Opinion
B163775.
10-14-2003
THE PEOPLE, Plaintiff and Respondent, v. DANNY EUGENE DAVIS, Defendant and Appellant.
Melissa J. Kim, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Marc E. Turchin, Supervising Deputy Attorney General, and Michael C. Keller, Deputy Attorney General, for Plaintiff and Respondent.
Danny Eugene Davis appeals the judgment entered after conviction by jury of possession of a controlled substance and transportation of a controlled substance. (Health & Saf. Code, §§ 11350, subd. (a), 11352, subd. (a).) We affirm the imposition of a second strike term of 12 years in state prison.
FACTUAL AND PROCEDURAL BACKGROUND
1. Prosecutions evidence.
On February 4, 2002, at approximately 9:30 p.m., Los Angeles Police Officer Nicholas Pikor saw Davis make an unsafe lane change at Columbus Avenue and Parthenia Street, an area known for narcotics activity and violent crime. Davis pulled to the curb when Pikor turned on the overhead lights and chirped the siren. After Davis stopped the car, he got out and began to walk from the vehicle but stopped when Pikor and his partner called to Davis. Davis produced a California identification card. A check revealed Davis had a revoked or suspended license and that he was on parole for driving a vehicle without the owners consent. Davis had $5,800 in cash and Pikor discovered 8.18 grams of rock cocaine when Davis reached toward his left rear pocket as Pikor handcuffed him. Davis did not appear to be under the influence of a controlled substance and had no smoking paraphernalia.
Los Angeles Police Officer Justin Mudgett opined Davis possessed the cocaine for the purpose of sale.
2. Sentencing considerations.
The jury found Davis not guilty of possession for sale of a controlled substance but convicted him of simple possession and transportation of a controlled substance. Davis admitted four prior prison terms and three prior convictions within the meaning of the Three Strikes law but the People agreed to dismiss two of them. The trial court sentenced Davis as a second strike offender to a term of 12 years in state prison.
CONTENTIONS
Davis contends the trial court erroneously instructed the jury on consciousness of guilt and there was insufficient evidence to support the conviction for transportation of a controlled substance.
DISCUSSION
1. The trial court committed no reversible instructional error.
Davis contends no evidence supported the trial courts instruction on flight after crime in the words of CALJIC No. 2.52 or efforts to suppress evidence in the words of CALJIC No. 2.06. (People v. Hannon (1977) 19 Cal.3d 588, 597-598.) As set out below, we disagree.
CALJIC No. 2.52 advised the jury, "The flight of a person immediately after the commission of a crime, or after he is accused of a crime, is not sufficient in itself to establish his guilt, but is a fact which, if proved, may be considered by you in the light of all other proved facts in deciding whether a defendant is guilty or not guilty. The weight to which the circumstance is entitled is a matter for [the jury] to decide."
a. CALJIC No. 2.52.
An instruction on flight is proper if the jury reasonably could infer the defendants flight reflected consciousness of guilt. (People v. Roybal (1998) 19 Cal.4th 481, 517; People v. Pensinger (1991) 52 Cal.3d 1210, 1245.) "[F]light requires neither the physical act of running nor the reaching of a far-away haven. [Citation.] Flight manifestly does require, however, a purpose to avoid being observed or arrested." (People v. Crandell (1988) 46 Cal.3d 833, 869.)
Davis claims the fact he took several steps toward the sidewalk after stopping his vehicle without acknowledging the presence of the officers is insufficient to support a flight instruction.
Daviss contention runs counter to the authority cited above. After Pikor effected a traffic stop of Davis car, Davis immediately began to walk from the officers. This conduct supports an inference Davis attempted to leave the area to avoid being apprehended in possession of eight grams of cocaine and a substantial amount of cash. "Alternative explanations for flight conduct go to the weight of the evidence, which is a matter for the jury, not the court, to decide." (People v. Rhodes (1989) 209 Cal.App.3d 1471, 1477.)
Because substantial evidence supports the flight instruction, no error appears.
b. CALJIC No. 2.06.
In order to instruct the jury that it may infer consciousness of guilt from a defendants effort to suppress evidence, "`there must be some evidence in the record which, if believed by the jury, will sufficiently support the suggested inference." (People v. Hart (1999) 20 Cal.4th 546, 620.) "[T]he record need not establish that the evidence actually was destroyed," and circumstantial evidence alone may provide sufficient support for the instruction. (Ibid.; see People v. Rodrigues (1994) 8 Cal.4th 1060, 1140; People v. Williams (1996) 46 Cal.App.4th 1767, 1780.)
