Opinion
D070733
07-31-2017
THE PEOPLE, Plaintiff and Respondent, v. JOSE ANTONIO PEREZ, Defendant and Appellant.
Law Office of Donovan J. Dunnion and Donovan J. Dunnion, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Barry Carlton, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCN346573) APPEAL from a judgment of the Superior Court of San Diego County, Harry M. Elias, Judge. Affirmed. Law Office of Donovan J. Dunnion and Donovan J. Dunnion, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Barry Carlton, Deputy Attorneys General, for Plaintiff and Respondent.
A jury found defendant Jose Antonio Perez guilty of transporting cocaine for sale. (Health & Saf. Code, § 11352, subd. (a).) The trial court granted him five years' probation on the condition he serve 365 days in custody, and imposed but stayed execution of a four-year prison sentence.
All further statutory references are to the Health and Safety Code unless otherwise noted.
Perez contends the court erred in denying his motion to suppress the cocaine found in his car at a border checkpoint after he consented to a search of the vehicle. He also claims the court improperly denied his discovery requests, failed to instruct on intent to transport for sale, and erred in declining to instruct the jury on simple possession as a lesser included offense. We reject these contentions and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
This factual summary is based on the trial testimony. We address the suppression hearing evidence in our analysis, post.
United States Border Patrol (Border Patrol) Agent Raymond Gomez stopped a vehicle driven by Perez at the San Clemente Border Patrol Station checkpoint. He asked Perez where he was coming from. Perez stated he was coming from Escondido, grabbed his wallet, and said: "I'm headed to San Pedro, and the reason why I was in Escondido was because I was dropping off an aunt, and now I'm heading home." Agent Gomez had not asked for his wallet or asked additional questions. He noticed Perez had a permanent resident card in his wallet and asked to see it. Because the picture was not clear, Agent Gomez could not tell if Perez was the person depicted in the photo. He also "found it strange that [Perez] gave me more than what I asked for . . . ."
Agent Gomez asked Perez if the car was registered to him and Perez said it was registered to his wife. He then added: "I'm a trucker. I'm currently hurt. I'm not working at the time." Agent Gomez testified this was a "sign of nervousness. . . . It seemed like he already had rehearsed the story. And no matter what I asked him, he was going to give me the story." Based on Perez's behavior, and the condition of the permanent resident card, Agent Gomez sent Perez to the secondary inspection area.
Border Patrol Agents Salvador Diaz and Luis Lopez met Perez moments after he was referred to secondary. Agent Diaz also asked for Perez's identification and, as Perez handed the resident card outside the window, he could see his hand "visibly shaking." Agent Diaz had Perez step out of the vehicle and asked if he could search the trunk. Perez said yes. Agent Diaz asked who owned the vehicle. Perez "looked down," "started speaking incoherently," and "was basically just blabbering . . . ."
Agent Lopez testified that when Perez exited the car, he also asked for permission to search the car and Perez gave consent. During this search, Agent Diaz and Perez were sitting on a bench approximately 10 yards away. Agent Lopez found a plastic grocery bag containing a cellophane wrapped bundle underneath the front passenger seat. He believed it was narcotics and nodded to Agent Diaz, who arrested Perez. The cocaine had a net weight of 1,016 grams.
As we discuss in connection with the suppression motion, Agent Lopez asked for and received consent to conduct a canine search and the canine alerted to the bag, but the parties agreed to not reveal this to the jury.
Border Patrol Agent Michael Toledo informed Perez they were going to seize the car. Perez had not been advised what they had found. He became "very agitated and disgruntled" and said "No es mi clavo," which translated to "It's not my drugs." Agent Toledo did not hear his other statements word for word, but stated Perez said drugs "more than once" and "the second time, [he] actually heard the word 'drugs' in Spanish" (i.e., "drugas"). On cross-examination, Agent Toledo indicated the literal translation of clavo is "nail."
Drug Enforcement Administration Agent Joseph Vecchione was the lead investigator on the case. He testified a kilo of cocaine has roughly 10,000 doses. Based on the quantity and the manner in which the cocaine was wrapped, he would say it was "definitely for sale . . . ." He had never seen something packaged in that way for personal use and confirmed the cocaine package here was consistent with the purposes of transporting for sale.
Defense counsel inquired about blind mules. Agent Vecchione did not have personal experience with drivers who were unaware they were transporting contraband, but agreed it was something that could be done. He indicated nervousness would be inconsistent with a blind mule. He also stated the wholesale value of the cocaine was approximately $26,000, and if he were a smuggler, he would not give it to someone who was not "tested and reliable."
