept the testimony of the informant and reject not only defendant’s testimony to the contrary but also one co-conspirator’s testimony that he did not know the cocaine was in the car and the other co-conspirator’s testimony that the drugs were his and that neither defendant nor the other alleged co-conspirator were involved in the purchase of the cocaine. Thus by finding that defendant conspired with both coconspirators to obtain cocaine the jury necessarily found that both co-conspirators had knowledge of the cocaine they were transporting. Accordingly the error in the transportation instruction was not reversible.
3. Possession for Sale.
We also find no reversible error in the instructions with respect to the possession for sale conviction. Here the jury was specifically instructed that in order to find that the crime of possession for sale was committed, the possession must be with the specific intent to sell the cocaine. However, in an earlier instruction the court erroneously advised the jury that “In the crimes charged in Counts 2 and 3 of the information, namely, possession of cocaine for sale and transportation of cocaine, there must exist a union or joint operation of act or conduct and general criminal intent. To constitute general criminal intent it is not necessary that there should exist an intent to violate the law. When a person intentionally does that which the law declares to be a crime, she is acting with general criminal intent, even though she may not know that her act or conduct is unlawful.” (Emphasis added.)
As defendant correctly notes when there are conflicting instructions on an element of the offense, the proper standard of review is whether the error is harmless beyond a reasonable doubt. (People v. Lee (1987) 43 Cal.3d 666, 674.) Even if we assume that the instruction regarding joint operation of act and intent and the instruction defining the elements of possession for sale were conflicting on the issue of requisite intent, [Footnote 10] we find the error harmless beyond a reasonable doubt. There was strong evidence that the cocaine was possessed for purposes of sale and not simply for personal use. First, Ms. Bean testified that defendant said she was getting the cocaine so that they could sell it to raise bail money for defendant’s mother. The amount of cocaine, approximately 45 grams, suggests that it was possessed for purposes of sale and there was expert testimony to that effect. The only contrary evidence was Froylan German’s testimony that he had purchased one and one-half ounces of cocaine in Los Angeles and that he didn’t know what he was going to do with it but he had no intent to sell it. In light of the jury’s finding that one of the objects of the conspiracy was to possess cocaine for sale and the strong evidence of intent to possess for sale, we find the error in giving the conflicting instructions harmless beyond a reasonable doubt. [Footnote 11]
Defendant contends that she cannot be convicted of both possession of cocaine for sale and transportation of cocaine when the possession is incidental to or a necessary part of the transportation. [Footnote 12] She relies on People v. Rogers (1971) 5 Cal.3d 129. In Rogers the court held that an acquittal on the charge of possession of narcotics did not preclude a conviction fortransportation of narcotics. In reaching this conclusion, the court stated that while “possession is commonly a circumstance tending to prove transportation, it is not an essential element of that offense and one may `transport’ marijuana or other drugs even though they are in the exclusive possession of another.” (Id., at p. 134.)
Defendant relies on a footnote in Rogers where the court observed: “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 offense of transportation, and defendant may not be convicted of both charges.” (Ibid., fn. 3, emphasis added.) As we explain, we do not believe this footnote compels the conclusion that multiple convictions are precluded.
First we note that this footnote is dicta as it was unnecessary to resolution of the issue before the court. Further, the cases cited by the court in support of its conclusion that multiple convictions are precluded are themselves inconsistent. The court in Rogers cited the cases of People v. Solo (1970) 8 Cal.App.3d 201, 206, [Footnote 13] People v. Richardson (1970) 6 Cal.App.3d 70, 78 and People v. Johnson (1970) 5 Cal. App.3d 844, 847. While the courts in Richardson and Johnson did hold that a defendant cannot be convicted of both possession and transportation, the court in Solo held simply that Penal Code section 654 precluded multiple punishment. Further although the court in Richardson held that multiple convictions were precluded, it expressed some uncertainty as to whether multiple convictions were precluded or whether the concern was one of multiple punishment. (People v. Richardson, supra, 6 Cal.App.3d 70, 78.)
