Opinion
Rehearing Denied Sept. 15, 1997.
Review Dismissed and Cause is remanded to the Court of Appeal Aug. 26, 1998.
Previously published at 57 Cal.App.4th 370
Paul R. Ward, San Francisco, under appointment by the Court of Appeal, for Defendant and Appellant.
Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Robert M. Foster and Garrett Beaumont, Supervising Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
HOLLENHORST, Acting Presiding Justice.
An information charged defendant with transporting methamphetamine (Health & Saf.Code, § 11379, subd. (a), count one), being under the influence of methamphetamine while in possession of a loaded firearm (Health & Saf.Code, § 11550, subd. (e), count two), unlawfully altering the identification of the firearm (Pen.Code, § 12090, count three) and driving under the influence (Veh.Code, § 23152, subd. (a), count four). It alleged that he was armed with a rifle and a handgun in the commission of count one within the meaning of Penal Code section 12022, subdivision (c).
A jury found defendant was guilty of count one and the accompanying allegation was true. However, it found he was not guilty of count three and was unable to reach a verdict on the remaining counts. The court sentenced him to state prison for eight years, representing the four-year upper term and the four-year enhancement. (Health & Saf.Code, § 11379, subd. (a); Pen.Code, § 12022, subd. (c).)
Defendant appeals, contending the trial court erroneously denied his suppression motion (Pen.Code, § 1538.5) and failed to instruct the jury it must find he transported a usable quantity, an element of the offense (CALJIC No. 12.02). We affirm.
SUPPRESSION MOTION
At the hearing on defendant's suppression motion, a uniformed California Highway Patrol (CHP) officer testified that he had been a peace officer for 16 years and a CHP officer for 13 years. He had been extensively trained and made many arrests in driving under the influence cases. He was patrolling a rural residential area of Riverside County in a marked car at approximately 8:30 a.m. on October 2, 1995, when defendant's car attracted his attention. Defendant "was driving to the right, immediately back to the left. Speeds varying." He "was going slow. 10, 20 miles an hour." The road had only two lanes and no center line. There was no other traffic.
The officer followed the car for perhaps as long as "30 seconds"--approximately a quarter of a mile. Defendant's car stayed in its lane; it did not go onto the shoulder or cross over the unmarked center. However, it "wasn't proceeding in a straight path." Wanting to determine whether the driver was able to continue driving, the officer turned on his lights. Defendant, who was alone in the car, stopped immediately.
Defendant "appeared to be extremely nervous. He was sweaty. His eyes, pupils appeared dilated." The officer asked him to get out of the car. Defendant's balance was poor. Based on defendant's "[o]verall appearance," "sweatiness," "nervousness," "[e]yelid tremors," "[r]apid speech," and "[d]ilated pupils," the officer formed the opinion that defendant was under the influence The officer asked defendant if he had any guns in the car and defendant said there was a rifle in the hatchback area. The officer found the loaded rifle. Pursuant to Vehicle Code section 22651, subdivision (h), the officer called a tow truck and arranged to have defendant's vehicle stored. During an inventory search of the car, the officer noticed the armrest on the driver's door was hinged. Opening the armrest, the officer found two handguns and a cache of white powder.
The trial court rejected defendant's argument that the officer unlawfully stopped him and denied the suppression motion. Defendant asked the court to reconsider its ruling and the court agreed, stating it found the case was a close one. Upon reconsideration, the trial court found the officer had a duty to stop and investigate defendant's erratic driving and to determine whether he was intoxicated based on the officer's immediate observation of defendant's objective symptoms. Again denying the suppression motion, the trial court stated the officer "was in the reasonable performance of his duty and there was escalating probable cause."
On appeal, defendant argues he was unlawfully stopped because the officer lacked both probable cause and/or reasonable suspicion that he had violated or was about to violate any law. Citing People v. Perez (1985) 221 Cal.Rptr. 776, 175 Cal.App.3d Supp. 8, the People respond the officer had the right to stop defendant's car to determine the cause of the weaving. We find the People's argument persuasive.
