Opinion
H041821
07-28-2017
THE PEOPLE, Plaintiff and Respondent, v. LISA KAREN JENSEN et al., Defendants and Appellants.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. C1487257)
I. INTRODUCTION
After a jury trial, defendants Lisa Karen Jensen and Roger Don Shuler were both convicted of misdemeanor possession of a controlled substance, methamphetamine (Health & Saf. Code, § 11377, subd. (a)), and placed on probation by the trial court.
On appeal, defendants contend that the judgments should be reversed because (1) the trial court erred in admitting into evidence Shuler's out-of-court statement regarding his methamphetamine use; (2) the trial court erred in excluding Jensen's evidence of her sobriety and attendance at Narcotics Anonymous (NA); (3) the evidence was insufficient to prove the possession and knowledge elements of the offense of possession of methamphetamine; (4) a prejudicial instructional error occurred when the trial court instructed the jurors with the general intent instruction, CALCRIM No. 250, instead of CALCRIM No. 251, the specific intent instruction; (5) the prosecutor committed misconduct during closing argument by relying on Shuler's out-of-court statement regarding his methamphetamine use to prove Jensen's guilt; and (6) the cumulative effect of the multiple errors violates Jensen's federal constitutional right to due process.
For the reasons stated below, we find no merit in defendants' contentions and we will affirm the judgments.
II. FACTUAL AND PROCEDURAL BACKGROUND
A. The Complaint
The complaint filed in July 2014 charged both defendants with one felony count of possession of a controlled substance, methamphetamine (Health & Saf. Code, § 11377, subd. (a); count 1). The complaint was apparently amended prior to trial, as indicated by handwritten interlineations on the complaint, to reduce count 1 to a misdemeanor offense.
We have appellate jurisdiction because defendants were originally charged with a felony offense. (See California Rules of Court, rule 8.304(a)(2); People v. Morales (2014) 224 Cal.App.4th 1587, 1596.)
B. Jury Trial
Relevant to this appeal, the evidence presented at the December 2014 trial was as follows.
Randy Van Diemen, a police officer with the City of Santa Clara, conducted a traffic stop involving defendant Jensen on June 29, 2014, at approximately 10:40 p.m. Officer Van Diemen conducted the traffic stop after noticing that the vehicle Jensen was driving had one brake light that did not illuminate and expired registration tags.
When Officer Van Diemen initiated the traffic stop of Jensen's vehicle by lighting the red and blue lights on the top of his marked police car, Jensen did not pull over immediately. Instead, Jensen drove with her two passengers, her 17-year-old daughter S. and her daughter's boyfriend, to Jensen's house a few blocks away.
Jensen stopped her vehicle on the street across from her house. Before S. left the vehicle, Jensen said to her, "Go get Dad." S. went into the house and came out with defendant Shuler, who is S.'s father. In response, Officer Van Diemen called for an additional unit and three additional officers in two patrol cars arrived at the scene.
Jensen states in her opening brief that Shuler is her husband.
After speaking with Shuler, Officer Van Diemen went into defendants' house and conducted a search of the master bedroom, accompanied by Officer Higgins and his trainee, Officer Wutzke. Defendants used the master bedroom on the second floor of the house as their bedroom. Officer Van Diemen observed that the master bedroom was "very filthy" and a "complete mess," with "old rotten food" and "used dishes" scattered around the room. There was so much clutter that it was difficult to walk around the room. In Officer Van Diemen's experience, the homes of methamphetamine users tend to be cluttered.
During the search of the master bedroom, Officer Van Diemen saw a small baggie containing a white crystal-like substance on a board supporting the bed's mattress near the headboard. Based on his training and experience, Officer Van Diemen recognized the substance as methamphetamine.
Officer Wutzke drew Officer Van Diemen's attention to a small bindle containing a white crystal-like substance in the third drawer of a dresser that was inside the master bedroom closet. The bindle was a piece of twisted up plastic. Officer Van Diemen recognized the white crystal-like substance as methamphetamine. The third drawer also contained a piece of employer "paperwork" that had Shuler's name on it, which was next to the bindle. In the second drawer of the dresser, Officer Van Diemen found a 1992 traffic citation in with Jensen's name on it. On top of the dresser he found a notice to Jensen from the City of San Jose.
After the search was completed, Officer Van Diemen questioned Shuler. Shuler stated that he did not know anything about the methamphetamine found in the master bedroom. When asked about his use of methamphetamine, Shuler stated, according to Officer Van Diemen, that "he had last used methamphetamine several weeks prior."
Defendants lived in the house with their two children, S. and her brother, and two adult roommates. S. had observed that no members of the household other than defendants kept their possessions in the master bedroom. The only bathroom in the house with a working shower was in the master bedroom. Everyone who lived in the house used the master bedroom bathroom to take showers.
The substances found in the bindle in the dresser and the small baggie on the bed's mattress support both tested presumptive positive for methamphetamine. Based on his training and experience, Officer Higgins determined that the quantities found constituted a usable amount of methamphetamine.