Perez's wife also testified. She confirmed he had been injured in a truck accident, and testified he experienced anxiety as a result. She further testified he was able to work and if he told the Border Patrol agent he was not working, that would be incorrect. She also indicated the purpose of his trip the day he was arrested was to look for a new truck.
DISCUSSION
I. Suppression Motion
Perez contends the detention exceeded the purpose of the checkpoint and his consent to search was invalid, as it took place during an illegal detention and was involuntary. We conclude the stop was lawful, the consent was valid, and the motion to suppress was properly denied.
A. Factual Summary
Agents Gomez and Diaz testified at the suppression hearing. We relate this testimony to the extent pertinent to our analysis, but do not reiterate statements consistent with their accounts at trial.
The record reflects Perez lodged the preliminary hearing transcript before the suppression hearing and he discusses it here, but it is unclear if it was entered into evidence. "[W]e consider only the evidence adduced at the hearing of the [suppression] motion . . . ." (People v. Neighbours (1990) 223 Cal.App.3d 1115, 1120.) Our review of Perez's contentions is based on the suppression motion proceedings.
Agent Gomez testified it was the duty of Border Patrol agents to enforce immigration law, and noted that agents were cross-trained with Title 21, which involves narcotics. He explained that at the checkpoint, they question drivers about immigration and if they see anything out of the ordinary, they continue their investigation. He noted, "[U]sually when I ask people I stop where they are coming from, they reply with short answers . . . ." He said people "are very brief" and "want to keep going up the road," and agreed that when people are nervous, they talk more and provide more information. He also testified the checkpoint purpose is "immigration inspections," so he wanted to see Perez's card and verify his status. On cross-examination, Agent Gomez denied he was looking for Perez's car (or had any indication anybody else was), or that he suspected narcotics activity.
Agent Diaz testified he was there to determine if Perez was lawfully in the country. With respect to the request for consent, he explained, "As part of our routine inspection, I had the driver step out of the vehicle and I asked if he could open his trunk for us." Agent Diaz testified Perez said "yes," stepped out of the vehicle, and opened his trunk. He explained agents "always ask for consent to search the trunk of the vehicle." Less than two minutes passed between Perez's arrival at secondary and the trunk search. Agent Diaz also testified that when Perez opened the trunk, Agent Lopez asked for consent to search the vehicle with the canine and Perez said yes. The canine alerted to the bag underneath the front passenger seat. Approximately five minutes had passed when the drugs were found.
The matter proceeded to argument. The court framed the issue as whether the agents extended an otherwise legitimate detention to accomplish some other purpose. Defense counsel argued, in substance, that the purpose of the checkpoint was immigration, but the agents failed to check immigration status and instead conducted other investigatory activity. He argued this failure rendered the detention unlawful, and also maintained Perez's consent was coerced. In response, the court noted, "he's referred to secondary. That appears to be legitimate. And within a very short period of time, a minute or two, we have consent requested and given for a search of the trunk and a canine search of the vehicle. I'm having trouble understanding how, if those are the facts, the detention was extended longer than would have been legitimately necessary to address the immigration issues." The prosecutor argued the agents were not required to verify immigration status in a manner convenient for defense counsel and disputed there was evidence of coercion. The court concluded, "the detention was not unduly prolonged, nor is there any evidence that the consent that was requested by both of the two border patrol agents was in any way coerced," and denied the motion to suppress.
B. Governing Principles
The Fourth Amendment to the United States Constitution bans all unreasonable searches and seizures. (People v. Jenkins (2000) 22 Cal.4th 900, 971 (Jenkins).) Warrantless searches are per se unreasonable unless an exception applies. (Arizona v. Gant (2009) 556 U.S. 332, 338.)
Immigration checkpoints, like the one in San Clemente, present a special situation. In United States v. Martinez-Fuerte (1976) 428 U.S. 543 (Martinez-Fuerte), the United States Supreme Court held "stops for brief questioning routinely conducted at permanent checkpoints are consistent with the Fourth Amendment and need not be authorized by warrant." (Id. at p. 566.) If an agent finds reason for further inquiry, the vehicle may be directed to a secondary station "on the basis of criteria that would not sustain a roving- patrol stop." (Id. at p. 563.) " '[A]ny further detention . . . must be based on consent or probable cause.' " (Id. at p. 567.)
