Opinion
NOT TO BE PUBLISHED
APPEALS from judgments of the Superior Court of Kern County Nos. BF128108A & BF128108B John R. Brownlee, Judge.
Rex Williams, under appointment by the Court of Appeal, for Defendant and Appellant Onel Madrigal.
Grace Lidia Suarez, under appointment by the Court of Appeal, for Defendant and Appellant Jeronimo Arreola.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Sarah J. Jacobs, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
KANE, J.
Kern County Sheriff’s Deputies executed a search warrant of property in the Bear Mountain area of Kern County and discovered a large marijuana farm that included over 2, 000 plants. Appellants Jeronimo Arreola and Onel Madrigal were arrested at the scene and spoke to one of the deputies, Deputy Jose Sanchez. Arreola said he was just earning some money for his family in Mexico. Madrigal said the same thing, but also disclosed what “they” were expected to do in planting and cultivating the marijuana and the amount of money likely to be earned when it was sold. Appellants were tried together on two counts: (1) possession of marijuana for sale (Health & Saf. Code, § 11359); and (2) cultivating, harvesting or processing marijuana (Health & Saf. Code, § 11358). In a pretrial hearing, the trial court addressed the concern of Arreola that Madrigal’s statement to Deputy Sanchez would be used against him (Arreola). The trial court instructed Deputy Sanchez that when testifying about what Madrigal told him, the pronouns should be edited to reflect only what Madrigal said about himself (i.e., avoid “they” or “we”). In the course of his testimony, Deputy Sanchez inadvertently used the plural pronoun in a few instances when describing Madrigal’s statement, but the deputy quickly corrected himself each time that happened. After each party concluded its case, the trial court instructed the jury with respect to count 1 that the intent element would be satisfied if appellants had a specific intent to personally sell the marijuana or a specific intent that someone else would sell it. Appellants were convicted on both counts.
Both have appealed. Arreola’s appeal raises the issue of whether the admission of Madrigal’s statement to Deputy Sanchez violated his (Arreola’s) Sixth Amendment confrontation rights. Both appellants claim that, as to count 1, there was insufficient evidence of a specific intent to personally sell the marijuana and that the jury was incorrectly instructed on that specific intent requirement. Both appellants also contend that the trial court failed to instruct the jury on a lesser included offense and that it committed sentencing error by not applying Penal Code section 4019 retroactively regarding the calculation of conduct credits. We find no prejudicial error and reiterate what we have said before—that section 4019 does not apply retroactively. Accordingly, we affirm the judgment of the trial court against both appellants.
Unless otherwise indicated, all further statutory references are to the Penal Code.
FACTS AND PROCEDURAL BACKGROUND
On June 2, 2009, Kern County Sheriff’s Deputy Michael Booker obtained a search warrant for an area on Bear Mountain, where he was involved in an investigation. He and Deputy Jose Sanchez traveled that same day to Bear Mountain. When they came to the area in question, they saw a marijuana farm with 2, 022 marijuana plants. Deputy Booker estimated that the plants would be mature within one and one-half months, and that each plant would yield about one pound of marijuana, valued at $4,000 per pound. Deputy Booker walked along the edge of the marijuana farm and located a camp consisting of a single nylon dome tent and a kitchen area with a propane stove. Appellants Arreola and Madrigal were discovered inside the tent and were arrested by Deputy Booker. The items found inside the tent included a large supply of canned goods, a cell phone, a loaded.22-caliber semiautomatic handgun and ammunition.
Deputy Sanchez spoke briefly with appellants after they were arrested. Arreola asked Deputy Sanchez to “please let him go because he was just there trying to earn some money to support his family in Mexico.”
Madrigal gave Deputy Sanchez a more detailed statement. He told Deputy Sanchez that he was there to earn some money for his family in Mexico because they were having financial problems. He said that earlier in 2009, he had been offered the job to come to the United States to cultivate marijuana and that he could earn quite a bit of money doing so. Madrigal said he was dropped off by two individuals with supplies and a cell phone and told to hike into the mountains and look for a good location to cultivate marijuana. Madrigal did so, and then started a nursery and put in a water line to grow the marijuana plants. He said he first met Arreola at the location of the marijuana farm. Madrigal said the crop would be mature in one more month, and he expected to make around $20,000 for the season, after the marijuana was cultivated and sold.
