P. v. Harned

Filed 2/28/08 P. v. Harned CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Butte)

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A jury found defendant Donald Lavern Harned guilty of transporting methamphetamine (Health & Saf. Code,  11379, subd. (a)), possessing methamphetamine for sale (id.,  11378), and possessing psilocybin mushrooms (id.,  11377, subd. (a)). In a bifurcated proceeding, the trial court found defendant had two prior drug convictions (id.,  11370.2, subd. (c)) and served a prior prison term (Pen. Code,  667.5, subd. (b)).

Sentenced to 10 years eight months in state prison, defendant appeals, contending (1) there is insufficient evidence he possessed methamphetamine for sale; (2) the trial court erred in allowing the People to use poverty and lack of a job as evidence of motive that he possessed drugs for sale; (3) the trial court and the People failed to properly instruct the jury regarding how to consider simple possession, the lesser included offense of possession for sale; and (4) the cumulative effect of these errors requires reversal.^[1] Disagreeing with each of defendants contentions, we shall affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On April 16, 2004, Chico police officers initiated a traffic stop of the car defendant was driving. With defendants permission, officers searched the car and discovered a backpack containing four baggies with the following amounts of methamphetamine: 0.3 grams, 0.47 grams, 1.54 grams, and 1.72 grams. The backpack also contained 13 empty syringes; one syringe loaded with methamphetamine; one baggie with 13.8 grams of psilocybin mushrooms; a digital scale; numerous new and unused Ziploc baggies; a small, unburned spoon; a cell phone; and miscellaneous other items. Officers did not find any cash inside the backpack or elsewhere in the car.

Officer Darrin Deel, a narcotics investigator assigned to the Butte Interagency Narcotics Task Force (BINTF) with extensive experience investigating the manufacture, sale, and use of methamphetamine, testified that a typical dose of methamphetamine ranges from 0.05 to 0.10 grams. Of the hundreds of methamphetamine users he has interviewed over the years, the largest amount a person ever told [him] they use[d] . . . in a day is two grams. Methamphetamine is commonly sold in amounts of 0.25 grams, 0.50 grams, 1 gram, 1.75 grams (one-sixteenth of an ounce or a teener), and 3.5 grams (one-eighth of an ounce or an eight ball). The quantities of methamphetamine in the plastic baggies found in the backpack were close enough to be sold as street amounts; specifically, the bags containing 1.72 grams and 1.54 grams could be sold as teeners (one-sixteenth of an ounce), while the bag containing 0.47 grams could be sold as a half-gram, and the bag containing 0.3 grams could be sold as a quarter-gram. People who sell methamphetamine commonly use scales for weighing the products, packaging, [and] . . . a spoon used to help measure the methamphetamine out prior to putting it in the bag. People who inject methamphetamine commonly use spoons to heat the methamphetamine to liquefy it so that it can be drawn into a syringe and injected.

Officer Deel opined that based upon the packaging, the new and unused packaging material, the digital gram scale, four separate packaged increments of methamphetamine, [and] the spoon that is too small [and] looks like its never been used as one to heat up methamphetamine, defendant was selling methamphetamine. Based on the syringes, he also believed defendant was using methamphetamine. According to Deel, its not uncommon . . . for dealers to use their own products. Many methamphetamine users sell methamphetamine to support their habit because its extremely difficult [for serious addicts] to hold down jobs.

During cross-examination, Officer Deel acknowledged that some users carry scales to make sure they are not getting ripped off. He also testified that he would expect a person selling methamphetamine to have his cell phone within reach, and that [i]ts more likely a drug dealer would have cash. He also noted that its not exactly uncommon for a dealer not to have cash.

Defendant did not testify at trial. Mickey Lynn Lotta, who has known defendant for approximately 20 years, testified that she used methamphetamine with defendant from the early 1980s until three or four years ago. During that time, she saw defendant use up to two grams of methamphetamine at one time. Although she never sold methamphetamine, when she was using, she possessed digital scales, baggies, and syringes. During cross-examination, she testified, without objection, that she has never known defendant to have a job.

