Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County Super. Ct. No. RIF 126710. Douglas E. Weathers, Judge.
Vicki Marolt Buchanan, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Steve Oetting, Supervising Deputy Attorney General, Felicity Senoski and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Gaut, J.
Defendant Kevin Barnett appeals judgment entered following a jury conviction for selling methamphetamine to an undercover officer (Health & Saf. Code, § 11379, subd. (a)). Defendant waived a jury trial on his prior conviction allegations and admitted a prior drug conviction in 2000 (§ 11352) and a 2002 prison prior for recklessly evading a police officer (Veh. Code, § 2800.02). The trial court accordingly found true a prior conviction enhancement allegation and a prison prior enhancement (§§ 11370.2, subd. (c) and Pen. Code, § 667.5, subd. (b)). Defendant was sentenced to seven years in state prison.
Unless otherwise noted, all statutory references are to the Health and Safety Code.
Defendant contends the trial court committed prejudicial error by failing to give sua sponte a corpus delicti jury instruction (Judicial Council of Cal. Crim. Jury Instns. (CALCRIM) No. 359). We conclude any such error was harmless and affirm the judgment.
1. Facts
Due to reports of drug transactions occurring at the corner of Magnolia and Burge in Riverside, on October 24, 2005, a police undercover narcotics unit set up an operation there to purchase drugs. Around 9:15 p.m., two detectives drove into the parking lot under surveillance and a man approached the officers’ vehicle. One of the detectives asked the man if he could “hook me up.” The man said either “my boy can” or “Kev can,” and nodded toward defendant.
Defendant approached. One of the officers asked defendant if he could get him “a twenty.” Defendant said to return in 15 minutes. The two officers left and returned 15 minutes later. Defendant approached their vehicle. One of the undercover officers asked if he could have “forty.” Defendant said he only had “fifteen.” Looking at the size of the officers, defendant said to them, “[m]aybe you guys don’t use.” One of the officers said it was for strippers at a motel room. Defendant told the officers, “[s]it here for a second. I’ve got to get it out of my car.”
When defendant returned, he told one of the officers to come with him. The officer followed defendant to a low planter wall. They briefly sat on the wall and chatted. Defendant searched the officer, noting that if the officer did not have a gun he probably was not a police officer. Then defendant told the officer to “[l]ook down.” The officer saw a small baggie of drugs and placed a $20 bill on the wall. Defendant took the money and left. The officer picked up the baggie of drugs and the two undercover officers also left.
A third detective, who was conducting surveillance from across the parking lot, heard through a transmitter the two detectives’ conversations with defendant. The conversations were not recorded. After the drug sale, the third detective saw defendant go into a mini-mart. The detective informed another officer of defendant’s location, and defendant was arrested and transported to the police station.
At the time of defendant’s arrest, he had an empty small liquor bottle and a large cup that smelled like alcohol. The officer searching defendant did not find the marked $20 bill exchanged during the drug sale. Rather, defendant had a $10 bill, $5 bill and five $1 bills.
On the way to the police station, defendant implored the transporting officer to talk to defendant’s nephew who worked in the police department and “work something out.” Defendant also told the officer he should have run because he could run faster than the officer. In the booking area, defendant said he should have known “that big pink mother-fucker was a cop.” The drugs defendant sold the undercover officers amounted to .12 grams of methamphetamine.
2. Failure to Instruct on Corpus Delicti Rule
Defendant contends the trial court committed prejudicial error by failing to give sua sponte CALCRIM No. 359, an instruction on the corpus delicti rule. He argues such an instruction was required in light of his extrajudicial statements. While the trial court should have given CALCRIM No. 359, we conclude failure to do so was harmless error.
During the trial, evidence was presented that, after defendant’s arrest, he made the following admissions: (1) he told an officer he had a nephew who was in the police department and repeatedly implored the officer to call his nephew and work something out; (2) defendant said he should have run because he could have outrun the arresting officer; and (3) in the booking area, defendant said, in reference to the undercover officer who purchased the drugs, that defendant “should have known that big pink mother-fucker was a cop.”
A. Instruction on the Corpus Delicti Rule
The trial court gave CALCRIM No. 358 regarding evidence presented at trial that defendant had made these admissions. CALCRIM No. 358, as given, states:
“You have heard evidence that the defendant made oral statements before the trial. You must decide whether or not the defendant made any such statements in whole or in part. If you decide that the defendant made such statements, consider the statements along with all the other evidence in reaching your verdict. [¶] It is up to you to decide how much importance to give to such statements. You must consider with caution evidence of a defendant’s oral statement, unless it was written or otherwise recorded.”
Defendant’s statements were not written or recorded.
CALCRIM No. 359, which the trial court should have also given, states the following:
“The defendant may not be convicted of any crime based on (his/her) out-of-court statement[s] alone. You may only rely on the defendant’s out-of-court statements to convict (him/her) if you conclude that other evidence shows that the charged crime [or a lesser included offense] was committed. [¶] That other evidence may be slight and need only be enough to support a reasonable inference that a crime was committed. [¶] The identity of the person who committed the crime [and the degree of the crime] may be proved by the defendant’s statement[s] alone. [¶] You may not convict the defendant unless the People have proved (his/her) guilt beyond a reasonable doubt.”
