Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, No. 06WF1182, Dan McNerney, Judge.
Maureen J. Shanahan, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Pamela Ratner Sobeck and David Delgado-Rucci, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
IKOLA, J.
Defendant Barbara Copeland challenges her conviction for possession of methamphetamine for sale and transportation of methamphetamine. She contends the identity of a confidential informant (CI) should have been disclosed. She further contends the court wrongly sustained a hearsay objection and wrongly instructed the jury about the required union of act and knowledge.
We affirm. The CI’s identity was immaterial, the objected-to question called for inadmissible hearsay, and the court correctly instructed the jury that the charged offenses require defendant’s knowledge of the methamphetamine’s presence and its illegal character.
FACTS
Defendant was driving when a Cypress Police Department officer pulled her over. Defendant was unusually nervous. She stuttered, her hands shook, and she constantly looked around. She consented to the officer searching her; he found $580 in small bills in her pocket. Defendant consented to a search of her car. The officer noticed the panel inside the driver’s door was loose and had holes in it. He manipulated the door panel, and a plastic baggie fell out. The officer removed the panel and found a larger baggie containing 13 grams of methamphetamine. The officer also found a notebook on the passenger seat that contained lists of numbers, names, and words including “bags,” and “dope.”
The District Attorney filed an information charging defendant with one count each of possession of methamphetamine for sale (Health & Saf. Code, § 11378) and transportation of methamphetamine (Health & Saf. Code, § 11379, subd. (a)). The information alleged defendant had suffered a prior conviction for possession of a controlled substance. (Health & Saf. Code, § 11370.2, subd. (c).)
At trial, defense counsel asked the officer whether he suspected defendant was involved in drugs before he pulled her over. The prosecutor asked to approach the bench. The prosecutor told the court that a CI told the officer that defendant would have drugs in her car. Defense counsel moved to disclose the CI’s identity on the ground it was relevant to a defense theory: defendant’s car had been stolen and recovered from Santiago Canyon a couple of weeks before the arrest; the CI may have placed the drugs in the car during this time, unbeknownst to defendant. Court adjourned to give the parties time to brief the issue. The court found the defense made a preliminary showing of materiality, and held an in camera hearing to hear the officer testify about the CI. The court concluded on the record that the CI’s identity was immaterial, and denied the motion.
Defense counsel examined the officer about the baggie that fell out of the door. He asked the officer, “Now, after the object fell out of the door panel, you asked Ms. Copeland why she had that item in the car; is that right?” The officer answered, “Yes.” Defense counsel then asked, “Now, Ms. Copeland asked you ‘Why? What is that?’” The prosecution objected on the ground of hearsay. Defense counsel argued defendant’s statement was not offered for the truth of the matter. He continued, “I think her question ‘Why? What is that?’ simply is a question demonstrating she deni[ed] hav[ing] any knowledge. It goes to state of mind. It’s not a question of the truth of the matter asserted. It’s just not a question in that framework.” The court sustained the objection.
The jury found defendant guilty of both counts. Defendant admitted the prior conviction allegation. The court stayed sentencing on count 1 (Pen. Code, § 654), imposed the two-year low term on count two, and further imposed a consecutive three-year term for the prior conviction enhancement.
DISCUSSION
No Error Occurred in Withholding the CI’s Identity
Defendant claims the CI’s identity should have been disclosed because the CI may have placed the methamphetamine in her car. She contends the prosecution should have disclosed the identity before trial to comply with its duty to disclose material exculpatory evidence. (Brady v. Maryland (1963) 373 U.S. 83, 87 (Brady).) She further contends the court should have disclosed the identity after the in camera hearing because the CI was a material witness on the issue of guilt. (Evid. Code, §§ 1041, 1042.)
All further statutory references are to the Evidence Code.
We recount the prosecution’s Brady obligation. “As articulated by the United States Supreme Court in Brady . . ., the prosecution has a sua sponte obligation, pursuant to the due process clause of the United States Constitution, to disclose to the defense information within its custody or control which is material to, and exculpatory of, the defendant.” (People v. Bohannon (2000) 82 Cal.App.4th 798, 804, disapproved on another issue in People v. Zambrano (2007) 41 Cal.4th 1082, 1135, fn. 13.) “To merit relief on this ground, the evidence a prosecutor failed to disclose must have been both favorable to the defendant and material on either guilt or punishment. Evidence would have been favorable if it would have helped the defendant or hurt the prosecution, as by impeaching one of its witnesses. Evidence would have been material only if there is a reasonable probability that, had it been disclosed to the defense, the result would have been different.” (People v. Dickey (2005) 35 Cal.4th 884, 907-908 (Dickey).)
