Opinion Bank # O-255 (Re: LIO VI [Lesser Included Checklist: Perjury (PC 118): Submitting False Statements To The DMV (VC 20, VC 4000.1) Is Lesser Included Of Perjury (PC 118)].)
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
THE PEOPLE, C028955
Plaintiff and Respondent, (Super. Ct. No. 97F06433)
Defendant and Appellant.
Defendant Carlos Blanco appeals from a conviction for transportation for sale of methamphetamine to a noncontinguous county (Health & Saf. Code, § 11379, subd. (b)) and perjury (Pen. Code, § 118 subd. (a); undesignated statutory references are to the Penal Code). Defendant contends (1) the evidence is insufficient to support the transportation count, and (2) the trial court erred in failing to instruct the jury sua sponte on making false statements to the Department of Motor Vehicles (DMV) (Veh. Code, 20, 40000.5) as a lesser included offense of perjury. We shall affirm the conviction as to the drug transportation count, but we shall reverse the conviction as to the perjury count.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant was charged with one count of transportation of methamphetamine for sale from Santa Clara County to noncontinguous Sacramento County. (Health & Saf. Code, § 11379, subd. (b)), and one count of perjury (§ 118). It was alleged defendant had three prior convictions within the meaning of Health and Safety Code section 11370.2, subdivision (c), and served a prior prison term within the meaning of section 667.5 subdivision (b).
The evidence adduced at trial showed as follows:
On the night of August 7, 1997, defendant boarded an Amtrak train in San Jose, heading to Seattle. Officers of the California Bureau-of-Narcotics Enforcement (BNE) boarded the train in Oakland. Agent Lucy Villones sat next to defendant, identified herself as a police officer, and asked defendant where he was going. Defendant seemed nervous and said he was going to Portland to visit his parents for a few days. The officer asked defendant if he had luggage; he said no. Upon her request for identification, defendant produced a California commercial driver’s license bearing his photograph and the name Roberto Alvarez Ramirez, and a train ticket stub in the name of Roberto Ramrez. The train ticket stub showed defendant had paid cash that same evening.
Agent Villones suspected defendant might be transporting drugs, based on the last minute cash purchase of the ticket, the name discrepancy, and the lack of luggage. She brought over Detective William Champion. Champion pulled a green and white gym bag from the shelf above defendant’s head and asked if it belonged to him. Defendant said no. The officers asked every other passenger in the car, but no one claimed the bag.
At the officers’ request for further conversation, defendant stepped off the train with them when it stopped in Sacramento. Defendant was shaking a bit and seemed about to cry. He said he was going to Portland to visit a cousin, Marcos Ramirez. Defendant said he did not know his cousin’s telephone number but knew how to get to his house. Defendant said he did not know how long he planned to stay. Since defendant had a commercial. driver’s license, one officer questioned defendant about tractor-trailors; defendant could not answer the questions.
When the officers accused defendant of inconsistencies, he ultimately said his name was Carlos Blanco. Defendant said he had paid $300 for the driver’s license.
The officers searched the gym bag and found in it shirts, a pair of trousers, all of common sizes but consistent with the clothes worn by defendant. They also found in the gym bag plastic bags containing 561.4 grams of methamphetamine. Based on the amount of drugs and the absence of any signs of personal use, Detective Champion opined at trial that the drugs were possessed for purposes of sale. He also opined a person traveling in defendant’s circumstances was a drug courier.
Defendant’s partial fingerprint was found on one of the plastic bags containing drugs which was found in the gym bag. Fingerprints were found on other plastic bags but none matched defendant.
With respect to the perjury count, the prosecution submitted into evidence two DMV forms DL-44–Exhibits 11 and 12. Exhibit 11 was an application for an identification card in Spanish which bore a photograph of defendant and listed his name as Juan Antonio Huato (reflected in the reporter’s transcript as “Purta”). The application was dated July 16, 1991.
Exhibit 12 was an application for a commercial driver’s license in Spanish, which matched the information on the license defendant showed the officers on the train. The application reflected an issue date of February 27, 1997. The form bore a photograph of defendant and listed his name as Rigoberto (sic: Roberto?) Alvarez Ramirez. The form in Spanish asked the applicant to answer under penalty of perjury (1) whether he had ever applied for a driver’s license, permit or identification card under a different name within the last seven years, and (2) whether his privilege to drive had ever been suspended. The “No” boxes were checked off for both questions, and the form was signed under penalty of perjury. The driver’s license which defendant showed to the officers on the train was the license resulting from the February 1997 DMV application submitted into evidence.
