Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Ct. No. BA291285, George G. Lomeli, Judge.
Rachel Lederman, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Linda C. Johnson and Gary A. Lieberman, Deputy Attorneys General, for Plaintiff and Respondent.
ZELON, J.
Johnny Marshall appeals from a judgment entered after a jury convicted him of possession of phencyclidine (PCP). He contends the trial court’s response to a jury question on the meaning of “constructive possession” was constitutionally inadequate and, alternatively, his trial counsel provided ineffective assistance in failing to object or to request a clarifying instruction.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Charges
Marshall was charged by information in count 1 with possession for sale of PCP with a special allegation he had committed the crime while using a firearm (Health & Saf. Code, § 11378.5, Pen. Code, § 12022, subd. (c)). He was charged in count 2 with possession of a firearm by a felon with four priors (Pen. Code, § 12021, subd. (a)(1)). The information also alleged Marshall had suffered four prior serious or violent felony convictions within the meaning of the “Three Strikes” law, had served two separate prison terms for felonies, and had suffered one prior conviction for selling narcotics (Pen. Code, §§ 667, subds. (b)-(i), 1170, subds. (a)-(d), 667.5, subd. (b), Health & Saf. Code, § 11370.2, subd. (c)).
2. Summary of the Evidence at Trial
A. Prosecution evidence
On the night of October 4, 2005, two Los Angeles Police Department officers in a marked patrol car saw a man, identified at trial as Marshall, approach a car that was in front of 1232 West 52nd Street (the house), a known site of numerous narcotics arrests. Officers observed what appeared to be a narcotics transaction between Marshall and the driver of the car. As Marshall turned towards the house, the officers ordered him to stop. Instead, Marshall fled, the officers gave chase, and Marshall ran into the house. As Marshall was closing the front door, one officer saw the butt of a handgun below Marshall’s shirt.
Marshall’s aunt, Dorothy Russell, lived at the house with several family members. Russell did not keep firearms or narcotics in the house. The house had four bedrooms, situated in a row from the front to the back of the house. Russell slept in the fourth bedroom, the last bedroom in the row.
Police conducted a parole search of the house. In the first bedroom, belonging to Marshall’s sister, Cyan Clark, police found a lock box under her bed. Clark told police her lock box originally contained only some papers, but she believed Marshall had recently put a gun inside it. Clark explained Marshall had borrowed her lock box that morning. Later, when police arrived, Marshall ran inside the house, placed the lock box under Clark’s bed, and told her to hide the keys. Clark produced the keys for police. They opened the lock box and inside found a handgun.
The parties stipulated that Marshall had a prior felony conviction for purposes of the felon-in-possession charge. Marshall’s parole agent testified he was released on parole in November 2004 and effective August 1, 2005, his address with the parole department was 1232 West 52nd Street.
The door of the second bedroom was open at the time of the parole search. A search of the second bedroom yielded a plate containing a razor blade, tobacco residue, six brown “half-cigarettes,” each with toothpicks inserted on one end, and two photographs of Marshall on an entertainment center. Clark told police and testified in court that Marshall slept in the second bedroom when he stayed at the house. Clark testified that although there was a lock on the door, the second bedroom was not locked, allowing Marshall to enter and leave at will.
Russell testified the third bedroom was occupied by Russell’s daughter and grandchildren. Police searched the third bedroom and recovered two glass vials inside a sock in a dresser drawer. The vials contained a yellowish liquid that was later determined to be over half an ounce or about 300 doses of PCP. Each dose had a street value of $10 to $20. Also found in the bedroom were a tin box containing money and a cigarette box containing money and a razor blade.
Russell testified at trial that Marshall often visited her. However, Marshall did not live in the house, nor did he have a bedroom there for his use. When Marshall stayed at the house overnight, he slept on the living room couch. Russell denied telling police Marshall sometimes slept in different bedrooms and had access to all the rooms in the house. Russell testified the second bedroom belonged to her brother, now deceased. The door of the second bedroom was normally locked, and only Russell had the key.
