Opinion
A167367
11-14-2024
THE PEOPLE, Plaintiff and Respondent, v. JOHN BRODERICK, Defendant and Appellant.
NOT TO BE PUBLISHED
(San Mateo County Super. Ct. No. 20-NF-006964-A)
GOLDMAN, J.
After police officer Mikhail Venikov received a tip that John Broderick was selling methamphetamine, Venikov began a text message conversation with Broderick, asking to purchase $100 worth of the drug. The first day, Broderick's only response was to ask who was texting him, but on the second day, he told the officer to "come by" and rode his bicycle toward the proposed meeting location, a Denny's restaurant nearby; he turned around before he reached the restaurant. Venikov and his partner, Jason McCartney, detained and searched Broderick, finding methamphetamine in his glove. Before trial, Broderick moved to suppress the methamphetamine, arguing that it was the fruit of an illegal search, but the court found that probable cause justified the search. After some confusion with the instructions for filling out the verdict forms, a jury convicted Broderick of transportation and possession for sale of methamphetamine pursuant to Health and Safety Code sections 11379, subdivision (a) and 11378, respectively, but not of simple possession pursuant to Health and Safety Code section 11377, a lesser included offense of possession for sale.
Undesignated statutory references are to the Health and Safety Code.
Broderick continues to challenge the search here, arguing that the officers did not have probable cause or valid consent to search him. He asserts that his trial counsel was ineffective for failing to argue that any consent he gave was involuntary. He also contends that Venikov's persistent text messaging entrapped him and that the jury was improperly instructed not to even consider the lesser offense of simple possession before considering whether he possessed the methamphetamine for sale; as to the latter, he contends the error was prejudicial. The Attorney General urges us to affirm the trial court's rulings as lawful and supported by the evidence, and to find that any errors were not prejudicial. We affirm.
BACKGROUND
At trial, Venikov testified that he first heard about Broderick's narcotics sales from one or more concerned citizens who lived at the Hillsdale Inn (Inn). He could not recall who those citizens were. The citizens provided Broderick's telephone number, which matched a number Venikov found in a police database. Venikov initiated a text message conversation using the telephone number, asking to purchase $100 worth of methamphetamine from Broderick. Venikov's text messages referred to "a ball," meaning an "8 ball" or "approximately 3.5 grams of" methamphetamine.
After Broderick agreed to meet him, Venikov drove to the Inn, parked, and waited nearby. Venikov recognized Broderick as he departed the Inn. Broderick rode his bicycle toward the nearby Denny's restaurant; Venikov followed in his patrol car. By the time Venikov got through traffic at a stoplight, he observed Broderick "had already turned around and was . . . standing at the red light" on his way back to the Inn. Denny's was near the red light, but Venikov never observed Broderick go into the Denny's parking lot. Venikov radioed McCartney, who pulled Broderick over; Venikov joined them. He called the telephone number to which he had been sending text messages and Broderick's cellphone rang.
Venikov asked Broderick several questions about where he might find methamphetamine, simultaneously asking to look in various items of Broderick's clothing. Venikov explained that Broderick was being detained and then said, "Can you do me a favor also take the gloves off real quick?" Broderick said, "Sure." As Broderick was taking his gloves off, Venikov asked, "You having a hard time taking that one off? Can I see your hand?" Broderick responded unintelligibly. Venikov asked, "What's that?" and Broderick said he dropped money that he was holding. Venikov said, "Can I see that real quick? What, what was in here that you were just now tryin [sic] to uh. Is that the shit right there, that was in the glove? Yeah."
In Broderick's glove was a clear plastic bag containing a white crystal substance, which Venikov suspected was methamphetamine. The net weight of the substance was 4.588 grams; the gross weight was 5.56 grams. At trial, Venikov was deemed "an expert in the field of narcotics, specifically methamphetamine, and whether it is possessed for sale or for personal use." Based on the text message exchange and the gross weight-which Venikov estimated would be a 55-day supply for a person using a typical amount of .1 grams once per day-Venikov believed that Broderick possessed the drug for sale. On cross-examination, Venikov acknowledged that, depending on the person and their usage habits, that quantity might last just a week and a half. The 3.5 grams in an 8 ball would typically cost between $100 and $300.
