HOLLENHORST, Acting P. J. —
A jury found defendant and appellant David Ismael Lua guilty of one count of transportation for sale of a controlled substance (Health & Saf. Code,
On appeal, defendant asserts that the trial court's instructions to the jury with respect to the transportation for sale charge were erroneous; that the trial court failed to adequately respond to questions from the jury during deliberations; that the verdict form for the transportation for sale charge contradicted the jury's instructions for the offense; that the cumulative error doctrine requires reversal; that the trial court misunderstood the scope of its sentencing discretion; and that the sentence imposed constitutes an abuse of discretion, and an unconstitutionally cruel and unusual punishment.
We find that the matter must be remanded for resentencing, because some of the trial court's remarks during sentencing suggest that it may not have properly understood the scope of its sentencing discretion. We affirm the judgment in all other respects.
I. FACTS AND PROCEDURAL BACKGROUND
In the wee hours of the morning on January 25, 2015, defendant was pulled over for driving a vehicle with no front license plate. Defendant was
The same Riverside County deputy sheriff who pulled defendant over had, four days before, conducted a search at defendant's residence. During that search, he noticed a black box identical to the one later discovered during the traffic stop; it was on a desk, next to an open package of clear plastic sandwich baggies. At that time, the box was empty.
At trial, in addition to testimony from deputy sheriffs involved in the January 25, 2015, vehicle stop and the earlier search of defendant's residence, the prosecution presented evidence of a prior drug-related offense by defendant through the testimony of the parole officer who conducted the July 2011 search that resulted in a November 2012 conviction for possession for sale of a controlled substance. A Riverside County deputy sheriff who was not involved in defendant's arrest testified as a narcotics expert, explaining factors that indicate narcotics sales in trafficking cases involving vehicles.
Defendant did not testify in his own defense. The defense called two witnesses, who each testified about the origins of and modifications to the black box that was later discovered attached to the car defendant was driving.
The trial court instructed the jury on the elements of count 1, transportation for sale of a controlled substance, with CALCRIM No. 2300.
The closing arguments of both the prosecution and the defense explicitly discussed the "for sale" element of the transportation for sale charge. The prosecutor told the jury that to be convicted, defendant, "while he was transporting the controlled substance, he had to have the intent that at some point later on down the road he was going to sell," and discussed at some length the evidence that was presented to establish "the intent part," that is, that "he was transporting it for sale." The prosecution emphasized that for both charged counts, defendant's "specific intent" with respect to the controlled substance was "to sell it." Defense counsel, too, remarked specifically on the "for sale" element of the transportation charge, arguing that to be convicted, defendant "must have known [the controlled substance] was there, he must have known it was being transported, and he must have personally known that it was going to be used for sale."
During deliberations, the jury submitted several written inquiries to the trial court. In the first, the jury asked what to do if it could not reach a verdict. The court responded in writing, asking for clarification as to which count or counts had motivated the question. The jury's answer pointed to both counts, "possession for sale [and] transport for sale," and further specified the "sale part of the greater charges." The court advised the jury in writing to "[c]ontinue deliberations [and] arrive at a verdict/verdicts if possible." Subsequent to this written exchange, the court gave oral instructions on general methods to facilitate deliberations, and ordered the jury to continue its deliberations.
A second note from the jury inquired about the verdict forms it had been provided. The jury asked why the "verdict form" for the lesser included charge of count 2, simple possession, identified the charge as "possession for
A third note from the jury asked for definitions of the terms "transportation" and "possession."
The jury found defendant guilty on count 1, transportation for sale of a controlled substance (§ 11379, subd. (a)). With respect to count 2, the jury found defendant not guilty of the charged felony offense of possession for sale (§ 11378), but found him guilty of the lesser included misdemeanor offense of simple possession of a controlled substance (§ 11377, subd. (a)).
During sentencing, on the People's motion, the trial court struck an alleged enhancement for committing the charged crime while out on bail (Pen. Code, § 12022.1) in the interest of justice. Defense counsel argued that the sentence recommended by the probation report — 22 years, taking into account the striking of the on bail enhancement — constituted cruel and unusual punishment, and asked the court to "lessen the sentence." Defense counsel characterized the multiple enhancements, in particular, as "unfair." The prosecution responded that the defense's cruel and unusual punishment argument is an "appellate issue," and stated that appellant's sentence enhancements, constituting the bulk of the recommended sentence, were "mandatory."
