Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. 05-070451-0
Retired judge of the Superior Court of Marin County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Defendant was convicted following a jury trial of unlawful transportation of methamphetamine (Health & Saf. Code, § 11379, subd. (a)) and possession of methamphetamine for sale (Health & Saf. Code, § 11378). He claims that the trial court gave an inadequate response to a jury question on the element of specific intent to sell methamphetamine. We find no error in the response or instructions given by the trial court, and affirm the judgment.
STATEMENT OF FACTS
At 3:25 a.m. on May 24, 2006, defendant was driving his white, old, “beat up” truck on Bancroft Road in Walnut Creek when he was detained by police officer Rick Baca. Defendant was alone in the vehicle. Officer Baca was advised by dispatch that the vehicle registration for the truck had expired, although the registration tag on the license plate was current.
Officer Baca approached defendant and explained the reason for the detention. The officer noticed that defendant was “fidgety,” his “face was sweaty,” and his speech was rapid, which were symptoms of “being under the influence of controlled substance.” Officer Baca asked defendant to step out of the vehicle so drug abuse recognition tests could be administered to him. After completion of the tests officer Baca arrested defendant for “having false registration tags on the vehicle and for being under the influence of controlled substance.”
Inside the truck the officer discovered, among other items, a black “Case Logic bag” under the driver’s seat. Inside the black bag were: 16 plastic baggies which had “white residue” in them, some powder, some crystal; 47 small unused plastic baggies; two baggies inside an Altoids tin which contained crystal methamphetamine in the amounts of 19.01 grams and 0.73 grams; a scale; two spoons; and a glass pipe. Defendant told the officer that he had used methamphetamine “the night before,” and was a “regular user.” Defendant’s blood sample taken that day tested “positive for methamphetamine/amphetamine.” No appreciable amount of money was found on defendant or in the truck. Nor did the officer find any “pay/owe” sheets.
Sergeant Steve Gorski of the Walnut Creek Police Department testified for the prosecution as an “expert in possession of methamphetamine for sale and usable amounts of methamphetamine.” When presented with a hypothetical which reflected the facts of the present case, Sergeant Gorski offered an opinion that the methamphetamine was “possessed for sale, that amount.” His opinion was based primarily on the large amount of methamphetamine possessed, a total of 19.74 grams, along with the possession of “a bunch of empty bags” which are used by dealers “to sell to multiple people,” and the “scale used to weigh out methamphetamine most likely.” Sergeant Gorski acknowledged that the pipe was indicative of “a user as well,” but testified that sellers “almost always” use methamphetamine. The lack of any “pay/owe sheets or money” in defendant’s possession did not alter Gorski’s opinion, as they are only found in “half” the cases of “someone that’s a dealer.” Sergeant Gorski was certain of his opinion that the methamphetamine was possessed for sale.
Sergeant Gorski explained that a typical single dose of methamphetamine is “one tenth of one gram,” so possession of nearly 20 grams is something on the order of 200 doses. He also testified that possession of a quantity of up to a “gram or two” may be for personal use, but even “five or six grams” is “possession for sale” in his experience.
James Courtney, a former methamphetamine addict and current drug counselor and drug rehabilitation program assessment worker, offered expert testimony for the defense. Courtney testified that “people who have a late-stage addiction or larger addiction will buy a larger quantity” of methamphetamine to avoid the necessity of making repetitive purchases on the streets. He also suggested that in his experience possession of the baggies with residue indicated “personal use,” as addicts often save the baggies to use when they “ran out of drugs.” When asked if possession of 19 to 20 grams of methamphetamine in the hypothetical circumstances of the present case was for sale or personal use, Courtney testified, “I believe it can go either way.” He quantified his opinion as “50/50.”
