P. v. Jones

Filed 7/26/07 P. v. Jones CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, John M. Thompson, Judge. Affirmed.

Kenneth Williams Jones was convicted by a jury of transportation of marijuana (Health & Saf. Code,  11360, subd. (a); count 1). The jury made a true finding the transportation was not for personal use (Pen. Code,  1210, subd. (a)), and Jones admitted he had a prison prior conviction (Pen. Code,  667.5, subd. (b), 668). He was sentenced to a middle term of three years for count 1 and a consecutive one-year term for the prior conviction for a total term of four years.

Jones contends his conviction must be reversed because the court failed to instruct sua sponte on the not-for-personal use allegation, the instructions deprived him of his right to present a defense, the prosecutor committed misconduct by raising his poverty as a motive for the drug sales, and the court should have granted a new trial based on the prosecutorial misconduct. We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

During the afternoon of November 20, 2005, the police stopped Jones for a minor traffic infraction and noticed a strong odor of marijuana coming from the vehicle. After Jones gave one of the officers various paperwork, he pulled a baggie of marijuana from the ashtray and said, "Here, I might as well give this to you because you are going to find it anyway." Jones was arrested. In his pockets, the police found another baggie of marijuana, a box of zig-zag cigarette papers, and $1,047 in cash. Under a plastic tray in the center console of the vehicle, the police found a baggie containing nine separate baggies of marijuana. The marijuana totaled 127.38 grams, which is about four and one-half ounces. No pay and owe sheets, packaging materials or scales were found in either the car or in Jones's house. Both of the police officers involved in arresting Jones testified they believed the marijuana was possessed for sale rather than personal use. A police detective also testified that it appeared Jones was selling marijuana given the amount of marijuana, the presence of the nine baggies that were "ready to sell," and the amount of cash.

Defense

Jones suffered pain in his leg and occasionally had difficulty walking due to being shot in the ankle. The pain was aggravated by his job delivering appliances where he sometimes moved heavy refrigerators up flights of stairs. When pain medication prescribed by a doctor caused side effects such as dizziness and drowsiness, Jones asked the doctor if marijuana could alleviate the pain. The doctor responded that marijuana might help.

Not long before he was arrested, Jones pawned jewelry, cashed a paycheck, and obtained a loan from his boss. He did not have a bank account and therefore carried his money in his pocket. On November 20, Jones began the day with $1,200 in cash. He decided to buy more marijuana than usual because he had more money than usual and he knew that after paying his bills and various expenses related to the upcoming holidays, he might not be able to afford to buy marijuana. Jones purchased the marijuana just before he was arrested.

Jones was charged in count 1 with transportation of marijuana with the allegation the transportation was not for personal use and in count 2 with possession of marijuana for sale (Health & Saf. Code,  11359). The jury convicted Jones on count 1 and found true the allegation the transportation was not for personal use. The jury hung on count 2 and the court declared a mistrial.

DISCUSSION

I

Instructions

Jones contends the court should have instructed the jury that the not-for-personal use allegation required specific intent and should have sua sponte defined "personal use" for the jury. He contends that as a result of the erroneous instructions the jury was left with the impression the transportation of marijuana with its not-for-personal use allegation required only a general intent. He also contends the erroneous instructions violated his constitutional right to present a defense.

With the concurrence of both counsel, the court instructed the jury with a modified version of CALCRIM No. 2.52 that stated:

"The crime charged in count 1 (transportation) requires proof of the union, or joint operation, of act and wrongful intent.

"That crime[s] [and allegation[s]] require[s] general criminal intent. To be guilty of (this) offense, a person must not only commit the prohibited act, but must do so intentionally or on purpose. It is not required, however, that the person intend to break the law. The act required is explained in the instruction for each crime [or allegation].

"The crime alleged in count 2 (possession for sale) require[s] a specific intent or mental state. To be guilty of (this) offense, a person must not only intentionally commit the prohibited act, but must do so with a specific intent or mental state. The act and the intent or mental state required are explained in the instruction for each crime [or allegation].

The court also instructed the jury with a modified version CALCRIM No. 2361 which set out the elements that must be proven for a conviction of transporting more than 28.5 grams of marijuana:

"The defendant is charged in Count One with/transporting more than 28.5 grams of marijuana, a controlled substance.

"To prove that the defendant is guilty of this crime, the People must prove that:

"1. The defendant unlawfully transported a controlled substance;

"2. The defendant knew of its presence;

"3. The defendant knew of the substance's nature or character as a controlled substance;

"4. The controlled substance was marijuana;

"AND

"5. The marijuana possessed by the defendant weighed more than 28.5 grams.

"[A person transports something if he or she carries or moves it from one location to another, even if the distance is short.]

"[A person does not have to actually hold or touch something to (give it away/transport it). It is enough if the person has (control over it/[or] the right to control it), either personally or through another person.]" (Original brackets.)