At the time of his arrest, Broderick testified, he was the head of maintenance at the Inn, where he lived. He was paid every two weeks, but did not have a bank account and would cash his checks. Because the rooms at the Inn were not secure and his room had been broken into more than once, Broderick kept all his methamphetamine with him when he left his room. He denied ever selling narcotics while he worked at the Inn. A day or two before his arrest, he purchased the methamphetamine in his glove for $80. Broderick considered himself an addict.
Broderick said the language in Venikov's text messages was odd and unlike language Broderick or people he knew would use. He thought the texts were a joke and invited the person to "come by" because he knew they did not know where he lived and would not come. Broderick was trying to figure out who the person was. He was "really curious . . . how this person got [his] phone number and why they were calling [him] Cowboy"; he "thought it might be . . . a prank." It was also strange that Venikov wrote he knew Broderick from "the bar," because the bar at the Inn had closed in 2017.
After riding toward the Denny's, he thought to himself:" 'This is crazy'" and "turned around and went back." He never entered the Denny's parking lot, and he could not see Denny's or its parking area from where he turned around. He sent a text message saying he was at Denny's after he turned around. From the higher vantage point on his way back over the overpass, he could see the Denny's parking lot and he looked to see who might appear there. That's when McCartney-who had seen Broderick enter the larger shopping plaza but did not see him enter the Denny's parking lot inside-stopped him.
McCartney ordered Broderick to get off his bike and pat-searched him. Venikov arrived. The officers asked Broderick questions, and eventually arrested him.
After his arrest, Broderick was charged with possession of methamphetamine for sale and transportation for sale in violation of sections 11378 and 11379, respectively. The jury found Broderick guilty of both crimes and not simple possession, the lesser included offense to possession for sale.
DISCUSSION
Broderick challenges his convictions on three grounds. First, he argues that the search by Venikov and McCartney was not supported by probable cause and not voluntary. Second, he argues that the trial court erred by declining to instruct the jury on the defense of entrapment. Third, he argues that the jury was erroneously instructed not to consider the lesser offense of simple possession before conclusively finding Broderick not guilty of possession for sale. We address these arguments in turn and provide additional factual context as we do so.
I. The Search
In the trial court, Broderick moved to suppress the methamphetamine obtained during the warrantless search, arguing that it was unreasonable. (See Pen. Code, § 1538.5, subd. (a)(1).) He now argues that the search was not supported by probable cause, he did not voluntarily consent to it, and his trial counsel was ineffective for failing to argue the search was involuntary.
This background discussion is limited to the evidence available to the trial court at the suppression hearing. (In re Arturo D. (2002) 27 Cal.4th 60, 77, fn. 18, overruled on other grounds, People v. Lopez (2019) 8 Cal.5th 353, 357.)
Broderick moved to suppress the methamphetamine prior to trial. He argued the search was illegal because it was conducted without a warrant. Although the officers did not have a warrant, the prosecutor argued that they had probable cause for the search based on Venikov's identification of Broderick, the text message exchange, and Broderick's bicycle ride from the Inn toward the Denny's.
At the suppression hearing, Venikov testified that concerned citizens notified him that Broderick was selling methamphetamine from the Inn. The trial court sustained Broderick's hearsay objection to the tip and limited use of the hearsay to explain Venikov's subsequent conduct. Venikov continued, describing the content of the tip, including that the person's nickname was "Cowboy" and that he worked at the Inn as a maintenance person. Venikov reviewed a police database that listed Broderick's name and date of birth and included a picture that he recognized from his prior interactions with Broderick at the Inn. Venikov also found a telephone number for Broderick.
Venikov then used an app to send text messages to the telephone number linked to Broderick. By text message, Venikov asked "to score some," and Broderick responded. They agreed that Venikov would purchase an 8 ball for $100. Venikov then asked Broderick to bring the methamphetamine to the nearby Denny's restaurant.
