Opinion
D072361
04-20-2018
THE PEOPLE, Plaintiff and Respondent, v. FRANCISCO L. VEA, Defendant and Appellant.
Patrick Dudley, 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 Michael Pulos, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCN366442) APPEAL from a judgment of the Superior Court of San Diego County, Harry L. Powazek, Judge. Affirmed as modified; remanded with directions. Patrick Dudley, 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 Michael Pulos, Deputy Attorneys General, for Plaintiff and Respondent.
A jury found Francisco L. Vea guilty of one count of transportation of a controlled substance for sale—cocaine (Health & Saf. Code, § 11352, subd. (a)) with the further finding that the weight of the cocaine exceeded one kilogram (§ 11370.4, subd. (a)(1)). The trial court sentenced Vea to prison for six years.
Unless otherwise indicated, all further statutory references are to the Health and Safety Code.
Vea appeals, contending: (1) the trial court prejudicially erred by instructing with CALCRIM No. 2300, which sets forth the elements of the crime of transportation of a controlled substance for sale because that instruction did not inform the jury that it was required to find that Vea transported the cocaine with the specific intent that it be sold, and the prosecutor's comments at closing argument exacerbated the problem by suggesting that no specific intent was required; (2) the trial court mistakenly assessed a probation revocation fine under Penal Code section 1202.44; and (3) the trial court was not authorized to add penalty assessments to the laboratory analysis fee imposed pursuant to section 11372.5.
We agree, and the People concede, that the trial court mistakenly assessed a probation revocation fine under Penal Code section 1202.44. As such, that fine must be struck. That said, there is some ambiguity in the record regarding whether the court intended to assess a fine under Penal Code section 1202.45, which would relate to Vea's eventual parole or supervision upon release from prison. Thus, we remand the matter for the trial court to consider that issue. We conclude that Vea's other arguments lack merit and affirm the judgment as modified.
FACTUAL BACKGROUND
On the morning of November 10, 2016, California Highway Patrol Officer Shane Lee conducted a traffic stop of a GMC Envoy vehicle driving northbound on Interstate 15 in San Diego County. Vea was the driver of the vehicle. Marcos Sauceda was in the front passenger seat, and Sauceda's three children were in the backseat.
Lee observed that Vea appeared to be overly nervous, and he asked Vea for his consent to search the vehicle. After Vea consented, Lee searched the vehicle and found three bundles of cocaine in the cargo area. The bundles were wrapped in dark plastic, and they were tucked inside of a folded baby stroller. The total weight of the cocaine was 3.98 kilograms. A law enforcement officer testified at trial that, in his opinion, because of the weight of the cocaine, it was being transported for sale rather than personal use, and had a wholesale value of about $100,000 and a street value of approximately $400,000.
Shortly after his arrest, Vea made a statement to a law enforcement officer. According to the officer, Vea stated that he knew there were drugs in the vehicle, but he did not know what kind of drugs were involved. Vea stated that he was driving his friend Sauceda to pick up drugs because he owed $300 to Sauceda. As Vea told the officer, it was Sauceda who arranged to meet unknown people in San Diego. When they arrived at a Walmart parking lot in the South Bay area of San Diego, Sauceda exited the vehicle and flagged down a van, which pulled up and gave Sauceda a package. After Vea drove to an ATM, Sauceda put the package in the baby stroller. Vea also admitted that he and Sauceda had made two prior trips the previous week.
Vea was charged with one count of transporting a controlled substance for sale (§ 11352, subd. (a)), with the further allegation that the weight of the cocaine exceeded one kilogram (§ 11370.4, subd. (a)(1)).
The information also alleged counts against Sauceda. According to Vea's brief, Sauceda failed to appear for a court appearance, and Vea's case proceeded to trial with him alone as a defendant.
Vea testified at trial. He largely related the same account that he told the officer shortly after his arrest. In addition to what he told the officer, Vea testified that he drove Sauceda's vehicle from Adelanto (where they lived) to San Ysidro at Sauceda's request because Sauceda did not have a driver's license. When Sauceda asked Vea to drive to San Ysidro with the children in the backseat of the vehicle, Vea assumed they were going to drop off Sauceda's children with their grandmother who lives in Tijuana. While in the Walmart parking lot, Vea saw a man get out of the van that Sauceda had flagged down, greet Sauceda, and then hand Sauceda a dark plastic bag, which looked like a shopping bag from a store. After leaving the parking lot, Vea drove the vehicle to a convenience store where he used the ATM and bought snacks. When he returned to the vehicle, the bag was no longer in the front passenger area, and he did not know where Sauceda put it. Vea testified that he "assumed" that illegal drugs were in the vehicle. Vea also stated that on the two other occasions he drove Sauceda, he fell asleep while waiting with Sauceda in the parking lot, and thus, did not see any transaction.
