Opinion
B295704
03-04-2020
THE PEOPLE, Plaintiff and Respondent, v. GERMAN BENITEZ JR., Defendant and Appellant.
Andrew M. Stein, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Acting Supervising Deputy Attorney General, Steven D. Matthews and Analee J. Brodie, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. VA144772) APPEAL from a judgment of the Superior Court of Los Angeles County, John A. Torribio, Judge. Affirmed. Andrew M. Stein, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Acting Supervising Deputy Attorney General, Steven D. Matthews and Analee J. Brodie, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
Appellant German Benitez, Jr., met with an undercover detective to sell him fitness supplements deemed controlled substances by law ("steroids"). He was charged with possessing and offering a controlled substance for sale. At trial, the court excluded evidence that appellant was unaware of the steroids' legal status as controlled substances and therefore unaware that possessing and offering them for sale was illegal. The court granted appellant permission to introduce evidence that he was unaware of the steroids' factual nature, but appellant presented no such evidence. Indeed, aside from calling his girlfriend to testify about his reputation, appellant mounted no defense. On appeal from his convictions on both charges, appellant contends: (1) the trial court prejudicially erred by failing to instruct the jury on mistake defenses (mistake of fact and mistake of law); and (2) the court's exclusion of evidence of appellant's ignorance of the law violated his constitutional right to present a defense. Finding no error, we affirm.
PROCEEDINGS BELOW
The state charged appellant with (1) selling, offering to sell, or transporting a controlled substance, viz., stanozolol, testosterone, or trenbolone (Health & Saf. Code, § 11379, subd. (a)); and (2) possessing the same controlled substance for sale (id., § 11378). Stanozolol, testosterone, and trenbolone are controlled substances. (Id., § 11007 [defining "[c]ontrolled substance" to include substances listed in Health and Safety Code section 11056]; id. § 11056, subds. (f)(28), (f)(30), (f)(31) [listing stanozolol, testosterone, and trenbolone as controlled substances containing anabolic steroids].)
The prosecution evidence at trial -- undisputed there and on appeal -- established that appellant advertised "steroid-type" fitness supplements for sale on a popular Website in February 2017. A Los Angeles County Sheriff's Department detective used the contact information in the advertisement to communicate with appellant, confirming that appellant was offering trenbolone and other steroids for sale and arranging to meet appellant the next day to make a purchase. Upon meeting appellant, the detective saw two glass vials in appellant's car and advised appellant of his Miranda rights, which appellant waived. Appellant admitted to the detective that he had been selling steroids for two or three years, and that the vials in his car contained steroids he had intended to sell to the detective. The detective searched appellant's car and found more of the substances he had asked to buy. A criminalist tested the substances and determined they contained Sustanon (a mixture of testosterone steroids), trenbolone enanthate, and stanozolol.
Miranda v. Ariz. (1966) 384 U.S. 436.
As noted, appellant did not dispute the prosecution's evidence at trial; indeed, during opening statements to the jury, his counsel conceded he sold "drugs." Appellant's counsel proceeded to preview a defense based on appellant's ignorance of the law, stating the charges required proof that appellant "had the specific intent to know what he sold was a controlled substance," and predicting the evidence would show that "even an expert" must take "many steps" to determine whether a substance is controlled.
During trial, the court made several rulings preventing appellant from mounting this defense based on ignorance of the law. First, during cross-examination of the detective, appellant's counsel asked where a layperson could find a list of controlled substances, and the court sustained its own relevance objection. Second, the court excluded appellant's proffered testimony that he did not know it was illegal to sell the substances he was selling. Finally, the court prohibited appellant's counsel from arguing to the jury that appellant's knowledge of the substances' legal status as controlled substances was an element of the charged offenses. The court explained, "If I don't know something is heroin . . . , that's the defense [to a charge of selling it]. But if I know it's heroin and I don't know it's against the law to sell heroin, that's not a defense."
Despite ruling that appellant's ignorance of the law could not establish a defense, the court acknowledged that it could be a mitigating factor at sentencing. The court also granted appellant's counsel permission to elicit testimony from appellant regarding whether he knew he was selling anabolic steroids, trenbolone, or stanozolol.
Appellant did not testify. He called only one witness: his girlfriend of six years, who testified that appellant had a reputation in the community for being truthful and lawful.
The court did not instruct the jury on mistake of law as a defense (CALCRIM No. 3411) or on mistake of fact as a defense (CALCRIM No. 3406). Appellant's counsel informed the court that he would have requested these mistake instructions if the court had allowed appellant to testify regarding his good faith belief that he was not violating the law. The court instructed the jury on the elements of the offenses pursuant to CALCRIM Nos. 2301 and 2302. After the prosecutor summarized the evidence for the jury and argued it satisfied the elements of the offenses, appellant's counsel waived closing argument.
