California Cases February 23, 2022: People v. Boggs

Case Description

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NOT TO BE PUBLISHED

Superior Court County of Ventura No. 2017037812 Rocky J. Baio, Judge.

Scott H. Bentley, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Rob Bonta, Attorneys General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Zee Rodriguez, Supervising Deputy Attorney General, and Wyatt E. Bloomfield, Deputy Attorney General, for Plaintiff and Respondent.

PERREN, J.

A jury convicted appellant Christopher Lee Boggs of unlawful possession of methamphetamine with intent to sell (Health & Saf. Code, § 11378; count 1), and transportation of a controlled substance ( id. , § 11379, subd. (a); count 2). It also found true the special allegation limiting probation eligibility if appellant possessed 28.5 grams or more of methamphetamine or

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57 grams or more of a substance containing methamphetamine (Former Pen. Code, § 1203.073, subd. (b)(2)).

The trial court sentenced appellant on count 2 to the upper term of four years, with two years in county jail and two years of mandatory supervision (§ 1170, subd. (h)(5)(B)). Appellant was sentenced to a concurrent two-year jail term on count 1 with the sentence stayed pursuant to section 654.

Appellant contends substantial evidence does not support the special allegation that he possessed 28.5 or more grams of methamphetamine. He also asserts instructional and prosecutorial error.

Appellant's reply brief was filed on August 20, 2021. On October 5, 2021, the Governor signed Senate Bill No. 73 (2021-2022 Reg. Sess.) (SB 73), addressing probation eligibility for crimes involving controlled substances. Among other things, SB 73 repealed section 1203.073 effective January 1, 2022.

In supplemental briefing, the parties concede SB 73 applies retroactively to appellant and that the section 1203.073 weight enhancement must be stricken. They disagree as to the need for resentencing.

The People argue the record confirms the trial court would not have granted probation even if it had had unfettered discretion to do so at the time of sentencing. We agree the court's comments at sentencing unequivocally indicate it would not exercise its newfound discretion under SB 73 to grant probation. We therefore strike the section 1203.073 weight enhancement and decline appellant's remand request. (See, e.g., People v. McVey (2018) 24 Cal.App.5th 405, 419 ( McVey );

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People v. Gutierrez (1996) 48 Cal.App.4th 1894, 1896 ( Gutierrez ).) In all other respects, we affirm.

FACTUAL BACKGROUND

The Traffic Stop

On October 23, 2017, Ventura Police Officer Kyle Halverson saw a Nissan Titan truck drive by an intersection in Ventura. The truck's exhaust was emitting a sound in violation of the Vehicle Code. Officer Halverson attempted to stop the truck. He noticed the driver was moving around and seemed focused on the center console area. The driver went several more blocks before pulling over.

Officer Halverson approached the driver's side window of the truck. Appellant was in the driver's seat. There were two passengers inside, Jennifer Willard and Danny Carroll. Officer Halverson remembered appellant from an earlier traffic stop in which he discovered appellant's license had been suspended. Appellant admitted he did not yet have a valid license. Intending to impound the truck, Officer Halverson and Officer Nicholas Davy conducted an inventory search.

Recovery of Narcotics

The officers found needles and a glass pipe for smoking marijuana in passenger Willard's backpack. Officer Davy discovered a large, black plastic tube inside the center console. The tube contained three clear, plastic baggies, one of which was empty. The other two baggies contained a crystalline substance that appeared to be methamphetamine. One baggie contained approximately two-thirds of the total substance and the other contained the remaining one third. Officer Davy also found a

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third small baggie containing what appeared to be methamphetamine in the back row of the truck closest to Carroll.

When Officer Halverson returned to the police station, he took the suspected narcotics out of the two plastic baggies found in the truck's console and weighed them together. The combined weight was approximately "46.5" grams. Officer Halverson testified he did not know what happened to the third baggie discovered by Officer Davy.

Officer Halverson took the "46.5" grams of suspected narcotics, placed it all in a single package and sent it to the Ventura County Sheriff's Department Crime Lab (Crime Lab). The combined substance was examined by Eileen Boyd, a forensic scientist. Boyd determined the total substance weighed "45.89" grams. The material was loose, white and crystalline in appearance.

Boyd tested a portion of the material in the bag and confirmed it contained methamphetamine. The Crime Lab does not, however, "quant[ify]" the amount of methamphetamine in a sample. Boyd explained: "I don't give a number of how much methamphetamine is in that sample. I just tell you that I have meth."