The prosecution has the burden of proving consent "was the product of . . . free will and not a mere submission to an express or implied assertion of authority." (People v. James (1977) 19 Cal.3d 99, 106.) "[W]hether consent was voluntary or was the product of coercion on the part of searching officers is a question of fact to be determined from the totality of circumstances." (Jenkins, supra, 22 Cal.4th at p. 973.)
In reviewing a trial court's denial of a suppression motion, we "defer to the trial court's factual findings . . . where supported by substantial evidence." (People v. Glaser (1995) 11 Cal.4th 354, 362 (Glaser).) We independently decide "whether, on the facts so found, the search or seizure was reasonable under the Fourth Amendment . . . ." (Ibid.)
C. Analysis
We conclude the detention and search at the checkpoint were reasonable. The record supports the trial court's determination the detention was not unduly prolonged. Agent Gomez was permitted to stop Perez's vehicle for brief questioning. (Martinez-Fuerte, supra, 428 U.S. at p. 566.) Perez's faded resident card and demeanor provided reason for Agent Gomez to direct him to secondary. (Ibid.) In secondary, the agents met Perez within moments of arrival and Agent Diaz asked only for Perez's resident card and inquired about his car registration. Agent Diaz then asked for and received consent to open the trunk. Agent Lopez's request to conduct the canine search occurred shortly thereafter, and Perez again consented. There is no evidence to suggest the initial detention exceeded the bounds of the permitted immigration inquiry.
Perez's contrary arguments lack merit. He contends "the sole focus" at secondary "was on searching for evidence of general crimes" and the agents' conduct indicated "they accepted the fact Mr. Perez was lawfully in the Country . . . and used [immigration status] as a pretext." But Perez does not identify any actions taken by the agents prior to receiving consent that reflect a focus on criminal conduct, and " 'speculation is not evidence . . . .' " (People v. Waidla (2000) 22 Cal.4th 690, 735.) Perez also suggests the agents should have been satisfied by the existence of his resident card, and argues they could have verified his status in other ways. But the card was not clear, and he provides no authority requiring the agents to take particular steps to verify immigration status. We are satisfied the inquiry here was reasonable.
Perez also alleges an "unconstitutional purpose for the checkpoint at San Clemente, at least as applied to the detention of Mr. Perez upon referral to secondary inspection, under the facts of this case," and elsewhere cites a discussion of the checkpoint's continuing constitutionality in People v. Soto-Zuniga (9th Cir. 2016) 837 F.3d 992. We disagree Perez's detention violated his constitutional rights, need not address the constitutionality of the checkpoint generally, and decline to do so.
Additionally, there is also substantial evidence to support the court's finding that Perez's consent was not coerced. Agents Diaz and Lopez asked for consent shortly after Perez arrived in secondary, and there is no evidence they raised their voices, drew their weapons, or otherwise acted in a threatening manner. Perez's consent provided grounds for the further detention and vehicle search.
Perez's other arguments, challenging consent, are unpersuasive. As an initial matter, he contends "there was no claim that he was asked or gave consent[] for officers to search the trunk." Agent Diaz testified at the suppression hearing that he asked Perez to open the trunk, and Perez said yes and opened the trunk. This was sufficient. (See, e.g., People v. Martino (1985) 166 Cal.App.3d 777, 791 [substantial evidence of consent provided by "nonverbal gesture of opening the door wider and stepping back" for detective to enter].)
Perez also stated in his fact summary that "[p]ermission to run the dog through the vehicle was not requested." Although Agent Diaz testified he did not ask for such permission, it was Agent Lopez who obtained consent for and conducted the canine search and nothing in the suppression hearing transcript suggests that consent was limited to the car exterior.
With respect to the alleged illegality of the detention, Perez contends "immigration checkpoints are permitted without any reason to believe an offense has been committed" and "[t]he failure to limit the scope of the seizure to the legitimate administrative purpose, rendered the seizure unconstitutional." The detention was properly limited, as discussed, ante. To the extent Perez is suggesting consent cannot extend an immigration stop once the immigration inquiry is complete, we disagree. He provides no authority to support this view and Martinez-Fuerte reflects consent is a basis for extending the detention. (Martinez-Fuerte, supra, 428 U.S. at p. 567 [" 'further detention . . . must be based on consent or probable cause' "]; see also United States v. Machuca-Barrera (5th Cir. 2001) 261 F.3d 425, 433 [permissible duration of checkpoint stop includes time to "request consent to extend the detention"].)
