Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. LA051133, Darlene E. Schempp, Judge.
Jonathan B. Steiner and Ronnie Duberstein, 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, Margaret E. Maxwell and Erika D. Jackson, Deputy Attorneys General, for Plaintiff and Respondent.
ARMSTRONG, Acting P. J.
Appellant Carl NcNeil was convicted, following a jury trial, of one count of possession for sale of cocaine base in violation of Health and Safety Code section 11351.5. Appellant admitted that he had served two prior prison terms within the meaning of Penal Code section 667.5, subdivision (b) and suffered a prior felony conviction within the meaning of sections 667, subdivisions (b) through (i) and 1170.12 (the "Three Strikes" law). The trial court sentenced appellant to a total of 10 years in state prison, consisting of the middle term of four years for the current offense, doubled to eight years pursuant to the Three Strikes law, plus two one-year enhancement terms for the prior prison terms.
Appellant appeals from the judgment of conviction, contending that the trial court erred in instructing the jury on the intent required for the charged offense, and in imposing certain of his fines. We reverse the judgment of conviction and remand this matter for a new trial.
Facts
About 8:00 p.m. on December 30, 2005, Los Angeles Police Department Officers Edwin Marron and Mark Mireles were driving in their marked patrol car when they saw appellant and Patricia Moore walking and arguing on Reseda Boulevard near Oxnard. Moore was pushing appellant away. When she saw the patrol car, she flagged it down.
As the officers approached the couple, Moore told appellant to get away. She asked the officers for help. Officer Marron asked appellant what was going on. Appellant did not reply. Officer Marron told appellant to turn around and put his hands on his head. Appellant did not comply at first. Eventually, appellant did comply, and was handcuffed.
Appellant agreed that Officer Marron could search him. Officer Marron felt an object in appellant's pant pocket, removed it and discovered it to be $506 in small bills. A baggie fell out of the currency. The baggie contained 15 pieces of rock cocaine with a total weight of 2.75 grams. Appellant said that he was high and that the drugs were for his own use. Appellant stated that he had obtained the money when he cashed his paycheck.
Officer Mireles attempted to speak with Moore. She was yelling and trying to approach appellant. Eventually she told the officer that she and appellant had been dating since November. They had been arguing that night, and she told appellant to leave her alone. Appellant was persistent and Moore was afraid, so she flagged down the police car. Moore stated that appellant was unemployed, that she did not know that appellant had drugs and that the drugs were not hers. Officer Mireles observed Moore and appellant and did not see any signs that they were using drugs.
At trial, Detective Gerald Holtz opined as an expert that the cocaine was possessed for purposes of sale. He based his opinion on the amount of cocaine, its packaging, the amount and denominations of the money, the lack of paraphernalia for smoking the cocaine and the fact that appellant did not seem to be under the influence of drugs.
Detective Holtz also testified that he bought cocaine from Moore in February 2006 as part of an undercover operation.
Moore testified on appellant's behalf at trial. She stated that on December 30, she and appellant were together at her house and got into an argument. They left in her car to pick up appellant's son. Moore parked her car near Hatteras and Reseda. Appellant was upset because he learned that Moore was pregnant with his child and still using drugs. Appellant demanded the drugs from her. She said that she did not have any. Appellant demanded her money so that she could not buy drugs. She gave him the money, with the drugs inside because she did not have an opportunity to remove the drugs without appellant seeing them. Moore intended to sell some of the cocaine. They argued more, then the police arrived.
Discussion
1. Court's response to jury question
Appellant contends that the trial court erred in responding to the jury's question about intent. Respondent agrees, but contends that the error was harmless.
During deliberations, the jury sent four questions to the court:
1) Would like an explanation on intent to sell under possession for sale charge.
2) Does the defendant knowing that her intent was to sell make the defendant culpable?
3) If he knowingly carried the drugs for her does that make him just as guilty?
4) If he intends to sell in the future is that still considered intent to sell?
The court referred the jury to previously-given instructions for answers to questions 1, 3 and 4. In response to question 2, the court told the jury: "Knowledge of an ultimate sale without intent is sufficient."
