Opinion
F040801
7-29-2003
THE PEOPLE, Plaintiff and Respondent, v. BECKY ANN GRIFFIN, Defendant and Appellant.
Michael B. McPartland, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Jo Graves, Assistant Attorney General, Robert P. Whitlock and Lloyd G. Carter, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted appellant Becky Ann Griffin of two felonies, making a building under her control available for storage or distribution of a controlled substance (Health & Saf. Code, § 11366.5, subd. (a); count 2) and maintaining a place for the selling, giving away or using a controlled substance (Health & Saf. Code, § 11366 ; count 4), and two misdemeanors, child endangerment (Pen. Code, § 273a, subd. (b); count 3) and contributing to the delinquency of a minor (Pen. Code, § 272; count 8). The jury also found true an enhancement allegation that appellant had served a prison term for a prior felony conviction (Pen. Code, § 667.5, subd. (b)). The court imposed a prison term of four years, consisting of the three-year upper term on count 2 and one year for the prior prison term enhancement. The court imposed, and stayed pursuant to Penal Code section 654, the three-year upper term on the remaining felony, and imposed concurrent six-month terms on each of the misdemeanor convictions. On appeal, appellant contends the court prejudicially erred in failing to instruct the jury with respect to the consideration of accomplice testimony. We will affirm.
We refer to the counts of the various offenses by the numbers by which these counts are identified in the amended information filed April 15, 2002. At the outset of the trial, the counts were renumbered for purposes of trial, with counts 2, 3, 4 and 8 becoming, respectively, counts 1, 2, 3 and 6.
FACTS
In 2001, appellant was convicted and sentenced to prison for possession of methamphetamine for purposes of sale. On February 3, 2002, she was released from prison and moved back to her two-bedroom house on Cooper Street in Bakersfield. At 1:55 p.m. on February 21, police arrived at appellants house and conducted a parole search of the house. Living there at the time along with appellant were appellants 21-year-old daughter Stacy; Stacys two children, ages 3 and 5; appellants 17-year-old daughter, K.; and K.s boyfriend, William Poush. Appellant occupied the northwest bedroom, K. and Poush occupied the southwest bedroom and Stacy and her children occupied the living room.
Further references to dates of events are to dates in 2002.
When the police entered the house, they found Poush and a male friend in the southwest bedroom, which smelled strongly of marijuana smoke. Stacy and one of her children were in the living room, and appellant was in the northwest bedroom. K. arrived at the house while the search was in progress.
In the southwest bedroom, police found the following: more than two ounces of methamphetamine; a quantity of marijuana; 6.12 grams of MDMA, a drug also known as "ecstasy"; several marijuana smoking pipes, including one "bong"; more than $ 1,000 in bills of various denominations; a document of the kind often used by drug dealers for keeping track of money owed for drug sales, commonly called a "pay-and-owe-sheet"; a cellular phone; and a scale of the kind that could be used for measuring marijuana or methamphetamine. The drugs were found in a blue and green bag.
In the northwest bedroom, police found the following: a hemostat; baggies; "snorting straws"; on the headboard, a marijuana smoking pipe; a scale; and an operational intercom "box." Police found another intercom box on the outside of the front door. Appellant told police she heard officers announce their presence over the portion of the intercom system in her bedroom.
In the living room police found a pager and a police scanner.
In the dining room, on a computer stand, police found a blue glass marijuana smoking pipe and a hemostat.
A police expert testified to the following: police scanners, pagers, cellular telephones and home intercom systems are used by persons trafficking in drugs; users of marijuana use hemostats to smoke marijuana; and the amount and denominations of the currency found were consistent with drug trafficking. The expert opined that based on the quantity of drugs found and the items discussed above, both the marijuana and methamphetamine found in the two bedrooms were possessed for the purpose of sale.