Recovery of Appellant's Cell Phone

The officers at the scene also recovered appellant's cell phone, which he had been using at the time of the traffic stop. Detective Brent Underwood, who obtained a search warrant for the phone, found text messages from appellant offering to both sell and buy drugs. The prices of the proposed transactions suggested appellant was buying and selling methamphetamine. One person seeking to buy drugs from him asked for a "T," which

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Detective Underwood understood was short for "teener," a reference to 1.7 grams of methamphetamine.

DISCUSSION

SB 73's Repeal of Section 1203.073

Former section 1203.073, subdivision (b)(2) provided: "Except as provided in subdivision (a), probation shall not be granted to, nor shall the execution or imposition of sentence be suspended for . . . [a]ny person who is convicted of violating section 11378 of the Health and Safety Code by possessing for sale, or Section 11379 of the Health and Safety Code by selling a substance containing 28.5 grams or more of methamphetamine or 57 grams or more of a substance containing methamphetamine."

Thus, until SB 73 repealed section 1203.073 effective January 1, 2022, the trial court had no discretion to impose probation for persons convicted of violating Health and Safety Code section 11378 except "in an unusual case where the interests of justice would be best served." (Former § 1203.073, subds. (a), (b)(2).)

Where, as here, an amended statute or law "lessening [the defendant's] punishment becomes effective prior to the date the judgment of conviction becomes final then . . . it, and not the old statute in effect when the prohibited act was committed, applies." ( In re Estrada (1965) 63 Cal.2d 740, 744.) As we recognized in People v. Almanza (2018) 24 Cal.App.5th 1104, if the retroactive application of the amendment also "gives a trial court discretion to reconsider imposing a lower sentence than one previously imposed, it is the usual custom for an appellate court to remand the case to the trial court." ( Id. at p. 1005.)

The People concede that SB 73's repeal of section 1203.073 applies retroactively to appellant and that the special weight

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allegation must be stricken. (See Almanza , supra , 24 Cal.App.5th at p. 1109.) They argue, however, that a remand is "unwarranted because the trial court indicated at the original sentencing hearing that it was unwilling to grant probation to appellant because of his lengthy criminal history."

During sentencing, the trial court acknowledged that appellant was "presumptively ineligible for probation," but noted it could find he was a "suitable candidate for probation in the interest of justice particularly if the Court believes, as I believe, that [appellant's] criminal history is largely tied to substance abuse and but for that substance abuse . . . he could be a law-abiding member of society." The court further noted that if it did not find probation "in the interest of justice," it could "order [appellant] to do a residential treatment program as a term of mandatory supervision."

The trial court's "tentative was . . . to sentence [appellant] as to Count 2 to the County jail for the upper term of four years." It did not find that this was "an unusual case where the interests of justice would be best served" by imposing probation. (Former § 1203.073, subd. (a).) Instead, it noted that "[i]f [the offense is] not serious or nonviolent, then the presumption is [the defendants] go to County jail with a tail on it in terms of the mandatory supervision."

After hearing further argument, the trial court sentenced appellant to an "effective sentence [of] two years in custody followed by a period of mandatory supervision with an additional two years." The court imposed the terms and conditions of mandatory supervision set forth in the probation report with some modifications. It stated its preference, if possible, was for

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appellant to enter "a residential treatment facility as part of the mandatory supervision portion."

Given the unique posture of this case, we asked appellant to submit a supplemental letter brief addressing "(1) what, if any, orders the trial court could impose [on remand] that would stay the imposition of sentence for the purpose of granting probation, and (2) the potential maximum length of such grant." Appellant responded that any "probation would have to be based on the general term of two years, which would be deemed to have started [at] the original date of sentencing and will have expired. Therefore, the court would place appellant on probation and terminate probation on the same date." The Attorney General agrees that "[i]n theory, such an order could 'benefit' appellant . . . because it would have the effect of relieving him from any remaining period of mandatory supervision."

Appellant has served his jail term and "is now on mandatory supervision." Given the trial court's emphasis on appellant's need for substance abuse treatment to prevent further criminal conduct, it is unlikely the court would take action that would prematurely remove him from any type of supervision. More importantly, the court had the opportunity to impose probation "in the interest of justice" and chose not to do so. (See former § 1203.073, subds. (a), (b)(2).) There is nothing in the record to suggest it would consider imposing probation now. (See Gutierrez , supra , 48 Cal.App.4th at p. 1896; McVey , supra , 24 Cal.App.5th at p. 419 [Without the possibility that trial court would exercise discretion to strike enhancement, remand "would serve no purpose but to squander scarce judicial resources"].)