Sergeant Scott Blackman testified as a drug recognition expert. He described his experience in narcotics and narcotics sales, particularly PCP, and then explained how PCP is generally ingested, packaged and stored. Blackman opined the recovered PCP in this case was possessed for purposes of sales based on the amount and packaging of the PCP, the existence of the plate, the cigarettes, and the toothpicks, the patrol officers’ observations, as well as the fact the house was a known site of narcotics activity.
Marshall was arrested, and officers found $41 in the pocket of his pants.
B. Defense evidence
Marshall did not testify in his own defense.
Keith Middleton testified to having known Marshall since childhood. On October 4, 2005, Middleton was at the house in the evening, and he offered to buy dinner for everyone, including Marshall. Middleton talked with Marshall briefly. He then left the house with some other people to drive to the restaurant. Marshall was already outside. Middleton did not see Marshall approach a car; the only car on the street was a patrol car. A police officer singled out Marshall and called, “Hey.” Frightened, Marshall returned to the house and closed the front door. The officers went up to the house, and Marshall refused to open the front door. He repeatedly screamed, “I would like to speak to your commander,” before eventually emerging from the house.
3. Jury Instructions and Argument
Among the jury instructions was CALJIC No. 12.01 as to count 1, possession for sale of PCP, and CALJIC No. 12.00 as to the lesser-included offense of possession of PCP. According to both instructions as read to the jury, “There are two kinds of possession: actual possession and constructive possession. [¶] ‘Actual possession’ requires that a person knowingly exercise direct physical control over a thing. [¶] ‘Constructive possession’ does not require actual possession but does require that a person knowingly exercise control over or right to control a thing, either directly or through another person or persons.” The court further instructed that among the elements necessary to establish possession for sale of PCP and the lesser-included offense of possession of PCP, are “a person exercised control over or the right to control an amount of PCP, a controlled substance” and the “person knew of its presence.” (CALJIC Nos. 12.00 and 12.01.)
In arguing to the jury, the prosecutor summarized the direct and circumstantial evidence the jury heard proving the charged offenses. Defense counsel argued there was no credible evidence that Marshall had committed a crime. Rather the defense asserted that the officers searched the house solely to find any contraband they could falsely link to Marshall and then fabricated their report to justify the arrest. In support of this theory, defense counsel pointed to discrepancies in the testimony of some officers and the absence of certain evidence of guilt, including fingerprint evidence. Neither the prosecution nor the defense focused on the element of constructive possession or the evidence as to whether Marshall knowingly exercised control or the right to control the recovered PCP.
Jury deliberations began at 11:51 a.m. on April 10, 2006. At 3:46 p.m. the jury directed a written question to the trial court, “Can the judge explain more clearly and in plainer language ‘constructive possession’?” Outside the presence of the jury, the trial court concluded the instruction on constructive possession “speaks for itself,” but a relevant portion of CALCRIM No. 2304 might prove helpful. Neither the defense nor the prosecution interposed an objection.
The trial court then instructed the jury, “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 or the right to control it, either . . . personally or through another person.” The court added, “All right, so it talks about they don’t have to actually be holding it, but all they have to have is the right to control it or to have someone else control it, personally or through another person, and that is the best I can do with that. I don’t know if it’s very helpful. I see a lot of blank faces.” The jury resumed deliberations at 3:50 p.m. Ten minutes later, the jury returned a verdict.
4. Jury’s Verdict and Sentencing
The jury found Marshall not guilty of count 1, possession for sale of PCP, but guilty of the lesser-included offense of possession of PCP in violation of Health and Safety Code section 11350, subdivision (a). The jury found not true the firearm use enhancement related to count 1. The jury convicted Marshall of count 2, possession of a firearm by a felon.
Marshall had waived his right to a jury trial on the special allegations regarding his prior convictions. In a bifurcated proceeding, Marshall admitted, and the trial court found, he had previously been convicted of one serious or violent felony and had served two separate prison terms for felonies. The trial court sentenced Marshall to a state prison term of seven years four months, consisting of four years (the two-year middle term doubled under the Three Strikes law) for possession of PCP, plus 16 months (one-third the two-year middle term doubled under the Three Strikes law) for being a felon in possession of a firearm, plus two years for the two one-year prior prison term enhancements.
