Opinion
NOT TO BE PUBLISHED
Superior Court County of Ventura Super. Ct. No. 2004025222, Roland N. Purnell, Judge
Susan S. Bauguess, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., Supervising Deputy Attorney General, Jaime L. Fuster, Deputy Attorney General, for Plaintiff and Respondent.
PERREN, J.
Appellant John Howard Harding was charged with poisoning (Pen. Code, § 347, subd. (a)(1)) (count 1) and administering a controlled substance (Health & Saf. Code, § 11379, subd. (a)) (count 2). Appellant pled not guilty. A jury found him guilty as charged in count 1, but it was unable to reach a verdict as to count 2 and the court declared a mistrial as to that count. The court denied probation, imposed the midterm of four years, ordered appellant to pay specified fines and fees, and granted 52 days of presentence custody credit. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Prosecution Evidence
Appellant married Terri Schnacker on February 21, 2004. On May 29, 2004, after Schnacker arrived home from work, appellant gave her an uncapped bottle of water. She drank the entire bottle even though she had not asked him for it. She thought it had a metallic taste. About an hour later, Schnacker became ill and started to experience anxiety, paranoia, hallucinations, heart palpitations and insomnia. Sometime during the night, appellant gave her more water that also had a metallic taste.
The next day, appellant and Schnacker went to Lake Cachuma with her family. During the day, Schnacker had some drinks that had a metallic taste. Around 10:00 p.m., they returned to their Simi Valley home. Appellant gave Schnacker a beer, which, again, had a metallic taste. Schnacker began hallucinating and hearing voices. Schnacker, over the objection of appellant, drove to her sisters' home and told them she was not feeling well. They suggested she go to the hospital.
Schnacker was treated at St. Joseph Hospital emergency room in Burbank at 11:50 p.m. that evening. She told the treating physician about her hallucinations and stated she believed someone slipped something into her drink. She was given a sedative and antipsychotic medications. She returned home the next morning. Her urine test results were positive for the presence of amphetamine.
Shortly after the weekend, appellant telephoned Schnacker's parents. He told Schnacker's mother that he had put a pill in Schnacker's water because he wanted to spend more time with her. In subsequent telephone calls to Schnacker's mother, he admitted drugging Schnacker and apologized. He also left a message for Schnacker's sister on an answering machine claiming that "it was an accident," that he did not "know how that ended up in her drink" and that he was "very sorry for it."
Appellant also called his brother and told him that after he and Schnacker returned from the lake, he had placed Benzedrine, from an old prescription, in Schnacker's beer because he wanted her to stay up with him. He told his brother he wanted to spend more time with Schnacker.
Appellant also told his mother that he had placed "some drugs" in a drink and given it to Schnacker because he wanted to spend time with her. He stated he had used a prescription drug. He repeated his admission in a subsequent telephone call to his mother. In a third call, he apologized for what he had done to Schnacker. In a fourth call, appellant said the drugs he used were from an old prescription.
In June 2004, Schnacker received several letters from appellant. In one letter, he said, "I gave you some pills to keep you awake because I never get a chance to spend time with you. I did not do that to make you sick." He also said, "I know . . . dropping that in your drink was wrong . . . . I had no intentions of making you sick." In another letter, he said, "I don't want to cause any harm to you in any way. I know I was responsible for what happened to you. I'm very sorry for the grief I caused you and . . . [will] never do it again."
The emergency room physician who treated Schnacker testified that Schnacker's symptoms were consistent with somebody putting Benzedrine or another amphetamine in her drink. The positive urine test results confirmed her opinion that amphetamines, such as Benzedrine, had caused Schnacker's symptoms.
A forensic scientist in the toxicology section of the Ventura County Sheriff's Crime Lab testified as to the symptoms caused by Benzedrine and other amphetamines. She stated that Benzedrine was not available in the United States at the time of trial. Benzedrine could be in the form of a pill soluble in water and beer. Usually, the pill would dissolve and enter the bloodstream within 20 to 30 minutes of ingestion, but could take a couple of hours for the drug to be fully absorbed. The effects of an involuntary Benzedrine intoxication could last between 4 and 11 hours. She reviewed medical and police reports and opined that the evidence was consistent with Schnacker being drugged with a central nervous system stimulant such as Benzedrine or methamphetamine.
Appellant presented no evidence.
DISCUSSION
Alleged Instructional Error
To support a conviction for violation of Penal Code section 347, the prosecution must prove that appellant (1) "willfully mingle[d] any poison or harmful substance with any . . . drink" and (2) "[knew] or should have known that the same would be taken by any human being to his or her injury . . . ." (§ 347, subd. (a)(1).)
All further statutory references are to the Penal Code.
Appellant requested that the trial court identify the "poison" or "harmful substance" as Benzedrine when instructing the jury as to count 1. The court refused and instructed the jury that it had to be proven that appellant "willfully mingled any poison or harmful substance with any drink" and he "knew or should have known the same (poison or harmful substance) would be taken by any human being to her injury."
Appellant asserts the trial court's refusal to instruct the jury that the "poison" or "harmful substance" was Benzedrine constituted reversible error. He argues that without specifying Benzedrine as the poison given to Schnacker, the jury could have convicted him of using another drug—e.g., methamphetamine or amphetamine—to poison his wife. He asserts this removed from the jury an essential element of the offense and reduced the prosecution's burden of proof. He also argues that the mistrial on count 2 showed the jury was confused by the failure to specifically identify the "harmful substance" in count 1. The arguments are without merit.