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Exclusion of Pinpoint Jury Instructions

Appellant challenges the exclusion of three pinpoint jury instructions: (1) "Inadequate or incomplete investigation by the prosecution may support an inference adverse to the prosecution which may be sufficient to leave [you] with a reasonable doubt as to the defendant's guilt;" (2) "It is not necessary for the defendant to prove that another person may have committed the crime, nor is it the burden of the defendant to prove his innocence;" and (3) "You have heard evidence that a person other than the defendant may have committed the offense with which the defendant is charged. The defendant is not required to prove the other person's guilt beyond a reasonable doubt. Defendant is entitled to an acquittal if the evidence raises a reasonable doubt in your minds as to the defendant's guilt. Such evidence may by itself raise a reasonable doubt as to the defendant's guilt."

The trial court declined to give the pinpoint instructions, finding they were duplicative of other instructions it intended to give: "The Pinpoint 1, 2, and 3, they're all encompassed within the reasonable doubt and presumption of innocence. You can argue those things to your heart's content. But I don't think they need reinforcement when I'm already going to be reading them."

"'A criminal defendant is entitled, on request, to instructions that pinpoint the theory of the defense case.' [Citation.] Specifically, a criminal defendant 'is entitled to an instruction that focuses the jury's attention on facts relevant to its determination of the existence of reasonable doubt. . . .' [Citation.] But where standard instructions fully and adequately advise the jury upon a particular issue, a pinpoint instruction on that point is properly refused." ( People v. Canizalez (2011) 197 Cal.App.4th 832, 856-857.)

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Appellant's primary defense was that the drugs belonged, in whole or in part, to the two other passengers in the truck. Appellant claims Pinpoint Nos. 1 and 3 "go to the crux of this defense." He contends that Pinpoint No. 1 "points out that . . . the failure to adequately investigate the other two passengers in the vehicle raised a reasonable doubt that the methamphetamine belonged to appellant instead of them," and that Pinpoint No. 3 "points out that [appellant] was not required to prove the guilt of either passenger in order to be found not guilty."

Pinpoint No. 1 was adapted from an instruction given in People v. Wimberly (1992) 5 Cal.App.4th 773 ( Wimberly ). In that case, the police destroyed relevant evidence in violation of a discovery order. Rather than dismiss the charges against the defendant, the trial court instructed the jury that "the improper destruction of evidence could support an inference adverse to the prosecution which may be sufficient to raise a reasonable doubt with respect to the charges relating to appellant's first victim." ( Id. at pp. 791-792.) The Court of Appeal upheld the trial court's decision to provide the instruction as a sanction in lieu of dismissal. ( Id. at pp. 792-794.)

Here, there was no destruction of evidence, no violation of a discovery order and no request for sanctions. Appellant has not shown that Wimberly or any other authority supports a pinpoint instruction that an "[i]nadequate or incomplete investigation by the prosecution may support an inference adverse to the

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prosecution which may be sufficient to leave [the jury] with a reasonable doubt as to the defendant's guilt." To the contrary, as noted in Venegas v. Runnels (N.D. Cal., Aug. 29, 2007) 2007 U.S. Dist. Lexis 66134, at least one California Court of Appeal has upheld the trial court's rejection of an identical negligent investigation instruction. While appellant was free to argue that the police investigation was inadequate or incomplete, he was not entitled to an instruction unsupported by law. ( People v. Burney (2009) 47 Cal.4th 203, 246.)

Pinpoint No. 3 also addressed third-party culpability by instructing that "[t]he defendant is not required to prove the other person's guilt beyond a reasonable doubt." The People contend this instruction was duplicative because the standard instructions adequately informed the jury of the presumption of evidence, the burden of proof and reasonable doubt.

In People v. Earp (1999) 20 Cal.4th 826 ( Earp ), the defendant offered the following pinpoint instruction: "'Evidence has been offered that a third party is the perpetrator of the charged offense. It is not required that the defendant prove this fact beyond a reasonable doubt. In order to be entitled to a verdict of acquittal, it is only required that such evidence raise a reasonable doubt in your minds of the defendant's guilt.'" The court noted that even if the instruction accurately pinpointed the defense theory, the defendant was not prejudiced by the trial court's refusal to give it. "The jury was instructed . . . that the prosecution had to prove defendant's guilt beyond a reasonable doubt, and the jury knew from defense counsel's argument the defense theory that [others], not defendant, had committed the crimes. Under these circumstances, it is not reasonably probable that had the jury been given defendant's proposed pinpoint

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instruction, it would have come to any different conclusion in this case." ( Id. at p. 887; see People v. Watson (1956) 46 Cal.2d 818, 836-837 ( Watson ).)