DISCUSSION
Marshall contends the trial court committed reversible error in the manner in which it addressed the jury’s question on constructive possession. Marshall has forfeited his claims of error on appeal by failing to object to the instructions or to request alternative or clarifying instructions in the trial court. (People v. Benavides (2005) 35 Cal.4th 69, 114, People v. Guiuan (1998) 18 Cal.4th 558, 570.) In any event, we find the trial court did not abuse its discretion or prejudice Marshall in its response to the jury.
Because we find no error, we do not need to reach Marshall’s alternative contention that his defense counsel rendered ineffective assistance.
Where, as here, the jury asks a question about the meaning of an element of the crime, Penal Code section 1138 imposes on the trial court “a ‘mandatory’ duty to clear up any instructional confusion expressed by the jury.” (People v. Gonzalez (1990) 51 Cal.3d 1179, 1212.) This means the trial “court has a primary duty to help the jury understand the legal principles it is asked to apply. [Citation.] This does not mean the court must always elaborate on the standard instructions. Where the original instructions are themselves full and complete, the court has discretion under [Penal Code] section 1138 to determine what additional explanations are sufficient to satisfy the jury’s request for information. [Citation.] Indeed, comments diverging from the standard are often risky. [Citation.]” (People v. Beardslee (1991) 53 Cal.3d 68, 97.) A violation of Penal Code section 1138 does not warrant reversal absent prejudice to the defendant. (Ibid.)
Penal Code section 1138 provides: “After the jury have retired for deliberation, if there be any disagreement between them as to the testimony, or if they desire to be informed on any point of law arising in the case, they must require the officer to conduct them into court. Upon being brought into court, the information required must be given in the presence of, or after notice to, the prosecuting attorney, and the defendant or his counsel, or after they have been called.”
Marshall faults the trial court for responding with a definition of constructive possession in CALCRIM No. 2304 that is nearly identical to the definitions in CALJIC Nos. 12.00 and 12.01. Marshall argues the trial court should have realized from their question that the jury was confused as to whether mere proximity to the contraband was sufficient to prove constructive possession, and that all three standard instructions failed to explain that access alone does not establish constructive possession. Additionally, Marshall contends the trial court had a duty sua sponte to instruct on the meaning of “right to control” as set forth in the standard instructions because the term has a technical legal meaning that contributed to the jury’s confusion. Therefore, Marshall maintains, the trial court impinged his fundamental trial rights by not providing the jury with appropriate clarifying instructions.
Marshall reads too much into the jury’s question and in turn overstates the trial court’s obligation under Penal Code section 1138 in this case. The jury’s request showed they were confused about the definition of constructive possession and wanted the term explained more simply and clearly. The trial court responded in an appropriate manner, by providing an alternative standard instruction that defined constructive possession in more common every day language. Nothing in the jury’s question suggests they had focused on any particular element of constructive possession as an issue in their deliberations. The trial court’s further instruction answered the jury’s question. CALCRIM No. 2304 and similarly worded CALJIC Nos. 12.00 and 12.01 were also responsive to the issues the jury was required to decide. Marshall has not cited to, nor have we uncovered, any authority that these standard instructions are incorrect or insufficient statements of the law on possession. The contrary is the case; the standard instructions accurately articulate the element of the offense of possession of a controlled substance. (See People v. Mendoza (1986) 183 Cal.App.3d 390, 399-400.) Nor have we found any authority for the proposition the phrase “right to control” is a technical legal term requiring specific definition. Because the phrase does not carry a technical meaning peculiar to the law, no additional explanation was required. (People v. Estrada (1995) 11 Cal.4th 568, 574 [words or phrases that can be commonly understood by those familiar with the English language do not require further definition simply because they are used in a legal proceeding].) Accordingly, jurors were capable of understanding and applying the concepts of possession and control for purposes of the standard instructions based upon their ordinary knowledge and experience. (See People v. Cantrell (1992) 7 Cal.App.4th 523, 543-545.)
DISPOSITION
The abstract of judgment is ordered modified to reflect Marshall was convicted of the lesser included offense of possession of PCP in violation of Health and Safety Code section 11350, subdivision (a), rather than the offense of possession for sale of PCP in count 1. As modified the judgment is affirmed. The superior court is directed to forward a copy of the corrected abstract to the Department of Corrections and Rehabilitation.
We concur:
Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.