Filed 12/11/18 P. v. Goodall CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Joan P. Weber, Judge. Affirmed in part; reversed in part; remanded with directions.

Susan L. Ferguson, under appointment by the Court of Appeal, for Defendant and Appellant Marcus Goodall.

John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant Brian Schwickert.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting, Warren J. Williams, and Kristin Ramirez, Deputy Attorneys General, for Plaintiff and Respondent.

The jury convicted Marcus Goodall and Brian Schwickert of offering to sell heroin (Health & Saf. Code,[1] § 11352, subd. (a); count 1); possession of heroin for sale (§ 11351; count 2); transportation of methamphetamine (§ 11379, subd. (a); count 3); and possession of methamphetamine for sale (§ 11378; count 4). Goodall admitted prior convictions under sections 11379 and 11378; one prior conviction under Penal Code section 1203.07, subdivision (a)(11) as well as five prison priors under Penal Code sections 667.5, subdivision (b) and 668. Schwickert admitted that he was previously convicted under section 11351 within the meaning of Penal Code section 1203.07, subdivision (a)(3) and section 11370.2, subdivision (a).

The court sentenced Goodall to prison for 12 years, consisting of four years on count 1, plus three years for the enhancement under section 11370.2, subdivision (a) and one year for each of the five prison priors. The court sentenced Schwickert to prison for seven years, consisting of four years on count 1, plus three years for the enhancement under section 11370.2, subdivision (a).

Goodall appeals, contending the trial court improperly instructed the jury and the three-year enhancement under former section 11370.2, subdivision (c) must be stricken. Schwickert does not join Goodall's jury instruction challenge but argues that a similar three-year enhancement should be stricken as to him. We conclude that Goodall was not prejudiced by any instructional error. However, we agree that both Goodall and Schwickert are entitled to retroactive application of the recent amendments to section 11370.2. We therefore vacate their sentences and remand this matter back to the superior court for resentencing consistent with this opinion.

FACTUAL BACKGROUND

San Diego County Sheriff Detective Christian Franco discovered an advertisement for the sale of roofing tar in the Poway area on a couple of online sales communities. Franco knew the term "roofing tar" was commonly used to refer to black tar heroin. Additionally, he noted an image of a crystal in the listing, which he believed indicated that the advertisement was for the sale of heroin and methamphetamine. Schwickert was listed as the seller in the advertisement. Through the listing, Franco was able to contact him.

Franco told Schwickert that he needed two grams of heroin, and they had several conversations though Facebook Messenger about purchasing the drugs. However, Franco wanted to build a solid rapport with Schwickert to discover his drug supplier. As such, Franco continued to talk with Schwickert, but did not buy any drugs. During their communications, Schwickert asked Franco if he had any drugs to sell. Franco then realized that Schwickert was a "middleman" or "subdealer" with an inconsistent supply of narcotics. Franco tried to get Schwickert to connect him with his supplier, and Schwickert eventually told him that Goodall was his supplier and he could connect with him on Facebook. Franco attempted to message Goodall on Facebook, but Goodall did not respond.

Eventually, Schwickert told Franco that Goodall was available to sell him some heroin. Schwickert confirmed that Goodall would be able to sell Franco an ounce of heroin. Goodall confirmed with Franco that he would have a sample for him. Schwickert told Franco he would get a portion of the proceeds from the sale because he coordinated the transaction. They agreed to meet at the parking lot of a Fry's store in Mission Valley. When Schwickert and Goodall arrived together in the same car, they were arrested.

At the time of his arrest, Schwickert had two baggies of heroin and one baggie of methamphetamine in his pocket. A search of the car revealed two digital scales, two syringes, and several plastic bags containing heroin and methamphetamine. The total amount of heroin was 11.2 grams, and the total amount of methamphetamine was 8.28 grams. Inside the car's trunk, investigators discovered a "pay and owe" sheet.

The parties stipulated that Goodall was convicted of selling methamphetamine in 2012, and Schwickert was convicted of being in possession of a controlled substance for the purpose of sale in 2017.

A narcotics expert opined that the heroin and methamphetamine were possessed for the purpose of sale based on the weight and quantity, the presence of the scale, and the individualized packaging.

DISCUSSION

I

JURY INSTRUCTIONS

A. Background

When the court and the parties discussed jury instructions, the court was hesitant to instruct the jury under CALCRIM No. 416 (Evidence of Uncharged Conspiracy). The court noted that the jury would be instructed on aiding and abetting liability, and the court indicated that it believed the uncharged conspiracy instruction under CALCRIM No. 416 would complicate matters. Counsel for both Goodall and Schwickert requested that the court not instruct on uncharged conspiracy. The trial court ultimately decided that it was required to instruct the jury with CALCRIM No. 416 because it permitted the introduction of prearrest statements under the coconspirator exception to the hearsay rule. However, the court indicated that it was "not happy" to give the instruction.

