P. v. Benson

Filed 12/5/07 P. v. Benson CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Kern County. John I. Kelly, Judge.

Robert P. Whitlock, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Charles A. French and Jeffrey D. Firestone, Deputy Attorneys General, for Plaintiff and Respondent.

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A jury found appellant guilty of possessing cocaine (Health & Saf. Code, 11350, subd. (a); count one) and possessing less than 28.5 grams of marijuana (Health & Saf. Code, 11357, subd. (b); count 3.) The jury also found appellant not guilty of resisting or obstructing a peace officer in the discharge of the officers duties. (Pen. Code, 148, subd. (a)(1)); count 2.) Appellant presented no defense to the marijuana possession charge.^[1] As to the count two cocaine possession charge, appellant did not dispute the evidence showing that he was in possession of 14 milligrams of a substance containing cocaine. His unsuccessful defense was that he did not possess a usable amount of a substance containing cocaine.

The court placed appellant on three years probation pursuant to Penal Code section 1203.1b, subdivision (a) and imposed various fines and penalty assessments, as well as $40 per month in probation supervision costs.

APPELLANTS CONTENTIONS

Appellant raises two contentions. First, he contends that the courts failure to give the jury a proper definition of useable amount prejudiced appellant and violated his constitutional rights to a fair trial and to a jury trial finding on every element. Second, he contends that the court erred failing to make a determination as to whether he had the ability to pay the $40 per month probation supervision costs. Respondent concedes that appellants second contention has merit.^[2] Accordingly, we will remand the case to the superior court for that court to hold a hearing on appellants ability to pay probation supervision costs. As we shall explain, however, we find appellants first contention to be without merit.

FACTS

The issues appellant raises on this appeal obviate any need for a detailed recitation of the circumstances leading to his arrest. Appellant was the driver and sole occupant of an automobile stopped by police officers due to an improperly functioning center brake light. On the drivers side of the floorboard of the vehicle one of the officers found a torn off corner of a sandwich baggie with a slight powdery residue on it. The torn baggie was described by one of the officers as a commonly used type of packaging for illegal drugs. Also on the floorboard, about six inches away from the torn baggie, were two small rocks of rock cocaine. The officer seized the two white rocks and placed them in a different plastic baggie called a kapak which was then sealed and retained for use as evidence. The rocks were analyzed by a criminalist who testified that the weight of the kapak with rocks in it was 3.49 grams, but the two rocks by themselves, when removed from the kapak, weighed only 14 milligrams.

After appellant was transported to the jail for booking, a small baggie of marijuana was found in his right shoe during the booking process.

APPELLANTS JURY WAS PROPERLY INSTRUCTED

The essential elements of unlawful possession of a controlled substance are dominion and control of the substance in a quantity usable for consumption or sale, with knowledge of its presence and of its restricted dangerous drug character. Each of these elements may be established circumstantially. (People v. Martin (2001) 25 Cal.4th 1180, 1184; in accord, see also People v. Palaschak (1995) 9 Cal.4th 1236, 1242, and People v. Camp (1980) 104 Cal.App.3d 244, 247-248.) In People v. Leal (1966) 64 Cal.2d 504, the court stated that in penalizing a person who possesses a narcotic the Legislature proscribed possession of a substance that has a narcotic potential; it condemned the commodity that could be used as such. It did not refer to useless traces or residue of such substance. Hence the possession of a minute crystalline residue of narcotic useless for either sale or consumption does not constitute sufficient evidence in itself to sustain a conviction. (Id. at p. 512, italics in original.) The California Supreme Court has clarified in People v. Rubacalba (1993) 6 Cal.4th 62, 66, that: [T]he Leal usable-quantity rule prohibits conviction only when the substance possessed simply cannot be used, such as when it is blackened residue or a useless trace. It does not extend to a substance containing contraband, even if not pure, if the substance is in a form and quantity that can be used. No particular purity or narcotic effect need be proven. [] [] [T]he amount of cocaine needed to produce a narcotic effect and the purity of the substance need not be proven in order to establish a usable quantity.

