Summary
In Flores, we analyzed the language at issue in CALCRIM No. 220, read together with CALCRIM No. 222, and confirmed that "[n]othing about the instructions given implies to the jury that the defendant must adduce evidence that promotes reasonable doubt or that the defendant must persuade the jury of his or her innocence by evidence presented at trial."
Summary of this case from Washington v. AdamsOpinion
No. F050958.
July 30, 2007. [CERTIFIED FOR PARTIAL PUBLICATION ]
Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is certified for publication with the exception of parts 1-4 and 6, 7.
Appeal from the Superior Court of Fresno County, No. F05906253-0, R. L. Putnam, Judge.
Maureen L. Fox, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Lloyd G. Carter and Brian Alvarez, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
A jury convicted James Quincy Flores (appellant) of carrying a concealed dirk or dagger (Pen. Code, § 12020, subd. (a)(4)), possession of cocaine (Health Saf. Code, § 11350, subd. (a)), possession of heroin (Health Saf. Code, § 11350, subd. (a)), and unauthorized possession of a hypodermic needle or syringe (Bus. Prof. Code, § 4140). In a bifurcated proceeding, the trial court found true four prior strike allegations and a prior prison term allegation. The trial court sentenced appellant to an indeterminate term of 25 years to life on the felony convictions, plus a one-year determinate term on the prior prison term. The court granted appellant credit for time served on the possession of a hypodermic syringe misdemeanor. Various fines and fees were imposed.
Further statutory references are to the Penal Code unless otherwise indicated.
On appeal appellant contends that: (1) the trial court erred when it denied his new trial motion based on juror misconduct; (2) the trial court improperly instructed on the elements of carrying a concealed dirk or dagger; (3) there is insufficient evidence to support his conviction for heroin and cocaine possession; (4) he was improperly convicted of possession of both heroin and cocaine under the instructions given; (5) the reasonable doubt instruction given was flawed; (6) one of appellant's two possession terms must be stayed pursuant to section 654; and (7) the trial court erred when it increased appellant's restitution and parole revocation fines in violation of section 1170. We agree with appellant's last two contentions, and in all other respects affirm. We publish that portion of this opinion that addresses the validity of the reasonable doubt instruction contained in Judicial Council of California Criminal Jury Instructions (2006-2007) CALCRIM No. 220.
FACTS
Between 6:00 p.m. and 7:00 p.m. on August 14, 2005, Police Officers Frederick Williams and Haywood Irving noticed appellant lying underneath a vehicle in the "far southwestern portion" of the parking lot of an auto parts store in Fresno. The officers decided to check on appellant, whose upper body was under the car. Williams asked if appellant was okay and if he could speak to him. Appellant came out from under the vehicle and said "Sure." He had nothing in his hands at the time. Appellant told the officers he had just purchased the vehicle and was working on it. Williams asked appellant if he had anything illegal on him and appellant said he did not. Williams asked if he could search appellant, and appellant said "Sure. Go ahead." Williams felt an object in appellant's right front pocket. Williams put his hand "all the way in" the pocket and removed a knife completely concealed in a sheath. Williams did not see the knife in appellant's pocket when he came out from under the vehicle. The knife was approximately 10 inches long, including the six-inch blade.
Williams then conducted a search of appellant's vehicle. In the trunk, he found a small metal box containing a hypodermic syringe with a dark brown substance later determined to be cocaine and heroin. At the preliminary hearing, Williams testified that the box was under an article of clothing, but he did not recall that at trial. Appellant's vehicle was subsequently impounded.
At trial, Officer Williams placed the knife into the pants pocket of the jeans appellant was wearing at the time of the incident. Only a small portion of the scabbard was visible, as was the evidence tag, which had not been there at the time of the incident. When the pants were held up about 10 feet from Williams, he testified that the knife appeared to be concealed.
Hagop Toutikian sold the vehicle to appellant in March of 2005. Appellant was the registered owner, but he still owed a balance on the vehicle.