Perez also maintains he merely acquiesced to the agents' authority and that a reasonable person would not have believed consent was being requested. This conclusory assertion is unsupported by the record. Indeed, Perez does not identify anything even potentially threatening about the agents besides their firearms and body armor. Law enforcement equipment is not coercive, without more. (Cf. People v. Challoner (1982) 136 Cal.App.3d 779, 782 [evidence of "drawn gun [was] not itself sufficient to establish . . . consent [for home search] was the product of coercion"].) The agents also were not required to advise him he could decline the searches. (People v. Boyer (2006) 38 Cal.4th 412, 447, fn. 20 [advice as to right to refuse consent "is not essential to a finding of valid consent"].)
To the extent Perez raises additional arguments and authorities on reply that he could have addressed in his opening brief (as he does regarding consent and other issues), we decline to consider them. (People v. Zamudio (2008) 43 Cal.4th 327, 353 (Zamudio) [" 'Normally, a contention may not be raised for the first time in a reply brief.' "].)
II. Discovery
Perez contends the trial court's denial of his discovery requests violated his right to due process of law. We conclude Perez has not established the court's rulings were erroneous, and further determine that even if they were, they would be harmless under any standard.
A. Factual Summary
Perez filed motions for discovery, including under Brady v. Maryland (1963) 373 U.S. 83 (Brady), which requires disclosure of exculpatory material, and Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess), which provides a procedure for obtaining California officer personnel files. Relevant here, Perez sought the agents' personnel files; policies and procedures (including performance goals, training procedures, and "evidence of [a] policy to conduct inspection unrelated to immigration"); and canine records. The prosecution agreed to provide exculpatory Brady material and the canine records once received, but argued they had no obligation to provide materials outside their possession and that the policies and procedures were irrelevant.
At the motion hearings, the court ruled the Pitchess procedure did not apply to the federal agents in the case, denied the suppression motion, and addressed the remaining discovery requests, focusing primarily on the policy items the prosecution argued were irrelevant. The court indicated it could see how some of these documents might be relevant to suppression, but stated, "we're past that now," and inquired: "[H]ow are these relevant to the issues at trial?" Defense counsel argued the evidence went to officer credibility, and could also disclose material witnesses and policies with information going to Perez's guilt or innocence. The court determined that a policy regarding when inspections were conducted was not Brady material, and that while an exculpatory witness would be, defense counsel had no information as to any such witness. The court concluded the discovery was not relevant and denied the motion.
The prosecution provided the canine report the day before trial, and defense counsel indicated he needed an expert to review it. The prosecution agreed to exclude discussion of the canine at trial and did so.
B. Governing Principles
California's criminal discovery statute requires the prosecution to disclose, among other things, "[a]ny exculpatory evidence" (Pen. Code, § 1054.1, subd. (e)) that "is in the possession of the prosecuting attorney or if the prosecuting attorney knows it to be in the possession of the investigating agencies[.]" (Id., § 1054.1.)
Under Pitchess, a defendant "has a limited right to discovery of peace officer personnel records." (California Highway Patrol v. Superior Court (2000) 84 Cal.App.4th 1010, 1019.) The defendant must file a motion supported by " '[a]ffidavits showing good cause for the discovery or disclosure sought, setting forth the materiality thereof to the subject matter involved in the pending litigation and stating upon reasonable belief that such governmental agency identified has the records or information from the records.' " (Ibid., quoting Evid. Code, § 1043, subd. (b)(2), (3).) "If a defendant shows good cause, the trial court examines the relevant materials in camera to determine whether disclosure should be made." (People v. Gutierrez (2003) 112 Cal.App.4th 1463, 1473.)
With respect to Brady, the due process clause of the Fourteenth Amendment requires the prosecution to disclose "material exculpatory evidence" to the defense. (People v. Superior Court (Johnson) (2015) 61 Cal.4th 696, 709.) "For Brady purposes, evidence is material if it is reasonably probable its disclosure would alter the outcome of trial." (Id. at pp. 709-710.) The three elements of a Brady violation are: " 'The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued.' " (Id. at p. 710.)
Our review of the trial court's decisions under the discovery statute and Pitchess are for abuse of discretion. (People v. Prince (2007) 40 Cal.4th 1179, 1232 [discovery statute]; People v. Lewis and Oliver (2006) 39 Cal.4th 970, 992 [Pitchess].) We review de novo whether a defendant has established a Brady violation. (People v. Salazar (2005) 35 Cal.4th 1031, 1042.)
