Filed 5/29/13  P. v. Sillard CA3

NOT TO BE PUBLISHED

 


 

IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE
DISTRICT

(Yolo)

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THE PEOPLE,                           Plaintiff and Respondent,               v.   ANTHONY JOSEPH SILLARD,                           Defendant and Appellant.

C070363   (Super. Ct. No. CRF11463)

            Sentenced
to 15 years and eight months in county jail for possessing both methamphetamine
and marijuana for sale, defendant Anthony Joseph Sillard appeals, contending
the trial court:  (1) violated his href="http://www.fearnotlaw.com/">constitutional rights by failing to give
a reasonable doubt instruction just before jury deliberations began; (2) erred
in failing to instruct the jury on the lesser included offense of possession of
marijuana; and (3) erroneously concluded that it had no power to suspend
execution of a portion of his sentence under the Realignment Act.

            We conclude
that while the trial court did not violate defendant’s constitutional rights by
reading the standard reasonable doubt instruction before the presentation of
evidence began instead of just before jury deliberations, the trial court did
prejudicially err in failing to instruct on simple possession of
marijuana.  Accordingly, while we affirm
defendant’s conviction of possessing methamphetamine for sale, we reverse his
conviction of possessing marijuana for sale and we remand the case to the trial
court for further proceedings.  As for
defendant’s claim of sentencing error, that issue is moot in light of the
reversal and remand, but we do note that there is no evidence the trial court
denied defendant a split sentence because it misunderstood its authority under
the Realignment Act.

FACTUAL AND
PROCEDURAL BACKGROUND

            On the
afternoon of January 26, 2011,
Yolo
County Sheriff’s Deputy Matthew Davis saw a car parked in front of a
mini-mart that caught his attention.  He
parked next to the car and approached and spoke with the woman seated in the
driver’s seat.  As he talked to that
woman, and another woman who was seated in the backseat on the passenger side
of the car, defendant and a third woman came out of the mini-mart and got in
the car.  Defendant sat in the front
passenger seat of the car, while the third woman sat in the backseat behind the
driver.  Upon learning the third woman
was on searchable probation, Deputy Davis searched the car.

            In a purse
sitting on the center console in the middle of the two front seats, the deputy
discovered a California
identification card for defendant that gave his true name, instead of the false
name he had previously given the deputy. 
In the area where defendant had been sitting, Deputy Davis found a man’s
jacket and a canvas bag.  In one of the
pockets of the jacket, he found a debit card with defendant’s name on it.  In another pocket he found a glass smoking
pipe that appeared to have methamphetamine in it.  In a small pocket on the front of the canvas
bag he found a sandwich-type plastic baggie that contained what he believed to
be marijuana.  In another pocket of the
canvas bag, he found two pieces of mail with defendant’s name on it, a can of
WD-40, a digital scale, and more than 50 small zip-top type plastic
baggies.  He found one cell phone in
defendant’s pocket and another on the seat where he had been sitting.  The deputy did not find anything in the car
that could be used to smoke marijuana. 

            Based on
what he found, Deputy Davis arrested defendant and took him to jail.  At the sheriff’s department, the deputy
discovered that the bottom of the WD-40 can could be screwed off, and inside he
found six clear plastic baggies of what appeared to be methamphetamine and an
additional baggie with three prescription-type pills. 

            The
methamphetamine found in the pipe weighed .07 grams -- a usable amount.  The six baggies of methamphetamine contained
27.92, 7.07, 6.91, 3.56, 3.43, and 1.77 grams, respectively, for a total of
50.66 grams.  The marijuana weighed 10.91
grams, which is less than half an ounce.

            Defendant
was charged with possession of methamphetamine, possession of methamphetamine
for sale, possession of marijuana for sale, and possession of drug
paraphernalia.  The information also
alleged that he had four prior drug convictions and had served four prior
prison terms.  Two of his prior
convictions were for violating Health and Safety Code section 11378 (possession
of a controlled substance for sale).

            On the
first day of trial (November 28, 2011), after the jury was sworn and opening statements
were given, the court provided the jury with a few instructions relating to the
evaluation of evidence.  Among those
instructions was the following instruction, based on CALCRIM No. 103, dealing
with the People’s burden of proof beyond a reasonable doubt:

            “I am going
to start with the presumption of innocence and the burden of proof.  Couple of things that came up during jury
selection.

