Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 06CF1947, Edward L. Laird, Temporary Judge. (Pursuant to Cal. Const., art. VI,§ 21.).
Terrence Verson Scott, 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 Quisteen S. Shum, Deputy Attorneys General, for Plaintiff and Respondent.
O’LEARY, ACTING P. J.
Freddy Saavedra appeals from a judgment after a jury convicted him of possessing a weapon while in custody, manufacturing a weapon while in custody, and possessing contraband in a correction facility. He argues: (1) the trial court’s failure to instruct the jury sua sponte on the believability of an expert witness was prejudicial; (2) the court erroneously instructed the jury on the knowledge element on the weapons offenses; and (3) the court’s use of both CALJIC and CALCRIM instructions was prejudicial. None of his contentions have merit, and we affirm the judgment.
Judicial Council of California Criminal Jury Instructions (2007-2008).
FACTS
Deputy Michael Higgins was on duty at the Theo Lacy maximum security jail. Saavedra “flip[ed] . . . off” Higgins and his partner and then banged on a door and yelled profanities at them. When Higgins searched Saavedra for contraband, he smelled alcohol on his breath, and his eyes were droopy and bloodshot, and his speech slurred. A deputy conducted a field sobriety test on him, and he failed.
Higgins went to search Saavedra’s cell, and upon entering smelled “pruno,” an inmate made alcoholic beverage. Higgins found a bag containing 16 ounces of pruno, and a large trash bag with a spicket containing remnants of pruno. He also found a six-to-eight ounce milk container with the top cut off on a table. Inside the milk container was approximately 12 pencils and a “shank.” The shank was made from a razor used for shaving. The head of the razor was cut off and the blade was removed. The blade was used to cut a hole in the bottom of the razor handle, and the blade was inserted into the hole. The blade stuck out of the handle approximately one-quarter of an inch.
Based on his training and experience, Higgins opined pruno is an orange liquid substance made by combining rotten bread and fruit, and after it ferments, sugar, water, and orange juice are added resulting in alcohol after one or two weeks. He stated pruno smells like vinegar.
Based on his training and experience, Higgins opined a shank is an inmate made weapon.
An information charged Saavedra with possession of a weapon while in custody (Pen. Code, § 4502, subd. (a)) (count 1), the manufacture of a weapon while in custody (§ 4502, subd. (b)) (count 2), possession of contraband in a correctional facility (§ 4573.8) (count 3). The information also alleged he had suffered a prior serious and violent felony conviction (§§ 667, subds. (d), (e)(1), 1170.12, subds. (b), (c)(1)), and he served a prior prison term (§ 667.5, subd. (b)).
All further statutory references are to the Penal Code, unless otherwise indicated.
At trial, Higgins testified inmates have access to a pencil sharpener every day “during their dayroom times[.]” He found no pencil shavings or dust on the shank. He explained inmates use shanks by putting their thumb over the dull side of the blade in “ambush-type” attacks to slash a victim’s back or neck. He stated pruno and shanks are prohibited items at the jail.
Saavedra testified he knew he was not supposed to have pruno and admitted making it and drinking three or four cups. He admitted making the instrument, but stated it was to sharpen his colored pencils because he draws for his family and other inmates. He explained it was difficult to use the jail pencil sharpener because of the number of inmates who ask to use the sharpener, and the limited time within which they have to use the sharpener. Saavedra stated he did not intend to make a shank or use it as a weapon, and did not attempt to conceal it. He stated the instrument did not have any wood on it or color because he cleans it after each use. On cross-examination, Saavedra claimed he had been in jail for four months and had never seen a shank or heard that term used by other inmates.
At a bifurcated bench trial, the trial court found Saavedra had suffered a prior conviction and served a prior prison term. The jury convicted him of all counts. The trial court sentenced Saavedra to the middle term of three years on count 1 doubled to six years because of the prior conviction. The court ordered concurrent sentences on counts 2 and 3, and struck the sentence on the prior prison term allegation.