DISCUSSION
Defendant argues that the trial court erred by failing to provide an adequate response to a jury inquiry on the issue of the sufficiency and interpretation of circumstantial evidence of specific intent. The context of the jury inquiry was this. The court gave a standard CALJIC instruction on the sufficiency of circumstantial evidence to prove a defendant’s specific intent or mental state, No. 2.02, which includes in the second paragraph the admonition: “Also, if the evidence as to any specific intent and/or mental state permits two reasonable interpretations, one of which points to the existence of the specific intent and/or mental state and the other to its absence, you must adopt that interpretation which points to its absence.” (See People v. Rodrigues (1994) 8 Cal.4th 1060, 1141.) The court also read the CALJIC No. 2.00 and 2.01 instructions on the distinction between direct and circumstantial evidence and the sufficiency of circumstantial evidence in general, respectively. A written copy of these and the other instructions was supplied to the jury. During deliberations, the jury asked the court to clarify the timing of the specific intent element, specifically, whether intent to sell was “limited to that night on or about 5/24/06 or any future time?” The court replied that, “On the night in question, May 24, 2006, the Defendant must have had the specific intent to sell the methamphetamine he possessed, but there is no requirement that he actually make the sale on that night.” Shortly thereafter the jury requested a read-back of the testimony of defense expert James Courtney. The following day, the jury asked the court: “If two reasonable interpretations of the evidence exist[] regarding specific intent, [and] one interpretation is more likely than the other, should the more likely interpretation be adopted?” Defense counsel suggested that “no” was an appropriate answer to the question; the prosecutor proposed that the court re-read the standard CALJIC Nos. 2.01 and 2.02 instructions on circumstantial evidence. The court decided to re-read to the jury the second paragraph of the CALJIC No. 2.02 instruction.
In its entirety the CALJIC No. 2.02 instruction given to the jury was: “The specific intent or mental state with which an act is done may be shown by the circumstances surrounding the commission of the act. However, you may not find the defendant guilty of the charges in Counts I and II and the crime of simple possession which is a lesser crime to Count II unless the proved circumstances are not only consistent with the theory that the defendant had the required specific intent and/or mental state; but, second, cannot be reconciled with any other rational conclusion. [¶] Also, if the evidence as to any specific intent and/or mental state permits two reasonable interpretations, one of which points to the existence of the specific intent and/or mental state and the other to its absence, you must adopt that interpretation which points to its absence. [¶] If, on the other hand, one interpretation of the evidence as to the specific intent and/or mental state appears to you to be reasonable and the other interpretation to be unreasonable, you must accept the reasonable interpretation and reject the unreasonable.”
Defendant asserts that the “correct answer” to the jury question was “no.” He insists that the obvious focus of the inquiry was upon the two contrasting expert opinions on the intent associated with his possession of the methamphetamine: “one that the methamphetamine was for sale, and one that it was for personal use only.” Defendant suggests that the jury thought “both interpretations were reasonable,” but one was more likely than the other. The jurors’ assessment that the defense evidence on intent was “reasonable” is indicative of a “reasonable doubt of possession for sale,” claims defendant. Therefore, he maintains that a “simple and direct answer” of “no” to the question was necessary to assure that a conviction was based on the reasonable doubt standard rather than merely a preponderance of the evidence – that is, the more likely interpretation of the evidence. Defendant adds that the court’s response of re-reading a portion of the CALJIC No. 2.02 instruction “amounted to a refusal to answer the question.”
Before going further we note that defendant’s speculation concerning what discussion, thought process or inclination of the jury prompted the question is just that, speculation. His whole argument stands upon a rather precise claimed understanding of the jury’s mental process which simply is not available to us and was not available to the trial court. Apparently the defendant’s view is that the jury was not finding his preferred explanation of the circumstances as “likely” as another. However, we simply do not know what the jurors were thinking, and instructing a jury on the basis of speculation would be a dangerous practice at best. Speculation is not a proper basis for formulating jury instructions. (People v. Lewis (2001) 26 Cal.4th 334, 369; People v. Sakarias (2000) 22 Cal.4th 596, 620; People v. Marshall (1997) 15 Cal.4th 1, 40; People v. Wilson (1992) 3 Cal.4th 926, 942.) As we will discuss, in the circumstances known to the court, the instructions given and the court’s response to the question were quite correct.
