People v. Dorr CA3

Filed 11/27/13 P. v. Dorr CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Yolo) ----

THE PEOPLE, C072215

Plaintiff and Respondent, (Super. Ct. No. CRF 11-3591)

v.

RONALD JACK DORR,

Defendant and Appellant.

A jury found defendant Ronald Jack Dorr guilty of one count of offering to sell a controlled substance (the parties stipulating that he had oxycodone in his possession). As instructed, the jury did not return a verdict on the alternate count that charged him with the lesser offense of possessing a controlled substance for sale. The trial court dismissed the second count sua sponte. It then sustained a recidivist allegation. (The court also found defendant in violation of probation in a different case that is not part of this appeal.) It sentenced him to state prison for eight years.

1

On appeal, defendant argues the inclusion of the wrong statutory reference in the verdict form made it fatally ambiguous, requiring reversal of the judgment. Rejecting this argument, we shall affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Our resolution of defendant’s argument does not implicate the facts underlying his conviction. We therefore omit them.

The information charged defendant with offering to sell oxycodone and Oxycontin (we note the latter is simply a brand name of the former) in violation of Health and Safety Code section 11352, subdivision (a)1 and possessing it for sale in violation of section 11351. The court clerk read the information to the jury at the outset of the trial. The written instructions correctly defined the elements of the two offenses, including the correct code section for each (along with code sections for other offenses that the pattern instructions embrace). The trial court did not make any reference to code sections in reading these instructions to the jury. As noted above, the court instructed the jury that count two (possession for sale) was a lesser included offense of count one (offering to sell), and it could return a verdict on count two only if it found that defendant was not guilty of count one; if the jury found unanimously that defendant was guilty of count one, it could not return a verdict on count two. The prosecutor highlighted the distinction between the offenses charged in the two counts without any reference to the code sections, emphasizing the presence of evidence of an attempt to sell. The verdicts correctly described the conduct involved in each offense and the count in the information to which it related, but transposed the code references: They included section 11351 in the verdict form for count one (offering to sell), and section 11352 in the verdict form in count two (possessing for sale).