CALCRIM No. 359 instructs the jury on the corpus delicti rule which “requires the prosecution to prove that ‘the charged crime actually happened’ exclusive of the accused’s extrajudicial statements. [Citation.] Only a ‘slight or prima facie showing, permitting the reasonable inference that a crime was committed, is sufficient.’ [Citations.]” (People v. Ray (1996) 13 Cal.4th 313, 342, cert. den. ___ U.S. ___ [117 S.Ct. 393], quoting People v. Jennings (1991) 53 Cal.3d 334, 368; see also People v. Alvarez (2002) 27 Cal.4th 1161, 1168-1169 (Alvarez).) Whenever the corpus delicti rule applies, the trial court must instruct on it sua sponte, and it is error not to do so. (Alvarez, supra, at p. 1170; People v. Beagle (1972) 6 Cal.3d 441, 455.) “All that need be shown by independent evidence . . . is that a crime has been committed by someone. [Citations.] Proof of the corpus delicti does not require proof of the identity of the perpetrators of the crime, nor proof that the crime was committed by the defendant. [Citations.]” (People v. Cobb (1955) 45 Cal.2d 158, 161-162.)
The purpose of the corpus delicti rule is “to provide independent evidence that the crime occurred, not to help determine whether the statement was made. Its principle [sic] reason is to ensure ‘that the accused is not admitting to a crime that never occurred.’ [Citations.]” (People v. Carpenter (1997) 15 Cal.4th 312, 394.) The rule guards against a defendant confessing to a crime that never occurred. (Ibid.)
B. Prejudice
The People do not dispute that the trial court erred in not giving CALCRIM No. 359; they merely argue failure to give the instruction was harmless. We agree. An erroneous failure to give a corpus delicti instruction is governed by the Watson test of prejudice. (Alvarez, supra, 27 Cal.4th at p. 1181; People v. Beagle, supra, 6 Cal.3d at pp. 455-456.) Thus, if the corpus delicti is “convincingly established” by evidence other than the defendant’s admission, the error is harmless. (People v. Williams (1988) 45 Cal.3d 1268, 1317, cert. den. (1989) 488 U.S. 1050; People v. Beagle, supra, at pp. 455-456; accord, People v. Howk (1961) 56 Cal.2d 687, 707 [“establishe[d]”]; People v. Holbrook (1955) 45 Cal.2d 228, 234 [“amply established”]; People v. Daly (1992) 8 Cal.App.4th 47, 59-60 [“clearly established”]; see also People v. Mickle (1991) 54 Cal.3d 140, 180, cert. den. (1992) 503 U.S. 988 [failure to instruct on corpus delicti rule was harmless where there was a “strong inference” that the crime occurred]; People v. Lara (1994) 30 Cal.App.4th 658, 677 [failure to instruct on corpus delicti rule was harmless where there was a “reasonable inference” that the crime occurred].)
In concluding the failure to give a corpus delicti instruction was harmless error, the California Supreme Court in Alvarez, supra, 27 Cal.4th 1161, explained that “the modicum of necessary independent evidence of the corpus delicti, and thus the jury’s duty to find such independent proof, is not great. The independent evidence may be circumstantial, and need only be ‘a slight or prima facie showing’ permitting an inference of injury, loss, or harm from a criminal agency, after which the defendant’s statements may be considered to strengthen the case on all issues. [Citations.] If, as a matter of law, this ‘slight or prima facie’ showing was made, a rational jury, properly instructed, could not have found otherwise, and the omission of an independent-proof instruction is necessarily harmless.” (Alvarez, supra, 27 Cal.4th at p. 1181.)
Defendant argues the failure to give the corpus delicti instruction was prejudicial because there was no evidence that the drug transaction occurred, other than the undercover officers’ testimony. Defendant notes the marked $20 bill was not recovered and the baggie of drugs was not fingerprinted. In addition, the first trial ended in a mistrial, after the jury deliberated for a day and a half and was deadlocked. In the second trial, the jury deliberated for only 30 minutes before returning a guilty verdict. Defendant claims the two trials were almost identical, with the exception of the court not giving the corpus delicti instruction in the second trial. Defendant thus asserts the failure to give CALCRIM No. 359 constituted prejudicial error.
We disagree. We find sufficient independent evidence that the drug transaction occurred. Although the first trial ended in a mistrial this does not necessarily establish a reasonable probability that, had the corpus delicti instruction been given in the second trial, there would have been a more favorable result. The favorable outcome in the first trial could have been attributable to a number of factors, such as the makeup of the jury and the experience of testifying and of trying the case on a previous occasion.
In determining whether the instructional error was harmless, we thus look to the evidence presented at the second trial and conclude there was substantial independent evidence establishing the corpus delicti. That evidence consisted of the undercover officers’ testimony as to what occurred during the drug transaction. The officers testified that they initiated an undercover “buy” operation at the location of the drug transaction in question; a man, who said he was unable to sell any drugs, referred the officers to defendant for the purchase of drugs; one of the undercover officers asked defendant to sell him some drugs and defendant agreed to do so; defendant told the officer to follow him to a retaining wall in the parking lot where defendant searched the officer; upon indicating he was satisfied the undercover officer was not a police officer, defendant told the officer to put $20 on the wall and then motioned the officer to look down at a baggie of methamphetamine next to the money; defendant took the money and left.
As a matter of law, the record contains the requisite prima facie showing, independent of defendant’s extrajudicial statements, that defendant sold methamphetamine to an undercover detective. Accordingly, insofar as the trial court erred in failing to instruct the jury on the requirement of independent evidence, the error was harmless. (Alvarez, supra, 27 Cal.4th at p. 1982.)
3. Disposition
The judgment is affirmed.
We concur: Ramirez, P. J., McKinster, J.