Even if a court errs, "the defendant must show prejudice from the erroneous denial of discovery." (People v. Jackson (2003) 110 Cal.App.4th 280, 286 (Jackson); see People v. Zambrano (2007) 41 Cal.4th 1082, 1135, fn. 13 [violation of reciprocal discovery statute subject to harmless error standard under People v. Watson (1956) 46 Cal.2d 818, 836 (Watson); reversal required only where it is reasonably probable the omission affected the trial result]; People v. Samuels (2005) 36 Cal.4th 96, 110 [applying Watson to Pitchess denial]; People v. Cook (2006) 39 Cal.4th 566, 616 ["beyond a reasonable doubt test" under Chapman v. California (1967) 386 U.S. 18, 24 applies to "denial of discovery that implicates the federal constitutional guarantee of due process"].)
Although Perez suggests all of his requests implicated due process, "Brady exculpatory evidence is the only substantive discovery mandated by the United States Constitution. . . ." (People v. Superior Court (Barrett) (2000) 80 Cal.App.4th 1305, 1314.) In any event, as we discuss, post, he does not address prejudice and cannot establish reversible error, so we need not address this issue further.
C. Analysis
We begin with the federal personnel files and polices, which involve similar issues. First, the trial court did not err under Penal Code section 1054.1. Although the prosecutor "is responsible . . . for information possessed by others acting on the government's behalf," he or she " 'does not have a duty to disclose exculpatory evidence or information to a defendant unless the prosecution team actually or constructively possesses that evidence or information.' " (In re Steele (2004) 32 Cal.4th 682, 697.) The People maintain there is no showing they have access to the federal personnel files and polices at issue. Perez's assertion that "[t]he requested information was in the possession of the prosecution team" does not meaningfully call the People's position into question.
Perez does provide authority in his opening brief that an investigatory agency can be part of the prosecution team. (See In re Brown (1998) 17 Cal.4th 873, 879 ["Courts have . . . consistently 'decline[d] "to draw a distinction between different agencies under the same government, focusing instead upon the 'prosecution team' which includes both investigative and prosecutorial personnel." ' "].) But he does not explain how that principle applies here, where the agencies are part of a different government. (People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 363 (Bryant) ["If a party's briefs do not provide legal argument and citation to authority on each point raised, ' "the court may treat it as waived, and pass it without consideration." ' "].) We do not address the additional cases he cites for the first time on reply. (Zamudio, supra, 43 Cal.4th at p. 353.)
Second, Perez does not establish an abuse of discretion under Pitchess. The applicable statutes address California peace and custodial officers, not federal agents. (Evid. Code., § 1043, subd. (a) [addressing "discovery . . . of peace or custodial officer personnel records or records maintained pursuant to [§] 832.5 of the Penal Code"]; Pen. Code, § 832.5, subd. (a)(1) ["Each department or agency in this state that employs peace officers shall establish a procedure to investigate complaints by members of the public . . . ."]; Pen. Code, § 830.8, subd. (a) ["Federal criminal investigators and law enforcement officers are not California peace officers . . . ."].) The People note Perez could have subpoenaed the records. Perez's response—that the prosecution has more direct access and his requests were sufficient to constitute a subpoena-like request—does not call into question the court's application of Pitchess or otherwise support error here.
Third, based on our independent review, we conclude Perez has not shown Brady error. He does not actually identify exculpatory evidence, but instead speculates the materials he seeks are, or will lead to, such evidence. " 'Brady . . . does not require the disclosure of information that is of mere speculative value . . . .' " (People v. Williams (2013) 58 Cal.4th 197, 259.)
Turning to the canine records, Perez does not dispute that he received them. Rather, he appears to challenge when he received them, arguing on reply that "[a]s outlined in the . . . Opening Brief, these records were material . . . and suppressed until the day before trial." He claims the records were relevant to probable cause for the search and to trial issues, including officer credibility. Although it is not clear Perez sufficiently raised this argument in his opening brief, the assertion lacks merit. Consent, not probable cause, was the basis for the search, and the canine evidence did not come in at trial. Any delay in receipt of the records was harmless.
