Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. FMB800316. William Jefferson Powell IV, Judge.
H. Reed Webb, 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, and Peter Quon, Jr. and Angela M. Borzachillo, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
King, J.
I. INTRODUCTION
Following a jury trial, defendant was found guilty as charged of felony possession of methamphetamine and misdemeanor possession of paraphernalia, a smoking device. Thereafter, defendant admitted he had one prior strike conviction, a 1999 arson conviction, and one prison prior. He was sentenced to five years in prison and appeals, raising several claims of instructional error.
Defendant’s five-year sentence consists of the middle term of two years for his methamphetamine possession conviction in count 1, doubled to four years based on his prior strike conviction, plus one year for the prison prior. A concurrent term of 180 days in the San Bernardino County jail was imposed for the paraphernalia possession conviction in count 2.
Specifically, defendant claims the trial court erroneously refused to give the jury his proffered pinpoint instruction that “proof of possession requires more than mere proximity to the contraband” and erred in instructing the jury that it could infer guilt without first determining there is evidence to support the inference. (Judicial Council of Cal. Crim. Jury Instns., CALCRIM No. 362.) He also claims there was insufficient evidence to support giving CALCRIM No. 357 on adoptive admissions, and the last bracketed sentence of CALCRIM No. 358, which told the jury to view his out-of-court statements with caution. Lastly, he claims the cumulative effect of these errors requires reversal. We find no error, and affirm.
II. FACTUAL BACKGROUND
A. Prosecution Evidence
Around 11:30 p.m. on June 22, 2008, San Bernardino County Sheriff’s Deputies Tyson Niles and Shaunna Ables were on patrol in Joshua Tree when they saw a white vehicle run through a stop sign. The vehicle pulled into a gas station, and the officers ordered the driver to stop. Defendant’s brother-in-law, Christopher Garcia, was the driver and registered owner of the vehicle. Defendant was in the front passenger seat, and a third man, Brian Novak, was in the back passenger seat. Novak had an open container of beer.
Deputy Niles asked the men whether there was anything illegal inside the vehicle, other than the open container of beer. Defendant said that he had a methamphetamine pipe, and handed the deputy a black pouch containing a pipe and three plastic baggies. One baggie had a green marijuana leaf design, another was black with a gold skull design, and the third baggie was clear.
The vehicle was then searched. Inside the glove box, Deputy Niles found a large plastic baggie containing several smaller baggies, and a hard plastic container with an “Icebreakers” emblem on it. Inside the Icebreakers box, he found a small blue plastic “spoon type instrument” with a spoon on either end of it, several more small plastic baggies with the marijuana logo, and a piece of a plastic grocery bag. Two of the plastic baggies and the piece of grocery bag contained a white crystalline substance. The two plastic baggies were later tested and found to contain 1.45 and.17 grams of methamphetamine. Under the front passenger seat the deputy found a metal container with two digital scales, several plastic baggies with the marijuana logo, and two methamphetamine pipes. No fingerprints were attempted to be taken from any of the items found in the vehicle.
Deputy Niles later interviewed defendant at the jail. Defendant denied that the Icebreakers box or metal container were his. Rather, he claimed they belonged to a friend whom he had seen earlier that evening. He refused to tell the deputy his friend’s name, even though he said he “didn’t really care for his friend anyway.” He claimed that around 7:30 that evening, he had been using Garcia’s car and gave his friend a ride. He was with his friend for around one hour. He recalled seeing that his friend had a black backpack, the Icebreakers box, and one of the scales found inside the metal container, which had a piece missing. Defendant told the deputy he had smoked methamphetamine that day, which his friend had given him and which “most likely” came from the Icebreakers box. He had known his friend for around one year, and his friend had been selling drugs the entire time he had known him.
Defendant further explained how he and his friend had parted ways that evening. At one point, defendant and his friend drove to defendant’s house, where defendant lived with his fiance, Amanda Garcia. Defendant and Amanda began arguing outside the house while his friend waited in the car. After Amanda threatened to call the police, defendant drove away with his friend, but stopped the car a short distance away from the house. At that point, his friend got out of the car and ran away. When Deputy Niles asked defendant why his friend may have left any items inside the car, defendant explained that his friend may have done so because Amanda had threatened to call the police.
Garcia confirmed he had loaned his car to defendant for several hours on June 22. He was surprised when defendant handed Deputy Niles a methamphetamine pipe, and he did not know there was any contraband in his car.
