Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Santa Clara County Super. Ct. No. CC512170
Mihara, J.
The Santa Clara County District Attorney, via information dated May 11, 2006, charged defendant Anthony Jessie Martinez with possession for sale of cocaine (Health & Saf. Code, § 11351), possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)), possession of a controlled substance (Ritalin) without a prescription (Bus. & Prof. Code, § 4060), and using or being under the influence of methamphetamine (Health & Saf. Code, § 11550, subd. (a)). A jury found defendant guilty of all four counts. On October 11, 2006, the trial court suspended imposition of sentence and placed defendant on three years of formal probation. Defendant argues that the prosecution relied primarily on circumstantial evidence at trial to prove the requisite intent for count 1, possession of cocaine for sale. Thus, defendant contends, the trial court erred in refusing to give the circumstantial evidence instruction regarding intent, CALCRIM No. 225. Although we agree that CALCRIM No. 225 should have been given, we find the error harmless. We therefore affirm the order of probation.
I. Background
A. Prosecution Case
On the morning of November 29, 2005, detective John Boren of the San Jose Police Department investigated a complaint from a business owner in San Jose. Boren examined a black bag that had been left on the business owner’s property, and found items linking it to defendant. Among other things, the black bag contained “a number of unused plastic bindles” and an “improvised smoking device used for ingesting narcotics.” The plastic bags, which are “commonly used in narcotics sales[,]” bore a devil design of the type used by drug users for amusement or to differentiate between drug dealers. The strainer on the smoking device contained a white powder residue that Boren believed to be a cutting agent, but was not tested.
Later in the day, Boren observed defendant in the area and approached him. Boren mentioned the black bag, and defendant said he had left it at the business because he was “between residences and thought it would be okay to leave it there as he went about his daily activities.” As Boren spoke with defendant, he noticed that defendant’s pupils were dilated, his speech rapid, his mouth dry, and his respiration and heart rate rapid—signs of stimulant use. Boren asked if defendant had any contraband on him, and defendant admitted he did. Defendant informed Boren that he had some crystal methamphetamine, “some cocaine that he was holding for some friends, and some Ritalin, and a pipe[.]”
Boren handcuffed defendant and placed him under arrest. Analysis of defendant’s urine sample, taken at the time of his arrest, indicated the use of both methamphetamine and cocaine within 48 hours prior to his arrest. Methamphetamine, Ritalin pills, a pipe, and a “tooter” (a snorting device for cocaine) were found on defendant’s person. Additionally, defendant had two blue bags of suspected cocaine in a tin in his jacket pocket, and a clear sandwich bag containing 1.26 grams of cocaine (with a street value of $75 to $120) in a pants pocket.
After being taken to the police station and read his Miranda rights, defendant answered further questions. He described himself as an “occasional cocaine user and a preferred methamphetamine user,” and admitted ingesting methamphetamine earlier in the day. Defendant again said he was holding the cocaine for friends, and said he would return it when his friends called.
Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
Boren further testified, during direct examination, that defendant said “he was not [selling]; that he was acting as the middle man for his friends. Meaning they didn’t know how to obtain cocaine, so they would contact him, and he would do that for them.” Defendant “said he generally received a small amount of narcotics in return.” Boren informed defendant that “getting it for people” was the same as selling the drug, to which defendant replied that “his friends were worth it.”
On cross-examination, Boren revisited defendant’s statements. Boren affirmed that defendant told him, post-Miranda, that he was “holding [the cocaine] for his friends this time.” Defendant referenced his role as a middle man only during pre-processing at the police station. There, defendant told Boren that he had acted as a middle man “on previous occasions.” (Italics added) As for the “kickback[s],” Boren testified that it was an “offhanded comment” made while defendant was explaining “how things were done.” Defendant explained to Boren: “I don’t sell drugs for money. I never made a profit from it. I simply gotten drugs from people, and I get a little bump in return.” The statement about receiving drugs in return was not included in Boren’s police report and was not mentioned at the preliminary hearing or at any time prior to trial.
Several items considered indicia of drug sales were not found on defendant’s person or in his bag—a digital scale, a large amount of cash, a cell phone, a pay-owe sheet, large amounts of drugs, and cutting agents. Although Boren observed defendant for about an hour on November 29, he did not see him sell or exchange drugs.
Shannon Vaziri, defendant’s ex-girlfriend, testified regarding two conversations she had with defendant after his arrest. In the first conversation, he admitted using methamphetamine and cocaine. He also told her that “he knew a lot of people downtown[] [and] [t]hat he occasionally worked as a middle man[]” for cocaine. He explained that “since he had so many contacts, sometimes he would get the drugs, give them to his contacts, and as a profit he’d get some free drugs.” “[H]e didn’t think it was a big deal because he wasn’t receiving actual cash value.” In the second conversation, defendant said he had twice acted as a middle man. He also told her that he was not acting as a middle man when he was arrested in November; he was just holding on to the drugs for a friend. “He said that a friend of his who had some cocaine at his house, his mother was supposed to come home, and he didn’t want his mother finding out, so he asked [defendant] to hold on to them and he’d get it back to him later.”