We also note that the cases cited by the courts in both Richardson and Johnson for the proposition that multiple convictions are precluded under these facts do not unanimously support this conclusion. Both in Richardson and Johnson, for example, the courts relied on People v. Roberts (1953) 40 Cal.2d 483. Roberts held that “`co-operative acts constituting but one offense when committed by the same person at the same time, when combined, charge but one crime and but one punishment can be inflicted.”‘ (Id., at p. 491, emphasis added, quoting People v. Clemett (1929) 208 Cal. 142, 144 and also citing People v. Knowles (1950) 35 Cal.2d 175, 187.) At the time Roberts was decided, possession and transportation were punishable under the same statute and were not defined as separate offenses. Thus the reason the Roberts court held that a defendant could not be convicted of both possession and transportation was not becauseone offense was necessarily included in the other offense but rather because under the statute there was but one offense.
Going back even further, the cases cited by the court in Roberts also involved different issues. People v. Clemett, supra, 208 Cal. 142, like Roberts, also involved a statute which listed a number of acts any one of which would constitute the same offense. The court held that the individual acts could not be separated and charged as separate offenses. Thus Clemett is certainly consistent with Roberts but neither of those cases directly apply because here the offense of possession for sale is a separately defined offense from transportation of cocaine.
The other case cited by the Roberts court, People v. Knowles, supra, 35 Cal.2d 175, is of some assistance as that case did involve separate offenses. Interestingly, however, the court in Knowles did not hold that multiple convictions were precluded but rather that Penal Code section 654 precluded multiple punishment. (Id., at p. 187.)
As evident, the distinction between multiple convictions and multiple punishments has often been blurred. Accordingly, because the court’s statement in People v. Rogers, supra, 5 Cal.3d 129 was dicta and because the cases it cites are themselves inconsistent, we choose not to rely on the court’s comment and look instead to supreme court’s more recent discussion of the rule against multiple convictions.
In People v. Pearson (1986) 42 Cal.3d 351, the court had occasion to consider the rule against multiple convictions and set forth tests to be used to determine whether such convictions are precluded. While noting that the origin of the rule is unclear, the court first nonetheless reaffirmed the rule that multiple convictions are precluded when one offense is necessarily included in another offense. (Id., at p. 355.) Further the test for determining whether one offense is necessarily included in the other so as to preclude multiple convictions is “`simply that where an offense cannot be committed without necessarily committing another offense, the latter is a necessarily included offense.”‘ (Ibid.) Thus the court held that while grand theft is a necessarily included offense of robbery because robbery cannot be committed without also necessarily committing theft, the offense of lewd conduct is not necessarily included in the offense of sodomy because one can commit sodomy without having the specific intent required for the offense of committing lewd conduct.
Applying this test to the present facts, we conclude that possession of narcotics for sale is not necessarily included in the offense of transportation of narcotics. As noted by the court in People v. Rogers, supra, 5 Cal.3d 129, while possession of a controlled substance is often a circumstance tending to prove transportation, possession is not an essential element of theoffense of transportation of narcotics. One can transport drugs without necessarily being in possession of the drugs. The offense of transportation thus can be committed without necessarily committing the offense of possession. Accordingly, under the test set forth in People v. Pearson, supra, 42 Cal.3d 351, defendant was properly convicted of both transportation of cocaine and possession of cocaine for sale. [Footnote 14] [Footnote 15]
Next defendant contends the prosecutor committed misconduct by “vouching” for the veracity of the key prosecution witness, Linda Bean and by arguing that Linda Bean had paid for her misdeeds when she was assaulted by defendant. No objection was made.
During the direct examination of Linda Bean, the prosecutor questioned Ms. Bean regarding whether she had received any promises regarding the criminal charges pending against her in exchange for her work as an informant. Ms. Bean testified that no promises were made at the time she entered her guilty plea to the charges.
During cross-examination, Ms. Bean again testified that she had not received any promises at the time she agreed to act as an informant. It was brought out however that she was not required to serve any additional time at the time she was sentenced which was after she had agreed to act as an informant.