The prosecution elected to rely on the methamphetamine pipe defendant handed to Deputy Niles as the basis for the paraphernalia possession charge. The defense counsel conceded that defendant possessed the pipe.
B. Defense Evidence
Amanda testified for the defense. She and defendant had three children together. Around 7:00 p.m. on June 22, Amanda was at home when defendant drove up and parked in the driveway. He had a passenger in the front seat. She and defendant argued on the front porch while the passenger stayed in the car. She was angry with defendant because they had just moved into the house and he was not helping her with the move or the children. She threatened to call the police and was “pretty sure” the passenger heard her. Defendant got back into the car and drove away with the passenger. After defendant drove a short distance down the street, Amanda saw the passenger get out of the car and run away into a field. She did not know the passenger and had never seen him before, and could not see whether he was carrying anything in his hands.
III. DISCUSSION
A. Defendant’s Proffered Pinpoint Instruction on “Mere Proximity to the Contraband” Was Properly Refused
Defendant first claims, because the prosecution was relying on circumstantial evidence to prove he knowingly possessed the methamphetamine found in the glove box or Icebreakers box, the trial court erroneously refused to give one of several pinpoint instructions he proposed on whether he knowingly possessed the methamphetamine. He specifically argues that, in addition to giving CALCRIM No. 2304 on the elements of simple possession, the court had a duty to further instruct the jury that: “Mere proximity to the substance is insufficient proof of possession. There must be additional evidence of the defendant’s knowledge and control. Such knowledge and control may be established by circumstantial evidence, but such evidence must exclude every reasonable hypothesis except that of guilt, and proof amounting to mere probability or strong suspicion is insufficient.” (Italics added.)
On the elements of possession of a controlled substance in count 1, the jury was instructed with the language of CALCRIM No. 2304 (Simple Possession of Controlled Substance) as follows: “To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant unlawfully possessed a controlled substance; [¶] 2. The defendant knew of its presence; [¶] 3. The defendant knew of the substance’s nature or character as a controlled substance; [¶] 4. The controlled substance was methamphetamine; [¶] AND [¶] 5. The controlled substance was in a usable amount.” The court further instructed the jury with two bracketed portions of CALCRIM No. 2304: “Two or more people may possess something at the same time. [¶] A person does not have to actually hold or touch something, to possess it. It is enough if the person has control over it, or the right to control it, either personally or through another person.”
Defendant argues this pinpoint instruction was necessary to inform the jury that, in order to find him guilty of possessing the methamphetamine as charged in count 1, it had to find he knowingly intended to possess the drug or exercise dominion and control over it. We disagree that the trial court erred in refusing to give the instruction. For the reasons we explain, the proposed instruction was duplicative of CALCRIM No. 2304, which defined the elements of simple possession, and CALCRIM Nos. 224 and 225, which instructed on when it may rely on circumstantial evidence.
CALCRIM No. 224 (Circumstantial Evidence: Sufficiency of Evidence) was given in its standard form. It told the jury: “Before you may rely on circumstantial evidence to conclude that a fact necessary to find the defendant guilty has been proved, you must be convinced that the People have proved each fact essential to that conclusion beyond a reasonable doubt. [¶] Also, before you may rely on circumstantial evidence to find the defendant guilty, you must be convinced that the only reasonable conclusion supported by the circumstantial evidence is that the defendant is guilty. If you can draw two or more reasonable conclusions from the circumstantial evidence, and one of those reasonable conclusions points to innocence and another to guilt, you must accept the one that points to innocence. However, when considering circumstantial evidence, you must accept only reasonable conclusions and reject any that are unreasonable.”
CALCRIM No. 225 (Circumstantial Evidence: Intent or Mental State) was slightly modified from its standard form to emphasize that the issue before the jury was the defendant’s mental state, rather than his intent. The instruction told the jury: “The People must prove not only that the defendant did the acts charged, but also that he acted with a particular mental state. The instructions for each crime explain the intent/mental state required. [¶] An intent/mental state may be proved by circumstantial evidence. [¶] Before you may rely on circumstantial evidence to conclude that a fact necessary to find the defendant guilty has been proved, you must be convinced that the People have proved each fact essential to that conclusion beyond a reasonable doubt. [¶] Also, before you may rely on circumstantial evidence to conclude that the defendant had the required mental state, you must be convinced that the only reasonable conclusion supported by the circumstantial evidence is that the defendant had the required mental state. If you can draw two or more reasonable conclusions from the circumstantial evidence, and one of those reasonable conclusions supports a finding that the defendant did have the required mental state and another reasonable conclusion supports a finding that the defendant did not, you must conclude that the required mental state was not proved by the circumstantial evidence. However, when considering circumstantial evidence, you must accept only reasonable conclusions and reject any that are unreasonable.”
