Opinion
E052613
11-27-2012
THE PEOPLE, Plaintiff and Respondent, v. PABLO ALEJANDRO MARTINEZ, Defendant and Appellant.
Eric Cioffi, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Lynne McGinnis and Felicity Senoski, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super.Ct.No. FWV1002126)
OPINION
APPEAL from the Superior Court of San Bernardino County. Michael A. Sachs, Judge. Affirmed.
Eric Cioffi, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Lynne McGinnis and Felicity Senoski, Deputy Attorneys General, for Plaintiff and Respondent.
I. INTRODUCTION
Following a jury trial, Defendant Pablo Alejandro Martinez was convicted of possession of a controlled substance. (Health & Safety Code, § 11350, subd. (a).) The trial court granted him supervised probation for 36 months. He appeals, contending the judgment of his conviction must be reversed because the trial court erred (1) in denying his motion to acquit based on insufficient evidence that defendant knew the pills were a controlled substance; and (2) in failing to respond to the jury's requests to clarify CALCRIM No. 2304. Finding no error, we affirm.
II. FACTS AND PROCEDURAL BACKGROUND
On July 9, 2010, Manuel Hernandez, a San Bernardino County deputy sheriff, stopped a car because it had an obstructed license plate. Defendant was a passenger in the car. Deputy Hernandez called in the license plate number to dispatch. About a minute later, Deputy Joshua Gile arrived with Deputy Ferris. Because Deputy Hernandez transposed the letters when he called in the license plate, dispatch informed him the car was stolen. Deputies Hernandez and Gile asked the driver and defendant to exit the car. Deputy Gile patted down defendant, while Deputy Hernandez patted down the driver. Deputy Gile handcuffed and searched defendant. He found 11 white pills loose in defendant's left front pocket. The pills were all of a similar appearance, with an impression of a "V" on one side and "3592" on the other.
When Deputy Gile asked defendant what the pills were, defendant identified them as "pain pills." After Deputy Gile handed the pills to Deputy Hernandez, Deputy Hernandez advised defendant of his Miranda rights. When Deputy Hernandez asked defendant where he got the pills, defendant said that an acquaintance came by his workplace and gave him the pills, which defendant put in his pocket. Defendant claimed the pills were for his wife because she had cancer and was in pain. Defendant stated he did not remember the name of his acquaintance. He also stated he did not live with his wife and did not know where she lived. Defendant admitted taking one of the pills for his back pain. He further admitted he had no insurance, no prescription for the pills, and he explained it was customary in his country to "self-medicate." The pills were later identified as containing the controlled substance hydrocodone, known by the brand name Vicodin.
Miranda v. Arizona (1966) 384 U.S. 436.
The deputies learned the car was not stolen about eight minutes after the first call, when Deputy Ferris repeated the license plate number to dispatch. Deputy Hernandez explained the mistake to the driver and apologized for the inconvenience. At some point later the driver left the scene.
III. MOTION FOR ACQUITTAL
Defendant contends the trial court erred when it denied his motion for acquittal under Penal Code section 1118.1 because the evidence failed to show that defendant knew the pills were a controlled substance.
All further statutory references are to the Penal Code unless otherwise indicated.
Section 1118.1 authorizes the trial court to enter judgment of acquittal "if the evidence then before the court is insufficient to sustain a conviction of such offense or offenses on appeal." "In ruling on a motion for judgment of acquittal pursuant to section 1118.1, a trial court applies the same standard an appellate court applies in reviewing the sufficiency of the evidence to support a conviction, that is, '"whether from the evidence, including all reasonable inferences to be drawn therefrom, there is any substantial evidence of the existence of each element of the offense charged." [Citations.]' [Citation.] 'Where the section 1118.1 motion is made at the close of the prosecution's case-in-chief, the sufficiency of the evidence is tested as it stood at that point.' [Citation.] [¶] . . . . [¶] We review independently a trial court's ruling . . . that the evidence is sufficient to support a conviction. [Citations.]" (People v. Cole (2004) 33 Cal.4th 1158, 1212-1213.)
"In reviewing a challenge to the sufficiency of the evidence . . . we review the entire record in the light most favorable to the judgment to determine whether it discloses substantial evidence—that is, evidence that is reasonable, credible, and of solid value— from which a reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt. [Citations.]" (People v. Cole, supra, 33 Cal.4th at p. 1212.)
