People v. MurphyPeople v. Murphy
*1506 Opinion
A jury convicted defendant Tasauna Danielle Murphy of single counts of selling cocaine base, possessing cocaine base for sale, and evading a pursuing police officer. (
On appeal, defendant contends a prior conviction for possessing cocaine base for sale should have been excluded, her
Marsden
motion was erroneously denied, the possession conviction cannot stand because it was part of the sale, her counsel was ineffective, and her upper term violates
Blakely v. Washington
(2004)
Background
On December 10, 2003, Sacramento police officers conducted a narcotic “buy/bust” operation that at one point set its sights on a woman and a man sitting in a car. The woman, who was later identified as defendant, was sitting in the driver’s seat; it was her car. The man, later identified as Jimmy Cunningham, got out of the car and asked an undercover officer, who was in another vehicle, what he wanted. The officer indicated “a 20” (meaning $20 of rock cocaine). Cunningham replied that he had to go to the car to get it, and requested $5 for doing so. The officer negotiated this fee down to $2 and gave Cunningham a prerecorded $20 bill.
Cunningham walked to the driver’s side of defendant’s car, where defendant was sitting. Cunningham reached into the car through the rolled-down window and then walked back to the officer’s car, giving the officer a cocaine rock in exchange for the additional $2. Cunningham asked the officer if he wanted “10 more.” The officer did, and gave Cunningham a prerecorded $10 bill. Cunningham repeated the retrieval process, but, while his arms were in defendant’s car, the “buy/bust” arrest team vehicle pulled up and one of the team’s officers arrested Cunningham. The buying officer never saw defendant reach for anything or hand anything to Cunningham.
Two other officers of the arrest team (one uniformed, the other plain-clothed) got out of the team vehicle, identified themselves, and ordered defendant to shut off her car engine, which she had just started. Although one of the officers drew his service pistol, defendant drove off with marked police cars in pursuit.
*1507 During the chase, defendant ignored stop lights, stop signs, one-way directions, and speed limits. Eventually, an officer stopped defendant’s car and she was arrested after a short foot chase.
A search of defendant’s car yielded the prerecorded $10 bill and a second piece of rock cocaine on the front floorboard. An expert explained that, during a drug sale, an intermediary will often act as a go-between for the seller, who is actually holding the dope, and the buyer.
Defendant denied any involvement in or knowledge of the drug transactions; she was merely in the area to get her car fixed and Cunningham coincidentally was helping her to find her mechanic. At one point, Cunningham sat in her car. She drove off because she became frightened of the people around her car.
Discussion
1., 2. *
3. Multiple Convictions
Defendant contends she was improperly convicted for both selling the cocaine rock in count one and possessing that same rock for sale in count two, a necessarily included offense. We disagree.
Our state high court has long held that multiple convictions may not be based on necessarily included offenses.
(People
v.
Pearson
(1986)
“For purposes of the rule proscribing multiple conviction, 1 “[u]nder California law, a lesser offense is necessarily included in a greater offense if
*1508
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. Sanchez
(2001)
The current test of a necessarily included offense is narrower because it looks
only
to statutory elements or charging allegations. Unlike the former test, the current test of a necessarily included offense does not encompass an offense in which the
facts
established by the evidence at trial make it impossible to commit one offense without also committing another. (See
Thomas, supra,
231 Cal.App.3d at pp. 304—306 [discussing the former and current tests of a necessarily included offense and the decisions embodying them, including the former test decision of
Francis, supra,
The current criteria for a necessarily included offense was not met here because neither the statutory elements test nor the charging allegations test was met.
As for the statutory elements test, a conviction for the greater offense of selling the cocaine (count one) does not require, as one of its statutory elements, the lesser offense of possessing the cocaine for sale (count two); possession is not an essential element of the sale offense. For example, one can broker a sale of a controlled substance that is within the exclusive possession of another.
(People
v.
Peregrina-Larios
(1994)
*1509 As for the charging allegations test, the information here simply charged defendant, as relevant, with selling cocaine base (count one) and with possessing cocaine base for sale (count two). Nothing more was alleged.
We conclude defendant was properly convicted of the sale and possession offenses. (In line with Penal Code section 654, which prohibits multiple punishment, the trial court properly stayed the sentence for the possession conviction.)
4., 5. *
Disposition
The judgment is affirmed.
Sims, Acting P. J., and Butz, J., concurred.
A petition for a rehearing was denied January 17, 2006, and the opinion was modified to read as printed above. Appellant’s petition for review by the Supreme Court was denied April 12, 2006, S140753. Werdegar, J., did not participate therein. Kennard, J., was of the opinion that the petition should be granted.