Defense counsel's main contention during closing argument was that the prosecution failed to prove that Vea knew he was transporting narcotics or that he had control over the narcotics.
DISCUSSION
I
JURY INSTRUCTIONS
A. Vea's Contentions
The trial court instructed the jury on the elements of transporting a controlled substance for sale by using CALCRIM No. 2300. Vea contends that the trial court prejudicially erred in giving this instruction as written because it did not inform the jury that it was required to find that when Vea transported the cocaine, he acted with the specific intent that the cocaine be sold, either by himself or a third party. Vea further contends that the prosecutor compounded the problem of the poorly drafted instruction with his comments during closing argument.
B. Background
The trial court followed the text of CALCRIM No. 2300 by instructing the jury on the elements of transporting a controlled substance for sale as follows:
"The defendant is charged in Count 1 with transporting for sale cocaine, a controlled substance in violation of Health and Safety Code Section 11352(a).
"To prove that the defendant is guilty of this crime, the People must prove that: One, 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 cocaine; and five, the controlled substance was in a usable amount.
"A person transports something if he or she carries or moves it from one location to another for sale, even if the distance is short.
"A usable amount is a quantity that is enough to be used by someone as a controlled substance. Useless traces or debris are not usable amounts. On the other hand, a usable amount does not have to be enough, in either amount or strength, to affect the user.
"The People do not need to prove that the defendant knew which specific controlled substances he transported for sale.
"A person does not have to actually hold or touch something to transport it for sale. It is enough if the person has control over it or the right to control it, either personally or through another person."
The jury was also instructed with a standard version of CALCRIM No. 251 on the union of act and intent as follows:
"Union of act and intent. Specific intent and mental state. The crimes charged in this case require proof of the union, or joint operation, of act and wrongful intent.
"For you to find a person guilty of the crimes in this case, that person must not only intentionally commit the prohibited act, but must do so with the specific intent. And the act and specific intent required are explained in the instruction for that crime."
During closing argument, among other issues, the prosecutor focused on the elements of a violation of section 11352, subdivision (a). To this end, the prosecutor stated:
"Number one, that the defendant transported a controlled substance for sale. Number 2, that the defendant knew of the controlled substances present. Number 3, that the defendant knew the substance was a controlled substance. Number 4, the substance was cocaine. And number 5, the substance was in a useable amount."
Later during his closing argument, the prosecutor focused on the element of transporting a controlled substance for sale. He explained:
"Let's talk a little bit about transporting for sale. This is not -- what I'm not required to show is that the defendant himself was going to sell the drugs. Only that this was a sales amount and was transported for that purpose. This was obviously not a personal-use amount. [¶] The question you should ask yourself is, is this cocaine being moved for purposes of it going to market? Is that why it's being moved for purposes of it going to market? The defendant's subjective knowledge on this issue is irrelevant. [¶] Look at the jury instruction. Look at element 1. It doesn't require knowingly. Okay. So the question you need to ask yourself: Is this cocaine being moved for purposes of it going to market, for it to be distributed and be sold? [¶] Again, the defendant's subjective knowledge on this going to sale is irrelevant. 3,980.96 grams. You heard from Detective Escalante, with 27 years of experience in this area, at this amount, this is not a close call. This is not a personal use amount. [¶] The reason this is being moved is because eventually when it gets to location, it's destination, it's going to be distributed and sold. It's being transported so that it can be brought to market. Not a close call.
During the defense's closing argument, Vea's attorney focused on the elements of knowledge and control. Defense counsel emphasized that at the time Vea was pulled over, he was not driving his own car, and there was no evidence that Sauceda told Vea about the drugs. Vea's attorney further underscored that there was no evidence that Vea ever accessed the rear cargo area where the cocaine was hidden or that he touched the bundle of cocaine in any event. Additionally, defense counsel stressed that there was no evidence that Vea controlled or had the right to control the cocaine. Vea's attorney did not address or take issue with the argument that the cocaine was being transported for sale. Instead, he summed up his defense as follows:
"Key elements, again, knowledge and control. I believe the People have failed in their burden of proving beyond a reasonable doubt that Mr. Vea specifically knew he was transporting narcotics while he was driving through San Diego. And two, that Mr. Vea had control over these narcotics or the right to control the cocaine. [¶] And therefore, you must find Mr. Vea not guilty of this charge. Thank you."
