P. v. Bueno CA2/3 ( 2013 )

Filed 4/30/13 P. v. Bueno CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B235229
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA373550)
v.
CARMELO MEZA BUENO,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County, Norm J.
Shapiro, Judge. Affirmed.
David Andreasen, under appointment by the Court of Appeal, for Defendant
and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Steven D. Matthews and Zee
Rodriguez, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Carmelo Meza Bueno appeals his conviction for
possession of methamphetamine for sale. The trial court sentenced Bueno to a term of 16
years 4 months in prison. Bueno contends the trial court committed various instructional
errors; the prosecutor committed prejudicial misconduct during argument; the cumulative
effect of the errors requires reversal; and the matter must be remanded to allow the trial
court discretion to impose a lesser enhancement. Bueno also requests that we review the
sealed transcripts of in camera hearings on his motions to suppress evidence, unseal a
search warrant affidavit, traverse and quash the search warrant, and disclose the identity
of a confidential informant. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. Facts.
a. People’s evidence.
On the evening of July 13, 2010, Long Beach police officers, including Detectives
Mark Sisneros and Jose Serenil, served a search warrant at Bueno‟s one-bedroom
apartment located on Henderson Avenue in Long Beach. Officers discovered
51 kilograms–– or over 100 pounds––of methamphetamine in the bedroom, packaged in
114 different containers, including duffel bags, backpacks, boxes, and smaller containers.
No drug paraphernalia, pay-owe sheets, or packing materials were found at the
apartment.
Bueno told Detective Serenil that nine months earlier, he had met a man named
Perico at a party. Perico offered to pay Bueno‟s rent if Bueno stored the
methamphetamine for him. Perico explained that the drugs were of poor quality and
could not be sold. An unnamed person dropped the drugs off at Bueno‟s apartment.
During the subsequent nine months, Perico did not return to pick up the drugs, and Bueno
never heard from Perico, or anyone else, regarding them. Bueno knew the quantity of
methamphetamine he was storing was over 100 pounds.
Detective Sisneros, testifying as an expert, explained that drug-trafficking
organizations generally operate as follows. The operation is controlled by someone in
Mexico. Once the drugs are transported to the United States, one or more persons are
2
responsible for storing them at a “stash house” or warehouse, which could be a residence
or other storage site. That individual is responsible for keeping the drugs safe, and he and
his family would be in danger if anything happened to them. Other persons are
responsible for finding buyers and keeping sales records. Once a buyer is found, the
person storing the drugs will bring a specified amount to the seller, who will package it
into smaller units. The money is stored separately. The participants in the organization
generally do not know each other so that if one is caught, he or she cannot disclose the
location of the drugs or the identities of the other participants. Inferior quality drugs that
have been diluted or “cut” could still be sold, albeit for a lower price.
In Sisneros‟s opinion, the drugs stored at the apartment were possessed for sale.
Generally, possession of two or more kilograms of methamphetamine would be for
purposes of sale, regardless of the absence of other indicia of sales. The wholesale value
of the methamphetamine in the apartment was at least $1.2 million. It did not appear to
Sisneros that Bueno was personally selling the drugs.
b. Defense evidence.
Bueno testified in his own behalf, as follows. He had worked in construction for
approximately eight years, but in early 2010 there was little work available. He could not
pay his rent and had to borrow money from family and friends. In October 2009, he
attended a party and met a man who called himself “El Perico.” Perico did not reveal his
real name. Upon learning Bueno was unemployed, Perico told Bueno he would give him
$5,000 if he would store some methamphetamine for him. He said he would return for
the drugs in less than four months. Perico explained that the drugs were “ „no good‟ ”
and he was “ „probably going to have to get rid of [them]‟ ” and “ „dump [them] out.‟ ”
Perico did not explain why the drugs needed to be stored, rather than simply dumped.
After thinking the proposition over, Bueno accepted Perico‟s offer. Bueno would not
have agreed had he thought the drugs were to be sold. However, he did not know to a
certainty that the drugs would not be sold. He had never used drugs, had never seen
methamphetamine before, and had never previously been in trouble.
3
The following day Perico brought the methamphetamine to Bueno‟s apartment in
a pickup truck. He and Bueno unloaded it into the apartment. Perico did not provide
Bueno with his telephone number or contact information. Bueno never heard from Perico
again, nor did he hear from anyone else regarding the drugs. Bueno did not dare get rid
of the methamphetamine or call police because he feared for his and his family‟s safety.