In discussing the charge of possession for sale during closing argument, the prosecutor stated: “So, he has his own personal stash, and stash that. He’s going to sell the bigger stash he’s holding for friends and would bring them when they call. He act as a middle man. He get some kickback. And his friends are worth it. [¶] He told his girlfriend the same: Get drugs for friends; get drugs from supplier for distributing drugs.” The prosecutor also stressed that the cocaine was in more than one bag and that defendant had extra plastic bags for packaging drugs.
B. Defense Case
Defendant testified on his own behalf. He admitted using cocaine on November 29 and identified the cocaine found on his person as “leftover cocaine from the party [he] was at” the night before. Defendant explained that he took the cocaine from the host’s house, a friend of his, because the friend’s mother was coming to visit and the friend did not want it around. The cocaine was separated because some had been strained, and some had not. He thought the extra plastic bags, which also were leftovers from the drug party, would be useful (e.g., to separate nuts and bolts and to collect soil samples). Defendant said he did not intend to act as a middle man for the cocaine he was holding that day; “[h]ow can you go between the middle of the same person?” He planned either to return the cocaine to the party host or to “dispose” of it for him by using it. Defendant told Boren he had acted as a middle man before, but did not tell Boren he was acting as a middle man for the cocaine he was holding that day. Defendant’s statement regarding drug “kickback[s]” referred to previous occasions, the “customary experience” for when he acted as a middle man.
Defendant conceded the majority of the charges against him, but disputed his intent to sell the cocaine. Defense counsel argued that defendant should be convicted only of the lesser offense of possession of cocaine.
II. Discussion
Defendant argues the court erred in declining to give jury instruction CALCRIM No. 225 in regard to count 1, possession for sale of cocaine. He claims the instruction was required because the prosecution relied substantially on circumstantial evidence to prove his intent to exchange the cocaine “for money, services, or anything of value.” (See CALCRIM No. 2302 [instruction regarding possession for sale of a controlled substance read to the jury].) We agree, but find the court’s error harmless.
After Boren’s testimony, the defense requested jury instruction CALCRIM No. 225. Citing People v. Yeoman (2003) 31 Cal.4th 93 (Yeoman), the trial court declined to give the instruction.
CALCRIM No. 225, entitled “Circumstantial Evidence: Intent or Mental State,” advises the jury that the defendant’s intent may be proved by circumstantial evidence if the jury is “convinced that the only reasonable conclusion supported by the circumstantial evidence is that the defendant had the required [intent].” The instruction informs the jury that if two or more reasonable conclusions can be drawn from the circumstantial evidence, and one of those supports a finding that the defendant had the required intent, and the other does not, the jury must conclude that the intent was not proved by the circumstantial evidence. (CALCRIM No. 225.) “However, when considering circumstantial evidence, [the jury] must accept only reasonable conclusions and reject any that are unreasonable.” (Ibid.)
CALCRIM No. 225 should be used if proof of the defendant’s specific intent or mental state rests substantially or entirely on circumstantial evidence. (People v. Honig (1996) 48 Cal.App.4th 289, 341 (Honig) [referring to CALJIC No. 2.02, predecessor to CALCRIM No. 225].) The instruction need not be given if the evidence is either direct or, if circumstantial, not equally consistent with a rational conclusion that the defendant is innocent. (People v. Wiley (1976) 18 Cal.3d 162, 175 (Wiley).) “Furthermore, it should not be given simply because the incriminating evidence is indirect, but is appropriate only when proof of guilt depends upon a pattern of incriminating circumstances.” (Honig, supra,48 Cal.App.4th at p. 341.) “Extrajudicial admissions, although hearsay, are not the type of indirect evidence as to which the instructions on circumstantial evidence are applicable.” (Wiley, supra,18 Cal.3d at p. 174.)
If other elements of the offense besides intent or mental state rest substantially or entirely on circumstantial evidence, CALCRIM No. 224 (“Circumstantial Evidence: Sufficiency of Evidence”), “the more inclusive instruction on sufficiency of circumstantial evidence[,]” should be given instead of CALCRIM No. 225. (People v. Marshall (1996) 13 Cal.4th 799, 849 [referring to CALJIC No. 2.01, the predecessor to CALCRIM No. 224].)