Finally, Perez does not address prejudice here and cannot establish reversible error. (Bryant, supra, 60 Cal.4th at p. 363; Jackson, supra, 110 Cal.App.4th at p. 286.) Even if we were to reach prejudice, Perez's speculation about what witnesses and policies might exist, and what they might disclose, is insufficient. (People v. Gonzales (2012) 54 Cal.4th 1234, 1254 ["speculative and peripheral consideration" insufficient to establish prejudice under Watson or Chapman].) Further, there was ample, if not overwhelming, evidence to support the conviction, including the amount and packaging of the cocaine, the undisputed testimony it could only be for sale, Perez's "not my drugs" statement before he was told drugs were found, and the inconsistencies between his statements to Agent Gomez and his wife's testimony.
III. Instructional Error
Perez argues the court's alleged failure to instruct on intent to transport for sale, coupled with comments in the prosecutor's closing argument, resulted in a de facto directed verdict on the issue. Even if the intent instructions were insufficient, such error was harmless. Perez also argues the court erroneously declined his request for a lesser included offense instruction on simple possession. We conclude there was no error on the lesser included offense issue.
Perez states in his briefing that the trial court "fail[ed] to include 'sale' as an element of the offense," but the record clearly reflects the court included " 'transported for sale' " as an element and Perez's argument focuses on intent. We construe his argument accordingly.
A. Factual Summary
Relevant to Perez's instructional error claims, the trial court provided the following instructions to the jury: CALCRIM No. 223:
"Facts may be proved by direct or circumstantial evidence or a combination of the two. Direct evidence can prove a fact by itself. [¶] So let's use a different example. If a witness testifies that he saw it raining outside before he came into the courthouse, that testimony is direct evidence that it was raining. [¶] Circumstantial evidence is sometimes referred to as indirect evidence. Circumstantial evidence doesn't directly prove the fact to be decided, but is evidence of another fact or group of facts from which you may logically and reasonably conclude the truth of the fact in question. [¶] So using that same example, if a witness testifies he saw someone come inside the courthouse. The person was wearing a raincoat, and the raincoat was covered with drops of water, that testimony is circumstantial evidence that it was raining outside, because it may support that conclusion.
"Both direct and circumstantial evidence are acceptable types of evidence to prove or disprove the elements of a charge, including intent and mental state and acts
necessary to a conviction, and neither is necessarily more reliable than the other. Neither is entitled to any greater weight than the other. You must decide whether a fact in issue has been proved based on all the evidence."CALCRIM No. 251:
"The crimes charged in this case require the proof of the union or joint operation of act and wrongful intent. For you to find a person guilty of the crime in this case, the person must not only intentionally commit the prohibited act, but must do so with a specific intent or mental state. The act and the specific intent or mental state required are explained in the instruction for the crime, which is this coming instruction."CALCRIM No. 2300:
"The defendant is charged in count 1 with transporting for sale cocaine, a controlled substance, in violation of . . . section 11352(a). To prove the defendant is guilty of this crime, the People must prove the following five elements:
"One, the defendant transported for sale a controlled substance;
Two, the defendant knew of its presence;
Three, the defendant knew of the substance's nature or character as a controlled substance;
Four, the controlled substance was cocaine;
And five, the controlled substance was in a usable amount.
"A person transports something if they carry or move it from one location to another for sale, even if the distance is short. A usable amount is a quantity that is enough to be used by somebody as a controlled substance. Useless traces or debris are not useable amounts. [¶] On the other hand, a usable amount does not have to be enough in either amount or strength to affect the user. [¶] The People do not need to prove the defendant knew which specific controlled substance he transported for sale. A person does not have to actually hold or touch something to transport it for sale. It is enough if the person has control over it or the right to control it, either personally or through another person."
The court made minor modifications to the form instructions set forth here, but the revisions do not impact our analysis of the claimed instructional error.
During closing arguments, the prosecutor stated: "[T]he only knowledge requirement from the defendant, the only knowledge requirement that I have to prove, is that he knew of the presence of the drugs, and he knew that it was, in fact, drugs." In addressing the transport for sale element, he stated in part: "Agent Vecchione told you it's not a close call. At this amount, the way it's packaged, the only purpose for this one kilo is for purposes of sale. He doesn't need to know that. He just needs to know that they're present . . . ." The defense's closing focused on the theory that Perez was an unknowing courier, as well as the circumstances around the stop. On the transportation for sale element, defense counsel stated Perez "must have had it for sale to transport." On rebuttal, the prosecutor reiterated Perez "doesn't need to know that it's for purposes of sale," and "[i]t's not about sales. . . ."