DISCUSSION
1. Did the trial court err when it denied appellant's motion for new trial based on juror misconduct? Appellant contends that the trial court abused its discretion in denying his motion for new trial. He argues that jurors performed an experiment during deliberations which resulted in the improper consideration of extrinsic evidence. We disagree. A. Background Prior to deliberations, the trial court told the jurors that they could examine the knife if they wished to do so and that the bailiff would bring it into the jury room for their review. Later, when the bailiff notified the court that the jury had reached a verdict, he also informed the court and both counsel that he had observed one juror, during deliberations, stand up and "grab? the knife and put it in his pocket and the rest of the jury asked him to sit down with it in his pocket and then he stood up and he turned and then they said that was it. That's all they needed." The court clarified the bailiff's body motions made while speaking and asked if the juror "twisted a little bit to the left and a little bit to the right and then they gave the knife back," to which the bailiff agreed. The jurors then returned to the courtroom and entered their verdicts, but the observation was not discussed and no juror was questioned about the incident. Defense counsel subsequently filed a new trial motion, claiming the jury committed misconduct when it performed an illegal experiment with the knife during deliberations. At the calendared hearing, the trial court noted that defense counsel had failed to attach any juror declaration in support of the motion, and she was given leave to do so. Defense counsel filed a petition for release of juror identification information, which was granted, but at the subsequent hearing on the new trial motion, counsel informed the court that she had been unable to obtain any juror declarations. In denying the new trial motion, the trial court stated that it had read and considered the documents, considered the case law, and the bailiff's declaration. The court reasoned: "The knife and its concealment was a very central point in the case, obviously, because that charge is very serious, especially [in] relationship to this particular defendant. And also, . . . whether or not it could have been concealed was the major issue that the defense raised. And during that process in front of the jurors on both examination of witnesses as well as during argument both counsel repeatedly mentioned the pants and the knife and how the knife fit in the pants and, in fact, did your own experiments right here in front of the jurors, so to speak, putting that knife in the pocket of the pants. And that wouldn't be unusual in itself I don't think. If jurors did that in the jury room, that would be an experiment. But I think that's well within the bounds of [what] jurors are allowed to do. . . [H]ere, I think in this particular case we have an experiment, if you want to call it that, within the bounds of the evidence here and would be permissible under the circumstances. It doesn't appear to me that that would be something unusual that jurors would do. We don't know if they also considered the pants and the knife separate from that. Many things we don't know because we don't have any declarations from the jurors. But on its face it appears that this would be something that would be within the jurors' realm of what they could do. It's not something outside the panel. Any juror could probably stick it in their pocket. Others might observe what they had done. Or just touching the knife. That's the same type of thing. Feeling the knife, seeing what it feels like. So it's certainly not something that is impermissible within the [S]ixth [A]mendment requirements based on that. And [it] appears to me that there's just not enough evidence to show that this would have some extremely prejudicial affect against [appellant]. We did have [a] relatively short verdict. Most of the facts in this case were really not contested, and the jurors could easily have found based on the evidence at least here in court that the knife was concealable as alleged by the People. So based on that and those findings, also citing People versus Perez [(1992) 4 Cal.App.4th 893] and several other cases cited by that case, the motion would be denied." B. Applicable Law "A motion for new trial may be made on the grounds of juror misconduct or unauthorized receipt of evidence by the jury. [Citation.] `It is the trial court's function to resolve conflicts in the evidence, to assess the credibility of the declarants, and to evaluate the prejudicial effect of the alleged misconduct. . . . However, in reviewing an order denying a motion for new trial based on jury misconduct, as distinguished from an order granting a new trial on that ground, a reviewing court has a constitutional obligation . . . to review the entire record, including the evidence, and to determine independently whether the act of misconduct, if it occurred, prevented the complaining party from having a fair trial. [Citations.]'" ( People v. Wisely (1990) 224 Cal.App.3d 939, 947, quoting Andrews v. County of Orange (1982) 130 Cal.App.3d 944, 954-955, disapproved on other grounds in People v. Nesler (1997) 16 Cal.4th 561, 582, fn. 5.) We therefore undertake a de novo review to determine whether there was misconduct, and, if so, whether that misconduct prejudiced appellant and requires his conviction be reversed. ( People v. Cumpian (1991) 1 Cal.App.4th 307, 311.) Jury misconduct raises a presumption of prejudice and, "unless the prosecution rebuts that presumption . . ., the defendant is entitled to a new trial." ( People v. Pierce (1979) 24 Cal.3d 199, 207.) "The presumption of prejudice may be rebutted by an affirmative evidentiary showing that prejudice does not exist or by a reviewing court's examination of the entire record to determine whether there is a reasonable probability of actual harm to the complaining party. . . .;'" ( People v. Miranda (1987) 44 Cal.3d 57, 117, overruled on other grounds in People v. Marshall (1990) 50 Cal.3d 907, 933, fn. 4, quoting Hasson v. Ford Motor Co. (1982) 32 Cal.3d 388, 417.) Whether a defendant has been prejudiced depends upon "whether the jury's impartiality has been adversely affected, whether the prosecution's burden of proof has been lightened and whether any asserted defense has been contradicted." ( People v. Martinez (1978) 82 Cal.App.3d 1, 22.) But if a review of the entire record demonstrates that the defendant has suffered no prejudice from the misconduct, a reversal is not compelled. ( People v. Brown (1976) 61 Cal.App.3d 476, 481-482.) We therefore first determine whether the action of one juror — putting the knife into his pocket in the presence of the entire jury — constituted jury misconduct. A jury must decide the guilt or innocence of a defendant based on the evidence introduced at trial. ( People v. Conkling (1896) 111 Cal. 616, 628; People v. Cumpian, supra, 1 Cal.App.4th at p. 314.) As a consequence of this rule, a jury may not independently investigate the facts or create evidence through experiments designed to determine disputed facts. (E.g., People v. Cumpian, supra, at pp. 313-314; People v. Castro (1986) 184 Cal.App.3d 849, 853.) But not every experiment constitutes misconduct. ( People v. Bogle (1995) 41 Cal.App.4th 770, 778.) "[J]urors must be given enough latitude in their deliberations to permit them to use common experiences and illustrations in reaching their verdicts. [Citations.]' [Citation.]" ( People v. Cumpian, supra, 1 Cal.App.4th at p. 316.) Jurors may use an exhibit introduced at trial "according to its nature to aid them in weighing the evidence'" and "may carry out experiments within the lines of offered evidence,'" as long as the experiments do not "invade new fields" that do not "fall fairly within the scope and purview of the evidence.'" ( People v. Bogle, supra, at pp. 778-779.) Appellant relies on People v. Castro, in which an officer testified about observations he made using binoculars. One of the jurors then went home and, in order to test the officer's testimony, used a pair of binoculars to determine what could be seen from a distance. ( People v. Castro, supra, 184 Cal.App.3d at p. 852.) This court held the juror's actions to be misconduct and reversed the defendant's conviction. ( Id. at p. 856.) We stated: "The only reasonable inference to be drawn from [the juror's] declaration is that he conducted his own at-home experiment to determine if [the officer] could have identified appellant as the culprit. . . . Thus, the jury received evidence outside of the courtroom which appellant was unable to meet or answer thereby establishing jury misconduct." ( Id. at p. 853.) Appellant also relies on Smoketree-Lake Murray, Ltd. v. Mills Concrete Construction Co. (1991) 234 Cal.App.3d 1724, in which the appellate court found misconduct when a juror used "kitty litter" and crayons to simulate how concrete was poured. ( Id. at pp. 1744, 1745.) According to the juror's declaration, she told her fellow jurors the basis for her demonstration was her special knowledge of concrete-pouring. ( Id. at pp. 1745-1746 fn. 16.) The court concluded the juror's actions were misconduct because she "presented a new demonstration (i.e., there was no kitty litter and crayon demonstration conducted by any of the experts in the case). [Citation.] Further, when [the juror] conducted the demonstration, she represented she had special knowledge about concrete practices. . . . [The d]eveloper had no opportunity to challenge the accuracy of [the juror's] demonstration nor her representations of special knowledge about concrete practices." ( Id. at p. 1749, fn. omitted.) Thus, her conduct brought new evidence into the deliberations, constituting misconduct. ( Ibid.) We find significant differences in both of these cases to distinguish them from the experiment performed here. The experiment in Castro was done by the juror at home. ( People v. Castro, supra, 184 Cal.App.3d at p. 852.) The juror in Smoketree-Lake Murray, Ltd. first tried the experiment at home and then repeated it during deliberations. ( Smoketree-Lake Murray, Ltd. v. Mills Concrete Construction, supra, 234 Cal.App.3d at p. 1745, fn. 16.) And both involved situations where the experiments were performed using items not introduced into evidence, resulting in outside influences or extrinsic evidence permeating the jury's deliberations.
See footnote, ante, page 1088.