Venikov drove to the Inn and parked nearby. He observed Broderick riding his bicycle away from the Inn, onto the overpass. McCartney was parked near the Denny's. By the time Venikov, who had been stopped at a traffic light, approached the Denny's, Broderick had already turned around and was heading back toward the Inn. Venikov asked McCartney to stop Broderick and arrived after McCartney had done so. After Broderick consented to the search, Venikov testified, he found a bag of methamphetamine in Broderick's glove.
On cross-examination, Broderick's counsel asked for more information about the citizen tips; Venikov hinted that they came from other employees at the Inn or from its owners. They had Venikov's cellphone number because he "regularly talk[ed] to them if there is [sic] any issues or concerns ...."
The citizens did not report having seen Broderick selling drugs and Venikov did not see Broderick on his telephone and did not hear his voice. He did not see Broderick go to the Denny's or interact with anyone there.
Based on Venikov's testimony, the court found that Venikov had received tips "that [Broderick] was selling methamphetamine and . . . had called the phone number associated with [Broderick] to arrange the sale." After negotiations, Venikov "saw [Broderick] as he went towards the prearranged location for the sale." That series of events established probable cause to believe Broderick possessed methamphetamine for sale, in violation of section 11378 or section 11379. The court denied the motion to suppress.
B. Standard of Review
" 'On appeal from a denial of a motion to suppress evidence on Fourth Amendment grounds[,] we review the historical facts as determined by the trial court under the familiar substantial evidence standard of review. Once the historical facts underlying the motion have been determined, we review those facts and apply the de novo standard of review in determining their consequences. Although we give deference to the trial court's factual determinations, we independently decide the legal effect of such determinations.'" (People v. Bowen (2020) 52 Cal.App.5th 130, 138.) "[W]e affirm so long as the ruling is correct no matter the lower court's reasoning." (In re Randy C. (2024) 101 Cal.App.5th 933, 937-938.)
C. Probable Cause
"Probable cause exists when, under the totality of the circumstances, 'there is a fair probability that contraband or evidence of a crime will be found in a particular place.'" (Mosley v. Superior Court (2024) 101 Cal.App.5th 243, 250-251.) "A finding of probable cause must be supported by objective facts known to the officer at the time of the search." (Id. at p. 252.)" '[P]robable cause to search an item concerns the connection of the items sought with crime and the present location of the items.'" (Id. at p. 251.)
Broderick asserts that there was insufficient evidence from which the trial court could find that Venikov acted with an "honest and strong" belief that Broderick was guilty of a crime. (People v. Price (1991) 1 Cal.4th 324, 410.) He relies on People v. Freeny (1974) 37 Cal.App.3d 20, arguing that the case establishes that Venikov did not have probable cause to believe he had committed a crime at the time of the search. In Freeny, the court described the operative facts as follows: "appellant had been contacted to deliver narcotics, had left his residence immediately after the contact, and had proceeded to the place where the narcotics were to be exchanged for cash. The totality of circumstances represents probable cause to believe appellant was in the course of doing what he had said he was going to do, i.e., deliver heroin." (Freeny, at p. 28.) Freeny does not undermine the trial court's finding of probable cause; its material facts parallel those here and Broderick's attempts to distinguish it are unavailing.
Further, "[information from an untested informant may be sufficient to constitute probable cause for a search if it is corroborated by facts pertaining to the defendant's alleged criminal activity." (People v. Kershaw (1983) 147 Cal.App.3d 750, 759 (Kershaw); see also People v. Mikesell (1996) 46 Cal.App.4th 1711, 1718, 1719; People v. Sutton (1976) 65 Cal.App.3d 341, 347-348; Ferdin v. Superior Court (1974) 36 Cal.App.3d 774, 780; cf. People v. Gotfried (2003) 107 Cal.App.4th 254, 264 [probable cause not established where corroborated components of citizen tip were merely" 'pedestrian facts'" of defendant's residence address and information about his vehicles]; Higgason v. Superior Court (1985) 170 Cal.App.3d 929, 935, 939-940 [similar].) "[F]or corroboration to be adequate it must 'pertain' to defendant's alleged criminal activity. [Citation.] This requirement is met if police investigation has uncovered probative indications of criminal activity along the lines suggested by the informant." (Kershaw, at p. 759.)