The court instructed the jury on a medical marijuana defense, telling the jury that transportation of marijuana was not unlawful if the transportation was for personal medical purposes if a physician had recommended such use. Under the instruction, the People were given the burden of proving beyond a reasonable doubt that Jones was not authorized to possess or transport marijuana for medical purposes.

The court also instructed the jury that if it found as to count 1 that "the People have not proven beyond a reasonable doubt the truthfulness of the allegation that the marijuana was not possessed for personal use, and/or as to [c]ount 2, Possession for Sale, you find that the People have not proven beyond a reasonable doubt that the Defendant possessed the marijuana for sale" then the jury could consider Jones's defense of medical use. The court stated that Jones was not guilty of transportation or simple possession (a lesser included offense of possession for sale) if he reasonably believed he possessed the marijuana for a medicinal use, and the use was recommended or approved by a physician. The court also told the jury that it could not consider the medical marijuana defense if it found the transportation was not for personal use or he possessed the marijuana for sale.

The jury instructions did not include an instruction specifically defining "personal use." Nor did the court, as requested by defense counsel, instruct the jury that the transportation count involved a specific intent.

"Transportation of a controlled substance is established by carrying or conveying a usable quantity of a controlled substance with knowledge of its presence and illegal character." (People v. Meza (1995) 38 Cal.App.4th 1741, 1746.) Unlawful transportation of marijuana is a general intent crime. (See People v. Cortez (1985) 166 Cal.App.3d 994, 997-998.) A general intent crime is one where the question is whether the defendant intended to do the proscribed act without requiring proof that he or she had a specific mental state when the act was committed. (People v. Reyes (1997) 52 Cal.App.4th 975, 983.) However, under the Compassionate Use Act, an individual who is a "qualified patient" is entitled to possess and transport certain amounts of marijuana for personal medical purposes upon the recommendation of a physician. (Health & Saf. Code,  11362.5; People v. Wright (2006) 40 Cal.4th 81, 84, 85, 89-90.) Penal Code section 1210.1, subdivision (a) requires the court to grant probation to defendants who establish their transportation of drugs was for personal use.

The trial court has a duty to instruct the jury on general principles of law that are closely and openly connected with the evidence and necessary to the jury's understanding of the case. (People v. Cummings (1993) 4 Cal.4th 1233, 1311.) A trial court must instruct on every element of a charged crime. (People v. Flood (1998) 18 Cal.4th 470, 480-481, 491.) In evaluating the correctness of the instructions given to the jury, we look at all the instructions, not merely a single instruction or a part of that instruction. (People v. Musselwhite (1998) 17 Cal.4th 1216, 1248; People v. Castillo (1997) 16 Cal.4th 1009, 1016.) Reversal is not warranted for an instructional error unless there is a reasonable (not merely theoretical) possibility that the instructional error affected the outcome of the trial. (People v. Watson (1956) 46 Cal.2d 818, 836; People v. Blakeley (2000) 23 Cal.4th 82, 94.)

As Jones acknowledges, transportation of marijuana is a general intent crime. Thus, he was guilty of the crime regardless of whether he intended the transportation for personal use or had some other intent. The allegation that the transportation was not for personal use did not convert the offense into a specific intent crime but rather involved a separate sentencing matter, that is, whether Jones would be granted probation under Penal Code section 1210.1, subdivision (a). The verdict form given to the jury segregated the not-for-personal use allegation from the substantive offense of transportation of marijuana, that is, the jury was required to separately find Jones was guilty of transportation of marijuana before determining whether to make a true finding that the transportation was not for personal use. Thus, to the extent Jones argues that the court was required to instruct the jury that the transportation of marijuana count required a finding of specific intent, we find no merit.

Nor do we find the court was required to instruct sua sponte on the meaning of "personal use" or on the allegation. The term "personal use" has no technical, legal meaning requiring a definitional or clarifying instruction. Nor does Jones address any argumentas to what instructions the court should have given to the jury other than a specific intent requirement. Moreover, any error in failing to instruct the jury on the personal use allegation was clearly harmless. The primary issue in the case was whether Jones possessed and transported the marijuana for personal use rather than for sales and thus the issue was clearly presented to the jury. Additionally during closing argument, the prosecutor argued the People's theory was that Jones "intended to sell" the marijuana and thus, made it clear the jury was required to determine Jones's specific intent in deciding whether the allegation was true.^[1] (Italics added.)

Finally, the instructions as given did not deprive Jones of a defense. The court properly instructed the jury not to consider the medical marijuana defense unless it found the transportation was for personal use or the possession was not for sale. Personal use of the marijuana was a prerequisite to application of Jones's medical use defense.^[2] In this case, the instructions did not deprive Jones of the jury's consideration of his defense; rather, the jury rejected his claim that he was transporting the marijuana for personal use.

II

Prosecutorial Misconduct

Jones contends the prosecutor committed misconduct by improperly arguing his poverty as a motive to transport and sell marijuana.

