Opinion
B207915
4-22-2009
THE PEOPLE, Plaintiff and Respondent, v. RICHARD DAVID THOMPSON, Defendant and Appellant.
Mark Yanis, 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. and Rama R. Maline, Deputy Attorneys General, for Plaintiff and Respondent.
Not to be Published in the Official Reports
Appellant Richard David Thompson appeals his conviction for one count of second-degree robbery (Penal Code, § 211) and one count of possession of cocaine base (Health & Saf. Code, § 11350, subd. (a).) He contends that (1) CALJIC No. 223 on circumstantial evidence improperly placed the burden of proof on him and thereby undermined the presumption of innocence, and (2) there was insufficient evidence he possessed a usable amount of cocaine base. We affirm.
All statutory references herein, unless otherwise noted, are to the Penal Code.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
On September 11, 2007, at 5:45 a.m., Lloyd Ranjearald Horton was near Compton Avenue and 112th Street, having just gotten off the bus on his way to work. Two people approached him from behind and said, "what you got, what you got?" They stuck something in his back and started going through Hortons pockets. They took his phone and his money, and ran off through the Nickerson Gardens housing complex on Compton Avenue. He called after them to give his phone back.
Horton identified defendant in court as one of his assailants. Horton immediately recognized defendant because about a month before, approximately two blocks from the September 11, 2007 incident, defendant had taken Hortons bike and some money.
Defendant was tried with his co-defendant, Travon Phillips, who was charged with one count of second-degree robbery (§ 211). The jury found Phillips not guilty.
After the attack on September 11, 2007, Horton called the police. Officer Jesse Pineda responded to the scene. Horton gave Officer Pineda a description of his assailants, and Officer Pineda drove Horton around the area of the attack. On 112th Street near Evers Avenue, Horton saw Phillips, and told police, "thats him, thats him." Horton recognized him based upon his Afro puffs hairstyle. Police then drove Horton to a house near the scene of the prior attack. Police set up a perimeter around the house, and detained defendant when he walked out the back door. Horton identified defendant as the other attacker.
Officer Pineda questioned defendant at the police station, and he denied involvement in the robbery, although he admitted that he had thrown Hortons phone over the wall at the house where he was arrested. When defendant was strip-searched at the jail, police discovered defendant possessed some off-white solids that resembled crack cocaine. The "rocklike" off-white substance found on defendant, described by the criminalist at trial as "solid material," was .49 grams of cocaine base.
Officer Manuel Moreno is a member of the LAPDs gang impact team, and testified as an expert on gangs. In his opinion, defendant was a member of the Bounty Hunter Blood Gang, whose main territory was the Nickerson Gardens housing project and surrounding areas, based upon defendants presence in the area. Defendant had admitted gang membership to another officer.
The jury convicted defendant of one count of second-degree robbery and one count of possession of a controlled substance. The jury found not true the special allegation the robbery was committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)).
DISCUSSION
I. CALCRIM NO. 223.
Defendant contends that CALCRIM No. 223, which instructs the jury on circumstantial evidence, improperly relieves the prosecution of its burden of proof and undermines the presumption of innocence. He contends the phrase, "to prove or disprove the elements of a charge, including intent and acts necessary to a conviction" erroneously implies the defendant must "disprove" the charge against him. He contends the error is not harmless beyond a reasonable doubt because in closing argument, the prosecution contended that defendant failed to expose Hortons purported grudge against the occupants of the house where defendant was arrested. This argument permitted the jury to find him guilty because he did not disprove Hortons testimony. We disagree.
CALCRIM No. 223 as given provided, "Facts may be proved by direct or circumstantial evidence or by a combination of both. Direct evidence can prove a fact by itself. For example, if a witness testifies he saw it raining outside before he came into the courthouse, that testimony is direct evidence that it was raining. Circumstantial evidence also may be called indirect evidence. Circumstantial evidence does not directly prove the fact to be decided, but is evidence of another fact or group of facts from which you may logically and reasonably conclude the truth of the fact in question. For example, if a witness testifies that he saw someone come inside wearing a raincoat covered with drops of water, that testimony is circumstantial evidence because it may support a conclusion that it was raining outside. [¶] Both direct and circumstantial evidence are acceptable types of evidence to prove or disprove the elements of a charge, including intent and mental state and acts necessary to a conviction, and neither is necessarily more reliable than the other. Neither is entitled to any greater weight than the other. You must decide whether a fact in issue has been proved based on all the evidence."
The accuracy of jury instructions is to be determined from the entire charge to the jury, and not from a consideration of parts of an instruction or from a particular instruction. (People v. Anderson (2007) 152 Cal.App.4th 919, 928-929 (Anderson).) Here, defendants argument rests upon an interpretation that reads content into the instruction that is not there. Nowhere does CALCRIM No. 223 state, or even imply, that defendant must disprove the charge against him. Rather, the instruction gives the jury essential information on evaluating direct and circumstantial evidence. One part of that information is that both types of evidence are an acceptable means of proof — proof that may tend to establish, or that may tend to defeat, the charge. Further, the phrase "disprove the charge" refers to the contingency that a defendant opts to put on a defense; CALCRIM No. 223s language does not operate to imply that the defendant must disprove the case against him, and does not undercut the prosecutions burden of proof.
