Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kings County No. 08CM7651 Steven D. Barnes and Thomas DeSantos, Judges.
Judge Barnes presided over defendant’s trial; Judge DeSantos imposed sentence.
Kari E. Hong, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, and Ward A. Campbell, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
Kane, J.
Defendant Lloyd Glover was convicted of felony transportation and possession of a controlled substance, and misdemeanor possession of a hypodermic needle and syringe. On appeal, he contends (1) the trial court failed to sua sponte instruct the jury on how to evaluate circumstantial evidence, (2) the trial court failed to provide half of various written instructions, and alternatively, (3) defense counsel provided ineffective assistance. We will affirm.
PROCEDURAL SUMMARY
On March 11, 2009, the Kings County District Attorney charged defendant with felony transportation of a controlled substance (Health and Saf. Code, § 11379, subd. (a); count 1), felony possession of a controlled substance (Health and Saf. Code, § 11377, subd. (a); count 2), misdemeanor unlawful possession of a hypodermic needle and syringe (Bus. and Prof. Code, § 4140; count 3), and misdemeanor attempt to destroy evidence (Pen. Code, §§ 664, 135; count 4).
The jury found defendant guilty on counts 1, 2, and 3, and not guilty on count 4. The trial court granted defendant probation pursuant to Proposition 36.
FACTS
Around midnight on April 4, 2008, a police officer pulled over defendant’s vehicle for speeding. Defendant and Steven Wright were on their way home from a casino; Wright was driving and defendant was the passenger. The officer asked Wright for his license, registration, and proof of insurance, all of which he was unable to produce. The officer then asked Wright to step to the front of the patrol unit, which was parked directly behind defendant’s vehicle, approximately 10 feet away. The officer was standing on the front passenger side of the patrol unit when defendant asked if he could step out of the vehicle to smoke a cigarette. The officer agreed, and as defendant opened the door to get out, two syringes dropped to the ground. One contained clear liquid and the other contained reddish liquid. The officer approached defendant and asked him if he was diabetic, to which he replied he was not. Defendant then told the officer he “messed up” and that both syringes contained “meth.” The officer placed defendant under arrest, read him his Miranda rights, and called for backup. At the time of his arrest, defendant did not exhibit any signs of being under the influence of methamphetamine.
Miranda v. Arizona (1966) 384 U.S. 436.
Once backup arrived, defendant told the officer that a female friend shot him up with methamphetamine earlier that morning. However, she did not use the entire amount, which was why a reddish liquid remained in that syringe. Defendant stated he was saving the remaining red liquid for a later use. On two occasions, at the casino and while in his vehicle, defendant thought about disposing of the syringes so he would not get caught. Defendant repeatedly told the officer he had made a mistake and should not have had the methamphetamine on him.
Defense Evidence
Defendant testified he found the syringes in the armrest of his car moments before being pulled over. He denied any knowledge that the syringes containing methamphetamine were in his vehicle, and also denied having used them that morning. He explained that earlier that day, a woman who had access to his vehicle came to his house and must have stolen the syringes from his diabetic roommate.
DISCUSSION
I. Circumstantial Evidence Instruction
Defendant contends circumstantial evidence of his state of mind-evidence that the syringes containing methamphetamine fell from his lap and therefore he must have known they contained methamphetamine-was the primary evidence implicating him.
Relying on People v. McCullough (1979) 100 Cal.App.3d 169 at pages 179 through 180, defendant asserts that the officer’s testimony of defendant’s admissions was direct evidence that he knew of the syringes containing methamphetamine, but it was circumstantial evidence of whether he knew the syringes containing methamphetamine were in the vehicle. Consequently, defendant argues, the trial court had a sua sponte duty to instruct the jury on how to evaluate circumstantial evidence, and its failure to do so violated his federal constitutional rights to a fair trial by jury and due process.
We reject the argument that the conviction was predicated on circumstantial evidence. Defendant’s statements to the officer are direct evidence that defendant knew syringes containing methamphetamine were in the vehicle.
