Can a defendant be charged with transportation of a controlled substance under section 11379 of the California Penal Code?

prosecutions for the same act are prohibited under Penal Code section 654.² "When . . . the prosecution is or should be aware of more than one offense in which the same act or course of conduct plays a significant part, all such offenses must be prosecuted in a single proceeding unless joinder is prohibited or severance permitted for good cause. Failure to unite all such offenses will result in a bar to subsequent prosecution for any offense omitted if the initial proceedings culminate in either acquittal or conviction and sentence." (Kellett v. Superior Court (1966) 63 Cal.2d 822, 827.) Although the trial court instructed the jury on the crime of simple possession of a controlled substance under section 11377, this is because the court and attorneys apparently believed it was a lesser included offense to the charged crime of transportation of a controlled substance under section 11379. The jury did not attempt to arrive at a verdict on simple possession because they had been instructed to do so only if they acquitted defendant on the transportation charge. If the People had charged defendant with the lesser related offense of simple possession, the jury would have been instructed to arrive at verdicts on both the greater (transportation) and lesser (simple possession) charges. Because the People did not do so, any new trial in this matter on simple possession would constitute a new prosecution of defendant based on the same evidence

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used to prosecute the original charge of transportation. This would violate Penal Code section 654, subdivision (a).

Regarding retrial on the transportation charge, we will remand the matter for further proceedings. "Where, as here, evidence is not introduced at trial because the law at that time would have rendered it irrelevant, the remand to prove that element is proper and the reviewing court does not treat the issue as one of sufficiency of the evidence. [Citation.]" (People v. Figueroa (1993) 20 Cal.App.4th 65, 71-72, fn. 2)