Defendant proffered three pinpoint instructions. In addition to the above quoted instruction, he proposed the following: “A person does not possess an object unless he has: [¶] 1) Knowing physical possession of the object; or [¶] 2) Immediate and knowing control over the object”; and, “The mere presence of a non-owner passenger in an automobile containing drugs and drug paraphernalia is not alone sufficient to prove possession. The prosecution must introduce additional evidence which convinces you beyond a reasonable doubt of both the defendant’s knowledge of the presence of the drugs and drug paraphernalia and the defendant’s unlawful possession of the drugs and drug paraphernalia.” (Italics added.)
Defendant acknowledges that the trial court “correctly criticized” the wording in his second proposed pinpoint instruction as incorrectly stating the law to the extent it referred to “[k]nowing physical control over the object” and “[i]mmediate and knowing control.” He concedes that the crime of constructive possession of a controlled substance does not require either “physical” or “immediate” control. (2 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Crimes Against Public Peace and Welfare, § 87, pp. 599-600.) Still, he argues, the trial court had a duty to “try to correct” his proposed instructions, notwithstanding their inaccuracies. (People v. Sears (1970) 2 Cal.3d 180, 190 [acknowledging that proposed pinpoint instructions were “defective in form in some respects” but directing trial court to give “appropriate” instructions on retrial].)
Specifically, defendant argues that his first proposed instruction that began with “[M]ere proximity to a controlled substance, without more, does not establish a dominion and control over the substance...” was a correct statement of the law. He relies on Goodlow v. Superior Court (1980) 101 Cal.App.3d 969, 975, where the court, quoting People v. Redrick (1961) 55 Cal.2d 282, 285, observed that: “‘“[P]roof of opportunity of access to a place where narcotics are found, without more, will not support a finding of unlawful possession.”’” Thus, he argues, the trial court had a duty to give that instruction.
We agree that the first sentence of defendant’s first proposed instruction correctly stated the law. (People v. Hunt (1971) 4 Cal.3d 231, 236 [“Proof of access to the place where the drugs are found, without more, is not sufficient to support a finding of unlawful possession.”].) But as the trial court said, the rest of the proposed instruction represented “a leap” in the law. Indeed, to say there must be “additional evidence” of the defendant’s knowledge and control or that circumstantial evidence of the defendant’s knowledge or control “must exclude every reasonable hypothesis except that of guilt” was incorrect and may have confused the jury, particularly in light of CALCRIM Nos. 224 and 225, which instructed the jury when it could and could not rely on circumstantial evidence to infer guilt.
Nevertheless, even if the proposed pinpoint instruction could have been corrected, it was properly refused because it would have been redundant with CALCRIM Nos. 2304, 224, and 225. (People v. Bolden (2002) 29 Cal.4th 515, 558 [trial court is not required to give pinpoint instructions that duplicate other instructions].) CALCRIM No. 2304 correctly instructed the jury that, in order to find that defendant unlawfully possessed the methamphetamine in the glove box, it had to find he knew of its presence and had control over it, whether alone or with other persons. And CALCRIM Nos. 224 and 225 properly instructed the jury that, before it could rely on any circumstantial evidence of defendant’s guilt, including circumstantial evidence of defendant’s mental state, it had to “be convinced” that defendant’s guilt was “the only reasonable conclusion” the circumstantial evidence supported. As such, the CALCRIM instructions effectively told the jury that defendant’s “mere proximity” to the methamphetamine, without more, was insufficient to prove he knowingly possessed the drug, and otherwise properly instructed the jury on when it could infer guilt based on circumstantial evidence. Thus, defendant’s proposed pinpoint instructions were properly refused.
B. The Jury Was Properly Instructed on Consciousness of Guilt (CALCRIM No. 362)
Next, defendant contends the trial court erroneously instructed the jury in the language of CALCRIM No. 362, that it could infer he had a consciousness of guilt and was therefore guilty, because there was no evidence he made a false or misleading statement relating to the charged crime. We disagree. The instruction was given based on defendant’s statements to Deputy Niles that the methamphetamine in the glove box belonged to his unnamed “friend,” and he did not intend to exercise dominion or control over it. Substantial evidence showed that these statements were false. The instruction was therefore properly given.
