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People v. Patrick1/4/2005
THE COURT
A jury found appellant Kenneth Ray Patrick guilty of possession of methamphetamine (Health & Saf. Code, § 11377; count 1), driving under the influence of alcohol (Veh. Code, § 23152, subd. (a), count 2), and driving with a blood alcohol level of 0.08 percent or more (Veh. Code, § 23152, subd. (b), count 3). Allegations of a prior conviction (Pen. Code, § 667, subd. (d)) and a prior prison term (Pen. Code, § 667.5, subd. (d)) were tried by the court without a jury and found to be true. Appellant was sentenced to a prison term of five years.
This appeal pertains only to appellant's count one conviction for possession of methamphetamine. He contends that the court erred by not instructing the jury with CALJIC No. 3.31.5. As we shall explain, we find no error. We will affirm the judgment.
FACTS
Appellant was arrested on June 9, 2003 for driving under the influence . While he was handcuffed, he was searched by Officer Hoskins. Hoskins found a plastic baggy inside appellant's right front pants pocket. Inside the baggie was a yellowish-white powdery substance. Hoskins held the baggie up where appellant could see it and asked appellant "`Is this cocaine or methamphetamine?'" Hoskins testified that appellant "told me that it was methamphetamine." A criminalist tested the substance and determined that it was 0.29 grams of a substance containing methamphetamine. A 23-year veteran of the California Highway Patrol testified that an average dose used by a methamphetamine user would be about .03 grams.
APPELLANT'S JURY WAS PROPERLY INSTRUCTED
"The essential elements of possession of a controlled substance are `dominion and control of the substance in a quantity usable for consumption or sale, with knowledge of its presence and of its restricted dangerous drug character. Each of these elements may be established circumstantially.'" (People v. Palaschak (1995) 9 Cal.4th 1236, 1242; People v. Morales (2001) 25 Cal.4th 34, 41.) Appellant correctly points out that " he trial court must instruct even without request on the general principles of law relevant to and governing the case" and that " hat obligation includes instructions on all of the elements of a charged offense." (People v. Cummings (1993) 4 Cal.4th 1233, 1311.) CALJIC No. 12.00 properly states the elements of the crime of possession of a controlled substance. Appellant's jury was instructed with CALJIC No. 12.00 and thus was properly instructed on the elements of the crime.
Appellant contends, however, that because the court did not also instruct the jury with CALJIC No. 3.31.5, appellant's jury was not instructed on a general principle of law relevant to and governing the case. Appellant did not raise this argument in the trial court, and in fact his trial counsel expressly stipulated on the record that he agreed with the instructions given. We nevertheless address the argument because "the Legislature has specifically provided that an objection is not required in order to preserve instruction issues affecting the substantial rights of a defendant." (People v. Hannon (1977) 19 Cal.3d 588, 600; see also Pen. Code, § 1259.)
Appellant's argument, as we understand it, is as follows. His defense was that while he was intoxicated, but before he was arrested for driving under the influence, someone gave him something to help relieve the effects of his intoxication. Appellant did not know the name of this person, and this person did not testify at appellant's trial. Appellant claims he (appellant) placed the item in his own pocket, but did not know what it was. Appellant testified that the unknown gift-giver "told me it was something for a hangover
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