B. Governing Principles
We review a claim of instructional error de novo. (People v. Posey (2004) 32 Cal.4th 193, 218.) "[T]he ultimate question is whether 'there was a reasonable likelihood the jury applied the challenged instruction in an impermissible manner.' " (People v. Hajek and Vo (2014) 58 Cal.4th 1144, 1220.) " '[T]he correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction.' " (Ibid.) " '[W]e must assume that jurors are intelligent persons and capable of understanding and correlating all jury instructions which are given.' " (People v. Richardson (2008) 43 Cal.4th 959, 1028.) " 'Instructions should be interpreted, if possible, so as to support the judgment rather than defeat it if they are reasonably susceptible to such interpretation.' " (People v. Ramos (2008) 163 Cal.App.4th 1082, 1088.)
An instruction that omits an element of an offense from consideration by the jury may be harmless "if . . . it appears beyond a reasonable doubt that the error did not contribute to the particular verdict at issue." (People v. Sakarias (2000) 22 Cal.4th 596, 625 (Sakarias), citing Chapman, supra, 386 U.S. at p. 24; ibid. ["[T]he error is harmless, that is, if the record contains no substantial evidence supporting a factual theory under which the elements submitted to the jury were proven but the omitted element was not."].) Closing arguments to the jury are relevant in assessing prejudice from instructional error. (People v. Chavez (2004) 118 Cal.App.4th 379, 388.)
With respect to lesser included offenses, " '[a]n offense is necessarily included in another if . . . the greater statutory offense cannot be committed without committing the lesser . . . .' " (People v. Hughes (2002) 27 Cal.4th 287, 365-366.) A trial court must instruct on a lesser included offense "if there is substantial evidence the defendant is guilty of the lesser offense, but not the charged offense." (People v. Breverman (1998) 19 Cal.4th 142, 177.) If a court errs in failing to instruct on a lesser included offense, in a noncapital case, such error is reviewed under Watson. (Id. at p. 178.)
C. Analysis
1. Specific Intent
Section 11352, subdivision (a) makes it unlawful to transport certain controlled substances. Effective January 1, 2014, section 11352 was amended, defining " 'transports' " to mean "transport for sale." (Id., subd. (c), as amended by Stats. 2013, ch. 504, § 1; see similar amendment to § 11379 [transportation for sale for different set of controlled substances], Stats. 2013, ch. 504, § 2; People v. Lua (2017) 10 Cal.App.5th 1004, 1012 (Lua) [discussing change to § 11379].) CALCRIM No. 2300 was amended as well, to insert the words " 'for sale' " after " 'transported,' " as reflected in the instructions given by the trial court here. (Lua, at p. 1012.) The parties agreed in their briefing that intent to transport for sale is necessary, but disagree as to whether the jury instructions here adequately conveyed that requirement.
Focusing first on the court's instructions, we conclude they were adequate, but could have been more explicit. The jury was instructed specific intent was necessary, told the charge was "transporting for sale," and heard multiple references to sale in CALCRIM No. 2300. We can infer the jury would apply the specific intent instruction to the key element of the only count at issue; i.e., that Perez transported for sale. (See Lua, supra, 10 Cal.App.5th at p. 1014 [jury was instructed on transportation for sale under § 11379 with CALCRIM Nos. 251 and 2300; "Correlating these two instructions, using a plain commonsense reading, the jury was adequately instructed that the prosecution was required to prove not only that defendant intended to transport methamphetamine, but that he intended to transport it 'for sale' "].) Yet, it would have been clearer if the court specified the sale element had to be supported by specific intent.
We agree with our colleagues in Division Two that further amendment of CALCRIM No. 2300 may be appropriate. (See Lua, supra, 10 Cal.App.5th at p. 1016 ["[T]he Judicial Council of California, which promulgates the CALCRIM instructions, should consider conforming the standard instruction for transportation for sale offenses . . . to the instructions for other offenses with an analogous 'for sale' element."]; ibid. [unless and until the instruction is amended, courts "should consider modifying the instruction to be more explicit regarding the required intent"].) --------
However, we agree the prosecutor's comments are problematic. By focusing on the presence of the drugs and repeatedly stating the issue was not sales, the prosecutor potentially introduced confusion about whether Perez had to specifically intend to transport for sale. Rather than clarifying the instructions, the prosecutor amplified the possibility of confusion. (Compare with Lua, supra, 10 Cal.App.5th at p. 1014 ["parties' closing arguments, particularly the prosecution, diminished any possibility of confusion"].)
