Opinion
C040650.
7-1-2003
THE PEOPLE, Plaintiff and Respondent, v. JASON PAUL BERRY, Defendant and Appellant.
Jason Paul Berry (defendant) appeals after a jury convicted him of two counts of sale of methamphetamine based on two separate sales of the drug to an undercover officer. (Health & Saf. Code, § 11379, subd. (a).) Defendant contends the evidence was insufficient to support one of the counts and the court erred by refusing the mistake of fact instruction as to the other count. (CALJIC No. 4.35.) We shall affirm the judgment because it is supported by substantial evidence and instructional error, if any, was harmless.
FACTUAL AND PROCEDURAL BACKGROUND
This case arose out of two undercover drug buys at the Gold Dust Saloon (Gold Dust) in San Andreas. The ostensible buyer was Derrick Marion, an officer in the special operation unit of the Department of Alcoholic Beverage Control. The first buy occurred on December 8, 2000, and the second occurred one week later, on December 15.
All events concerning the offenses occurred in 2000.
On December 8, Marion sat at the bar at the Gold Dust and ordered a beer for himself and his partner, who played pool. The bartender was Rebecca Stewart, from whom Marion had purchased methamphetamine in the past. Marion asked Stewart if she could "do anything" for him. Stewart said she would try. She walked over to defendant, who had just entered the Gold Dust, and talked with him. Marion overheard Stewart say she "would really appreciate it." Defendant immediately departed. Stewart told Marion that "hes going to take care of it for you" and that it would be "a 30."
Defendant eventually returned to the Gold Dust and sat at the opposite end of the bar from Marion. Marion heard Stewart ask defendant "Yeah?", to which defendant replied, "I got it all." Marion did not see any exchange between Stewart and defendant, but a few moments later Stewart handed Marion a small bag containing methamphetamine in exchange for $ 30.
Marion returned to the Gold Dust on December 11 and purchased methamphetamine directly from Stewart. On December 13, Marion encountered Stewart at the Black Bart Inn in San Andreas. Stewart told Marion she would obtain some more methamphetamine so Marion could buy it later. Defendant was not present at either the December 11 purchase or during the December 13 conversation.
On December 15, Marion entered the Gold Dust and observed defendant sitting at the bar. Marion ordered a beer from Stewart, who told Marion, "Hes going to get it right now." Stewart indicated she needed some money, to which Marion inquired, "Same as last time?" Stewart replied, "Better." Marion handed Stewart two $ 20 bills. Stewart walked to the cash register and placed something in it. She turned around and asked defendant, "35?" Defendant nodded affirmatively. Stewart then turned to Marion and asked "35 okay?" Marion agreed. Stewart then walked to where defendant was sitting and handed him some money.
Defendant left the Gold Dust. He returned half an hour later and handed Stewart some money. Stewart told Marion, "they are out" and would have something in about an hour. Marion said he would wait.
Stewart asked defendant if he could "give him some of yours." Defendant told Stewart to "give him some of hers." Stewart responded that defendant should give Marion "some of his." Defendant relented and agreed to give Marion some of his. Stewart retrieved a package of Marlboro cigarettes that had been sitting on the bar in front of defendant. Stewart placed the pack in front of Marion and informed him he could have a "bump." Marion looked inside the package and saw a bindle containing what appeared to be methamphetamine. Marion declined to take a bump but offered to buy the entire package instead. Stewart declined the offer.
About 20 minutes later Stewart asked Marion for the $ 35 because defendant was going to "try again." Marion handed Stewart the money, who walked over to defendant and gave it to him. Defendant left the bar for 20 minutes. Upon his return he resumed his seat at the bar. Stewart approached defendant, who handed her a box of Marlboro cigarettes. Stewart opened the box top, retrieved a cigarette, and placed the box in front of Marion. Marion looked inside the box and saw a small package of methamphetamine. He placed the box in his pocket, thanked Stewart, and smiled and nodded at defendant, who raised his eyebrows.
