Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. O6CF1292, David A. Hoffer, Judge.
Marcia R. Clark, 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, Assistant Attorney General, Pamela Ratner Sobeck and Raymond M. DiGuiseppe, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
SILLS, P. J.
When Ralph Martinez saw a Santa Ana police squad car, he made eye contact with the officers, then began running. His two companions, by contrast, just “stood there.” The officers recognized Martinez as someone on parole. One officer followed in the squad car. The other got out and chased Martinez on foot. After he was caught, Martinez was found to have a cellophane bag of 2.77 grams of methamphetamine concealed between his buttocks. Martinez was subsequently convicted of one count of possession of methamphetamine for sale (Health & Saf. Code, § 11378) and -- since he was caught deep in Brook Street Gang territory and has “Brook” tattooed on his back and has in the past been an admitted member of the gang -- also one count of actively participating in a criminal street gang. (Pen. Code, § 186.22, subd. (a).)
Martinez now appeals. He argues (1) the trial court failed to tell the jury that possession for sale (including when done for the benefit of a street gang) is a specific intent crime; (2) the trial court erred in allowing evidence of Martinez’ parole status, and (3) two jury instructions, CALCRIM Nos. 223 and 302, are defective by undermining the presumption of innocence. There are no challenges to the sufficiency of the evidence, though he does argue that the evidence was not strong enough to affirm on a harmless error basis. We find no error at all, and affirm.
1. Specific Intent
The jury was instructed that the “intent or mental state required are explained in the instruction for each crime.” The instruction for possession for sale of a controlled substance was CALCRIM No. 2302, which tells jurors, inter alia, that the People were required to prove that the defendant “knew” of the presence of the controlled substance, knew that the substance was controlled (exact words: “knew of the substance’s nature or character as a controlled substance”), and when the defendant possessed the substance, he or she “intended to sell it.”
There is no need to reinvent the wheel on this issue. People v. Montero (2007) 155 Cal.App.4th 1170 has already addressed the question of whether CALCRIM No. 2302 adequately conveys the element of specific intent to sell. Answer: It does. Here is the salient passage: “Witkin summarizes the common elements of all drug possession offenses as follows: [¶] ‘(a) A specified controlled substance, in a sufficient quantity . . . and in a usable form. . . . [¶] ‘(b) Possession, which may be physical or constructive, exclusive or joint. . . . [¶] ‘(c) Knowledge of the fact of possession and of the illegal character of the substance. . . .’ [Citation.] [¶] The crime of possession for sale contains the additional element of proof of a specific intent to sell the substance. [Citation.] [¶] ‘CALCRIM No. 2302 adequately captures and conveys each of these elements to the jury.” (Montero, supra, 155 Cal.App.4th at p. 1175, italics added.)
We need only add that CALCRIM’s plain English phrase, “intended to sell,” as used in CALCRIM No. 2302, is surely clearer to jurors than the abstract legalese “specific intent,” which is confusing even to the best of law students.
2. Parole Status
The argument here is that by allowing the jury to learn that Martinez was on parole, the jury was allowed to form the opinion that he had already been to prison and therefore was presumptively a “bad guy” (his trial counsel’s words).
We disagree. The evidence was necessary to explain and give the context for what was otherwise an anomalous fact -- Martinez’ bolting off upon the mere sight of a police car when his two companions conspicuously didn’t. It also explained why the officers recognized him, and had a reason to chase him upon his flight. And the evidence was certainly not gruesome or outrageous, so as to be unduly prejudicial.
3. The Two Jury Instructions
A. CALCRIM No. 302
CALCRIM No. 302 tells the jury: “If you determine there is a conflict in the evidence, you must decide what evidence, if any, to believe. Do not simply count the number of witnesses who agree or disagree on a point and accept the testimony of the greater number of witnesses. On the other hand, do not disregard the testimony of the greater number of witnesses, or any witness, without a reason or because of prejudice or a desire to favor one side or the other. What is important is whether the testimony or any other evidence convinces you, not just the number of witnesses who testify about a certain point.” Martinez contends that this language inferentially suggests that a jury must “‘believe’” defense witnesses in order to acquit.
The contention is the latest in a series of semantic challenges to CALCRIM No. 302 that have been rejected by the Court of Appeal. In People v. Anderson (2007) 152 Cal.App.4th 919, 939-940, four similar arguments were made about CALCRIM No. 302, and rejected:
(1) That it tells the jury that all witnesses were truthful, unless there was a reason to believe otherwise. (Not so, because, when given in conjunction with CALCRIM No. 206 -- which tells jurors they alone determine credibility -- the effect is simply to caution jurors that they are not to “disregard testimony on a whim.” (Anderson, supra, 152 Cal.App.4th at p. 939.))
(2) That it conflicts with the presumption of innocence by telling the jury not to favor one side over the other. (Not so, it merely cautions jurors not to disregard “testimony because of a desire to favor one side over the other.” (Anderson, supra, 152 Cal.App.4th at p. 939, italics added).)
(3) That it implies that “disbelief of defense witnesses necessarily means that prosecution witnesses are believable.” (Not so; again, it doesn’t create “a presumption of credibility of prosecution witnesses,” it simply tells jurors not to disregard testimony on whim. (See Anderson, supra, 152 Cal.App.4th at pp. 939-940.))
(4) And that it improperly tells the jury “to choose between the People’s witnesses and those of the defense.” (Not so; it just tells the jurors not to determine credibility by totaling up the respective number of witnesses who agree or disagree on a point. (Anderson, supra, 152 Cal.App.4th at p. 940.))
After Anderson, People v. Ibarra (2007) 156 Cal.App.4th 1174, 1190-1191 independently rejected Anderson point (2). Ibarra also rejected a new point, which was that the instruction “mandates that the jury choose between prosecution witnesses and defense witnesses.” We will call this point (5).
Martinez argues that, despite this litany of rejected arguments over various nuances of CALCRIM No. 302, neither Anderson nor Ibarra considered whether the use of the words “believe” and “convinced” still suggest to jurors that defense witnesses must be believed as a requisite for acquittal.
No. Martinez’ argument here is basically the reciprocal of point (1), rejected by Anderson, and a variation of point (5), rejected by Ibarra. There simply is nothing in the plain text of the instruction that even whispers a suggestion of a requirement that defense witnesses be believed in order for the jury to acquit -- indeed, CALCRIM No. 302 could not mean that when it is considered alongside the standard burden of proof instruction, CALCRIM No. 220, which was given here. And, as with point (1) in Anderson, when CALCRIM No. 302 is also considered in conjunction with CALCRIM No. 226 -- also given here -- the effect is simply to tell jurors that they can disbelieve witnesses, and that’s all.
B. CALCRIM No. 223
Martinez also attacks the portion of CALCRIM No. 223 that states: “Both direct and circumstantial 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. Neither is entitled to any greater weight than the other. You must decide whether a fact in issue has been proved based on all the evidence.” His theory -- a variation on his point about CALCRIM No. 302 -- is that that instruction improperly implies the defense must present evidence to “disprove the elements of a charge.” While Anderson and Ibarra both rejected challenges to CALCRIM No. 223 as well, they did not address this particular argument.
However, again, when read in conjunction with the burden of proof instruction, it passes muster. Read together with that instruction, it is clear that the jury may acquit even if the elements of a charge are not disproved. The jury is simply free to disbelieve defense evidence, and that is hardly a revelation.
4. Disposition
The judgment is affirmed.
WE CONCUR: BEDSWORTH, J., IKOLA, J.