We turn to the Evidence Code. The prosecution has a privilege against disclosing a CI’s identity. (§ 1041.) Nonetheless, “the prosecution must disclose the name of an informant who is a material witness in a criminal case or suffer dismissal of the charges against the defendant.” (People v. Lawley (2002) 27 Cal.4th 102, 159.) “When, in any such criminal proceeding, a party demands disclosure of the identity of the informant on the ground the informant is a material witness on the issue of guilt, the court shall conduct a hearing at which all parties may present evidence on the issue of disclosure.” (§ 1042, subd. (d).) If the prosecution asserts the privilege against disclosing the identity, the court shall hold the hearing in camera, without the presence of the defendant or defense counsel. (Ibid.) The court “shall not order disclosure . . . unless . . . the court concludes that there is a reasonable possibility that nondisclosure might deprive the defendant of a fair trial.” (Ibid.)
“‘Evidence adduced at an in camera hearing can potentially establish that there was no reasonable possibility that a particular percipient eyewitness-informer could give evidence on the issue of guilt which might result in a defendant’s exoneration. [Citation.] In such a situation, the witness would not be material under the test for materiality established by the California Supreme Court.’ [Citation.] Stated another way, if evidence presented at the in camera hearing in this case established no reasonable possibility the CI could give evidence favorable to defendant, there was no requirement to disclose the CI’s identity because there would be no reasonable possibility that nondisclosure might deprive the defendant of a fair trial.” (People v. Ruiz (1992) 9 Cal.App.4th 1485, 1488 (Ruiz).)
Thus, the disclosure of the CI’s identity on either ground asserted by defendant — Brady or section 1042 — turns on materiality. The issue is whether a reasonable probability exists that disclosure of the CI’s identity would lead to evidence exonerating the defendant. (Dickey, supra, 35 Cal.4th at pp. 907-908; Ruiz, supra, 9 Cal.App.4th at p. 1489.) We have reviewed the sealed transcript of the in camera hearing. (Ruiz, supra, 9 Cal.App.4th at p. 1489; see also People v. Fried (1989) 214 Cal.App.3d 1309, 1314.) Nothing there supports defendant’s theory that the CI might have placed the methamphetamine in her car. No reasonable probability exists that defendant would have fared differently at trial had the CI’s identity been disclosed to the defense. (Dickey, supra, 35 Cal.4th at pp. 907-908; Ruiz, supra, 9 Cal.App.4th at p. 1489.) Thus, the prosecution had no Brady duty to disclose the CI’s identity, and the court correctly denied defendant’s motion to disclose it. (Dickey, supra, 35 Cal.4th at pp. 907-908; § 1042, subd. (d).)
The Court Properly Excluded Defendant’s Hearsay Statement to the Officer
The court sustained a hearsay objection when defense counsel asked the officer whether defendant had told him “Why? What is that?” with regard to the fallen baggie of methamphetamine. For a statement to survive a hearsay objection, the party offering the statement must either show the statement is not hearsay (People v. Fauber (1992) 2 Cal.4th 792, 854) or “alert the court to the exception relied upon and [lay] the proper foundation.” (People v. Livaditis (1992) 2 Cal.4th 759, 778.) We understand defense counsel to have contended both that defendant’s statement was nonhearsay (i.e., not offered to prove the truth of the matter asserted) and, in the alternative, it was hearsay admissible pursuant to the state of mind exception. Defendant asserts both contentions on appeal.
Contrary to the first claim, defendant’s statement was hearsay. Hearsay is a “statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated.” (§ 1200, subd. (a).) Defendant’s question, “Why? What is that?” is an implied statement denying knowledge of the baggies’ contents, offered to prove the truth of the matter asserted: “I, defendant, do not know what is in that bag.” If it were not an implied statement of the defendant’s knowledge or lack thereof, the statement would be utterly irrelevant.