We find more helpful several cases which have rejected misconduct arguments based on a jury's manipulation of trial exhibits. For example, in People v. Cumpian, the court held that the jury did not commit misconduct when it used the defendant's duffel bag to determine if he could have removed it from his shoulder in a certain manner described at trial. The duffel bag had been introduced into evidence. ( People v. Cumpian, supra, 1 Cal.App.4th at pp. 313-314.) The court found that the jury's use of the exhibit did not "invade new fields," nor did it "involve matters not within the scope and purview of the evidence." ( Id. at p. 315.) Instead, the jurors used the exhibit in a similar fashion to the manner testified to and demonstrated at trial. "It is not the use of the exhibit which creates misconduct but its use in some manner outside the offered evidence." ( Ibid.) The jury's reenactment of the testimony concerning the defendant's use of the duffel bag did not constitute the receipt of evidence out of court, but instead was merely an experiment directed at the proffered evidence. ( Id. at p. 316.) Similarly, in People v. Bogle, the defendant was charged with arson and murder. ( People v. Bogle, supra, 41 Cal.App.4th at p. 774.) The police recovered the victims' safe and a set of keys from the defendant's residence. The safe contained the victims' personal property. The defendant claimed the victims gave him the safe. He also claimed that the keys belonged to him, and he identified the lock each key would open. The defendant did not say any of the keys opened the safe. The keys and the safe were introduced at trial and sent to the jury room. During deliberations, the jury tried to open the safe with the keys and discovered that one of the keys did so. The jury asked whether it could consider this as evidence. ( Id. at pp. 775, 777.) The defendant moved for a mistrial and argued that the jury committed misconduct because the relationship between the key and the safe was beyond the evidence presented at trial. The motion was denied, but the jury was admonished only to consider the evidence introduced at trial. ( Id. at p. 778.) The court in Bogle determined that the jury's examination of the safe and the keys was within the lines of offered evidence and did not constitute misconduct. Both items were properly introduced into evidence and given to the jury for examination. ( People v. Bogle, supra, 41 Cal.App.4th at p. 779.) The court held that the jury's examination did not invade a "new field" not presented a trial. Instead of defining "field" as "one specific fact," it defined it as "an area of inquiry, such as the extent of the defendant's access to the contents of the safe or whether the defendant was a credible witness." ( Ibid.) The defendant's access to the safe and its contents was at issue at trial, and the defendant attempted to give an exculpatory explanation for the location of the safe. "In considering the importance of the safe and its location and the defendant's actions with respect to the safe, the jury was entitled to determine, from the evidence it was given, the character and extent of the defendant's relationship to the safe. Trying the keys on the safe was an exercise in that pursuit, not a foray into a new field." ( People v. Bogle, supra, at p. 780.) The defendant also claimed to identify each key, which invoked the jury's duty to determine the veracity of his testimony. "Having testified concerning the use of each key, the defendant cannot now complain the jury tested the truth of his testimony by using the available evidence." ( Ibid.) While the jurors reexamined the evidence in a slightly different context, it was within the "scope and purview of the evidence' presented to them by the prosecution and defense and did not invade a new field.' [Citation.] This careful scrutiny of the evidence was not a prohibited experiment." ( People v. Bogle, supra, 41 Cal.App.4th at p. 781.) Appellant acknowledges the holding in Cumpian, but asserts the case was wrongly decided because the appellate court did not view the jurors' bodies as extrinsic evidence. Appellant also acknowledges the holding in Bogle, but claims it is distinguishable because, in Bogle, both the safe and key were placed into evidence, whereas here, the knife was placed into someone else's pants pocket to ascertain its visibility. We disagree with appellant's attempts to distinguish the two cases. Here, the jury's use of the exhibit did not invade a new field nor did its experiment with the knife involve matters not within the scope and purview of the evidence. By placing the knife, which was properly in evidence, into the pocket of a juror during deliberations, the jury used the knife in a similar fashion to that testified to and demonstrated by Officer Williams at trial, even if the juror's pants were not identical to appellant's. Misconduct was not found in People v. Cumpian, supra, 1 Cal.App.4th 307, where various jurors strapped a duffel bag across their own torsos in a fashion similar to that described in trial testimony as worn by the defendant. (At p. 314.) Neither was misconduct found in People v. Cooper (1979) 95 Cal.App.3d 844, 852-854, where various jurors reenacted throwing contraband as an officer testified the defendant had done. Neither of those experiments would have exactly replicated the actions of the defendant. In addition, defense counsel argued that appellant had the knife in his hand when he came out from under the vehicle. The bailiff's description of how the juror, with the knife in his pocket, sat down, twisted from side-to-side and then stood up could very well have been done to consider the plausibility of appellant's theory that he did not or could not have had the knife in his pocket when he came out from under the car. "Experiments which are within the lines of offered evidence. . .' and which do not [i]nvade new fields. . .' do not constitute misconduct. [Citation.] As the jury's experiment was based on evidence received in court, there was no jury misconduct." ( People v. Cumpian, supra, 1 Cal.App.4th at p. 317.) Therefore, appellant's motion for new trial was properly denied. 