Here, the trial court ruled that it would consider the citizen tip only to explain Venikov's subsequent actions, not for its truth. Broderick argues that the trial court then effectively disregarded its ruling by relying on the tip to establish probable cause, citing People v. Hawkins (2012) 211 Cal.App.4th 194, 199 for the proposition that hearsay is not admissible at a suppression hearing. But People v. Hawkins merely states generally that the rules of evidence, including hearsay rules, apply in such hearings. The trial court's ruling adequately conveys its intent not to rely on the content of the citizen tip for its truth. Rather, as here, a court evaluating a citizen tip may consider the content of the tip for a nonhearsay purpose-to evaluate whether the information on which an officer in the field relied to support a search or arrest established probable cause. When a tip is subsequently corroborated in the field with information related to the suspected criminal activity, its content may contribute to a finding of probable cause. (Kershaw, supra, 147 Cal.App.3d at p. 759.)
Applying our independent review, we conclude that Venikov adequately corroborated the information he obtained from citizen tips. He recognized Broderick's picture in the police database from his past contacts at the Inn; he matched Broderick's name and nickname from the citizen tips to that in the database; he engaged in the text message exchange with Broderick, in which Broderick implicitly agreed to meet him at the Denny's to sell him methamphetamine; and he observed Broderick riding his bicycle in the direction of the Denny's at the agreed-upon time. Some of the facts that Venikov confirmed were merely "pedestrian," such as Broderick's name and appearance, but the text message exchange and Broderick's ride toward the Denny's were specific to the reported criminal narcotics sales. And although Broderick turned around before arriving at the meeting location for the anticipated sale, there was enough information from which Venikov could have formed an "honest and strong" belief that Broderick possessed and/or was transporting methamphetamine for sale. He could lawfully rely on that probable cause to search Broderick for evidence of the suspected crimes.
At oral argument, Broderick's counsel argued that no evidence adduced at the suppression hearing supported a finding that Broderick rode his bicycle toward the meeting location around the time of the text message exchange, rather than at some other undetermined point in time. Not only did Broderick fail to raise this argument in his opening brief, but he also wrote there that "Venikov saw [Broderick] leave the . . . Inn around the time he was sending text messages to the number." Although Venikov did not testify to a specific meeting time at the suppression hearing, he answered affirmatively when asked whether he had "arrange[d] to meet with Mr. Broderick at a general time and location," and, after doing so, Venikov drove to the Inn, where he observed Broderick ride his bicycle from the Inn toward the meeting location. In context, Venikov's testimony established that Broderick departed the Inn so as to arrive at the Denny's at the agreed-upon time.
D. Consent to Search
Because Venikov had probable cause to search Broderick, we need not decide whether he voluntarily consented to the search. (People v. McKay (2002) 27 Cal.4th 601, 607.) Nor need we consider whether his counsel was ineffective for failing to argue the point.
II. Entrapment Defense
Broderick next argues that the trial court should have instructed the jury on entrapment, as he requested, because of Venikov's persistent text messaging and because his offer to pay $100 for an 8 ball of methamphetamine would have been unusually attractive to someone who, like Broderick, suffered from methamphetamine addiction.
A. Background
Screenshots of the text message exchange between Venikov and Broderick were admitted at trial. On April 29, 2020 at 9:01 p.m., Venikov wrote to Broderick, "Ay what's good cowboy. What u doing rn [right now]," then a second message, "I'm tryna score sum. . ." At 9:03 p.m., Broderick responded, "Who this?" At 9:08 p.m., Venikov replied, "Ay it's smoke," and "Frum the bar," and then at 9:14 p.m., "If u ain't up right now all good," and "Let me know bro." Broderick did not respond.