And contrary to the second claim, the statement would not be admissible pursuant to the state of mind hearsay exception. That exception is subject to a trustworthiness qualification: “Evidence of a statement is inadmissible under this article if the statement was made under circumstances such as to indicate its lack of trustworthiness.” (§ 1252.) Accordingly, “‘[a] defendant in a criminal case may not introduce hearsay evidence for the purpose of testifying while avoiding cross-examination.’ [Citation.] . . . . To be admissible under Evidence Code section 1252, statements must be made in a natural manner, and not under circumstances of suspicion, so that they carry the probability of trustworthiness. Such declarations are admissible only when they are ‘“made at a time when there was no motive to deceive.”’” (People v. Edwards (1991) 54 Cal.3d 787, 820 (Edwards).)
Section 1250, subdivision (a), provides, “Subject to Section 1252, evidence of a statement of the declarant’s then existing state of mind, emotion, or physical sensation (including a statement of intent, plan, motive, design, mental feeling, pain, or bodily health) is not made inadmissible by the hearsay rule when: [¶] (1) The evidence is offered to prove the declarant’s state of mind, emotion, or physical sensation at that time or at any other time when it is itself an issue in the action; or [¶] (2) The evidence is offered to prove or explain acts or conduct of the declarant.” “Typical statements considered of a state of mind include belief and knowledge.” (People v. Cox (2003) 30 Cal.4th 916, 959.)
Defendant made the statement under circumstances far from trustworthy — the officer just saw a bag of methamphetamine fall from her car. Defendant “had a compelling motive to deceive and seek to exonerate [herself] from, or at least to minimize [her] responsibility for,” possessing the drugs. (Edwards, supra, 54 Cal.3d at p. 820.) “There was ‘ample ground to suspect defendant’s motives and sincerity’ when [she] made the statements. [Citation.] The need for cross-examination is especially strong in this situation, and fully warrants exclusion of the hearsay evidence.” (Ibid.)
Any error in excluding the statement was harmless and, contrary to defendant’s final claim, did not impermissibly infringe on her constitutional right to present a defense. “As a general matter, the ‘[a]pplication of the ordinary rules of evidence . . . does not impermissibly infringe on a defendant’s right to present a defense.’ [Citations.] Although completely excluding evidence of an accused’s defense theoretically could rise to this level, excluding defense evidence on a minor or subsidiary point does not impair an accused’s due process right to present a defense. [Citation.] If the trial court misstepped, ‘[t]he trial court’s ruling was an error of law merely; there was no refusal to allow [defendant] to present a defense, but only a rejection of some evidence concerning the defense.’ [Citation.] Accordingly, the proper standard of review is that announced in People v. Watson (1956) 46 Cal.2d 818, 836 [(Watson)], and not the stricter beyond-a-reasonable-doubt standard reserved for errors of constitutional dimension.” (People v. Fudge (1994) 7 Cal.4th 1075, 1102-1103.)
The court admitted other evidence that supported her “drugs left in stolen car” defense. The jury heard testimony from defendant’s friend that he helped her retrieve the car from Santiago Canyon. And in light of the evidence against defendant — her nervousness, the large amount of cash in small bills, the two baggies of methamphetamine, the notebook with drug sale references — no reasonable probability existed that defendant would have obtained a different result had the court admitted her statement to the police. (People v. Fudge, supra, 7 Cal.4th at pp. 1102-1103; see also Watson, supra, 46 Cal.2d at p. 836.)
The Court Properly Instructed the Jury on the Requisite Mental States
The court instructed the jury pursuant to Judicial Council of California Criminal Jury Instructions (2006-2007), CALCRIM No. 252, instructing them, “Every crime charged in this case requires proof of the union, or joint operation, of act and wrongful intent.” It further instructed the jury that possession of a controlled substance for the purpose of sale is a specific intent crime that requires that defendant commit the act intentionally and with a specific intent, whereas transportation of a controlled substance is a general intent crime. According to its use notes, CALCRIM No. 252 is appropriate when a defendant is charged with at least one general intent crime and one crime requiring either specific intent or a specific mental state. (Bench Notes to CALCRIM No. 252 (2007-2008).)
