Opinion
D072339
04-18-2018
THE PEOPLE, Plaintiff and Respondent, v. JOSE MANUEL CRUZ, Defendant and Appellant.
Lillian Hamrick, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Craig H. Russell, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCE363679) APPEAL from a judgment of the Superior Court of San Diego County, John M. Thompson, Judge. Affirmed. Lillian Hamrick, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Craig H. Russell, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Jose Manuel Cruz of one count each of transporting heroin and methamphetamine for sale (Health & Saf. Code, §§ 11352, subd. (a) & 11379, subd. (a)) and possessing these drugs for sale (§§ 11351 & 11378). Cruz admitted that he had previously been convicted of a number of prior felonies. The court sentenced Cruz to a total term of eight years in prison. Among other things, the court imposed a criminal laboratory analysis fee of $205. (§ 11372.5, subd. (a).)
Undesignated statutory references are to the Health and Safety Code.
Cruz contends the trial court committed prejudicial error when it instructed the jury with CALCRIM No. 2300 because this instruction failed to adequately convey the specific intent requirement for the offense of transporting a controlled substance for sale. He also argues that the laboratory analysis fee of $205 is not subject to penalty assessments. We affirm the judgment.
FACTUAL BACKGROUND
At about 2:00 a.m., two California Highway Patrol officers were on patrol in a rural area south of El Cajon. One of the officers noticed a vehicle stopped on the side of the road and pulled over near the vehicle to investigate. The officer then noticed two people standing in a field about 24 to 30 feet away from the vehicle. One of the men was later identified as Cruz. The officer shouted at Cruz to show his hands. Cruz moved his hand and threw a dark object behind him into the field. The officers detained Cruz and the other individual in the field.
A Border Patrol canine unit responded to the scene, searched the area and found a sunglasses case in the field where Cruz had thrown the dark object. Inside the sunglasses case officers found a Ziploc bag containing a white substance, later identified to be 8.78 grams of methamphetamine. Officers also found plastic wrap containing a black substance, later identified to be 16.79 grams of heroin. One bindle contained 14.6 grams of heroin, another contained 1.2 grams, and the remaining 10 bindles each contained about 0.5 to 0.6 grams of heroin. Officers located a key belonging to the vehicle attached to Cruz's wallet. An inventory search of the vehicle revealed two small scales as well as a glass pipe for smoking methamphetamine. The officers arrested Cruz and transported him to jail.
An expert testified that the combined value of the drugs found in the case could be as high as $2,200. Based on the quantity of drugs, the presence of scales, the method of concealment, and the presence of different types of drugs, it was the expert's opinion that the drugs were intended for sale rather than personal use.
DISCUSSION
I. ALLEGED INSTRUCTIONAL ERROR
A. Additional Background
The trial court instructed the jury with CALCRIM No. 223 which defines direct and circumstantial evidence and instructs the jury that both types of evidence "are acceptable types of evidence to prove or disprove the elements of a charge, including intent and mental state and acts necessary to a conviction, and neither is necessarily more reliable than the other." Additionally, CALCRIM No. 251 told jurors that the crimes charged in the case required "proof of the union, or joint operation, of act and wrongful intent" and that for the jury to find "a person guilty of the crimes of transportation for sale of heroin . . . [and] transportation for sale of methamphetamine . . . that person must not only intentionally commit the prohibited act, but must do so with a specific intent." For counts 1 and 3 alleging transportation of methamphetamine or heroin for sale, the trial court instructed the jury with CALCRIM No. 2300. This instruction told jurors that to prove Cruz guilty of these crimes, the People must establish the following five elements: "One, that the defendant transported for sale a controlled substance; [¶] Two, the defendant knew of its presence; [¶] Three, the defendant knew of the substance's nature or character as a controlled substance; [¶] Four, the controlled substance was heroin [or methamphetamine]; [¶] And five, the controlled substance was in a usable amount." (Italics added.)
The prosecutor commenced her closing argument by telling the jury that "Cruz made the choice to transport and possess both heroin and methamphetamine for the purposes of sales. [¶] You didn't hear overwhelming, you know, days and days and days worth of evidence, but you did hear from four different witnesses yesterday. You heard a lot of different things, and we're going to go over all of that in a minute." The prosecutor told the jury that Cruz "had all of this [methamphetamine] and all of this heroin because he was going to sell it, and he was transporting it to sell it" and that he had the drugs on his person "so that he could make the sale." She noted that the heroin found in Cruz's vehicle "was broken down for easy sell [sic], easy to just sell off half a gram here, half a gram, half a gram, and just sell it and move on to the next customer." Defense counsel did not address the elements of the crimes. Instead, he focused on the quality of the police investigation and whether it was Cruz's companion who threw the sunglasses case containing the drugs.