The next afternoon, Venikov wrote again: "Ay sup u mobile? Lemme get some?" He followed up an hour later, "I got a bill rn n I need it." Shortly after, Broderick wrote, "Come by." Venikov responded, "Coo good for a ball?" to which Broderick replied, "Come on by." Venikov then wrote, "Aight" and "Uber gonna dropped me off in like 10 min." About 20 minutes later, Venikov wrote again, "ay damn Uber dropped me off at Denny's .. can u swing by bro?" followed by, "I ain't tryna waste more cash on the Uber .." Broderick responded "Ok." Venikov wrote, "Coo" and "How long bro?" Broderick replied, "10 min," and Venikov responded, "Aight." Venikov then wrote, "I got 3 bills [t]a spend bro," and "Bring sum extra," followed several minutes later by "Wya [where you at] bro?" Broderick responded, "Dennys." Venikov wrote, "What?" then, "What car?" and "Where?" and "I'm inside." Broderick did not respond.
"Smoke" was a nickname Venikov used when acting undercover, a "bill" meant $100, and "score sum" meant he wanted to buy narcotics. Broderick received the text message asking for more methamphetamine after he had left the Inn.
Before the close of testimony, Broderick's counsel requested the jury be instructed on the defense of entrapment. The trial court found no evidence that Broderick was badgered and the offer of $300 could not have influenced him to sell to Venikov because he did not see it until he had already left. It denied the request.
B. Right to Instruction
A trial court must instruct on a defense if substantial evidence supports it and it is not inconsistent with the defendant's theory of the case. (People v. Montoya (1994) 7 Cal.4th 1027, 1047.) We review the trial court's ruling de novo. (People v. Manriquez (2005) 37 Cal.4th 547, 581.)
"[T]he proper test of entrapment in California is . . .: was the conduct of the law enforcement agent likely to induce a normally law-abiding person to commit the offense? For the purposes of this test, we presume that such a person would normally resist the temptation to commit a crime presented by the simple opportunity to act unlawfully. Official conduct that does no more than offer that opportunity to the suspect-for example, a decoy program-is therefore permissible; but it is impermissible for the police or their agents to pressure the suspect by overbearing conduct such as badgering, cajoling, importuning, or other affirmative acts likely to induce a normally law-abiding person to commit the crime." (People v. Barraza (1979) 23 Cal.3d 675, 689690, fn. omitted (Barraza).) "[A]ffirmative police conduct that would make commission of the crime unusually attractive to a normally law-abiding person will . . . constitute entrapment. Such conduct would include, for example, . . . an offer of exorbitant consideration ...." (Id. at p. 690.) Our analysis "focuses on the police conduct and is objective." (People v. Watson (2000) 22 Cal.4th 220, 223.)
Here, Broderick argues that Venikov entrapped him with his persistent and overbearing text messages, relying primarily on Barraza. There, "an overzealous law enforcement agent . . . importuned [the defendant, Barraza,] relentlessly until his resistance was worn down and overcome." (Barraza, supra, 23 Cal.3d at p. 691.) But in that case, the undercover officer called Barraza repeatedly at his workplace, asking to purchase heroin. (Id. at p. 680.) Barraza, fearful that he might lose his job because of the calls, asked the undercover officer to meet him in person, at which point, he testified, the officer spent more than an hour convincing him to sell heroin before he finally relented. (Id. at pp. 680-681.) The two short bursts of text messages here simply do not rise to that level of intensity. (Cf. People v. Allison (1981) 120 Cal.App.3d 264, 269-271, 275 [entrapment defense based on police informant's calling of defendant three to four times a day, then at least fifteen times on the day of the narcotics sale, attempting to induce defendant to help him financially by facilitating the sale so that he would not lose his home or business].)