Defendant testified that Stewart was his girlfriend in December 2000 and she had handed him $ 35 to pay for the cost of their hotel room one night. Defendant admitted retrieving the box of Marlboro cigarettes from one of Stewarts friends, but he did so as a favor to Stewart. Defendant did not look inside the box; he assumed it contained cigarettes. Defendant had never used methamphetamine nor had he seen Stewart use or sell the drug.
DISCUSSION
I
Sufficiency of the Evidence
Defendant argues that the evidence was insufficient to support his conviction of sale of methamphetamine on December 8 (count one) because there was no direct evidence that the drug was in his possession, and that the circumstantial evidence is speculative. Defendant notes that Marion did not see any money pass between defendant and Stewart, nor did he detect the origin of the baggie containing the methamphetamine. The People contend the absence of testimony on actual transfer is not sufficient to undermine guilt when the circumstantial evidence points to a sale.
"To determine sufficiency of the evidence, we must inquire whether a rational trier of fact could find defendant guilty beyond a reasonable doubt. In this process we must view the evidence in the light most favorable to the judgment and presume in favor of the judgment the existence of every fact the trier of fact could reasonably deduce from the evidence. To be sufficient, evidence of each of the essential elements of the crime must be substantial and we must resolve the question of sufficiency in light of the record as a whole." (People v. Carpenter (1997) 15 Cal.4th 312, 387, 935 P.2d 708, quoting People v. Johnson (1993) 6 Cal.4th 1, 38, 859 P.2d 673; see Jackson v. Virginia (1979) 443 U.S. 307, 317-320, 61 L. Ed. 2d 560, 99 S. Ct. 2781.)
"Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence, it is the jury, not the appellate court which must be convinced of the defendants guilt beyond a reasonable doubt. If the circumstances reasonably justify the trier of facts findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment." (People v. Perez (1992) 2 Cal.4th 1117, 1124, 831 P.2d 1159, quoting People v. Bean (1988) 46 Cal.3d 919, 932, 251 Cal. Rptr. 467, 760 P.2d 996; see People v. Ceja (1993) 4 Cal.4th 1134, 1139, 847 P.2d 55.)
Defendants argument would present a closer question had he been charged with the December 8 offense only. On that date, Marion used code words to ask Stewart for methamphetamine. Stewart did not have any at the time, but she did later, after she had conversed with defendant, defendant had left the bar and returned, and defendant stated, "I got it all." In addition, Stewarts comments to Marion revealed that defendant had access to and would obtain the methamphetamine for Marion.
If there were any doubt that Marion had witnessed a sale on December 8, the December 15 transaction confirmed it. Defendant and Marion discussed price out loud, using Stewart as a go- between. Marion handed cash to Stewart, who in turn handed it to defendant. Defendant left for a while and when he returned he handed the cash to Stewart because the drug was not presently available. Defendant then agreed to let Marion have some of "his own," which was contained in a Marlboro box like the one that was delivered to Marion a short while later, after defendant had departed and returned to the Gold Dust a second time. From these facts the jury could easily conclude, as they apparently did, that Marion had witnessed a sale on December 15, and that the December 8 transaction also was a sale, albeit a bit more veiled than the subsequent transaction. Substantial evidence supports the conviction on count one.
II
Instructional Error
The superior court refused defendants request that the jury be instructed with a modified version of CALJIC No. 4.35, relating to mistake of fact. CALJIC No. 4.35 provides: "An act committed or an omission made in ignorance or by reason of a mistake of fact which disproves any criminal intent is not a crime.
"Thus a person is not guilty of a crime if [he] [she] commits an act or omits to act under an actual [and reasonable] belief in the existence of certain facts and circumstances which, if true, would make the act or omission lawful." To this instruction defendant wanted to add the following sentence: "If you have a reasonable doubt as to whether a mistake of fact negated criminal intent you must find that such intent was not formed." The trial court refused to instruct at all on mistake of fact.
In defendants view, the offered instruction was valid based on his mistaken belief that the Marlboro box he handed to Stewart on December 15 did not contain methamphetamine. Defendant argues the error is of federal constitutional dimension, and is reviewed under the Chapman standard, but that even if the less stringent Watson test were applied, the error was prejudicial.