Anderson, supra, 152 Cal.App.4th 919, upheld a challenge to CALCRIM No. 223 against an argument that it was contradictory, confusing and misleading because it could erroneously give jurors the impression they were not free to give specific circumstantial evidence greater weight than other specific direct evidence, or vice versa. Anderson rejected this argument because the instruction included the phrase, "`You must decide whether a fact in issue has been proved based on all the evidence." (Id. at p. 930; see also People v. Ibarra (2007) 156 Cal.App.4th 1174, 1186 (Ibarra).) Ibarra rejected a challenge to CALCRIM No. 223 that it improperly implied circumstantial evidence and direct evidence were of equal weight. "Reasonably read, the instruction cautions only that neither direct nor circumstantial evidence should be accorded greater weight simply because it is direct or circumstantial evidence." (Anderson, supra, at p. 930.)
II. SUFFICIENT EVIDENCE OF POSSESSION OF A USABLE QUANTITY.
Defendant contends there was insufficient evidence he possessed a usable quantity of cocaine because the only evidence at trial was that he possessed a rocklike substance weighing .49 gram; and while the jury may make reasonable inferences from the evidence, there was no evidence to support a conclusion . 49 gram was a usable quantity. He argues, "except where the contraband in question is clearly large enough for a layperson to properly infer a usable amount, any finding of [a usable quantity] is tenuous." Therefore, his conviction for possession of a controlled substance must be reversed.
The court instructed the jury that an element of the offense of a violation of Health & Safety Code section 11350, subd. (a) was that the "controlled substance was in a usable amount." The instruction further stated, "[a] usable amount is a quantity that is enough to be used by someone as a controlled substance. Useless traces or debris are not usable amounts. On the other hand, a useable amount does not have to be enough, in either amount or strength, to affect the user."
In reviewing a challenge to the sufficiency of the evidence, we "consider the evidence in a light most favorable to the judgment and presume the existence of every fact the trier could reasonably deduce from the evidence in support of the judgment. The test is whether substantial evidence supports the decision, not whether the evidence proves guilt beyond a reasonable doubt." (People v. Mincey (1992) 2 Cal.4th 408, 432; see People v. Staten (2000) 24 Cal.4th 434, 460.) Our sole function is to determine if any rational trier of fact could have found the essential elements of the crime present beyond a reasonable doubt. (People v. Bolin (1998) 18 Cal.4th 297, 331.) "Reversal on this ground is unwarranted unless it appears `that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction]." (Ibid.)
A usable amount of a controlled substance is a quantity sufficient to be consumed in any manner customarily employed by users of the substance, as opposed to debris or useless traces. (People v. Piper (1971) 19 Cal.App.3d 248, 250.) In People v. Leal (1966) 64 Cal.2d 504, 512 (Leal), the Supreme Court held, "in penalizing a person who possesses a narcotic the Legislature proscribed possession of a substance that has a narcotic potential; it condemned the commodity that could be used as such. It did not refer to useless traces or residue of such [a] substance. Hence the possession of a minute crystalline residue of narcotic useless for . . . consumption . . . does not constitute sufficient evidence in itself to sustain a conviction." In People v. Rubacalba (1993) 6 Cal.4th 62, 66, the Supreme Court clarified "the Leal usable-quantity rule prohibits conviction only when the substance possessed simply cannot be used, such as when it is a blackened residue or a useless trace. It does not extend to a substance containing contraband, even if not pure, if the substance is in a form and quantity that can be used. No particular purity or narcotic effect need be proven."
Defendant contends the record is devoid of evidence that the .49 gram of cocaine base found on his person was a usable quantity because there was no testimony concerning the size of a usable dose. (See People v. Morales (1968) 259 Cal.App.2d 290, 295 [sufficient evidence of usable quantity when officer testified concerning average dose].) Further, he argues, the criminalist did not testify that the amount recovered, based upon her experience, was a usable quantity.
Although there was no direct testimony that the rocklike substance recovered from defendant was a usable quantity of cocaine base, or what amount of cocaine base would constitute a useable quality, there was nonetheless sufficient evidence from which the jury could infer the cocaine base was more than a useless trace. The criminalist testified the cocaine base was a rocklike, solid off-white material. This testimony supports an inference that there was more than a "useless residue" because base residue cannot fairly be described as "rocklike." A lay juryperson could infer there was a sufficient amount of cocaine base to be processed by a user and ingested in some fashion.
DISPOSITION
The judgment of the superior court is affirmed.
We concur:
WOODS, Acting P. J.
JACKSON, J.