We need not decide whether this amounted to instructional error, however, because Perez does not establish prejudice under the applicable Chapman standard. (Sakarias, supra, 22 Cal.4th at p. 625.) He contends the jury was "specifically advised . . . that all intent elements would be defined in the offense itself, while the instruction for the offense omitted any intent requirement for sale," and that "[u]nder the circumstances, it cannot be said that the error was harmless." But, as noted, ante, we can infer the jury would apply the specific intent instruction to the transportation for sale element. The jury also was instructed that circumstantial evidence could be proof, and there was strong circumstantial evidence of intent to sell. Moreover, Perez's primary theory was not that he lacked intent to sell, but that he did not know about the drugs at all. On this record, the jury could not rationally have found Perez lacked specific intent to transport for sale, while otherwise meeting the elements of the crime. We conclude any error here was harmless beyond a reasonable doubt.
2. Lesser Included Offense
The trial court did not err in declining to provide the requested possession instruction.
First, possession is not a lesser included offense of transportation for sale. (People v. Eagle (2016) 246 Cal.App.4th 275, 278 (Eagle) [post-2014 amendments; possession not a lesser included offense of transporting methamphetamine]; see People v. Rogers (1971) 5 Cal.3d 129, 134 (Rogers) [possession not a lesser included offense of transportation; "Although possession is commonly a circumstance tending to prove transportation, it is not an essential element of that offense and one may 'transport' . . . drugs even though they are in the exclusive possession of another," citing as an example a "defendant shown to have aided and abetted his passengers in carrying, conveying or concealing drugs . . . ."]; People v. Murphy (2007) 154 Cal.App.4th 979, 984 [possession not an essential element of sale; "one can broker a sale of a controlled substance that is within the exclusive possession of another"].) We reject Perez's assertion that a lesser included instruction may be warranted based on the facts in this case, for which he cites People v. Tinajero (1993) 19 Cal.App.4th 1541, 1547. The fact-based test on which Tinajero relies has been rejected. (See Murphy, at p. 983.)
Perez's other arguments are unavailing too. First, he claims the amendments to section 11352 were meant to abrogate Rogers, citing a comment from the legislative history that "this bill makes it expressly clear that a person charged with this felony must be in possession of drugs with the intent to sell." (Assem. Conc. Sen. Amends. to Assem. Bill No. 721 (2013-2014 Reg. Sess.) as amended June 27, 2013, p. 2.) The amendments overruled Rogers's holding that a defendant can be guilty of transporting drugs even if doing so for personal use. (See Rogers, supra, 5 Cal.3d at p. 134; Eagle, supra, 246 Cal.App.4th at p. 278 [amendment "explicitly intended to criminalize the transportation of drugs for the purpose of sale and not the transportation of drugs for nonsales purposes such as personal use"].) They do not undermine Rogers's reasoning that one can transport drugs without possessing them. The Legislature could have added a possession element, and did not, leaving Rogers undisturbed in this regard. (Torres v. Auto. Club of So. Cal. (1997) 15 Cal.4th 771, 779 ["courts should not presume the Legislature in the enactment of statutes intends to overthrow long-established principles of law"].) Perez also contends the instructions for transportation for sale and simple possession have the same elements, besides " 'transport[ed] for sale' " and " 'possess[ed].' " But many instructions have common elements. The issue is whether one can commit the greater offense, without committing the lesser, and here that is the case.
Second, there was no substantial evidence that Perez merely possessed, but did not transport for sale, the cocaine. The record reflects no testimony the cocaine was for anything but sale. At the same time, there was undisputed testimony that the cocaine had to be for sale, was sufficient for 10,000 doses, and would not have been trusted to an unknowing courier. For a reasonable jury to find simple possession on this record, it would have to inexplicably reject the prosecution's evidence supporting the greater charge. (People v. Walker (2015) 237 Cal.App.4th 111, 117 [defendant entitled to instructions on lesser included offenses only if basis exists " 'other than an unexplainable rejection of prosecution evidence' "]; cf. People v. Goodall (1982) 131 Cal.App.3d 129, 145 [no instruction regarding simple possession was required on a possession of PCP for sale charge, where there was enough PCP "to dip thousands of PCP cigarettes" and the prosecution expert testified without contradiction that the PCP was possessed for sale; explaining, "It is clear that, if guilty at all, appellant was guilty of possession for sale."].)
DISPOSITION
The judgment is affirmed.
HALLER, J. WE CONCUR: NARES, Acting P. J. AARON, J.