In Perez, as in the case before us, a weaving vehicle attracted the officer's attention and he briefly followed it. There, too, the defendant argued he was unlawfully stopped. However, in Perez, the trial court found that the stop was unlawful and that weaving within a marked lane was not sufficient cause to stop the vehicle. (People v. Perez, supra, 175 Cal.App.3d Supp. at p. 10, 221 Cal.Rptr. 776.)
On the People's appeal, the reviewing court reversed, observing that although it was well established "that weaving from one lane to another justifies an investigatory stop [citations], no court in California has yet addressed the issue of whether an officer may lawfully detain a driver who has been observed to be weaving within his lane. However, a motorist driving in an 'eccentric manner' on a freeway has been deemed to be indicative of one driving under the influence justifying an investigatory stop. [Citation.] In addition, decisions from outside this jurisdiction have routinely held that weaving within one's lane for substantial distances are facts which give rise to a reasonable suspicion that one is driving under the influence. For instance, in State v. Bailey (1981) 51 Or.App. 173 [624 P.2d 663], an Oregon court held that weaving within a lane for a period of four or five blocks justified an investigatory stop. Similarly, in Ebona v. State (Alaska 1978) 577 P.2d 698, the defendant's vehicle was 'continually weaving' but at all times remained in its lane. The court ruled that the reoccurring [sic ] weaving justified the officer's detention. In State v. Dorendorf (N.D.1984) 359 N.W.2d 115, an officer observed a vehicle weaving within its own lane of traffic for approximately one-eighth to one-quarter of a mile. Here too the court determined that such facts gave rise to a reasonable belief that the driver was under the influence, rejecting the defendant's argument that a smooth continuous weaving within traffic lane does not give cause to detain. (See also State v. Kvam (Minn.1983) 336 N.W.2d 525.)" (People v. Perez, supra, 175 Cal.App.3d Supp. at pp. 10-11.)
The Perez court concluded "that the officer's actions were proper and [ ] that pronounced weaving within a lane provides an officer with reasonable cause to stop a vehicle on suspicion of driving under the influence where such weaving continues for a substantial distance. [p] In addition, we note that an officer is also justified in stopping a vehicle in such instance to investigate the cause of such weaving as the weaving is also indicative of possible equipment violations (i.e., faulty wheel alignment, problem in the steering mechanism or defect in the tires). The officer had the right to determine exactly what was causing the vehicle to weave." (People v. Perez, supra, 175 Cal.App.3d Supp. at pp. 11-12.) Similarly, in the case before us, the officer had the right and duty to determine exactly what was causing defendant's car to weave and whether he could continue driving without presenting a safety risk. While we recognize the factual differences in Perez (the roadway had a marked center line and the officer followed for three-quarters of a mile), we are not persuaded they are legally significant. Accordingly, we affirm the denial of defendant's suppression motion.
JURY INSTRUCTION
Defendant contends his conviction should be reversed because the trial court failed to instruct the jury on an element of the offense--that he transported a usable quantity of methamphetamine. The People respond that the issue is not properly before this Court because defense counsel acquiesced in the giving of CALJIC No 12.02 (1993 rev.) which defined the elements of the crime without requesting modification or amplification of the instruction. However, it is well established that a "trial court must instruct even without request on ... all of the elements of a charged offense. [Citations.]" (People v. Cummings (1993) 4 Cal.4th 1233, 1311, 18 Cal.Rptr.2d 796, 850 P.2d 1.) The elements of the charged offense are "carrying or conveying a usable quantity of a controlled substance with knowledge of its presence and illegal character." (People v. Meza (1995) 38 Cal.App.4th 1741, 1746, 45 Cal.Rptr.2d 844, italics added.)
The trial court gave CALJIC No. 12.02, instructing the jury: "In order to prove such crime, each of the following must be proved: [p] First, a person transported methamphetamine, a controlled substance. [p] And, second, such person had knowledge of its presence and nature as a controlled substance." The use note to CALJIC No. 12.02 states: "This instruction must be revised to cover administering, transporting, or importing by substituting appropriate verb and by adding as an element three, 'that the substance (transported, etc.) was in an amount sufficient to be used as a controlled substance.' " (Italics added.) The trial court failed to add this third element to the instruction.