            “Now, Mr.
Sillard has pleaded not guilty to the charges. 
The fact that a criminal charge has been filed against him is not
evidence that the charge is true.  And
you are not to be biased against him just because he’s been arrested, charged
with a crime, or brought to trial.

            “A
defendant in a criminal case is
presumed to be innocent and this presumption requires that the People prove
each element of a crime beyond a reasonable doubt.  And whenever I tell you the People must prove
something, I mean, they must prove it beyond a reasonable doubt.  Unless I specifically tell you otherwise.

            “Proof
beyond a reasonable doubt is proof that leaves you with an abiding conviction
that the charge is true.  The evidence
need not eliminate all possible doubt because everything in life is open to
some possible or imaginary doubt.

            “In
deciding whether the People have proven their case beyond a reasonable doubt,
you must impartially compare and consider all the evidence that is received
throughout the entire trial, and unless the evidence proves Mr. Sillard guilty
beyond a reasonable doubt, he’s entitled to an acquittal and [you] must find
him not guilty.” 

            Upon
completion of the preliminary instructions, the court released the jury until
the following morning, when the first witness was scheduled to testify.  The presentation of all of the evidence was
completed the next morning.  At 2:30 p.m.
that afternoon, following the lunch break, the trial court instructed the jury
with the remainder of the jury instructions, noting that it was “going to skip
the ones that you heard before, which means I am already on page three.”  The written instructions, a copy of which the
court told the jury would be provided “for your use in the jury room,” included
the instruction the court had given before the presentation of evidence on the
People’s burden of proof beyond a reasonable doubt.

            During the
trial, Deputy Davis testified that less than half an ounce of marijuana is a
useable amount, although “[i]t’s on the larger side of personal use,” and
absent other indicia of sale “less than an ounce is considered personal
use.”  Deputy Gary Richter testified that
if all he knew was that a person had 10 grams of marijuana, he could believe it
was possessed for personal use.  If the
person also had a scale and over 50 empty plastic baggies, he would start to
believe it was possessed for sale.  If
there were also no means of ingesting the marijuana where the person was found,
it would be his opinion that the marijuana was possessed for sale.  Deputy Richter also testified that half an
ounce of marijuana was worth “close to” $600 or $700.

            The jury
was instructed on possession of marijuana for sale but not on simple possession
of marijuana.  The jury found defendant
guilty of all of the charges except the paraphernalia charge.  The court found all of the enhancement
allegations true. 

            At the
sentencing hearing, defendant’s parents, two children, fiancé, and a friend all
told the court that defendant needed to be placed in a drug rehabilitation
program.  Defendant also addressed the
court himself and said he needed to be in a residential drug program.  The court explained that “placing Mr. Sillard
on probation or ordering him to a program would be impossible under the
law.”  The court subsequently imposed the
upper term of three years for the possession of methamphetamine for sale, with
three additional consecutive years for each of defendant’s four prior drug
convictions, for a total principle term of 15 years.  The court also imposed eight months
consecutive for the possession of marijuana for sale and three years stayed for
the possession of methamphetamine.  In
the interest of justice, the court dismissed the prior prison term enhancements
to avoid adding another four years to defendant’s sentence.  The court noted that the time was to be
“served locally in the county jail under Section 1170, subdivision (h)” and
stated that it was “not ordering mandatory supervision.  The time is straight time.” 

            Defendant
timely appealed.

DISCUSSION

I

>Timing Of The Reasonable Doubt Instruction

            Defendant
contends the trial court violated his fundamental
constitutional rights when the court failed to read to the jury a
reasonable doubt instruction just before the jury began deliberating.href="#_ftn1" name="_ftnref1" title="">[1]  Defendant is wrong.

             â€œIt is a fundamental precept of our criminal
justice system that before a jury may convict a defendant of a criminal
offense, it must find that the prosecution has proved all elements of the
offense beyond a reasonable doubt.  State
law and the federal Constitution require the trial court to instruct with
regard to this fundamental principle when it advises the jurors of the
applicable rules of law that govern their deliberation and decision.”  (People
v. Aranda, supra, 55 Cal.4th at
p. 349.)  “[T]he omission of the standard
reasonable doubt instruction will amount to a federal due process violation
when the instructions that were given by the court failed to explain that the
defendants could not be convicted ‘unless each element of the crimes charged
was proved to the jurors’ satisfaction beyond a reasonable doubt.’  [Citation.] 
When the trial court’s instructions otherwise cover this constitutional
principle, the failure to instruct with the standard reasonable doubt
instruction does not constitute federal constitutional error.”  (Id.
at p. 358.)