The jury was instructed on possession for sale of a controlled substance pursuant to CALJIC No. 12.01. The jury was not instructed on aiding and abetting liability.
The court's response was incorrect. In order to be guilty of possession for sale of narcotics, a defendant must have the specific intent that the drugs be sold, either by himself or another. (People v. Consuegra (1994) 26 Cal.App.4th 1726, 1732, fn. 4.)
Respondent contends that the error in this case was like the error in Consuegra and was likewise harmless. We do not find the analysis in Consuegra helpful.
In Consuegra, referring to the instructions, the jury asked: "'Such person (possessed) the controlled substance with the specific intent to sell the same.' [¶] Does this mean the individual was going to personally sell the substance or that they had knowledge that it was going to be sold by someone else?" (Emphasis in original jury note.) The court answered: "'Either situation would suffice.'" (People v. Consuegra, supra, 26 Cal.App.4th at pp. 1731-1732.) The Court of Appeal considered the jury's question and the trial court's erroneous answer together, and found the answer ambiguous. The Court then asked if there was a likelihood that the jury understood the ambiguous instruction to mean that knowledge alone was sufficient. The Court found no such likelihood. The Court found that the jury's question, with its emphasis on the word "personally" would likely have caused the jury to understand the answer as meaning that defendants could be convicted if the defendants intended that someone else would sell the drugs. The Court recognized that if the jury had focused on the word "knowledge," such a focus could have caused the jury to conclude that the defendants were guilty if they merely knew that someone would ultimately sell the drugs. The Court also found that any error would be harmless because the jury found the defendants guilty on the conspiracy charge and the instructions for that charge told the jury that "'specific intent to commit [possession with intent to sell]'" was required to convict the defendant of conspiracy. (Id. at pp. 1732-1733.)
Here, we see nothing ambiguous about the trial court's answer. The court expressly told the jury that knowledge without intent was sufficient. The answer did not refer to or incorporate the jury's question and thereby create a possible ambiguity. Further, even assuming for the sake of argument that the answer was ambiguous, the jury's questions in this case did focus on knowledge and intent. The jury asked three successive questions about intent. First the jury asked for an explanation of intent, then if knowledge of Moore's intent would make the defendant guilty, then if carrying the drugs for Moore with knowledge would make the defendant guilty. Nothing in those questions suggests that the jury would have construed the court's answer as meaning that appellant had to intend that Moore sell the drugs.
Thus, we view the court's error as either instructing the jury on two legal theories, one valid and one not, or omitting an element of the offense.
When a trial court instructs a jury on two theories of guilt, one of which was legally correct and one legally incorrect, reversal is required unless there is a basis in the record to find that the verdict was actually based on a valid ground. (People v. Guiton (1993) 4 Cal.4th 1116, 1129.)
We see no basis for reaching such a conclusion. Detective Holtz's opinion testimony was sufficient evidence to show that appellant intended to sell the cocaine himself, and the jury's question about timing shows that this was a theory being considered by the jury. Moore's testimony constituted sufficient evidence to show that appellant did not intend to sell the cocaine himself, and did not intend for Moore to sell it. The jury's questions about knowledge show that this was also a theory being considered by the jury.
The jury deliberated for about two hours on February 6, the day it submitted the questions. The next day, the jury deliberated for about 40 minutes, then received the answers to questions 1, 3 and 4 which referred them to previously given instructions. The jury deliberated for an additional 20 minutes, then the trial court told the jury that knowledge without intent was sufficient. Thirty minutes later, the jury returned its verdict. If anything, the timing suggests that the jury did base its verdict on the incorrect legal theory that knowledge without intent was sufficient.
"An instructional error that improperly describes or omits an element of the crime from the jury's consideration is subject to the 'harmless error' standard of review set forth in (Chapman v. California (1967) 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705.) [Citation.] We thus consider whether it appears beyond a reasonable doubt that the instructional error did not contribute to the jury's verdict. [Citation.]" (People v. Lamas (2007) 42 Cal.4th 516, 526.)