The court instructed the jury under CALCRIM No. 416 as follows:

"The People have presented evidence of a conspiracy. A member of a conspiracy is criminally responsible for the acts or statements of any other members of the conspiracy done to help accomplish the goal of the conspiracy.

"To prove that a defendant was a member of a conspiracy in this case, the People must prove that, one, the defendant intended to agree and did agree with the other defendant to commit the crime of offering to sell heroin, possessing heroin for sale, transporting methamphetamine for sale, or possessing methamphetamine for sale;

"Two, at the time of the agreement, the defendant and the other alleged member of the conspiracy intended that one or more of them would commit the crime of offering to sell heroin, possessing heroin for sale, transporting methamphetamine for sale, or possessing methamphetamine for sale;

"Three, the defendants both committed at least one of the following overt acts to accomplish the crime of offering to sell heroin, possessing heroin for sale, transporting methamphetamine for sale, or possessing methamphetamine for sale, possessed heroin or possessed methamphetamine or agreed to meet at Fry's Electronics at 2:00 p.m., on May 24, 2017, drove to Fry's Electronics with heroin and methamphetamine;

"And four, at least one of these overt acts was committed in California.

"To decide whether a defendant or another member of the conspiracy committed these overt acts, consider all of the evidence presented about the acts.

"To decide whether a defendant and the other alleged member of the conspiracy intended to commit the crime of offering to sell heroin, possessing heroin for sale, transporting methamphetamine for sale, or possessing methamphetamine for sale, please refer to the separate instructions that I will give you on those crimes.

"The People must prove that members of the alleged conspiracy had an agreement and intent to commit the crime of offering to sell heroin, possessing heroin for sale, transporting methamphetamine for sale, or possessing methamphetamine for sale. The People do not have to prove that any of the members of the alleged conspiracy actually met or came to a detailed or formal agreement to commit one or more of these crimes.

"An agreement may be inferred from conduct if you conclude that members of the alleged conspiracy acted with a common purpose to commit the crime.

"An overt act is an act by one or more of the members of the conspiracy that is done to help accomplish the agreed-upon crime. The overt act must happen after the defendant agreed to commit the crime. The overt act must be more than the act of agreeing or planning to commit the crime, but it does not have to be a criminal act itself. You must all agree that at least one overt act was committed in California by at least one alleged member of the conspiracy, but you do not have to all agree on which specific overt act or acts were committed or who committed the overt act or acts. You must decide as to each defendant whether he was a member of the alleged conspiracy.

"The People contend that the defendants conspired to commit one of the following crimes:

"The crime of offering to sell heroin, possessing heroin for sale, transporting methamphetamine for sale, or possessing methamphetamine for sale.

"You may not find a defendant guilty under a conspiracy theory unless all of you agree that the People have proved that the defendant conspired to commit at least one of these crimes and you all agree which crime he conspired to commit.

"Someone who merely accompanies or associates with members of a conspiracy but who does not intend to commit the crime is not a member of the conspiracy. Evidence that a person did an act or made a statement that helped accomplish the goal of the conspiracy is not enough by itself to prove that the person was a member of the conspiracy."

During closing argument, the prosecutor discussed three theories of criminal liability: direct perpetrator, aiding and abetting, and uncharged conspiracy. When describing conspiracy, he asserted that "members of a conspiracy are responsible for the acts and statements of others members in furtherance of the goal," and "[a]t the time of the agreement, both defendants intended that at least one of them would commit the crime." The prosecutor provided the jury with an example of a person hiring a hit man. The person hiring the hit man would be "on the hook" for the coconspirator's act (in that example, murder). The prosecutor also discussed the overt act requirement of the conspiracy. In doing so, the prosecutor asserted as follows:

"Here, as alleged in this case, the actions are clear in that there's an apparent agreement between them because they're meeting, they're talking, they're both discussing with the detective. So implied agreement there. They actually get the narcotics in furtherance of the agreement, and then they agree on location, and then they go there. So we have obvious overt acts in furtherance of the conspiracy."

During her closing argument, Goodall's counsel also addressed the conspiracy instructions. To this end, she explained:

"The co-conspirator instruction that you received essentially says that Mr. Goodall needs to have made an agreement with Mr. Schwickert to commit the charged crime. So there needs to be evidence of some kind of an agreement between Mr. Goodall and Mr. Schwickert saying, 'Yes, I'm going to either participate in this sale, assist you in this sale, or otherwise facilitate this sale between you and Deputy Franco.'