            Here, the
trial court did not omit the standard reasonable doubt instruction; the court
simply gave that instruction to the jury before the presentation of evidence
began rather than waiting until the final instructions to the jury just before
the panel was to begin its deliberations. 
That is exactly what CALCRIM No. 103 is designed for.  (See Judicial Council of California Criminal
Jury Instructions (2012) p. 11, Bench Note to CALCRIM No. 103 [“This
instruction is included in this section for the convenience of judges who wish
to instruct on [reasonable doubt] during voir dire or before testimony
begins”].)  CALCRIM No. 103 is identical
in all material respects to CALCRIM No. 220, the instruction commonly referred
to (along with CALJIC No. 2.90) as the “standard” reasonable doubt instruction
in California.  (See People v. Aranda, supra,
55 Cal.4th at p. 353.)  And the practice of giving CALCRIM No.
103 at the outset of the case instead of giving CALCRIM No. 220 just before
deliberations begin is completely consistent with California law.  (See Pen. Code, § 1093, subd. (f) [“>At the beginning of the trial or from
time to time during the trial, and without any request from either party, the
trial judge may give the jury such instructions on the law applicable to the
case as the judge may deem necessary for their guidance on hearing the case”],
italics added; People v. Benjamin
(1970) 3 Cal.App.3d 687, 698 [the trial court may instruct on reasonable doubt
at the beginning of the trial], disapproved on other grounds in >People v. Brigham (1979) 25 Cal.3d 283,
292, fn. 15.)  More important, though,
defendant cites no authority for the proposition that it amounts to federal
constitutional error for the trial court to instruct the jury on reasonable
doubt before testimony begins rather than just before the beginning of jury
deliberation, nor could he, since Aranda
holds that as long as the trial court’s instructions cover the constitutional
principle of proof beyond a reasonable doubt, there is no such error.  (Aranda,
at p. 358.)

            To the
extent defendant asserts that “the cases . . . have concluded [that] reasonable
doubt instruction during jury selection is insufficient to comport with federal
constitutional requirements,” that assertion is entirely misplaced here because
the trial court did not instruct on reasonable doubt during jury selection, but instead instructed the actual,
empanelled jury on that subject after the panel had been sworn and just prior
to the beginning of the presentation of evidence.  Moreover, the trial court provided the jury
with a written copy of the reasonable doubt instruction to use during
deliberations.  Defendant has shown no
violation of his fundamental constitutional rights in the trial court’s use of
this procedure.

II

>Omitted Instruction On Simple Possession Of
Marijuana

            Defendant
contends the trial court prejudicially erred in failing to sua sponte instruct
the jury on simple possession of marijuana as a lesser included offense of
possession of marijuana for sale.  We
agree.

            “[I]nstructions
on a lesser included offense . . . are required whenever evidence that the
defendant is guilty only of the lesser offense is ‘substantial enough to merit
consideration’ by the jury.  [Citations.]  ‘Substantial evidence’ in this context is
‘ â€œevidence from which a jury composed of reasonable [persons] could . . .
conclude[]” ’ that the lesser offense, but not the greater, was
committed.”  (People v. Breverman (1998) 19 Cal.4th 142, 162.)

            Here, less
than half an ounce of marijuana was found in the canvas bag, which even the
People’s witnesses admitted was an amount usually associated with personal
use.  While the canvas bag also contained
a scale and over 50 empty plastic baggies -- both of which are indicia of
possession for sale -- the scale and the baggies were not with the marijuana. 
Instead, they were found in a separate pocket with the fake WD-40 can
that held a substantial amount of methamphetamine, which was already divided up
into six separate baggies.  The
marijuana, on the other hand, was found by itself in a single baggie in the
smaller pocket on the front of the canvas bag. 
While the physical separation of the marijuana from the methamphetamine,
the scale, and the baggies is certainly not dispositive of whether the marijuana
was possessed for personal use only, it is evidence that merited consideration
by the jury.  Additionally, while Deputy
Richter found that the absence of any means for ingesting the marijuana tipped
the scale of his opinion as to whether the marijuana was possessed for sale, a
reasonable trier of fact might have believed that defendant intended to use the
marijuana later, at a location where such means could be found.  As defendant points out, “ ‘personal use’ is
not synonymous with ‘immediate use.’ ” 
On the evidence here, a properly instructed jury might have concluded
that while defendant possessed the substantial amount of methamphetamine found
in the fake WD-40 can with the intent to sell it, there was at least a
reasonable doubt as to whether he possessed the relatively small amount of
marijuana found separately with that same intent.