During re-direct examination, Ms. Bean testified that when she went in for sentencing she had been told that it was going to be recommended that she receive jail time and that the prosecutor, the same prosecutor handling the present matter, did in fact recommend jail time. She also testified that Officer Neujahr informed the court of Ms. Bean’s cooperation in various drug matters and the court decided against further jail time. During closing argument the prosecutor again mentioned that Ms. Bean had not received any promises for cooperation with the police and that he had specifically recommended that Ms. Bean should receive further jail time but that the court had decided against it. The prosecutor went on to argue that Ms. Bean’s story fits, that she did not have any reason to lie and that while she may not have served any jail time for her own offenses she nonetheless had paid for her own misdeed by the assault committed by defendant.
Defendant contends the prosecutor’s questions and closing argument constitutes “vouching” because by the prosecutor having established that he previously had recommended jail time for Ms. Bean but now was arguing that she has paid for her misdeeds, “[t]his change in his position regarding the sentence Bean deserved for passing bad check[s] implies the prosecutor has information that is not available to the jury.” We disagree.
The examination regarding the prosecutor’s recommendation of additional jail time was proper to dispel the inference raised on cross-examination that Ms. Bean may have received promises regarding sentencing on her case even though she had not received any promises when she entered her guilty plea. Because this information was properly in evidence, it was not improper to comment on it during closing argument.
The prosecutor’s comments in this case are in no way analogous to those found objectionable in U.S. v. Lamerson (5th Cir. 1972) 457 F.2d 371, a case cited by defendant. In that case, the prosecutor argued, “`Again, you are supposed to judge the demeanor and the way a witness conducts himself on the stand; whether you would believe or not, that is your job to determine who you can believe and who you can’t believe. And, I think Officer McPherson and Agent Stymus [sic] showed sincerity. I firmly believe what they said is the truth. I know it is the truth, and I expect you do, too.”‘ (Id., at p. 372.)
There is no similar direct statement made by the prosecutor in this case. The prosecutor did not expressly state that at one time he did not think Ms. Bean was credible but now knew she is. Moreover, nothing in the prosecutor’s comments suggested his personal views regarding Ms. Bean’s credibility or that he had additional information which convinced him she was telling the truth.
Even if we were to agree that the prosecutor perhaps did not need to bring out the fact that he personally had recommended jail time, we believe a proper and timely objection and corresponding admonition would have cured any resulting prejudice. Having failed to raise the issue in the trial court, defendant has waived the issue. (People v. Bittaker (1989) 48 Cal.3d 1046, 1098.)
We also believe defendant has waived any claim of error regarding the prosecutor’s comments during closing argument that even though Ms. Bean didn’t receive any jail time, she nonetheless did not get off “scot-free” and paid for what she did by the assault committed against her by defendant. To the extent the prosecutor was suggesting the jury should consider this assault in determining whether Ms. Bean was credible, a proper objection and admonition would have cured any harm. We also note that the jury was advised on the proper limited use of the evidence of the assault and we presume the jury followed this instruction.
Defendant contends the court failed to state reasons for making the sentence in this case run consecutive to the sentence defendant received on the assault conviction in Mono County. We disagree.
Because defendant was already serving a term of imprisonment for the assault, the only real sentencing choice required of the court was whether the sentence on the present case should run consecutive or concurrent to the other sentence. For that reason, it is quite apparent that the trial court’s discussion of what were labeled as factors in aggravation, i.e., that the crimes and objectives were predominantly independent of each other and that the crimes were not part of a single period of aberrant behavior, was actually a discussion of factors listed in California Rules of Court, rule 425(a) regarding concurrent or consecutive sentences.
Similarly, California Rules of Court, rule 425(b) allows the court to consider circumstances in aggravation and in mitigation in deciding on concurrent or consecutive terms. Thus the remainder of the court’s comments finding five factors in aggravation and only two in mitigation were also proper reasons for imposing a consecutive sentence. The court’s statement of reasons was adequate.
CERTIFIED FOR PARTIAL PUBLICATION
*Retired Associate Justice of the Court of Appeal sitting under assignment by the Chairperson of the Judicial Council.
Footnote 1: This is the incident for which defendant received a six-year term in Mono County.
Footnote 2: Penal Code section 182, subdivision (b) provides: “Upon a trial for conspiracy, in a case where an overt act is necessary to constitute the offense, the defendant cannot be convicted unless one or more overt acts are expressly alleged in the indictment or information, nor unless one of the acts alleged is proved; but other overt acts not alleged may be given in evidence.”