C. Analysis
We review a claim of instructional error de novo. (People v. Posey (2004) 32 Cal.4th 193, 218.) "Review of the adequacy of instructions is based on whether the trial court 'fully and fairly instructed on the applicable law.' " (People v. Ramos (2008) 163 Cal.App.4th 1082, 1088.) In determining whether error has been committed in giving jury instructions, we consider the instructions as a whole and assume jurors are intelligent persons, capable of understanding and correlating all jury instructions which are given. (Ibid.) " 'Instructions should be interpreted, if possible, so as to support the judgment rather than defeat it if they are reasonably susceptible to such interpretation.' " (Ibid.) "The crucial assumption underlying our constitutional system of trial by jury is that jurors generally understand and faithfully follow instructions." (People v. Mickey (1991) 54 Cal.3d 612, 689, fn. 17.)
"Under established law, instructional error relieving the prosecution of the burden of proving beyond a reasonable doubt each element of the charged offense violates the defendant's rights under both the United States and California Constitutions." (People v. Flood (1998) 18 Cal.4th 470, 479-480.) Both the constitutional right to due process in the Fifth Amendment and the constitutional right to a jury trial in the Sixth Amendment "require criminal convictions to rest upon a jury determination that the defendant is guilty of every element of the crime with which he is charged, beyond a reasonable doubt." (United States v. Gaudin (1995) 515 U.S. 506, 510.)
Section 11352, subdivision (a) makes it a crime to "transport[ ]" certain controlled substances. In 2013, the Legislature amended section 11352 to criminalize the transport of a controlled substance only if it is transported for sale. It accomplished that amendment to the statute by adding section 11352, subdivision (c), which states that "[f]or purposes of this section, 'transports' means to transport for sale." (Stats. 2013, ch. 504, § 1, p. 4287.)
After the Legislature's 2013 amendment of the statute, to commit the crime of transporting a controlled substance for sale in violation of section 11352, subdivision (a), the defendant must transport the controlled substance with the specific intent that it will be sold. "As a matter of law, the specific intent requirement for the offense of possession for sale and transportation for sale is analogous; each requires that the defendant have acted with the intention that the controlled substance at issue be sold, either by the defendant personally or by someone else." (People v. Lua (2017) 10 Cal.App.5th 1004, 1015 (Lua), citing People v. Parra (1999) 70 Cal.App.4th 222, 227.)
Here, the parties agree that intent to transport for sale is necessary, but disagree as to whether the jury instructions adequately conveyed that requirement.
The People contend that Vea has forfeited his argument that the trial court prejudicially erred in instructing the jury with CALCRIM No. 2300 because defense counsel did not make an objection to the instruction in the trial court. The forfeiture doctrine does not apply here because "it is well settled that no objection is required to preserve a claim for appellate review that the jury instructions omitted an essential element of the charge." (People v. Mil (2012) 53 Cal.4th 400, 409.)
Our colleagues in the Second Division of the Fourth District addressed a similar issue in Lua, supra, 10 Cal.App.5th 1004. In that case, the defendant was pulled over for driving with a missing license plate and methamphetamine was found in the vehicle after a search. The defendant was charged with a violation of section 11379, subdivision (a) and possession for sale of a controlled substance in violation of section 11378, subdivision (a). (Lua, supra, at pp. 1007-1008.) The jury was instructed 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, supra, at p. 1012.)
The court in Lua discussed the specific intent requirement for the crime of transporting a controlled substance for sale in violation of section 11379, not section 11352, which is the provision at issue here. (Lua, supra, 10 Cal.App.5th at pp. 1112-1114.) The two statutes cover different controlled substances and set forth different punishments, but are otherwise the same for the purposes of our analysis, as they contain the same language criminalizing "transport[]" of a controlled substance, which both statutes define as "to transport for sale." Moreover, for both statutes the transport for sale provision was added at the same time in 2013 through the same legislation with the same legislative history. (Stats. 2013, ch. 504, §§ 1, 2, pp. 4287-4288.) We therefore consider the court's analysis of the transport for sale requirement in section 11379 in Lua to be fully applicable to our analysis of that issue regarding section 11352.