B. Analysis
Cruz contends the trial court committed prejudicial error when it instructed the jury with CALCRIM No. 2300 because this instruction failed to instruct on the necessary element that the jury must find that he transported the drugs with the specific intent to sell the drugs. Accordingly, he asserts that his convictions for transporting methamphetamine and heroin must be reversed. The People assert that Cruz's claim is forfeited because he failed to object or request an amplifying instruction. If the issue is not forfeited, the People claim that his argument lacks merit because the instructions, taken as a whole, correctly and unambiguously stated the law. Lastly, the People claim that any instructional error was harmless. Cruz concedes that defense counsel did not object, but asserts that the claimed error is reviewable because it affected his "substantial rights." (Pen. Code, § 1259.) We consider Cruz's argument on its merits because "[a]scertaining whether claimed instructional error affected the substantial rights of the defendant necessarily requires an examination of the merits of the claim." (People v. Andersen (1994) 26 Cal.App.4th 1241, 1249.)
"Effective January 1, 2014, the Legislature amended section 11379[, pertaining to the transportation of methamphetamine,] to limit the meaning of 'transports' under that statute to transportation 'for sale.' [Citation.] 'The amendment explicitly intended to criminalize the transportation of drugs for the purpose of sale and not the transportation of drugs for nonsales purposes such as personal use.' " (People v. Lua (2017) 10 Cal.App.5th 1004, 1012 (Lua).) The Legislature similarly amended section 11352, subdivision (a), pertaining to the transportation of heroin. (Stats. 2013, ch. 504, § 1.) In Lua, a sheriff's deputy found methamphetamine in defendant's vehicle, which resulted in charges for transporting and possessing for sale a controlled substance in violation of section 11379, subdivision (1) (transportation) and section 11378, subdivision (a) (possession). (Lua, at pp. 1007-1008.) The court instructed the jury with CALCRIM No. 2300, as it was revised in August 2014, that defendant was charged with "transportation for sale," but no definition or separate element of selling was included in the form instruction. (Lua, at p. 1012.) The Lua court noted that CALCRIM No. 2300 tracked the language of section 11379, but questioned whether "the instruction adequately explain[ed] the specific intent element of the offense." (Lua, at p. 1016.) The court suggested that the standard instruction for transportation for sale offenses under section 11379 be amended with an analogous " 'for sale' " element and, until this is done, that trial courts "should consider modifying the instruction to be more explicit regarding the required intent." (Lua, at p. 1016.)
We agree with Lua, supra, 10 Cal.App.5th 1004 that further amendment of CALCRIM No. 2300 may be appropriate. We conclude, however, that any error in this case was harmless.
Omission of an essential element of an offense is subject to the harmless-beyond-a-reasonable-doubt standard of review. (People v. McCloud (2017) 15 Cal.App.5th 948, 956.) In McCloud, the same court that decided Lua explained that where a jury instruction omits an element of the crime our task " 'is to determine "whether the record contains evidence that could rationally lead to a contrary finding with respect to the omitted element." ' " (McCloud, at p. 957.) Accordingly, the question presented here is whether the record contains evidence to support a finding that Cruz intended to use, rather than sell, the methamphetamine and heroin. (Ibid.) If the record contains no such evidence, the omission is harmless. (Ibid.)
Here, the record does not support a finding that Cruz intended to use, rather than sell, the methamphetamine and heroin. The sunglasses case that Cruz threw into the field contained 8.78 grams of methamphetamine and 16.79 grams of heroin. A narcotics expert for the prosecution testified regarding whether the drugs found were possessed by Cruz for sale. The expert stated that the Drug Enforcement Administration (DEA) considers 0.05 grams of methamphetamine to be a usable amount. The smallest amount of methamphetamine sold at the street-level is one-tenth of a gram that generally sells for $10. A heavy methamphetamine user could purchase 3.5 grams, which the expert considered to be the largest amount sold at the street level. For quantities of methamphetamine larger than 3.5 grams, the expert opined that the intent is generally to divide the drug into smaller amounts and then sell it for profit. The street value of 8.78 grams of methamphetamine is about $20 to $40 per gram, so anywhere from $160 to $300. If that amount is pieced out into smaller amounts to sell, eight grams of methamphetamine could be worth $800. The expert opined that most street level users do not purchase eight grams of methamphetamine because it is very expensive.