CALCRIM No. 362 told the jury: “If the defendant made a false or misleading statement relating to the charged crime, knowing the statement was false or intending to mislead, that conduct may show he was aware of the guilt of the crime and you may consider it in determining his guilt. [¶] If you conclude that the defendant made the statement, it is up to you to decide its meaning and importance. However, evidence that the defendant made such a statement cannot prove guilt by itself.”
The court has a duty to instruct sua sponte on consciousness of guilt when there is evidence the defendant intentionally made a false statement from which such an inference of guilt could be drawn. (People v. Atwood (1963) 223 Cal.App.2d 316, 333-334; see also People v. Edwards (1992) 8 Cal.App.4th 1092, 1103-1104; Bench Notes to CALCRIM No. 362 (Apr. 2008), p. 132.) “Deliberately false statements to the police about matters that are within an arrestee’s knowledge and materially related to his or her guilt or innocence have long been considered cogent evidence of a consciousness of guilt, for they suggest there is no honest explanation for incriminating circumstances. [Citation.]” (People v. Williams (2000) 79 Cal.App.4th 1157, 1167-1168.)
The false nature of the defendant’s statement may be shown by inconsistencies in his own testimony, his pretrial statements, or by any other evidence. (People v. Kimble (1988) 44 Cal.3d 480, 498 [overruling cases requiring that falsity of statement be shown only by the defendant’s testimony or statements].) Before instructing on consciousness of guilt, the court must determine there is substantial evidence that the defendant made a false or misleading statement from which his guilt could be inferred. (People v. Hannon (1977) 19 Cal.3d 588, 597-598.)
Defendant argues that the court erroneously failed to determine whether there was substantial evidence that defendant’s statements to Deputy Niles were knowingly false or misleading, before giving CALCRIM No. 362. We disagree. In giving the instruction, the court implicitly determined there was substantial evidence that defendant’s statements to Deputy Niles were intentionally false and misleading. Indeed, it was reasonable to infer that defendant’s statements were false, because (1) he refused to disclose the name of his friend, and (2) it was questionable whether the friend, whom defendant described as a drug dealer, would, for no apparent reason, abandon his contraband in the car with defendant. When the “friend” supposedly ran away from the car, leaving the contraband inside, there were no police in the immediate area. Even if defendant’s fiance had called the police, as she had threatened to do, the police were not present. In addition, the friend was supposedly carrying a backpack and could have placed the methamphetamine, paraphernalia, and other items inside the backpack. For these reasons, defendant’s “story” was suspiciously false. There was therefore sufficient evidence to allow the jury to determine its truth or falsity, and if false, its meaning and importance.
At trial, defense counsel objected to the instruction on the grounds defendant did not testify and there was no evidence his statements to Deputy Niles were false. She argued the instruction suggested to the jury that defendant’s statements were false, when there was no evidence they were. The trial court overruled the objection, noting that defendant’s failure to testify was not “germane” to the instruction, and the instruction told the jury to determine whether defendant knowingly made any false or misleading statements relating to the crime and, if so, to determine their meaning and importance. In so ruling, the trial court implicitly determined there was substantial evidence from which the jury could have reasonably inferred defendant’s statements were false.
C. CALCRIM Nos. 357 and 358 Were Properly Given
Lastly, defendant claims the trial court erroneously instructed the jury on adoptive admissions (CALCRIM No. 357) and on viewing defendant’s statements with caution (CALCRIM No. 358). In the trial court, defendant failed to object to either instruction and has therefore forfeited any claim of error. (People v. Bolin (1998) 18 Cal.4th 297, 326; see also People v. Stone (2008) 160 Cal.App.4th 323, 331.) Nevertheless, both instructions were properly given.
As modified, CALCRIM No. 357 (Adoptive Admissions) told the jury: “If you conclude that someone made a statement outside of court that accused the defendant of the crime or tended to connect the defendant with the commission of the crime and the defendant did not deny it, you must decide whether each of the following is true: [¶] 1. The statement was made to the defendant or made in his presence; [¶] 2. The defendant heard and understood the statement; [¶] 3. The defendant would, under all the circumstances, naturally have denied the statement if he thought it was not true; [¶] AND [¶] 4. The defendant could have denied it but did not. [¶] If you decide that all of these requirements have been met, you may conclude that the defendant admitted the statement was true.”
