Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County., No. SWF023993, David W. Ryan, Judge. (Retired judge of the San Diego Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
Jan B. Norman, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Peter Quon, Jr., and Marcella O. McLaughlin, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
MILLER, J.
A jury convicted defendant Keith Lamont Menyweathers of possession of methamphetamine. (Health & Safe. Code § 11377, subd. (a).) Thereafter, defendant admitted having sustained a prior strike conviction (Pen. Code §§ 667, subds. (c) & (e), 1170.12, subd. (c)(1)) and a prior prison term (Pen. Code § 667.5, subd. (b)). The court sentenced defendant to an aggregate term of three years eight months of imprisonment consisting of the following: the low term of 16 months on count 1 doubled pursuant to the strike prior plus 12 months for the prior prison term. On appeal, defendant contends that the trial court’s erroneous reading of CALCRIM No. 359, that the jury “must” rather than “may” rely on defendant’s out of court statements to convict him, resulted in reversible error. We disagree and, therefore, affirm the judgment in full.
Although the sentencing minute order correctly reflects that defendant was sentenced pursuant to Penal Code section 667, subdivision (e)(1), it incorrectly enumerates the low term on count 1 as two years eight months, i.e., what the actual low term of 16 months for a violation of Health & Safety Code section 11377, subdivision (a), would be when doubled pursuant to a true finding on the prior strike allegation. Similarly, the abstract of judgment shows that the court sentenced defendant to the low term of two years eight months without reflecting that his sentence was doubled pursuant to the prior strike. The trial court’s oral statement of the sentence was correct. Thus, we shall order the trial court to correct the minute order and abstract of judgment to reflect the oral imposition of a sentence of the low term of 16 months on count 1, doubled pursuant to the strike prior. (See People v. Mitchell (2001) 26 Cal.4th 181, 185 [appellate courts’ inherent power to correct clerical errors].)
FACTUAL AND PROCEDURAL HISTORY
On December 11, 2007, around 9:00 p.m., Officer Pitette and his partner were patrolling the streets in an apartment complex in their unmarked police car. Officer Pitette saw two individuals next to a dumpster, who walked off quickly in different directions after seeing the patrol vehicle. Despite not seeing anything exchanged, Officer Pitette’s “gut” told him that a “hand-to-hand drug transaction” or some other type of criminal activity had just occurred. The officers followed after defendant.
Although the officers testified the vehicle was unmarked, Officer Pitette testified that in a bright light one could see the interior light bar on the vehicle, both uniformed officers inside, and “police” written on the side of the vehicle.
Defendant walked towards the driver’s side door of a parked van. While still in the patrol vehicle, Officer Pitette saw something either fall or be thrown to the ground from the front of defendant’s person. Officer Pitette exited the vehicle and contacted defendant. He requested permission to search defendant. Defendant consented. Officer Pitette did not find anything illegal on him. Officer Pitette then had defendant sit on the curb and Officer Pitette retrieved the fallen object from the ground.
The object was a small, torn, knotted piece of a plastic shopping bag with “a white crystal-like substance” inside. This was a common way to package methamphetamine, typically referred to as a “bindle.” Officer Pitette arrested defendant. He then weighed and tested the substance; it tested positive for methamphetamine. A laboratory technician later conducted chemical screening tests on the substance, which reflected positive results for methamphetamine.
At the patrol station Officer Pitette read defendant his Miranda rights, which defendant waived. Defendant informed Officer Pitette that he had purchased the methamphetamine from the other individual for $40. Defendant admitted that he smoked methamphetamine and had last used it two days earlier.
Miranda v. Arizona (1966) 384 U.S. 436.
DISCUSSION
Defendant contends the court’s misreading of the instruction informing the jury that it “must” rather than “may” rely on defendant’s statements to the investigating officer in determining whether to convict defendant resulted in reversible error. The People maintain that the error was harmless. We agree with the People.