The jury convicted appellant on both counts. The prosecution requested that the court grant appellant probation but require appellant to serve six months in jail as a probation condition. The trial court did grant appellant probation (for a three-year term) but required appellant to serve only one day in jail, with one day's credit for time served. Further, the court indicated it would favorably consider a motion for early termination of probation if appellant "d[id] well" on probation, which the court was "sure he [would] do . . . ." Noting that appellant "wasn't sneaking around" when he sold the steroids, which the court deemed "not . . . what we think of as traditional street contraband," the court stated that appellant "ha[d] been a law-abiding citizen."
Appellant timely appealed.
DISCUSSION
Appellant contends: (1) the trial court prejudicially erred by failing to instruct the jury on mistake defenses (mistake of fact and mistake of law); and (2) the court's exclusion of evidence of appellant's ignorance of the law violated his constitutional right to present a defense.
A. Principles
"Ignorance of the law is no excuse. This maxim is so long-standing and so well established that it is part of the very fabric of our legal system." (Diaz v. Grill Concepts Services, Inc. (2018) 23 Cal.App.5th 859, 869; accord, Stark v. Superior Court (2011) 52 Cal.4th 368, 396 (Stark) ["'"It is an emphatic postulate of both civil and penal law that ignorance of a law is no excuse for a violation thereof"'"].) This principle is subject to a limited exception: ignorance of the law is a defense where it negates an element of the charged offense, as where the charging statute may be violated only where the defendant knew or intended that his conduct would violate a law. (See People v. Ramsey (2000) 79 Cal.App.4th 621, 631-632 (Ramsey) ["'To constitute a good defense, the mistake must be one that negatives the intent or other mental state that is an element of the crime'"], quoting 1 Witkin & Epstein, Cal. Criminal Law (2d ed. 1988) Defenses, § 219, p. 254; People v. Urziceanu (2005) 132 Cal.App.4th 747, 775 (Urziceanu) [because conspiracy requires, as an element, intent to violate the law, "[d]efendant's good faith mistake of law, while not a defense to the crime of selling marijuana, was a defense to the conspiracy to commit that crime"].)
Similarly, "[a] mistake of fact, by itself, will not provide a defense unless it disproves an element of the crime." (1 Witkin & Epstein, Cal. Criminal Law (4th ed. 2019) Defenses, § 47, italics added; see also People v. Williams (1991) 233 Cal.App.3d 407, 411 (Williams) [defendant's mistaken belief regarding minor's age did not negate intent element of charge of selling cocaine to minor, which required only "intent to sell cocaine," and thus was no defense].)
Under a typical statute, "[a] defendant must know the facts that affect the material nature of his conduct, that is, the facts that must be proven to show his act is the kind of conduct proscribed by the statute. He need not know that his behavior in light of those facts is regulated by a statute." (Stark, supra, 52 Cal.4th at 397; see also In re Jorge M. (2000) 23 Cal.4th 866, 886 (Jorge M.) [conviction under Assault Weapons Control Act for possession of unregistered weapon required that defendants knew or reasonably should have known only "the characteristics of the weapon bringing it within the registration requirements," not weapon's legal status under Act; the latter, "extraordinary" standard would be incompatible with "the fundamental principle that all persons are obligated to learn of . . . applicable laws"].) Even statutory references to knowledge and intent typically do not imply a requirement that a defendant knew or intended that his conduct would violate any law. (See, e.g., Ramsey, supra, 79 Cal.App.4th at 632-633 ["Despite occurrence of the terms 'intentionally' and 'knowingly,' Water Code section 13387 does not expressly indicate that knowledge that a material is a pollutant is an element of the offense [of discharging a pollutant in navigable waters], and thus a mistake of law concerning this matter is not a defense"]; Stark, supra, 52 Cal.4th at 380, 397-398, 403-404 ["unusual" statutory provisions prohibiting persons with control over public funds from engaging in specified conduct "'[w]illfully'" or "'[w]ithout authority of law'" required, as element, defendant's knowledge of "presence or absence of legal authorization," but no such knowledge was required by provision in same statute prohibiting persons from engaging in specified conduct "knowingly"].)
B. Analysis
Because evidence of appellant's mistaken understanding of the law could not have negated any element of the charged offenses, the trial court properly excluded that evidence and properly declined to instruct the jury on the defense of mistake of law. The text of the statutes under which appellant was charged do not require that the defendant knew or intended that his conduct would violate any law. (Health & Saf. Code, § 11378 [prescribing punishment for person who "possesses for sale a controlled substance"]; id. § 11379, subd. (a) [prescribing punishment for person who "transports, . . . sells, . . . or offers to . . . sell . . . any controlled substance"].) In the face of the statutes' silence, appellant merely quotes verbatim from several CALCRIM pattern instructions on the charged offenses and on mistake defenses (and from the bench notes to the mistake instructions), without elaborating on the instructions' meaning or attempting to apply their supporting authority to the facts of this case. Finding no evidence of contrary legislative intent, we conclude that the statutes under which appellant was charged do not require that a defendant knew or intended that his conduct would violate any law. (See Williams, supra, 233 Cal.App.3d at 411 ["The specific intent for the crime of selling cocaine to a minor is the intent to sell cocaine"]; cf. Jorge M., supra, 23 Cal.4th at 886 [knowledge of firearm's legal status as assault weapon requiring registration was not element of offense of possession of unregistered assault weapon]; Ramsey, supra, 79 Cal.App.4th at 632-633 [knowledge of material's legal status as pollutant was not element of offense of discharging pollutant in navigable waters].)