Jean Marie Wagoner, who has known defendant for over 15 years, testified that she used methamphetamine with defendant in 1996 or 1997, and during that time, she saw defendant use an eight ball (3.5 grams) to a quarter ounce (just over 7 grams) in a 24-hour period. Although she never sold methamphetamine, when she was using, she carried a scale so that she would not get shortchanged and used baggies to break up the methamphetamine for future use. During cross-examination, she testified, without objection, that she had never known defendant to have a job. According to her, methamphetamine use is inconsistent with having a job.

Additional facts concerning the Peoples closing argument and the courts instructions to the jury are set forth below in the Discussion.

DISCUSSION

I

Defendant contends there is insufficient evidence to support the jurys finding that he possessed the 4.1 grams of methamphetamine found in his backpack for the purpose of selling it. He argues, as he did at trial, that the various items in his backpack were just as likely to be possessed by a drug user as a drug dealer, and that other circumstantial evidence demonstrated that the methamphetamine was for his personal use. We disagree.

When addressing an insufficient evidence contention, we consider only whether substantial evidence‑‑i.e., evidence which is reasonable, credible, and of solid value‑‑supports the verdict. (People v. Horning (2004) 34 Cal.4th 871, 901.) In doing so, we consider the evidence, including all reasonable inferences from it, in the light most favorable to the verdict. (Ibid.)

A defendants intent to sell narcotics can be established through circumstantial evidence. (People v. Newman (1971) 5 Cal.3d 48, 52, disapproved on a different ground in People v. Daniels (1975) 14 Cal.3d 857, 862; People v. Harris (2000) 83 Cal.App.4th 371, 374.) In cases involving the possession of drugs for sale, a jury may rely on expert testimony regarding the quantity, packaging and normal use of an individual to support a conviction. (Harris, at p. 375, quoting Newman, at p. 53.)

Although the amount of methamphetamine found in defendants backpack is not great, the evidence of how the methamphetamine was packaged, the presence of packaging material, a digital scale, and a small unburned spoon, together with Officer Deels testimony concerning the significance of each, provide sufficient evidence from which the jury reasonably could conclude defendant possessed the methamphetamine for sale.

Citing evidence by two witnesses that [he] used up to 2 grams per day, defendant contends the People failed to establish how 4.1 total grams of methamphetamine under the facts of this case was sufficient to establish sales. He is mistaken. The two witnesses‑‑Lotta and Wagoner‑‑testified concerning defendants usage years ago; neither testified concerning his current usage. Moreover, Lottas testimony that defendant could use up to two grams of methamphetamine at one time and Wagoners testimony that defendant could use up to seven grams in one day conflicted with Officers Deels testimony that the most methamphetamine he had ever heard of a person using in one day is two grams. Further, given their longtime relationship with defendant, the jury reasonably could have concluded Lotta and Wagoner exaggerated defendants usage to support his defense that he possessed the methamphetamine for personal use.

Defendant also argues the absence of any cash undercuts the jurys finding that he possessed the methamphetamine for sale. While Officer Deel testified that it is more common for a drug seller to carry cash, its not exactly uncommon for a seller not to have cash. Thus, the jurys finding that defendant possessed the methamphetamine for sale is supported by substantial evidence notwithstanding the absence of cash.^[2]

II

Defendant next asserts the trial court improperly allowed the [People] to use [his] poverty and lack of a job as evidence of motive that he possessed drugs for sale. Again, we disagree.

Before closing arguments, defendant objected to any argument by the People that because [he] didnt have a job, he therefore must be poor and more inclined to sell drugs in order to keep his habit going. He also asked the court to instruct the jur[ors] that they are not to consider an individuals poverty in determining whether or not a person has intent to commit a crime. The People responded that they were not trying to say [defendant] is poor and destitute, therefore, he has to sell drugs. Rather, their position was that he is a drug addict, cant hold down a job because drug addicts cant hold down jobs . . . and hes got to support his habit some way. Thats why he sells drugs. The trial court ruled the Peoples argument was appropriate as it relates to count two [possession of methamphetamine for sale] and declined defendants request for an instruction.