2. Did the trial court err when it instructed the jury that the knife need only be "substantially concealed" in order to violate section 12020, subdivision (a)(4)? Appellant contends that the trial court prejudicially reduced the prosecution's burden of proof by instructing the jury pursuant to CALCRIM No. 2501 that substantial concealment is sufficient for a violation of section 12020, subdivision (a)(4). We disagree. Section 12020 makes it unlawful for any person to "[c]arr[y] concealed upon his or her person any dirk or dagger." The trial court instructed the jury with CALCRIM No. 2501 [carrying a concealed explosive or dirk or dagger]. The court's instruction provided, in pertinent part: "To prove that the defendant is guilty of this crime, the People must prove that: [¶] One, the defendant carried on his person a dirk or dagger; [¶] Two, the defendant knew that he was carrying it; [¶] Three, it was substantially concealed on the defendant's person, and four, that the defendant knew that it could be readily used as a stabbing weapon." As appellant concedes, this contention has been addressed and rejected by reviewing courts. The defendant in People v. Wharton (1992) 5 Cal.App.4th 72 made a similar argument in the context of sufficient evidence. In Wharton, the court determined that "[o]nly substantial concealment is required. [Citation.] A defendant need not be totally successful in concealing a dirk to be guilty of violation of . . . section 12020, subdivision (a).'" ( Id. at p. 75, quoting People v. Fuentes (1976) 64 Cal.App.3d 953, 955.) "The mere fact that some portion of the handle [of the defendant's dirk] may have been visible makes it no less a concealed weapon." ( People v. Fuentes, supra, at p. 955.) We agree with the reasoning of these cases and conclude that total concealment is not required. Thus, the jury was properly instructed with CALCRIM No. 2501. 3. Is there substantial evidence of possession of both heroin and cocaine? Appellant contends that one of his two possession convictions must be reversed because there was insufficient evidence to prove that he knew of the presence and nature of two separate controlled substances, both cocaine and heroin, in the single syringe in the trunk of his car. We disagree. "In assessing the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] Reversal on this ground is unwarranted unless it appears that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].' [Citation.]" ( People v. Bolin (1998) 18 Cal.4th 297, 331.) It is a well-settled proposition of law that in a prosecution for unlawful possession of narcotics, the People must prove that the accused exercised dominion and control over the drug with knowledge both of its presence and of its narcotic character. ( People v. Roberts (1964) 228 Cal.App.2d 722, 726.) "The elements of unlawful possession may be established by circumstantial evidence and any reasonable inferences drawn from such evidence." ( People v. Newman (1971) 5 Cal.3d 48, 52, disapproved on another ground in People v. Daniels (1975) 14 Cal.3d 857, 862.) As to knowledge of its presence and character, the mere possession of narcotics constitutes substantial evidence that the possessor of the narcotic knew of its nature. ( People v. Eckstrom (1986) 187 Cal.App.3d 323, 331.) "Further, [knowledge] of the presence of contraband and of its narcotic content may be inferred from the accused's conduct or statements at or near the time of his arrest. [Citations.]' [Citation.]" ( Id. at p. 331.) "To show such knowing possession the conduct of the parties, admissions or contradictory statements and explanations are frequently sufficient." ( People v. Foster (1953) 115 Cal.App.2d 866, 868.) Viewing the evidence in the light most favorable to the judgment, substantial evidence supports the convictions and the finding that appellant knew of the nature of the cocaine and heroin in the trunk of his car. The syringe containing the cocaine and heroin was found in the trunk of the car owned by appellant. When appellant came out from underneath the vehicle at the request of the officers, he told the officers he had just purchased the vehicle. Other testimony at trial established that appellant had owned the vehicle for approximately five months at the time of the incident. At trial, the prosecutor argued to the jury that this was an attempt by appellant to distance himself from the vehicle. Although appellant acknowledges that his statement could be seen as evidence that he knew he had a controlled substance in the trunk, he claims "[t]hat statement cannot support an inference that [he] was aware that the liquid in the syringe contained both heroin and cocaine." We disagree. If appellant is arguing that he cannot be convicted of multiple counts of possession where the drugs were chemically more than one kind, though of the same legal classification, he is mistaken. For instance, in People v. Mason (1969) 276 Cal.App.2d 386, the defendant was convicted of two counts of furnishing "any hypnotic or dangerous drug to a minor" in violation of Business and Professions Code former section 4234. ( People