Despite the omission, the court was "not persuaded that the jury's instructions, taken as a whole, constituted an incorrect statement of the law regarding the specific intent element of the offense of transporting a controlled substance for sale." (Lua, supra, 10 Cal.App.5th at p. 1014.) The court noted, "The jury was instructed using CALCRIM No. 251 that both charged offenses were specific intent crimes, requiring 'proof of the union, or joint operation, of act and wrongful intent'; it was also instructed using CALCRIM No. 2300 that to convict defendant on count 1, it would have to find that he 'transported for sale' a controlled substance. Correlating these two instructions, using a plain commonsense reading, the jury was adequately instructed that the prosecution was required to prove not only that defendant intended to transport methamphetamine, but that he intended to transport it 'for sale,' as required for a conviction under the current version of section 11379." (Lua, supra, at p. 1014.)
We find Lua instructive here. Focusing just on the court's jury instructions, we conclude they were adequate but could have been more explicit. The jury was instructed specific intent was necessary, told the charge was "transporting for sale," and heard multiple references to sale in CALCRIM No. 2300. We can infer the jury would apply the specific intent instruction to the key element of the only count at issue; i.e., that Vea transported for sale. (See Lua, supra, 10 Cal.App.5th at p. 1014.) However, it would have been clearer if the court specified the sale element had to be supported by specific intent.
We agree with our colleagues in Division Two that further amendment of CALCRIM No. 2300 may be appropriate. (See Lua, supra, 10 Cal.App.5th at p. 1016 ["[T]he Judicial Council of California, which promulgates the CALCRIM instructions, should consider conforming the standard instruction for transportation for sale offenses . . . to the instructions for other offenses with an analogous 'for sale' element."]; ibid. [unless and until the instruction is amended, courts "should consider modifying the instruction to be more explicit regarding the required intent"].)
Vea urges that Lua, supra, 10 Cal.App.5th 1004 is distinguishable from the instant action because in Lua, both the prosecutor and defense counsel focused on the specific intent element of transporting for the purpose of selling the narcotics (id. at p. 1014), but here, the prosecutor misstated the law and Vea's counsel did address it. To this end, Vea focuses on the prosecutor's comments in closing argument that Vea's "subjective knowledge on this issue [the future sale of the cocaine] is irrelevant." Vea claims the prosecutor's comments informed the jury that the prosecutor did not have to prove Vea had the specific intent that the narcotics he was transporting would be sold.
As a threshold matter, we observe that because we find no instructional error, we need not consider whether the attorneys' comments here diminished any confusion. (Cf. People v. Hajek and Vo (2014) 58 Cal.4th 1144, 1220 [" 'any theoretical possibility of confusion [may be] diminished by the parties' closing arguments"].) In any event, we are not persuaded that the prosecutor's comments in the instant action added to any potential jury confusion. At worst, the prosecution's comments were inartful and awkward.
For example, immediately before telling the jury the prosecution's "subjective knowledge" did not matter, the prosecutor noted the jury had to find that the "cocaine [was] being moved for purposes of it going to market? Is that why it's being moved for purposes of it going to market?" Thus, the prosecutor reiterated that the purpose of the transportation of the cocaine was so that it could be sold. Put differently, the prosecutor argued to convict Vea, the jury had to find that Vea transported the cocaine for the purpose of it being sold. And the prosecutor emphasized this point to the jury multiple times. These comments along with CALCRIM Nos. 521 and 2300 make it clear that the jury knew it had to find that the purpose of Vea transporting the cocaine was for it to be sold at a later time to convict him of the charged offense.
The prosecutor later argued to the jury: "So the question you need to ask yourself: Is this cocaine being moved for purposes of it going to market, for it to be distributed and be sold?" Further, the prosecutor again emphasized that the cocaine was being transported for sale: "The reason this is being moved is because eventually when it gets to location, it's destination, it's going to be distributed and sold. It's being transported so that it can be brought to market. Not a close call."