K. testified under a grant of transactional immunity to the following. She and Poush had been living at the Cooper Street house for approximately two weeks, occupying the southwest bedroom. During those two weeks, Poush sold both marijuana and methamphetamine, but none of those sales took place at the house. Also during that time, K. smoked methamphetamine at the Cooper Street house three times, each time in her bedroom, and she smoked marijuana every day, either in her room or on the front porch. Whenever she smoked methamphetamine or marijuana appellant was in the northwest bedroom, and when K. smoked on the front porch appellant was asleep. On February 19, Poush left the house and returned with some methamphetamine and marijuana. He put the drugs in the blue and green bag that hung in the closet in the southwest bedroom. Inside the bag, K. saw approximately one ounce of methamphetamine and approximately three ounces of marijuana.
Stacy testified to the following. In the two weeks prior to February 21, she smoked marijuana in the Cooper Street house "probably" on a daily basis, on the porch or in the living room, but she did not use methamphetamine in the house during this period. On each of the occasions Stacy smoked marijuana at the house, appellant was in her own bedroom. The blue glass marijuana smoking pipe found by the police on the computer stand in the dining room belonged to Stacy. She saw Poush smoke marijuana in the southwest bedroom and she saw Poush and K. smoke marijuana on the porch.
Appellant testified to the following. On February 21, K. and Poush were living in the Cooper Street house, sharing a bedroom, but appellant did not know Poush was storing methamphetamine and marijuana and she "could see clearly," because "there was [sic] no comings and goings of other people," that no one was selling drugs at her house. On the day of the search, she was unaware anyone was smoking marijuana in her house until she woke up and smelled it as the police officers were entering the house. In the 18 days she had been home since her release from prison, she had gone "not more than two steps" into the southwest bedroom. She knew what marijuana smoke smelled like, and she was not aware of anyone smoking marijuana in her house, except for one occasion when "[she] woke up . . . and suspected [she] smelled it and jumped some . . . ." The day before the search, she found a marijuana smoking pipe under the couch in the living room. She believed it belonged to Stacy. Appellant put the pipe on the computer table and told Stacy to " get this out of the house. " Appellant believed that the marijuana smoking pipe police found on her headboard belonged to "one of the kids." Most of the drug paraphernalia found in the northwest bedroom was there before she went to prison. She had not used drugs since getting out of prison, but she had not gone through her things and disposed of drug-related items because she "was dealing with a lot of anxieties and things going on with [her] family more than what was going on with [her] house."
DISCUSSION
Appellant argues as follows: the court had a sua sponte duty to instruct the jury under Penal Code section 1111 on the definition of accomplice and that the testimony of an accomplice must be corroborated and should be viewed with distrust; the court failed to so instruct the jury; the courts error was prejudicial; and therefore reversal is required. As we explain below, any error in failing to instruct on the law relating to accomplice testimony was harmless.
Penal Code section 1111 defines an accomplice "as one who is liable to prosecution for the identical offense charged against the defendant . . . ." The statute further provides: "A conviction cannot be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof."
When the evidence is sufficient to establish that a witness is an accomplice, the trial court must instruct the jury, sua sponte, to determine whether the witness was an accomplice, and that if the jury so determines, that the testimony of the accomplice witness is to be viewed with distrust and that the defendant cannot be convicted on the basis of the accomplices testimony unless it is corroborated. (People v. Zapien (1993) 4 Cal.4th 929, 982, 846 P.2d 704.)
Nonetheless, "it has been recognized that the failure to instruct on accomplice testimony pursuant to section 1111 is harmless where there is sufficient corroborating evidence in the record. [Citations.] The requisite corroboration may be established entirely by circumstantial evidence. [Citations.] Such evidence may be slight and entitled to little consideration when standing alone." [Citations.] [Citations.] Moreover, "only a portion . . . of the accomplices testimony need be corroborated" [citation] and it is "not necessary that the corroborative evidence . . . establish every element of the offense charged." [Citations.] [Citation.] It is only required that the evidence " tends to connect the defendant with the commission of the crime in such a way as may reasonably satisfy the jury that the [accomplice] is telling the truth. " [Citation.]" (People v. Miranda (1987) 44 Cal.3d 57, 100, 241 Cal. Rptr. 594, 744 P.2d 1127, disapproved on another point in People v. Marshall (1987) 44 Cal.3d 907, 933, fn. 4.) "Moreover, even if there were insufficient corroboration, reversal is not required unless it is reasonably probable a result more favorable to the defendant would have been reached." (Id. at p. 101.)