Broderick also contrasts People v. Fromuth, where an undercover officer posing as a minor ended an online conversation with the defendant, but the defendant reinitiated contact later the same day and asked the officer about having sex with him. (People v. Fromuth (2016) 2 Cal.App.5th 91, 9798, 112 (Fromuth).) Broderick notes that here, unlike in Fromuth, Venikov reinitiated contact the day after Broderick ceased responding. But the reinitiation of contact by the defendant, rather than by law enforcement, is not essential to showing that the defendant was not entrapped. The appropriate inquiry focuses on law enforcement's conduct, which, here, was not more overbearing or more intrusive than one might expect from a person genuinely seeking to purchase methamphetamine. In fact, Venikov's text messages were many fewer, less detailed, and less involved than the extended discussions at issue in Fromuth. (Id. at pp. 96-98.)
Indeed, we agree with the Attorney General that "Venikov's text messages constituted a standard undercover ruse." Even though Venikov sent six text messages the first day, with only a single responsive message from Broderick, the trial court reasoned that Venikov relieved the pressure of his communications by essentially telling Broderick not to worry about it if he was not available. And on the second day, Broderick agreed to meet Venikov after just two messages, saying (somewhat noncommittally), "Come by." This amounted to no more than providing Broderick an opportunity to act unlawfully, which does not constitute entrapment. (Fromuth, supra, 2 Cal.App.5th at p. 99.)
Broderick urges us to consider his status as a methamphetamine addict as a relevant circumstance, including because the potential profit would make the prospect of a sale unusually attractive to him. He points out that, since he purchased the 8 ball of methamphetamine for $80, he could make a "significant" $20 profit by selling it to Venikov for $100. But under Barraza, the defense of entrapment rests solely on an objective evaluation of police conduct, not the defendant's subjective characteristics. (Barraza, supra, 23 Cal.3d at pp. 688-690.) Barraza reviewed a series of cases setting forth the policy rationale for the objective test-that the entrapment defense has been judicially crafted to deter impermissible police conduct, irrespective of any of the defendant's subjective motivations. (Barraza, at pp. 686-687; see also id. at p. 687 [" 'Human nature is weak enough, . . . and sufficiently beset by temptations without government adding to them and generating crime' "].) And while certain "circumstances of the case" may factor into our analysis- including "the transactions preceding the offense, the suspect's response to the inducements of the officer, the gravity of the crime, and the difficulty in detecting instances of its commission"-"under this test such matters as the character of the suspect, his predisposition to commit the offense, and his subjective intent are irrelevant." (Barraza, at pp. 690-691.) Broderick has not shown that recent statutory changes giving more weight to a defendant's mental health condition in certain contexts, none of which apply here, should alter the test for entrapment.
We agree with the trial court that Venikov's later offer to pay Broderick $300 for "sum extra" methamphetamine could not be deemed an operative promise of exorbitant consideration because-as Broderick acknowledges on appeal-Broderick did not receive it until he was already heading toward the Denny's.
Finally, we note that application of the entrapment doctrine here would be inconsistent with Broderick's defense that he did not actually intend to sell methamphetamine to Venikov. Broderick testified that the text messages and odd language made him curious about who was texting him, which is why he rode his bicycle in the direction of Denny's, turned around before he reached the restaurant, and then upon his return to the overpass, with its improved visibility, looked to see who might appear there. He did not so much as hint that he felt importuned or badgered. While, of course, Broderick's subjective response to Venikov's overtures does not answer the objective inquiry, one would expect him at least to have felt some pressure if Venikov's communications were truly overbearing. (See Barraza, supra, 23 Cal.3d at p. 690 [defendant's response to law enforcement's actions may be a relevant circumstance].) The trial court did not err in finding that no substantial evidence would support an entrapment defense here.
III. Instructional Error
Broderick challenges his conviction on a final ground-that the trial court improperly instructed the jury as to the order in which they were to deliberate, in violation of People v. Kurtzman (1988) 46 Cal.3d 322 (Kurtzman). "Notwithstanding [Broderick's] failure to object below, we will consider [his] claim" of instructional error because it affects his substantial rights. (People v. Olivas (2016) 248 Cal.App.4th 758, 772 (Olivas).)