DISCUSSION
I. CALJIC No. 2.80
Saavedra argues the trial court erroneously failed to instruct the jury sua sponte with CALJIC No. 2.80, “Expert Testimony—Qualifications of Expert.” He primarily rests his claim on the fact “[o]ne component of this testimony was his expert opinion as to the nature of the instrument.” The Attorney General contends Saavedra was not prejudiced by the omission. We agree with the Attorney General.
The trial court has a sua sponte dutyto instruct in accordance with CALJIC No. 2.80 when the opinion of an expert is received in evidence. (§ 1127b [effect of “expert testimony”]; People v. Reeder (1976) 65 Cal.App.3d 235, 241 (Reeder).) The trial court’s failure to instruct the jury sua sponte regarding the weight to give expert testimony is not prejudicial unless, after reviewing the entire record, we conclude the jury might have rendered a different verdict if the instruction had been given. (People v. Williams (1988) 45 Cal.3d 1268, 1320, disapproved on another ground in People v. Guiuan (1998) 18 Cal.4th 558.)
CALJIC No. 2.80 states: “[A witness] . . . who [has] . . . special knowledge, skill, experience, training or education in a particular subject [has] . . . testified to certain opinions. This type of witness is referred to as an expert witness. In determining what weight to give to any opinion expressed by an expert witness, you should consider the qualifications and believability of the witness, the facts or materials upon which each opinion is based, and the reasons for each opinion. [¶] An opinion is only as good as the facts and reasons on which it is based. If you find that any fact has not been proved, or has been disproved, you must consider that in determining the value of the opinion. Likewise, you must consider the strengths and weaknesses of the reasons on which it is based. [¶] You are not bound by an opinion. Give each opinion the weight you find it deserves. You may disregard any opinion if you find it to be unreasonable.”
We agree with the parties the trial court had a sua sponte duty to instruct the jury with CALJIC No. 2.80. However, we must determine whether the court’s failure prejudiced Saavedra. We conclude it did not.
Relying on Reeder, supra, 65 Cal.App.3d at pages 241-243, Saavedra contends omission of CALJIC No. 2.80 requires reversal in cases turning on credibility. He contends, “Without the cautionary section 1127b instruction to counterbalance this enhancement of credibility, the defense in this case was seriously hampered in its attempts to challenge the credibility of . . . Higgins, the prosecutor’s only witness.” In Reeder, supra, 65 Cal.App.3d at page 241, there was contradictory evidence of a sexual assault, and, by stipulation of the parties, the prosecutor introduced the expert testimony of two polygraph examiners who explained to the jury about the polygraph examinations taken by the victim and defendant. The expert testimony was on a subject that was deemed generally unreliable, but was critical to the jury’s evaluation of the evidence. The court concluded the omission of CALJIC No. 2.80 was prejudicial because the polygraph testimony materially influenced the jury. (Reeder, supra, 65 Cal.App.3d at p. 242.)
First, Saavedra fails to explain how Higgins’s testimony concerning the instrument, even if given undue weight by the jury, could have resulted in prejudicial error. He did not point to any specific portion of Higgins’s testimony to support his claim. His bare assertion the omission of the instruction enhanced Higgins’s credibility does not carry the day.
Second, the opinions expressed here were unlike those in Reeder, supra, 65 Cal.App.4th 235. In Reeder, the expert testimony was on a subject that was deemed generally unreliable, polygraphs. (Id. at p. 242.) Here, Higgins’s testimony concerned whether a modified razor, i.e., a razor with the blade taken out, a hole cut in the bottom, and the blade put in the hole, was “a stabbing weapon that may inflict great bodily harm or death.” Although Higgins was the prosecutor’s only witness, his testimony was not critical to the jury’s assessment of the evidence—a picture of the razor was also admitted into evidence. The jury heard Saavedra admit he made the instrument and what he claimed he intended to use it for. Based on his questionable credibility, the jury rejected that explanation.
We note the Attorney General fails to discuss or even cite Reeder, the case Saavedra primarily relies on.
