Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 04F10822
RAYE, Acting P. J.A jury convicted defendant Lennard Edward Vaughn of bringing marijuana into a state prison (Pen. Code, § 4573) and possession of marijuana while in prison, and also sustained six strike allegations. The court sentenced defendant to state prison for 25 years to life.
All further statutory references are to the Penal Code.
On appeal, defendant contends the jury was presented with a legally incorrect theory of guilt on bringing marijuana into prison, there is insufficient evidence to support his conviction on that charge, and it was an abuse of discretion to deny his motion to dismiss five of his six strikes. We shall affirm.
BACKGROUND
California State Prison, Sacramento, houses 3,000 to 3,500 male inmates in three separate facilities: A, B, and C. Visits are conducted in a large room with 57 tables for inmates and visitors. There is also an elevated table for the visiting room officer.
Visitors are not allowed to bring weapons or controlled substances into the prison. Before entering the visiting room, visitors must empty their pockets and go through a metal detector. Prisoners enter a separate room and undergo an unclothed full body search before entering and after leaving the visiting room.
The visiting room has vending machines from which the visitor may purchase items for the inmate. Prisoners may not use the machines, which are placed outside of a red line marking the room’s boundary for inmates.
Visitors and prisoners are allowed a brief hug and kiss at the beginning and the end of the visit. A visitor is also allowed to spend $2 to have a Polaroid photograph taken with the prisoner. The visitor and prisoner have a choice of three painted murals to use as a background for the photo.
On September 5, 2004, Officer Joseph Lewis was the visiting room officer for C facility. His attention was drawn to defendant, who was having his photograph taken with his visitor, Janice DiFatta, in front of one of the murals. Defendant had his left hand down the back of his pants, which led Officer Lewis to suspect drug smuggling.
After making eye contact with Officer Lewis, defendant wrapped both hands around DiFatta’s waist. Officer Lewis notified his partner and approached defendant. Defendant had finished with the photograph and was cupping a bag of chips in his left hand by the time Officer Lewis arrived. The officer asked defendant what was in his hand, and he replied, “Come on, man.” Officer Lewis then escorted defendant into the search room.
Defendant was searched and had nothing in either hand or in the bag of chips. He then started gagging, coughed up a blue balloon the size of a golf ball, and handed the balloon to Officer Lewis. The balloon was wrapped around another balloon containing 5.66 grams of marijuana wrapped in plastic wrap.
Defendant was interrogated after executing a Miranda waiver. Told he was suspected of possessing marijuana, defendant replied: “What can I say? They found it on me.” Defendant claimed to have found it in the dispensing tray of a vending machine and denied any involvement on DiFatta’s part. He was also not afraid of taking another prisoner’s marijuana.
The visiting room was subject to video surveillance. Although there was a problem with the time and date stamping from the cameras, a tape of the visit was verified by Officer Lewis and played to the jury. Defendant and DiFatta were seen in line waiting for their photo to be taken. The video showed DiFatta by herself numerous times, including when she was next to the vending machine.
On cross-examination, Officer Lewis admitted the line for the photographs was in front of a vending machine. When standing in line for the picture, defendant at one point went over the red boundary line.
According to a former narcotics detective, a small amount of marijuana like what defendant possessed was still very valuable inside prison. Taking another prisoner’s drugs by theft or subterfuge would likely result in an attack on the prisoner who took them. A visitor can bring drugs into prison on visiting day and transfer them to a prisoner in various ways, such as by kissing or by placing a balloon containing the drug in a bag of chips and having the prisoner swallow it.
DISCUSSION
I
Defense counsel’s closing argument asserted that an acquittal on the charge of bringing marijuana into prison was supported by the People’s failure to prove that defendant, who only found the drugs while he was already in prison, had smuggled the drugs into prison from the outside.
The prosecutor made the following argument in rebuttal: “When officer Lewis contacts him -- Mr. Vaughn is now, in the sequence of events we talked about, in possession of this balloon. We know balloons are not issued in prison. We know from officers’ testimony, they come from outside the prison. We also know from the officer testimonies that inmates are not allowed to have marijuana in prison. If they are not allowed to have marijuana in prison, not allowed to have balloons, Mr. Vaughn, an inmate, had to be searched before he got into the visiting area, where did this marijuana come from that he is found eventually coughing up? The balloon had to come from outside. The marijuana had to come from outside somehow. Whether from Ms. DiFatta or finding it in the tray that somebody else put there, whatever wild story Mr. Vaughn wanted to tell Investigator Gault, somehow this substance came from the outside. [¶] We don’t have to prove that Mr. [sic] DiFatta handed it to Mr. Vaughn or Inmate No. 2 handed it to him. All we have to show is, based on evidence in the record, this item came from the outside, and Mr. Vaughn brought it into prison. We know he brought it in there because it was found coming out of his mouth.”