Finally, even if we were to find instructional error here, we would not determine that Vea was prejudiced under the standard in Chapman v. California (1967) 386 U.S. 18. Vea contends the gravamen of his defense was whether he had the necessary mens rea to commit the offense. And he claims his trial attorney "pointed to evidence that also suggest[ed] that [he] did not have the intent to transport for sale the [cocaine]." In support of his position, Vea quotes the following from defense counsel's closing argument:
"The dimensions of the bundles, as you've seen in the photos, are such that the drugs are concealed. They are not in plain view. You cannot see them from the rear hatch cargo area.Although he acknowledges this portion of his attorney's closing argument focused on whether he had control of the cocaine, Vea insists this same evidence supports the "inference that [he] did not transport with the requisite intent to sell the controlled substance because he did not have any knowledge about the quantity of the controlled substance." We agree with Vea that to the extent the jury believed that he did not have control of the cocaine or knowledge of the existence of the cocaine then the jury could not find that he had the intent to transport the cocaine for sale. However, his counsel did not address the specific intent for sale issue. His primary defense was not that he lacked the intent to transport the cocaine for sale, but that he did not know about the drugs at all and had no control over them. Indeed, that is precisely what his attorney argued to the jury, focusing on the "[k]ey elements" of "knowledge and control[,]" contending that the prosecutor did not prove Vea "specifically knew he was transporting narcotics" or "had control over these narcotics or the right to control the cocaine."
"There's no evidence that Mr. Vea ever accessed the rear cargo area or touched the bundle of narcotics. No fingerprints were lifted. And the only independent eyewitnesses to this transaction, essentially, the children ages seven and nine, were never interviewed.
"There's no evidence that Mr. Vea controlled or had the right to control these narcotics."
Vea's attorney's argument was not persuasive to the jury as it found Vea had the requisite knowledge and control in convicting him of transporting a controlled substance for sale. Moreover, Vea concedes that his attorney did not argue that he lacked the specific intent to transport the cocaine for the purposes of selling it. In addition, the evidence that Vea was transporting the cocaine with the intent that it would be sold was overwhelming. This was Vea's third trip taking Sauceda to San Ysidro. Vea admitted to police that he knew he was transporting illegal drugs. The quantity of cocaine was almost four kilograms, with a street value of about $400,000, which according to unrefuted expert witness testimony was well beyond what anyone would transport for personal use. Although Vea testified that he only assumed there were illegal drugs in the car, he did not deny that he previously told the officers that he knew there were drugs in the car and that it was his third trip to San Ysidro with his friend. On the record before us, the jury could not rationally have found Vea lacked the specific intent to transport for sale while otherwise meeting the elements of the crime. We conclude any error here was harmless beyond a reasonable doubt.
II
PROBATION REVOCATION FINE
Vea asserts, and the People concede, that the trial court improperly imposed a probation revocation fine of $1,800 under Penal Code section 1202.44 because he was not sentenced to probation. However, the People maintain that the court simply misspoke and intended to impose a parole revocation fine under Penal Code section 1202.45. As such, they ask us to remand the instant matter back to the superior court to address this uncertainty. Vea does not address the People's request for a remand.
During Vea's sentencing hearing, after the court imposed a restitution fine of $1,800 under Penal Code section 1202.4, subdivision (b), it stated: "Additional restitution fine in the amount of $1,800. That is to be stayed unless his supervision is revoked. Probation revocation fee in the amount of $1,800." In addition, in the felony minutes--pronouncement of judgment, both a restitution fine under Penal Code section 1202.44 and a restitution fine under Penal Code section 1202.45 are combined into a common space designated as "(PC 1202.44/PC1202.45) SUSPENDED UNLESS PROBATION/PAROLE/SUPERVISION REVOKED." A handwritten "1800" appears on the corresponding line for this common space regarding Vea's sentence.
We agree with the People that the trial court misspoke when sentencing Vea. Because Vea was not granted probation, the court could not impose a restitution fee under Penal Code section 1202.44. Further, the court did sentence Vea to prison, and his likely eventual release would be on "[p]arole, postrelease community supervision, or mandatory supervision" not probation. Therefore, a restitution fine under Penal Code section 1202.45 would be appropriate. To clear up the ambiguity, we remand this matter back to the superior court to clarify whether it intended to impose a restitution fine under Penal Code section 1202.45.
III
THE LAB ANALYSIS FEE
Vea argues the trial court erroneously imposed a $205 lab analysis fee. He admits that section 11372.5 requires the imposition of a $50 fee in this case. Nevertheless, he contends the $205 total lab analysis fee includes not only the permitted $50 fee, but also additional, improper penalty assessments. We disagree.