Footnote 3: CALJIC No. 6.23 as given reads: “In this case the defendant is charged with conspiracy to commit the following public crimes: Possession of cocaine for sale and transportation of cocaine. It is alleged that the following overt acts were committed in this state by the defendant for the purpose of furthering the object of the conspiracy: That co-conspirators drove through Inyo County to obtain cocaine; That co-conspirators obtained and possessed cocaine for sale; and That co-conspirators transported cocaine.”
Footnote 4: We asked the parties to submit further briefing on the
question of Pinkerton’s applicability in California. Defendant contends that Pinkerton is controlling in California because “[i]n reaching this decision, the United States Supreme Court interpreted the Due Process Clause as it effects [sic] the individual’s right to be free from multiple punishment for the same crime.” Not so. The court’s discussion of the Double Jeopardy Clause of the Fifth Amendment pertained to the defendants’ first contention in Pinkerton which was that they could not be convicted of both conspiracy and the substantive offenses committed pursuant to the conspiracy. There is nothing in the court’s discussion of the second issue, i.e., a conspirator’s vicarious liability for crimes committed by a coconspirator, which involved the U.S. Constitution.
Footnote 5: An example of a Pinkerton instruction is found in U.S. v. Vasquez (9th Cir. 1988) 858 F.2d 1387. It states: “If you find that a particular defendant is guilty of conspiracy as charged in count one, you may also find that defendant guilty of a substantive offense as charged in any other count of the indictment, provided that you find that the essential elements of that count as defined in these instructions have been established beyond a reasonable doubt, and provided that you also find beyond a reasonable doubt,
“First, that the offense charged in the substantive count was committed pursuant to the conspiracy, and
“Second, that the particular defendant was a member of the conspiracy at the time the substantive offense was committed.
“Under the conditions just defined a defendant may be found guilty of a substantive count even though he did not participate in the acts constituting the offense as defined in the substantive count. The reason for this is that a co-conspirator committing a substantive offense pursuant to a conspiracy is held to be the agent of the other conspirators.” (Id., at p. 1393, fn. 3.)
Footnote 6: The balance of CALJIC No. 6.11 provides that a member of the conspiracy is not only guilty of the particular crime that to his or her knowledge the confederates are contemplating committing but also for the natural and probable consequences of any act of a co-conspirator to further the object of the conspiracy. Since the substantive crimes charged were the objects of the conspiracy there was no need to give the remainder of No. 6.11.
Footnote 7: Additionally, the jury was given instructions defining the elements of conspiracy, explaining that the defendant herself need not have committed an overt act, defining overt act, and explaining how a conspiracy can be proved.
Footnote 8: We requested the parties to submit further briefs on the issue of whether the trial court erred in failing to give instructions on aiding and abetting sua sponte. Conspiracy and aiding and abetting both relate to one’s vicarious liability for crimes actually committed by another person. The principal difference between the two is that aiding and abetting does not require proof of an agreement. (People v. Brigham (1989) 216 Cal.App.3d 1039, 1060.) The prosecutor has the discretion to decide what crimes will be charged and under what theory. (Id., at p. 1052; Gov. Code, § 26500.) While the prosecutor could have sought to prosecute defendant for the transportation and possession counts on an aiding and abetting theory in addition to the conspiracy theory, he was not required to do so. Moreover, in light of the fact that conspiracy requires proof of an agreement and aiding and abetting does not, and the jury found the requisite agreement, the defendant clearly was not prejudiced by any failure to give aiding and abetting instructions.
Footnote 9: In People v. Malone (1988) 47 Cal.3d 1, 25, the court indicated that People v. Garcia had been overruled in People v. Lee (1987) 43 Cal.3d 666, 676. We find nothing in the Lee case which indicates an intent to completely overrule Garcia. In Lee, the court held that “a reversal-per-se standard is inappropriate in an attempted murder case where conflicting specific intent and implied malice instructions have been given, and that the Chapman test, supra, 386 U.S. 18, 21 [17 L.Ed.2d 705, 709], should be employed in such cases.” (Id., at p. 676, emphasis added.) Lee says nothing about the appropriate standard when an element is completely removed from the jury’s consideration. Accordingly, we believe Garcia is still the leading authority on the proper standard when an element is completely removed and therefore apply its test. Even if we assume, however, Lee did overrule Garcia and therefore the proper standard is Chapman, we would find the error harmless beyond a reasonable doubt as explained herein.