The court gave a modified version of CALCRIM No. 252, instructing the jury, “Every crime charged in this case requires proof of the union, or joint operation, of act and wrongful intent. [¶] Transportation of methamphetamine as charged in count 2 requires general criminal intent. To be guilty of this offense, a person must not only commit the prohibited act but must do so intentionally or on purpose. . . . The act required is explained in the instruction for each crime. [¶] Possession of methamphetamine for purpose of sale requires a specific intent. To be guilty of this offense, a person must not only intentionally commit the prohibited act but must do with a specific intent. The act and the specific intent required are explained in the instruction for each crime.”
Defendant contends the court erred by failing to instruct pursuant to CALCRIM No. 251. According to its bench notes, this instruction is appropriate when a defendant is charged with offenses requiring any specific mental state (such as knowledge), regardless of whether they require a general or specific intent. (Bench Notes to CALCRIM No. 251 (2007-2008).) Defendant notes each charged offense in this case requires her knowledge of the methamphetamine’s presence and illegal character. (People v. Meza (1995) 38 Cal.App.4th 1741, 1745-1746 (Meza) [unlawful possession of a controlled substance for sale and transportation of a controlled substance each require the defendant’s knowledge of the controlled substance’s “presence and illegal character”].) Defendant did not argue for CALCRIM No. 251 at trial, but the court has a duty to instruct sua sponte on the union of act and specific intent or mental state. (People v. Alvarez (1996) 14 Cal.4th 155, 220 (Alvarez).)
An instruction pursuant to CALCRIM No. 251, modified to fit the facts of this case, would provide: Every crime charged in this case requires proof of the union, or joint operation, of act and wrongful intent.
“In reviewing a claim of error in jury instructions in a criminal case, this court must first consider the jury instructions as a whole to determine whether error has been committed. [Citations.] We may not judge a single jury instruction in artificial isolation, but must view it in the context of the charge and the entire trial record. [Citation.] An appellate court cannot set aside a judgment on the basis of instructional error unless, after an examination of the entire record, the court concludes that the error has resulted in a miscarriage of justice. [Citation.] A miscarriage of justice occurs only when it is reasonably probable that the jury would have reached a result more favorable to the appellant absent the error.” (People v. Moore (1996) 44 Cal.App.4th 1323, 1330-1331 (Moore).)
Despite CALCRIM’s potentially confusing bench notes, we see no error on the court’s part, and any error would be harmless. The court properly instructed the jury that “Every crime charged in this case requires proof of the union, or joint operation, of act and wrongful intent.” It correctly instructed the jury on the substantive elements of possession of a controlled substance for the purpose of sale, including “The defendant knew of [the controlled substance’s] presence” and “knew of the substance’s nature or character as a controlled substance.” (CALCRIM No. 2302; accord Meza, supra, 38 Cal.App.4th at pp. 1745-1746.) Similarly, it correctly instructed the jury on the substantive elements of transportation of a controlled substance, including “The defendant knew of [the controlled substance’s] presence” and “knew of the substance’s nature or character as a controlled substance.” (CALCRIM No. 2300; accord Meza, supra, 38 Cal.App.4th at p. 1746.) No reasonable probability exists the jury misconstrued these instructions and found defendant guilty without finding the requisite union of act, intent, and knowledge. (Moore, supra, 44 Cal.App.4th at pp. 1330-1331; Alvarez, supra, 14 Cal.4th at p. 220 [harmless error to omit murder from instruction on offenses requiring union of act and specific intent, as the “instruction on murder substantially covered the concurrence of act and ‘specific intent’”].)
DISPOSITION
The judgment is affirmed.
WE CONCUR: SILLS, P. J., FYBEL, J.
For you to find a person guilty of the crimes charged in Count 1 and 2, that person must not only intentionally commit the prohibited act, but must do so with a specific intent and/or specific mental state. The act and the specific mental state required are explained in the instruction for those crimes. The specific intent required for the crime of possession of a controlled substance for the purpose of sale is the intent to sell the controlled substance.
The specific mental state required for the crime of possession of a controlled substance for the purpose of sale is the defendant’s knowledge of the controlled substance’s presence and its nature or character as a controlled substance. The specific mental state required for the crime of transportation of a controlled substance is the defendant’s knowledge of the controlled substance’s presence and its nature or character as a controlled substance.