The jurors were instructed that the parties had stipulated as follows: (1) the baggie contained 0.5 grams net weight of methamphetamine and the bindle contained 1.26 grams net weight of methamphetamine; (2) the blood samples provided by defendants on June 29, 2014 were negative for methamphetamines; and (3) they were not to consider why the officers searched defendants' home or the legality of the search.
C. Verdicts and Sentencing
At the conclusion of the December 2014 trial, the jury found both defendants guilty of count 1, misdemeanor possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)).
On December 12, 2014, the trial court placed defendant Shuler on probation for one year and ordered him to serve four days in county jail, with four days credit for time served, and to complete 20 NA meetings. Defendant Jensen was placed on probation for one year with no jail time.
III. DISCUSSION
A. Evidentiary Errors
1. Admission of Shuler's Statements
Defendant Shuler contends that a Miranda violation occurred when the trial court admitted his statement to Officer Van Diemen that he "had last used methamphetamine several weeks prior." Following a pretrial Evidence Code section 402 hearing regarding the admissibility of Shuler's statement, the trial court found that defendant was not subjected to custodial interrogation at the time he made the statement and therefore the statement was admissible. A brief summary of the hearing testimony follows.
Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
Evidence Code Section 402 Hearing
Officer Van Diemen testified regarding his contacts with defendant Shuler on June 29, 2014, following his attempt to make a traffic stop of defendant Jensen's vehicle. When Jensen stopped her vehicle near her house, S. got out and ran across the street to the house. Shuler came out of the house and the initial conversation between Shuler and Officer Van Diemen took place outside the house on a public street. At that time, there were three or four officers and three patrol cars present, with the patrol cars parked on the street. A few of the officers were located across the street by Officer Van Diemen's patrol car. Officer Van Diemen did not display any weapons or point a spotlight on Shuler. At that time, Jensen was in the back of the patrol car and S. and her boyfriend had been directed to sit on the curb.
During their initial conversation, Shuler told Officer Van Diemen that he and Jensen lived in the house and they resided in the upstairs bedroom. Officer Van Diemen then went into the house and in the upstairs bedroom found a baggie and a bindle that he believed contained methamphetamine.
After finding the methamphetamine, Officer Van Diemen walked up to Shuler and had a second conversation with him outside the house on a public street. One officer had remained with Shuler, and at the time of the second conversation, Officer Higgins was nearby and the other officers were across the street by Officer Van Diemen's patrol car. Officer Van Diemen did not place Shuler in handcuffs, display any weapons, put a spotlight on him, or tell him he was detained or arrested. He did not advise Shuler of his Miranda rights.
During the second conversation, Officer Van Diemen asked Shuler to clarify which bedroom Shuler and Jensen shared, and Shuler described the upstairs bedroom where the methamphetamine was found. Officer Van Diemen also asked Shuler if he knew anything about the methamphetamine, and Shuler said he did not. When Officer Van Diemen asked about his use of methamphetamine, Shuler said that he "had last used a methamphetamine a few weeks prior."
At the conclusion of the hearing, the trial court ruled that Shuler had not been subjected to custodial interrogation because he had not been detained or "locked up" in a patrol car.
The Miranda Rule
Our Supreme Court has described the basic rule of Miranda as follows: "Before being subjected to 'custodial interrogation,' a suspect 'must be warned that he [or she] has a right to remain silent, that any statement he [or she] does make may be used as evidence against him [or her], and that he [or she] has a right to the presence of an attorney, either retained or appointed.' [Citation.] Statements elicited in violation of this rule are generally inadmissible in a criminal trial." (People v. Mayfield (1997) 14 Cal.4th 668, 732, overruled on another ground in People v. Scott (2015) 61 Cal.4th 363, 390, fn. 2.)
"An interrogation is custodial, for purposes of requiring advisements under Miranda, when 'a person has been taken into custody or otherwise deprived of his [or her] freedom of action in any significant way.' [Citation.] Custody consists of a formal arrest or a restraint on freedom of movement of the degree associated with a formal arrest. [Citations.] When there has been no formal arrest, the question is how a reasonable person in the defendant's position would have understood his [or her] situation. [Citation.] All the circumstances of the interrogation are relevant to this inquiry, including the location, length and form of the interrogation, the degree to which the investigation was focused on the defendant, and whether any indicia of arrest were present. [Citation.]" (People v. Moore (2011) 51 Cal.4th 386, 394-395 (Moore).) The question is "whether the relevant environment presents the same inherently coercive pressures as the type of station house questioning at issue in Miranda." (Howes v. Fields (2012) 565 U.S. 499, 509 (Howes).)
Standard of Review
"On review of a trial court's decision on a Miranda issue, we accept the trial court's determination of disputed facts if supported by substantial evidence, but we independently decide whether the challenged statements were obtained in violation of Miranda. [Citation.]" (People v. Davis (2009) 46 Cal.4th 539, 586.)