Defense counsel objected, stating, “This is not a statement of law. This is not what the law is.” The court told the jury, “I’ve told you earlier, didn’t I, if what they say regarding the law is not what I tell you, disregard what they say; okay?”
During deliberations, the jury submitted the following question regarding the instruction on aiding and abetting: intended crimes (Judicial Council of Cal. Crim. Jury Instns. (2007-2008), CALCRIM No. 401): “On page 32 of Jury Instructions # 2 ‘The defendant knew that the perpetrator intended to commit the crime.’ In regards to the word ‘knew,’ does this mean he had prior knowledge or can ‘knew’ mean at the time of him taking possession of the item?”
After taking arguments from counsel, the court recessed, returning with the following written answer: “All of your instructions may be relevant depending upon what you determine to be the facts” and referred the jury to CALCRIM No. 252 (union of act and intent: general and specific intent together), CALCRIM No. 400 (aiding and abetting: general principles), CALCRIM No. 401 (aiding and abetting: intended crimes), and the elements of the crime of bringing marijuana into a prison. The jury returned a guilty verdict on both counts about an hour and a half later.
Defendant contends the prosecutor’s argument presented a legally invalid theory of guilt, which confused the jurors, as demonstrated by their question. We disagree.
Under Penal Code section 4573, “any person, who knowingly brings or sends into, or knowingly assists in bringing into, or sending into, any state prison” a controlled substance is guilty of a felony. Defendant claims the prosecutor’s argument incorrectly stated the law by asserting defendant committed the crime even if he only found the marijuana while it was already in the visiting room. Since the visiting room is part of the prison, defendant asserts the argument absolved the People of having to prove one of the elements of the crime, that defendant brought the marijuana into the prison or assisted in its being brought inside.
Defendant concludes this legally incorrect theory of guilt mandates reversal under People v. Guiton (1993) 4 Cal.4th 1116 (Guiton). Guiton addressed the prosecution of a defendant under more than one theory of guilt, at least one of which is inadequate. The Supreme Court held that when the erroneous theory is merely factually inadequate, reversal is not required whenever a valid ground for the verdict remains, absent an affirmative showing that the jury relied on the erroneous theory, but reversal is generally required if one of the theories of guilt is legally inadequate. (Id. at pp. 1128-1129.)
The rule that a legally insufficient theory of guilt requires reversal only applies when the court presents the legally insufficient theory to the jury. (People v. Morales (2001) 25 Cal.4th 34, 43 (Morales).) Where the legally erroneous theory only comes from the prosecutor’s argument, then “such an error would merely amount to prosecutorial misconduct [citation] during argument, rather than trial and resolution of the case on an improper legal basis.” (Ibid.) Guiton is thus inapposite as defendant’s claim involves alleged prosecutorial misconduct rather than a legally inadequate theory of guilt.
“A prosecutor’s conduct violates the Fourteenth Amendment to the federal Constitution when it infects the trial with such unfairness as to make the conviction a denial of due process. Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the trial court or the jury. Furthermore, and particularly pertinent here, when the claim focuses upon comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion.” (Morales, supra, 25 Cal.4th at p. 44.)
Assuming the prosecutor’s argument misstated the law, we do not find it reasonably likely the jury applied this theory of guilt. Defendant objected to the argument and the court informed the jury that it must disregard any legal argument from counsel that differed from what the court said. Among the jury instructions was the standard instruction that the jury is to disregard any argument from counsel that is inconsistent with the instructions. (CALCRIM No. 200.)
Whether section 4573 is violated by a defendant who is simply caught possessing a controlled substance inside of prison is a question currently pending before the California Supreme Court. (See People v. Low, review granted June 13, 2007, S151961 and People v. Gastello, review granted June 13, 2007, S153170.)
We presume the jury understood and followed the court’s instructions. (People v. Gray (2005) 37 Cal.4th 168, 231.) The jury’s question regarding aiding and abetting shows it was considering a legally correct theory of guilt, that defendant aided and abetted the transportation of the marijuana into the prison. The court’s answer was proper and evidently satisfied the jury, which shortly returned the guilty verdicts.
II
Defendant next argues there is insufficient evidence to support his conviction for bringing marijuana into the prison. He is mistaken.
On appeal, “the court 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.) Substantial evidence includes circumstantial evidence and reasonable inferences drawn therefrom. (In re James D. (1981) 116 Cal.App.3d 810, 813.)