A person may seek a license under a different name but must so disclose on the DMV form.
Defendant testified in his own behalf. He denied any knowledge of the gym bag, denied ever touching the bag or anything in it, and could not explain how his fingerprint came to be in it. He admitted he had prior drug convictions but maintained that was all behind him, and he was going to Portland to start a new life. With respect to the perjury count defendant testified his real name is Juan Antonio Huato. He said he took the witness stand as Carlos Blanco because that is the name he used in this case. Defendant admitted getting the driver’s license in the fake name of Rigoberto Alvarez Ramirez and said he did so because his license in his real name had been suspended. However, he denied signing the form, Exhibit 12. He claimed he bought the license from a person; he paid $300 and was given the name, birth date and license number and was taken to DMV and was told to go inside and say he lost his license, and DMV would give him one. He admitted signing some form: “I signed a form. When one goes to the DMV and you report a lost license they give you a form that you have to sign. So that looks like my signature. Then there’s another form where you apply for the license, that one I did not fill out.”
On December 4, 1997, the jury began deliberations. The jury asked for the transcript of testimony of the DMV investigator and defendant regarding the DMV matter. The jury also asked the court what constitutes a declaration under penalty of perjury and whether a signature on a document responding to a specific declaration was required. The court referred the jury to the jury instruction.
On December 4, 1997, the jury returned a verdict of guilty on count one–transportation of methamphetamine to a noncontinguous county for sale. On December 5, 1997, the jury announced it was deadlocked on the perjury count and was directed by the court to continue deliberations. The jury submitted two questions to the court. The jury asked whether it is perjury “”[i]f a person signs a document that is not included as one of those documents in which the statement declarations under penalty of perjury is not written [sic].” The court responded “A declaration under penalty of perjury applies to all documents which it declares to be true.” The jury also asked, “If a person submits a document not signed by him personally–is that person under the penalty of perjury attested to in the document?” The court responded “No.” Later that day, the jury returned a verdict of guilty on count two–perjury.
Defendant admitted the prior conviction and prior prison term allegations.
The trial court sentenced defendant to a total term of 20 years, as follows: The upper term of nine years on the transportation count, a consecutive subordinate term of one year (one-third of the three-year midterm) for the perjury count, plus three enhancements of three years each for prior convictions. under Health and Safety Code section 11370.2, and a one-year enhancement for the prior prison term under section 667.5.
Defendant contends there is insufficient evidence that he transported methamphetamine. We disagree.
In reviewing a claim of insufficiency of the evidence, we review the record to determine whether it contains substantial evidence from which a reasonable trier of fact could conclude that the defendant was guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578.) The test is whether the trier of fact’s conclusions are supported by substantial evidence, i.e., evidence that is reasonable in nature, credible and of solid value. (Id. at p. 577.) We consider the evidence in a light most favorable to the judgment and draw reasonable inferences in support of the judgment. (People v. Pensinger (1991) 52 Cal.3d 1210, 1236-1237.)
The elements of the charged offense–transportation of drugs for sale (Health & Saf. Code, § 11379, subd. (b))–include the following: A person transported a controlled substance and had knowledge of the presence and nature of the controlled substance; the transportation was for purposes of sale; and the transportation was within this state, from one county to another noncontiguous county. (Health & Saf. Code, § 11379; People v. Eastman (1993) 13 Cal.App.4th 668, 673 [general elements of Health & Saf. Code, § 11379, subd. (a), which is incorporated by reference in subd. (b)].)
Although possession is not an essential element of a transportation charge (Eastman, supra, 13 Cal.App.4th at p. 677),in that a defendant may be guilty of drug transportation where the drugs are carried by someone else, here the prosecution’s theory was that the drugs being transported by defendant were the drugs in the gym bag near him. “[O]ne having the requisite knowledge (of the presence and nature of the drugs) may be found guilty of illegal transportation if he also has joint or exclusive possession of the drug in-a moving-vehicle. [Citations.] Possession may be either actual or constructive; the latter is established by showing that defendant maintained some control or right to control over contraband in the physical possession of another. [Citation.]” (People v. Rogers (1971) 5 Cal.3d 129, 133-134.)
Defendant does not dispute the sufficiency of the evidence with respect to the elements of travel between noncontinguous counties for purpose of sale. He merely claims the evidence is insufficient with respect to the question whether he possessed or transported the methamphetamine.
