Opinion
F052256
7-30-2008
THE PEOPLE, Plaintiff and Respondent, v. VIDAL DANNY GONZALEZ, Defendant and Appellant.
Laura Schaefer, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Charles A. French and Janine R. Busch, Deputy Attorneys General, for Plaintiff and Respondent.
Not to be Published
Defendant Vidal Danny Gonzalez appeals from the judgment entered following a jury trial in which he was convicted of transportation of methamphetamine (Health & Saf. Code, § 11379, subd. (a); count 1), possession of methamphetamine for sale (Health & Saf. Code, § 11378; count 2), and possession of a firearm (Pen. Code, § 12021, subd. (a)(1); count 3). It was further found that all the offenses were committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)), and that defendant was personally armed with a firearm (§ 12022, subd. (c)) in the commission of the methamphetamine offenses. The trial court found that defendant had a prior serious conviction, which also qualified as a strike, and a prison prior (§§ 667, subd. (a)(1), 667, subds. (c)-(j), 1170.12, subds. (a)-(e), 667.5, subd. (b)). Defendant was sentenced to 18 years in prison, consisting of six years (the midterm doubled) for the transportation of methamphetamine offense, five years for the prior serious conviction, four years for the arming enhancement, and three years for the gang enhancement. Defendant contends (1) a jurors inadvertent receipt of extraneous information resulted in prejudicial juror misconduct, (2) insufficient evidence supports his convictions for transportation and possession for sale of methamphetamine because there is no evidence he knew methamphetamine was in the pickup truck involved in the offenses, and (3) the trial court erred by instructing the jury with CALJIC No. 2.11.5 regarding unjoined perpetrators. We will affirm the judgment.
Further statutory references are to the Penal Code unless otherwise specified.
FACTS
Corina Ramirez-Mesa testified under a grant of immunity that on the night of February 22, 2006, she was driving her mothers white, extended-cab Dodge pickup in Wasco with her cousin Melissa. Corina was parked in the parking lot of an apartment complex, when defendant came up and asked Corina if she could give him a ride to Bakersfield or Delano. Corina testified, "I believe he asked me to give him a ride because something about some money that was owed to him and Fernando [Enrique], I cant remember." Corina thought the money was owed to Fernando but defendant was the one saying that Fernando "needed to go look for somebody who had burned him for some money."
Corina testified she had known both defendant and Fernando for some years, and that she also knew defendant by the name of "Bart" and Fernando by the name of "Ghost." Defendants girlfriend, Suzanne, went by the name "Casper." Corina testified that, although she had used methamphetamine the day before, she did not use any drugs the night defendant asked for a ride. Corina admitted that around the time of the events in this case she was smoking methamphetamine on a daily basis, and that she would sometimes buy her dope from Fernando.
Although she was scared about the possibility of violence occurring, Corina agreed to give defendant a ride. Corina and defendant first went to drop off her cousin Melissa. They then returned to the apartment complex to pick up Fernando and a friend named Jill. Defendant sat in the front passenger seat. Defendant brought a rifle with him, which he placed underneath the seat. He was also carrying a smaller gun which looked like a handgun.
Fernando and Jill got into the backseat of the pickup. Fernando was carrying a small, black "Raiders" bag in his hand. Corina could not tell if there was anything in the bag. Neither defendant nor Fernando talked about the bag.
Corina testified that it took about 15 to 20 minutes to drive from Wasco to Delano. When asked by the prosecutor if anybody discussed drugs at all during the trip, Corina testified that "[e]verybody that was in the vehicle" was "[t]alking about the reason why were going over there." Corina explained that she asked Jill the reason for the trip, and Jill told her that "they had gotten drugs earlier and that the drugs were no good." When asked whether defendant said anything about drugs being in the car, Corina testified: "No, he was just stating how the drugs that Jill and Fernando had purchased were no good, and they were wanting to go and get the money back for them." Defendant and Fernando never talked about having drugs in the vehicle on the way to Delano.
After driving to several different locations around Delano, Corina drove to a "Fastrip" on Cecil Avenue. A man driving a two-door, silver Honda pulled into the parking lot. Defendant and Fernando got out, while Corina and Jill stayed inside the pickup. Defendant went up to the drivers side of the Honda, and Fernando went to the other side. Corina heard defendant and the man arguing and then they suddenly started fighting. Fernando opened the passenger door and started hitting the man. The fight did not last long before Corina heard two quick gunshots. She could not tell who was doing the shooting.
After she heard the gunshots, Corina started to take off. Fernando jumped into the pickup. He was followed by defendant, who had been shot. Corina testified she left Jill on Cecil Avenue, near where defendant had been shot, because she was "mad" at Jill about "the whole situation." Corina added that she left Jill behind because "supposedly they were talking about some gun, I dont know, and she went back to go find it, because she was going to get off the vehicle to go look for it."