"[T]he complete failure to instruct as to an element of an offense violates the United States Constitution because such relieves the prosecution of its burden of proving all of the elements of the charged crime beyond a reasonable doubt. [Citations.] This rule is subject to the qualification that no constitutional violation occurs if there is a reasonable likelihood the jurors understood they were required to find the omitted element to be true in order to return a guilty verdict. [Citations.]" (People v. Avila (1995) 35 Cal.App.4th 642, 653, 43 Cal.Rptr.2d 853.)
Applying the foregoing to the present case, we conclude defendant's federal constitutional jury trial right was violated when the trial court failed to instruct the jury that it had to find defendant transported a usable quantity of methamphetamine in order to convict him of the charged crime. As the omission was neither supplied by another instruction nor cured in light of the instructions as a whole, there is no reasonable likelihood the jurors understood the usable quantity element was necessary for a conviction. (People v. Wright (1985) 39 Cal.3d 576, 589, 217 Cal.Rptr. 212, 703 P.2d 1106.)
Both defendant and the People agree the Chapman v. California (1967) 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705, standard is the applicable test for prejudice. In conducting the Chapman harmless error analysis, a reviewing court "must evaluate the 'entire record.' " (People v. Avila, supra, 35 Cal.App.4th at p. 662, 43 Cal.Rptr.2d 853, quoting from Rose v. Clark (1986) 478 U.S. 570, 583, 106 S.Ct. 3101, 3109, 92 L.Ed.2d 460.) The reviewing court must first " 'ask what evidence the jury actually considered in reaching its verdict' " and " 'must then weigh the probative force of that evidence as against the probative force of the [erroneous instruction] standing alone.' " (People v. Avila, supra, 35 Cal.App.4th at p. 662, 43 Cal.Rptr.2d 853, quoting from Yates v. Evatt (1991) 500 U.S. 391, 404, 111 S.Ct. 1884, 1893, 114 L.Ed.2d 432.) The reviewing court "may consider the fact that the evidence and proof of guilt concerning the omitted element is overwhelming, uncontradicted, or dispositive. [Citations.] Further, in conducting federal constitutional review, the United States Supreme In the case before us, the jury was given an incomplete instruction, not a misstatement of the law, and the evidence and proof of guilt concerning the omitted element was uncontradicted and uncontested. Defendant did not argue that the quantity was not a usable amount. His sole defense to the transportation charge was that he was unaware of the presence of the methamphetamine in the car which belonged to his girlfriend. He did not challenge the prosecution testimony that an amount between .04 and .09 grams of methamphetamine was a usable quantity. Nor did he cross-examine the prosecution expert who testified she tested three baggies submitted by the officer who arrested defendant on October 2, 1995, and found "[n]o controlled substances" in one baggie, "meth in trace amounts" in a second baggie which weighed "0.04 grams," and "powder contain[ing] methamphetamine" in the third baggie which weighed ".09 grams." Weighing the probative force of the foregoing evidence against the probative force of the erroneous instruction standing alone, we conclude the error was harmless. The uncontradicted evidence established and the jury that presumably viewed the actual baggies implicitly found defendant transported more than "a blackened residue or a useless trace." (People v. Rubacalba (1993) 6 Cal.4th 62, 66, 23 Cal.Rptr.2d 628, 859 P.2d 708 [the "usable-quantity rule prohibits conviction only when the substance possessed simply cannot be used, such as when it is a blackened residue or a useless trace. It does not extend to a substance containing contraband, even if not pure, if the substance is in a form and quantity that can be used."].) Hence, the error was harmless.
DISPOSITION
The judgment is affirmed.
McKINSTER and McDANIEL , JJ., concur.
Retired Associate Justice of the Court of Appeal, Fourth District, sitting under assignment by the Chief Justice pursuant to article VI, section 6 of the California Constitution.