Brief Bank # B-802 (Re: 12.01b [Possession For Sale: Requirement That Defendant Personally Intend To Sell In Joint Access Cases].)
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOR THE SIXTH APPELLATE DISTRICT
THE PEOPLE OF THE STATE OF CALIFORNIA,
Plaintiff and Appellee,
Defendant and Appellant.
APPEAL FROM THE JUDGMENT OF THE SUPERIOR COURT
OF THE STATE OF CALIFORNIA FOR THE
COUNTY OF SANTA CLARA
The Honorable Rene Navarro, Judge
APPELLANT’S OPENING BRIEF
Attorney at Law
State Bar No. 88665
P.O. Box 1515
Woodland, California 95776
In Association with the
Sixth District Appellate Program
100 N. Winchester, Suite 310
Santa Clara, California 95050
Independent Case Program
Attorneys for Appellant
APPELLANT’S OPENING BRIEF
STATEMENT OF APPEALABILITY
This is an appeal from a final judgment of conviction, imposed after a jury verdict, which finally disposes of the issues between the parties and is authorized by Penal Code section 1237.
STATEMENT OF THE CASE
John Doe was charged with misdemeanor violations of Health and Safety Code section 11150, subdivision (a) (being under the influence of a controlled substance) and Penal Code section 148.9 (giving a false name to the police) and a violation of Health and Safety Code section 11377, subdivision (a), possession of methamphetamine for sale. It was also alleged that Mr. Doe had suffered two prior “strikes” within the meaning of Penal Code sections 667(b) through 667(i) and 1170.12, two burglaries of inhabited dwelling houses, for which he was convicted in 1989. Finally, it was alleged that he had served prior prison terms within the meaning of Penal Code section 667.5, subdivision (b) following convictions for taking a motor vehicle without consent and possession of phencyclidine for sale. (CT 71-75.)
At his arraignment, Doe entered not guilty pleas and denied the enhancements. (CT 80.)
Trial began on July 21, 1998, before the Honorable Rene Navarro. (CT 148.) On the second day of trial, Doe admitted the prison priors and requested that the trial on the strike allegations be bifurcated, a request which the court denied. (CT 152.) The court also ruled that the prosecutor could admit Doe’s testimony at the preliminary hearing into evidence, (CT 153.)
The presentation of evidence began on July 27 and continued through July 29, when the case was also argued and given to the jury. (CT 171.)
The jury asked to hear testimony about where the wallet containing the drugs had been found and about how the drugs were packaged and asked for further instruction on the intent to sell. (CT 171, 244, 245, 255.)
On July 30, the jury returned its verdicts, finding Doe guilty as charged and finding the allegations of the prior convictions to be true. (CT 255.)
On October 30, 1998, the court denied Doe’s Romero motion but did strike his prison priors. It then sentenced him to a term of 25-years-to-life on the possession for sale charge. ( CT 498.)
A timely notice of appeal was filed on October 30, 1998. (CT 500.)
STATEMENT OF FACTS
A. Prosecution Case
San Jose police officer William Neumann was on routine patrol on the evening of August 1, 1997, in an area of the city known for narcotics activity. (RT 55, 56.) As he drove east on St. James Street, he looked down the alley between 9th and 10th Streets bounded by St. James and Julian Streets and noticed a group of four or five Hispanic males about a quarter of a mile from St. James Street. (RT 68, 103.) The members of this group began to go their separate ways when Neumann turned his patrol car into the alley. (RT 69, 70.)
As Doe and another man walked away from the patrol car, Neumann noticed a small dark object fall. (RT 117.) Although he could not say what hand Doe had used, Neumann was sure it was Doe who had dropped the object. (RT 127.) It also appeared to him that Doe was hiding something in his jacket. (RT 71.) He got out of his patrol car and said something like “can I talk to you guys.” (RT 71, 117.) Neumann then noticed that the “something” Doe had was a half-full Budweiser bottle. (RT 72, 108.)
Neumann observed that Doe appeared to be staggering somewhat, spoke somewhat indistinctly, and had the odor of alcohol on his person. He decided to arrest Doe for being drunk in public. (RT 72, 73.)
Doe said he had not have any identification but said that his name was John Barella and his date of birth was March 3, 1968. (RT 75.)
Neumann walked back to the spot where he had seen Doe drop something and found a black leather wallet containing two plastic bindles and three baggies of a white powdery substance. (RT 81.) At least one of the baggies had “20” written on it which Neumann recognized as a typical amount for a street sale of drugs. (RT 82.)
