(Super. Ct. No. MF032038C)
The opinion of the court was delivered by: Nicholson , Acting P. J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
The People appeal from an order granting a new trial. After the defendant was convicted of possession of methamphetamine for sale, the trial court granted the defendant's motion for new trial because the court had not instructed the jury on aiding and abetting. We conclude that the trial court erred by granting the motion for new trial. We therefore reverse.
When the police searched a motel room in Manteca, they found several people, including the defendant, in possession of methamphetamine and other contraband. The defendant identified her purse, and a search of the purse revealed five individual plastic bags of methamphetamine (four of the bags together in a larger bag) and two scales, both with methamphetamine residue on them.
The total amount of methamphetamine found in the defendant's possession was 3.87 grams. A prosecution expert testified that the totality of the circumstances indicated that the methamphetamine found in the defendant's purse was possessed for purposes of sale. To make this determination, he relied on the number of bags containing methamphetamine, two scales with methamphetamine residue on them, a motel room paid for with cash, and an amount of methamphetamine sufficient for 38 doses. Also, the methamphetamine was worth about $400, and the defendant was unemployed.
The defendant testified that she was in the motel room using methamphetamine the evening of the search. Her boyfriend, Chad Olson, was one of the other people in the room that evening, using methamphetamine. But he was also a dealer. Olson gave the defendant the loose bag of methamphetamine, found later in the defendant's purse, when he first entered the motel room. He then went to the back part of the room, where a counter and mirror were located, and weighed out portions of methamphetamine, using one of the scales found in the defendant's purse. Later, Olson started preparing to go to work. He told the defendant that he had put the methamphetamine in her purse. Olson also put the scales in the defendant's purse. The defendant admitted that she knew that Olson sold methamphetamine and that she had held methamphetamine for him in the past.
The defendant was charged by information with one count of simple possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)) and one count of possession of methamphetamine for sale (Health & Saf. Code, § 11378). She was tried by jury, with Judge K. Peter Saiers presiding.
During the conference concerning jury instructions, the prosecutor requested the trial court to instruct the jury on aiding and abetting. The trial court refused.
During closing argument, the prosecutor asserted that the defendant possessed the methamphetamine in her purse and knew that Olson intended to sell it. The prosecutor stated: "She doesn't have to be the main participant in this crime, as long as she's a participant in this crime to be guilty of it. So she wants you to believe that she's the lesser participant in this, so you find her not guilty. But guess what? Even if you believe again -- it goes back -- even if you believe her entire story, she's guilty of the crime according to her story because she's sitting there with the knowledge of having methamphetamine for sale in her purse. Okay? She's helping out -- if you believe her story, again -- you might as well believe it because she's guilty of the [possession for sale] count if you believe her. She's assisting somebody else in --" At that point in the argument, defense counsel objected, but the trial court ruled that it was "proper argument within the limits of the instructions." The prosecutor continued by arguing that two people can possess drugs at the same time.
Defense counsel argued that the methamphetamine was not possessed for sale and that the defendant was not a dealer. The methamphetamine ...