To establish unlawful possession of a controlled substance under Health and Safety Code section 11350, the People must prove the defendant knew the substance's controlled nature or character. (See People v. Romero (1997) 55 Cal.App.4th 147, 157 [Fourth Dist., Div. Two].) Proving knowledge can be difficult. "As might be expected, no sharp line can be drawn to distinguish the congeries of facts which will and that which will not constitute sufficient evidence of a defendant's knowledge of the presence of a narcotic . . . ." (People v. Redrick (1961) 55 Cal.2d 282, 287.) It is well settled that an essential element may be "proved by circumstantial evidence and any reasonable inferences drawn from such evidence." (People v. Tripp (2007) 151 Cal.App.4th 951, 956.) Typically, to prove knowledge, courts have previously considered evidence such as the defendant's secretive acts and suspicious conduct (People v. Williams (1971) 5 Cal.3d 211, 216 (Williams)) or evidence showing a defendant's familiarity with the substance (People v. Simmons (1971) 19 Cal.App.3d 960, 965).
Substantial evidence supports a finding that defendant knew the controlled nature of the pills he possessed. First, defendant's possession of the substance on his person or among his personal effects constitutes substantial evidence that he had knowledge of their controlled nature or character. (See People v. White (1969) 71 Cal.2d 80, 82-83.) In White, law enforcement officers discovered two marijuana "roaches" and four marijuana cigarettes on a dresser in defendant's bedroom. (Id. at p. 82.) The defendant shared the room with his girlfriend, but the dresser contained documents with the defendant's name on them. (Ibid.) The Supreme Court held that substantial evidence supported that the defendant had knowledge of the controlled nature of the marijuana because "the mere possession of a narcotic constitutes substantial evidence that the possessor of the narcotic knew of its nature." (Id. at p. 83.)
However, in Williams, supra, 5 Cal. 3d 211, the Supreme Court reversed the judgment convicting the defendant of possession of a controlled substance, holding there was no substantial evidence that the defendant knew the character of the substance. (Id. at p. 216.) In Williams, a police officer observed the defendant sitting alone in the passenger seat of a parked car. (Id. at p. 213.) When the officer approached the car, he saw the defendant make a motion toward the center of the seat. (Ibid.) As the defendant stepped out of the car to offer identification, the interior lights illuminated the inside of the vehicle, allowing the officer to observe a benzedrine tablet next to two brown paper bags containing beer in front of the defendant's seat. (Id. at p. 214.) After a search of the interior of the car, the officer discovered over 1,000 benzedrine tablets in two brown paper bags partially concealed under the driver's seat. (Ibid.) The defendant did not own the car and denied knowledge of the presence and nature of the benzedrine pills. (Ibid.) The defendant did not possess the controlled substance under the meaning in White that would constitute substantial evidence he knew of the controlled nature of the substance because the substance was not on his person or among his personal effects. (Williams, supra, at p. 216.)
Here, under the reasoning of White, defendant's possession of the pills alone constitutes substantial evidence that he knew their controlled nature. The pills were discovered on his person, and he acknowledged they were pain pills and that he had placed them in his pocket.
Further, defendant's evasive statements at the time of his arrest support his knowledge of the substance's controlled nature or character. (See People v. Montero (1962) 200 Cal.App.2d 295, 299 (Montero I).) In Montero I, the defendant and his two companions were charged with possession of marijuana that police officers had found in the defendant's car. (Id. at pp. 297, 299.) When a police officer discovered marijuana in the sock of the defendant's companion, he asked the defendant's companion how he had gotten the marijuana. The defendant answered for his companion, "'It's a plant.'" (Id. at p. 298.) The Court of Appeals held this response constituted substantial evidence that the defendant knew of the controlled nature of the marijuana, because it "was an indication of guilty knowledge as well as the reaction of one familiar with the drug [citation]." (Id. at p. 299.)
In this case, defendant's ambiguous statements to Deputy Hernandez at the time of arrest support his knowledge of the substance's controlled nature or character. First, when Deputy Hernandez asked how defendant got the pills, he stated he received them from an acquaintance who came by his work earlier that day, but defendant claimed he could not remember the acquaintance's name. Second, when asked why he had the pills, defendant claimed the acquaintance got them for defendant's wife, who had cancer. However, defendant did not know where his wife lived and he admitted taking one of the pills himself. He described the pills as "pain pills" and explained that self-medication was customary in his country. From this evidence, the jury could have inferred these evasive responses and explanations demonstrated a consciousness of guilt.