Corina next drove to an "A.M./P.M." because she was running out of gas. Fernando gave her money and she went into the store to pay while he pumped gas. She did not think he finished pumping all that was paid for because they were in a rush to get out of Delano to get help for defendant.
They returned to Wasco sometime between 12:00 and 1:00 a.m. Corina took defendant to her friend Rebeccas house because defendant did not want to go to the hospital. Corina and Fernando carried defendant into the house. He was bleeding quite a bit. They placed defendant on a blanket and removed his shirt to see where he had been shot.
Fernando left and returned to the house with defendants cousin, Cecilia Saldana. Cecilia drove defendant and Fernando in her car to Kern Ambulance, while Corina followed in the pickup. Corina parked the pickup in the driveway of a friend who lived close to the ambulance station and then walked over to see if defendant was okay.
Lloyd Pierucci, one of the paramedics who worked at Kern Ambulance, came out and saw defendant in the backseat of Cecilias car wrapped in a blanket with Fernando supporting him. Cecilia was "very hysterical, and saying please help him." Defendant told Pierucci that he had been walking down an alley when someone jumped out of a bush and shot him. Defendant would not say exactly where this happened.
After defendant was loaded in an ambulance to be transported to the hospital, Pierucci noticed that Fernando and Corina were walking towards a white pickup truck parked about 30 yards west of the ambulance station. Pierucci ordered them to stop and return to the station. He then directed them to sit on the curb next to Cecilia. Within several minutes, deputies from the sheriffs department arrived.
Deputy Raul Murillo spoke with Corina and asked her what she was doing there. Corina told the deputy the victim was a friend of hers and she wanted to see how he was doing. She claimed a friend drove her over to the ambulance station. When asked what vehicle she arrived in, Corina pointed to the pickup parked in a residential driveway nearby. Deputy Murillo noticed that the passenger door was open and asked Corina if anybody else was in the pickup. Corina said there was not. When Deputy Murillo told Corina the passenger door was open, she appeared to get "really nervous" and started to walk away from him to close the door. Deputy Murillo told Corina to wait there, and that he would go close the door.
Deputy Murillo went to the passenger side of the pickup and looked inside. He saw a purse and cell phone on the floorboard. He shined his light through the rear passenger window and saw money "thrown all over the back seat." There was a black bag next to the money. On the floorboard, he could see the barrel of a rifle.
Deputy Murillo returned and asked Corina if there was anything illegal inside the pickup. Corina said she did not think so. Deputy Murillo then asked for her consent to search the pickup. Corina replied, "Go ahead, but its not my truck."
The pickup was searched and a number of items were seized by Deputy Jackie Green, including a rifle and an empty magazine, which was located in the console area between the drivers and passengers seats. There was also a cell phone on the front floorboard. The names "Bart" and "Casper" appeared on the display screen.
Deputy Green testified that from the backseat she seized a "black lunch-style bag with a Raiders logo on it." Concerning the black Raiders bag, Deputy Green testified: "The first thing that I remember seeing was a clear, plastic baggie with a crystal-type substance that I believe, based on my training and experience, to be possibly methamphetamine." Deputy Green explained the black bag was not fastened or locked but rather "was open and the contents of it were partially spilled out, like it had been thrown in the back and came open." When asked about the contents of the bag, Deputy Green testified: "That I could remember, there were three clear, plastic baggies with suspected methamphetamine; a small plastic box that, if I remember correctly, was transparent, that had suspected methamphetamine in it; a bundle of identification cards and miscellaneous credit cards for, I believe Helen Scoggins; a black and chrome folding knife." Deputy Green further testified that cash totaling $106 was "strewn across the back seat, behind the passenger side."
Later testing revealed the three plastic baggies inside the black Raiders bag contained methamphetamine, and weighed 13.7, 13.6, and 11.9 grams, respectively. The clear plastic box contained a white, crystalline material. Although the substance resembled methamphetamine in appearance, it contained no detectible controlled substances.
After defendant was arrested, he called Cecilia from jail. A recording of their conversation was played to the jury. During the conversation, which contained many slang expressions, Cecilia essentially told defendant that it appeared Corina had informed on him ("dropped dime") and Fernando ("Ghost") to the sheriffs deputies. Cecilia explained that when she spoke with them, they knew where she had picked defendant up on the night of the shooting. She also told defendant they "had videos of you guys in Delano. I think at a[n] AM/PM where you guys put gas, I dont know. They said that that girl was running in buying bottled waters and Ghost was pumping gas...." When Cecilia indicated she thought Corina was "the only person who couda said shit," defendant responded: "Yep. Her and that white bitch Jill."