He never considered selling the methamphetamine himself. He had no financial interest
in the drugs, beyond the money he was paid to store them, and did not intend that they be
sold. He did not store them with the intent someone else would later sell them.
However, he understood that if the drugs were good, Perico was probably involved in
selling them.
Bueno‟s landlord, ex-wife, and brother testified that Bueno was an honest, hard
working, law-abiding man who had suffered financial difficulties in the year preceding
his arrest. He had never been in trouble before the charged offense.
2. Procedure.
Trial was by jury. Bueno was convicted of possession of methamphetamine for
sale (Health & Saf. Code, § 11378). The jury found the amount possessed for sale
exceeded 20 kilograms (Health & Saf. Code, § 11370.4, subd. (b)(4)). The trial court
sentenced Bueno to a term of 16 years 4 months in prison. It imposed a restitution fine, a
suspended parole restitution fine, a court security assessment, a criminal conviction
assessment, and a laboratory analysis fee. Bueno appeals.
DISCUSSION
1. The trial court correctly and adequately instructed on the elements of the
offense.
a. Additional facts.
The defense theory was that even if Bueno knew the methamphetamine he
possessed would later be sold, he lacked the specific intent that it be sold and thus was
only guilty of simple possession. Prior to trial, and at the close of evidence defense
counsel requested that the court instruct that “[k]nowledge standing alone is not specific
intent.” The People proposed an alternative instruction stating that the defendant‟s
4
knowledge could be considered on the issue of whether he possessed the requisite
specific intent.1 The trial court expressed concern that the proposed instructions might be
confusing or unhelpful. After considering lengthy argument on the issue, it determined to
give only the standard instructions, CALJIC Nos. 12.01, 2.02, and 3.31. CALJIC
No. 12.01 listed, as one of the elements of the crime, that the defendant must have
possessed the controlled substance “with the specific intent to sell the same.”2 CALJIC
No. 3.31 pertained to the concurrence of an act and specific intent,3 and CALJIC
No. 2.02 addressed the sufficiency of circumstantial evidence to prove specific intent.4
The jury was also instructed on the lesser included offense of simple possession.
1 The People‟s proposed instruction was as follows: “If you find the defendant
knew that someone else was going to sell the narcotics, then that is a fact that you can
consider in conjunction with or along with whatever other evidence you consider to
determine whether defendant had the specific intent necessary to be convicted of the
charge of possession for sale of a controlled substance. [¶] However, the People must
prove the defendant had the specific intent that the narcotics be sold.”
2 The trial court instructed the jury with CALJIC No. 12.01 as follows: “Defendant
is accused in Count One of having committed the crime of illegal possession for sale of a
controlled substance, a violation of section 11378 of the Health and Safety Code.
[¶] . . . . [¶] In order to prove this crime, each of the following elements must be proved:
[¶] 1. A person exercised control over or the right to control, an amount of
methamphetamine, a controlled substance; [¶] 2. That person knew of its presence; [¶]
3. That person knew of its nature as a controlled substance; [¶] 4. The substance was in
an amount sufficient to be used for sale or consumption as a controlled substance; and [¶]
5. That person [possessed] the controlled substance with the specific intent to sell the
same.” (Italics added.)
3 CALJIC No. 3.31 informed the jury that for Bueno to be found guilty on count 1,
“there must exist a union or joint operation of act or conduct and a certain specific intent
in the mind of the perpetrator. Unless this specific intent exists the [crime] to which it
relates [is not committed]. [¶] [The specific intent required is included in the definition
of the [crime] set forth elsewhere in these instructions.]”
4 The trial court instructed the jury with CALJIC No. 2.02 as follows: “The specific
intent with which an act is done may be shown by the circumstances surrounding the
commission of the act. However, you may not find the defendant guilty of the crime
charged in Count One, unless the proved circumstances are not only (1) consistent with
5
During deliberations, the jury sent a note to the court asking for “a legal definition
of „intent to sell‟ and „specific intent‟ ” and adding, “we understand that it does not mean
intending to sell the drugs on a street corner yourself.” The court conferred with both
counsel, but the parties were unable to reach a consensus on a proper response.
The court brought the jury into the courtroom. The foreperson stated that the jury
had reached a verdict after submitting its question, explaining, “We found the answer in
the instructions you gave us.” The court advised that the jury‟s statement in its note,
“ „we understand that it does not mean intending to sell the drugs on a street corner
yourself‟ ” was in fact incorrect, in that the defendant‟s intent to personally sell the drugs
would suffice. The foreperson clarified that jurors had intended to convey “it doesn‟t
mean that only.” The court asked whether any juror did not understand the common
meanings of the words “to sell,” “specific,” and “intent.” No juror indicated confusion.