Defendant's reliance on Williams is misplaced. First, the pills in Williams were discovered on the floor of another person's car in front of the seat occupied by the defendant, while the pills in this case were discovered on defendant's person. Second, the defendant in Williams denied knowing the presence or nature of the pills. In this case, defendant admitted he put the pills in his pocket and described them as "pain pills." Further, the defendant in Williams did not make evasive statements at the time of arrest that the jury could interpret to demonstrate a "consciousness of guilt," while defendant in this case made several evasive remarks and explanations.
Because the deputy discovered the pills on defendant's person, and the reasonable inferences drawn from defendant's remarks at the time of arrest demonstrate a consciousness of guilt, substantial evidence supports the element of knowledge. Thus, the trial court did not err in denying defendant's motion for acquittal.
IV.TRIAL COURT'S RESPONSE TO JURY QUESTIONS
Defendant contends the trial court erred by failing to clarify CALCRIM No. 2304 in response to two jury questions.
A. Further Background Facts
On Monday, December 6, 2010, following the close of the prosecution's case, the trial court advised counsel it intended to instruct the jury with a modified version of CALCRIM No. 2304, which included "hydrocodone," instead of "opiates."
On Tuesday, December 7, after the prosecution rested, defense counsel moved for an acquittal on the ground the evidence was insufficient to show that defendant was aware of the controlled nature or character of the pills. The trial court denied the motion.
That same day, the trial court instructed the jury with CALCRIM No. 2304, as follows: "Defendant is charged with possessing Hydrocodone, a controlled substance. To prove that the defendant is guilty of this crime, the People must prove that the defendant possessed a controlled substance, the defendant knew of its presence, the defendant knew of the substance's nature or the character as a controlled substance, the controlled substance was Hydrocodone, and the controlled substance was in a usable amount. . . . [¶] People do not need to prove that the defendant knew which specific controlled substance he possessed, only that he was aware of the substance's presence and that it was a controlled substance."
After some deliberation, the jury sent a note to the trial court asking, "Based on Jury [I]nstruction #2304, part 3, we need clarification on the 'or' part of the sentence/statement and its accuracy. We would like to confirm that this was correctly phrased and not intended to be 'and' or 'and/or'?" Defense counsel stated she understood the jury's confusion. After consulting with counsel, the trial court advised the jury "Part 3, is correctly worded as it appears on the Jury Instruction."
The jury returned with another question: "Based on the last paragraph of Jury [I]nstruction #2304, are we to read the last part of the paragraph as two separate statements: 'only that he was aware of the substance's presence and that he was aware that it was a controlled substance,' or 'that he was aware of the substance's presence and that the evidence indicates—it—was a controlled substance?[']" Counsel agreed the court may not interpret the instructions for the jury. The trial court responded, "Please refer to the other jury instructions. The court cannot interpret the jury instruction for you."
In the note from the jury "or" was circled. We have shown the emphasis with boldface.
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On Wednesday, December 8, defense counsel expressed concern that the jury's two questions indicated they did not understand "whether or not the People have to show [defendant] was aware and knew that the pills were of a controlled substance; or that the People have to show that [defendant] knew that he had Hydrocodone and the evidence itself proved that it was a controlled substance." She objected to CALCRIM No. 2304 as ambiguous in respect to the People's burden and requested the trial court instruct the jury with the CALJIC version. After discussing the jury instructions with counsel, the trial court declined to give further instructions.
The jury did not send out any other notes; however, that same day, it reported it had reached a verdict, finding defendant guilty.
B. Analysis
Under section 1138, the trial court must "'attempt "to clear up any instructional confusion expressed by the jury." [Citations.]' [Citation.]" (People v. Ardoin (2011) 196 Cal.App.4th 102, 128.) "When a jury asks a question after retiring for deliberation, '[s]ection 1138 imposes upon the [trial] court a duty to provide the jury with information the jury desires on points of law.' [Citation.] But '[t]his does not mean the [trial] court must always elaborate on the standard instructions. Where the original instructions are themselves full and complete, the court has discretion under section 1138 to determine what additional explanations are sufficient to satisfy the jury's request for information.' [Citation.] We review for an abuse of discretion any error under section 1138. [Citation.]" (People v. Eid (2010) 187 Cal.App.4th 859, 881-882.)