In the present case the court instructed the jury with CALJIC Nos. 12.00, 12.32 and 12.33.^[3] Appellant fails to point out any flaw or error in any of these three instructions. In fact, appellant concedes in his reply brief that [a]ppellant does not disagree with respondent that the jury was properly instructed on useable amount. These three instructions appear to accurately encapsulate the rules set forth in Martin, Palaschak, Camp and Rubacalba, supra. The heading of appellants argument (failure to give the jury a proper definition of useable amount prejudiced appellant) appears to conflict with the argument he makes in support of that heading (appellant does not disagree that the jury was properly instructed on useable amount). (See also Cal. Rules of Court, rule 8.204 (Contents and Form of Briefs), subpart (a)(1)(B): Each brief must: State each point under a separate heading or subheading summarizing the point, and support each point by argument and, if possible, by citation of authority . If appellants point is that failure to give the jury a proper definition of useable amount prejudiced him, his concession that his jury was properly instructed on useable amount would appear to refute that point and to obviate any need for further discussion of it.

The actual argument appellant appears to make in the text of his briefing is not an argument that his jury was not properly instructed, but rather an argument that the court should have instructed the jury a third time (after orally instructing the jury once and in addition to giving the jury the courts instructions in written form) on what constitutes a usable amount of cocaine. We will explain.

After the court orally instructed the jury and after deliberations began, the jury sent the court a note on a preprinted form supplied to them for that purpose. The preprinted portion of the note stated: We, the jury in the above entitled action, request or advise the Court as follows: The preprinted form then had several blank lines, three of which were filled in with handwriting. The first line requested clairification [sic] of Kern County definition of useable quantity. The second line requested jury instructions. The third line requested pictures of defendant. The court gave the jury the second and third items requested. The pictures pertained to the count two charge of resisting arrest (on which appellant was acquitted) and are not pertinent to this appeal. The written instructions included CALJIC Nos. 12.00, 12.32 and 12.33, described above. These are the instructions with which appellants jury had already been (in the words of appellants own reply brief) properly instructed. The jury then received these proper instructions in written form. Appellants argument appears to be that the court should have reread to the jury the instructions on usable amount.

Appellant relies on Penal Code section 1138, which states:

After the jury have retired for deliberation, if there be any disagreement between them as to the testimony, or if they desire to be informed on any point of law arising in the case, they must require the officer to conduct them into court. Upon being brought into court, the information required must be given in the presence of, or after notice to, the prosecuting attorney, and the defendant or his counsel, or after they have been called.

Appellant calls our attention to the words the information required must be given and argues that this language required the court to reread the instructions on usable amount. The courts failure to do so, appellant argues, was error.

We do not agree. Where the original instructions are themselves full and complete, the court has discretion under section 1138 to determine what additional explanations are sufficient to satisfy the jurys request for information. [Citation.] (People v. Beardslee (1991) 53 Cal.3d 68, 97.) Appellant appears to assume that the jurys request for clairification [sic] of Kern County definition of useable quantity was a request for a clarification of the legal definition of usable quantity. In this case, when appellants counsel cross-examined criminalist Snow, appellants counsel showed Snow a document entitled Guidelines for Determination of Usable Amount and asked him questions about it. Snow testified that the policy of the Kern County District Attorneys crime lab was that 10 milligrams of a controlled substance was a guideline and a rough estimate of an amount sufficient to constitute a usable quantity, but that the real determination is whether or not the material can be easily manipulated. Snow also testified that the 14 milligrams of rock cocaine was a very small amount, but it was usable under our definition of usability, and I could easily manipulate the material. Snow was also asked: And was this substance in this case able to be manipulated and ingested in the usual way? He answered: Yes. He further testified: A usable amount is an amount that can be manipulated. For example, it can be moved from Point A to Point B. It can be consumed. It could be packaged. It can be sold. Its typically an amount over ten milligrams. When Snow was cross-examined about his understanding of the meaning of usable quantity he was asked: [T]he material in question must have potential for use in the customary and normal manner that a substance is used. Is that correct? He answered: Yes.