When Deputy Sanchez asked Madrigal about the gun found in the tent, he said the gun was delivered with the cultivating supplies and groceries. He would receive a call on the cell phone specifying the date and time of a delivery to a designated drop-off point.
Deputy Booker testified that based on his training and experience, the marijuana plants in this case were cultivated for sale, not personal use. He explained that in his experience, “plants of that amount are for sales.” He also explained that it is not uncommon for hired people to work the marijuana garden, to harvest it, to grow the plants and to protect the garden, if needed.
On September 2, 2009, Arreola and Madrigal were tried by a jury in a joint trial and were found guilty on the two counts charged against them; namely, count 1 for possession of marijuana for sale (Health & Saf. Code, § 11359), and count 2 for cultivation, harvesting or processing marijuana (Health & Saf. Code, § 11358). Each count included an allegation that appellants committed the offenses while armed with a firearm (§ 12022, subd. (a)(1)), and the jury found said firearm enhancements to be true. On October 1, 2009, the trial court sentenced Arreola and Madrigal to 16 months on count 1, plus an additional one year for the firearm enhancement. The trial court stayed the sentence on count 2. Both appellants timely appealed, each filing separate briefs.
DISCUSSION
I. The Admission of Codefendant Madrigal’s Extrajudicial Statement Did Not Violate Arreola’s Confrontation Rights
Arreola contends that the convictions against him must be reversed because the trial court prejudicially erred in allowing the statements of codefendant Madrigal to be used against him at trial. Allegedly, the admission of Madrigal’s statement that was presented in the testimony of Deputy Sanchez violated Arreola’s Sixth Amendment right of confrontation. We now address that contention.
A. The Record
On August 31, 2009, prior to the commencement of trial, the trial court held an Evidence Code section 402 hearing and addressed concerns that Madrigal’s statements to Deputy Sanchez could be used against Arreola during trial. Deputy Sanchez testified at the evidentiary hearing and informed the trial court of the specifics of Madrigal’s statement to him, including that a significant portion of Madrigal’s account described Arreola as a coparticipant. This led to the following comments and ruling by the trial court:
“THE COURT: … Clearly, Mr. Arreola’s statement to Officer Sanchez was that he was there just trying to earn money. [¶] It’s Mr. Madrigal’s statements that seem to implicate or incriminate Mr. Arreola. And the question is can Mr. Madrigal’s statements be adequately edited to excise the portions incriminating [to] Mr. Arreola[?] [¶] … [¶]
“THE COURT: … [¶] Mr. [Prosecutor], I agree with you that when Arreola says he’s just there trying to earn money, that that kind of correlates with everything Madrigal is saying—that they were there and, you know, the drop-offs and starting with the seeds and then moving on. [¶] On the other hand, he does keep saying ‘they, ’ ‘they, ’ ‘they, ’ and Arreola says, ‘I was just there to earn money.’ [¶] While I think it’s a reasonable inference, I would feel much better here if we went ahead and when Officer Sanchez was speaking about his questioning of Mr. Madrigal, that we keep it—instead of ‘they, ’ we keep it with ‘I.’”
The trial court then instructed Deputy Sanchez to use the singular pronoun in testifying to what was said by Madrigal:
“THE COURT: … Officer Sanchez, …when we go through the parts about your conversation with Mr. Madrigal, it’s imperative that you keep it that ‘he told me, ’ that ‘he did this’ and ‘he did that.’ Nothing about ‘we’ or ‘me’ and ‘Mr. Arreola.’
“[DEPUTY SANCHEZ]: Yes, Your Honor.”
Notwithstanding the trial court’s instructions, in Deputy Sanchez’s testimony at trial, he inadvertently used the word “they” in the following four instances:
“[THE PROSECUTOR]: Now, did Mr. Madrigal tell you what he did to get the marijuana growing?
“[DEPUTY SANCHEZ]: Yes, he did.
“[THE PROSECUTOR]: What did he say he did?
“[DEPUTY SANCHEZ]: Mr. Madrigal said the first thing they did—I’m sorry. [¶] The first thing he did when he arrived at the marijuana garden site was to start a nursery. [¶] Mr. Madrigal explained that they took—that he took marijuana seeds and planted the seeds into clear plastic sandwich bags which were filled with potting soil. [¶] … [¶]
“[THE PROSECUTOR]: Now, did you ask him how he connected to getting supplies and things that were delivered to him?