Additional penalties shall be added upon every "fine, penalty, or forfeiture." (Pen. Code, § 1464; Gov. Code, § 76000.) Penalty assessments for laboratory analysis and drug program fees "fall within the meaning of the penalty statutes' 'fine, penalty, or forfeiture' language." (People v. Alford (2017) 12 Cal.App.5th 964, 977 (Alford); review granted Sept. 13, 2017, S243340.)
Vea contends the court was not authorized to add penalty assessments to the laboratory analysis fees. Vea relies on People v. Watts (2016) 2 Cal.App.5th 223 (Watts), finding a laboratory analysis fee was not subject to penalty assessments. (Id. at p. 237.)
We decline to accept the interpretation expressed in Watts, supra, 2 Cal.App.5th 223 and agree with the holding reached by this court in Alford, supra, 12 Cal.App.5th 664, review granted. In Alford, we upheld penalty assessments added onto laboratory analysis fees and drug program fees because the fees are encompassed under the meaning of "fine, penalty, or forfeiture." (Id. at pp. 968, 977.) Vea simply asks us to ignore Alford and follow "better reasoned cases on this issue" like Watts. We do not find Vea's conclusory argument availing.
We are aware the Supreme Court has granted review in Alford, supra, 12 Cal.App.5th 964 and several other cases to resolve conflicts among the Courts of Appeal on the propriety of penalty assessments for the laboratory and drug program fees at issue in this case. The high court will ultimately provide guidance on this question, however, pending further direction from the court, we continue to adhere to the views we expressed in Alford.
We agree the laboratory analysis fees fall under the penalty statutes and conclude the penalty assessment here was authorized.
DISPOSITION
This matter is remanded to the superior court to strike the restitution fine of $1,800 under Penal Code section 1202.44 and clarify whether it intended to impose a restitution fine under Penal Code section 1202.45. The superior court is to modify the abstract of judgment accordingly. In all other respects, the judgment is affirmed.
HUFFMAN, Acting P. J.. I CONCUR: HALLER, J. IRION, J., dissenting.
I reach a different conclusion on Vea's instructional error argument. Specifically, as I will explain, I do not agree that the jury instructions adequately conveyed to jurors that they must find Vea transported the cocaine with the specific intent that it be sold. I also do not agree that the error was harmless beyond a reasonable doubt. Accordingly, I would reverse the judgment.
As my colleagues have explained, the trial court instructed with CALCRIM No. 2300 on the elements of transporting a controlled substance for sale:
"The defendant is charged in Count 1 with transporting for sale cocaine, a controlled substance in violation of Health and Safety Code Section 11352(a).
"To prove that the defendant is guilty of this crime, the People must prove that:
"1. The defendant transported for sale a controlled substance;
"2. The defendant knew of its presence;
"3. The defendant knew of the substance's nature or character as a controlled substance;
"4. The controlled substance was cocaine;
"AND
"5. The controlled substance was in a usable amount.
"A person transports something if he or she carries or moves it from one location to another for sale, even if the distance is short.
"A usable amount is a quantity that is enough to be used by someone as a controlled substance. Useless traces or debris are not usable amounts. On the other hand, a usable amount does not have to be enough, in either amount or strength, to affect the user.
"The People do not need to prove that the defendant knew which specific controlled substances he transported for sale.
"A person does not have to actually hold or touch something to transport it for sale. It is enough if the person has control over it or the right to control it, either personally or through another person."
The jury was also instructed with CALCRIM No. 251 on the union of act and intent:
"The crimes charged in this case require proof of the union, or joint operation, of act and wrongful intent.
"For you to find a person guilty of the crimes in this case, that person must not only intentionally commit the prohibited act, but must do so with a specific intent. The act and the specific intent required are explained in the instruction for that crime."
Vea contends that these instructions did not adequately inform the jury that it was required to find that he transported the cocaine with the specific intent that it be sold, which the parties both acknowledge is a required element of the crime. "In reviewing a claim of instructional error, the ultimate question is whether 'there was a reasonable likelihood the jury applied the challenged instruction in an impermissible manner.' [Citation] '[T]he correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction.' " (People v. Hajek and Vo (2014) 58 Cal.4th 1144, 1220 (Hajek).)