" 'Whether a defendant was in custody for Miranda purposes is a mixed question of law and fact. [Citation.] When reviewing a trial court's determination that a defendant did not undergo custodial interrogation, an appellate court must "apply a deferential substantial evidence standard" [citation] to the trial court's factual findings regarding the circumstances surrounding the interrogation, and it must independently decide whether, given those circumstances, "a reasonable person in [the] defendant's position would have felt free to end the questioning and leave." [citation].' [Citation.]" (Moore, supra, 51 Cal.4th at p. 395.) "The objective circumstances of the interrogation are examined, not the ' "subjective views harbored by either the interrogating officers or the person being questioned." ' [Citation.]" (People v. Kopatz (2015) 61 Cal.4th 62, 80 (Kopatz).)
Analysis
Shuler argues that the trial court erred in finding that he was not subjected to custodial interrogation when he told Officer Van Diemen that he "had last used a methamphetamine a few weeks prior." According to Shuler, the evidence at the Evidence Code section 402 hearing showed that a reasonable person in Shuler's position would not have felt free to leave because "the questioning took place in a police dominated atmosphere," Jensen and S. had been detained, an officer had stayed with Shuler, Shuler's home was "controlled by the police," there was nowhere for him to go, and the questioning occurred after methamphetamine was found in Shuler's home.
The Attorney General responds that Shuler was not subjected to custodial interrogation for purposes of Miranda because Shuler was questioned on a public street in front of his house, and he was not detained in a patrol car or restrained in any way.
Our evaluation of the parties' contentions is governed by recent United States Supreme Court authority. In Howes, the Supreme Court clarified its Miranda jurisprudence as follows: "As used in our Miranda case law, 'custody' is a term of art that specifies circumstances that are thought generally to present a serious danger of coercion. In determining whether a person is in custody in this sense, the initial step is to ascertain whether, in light of 'the objective circumstances of the interrogation,' [citation], a 'reasonable person [would] have felt he or she was not at liberty to terminate the interrogation and leave.' [Citation.] And in order to determine how a suspect would have 'gauge[d]' his [or her] 'freedom of movement,' courts must examine 'all of the circumstances surrounding the interrogation.' [Citation.] Relevant factors include the location of the questioning, [citation], its duration, [citation], statements made during the interview, [citations], the presence or absence of physical restraints during the questioning, [citation], and the release of the interviewee at the end of the questioning, [citation]." (Howes, supra, 565 U.S. at pp. 508-509.)
"Determining whether an individual's freedom of movement was curtailed, however, is simply the first step in the analysis, not the last. Not all restraints on freedom of movement amount to custody for purposes of Miranda. We have 'decline[d] to accord talismanic power' to the freedom-of-movement inquiry, [citation], and have instead asked the additional question whether the relevant environment presents the same inherently coercive pressures as the type of station house questioning at issue in Miranda. 'Our cases make clear . . . that the freedom-of-movement test identifies only a necessary and not a sufficient condition for Miranda custody.' [Citation.]" (Howes, supra, 565 U.S. at p. 509.)
We determine that under Howes, Shuler was not subjected to custodial interrogation when he made the statement about his prior use of methamphetamine. Even assuming that Shuler was detained when he was questioned by Officer Van Diemen, the evidence showed that detention was similar to a traffic stop and roadside questioning, which do not constitute detention for purposes of Miranda where, as here, a " 'temporary and relatively nonthreatening detention' " occurred. (Howes, supra, 565 U.S. at p. 510.) The police officer (Van Diemen) did not handcuff Shuler, did not display any weapons, did not frisk or search Shuler, and the officer's questions were "investigatory, not accusatory." (Kopatz, supra, 61 Cal.4th at p. 81.) There is no indication that Officer Van Diemen's questioning was anything other than "brief, polite, and courteous." (People v. Aguilera (1996) 51 Cal.App.4th 1151, 1164.) Moreover, the questioning took place on a public street in front of Shuler's home, where Shuler had voluntarily come into contact with Officer Van Diemen. Only one other officer was nearby, while the other officers were located across the street.
In sum, the evidence admitted at the Evidence Code section 402 hearing shows that the environment in which Shuler was questioned did not "present[] the same inherently coercive pressures" as station house questioning. (Howes, supra, 565 U.S. at p. 509.) We therefore determine that substantial evidence supports the trial court's finding that Shuler was not subjected to custodial interrogation for purposes of Miranda when he made the statement that he "had last used a methamphetamine a few weeks prior." (See Howes, supra, at pp. 508-509.) Absent custodial interrogation, admission of Shuler's statement at trial did not violate the Miranda rule.
2. Exclusion of Jensen's NA Evidence
Jensen contends the trial court abused its discretion in excluding under Evidence Code section 352 the evidence that showed she had been attending NA meetings daily and had been sober for several months.
"Evidence may be excluded under Evidence Code section 352 'if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.' An exercise of discretion under Evidence Code section 352 will be affirmed unless it was arbitrary, capricious, or patently absurd and the ruling resulted in a miscarriage of justice. [Citation.]" (People v. Winbush (2017) 2 Cal.5th 402, 469.)