“[DEPUTY SANCHEZ]: Yes.
“[THE PROSECUTOR]: What did he tell you?
“[DEPUTY SANCHEZ]: Mr. Madrigal told me that when he arrived, when he was first dropped off at the site of the marijuana garden, he was provided with a cell phone, along with other supplies. [¶] Mr. Madrigal told me that they would—that he would receive supplies approximately once a month. [¶] … [¶]
“[THE PROSECUTOR]: Was he able to give you the telephone number of the people who called and said where they’d leave the drop-off?
“[DEPUTY SANCHEZ]: No.
“[THE PROSECUTOR]: Why not?
“[DEPUTY SANCHEZ]: Mr. Madrigal told me whenever they—whenever he received a telephone call from the person who was arranging for the supply drop that the telephone number would always show up as private on his cell phone.” (Italics added.)
Arreola contends that Madrigal’s statement, especially the above-quoted instances in which Deputy Sanchez said “they” instead of “he, ” violated his confrontation rights under the Sixth Amendment to the federal Constitution. In addressing this contention, we first summarize the applicable law.
B. Summary of Law
“A criminal defendant has a right, guaranteed by the confrontation clause of the Sixth Amendment to the United States Constitution, to confront adverse witnesses. The right to confrontation includes the right to cross-examination. [Citation.] A problem arises when a codefendant’s confession implicating the defendant is introduced into evidence at their joint trial. If the declarant codefendant invokes the Fifth Amendment right against self-incrimination and declines to testify, the implicated defendant is unable to cross-examine the declarant codefendant regarding the content of the confession.” (People v. Lewis (2008) 43 Cal.4th 415, 453.)
The question of whether a codefendant’s confession at a joint trial is admissible was addressed in Bruton v. United States (1968) 391 U.S. 123 (Bruton). “Broadly stated, the rule of Bruton v. United States—which is rooted in the confrontation clause and accordingly governs state as well as federal prosecutions [citation]—declares that a nontestifying codefendant’s extrajudicial self-incriminating statement that inculpates the other defendant is generally unreliable and hence inadmissible as violative of that defendant’s right of confrontation and cross-examination, even if a limiting instruction is given. [Citation.]” (People v. Anderson (1987) 43 Cal.3d 1104, 1120.) As explained by the court in Bruton: “[T]here are some contexts in which the risk that the jury will not, or cannot, follow instructions is so great, and the consequences of failure so vital to the defendant, that the practical and human limitations of the jury system cannot be ignored. [Citations.] Such a context is presented here, where the powerfully incriminating extrajudicial statements of a codefendant, who stands accused side-by-side with the defendant, are deliberately spread before the jury in a joint trial.” (Bruton, supra, at pp. 135-136.) However, the aforesaid rule of Bruton extends only to extrajudicial statements of a codefendant that are “‘powerfully incriminating’” and “‘facially incriminating’” of the nondeclarant defendant. (People v. Fletcher (1996) 13 Cal.4th 451, 455-456, citing Richardson v. Marsh (1987) 481 U.S. 200, 207-208.)
Three years before Bruton, the California Supreme Court came to a similar conclusion on state law grounds in People v. Aranda, but also concluded that the codefendant’s confession may be introduced at the joint trial if it can be edited to eliminate references to the defendant without prejudice to the confessing codefendant. (People v. Aranda (1965) 63 Cal.2d 518, 530-531 (Aranda); see People v. Lewis, supra, 43 Cal.4th at p. 453.) However, “‘[e]diting a nontestifying codefendant’s extrajudicial statement to substitute pronouns or similar neutral terms for the defendant’s name will not invariably be sufficient to avoid violation of the defendant’s Sixth Amendment confrontation rights.’ [Citation.] If a codefendant’s confession cannot be so edited, severance is required. [Citations.]” (People v. Burney (2009) 47 Cal.4th 203, 231.) “‘[T]he sufficiency of this form of editing must be determined on a case-by-case basis in light of the statement as a whole and the other evidence presented at the trial.’” (People v. Lewis, supra, at p. 454, quoting People v. Fletcher, supra, 13 Cal.4th at p. 468.) “The editing will be deemed insufficient to avoid a confrontation violation if, despite the editing, reasonable jurors could not avoid drawing the inference that the defendant was the coparticipant designated in the confession by symbol or neutral pronoun.” (People v. Fletcher, supra, 13 Cal.4th at p. 456.)