The trial court's comments incompletely describe the intent element of possession for sale of a controlled substance. As we discuss, supra, the jury's questions show that the jury was considering whether knowledge alone was sufficient. There was a conflict in the evidence concerning appellant's intent. We cannot conclude beyond a reasonable doubt that the court's instruction on this issue did not contribute to the jury's verdict.
Since we cannot find the trial court's error to be harmless, appellant's conviction for possession for sale of a controlled substance in violation of Health and Safety Code section 11351 must be reversed. In convicting appellant of possession for sale, the jury necessarily found that appellant possessed the cocaine, knew of its presence in his wallet, knew that it was a controlled substance, and that the amount of cocaine was sufficient to be used as a controlled substance. The trial court's error could not have affected those findings, and they are sufficient to support a conviction for the lesser included offense of possession of a controlled substance in violation of Health and Safety Code section 11350. If the People do not elect to re-try appellant on the possession for sale charge, appellant's conviction will be re-instated as one for simple possession.
2. Fines
In May 2007 we asked the parties to discuss the effect of our opinion in People v. Chavez (2007) 149 Cal.App.4th 1340 on the restitution and court security fines imposed in this case. Chavez considers the effects of section 1465.7 and Government Code section 70372 on fines imposed in criminal cases. On August 15, 2007, the California Supreme Court granted review in Chavez, S153920. On October 5, 2007, the Governor approved Senate Bill No. 425 which was enacted to clarify that the state construction penalty is not to be imposed on restitution fines. Section 22 of that bill states that it was enacted in part to "construe and clarify the meaning and effect of existing law and to reject the interpretation given to the law in People v. Chavez (2007) 150 Cal.App.4th 1288."
The Court dismissed review and remanded the case to this Court on October 24, 2007.
Respondent contends that Government Code section 70372, as amended by Senate Bill 425, requires that a state court construction penalty should be added to the $50 Health and Safety Code section 11372.5, subdivision (a) laboratory fee fine and that a surcharge on the laboratory fine should be imposed pursuant to section 1467.5. We agree. Following enactment of Senate Bill 425, we explained its application to a Health and Safety Code section 11372.5, subdivision (a) laboratory fee. (People v. McCoy (2007) 156 Cal.App.4th 1246.) We found that the state court construction penalty did apply to this fee. We also explained that the amount of the penalty is $15. (Id. at p. 1254.) In addition, a $10 surcharge on the laboratory fine should be imposed pursuant to section 1467.5.
Disposition
We reverse the judgment of conviction and remand this matter for a new trial. If the People do not retry appellant, appellant's conviction shall be reinstated as possession of a controlled substance in violation of Health and Safety Code section 11350, in which case appellant shall be resentenced accordingly. Such resentencing should include adding a Government Code section 70372 state court construction penalty of $15 and a $10 surcharge pursuant to Penal Code section 1467.5 to the Health and Safety laboratory fee.
I concur: MOSK, J.
KRIEGLER, J.
I concur in the result. It seems clear to me that the jury’s second question was directed at the concept of aiding and abetting, as the jury asked if defendant’s knowledge that Moore’s intent was to sell was sufficient to establish guilt. However, the case was not tried by the prosecution on an aiding and abetting theory, nor was the jury instructed on the concept.
I write separately to emphasize that the trial court’s response would have been entirely correct had aiding and abetting instructions been given. Had the jury found that Moore possessed the cocaine with the intent to sell when she gave it to defendant, and that defendant held it for her in order to aid or assist in her possession for sale, a guilty verdict would have been proper on an aiding and abetting theory. (People v. Parra (1999) 70 Cal.App.4th 222, 227 fn. 5; see also People v. Perez (2005) 35 Cal.4th 1219, 1225-1226.)
The trial court did not necessarily misstate the law in its answer to question number two, but the answer was arguably incomplete without further instructions on aiding and abetting. The answer to the question leaves open the possibility that defendant was convicted without a jury finding that either defendant or Moore possessed cocaine for the purpose of sale. With that understanding, I concur in the limited reversal.