People v. Peregrina-Larios

Opinion

of $40 worth of cocaine to an undercover police officer. He had additional cocaine on his person. Convicted of one count of selling cocaine, he now contends the trial court erred in failing to instruct sua sponte on simple possession as a lesser included offense. He also challenges the constitutionality of CALJIC No. 2.90, the standard reasonable doubt instruction. We affirm.

I

Relying on dicta in

People

v.

Mitchell

(1975) 53 Cal.App.3d 21, 24 [125 Cal.Rptr. 543] (“ ‘Possession’ offenses are normally included offenses

[1524]

within the offense of sale of amphetamines”),

1

Peregrina-Larios first asserts the trial court erred when it failed to instruct sua sponte on simple possession. (Health & Saf. Code, § 11350; see

People

v.

Springfield

(1993) 13 Cal.App.4th 1674, 1679-1680 [17 Cal.Rptr.2d 278]; 5 Witkin & Epstein, Cal. Criminal Law (2d ed. 1989) Trial, § 2926, pp. 3587-3590.) But, as the

Mitchell

opinion itself illustrates, simple possession of a controlled substance cannot be a necessarily lesser included offense of selling or offering to sell—although it could be a lesser related offense (see

People

v.

Geiger

(1984) 35 Cal.3d 510 [199 Cal.Rptr. 45, 674 P.2d 1303, 50 A.L.R.4th 1055])—because the former crime contains elements a sales offense does not: knowing possession of a usable quantity.

(People

v.