The wallet also contained a California Identification Card in the name of John Varela Doe with a date of birth of August 2, 1968, and a picture which looked like the person Neumann had just arrested. (RT 83.) A warrant check in this name yielded an outstanding parole warrant. (RT 84.)
When shown the wallet, Doe said it looked like the one he had lost five days earlier. (RT 95.)
During the booking process at the police station, Neumann noticed that Doe also appeared to be under the influence of a stimulant, something he had failed to observe in the alley. (RT 91, 109.) Those signs included dilated pupils which did not react to light and a rapid pulse. (RT 91.)
The white powder taken from the wallet contained methamphetamine. (RT 149.)
Blood drawn from Doe at the police station tested positive for methamphetamine and showed a blood alcohol level of .093. (RT 160, 177.)
Doe’s booking fingerprints matched those on the records relating to the 1989 burglary convictions. (RT 240.)
The prosecution also introduced Doe’s testimony from the preliminary hearing, in which he explained that he had last used methamphetamine at 2:00 a.m. on August 1 and that he had started drinking only an hour to an hour and a half before he was arrested. (RT 193, 196.) Although he was not feeling the effects of either of these substances, he was feeling “stoned” from smoking two joints of marijuana with Ron Roe. (RT 198.)
When Neumann first asked his name, Doe said “John Varela Doe.” Neumann refused to accept this, saying “that ain’t you.” Doe persisted: this was him. Neumann persisted: this was not him. (RT 187.) After three or four such exchanges, Doe told Neumann that if he asked one more time, he would give a different name. Thus, when Neumann accepted the challenge, Doe said he was John Barella. (RT 188.) The same thing happened with the birthdate, Neumann refusing to accept Doe’s true date of birth until frustrated, he provided March 3. (RT 188.)
Doe said he had not had a beer bottle, though he had been drinking cans of Budweiser before going into the alley. (RT 189, 193.) He also said that Neumann took some four dollars in change from Doe’s pocket and gave it, along with Doe’s marijuana, to Ron Roe. (RT 190, 191.)
He said that he last saw his identification card two to three years before the encounter and that when Neumann showed him the card, from a distance, he said it could not be him. (RT 192, 195.)
B. Defense Case
Ms. C had planned to go with Doe, her then-boyfriend, to the Santa Clara County Fair on August 1. When she dropped by his mother’s house, she plucked his ID card from his dresser and tucked it into her coin purse “just to look at.” (RT 258, 266, 274.)
She found Doe near her aunt M’s house, at Ninth and Julian. (RT 261.) Doe and some others were drinking in the alley which opens onto St. James and Julian and runs between Eighth and Ninth, part of which connects with M’s driveway. (RT 262, 318.) Ms. C told Doe she would catch up with him later.
When she and her cousin returned an hour and a half later, she could see that Doe was drunk, something which upset her. (RT 267, 295.) She argued with him and finally threw her coin purse at him in anger. (RT 266.) She had planned to put all the things that were his–his ID card, a picture of his son, some keys–into the coin pursue before she threw it, but in her drug-intoxicated state, she failed to remove the methamphetamine she had tucked in there and some phone numbers of other “drug fiends.” (RT 302.) She explained that she sold the drug to support her own methamphetamine habit and that she kept in small quantities to sell or to use herself. (RT 278.)
Her memory of the number of packages, how they were sealed, the phone numbers in the wallet, even of the structure of the coin purse itself was somewhat clouded by the fact that she had been using methamphetamine that day. (RT 279, 281, 293.)
She acknowledged using someone else’s identification to visit Doe at the jail and refusing to talk to a district attorney investigator until after she had seen Doe. (RT 281.)
Ron Roe met Doe on the bus on August 1 and joined him for some beers at the house of one of Doe’s friends. (RT 246, 248.) They moved into the alley where Doe had several conversations with some women who drove by several times. (RT 249.) Neumann found some marijuana when he patted Roe down, but threw it away after asking Doe what he wanted done with it. (RT 251.)
CALJIC NO. 12.01 PERMITTED THE JURY TO CONVICT DOE WITHOUT REACHING THE QUESTIONS OF HIS KNOWLEDGE AND INTENT
In defining the crime of possession of methamphetamine with the intent to sell, in violation of Health and Safety Code section 11377, subdivision (a), the court instructed the jury in the language of CALJIC 12.01:
“Every person who possesses for sale methamphetamine, a controlled substance, is guilty of a violation of Health and Safety Cod section 11378 [sic], a crime.
“There are two types of possession, actual possession and constructive possession.
“Actual possession requires that a person knowingly exercise direct physical control over a thing. Constructive possession does not require actual possession, but does require that a person knowingly exercise control over or the right to control a thing, either directly or through another person or persons.