The trial court subsequently remarked as follows: "I'm a trial judge. I follow the law. While I can exercise my heart and my sympathies for the position that [defendant] has placed himself in by his own actions and repeated actions, quite frankly, at some point in time the consequences of those actions have to be considered. They're considered in the law, and they're considered in the sentence. Even if I give him the lowest sentence possible, it still comes ... [¶] ... [¶] ... out to 17 [years]." The court described a 17-year term as "the minimum, but it is still a very substantial sentence" and "a high price to pay." The court further commented to defendant that "when I look at your record, you've earned it. You've earned, quite frankly, potentially more." The trial court also stated that "[w]hile it could be argued by your counsel that it constitutes cruel and unusual punishment, it's a natural consequence of what you yourself did."
The court imposed an aggregate sentence of 17 years, consisting of the low term of two years for the conviction on count 1, plus 15 years for the 5 three-year enhancements pursuant to section 11370.2. The court imposed a concurrent sentence of 365 days with respect to count 2, and it stayed the sentences with respect to the prison prior enhancements.
A. Defendant Demonstrates No Prejudicial Instructional Error with Respect to the Transportation for Sale Charge (Count 1).
Defendant contends with respect to his conviction on count 1 that the jury's instructions did not properly explain the requirement that defendant not only intended to transport a controlled substance, but intended to transport it for sale. We find no prejudicial error.
1. Background Regarding Section 11379 and CALCRIM No. 2300.
Effective January 1, 2014, the Legislature amended section 11379 to limit the meaning of "transports" under that statute to transportation "for sale." (§ 11379, subds. (a), (c); Stats. 2013, ch. 504, § 2.) "The amendment explicitly intended to criminalize the transportation of drugs for the purpose of sale and not the transportation of drugs for nonsales purposes such as personal use." (People v. Eagle (2016) 246 Cal.App.4th 275, 278 [200 Cal.Rptr.3d 773] (Eagle).)
The standard jury instruction for section 11379 offenses, CALCRIM No. 2300, was amended by its authors to reflect the 2014 amendment to that statute by inserting the words "for sale" after the word "transported": "To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant (... transported for sale ...) a controlled substance;...."
2. Standard of Review.
We review the wording of a jury instruction de novo to assess whether the instruction correctly states the law. (People v. Posey (2004) 32 Cal.4th 193, 218 [8 Cal.Rptr.3d 551, 82 P.3d 755].) A jury instruction omitting an essential element from the jury's consideration requires reversal unless the error was harmless beyond a reasonable doubt. (People v. Flood (1998) 18 Cal.4th 470, 502-503 [76 Cal.Rptr.2d 180, 957 P.2d 869].)
"`In reviewing [a] purportedly erroneous instruction[ ], "we inquire `whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way' that violates the Constitution."'" (People v. Richardson (2008) 43 Cal.4th 959, 1028 [77 Cal.Rptr.3d 163, 183 P.3d 1146].) The instructions must be viewed in the context of all the instructions given to the jury "rather than in artificial isolation." (People v. O'Dell (2007) 153 Cal.App.4th 1569, 1574 [64 Cal.Rptr.3d 116].) We "`assume that jurors are intelligent persons and capable of understanding and correlating all jury instructions which are given.'" (Richardson, supra, at p. 1028.) "`Moreover, any theoretical possibility of confusion [may be] diminished by the parties' closing arguments....'" People v. Hajek and Vo (2014) 58 Cal.4th 1144, 1220 [171 Cal.Rptr.3d 234, 324 P.3d 88] (Hajek), abrogated on other grounds in People v. Rangel (2016) 62 Cal.4th 1192 [200 Cal.Rptr.3d 265, 367 P.3d 649].) "`Instructions should be interpreted, if possible, so as to support the judgment rather than defeat it if they are reasonably susceptible to such interpretation.'" (People v. Ramos (2008) 163 Cal.App.4th 1082, 1088 [78 Cal.Rptr.3d 186].)