C. Application
As noted, Arreola claims that his confrontation rights under the Sixth Amendment were violated when Deputy Sanchez testified of Madrigal’s extrajudicial statement. We disagree for several reasons. First, Arreola did not preserve his Aranda-Bruton claim, since he failed to object during the trial. When Madrigal’s statement was introduced at trial during Deputy Sanchez’s testimony, and even when the four instances occurred in which Deputy Sanchez used the pronoun “they, ” no objection was made. Due to his failure to make a timely and specific objection in the trial court on the ground now raised on appeal, Arreola’s contention is forfeited. (People v. Mitcham (1992) 1 Cal.4th 1027, 1044 [challenge under Aranda-Bruton is “deemed waived” due to failure to object].)
Second, on balance, we find that no Aranda-Bruton error occurred in this case. The testimony complained of did not “‘powerfully’” or “‘facially’” implicate Arreola. (People v. Fletcher, supra, 13 Cal.4th at pp. 455-456.) It merely conveyed what Madrigal said that “he” (Madrigal) did, and it was not necessary to infer that everything Madrigal did, Arreola must also have done. When discussing Madrigal’s statement, Deputy Sanchez made it plain that it referred to Madrigal alone, since in the few instances that he inadvertently said “they, ” he immediately corrected himself and stressed that Madrigal said “he.” The jury would have no reason to ignore the prompt self-corrections and clarifications made by Deputy Sanchez, and in all other respects the statement was appropriately edited so that it did not include or inculpate Arreola.
Third, even if error occurred, it was not prejudicial. It is well established that Aranda-Bruton error is not reversible per se, but rather is scrutinized under the harmless-beyond-a-reasonable-doubt standard of Chapman v. California (1967) 386 U.S. 18, 24. (People v. Burney, supra, 47 Cal.4th at p. 232; People v. Anderson, supra, 43 Cal.3d at p. 1128.) “In determining whether improperly admitted evidence so prejudiced a defendant that reversal of the judgment of conviction is required, we have observed that ‘if the properly admitted evidence is overwhelming and the incriminating extrajudicial statement is merely cumulative of other direct evidence, the error will be deemed harmless.’ [Citation.]” (People v. Burney, supra, at p. 232, quoting People v. Anderson, supra, at p. 1128.) Here, even if the jury may have linked Arreola to the events described in Madrigal’s statement, the statement itself was not the impetus for the jury’s decision to convict Arreola. Other facts common to both Madrigal and Arreola overwhelmingly and independently established Arreola’s guilt of the crimes charged, including that he and Madrigal were the only two people living at a marijuana farm having over 2, 000 plants in a remote mountain area; both men were found in the tent where the gun and ammunition were located; and both admitted to the deputies that they were trying to earn some money. For all of these reasons, Arreola’s challenge under Aranda-Bruton fails.
II. Sufficient Evidence Supported Convictions of Possession of Marijuana For Sale
Both appellants contend on appeal that there was insufficient evidence to support their convictions on count 1 for possession of marijuana for sale. The applicable statute specifically forbids the possession “for sale” of marijuana (Health & Saf. Code, § 11359). The thrust of appellants’ argument is that in order to be convicted on count 1, it was necessary for the prosecution to show that appellants intended to personally sell the marijuana. However, the trial court instructed the jury that it was sufficient if appellants intended for another person to sell the marijuana. Appellants claim the trial court erroneously defined the intent element, but also argue the evidence was insufficient to convict them under either definition.
Our approach will be to answer in logical order the two questions raised by appellants’ appeal: First, what is the correct definition of the intent element of the crime of possession for sale of marijuana? Second, once we have defined that intent element, was there substantial evidence showing appellants possessed such an intent?