Where, as here, there is no dispute as to the nature of the harmful substance, a jury instruction need not identify the substance by name. In People v. Perry (1969) 271 Cal.App.2d 84, defendant challenged a jury instruction defining the crime of possession of a controlled substance by using the generic term "narcotic" instead of referring to heroin. The court rejected the argument stating: "Since there was no evidence to show that the defendant might be guilty of the possession of any narcotic substance other than heroin, no error can be predicated on the reading of the instructions in general terms. The jury were told that heroin was a narcotic." (Id. at p. 117.)
Here also there is no dispute in this case. There is no dispute as to substance. The jury heard testimony from several witnesses that appellant admitted giving Benzedrine to Schnacker. The doctor who treated Schnacker confirmed that her symptoms were consistent with ingestion of an amphetamine like Benzedrine. There is no reasonable possibility that the jury was confused by the omission of "Benzedrine" in the instruction.
The fact that the jury did not reach a verdict as to count 2 "'may show no more than jury lenity, compromise, or mistake, none of which undermines the validity of a verdict.'" (People v. Abilez (2007) 41 Cal.4th 472, 513.)
Substantial Evidence Supports the Jury Verdict
In evaluating the sufficiency of the evidence on appeal, we must view the whole record in the light most favorable to the judgment below and presume in support of the judgment every fact which the trier of fact could reasonably deduce from the evidence. (People v. Johnson (1980) 26 Cal.3d 557, 578.) Before the judgment may be set aside for insufficiency of evidence, it must clearly be shown that upon no hypothesis whatever is there substantial evidence. (People v. Redmond (1969) 71 Cal.2d 745, 755.) Substantial evidence is evidence that is reasonable, credible, of solid value and reasonably inspires confidence in the judgment. (People v. Bailey (1991) 1 Cal.App.4th 459, 462.) The testimony of a single witness may constitute substantial evidence sufficient to support the jury's finding. (People v. Vega (2005) 130 Cal.App.4th 183, 190.)
There was substantial evidence presented to the jury to support a conviction for violating section 347, subdivision (a)(1). Schnacker testified she did not voluntarily take any illegal drug or medication containing amphetamine; that she drank a bottle of water given to her by appellant on May 29, 2004; that the water had a metallic taste; that within one hour of drinking the water, she started to experience anxiety, paranoia, hallucinations and heart palpitations, and was unable to fall asleep that night.
Appellant confessed to his mother, his brother, Schnacker's mother, Schnacker's sister and Schnacker herself that he placed Benzedrine or amphetamine in Schnacker's drink to keep her awake. Urine test results were positive for the presence of an amphetamine in her body, and experts testified her symptoms were consistent with amphetamine poisoning. This is sufficient.
The Court Properly Instructed the Jury with CALCRIM No. 220
Appellant asserts he suffered prejudicial error because the trial court instructed the jury with CALCRIM No. 220. He asserts the instruction is flawed because it imposes an affirmative duty on defendant to demonstrate a lack of evidence and to provide actual doubt. The assertion is without merit.
The trial court instructed the jury with CALCRIM No. 220 as follows: "The fact that a criminal charge has been filed against the defendant is not evidence that the charge is true. You must not be biased against the defendant just because he has been arrested, charged with a crime, or brought to trial. [¶] A defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove each element of a crime beyond a reasonable doubt. Whenever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt. [¶] 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 proved their case beyond a reasonable doubt, you must impartially compare and consider all the evidence that was received throughout the entire trial. Unless the evidence proves the defendant guilty beyond a reasonable doubt, he is entitled to an acquittal and you must find him not guilty."
We agree with several recent opinions rejecting the argument made by appellant. In People v. Westbrooks (2007) 151 Cal.App.4th 1500, 1509, the court said: "The sentence to which [defendant] objects, like the remainder of CALCRIM No. 220, merely instructs the jury that it must consider only the evidence presented at trial in determining whether the People have met their burden of proof. . . . The instruction does not tell the jury that it may not consider any perceived lack of evidence in determining whether there is a reasonable doubt as to a defendant's guilt." (See also People v. Rios (2007) 151 Cal.App.4th 1154, 1157 ["argument that 'CALCRIM 220 shifted the burden to [defendant] to prove the existence of reasonable doubt' is meritless"]; and see People v. Guerrero (2007) 155 Cal.App.4th 1264, 1268 ["The instruction neither lowers the prosecution's standard of proof nor raises the amount of doubt the jury must have in order to acquit a defendant. [¶] . . . CALCRIM No. 220 instructs the jury to acquit in the absence of evidence"].)
Like the courts in Westbrooks, Rios and Guerrero, we conclude the challenged instruction did not prevent the jury from considering whether the prosecution failed to present sufficient evidence to sustain its burden of proof. Rather, the jury was likely "to understand by this instruction the almost self-evident principle that the determination of defendant's culpability beyond a reasonable doubt . . . must be based on a review of the evidence presented." (People v. Hawkins (1995) 10 Cal.4th 920, 963, abrogated on another ground in People v. Lasko (2000) 23 Cal.4th 101, 110.)
The judgment is affirmed.
We concur: GILBERT, P.J., YEGAN, J.