As an initial matter, we acknowledge the People's argument that defendant forfeited any claim of instructional error by failing to raise it in the trial court. Defendant disputes that there was any forfeiture. We decline to decide whether there was any forfeiture; even if there were, we would exercise our discretion to address the issue on the merits to forestall a claim of ineffective assistance of counsel. (See People v. Riel (2000) 22 Cal.4th 1153, 1192 [96 Cal.Rptr.2d 1, 998 P.2d 969] (Riel).) We therefore turn to the merits of defendant's claim of error.
Even assuming for purposes of argument that the instructions were open to interpretations that would be erroneous, the parties' closing arguments, particularly the prosecution, diminished any possibility of confusion. (See Hajek, supra, 58 Cal.4th at p. 1220.) The prosecutor emphasized that both charged counts included a specific intent element, and told the jury that to convict defendant of count 1, it would have to find that "while [defendant] was transporting the controlled substance, he had to have the intent that at some point later on down the road he was going to sell." Defense counsel, too, emphasized in closing the "for sale" element of the transportation for sale charge.
Contrary to defendant's speculation that the jury might just have "found [he] transported the drugs, ignoring the `for sale' language entirely," the jury's first written communication with the trial court during deliberations establishes that the jury was in fact well aware that both of the "greater charges" had a "sale part." Moreover, the jury's note does not demonstrate any confusion about the "for sale" element of the charges, as defendant would have it; the note does not ask for any clarification of what that phrase means. Rather, the note is most plausibly read to indicate that the jury was
Similarly, the jury's second note to the court demonstrates that it understood its instructions regarding count 1 to require that defendant have transported a controlled substance "for sale" to be guilty of the offense. Otherwise, the jury would have seen nothing worthy of comment in the circumstance that the verdict form described the offense as "transportation of a controlled substance" (capitalization omitted), rather than "transportation for sale of a controlled substance."
Defendant contends that the jury's verdicts — on count 1, guilty of transportation for sale; on count 2, not guilty on the charged offense of possession for sale, but guilty on the lesser included offense of simple possession — demonstrate that the jury "likely believed the prosecution either did not need to prove the `for sale' element of transportation for sale or did not need to prove any form of wrongful intent by [defendant] on the `for sale' element of transportation for sale." We disagree.
In this case, however, the jury was instructed on possession with the then-current version of CALCRIM No. 2302, which on its face provided a more restrictive description of the required specific intent: "When the defendant possessed the controlled substance, he intended to sell it." (Italics added.) The transportation for sale instruction, CALCRIM No. 2300, was not similarly open to the interpretation that the offense was limited to sales conducted by defendant personally, requiring only that defendant "transported for sale" a controlled substance. So instructed, it was rational for the jury to have concluded that there was reasonable doubt as to whether defendant intended to sell the methamphetamine in his possession himself, but that there was no reasonable doubt he was transporting it "for sale" by someone, and to have returned the verdicts it did on that basis.
In short, in the circumstances of the present case, we find no reasonable likelihood that the jury applied its instructions in a manner that omitted the
Nevertheless, although CALCRIM No. 2300 tracks the language of section 11379, it is at best questionable whether, standing alone, the instruction adequately explains the specific intent element of the offense. In our view, the Judicial Council of California, which promulgates the CALCRIM instructions, should consider conforming the standard instruction for transportation for sale offenses under section 11379 to the instructions for other offenses with an analogous "for sale" element. Additionally, unless and until the standard instruction is amended, trial courts should consider modifying the instruction to be more explicit regarding the required intent. (See People v. Miranda (2008) 161 Cal.App.4th 98, 109-110 [73 Cal.Rptr.3d 759] (conc. opn. of Sims, J.) [quoting modified instruction given by trial court in transportation for sale case under former § 11379].)
B. The Trial Court Did Not Fail to Adequately Answer Questions from the Jury.
Defendant argues that the trial court abused its discretion by failing to adequately respond to the jury's questions during deliberations. We find no abuse of discretion.
