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Name: People v. Jaffe
Case #: H026265
Court: CA Court of Appeal
District 6 DCA
Opinion Date: 10/13/2004
Subsequent History: Rev. granted 1/26/05: S129344

Appellant’s car was searched following his his arrest for public intoxication. Officers found a loaded handgun and another pellet gun, as well as methamphetamine and a usable amount of cocaine. Appellant’s blood test also revealed the presence of cocaine. Following a jury trial, appellant was convicted of seven offenses, including both possession of cocaine and possession of cocaine while armed. On appeal, he argued that he could not be convicted of both offenses because possession of cocaine is a lesser included offense of possessing cocaine while armed. The appellate court agreed and reversed the conviction for possession of cocaine. Simple possession is a lesser offense under the elements test only if armed possession requires a usable amount of the controlled substance. Here, it is consistent with the legislative purpose of the statute to construe “any amount” as meaning “any usable amount.” Further, counsel was not ineffective for stipulating to appellant’s prior federal conviction for robbery. Penal Code section 12021.1 did not intend to limit robbery to state convictions. It was also not error for the trial court to have refused to give appellant’s proposed instruction that access to the items, without more, was insufficient to prove possession. The standard CALJIC instructions given adequately instructed the jury on this principle, and even if they did not highlight defendant’s theory as his requested instruction would have, the concept was sufficiently presented by the given instructions and counsel’s argument. Finally, the imposition of the upper term did not violate the principles of Blakely v. Washington since the sentence did not exceed the statutory maximum for the offense.