"Again, we don't have that here. There's just no evidence of that. But the instruction says that the -- that an overt act must be completed in order to accomplish the crime. The prosecution has alleged two separate theories of overt acts in this case. Those are agreeing to meet at Fry's Electronics store and driving to Fry's Electronics store. The thing that's important with this particular instruction is that while committing the overt act alleged by the prosecution, Mr. Goodall has to not only participate in that overt act, but he has to previously, before those overt acts occurred, has to have previously formed the intent to sell or offer for sale, transport or possess for sale those narcotics. That has to have happened before."

After three hours of deliberations, the jury sent a note asking about the uncharged conspiracy instruction: "We would like clarification of CALCRIM 416. The definition of conspiracy uses the word 'or' in stipulations 1 and 2 and 'at least' in stipulation 3 and we don't know if that means conspiracy to commit one crime is automatically conspiracy to commit them all."

The parties and the court discussed how best to respond to the jury's note. Counsel for each of the defendants suggested referring the jury to CALCRIM No. 3515, which instructed that, "[e]ach of the counts charged in this case is a separate crime and are charged as alternative offenses. You must consider each count separately and return a separate verdict for each one." The prosecutor agreed with defense counsel that the jury would have to consider each count separately regarding the existence of the conspiracy. However, the prosecutor observed that "as a matter of law, a co-conspirator is liable for the acts of the other co-conspirator in furtherance." The prosecutor stated that he disagreed that one conspiracy automatically means that the defendant conspired to commit all the crimes, but noted if there was one conspiracy, the defendant would be liable for the acts of the coconspirator.

In response to the prosecutor's comments, the court observed that CALCRIM No. 416 told the jury that it could not find a defendant guilty under a conspiracy theory unless all jurors agree that the prosecutor proved that a defendant conspired to commit at least one of the enumerated crimes, and all 12 of the jurors agree as to that specific crime. Then the court asked the prosecutor: "And under your -- under what you're saying, which is that, under California conspiracy law, if you conspire to commit one of these and these other crimes are committed in the course of that conspiracy, that you are equally liable. [¶] So if I answered it the way defense counsel just indicated [referring the jury to CALCRIM No. 3515], isn't that inconsistent with that paragraph in 416?"

The prosecutor responded:

"I think it might be, and that's my concern. And I -- my request would either be to at least remind them or point them to the principle of law that states that if there is one conspiracy count that they agree on, that the other co-conspirator is liable. [¶] The other idea I had, which seems like it would be responsive, would be to potentially give them 417, which is a CALCRIM that relates specifically to the liability of a co-conspirator's act. [¶] [Court comment.] [¶] And I intentionally excluded that in hopes of not giving too much law, which I didn't do a very good job, but that was the reason I did not include it. I thought it to be applicable. I thought 416 touched on it, so I didn't think it was necessary. But now that I've seen this note, I think it could help clarify."

The court then stated, while reading and quoting the instruction, that CALCRIM No. 417 directly supported the prosecutor's point that "a member of a conspiracy is also criminally responsible for any act of any member of the conspiracy if that act is done to further the conspiracy and the act is a natural and probable consequence of the common plan or design." The court then conceded that CALCRIM No. 417 should have been given to the jury because it helps explain that portion of CALCRIM No. 416. The prosecutor agreed. Goodall's counsel stated that CALCRIM No. 417 "is an appropriate instruction" and asked for a certain bracketed portion of that instruction be given to the jury: "The defendant is not responsible for the acts of another person who is not a member of the conspiracy even if the acts of the other person helped accomplish the goal[.]"

Although he assented that "perhaps" CALCRIM No. 417 should have been given to the jury, Schwickert's counsel nevertheless objected to giving that instruction because it would undermine his closing argument. Schwickert's counsel further explained, "But my main opposition, Your Honor, would be that it does sort of put us at a disadvantage now that we've made our arguments, and I probably would have approach[ed] this a little bit differently had this instruction been given before."

The trial court responded:

"Right. And I feel that's a legitimate issue. This raises, for example, arguing, what was a natural and probable consequence of the original conspiracy? And what was the original conspiracy? [¶] And we all know that heroin was the drug discussed, not meth. So there are those issues apparent in this case, and [Schwickert's counsel] was foreclosed from the opportunity to give it. [¶] Again, in a situation where the reality is that aiding and abetting covers all of these issues, I really think it is fraught with danger to give conspiracy instructions. I'm just telling all of you this because I think these conspiracy instructions are horribly written and are incomprehensible, and that's why we're seeing this. I mean, they're just very, very confused. [¶] But I'm not -- I'm agreeing. I think we should have given 417 and given all counsel, but we're not going to bring everybody out and reargue what 417 means, you know, which is technically what we would do if you're giving a whole brand-new, page-long instruction that's also incomprehensible mid deliberations. [¶] I -- I say I just refer them again -- I ask them -- I think with -- here's the correct answer. Here's the legally correct answer: [¶] Element No. 1 and 2 correctly uses the word 'or.' [¶] Element No. 3, using the term 'at least,' is referring to the overt acts, not the charges themselves. You must find at least one overt act. [¶] And you did put down other overt acts beyond the crimes -- meet at the Fry's, et cetera. They need to find one of those overt acts. That would be answering the question according to the law. I don't know if that's going to confuse them more, but what say you?"