The evidence in this case showed: Defendant’s partial fingerprint was found on a bag containing smaller bag of contraband, which was found in a gym bag in the overhead compartment near him as he rode as a passenger on a public conveyance, a train. No one was sitting next to defendant. Defendant was traveling under a false identity, was nervous in speaking with the officers, gave them a false name, gave them different stories as to the purpose of his trip, and claimed to have no luggage for a trip from San Jose to Portland. The clothing inside the gym bag was consistent with defendant’s size.
We conclude the evidence was sufficient to establish possession and convict defendant of transportation of the drugs.
Defendant cites People v. Johnson (1984) 158 Cal.App.3d 850. Johnson reversed a conviction for narcotics possession, due to insufficiency of the evidence, where the drugs were found by the police in bottles stored in a hole in a kitchen ceiling, the defendant was one of nine persons in the house when the drugs were seized, and a single thumbprint of the defendant was found on one of the bottles. There was no evidence that the defendant owned or occupied the house, though police had seen him in the front yard three days earlier. (Id. at p. 854.) In reversing the conviction, the appellate court said “at most, defendants thumbprint on the bottle shows that at some unknown time and place he had handled that particular bottle. Only by conjecture can it be inferred that defendant was ever in possession of the contraband that was inside that bottle when the police seized it. Such speculation is not evidence of solid value and cannot support the conviction.” (Id. at p. 856.)
Johnson, supra, 158 Cal.App.3d 850, is distinguishable from the case before us. In Johnson, there was a possibility that the defendant, as a guest in the house, touched the bottle at a time when it was not being used for drugs. Here, no similar possibility exists, because the evidence showed defendant denied ever touching the gym bag or anything in it. He denied it to the police, and he denied it to the jury in his own testimony during trial. The bag was not found in a stationary location such as a house, but on a moving train which defendant said he boarded in San Jose.
The facts that other passengers were on the train and the bag bore fingerprints of other unidentified individuals do not undermine the sufficiency of the evidence against defendant. We disagree with defendant’s assertion that “the whole evidence includes a counterpoise detracting from the weight of the partial evidence tending to incriminate.”
Defendant cites our opinion in People v. Small (1988) 205 Cal.App.3d 319, for our citation to Johnson, supra, 158 Cal.App.3d 850. Small itself does not assist defendant. We there held the evidence was sufficient to support drug convictions, where the defendant was present at the site of a clandestine laboratory at 3 a.m., in a car driven by another person, and there was an open tote bag between the driver and the defendant, emitting a strong odor of methamphetamine, and the defendant’s fingerprints were found on a number of containers and drug paraphernalia in the laboratory. Thus, Small does not assist defendant in the case before us.
Defendant cites cases concerning the issue of whether law enforcement officers were justified in detaining a defendant. However, defendant’s contention on appeal (as stated in the heading in his brief) is insufficiency of the evidence, not illegality of the detention. Moreover, defendant fails to show he ever challenged the legality of the detention in the trial court. Hence, the matter of the detention is not before us.
We conclude substantial evidence supports the judgment.
Defendant contends the perjury conviction must be reversed, because the trial court failed to instruct the jury sua sponte on the misdemeanor of making false statements to the DMV (Veh. Code, § 20, [Footnote 1] § 40000. 5 [Footnote 2]), which defendant asserts was a necessary lesser included offense of perjury. We agree.
Defendant was charged and convicted under the perjury statute, section 118, which provides in part: “(a) Every person who, having taken an oath that he or she will testify, declare, depose, or certify truly before any competent tribunal, officer, or person, in any of the cases in which the oath may by law of the State of California be administered, willfully and contrary to the oath, states as true any material matter which he or she knows to be false, and every person who testifies, declares, deposes, or certifies under penalty of perjury in any of the cases in which the testimony, declarations, depositions, or certification is permitted by law of the State of California under penalty of perjury and willfully states as true any material matter which he or she knows to be false, is guilty of perjury. . . .
The complaint alleged defendant committed perjury in that he “declared or certified under penalty of perjury in a case in which such declaration or certification is permitted by law under penalty of perjury, to wit, an application for a California Driver’s License, did willfully state as true a material matter which he knew to be false, to wit: that he had never applied for a California Driver’s License or Identification Card, when, in fact he had applied for a license and had been issued a license under the name of JUAN ANTONIO HUATO.”
Under California law, “a lesser offense is necessarily included in a greater offense if either the statutory elements of the greater offense, or the facts actually alleged in the accusatory pleading, include all the elements of the lesser offense, such that the greater cannot be committed without also committing the lesser.” (People v. Birks (1998) 19 Cal.4th 108, 117; People v. Story (1985) 168 Cal.App.3d 849 (Vehicle Code section 20 was lesser included offense where pleading accused defendant of perjury for false statements made on DMV application].) The trial court has a duty sua sponte to instruct on lesser included offenses “when the evidence raises a question as to whether all.of the elements of the charged offense were present [citation], but not when there is no evidence that the offense was less than that charged. [Citations.]” (People v. Breverman (1998) 19 Cal.4th 142, 154.)