Evidence Code section 352 provides: "The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury."
In the present case, the prosecutor objected during pretrial proceedings to three witnesses on Jensen's witness list. Defense counsel argued that the testimony of these witnesses regarding Jensen's sobriety and participation in NA was relevant to Jensen's defense. The testimony would show, defense counsel explained, that Jensen did not have knowing possession of the methamphetamine because a dedicated NA program participant like Jensen was unlikely to expose herself to the temptation of relapse.
The trial court found that the probative value of the witness testimony regarding Jensen's sobriety and participation in NA was slight, stating: "As I think anyone who has been involved with drug court knows addicts relapse regularly. And obviously to relapse, you have to possess. So being dedicated to sobriety and enthusiastic to NA does not mean that you relapse, it does not mean that you don't." The court further found that the slight probative value of the NA evidence was outweighed by "how much testimony it's going to take" and excluded the evidence under Evidence Code section 352.
On appeal, Jensen argues that the trial court abused its discretion because "the Narcotics Anonymous witnesses would have provided powerful evidence indicating that it was highly unlikely that [Jensen] knowingly possessed methamphetamine." Jensen further argues that no undue consumption of time would have occurred, in light of defense counsel's pretrial offer to present only one witness with respect to her NA participation.
Alternatively, Jensen contends that her constitutional right to a fair trial was violated by exclusion of the NA evidence, because that evidence was fundamental to her defense and also because the evidence was contrary to the prosecution's evidence tending to show that her lifestyle was consistent with that of a drug user.
The Attorney General argues that the trial court reasonably determined that the minimal probative value of the NA attendance evidence was substantially outweighed by the likelihood that the presentation of the evidence would result in an undue consumption of time. We agree.
" 'Relevant evidence' means evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (Evid. Code, § 210.) As the trial court found, the probative value of witness testimony regarding Jensen's sobriety and participation in NA was slight because, although it could be reasonably inferred that Jensen did not knowingly possess methamphetamine in order to avoid a relapse, it could also be inferred that she knowingly possessed methamphetamine because she had relapsed. Therefore, it was not an abuse of discretion for the trial court to determine that the arguably slight probative value of the NA evidence was outweighed by the likelihood that the witness testimony would require an undue consumption of time, and to exclude the evidence under Evidence Code section 352, subdivision (a). (See People v. Brooks (2017) 2 Cal.5th 674, 717 [no abuse of discretion in excluding evidence where "[t]he court weighed the arguably slight probative value of evidence regarding [a prosecution witness's] romantic relationships with four women in [Alcohol Anonymous] against the likelihood that its admission would require an 'undue consumption of time.' "].)
Since we have determined that the trial court did not err in excluding the NA evidence under Evidence Code section 352, we find no merit in Jensen's contention that the trial court's error violated her constitutional right to a fair trial. (See People v. Mills (2010) 48 Cal.4th 158, 196 [" 'The "routine application of state evidentiary law does not implicate [a] defendant's constitutional rights." ' "].)
B. Sufficiency of the Evidence
Both defendants contend that the evidence is insufficient to prove the possession and knowledge elements of the offense of possession of a controlled substance, methamphetamine (Health & Saf. Code, § 11377, subd. (a)).
1. Standard of Review
"In considering a challenge to the sufficiency of the evidence . . . we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] We presume every fact in support of the judgment the trier of fact could have reasonably deduced from the evidence. [Citation.] If the circumstances reasonably justify the trier of fact's findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding. [Citation.] 'A reviewing court neither reweighs evidence nor reevaluates a witness's credibility.' [Citation.]" (People v. Albillar (2010) 51 Cal.4th 47, 59-60.)
2. Analysis
"The essential elements of unlawful possession of a controlled substance are 'dominion and control of the substance in a quantity usable for consumption or sale, with knowledge of its presence and of its restricted dangerous drug character. . . .' [Citations.]" (People v. Martin (2001) 25 Cal.4th 1180, 1184 (Martin).) "The elements of unlawful possession may be established by circumstantial evidence and any reasonable inferences drawn from such evidence. [Citations.]" (People v. Williams (1971) 5 Cal.3d 211, 215 (Williams).)
Possession Element
"Actual or constructive possession is the right to exercise dominion and control over the contraband or the right to exercise dominion and control over the place where it is found. [Citation.] Exclusive possession is not necessary. A defendant does not avoid conviction if his [or her] right to exercise dominion and control over the place where the contraband was located is shared with others. [Citations.]" (People v. Rushing (1989) 209 Cal.App.3d 618, 622 (Rushing).)
Defendant Shuler contends that there was insufficient evidence of possession because the methamphetamine was found in "a non-exclusive area of an extraordinarily cluttered shared residence and the [methamphetamine] was not in plain view."
Defendant Jensen contends that the evidence was insufficient because it was established that she did not have exclusive use of the master bedroom, given that "numerous people would enter the bedroom at all times of the day and night, since that bedroom contained the only working shower in the house."