             â€œ[I]n a noncapital case, error in failing sua
sponte to instruct . . . on all lesser included offenses and theories thereof
which are supported by the evidence must be reviewed for prejudice exclusively
under [People v. Watson (1956) 46
Cal.2d 818].  A conviction of the charged
offense may be reversed in consequence of this form of error only if, ‘after an
examination of the entire cause, including the evidence’ (Cal. Const., art. VI,
§ 13), it appears ‘reasonably probable’ the defendant would have obtained a
more favorable outcome had the error not occurred.”  (People
v. Breverman, supra, 19 Cal.4th
at p. 178.)  “[A] reversal will result
only when there exists, in the opinion of the court, at least such an equal
balance of reasonable probabilities as to leave the court in serious doubt as
to whether the error has affected the result.” 
(People v. Watson, >supra, 46 Cal.2d at p. 837.)

            We have
laid out already the evidence regarding the marijuana found in the canvas
bag.  Given the relatively small amount
of marijuana found, the fact that it was not packaged for sale, and the fact
that it was found in a separate part of the bag from the methamphetamine, the
baggies, and the scale, we find ourselves “in serious doubt as to whether the
error [in failing to instruct the jury on simple possession of marijuana]
affected the result.”  (>People v. Watson, supra, 46 Cal.2d at p. 837.) 
Thus, prejudice has been shown.

            According
to the People, any error in failing to instruct on simple possession was
harmless because “defense counsel argued that this was a simple possession
case” but “[t]he jury rejected that argument.” 
The problem with the People’s position is that the jury instructions (not to mention the verdict forms) did not
give the jury the option of finding defendant guilty of simple possession,
whatever defense counsel may have argued. 
The choice the jury faced under 
the law the jury was told it had to follow (i.e., the instructions) was
that defendant was either guilty of possessing the marijuana for sale or he was
guilty of no crime with respect to the marijuana.  (This same choice was reflected in the
verdict forms.)  Thus, the People’s
attempt to show harmless error is without merit.

            Because the
trial court prejudicially erred in failing to instruct the jury on the lesser
included offense of possession of marijuana, we must reverse defendant’s
conviction of possessing marijuana for sale.

III

>The Trial Court’s Understanding Of Its
Authority Under The Realignment Act

            Although
defendant’s argument about the trial court’s understanding of its authority
under the Realignment Act is technically moot because the reversal of his
conviction for possessing marijuana for sale will require resentencing on
remand, we nonetheless note that there is no evidence the trial court denied
him a split sentence because the court misunderstood its authority under the
Realignment Act.

            Under the
Realignment Act, the trial court can commit a defendant to the county jail
either “[f]or a full term in custody as determined in accordance with the
applicable sentencing law” (Pen. Code, § 1170, subd. (h)(5)(A)) or “[f]or a
term as determined in accordance with the applicable sentencing law, but suspend
execution of a concluding portion of the term selected in the court’s
discretion, during which time the defendant shall be supervised by the county
probation officer in accordance with the terms, conditions, and procedures
generally applicable to person placed on probation,

for the remaining unserved portion of the sentence imposed
by the court” (id.,
subd. (h)(5)(B)(i)).  Any such
concluding portion of a sentence is known as “mandatory supervision.”  (Id.,
subd. (h)(5)(B)(ii).)  A sentence in which
a defendant is placed on mandatory supervision for a concluding portion of the
term is commonly known as a “split” sentence.

            In a
sentencing brief here, the People argued that defendant was not eligible for a
split sentence because subdivision (a)(11) of Penal Code section 1203.07
provides that execution of sentence shall not be suspended for any person
convicted of possessing methamphetamine for sale with a prior conviction for
violating Health and Safety Code section 11378.href="#_ftn2" name="_ftnref2" title="">[2]  On appeal, defendant contends the bar in
Penal Code section 1203.07 applies only to “a grant of probation and the
suspending of an entire sentence.”  In
his view, the statute does not bar a court from imposing a split sentence under
the Realignment Act, even though the split sentence is achieved by suspending
execution of the concluding portion of the sentence.  Defendant further argues that the trial court
here “thought that a split sentence was
prohibited and accordingly, that it lacked the discretion to impose a ‘split
sentence’ ” on defendant.  (Italics
added.)  According to defendant, “[t]he
trial court failed to recognize and/or misunderstood the scope of its
discretion to order a split sentence, and consequently failed to exercise that
discretion.” 