The same is true here. The jury was instructed that the prosecution had to prove appellant's guilt beyond a reasonable doubt and his counsel repeatedly argued that there was reasonable doubt because the methamphetamine might have belonged to one of the other passengers. (See Earp , supra , 20 Cal.4th at p. 887.) It is not reasonably probable that instructing the jury with Pinpoint No. 3 would have changed the outcome of the case. ( Ibid. ; Watson , supra , 46 Cal.2d at pp. 836-837.)

Claim of Prosecutorial Error

Appellant contends the prosecutor committed prejudicial error by misstating the law regarding circumstantial evidence. During closing argument, the prosecutor argued, with respect to circumstantial evidence, that "just because you have two things that are equally likely, does not mean that the defendant automatically is entitled to a not guilty verdict." The prosecutor then discussed a hypothetical involving circumstantial evidence and how the jury could determine which conclusions were reasonable.

Defense counsel objected. Before allowing counsel to approach, the trial court admonished the jury: "You know what, how about if I just read the last sentence to both of those jury instructions? So, folks, when you go back, you're going to get the bottom right-hand page of each one of these instructions. Look at page 17, 18. This is what the last sentence says. 'However, when considering circumstantial evidence, you must accept only reasonable conclusions and reject any that are unreasonable.' I think that it what counsel is talking about. Okay?"

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The following day, defense counsel renewed her objection outside the jury's presence. The trial court agreed the use of the word "equally" was "unfortunate" but noted it had repeatedly instructed the jury that comments by the attorneys are not evidence and that the jury must follow the instructions if those instructions are inconsistent with the attorneys' comments.

After further argument, the trial court sent the jury a note stating: "'All jury instructions are equally important. During argument, the Court reread a portion of jury Instructions 224 and 225 dealing [with] circumstantial evidence. Please consider the instructions in their entirety. If you feel that any comment made during argument are [sic] inconsistent with those instructions, then you must follow the instructions.'"

We agree with the trial court that the prosecutor's remarks were unfortunate, but conclude they did not constitute error. "The [trial] court's instructions, not the prosecution's argument, are determinative, for '[w]e presume that jurors treat the court's instructions as a statement of the law by a judge, and the prosecutor's comments as words spoken by an advocate in an attempt to persuade.' [Citation.]" ( People v. Mayfield (1993) 5 Cal.4th 142, 179.) Given the [original and curative] instructions, and viewing the prosecutor's arguments as a whole, we see no "reasonable likelihood that the jury construed or applied . . . the complained-of remarks in an objectionable fashion." ( People v. Samayoa (1997) 15 Cal.4th 795, 841.)

We also see no reasonable probability that appellant would have been acquitted in whole or in part had the prosecutor not made the remarks during closing argument. Nothing in the record suggests that the isolated comment so infected the trial with unfairness as to make the resulting conviction a denial of

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due process. (See People v. Hill (1998) 17 Cal.4th 800, 819; People v. Frye (1998) 18 Cal.4th 894, 979 ["The single instance of misconduct committed by the prosecutor when she referred to evidence outside the record during closing argument does not evidence a pattern of misconduct warranting reversal"], overruled on another ground in People v. Doolin (2009) 45 Cal.4th 390, 422, fn. 22.)

Finally, any possible prosecutorial error was harmless given the strength of the evidence against appellant. (See People v. Fields (1983) 35 Cal.3d 329, 363; People v. Bolton (1979) 23 Cal.3d 208, 214-215.) Before appellant stopped his truck, Officer Halverson noticed he was moving around in the console area, which is where a significant amount of methamphetamine was found. The text messages on appellant's phone confirmed his involvement in methamphetamine sales.

DISPOSITION

The jury's true finding on the section 1203.073 special allegation is stricken. In all other respects, the judgment is affirmed.

We concur: YEGAN, Acting P. J., TANGEMAN, J.

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Notes:

All statutory references are to the Penal Code unless otherwise stated.

Appellant does not explain why he believes the exclusion of Pinpoint No. 2 was erroneous or prejudicial. Accordingly, we deem the issue waived. ( People v. Stanley (1995) 10 Cal.4th 764, 793 [court may treat as waived a point in a brief made without reasoned argument or authority].)

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