Here, the trial court fulfilled its duty under Penal Code section 1138 when it responded to the jury's first note. The jury asked what to do if it could not reach a verdict. The trial court, in addition to inquiring about which count or counts gave rise to the question, directly answered the question posed, instructing the jury to reach a verdict or verdicts if possible, providing instruction on general methods to facilitate deliberations, and then ordering the jury to continue deliberating.
Defendant asserts that the trial court, when it learned that the jury was deadlocked on the "`sale part of the greater charges,'" should have "informed the jury that transportation for sale has no lesser charge." We disagree. The jury did not request information about any lesser included charges of the transportation for sale offense, and such an answer would not have been responsive to the question the jury asked. And, as discussed above, we reject defendant's assertion that the note demonstrates jury "confusion" about the "for sale" element of the offense.
We also find no error with respect to the trial court's response to the jury's third note. The jury asked for the definition of two terms; the trial court appropriately directed them to the jury instructions where their definitions, which defendant has not claimed to be incomplete or incorrect, could be found. (Gonzalez, supra, 51 Cal.3d at p. 1213.)
Whether the trial court erred in its response to the jury's second note is a somewhat closer question. The jury pointed out two perceived issues with its verdict forms; the words "for sale" were included in the description of the offense on the verdict form for the lesser included offense of count 2, simple possession, and the same words were omitted from the description of the offense for count 1, violation of section 11379. The trial court affirmatively responded only to one of these issues, providing the jury with new verdict
Nevertheless, we do not find any violation of the trial court's duty under Penal Code section 1138. As discussed below, we are not persuaded that the description of the offense in the verdict form was erroneous. Viewed in that light, the trial court was under no obligation to respond to the jury's second note by providing a modified set of verdict forms for count 1, as it properly did with the respect to the erroneous verdict forms for simple possession.
Additionally, we find no reasonable likelihood that the jury failed to understand the transportation for sale offense required the prosecution to prove defendant intended to transport a controlled substance for sale; the jury instructions, taken as a whole, adequately instructed on the issue; attorney argument from both the prosecution and defendant further reduced the likelihood of any confusion; and the jury's own questions demonstrate its understanding that defendant's intent to sell was an element of the offense. As such, defendant fails to demonstrate any prejudice arising from any arguable error in the trial court's responses to juror questions.
C. The Description of the Offense in the Verdict Form for Count 1 Does Not Constitute Prejudicial Error.
Defendant argues that the omission of the words "for sale" in the description of the offense on the verdict form used by the jury for count 1 — "transportation of a controlled substance" (capitalization omitted) — constitutes reversible error.
The verdict form at issue does not on its face purport to state any legal principles, let alone legal principles that are contrary to the jury's instructions. It is does not list out the elements of the offense required for the jury to
Defendant argues that the verdict form incorrectly identified the charge by omitting the words "for sale" from the description of the offense. But the description of the offense mirrors the statutory language of section 11379: subdivision (a) of section 11379 states that the section applies to "every person who transports ... any controlled substance ..."; separately, in subdivision (c), the definition of the word "transports" is limited to "transport for sale" in the current version of the statute. (§ 11379, subds. (a), (c).) Similarly, here, the verdict form identified the offense charged as count 1 as "transportation of a controlled substance," while the jury's instructions separately specify that to convict defendant, it must find he "transported for sale a controlled substance." We are therefore not persuaded that "transportation of a controlled substance" is an erroneous description of the offense, even if "transportation for sale of a controlled substance" is more complete.
Furthermore, as discussed above, the present record demonstrates that the jury in the present case was well aware that the offense charged in count 1 required the prosecution to prove defendant intended to transport a controlled substance for sale, regardless of the omission of those words from the description of the offense on the verdict form. To the extent that the description of the offense on the verdict form constituted error — and we are not persuaded that it did — the error was harmless, under any standard for determining prejudice.