v. Mason, supra, at pp. 387-389.) The defendant supplied a minor with some pills wrapped in a napkin. Laboratory examination established that some of the pills were Seconal and some were Benzedrine. On appeal, the defendant argued that there was no justification for charging two crimes merely because some of the drugs in the package were chemically different from the others. The court in Mason disagreed, finding the defendant was properly convicted for both violations of Business and Professions Code former section 4234. ( People v. Mason, supra, at pp. 389-390; see also People v. Schroeder (1968) 264 Cal.App.2d 217, 227 [possession of opium and morphine found in same box would support two counts of Health Saf. Code, former § 11500.) If appellant is arguing that he cannot be convicted of both cocaine and heroin possession because he did not know of the exact nature of the controlled substance possessed by him, we also reject that assertion. In People v. Garringer (1975) 48 Cal.App.3d 827, the defendant was found to be in possession of 1,600 capsules, which appeared to be secobarbital. The defendant identified the capsules as "reds," and he was charged with possession for sale of a controlled substance, secobarbital (Health Saf. Code, § 11377). Chemical analysis revealed the capsules to contain phenobarbital (Health Saf. Code, § 11378), and the information was amended to reflect this. The defendant was subsequently convicted of the lesser included offense of possession of phenobarbital (Health Saf. Code, § 11377). ( People v. Garringer, supra, at pp. 833-834.) At trial, the jury was instructed: "Secobarbital and phenobarbital are both controlled substances. It is no defense to the charge of possession of phenobarbital that the defendant believed he possessed secobarbital. If the proof shows that the defendant knew that he possessed a controlled substance but believed it was secobarbital when the substance was actually phenobarbital, he is not relieved of criminal responsibility by reason of this mistake on his part in identifying the chemical nature of the controlled substance possessed by him.'" ( People v. Garringer, supra, 48 Cal.App.3d at p. 835.) The court in Garringer upheld this instruction: "A person who intends to possess a controlled substance, believes he possesses a controlled substance, and in fact possesses a controlled substance is guilty of violating section 11377 of the Health and Safety Code. The only knowledge that is required to sustain the conviction is knowledge of the controlled nature of the substance. [Citation.] The defendant need not know the chemical name or the precise chemical nature of the substance. Any more stringent rule as to knowledge would, for all practical purposes, make the statute inapplicable to anyone who had not personally performed a chemical analysis of the contraband in his possession. Needless to say, such was not the Legislature's intent." ( People v. Garringer, supra, 48 Cal.App.3d at p. 835.) The reasonable inferences to be drawn from the circumstances here support the jury's finding that appellant knew the narcotic nature of the substance in the syringe. Because the evidence shows that appellant knew he possessed a controlled substance, the fact that he did not know the precise chemical nature of the substance does not relieve him of criminal responsibility for possession of one of the two controlled substances. 4. Was appellant properly convicted of both heroin and cocaine under the instructions given? The court instructed the jury with CALCRIM No. 2304, in pertinent part, as follows: "[Appellant] is charged in Count Two with possessing cocaine, a controlled substance. [¶] To prove that [appellant] is guilty of this crime, the People must prove that: [¶] One, [appellant] possessed a controlled substance; [¶] Two, [appellant] knew of its presence; [¶] Three, [appellant] knew of the substance's nature or character as a controlled substance; [¶] Four, the controlled substance was cocaine. . . . [¶] . . . [¶] The People do not need to prove that [appellant] knew which specific controlled substance he possessed, only that he was aware of the substance's presen[ce] and that it was a controlled substance." The instruction was given twice; the second time the trial court replaced the words "Count Two" with "Count Three" and "cocaine" with "heroin." On appeal, appellant contends that the instructions, as given, "authorized the jury to find appellant guilty of possession of two controlled substances even if he was only aware of the presence of one such substance." We disagree. Appellant's argument is based primarily on his assertion that there was no evidence that he was aware of the presence of two controlled substances in the single syringe, an argument we have rejected, ante. Furthermore, the trial court correctly instructed that jury that appellant need not know "which specific controlled substance he possessed, only that he was aware of the substance's presence and that it was a controlled substance." (CALCRIM No. 2304; see also People v. Garringer, supra, 48 Cal.App.3d at p. 835 [defendant need not know chemical name or precise nature of substance].) We reject appellant's claim of instructional error.
See footnote, ante, page 1088.
See footnote, ante, page 1088.
See footnote, ante, page 1088.
5. Did the trial court err in giving the CALCRIM No. 220 reasonable doubt instruction ?
Appellant contends that instruction in the language of CALCRIM No. 220 violated his federal right to due process because it prevented the jury from considering the lack of evidence in determining whether a reasonable doubt existed as to his guilt. We disagree.
