People v. Duenas CA3

California Court of Appeal Jun 14, 2022 No. C093873Unpublished

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Holding. The court held that a defendant's conviction for an uncharged, non-included offense must be reversed because the defendant did not consent to the jury's consideration of the offense and derived no benefit from its submission.

Issues

Whether a conviction for an uncharged offense can be sustained under the theory of implied consent when the defendant derived no benefit from the instruction.
Whether the offense of possessing more than 28.5 grams of cannabis is a lesser included offense of possession of cannabis for sale.

Disposition. reversed

Quotations verified verbatim against the opinion

“A conviction for a nonincluded offense implicates a defendant’s due process right to notice.”

“Defendant received no possible benefit from submitting the uncharged offense to the jury, which is the foundational rationale for instructing the jury on lesser related offenses.”

“Unless the defendant agrees, the prosecution cannot obtain a conviction for any uncharged, nonincluded offense”

Filed 6/14/22 P. v. Duenas CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (San Joaquin) ----

THE PEOPLE, C093873

Plaintiff and Respondent, (Super. Ct. No. STK-CR- FECOD-2019-0013731) v.

ISMAEL SANDOVAL DUENAS,

Defendant and Appellant.

Defendant Ismael Sandoval Duenas was charged with several offenses including cultivating more than six cannabis plants (Health & Saf. Code, § 11358, subd. (c)—count 3) and possession of cannabis for sale (Health & Saf. Code, § 11359, subd. (b)—count 4). The trial court also instructed the jury on the offense of possessing more than 28.5 grams of cannabis (Health & Saf. Code, § 11357, subd. (b)), though that charge was not included in the information. After trial, a jury found defendant guilty on count 3 and possessing more than 28.5 grams of cannabis (Health & Saf. Code, § 11357, subd. (b)), as a purported lesser offense of count 4. For these offenses, the trial court suspended imposition of sentence and placed defendant on one year of probation.

On appeal, defendant contends his conviction for possessing more than 28.5 grams of cannabis must be reversed because he was not charged with that offense, and it is not a lesser of count 4. The People concede that possessing more than 28.5 grams of marijuana is not a lesser included offense to the crime of possession for sale, but contend defendant “implicitly consented to the jury’s consideration of” possessing more than 28.5 grams of cannabis as an offense “related” to possession for sale, for which he was charged in count 4. Defendant has the better argument. PROCEDURAL BACKGROUND The underlying facts of the case are irrelevant to the issue on appeal and we do not recite them. In February 2020, the People charged defendant with felony theft of utility services (Pen Code, § 498—count 1), felony vandalism (Pen. Code, § 594, subd. (b)(1)— count 2), cultivation of more than six cannabis plants (Health & Saf. Code, § 11358, subd. (c)—count 3), and possession of cannabis for sale (Health & Saf. Code, § 11359, subd. (b)—count 4). Defendant pleaded not guilty to the charges. Prior to the close of evidence, the court proposed instructing the jury with CALCRIM No. 2375, the instruction for possession of more than 28.5 grams of cannabis, as a lesser included offense on counts 3 and 4. The court asked if there were any objections and defense counsel responded: “That’s fine. And then just so the record’s clear, I’m personally not requesting the lesser. “THE COURT: Yeah. I have to give it as a matter of law. But we’ll note your objection.” The court instructed the jury accordingly. After trial, the jury found defendant not guilty on counts 1, 2, and 4, but found defendant guilty on count 3 and guilty of possessing more than 28.5 grams of cannabis as a lesser included offense of count 4. Identifying count 3 as the principal term, the trial court subsequently suspended imposition of sentence and placed defendant on one year of

People v. Duenas CA3

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THE PEOPLE, C093873

ISMAEL SANDOVAL DUENAS,

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