Finally, the trial court instructed the jury with CALJIC No. 2.20, “Believability of Witness.” CALJIC No. 2.20 instructed the jury they were “the sole judges of the believability of a witness and the weight to be given the testimony of each witness[,]” and they could “consider anything that has a tendency reasonably to prove or disprove the truthfulness of the testimony of the witness[.]”
II. Knowledge
Saavedra contends the trial court erroneously instructed the jury with CALCRIM No. 2745, “Possession Of Contraband” on the knowledge element in counts 1 and 2. Not so.
“Instructions regarding the elements of the crime affect the substantial rights of the defendant, thus requiring no objection for appellate review. [Citations.]” (People v. Hillhouse (2002) 27 Cal.4th 469, 503.) The adequacy of jury instructions is considered by examining the charge as a whole. (People v. Holt (1997) 15 Cal.4th 619, 677.) In assessing whether jury instructions correctly state the law, we review the instructions de novo. (People v. Posey (2004) 32 Cal.4th 193, 218.) “When reviewing a supposedly ambiguous jury instruction, ‘“we inquire ‘whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way’ that violates the Constitution.”’ [Citation.]” (People v. Welch (1999) 20 Cal.4th 701, 766.)
Section 4502, subdivision (a), states: “Every person who, while at or confined in any penal institution, while being conveyed to or from any penal institution, or while under the custody of officials, officers, or employees of any penal institution, possesses or carries upon his or her person or has under his or her custody or control any instrument or weapon of the kind commonly known as a blackjack, slungshot, billy, sandclub, sandbag, or metal knuckles, any explosive substance, or fixed ammunition, any dirk or dagger or sharp instrument, any pistol, revolver, or other firearm, or any tear gas or tear gas weapon, is guilty of a felony and shall be punished by imprisonment in the state prison for two, three, or four years, to be served consecutively.”
Section 4502, subdivision (b), provides: “Every person who, while at or confined in any penal institution, while being conveyed to or from any penal institution, or while under the custody of officials, officers, or employees of any penal institution, manufactures or attempts to manufacture any instrument or weapon of the kind commonly known as a blackjack, slungshot, billy, sandclub, sandbag, or metal knuckles, any explosive substance, or fixed ammunition, any dirk or dagger or sharp instrument, any pistol, revolver, or other firearm, or any tear gas or tear gas weapon, is guilty of a felony and shall be punished by imprisonment in the state prison for 16 months, or two or three years, to be served consecutively.”
“To show a violation of [section 4502], the prosecution must prove the defendant was confined in a state prison and that he had knowledge of the prohibited object in his possession. [Citation.] While the knowledge requirement is consistent with general intent instructions, some specific instruction concerning knowledge of actual or constructive possession must also be given. [Citation.] Such requirement, however, does not make it a specific intent crime.” (People v. Strunk (1995) 31 Cal.App.4th 265, 272.)
As to count 1, possession of a weapon while in custody, and count 2, the manufacture of a weapon while in custody, the trial court instructed the jury with CALCRIM No. 2745 as follows: “To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant was present at or confined in a penal institution; [¶] 2. The defendant possessed or had under his custody or control, a dirk, dagger, or sharp instrument; [¶] 3. The defendant knew that he possessed or had under his custody or control, a dirk, dagger, or sharp instrument; and [¶] 4. The defendant knew that the object was a dirk, dagger, or sharp instrument/could be used as a stabbing weapon,’ or ‘for purposes of offense or defense.’ [¶] . . . [¶] A dirk or dagger is a knife or other instrument, with or without a handguard, that is capable of ready use as a stabbing weapon that may inflict great bodily injury or death.” (Italics added.)
Saavedra complains CALCRIM No. 2745 is incomprehensible because the “forward-slash punctuation mark” establishes a disjunction between the two clauses that lowers the prosecution’s burden of proof. He claims “[t]he major problem in this case is the absence of a clear instruction on the requirement that the jury find that the defendant knew of [1.] the deadly weapon’s presence[,] and [2.] its nature as a deadly weapon.” Although we agree the instruction is not a model of clarity, we conclude that based on the entire charge, there is not a reasonable likelihood the jury applied CALCRIM No. 2745 in an impermissible manner.