As Vea points out, CALCRIM No. 2300 as given to his jury does not expressly state that the jury must find that the defendant transported the controlled substance with the specific intent that it be sold. Instead, the first element in the instruction simply states that the jury must find that "[t]he defendant transported for sale a controlled substance." Indeed, there is no reference anywhere in the instruction to any intent requirement, and the only mental state mentioned in CALCRIM No. 2300 relates to the defendant's knowledge that a controlled substance was present. Specifically, the second and third element require a finding that "[t]he defendant knew of the substance's nature or character as a controlled substance" and that "[t]he defendant knew of its presence." Therefore, in interpreting the first element of the instruction requiring that "[t]he defendant transported for sale a controlled substance," a jury might reasonably conclude that the People could meet their burden on that element by simply proving that the cocaine Vea was transporting was eventually going to be sold, but not as requiring the People to prove that Vea specifically intended that the cocaine be sold.
My colleagues conclude that when considered together with CALCRIM No. 251, the jury would have reasonably understood CALCRIM No. 2300 as requiring a finding that Vea transported the cocaine with the specific intent that it be sold. Specifically, my colleagues reason that by instructing the jury that "[f]or you to find a person guilty of the crimes in this case, that person must not only intentionally commit the prohibited act, but must do so with a specific intent," and that "[t]he act and the specific intent required are explained in the instruction for that crime," CALCRIM No. 251 in effect directed the jury to look to CALCRIM No. 2300 to determine what kind of specific intent was required. According to my colleagues, in looking to CALCRIM No. 2300, the jury would have understood the phrase "[t]he defendant transported for sale a controlled substance" to mean that the defendant transported the controlled substance with the specific intent that it be sold. I disagree.
CALCRIM No. 2300 does not refer to the concept of intent or use any similar word that would describe an intentional state of mind. There is no reason to believe that a reasonable juror who consults the text of CALCRIM No. 2300 would infer a requirement that the defendant transported the controlled substance with the specific intent that it be sold when the instruction contains no such language. On this point, I do not agree with the analysis in People v. Lua (2017) 10 Cal.App.5th 1004. Unlike my colleagues, I am not persuaded by Lua's reasoning that "[c]orrelating these two instructions, using a plain commonsense reading, the jury was adequately instructed that the prosecution was required to prove not only that defendant intended to transport [the controlled substance], but that he intended to transport it 'for sale.' " (Lua, at p. 1014.)
In assessing whether there was a reasonable likelihood the jury applied the instruction in an impermissible manner, a reviewing court may consider whether "[t]he arguments of counsel also correctly explained the relevant law." (People v. Kelly (1992) 1 Cal.4th 495, 526.) I do not agree with my colleagues' assessment that the prosecutor's comments did not add to any potential jury confusion. On the contrary, in my view, the prosecutor's closing argument compounded the problem with CALCRIM No. 2300. Indeed, instead of explaining that the jury was required to find that Vea transported the cocaine with the specific intent that it be sold, the prosecutor made several statements that a reasonable juror would have understood to mean that no such specific intent finding was required.
For one thing, the prosecutor explained that the first element in the instruction did not require any mental state, and that the only mental state requirements for the crime were set forth in the second and third elements:
"I turn now to the elements of [the offense]. Number one, that the defendant transported a controlled substance for sale. Number 2, that the defendant knew of the controlled substances present. Number 3, that the defendant knew the substance was a controlled substance. Number 4, the substance was cocaine. And number 5, the substance was in a usable amount. Number 2 and number 3 are in red. Because these are the two elements that require a mental state. A mental state from the defendant. And don't take my word for it. Look at the jury instructions. Number 2 and 3 are the only ones that say knew, knew, knew. It does not say 'knew' on 1, 4 or 5. The mental state required for this offense is contained in elements 2 and 3."Based on this statement, the jury would have incorrectly believed that there was no mental state associated with the first element in CALCRIM No. 2300 that "[t]he defendant transported for sale a controlled substance," including no required mental state of specific intent. Thus, when instructed by CALCRIM No. 251 to look to the instruction of the crime for the specific intent required, a juror guided by the prosecutor's comment would not have understood the first element to express the requirement that the defendant transported the controlled substance with the specific intent that it be sold.
In addition, the prosecutor expressly and incorrectly told the jury that Vea's state of mind as to whether the cocaine was going to be sold was irrelevant.