Both defense counsel agreed with the court's proposed response; however, the prosecutor voiced some concerns. He stated:

"Your Honor, I agree that it's accurate, and I understand the whole issues with 417. My request, which I know it's contained in 416. And just to respond, if I could, I understand [Schwickert's counsel's] concern. And, again, my -- part of my reasoning in not asking for it to begin with is because the first paragraph of 416 states that a member of a conspiracy is criminally responsible for the acts or statements of another member of the conspiracy done to help accomplish the goal. [¶] So my thought process in not asking for 417 was that that was a very abbreviated version of the principle without having to give another whole page-long response. So I know it's in there already, but in regards to the Court's proposed, my only request would be to add that into the response."

The prosecutor then requested that, in response to the jury's question, the court also remind the jury that "a member of a conspiracy is criminally responsible for acts of another member to help accomplish the goal." Schwickert's counsel objected to the prosecutor's suggested addition to the court's response because he did not believe it answered the jury's question.

After some additional discussion among the parties and the court, the trial court responded to the jury, with the approval of all parties, as follows: "The first and second element of 416 correctly uses the word 'or.' The third element correctly uses the words 'at least' to mean that the jury must find at least one of the overt acts listed in element #3."

After receiving the court's response, the jury continued to deliberate for 40 more minutes and then found defendants guilty on all counts.

C. Analysis

Goodall claims the court prejudicially erred in giving CALCRIM No. 416 without also giving CALCRIM No. 417.[2] Specifically, Goodall argues CALCRIM No. 416, as given in this case, coupled with the court's response to the jury's question about that instruction, allowed the jury to convict him under a conspiracy theory of liability on all counts, upon a mere finding that an agreement existed as to only one count. Because the court did not provide the jury with CALCRIM No. 417, Goodall asserts CALCRIM No. 416 was incorrect, misleading, and reduced the prosecution's burden of proof.

The People argue Goodall forfeited his challenge to the jury instructions here because he did not request CALCRIM No. 417 and did not object when the trial court opted not to provide that instruction to the jury. (People v. Guiuan (1998) 18 Cal.4th 558, 570.) The People also maintain Goodall forfeited any claim of error regarding the jury instructions because he did not object to or suggest a different response to the jury's inquiry about CALCRIM No. 416. (People v. Marks (2003) 31 Cal.4th 197, 237; see People v. Bohana (2000) 84 Cal.App.4th 360, 373.) We reject these contentions.

During a discussion among the parties and the court regarding a response to the jury's question about CALCRIM No. 416, the prosecutor suggested providing the jury with CALCRIM No. 417. Goodall's counsel agreed and explicitly asked for a specific portion of bracketed language to be included in the instruction. The trial court, however, declined to provide the instruction after Schwickert's counsel objected to it. And, although Goodall's counsel did not object to the court's response to the jury's question, the court crafted its response after a lengthy discussion about the response among the parties. During that discussion, Goodall's counsel asked the court to respond to the jury's question by referring the jury to CALCRIM No. 3515, but the prosecutor took issue with that response. Against this backdrop, we see no basis on which to find forfeiture. We thus will address Goodall's claims on the merits.

Goodall's claim of error here includes two components. First, Goodall asserts that the court committed prejudicial error by failing to instruct the jury under CALCRIM No. 417. Second, Goodall takes issue with the court's response to the jury's question, arguing that the response only confused the jury further. These two arguments implicate different questions on review. The first involves instructional error, which we review de novo. (People v. Posey (2004) 32 Cal.4th 193, 218.) "Review of the adequacy of instructions is based on whether the trial court 'fully and fairly instructed on the applicable law.' " (People v. Ramos (2008) 163 Cal.App.4th 1082, 1088.) In determining whether error has been committed in giving jury instructions, we consider the instructions as a whole and assume jurors are intelligent persons, capable of understanding and correlating all jury instructions which are given. (Ibid.) " 'Instructions should be interpreted, if possible, so as to support the judgment rather than defeat it if they are reasonably susceptible to such interpretation.' " (Ibid.) "The crucial assumption underlying our constitutional system of trial by jury is that jurors generally understand and faithfully follow instructions." (People v. Mickey (1991) 54 Cal.3d 612, 689, fn. 17.) Goodall spends the lion's share of his brief addressing the claimed instructional error.