We assume without deciding, as appellant argues and the People do not dispute, that the evidence supports the conclusion that K. and Stacy were accomplices to the two felony drug offenses of which appellant was convicted and the child endangerment offense. The question before us, then, is whether the testimony of these witnesses was sufficiently corroborated. We first consider K.s testimony.
As indicated above, K. testified she and Poush lived together at appellants house for approximately two weeks prior to February 21; Poush kept a quantity of drugs in the bedroom the couple shared, at least since February 19; she and Poush smoked marijuana in the Cooper Street house on a daily basis in the two weeks preceding February 21, in the southwest bedroom and on the front porch; and in that two-week period Poush sold drugs, although these sales did not take place at the house.
In addition, the record contains the following evidence which corroborates K.s testimony: appellants testimony that K. and Poush were living in the Cooper Street house, sharing a bedroom; the clear inference from appellants testimony that K. and Poush shared the southwest bedroom; police testimony that methamphetamine and marijuana were found in the southwest bedroom and a marijuana smoking pipe was found on the headboard in the northwest bedroom, and that the quantity of the contraband and other items found in the house, including pay-and-owe sheets and a scale found in the southwest bedroom, and a pager and intercom equipment found elsewhere in the house, indicated the drugs were possessed for purposes of sale; and appellants testimony that the pipe found on her headboard probably belonged to "one of the kids," she knew what marijuana smoke smelled like and on one occasion she "suspected" she smelled marijuana smoke in the house.
Appellant argues the record contains insufficient corroboration of K.s testimony because it does not corroborate a portion of that testimony that was highly incriminating to appellant, and therefore critical, viz., K.s testimony that she smoked marijuana on a daily basis in the Cooper Street house in the two weeks preceding February 21. We acknowledge that no evidence in the record directly corroborates this portion of K.s testimony, as the police testimony that drugs were found in the southwest bedroom directly corroborates K.s testimony that she saw drugs in blue and green bag in that bedroom. However, as indicated above, "only a portion . . . of the accomplices testimony need be corroborated . . . ." (People v. Miranda, supra, 44 Cal.3d at p. 100, internal quotation marks omitted.) In our view, the evidence summarized in the preceding paragraph tends to connect appellant to the instant offenses "in such a way as may reasonably satisfy the jury" that K. was "telling the truth," and therefore sufficiently corroborates K.s testimony. (Ibid.)
We turn now to the question of whether Stacys testimony is sufficiently corroborated. As indicated above, Stacy incriminated appellant with testimony that she (Stacy) smoked marijuana in appellants house "probably" every day during the two weeks preceding February 21, and that the marijuana smoking pipe found on the computer table in the dining room belonged to her. This testimony is corroborated by police testimony that marijuana smoking pipes were found in the dining room and on appellants headboard, and appellants testimony that she was familiar with the smell of marijuana smoke, she smelled marijuana smoke in her house on one occasion after she was released from prison, and she believed that the pipe found in her bedroom probably belonged to one of her children and that the pipe found in the dining room belonged to Stacy. We recognize that this corroborating evidence is circumstantial and would not be sufficient to support a criminal conviction. But, as indicated above, "the requisite corroboration may be established entirely by circumstantial evidence," and "such evidence may be slight and entitled to little consideration when standing alone. " (People v. Miranda, supra, 44 Cal.3d at p. 100.) In our view, this evidence tended to connect appellant to the charged offenses sufficiently to corroborate Stacys testimony.
DISPOSITION
The judgment is affirmed.