We proceed by delineating the rule that when the jury sent out its question, the court was presented with the statutory obligation “to provide the jury with information the jury desires on points of law.” (People v. Smithey (1999) 20 Cal.4th 936, 985; see also People v. Waidla (2000) 22 Cal.4th 690, 746.) Under Penal Code “section 1138 the court must attempt ‘to clear up any instructional confusion expressed by the jury.’ [Citation.]” (People v. Giardino (2000) 82 Cal.App.4th 454, 465.) “This means the trial ‘court has a primary duty to help the jury understand the legal principles it is asked to apply. [Citation.] This does not mean the court must always elaborate on the standard instructions. Where the original instructions are themselves full and complete, the court has discretion under section 1138 to determine what additional explanations are sufficient to satisfy the jury’s request for information....’ [Citation.]” (People v. Solis (2001) 90 Cal.App.4th 1002, 1015, italics added; see also People v. Smithey, supra, at p. 985; People v. Davis (1995) 10 Cal.4th 463, 522.)
We must also look to the content of the trial court’s charge to determine the propriety of the instructions. “In considering a claim of instructional error we must first ascertain what the relevant law provides, and then determine what meaning the instruction given conveys. The test is whether there is a reasonable likelihood that the jury understood the instruction in a manner that violated the defendant’s rights.” (People v. Andrade (2000) 85 Cal.App.4th 579, 585; see also Sandstrom v. Montana (1979) 442 U.S. 510, 514; People v. Warren (1988) 45 Cal.3d 471, 487; People v. Smith (1992) 9 Cal.App.4th 196, 201.) “A court is required to instruct the jury on the points of law applicable to the case, and no particular form is required as long as the instructions are complete and correctly state the law.” (People v. Andrade, supra, at p. 585.) “When a claim is made that instructions are deficient, we must determine whether their meaning was objectionable as communicated to the jury. If the meaning of instructions as communicated to the jury was unobjectionable, the instructions cannot be deemed erroneous.” (People v. Dieguez (2001) 89 Cal.App.4th 266, 276; see also Estelle v. McGuire (1991) 502 U.S. 62, 70–75; People v. Kelly (1992) 1 Cal.4th 495, 525–526; People v. Fonseca (2003) 105 Cal.App.4th 543, 549.)
We begin our analysis by concluding that the trial court properly rejected defendant’s proffered response of “no” as an incorrect statement of law. Defendant’s proposed answer would have essentially advised the jurors not to adopt the most likely of two reasonable interpretations of the evidence. CALJIC No. 2.02, and the companion instructions on consideration of circumstantial evidence, CALJIC Nos. 2.00, 2.01, 8.83, and 8.83.1, all contain language “advising the jury that if faced with two possible interpretations of the evidence, one reasonable and one unreasonable, ‘you must accept the reasonable interpretation and reject the unreasonable.’ ” (People v. Snow (2003) 30 Cal.4th 43, 95.) These instructions “do not permit or require any particular ultimate fact to be inferred from any particular predicate fact; they simply direct the jury, in general, to choose a reasonable conclusion over an unreasonable one in evaluating circumstantial evidence.” (Ibid.) The law does not require jurors to discount a more likely reasonable interpretation of evidence in favor of a less likely one. The trial court had neither the obligation nor discretion to give an instruction that was legally incorrect or confusing to the jury. (People v. Armstead (2002) 102 Cal.App.4th 784, 792.) “It is axiomatic that the trial court is not required to give erroneous instructions.” (People v. Miller (1999) 69 Cal.App.4th 190, 211.)
“The Supreme Court noted in People v. Cole (2004) 33 Cal.4th 1158 [17 Cal.Rptr.3d 532, 95 P.3d 811]: ‘The general instruction on sufficiency of circumstantial evidence [CALJIC No. 2.01] is a more inclusive instruction on sufficiency of circumstantial evidence than [CALJIC No. 2.02] the instruction on sufficiency of circumstantial evidence to prove specific intent or mental state, and the former is the proper instruction to give unless the only element of the offense that rests substantially or entirely on circumstantial evidence is that of specific intent or mental state. [Citations.]’ (Id. at p. 1222.) ‘According to the Use Note to CALJIC No. 2.02, the instruction “is designed for use instead of CALJIC No. 2.01 in a specific intent or mental state case in which the only element of the offense which rests substantially or entirely on circumstantial evidence is the element of specific intent or mental state.” ’ [Citation.]” (People v. Burch (2007) 148 Cal.App.4th 862, 871, fn. omitted.) CALJIC Nos. 8.83 and 8.83.1 pertain to the consideration of circumstantial evidence relating to special circumstance allegations, which are of course not at issue here. (People v. Wilson, supra, 3 Cal.4th 926, 942–943.)