The second component of Goodall's challenge here involves the court's obligation to respond to a jury's question under Penal Code section 1138. That section provides that when the jury "desire to be informed on any point of law arising in the case . . . the information required must be given." "[Penal Code] [s]ection 1138 . . . thereby creates a ' "mandatory" duty to clear up any instructional confusion expressed by the jury.' " (People v. Loza (2012) 207 Cal.App.4th 332, 355, quoting People v. Gonzalez (1990) 51 Cal.3d 1179, 1212.) "This does not mean the court must always elaborate on the standard instructions. Where the original instructions are themselves full and complete, the court has discretion under [Penal Code] section 1138 to determine what additional explanations are sufficient to satisfy the jury's request for information. [Citation.] Indeed, comments diverging from the standard are often risky. . . . But a court must do more than figuratively throw up its hands and tell the jury it cannot help. It must at least consider how it can best aid the jury. It should decide as to each jury question whether further explanation is desirable, or whether it should merely reiterate the instructions already given." (People v. Beardslee (1991) 53 Cal.3d 68, 97; italics omitted.) We review for an abuse of discretion any error under Penal Code section 1138. (People v. Eid (2010) 187 Cal.App.4th 859, 882.) Although Goodall suggests the court erred in responding to the jury's question, he does not discuss the applicable standard of review for this type of challenge. Moreover, he does not cite to Penal Code section 1138 anywhere in his opening brief. In contrast, the People specifically address Penal Code section 1138 in the respondent's brief. However, Goodall does not deal with the issue in his reply brief.

Goodall's silence regarding Penal Code section 1138 is curious because the claim that CALCRIM No. 417 should have been provided to the jury was raised below only in response to the jury's questions about CALCRIM No. 416. Before the jury's question, no party asked for CALCRIM No. 417 to be given. In fact, in a previous discussion about jury instructions, Goodall's counsel stated that he did not want the court to provide CALCRIM No. 416. With this background in mind, it appears that the most salient issue before us is the court's response to the jury's question, not instructional error. That said, as we discuss below, both the claimed instructional error and the court's response to the jury's question involve the omission of the same jury instruction, CALCRIM No. 417. Further, perhaps our distinction between the issues is merely academic because they both lead us to the same ultimate question: whether the trial court's error was prejudicial.

In addressing the merits of Goodall's arguments, the People first argue that the court did not have a sua sponte obligation to provide CALCRIM No. 417. We agree that, in general, a trial court does not have a sua sponte obligation to provide CALCRIM No. 417 simply because it provided CALCRIM No. 416. That the bench notes for CALCRIM Nos. 417 and 418 require a court to give CALCRIM Nos. 415 or 416 when CALCRIM Nos. 417 or 418 are given, does not prove the opposite. CALCRIM No. 417 involves the situation in which there is an issue whether a defendant is liable for an independent criminal act by a coconspirator. (People v. Flores (1992) 7 Cal.App.4th 1350, 1363.) Put differently, CALCRIM No. 417 typically applies when a prosecutor is proceeding on a natural and probable consequences theory for acts committed in furtherance of an uncharged conspiracy. (See CALCRIM No. 417; Flores, supra, at p. 1363; cf. People v. Zielesch (2009) 179 Cal.App.4th 731, 739.)

Here, the People argue that the prosecutor did not proceed on a natural and probable consequences theory. Moreover, they point out that CALCRIM No. 416 does not mention the natural and probable consequences doctrine either. Although the prosecutor never explicitly referenced the natural and probable consequences doctrine below, there is support in the record that his theory of liability through uncharged conspiracy implicated the natural and probable consequences doctrine.

The natural and probable consequences doctrine applies to conspirators and aiders and abettors. (People v. Prettyman (1996) 14 Cal.4th 248, 260-261.) It provides that "each member of a conspiracy is criminally responsible for the acts of fellow conspirators committed in furtherance of, and which follow as a natural and probable consequence of, the conspiracy, even though such acts were not intended by the conspirators as a part of their common unlawful design." (People v. Zielesch, supra, 179 Cal.App.4th at p. 739.) Whether an unplanned crime is a natural and probable consequence of a conspiracy to commit the intended crime does not depend on whether a conspirator " 'actually foresaw the additional crime, but whether, judged objectively, [the unplanned crime] was reasonably foreseeable.' " (Ibid.; italics omitted.) An unplanned crime need not even have been a strong probability. (Ibid.) "Whether the unplanned act was a 'reasonably foreseeable consequence' of the conspiracy must be 'evaluated under all the factual circumstances of the individual case' and 'is a factual issue to be resolved by the jury' [citation], whose determination is conclusive if supported by substantial evidence [citations]." (Id. at pp. 739-740.)

