Opinion
C041663.
11-24-2003
THE PEOPLE, Plaintiff and Respondent, v. ROBERT RIVERA, Defendant and Appellant.
A jury convicted defendant Robert Rivera of possession of a sharp instrument by an inmate, and he admitted an enhancement for a prior prison term. The trial court sentenced him to state prison for an aggregate term of four years, with a lesser concurrent sentence in another case.
On appeal, defendant claims: (1) the evidence is insufficient; (2) the trial court erred by not giving the jury additional instruction relating to the requisite mental state; and (3) the court erred in giving CALJIC No. 2.62. Defendant also claims cumulative error requires reversal. Having determined that he has not shown any prejudicial error, we shall affirm the judgment.
FACTS
Defendant was a prison inmate in Lassen County. Shortly before 7:00 a.m. on September 25, 2000, he and seven other inmates entered the dining hall for breakfast. Defendant did not remove the jacket he was wearing even though it was not particularly cold inside and it was unusual for inmates to wear jackets during meals. In fact, he was the only one wearing a jacket at the table. This caught the attention of Kenneth Jordan, a correctional officer.
Jordan noticed defendant pull on the jacket. For example, defendant pulled on the right lapel or partway down the jacket and then pulled on the left upper lapel. Defendant later grabbed the jacket on the right side and apparently tried to straighten it out. When asked at trial if he saw defendant pull at or adjust his left sleeve, Jordan responded: "Well, he was doing so many movements, I couldnt remember them all, . . ." But Jordan said he thought defendant pulled at the right sleeve. Jordan signaled another correctional officer, Max Brewer, to search defendant when the inmates left.
Officer Brewer conducted a patdown search. When Brewer ran his hands down defendants left sleeve, he felt an object between the elbow and shoulder. The object was apparently underneath the outer lining of the jacket, and Brewer discovered that it was a sharp instrument. It is described in the trial record as a five- to six-inch cylindrical metal object, and the probation report indicates it was approximately 5/16 of an inch in diameter. Defendant said he did not know it was there. During a subsequent investigation by prison authorities and at a prison disciplinary hearing, defendant contested whether it was a weapon.
At trial, Officer Brewer explained that jackets were issued to inmates periodically as needed, they were not assigned to particular inmates, and new jackets were sometimes delivered by inmates. If an inmate returned a jacket for cleaning, a different one might be provided.
Defendant testified that he had been scheduled to be released the day after the incident. He and his cellmate had received two jackets two to three weeks earlier. The jackets were delivered by other inmates, and defendant had worn one of them twice before. He and his cellmate kept both jackets together. Defendant did not notice anything unusual and did not feel the object in his sleeve the day he was searched. Defendant said he was not the only one of the inmates who wore a jacket that day.
Defendant claimed he wore the jacket during breakfast because it was cold. When asked if he was "fidgeting" with his jacket for any reason, he responded: "Probably pulled on my sleeves to eat my breakfast." Defendant claimed he had never seen the sharp object before the officer removed it from the jacket.
DISCUSSION
I
Sufficiency of the Evidence
Defendant challenges the sufficiency of the evidence. In reviewing claims of insufficient evidence, we "must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Johnson (1980) 26 Cal.3d 557, 578.) We "presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." (People v. Lewis (1990) 50 Cal.3d 262, 277.)
In a footnote, the People assert that this court need not consider defendants claim because he did not object under Penal Code section 1118.1 at trial. The People claim there is a split of authority on this point in light of People v. Smith (1998) 64 Cal.App.4th 1458 and People v. Neal (1993) 19 Cal.App.4th 1114. But Smith held only that waiver applied to a claim that the evidence was insufficient at the close of the prosecutions case-in-chief (before presentation of the defense); thus, the court considered defendants sufficiency of the evidence argument in the context of the entire record. (See Smith, supra, 64 Cal.App.4th at pp. 1461, 1464, 1469.) And, as the court in Neal noted in passing, general challenges to the sufficiency of the evidence are not ordinarily waived. (See Neal, supra, 19 Cal.App.4th at p. 1122; see also Pen. Code, § 1259.)
Penal Code section 4502, subdivision (a) provides, in pertinent part, that it is a felony if a prison inmate "possesses or carries upon his or her person or has under his or her custody or control . . . any dirk or dagger or sharp instrument, . . ." "To show a violation of this statute, the prosecution must prove the defendant was confined in a state prison and that he had knowledge of the prohibited object in his possession." (People v. Strunk (1995) 31 Cal.App.4th 265, 272.)
Defendant only challenges the sufficiency of the evidence he knew the object was in his sleeve. While acknowledging he pulled at the jacket, defendant suggests "a reasonable and innocent explanation" is "that it was not his jacket and it was uncomfortable, and perhaps uncomfortable because the object [was] hidden in the sleeve, albeit unknown to [defendant]." Defendant also asserts that most of his movements were not particularly directed at the left side and sleeve of the jacket.