Chapman v. California (1967) 386 U.S. 18, 24, 17 L. Ed. 2d 705, 87 S. Ct. 824.
People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243.
Respondent argues the instruction was properly refused because the defense was premised on ignorance of the contents of the Marlboro box as opposed to a mistaken factual belief that the box did not contain methamphetamine. Assuming there was instructional error, the People argue it was harmless beyond a reasonable doubt.
This last point is dispositive. As we shall explain, the issue whether defendant was aware of the contents of the Marlboro box was litigated at trial, argued to the jury, and subject to instruction. The record does not disclose the jury was confused or misled. Assuming the court erred by refusing to instruct on mistake of fact, the error was harmless under Chapman. That is to say, it is clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error. (People v. Cox (2000) 23 Cal.4th 665, 677, fn. 6 [reiterating Chapman test].)
Relying on defendants testimony that he did not know what was in the Marlboro cigarette box, defense counsel argued the People had not satisfied its burden of proof.
Defense counsel argued: "I would submit he doesnt know what was going on. He was just there. He had a relationship with the woman, such as she was, and now he is involved in this as a result of that relationship.
"Its got to be shown by the prosecution, you get to make that decision whether [defendant] knew of the presence and nature of the controlled substance." After discussing defendants lack of knowledge regarding methamphetamine, counsel continued: "As to the cigarette box, although I didnt ask the investigator, I dont know that this squashed condition is its original condition. I suspect that it was not. And this green bindle, according to his testimony, was on the inside.
"Is it illegal just as a box? No. Is handing it to somebody else illegal? No. Only if you know what is on the inside and you recognize it as being illegal.
"You will notice it is the same as the other, but its just broken up in a few little pieces. I submit if you dont know what it is, when you look at it, you may not know that its illegal.
"Now [the prosecutor] and I have stipulated for the record that this is methamphetamine. We know it is methamphetamine. The Officer knows its methamphetamine. But even if [defendant] knew that that was inside that cigarette box, did he know? He certainly didnt know it when I showed it to him. And there is nothing that came out that in his experience he would have any reason to know."
In order to obtain a conviction for sale of a controlled substance such as methamphetamine, the People must prove that the accused was aware of the character of the controlled substance. (People v. Coria (1999) 21 Cal.4th 868, 874-875, 985 P.2d 970.)
Accordingly, the jury received the following instruction: "In order to prove this crime each of the following elements must be proved: One, a person sold, furnished or gave away methamphetamine, a controlled substance; and two, that person knew of its presence and nature as a controlled substance." (CALJIC No. 12.02 (1996 rev.); italics added.)
By convicting defendant, the jury necessarily concluded defendant knew of the presence of the methamphetamine in the box, and thus, that he was not mistaken as to its contents. The evidence is in full accord with the jurys determination. The facts disclose defendant was acting in concert with Stewart to sell methamphetamine at the Gold Dust. Although the precise details of their arrangement was not the subject of testimony at trial, the jury could reasonably infer defendant was in charge of the methamphetamine while Stewart acted as a conduit for the exchange of cash and drugs.
The record does not indicate that the jury was confused. Trial commenced on the afternoon of Wednesday, February 6, 2002, and the jury retired to deliberate the following afternoon at 3:17 p.m. At 4:15 p.m., the jury asked the following question: "Need to hear transcript of the statement `I got it all from [defendant]. Was it on 12-08-02 [sic]?" Before the court could deliver an answer, the jury reached a verdict at 4:25 p.m. The defense hinged on defendants credibility. The speed of the verdict indicates the jury had little difficulty concluding defendant was lying, and that it was not misled by the thinly-disguised subterfuge involving the Marlboro cigarette box. The only issue, it seems, was whether defendants incriminating statement was made during the first or the second sale. There is no doubt the verdict would have been the same had CALJIC No. 4.35 been given.
DISPOSITION
The judgment is affirmed.
We concur: DAVIS, J., and NICHOLSON, J.