During the trial below, when the prosecutor first addressed conspiracy during his closing argument, he told the jury: "Conspiracy. That's the third theory of liability, and what the law tells us is members of a conspiracy are responsible for the acts and statements of other members in furtherance of the goal, right." Although he did not specifically reference the natural and probable consequences doctrine, he explains to the jury that a defendant may be liable for the acts of the other defendant in furtherance of a conspiracy. Such an argument borrows heavily from the natural and probable consequences doctrine.

Moreover, in response to the jury's question about CALCRIM No. 416, it is the prosecutor who suggested providing CALCRIM No. 417. The prosecutor stated CALCRIM No. 417 would be helpful because it "relates specifically to the liability of a co-conspirator's act." The prosecutor proceeded to explain that he "intentionally excluded" CALCRIM No. 417 earlier, not because he did not find the instruction germane to his theory of the case, but instead, he hoped not to give the jury "too much law." Further, the prosecutor stated that he "thought [CALCRIM No. 417] was applicable[,]" but thought 416 "touched" on the same issues, so he "didn't think it was necessary."[3] However, after seeing the jury's note, the prosecutor believed CALCRIM No. 417 "could help clarify."

Against this foundation, we are not persuaded by the People's claim that the prosecutor did not evoke the natural and probable consequences doctrine. Although we agree he did not use the phrase "natural and probable consequences doctrine," he clearly believed and represented to the trial court that CALCRIM No. 417 was applicable to his case and could be helpful to address the jury's confusion under CALCRIM No. 416. Moreover, the court and defense counsel agreed, after the prosecution suggested it, that CALCRIM No. 417 should have been provided to the jury in any event. As such, despite our agreement with the People that a court does not generally have a sua sponte obligation to provide CALCRIM No. 417 simply because it gave CALCRIM No. 416, the record here is clear that there was basis for the court to provide CALCRIM No. 417. (See People v. Avila (2009) 46 Cal.4th 680, 704-705.) Accordingly, we agree that it was error for the court not to provide the jury with CALCRIM No. 417.

Although we find it error for the jury not to have been instructed under CALCRIM No. 417, we note that the prosecution suggested, and Goodall agreed, that the court should provide the jury with CALCRIM No. 417 in response to the jury's question about CALCRIM No. 416. The court did not do so, but instead, essentially told the jury that CALCRIM No. 416 was correct as given. The People maintain the trial court did not abuse its discretion in responding to the jury because the court "reasonably concluded that the instructions provided to the jury were full and complete in light of the evidence presented[.]" To this end, the People assert the court appropriately exercised its discretion in "formulating a response to the jury's question on a point of law." (See People v. Williams (2015) 61 Cal.4th 1244, 1267; People v. Iboa (2012) 207 Cal.App.4th 111, 121.) We disagree.

The trial court stated that it was "not happy" in instructing the jury under CALCRIM No. 416. It believed that the instruction would complicate the issues before the jury. Moreover, after the jury's question, the court referred to the conspiracy instructions as "horribly written" and "incomprehensible[.]" Although the court made these comments outside the presence of the jury, clearly it believed the jury was struggling to understand CALCRIM No. 416. Further, the court stated that the jury should have been instructed under CALCRIM No. 417, but opted not to provide the instruction at that point because the parties had already concluded closing arguments. And when the court proposed its response to the jury's question, it noted that it was providing a "legally correct answer," but wondered if the answer was going to confuse the jury further. On this record, we cannot say that the court believed the jury instructions were full and complete. The court admitted that CALCRIM No. 417 should have been given. Also, the court questioned whether its "legally correct response" to the jury's question would only confuse the jury more. As such, this is one of those rare occasions where we find the court did abuse its discretion in responding to the jury's question. We thus must determine if the instructional error and the error in responding to the jury's question were prejudicial.

"The doctrine of conspiracy plays a dual role in our criminal law. First, conspiracy is a substantive offense in itself—'an agreement between two or more persons that they will commit an unlawful object (or achieve a lawful object by unlawful means), and in furtherance of the agreement, have committed one overt act toward the achievement of their objective.' [Citations.] Second, proof of a conspiracy serves to impose criminal liability on all conspirators for crimes committed in furtherance of the conspiracy." (People v. Salcedo (1994) 30 Cal.App.4th 209, 215; see People v. Valdez (2012) 55 Cal.4th 82, 150 ["Our decisions have 'long and firmly established that an uncharged conspiracy may properly be used to prove criminal liability for the acts of a coconspirator.' "].) Accordingly, there is nothing wrong with the prosecution arguing that a conspirator can be criminally liable for the acts of his coconspirator in furtherance of the conspiracy. However, Goodall contends that the failure to provide the jury with CALCRIM No. 417 coupled with the court's inadequate response to the jury's question about CALCRIM No. 416, led the jury to believe that it could convict Goodall on all four counts if it found the prosecutor proved that Goodall and Schwickert engaged in a conspiracy to commit one of the counts. Consequently, Goodall contends the court erred by presenting the jury with a legally invalid theory on which to convict him.[4]