“[T]he misreading of a jury instruction does not warrant reversal if the jury received the correct written instructions. [Citation.]” (People v. Prieto (2003) 30 Cal.4th 226, 255; People v. Osband (1996) 13 Cal.4th 622, 687.) We presume that the jurors were guided by the written form of instructions given them. (Osband, at p. 687.)
Here, although the court misspoke when it informed the jury that it “must” use defendant’s statements when determining whether to convict him, the written instruction given the jury correctly noted that it “may only rely on defendant’s out-of-court statements to convict (him) if [it] conclude[s] that other evidence shows that the charged crime or a lesser included offense was committed.” (Italics added.) (CALCRIM No. 359.) We presume the jury followed the written instruction rather than the oral misrepresentation; thus, the error was harmless for that reason.
Nevertheless, to the extent we are required to conduct a harmless error analysis beyond ensuring that the correct written instruction was given, we hold that the error was harmless beyond a reasonable doubt. (People v. Prieto, supra, 30 Cal.4th at p. 255.) Here, after seeing the patrol vehicle, defendant walked away quickly from what appeared to the officer as a hand-to-hand drug transaction or other criminal activity. The officers followed defendant in their patrol vehicle. The patrol vehicle’s headlights were on. The apartment complex was lighted. Officer Pitette also believed he had the spotlight on defendant. Officer Pitette’s partner testified that the spotlight was on. Defendant was the only person on the street. There was no other vehicle traffic on the street. There was no other debris near where the bindle landed; the street was clean. Officer Pitette saw a white object fall or be thrown to the ground in front of defendant. Officer Pitette testified that he was “sure that that bindle was the white object that came from [defendant’s] body.” Officer Pitette was only 10 to 15 feet away from defendant when the object was dropped. Indeed, the officer testified that he had never heard of a bindle of methamphetamine found unattended on the ground and that such a finding would surprise him. Thus, the officer’s testimony, which the jury had no reason to question, provided overwhelming evidence of defendant’s guilt. We conclude, contrary to defendant’s contention, that the jury could not reasonably have believed, even if properly orally instructed, that the bindle had already been previously discarded or lost on the street prior to defendant passing by.
Furthermore, demonstrating the harmlessness of the misspoken instruction, the court properly instructed the jury, both orally and in writing, with CALCRIM No. 358: “You have heard evidence that the defendant made an oral statement before the trial. You must decide whether or not the defendant made any such statement, in whole or in part. If you decide the defendant made such a statement, consider the statement, along with all the other evidence, in reaching your verdict. It is up to you to decide how much importance to give to such a statement.” Likewise, only one word of its oral instruction with CALCRIM No. 359 was incorrect: “You must consider with caution any evidence of a defendant’s oral statement unless it was written or otherwise recorded. [¶] The defendant may not be convicted of any crime based on his out-of-court statements alone. You must rely on the defendant’s out-of-court statements to convict him if you conclude that other evidence shows that the charged crime was committed.” (Italics added.) As noted above, the written instruction given the jury was correct. Thus, the jury could not reasonably have interpreted the instructions, considered as a whole, to mean that they must believe the officer’s account of defendant’s postarrest statements. (People v. Yoder (1979) 100 Cal.App.3d 333, 337.)
Finally, nothing in the court’s misstatement diminished the prosecution’s burden of proof. The court properly instructed the jury that it was the prosecution’s burden to prove beyond a reasonable doubt that defendant was guilty of the charged offense. (CALCRIM Nos. 220, 355, 359.) Both sides touched on the burden of proof in their closing arguments. Thus, there is nothing in the record to reasonably suggest the jury determined defendant’s guilt by a lower threshold than that required by law.
DISPOSITION
The trial court is directed to correct the sentencing minute order of November 7, 2008, and the abstract of judgment to reflect that imposition of sentence on count 1 was doubled pursuant to defendant’s prior strike conviction. The trial court is further directed to forward certified copies of the corrected minute order and abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
We concur: McKINSTER, Acting P. J., RICHLI, J.