P. v. Potter
Filed 2/7/13 P. v. Potter CA2/3
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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publication or ordered published for purposes of rule 8.1115
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
PAMELA ANN POTTER,
Defendant and Appellant.
B236879
(Los Angeles
County
Super. Ct.
No. VA111378)
APPEAL from a judgment of the Superior Court of
County, Philip H. Hickok, Judge. Affirmed.
Maureen L. Fox, under appointment
by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette,
Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General,
Steven D. Matthews and Peggy Z. Huang, Deputy Attorneys General, for
Plaintiff and Respondent.
INTRODUCTION
A jury
found defendant and appellant Pamela Ann Potter guilty of transporting
methamphetamine, a controlled substance, and of possessing methamphetamine for
sale. Her sole contention on appeal is
that instructing the jury with CALCRIM No. 362, consciousness of guilt,
violated her due process rights. Being bound by California Supreme Court
authority rejecting that contention, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
A. Prosecution
case.
On June 24, 2009, Los Angeles County Deputy Sheriff Jeremy
Draper conducted a traffic stop of Potter, who had made an unsafe lane
change. As the deputy sheriff approached
the car, Potter got out of it and tried to throw a baggy into some bushes. Believing that the baggy contained narcotics,
Draper detained her and put the baggy into his pocket.
In Potter’s car, Draper also found two
larger plastic baggies containing an off-white crystalline substance and 19
smaller plastic baggies.
Potter told the deputy sheriff that
the baggies contained dog medicine.
Having lost the original packaging for the medicine, she kept the
medicine in the plastic bags. She kept
jewelry in the smaller bags, and the deputy sheriff did find loose jewelry in
the car. The last time Potter used
methamphetamine was seven months before.
A senior criminalist, who tested the substance in the
baggy Potter tried to discard, testified that it contained 0.25 grams of
methamphetamine. The contents of the
other two baggies collectively contained 10.89 grams of methamphetamine. In addition to methamphetamine, the substance
contained dimethylsulfone, a nontoxic cutting agent sometimes found with
methamphetamine to produce a “higher yield of controlled substance product.â€
The People’s expert witness, Deputy
Sheriff James Copplin, testified, under a hypothetical modeled on the facts of
the case, that in his opinion the methamphetamine was possessed for sale.
B.
Laboratory scientist, Michael Dean
Henson, also tested the substance found in the baggie retrieved from
Potter. It tested negative for
methamphetamine on two types of tests.
C.
On July 27, 2010, a jury found Potter guilty of count 1,
transporting a controlled substance, methamphetamine (Health & Saf. Code, §
11379, subd. (a)), and of count 2, possessing for sale a controlled
substance, methamphetamine (Health & Saf. Code, § 11378).
The trial court sentenced Potter,
on October 21, 2011, to
the high term of three years on count 2 and to an additional three years based
on prior convictions to which Potter admitted.
DISCUSSION
A. Instructing the jury with CALCRIM No.
362 did not violate Potter’s due process rights.
Potter’s sole claim on appeal is the
trial court violated her due process rights by instructing the jury with
CALCRIM No. 362. Under California
Supreme Court authority rejecting this claim, we disagree.
At trial, Deputy Sheriff Draper
testified that Potter told him the baggies contained dog medicine. That the substance was not methamphetamine
was also her defense at trial. The
prosecution, however, introduced evidence that the substance was
methamphetamine. Over Potter’s
objection, the jury was therefore instructed:
“ ‘If the defendant made [a] false or [] misleading statement before
this trial which related to the charged crimes, knowing the statement was false
or intending to mislead, that conduct may show she was aware of the guilt of
the crime, and you may consider that in determining her guilt. If you conclude the defendant made this
statement, it is then up to you to decide its meaning, as well as its
importance. However, evidence that the
defendant made such a statement cannot prove guilt in and of itself.’ †It is proper to give a consciousness of guilt
instruction like CALCRIM No. 362 if it is supported by evidence of false or misleading
pretrial statements. (
1228, 1254.)
Potter, however, contends that the
instruction improperly invites the jury, first, to convict upon proof less than
proof beyond a reasonable doubt and, second, to engage in circular
reasoning. As Potter acknowledges, our
California Supreme Court has repeatedly rejected these contentions in
connection with instructions on consciousness of guilt. (See, e.g., People v. Bacon (2010) 50 Cal.4th 1082, 1108; People v. Jurado (2006) 38 Cal.4th 72, 125-126;
69, 100; People v. Kipp (1998) 18
Cal.4th 349, 375; People v. Jackson (1996)
13 Cal.4th 1164, 1223-1226.)
Jackson expressly rejected the first notion that a consciousness of
guilt instruction lessens the prosecution’s burden of proof: the instruction makes “clear to the jury that
certain types of deceptive or evasive behavior on a defendant’s part could
indicate consciousness of guilt, while also clarifying that such activity was
not of itself sufficient to prove a defendant’s guilt, and allowing the jury to
determine the weight and significance assigned to such behavior. The cautionary nature of the instructions
benefits the defense, admonishing the jury to circumspection regarding evidence
that might otherwise be considered decisively inculpatory.†(People
v. Jackson, supra, 13 Cal.4th at p. 1224.)
Potter’s
second argument is the instruction allowed the jury to indulge a circular logic
to this effect: if the jurors did not
believe that the substance was possessed as dog medicine and the extra baggies
were for jewelry storage, then the jurors could “use that finding to infer
consciousness of guilt, and then use your inference of consciousness of guilt
to strengthen your view that [Potter] possessed those items not for the purposes
she claims but for the purpose of sale of methamphetamine.â€
In support of her argument, Potter
cites U.S. v. Durham (10th Cir. 1998)
139 F.3d 1325, 1332, where the court considered a similar consciousness of
guilt instruction. The defendant denied participating
in drug transactions, and the court said:
“The only way the jury could find that the statements at issue in this
case were false would be to conclude that Durham
was a member of Montgomery’s
cocaine distribution conspiracy. That
conclusion would necessarily render irrelevant consciousness of guilt. This
circularity problem recurs whenever a jury can only find an exculpatory
statement false if it already believes other evidence directly establishing
guilt. Under such circumstances, it is
error to give a false exculpatory statement instruction.†(Ibid.;
see also U.S. v. Littlefield (1st
Cir. 1988) 840 F.2d 143, 149 [“In effect, the jurors were told [based on a
consciousness of guilt instruction] that once they found guilt, they could find
consciousness of guilt, which in turn is probative of guilt. This is both circular and confusingâ€].)
We are not,
however, bound by lower federal court decisions. (People
v. Crittenden (1994) 9 Cal.4th 83, 120, fn. 3.) Moreover, our California Supreme Court has
also rejected this circularity argument.
(
1108 [rejecting contention that CALJIC No. 2.03, CALCRIM No. 362’s predecessor,
is logically circular].)
Not being
at liberty to ignore Supreme Court precedent, we must therefore reject Potter’s
contention. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450,
455.)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
ALDRICH,
J.
We concur:
KLEIN,
P. J.
KITCHING,
J.
Sheriff Draper did not place the baggy into an evidence folder until he arrived
at the police station, an hour and a half after he stopped Potter.
