Opinion Bank # O-105
NOTE: The text of the footnotes appear at the end of each document.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
Plaintiff and Respondent, (Super. Ct. No. 42416)
DANNY LEERAY CARDWELL, OPINION
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Kern County, Robert T. Baca, Judge.
Jim Fahey, under appointment by the Court of Appeal, for Defendant and Appellant.
Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Robert R. Anderson, Assistant Attorney General, Margaret Garnand Venturi and Mary Jane Hamilton, Deputy Attorneys General, for Plaintiff and Respondent.
After a jury trial, appellant was found guilty of possession of cocaine for sale in violation of Health and Safety
THE TRIAL COURT DID NOT COMMIT REVERSIBLE ERROR IN REFUSING TO GIVE A DEFENSE INSTRUCTION STATING THAT MERE POSSESSION OF NARCOTICS WOULD NOT JUSTIFY A FORFEITURE.
Appellant contends that his proposed instruction A was a correct statement of the law going to the heart of his defense at trial. [Footnote 1] Appellant contended at trial that police officers overcharged him with possession for sale rather than mere possession so that they could confiscate his truck which was worth $30,000 and subject it to forfeiture proceedings. This he argued affected the officers’ motive or bias in testifying at trial that they believed the evidence seized from appellant was consistent with possession for sale rather than mere possession.
Appellant elicited testimony from the officers that his vehicle and the cash seized from it were subjected to forfeiture proceedings. He himself testified that Detective Bailey told him at the police station that he no longer owned his truck and that it would now belong to Bailey. There was also testimony that 75 percent of all proceeds from forfeiture proceedings went to support the efforts of local police agencies to combat the sale of illegal narcotics.
Appellant’s proposed instruction is a correct statement of law. Mere possession of cocaine does not support a forfeiture of a vehicle or money unless that possession is coupled with an intent to sell the illegal narcotic. (Health & Saf. Code, § 11470.)
Appellant’s theory in the underlying trial was that he was guilty only of possession and the police overcharged him with possession for sale rather than simple possession because through forfeiture they wanted to use his vehicle to financially support their anti-narcotic activities. To further corroborate this contention, appellant elicited testimony from Detective Bailey that a charge of simple possession will not support a successful forfeiture proceeding. Thus, there was testimony at trial from both appellant and prosecution witnesses in support of his theory of police bias against him to the extent officers concluded that his possession was not for personal use but for sale.
Appellant attempted to account for the large amount of cocaine in his possession. In this respect, he elicited testimony from the criminologist that his large size could account for claimed usage of three and one-half to five grams a day.
In a criminal case, the trial judge must instruct on the general principles of law relevant to the issues raised by the evidence. (People v. Stewart (1976) 16 Cal.3d 133, 140.) “The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jury’s understanding of the case. [Citations.]” (People v. St. Martin (1970) 1 Cal.3d 524, 531.) What should be pinpointed in a defense instruction is not particularized evidence, but the defendant’s theory of a case. (People v. Lucero (1988) 44 Cal.3d 1006, 1020-1021.)
The People incorrectly assert in their responsive brief that appellant’s proposed instruction was argumentative. [Footnote 2] The instruction in the instant case was not argumentative. It did not construe or color the facts of the case. It was a simple statement of forfeiture law relevant to issues raised by appellant as part of his defense. The instruction may not have been complete because it was a one-sided statement of forfeiture law. It only focused on simple possession and not on the consequences of possession for sale. Even so, the trial court has an affirmative duty to both instruct the jury sua sponte on an issue raised by the case and, in the event that an incomplete instruction is proposed by defendant, to instruct the jury on the defendant’s theory of the case with a more complete or better instruction. If a proposed defense instruction is somehow deficient, the trial court has a duty, sua sponte, to correct and give the instruction. (People v. Stewart, supra, 16 Cal.3d 133, 140; People v. Cole (1988) 202 Cal.App.3d 1439, 1446.)