Cecilia went on to describe to defendant what happened after Cecilia drove him to the ambulance station:
"Cecilia: She followed in that truck that you guys were in.
"Vidal: Yeah.
"Cecilia: And she tried say [sic] she came walking, when the cops seen her walking to the truck and they searched her truck and whatever was in there I dont know. They found it all.
"Vidal: Are you serious?
"Cecilia: They took her to jail that night too but shes out now. What a coincidence.
"Vidal: You serious? They took
"Cecilia: So whatever was in there Vidal, you guys are going
"Vidal: My fuckin twenty-two was in there fool...
"Cecilia: Hey.
"Vidal: ...and my handprints all over that shit.
"Cecilia: Hey, well I dont know, you know like, I dont really want to say nothing though cause whatever, the phone, but whatever was in there, all you guys are going down. They picked up Ghost. Its mostly you and Ghost cause most likely that [girl] dropped dime.
"Vidal: Damn man.
"Cecilia: I told you `stay out of trouble.
"Vidal: I was trying to help you out `ey and my fuckin I was trying to do everything, you dont even know (inaudible).
"Cecilia: I know but like I told you like dope is like, I dont know, but you know what youre okay and thats like, really the only thing like that I was tripping off of.
"Vidal: Well if, Im never gonna get out now. They charge this against me, Ill never get out. Fuck it." (First bracketed insertion added.)
Cecilia next told defendant that "the homies" were unfairly blaming Fernando for what happened and asked defendant to talk to them:
"Cecilia: Manuel is on the other line, you know that theyre trying to blame all this shit on Ghost?
"Vidal: How?
"Cecilia: That it was his shit that, that he was the one trying to sell and the only reason why you had it was because of him and this and that.
"Vidal: What?
"Cecilia: Yep. And I told them `you know what, you dont even know the bi-the people you should be blaming those fucking sorry ass [girls]. They tried to jump him, you know, that right.
"Vidal: Jump who?
"Cecilia: Ghost at Christinas house. Manuel and that fuckin Simon Samarippas.
"Vidal: [Serious]?
"Cecilia: Let me get the number to where Manuels at so you can talk to him all right?
"Vidal: All right. Hey go get a pencil real quick dawg.
"Cecilia: Cause I told `em that Manuel, that Ghost is the only one who fuckin even had the fuckin courtesy to call me, not to leave you, know what Im saying? [¶] ... [¶]
"Vidal: They tried to jump him, what, what do you mean they tried to jump him?
"Cecilia: At Christinas house. Like he answered the door and Manuel like swung at him and like Ghost fell and then fuckin Simon tried to rush him.
"Vidal: [Serious]?
"Cecilia: Yeah that shit pissing me off and Im telling Manuel right now, nah, nah, it aint even like that, you dont even know. You know?
"Vidal: (Inaudible).
"Cecilia: And hes all like `Yeah, all the homies are saying that Ghost left him hanging. I go `Oh, the homies who were there? Fuckin first row? I go `Cause the only homie that I know that was there was Ghost.
"Vidal: Ghost is the only one that was helping me and shit `ey...
"Cecilia: Exactly. But they said as, as soon as the next day came Ghost should have been up telling everybody to go fuckin do pay back.
"Vidal: That what, what, what, what?
"Cecilia: That Ghost should have been right there telling them like go get pay back.
"Vidal: We dont even know them [dudes].
"Cecilia: Exactly. And I told them, the people who they should be looking for are those two fucking bitches.
"Vidal: Thats who they should be getting right now. Those two fuckin stupid bitches `ey. Cause if it werent for the stupid ass bitch Jill I wouldnt be involved in this shit right now `ey, you know that." (Third & fourth bracketed insertions added.)
Deputy Justin Fleeman testified both as an expert on narcotics and gangs. Based on the quantity and packaging, Deputy Fleeman opined that the methamphetamine found in the pickup was possessed for sales. Deputy Fleeman further that defendant and Fernando were active members of the Varrio Wasco Rifas (VWR) gang, also known as the "Wasco 13" gang. His opinion was based on their prior police contacts, gang tattoos, and photographs of them flashing gang signs with other known VWR members. The defense stipulated that the VWR was a criminal street gang within the meaning of the gang enhancement statute.
Deputy Fleeman testified that the primary activities of the VWR gang are narcotics sales, assaults, and robberies and that the gang is particularly known for selling and transporting methamphetamine. It is also common to see VWR members not just possess methamphetamine for sale but also use the drug. Weapons are common "tools of the trade" in drug sales. Regarding the role of weapons, Deputy Fleeman testified they were used, "[t]o protect people from rival gangs" and "other people that may try and rob them of their narcotics." Presented with a series of hypotheticals based on the facts of this case, Deputy Fleeman opined the crimes were committed for the benefit of the gang.
