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People v. Lua

California Court of Appeals, Fourth District, Second Division

April 14, 2017

THE PEOPLE, Plaintiff and Respondent,
v.
DAVID ISMAEL LUA, Defendant and Appellant.

         APPEAL from the Superior Court of Riverside County No. INF1500124 Jeffrey L. Gunther, Judge. (Retired judge of the Sacramento Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed in part, reversed in part; remanded with directions.

          Robert F. Somers, under appointment by the Court of Appeal, for Defendant and Appellant.

          Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Eric A. Swenson, Lynne G. McGinnis and Jennifer B. Truong, Deputy Attorneys General, for Plaintiff and Respondent.

          OPINION

          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, [1] § 11379, subd. (a) (count 1)), as well as a misdemeanor count of simple possession of a controlled substance (§ 11377, subd. (a) (count 2)), a lesser included offense of the charged offense, possession for sale of a controlled substance (§ 11378, subd. (a)). The trial court found true allegations that defendant had five drug-related prior convictions (§ 11370.2, subd. (c)) and had served three prior prison terms (Pen. Code, § 667.5, subd. (b)). Defendant received an aggregate sentence of 17 years.

         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 not apparently intoxicated, but his passenger, the registered owner of the vehicle, was. A search of the vehicle, conducted with the assistance of a canine trained to detect drugs, discovered a black “hide-a-key” box attached by magnet to the undercarriage of the car by the driver's side door. Inside the box was a plastic baggie containing 7.5 grams of methamphetamine. Defendant denied any knowledge of the box.

         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 sales 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.[2] With respect to defendant's possession for sale charge (count 2), the trial court instructed the jury with the then-current version of CALCRIM No. 2302.[3] The jury was instructed on the elements of simple possession as a lesser included offense to count 2 using CALCRIM No. 2304. The court also gave CALCRIM No. 251 on intent, instructing that both count 1 and count 2 required “proof of the union, or joint operation, of act and wrongful intent, ” and referring the jury to the instruction for each crime for the “specific intent required.”

         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.”[4]

         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 sale, ” when the description of the offense “says something else.”[5] The jury also noted that the verdict forms for count 1 identified the offense as “transportation of a controlled substance, ” instead of transportation for sale. The trial court provided the jury new verdict forms with respect to the lesser included offense for count 2, correctly identifying the offense as simple possession. The trial court apparently did not provide the jury new verdict forms with respect to count 1; the form the jury eventually used to indicate its guilty verdict identifies the offense as “transportation of a controlled substance.”[6] (Some capitalization omitted.)

         A third note from the jury asked for definitions of the terms “transportation” and “possession.”[7] The court responded in writing, referring the jury to jury instructions 2302 and 2300, and asking the jury to “[p]lease read these instructions in their entirety.”[8]

         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)).

         After a bench trial on the alleged sentence enhancements, the trial court found true allegations that defendant had five drug-related prior convictions (Health & Saf. Code, § 11370.2, subd. (c)) and had served three prior prison terms (Pen. Code, § 667.5, subd. (b)).[9]

         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.

         II. DISCUSSION

         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.

         Prior to January 1, 2014, section 11379 provided that any person who “transports” specified controlled substances, including methamphetamine, shall be punished by imprisonment. (Former § 11379, subd. (a); Stats. 2011, ch. 15, § 174.) The courts had interpreted the word “transports” to include transporting controlled substances for personal use. (People v. Rogers (1971) 5 Cal.3d 129, 134-135; People v. Eastman (1993) 13 Cal.App.4th 668, 673-677 [Fourth Dist., Div. Two].) The statute provided enhanced penalties for a person who “transports for sale, ” as opposed to for some other purpose, but a defendant could be convicted of the offense without proof of intent to sell. (Former § 11379; Stats. 2011, ch. 15, § 174.)

         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 (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;....”[10] (CALCRIM No. 2300, August 2014 update.) The term “transports” is defined in the form instruction, as is the word “selling, ” but there is no separate gloss on the phrase “for sale.” (CALCRIM No. 2300.)

         This amendment to CALCRIM No. 2300 did not conform it to the instructions for other offenses with an identical “for sale” element. Section 11378, for example, applies to a person who “possesses for sale a controlled substance, ” and section 11359 applies to a person who “possesses for sale any marijuana.” (§§ 11378, 11359.) The standard instructions for these offenses each explicitly and separately explain the “for sale” aspect of the offense as a separate element from the physical act of possessing the controlled substance: “To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant [unlawfully] possessed a controlled substance; [¶]....[¶] 4. When the defendant possessed the controlled substance, (he/she) intended (to sell it/[or] that someone else sell it);....”[11] (CALCRIM Nos. 2302, 2352; see also CALCRIM Nos. 2381, 2391 [regarding sale of controlled substances to minors].)

         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.) A jury instruction omitting an essential element from the jury's consideration requires reversal unless the error was ...


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