We also disagree with defendant’s assertion that the instructions and trial court’s response, as given, compromised the reasonable doubt standard. The premise of defendant’s argument is that the jury must have interpreted the testimony of the defense expert – that intent to sell was uncertain under the facts presented – as reasonable, although less likely than the contrary expert opinion presented by the prosecution. Again, this is a possible but not necessary conclusion to be drawn from the question. Therefore, his argument proceeds, the query indicates that the jury “had reasonable doubt of possession for sale.” Defendant maintains that without an instruction to the jury in some form that a reasonable interpretation of the evidence, even if less likely, must be adopted, the jury improperly convicted him on the basis of a “preponderance of evidence of guilt” rather than a “reasonable doubt of intent to sell.”
Defendant’s premise is not proved and therefore his argument is not sound. The effect of the instructions on consideration of circumstantial evidence, including CALJIC No. 2.02, is to “properly direct the jury to accept an interpretation of the evidence favorable to the prosecution and unfavorable to the defense only if no other ‘reasonable’ interpretation can be drawn.” (People v. Kipp (1998) 18 Cal.4th 349, 375.) The instructions directed the jury to “reject unreasonable interpretations of the evidence and to accept a reasonable interpretation that was consistent with the evidence.” (People v. Crittenden (1994) 9 Cal.4th 83, 144.) The California Supreme Court has repeatedly declared that when these instructions “are read in conjunction with the reasonable doubt instruction, and viewed as a whole,” they do “ ‘not undermine the instructions on the presumption of innocence and the standard of proof beyond a reasonable doubt, and [do] not impermissibly create a mandatory conclusive presumption of guilt.’ [Citations.]” (People v. Bradford (1997) 14 Cal.4th 1005, 1054; see also People v. Boyette (2002) 29 Cal.4th 381, 437; People v. Riel (2000) 22 Cal.4th 1153, 1200; People v. Ray (1996) 13 Cal.4th 313, 347–348; People v. Wilson, supra, 3 Cal.4th 926, 942–943.) Nothing in the instructions or the trial court’s response to the jury’s inquiry hinted that a conviction was appropriate upon a mere finding by the jury that the prosecution’s expert testimony was more reasonable evidence.
We further conclude that the court was not required to offer additional clarification on the consideration of circumstantial evidence of intent. The repetition of the second paragraph of CALJIC No. 2.02 sufficed to direct the jury’s attention to the proper approach to consideration of evidence of specific intent. Penal Code section 1138 does not demand elaboration upon the standard instructions by the trial court when the jury expresses confusion, but rather directs the court to “consider how it can best aid the jury and decide whether further explanation is desirable, or whether the reiteration of previously given instructions will suffice.” (People v. Moore (1996) 44 Cal.App.4th 1323, 1331; see also People v. Smithey, supra, 20 Cal.4th 936, 985; People v. Davis, supra, 10 Cal.4th 463, 522; People v. Solis, supra, 90 Cal.App.4th 1002, 1015.) Here, the trial court did not disregard its statutory duty to offer assistance to the jury. (Cf. People v. Beardslee (1991) 53 Cal.3d 68, 97; People v. Solis, supra, at p. 1015; People v. Moore, supra, at p. 1331.) Instead, the court focused the jury’s attention on the portion of CALJIC No. 2.02 that was pertinent to the jury’s inquiry. By doing so the court reinforced the admonition to the jury to adopt a reasonable interpretation of evidence rather than an unreasonable one, and to adopt a reasonable interpretation of evidence that points to the absence rather than existence of specific intent. By advising the jury to re-read the CALJIC No. 2.02 instruction, which was full and complete for purposes of the facts before it, the trial court fulfilled its duty under section 1138. (People v. Gonzalez (1990) 51 Cal.3d 1179, 1213; People v. Moore, supra, at p. 1331.)