            We find no
evidence in the record to support defendant’s contention that the trial court
denied him a split sentence because the court misunderstood its authority under
the Realignment Act.  An “ ‘order of the
lower court is presumed correct.  All intendments and presumptions are indulged
to support it on matters as to which the record is silent, and error must be
affirmatively shown.’ ”  (>Denham v. Superior Court (1970) 2 Cal.3d
557, 564.)  “The general rule is that a
trial court is presumed to have been aware of and followed the applicable
law.  [Citations.]  These general rules concerning the
presumption of regularity of judicial exercises of discretion apply to
sentencing issues.” (People v. Mosley
(1997) 53 Cal.App.4th 489, 496-497.)

            In arguing
here that the record “affirmatively establishes that the court misunderstood
[the scope of] its discretion” with respect to imposition of a split sentence,
defendant points to certain comments the court made during the sentencing
hearing, but he takes those comments out of context.  For example, defendant points to the court’s
comment that “placing Mr. Sillard on probation or ordering him to a program
would be impossible under the law.”  The
court made this comment, however, immediately after listening to defendant and
his family members plead for his placement in a residential drug treatment
rather than incarceration.  For example,
defendant’s mother had pleaded, “Please, your Honor, please find it in your
heart to put my son in a program and not just to let him go years in
jail.”  In response to this and other
similar entreaties, the trial court said, 
“it is certainly clear that placing Mr. Sillard on probation or ordering
him to a program would be impossible under the law . . . .  [¶]  If
I were to try to make such an order, it is an illegal order.  It can’t be enforced.  It is no better than saying I am going to
grant Mr. Sillard the ability to fly with wings.  It has no effect to try to do that.”  Taken in context, then, this comment
evidenced the trial court’s correct understanding that under Penal Code section
1203.07, the court could not place defendant on probation instead of in jail so
that he could participate in a residential drug treatment program.  That comment, however, does not show anything
about the court’s understanding of its power to impose a split sentence under
the Realignment Act. 

            In comments
the court made later before imposing sentence, the court stated as
follows:  “Someone was talking about how
jail won’t be good for him.  I am not
concerned with what’s good for Mr. Sillard when it comes to whether he should
be in jail or not.  [¶]  I don’t have the ability to consider
something other than sending him away. 
The law says that he cannot be placed on probation.  That’s all there is to it.”  Defendant relies on this statement to show
that the trial court erroneously believed “a split sentence was prohibited,”
but nothing about the statement suggests that. 
Again, the court was referring to probation and not to mandatory supervision
as the concluding part of a jail sentence under the Realignment Act.

            Ultimately,
after imposing the 15-year, eight-month term on defendant, the court stated as
follows:

            “Three
hundred seventy-three plus three seventy-three for a total of seven hundred
forty-six days credit.

            “Fifteen
years eight months is also one hundred eighty-eight months and is also five
thousand seven hundred eighteen days served locally in the county jail under
Section 1170, subdivision (h).

            “The Court
is not ordering mandatory supervision. 
The time is straight time.” 

            It is
significant, given the court’s repeated comments earlier about how it >could not order probation, that the
court did not say it could not order
mandatory supervision, even though the People had argued that earlier in the
hearing.  Instead, the court simply said
that it was not ordering mandatory
supervision.  And it did so after
commenting at length that defendant was not being incarcerated for being a drug
addict, but rather for being a drug dealer
with “[c]onviction after conviction after conviction.”

            On the
record before us, then, there is no evidence to suggest that the trial court
refused to impose a split sentence because it believed it could not do so.  Rather, the record suggests that the court
refused to impose a split sentence because it believed such a sentence was not
appropriate for defendant.        

 

 

 

DISPOSITION

            Defendant’s
conviction of possessing methamphetamine for sale is affirmed, but his
conviction of possessing marijuana for sale is reversed, and the case is
remanded to the trial court for further proceedings.

 

 

 

                                                                       ROBIE          , Acting P. J.

 

 

 

We concur:

 

 

 

          MURRAY         , J.

 

 

 

          DUARTE         , J.