CALCRIM No. 358 (Evidence of Defendant’s Statements) told the jury: “You have heard evidence that the defendant made an oral statement before the trial. You must decide whether or not the defendant made any such statement, in whole or in part. If you decide that the defendant made such a statement, consider the statement, along with all the other evidence, in reaching your verdict. It is up to you to decide how much importance to give to such a statement. [¶] You must consider with caution evidence of a defendant’s oral statement unless it was written or otherwise recorded.”
Defendant argues that CALCRIM No. 357 was without factual basis and was inappropriately used by the prosecution. In closing argument, the prosecutor referred to CALCRIM No. 357 and two instructions on direct and circumstantial evidence, namely, CALCRIM Nos. 220 and 225, in arguing that defendant knew the substance found in the car was methamphetamine. The prosecutor’s point was that the evidence circumstantially showed defendant knew the substance in the car was methamphetamine, because (1) when initially confronted by Deputy Niles, he did not deny knowing the substance in the car was methamphetamine (CALCRIM No. 357), and (2) he later admitted smoking methamphetamine that day with his friend, and that the methamphetamine he smoked “most likely” came from the Icebreakers box in the car. This was proper argument, and a proper use of CALCRIM No. 357. Defendant’s failure to deny that the methamphetamine was his, when he was initially confronted by Deputy Niles, supported giving CALCRIM No. 357. (People v. Zavala (2008) 168 Cal.App.4th 772, 779-780.)
Defendant argues the prosecutor was “in effect” claiming that defendant made a false or misleading statement and should have instead referred the jury to CALCRIM No. 362, because she was arguing that defendant denied knowing the nature of the substance in the car. We agree with defendant that there is no evidence he ever stated or indicated he did not know what the substance in the car was. Moreover, the prosecutor did not suggest he made such a statement or indication. Defendant misapprehends the prosecutor’s argument. Her point was that circumstantial evidence showed defendant knew the substance in the car was methamphetamine because (1) when initially confronted, he did not deny knowing it was methamphetamine, and (2) he later admitted smoking some of the methamphetamine from the car. The prosecutor was not suggesting that defendant falsely claimed he did not know the substance was methamphetamine.
Lastly, defendant argues that the final bracketed sentence of CALCRIM No. 358, on viewing his out-of-court oral statements with caution, was improperly given. He argues that when a defendant’s exculpatory out-of court statements are introduced, the cautionary portion of the instruction should not be given. And here, he argues, his statements to Deputy Niles that his friend possessed the methamphetamine were exculpatory, not inculpatory or incriminating. (People v. Slaughter (2002) 27 Cal.4th 1187, 1200 [approving cautionary instruction limited to inculpatory oral statements, or statements tending to prove the defendant’s guilt].) He further observes that the final bracketed sentence of CALCRIM No. 358 was revised in December 2008 to limit its application to oral statements tending to show the defendant’s guilt, but the given instruction in this case was not limited to incriminating statements. Trial in this case was held in August 2008.
Again, defendant misapprehends the nature of the evidence supporting CALCRIM No. 358. When there is evidence the defendant made an incriminating out-of-court statement, the trial court has a duty to instruct the jury sua sponte that the statement should be viewed with caution. (People v. Beagle (1972) 6 Cal.3d 441, 455-456.) And here, defendant’s statements to Deputy Niles that he possessed a methamphetamine pipe, that he had smoked methamphetamine earlier that day, and that he knew the methamphetamine he smoked “most likely” came from the Icebreakers box found in the glove box, were incriminating. They tended to show that defendant knew the substance in the Icebreakers box was methamphetamine. If defendant wanted to limit CALCRIM No. 358 to exclude his statements about his friend possessing the methamphetamine, he should have requested a limiting instruction. (People v. Smith (2007) 40 Cal.4th 483, 516 [absent request by defendant, court has no duty to give limiting instruction sua sponte].)
D. No Cumulative Error
Defendant claims the cumulative effect of the trial court’s instructional errors requires reversal. Because we find no individual error, we find no cumulative error. (People v. Richardson (2008) 43 Cal.4th 959, 1036.)
IV. DISPOSITION
The judgment is affirmed.
We concur: McKinster, Acting P.J., Richli, J.