Hill

Sentenced to a midterm of two years in state prison, Johnny Wayne Hill appeals his jury trial conviction for selling a substance in lieu of the controlled substance cocaine (Health & Saf. Code, § 11355), 1 claiming error for failure to instruct on lesser related offenses, for misinstruction on eyewitness identification and for prosecutorial misconduct. We affirm.

Background

The conviction is for a sale of something resembling rock cocaine to undercover officer Janine Bakker of the Vallejo Police Department on May 31, 1989. The sale was part of a two-week drug buy operation focusing on street sales on the 1000 block of Grant Street in south Vallejo. Bakker was used to make the buys because she was new to the department (having worked for years beforehand as a deputy sheriff in another county) and was not known to street dealers.

Bakker drove slowly onto the block in an unmarked car about 9 p.m., near dusk, wearing plain clothes and a “body wire” which allowed other officers in the area to monitor her. She made eye contact with Hill, who stood at a driveway outside one of several apartment buildings on that side of the street. She stopped in the traffic lane. Hill walked…

The trial court’s refusal to instruct on misdemeanor distribution of an imitation controlled substance (Health & Saf. Code, § 11680) 1 is, in my view, reversible error.

I.

The majority concludes that instructions on misdemeanor distribution of an imitation controlled substance (§ 11680) were not required even though this lesser related offense is “closely related” to the charged offense (§ 11355) within the meaning of People v. Geiger (1984) 35 Cal.3d 510, 531 [ 199 Cal.Rptr. 45 , 674 P.2d 1303 , 50 A.L.R.4th 1055 ]. This is so, the majority reasons, because “the misdemeanor distribution offense for which Hill sought instruction was ‘lesser’ only in terms of penalty. Its elements so closely resembled those of the charged in-lieu sale that trial counsel would have had to urge jurors to accept, not reject, evidence of the greater offense but return a verdict only on the lesser.” (Maj. opn., ante, p. 44, italics in original.) In other words, denying the lesser related offense instruction does *49 not offend Geiger because “If Hill was guilty of the lesser, on these facts, he was also guilty of the greater.” (Id., at p. 45.)

The theory that Geiger does not apply to offenses so…

[Opinion certified for partial publication. [*] ]

OPINION

SMITH, J.

Sentenced to a midterm of two years in state prison, Johnny Wayne Hill appeals his jury trial conviction for selling a substance in lieu of the controlled substance cocaine (Health & Saf. Code, § 11355), [1] claiming error for failure to instruct on lesser related offenses, for misinstruction on eyewitness identification and for prosecutorial misconduct. We affirm.

The conviction is for a sale of something resembling rock cocaine to undercover officer Janine Bakker of the Vallejo Police Department on May 31, 1989. The sale was part of a two-week drug buy operation focusing on street sales on the 1000 block of Grant Street in south Vallejo. Bakker was used to make the buys because she was new to the department (having worked for years beforehand as a deputy sheriff in another county) and was not known to street dealers.

Bakker drove slowly onto the block in an unmarked car about 9 p.m., near dusk, wearing plain clothes and a "body wire" which allowed other officers in the area to monitor her. She made eye contact with Hill, who stood at a driveway outside one of several apartment buildings on that side of the…