"Let's talk a little bit about transporting for sale. This is not—what I'm not required to show is that the defendant himself was going to sell the drugs. Only that this was a sales amount and was transported for that purpose. This was obviously not a personal-use amount. The question you should ask yourself is, is this cocaine being moved for purposes of it going to market? Is that why it's
being moved for purposes of it going to market? The defendant's subjective knowledge on this issue is irrelevant. Look at the jury instruction. Look at element 1. It doesn't require knowingly. Okay. So the question you need to ask yourself: Is this cocaine being moved for purposes of it going to market, for it to be distributed and be sold? Again, the defendant's subjective knowledge on this going to sale is irrelevant."A reasonable juror hearing the prosecutor state that Vea's subjective knowledge of whether the cocaine would be sold is irrelevant would likely also conclude that Vea's subjective intent as to whether the cocaine would be sold is similarly not pertinent.
Defense counsel said nothing during closing argument to call into question the prosecutor's statement that the jury was not required to find any specific mental state in connection with the first element of the crime.
Taken together, based on (1) the failure of CALCRIM No. 2300 to state that the jury was required to find that Vea transported the cocaine with the specific intent that it be sold; and (2) the prosecutor's incorrect statement of the law during closing argument that no mental state was required to find that "[t]he defendant transported for sale a controlled substance," the record establishes " 'a reasonable likelihood the jury applied the challenged instruction in an impermissible manner.' " (Hajek, supra, 58 Cal.4th at p. 1220.) I would therefore conclude that the trial court erred in instructing with CALCRIM No. 2300 as currently written.
I agree with my colleagues that the Judicial Council of California should consider amending CALCRIM No. 2300 to address the specific intent requirement. The CALCRIM instructions for the other offenses with analogous "for sale" elements (§§ 11351, 11351.5, 11378, 11378.5, 11359), plainly state that the jury is required to find that the defendant acted with the specific intent that the illegal substance be sold. (CALCRIM Nos. 2302, 2352.) There is no reason that CALCRIM No. 2300 cannot be similarly drafted to state that the jury must find that "when the defendant transported the controlled substance, he or she intended to sell it or that someone else sell it." --------
The remaining issue is whether the error was prejudicial. "An instruction that omits a required definition of or misdescribes an element of an offense is harmless only if 'it appears "beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained." ' " (People v. Mayfield (1997) 14 Cal.4th 668, 774.)
An instructional error that omits an element of the offense may be found to be harmless "where a reviewing court concludes beyond a reasonable doubt that the omitted element was uncontested and supported by overwhelming evidence, such that the jury verdict would have been the same absent the error." (Neder v. U.S. (1999) 527 U.S. 1, 17.) Under this approach, "we may affirm despite the error if the jury that rendered the verdict at issue could not rationally have found the omitted element unproven; the error is harmless, that is, if the record contains no substantial evidence supporting a factual theory under which the elements submitted to the jury were proven but the omitted element was not." (People v. Sakarias (2000) 22 Cal.4th 596, 625.) " 'An instructional error . . . involving a single element, will be deemed harmless only in unusual circumstances, such as where [the] element was undisputed, the defense was not prevented from contesting . . . the omitted element[], and overwhelming evidence supports the omitted element.' " (People v. Merritt (2017) 2 Cal.5th 819, 828.)
Here, based on the facts presented at trial, overwhelming evidence did not support a finding that Vea transported the cocaine with the specific intent that it be sold. Nor was the issue undisputed. Although there was strong and undisputed evidence that the cocaine Sauceda arranged to pick up in the Walmart parking lot was destined to be sold, due to its weight and street value of approximately $400,000, the evidence of Vea's specific intent that the cocaine was to be sold was not strong. Because of Vea's self-described peripheral role in the transaction as someone doing a favor for Sauceda, and because Sauceda was the person who arranged the transaction and took care of all the details, a rational juror could find that the People did not meet their burden to prove that Vea had the specific intent that the cocaine was to be sold. Indeed, based on the prosecutor's comments during closing argument, he appears to have been unaware that the People were required to establish that Vea transported the cocaine with the specific intent that it be sold, and accordingly the prosecutor did not develop any evidence during trial that would tend to establish Vea's specific intent. Although, as my colleagues point out, the jury necessarily found the other elements of the crime to be satisfied, including that Vea knew that a controlled substance was present in the vehicle, that he was transporting it, and that the drugs were "transported for sale," the jury's findings on those elements simply do not establish how they would have resolved the factual question of whether Vea had the specific intent that the drugs be sold.
I therefore cannot conclude, beyond a reasonable doubt, that the error complained of did not contribute to the verdict obtained. Had the jury been properly instructed that the People were required to prove that Vea transported the cocaine with the specific intent that it be sold, it may have reasonably concluded, based on the evidence at trial, that the People did not meet their burden on that element.
IRION, J.