When a jury is presented with a legally invalid theory to support a charge, such as a theory which " ' "fails to come within the statutory definition of the crime" ' " reversal generally is required unless " 'it is possible to determine from other portions of the verdict that the jury necessarily found the defendant guilty on a proper theory.' " (People v. Perez (2005) 35 Cal.4th 1219, 1233, quoting Guiton, supra, 4 Cal.4th at pp. 1128, 1130.) "Trial courts have the duty to screen out invalid theories of conviction, either by appropriate instruction or by not presenting them to the jury in the first place." (Id. at p. 1131.) Goodall therefore argues reversal is required here because we cannot ascertain, based on the verdict, that the jury convicted him under a legally valid theory. In support of his position, Goodall argues People v. Aledamat (2018) 20 Cal.App.5th 1149 (Aledamat), review granted, July 5, 2018, S248105 is instructive.

In Aledamat, the defendant was charged with assault with a deadly weapon, inter alia, after he thrusted the exposed blade of a box cutter toward the victim and threatened to kill him. It was further alleged defendant personally used a deadly or dangerous weapon in violation of Penal Code section 12022, subdivision (b)(1). (Aledamat, supra, 20 Cal.App.5th at pp. 1151-1152, review granted.) Before deliberations, the judge instructed the jury a " 'deadly weapon' " was " 'any object, instrument, or weapon that is inherently deadly or one that is used in such a way that it is capable of causing or likely to cause death or great bodily injury.' " (Id. at p. 1152.) In his summation, the prosecutor told the jury a box cutter constituted a deadly weapon because " '[i]f [it is] used in a way to cause harm, it would cause harm.' " (Ibid.) In rebuttal, he added a box cutter was "an 'inherently deadly weapon' because 'you wouldn't want your children playing with' it." (Ibid.) The jury found the defendant guilty as charged and found true the deadly weapon allegation. (Ibid.)

On appeal, Division Two of the Second Appellate District reversed the assault conviction and the deadly weapon enhancement. (Aledamat, supra, 20 Cal.App.5th at pp. 1151, 1155, review granted.) The appellate court found that the trial court erroneously instructed the jury it could find the defendant's box cutter to be an inherently deadly weapon. (See id. at p. 1153.) Furthermore, the court found the error prejudicial because it could not ascertain from the record whether the jury relied on a legally invalid or legally valid theory to convict the defendant. (Id. at pp. 1153-1154.)

Putting aside the fact that our high court granted review in Aledamat to address the standard of review employed by the appellate court, we do not find that case instructive here in any event. Unlike the trial court in Aledamat, here, the trial court here did not instruct the jury that it could convict Goodall under a legally incorrect theory. Although the jury was confused whether it could convict Goodall of all charged offenses if it found a conspiracy as to one, there was no jury instruction that told the jury it could do so. CALCRIM No. 416 did not instruct the jury as such. Further, the jury was instructed under CALCRIM No. 3515, which told the jurors that they had to consider each count separately and return a verdict for each one. While we agree with Goodall that the trial court's response to the jury's question did little to alleviate the jury's confusion, the response did not tell the jury it was okay to convict Goodall based on a legally invalid theory. Also, unlike the prosecutor in Aledamat, the prosecutor did not misstate the law or tell the jury it could convict Goodall based on a legally invalid theory. As such, Aledamat, supra, 20 Cal.App.5th 1149, review granted, and Guiton, supra, 4 Cal.4th 1116 do not apply to the instant matter, and we do not apply the standard of review found in those case.

Generally, instructional error cannot be the basis of reversing a conviction unless " 'an examination of the entire cause, including the evidence,' indicates the error resulted in a 'miscarriage of justice.' " (People v. Breverman (1998) 19 Cal.4th 142, 173; italics omitted.) "Under such circumstances, [t]he prejudicial effect of such error is to be determined, for purposes of California law, under the generally applicable reasonable-probability test in [People v.] Watson [(1956) 46 Cal.2d 818 at page 836]." (Breverman, supra, at p. 174.) The same prejudice analysis typically applies to a court's failure to adequately respond to a jury's question under Penal Code section 1138. (See People v. Roberts (1992) 2 Cal.4th 271, 326.) Nevertheless, Goodall maintains that the alleged prejudice should be analyzed under the more stringent standard found in Chapman v. California (1967) 386 U.S. 18 at page 24 because the instructional error reduced the prosecution's burden of proof and permitted the jury to proceed on an invalid theory of liability. We need not resolve this dispute, however, as the alleged errors were harmless under either standard.

