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People v. Busch

August 4, 2010

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
ANDREW BENSON BUSCH, DEFENDANT AND APPELLANT.



APPEAL from a judgment of the Superior Court of Sacramento County, Daniel E. Creed, Judge. Affirmed. (Super. Ct. No. 08F02819).

The opinion of the court was delivered by: Sims, Acting P. J.

CERTIFIED FOR PUBLICATION

A jury found defendant Andrew Benson Busch guilty of transportation of more than 28.5 grams of marijuana (Health & Saf. Code, § 11360, subd. (a); undesignated statutory references are to the Health and Safety Code), possession of more than 28.5 grams of marijuana (§ 11357, subd. (c); and driving with a suspended license (Veh. Code, § 14601.1, subd. (a)). The court suspended imposition of sentence on the marijuana offenses and placed him on formal probation.*fn1

On appeal, defendant contends his convictions for transportation and possession of marijuana must be reversed because the jury was not instructed that defendant had to know he transported or possessed more than 28.5 grams of marijuana. He contends further that his conviction for possession of marijuana must be reversed as a lesser-included offense of transportation, and there is insufficient evidence to support his conviction for possession of marijuana. Finding no error, we shall affirm the judgment.

BACKGROUND

While on patrol in South Natomas, Sacramento Police Officer Ben Spencer stopped defendant's GMC Jimmy for expired registration. Officer Spencer's partner, Officer Daniel Paiz, contacted defendant, the driver. Defendant did not have a license and admitted the car was his. He got out of the car and was searched. Nothing was found.

Anthony Cooper was in the truck's front passenger seat, and two other men were in the back seat. Officer Spencer approached the truck and contacted Cooper. Officer Paiz saw a shiny object as Cooper moved his hands from his lap to an area between the front passenger seat and the door. Officer Paiz inspected the area and found a handgun on the floorboard.

Officer Spencer smelled marijuana in the car and obtained consent to search Cooper, who had 43 one-inch Ziploc baggies with a Batman logo. Officer Paiz obtained defendant's consent to search the car, finding a large clear baggie containing 95.5 grams of marijuana in the center console and another bag containing 22.5 grams of marijuana on the rear passenger side between the wall and the seat. In addition, he found 2.74 grams of methamphetamine under the marijuana in the center console. Officer Paiz remembered a scale was recovered from the car, although he could not recall where it was found. Officer Spencer did not recall finding a scale.

After executing a Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694] waiver, defendant told Officer Paiz he drove up from Pacifica to a friend's house and needed to pick up some items. He also admitted there was marijuana in the center console and his driver's license was suspended. Defendant told the officer he was not a drug dealer, and said, "I don't have anything else illegal in the car."

Sacramento Police Detective Justin Johnson testified as an expert on possession for sale of marijuana and methamphetamine. Based on the quantity of drugs seized, the packaging, the scales, and the lack of smoking paraphernalia, he concluded both the marijuana and methamphetamine were possessed for the purpose of sale.

Testifying, defendant said he did not know Cooper very well. After meeting Cooper in the Pacifica Safeway, defendant agreed to drive Cooper to Sacramento so he could buy marijuana, which defendant could share when they returned. On the way to Sacramento, Cooper called and invited the two men who wound up in the back, whom defendant had never met.

Defendant had never been to Sacramento, so Cooper directed him there. He eventually exited the freeway and Cooper led him to a house, where they stopped. Cooper got out of the car, entered the house, and returned about 20 minutes later. Reentering the car, Cooper pulled the marijuana out of his jacket and put it in the center console.

Defendant never saw the gun, the small baggies, or the methamphetamine. Cooper paid for the toll and gasoline; defendant was basically a chauffeur. He did not know how much marijuana had been purchased; since they were going to smoke it, defendant assumed there were no more than six to seven grams in the car.

When defendant consented to the search, he expected the police to find marijuana in the center console and nothing else. Defendant first told the officer he was there to pick up a cell phone, which was not true. Defendant lied because he was nervous and scared over the marijuana in the car. The drive took a couple of hours, and defendant admitted he "possibly" could have obtained marijuana in Pacifica.

DISCUSSION

I.

Regarding the charge of transporting more than 28.5 grams of marijuana (§ 11360, subd. (a)), the court instructed the jury with CALCRIM No. 2361, which provides in pertinent part: "To prove that the defendant is guilty of this crime the People must prove that: [¶] The defendant transported a controlled substance; [¶] The defendant knew of its presence; [¶] The defendant knew of its nature or character as a controlled substance; [¶] The controlled substance was marijuana; [¶] And the ...


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