During closing argument, the prosecutor told the jury, [T]heres no question that [defendant] probably intend[ed] on using some of that meth but theres no question that [he] also intended on selling it. I mean how else can he go to get more meth. His friends of 20 years said theyve known him for 10 or 20 years and he has never once had a job because addicts dont work, they dont function normally with other people in society.

As a preliminary matter, the People contend defendant forfeited at least part of his claim by failing to object when the People elicited evidence of his unemployment from two defense witnesses. The People are correct that defendant forfeited any claim that the evidence concerning his unemployment was improperly admitted by failing to make a specific and timely objection to [the] introduction of such evidence below. (People v. Burns (1987) 196 Cal.App.3d 1440, 1456-1457; People v. Pollock (2004) 32 Cal.4th 1153, 1181; Evid. Code,  353.) As we understand it, however, defendants claim on appeal is directed at the Peoples use of the evidence during closing argument, not the admission of the evidence itself. Defendant did object to the Peoples use of that evidence during closing argument and, therefore, did not forfeit his right to challenge the trial courts ruling on his objection. As we shall explain, however, the trial court did not err in allowing the People to refer to evidence of defendants unemployment during closing argument.

Under the well-established rule, a defendants poverty generally may not be admitted to prove a motive to commit a robbery or theft; reliance on such evidence is deemed unfair to the defendant, and its probative value is outweighed by the risk of prejudice. (People v. Koontz (2002) 27 Cal.4th 1041, 1076, citing People v. Wilson (1992) 3 Cal.4th 926, 939.) The rationale behind this rule is that [w]hile lack of money is logically connected with a crime involving financial gain . . . [t]he trouble is that it would prove too much against too many. [Citation.] As the court explained in United States v. Mitchell (9th Cir. 1999) 172 F.3d 1104, Lack of money gives a person an interest in having more. But so does desire for money, without poverty. A rich mans greed is as much a motive to steal as a poor mans poverty. Proof of either, without more, is likely to amount to a great deal of unfair prejudice with little probative value. (People v. Carrillo (2004) 119 Cal.App.4th 94, 102.)

Defendant does not cite any case applying the rule prohibiting evidence of a defendants poverty in the context of a prosecution for possessing a controlled substance for sale. Even assuming the rule is not limited to cases involving theft or robbery, it is inapplicable here because the People did not argue defendant sold drugs for financial gain. Rather, they argued he sold drugs to feed his addiction. Nor was defendants unemployment the only evidence that he possessed the methamphetamine for sale. Thus, any risk of prejudice to defendant as a result of the Peoples closing argument concerning his unemployment was significantly reduced. Moreover, evidence of his unemployment was relevant not only to show he possessed the methamphetamine for sale, but to refute his defense that he possessed the methamphetamine merely for personal use. Under these circumstances, the rationale behind the rule prohibiting evidence of a defendants poverty is inapplicable. (See People v. Carrillo, supra, 119 Cal.App.4th at p. 102.)

III

Defendant also contends the trial court and [the People] failed to properly instruct the jury regarding how to consider simple possession, the lesser included offense of possession for sale. We are not persuaded.

After both sides rested and before closing arguments, the trial court instructed the jury pursuant to CALCRIM No. 3517 in pertinent part as follows: Count two charges that the defendant committed possession of methamphetamine for sale. The offense of simple possession of methamphetamine is a lesser offense of possession of methamphetamine for sale.

You have been given one verdict form for each offense. You may consider these different offenses in whichever order you wish. Im going to explain to you how to complete the verdict forms using one order but you may choose the order you use. As with all the charges in this case, to return a verdict of guilty or not guilty of an offense, you must all agree on that decision. If all of you agree that the People have not proved that the defendant committed any of these offenses, then you must complete each verdict form stating he is not guilty.

If you all agree that the People have proved that the defendant is guilty of possession for sale of methamphetamine, complete the verdict form saying the defendant is guilty of that offense. Do not complete the other verdict form with the lesser offense. You cannot find the defendant guilty of both possession for sale of methamphetamine and the lesser offense of simple possession of methamphetamine.

If you all agree the defendant is not guilty of possession for sale of methamphetamine but you agree the People have proved that the defendant is guilty of simple possession of methamphetamine, you must do two things.