We determine that the circumstantial evidence is sufficient to support a reasonable inference that defendants jointly exercised dominion and control over the place where the methamphetamine was found. (See Williams, supra, 5 Cal.3d at p. 215.) Defendants slept in the bed in the master bedroom and were the only members of the household who kept their possessions in the master bedroom. Although defendants shared the shower in the master bedroom's bathroom with the other members of the household, it may be reasonably inferred that defendants had the right to exercise dominion and control over the master bedroom in general and, in particular, the dresser in the master bedroom closet and the master bedroom bed where the methamphetamine was located. (See Rushing, supra, 209 Cal.App.3d at p. 622.) Therefore, the evidence was sufficient to prove the possession element of the offense of unlawful possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)).
Defendant Jensen's reliance on the decision in People v. Antista (1954) 129 Cal.App.2d 47 (Antista) for a contrary conclusion is misplaced. In Antista, police officers found marijuana in a living room cupboard and the unused bedroom of the defendant's apartment. (Id. at p. 48.) Since other persons used the apartment, the appellate court found that the evidence was insufficient to prove that the marijuana was under the defendant's control. (Id. at p. 50.) The court explained that "if it is established that one accused of possession returned to his apartment, or to his automobile, and found it occupied by a user of narcotics, and a narcotic was found in it, and if there is no evidence that it was there before that time, the fact of its presence, without any other fact or circumstance of an incriminating nature, is legally insufficient to prove a charge of possession." (Id. at p. 53.) However, the court also stated: "If the substance had been found in the personal effects of the defendant that would have been a potent circumstance indicating knowledge of its presence, ownership and control." (Ibid.) The decision in Antista is therefore distinguishable from the present case, where the evidence showed that the methamphetamine was found among defendants' personal effects—the dresser in the master bedroom closet and the master bedroom bed—where they had joint dominion and control.
Knowledge Element
Defendant Jensen argues there is no evidence, either direct or circumstantial, to prove that she knew the methamphetamine was present in the master bedroom. Jensen emphasizes that nothing belonging to her was found in the part of the bed where the baggie of methamphetamine was found or in the dresser drawer where the bindle of methamphetamine was found. She also emphasizes the lack of any evidence that she used drugs.
Defendant Shuler argues that the evidence of knowledge is insufficient due to the "extraordinarily cluttered condition of the house," since "[t]here is simply no reasonable basis to conclude that [he] or anyone could have known that there was a small object like a bindle hidden in one of the 'packed' dressers or under a mattress."
The California Supreme Court has instructed that "knowledge of the character of dangerous drugs or narcotics may be shown by acts or declarations of the accused which indicate a 'consciousness of guilt,' [citations]." (Williams, supra, 5 Cal.3d at p. 216.) " 'Ordinarily the fact that a narcotic is found in the personal effects of the defendant is compelling proof that defendant knew what he [or she] possessed and its nature. [Citations.]' " (Ibid.)
Therefore, "knowledge of a substance's narcotic nature may be shown by evidence of the defendant's furtive acts and suspicious conduct indicating a consciousness of guilt, such as an attempt to flee or an attempt to hide or dispose of the contraband [citations], or by evidence showing a familiarity with the substance, such as needle marks or other physical manifestations of drug use or instances of prior drug use [citations]." (People v. Tripp (2007) 151 Cal.App.4th 951, 956.)
Applying our standard of review, we determine that it may be reasonably inferred that defendants had knowledge of the restricted drug character of the methamphetamine (Martin, supra, 25 Cal.4th at pp. 1184-1185) from the following evidence: (1) the methamphetamine was found in defendants' bedroom among their personal effects (in the master bedroom bed and in the drawers in a dresser in the master bedroom closet containing their personal papers); (2) the methamphetamine was hidden on the bed's mattress support and in dresser drawers; (3) the methamphetamine was packaged in a baggie and a bindle; (4) defendants' bedroom was in a filthy and cluttered state that in Officer Van Diemen's experience was typical of methamphetamine users; and (5) defendant Shuler admitted that he had recently used methamphetamine.
Defendants cite for the first time in their reply briefs the decision in People v. Monson (1967) 255 Cal.App.2d 689 (Monson), but that factually distinguishable decision, to which the Attorney General did not have the opportunity to respond, does not alter our conclusion that the evidence of knowledge was sufficient. In Monson, the appellate court affirmed the trial court's order granting the defendant's Penal Code section 995 motion to dismiss the charge of marijuana possession, finding that the evidence presented at the preliminary hearing did not show that the defendant had knowing possession of marijuana. (Monson, supra, at p. 693.) The evidence was insufficient because the marijuana was found in a bedroom closet and there was no showing that the closet was either the defendant's closet or contained her possessions. (Id. at pp. 690-691.) In contrast, in the present case the evidence established that defendants used the bedroom where the methamphetamine was found in a dresser containing their personal papers.