As we have already discussed, section 4573 forbids a person from bringing a controlled substance into a prison or assisting another in importing the substance. Defendant contends there may be ample evidence he possessed the marijuana, but no evidence showing he knowingly brought the drug into prison or aided and abetted its being brought in.
A person aids and abets the commission of a crime “when he or she, acting with (1) knowledge of the unlawful purpose of the perpetrator; and (2) the intent or purpose of committing, encouraging, or facilitating the commission of the offense, (3) by act or advice aids, promotes, encourages or instigates, the commission of the crime.” (People v. Beeman (1984) 35 Cal.3d 547, 561; see People v. Croy (1985) 41 Cal.3d 1, 11.)
Although there is no direct evidence that defendant knowingly aided another in bringing the marijuana into the prison, circumstantial evidence supports such a conclusion. The balloon containing marijuana had to come into the prison from the outside. The visiting room is searched both before and after visits, strongly suggesting the marijuana was brought in by a visitor that day. Defendant appeared to be hiding contraband when he was having a photograph taken with DiFatta, his visitor, thus raising the inference that he got the contraband from her.
Although the line for photographs was in front of a vending machine and defendant crossed the boundary near it while waiting to have his picture taken, there is no evidence placing defendant at a vending machine other than his self-serving claim to have found the marijuana there. The only person who is directly placed at the vending machine is DiFatta, who could have placed the marijuana there. The jury could reject defendant’s claim in light of the danger of taking another prisoner’s drugs and the implausibility of his finding another prisoner’s drugs at a vending machine.
The jury could thus reasonably conclude that the only logical explanation for the marijuana found hidden in defendant’s mouth was that he was aiding and abetting DiFatta in bringing it into the prison.
III
Defendant’s final claim is that the denial of his motion to dismiss five of his six strikes was an abuse of discretion. We disagree.
When a trial court decides not to dismiss or strike a prior strike under section 1385, we review its decision under the abuse of discretion standard. (People v. Carmony (2004) 33 Cal.4th 367, 374-375 (Carmony).) In the context of sentencing decisions, “a trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it.” (Id. at p. 377.)
The “three strikes” law (§§ 667, subds. (b)-(i), 1170.12) “‘establishes a sentencing requirement to be applied in every case where the defendant has at least one qualifying strike, unless the sentencing court “conclud[es] that an exception to the scheme should be made because, for articulable reasons which can withstand scrutiny for abuse, this defendant should be treated as though he actually fell outside the Three Strikes scheme.”’ [Citation.]” (Carmony, supra, 33 Cal.4th at p. 377.)
Defendant has prior convictions for misdemeanor refusal to disperse when ordered (§ 409) in 1975; robbery (§ 211) with great bodily injury, attempted murder (§§ 664, 187), and residential burglary (§ 459) in 1976; forcible rape (§ 261, subd. (a)(2),), residential burglary (§ 459), forcible child molestation (§ 288, subd. (b)), and robbery (former § 213.5) in 1984; and inmate assault (§ 4501) and possession of a weapon by a prisoner (§ 4502) in 1988. He was written up in prison for failing to stand for the count in 2003 and refusing an officer’s order in 2006.
Defendant argues that in light of his age and the trivial, nonviolent nature of the offense, the trial court abused its discretion by not dismissing five of the six strikes and sentencing him to an upper term of four years, doubled to eight by the remaining strike. This disregards defendant’s lengthy history of violent crime and his repeated inability to conform to the law while in prison.
Defendant was 50 at the time of sentencing.
Although the amount of marijuana possessed by defendant would not be serious if found outside of prison, the Legislature has reasonably concluded that the possession of illegal drugs in prison, even in small amounts, is a more serious matter. Defendant, who has been continuously incarcerated since 1984 and still manages to commit felonies before his projected release, is precisely the type of career serious offender contemplated by the three strikes law. The court did not abuse its discretion in denying defendant’s motion to dismiss the strikes.
Nor did the court fail to make an informed exercise of its discretion, as defendant contends, by not specifically mentioning his request to strike all but one of the strikes. On a silent record, we presume that the trial court understood and properly exercised its discretion. (Carmony, supra, 33 Cal.4th at p. 378.) Defendant first raised this contention in his oral argument to the trial court, having asked for a dismissal of all of the strikes in his written motion. Nothing in the record supports the contention that the court did not consider this argument when it denied the motion shortly thereafter.
DISPOSITION
The judgment is affirmed.
We concur: HULL , J., BUTZ , J.