Footnote 10: An argument can be made that the instruction defining possession for sale required a finding that the co-conspirators had the specific intent to sell but the instruction regarding joint operation of act and general intent, by its references to “her” throughout referred to defendant’s intent and not the coconspirators. One could also argue that the instructions are not necessarily conflicting in that one could specifically intend to possess cocaine for sale even though they did not have the general intent to violate the law if, for example, the person did not know selling drugs was illegal. We will assume however that the instructions are in fact conflicting.
Footnote 11: Defendant also contends that it was error to instruct the jury regarding constructive possession because there was no evidence that defendant had constructive possession of the cocaine. This contention is premised on the contention that because of the inadequate Pinkerton instructions on vicarious liability we must review the evidence of defendant’s involvement independent of any conspiracy theory. Because we have rejected that initial contention, this subsequent contention need not be addressed. We do note however that because the cocaine was found throughout the vehicle and was not found on the person of any of the passengers in the vehicle, the instruction regarding constructive possession was proper.
Footnote 12: Juan Apodaca and Froylan German were arrested in Bishop, California after the police discovered approximately 45 grams of cocaine during a consensual search of the vehicle Apodaca was driving. Defendant, who was not present in the vehicle, was charged and convicted of conspiracy to possess cocaine for sale and to transport cocaine (Pen. Code, § 182, subd. 1), possession of cocaine for sale (Health & Saf. Code, § 11351) and transportation of cocaine (Health & Saf. Code, § 11352) based on Apodacals and German’s possession and transportation of the narcotics.
Footnote 13: Solo was disapproved in Rogers to the extent it held that possession is a necessary element to the offense of transportation. (People v. Rogers, supra, 5 Cal.3d 129, 134, fn. 4.)
Footnote 14: As the trial court correctly noted, however, Penal Code section 654 precluded sentencing on all three counts. The trial court was correct in staying the sentence on counts I and II.
Footnote 15: The Sixth District recently came to the same conclusion in the case of People v. Thomas (1991) 231 Cal.App.3d 299. Its reasoning is a little different and, in our opinion, creates further problems. In Thomas, defendant was stopped for a traffic violation and, in the course of a consensual search of the car, the officer discovered 21 “rocks” of cocaine base. Defendant was charged with possession of cocaine base for sale (Health & Saf. Code, § 11351.1) and transportation of cocaine. Relying on the same dicta in People v. Rogers, supra, 5 Cal.3d 129, defendant contended he could not be convicted of both possession and transportation. The Sixth District, relying on People v. Toro (1989) 47 Cal.3d 966, 972 and People v. Geiger (1984) 35 Cal.3d 510, 517, fn. 4, concluded that the multiple convictions were proper because possession was not necessarily included in the offense of transportation as statutorily defined or as charged in the information. The problem with the reasoning in Thomas is that neither Toro nor Geiger involved multiple convictions. The issue in those cases was whether due process was violated when the defendant was convicted of a lesser related offense instead of the greater offense charged. Applying due process principles, the courts in Toro and Geiger held in essence that a defendant cannot be convicted of a lesser offense except when the lesser offense is necessarily included in the greater offense as statutorily defined or when the charging allegations in the accusatory pleading include language describing the offense in such a way that if committed as specified the lesser offense is necessarily committed. In either of those situations, due process is not violated because defendant has received proper notice. Thus the issue in those cases was whether the defendant had notice that he might be convicted of the lesser offense and not whether he can be convicted of more than one offense. By relying on Toro and Geiger, the court in Thomas has erroneously enlarged the definition of necessarily included offenses for purposes of multiple convictions. This is contrary to People v. Pearson, supra, 42 Cal.3d 351 which held that for purposes of multiple convictions, necessarily included offenses refers only to those offenses which by statutory definition are necessarily committed when the greater offense is committed.