Here, the facts actually alleged in the accusatory pleading included all elements of a violation of Vehicle Code section 20, i.e., the prosecution alleged that defendant knowingly made false statements in an application for a California driver’s license. We disagree with the People’s protest that the accusatory pleading said nothing specifically about DMV, hence did not necessarily include all elements of Vehicle Code section 20. The facts alleged in the accusatory pleading sufficiently included all the elements of Vehicle Code section 20, such that Vehicle Code section 20 constitutes a lesser included offense in this case. (People v. Story, supra, 168 Cal.App.3d at p. 854.)
The next question is whether sufficient evidence existed in this case to require the court to instruct sua sponte on the lesser included offense. “[T]he existence of ‘any evidence, no matter how weak, will not justify instructions on a lesser included offense, but such instructions are required whenever evidence that the defendant is guilty only of the lesser offense is “substantial enough to merit consideration’ by the jury. [Citations.] ‘Substantial evidence’ in this context is ‘”evidence from which a jury composed of reasonable persons could . . . conclude ”‘ that the lesser offense, but not the greater, was committed. [Citations.]” (Breverman, supra, 19 Cal.4th at p. 162, original italics.)
Here, defendant in essence admitted a violation of Vehicle Code section 20. Thus, he testified at trial that he signed a form at the DMV reporting a lost driver’s license, using a fake name, birth date, and license number. There was no indication that any such form included a “penalty of perjury” declaration which would support a perjury conviction. Although no such form was admitted into evidence, and although defendant did not construe his actions as lying, defendant’s admission, together with his possession and use of the license, constituted substantial evidence upon which a jury could convict him of a violation of Vehicle Code section 20. Although the pleading alleged defendant lied on an application for a license, a form seeking a replacement for a lost license is arguably within the scope of that accusation.
Thus, we conclude the trial court should have instructed sua sponte on Vehicle Code section 20 as a lesser included offense.
The final question is whether the error compels reversal. “(I]n a noncapital case, error in failing sua sponte to instruct, or to instruct fully,.on all lesser included offenses and theories thereof which are supported by the evidence must be reviewed for prejudice exclusively under [People v.] Watson ((1956) 46 Cal.2d 818]. A conviction of the charged offense may be reversed in consequence of this form of error only if, ‘after an examination of the entire cause., including the evidence, (Cal. Const., art. VI, § 13), it appears ‘reasonably probable’ the defendant would have obtained a more favorable outcome had the error not occurred. [Citation.]” (Breverman, supra, 19 Cal.4th at p. 178.)
Here, we are not confident that the error was harmless under the Watson standard. The record shows the jury had difficulty in reaching a verdict on the perjury count. First, the jury requested rereading of the trial testimony on this issue. Then, the jury asked the court if perjury required that there be a signature on a document responding to a specific declaration under penalty of perjury. The court referred the jury to the instructions. Although the sequence of events is not clear, the jurors told the court they were “hopelessly deadlock[ed]” on the perjury charge. The jurors asked the court (1) if it constituted perjury for a person to sign a document that did not bear a “penalty of perjury” declaration, and (2) if it constituted perjury for a person to submit a document containing a penalty of perjury declaration but signed by someone else. After the court responded that (1) a declaration under penalty of perjury applied to all documents which it declares to be true, and (2) a person who submits a document not signed by him personally is not under penalty of-perjury, [Footnote 3] the jury found defendant guilty.
Thus, the record suggests that at least some jurors had doubts about whether defendant signed the application which was submitted into evidence. Given this record, we cannot say the instructional error was harmless. Accordingly, we shall reverse the conviction as to count two, perjury.
The judgment is affirmed except for the conviction of perjury, which is reversed. The perjury count is remanded to the trial court for retrial.
SIMS , Acting P.J.
DAVIS , J.
RAYE , J.
Footnote 1: Vehicle Code section 20 provides: “It is unlawful to use a false or fictitious name, or to knowingly make any false statement or knowingly conceal any material fact in any document filed with the Department of Motor Vehicles or the Department of the California Highway Patrol.”
Footnote 2: Vehicle Code section 40000.5 provides in part: “A violation of any of the following provisions shall constitute a misdemeanor, and not an infraction: Section 20, relating to false statements . . . .
Footnote 3: We have no need in this appeal to decide whether this response was correct.