We are not persuaded that any supplemental instruction tailored to the specific issue of circumstantial evidence of intent and reasonable doubt was either necessary or prudent. The jury was instructed that: guilt of every element and fact essential to establish defendant’s guilt must be proved beyond a reasonable doubt; any “inference essential to establish guilt” must be rejected unless it is proved beyond a reasonable doubt; defendant cannot be found guilty unless circumstantial evidence of guilt “cannot be reconciled with any other rational conclusion” and is consistent with the theory of guilt; and, a reasonable interpretation of evidence that points to defendant’s innocence must be adopted, while a reasonable interpretation that points to guilt must be rejected. In response to the jury’s inquiry, the court repeated the admonition that evidence which points to absence of specific intent must be accepted if two reasonable interpretations are offered. We must presume the jurors followed the court’s instructions and were able to understand and correlate the instructions given. (People v. Sanchez (2001) 26 Cal.4th 834, 852.)
Upon consideration of the instructions as a whole, including the trial court’s repetition of CALJIC No. 2.02, a reasonable juror would understand that the circumstantial evidence instruction must be considered in conjunction with the reasonable doubt standard, which informs the jurors that in the event they harbor a reasonable doubt concerning guilt they are required to acquit. (People v. Millwee (1998) 18 Cal.4th 96, 160; People v. Wilson, supra, 3 Cal.4th 926, 943.) The jury was thereby advised that it “ ‘properly can find the prosecution’s theory as to the interpretation of the circumstantial evidence “reasonable” and alternate theories favorable to the defense “unreasonable,” within the meaning of these instructions, only if the jury is convinced beyond a reasonable doubt of the accuracy of the prosecution’s theory. [Citation.]’ [Citations.]” (People v. Bradford (1997) 15 Cal.4th 1229, 1347.) Thus, the jurors were effectively disabused of the notion, if in fact they ever had it, that a finding of guilt should follow merely because the prosecution’s evidence of specific intent was considered a “more likely interpretation.”
The trial court was understandably and astutely reluctant to deviate from the approved standard instructions, which were full and complete. (People v. Briscoe (2001) 92 Cal.App.4th 568, 589; People v. Solis, supra, 90 Cal.App.4th 1002, 1015.) We conclude that the trial court did not abuse its discretion by declining to give defendant’s proposed response, and fulfilled its duty under Penal Code section 1138. (People v. Noguera (1992) 4 Cal.4th 599, 643; People v. Moore, supra, 44 Cal.App.4th 1323, 1331; People v. Hill (1992) 3 Cal.App.4th 16, 25.)
Accordingly, the judgment is affirmed.
WE CONCUR: MARCHIANO, P. J., MARGULIES, J.
As given to the jury, CALJIC No. 2.00 read: “Evidence consists of the testimony of witnesses, writings, materials, objects or anything presented to the senses and offered to prove the existence or nonexistence of a fact. Evidence is either direct or circumstantial. [¶] Direct evidence is evidence that directly proves a fact. It is evidence which by itself, if found to be true, directly proves a fact. [¶] Circumstantial evidence is evidence that, if found to be true, proves a fact from which an inference of the existence of another fact may be drawn. An inference is a deduction of fact that may logically and reasonably be drawn from another fact or group of facts established by the evidence. [¶] It is not necessary that facts be proved by direct evidence. They may also be proved by circumstantial evidence or by a combination of direct and circumstantial evidence. Both direct and circumstantial evidence are acceptable as a means of proof and neither is entitled to any greater weight than the other.”
CALJIC No. 2.01 reads: “However, a finding of guilt as to any crime may not be based on circumstantial evidence unless the proved circumstances are not only first consistent with the theory that the defendant is guilty of the crime; but, second, cannot be reconciled with any other rational conclusion. [¶] Further, each fact which [is] essential to complete a set of circumstances necessary to establish the defendant’s guilt must be proved beyond a reasonable doubt. In other words, before an inference essential to establish guilt may be found to have been proved beyond a reasonable doubt, each fact or circumstance on which the inference necessarily rests must also be proved beyond a reasonable doubt. [¶] Also, if the circumstantial evidence as to any particular count permits two reasonable interpretations, one of which points to the defendant’s guilt and the other to his innocence, you must adopt that interpretation that points to the defendant’s innocence and reject the interpretation that points to his guilt. [¶] If, on the other hand, one interpretation of this evidence appears to you to be reasonable and the other interpretation to be unreasonable, you must accept the reasonable interpretation and reject the unreasonable.”