“One person may have possession alone or two or more persons together may share actual or constructive possession. Sale means any exchange of methamphetamine for case, favor, services, goods, or other non-cash benefit.
“In order to prove this crime, each of the following elements must be proved, one:
“A person exercised control over or the right to control an amount of methamphetamine, a controlled substance.
“Two, that person knew of its presence.
“Three, that person knew of its nature as a controlled substance;
“Four, the substance was in an amount sufficient to be used for sale or consumption as a controlled substance.
“And five: That person possessed the controlled substance with the specific intent to sell the same.” (RT 371-372; CT 207.)
During deliberations, the jury requested clarification and definition of the intent to sell. (CT 244, 255.) Without determining what the jury wanted clarified about the intent to sell, the court simply reread CALJIC Nos. 12.01 and 3.31. (CT 255.)
This instruction was not responsive to the issues raised by the evidence. Defense witness Ms. C told the jury that the methamphetamine was hers, that she was a drug user who sold and used the small amounts in the coin purse, that Doe (also clearly a drug user) was her boyfriend, and that she threw the methamphetamine-filled coin purse at him in the alley.
Given this background, the jury could rely on CALJIC No. 12.01 to find that Ms. C was the “person” defined in the numbered paragraphs of the instruction who possessed the methamphetamine with the intent to sell it, that Doe shared possession with Ms C (after all, she threw him the drugs in the alley), and therefore find him guilty without finding that Doe knew of Ms. C’s intent to sell, or had the specific intent that he or Ms. C sell the drugs.
In In re Christopher B. (1990) 219 Cal.App.3d 455, 466-467, Division One of the Court of Appeal for the Fourth Appellate District observed that the “specific intent to sell” element of the crime of possessing rock cocaine for sale could not be satisfied by the minor’s awareness that the drugs were to be sold but only by evidence that the defendant himself possessed the intent.
On the other hand, Divisions Two and Three of the same court have held that the specific intent requirement for Health and Safety Code section 11351 can be satisfied by proof that “the drugs are possessed with the specific intent that they be sold, regardless of whether the possessor intends to sell them personally.” (People v. Conseguera (1994) 26 Cal.App.4th 1726, 1731-1732; People v. Parra (1999) 70 Cal.App.4th 222, 226-227.) Thus under the Conseguera-Parra formulation, it is enough if the defendant have the specific intent that the drugs be sold by someone.
It is not necessary to resolve the question of the correct interpretation in the instant case, however, for under either formulation, the jury instruction was inadequate. As noted above, if the jury found that Ms. C was the “person,” who had the intent to sell, it was not otherwise required by the instruction that it find Doe had the intent to sell the drugs personally or the intent that they be sold.
An analogy can be made to the situation of an aider and abettor, whose criminal liability is linked to that of another person. Thus, the California Supreme Court has held that a proper instruction on aiding and abetting must inform the jury that not only did the aider and abettor intend to aid another in the crime but also must act with “knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of the offense.” (People v. Beeman (1984) 35 Cal.3d 547, 560.)
This principle has also been recognized by the United States Court of Appeals for the Ninth Circuit. In Roy v. Gomez (9th Cir. 1996) 81 F.3d 863 (en banc), overruled on other grounds in California v. Roy (1996) 117 S.Ct. 337, Roy was convicted of robbery and murder, with the verdicts reflecting the jury’s determination that he was guilty of felony murder during the course of aiding and abetting a robbery committed by his crime partner. The Court found that the instruction on aiding and abetting violated Beeman in that it failed to instruct the jury that an aider and abettor must not only render “knowing aid” but must also intend to encourage or facilitate the offense committed by the co-perpetrator. This error, it found, violated the defendant’s Sixth Amendment right to a jury determination of every element of the charged offense and Fourteenth Amendment right to due process. (Roy v. Gomez, supra, at p. 865, 867; see also Martinez v. Borg (9th Cir. 1991) 937 F.2d 422, 423.)
The problem could have been rectified if the instruction contained what is called in other jurisdictions “an application clause.” This is illustrated by Plata v. State (1996) 926 S.W.2d 300, overruled on other grounds in Malik v. State (1997) 953 S.W.2d 234, a case from the Texas Court of Criminal Appeals. In Plata, the defendant provided a car to his co-defendant, who then robbed an armored car. The jury was instructed that it could find both defendants guilty if they actually took the money. The court then described in general terms that a person would be criminally responsible for the acts of another if he aided the commission of that offense.
