Crone

Defendant Richard Lee Crone (defendant) was charged, in the alternative, with possession of methamphetamine for sale (Health & Saf. Code, § 11378), and simple possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)). A jury found him guilty of possession of methamphetamine for sale. He was placed on three years’ probation, on conditions including one hundred twenty days in jail to be served on weekends.

Defendant appeals, contending the trial court erred by:

1. Failing to instruct on the effect of reasonable doubt in choosing between the greater and the lesser offense.

2. Giving an erroneous instruction on the relationship between the jury’s verdicts on the greater and the lesser offense (CALJIC No. 17.03 (1990 rev.)).

3. Failing to instruct that access alone is insufficient to prove possession.

4. Giving an erroneous instruction on “reasonable doubt” (CALJIC No. 2.90 (1994 rev.)).

In addition, defendant claims prosecutorial misconduct.

We agree that the trial court should have instructed on the significance of reasonable doubt on the choice between the greater and lesser offense (contention No. 2), but we find the error harmless. Otherwise, we find…