The trial court abuses its discretion if it refuses to offer any further instruction without first considering how it can best aid the jury. (See People v. Beardslee (1991) 53 Cal.3d 68, 96.) However, the trial court does not abuse its discretion when it determines the best way to aid the jury is by directing the jury to reread the applicable jury instructions that "are themselves full and complete." (People v. Gonzalez (1990) 51 Cal.3d 1179, 1213, superseded by statute on other grounds as stated in In re Steele (2004) 32 Cal.4th 682, 691.) Additionally, the court need not give the jury more information than it asks for. (People v. Anthony (1912) 20 Cal.App. 586, 595.)
Here, the trial court fulfilled its duty under section 1138 when it responded to the jury's first question. The jury asked for confirmation that the use of "or" in CALCRIM No. 2304 "was correctly phrased and not intended to be 'and' or 'and/or'?" The trial court directly answered that question by assuring the jury of the instruction's accuracy. Nonetheless, defendant contends "it is entirely likely they wanted clarification on whether the element of knowledge could be satisfied merely by a defendant knowing of a substance's nature." We disagree. Defendant suggests a far different question than that posed by the jury, and the trial court need not provide more information than the jury requested.
In support of his contention, defendant relies on People v. Thompkins (1987) 195 Cal.App.3d 244 (Thompkins). In that case, the appellate court reversed the defendant's conviction for first degree murder, attempted murder, and burglary. (Id. at p. 246-247.) It held the trial judge erred when he answered the jury's question, "'how does premeditation and sudden heat of passion interrelate in this law, CALJIC 8.20[?]'" with "'It doesn't.'" (Id. at p. 250.) The appellate court explained the trial court's response was in error, because heat of passion and premeditation are related in that they are mutually exclusive, and thus, the answer inaccurately described a legal concept. (Id. at p. 251.)
In this case, the trial court's answer to the jury's first question is unlike that in Thompkins. In Thompkins, the trial court provided an inaccurate response regarding the relationship of two legal concepts; however, in this case, the trial court merely assured the jury that the instruction was accurate. The trial court's answer in this case was not an inaccurate description of the law.
Regarding the jury's second question as to whether CALCRIM No. 2304 requires the People to prove "'only that [the defendant] was aware of the substance's presence and that he was aware that it was a controlled substance' or 'that [the defendant] was aware of the substance's presence and that the evidence indicates—it—was a controlled substance,'" we conclude the trial court did not abuse its discretion by directing the jury to refer to "the other jury instructions." (Boldface added.)
The trial court does not abuse its discretion by referring the jury back to the jury instructions when the instructions provide the information the jury requested. (See People v. Montero (2007) 155 Cal.App.4th 1170 (Montero II).) In Montero II, the defendant had been convicted of possession of methamphetamine for sale. (Id. at p. 1172.) The defendant claimed the trial court abused its discretion by referring the jurors to CALCRIM No. 2302 in response to their question, "'How do we evaluate the idea of "control?"'" instead of providing further instruction. (Montero II, supra, at p. 1178.) The appellate court concluded there was no abuse of discretion because the instruction explains the concept of control and how to apply it. (Id. at p. 1179.)
Here, the pattern instruction explained the prosecution's burden of proving that defendant knew of the substance's nature or character as a controlled substance. Other instructions reiterated the prosecution's burden to prove each element of the offense beyond a reasonable doubt. (CALCRIM Nos. 220 and 223.) Read together, the instructions clearly indicate the People must prove defendant was aware that the pills in his possession are a controlled substance, clarifying the meaning of the last paragraph. Like the trial court in Montero II, supra, 155 Cal.App.4th 1170, the trial court here properly referred the jury back to the jury instructions which contained the information the jury needed to reach its verdict.
Based on the above, we conclude that the trial court acted within its discretion in its responses to the jury's questions regarding CALCRIM No. 2304.
IV. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORT
HOLLENHORST
J.
We concur: RAMIREZ
P.J.
MILLER
J.