Viewed in the light most favorable to the prosecution, there is ample circumstantial evidence to show defendant knew the sharp object was there. Officer Jordan noted that defendant was making "so many movements," and Jordan described defendant pulling at and apparently adjusting the jacket in different ways. Moreover, this conduct must be considered along with the attendant circumstances. According to Jordan, it was common for inmates to remove jackets at meals, the dining hall was not particularly cold, and none of the other seven inmates at breakfast with defendant were wearing a jacket. Further, the sharp object was not inconspicuous; it was easily felt by the officer who performed the patdown search. Defendant had been wearing the jacket for some time before the search, and common sense compels us to point out that the sleeve is an unlikely place for an item to be hidden unnoticed to the wearer for a substantial time. Finally, the jury had the opportunity to observe and hear defendants explanations and to weigh his testimony with that of the other witnesses. (See generally People v. Jackson (1992) 10 Cal.App.4th 13, 20.)
II
Adequacy of Jury Instructions Concerning Mental State
Defendant claims the trial court erred by not giving the jury additional instruction relating to the requisite mental state. Although defendant has not shown he requested such instruction, he points out that the trial court has a sua sponte obligation to ensure the jury is adequately instructed on the governing law so that it can properly deliberate and render its verdict. (See, e.g., People v. Reynolds (1988) 205 Cal.App.3d 776, 779, overruled on other grounds in People v. Flood (1998) 18 Cal.4th 470, 484, 490, fn. 12.) He also alleges this instructional error violates his right to due process, including his right to a fair trial, to present a defense, and to have the jury determine each element of the charge. But, as we shall explain, the jury instructions were adequate to guide the jurys deliberations here.
Preliminarily, defendant recognizes that the jury received some relevant instructions. The jury was given a modified version of CALJIC No. 7.38, concerning the elements of the offense. As read to the jury, the instruction provided in pertinent part: "In order to prove this crime, each of the following elements must be proved: [¶] A person was confined in or being conveyed to or from a penal institution or under the custody of a penal officer or employee of a penal institution. [¶] Second, while confined or being conveyed while in custody possessed or carried on his person or under his custody or control a sharp instrument. [¶] And third, that while in his possession of the instrument, the defendant knew of [its] nature and that it was a sharp instrument."
With respect to the latter point, we note that the modified instruction included in the record contains a handwritten notation describing the third element as "the defendant knew of its nature i.e. that it was a sharp instrument."
Further, the trial court explained: "Now, there are two kinds of possession, actual possession and constructive possession. Actual possession requires a person knowingly exercise direct physical control over a thing. [¶] Constructive possession does not require actual possession, but does require that a person knowingly exercised control or the right to control over a thing, either directly or through another person or persons. [¶] One person may have possession alone or two or more persons together may share constructive or actual possession." (CALJIC No. 1.24.)
A
Adequacy of Instructions on Knowledge
First, defendant complains that the trial court did not specifically instruct the jury that to find him guilty, "it must find that [he] knew of the presence of the prohibited object." Defendant also suggests the jury should have received further instruction such as general criminal intent (CALJIC No. 3.30), mental state (CALJIC No. 3.31.5), and the definition of "knowingly" (CALJIC No. 1.21). We are not persuaded that the failure to give additional instructions resulted in any prejudicial error.
CALJIC No. 1.24 expressly provided that it was necessary to find that defendant "knowingly" exercised control over, or the right to control, the sharp instrument. And though defendant suggests this brief reference was inadequate to guide the jurys deliberations, the issue was also framed by the parties trial testimony and closing argument. In fact, both the prosecutor and defense counsel asserted that the jury had to determine whether defendant knew the object was on his person. Whether this element had been proved was the main point of dispute, and the jury instructions must be considered in this context. (See People v. Dieguez (2001) 89 Cal.App.4th 266, 276 [entire record, including arguments of counsel, is taken into account in evaluating claim of instructional error].)
Moreover, the jury was also told they had to find defendant "knew" of the objects "nature and that it was a sharp instrument." The jury could not have made the requisite findings if it believed defendants claim that he was unaware of the object until the officer found it.
Defendant notes that the offense includes possession or carrying of a sharp instrument, and he suggests the jury might not have considered the issue of mental state (relating in the instructions to possession) if it found defendant carried the object. For essentially the same reasons discussed above, the jury could not have construed the instructions in this counterintuitive manner. We emphasize that the instructions also included the additional requirement, noted above, that defendant know of the objects nature as a sharp instrument, which was dependent on his knowing about the object.
B
Character of the Object
In a related argument, defendant suggests that knowledge of the character of the contraband should be an element of the offense in the same way it is in other cases, such as those involving drugs. Defendants argument is perplexing because, even assuming it is correct, the jury was told a necessary element was that defendant had to be aware of the objects "nature and that it was a sharp instrument." Accordingly, the jury instructions comported with defendants view of the elements of the offense.