C. Instructional Error and Ineffective Assistance of Counsel
Defendants contend that a prejudicial instructional error occurred when the trial court instructed the jurors with the general intent instruction, CALCRIM No. 250, instead of CALCRIM No. 251, the specific intent instruction. Defendants maintain that the instructional error caused removal of the knowledge element from the offense of possession of methamphetamine. The Attorney General implicitly concedes that CALCRIM No. 250 should not have been given, but argues that the instructional error was not prejudicial. We find the Attorney General's implicit concession of instructional error to be appropriate.
As we have noted, the offense of possession of methamphetamine has a knowledge element. "The essential elements of unlawful possession of a controlled substance are 'dominion and control of the substance in a quantity usable for consumption or sale, with knowledge of its presence and of its restricted dangerous drug character. . . .' [Citations.]" (Martin, supra, 25 Cal.4th at p. 1184.) "Although the possessor's knowledge of the presence of the controlled substance and its nature as a restricted dangerous drug must be shown, no further showing of a subjective mental state is required. [Citation.]" (Id. at pp. 1184-1185, fn. omitted.)
Regarding mental state, the trial court gave CALCRIM No. 250 as follows: "The crime charged in this case requires proof of union or joint operation of act and wrongful intent. For you to find a person guilty of the crimes charged in this case, that person must not only commit the prohibited act but must do so with the wrongful intent. A person acts with wrongful intent when he or she intentionally does a prohibited act; however, it is not required that he or she intended to break the law. The act required is explained in the instructions for that crime."
The bench note for CALCRIM No. 250 states: "The court has a sua sponte duty to instruct on the union of act and general criminal intent. [Citation.] However, this instruction must not be used if the crime requires a specific mental state, such as knowledge or malice, even if the crime is classified as a general intent offense. In such cases, the court must give CALCRIM No. 251, Union of Act and Intent: Specific Intent or Mental State." (Judicial Council of Cal. Crim. Jury Instns., Bench Notes to CALCRIM No. 250 (2017) p. 63, first italics added.)
CALCRIM No. 251 instructs: "The crime[s] [(and/or) other allegation[s]] charged in this case require proof of the union, or joint operation, of act and wrongful intent. [¶] For you to find a person guilty of the crime[s] . . . , that person must not only intentionally commit the prohibited act [or intentionally fail to do the required act], but must do so with a specific (intent/ [and/or] mental state). The act and the specific (intent/ [and/or] mental state) required are explained in the instruction for that crime [or allegation]."
The bench note for CALCRIM No. 251 states: "The court has a sua sponte duty to instruct on the union of act and specific intent or mental state. [Citation.] This instruction must be given if the crime requires a specific mental state, such as knowledge or malice, even if the crime is classified as a general intent offense." (Judicial Council of Cal. Crim. Jury Instns., Bench Notes to CALCRIM No. 251 (2017) p. 66, italics added.)
Since the bench notes clearly state that CALCRIM No. 251, not CALCRIM No. 250, must be given where, as here, the elements of the offense include the specific mental state of knowledge, the trial court erred in giving CALCRIM No. 250 in this case. Having concluded there was instructional error, we must determine if reversal is required. "When the jury is 'misinstructed on an element of the offense . . . reversal . . . is required unless we are able to conclude that the error was harmless beyond a reasonable doubt.' [Citations.]" (People v. Wilkins (2013) 56 Cal.4th 333, 348 (Wilkins).)
" 'In deciding whether a trial court's misinstruction on an element of an offense is prejudicial to the defendant, we ask whether it appears " ' "beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained." ' " ' [Citations.]" (Wilkins, supra, 56 Cal.4th at p. 350.) In other words, the error is harmless under the Chapman standard (Chapman v. California (1967) 386 U.S. 18) if it is "clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error." (Neder v. United States (1999) 527 U.S. 1, 18 (Neder).) "Of course, safeguarding the jury guarantee will often require that a reviewing court conduct a thorough examination of the record. If, at the end of that examination, the court cannot conclude beyond a reasonable doubt that the jury verdict would have been the same absent the error—for example, where the defendant contested the omitted element and raised evidence sufficient to support a contrary finding—it should not find the error harmless." (Id. at p. 19.)
Having reviewed the entire record, we conclude beyond a reasonable doubt that the trial court's instructional error in giving CALCRIM No. 250 instead of CALCRIM No. 251 was harmless because "the jury verdict would have been the same absent the error." (See Neder, supra, 527 U.S. at p. 19.) To begin with, the record reflects that the error was cured by other instructions to the jury. " ' "[T]he absence of an essential element in one instruction may be supplied by another or cured in light of the instructions as a whole." ' [Citation.]" (People v. Delgado (2017) 2 Cal.5th 544, 574.)
Here, the reporter's transcript of the trial shows that the trial court instructed the jurors that the offense of possession of methamphetamine had a knowledge element. The court instructed the jurors that "[a] defendant is charged with possession—possessing methamphetamine in violation of Health and Safety Code Section 11377. To prove that the defendant is guilty of this crime, the People must prove that, one, the defendant possessed a controlled substance. Two, the defendant knew of its presence. Three, the defendant knew of the substance's nature and character as a controlled substance. Four, the controlled substance was methamphetamine. And five, the controlled substance was in the usable amount." (Italics added.)