The Texas Court of Appeal reversed the resulting conviction, reasoning that:
“The State may not support a jury verdict of guilty upon the theory that an accused was criminally responsible for an offense committed by the conduct of another person unless the court’s charge specifically and adequately authorizes the jury to convict the accused upon that theory. As in other contexts, a charge is adequate for this purpose only if it either contains an application paragraph specifying all of the conditions to be met before a conviction under such theory is authorized, or contains an application paragraph authorizing a conviction under conditions specified by other paragraphs of the jury charge to which the application charge necessarily and unambiguously refers . . . .” (Id., at p. 304; see also State v. Correa (1985) 706 P.2d 1321, 1323-1324 [court must instruct the jury as to what specific facts it must find in order for it to find the defendant guilty of a particular count].)
The instructions given here similarly failed to make clear to the jury that if it believed that Ms. C was the seller, it could convict Doe only if it found that he had knowledge of her activities and also had the specific intent to sell the methamphetamine. As in Plata, Beeman, and Roy, the jury thus was not adequately instructed on the elements of the offense and this omission violated Doe’ Sixth and Fourteenth Amendment rights.
But there is more. When the jury asked for “clarification” of the intent to sell, the court simply provided the same instruction it had given before. This was error in its own right and compounded the error in CALJIC No. 12.01.
A trial court has a duty, based in statute and in the Constitution, to provide guidance and reinstruction to a jury which has asked for clarification of the legal principles they have been asked to apply. (People v. Beardslee (1991) 53 Cal.3d 68, 97; People v. Vela (1985) 172 Cal.App.3d 237, 241 [the sua sponte duty to instruct on all relevant principles of law, which flows from a defendant’s right to jury trial on all the issues, carries a concomitant duty to reinstruct when the jury is or may be confused on the law]; Pen. Code, sec. 1138.) While it is not always necessary for the court to elaborate on the standard instructions when the original instructions are full and complete (People v. Hill (1992) 3 Cal.App.4th 16, 25), where a difficult issue, such as intent, is the subject of the jury’s inquiries, the trial court should carefully inform the jury of the law “and not allow the troubled jury to rely on a layman’s interpretation of a superficially simply but actually complex [subject].” (United States v. Bolden (D.C. Cir. 1975) 514 F.2d 1301, 1309.)
“A jury’s request for reinstruction or clarification should alert the trial judge that the jury has focused on what it believes are the crucial issues in the case.” (People v. Thompkins (1987) 195 Cal.App.3d 244, 250.)
In such a case, the court’s duty to instruct on the issues is not always satisfied by the reading of standard instructions. (People v. Reynolds (1988) 205 Cal.App.3d 776, 778, overruled on other grounds by People v. Flood (1998) 18 Cal.4th 470.)
When the jury asked about intent to sell, the judge made no attempt to discover what confused area needed clarification, but instead gave the instruction it originally gave, one which permitted the jury to find Doe guilty without finding that he had the specific intent to sell the drug or knowledge that such sales were intended.
In Neder v. United States (1999) U.S. [1999 WL 373186, pp. 6-7], the United States Supreme Court has held that jury instructions which omit an element are subject to review under the familiar harmless error standard, a standard which requires the respondent to demonstrate that the error was harmless beyond a reasonable doubt. This he cannot do.
Doe was under the combined influence of methamphetamine, alcohol, and, by his own admission, marijuana when Neumann spotted him in the alley. Although Neumann clearly suspected the group was dealing drugs, he saw nothing–no exchange of money or objects–to support his hunch. Moreover, Doe’ companion, Ron Roe, had marijuana, not methamphetamine in his pocket.
There were of course the drugs, packaged for sale, in the opinion of three-time-expert-witness Neumann. And there was the fact that it was Doe’ identification and Doe’s son in the wallet. On the other hand, there was no showing that Doe’s fingerprints were on the packages in his wallet or that he had any records or even any substantial amount of cash on his when arrested.
Accordingly, the court’s error in failing to tell the jury that it must apply the abstract CALJIC instruct to Doe and in failing to ascertain the nature of the jury’s confusion was constitutional error, error which is not harmless beyond a reasonable doubt. Doe’s conviction on count one must therefore be reversed.
Because the jury was misinstructed on a crucial point and because counsel’s failure to research the consequences of Doe’ preliminary testimony led to the court’s refusal to bifurcate the trial on the priors, his convictions must be reversed. Further, because his sentence violates the Eighth Amendment, the case must be remanded for resentencing.
Dated: June 23, 1999.
Attorney at Law
State Bar No. 88665
P.O. Box 1515
Woodland, California 95776
Attorney for John Doe
Appointed Pursuant to the SDAP Independent Case Program
Footnote 1: This was 19-year-old Ron Roe, whom Neumann let go even after finding some marijuana on his person. (RT 105.)