P. v. Richey

Filed 6/21/06 P. v. Richey CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Richard J. Hanscom, Judge. Affirmed.

A jury convicted Kim E. Richey of possessing cocaine base for sale and possessing narcotics paraphernalia. (Health & Saf. Code, §§ 11351.5, 11364.) The court sentenced her to prison for the four-year middle term for possessing cocaine base for sale. It dismissed the conviction of possessing narcotics paraphernalia. (Pen Code, § 1385.) Richey contends the court erred in instructing the jury with CALJIC No. 2.01 instead of CALJIC No. 2.02.

FACTS

On December 27, 2004, San Diego Police Officer Robert Summers was on patrol in the area of 5400 El Cajon Boulevard, a high narcotics area, when he saw Richey loitering in the parking lot of the Travel Time Motel. Summers contacted Richey, and he searched her and found $333 in her pant's pocket and a pipe used to smoke cocaine in her purse. Summers arrested Richey. He then found a rock like substance identified as cocaine base wrapped in tissue paper in her purse. Officer Steven Dyer arrived and searched Richey's car. He found another pipe in a Marlboro cigarette box in a vinyl zipper bag in the trunk of the car and another rock-like substance identified as cocaine base on the floorboard of the car. When they arrived at headquarters, officers found a baggie containing 1.70 and 1.17 grams of rock cocaine in Richey's pants. Richey did not appear to be under the influence of a controlled substance. Officer Dyer, an expert on drug sales, testified that based primarily on the amount of cocaine base Richey possessed he believed she possessed it with the intent to break it into smaller rocks of cocaine base and sell the pieces. The defense conceded that Richey possessed the drug but argued she possessed it for personal use. The defense called no witnesses.

DISCUSSION

Relying on the use notes for CALJIC No. 2.01 and CALJIC No. 2.02, Richie argues that since the only issue before the jury was whether she had the intent to sell the drugs she possessed, the trial court reversibly erred in giving CALJIC No. 2.01 instead of CALJIC No. 2.02. CALJIC No. 2.01 provides:

"However, a finding of guilt as to any crime may not be based on circumstantial evidence unless the proved circumstances are not only (1) consistent with the theory that the defendant is guilty of the crime, but (2) cannot be reconciled with any other rational conclusion.

"Further, each fact which is essential to complete a set of circumstances necessary to establish the defendant's guilt must be proved beyond a reasonable doubt. In other words, before an inference essential to establish guilt may be found to have been proved beyond a reasonable doubt, each fact or circumstance on which the inference necessarily rests must be proved beyond a reasonable doubt.

"Also, if the circumstantial evidence [as to any particular count] permits two reasonable interpretations, one of which points to the defendant's guilt and the other to [her] innocence, you must adopt that interpretation that points to the defendant's innocence, and reject that interpretation that points to [her] guilt.

"If, on the other hand, one interpretation of this evidence appears to you to be reasonable and the other interpretation to be unreasonable, you must accept the reasonable interpretation and reject the unreasonable."

CALJIC No. 2.02 provides:

"The [specific intent] [or] [and] [mental state] with which an act is done may be shown by the circumstances surrounding the commission of the act. However, you may not [find the defendant guilty of the crime charged [in Count[s] , , and ], [or] [the crime[s] of , , , which [is a] [are] lesser crime[s]],] [or] [find the allegation to be true,] unless the proved circumstances are not only (1) consistent with the theory that the defendant had the required [specific intent] [or] [and] [mental state] but (2) cannot be reconciled with any other rational conclusion.

"Also, if the evidence as to [any] [specific intent] [or] [mental state] permits two reasonable interpretations, one of which points to the existence of the [specific intent] [or] [mental state] and the other to its absence, you must adopt that interpretation which points to its absence. If, on the other hand, one interpretation of the evidence as to the [specific intent] [or] [mental state] appears to you to be reasonable and the other interpretation to be unreasonable, you must accept the reasonable interpretation and reject the unreasonable."

Richey did not object to failure to give CALJIC No. 2.02 in the trial court. She accurately points out that the use notes to CALJIC No. 2.01 and CALJIC No. 2.02 state that CALJIC No. 2.02 and not CALIJC No. 2.01 should be given where the only issue based on circumstantial evidence is the defendant's mental state. Here, we note that CALJIC No. 2.01 includes all issues where guilt is based on circumstantial evidence, including the defendant's mental state. Richey refers us to no case, which concludes the trial court reversibly errs when, without objection, it gives CALJIC No. 2.01 instead of CALJIC No. 2.02. Even if the court should have given CALJIC No. 2.02 and not CALJIC No. 2.01, the error was harmless. As the reviewing court said in People v. Morrison (1979) 92 Cal.App.3d 787, 794-795:

"Assuming arguendo that the failure to instruct sua sponte was error, the standard which must be used to judge such error would be that articulated in People v. Watson (1956) 46 Cal.2d 818, 834. 'No judgment shall be set aside, or new trial granted, in any case, on the ground of misdirection of the jury, or of the improper admission or rejection of evidence, or for any error as to any matter of pleading, or for any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.' [Citation.]"

After review of the record, we find no miscarriage of justice here.

DISPOSITION

The judgment is affirmed.

BENKE, Acting P. J.

WE CONCUR:

AARON, J.

IRION, J.

Publication courtesy of California pro bono lawyer directory.

Analysis and review provided by Chula Vista Apartment Manager Lawyers.