The evidence in the record overwhelming establishes Goodall entered into a conspiracy with Schwickert to separately commit all of the alleged crimes and not only one alone. For example, Goodall personally texted Franco that they would meet the following day as had previously been discussed with Schwickert. Goodall told Franco that he had some drugs that he could sample if he wanted in response to repeated requests for heroin. In addition, Goodall acknowledged the car that he and Schwickert arrived in for the drug deal was his rental vehicle. Goodall drove the car to the Fry's parking lot. Schwickert had two baggies of heroin and one baggie of methamphetamine in his pocket, three baggies of heroin and one baggie of methamphetamine were found in a bag in the back seat of the car, one baggie of heroin and one baggie of methamphetamine were found in the center console, and one baggie of methamphetamine was found in the glove compartment. In addition, "pay and owe" sheets were found in the trunk of the car and two digital scales were discovered in the car (one behind the front passenger seat in a rear pocket and the second in the glove compartment). A prosecution's expert opined that the heroin and methamphetamine were possessed for the purpose of sale based on the weight and quantity, the presence of the scale, and the individualized packaging. And, the parties stipulated that Goodall had previously been convicted of selling methamphetamine in 2012.

Although we observe that Goodall and Schwickert had only discussed the sale of heroin with Franco before their planned meeting, the drugs were dispersed and intermingled throughout Goodall's car in such a manner that it would be highly improbable for the jury to find that Goodall specifically conspired to commit one of the four alleged crimes, but not all of them. In addition, in the original advertisement that led Franco to Schwickert and eventually Goodall, Franco stated that he noticed an image of a crystal, which he believed indicated that the advertisement was for the sale of methamphetamine as well as heroin. Thus, the evidence established that the crimes of offering to sell heroin, possessing heroin for sale, transporting methamphetamine for sale, and possessing were all part of a conspiracy entered into by Goodall and Schwickert.

Even if the jury had been instructed that Goodall was not criminally responsible for independent acts by his coconspirator that did not further the conspiracy's common plan or were not the natural and probable consequences of the common plan (CALCRIM No. 417), the evidence establishing guilt was mountainous, and we are confident that the error was harmless beyond a reasonable doubt.[5]

II

SECTION 11370.2 ENHANCEMENTS

Goodall received a three-year enhancement to his sentence under section 11370.2, subdivision (a) for a previous conviction under section 11379. The court stayed an additional three-year enhancement under the same statute. Schwickert received a three-year enhancement to his sentence under section 11370.2, subdivision (a) for a previous conviction under section 11351. The court stayed two additional three-year enhancements under section 11370.2, subdivision (c). Defendants argue, and the People concede, that the three-year enhancements must be stricken under Senate Bill No. 180. We agree.

Senate Bill No. 180 amended section 11370.2, effective January 1, 2018, to remove certain convictions, including violations of sections 11378, 11379, and 11351, from the list of prior convictions that qualify for a sentence enhancement under section 11370.2. (Stats. 2017, ch. 677, § 1.) Instead, only the crime of using a minor in the commission of offenses involving specified controlled substances is now subject to the enhancement. (§ 11370.2.)

Because the judgment in this case is not yet final and the legislative change would lessen the punishment, under In re Estrada (1965) 63 Cal.2d 740, the amendment to section 11370.2 applies retroactively to the sentences imposed in this case. (People v. Millan (2018) 20 Cal.App.5th 450, 455; People v. Zabala (2018) 19 Cal.App.5th 335, 344.) On remand, the trial court is directed to strike the section 11370.2, subdivision (a) enhancements as to Goodall and Schwickert as well as the stayed enhancements under section 11370.2, subdivision (c). The court then may reconsider the relevant circumstances and resentence Goodall and Schwickert appropriately.

DISPOSITION

The sentences as to both Goodall and Schwickert are vacated. In all other respects, the judgment is affirmed. We remand this matter back to the trial court with directions to strike all enhancements under section 11370.2, subdivisions (a) and (c), to the extent applicable, to both Goodall and Schwickert. The court is then to resentence Goodall and Schwickert consistent with this opinion. The court is directed to amend the respective abstracts of judgment to reflect the new sentences and forward amended abstracts of judgment to the Department of Corrections and Rehabilitation.

HUFFMAN, J.

WE CONCUR:

BENKE, Acting P. J.

NARES, J.