The third paragraph of CALCRIM No. 2745 required the jury to find Saavedra knew he possessed or controlled a dirk, dagger, or sharp instrument. The instruction defined a “dirk or dagger” as “a knife or other instrument . . . that is capable of ready use as a stabbing weapon[.]” The fourth paragraph of the instruction required the jury to find Saavedra knew the instrument, that it previously found Saavedra knew he possessed or controlled, could be used as a stabbing weapon or for purposes of offense or defense. Read in its entirety, the instruction required the jury to find Saavedra knew he possessed or controlled the prohibited item and that he knew the prohibited item could be used as a stabbing weapon. The fact the instruction included a stray forward slash or misplaced quotation marks does not undermine our confidence the jury concluded the prosecutor satisfied its burden of proving all the elements beyond a reasonable doubt.
The forward slash punctuation mark and quotation marks are included in the model CALCRIM No. 2745 jury instruction, and we assume the trial court inadvertently failed to delete them.
Relying on People v. Rubalcava (2000) 23 Cal.4th 322 (Rubalcava), a case involving possession of a dirk or dagger pursuant to section 12020, and People v. Winston (1956) 46 Cal.2d 151 (Winston), a case involving possession of illegal drugs pursuant to Health and Safety Code section 11500, Saavedra claims the trial court failed to instruct the jury as to “its nature as a deadly weapon.” To the extent Saavedra means the jury was required to determine whether the instrument could be used as a stabbing instrument, the jury was so instructed. To the extent he claims the jury was required to find he appreciated some higher character or nature of the dangerousness of the instrument, he is incorrect.
In Rubalcava, supra, 23 Cal.4th at page 328, the California Supreme Court addressed the issue of whether the intent to use a concealed instrument as a stabbing weapon was an element of section 12020, subdivision (a), in light of the Legislature’s amendments to the definition of “dirk or dagger.” The court explained: “[T]o commit the offense, a defendant must still have the requisite guilty mind: that is, the defendant must knowingly and intentionally carry concealed upon his or her person an instrument ‘that is capable of ready use as a stabbing weapon.’ [Citation.] A defendant who does not know that he is carrying the weapon or that the concealed instrument may be used as a stabbing weapon is therefore not guilty of violating section 12020.” (Id. at pp. 331-332, fn. omitted.) Here, as we explain above, the trial court instructed the jury it had to find Saavedra knew he possessed or controlled the prohibited item and that he knew the prohibited item could be used as a stabbing weapon.
In Winston, supra, 46 Cal.2d at pages 158-161, the California Supreme Court concluded that mere possession of narcotics without knowledge of their nature as a narcotic will not sustain a conviction for possession. Winston is inapposite as it involved items, i.e., narcotics, that are not readily identifiable and appear similar to nonprohibited materials. Here, the prohibited item was identified in section 4502, subdivision (a), by its description as a “sharp instrument.” It takes no further analysis to determine whether what Saavedra possessed was a “sharp instrument.”
III. CALJIC and CALCRIM Instructions
In his opening brief, relying on California Rules of Court, “rule 855(e)” and the CALCRIM User’s Guide, Saavedra claims he was prejudiced because the trial court instructed the jury with both CALJIC and CALCRIM instructions. He states, “[t]he vice of mixing CALJIC and CALCRIM instructions is illustrated by the conflicting instructions on the possession concept in this case.” He then quotes CALJIC No. 7.34.03, “Unauthorized Possession Of Controlled Substance By Inmate” and CALCRIM No. 2745. Claiming “[p]ossession is a central concept in this case[,]” Saavedra contends “[t]he CALCRIM instruction has radically simplified the concept by eliminating constructive possession and any scienter requirement.” He says nothing more.
The Attorney General argues that although “the trial court probably should have used the CALCRIM instructions[,]” there was no prejudicial error. Additionally, the Attorney General claims Saavedra waived appellate review of the issue of “possession” because he did not request clarification of the instruction. The Attorney General also asserts CALCRIM No. 2745 did not simplify the concept of possession.