The trial court also instructed the jurors that "[a] defendant is not guilty of possession of methamphetamine if he or she acted without the intent required for that crime, but acted instead accidentally. You may not find the defendant guilty of possession of methamphetamine unless you are convinced beyond a reasonable doubt that he or she acted with the required intent." During closing argument, the court reminded the jurors that "you have to refer to the specific instruction that sets forth all the elements necessary to convict the defendant and find that all of those elements are true."
Additionally, "[c]losing arguments to the jury can be a relevant consideration in the prejudice equation. [Citation.]" (People v. Maurer (1995) 32 Cal.App.4th 1121, 1130.) During closing argument in this case, the prosecutor argued extensively that the evidence proved the knowledge element. For example, the prosecutor argued that the circumstantial evidence showed that defendants "[k]new of the meth" and that they possessed a controlled substance. Trial counsel for both defendants argued to the contrary that the evidence showed that defendants did not know of the presence of the methamphetamine.
Therefore, considering the jury instructions as a whole and the parties' closing arguments, we determine there is no reasonable likelihood that the jury misunderstood the instructions to allow them to convict defendant absent a finding that defendants had knowledge of the presence of methamphetamine " 'and of its restricted dangerous drug character. . . .' [Citations.]" (Martin, supra, 25 Cal.4th at p. 1184.)
We also determine that defendants have failed to establish ineffective assistance of counsel based on trial counsels' failure to object to CALCRIM No. 250. Since we have concluded that the trial court's error in giving CALCRIM No. 250 was not prejudicial, we further conclude that defendants fail to show a " ' "reasonable probability that, but for counsel's unprofessional error[ ], the result of the proceeding would have been different." [Citation.]' [Citation.]" (People v. Lopez (2008) 42 Cal.4th 960, 966.)
D. Prosecutorial Misconduct and Ineffective Assistance of Counsel
Jensen contends that the prosecutor committed misconduct during closing argument by relying on Shuler's out-of-court statement to Officer Van Diemen that Shuler "had last used methamphetamine several weeks prior" to prove Jensen's guilt. The trial court had instructed the jury that "[y]ou have heard evidence that Defendant Shuler made a statement out of court. You may consider that evidence only against him, not against any other defendant."
The general rules applying to a claim of prosecutorial misconduct are as follows: "Under the federal Constitution, to be reversible, a prosecutor's improper comments must ' "so infect[ ] the trial with unfairness as to make the resulting conviction a denial of due process." ' [Citations.] ' "But 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 court or the jury." ' " [Citations.]' [Citation.]" (People v. Cunningham (2001) 25 Cal.4th 926, 1000.) When the claim of prosecutorial misconduct "is based upon 'comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion. [Citation.]' [Citations.]" (Id. at p. 1001.)
Therefore, "[t]o prevail on a claim of prosecutorial misconduct based on remarks to the jury, the defendant must show a reasonable likelihood the jury understood or applied the complained-of comments in an improper or erroneous manner. [Citations.] In conducting this inquiry, we 'do not lightly infer' that the jury drew the most damaging rather than the least damaging meaning from the prosecutor's statements." (People v. Frye (1998) 18 Cal.4th 894, 970, disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
Jensen asserts that the prosecutor's reliance on Shuler's statement that he had recently used methamphetamine to prove Jensen's guilt violated the Aranda-Bruton rule. The Aranda-Bruton rule provides that the confrontation clause generally prohibits the admission, at a joint trial, of one defendant's confession "that is 'powerfully incriminating' as to a second defendant when determining the latter's guilt." (People v. Fletcher (1996) 13 Cal.4th 451, 455.)
People v. Aranda (1965) 63 Cal.2d 518; Bruton v. United States (1968) 391 U.S. 123 (Aranda-Bruton). --------
The prosecutor's closing argument that Jensen contends violated the Aranda-Bruton rule and constituted prosecutorial misconduct includes the following:
THE PROSECUTOR: "So let's think about this using our common sense. Shuler admits to using meth. . . . [¶] . . . [¶] And the reason why this is important is you have a person in a household who's sharing a bedroom with another defendant. So you have Shuler sharing a bedroom with Jensen, and he's got the meth out. He's using it. It's something that's part of the household. It goes to show knowledge. This is somebody using meth in the household, and then there's meth found in the household. The two go together to show the knowledge and presence and knowing that it's there.
"Is it reasonable that you have a meth user in a house, have meth in his room, and not know that there's meth there or not know that it's a controlled substance?
"And also, one thing I wanted to point out is you heard from Office Van Diemen the symptoms of being under the influence of methamphetamine, people who use methamphetamine. Dilated pupils, nervousness, sort of agitated. They're different. Now, Ms. Jensen lives with Mr. Shuler. They share the house together. They share a room together. It's logical, it's reasonable that if he's under the influence, his pupils are dilated, if he's starting to shake, if he's doing other things, he's going to know. This is something separate. This is out of the ordinary. You would know if your roommate, if your spouse, or somebody else is—you would know they were drunk, let alone if they're under the influence of a controlled substance. [¶] So this is something where information about the controlled substance was available to . . . Ms. Jensen weeks before the police actually found it in their house."