The People assert that to prove defendant’s intent the prosecution relied primarily “on appellant’s admissions to the police officer and to his girlfriend that he purchased the cocaine in his possession in order to distribute to his friends.” Accordingly, the People contend these “extrajudicial admissions” do not require a circumstantial evidence instruction. We do not agree with the People’s assessment of the evidence. The People appear to be referring to Boren’s testimony during direct examination that defendant told him he “was acting as the middle man for his friends” and that he “generally received a small amount of narcotics in return.” Viewing this statement in isolation, and not in the context of Boren’s entire testimony, is, however, misleading. On cross-examination, Boren clarified that defendant’s “admission” was that he had acted as a middle man “on previous occasions.” (Italics added.) Defendant then made the “offhanded comment” to Boren that when he acts as a middle man, he generally receives a small amount of drugs in return. Defendant’s statement to Boren, as clarified during cross-examination, is, at best, circumstantial evidence of his intent to exchange the particular cocaine in his possession for something of value.
Vaziri testified specifically that defendant told her he was not acting as a middle man for the cocaine at the time of his arrest.
It is the jury’s role, in the face of conflicting or ambiguous evidence, “to decide whether [a] statement was in fact an admission, and what weight to attribute to it.” (See People v. Medina (1995) 11 Cal.4th 694, 752.) Indeed, during deliberation the jury asked for a read back of Boren’s direct and cross-examination testimony regarding defendant’s pre-processing time at the police station and his Mirandized statement.
In short, the mere fact that a statement was made by the defendant does not make it an “admission” of guilt or intent such that the circumstantial evidence instruction is inapplicable. The nature of defendant’s extrajudicial statement is similar to that in People v. Rogers (2006) 39 Cal.4th 826 (Rogers), and distinguishable from those at issue in Yeoman, supra, 31 Cal.4th 93, relied on by the trial court. In Rogers, as here, the defendant admitted that he had engaged in criminal behavior similar to the crime charged, which the court classified as circumstantial evidence of his guilt. (Rogers, supra, 39 Cal.4th at p. 885 [defendant admitted that he killed a woman who was a prostitute, like the victim, but did not admit he killed the victim].) Because the other piece of evidence relied upon to prove the defendant’s guilt also was circumstantial, the California Supreme Court found that the trial court erred in failing to provide a circumstantial evidence instruction (CAJIC No. 2.01). (Ibid.) In Yeoman, in contrast, the prosecution’s proof “rested largely” on defendant’s explicit admission of the crime in extrajudicial statements. (Yeoman, supra, 31 Cal.4th at pp. 142-143 [two witnesses testified that the defendant said he had killed the murder victim].) Thus, the court found no trial court error in the failure to give the circumstantial evidence instruction. (Ibid; see also People v. Brown (2003) 31 Cal.4th 518, 562 [prosecution relied primarily on direct evidence of guilt where witness saw the defendant shoot the victim and the defendant told witness at the scene he “‘smoked that bitch’”; no circumstantial evidence instruction needed].)
The other evidence relied upon by the prosecution in this case, as in Rogers, also is circumstantial evidence of defendant’s intent. In closing argument, the prosecution stressed that defendant possessed more than one bag of cocaine and extra, empty plastic bags of the type commonly used to package drugs. Boren acknowledged, however, that defendant did not possess “a large amount” of cocaine, and he testified that users sometimes have a couple of additional plastic bags (although “generally not this many”) to package their own drugs.
We therefore conclude that the court erred in failing to provide the circumstantial evidence instruction, CALCRIM No. 225. We must further consider, however, whether the instructional error was harmless. We reverse a conviction based on such error only if there is a “reasonable probability . . . that had the jury been given the circumstantial evidence instruction,” the defendant would have obtained a more favorable outcome. (See Rogers, supra, 39 Cal.4th at p. 886 [applying People v. Watson (1956) 46 Cal.2d 818 standard].)
The record contains a substantial amount of circumstantial evidence pointing to defendant’s role as a middle man who expected to receive “a little bump in return”: defendant was in possession of multiple types of drugs, of cocaine in multiple packages, and of numerous extra bags for packaging narcotics; defendant’s preferred drug is methamphetamine, not cocaine; and defendant told Boren at the time of his arrest that he was “holding” the cocaine for friends. In this factual context, defendant’s admission that he had acted as a cocaine middle man for his friends is highly probative of his intent regarding the cocaine in his possession. Defendant’s testimony—that the cocaine was “leftover” from a drug party and that he intended, as a favor, to dispose of the cocaine by using it—is, in contrast, implausible. Because the requested instruction would have required the jury to reject an unreasonable interpretation of the circumstantial evidence, we conclude it is not reasonably probable the outcome would have been different had defendant’s jury been instructed pursuant to CALCRIM No. 225.
III. Disposition
The order of probation is affirmed.
WE CONCUR: Bamattre-Manoukian, Acting P.J., Duffy, J.