P. v. Menyweathers

Filed 12/30/09 P. v. Menyweathers CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. David W. Ryan, Judge. (Retired judge of the San Diego Super. Ct. assigned by the Chief Justice pursuant to art. VI, 6 of the Cal. Const.) Affirmed with directions.

Jan B. Norman, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Peter Quon, Jr., and Marcella O. McLaughlin, Deputy Attorneys General, for Plaintiff and Respondent.

A jury convicted defendant Keith Lamont Menyweathers of possession of methamphetamine. (Health & Safe. Code 11377, subd. (a).) Thereafter, defendant admitted having sustained a prior strike conviction (Pen. Code 667, subds. (c) & (e), 1170.12, subd. (c)(1)) and a prior prison term (Pen. Code  667.5, subd. (b)). The court sentenced defendant to an aggregate term of three years eight months of imprisonment consisting of the following: the low term of 16 months on count 1 doubled pursuant to the strike prior plus 12 months for the prior prison term.^[1] On appeal, defendant contends that the trial courts erroneous reading of CALCRIM No. 359, that the jury must rather than may rely on defendants out of court statements to convict him, resulted in reversible error. We disagree and, therefore, affirm the judgment in full.

FACTUAL AND PROCEDURAL HISTORY

On December 11, 2007, around 9:00 p.m., Officer Pitette and his partner were patrolling the streets in an apartment complex in their unmarked police car.^[2] Officer Pitette saw two individuals next to a dumpster, who walked off quickly in different directions after seeing the patrol vehicle. Despite not seeing anything exchanged, Officer Pitettes gut told him that a hand-to-hand drug transaction or some other type of criminal activity had just occurred. The officers followed after defendant.

Defendant walked towards the drivers side door of a parked van. While still in the patrol vehicle, Officer Pitette saw something either fall or be thrown to the ground from the front of defendants person. Officer Pitette exited the vehicle and contacted defendant. He requested permission to search defendant. Defendant consented. Officer Pitette did not find anything illegal on him. Officer Pitette then had defendant sit on the curb and Officer Pitette retrieved the fallen object from the ground.

The object was a small, torn, knotted piece of a plastic shopping bag with a white crystal-like substance inside. This was a common way to package methamphetamine, typically referred to as a bindle. Officer Pitette arrested defendant. He then weighed and tested the substance; it tested positive for methamphetamine. A laboratory technician later conducted chemical screening tests on the substance, which reflected positive results for methamphetamine.

At the patrol station Officer Pitette read defendant his Miranda^[3]rights, which defendant waived. Defendant informed Officer Pitette that he had purchased the methamphetamine from the other individual for $40. Defendant admitted that he smoked methamphetamine and had last used it two days earlier.

DISCUSSION

Defendant contends the courts misreading of the instruction informing the jury that it must rather than may rely on defendants statements to the investigating officer in determining whether to convict defendant resulted in reversible error. The People maintain that the error was harmless. We agree with the People.

[T]he misreading of a jury instruction does not warrant reversal if the jury received the correct written instructions. [Citation.] (People v. Prieto (2003) 30 Cal.4th 226, 255; People v. Osband (1996) 13 Cal.4th 622, 687.) We presume that the jurors were guided by the written form of instructions given them. (Osband, at p. 687.)

Here, although the court misspoke when it informed the jury that it must use defendants statements when determining whether to convict him, the written instruction given the jury correctly noted that it may only rely on defendants out-of-court statements to convict (him) if [it] conclude[s] that other evidence shows that the charged crime or a lesser included offense was committed. (Italics added.) (CALCRIM No. 359.) We presume the jury followed the written instruction rather than the oral misrepresentation; thus, the error was harmless for that reason.