Jensen's trial counsel did not object to the above arguments by the prosecutor or request that the jury be admonished. "Generally, ' "[t]o preserve a claim of prosecutorial misconduct for appeal, a defendant must make a timely and specific objection and ask the trial court to admonish the jury to disregard the improper argument." ' [Citation.] A failure to 'object and request an admonition will be excused if doing either would have been futile, or if an admonition would not have cured the harm.' [Citation.] '[T]he absence of a request for a curative admonition does not forfeit the issue for appeal if "the court immediately overrules an objection to alleged prosecutorial misconduct [and as a consequence] the defendant has no opportunity to make such a request." [Citations.]' [Citation.]" (People v. Mendoza (2016) 62 Cal.4th 856, 905 (Mendoza).)
Jensen does not contend that it would have been futile for her trial counsel to object to the prosecutor's argument or that trial counsel had no opportunity to object. Instead, Jensen urges this court to exercise its discretion to consider her claim of prosecutorial misconduct due to the "seriousness of the misconduct." We decline to do so, noting that our Supreme Court has stated that a defendant's failure to object prevents the prosecution from developing the record to refute a claim of prosecutorial misconduct and also prevents "the trial court from taking steps to avoid or remedy any prejudice." (People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 427; see also Mendoza, supra, 62 Cal.4th at p 905.) We therefore turn to Jensen's alternative contention of ineffective assistance of counsel.
"To prevail on a claim of ineffective assistance of counsel, the defendant must show counsel's performance fell below a standard of reasonable competence, and that prejudice resulted. [Citations.] When a claim of ineffective assistance is made on direct appeal, and the record does not show the reason for counsel's challenged actions or omissions, the conviction must be affirmed unless there could be no satisfactory explanation. [Citation.] Even where deficient performance appears, the conviction must be upheld unless the defendant demonstrates prejudice. . . ." (People v. Anderson (2001) 25 Cal.4th 543, 569 (Anderson).)
To demonstrate prejudice, "[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Strickland v. Washington (1984) 466 U.S. 668, 694 (Strickland).) "[A] court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. The object of an ineffectiveness claim is not to grade counsel's performance. If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed." (Id. at p. 697.)
We will resolve Jensen's claim of ineffective assistance of counsel on the ground that she has not demonstrated that the claimed error was prejudicial. (See Strickland, supra, 466 U.S. at p. 697; Anderson, supra, 25 Cal.4th at p. 569.) Jensen contends that the prosecutor "relied—almost exclusively—on Shuler's statements in arguing [Jensen's] guilt. These were not isolated remarks but instead formed a large part of the prosecutor's closing and rebuttal arguments." Jensen further asserts that the prosecutor improperly "imagined a scenario" in which Shuler used drugs in front of Jensen.
We agree with the Attorney General that even assuming, without deciding, that trial counsel erred in failing to object to the prosecutor's closing argument, there was sufficient circumstantial evidence that Jensen knowingly possessed methamphetamine independent of Shuler's statement regarding his methamphetamine use. As we have discussed, the jurors could reasonably infer that defendants had the right to exercise dominion and control over their master bedroom in general and, in particular, the bed and dresser where the methamphetamine was located. (See Rushing, supra, 209 Cal.App.3d at p. 622.) Therefore, the evidence was sufficient to prove the possession element of the offense of unlawful possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)). Further, the jurors could reasonably infer that Jensen had knowledge of the restricted drug character of the methamphetamine (Martin, supra, 25 Cal.4th at pp. 1184-1185) from the evidence that the methamphetamine was found among their personal effects in a dresser in the master bedroom closet and in their bed, the methamphetamine was packaged in a baggie and a bindle, and the master bedroom was in a filthy and cluttered state that in Officer Van Diemen's experience was typical of methamphetamine users.
For these reasons, we find no merit in Jensen's claim of prosecutorial misconduct and ineffective assistance of counsel.
E. Cumulative Error
Finally, Jensen contends that even if none of the trial errors she has identified separately constitute reversible error, the cumulative effect of the multiple errors violates her federal constitutional right to due process and requires reversal.
"[A] series of trial errors, though independently harmless, may in some circumstances rise by accretion to the level of reversible and prejudicial error." (People v. Hill (1998) 17 Cal.4th 800, 844.) In the present case, we have either rejected defendants' claims of error or found that the error was not prejudicial. "Viewed as a whole, such errors do not warrant reversal of the judgment." (People v. Stitely (2005) 35 Cal.4th 514, 560.)
IV. DISPOSITION
The judgments are affirmed.
/s/_________
BAMATTRE-MANOUKIAN, J. WE CONCUR: /s/_________
ELIA, ACTING P.J. /s/_________
MIHARA, J.