When the court received the jurys note, the court consulted the attorneys for their input on how the court should respond to the request. The deputy district attorney told the court My suggestion is that the Court send a request for clarification about the question to the jury; specifically, if there is any witness testimony they wish to have read back who may have testified with respect to this issue. Appellants counsel made no request for any reinstruction on usable amount. He recommended that the court respond to the inquiry [s]imply by advising the jury that the law that applies to this case is the law of the State of California. The court gave the jury the requested exhibits (the pictures) and gave the jury the courts instructions in written form. The court then told the jury:

THE COURT: The only portion of your inquiry that we have not addressed is the first part of it regarding the definition of usable quantity. And unfortunately the Court is unable to address that. The Court would merely direct the jurors to rely upon the evidence thats been presented. And you have accesses to that through your notes, through readback by the District Attorney by the court reporter, and the evidence that was submitted, but the Court cannot address that issue in response. Understood?

JURROR NUMBER 6: Understood.

THE COURT: Okay. Im going to send you back to the jury room.

Thank you.

The court appears to have viewed the inquiry as an inquiry about testimony given on the topic mentioned in the note. The court itself had never given any instruction on a Kern County definition of useable quantity. The inquiry did not mention the name of any particular witness, but the court did remind the jurors that they had access to evidence that had been presented through readback by the court reporter. We do think that the courts oral response to the jurys inquiry would have been better if it had directed the jury to the written instructions pertaining to usable amount or reread those instructions to the jury. But given that (1) neither side asked the court to do this, (2) the court had already given those oral instructions, and (3) the court gave the jury, in response to the jurys inquiry, the courts instructions in written form, we cannot conclude that the court abused its discretion in responding to the inquiry the way it did.^[4]

Furthermore, even if we were to assume that the court erred in failing to reread the usable amount instructions to the jury (CALJIC Nos. 12.32 & 12.33), we conclude that any such error was harmless beyond a reasonable doubt. (See People v. Frye (1998) 18 Cal.4th 894, 1007-1008.) A violation of section 1138 does not warrant reversal unless prejudice is shown. (People v. Beardslee, supra, 53 Cal.3d at p. 97.) The only instructions the jury received on the cocaine possession charge were entirely correct, and were given both orally and in writing. Jurors are presumed to understand and follow the courts instructions. (People v. Holt (1997) 15 Cal.4th 619, 662; People v. Delgado (1993) 5 Cal.4th 312, 331.) Even Snows testimony on usable amount was in accord with CALJIC No. 12.32. In argument to the jury, appellants counsel told the jurors: 12.32 is the instruction that defines usable quantity. The judge will give you a stack. Just to make it easier, 12.32 defines what is a usable quantity. Once you do that, you dont even need to go further. Look at 12.32. Theres going to be a stack. Look for that. The prosecutor argued to the jury: All we have to show is, in essence, that the substance could be manipulated to be used in any manner customarily utilized by drug users. [] And for that there were three witnesses who testified with respect to that. There was Chris Snow, the criminalist, who indicated that he was able to manipulate the substance easily and readily in order to test it. We also had the officers both testify that in their experience and in their knowledge and training that they know that those two rocks are customarily able to be used by drug users, by cocaine users. And they both testified about how it is that the cocaine users would use those two rocks, and that is by placing it into a pipe and being able to smoke it.

Notwithstanding appellants trial counsels exhortation to the jury to apply CALJIC No. 12.32, the defense called an expert witness who testified that his understanding of a usable amount was the amount of a substance thats customarily used by a drug user. The test, however, is whether the substance was sufficient to be used in any manner customarily employed by users of the substance, and not whether a drug user might customarily prefer using a larger amount. In sum, the only instructions given by the court were correct instructions, and were given twice. Any error in not instructing the jury a third time was harmless.

DISPOSITION

The matter is remanded to the superior court for that court to hold a hearing pursuant to Penal Code section 1203.1b, subdivision (a), on appellants ability to pay probation supervision costs, or to take a knowing and intelligent waiver from appellant of such a hearing. (See People v. OConnell, supra, 107 Cal.App.4th 1062.) In all other respects the judgment is affirmed.

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Ardaiz, P.J.

WE CONCUR:

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Wiseman, J.

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Gomes, J.

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^[1] His trial counsel told the jury: We are not contesting Count 3. He had marijuana. Hes guilty of that. Convict him for that.

