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Name: People v. Martin
Case #: B204132
Court: CA Court of Appeal
District 2 DCA
Division: 8
Opinion Date: 12/24/2008
Summary

Where the information and the evidence presented at trial specified cocaine base as the controlled substance in the alleged Health and Safety Code section 11350, subdivision (a) violation, the jury’s recording of the guilty verdict on the typed form naming cocaine as the substance did not result in a due process violation as there was sufficient evidence to support a violation of cocaine base. Appellant was charged by information with violating Health and Safety Code section 11350, subdivision (a), with cocaine base listed as the controlled substance. Evidence at appellant’s jury trial established that at a prebooking search, a bindle containing white rocks was found in his sock. Analysis of the substance showed that it was cocaine base. Witnesses referred to the substance as cocaine base or rock cocaine. Although the typed CALCRIM No. 2304 jury instruction referred to the substance as “cocaine,” the court’s oral instruction referred to the substance as cocaine base. A violation of section 11350, subdivision (a), which criminalizes possession of a controlled substance, can be based on possession of either cocaine or cocaine base. The evidence presented here was sufficient to support the conviction for cocaine base, despite the erroneously typed verdict form. Further, defendant waived the error he complained of because he had failed to object to the inconsistent references at trial. Even if not waived, the conflicting references to the substance resulted in no prejudice as the penalty was the same for cocaine or cocaine base.