The People further contend that appellant cannot show prejudice in the instant case. The California Supreme Court has found that issues involving state law are measured under the Watson standard of review. (People v. Brown (1988) 46 Cal.3d 432, 446-449 (questioned on other grounds in People v. Mickey (1991) 54 Cal.3d 612, 684, fn. 15); People v. Garcia (1984) 36 Cal.3d 539, 551, fn. 7 (questioned on other grounds in People v. Brunyard (1988) 45 Cal.3d 1189, 1227, fn. 26).)
Following the lead of the United States Supreme Court in Rose v. Clark (1986) 478 U.S. 570, 576-577, the California Supreme Court applies a Chapman standard of review for federal constitutional errors and a Watson standard of review for errors involving state law, especially statutory law. (People v. Gordon (1990) 50 Cal.3d 1223, 1267.)
The jury was instructed with CALJIC No. 17.10, the instruction for conviction of lesser included or lesser related offenses. The jury was also instructed with CALJIC No. 12.00, the controlled substance illegal possession instruction. Further, the jury was extensively instructed on the necessity of a concurrence of general criminal intent with the acts charged before it could convict him of possession of cocaine and concurrence of act and specific intent for conviction of possession with intent to sell. (See CALJIC Nos. 3.30 & 3.31.) The jury was also instructed with CALJIC No. 12.01, carefully defining possession or purchase of a controlled substance for the purposes of sale. The jury was instructed with CALJIC No. 2.20, concerning witness credibility. It was further instructed with CALJIC No. 2.80, the expert witness instruction.
The primary legal theory underpinning appellant’s case is that he did not possess cocaine for sale but that he had an incredibly strong habit. Collateral to this issue was his attempt to prove bias on the part of police officers to testify that he possessed cocaine not to support a large habit because he was a large man but to testify that he possessed for sale because they wanted to sell his truck to support anti-narcotic activities in their jurisdiction. It was error for the trial error not to give the requested instruction or a modified version of the requested instruction.
Under the facts of this case, however, the error was necessarily harmless because appellant’s legal theory was covered by other correctly given legal instructions. Appellant did not fail to receive-proper instructions on his legal theory of the case; he failed to receive complete instructions on his theory of police bias. There was substantial evidence that appellant had more cocaine than he would need for personal use, that he had scales and cutting agents, that he had baggies, a weapon, and large sums of cash.
At the heart of this issue is appellant’s contention that police officers had an improper bias to arrest him and charge him with an offense that would permit them to take his truck through forfeiture proceedings. Police bias in this case would not have tainted the evidence actually found in appellant’s possession at the time of his arrest. Instead, it would have affected the veracity of police expert testimony that the items found in appellant’s possession prove that he possessed illegal narcotics not for personal use but for sale. Appellant’s defense was that he held these items (including the cocaine) for personal use. He needed the large quantity of cocaine for his large habit and his one-week trip. He further attempted to explain away all the other evidence seized by officers as related to his personal habit.
We see appellant’s request for a forfeiture instruction as one actually relating to the credibility and bias of officer testimony. Officer motivation to stretch expert testimony at trial to cause a forfeiture of the truck is a sub-issue of bias. Bias and credibility were issues covered by CALJIC No. 2.20. The weight to accord expert testimony was covered by CALJIC No. 2.80. Under other properly given instructions, the jury was fully instructed on the issue of bias.
Furthermore, as discussed above, any error by the trial court is reversible only if it is reasonably probable that a result more favorable to the defendant would have been reached in the absence of the error. (People v. Brown, supra, 46 Cal.3d 446, 449; People v. Pringle (1986) 177 Cal.App.3d 785, 790.) This ground for appeal is rejected.
Appellant’s conviction on count III (Pen. Code, § 12025, subd. (a)) is reversed. The sentence imposed on count IV (Pen. Code, § 12031, subd. (a)) is modified to remove the stay thereof pursuant to Penal Code section 654 and further to make the term concurrent to that imposed on count I. In all other respects, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment and forward copies to all appropriate authorities.
Best, P. J.
Instruction A read: “Simple possession of cocaine does not support a forfeiture of a vehicle or money.”
Argumentative instructions should not be given. (People v.Wright (1988) 45 Cal.3d 1126, 1135.)