A. Background
At the conclusion of witness testimony, the court instructed the jury: "If all of you [the jury] find that the defendant is not guilty of a greater charged crime, you may find him guilty of a lesser crime if you are convinced beyond a reasonable doubt that the defendant is guilty of that lesser crime," and continued, "it is up to you to decide the order in which you consider each crime and the relevant evidence, but I can accept a guilty verdict of a lesser crime only if you have found the defendant not guilty of the corresponding greater crime. [¶] For any count in which a lesser crime is charged, you will receive verdict forms of guilty and not guilty for the greater crime and also verdict forms of guilty and not guilty for the lesser crime. [¶] So this is super complicated. I'm going to turn away from the instructions and just do it again. [¶] Count 1 is the one that has a lesser crime. Only if you find the defendant not guilty of Count 1 can you look to the lesser crime and then you make a choice of guilty or not guilty as to the lesser crime." The court then went on to explain the details of filling out the verdict forms. The jury also received written instructions that reflected the standard language the court relied on.
In closing argument the prosecutor explained, "Now, the lesser included.... This is the worst instruction because it's written in the most confusing way possible. [¶] So how I like to describe it: Count 1 is possession for sale. You guys are sitting in deliberations.... You think to yourself, 'I don't know if we got the intent to sell here. I don't know if we've got this.' And as a unanimous jury you think, 'we don't have it. Not guilty for possession for sale.' [¶] Your next step is thinking, 'Okay. Is he guilty of possessing the methamphetamine?' Simple possession, . . . Section 11377. That, we have. He admitted to it. He admitted to having the meth. They caught it on him. That has already been proven. [¶] But if you decide there's not enough for sales, you can move on to the next charge, simple possession. But you don't get to simple possession until you've decided on possession for sale."
After roughly an hour, the jury returned a verdict, with the court remarking, "this was super confusing." The verdict forms seemed to indicate that the jury found Broderick guilty of the lesser included offense of simple possession. But after discussion, the jury foreperson explained that he believed the jury filled out the wrong form. The court asked the jury to try again to fill out the forms correctly.
After further deliberation, the jury sent the court three notes. The first said, "Does this book [of verdict forms] reflect guilty on both/all major charges? [¶] Our intent is to have verdict of guilty on all charges. We believe we completed the book correctly. What have we done incorrectly?" The second read, "If jury wants to vote guilty on both major charges, do we sign guilty on #11378 + #11379 but leave blank #11377 - OR - Do you expect us to sign not guilty for #11377. [¶] We believe we have complied with these instructions, can you please [sic]." Given the jury's expressed intention, the court confirmed that the jury should sign guilty for the violations of sections 11378 and 11379 and leave blank the form for section 11377, simple possession.
The third note similarly read: "Do we need a verdict on all 3 counts? Or do we leave 11377 blank since we found 11378 guilty? We understood that we leave the lesser charge blank if we find the greater charge guilty. Did we misunderstand?" The court reiterated that the jury should not return a verdict on all three potential crimes, but rather that if the jury found Broderick guilty of violating section 11378, it should leave blank the verdict form for section 11377.
When the jury completed the verdict forms, finding Broderick guilty of both the section 11378 and 11379 crimes, the court remarked, "I know the lesser included offense makes things so complicated."
B. Standard of Review
" 'No judgment shall be set aside, or new trial granted, in any cause, on the ground of misdirection of the jury, . . . unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in miscarriage of justice.'" (Olivas, supra, 248 Cal.App.4th at p. 772.) "Our high court has not provided definitive guidance on the standard of review applicable when deciding whether a trial court has misdirected a jury, but it appears we are to review instructional error arguments de novo. And if the challenged instruction is ambiguous, we are to independently review whether there is a 'reasonable likelihood that the jury construed or applied the challenged instructions in a manner' contrary to law." (Ibid.) "[E]ven if a trial court misdirects a jury, the miscarriage of justice test 'is not met unless it appears "reasonably probable" the defendant would have achieved a more favorable result had the error not occurred.'" (Id. at p. 773.)
Because we ultimately conclude that any error was harmless, this case does not require a "definitive" resolution of the correct standard for evaluating whether the error occurred in the first place.