First, complete the verdict form stating that the defendant is not guilty of possession for sale of methamphetamine. Then complete the verdict form stating that the defendant is guilty of simple possession of methamphetamine. Do not complete the verdict form stating the defendant is guilty of simple possession of methamphetamine, unless you all agree that the defendant is not guilty of possession for sale of methamphetamine.

During closing argument, the People told the jury:

Count two [possession of methamphetamine for sale] is a little bit more complicated [than the other counts] because there is a lesser included offense. [When] you all vote, . . . you have to . . . all vote not guilty to possession for sale before you can go to the lesser included offense of straight possession. So you cant start with straight simple possession without intent to sell. You have to start with possession for sale.

If you all do agree unanimously beyond a reasonable doubt that the People have failed to prove that, then you vote not guilty for possession of [sic] sale of meth and thats when you go to simple possession. But lets say some of you vote one way and some of you vote another way and you dont go to straight possession. I hope everybody understands that.

During deliberations, the jury presented the following written question to the court: Do we have to have a unanounmous [sic] vote on Count 2 to move to Count 2 lesser charge[?] After discussing the jurys question with counsel, the court responded: Yes, you all have to agree the defendant is not guilty of Count 2 before you can return a verdict of either guilty or not guilty of the lesser for Count 2.

Defendant does not take issue with the trial courts initial instruction to the jury on how to consider the lesser included offense; rather, he complains that the Peoples statements during closing arguments prevented the jury from fully considering [it] during deliberations and that the trial court compounded this error by improperly responding to a question by the jury.

Although a court may restrict a jury from returning a verdict on a lesser included offense before acquitting on a greater one, it may not preclude the jury from considering lesser offenses during deliberations. (People v. Cash (2002) 28 Cal.4th 703, 739 (Cash).)

Here, if considered in isolation, the Peoples statements could reasonably be construed to mean either that the jury must acquit defendant of possession for sale before returning a verdict on simple possession (a correct statement of the law) or that the jury must acquit defendant of possession for sale before considering simple possession (an incorrect statement of the law). The statements, however, were not made in isolation. Rather, they followed the trial courts instructions which expressly informed the jury that it could consider the offenses in whichever order you wish and [i]f you believe an attorneys comment on the law conflicts with [the courts] instructions, you must follow [the courts] instructions. We presume the jury followed these instructions. (People v. Stitely (2005) 35 Cal.4th 514, 559.)

In addition, the trial courts response to the jurys question was a correct statement of the law, i.e., that the jury must acquit defendant of possession for sale before returning a verdict on simple possession. (Cash, supra, 28 Cal.4th at p. 739.) While the better practice may have been to also remind the jury that it need not acquit defendant of possession for sale before considering simple possession, as it had done in its earlier instructions, the failure to do so did not constitute error.

In sum, neither the prosecutors statements during closing argument nor the courts response to the jurys inquiry‑‑ separately or in combination‑‑precluded the jury from considering simple possession before considering or rendering a verdict on possession with the intent to sell. (Cash, supra, 28 Cal.4th at p. 740.) Accordingly, there was no error. (Ibid.)

IV

Finally, defendant claims an assessment of the cumulative effect of the errors he raises mandates reversal of the judgment. Since we find no such error, this claim fails.

DISPOSITION

The judgment is affirmed.

BUTZ , J.

We concur:

DAVIS, Acting P.J.

RAYE , J.

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^[1] In his opening brief filed on November 27, 2006, defendant also challenges the trial courts ruling denying his motion to suppress. On December 8, 2006, however, defendant moved to withdraw that challenge, and on December 12, 2006, we granted his request.

^[2] Defendant cites Officer Deels testimony that a drug dealer typically keeps his or her cell phone within reach as further support for his assertion that the jurys finding that he possessed the methamphetamine for sale is not supported by substantial evidence. He fails, however, to point to any evidence in the record that his cell phone was out of reach, other than the fact it was inside his backpack. To the extent defendant asserts that items kept inside a backpack are out of a drivers reach regardless of the location of the backpack, we reject his assertion.