We believe the first question was correctly resolved in People v. Parra (1999) 70 Cal.App.4th 222 (Parra). The exact issue under consideration in that case was whether Health and Safety Code section 11351, which prohibits possession of a controlled substance for sale, requires “that the defendant have the specific intent to sell the controlled substance personally.” (Parra, supra, at p. 226.) In holding that it did not, Parra agreed with the reasoning articulated in People v. Consuegra (1994) 26 Cal.App.4th 1726, 1732 (Consuegra), at footnote 4, that there is no meaningful distinction in culpability between the individual who holds the drugs to sell personally and the one who holds them for others to sell. (Parra, supra, at p. 226.) Moreover, “[o]n its face, [the statute] does not state that the defendant has to have the specific intent to sell the controlled substance personally, only that it be ‘“for sale.”’ [Citation.]” (Id. at pp. 226-227.) Parra concluded that in order to be convicted under Health and Safety Code section 11351, “the defendant needs to either (1) possess the specific intent to sell the controlled substance personally, or (2) possess the specific intent that someone else will sell the controlled substance.” (Id. at p. 227.)
For purposes of the issue before us, the statute at issue in Parra, supra, 70 Cal.App.4th 222, was essentially the same as Health and Safety Code section 11359, since both forbid “possession” of an identified substance “for sale.” The Legislature obviously intended the same meaning of the “for sale” element in each statute.
We agree with Parra and Consuegra and conclude, as the trial court did below, that the specific intent element of Health and Safety Code section 11359 is satisfied by showing that a defendant either intended to personally sell the marijuana or intended that someone else would sell the marijuana. As aptly stated in Consuegra, “[t]he requisite mental state is satisfied when the drugs are possessed with the specific intent that they be sold, regardless of whether the possessor intends to sell them personally.” (Consuegra, supra, 26 Cal.App.4th at p. 1732, fn. 4; see also, 2 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Crimes Against Public Peace & Welfare, § 82, p. 592 [“the offense is committed whether the possessor intends to personally sell the substance or intends that someone else sell it”].)
Appellants’ reliance on People v. Perez (2005) 35 Cal.4th 1219 (Perez) is clearly misplaced. In Perez, the Supreme Court construed Health & Safety Code section 11383, subdivision (c)(2), which provided that “‘[a]ny person who, with intent to manufacture methamphetamine or any of its analogs … possesses hydriodic acid or any product containing hydriodic acid is guilty of a felony.…’” (Perez, supra, at p. 1228.) The People argued the intent element under that section would be satisfied if the defendant intended that anyone manufacture methamphetamine. The defendant argued that under the statutory language, a defendant must intend to participate personally in manufacturing methamphetamine. The Supreme Court agreed with the defendant. (Ibid.)
However, in so holding, the Supreme Court in Perez, supra, 35 Cal.4th at page 1231 distinguished Parra and Consuegra in the following portion of its discussion:
“The People argue that other similar statutes have been construed to criminalize possession with intent that someone else carry out a further prohibited act. For example, section 11351 criminalizes ‘possess[ion] for sale’ of specified controlled substances. In [Consuegra, supra, ] 26 Cal.App.4th [at page] 1732, footnote 4, and [Parra], supra, 70 Cal.App.4th at pages 226–227, the Courts of Appeal interpreted that language as extending to those who possess controlled substances with the intent that someone else sell them.
“Here, the covered acts, statutory context, and grammar are quite different. Parra rested in part on the conclusion that there is ‘no meaningful distinction in culpability between the defendant who actually sells the controlled substance and the defendant who transports it with the specific intent that someone else will sell it, as they both share in the specific intent to sell.’ ([Parra], supra, 70 Cal.App.4th at p. 227; accord, [Consuegra], supra, 26 Cal.App.4th at p. 1732, fn. 4 [‘We see no meaningful distinction in culpability between the individual who holds drugs to sell personally and the one who holds them for others to sell’].) The same cannot be said of the person who intends to sell precursor chemicals to a manufacturer and the person who intends to manufacture the final illegal substance. The statutory context discussed above reflects a legislative judgment that a person who intends to manufacture is more culpable than a person who sells the manufacturer the necessary chemicals; it follows that a person who intends to manufacture is also more culpable than a person who intends to sell, but has not yet sold, the necessary chemicals. Finally, section 11351 criminalizes ‘possess[ion] for sale, ’ not ‘possession with intent to sell.’ This passive construction, unlike the construction used in section 11383(c)(2), does not imply the possessor must also be the seller. Accordingly, Parra and Consuegra, which concerned possession for sale and not possession with intent to manufacture, are distinguishable.” (Perez, supra, 35 Cal.4th at p. 1231, fn. omitted.)