DISCUSSION
I. Defendant Was Not Prejudiced by Inadvertent Juror Misconduct
After the 3:00 p.m. break on the second day of defendants jury trial, Juror No. 6 inadvertently overheard a conversation between defense counsel and a trial observer. Juror No. 6 reported the incident to the bailiff the next morning and a hearing was held on the matter. Juror No. 6 told the trial court that she was in the hallway near the restroom, when defense counsel and a trial observer walked by. The observer was "upset and crying" and said to defense counsel, "I knew that he was involved. And I know he was there. But I just wish he didnt have to go to jail for so long." Defense counsel replied, "Dont talk so loud, or something like that." After a lengthy inquiry by the trial court into the jurors ability to be impartial, the court denied defendants motion to excuse the juror and replace her with an alternate. Defendant now contends the court erred in denying the motion. He claims he was prejudiced by the misconduct arising from the jurors inadvertent receipt of extraneous information about the case because the statements overheard by Juror No. 6 were inherently prejudicial. We disagree.
Although the bailiff identified the trial observer as defendants mother, there is no record indication that Juror No. 6 was aware of the precise relationship between the observer and defendant. After questioning the juror, the court questioned the bailiff, who confirmed that, although his note stated the juror reported overhearing a conversation between defense counsel and defendants mother, the juror had simply referred to defendants mother as "the observer."
A. Background
After the juror described the conversation she overhead, the court conducted the following inquiry:
"THE COURT: All right. Now, as far as anything else the other person said, was there anything else?
"A JUROR: No, sir.
"THE COURT: Okay.
"All right. Now, let me ask you — obviously, youre a juror. You know, in terms of — you have the responsibility to listen to the information and the evidence thats presented. And eventually you, along with 11 other persons, will be back in the jury room. And the law anticipates you, as well as the other 11 jurors, give each other the benefit of each persons evaluation of the evidence, what it shows or tends to show and what it doesnt show or tend to show.
"Now, obviously you heard a comment by someone who was sitting in the audience about what, you know, that person, I guess, heard or thought she heard, correct?
"A JUROR: Yes.
"THE COURT: Now, that person doesnt have any responsibility of evaluating the evidence as it relates to the charges.
"But is there anything about what that person said about — that reflected what she heard that would — or could influence you in how you see the evidence thats been presented so far?
"Because it appears that person drew some conclusions about the evidence just in a sense. So its a question of whether that is something that you feel is impacting you or could impact you on how you view the evidence, per se.
"A JUROR: Not with regard to the evidence. I dont think so.
"THE COURT: All right. In other words, that person is drawing whatever conclusions that person was drawing. And what its based on, of course, we dont know. But I want to make sure its not something that causes you to come to some conclusion or tend to come to a particular conclusion about the evidence just because of what that person said.
"Is that fair?
"Thats not going to influence you?
"A JUROR: Yes. I could attempt to not allow that to influence me and base my opinions purely on the evidence presented.
"THE COURT: Okay. Let me just step back a bit.
"You know, we dont have — you know, we dont have a lot of people in the courtroom being observers. But just assuming for a moment we had every seat in the back filled with observers, common sense tells us that every one of those persons would be making their own opinion about one thing or the other. And since they dont have any responsibility about deciding the case, theyre perfectly within their realm to conclude anything they wish to based on what they hear, correct?
"A JUROR: Uh-huh.
"THE COURT: And so if we had a courtroom filled with observers and you were a juror, you would assume that all of those people have their minds — they can make their minds up based on what they hear, but they dont have any responsibility in terms of following the law and seeing if the evidence actually proves something or the evidence doesnt prove something. There was — they have no responsibility whatsoever.
"Fair enough?
"A JUROR: Right.
"THE COURT: So in this sense, here is a person thats obviously observing. But I appreciate the fact you realize that whatever that person said was based on impressions that that person might have had without any responsibility to follow through and actually decide the case.
"And, secondary, there was, apparently, a part of the remark that had to do with any potential consequences, if there were any verdicts of guilty.
"You know, apparently, there was something said about time or punishment, correct?
"A JUROR: Uh-huh.
"THE COURT: Now, one of the things that the jurors would be advised as part of the law is that jurors are to make decisions without any regard to the consequences of any decision thats made, okay?
"A JUROR: Uh-huh.