CALCRIM No. 220, as given, provided: "The fact that a criminal charge has been filed against [appellant] is not evidence that the charge is true. You must not be biased against [appellant] just because he has been arrested, charged with a crime, or brought to trial, [¶] A defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove each element of a crime beyond a reasonable doubt. [¶] . . . [¶] Whenever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt, [¶] Proof beyond a reasonable doubt is proof that leads [sic] you with an abiding conviction that the charge is true. The evidence need not element [sic] all possible doubt because everything in life is open to some possible or imaginary doubt, [¶] In deciding whether the People have proved their case beyond a reasonable doubt, you must impartially compare and consider all the evidence that was received throughout the entire trial. Unless the evidence proves [appellant] guilty beyond a reasonable doubt, he is entitled to an acquittal and you must find him not guilty." (Italics added.) The trial court then gave CALCRIM No. 222, which, in pertinent part, defined "evidence" as "the sworn testimony of witnesses, the exhibits admitted into evidence, and anything else I told you to consider as evidence." That instruction also stated that "[n]othing that the attorneys say is evidence," that their remarks and questions are not evidence, and "[o]nly the witnesses' answers are evidence."
Appellant contends that because reasonable doubt may arise from the lack of evidence in a case as well as from the evidence presented at trial ( People v. Simpson (1954) 43 Cal.2d 553, 566 [ 275 P.2d 31]), the italicized language in CALCRIM No. 220 combined with the definition of "evidence" given in CALCRIM No. 222 "contain[s] a flaw resulting in a due process violation because the possibility that a reasonable doubt may arise from the lack of evidence is not included in the basic definition of reasonable doubt." As argued by appellant, "by requiring a reasonable doubt to be based on the evidence presented, and by excluding argument as evidence, the instruction prevents the jury from basing a reasonable doubt upon the absence of sufficient evidence, even where defense counsel has argued that sufficient evidence is lacking." Appellant also contends that the instruction implies that "lack of evidence does not suffice for acquittal; rather, the defendant must adduce evidence that promotes a reasonable doubt." We see no reasonable likelihood that the jury understood and applied the instruction in the manner suggested by appellant.
The due process clause of the Fourteenth Amendment protects the accused against conviction except on proof beyond a reasonable doubt. ( In re Winship (1970) 397 U.S. 358, 361-362 [ 25 L.Ed.2d 368, 90 S.Ct. 1068] cases cited therein.) The United States Constitution does not require jury instructions to contain any specific language, but they must convey both that the accused is presumed innocent until proved guilty and that the accused may be convicted only upon proof beyond a reasonable doubt. ( Victor v. Nebraska (1994) 511 U.S. 1, 5 [ 127 L.Ed.2d 583, 114 S.Ct. 1239].) When reviewing the correctness of reasonable doubt charges, the proper constitutional inquiry is "whether there is a reasonable likelihood that the jury understood the instructions to allow conviction based on proof insufficient to meet the Winship standard." ( Id. at p. 6.) "`The essential connection to a "beyond a reasonable doubt" factual finding cannot be made where the instructional error consists of a misdescription of the burden of proof, which vitiates all the jury's findings.' [Citation.] Where such an error exists, it is considered structural and thus is not subject to harmless error review. [Citation.] However, if a jury instruction is deemed `ambiguous,' it will violate due process only when a reasonable likelihood exists that the jury has applied the challenged instruction in a manner that violates the Constitution. [Citation.] Any challenged instruction must be considered in light of the full set of jury instructions and the trial record as a whole. [Citation.]" ( Gibson v. Ortiz (9th Cir. 2004) 387 F.3d 812, 820-821; see also People v. Smithey (1999) 20 Cal.4th 936, 963 [ 86 Cal.Rptr.2d 243, 978 P.2d 1171].)
Here, the plain language of the instruction given tells the jury that "[u]nless the evidence proves the defendant guilty beyond a reasonable doubt, he is entitled to an acquittal and you must find him not guilty." (CALCRIM No. 220.) Identical language was given in a similar instruction, CALCRIM No. 103, at the beginning of trial. The only reasonable understanding of this language is that a lack of evidence could lead to reasonable doubt. In addition, the trial court instructed the jury with CALCRIM No. 355, which specifically stated that a defendant "may rely on [the] state of the evidence and argue that the People have failed to prove the charges beyond a reasonable doubt."