As the above quotation from Perez reflects, the Supreme Court’s analysis provides no support to appellants’ interpretation of the intent element applicable to count 1 in the instant case. Perez did not disagree with the statutory construction given to the “‘possess[ion] for sale’” language in Parra and Consuegra, but merely distinguished those cases in light of the different language used in Health and Safety Code section 11383, subdivision (c)(2)—intent to manufacture. (Perez, supra, 35 Cal.4th at p. 1231.) The present appeal concerns a possession-for-sale statute (Health & Saf. Code, § 11359), as was the case in Parra and Consuegra. Accordingly, the result in Perez is distinguishable.
Having concluded that the specific intent element for purposes of count 1—violation of Health and Safety Code section 11359—may be satisfied if a defendant either intends to personally sell the marijuana or intends that someone else will sell the marijuana, we now address the appellants’ contention that there was insufficient evidence to support such a specific intent.
Where a challenge is made to the sufficiency of the evidence, we review the whole record in the light most favorable to the judgment to determine whether it discloses any substantial evidence such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578.) “Reversal … is unwarranted unless it appears ‘that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].’ [Citation.]” (People v. Bolin (1998) 18 Cal.4th 297, 331.)
We conclude that there was substantial evidence to support the specific intent element of count 1 as to both appellants. Intent to sell may be established by circumstantial evidence. (People v. Harris (2000) 83 Cal.App.4th 371, 374.) The large quantity of a controlled substance constitutes circumstantial evidence of an intention to sell. (People v. Grant (1969) 1 Cal.App.3d 563, 570.) In addition, an experienced narcotics officer may provide an opinion, based on circumstances such as the quantity, packaging and normal use, that the controlled substance was possessed for sale. (Parra, supra, 70 Cal.App.4th at p. 227; People v. Martin (1971) 17 Cal.App.3d 661, 668.)
Here, Deputy Booker testified that he specializes in narcotics investigations relating to marijuana gardens and the capture of people who are cultivating the marijuana. He had been involved in the eradication of over 30 marijuana gardens, and had significant training and experience in such cases. Based on his training and experience, Deputy Booker concluded that the 2, 022 marijuana plants were being cultivated for sale and not for personal use. Additionally, both appellants were found at the site of the marijuana garden, which is in a remote mountain location, inside a tent with a loaded semiautomatic handgun and ammunition. Both told Deputy Sanchez that they were there in order to earn money. Even without a consideration of Madrigal’s more detailed statement to Deputy Sanchez, there was substantial evidence to show that both appellants intended that the marijuana they were cultivating would be sold. As to Madrigal, of course, his admissions to Deputy Sanchez clearly and explicitly indicated an intention the marijuana crop would be sold. We conclude that appellants’ challenge based on insufficiency of the evidence to establish an intent the marijuana would be sold is without merit.
III. Jury Properly Instructed on Specific Intent Element
Appellants contend the trial court incorrectly instructed the jury on the special intent element of count 1. As should be evident from our discussion above, we disagree.
Appellate courts determine de novo whether a jury instruction correctly states the law. (People v. Posey (2004) 32 Cal.4th 193, 218.) Review of the adequacy of instructions is based on whether the trial court fully and fairly instructed on the applicable law. (People v. Riley (2010) 185 Cal.App.4th 754, 767.) In determining whether error has been committed in giving or not giving jury instructions, we must consider the instructions as a whole and assume that the jurors are intelligent persons and capable of understanding and correlating all jury instructions that are given. (Ibid.) Instructions should be interpreted, if possible, so as to support the judgment rather than defeat it if they are reasonably susceptible to such interpretation. (Ibid.)
We have explained our conclusion regarding the special intent element for purposes of count 1. In instructing the jury on that issue, the trial court stated the following: “There is no requirement that the defendant possess marijuana so that he would personally sell it. [¶] The defendant needs to either, one, possess the specific intent to sell the controlled substance personally or, two, possess the specific intent that someone else will sell the controlled substance.” In the written form of the special jury instruction, the trial court explicitly relied on Parra as its authority. Since we conclude that Parra correctly defined the special intent element for crimes such as count 1, and since the trial court’s instructions fairly and accurately reflected that definition, there was no instructional error.