The DEA considers 0.05 grams as a dose of heroin, but this can vary based on the tolerance, gender and weight of the user. The expert stated that heroin found in a quantity larger than one-half of a gram is generally intended to be pieced out and sold for profit. One-half gram of heroin can sell for $30 to $50. The one bindle of heroin containing 14.08 grams was worth about $1,400 or about $50 for one-half of a gram. The expert stated that a general user would "absolutely not" buy 14 grams of heroin. Although the expert declined to speculate why Cruz had transported the drugs, the jury could reasonably have found that if Cruz possessed the drugs with the intent to sell them, that he transported the drugs with the same intent. While officers found a methamphetamine pipe in Cruz's vehicle, there was no evidence that Cruz used either methamphetamine or heroin. Rather, Cruz's companion that evening was arrested for being under the influence of a controlled substance.
The prosecutor also emphasized during closing argument that Cruz transported and possessed the drugs for the purpose of sales. Finally, Cruz's defense was not that he lacked the specific intent to sell the drugs that he possessed and transported, but that the police mistakenly concluded that he, not his companion, had thrown the sunglasses case containing the drugs. On this record, the error was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24.)
II. PENALTY ASSESSMENT
Subdivision (a) of section 11372.5, the laboratory analysis fee statute, provides: "Every person who is convicted of [specified drug-related offenses] shall pay a criminal laboratory analysis fee in the amount of fifty dollars ($50) for each separate offense. The court shall increase the total fine necessary to include this increment. [¶] With respect to those offenses specified in this subdivision for which a fine is not authorized by other provisions of law, the court shall, upon conviction, impose a fine in an amount not to exceed fifty dollars ($50), which shall constitute the increment prescribed by this section and which shall be in addition to any other penalty prescribed by law." (Italics added.)
Penalty assessments imposed by the trial court apply to fines and penalties, but not to fees. (Pen. Code, § 1464, subd. (a)(1) ["[T]here shall be levied a state penalty in the amount of ten dollars ($10) for every ten dollars ($10), or part of ten dollars ($10), upon every fine, penalty, or forfeiture imposed and collected by the courts for all criminal offenses."]; see also Gov. Code, § 76000.) Here, subdivision (a) of section 11372.5 describes the required payment as both a "fee" and a "fine." If the payment required by section 11372.5 is construed to be a fine or penalty, then the penalty assessment would be proper.
Government Code section 76000, subdivision (a) states: "(1) Except as otherwise provided elsewhere in this section, in each county there shall be levied an additional penalty in the amount of seven dollars ($7) for every ten dollars ($10), or part of ten dollars ($10), upon every fine, penalty, or forfeiture imposed and collected by the courts for all criminal offenses, including all offenses involving a violation of the Vehicle Code or any local ordinance adopted pursuant to the Vehicle Code. [¶] (2) This additional penalty shall be collected together with and in the same manner as the amounts established by Section 1464 of the Penal Code. . . . [¶] (3) This additional penalty does not apply to the following: [¶] (A) Any restitution fine. [¶] (B) Any penalty authorized by Section 1464 of the Penal Code or this chapter. [¶] (C) [Certain specified] parking offense [s]. [¶] (D) The state surcharge authorized by Section 1465.7 of the Penal Code." --------
Cruz contends that the trial court improperly imposed a penalty assessment on the criminal laboratory analysis fee under section 11372.5. Cruz notes that the question whether these fees are really fines or penalties that are subject to penalty assessment presents a question of statutory interpretation and that the Courts of Appeal are split. Cruz urges us to follow People v. Watts (2016) 2 Cal.App.5th 223 and hold that the laboratory analysis fee is not subject to penalty assessment. (Id. at pp. 235-237.)
We have previously analyzed this issue and concluded that the criminal laboratory analysis fee was punitive and subject to penalty assessment. (People v. Alford (2017) 12 Cal.App.5th 964, 974-977, review granted Sept. 13, 2017, S243340); see also People v. Moore (2017) 12 Cal.App.5th 558, 570-571 [same, addressing laboratory analysis fee], review granted Sept. 13, 2017, S243387.) Pending guidance by our high court on this issue, we adhere to the analysis set forth in Alford and conclude that the trial court properly imposed penalty assessments on the laboratory analysis fee.
DISPOSITION
The judgment is affirmed.
NARES, Acting P. J. WE CONCUR: O'ROURKE, J. GUERRERO, J.