APPEAL from a judgment of the Superior Court of Imperial County, Barrett J. Foerster, Judge. Affirmed. (Super. Ct. No. JCF 22064).
The opinion of the court was delivered by: Aaron, J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
Defendant Sharon Riley appeals from a judgment of conviction after a jury convicted her of possessing marijuana in a prison facility, in violation of Penal Code section 4573.6.*fn2 Riley was teaching at Calipatria State Prison when correctional officers at the prison searched her belongings and found a small coin purse that contained approximately .47 grams of marijuana.
On appeal, Riley contends that the trial court erred in denying her motion for judgment of acquittal and in permitting the prosecution to reopen its case to present evidence that the amount of marijuana found in the coin purse is a "usable amount." In a related argument, Riley claims that the trial court abused its discretion in allowing the prosecution to recall one of its witnesses to testify that .47 grams of marijuana is a usable amount. Finally, Riley contends that the trial court erred in instructing the jury with a revised version of CALCRIM No. 220, which she maintains fails to instruct the jury that the prosecution must prove each element of the offense beyond a reasonable doubt.
We conclude that Riley's claims are without merit, and affirm the judgment of the trial court.
II. FACTUAL AND PROCEDURAL BACKGROUND
1. The Prosecution's Case
In September 2007, Riley was employed as a teacher at Calipatria State Prison. As an employee of the prison, Riley was subjected to only a cursory search of her belongings upon entering the prison. On September 26, Investigative Services Unit Officers Alvarez, Silva, and Bell entered Riley's classroom while Riley was teaching. Bell retrieved Riley's purse and her lunch box from an unlocked cabinet in the classroom. According to Alvarez and Silva, it was unusual for an employee to keep a purse unsecured in the prison.*fn3 Bell took the purse and lunch box, and, together with the other officers, escorted Riley from the classroom to the employee relations office.
When they arrived at the employee relations office, Silva asked Riley whether everything in the purse and lunch box belonged to her. Riley replied that everything did belong to her. Silva asked Riley whether she would consent to a search of her person and her belongings, and Riley gave her consent. In Riley's purse, Silva found a small black coin purse that contained marijuana. Riley told Silva that the marijuana did not belong to her.
A California Department of Justice laboratory criminalist determined that the coin purse contained .47 grams of marijuana. No fingerprints were recovered from the coin purse.
Riley was dismissed from her job at the prison on November 27, 2007.
Riley testified that she did not know how the marijuana got into her purse. Riley said that she had gone to the restroom several times on the day she was arrested, and that she had left her purse in the classroom when she went to the restroom. Riley said that when prison security personnel searched her purse and found the black coin purse, she did not recognize the coin purse. When Riley tried to tell Silva that the coin purse did not belong to her, he replied, "[Y]eah, that's what they all say." Riley testified that she did not know how the coin purse got into her purse, and said that she had not brought the marijuana into the prison.
Two inmates who assisted Riley in her prison classroom testified that Riley kept her purse in an unlocked cabinet in the classroom, and that she sometimes left the purse unattended while she was working. School supplies were also kept in the unlocked cabinet where Riley kept her purse. One of the inmate assistants believed that Riley had left the cabinet unlocked on the day she was arrested so that the inmates would be able to obtain pens and other supplies from the cabinet.
Riley testified that she had had some problems in the past with a few of the inmates. She had reported one inmate to prison authorities because he had made statements that frightened her and had tried to threaten or blackmail her. Riley also said that she believed her supervisor had behaved strangely on the day Riley was arrested. Riley noted that her supervisor had come into her classroom that day and sat at Riley's desk with a smile and a look of "satisfaction" on his face while she was being escorted from the room. Her supervisor's conduct led Riley to believe that her arrest had been pre-planned.
On June 20, 2008, a grand jury returned an indictment against Riley charging her with one count of willful, unlawful, and knowing possession of marijuana in a state prison (§ 4573.6). A jury convicted Riley of that charge on November 19, 2008.
On February 19, 2009, the trial court sentenced Riley to the midterm of three years, suspended execution of the sentence, and placed Riley on formal probation, which included the condition that she serve 180 days in county jail and 180 days in a residential treatment facility. Riley filed a notice of appeal that day.
A. The Trial Court Did Not Err In Denying Riley's Motion For Judgment of Acquittal
Riley moved for a judgment of acquittal pursuant to section 1118.1*fn4 at the close of the prosecution's case-in-chief, arguing that the prosecution had failed to prove that she possessed a "usable" quantity of marijuana. Riley argued that dismissal was required because the prosecution had not offered any testimony that the .47 grams of marijuana constituted a usable amount. In response, the prosecutor noted that Silva had testified that the coin purse contained .5 grams of marijuana, and that a criminalist with the Department of Justice laboratory had testified that the coin purse contained .47 grams of marijuana. The prosecutor argued, "And Silva did talk about that being a usable amount. The coin purse ─ and the expert also said it was a usable amount."
Defense counsel responded, "Neither said it was a usable amount. And just merely [giving] the amount isn't enough to show [it was a] usable amount." The trial court immediately stated, "Okay. I'm going to deny the motion. And if [the prosecutor] ─ I'm going to deny the motion."
At the opening of court proceedings the following day, after the defense had rested, the trial court stated,
"Okay. When defense counsel brought her motion pursuant to Penal Code [s]section 1118[.1] to dismiss, it was on the basis that there was no testimony regarding useable amount. And at the time I denied the motion based on my belief that there had been some testimony in that regard. And I believe [the prosecutor] indicated at argument that there had been as well.
"Subsequently, I checked my notes. It didn't help me one way or the other. And then I asked the court reporter to go through her notes of the expert, and for that matter, of the officers that testified. And she apparently, as reported back to me, that she checked it in a lot of different ways. She did a word search for usable*fn5 amount, for marijuana, and she read around the words that were involved. And she could not find any reference to testimony regarding useable amount.
"Now, that being the state of the record, that leads me then to either ─ I'm anticipating what each of your motions are going to be.
"[Defense counsel], we've just concluded testimony and both sides have rested. And you have a right to renew your motion under [section] 1118[.1]."
After the trial court made these remarks, Riley renewed her motion to dismiss the case pursuant to section 1118.1. The court then said, "And likewise, [prosecutor], you have a right to ─ at least to request that ─ that the ─ your case be reopened to allow in testimony with respect to useable amount, which I'm assuming you would make." The prosecutor said, "I would absolutely [make that] motion."
After discussing jury instructions, the court again addressed the motion to dismiss. The prosecutor stated that he believed he had asked his witness whether the quantity of marijuana found was a usable amount, stating, "I have it in my notes, and I have it checked off. And I have it prepared in the schematic that I presented and prepared." The prosecutor continued, "But that said, if the Court finds that it was not done for that reason, or it has not been ...