C. The Instruction
Kurtzman error occurs when a jury is instructed that it may not even consider a lesser included offense before conclusively finding defendant not guilty of the corresponding greater offense. (Kurtzman, supra, 46 Cal.3d at pp. 329-331.) According to Kurtzman, a jury should have the freedom to deliberate on lesser and greater charges in whatever order they see fit, but are constrained only by the rule that they must formally return a verdict of not guilty on a greater offense before they may return a verdict of guilty on the lesser include offense. (Id. at p. 330.)
Here, the combination of instructions and argument was at least ambiguous on the Kurtzman issue. (See People v. Perez (1989) 212 Cal.App.3d 395, 398-400 (Perez).) The court first admonished the jury, consistent with the standard instruction, that they could deliberate on the lesser and greater offenses in whatever order they wished. Then, however, the trial court essentially went off script, stating that it was "going to turn away from the instructions and just do it again." The jury could have interpreted this statement as a direction from the court to disregard the instructions it had just provided-in the two preceding sentences it addressed both the order of deliberations and the process for completing the verdict forms. Then, in its restatement of the instructions, the court said, "Only if you find the defendant not guilty of Count 1 can you look to the lesser crime." The jury could reasonably understand that as an instruction not to consider the lesser crime unless it found Broderick not guilty of the greater crime.
In closing argument, the prosecutor similarly muddled the issues of how to complete the verdict forms and the order of deliberations. The prosecutor commented on how confusing the instruction was, and then implied that the jury should deliberate until it concluded that Broderick was not guilty of possession for sale, and then the next step was to consider the lesser crime of simple possession. The prosecutor underscored this implication by stating, again ambiguously, "But if you decide there's not enough for sales, you can move on to the next charge, simple possession. But you don't get to simple possession until you've decided on possession for sale." The Attorney General urges that, in context, it was clear that both the trial court and the prosecutor were referring only to the process for completing verdict forms when they made these statements, but that context is not unequivocally conveyed by the record.
When compounded by the prosecutor's statements, we find at least arguable Kurtzman error occurred here.
D. Prejudice
On this record, any error was harmless. (See Perez, supra, 212 Cal.App.3d at p. 400.) It does not appear that the jury thought this was a close case. The jury deliberated for only an hour before returning verdicts. After the court reviewed the verdict forms, it discussed them with the jury. The jury foreperson explained the jury's intent-to find Broderick guilty of the greater possession-for-sale offense pursuant to section 11378, rather than the lesser section 11377 offense, and guilty of violating section 11379. The court directed the jury to return to the jury room to correct the forms to reflect their stated intention.
Soon after retiring to the jury room, the jury sent out three notes, all of which reiterated their conclusion that Broderick was guilty of the greater offense rather than the lesser, and asked the court for further guidance as to how to fill out the forms to express this intention. Afterward, the jury returned their final verdicts, in which-consistent with each prior indication of their intention-they found Broderick guilty of the greater offense. Without apparent hesitation, the jury concluded that Broderick was guilty of the greater offense of possession for sale, rather than the lesser offense.
In addition, although the court and prosecutor remarked that the process of filling out the forms was confusing, and the jury struggled with doing so, none of the jury notes conveyed confusion as to the order of deliberations. (See Kurtzman, supra, 46 Cal.3d at p. 335 [considering jury notes in evaluation of prejudice]; Olivas, supra, 248 Cal.App.4th at p. 776 [same]; Perez, supra, 212 Cal.App.3d at p. 400 [same].) The trial court properly instructed the jury, both orally and in writing, that it could consider the offenses in any order they wished, and the record contained ample- although not uncontroverted-evidence that supported the verdict. Broderick has identified no other indicia that the arguable Kurtzman error affected the outcome. There was no reasonable probability that, absent the ambiguous instructions, the outcome would be different.
DISPOSITION
The judgment is affirmed.
WE CONCUR: BROWN, P. J. DOUGLAS, J. [*]
[*] Judge of the Superior Court of Contra Costa County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.