In so instructing the jury on the intent element, the trial court supplemented and clarified the wording of CALCRIM No. 2352. In CALCRIM No. 2352, it states the jury must find, among other things, that “[w]hen the defendant possessed the controlled substance, (he/she) intended to sell it[.]” Since, by itself, this wording may give the impression that a defendant must intend to personally sell the marijuana, the trial court wisely clarified that issue with the further instruction that we have quoted above. We reject appellants’ implicit argument that the published jury instruction is itself a binding authority. “Published jury instructions, however, are ‘not themselves the law, and are not authority to establish legal propositions or precedent … At most, when they are accurate, … they restate the law.’ [Citation.]” (People v. Salcido (2007) 149 Cal.App.4th 356, 366.)
IV. Trial Court Was Not Required to Instruct on Lesser Included Offense of Simple Possession of Marijuana
Appellants contend the trial court erred by failing to sua sponte instruct the jury on simple possession of marijuana (Health & Saf. Code, § 11357) as a lesser included offense to possession of marijuana for sale (count 1). We disagree. But even if a duty to instruct on the crime of simple possession did exist, the trial court’s failure to do so was harmless in this case.
“A court must instruct sua sponte on general principles of law that are closely and openly connected with the facts presented at trial. [Citations.] This sua sponte obligation extends to lesser included offenses if the evidence ‘raises a question as to whether all of the elements of the charged offense are present and there is evidence that would justify a conviction of such a lesser offense. [Citations.]’ [Citations.]” (People v. Lopez (1998) 19 Cal.4th 282, 287-288.) “A criminal defendant is entitled to an instruction on a lesser included offense only if [citation] ‘there is evidence which, if accepted by the trier of fact, would absolve [the] defendant from guilt of the greater offense’ [citation] but not the lesser. [Citations].” (People v. Memro (1995) 11 Cal.4th 786, 871.) “‘[T]he existence of “any evidence, no matter how weak” will not justify instructions on a lesser included offense, but such instructions are required whenever evidence that the defendant is guilty only of the lesser offense is “substantial enough to merit consideration” by the jury. [Citations.]’ [Citation.]” (People v. Taylor (2010) 48 Cal.4th 574, 623, quoting People v. Breverman (1998) 19 Cal.4th 142, 162.) “‘Substantial evidence’ in this context is ‘“evidence from which a jury composed of reasonable [persons] could … conclude[]”’ that the lesser offense, but not the greater, was committed. [Citations.]” (People v. Breverman, supra, at p. 162; accord, People v. Barton (1995) 12 Cal.4th 186, 201, fn. 8 [“evidence that a reasonable jury could find persuasive”].)
We believe the trial court was not required to instruct on the lesser included offense of simple possession. Although the logical alternative to possession for sale would have been possession for personal use, there was no evidence that appellants intended to keep the 2, 022 marijuana plants for their own personal use, and as Deputy Booker explained, the sheer quantity of marijuana involved clearly reflected the purpose of sale. Additionally, both appellants asked the arresting officers to let them go because they were only trying to earn money to support their families in Mexico. The fact that appellants were there to earn money supports the conclusion that the marijuana was being cultivated so that it could be sold. Appellants have failed to point out any substantial evidence that would persuade a reasonable jury otherwise.
In any event, even if there was error, no prejudice resulted. “‘The erroneous failure to instruct on a lesser included offense generally is subject to harmless error review under the standard of People v. Watson (1956) 46 Cal.2d 818, at pages 836–837. Reversal is required only if it is reasonably probable the jury would have returned a different verdict absent the error or errors complained of. [Citations.]’” (People v. Prince (2007) 40 Cal.4th 1179, 1267; see also People v. Moye (2009) 47 Cal.4th 537, 555-556; People v. Breverman, supra, 19 Cal.4th at pp. 177-178.) Here, the evidence that the marijuana was possessed by appellants for sale was very strong, while the evidence of any other purpose (e.g., personal use) was either nonexistent or, at best, comparatively weak. Thus, we conclude that even if the instruction had been given, there is no reasonable probability that the jury would have reached a different verdict, and thus the error (if any) was harmless.