The trial court also properly declined to instruct the jury on mistake of fact. Appellant neither proffered nor presented any evidence that he acted on a mistaken understanding of fact, despite the court's express permission to testify regarding whether he knew he was selling anabolic steroids, trenbolone, or stanozolol.
This conclusion is consistent with the pattern instruction on possession for sale of a controlled substance (CALCRIM No. 2302), from which appellant quotes without discussion. The instruction identifies the elements of the offense, including the defendant's knowledge of "the substance's nature or character as a controlled substance." This language accurately requires knowledge of the substance's factual character, i.e., knowledge of those characteristics of the substance that bring it within the legal definition of a controlled substance. (Cf. Jorge M., supra, 23 Cal.4th at 886-887 [conviction for possession of unregistered assault weapon requires "a degree of scienter regarding the character of the firearm," i.e., actual or constructive knowledge of "the characteristics making it a defined assault weapon," not knowledge of weapon's legal status as assault weapon]; see also id. at 877 [describing "criminal penalties for possession of controlled substances" as "related" to weapon possession penalties].) Even had the CALCRIM instruction purported to require the defendant's knowledge of the substance's legal status, it would not be authority for such a requirement. (See People v. Diaz (2015) 60 Cal.4th 1176, 1188, fn. 7 [disregarding alleged intent of CALCRIM drafters on ground that CALCRIM instructions are not authority].)
Our conclusion that the charging statutes do not require knowledge of a controlled substance's legal status defeats both of appellant's contentions. First, the trial court properly declined to instruct the jury that appellant's mistaken belief that his conduct was lawful would establish a defense. (See Urziceanu, supra, 132 Cal.App.4th at 775 [good faith belief in compliance with law is not defense to charge of selling marijuana]; Ramsey, supra, 79 Cal.App.4th at 633 [trial court properly instructed jury that defendant's belief in legality of discharge was not defense to charge of discharging pollutant in navigable waters].) Second, the court did not violate appellant's constitutional right to present a defense by excluding evidence of appellant's ignorance of the steroids' legal status as controlled substances. (See People v. Noori (2006) 136 Cal.App.4th 964, 977-978 (Noori) [exclusion of evidence that defendant "believed his conduct was legal" did not violate defendant's constitutional right to present defense, where evidence "would not have served to negative any element of the charged offense" of receiving, representing that defendant was authorized to receive, or soliciting money for transfer to foreign country].)
The cases on which appellant relies are consistent with these conclusions. Appellant quotes verbatim the descriptions of People v. Vineberg (1981) 125 Cal.App.3d 127, People v. Stewart (1976) 16 Cal.3d 133, and People v. Flora (1991) 228 Cal.App.3d 662 included in the bench notes to CALCRIM Nos. 3407 and 3411. As our colleagues in Division One have noted, in those and other cases that have recognized a mistake defense, "the mistaken belief . . . precludes the finding of wrongful intent that is generally required to establish the mens rea for a criminal offense." (People v. Richards (2017) 18 Cal.App.5th 549, 562-563.) Here, as explained ante, appellant's mistaken belief in the lawfulness of his conduct could not preclude any finding required to establish the charged offenses.
CALCRIM No. 3407, from which appellant quotes, is the pattern instruction stating that mistake of law is not a defense to a specified charge.
Appellant nevertheless benefited from his mistaken belief. The trial court, in explaining its rejection of the prosecution's request to sentence appellant to six months in jail, stated that steroids are not traditionally viewed as contraband and observed that appellant had made no attempt to hide his sale of the steroids. Despite the jury's finding that appellant had violated two criminal statutes, the court characterized him as a "law-abiding citizen." The court properly recognized appellant's alleged ignorance of the law as a relevant sentencing factor. (See Noori, supra, 136 Cal.App.4th at 978 [trial court's exclusion of evidence regarding ignorance of law, followed by imposition of relatively light sentence, was proper application of maxim that although ignorance of the law is no excuse, "'[i]t is expected that the jury and the court, where it is shown that in fact the defendant was ignorant of the law, and innocent of any intention to violate the same, will give the defendant the benefit of the fact, and impose only a light penalty'"].)
In sum, because evidence of appellant's mistaken understanding of the law -- the only defense evidence he proffered -- could not have negated any element of the charged offenses, the trial court properly excluded that evidence and properly declined to instruct the jury on mistake defenses.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
MANELLA, P. J. We concur: COLLINS, J. CURREY, J.