Here, as Pikor handcuffed Davis, Davis reached for his left rear pocket. Pikor stopped Daviss hand, reached into the pocket and found cocaine. The trial court found this constituted "miniscule" evidence that Davis attempted to suppress evidence yet allowed the instruction because "an argument c[ould] be made under the facts . . . ."
Davis claims he may have moved his hand toward the pocket containing the drugs instinctively or in a nervous reaction but clearly did not reach for the drugs with the intent of disposing them in front of Pikor. Davis argues the instruction should not have been given because it can not reasonably be inferred that Davis was reaching for the drugs in order to discard them.
We disagree. The evidence supports the inference that Davis, knowing he was going to be transported to the police station, attempted to reach the cocaine in an effort to dispose of it. Thus, the evidence warranted an instruction on consciousness of guilt.
c. In any event, any conceivable error is harmless.
Davis contends these instructions require reversal because the prosecutor "honed-in" on the flight argument and read the entire instruction to the jury. Davis claims the jury likely would not have convicted him of transportation of a controlled substance had it not heard the objectionable instructions on consciousness of guilt.
Neither instruction caused Davis undue prejudice. The inference of guilt suggested by the instructions "is a permissive one," as the "jury is admonished that `such conduct is not sufficient by itself to prove guilt, and its weight and significance, if any, are matters for your determination." (People v. Rankin (1992) 9 Cal.App.4th 430, 436, italics omitted.) The cautionary nature of the instructions benefits the defense, admonishing the jury to circumspection regarding evidence that might otherwise be considered decisively inculpatory. (People v. Bolin (1998) 18 Cal.4th 297, 327.) "`[A]t worst, [even if] no evidence . . . support[s] the instruction[s, they are] superfluous[, and where, as here, the] evidence of the defendants guilt was strong[,] . . . reversal on such a minor, tangential point is not warranted." (People v. Jackson (1996) 13 Cal.4th 1164, 1225, quoting People v. Pride (1992) 3 Cal.4th 195, 249.)
Here, defense counsel conceded in closing argument that Davis possessed cocaine. Under these circumstances, we confidently conclude the consciousness of guilt instructions did not improperly contribute to Daviss conviction.
2. The evidence supports the conviction for transportation of a controlled substance.
Davis contends he may not be convicted of transportation of a controlled substance possessed for personal use. Davis concedes People v. Rogers (1971) 5 Cal.3d 129, held illegal transportation of a controlled substance does not require a specific intent to transport for the purpose of sale or distribution. Davis suggests Rogers should be reexamined because transportation of a controlled substance is punished more severely than simple possession or possession for sale and thus was intended to apply to individuals involved in the distribution of cocaine, not individuals who transport cocaine intended for personal use.
As Davis concedes, this claim was rejected in Rogers which held "[t]ransportation of a controlled substance is established by [simply] carrying or conveying a useable quantity of a controlled substance with knowledge of its presence and illegal character." (People v. Emmal (1998) 68 Cal.App.4th 1313, 1316.) As explained in Rogers, "the Legislature was entitled to assume that the potential for harm to others is generally greater when narcotics are being transported from place to place, rather than merely held at one location. The Legislature may have concluded that the potential for increased traffic in narcotics justified more severe penalties for transportation than for mere possession . . . . Moreover, a more severe penalty for those who transport drugs may have been deemed appropriate to inhibit the frequency of their own personal use and to restrict their access to sources of supply, or to deter the use of drugs in vehicles in order to reduce traffic hazards and accidents, as well as to deter occurrences of sales or distributions to others." (People v. Rogers, supra, at pp. 136-137, fn. omitted.) This court must follow Rogers. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Accordingly, we decline Daviss request to reexamine Rogers.
DISPOSITION
The judgment is affirmed.
We concur: KITCHING, J. and ALDRICH, J.
CALJIC No. 2.06 informed the jury: "If you find the defendant attempted to suppress evidence against himself in any manner, such as by attempting to dispose of the evidence after his arrest, this attempt may be considered by you as a circumstance tending to show a consciousness of guilt. However, this conduct would not be sufficient by itself to prove guilty, and its weight and significance, if an, are for you to decide.