A prosecutor commits misconduct that violates the Fourteenth Amendment to the federal Constitution when the prosecutor's conduct "infects the trial with such unfairness as to make the conviction a denial of due process. Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the trial court or the jury." (People v. Morales (2001) 25 Cal.4th 34, 44; People v. Ayala (2000) 23 Cal.4th 225, 283-284.) "What is crucial to a claim of prosecutorial misconduct is not the good faith vel non of the prosecutor, but the potential injury to the defendant." (People v. Benson (1990) 52 Cal.3d 754, 793.) The defendant bears the burden of demonstrating the misconduct was prejudicial. (People v. Williams (1997) 16 Cal.4th 153, 255.) "To be prejudicial, prosecutorial misconduct must bear a reasonable possibility of influencing the . . . verdict. [Citations.] In evaluating a claim of prejudicial misconduct based upon a prosecutor's comments to the jury, we decide whether there is a reasonable possibility that the jury construed or applied the prosecutor's comments in an objectionable manner." (People v. Cunningham (2001) 25 Cal.4th 926, 1019; People v. Jackson (1996) 13 Cal.4th 1164, 1240.)

"Under the well-established rule, a defendant's poverty generally may not be admitted to prove a motive to commit a robbery or theft; reliance on such evidence is deemed unfair to the defendant, and its probative value is outweighed by the risk of prejudice." (People v. Koontz (2002) 27 Cal.4th 1041, 1076.) "While 'lack of money is logically connected with a crime involving financial gain . . . [t]he trouble is that it would prove too much against too many.' [Citation.] As the court explained in United States v. Mitchell (9th Cir. 1999) 172 F.3d 1104, 'Lack of money gives a person an interest in having more. But so does desire for money, without poverty. A rich man's greed is as much a motive to steal as a poor man's poverty. Proof of either, without more, is likely to amount to a great deal of unfair prejudice with little probative value.' " (People v. Carrillo (2004) 119 Cal.App.4th 94, 102.) "In some circumstances, however, evidence of a defendant's poverty is admissible for the limited purpose of refuting a claim that he did not commit the offense because he did not need the money, or to eliminate other possible explanations for sudden wealth after the occurrence of a theft offense." (People v. Koontz, supra, 27 Cal.4th at p. 1076.)

During direct examination, both Jones and his girlfriend testified that he did not have a bank account and had recently pawned jewelry to obtain money for a vehicle repair Jones additionally testified about obtaining a loan from his employer. During cross-examination, without objection, the prosecutor asked Jones and his girlfriend whether their financial situation was "pretty tight" and elicited from Jones that he did not have "that much money" or "extra money" in November 2005.

While discussing the jury instructions, defense counsel stated that he assumed the prosecutor was "going to argue tough financial times" and requested the court to prohibit the prosecutor "from essentially arguing poverty as a basis for possession for sale or drugs sales or transportation." The court responded, "Getting greedy" and denied the request.

During closing argument, the prosecutor argued that between the time of his arrest and time of trial, Jones had developed "virtually an excuse for everything." The prosecutor noted how Jones now had an explanation for the cash he had been recently paid and borrowed money from his employer. The prosecutor then argued, "But when I asked him, you know, things were tight, finances were tight, he had substantial bills to pay." Defense counsel objected and the court overruled the objection. During rebuttal argument, in response to defense counsel's argument that drug dealers did not like to work and would not work such a physically demanding job as Jones had, the prosecutor argued the jury should reject the defense argument because it was not unreasonable for someone in tight financial circumstances to work and sell drugs on their free time or to support their habit.

Here, while we agree with defense counsel that the prosecutor was not entitled to argue poverty as a motive for the offenses and thus the court erred in that regard, we disagree with defense counsel's conclusion that the actual argument by counsel was improper. The prosecutor did not argue poverty as a motive. Instead, the prosecutor argued: (1) Jones's claim that he bought in bulk because his financial circumstances were tight was not believeable; and (2) Jones's claim that a drug dealer would not work at the physically demanding job that Jones had should be rejected, because some drug dealers worked and sold drugs in their free time. Both arguments were proper comments on the defense theories and did not constitute prosecutorial misconduct.

III

New Trial Motion

Jones contends the court erred in denying his motion for a new trial based on prejudicial misconduct by the prosecutor. Since we have concluded the prosecutor did not commit misconduct, we conclude the court properly denied his new trial motion.

DISPOSITION

The judgment is affirmed.

McCONNELL, P. J.

WE CONCUR:

HUFFMAN, J.

IRION, J.

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^[1] The prosecutor argued: "There's this extra allegation the judge was talking about. That extra allegation is when he is transporting this marijuana, he transported it not with the intent of using it for himself. Presumably he intended, our theory, that he intended to sell it."

^[2] We note the defense also applies to a caregiver for a qualified patient. (Health & Saf. Code,  11362.5, subd. (d).) There is no claim in this case that Jones was a caregiver.