"THE COURT: So in other words, youre a juror in every case, whether its this case or any other case, where someone is charged with a crime. Jurors are routinely advised of the consequences or ideas of punishment are not to be considered by jurors one way or the other in trying to decide what the evidence proves in a case.
"A JUROR: Okay.
"THE COURT: So this comment by this person obviously, again, must have reflected some — some concerns that this person had about that issue.
"Do you feel that that comment is something that you can disregard totally?
"A JUROR: I think so.
"THE COURT: In other words, follow the law as I will instruct you later, that issues of punishment are not to be considered by jurors. [¶] ... [¶]
"Oh. By the way, please dont talk with other jurors about anything weve talked about in here or anything that occurred out there.
"So let me ask you in that regard: Have you discussed anything with other jurors about that conversation?
"A JUROR: Not at all."
Following this colloquy, defense counsel moved to excuse the juror. The trial court denied the motion, explaining:
"Im of the opinion that — obviously, I inquired of her rather specifically of the extent of the conversation. We know what that conversation was that she overheard.
"And I do believe that most jurors — I inquired of her. I realize people who are observing a trial will make their own conclusions or draw their own conclusions about one aspect or another of the information. And that has no bearing on a jurors decision. Its totally independent. They have responsibilities.
"And she, quite clearly, in the Courts estimation, is well aware of the differentiation between herself as a juror and the person in the audience having perspectives of their own or her own, as is the case here.
"Im impressed by the jurors candor and her ability under the circumstances to recollect and tell us exactly what was said. I think that speaks well of jurors.
"She conscientiously made sure she knew what was said so that she could accurately report it to the Court. And I do recall that inference because she immediately reported it to the bailiff this morning.
"So Im quite impressed by the integrity of the juror in bringing the information to us and telling us.
"I think she was very responsive to us when I was inquiring of her concerning how it would impact her and, certainly, by the way she responded and her candidness about all the issues.
"Im convinced that shes well aware that she cannot consider issues of punishment. Im well aware that shes aware — I find that shes very well aware that she has to make an independent decision, regardless of how any observer might feel about issues in a case.
"Additionally, as I see it, the evidence so far, it could change. But what Ive heard so far is the evidence has to do with a situation where, as its been presented, unless this changes, the whole form of the evidence is that there was a trip to and from the location where something happened. Exactly what, of course, seems to be a considerable question. And exactly who did what and is responsible for what, of course, may appear, as much as anything else, a legal question or results of the jurors — I shouldnt say legal question, but a result of the jurors assessing the quality and nature of the evidence in terms of the individual responsibility of anybody who might have been at a location or in a vehicle or part of a group, so to speak, that was in a vehicle and came and went under the circumstances, as reflected by the evidence presented.
"So it would appear to the Court that based on what the jurors said that she is somebody that can remain fair and decide the case based on the evidence and according to the law. So I will deny the request that she be excused at this point."
B. Analysis
Defendants request that Juror No. 6 be excused was akin to challenging the juror for cause based on actual bias. "`In general, the qualification[s] of jurors challenged for cause are "matters within the wide discretion of the trial court, seldom disturbed on appeal." [Citation.]" (People v. Holt (1997) 15 Cal.4th 619, 655-656.) The erroneous denial of a challenge for cause will require reversal of the judgment if the error affected the defendants right to a fair and impartial jury. (See People v. Bittaker (1989) 48 Cal.3d 1046, 1087.) But once the juror has been seated, the "jurors inadvertent receipt of information that had not been presented in court falls within the general category of `juror misconduct. [Citations.]" (People v. Nesler (1997) 16 Cal.4th 561, 579.)
The defendant bears the burden of showing juror misconduct. (People v. Marshall (1990) 50 Cal.3d 907, 949.) A jurors "inadvertent receipt of information outside the court proceedings is considered misconduct." (People v. Zapien (1993) 4 Cal.4th 929, 994, internal quotations omitted.) If misconduct is shown, "prejudice is presumed [and] the state must then rebut the presumption" or risk losing the verdict. (People v. Marshall, supra, 50 Cal.3d at p. 949.)
Nevertheless, when jury misconduct involves the receipt of information about a party from extraneous sources, "the verdict will be set aside only if there appears a substantial likelihood of juror bias." (People v. Nesler, supra, 16 Cal.4th at p. 578, italics added.) Bias may appear in two ways. First, "if the extraneous material, judged objectively, is inherently and substantially likely to have influenced the juror," the material is deemed prejudicial in and of itself and bias is found. (In re Carpenter (1995) 9 Cal.4th 634, 653, italics added.) Second, we look "to the nature of the misconduct and the surrounding circumstances to determine whether it is substantially likely the juror was actually biased against the defendant." (People v. Nesler, supra, 16 Cal.4th at p. 579, italics added, internal quotations omitted.)
