Thursday, August 5, 2010
Court Upholds Conviction of Self-Said Marijuana ‘Chauffeur’
Knowledge of Quantity Not an Element of Felony Offense, Panel Rules
By STEVEN M. ELLIS, Staff Writer
The crimes of transporting or possessing more than 28.5 grams of marijuana don’t require knowledge that such quantity was involved, the Third District Court of Appeal ruled yesterday.
Upholding the convictions of a Pacifica man who claimed he was merely acting as a marijuana “chauffeur,” the court in Sacramento held that state law requires only knowledge that the drug was possessed or transported, and that the amount merely enhances the penalty.
The justices rejected Andrew Busch’s argument that possession of marijuana is a lesser-included offense of transportation, and concluded that sufficient evidence supported his convictions where a bag containing 95.5 grams found in the center console of his car—which he was driving—was immediately accessible to Busch. They also noted that he acknowledged the marijuana’s presence to police and admitted that he planned to share it with a passenger.
A jury found Busch guilty of violating Health & Safety Code Secs. 11360 and 11357(c), and of driving with a suspended license, after Sacramento police found the drugs in Busch’s GMC Jimmy during a traffic stop for expired registration.
Busch—who had three passengers with him—admitted to police that the car was his and that he did not have a license. Nothing was found during a search of his person, but when officers found a handgun on the floorboard near the passenger in the front seat, Anthony Cooper, they searched him and found 43 one-inch Ziploc baggies with a Batman logo.
Police then searched the car with Busch’s consent, finding a large clear baggie containing 95.5 grams of marijuana in the center console and another bag containing 22.5 grams of marijuana on the rear passenger side between the wall and the seat. The officers also found 2.74 grams of methamphetamine under the marijuana in the center console.
Busch later testified that he did not know Cooper very well and agreed to drive him to Sacramento to buy marijuana which the two would share when they returned. Busch said that Cooper invited the other two passengers, and gave him directions to a house in Sacramento where Cooper obtained the marijuana later found in the console.
Busch claimed he never saw the gun, baggies or methamphetamine, and that Cooper paid for the toll and gasoline. He also said he had assumed only a small amount of marijuana had been purchased and that he expected police to find only a small amount of marijuana in the console and nothing else. He did, however, admit that he “possibly” could have obtained marijuana in Pacifica.
On appeal, Busch argued that reversal of his convictions was required because Sacramento Superior Court Judge Daniel E. Creed did not instruct the jury that Busch had to know he transported or possessed more than 28.5 grams of marijuana. Busch also contended that his possession conviction had to be reversed because it was a lesser-included offense of transportation, and that there was insufficient evidence to support his possession conviction.
Justice Rick Sims, however, rejected all three assertions. Reasoning that proof of the knowledge and character of a narcotic substance is all that is necessary to bring an act or omission within the Health & Safety Code’s provisions, Sims declined to “insert” a knowledge requirement as to amount.
“Defendant committed the offense of transportation of marijuana—transporting a substance he knew was marijuana with the knowledge of its nature as a controlled substance,” the justice wrote. “Whether he transported more or less than 28.5 grams of marijuana does not go to whether he violated section 11360, but merely determines how much he will be punished.”
Sims reasoned that possession of marijuana is not a lesser-included offense of transportation because a person can aid and abet transportation by agreeing to act as a driver for someone who already has dominion and control over a controlled substance without aiding and abetting that person’s possession of the substance.
He also opined that sufficient evidence supported Busch’s possession conviction under the doctrine of constructive possession.
Justices Vance W. Raye and Tani Cantil-Sakauye joined Sims in his opinion.
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