Nothing about the instructions given implies to the jury that the defendant must adduce evidence that promotes reasonable doubt or that the defendant must persuade the jury of his or her innocence by evidence presented at trial. ( People v. Hernandez Rios (2007) 151 Cal.App.4th 1154 [ 60 Cal.Rptr.3d 591].)
We see no violation of appellant's federal constitutional rights in the language of CALCRIM No. 220. 6. Must one count of possession be stayed pursuant to section 654? Appellant was convicted of two violations of Health and Safety Code section 11350, subdivision (a) based on his possession of both cocaine and heroin in a single syringe. At sentencing, the trial court ran concurrently the sentences for the two possession convictions. Appellant now contends the trial court should have stayed one of the two convictions, pursuant to section 654. Respondent concedes the issue and we agree. Section 654 prohibits multiple punishment for multiple statutory violations produced by the same act or omission. But, because section 654 is intended to ensure punishment commensurate with culpability, its protections have been extended to situations where the defendant commits several offenses during an indivisible "course of conduct." ( People v. Harrison (1989) 48 Cal.3d 321, 335.) Divisibility depends on the defendant's intent — "if all his offenses were incident to one objective,' the defendant may be punished only once." ( People v. James (1977) 19 Cal.3d 99, 119.) Nothing in the record reflects that appellant possessed the heroin and cocaine solution in the one syringe for any other reason than to use both substances together. Both offenses were therefore incident to one objective, and appellant can only be punished for one of the drug offenses, but not both. ( People v. Latimer (1993) 5 Cal.4th 1203, 1208; Neal v. State of California (1960) 55 Cal.2d 11, 19.) We will remand and order the trial court to stay the sentence of either count 2 or 3, pursuant to section 654. 7. Did the trial court lack jurisdiction to amend the judgment and increase the restitution fine? At sentencing on July 19, 2006, the trial court imposed a section 1202.4, subdivision (b) restitution fine in the amount of $1,000. It also imposed a $1,000 parole revocation fine pursuant to section 1202.45. The trial court then ordered appellant transferred to prison. On August 1, 2006, the court recalled the case and increased the restitution and parole revocation fines to $5,200 each, stating that it had misread both the probation report and its notes at the earlier sentencing hearing. Appellant contends the increase in the restitution fine and parole revocation fine constitutes error under section 1170, subdivision (d) and because the trial court had lost jurisdiction of appellant when it relinquished custody of him. The People concede the point and indicate they do not oppose modification of the judgment to reduce the restitution fine and the parole revocation fine to $1,000, which they point out is lawful within the statutory parameters. The People's concession is well taken. When a trial court relinquishes custody of a defendant, it loses jurisdiction over that defendant. ( People v. Karaman (1992) 4 Cal.4th 335, 344.) At the time the original fines were imposed, appellant was transferred to prison. And, although a trial court may rethink its entire sentencing scheme, the new term may not be greater than the initial sentence imposed. (§ 1170, subd. (d).) Because imposition of a restitution fine constitutes punishment ( People v. Hanson (2000) 23 Cal.4th 355, 361-362), the increase in the fine ordered by the trial court amounted to an increase in the term imposed in violation of section 1170, subdivision (d). The judgment will be ordered modified accordingly.
See footnote, ante, page 1088.
Section 654, subdivision (a) provides: "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision. An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other."
See footnote, ante, page 1088.
Section 1170, subdivision (d), provides in part that, within 120 days of the date of commitment on its own order, or at any time upon recommendation of the Secretary of the Department of Corrections and Rehabilitation, a trial court may "recall the sentence and commitment previously ordered and resentence the defendant in the same manner as if he or she had not previously been sentenced, provided the new sentence, if any, is no greater than the initial sentence. . ."
Section 1202.4, subdivision (b)(1) provides for a restitution fine of no less than $200 or more than $10,000. Section 1202.45 requires the court to order a parole revocation restitution fine in the same amount as a section 1202.4 restitution fine.
DISPOSITION
The matter is remanded to the trial court to stay execution of sentence pursuant to section 654 on either count 2 or 3. The trial court is directed to modify the judgment to reflect a restitution fine and a parole revocation restitution fine each in the amount of $1,000. (§§ 1202.4, subd. (b), 1202.45.) The court is directed to order that the clerk of the superior court then prepare and forward to the Department of Corrections and Rehabilitation an amended abstract of judgment. As so modified and in all other respects, the judgment is affirmed.
Levy, Acting P. J., and Cornell, J., concurred.
Appellant's petition for review by the Supreme Court was denied October 31, 2007, S155713.