The assessment of whether a defendant was injured by receipt of outside evidence "`"necessarily depends upon whether the jurys impartiality has been adversely affected, whether the prosecutors burden of proof has been lightened and whether any asserted defense has been contradicted."" (People v. Zapien, supra, 4 Cal.4th at p. 994.) On the other hand, "`"since jury misconduct is not per se reversible, if a review of the entire record demonstrates that the appellant has suffered no prejudice from the misconduct a reversal is not compelled."" (Ibid., citations omitted, citing People v. Martinez (1978) 82 Cal.App.3d 1, 22.) The fact that the jury was "`placed in a potentially compromising situation" is not enough to warrant the grant of a new trial. (In re Carpenter, supra, 9 Cal.4th at p. 655.) In fact, the occurrence of jury misconduct "does not preclude the court, upon learning of misconduct prior to rendition of a verdict, from questioning the jurors concerning the misconduct and admonishing them to disregard such improper influences." (People v. Zapien, supra, 4 Cal.4th at 996.) Specifically, the California Supreme Court has held "`"[t]he presumption of prejudice may be dispelled by an admonition to disregard the improper information"" and "`[w]e generally presume that jurors observe such instructions." (Ibid., last bracketed insertion added.)
Defendant asserts that the statements overheard by Juror No. 6 were inherently prejudicial and therefore the verdict must be set aside. Thus, in his opening brief, he argues: "It is difficult to contemplate a more powerful or influential statement than that of a mother indicating that the accused was `involved in the charged offenses and was destined to serve a very long prison sentence." Defendant recognizes that the juror did not refer to the trial observer as his mother but
"The trial court did not ask this juror whether she knew that the `observer was [defendants] mother, but it would be obvious to the juror that this individual was someone close to [defendant] because she was upset and crying when she related that she `knew that [defendant] was `involved in the crimes. There was a real danger this juror would speculate that the observer based the statement on some extraneous `inside information not presented at the time of trial, and that the statements influenced this jurors view of the case."
While we agree Juror No. 6 was probably able to infer from the fact the trial observer was crying and speaking with defense counsel that she had some personal connection to defendant, we cannot agree that the statements the juror overheard, judged objectively, were so prejudicial in and of themselves that they were inherently and substantially likely to have influenced the juror. The brief statements at issue did not disclose any particular details or the basis of the observers purported knowledge that defendant "was involved" and "was there" or her belief he was going to go to jail for a long time. (Contrast People v. Holloway (1990) 50 Cal.3d 1098, 1110 [where a juror read a newspaper article that revealed the defendant had a prior conviction for assaulting a woman with a hammer, the court concluded the unauthorized revelation the defendant had been convicted of a brutal crime was inherently prejudicial].) Here, the vague statements Juror No. 6 overheard did not tie defendant to the commission of any specific crime or contain any information that could be said to be inherently prejudicial.
Moreover, the record rebuts any presumption of actual juror bias. The trial court learned of the misconduct prior to rendition of a verdict. The court admonished the juror to disregard the statements she overheard and not to share them with the jury, explaining carefully why it would be improper for her to consider the observers opinion on the issues of guilt and punishment and pausing frequently to ask the juror if she understood, to which she indicated she did. The court assessed the jurors credibility, and determined she appeared to be candid and able to understand and follow the courts admonishments, and we find no basis in the record to conclude differently. The court also reasonably did not alert the juror to the fact the trial observer was defendants mother by asking the juror if she was aware of their relationship.
In our view, the brief comments overheard by Juror No. 6 did not lighten the prosecutions burden or contradict his defense. The evidence that defendant was involved in the instant offenses was very strong. Although defense counsel did suggest in closing argument that defendant might not have been in the pickup at all, this suggestion was simply not plausible. The evidence defendant was in the pickup was overwhelming and he does not argue otherwise on appeal. As explained below, his knowledge of the drugs in the pickup could be inferred from the circumstances, including his own statements when he called Cecilia. He was also clearly worried about his rifle being found in the pickup ("My fuckin twenty-two was in there fool"). Given the strength of the evidence, the vagueness of the statements the juror overheard, and the courts admonishments which the juror presumably followed, we conclude the misconduct arising from the jurors inadvertent receipt of extraneous information did not prejudice defendant.
II. Substantial Evidence Supports Defendants Convictions for Transportation and Possession for Sale of Methamphetamine.
Defendant next contends the evidence was insufficient to establish the knowledge element of the offenses of transportation and possession for sale of methamphetamine. Defendant argues that, at most, the evidence established he went to Delano armed with a rifle to assist in the collection of money from an individual who sold bad drugs to Jill and Fernando. However, he asserts, there is no evidence from which the jury could reasonably infer he knew there was methamphetamine in the black Raiders bag Fernando brought with him into backseat of the pickup. We disagree.