V. Presentence Conduct Credits Under Section 4019.
Appellants were sentenced on October 1, 2009. They contend the case must be remanded back to the trial court for recalculation of presentence conduct credit pursuant to the amendment to section 4019 that took effect on January 25, 2010. Of course, appellants’ argument depends entirely on the issue of whether that amendment to section 4019 is to be applied retroactively. Appellate courts are divided on that issue and the matter is presently before the California Supreme Court. (See, e.g., People v. Rodriguez (2010) 183 Cal.App.4th 1, review granted June 9, 2010, S181808; People v. Brown (2010) 182 Cal.App.4th 1354, review granted June 9, 2010, S181963.) As we briefly explain, we hold that the January 25, 2010, amendment to section 4019 is to be applied prospectively only.
We decide this case in accordance with our opinion in People v. Rodriguez, supra, 183 Cal.App.4th 1, review granted June 9, 2010, S181808, which is presently pending before the California Supreme Court. Unless otherwise indicated, our references to section 4019 are to the version that took effect on January 25, 2010. On September 28, 2010, section 4019 was further amended. (Stats. 2010, ch. 426, § 2.) The September 2010 amendment does not affect this case and does not change our analysis in this matter.
Under section 2900.5, a person sentenced to state prison for criminal conduct is entitled to credit against the term of imprisonment for all days spent in custody before sentencing. (§ 2900.5, subd. (a).) In addition, section 4019 provides that a criminal defendant may earn additional presentence credit against his or her sentence for willingness to perform assigned labor (§ 4019, subd. (b)) and compliance with rules and regulations (§ 4019, subd. (c)). These forms of section 4019 presentence credit are called, collectively, conduct credit. (People v. Dieck (2009) 46 Cal.4th 934, 939, fn. 3.)
When appellants were sentenced on October 1, 2009, the trial court calculated appellants’ conduct credit in accord with the version of section 4019 then in effect, which provided that conduct credit could be accrued at the rate of two days for every four days of actual presentence custody. (Former § 4019.) However, the Legislature amended section 4019 effective January 25, 2010, to provide that any person who is not required to register as a sex offender and is not being committed to prison for, or has not suffered a prior conviction of, a serious felony as defined in section 1192.7 or a violent felony as defined in section 667.5 may accrue conduct credit at the rate of four days for every four days of presentence custody. We conclude the amendment applies prospectively only.
Under section 3, it is presumed that a statute operates prospectively “‘absent an express declaration of retroactivity or a clear and compelling implication that the Legislature intended [retroactive application]. [Citation.]’ [Citation.]” (People v. Alford (2007) 42 Cal.4th 749, 753.) The Legislature neither expressly declared, nor does it appear by “‘clear and compelling implication’” from any other factor(s), that it intended the amendment to operate retroactively. (Id. at p. 754.) Therefore, the amendment applies prospectively only.
We recognize that in In re Estrada (1965) 63 Cal.2d 740, our Supreme Court held that the amendatory statute at issue in that case, which reduced the punishment for a particular offense, applied retroactively. However, the factors upon which the court based its conclusion that the section 3 presumption was rebutted in that case do not apply to the amendment to section 4019.
We further conclude that prospective-only application of the amendment does not violate appellants’ equal protection rights. One of section 4019’s principal purposes, both as formerly written and as amended, is to motivate good conduct. Appellants and those like them who were sentenced prior to the effective date of the amendment cannot be further enticed to behave themselves during their presentence custody. The fact that a defendant’s conduct cannot be influenced retroactively provides a rational basis for the Legislature's implicit intent that the amendment only apply prospectively.
Because (1) the amendment evinces a legislative intent to increase the incentive for good conduct during presentence confinement, and (2) it is impossible for such an incentive to affect behavior that has already occurred, prospective-only application is reasonably related to a legitimate public purpose. (People v. Hofsheier (2006) 37 Cal.4th 1185, 1200 [legislative classification not touching on suspect class or fundamental right does not violate equal protection guarantee if it bears a rational relationship to a legitimate public purpose].)
For all of these reasons, the amendment to section 4019 applies prospectively only and therefore appellants are not entitled to receive additional conduct credits.
DISPOSITION
The judgments are affirmed.
WE CONCUR: WISEMAN, Acting P.J. DETJEN, J.