In his reply brief, Saavedra states the Attorney General “construes [his] argument as an attack on the CALCRIM instruction.” He states that despite the fact use of both instructions establishes error, “[he] raises a significant issue as to whether the CALCRIM instructions accurately define possession.” Relying on Armstrong v. Superior Court (1990) 217 Cal.App.3d 535 (Armstrong), he argues the right to control an object does not establish possession.
First, on January 1, 2007, California Rules of Court, rule 855 was amended and renumbered as rule 2.1050. California Rules of Court, rule 2.1050(e) states: “Use of the Judicial Council instructions is strongly encouraged. If the latest edition of the jury instructions approved by the Judicial Council contains an instruction applicable to a case and the trial judge determines that the jury should be instructed on the subject, it is recommended that the judge use the Judicial Council instruction unless he or she finds that a different instruction would more accurately state the law and be understood by jurors.” And the CALCRIM User’s Guide does caution against mixing instructions.
“The CALJIC and CALCRIM instructions should never be used together. While the legal principles are obviously the same, the organization of concepts is approached differently. Trying to mix the two sets of instructions into a unified whole cannot be done and may result in omissions or confusion that could severely compromise clarity and accuracy.” (Jud. Council of Cal. Crim. Jury Instns. (2007-2008) Guide for Using Jud. Council of Cal. Crim. Jury Instns. (“‘CALCRIM’”), p. xxvi.)
We caution the trial court to never use a combination of CALCRIM and CALJIC instructions. However, the fact the trial court instructed the jury primarily with CALJIC instructions and with one CALCRIM instruction, CALCRIM No. 2745, does not by itself establish prejudice. The specific language of the complained of instructions must prejudice the defendant. We must now determine whether there is any merit to the claim Saavedra hinted at in his opening brief, but did not fully develop until his reply brief.
In his opening brief, Saavedra did not provide any reasoned analysis as to how CALCRIM No. 2745’s definition of “possession” prejudiced him. It was not until his reply brief that he cited Armstrong, supra, 217 Cal.App.3d 535, and provided any reasoned argument. “As a general proposition, points raised for the first time in a reply brief will not be considered unless good reason is shown for failure to present them earlier. [Citations.]” (People v. Whitney (2005) 129 Cal.App.4th 1287, 1298.) Despite Saavedra’s failure to fully develop his argument in his opening brief, we will address the merits of his claim.
As to counts 1 and 2, the trial court instructed the jury with CALCRIM No. 2745 as to possession as follows: “A person does not have to actually hold or touch something to possess it. It is enough if the person has (control over it/or the right to control it), either personally or through another person.”
With respect to count 3, the trial court instructed the jury with CALJIC No. 7.34.03 as to possession as follows: “There are two kinds of possession: actual possession and constructive possession. [¶] ‘Actual possession’ requires that a person knowingly exercise direct physical control over a thing. [¶] ‘Constructive possession’ does not require actual possession, but does require that a person knowingly exercise control over or the right to control a thing, either directly or through another person or person. [¶] One person may have possession alone, or two or more persons together may share actual or constructive possession.”
Saavedra contends CALCRIM No. 2745 did not require the jury to find he had “‘knowing’ control” over the instrument. We disagree.
As we explain above, the correctness of jury instructions is determined by examining the charge as a whole. Paragraph three of the instruction required the jury to find he “knew that he possessed or had under his custody or control, a dirk, dagger, or sharp instrument[.]” Again, read in its entirety, CALCRIM No. 2745 adequately addressed both constrictive possession and the knowledge requirement.
Saavedra’s reliance on Armstrong, supra, 217 Cal.App.3d 535, is misplaced. Armstrong did not involve the propriety of a jury instruction. It involved whether a defendant who paid for narcotics but never received actual physical possession of the narcotics constructively possessed the narcotics. (Id. at p. 537.) Those are not the facts here.
DISPOSITION
The judgment is affirmed.
WE CONCUR: ARONSON, J., FYBEL, J.