Defendant does not challenge the evidence concerning any of the other elements of the methamphetamine offenses, and thus implicitly concedes the sufficiency of the evidence supporting them.
"`The proper test for determining a claim of insufficiency of evidence in a criminal case is whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] On appeal, we must view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.]" (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) This standard of review also applies when the evidence presented at trial is circumstantial. (People v. Towler (1982) 31 Cal.3d 105, 118.) "Reversal on this ground is unwarranted unless it appears `that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction]." (People v. Bolin (1998) 18 Cal.4th 297, 331.)
"Unlawful possession of a controlled substance for sale requires proof the defendant possessed the contraband with the intent of selling it and with knowledge of both its presence and illegal character. [Citation.] Transportation of a controlled substance is established by carrying or conveying a usable quantity of a controlled substance with knowledge of its presence and illegal character. [Citations.] The crimes can be established by circumstantial evidence and any reasonable inferences drawn from that evidence." (People v. Meza (1995) 38 Cal.App.4th 1741, 1745-1746.) "Where the circumstances support the trier of facts finding of guilt, an appellate court cannot reverse merely because it believes the evidence is reasonably reconciled with the defendants innocence." (Id. at p. 1747.)
Here, substantial evidence supports the jurys verdict. Unlike the cases on which defendant relies, defendant was not merely a passenger in a vehicle in which drugs were found, with no other evidence linking him to the drugs except for his presence in the vehicle. Defendant personally initiated the trip to Delano and his statements inside the vehicle generally linked the purpose of the trip to the sale of drugs even if, as Corina claimed, he did not specifically mention the methamphetamine in the Raiders bag. Defendant brought weapons in the vehicle, which the gang expert explained were common tools of the drug trade. The experts testimony also gave support to the prosecutions theory that defendant, who was prosecuted under an aiding and abetting theory, was there to assist Fernando and Jill in possessing and transporting the methamphetamine for sale by providing the "firearms muscle." Moreover, there was evidence the methamphetamine was not hidden from the view of the occupants of the pickup. Rather, the black Raiders bag was found unlatched, with its contents partially spilled out alongside cash strewn around the backseat.
Furthermore, during the taped phone call defendant placed from jail, Cecilia made statements strongly alluding to the methamphetamine being discovered in the pickup ("They found it all"), talked about how she warned defendant about dope ("I told you like dope is like"), and that the "homies" thought Ghost was the one responsible for defendant being charged with possessing the drugs for sale ("That it was his shit that, that he was the one trying to sell and the only reason why you had it was because of him and this and that"). Defendants responses to Cecilias statements suggested he was fully aware of what she was talking about, and that he understood that she was referring to the presence of real drugs in the vehicle, not simply the bunk drugs Fernando and Jill allegedly purchased and over which defendant became involved to help facilitate a refund. Viewing the evidence in the light most favorable to the judgment, we conclude a jury could reasonably infer from all the facts and circumstances that defendant knew there was methamphetamine in the vehicle, and thus knowingly transported the drugs and possessed them for sale. We therefore conclude there is sufficient evidence to support a conviction as to both of these charges.
III. The Trial Court Did Not Err by Instructing With CALJIC No. 2.11.5
Without objection or request for modification, the court instructed the jury with CALJIC No. 2.11.5 regarding unjoined perpetrators. As given in defendants trial, the instruction provided:
"There has been evidence in this case indicating that a person other than a defendant was or may have been involved in the crime for which that defendant is on trial. [¶] There may be many reasons why that person is not here on trial. Therefore, do not speculate or guess as to why the other person is not being prosecuted in this trial or whether [he/she] has been or will be prosecuted. Your sole duty is to decide whether People have proved the guilt of the defendant on trial."
Defendant contends that this instruction improperly removed from the jurys consideration the fact that Corina testified under a grant of immunity. We conclude the trial court did not prejudicially err in instructing the jury with CALJIC No. 2.11.5.
Numerous decisions have held that a trial court should modify or not give CALJIC No. 2.11.5 when a person who might have been prosecuted for the crime testifies at trial. (See, e.g., People v. Brown (2003) 31 Cal.4th 518, 560-561; People v. Hernandez (2003) 30 Cal.4th 835, 875.) The concern underlying these decisions, which addressed a prior version of the instruction, was that "the instruction might suggest to the jury that it need not consider the factors it otherwise would employ to weigh the credibility of these witnesses, such as the circumstance that the witness has been granted immunity from prosecution in return for his or her testimony. [Citations.]" (People v. Cornwell (2005) 37 Cal.4th 50, 88.) The older version of CALJIC No. 2.11.5 addressed by the long line of decisions cited herein and by the parties told the jury it should "`not discuss or give any consideration to why the other person is not being prosecuted in this trial or whether he has been or will be prosecuted." (People v. Cornwell, supra, 37 Cal.4th at p. 88.)