C
Circumstantial Evidence
Finally, defendant complains that the jury was given a general instruction concerning circumstantial evidence (CALJIC No. 2.01) rather than an instruction specifically referring to circumstantial evidence of a mental state (CALJIC No. 2.02).
CALJIC No. 2.02 is intended to be used instead of CALJIC No. 2.01 when a defendants specific intent or mental state is the only element of a charge that rests substantially or entirely on proof by circumstantial evidence. (People v. Honig (1996) 48 Cal.App.4th 289, 341; Use Note to CALJIC No. 2.02.) But "[a] party may not argue on appeal that an instruction correct in law was too general or incomplete, and thus needed clarification, without first requesting such clarification at trial." (People v. Hillhouse (2002) 27 Cal.4th 469, 503.) Further, the fact that the more inclusive instruction under CALJIC No. 2.01 was given is itself grounds for finding any error not to be prejudicial. (See People v. Rodrigues (1994) 8 Cal.4th 1060, 1142; People v. Bloyd (1987) 43 Cal.3d 333, 352.)
III
CALJIC No. 2.62
Defendant claims the trial court erred by giving CALJIC No. 2.62, which applies if the jury finds he failed to explain or deny evidence against him. Again, he has not shown he objected to the instruction. Under the circumstances, reversal is not warranted unless the error affected defendants substantial rights, resulting in a miscarriage of justice. (See People v. Elsey (2000) 81 Cal.App.4th 948, 953-954, fn. 2; People v. Andersen (1994) 26 Cal.App.4th 1241, 1249; Pen. Code, § 1259.) That is not the case here.
As read to the jury, the instruction provided: "In this case, the defendant has testified to certain matters. If you find that a defendant failed to explain or deny evidence against him introduced by the prosecution which he can reasonably be expected to deny or explain because of the facts within his knowledge, you may take that failure into consideration as tending to indicate . . . the truth of this evidence and [a]s indicating that among the inferences that may be reasonably drawn [therefrom], those [unfavorable] to the defendant are more probable. [¶] The failure of the defendant to explain evidence against him does not by itself warrant inference of guilt nor does it relieve the prosecution of [its] burden of proving every essential element of the crime and the guilt of the defendant beyond a reasonable doubt. If a defendant does not have knowledge that he would need to deny or explain the evidence against him, it would be unreasonable to draw an inference unfavorable to him because of his failure to deny or explain this evidence."
"[I]f justified by the evidence [CALJIC No. 2.62] does not violate a defendants privilege against self-incrimination, deny him the presumption of innocence, nor violate due process. [Citation.] [¶] When a defendant testifies but fails to deny or explain inculpatory evidence or gives a `bizarre or implausible explanation, the instruction is proper. [Citations.] `[T]he applicability of CALJIC No. 2.62 is peculiarly dependent on the particular facts of the case." (People v. Sanchez (1994) 24 Cal.App.4th 1012, 1029-1030; see also Use Note to CALJIC No. 2.62.)
Here, defendant gave little explanation for why he was behaving in the manner observed by Officer Jordan. Defendant did not deny that he adjusted his jacket, but indicated it was probably related to eating and claimed he did not feel the object in his sleeve. Particularly in light of the length of time defendant was wearing the jacket and the nature and location of the object at issue, defendants explanation could reasonably be considered to be incomplete, bizarre, and/or implausible.
In any case, the instruction was not prejudicial under the circumstances. "CALJIC No. 2.62 does not direct the jury to draw an adverse inference. It applies only if the jury finds that the defendant failed to explain or deny evidence. It contains other portions favorable to the defense (suggesting when it would be unreasonable to draw the inference; and cautioning that the failure to deny or explain evidence does not create a presumption of guilt, or by itself warrant an inference of guilt, nor relieve the prosecution of the burden of proving every essential element of the crime beyond a reasonable doubt)." (People v. Ballard (1991) 1 Cal.App.4th 752, 756.) Here, the trial court further removed any potential prejudice by also instructing the jury to "[d]isregard an instruction that applies to facts determined by you not to exist" and not to conclude that because an instruction was given the court was expressing an opinion as to the facts. (CALJIC No. 17.31; cf. People v. Saddler (1979) 24 Cal.3d 671, 683-684; People v. Kondor (1988) 200 Cal.App.3d 52, 58.) Although defendant characterizes this is a close case, the jury was able to reach its verdict within one and one-half hours of commencing deliberations. (Cf. Saddler, at p. 684.)
IV
Cumulative Error
Finally, defendant claims cumulative error requires reversal. As discussed above, the jury instructions were adequate to guide the jurys deliberations and there was no prejudicial error with respect to the instructions.
DISPOSITION
The judgment is affirmed.
We concur: SCOTLAND, P.J. and HULL, J.