People v. Wilson CA4/3

Filed 2/18/15 P. v. Wilson CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent, G049065

v. (Super. Ct. No. 11HF3090)

BRITTNEY MICHELE WILSON, OPINION

Defendant and Appellant.

Appeal from a judgment of the Superior Court of Orange County, John Dorsey Conley, Judge. Affirmed. Matthew A. Siroka, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland, Scott C. Taylor, and Robin Urbanski Deputy Attorneys General, for Plaintiff and Respondent. * * *

Defendant was convicted of possession of oxycodone for sale (Health & Saf. Code, § 11351; count 1), possession of alprazolam for sale (Health & Saf. Code, § 11375, subd. (b)(1); count 2), and possession of heroin (Health & Saf. Code, § 11350, subd. (a)); count 3). The court suspended imposition of sentence in lieu of three years’ formal probation with 270 days in county jail. Defendant appeals her convictions on counts 1 and 2. She contends her due process rights were violated by an answer the court gave to a question from the jury. The jury instruction recited as one element of counts 1 and 2, “The defendant [unlawfully] possessed a controlled substance.” (CALCRIM No. 2302.) Defense counsel argued, among other things, that the possession was legal because defendant had acquired the pills through legitimate prescriptions. During its deliberation, the jury sent a question to the court: “Can one obtain controlled substances via an Rx and still be guilty of the charge although the pills were obtained ‘legally?’” The court responded, “No matter how he or she came into possession of the drugs, a person can be guilty of possession of . . . drugs for the purpose of sale, if the person’s intent is to sell the drugs, not simply to consume them for personal use.” Twelve minutes later, the jury returned a guilty verdict. Defendant appears to concede that the court’s response is a correct statement of the law. Defendant contends, however, that it was tantamount to removing an element of the crime and undermined defendant’s argument to the jury. We affirm.