D. The Cumulative Error Doctrine Does Not Apply.
Defendant contends the cumulative error doctrine applies to his asserted claims of instructional error. Under that doctrine, the cumulative effect of several trial errors may be prejudicial even if they would not be prejudicial when considered individually. (See People v. Sanchez (1995) 12 Cal.4th 1, 60, 63-64 [47 Cal.Rptr.2d 843, 906 P.2d 1129], overruled in part on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421 [87 Cal.Rptr.3d 209, 198 P.3d 11].) Here, however, we have found no error, though we have considered the issue of prejudice as an alternative basis for rejecting defendant's claims of error. As such, the cumulative error doctrine does not apply. Additionally, again in the alternative, we find any arguable errors also to be harmless when considered collectively, for the same reasons we have found no prejudice from them individually.
E. The Trial Court May Not Have Properly Understood the Scope of Its Sentencing Discretion, Requiring Reversal for Resentencing.
Defendant argues that the trial court abused its discretion by failing to understand the scope of its sentencing discretion, and in particular its discretion to dismiss or strike one or more of his section 11370.2 enhancements. We find the record to be ambiguous, but to contain enough support for defendant's claim of error to warrant remand.
There are aspects of the record in the present case that tend to suggest the trial court was well aware of its discretion to strike defendant's section 11370.2 enhancements pursuant to Penal Code section 1385, and simply chose not to exercise that discretion. On the People's motion, the trial court exercised its discretion under Penal Code section 1385 to dismiss another enhancement, for committing the charged crime while out on bail (Pen. Code, § 12022.1). Also, although the trial court commented that defendant's 17-year aggregate sentence was "a high price to pay" and "very substantial sentence," it also commented that defendant had "earned it" and "earned, quite frankly, potentially more." The court characterized the 17-year sentence as "consistent" with defendant's past and current offenses.
Nevertheless, parts of the record tend to suggest that the trial court did not understand it had the authority to impose a sentence of less than 17 years, by striking one or more of the five section 11370.2 enhancements. The trial court characterized the 17-year sentence as "the lowest sentence possible," and the "minimum." Perhaps the trial court intended only to express its intention to impose the low term of two years for the conviction on count 1, along with the terms associated with the enhancements, having affirmatively (but implicitly) exercised its discretion not to strike them. But these statements are equally well understood to indicate that the trial court believed had no means to impose any sentence lower than 17 years, if it was going to "follow the law." If the latter is true, the trial court misunderstood the scope of its discretion under Penal Code section 1385.
In short, on the present record, we cannot say that it is clear that the trial court recognized it had discretion to strike one or more of defendant's section 11370.2 enhancements, and expressly declined to do so. (Cf. People v. Deloza (1998) 18 Cal.4th 585, 600 [76 Cal.Rptr.2d 255, 957 P.2d 945] [finding trial court expressly declined to strike a prior felony conviction, but misunderstood scope of its discretion to impose concurrent sentences].) Nor is the record silent on the issue, justifying a presumption in favor of the judgment. (Carmony, supra, 33 Cal.4th at p. 378.) We do not agree with defendant's argument that the record conclusively establishes that the trial court misunderstood the scope of its discretion to strike one or more of the enhancements, but we do find that some of the trial court's comments during sentencing raise serious doubts in that regard. In the face of such an ambiguous record, it is appropriate to remand the matter to the trial court to consider the matter under the correct standard, to the extent it has not already done so.
F. Defendant's Arguments Regarding Cruel and Unusual Punishment Are Moot.
In light of our conclusion that the matter must be remanded for resentencing, defendant's arguments that his sentence constituted cruel and unusual punishment are moot.
The cause is remanded for resentencing to allow the trial court to consider, to the extent it has not already done so, whether some or all of the enhancements of defendant's sentence previously imposed pursuant to Health and Safety Code section 11370.2, subdivision (c), should be stricken pursuant to Penal Code section 1385. The trial court shall strike the three prison prior enhancements (Pen. Code, § 667.5), which were erroneously stayed. In all other respects, the judgment is affirmed.
Miller, J., and Slough, J., concurred.
The disposition of this appeal does not require discussion of any of the documents noticed. Nevertheless, we note that the noticed documents include evidence intended to support defendant's arguments regarding cruel and unusual punishment, which were not presented to the trial court at his initial sentencing. Because the matter is in any case being remanded for resentencing, we need not consider the propriety of presenting such new evidence on appeal; the trial court may consider it in the first instance on remand.