However, we conclude that, even if the court did have a duty to instruct on circumstantial evidence, the failure to do so was harmless under any standard. (People v. Watson (1956) 46 Cal.2d 818, 836; Chapman v. California (1967) 386 U.S. 18, 23-24.) There was overwhelming evidence of defendant’s guilt: two syringes containing methamphetamine fell to the ground when defendant exited the vehicle; defendant told the officer he “messed up” and both syringes contained “meth, ” he admitted using methamphetamine from one of the syringes earlier that morning and was saving the remaining reddish liquid for a later use; he thought of disposing of the syringes prior to being stopped by the officer so that he would not get caught; and finally, he stated he should not have had the methamphetamine on his person. In light of the abundant evidence, we believe any error was harmless beyond a reasonable doubt. (Chapman v. California, supra, at pp. 23-24.)
II. Written Jury Instructions
Defendant asserts that the trial court committed constitutional error by failing to provide the jury with complete written instructions. Although the trial court provided correct and complete oral instructions, the jurors received only half of the written instructions because the clerk unintentionally photocopied only one side of each two-sided page. As a result, the written instructions started at page one, continued to page three, page five, and so on. The incomplete instructions were never given to counsel; they were given to the jury behind closed doors. By chance, all elements of counts 2, 3, and 4 were provided in the written instructions. However, the instructions regarding reasonable doubt, the elements of count 1, witness credibility, and the defense of momentary possession were not included. We conclude the clearly deficient instructions were harmless.
“[D]efendant has no federal or state constitutional right to instructions in writing.…” (People v. Ochoa (2001) 26 Cal.4th 398, 446-447, disapproved on other grounds by People v. Prieto (2003) 30 Cal.4th 226, 263, fn. 4.) “[A]llowing the jury to read the instructions is … not yet required by law.” (People v. Reed (1980) 114 Cal.App.3d Supp. 1, 7.) In Reed, despite no written instructions having been given to the jury, the court found that the jury was not confused by the verdict form because the court assumed the jury followed the oral instructions given by the trial court. (Ibid.)
When written instructions are given, but are erroneous, we look to whether the error violated defendant’s constitutional rights, and if so, whether that violation was harmless. “‘“It must be established not merely that the instruction is undesirable, erroneous, or even ‘universally condemned, ’ but that it violated some [constitutional] right[.]”’” (Estelle v. McGuire (1991) 502 U.S. 62, 72.) “‘The question is “‘whether the ailing instruction … so infected the entire trial that the resulting conviction violates due process.’” [Citation.]’” (People v. Huggins (2006) 38 Cal.4th 175, 192.) Correct oral instructions, the jury’s awareness of differences between the written and oral instructions, and the weight of evidence against the defendant are all factors considered in determining whether or not an erroneous instruction was harmless. (People v. Wilson (2008) 44 Cal.4th 758, 804.) When oral and written instructions conflict, the written instructions control; however, the jury is unaware of this rule, and “[i]t is thus possible the jury followed the oral instruction[s].” (Ibid., italics added.)
Under the heightened constitutional standard of review, “before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt.” (Chapman v. California, supra, 386 U.S. at p. 24.)
Here, several factors convince us the error was harmless. First, the jury was given complete and correct oral instructions by the trial court. Second, written instructions on the crimes charged in counts 2, 3, and 4 were provided in full without any pages missing. Third, defendant confessed to possessing methamphetamine to the officer at the crime scene. Fourth, the elements of count 1 were simple enough to be understood from the oral instructions. And finally, the instructions on reasonable doubt, the elements of count 1, and the defense of momentary possession were all discussed in closing arguments. Under these circumstances, we believe beyond a reasonable doubt that the erroneous written instructions caused defendant no harm. (Chapman v. California, supra, 386 U.S. at pp. 23-24.)
The trial court’s oral instruction on count 1 provided: “To prove the defendant is guilty of this crime, the People must prove that, one, the defendant transported 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 methamphetamine. And, five, the controlled substance was in a useable amount.” The court further explained each element in detail, and the findings required to satisfy those elements.
III. Ineffective Assistance of Counsel
Defendant argues in the alternative that counsel’s failure to inspect the instructions and object to their content constituted ineffective assistance of counsel. Because we have found no prejudice to defendant from the erroneous instructions, this claim must also fail. (Strickland v. Washington (1984) 466 U.S. 668, 697 [reviewing court can adjudicate ineffective assistance claim solely on the issue of prejudice without determining the reasonableness of counsel’s performance].)
DISPOSITION
The judgment is affirmed.
WE CONCUR: Wiseman, Acting P.J., Detjen, J.