Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Appeal from a judgment of the Superior Court of Orange County No. 06SF1137, Gail A. Andler, Judge.
Linda K. Harvie, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Garrett Beaumont and Gary W. Brozio, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
BEDSWORTH, ACTING P. J.
Appellant was convicted of possessing methamphetamine and drug paraphernalia. She contends the convictions should be reversed due to instructional error, but we disagree and affirm the judgment.
FACTS
On the night of October 1, 2006, Sheriff’s Investigator Christopher Jensen stopped appellant for failing to stop at a red light. During the stop, Jensen found a bindle of methamphetamine in appellant’s purse and two smoking pipes in her glove box. He administered several sobriety tests to appellant, and she performed in a poor manner that was “consistent with the ingestion of a controlled substance.”
At trial, appellant testified that on the day in question, she went to a thrift shop called Laura’s House. She planned to drop off two boxes of donations, but when she brought them to the shop, it was closed, so she kept them. She also took a third box that was sitting on the steps of the shop. Appellant testified she intended to bring all three boxes back to the shop the next day.
The manager of Laura’s House testified it is not uncommon for people to leave donations outside the shop when it is closed.
Appellant further testified that upon arriving home that evening, she looked through the third box and found some methamphetamine and pipes, which she put in her glove compartment. Asked why she put the items there, appellant testified, “Because I was gonna give [them] to the guy [at Laura’s House] in the morning, when I gave him the boxes, to tell him, look, you got a little extra donation.” Later that night, however, Jensen pulled her over while she was driving. Fearful he would discover the methamphetamine, she put it in her purse. When Jensen found it, she told him she got it at Laura’s House, but she did not tell him she had smoked some of it earlier that evening. At least that’s what appellant said on the witness stand.
However, during the prosecution’s rebuttal, Jensen testified appellant not only told him she got the methamphetamine at Laura’s House, but also that she had smoked some of it that night. The court instructed the jury this testimony was admissible only for the purpose of assessing appellant’s credibility and could not be used for its substantive truth.
Appellant’s statements to Jensen were not admitted into evidence during the state’s case-in-chief because, as the prosecutor admitted, Jensen did not comply with the dictates of Miranda v. Arizona (1966) 384 U.S. 436. However, statements obtained in violation of Miranda may be used on rebuttal to impeach a defendant, like appellant here, who testifies at trial. (Harris v. New York (1971) 401 U.S. 222.)
I
Appellant contends the court committed reversible error by instructing the jury with CALCRIM No. 361. We disagree.
We note at the outset that appellant did not object to the giving of CALCRIM No. 361, or any of the other instructions she challenges on appeal. Nonetheless, her claims are reviewable if the alleged errors affected her “substantial rights.” (Pen. Code, § 1259.) “Ascertaining whether claimed instructional error affected the substantial rights of the defendant necessarily requires an examination of the merits of the claim — at least to the extent of ascertaining whether the asserted error would result in prejudice if error it was.” (People v. Anderson (1994) 26 Cal.App.4th 1241, 1249.) We will therefore examine appellant’s claims.
Pursuant to CALCRIM No. 361, the trial court instructed the jurors that if appellant “failed in her testimony to explain or deny evidence against her, and if she could reasonably be expected to have done so based on what she knew, you may consider her failure to explain or deny in evaluating that evidence. Any such failure is not enough by itself to prove guilt. The People must still prove each element of the crime beyond a reasonable doubt. [¶] If [appellant] failed to explain or deny, it is up to you to decide the meaning and importance of that failure.”
Appellant contends the instruction was misplaced because she did in fact offer an explanation for her possession of the contraband, i.e., she found it in an abandoned box at Laura’s House and intended to return it there the next day. Although the explanation may have been a little far-fetched, appellant contends it nonetheless rendered CALCRIM No. 361 inapt as a matter of law. The Attorney General disagrees. In his view, the instruction was proper because appellant’s explanation was so bizarre and implausible it effectively amounted to no explanation at all.
There is decisional authority to support both parties’ positions. As the comment to CALCRIM No. 361 explains, “If the defendant’s denial or explanation is bizarre or implausible, several courts have held that the question whether his or her response is reasonable should be given to the jury with an instruction regarding adverse inferences. (People v. Mask (1986) 188 Cal.App.3d 450, 455; People v. Roehler (1985) 167 Cal.App.3d 353, 392-393.) However, in People v. Kondor (1988) 200 Cal.App.3d 52, 57, the court stated, ‘the test for giving the instruction [on the failure to deny or explain evidence] is not whether the defendant’s testimony is believable. [The instruction] is unwarranted when a defendant explains or denies matters within his or her knowledge, no matter how improbable that explanation may appear.’” (Com. to CALCRIM No. 361 (spring ed. 2008) vol. I., p. 115; also compare People v. Sanchez (1994) 24 Cal.App.4th 1012, 1029-1030 [following former cases] with People v. Lamer (2003) 110 Cal.App.4th 1463 [following Kondor].)
Appellant urges us to follow Kondor and find legal error in the court’s giving of CALCRIM No. 361, but even if we did, it would not help her cause because, by its terms, the instruction only applies if the defendant fails to explain or deny the evidence against him or her. Here, appellant did explain and deny the prosecution’s evidence, making the instruction factually inapposite. Because the jurors were told to disregard any instructions that were not supported by the facts (CALCRIM No. 200), it is reasonable to presume they did not utilize the instruction in reaching their verdict. (People v. Mickey (1991) 54 Cal.3d 612, 689, fn. 17; People v. Saddler (1979) 24 Cal.3d 671, 681; People v. Lamer, supra, 110 Cal.App.4th at p. 1472.)