Nevertheless, to the extent we are required to conduct a harmless error analysis beyond ensuring that the correct written instruction was given, we hold that the error was harmless beyond a reasonable doubt. (People v. Prieto, supra, 30 Cal.4th at p. 255.) Here, after seeing the patrol vehicle, defendant walked away quickly from what appeared to the officer as a hand-to-hand drug transaction or other criminal activity. The officers followed defendant in their patrol vehicle. The patrol vehicles headlights were on. The apartment complex was lighted. Officer Pitette also believed he had the spotlight on defendant. Officer Pitettes partner testified that the spotlight was on. Defendant was the only person on the street. There was no other vehicle traffic on the street. There was no other debris near where the bindle landed; the street was clean. Officer Pitette saw a white object fall or be thrown to the ground in front of defendant. Officer Pitette testified that he was sure that that bindle was the white object that came from [defendants] body. Officer Pitette was only 10 to 15 feet away from defendant when the object was dropped. Indeed, the officer testified that he had never heard of a bindle of methamphetamine found unattended on the ground and that such a finding would surprise him. Thus, the officers testimony, which the jury had no reason to question, provided overwhelming evidence of defendants guilt. We conclude, contrary to defendants contention, that the jury could not reasonably have believed, even if properly orally instructed, that the bindle had already been previously discarded or lost on the street prior to defendant passing by.

Furthermore, demonstrating the harmlessness of the misspoken instruction, the court properly instructed the jury, both orally and in writing, with CALCRIM No. 358: You have heard evidence that the defendant made an oral statement before the trial. You must decide whether or not the defendant made any such statement, in whole or in part. If you decide the defendant made such a statement, consider the statement, along with all the other evidence, in reaching your verdict. It is up to you to decide how much importance to give to such a statement. Likewise, only one word of its oral instruction with CALCRIM No. 359 was incorrect: You must consider with caution any evidence of a defendants oral statement unless it was written or otherwise recorded. [] The defendant may not be convicted of any crime based on his out-of-court statements alone. You must rely on the defendants out-of-court statements to convict him if you conclude that other evidence shows that the charged crime was committed. (Italics added.) As noted above, the written instruction given the jury was correct. Thus, the jury could not reasonably have interpreted the instructions, considered as a whole, to mean that they must believe the officers account of defendants postarrest statements. (People v. Yoder (1979) 100 Cal.App.3d 333, 337.)

Finally, nothing in the courts misstatement diminished the prosecutions burden of proof. The court properly instructed the jury that it was the prosecutions burden to prove beyond a reasonable doubt that defendant was guilty of the charged offense. (CALCRIM Nos. 220, 355, 359.) Both sides touched on the burden of proof in their closing arguments. Thus, there is nothing in the record to reasonably suggest the jury determined defendants guilt by a lower threshold than that required by law.

DISPOSITION

The trial court is directed to correct the sentencing minute order of November 7, 2008, and the abstract of judgment to reflect that imposition of sentence on count 1 was doubled pursuant to defendants prior strike conviction. The trial court is further directed to forward certified copies of the corrected minute order and abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ MILLER

J.

We concur:

/s/ McKINSTER

Acting P. J.

/s/ RICHLI

J.

Publication courtesy of California free legal advice.

Analysis and review provided by Carlsbad Property line attorney.

San Diego Case Information provided by www.fearnotlaw.com

^[1] Although the sentencing minute order correctly reflects that defendant was sentenced pursuant to Penal Code section 667, subdivision (e)(1), it incorrectly enumerates the low term on count 1 as two years eight months, i.e., what the actual low term of 16 months for a violation of Health & Safety Code section 11377, subdivision (a), would be when doubled pursuant to a true finding on the prior strike allegation. Similarly, the abstract of judgment shows that the court sentenced defendant to the low term of two years eight months without reflecting that his sentence was doubled pursuant to the prior strike. The trial courts oral statement of the sentence was correct. Thus, we shall order the trial court to correct the minute order and abstract of judgment to reflect the oral imposition of a sentence of the low term of 16 months on count 1, doubled pursuant to the strike prior. (See People v. Mitchell (2001) 26 Cal.4th 181, 185 [appellate courts inherent power to correct clerical errors].)

^[2] Although the officers testified the vehicle was unmarked, Officer Pitette testified that in a bright light one could see the interior light bar on the vehicle, both uniformed officers inside, and police written on the side of the vehicle.

^[3]Miranda v. Arizona (1966) 384 U.S. 436.