The current version of CALJIC No. 2.11.5, as given at defendants trial, no longer tells the jury not to discuss or consider why the other person is not on trial, but only not to guess or speculate. The direction in the previous version of the instruction not to "give any consideration" as to the nonprosecution of a witness involved in the charged offenses could arguably be taken literally by a jury as a direction to avoid considering a benefit received by the witness in exchange for his or her testimony. The new version poses no such risk. It simply tells the jury not to speculate or guess the reasons for the nonprosecution. The new version does not suggest that the jury can or should ignore other instructions on witness credibility or avoid considering the effect of a benefit received in exchange for testimony.
At the prosecutions request, defendants jury was specifically instructed that Corina "testified, having been granted `Use Immunity" and that "[t]his means that nothing she said in her testimony could be used against her in the future in any criminal prosecution." The jury was further instructed that in determining the believability of a witness, jurors could "consider anything that has a tendency reasonably to prove or disprove the truthfulness of the testimony of the witness," including "[w]hether the witness is testifying under a grant of immunity." (CALJIC No. 2.20.) The jury was also instructed that accomplice testimony requires corroboration and advised to view accomplice testimony with caution. The jury was further instructed that, if it found the crime charged in count 1 or count 2 was committed by anyone, Corina "was an accomplice as a matter of law and her testimony [was] subject to the rule requiring corroboration." Given the revised text of CALJIC No. 2.11.5 and the "full panoply of witness credibility and accomplice instructions" given at defendants trial, the trial court did not err by giving the instruction. (People v. Lawley (2002) 27 Cal.4th 102, 162-163.) Moreover, defendant does not dispute the instruction was properly given with respect to other witnesses, such as Fernando and Jill, who might have been prosecuted for the offenses but who, unlike Corina, did not testify at defendants trial let alone under a grant of immunity.
However, assuming the trial court erred, we conclude any error was harmless. (See People v. Malone (1988) 47 Cal.3d 1, 50-51 [CALJIC No. 2.11.5 not prejudicial where jury had before it evidence, argument, and instructions underscoring witnesss possible motive to lie and jurys duty to view his or her testimony with distrust].) Here, defense counsel argued at length that Corina was not credible in that she offered varying versions of events both before and after she was granted immunity. It thus appears the defense relied on Corinas grant of immunity, not so much to show the existence of a motive to lie, but rather to highlight just how much of a liar Corina was in that she continued to lie despite being granted immunity. Given that the defense did not appear to rely on the grant of immunity as a motive for Corina to lie but focused on other indications of unreliability, and even the prosecutor acknowledged problems with Corinas testimony and emphasized that, as an accomplice, her testimony required corroboration, there is no reasonable likelihood defendant would have obtained a more favorable result had the trial court omitted or modified CALJIC No. 2.11.5.
For example, defense counsel argued: "Even under her grant of immunity, it was obvious that she was lying to you. It was obvious from the fact that the prosecution had to impeach her to try and get her to tell you the things that they thought were the truth. [¶] ... [¶] We know that she gave — at least starting out, before she ever got to that stand, Corina gave at least four different scenarios of how this happened. Okay? [¶] Then to get to the stand; she gets immunity. And then when shes on the stand, she still isnt giving us a straight story." (Italics added.)
Even the prosecutor noted problems with Corinas credibility and how the prosecutor had hoped the grant of immunity would lead her to tell the truth, and cautioned that the jury needed to consider corroborating evidence of defendants guilt. Thus, at the beginning of closing argument, the prosecutor observed: "We said that we would probably have to fight through some lies — maybe a lot of lies — in some of our witnesses in our search for the truth. Because Corina had given multiple statements, so had Cecelia, and Corina was up to her eyeballs in this one." Then, in the context of explaining the accomplice instructions, the prosecutor reflected: "We said at the beginning of the case I had no idea what [Corina] was going to say. I hoped her grant of immunity for her testifying would help her get as close to the truth as she possibility could for you guys. [¶] But the fact of the matter is she is an accomplice to this crime.... [¶] So youve got to corroborate what shes saying. You cant just be Corina. If shes just as guilty as this guy[,] you cant convict him just because she said it is ... basically what were talking about. Youve got to corroborate it."
DISPOSITION
The judgment is affirmed.
We concur:
Vartabedian, Acting P.J.
Gomes, J.