In assessing whether the giving of CALCRIM No. 361 was prejudicial, we must also keep in mind that the evidence against appellant was rather overwhelming. She was caught in actual possession of the contraband in question, and her explanation for its possession was dubious at best. Even if CALCRIM No. 361 had not been given, it is not reasonably likely she would have obtained a more favorable result at trial. Therefore, any error in giving the instruction was surely harmless. (See People v. Lamer, supra, 110 Cal.App.4th at p. 1472 [court unable to find any cases in which the erroneous inclusion of a failure-to-explain instruction was found to constitute reversible error].)
II
Next, appellant contends the court erred by giving both CALCRIM Nos. 318 and 356. Describing the instructions as “completely contradictory,” she claims CALCRIM No. 318 should not have been given because it allowed the jury to consider her pretrial statement about using the methamphetamine for its substantive truth. The claim is not well taken.
CALCRIM No. 318 was intended to apply to pretrial statements generally. It informed the jurors they have “heard evidence of . . . statements that a witness made before the trial. If you decide that the witness made those statements, you may use those statements in two ways: [¶] 1. To evaluate whether the witness’s testimony in court is believable; and [¶] 2. As evidence that the information in those earlier statements is true.”
CALCRIM No. 356 was more specific. It told the jurors “[y]ou have heard evidence that the defendant made a statement to a peace officer. I am referring to the statement about which Officer Jensen testified. [¶] If you conclude that the defendant made this statement, you may consider it only to help you decide whether to believe the defendant’s testimony. You may not consider it as proof that the statement is true or for any other purpose.” (Italics added.)
CALCRIM No. 356 is appropriate in cases where the defendant’s statements are obtained in violation of Miranda v. Arizona, supra, 384 U.S. 436. And here, the prosecution conceded appellant’s statements were so obtained. (See supra, p. 3, fn. 2.) Therefore, the instruction was apropos. By its terms, it applied to the statement appellant made about which Jensen testified, i.e., appellant’s admission she had used some of the methamphetamine he found in her purse. As appellant concedes, the instruction properly allowed the jury to use the statement to assess her credibility, while prohibiting the jury from considering the statement for its substantive truth.
Appellant fears CALCRIM No. 318 effectively undermined this prohibition. On its face, CALCRIM No. 318 did permit the jury to consider appellant’s pretrial statements for their substantive truth. But, we do not believe the jury would have been inclined to apply the instruction to appellant’s statement about using the methamphetamine. That’s because Jensen was the one who testified about this statement, and CALCRIM No. 356 provided that it specifically applied to appellant’s statement “about which Officer Jensen testified.” So worded, CALCRIM No. 356 clearly singled out appellant’s statement about using methamphetamine for special consideration. Therefore, it is reasonable to surmise that, consistent with the instruction, the jury would have used the statement only for the purpose of assessing appellant’s credibility. We perceive no prejudicial error in the giving of CALCRIM No. 318.
III
Appellant also faults the court for failing to specify which one of her statements CALCRIM No. 356 was designed to cover.
As worded, the instruction applied to appellant’s “statement” about which Jensen testified. However, Jensen testified appellant told him two things: 1) She found the methamphetamine in a box she came upon at Laura’s House; and 2) she used some of the methamphetamine that evening. Appellant speculates the jury may have applied CALCRIM No. 356 to the first statement, in which case it would have used the statement for purposes of assessing her credibility, but not for its substantive truth. She contends if this occurred, it would have undermined her right to testify and present a defense, because the statement was in her favor.
However, appellant made the very same statement at trial. In no uncertain terms she maintained she found the methamphetamine in a box she picked up at Laura’s House. So no matter how the jury used her prior statement to that effect, it would not have violated her right to testify or present a defense. Appellant had every opportunity to tell her side of the story, and we do not believe the alleged error respecting her pretrial statements made any difference in the trial. Again, appellant has failed to show the alleged instructional error actually caused her prejudice.
IV
Appellant’s final claim centers on the fact that possession of methamphetamine is a so-called “wobbler,” in that it is punishable in the court’s discretion as either a felony or a misdemeanor. (See Health & Saf. Code, § 11377, subd. (a); In re Manzy W. (1997) 14 Cal.4th 1199.) Appellant makes the novel argument the court should have instructed the jury that misdemeanor possession is a lesser included offense of felony possession. But these two offenses are not dissimilar in terms of the conduct they prohibit; the only difference is the degree of punishment they carry. And the issue of punishment is one for the court, not the jury. Pursuant to Penal Code section 17, a wobbler will be deemed a misdemeanor if the court imposes a punishment other than imprisonment. (Pen. Code, § 17, subd. (b)(1).) But when this happens, the underlying crime is not transformed from a greater to a lesser offense; instead it remains the same. (See Sangha v. LaBarbera (2006) 146 Cal.App.4th 79, 83, fn. 3.) Accordingly, the trial court did not err in failing to instruct on misdemeanor possession as a lesser included offense of felony possession.
DISPOSITION
The judgment is affirmed.
WE CONCUR: O’LEARY, J., FYBEL, J.