^[2] Subdivision (a) of Penal Code section 1203.1b states: In any case in which a defendant is convicted of an offense and is the subject of any preplea or presentence investigation and report, whether or not probation supervision is ordered by the court, and in any case in which a defendant is granted probation or given a conditional sentence, the probation officer, or his or her authorized representative, taking into account any amount that the defendant is ordered to pay in fines, assessments, and restitution, shall make a determination of the ability of the defendant to pay all or a portion of the reasonable cost of any probation supervision or a conditional sentence, of conducting any preplea investigation and preparing any preplea report pursuant to Section 1203.7, of conducting any presentence investigation and preparing any presentence report made pursuant to Section 1203, and of processing a jurisdictional transfer pursuant to Section 1203.9 or of processing a request for interstate compact supervision pursuant to Sections 11175 to 11179, inclusive, whichever applies. The reasonable cost of these services and of probation supervision or a conditional sentence shall not exceed the amount determined to be the actual average cost thereof. A payment schedule for the reimbursement of the costs of preplea or presentence investigations based on income shall be developed by the probation department of each county and approved by the presiding judge of the superior court. The court shall order the defendant to appear before the probation officer, or his or her authorized representative, to make an inquiry into the ability of the defendant to pay all or a portion of these costs. The probation officer, or his or her authorized representative, shall determine the amount of payment and the manner in which the payments shall be made to the county, based upon the defendants ability to pay the pay. The probation officer shall inform the defendant that the defendant is entitled to a hearing, that includes the right to counsel, in which the court shall make a determination of the defendants ability to pay and the payment amount. The defendant must waive the right to a determination by the court of his or her ability to pay and the payment amount by a knowing and intelligent waiver. (See also People v. OConnell (2003) 107 Cal.App.4th 1062.)

^[3] The court instructed the jury with CALJIC No. 12.00 as follows: The defendant is accused in Count 1 of having committed the crime of illegal possession of a controlled substance, a violation of Section 11350 of the Health and Safety Code. [] Every person who possesses cocaine, a controlled substance, is guilty of a violation of Health and Safety Code Section 11350, a crime. [] There are two kinds 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 the 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. [] In order to prove this crime, each of the following elements must be proved: [] (1) A person exercised control over or the right to control an amount of cocaine, a controlled substance; [] (2) That person knew of the presence; [] (3) That person knew of its nature as a controlled substance; and [] (4) The substance was in an amount sufficient to be used as a controlled substance.

The court instructed the jury with CALJIC No. 12.32 as follows: Proof that the controlled substance, if any, was in an amount sufficient to be used as a controlled substance may be established, one, by the expert testimony; or, two, by evidence that the amount possessed, if any, was sufficient to be used in any manner customarily employed by users of the sub sub users of the substance.

The court instructed the jury with CALJIC No. 12.33 as follows: In order to establish that the amount, if any, of the controlled substance or marijuana possessed by the defendant was a sufficient amount to be con to constitute a violation of the law, it is not necessary that the People prove, one, the amount possessed, if used, would have the effect it is ordinarily expected to produce, referring to narcotic effect, or; two, the narcotic ingredient in the particular substance possessed was capable of producing a narcotic effect.

^[4] Although appellant concedes in his reply brief that his jury was properly instructed, he also asserts in his opening brief that the court should have been told to revisit the proper instructions augmented with CALCRIM 2300. The CALCRIM 2300 instruction includes language stating [u]seless traces [or debris] are not usable amounts. (CALCRIM No. 2300 (2007-2008), at p. 235.) To the extent this is an argument that the court erred in not instructing the jury with CALCRIM No. 2300 on the courts own initiative, the argument fails for at least two reasons. First, CALCRIM No. 2300 is not applicable to the crime of possession of a controlled substance and does not even purport to define that crime. It pertains to the crimes of sale or transportation of a controlled substance. Second, the court was required to (and did) instruct the court on what a usable amount was. The court had no duty to instruct on what a usable amount was not. If appellant desired an additional instruction to the effect that a useless trace was not usable, this would simply have been an amplification of an already correct instruction. We note that CALCRIM No. 2302 pertains to the crime of possession, and also includes the phrase [u]seless traces [or debris] are not usable amounts. (CALCRIM No. 2302 (2007-2008), at p. 239.) Under such circumstances, we require the defendant to request further instructional amplification or explanation as he deems necessary. [E]rror cannot be predicated upon the trial courts failure to give [such amplification or explanation] on its own motion. [Citations.] (People v. Cox (1991) 53 Cal.3d 618, 669; People v. Anderson (1966) 64 Cal.2d 633, 639.) Appellant made no such request at trial.