The court told the jury to use the plain meaning of those words when interpreting the
phrases “intent to sell” and “specific intent.”
The foreperson stated that the court‟s response to the jury‟s query was “[a] little”
helpful. She continued: “I think more helpful was the page that we found in the
instructions. It was about when you do something with knowledge that it‟s illegal, like,
you know, ignorance of the law is no excuse for your speeding through town at 60, you
don‟t know the speed limit there is 45. You‟re still going to get a ticket even if you had
no idea. . . . That part helped.” The court corrected the foreperson, explaining that the
cited instruction applied only to the lesser included offense of possession of
methamphetamine, a general intent crime. The court explained: “You probably––you
were dealing with a charged crime and you were dealing with an alternative. . . . Now,
the theory that the defendant had the required specific intent but (2) cannot be reconciled
with any other rational conclusion. [¶] Also, if the evidence as to any specific intent
permits two reasonable interpretations, one of which points to the existence of the
specific intent and the other to its absence, you must adopt that interpretation which
points to its absence. If, on the other hand, one interpretation of the evidence as to the
specific intent appears to you to be reasonable and the other interpretation to be
unreasonable, you must accept the reasonable interpretation and reject the unreasonable.”
6
the way I set the instructions up . . . we told you that [the] charged crime requires a
specific intent to sell. [¶] In the lesser-included offense of possession, that‟s not a
specific intent crime. That‟s a general intent crime. And what you are referring to is a
general intent concept; in other words, if you do what the law declares to be a crime,
although you are not aware, you are still acting with a general intent. ¶] Applying that to
this charge would be incorrect. In other words, you‟re judging this crime as a general
intent crime as opposed to a specific intent crime. [¶] All right. Now, does that set you
back at all?” The foreperson responded that the jury needed to “talk some more.”
In regard to the jury‟s question about the definition of specific intent, the court
added: “On the element of specific intent, the person charged with the commission of the
offense must possess the specific intent that someone else––this is an alternative––to
the––your statement here that personally sell the drug on the street yourself is the
alternative––must possess the specific intent that someone else would sell the controlled
substance or attempt to sell the controlled substance.”
Jurors resumed their deliberations, and rendered a verdict approximately one-half
hour later.
b. Discussion.
Bueno contends the trial court erred by providing inadequate instruction on the
definition of specific intent, refusing to give the requested pinpoint instruction, and
providing “unhelpful and potentially misleading” answers to the jury‟s questions, thereby
violating his Sixth Amendment and due process rights to present a defense. We disagree.
(i) The instructions given were correct and adequate.
A trial court must instruct, sua sponte, on the general principles of law that are
closely and openly connected to the facts before the court and that are necessary for the
jury‟s understanding of the case. (People v. Moye (2009) 47 Cal.4th 537, 548; People v.
Boyer (2006) 38 Cal.4th 412, 468-469.) We independently determine whether the
instructions given were correct and adequate. (People v. Riley (2010) 185 Cal.App.4th
754, 767; People v. Mathson (2012) 210 Cal.App.4th 1297, 1311-1312.) We examine
whether the trial court fully and fairly instructed on the applicable law. (Riley, at p. 767;
7
People v. Lopez (2011) 198 Cal.App.4th 698, 708.) When reviewing a purportedly
ambiguous or misleading instruction, we inquire whether there is a reasonable likelihood
the jury applied the challenged instruction in a way that violates the Constitution.
(People v. Richardson (2008) 43 Cal.4th 959, 1028; Lopez, at p. 708.) We “look to the
instructions as a whole and the entire record of the trial, including the arguments of
counsel,” and assume that the jurors are intelligent persons, capable of understanding and
correlating the instructions given. (Lopez, at p. 708; Riley, at p. 767.) Instructions should
be interpreted, if possible, so as to support the judgment rather than defeat it if they are
reasonably susceptible to such interpretation. (Riley, at p. 767; Lopez, at p. 708.)
Health and Safety Code section 11378 states in pertinent part: “every person who
possesses for sale any [enumerated] controlled substance . . . shall be punished by
imprisonment.” The elements of the crime are that the defendant possessed a controlled
substance in a usable amount, with knowledge of its presence and nature as a controlled
substance, with the intent to sell it. (People v. Montero (2007) 155 Cal.App.4th 1170,
1175-1176; People v. Parra (1999) 70 Cal.App.4th 222, 225-226.) Section 11378 is a
specific intent offense, and “the defendant needs to either (1) possess the specific intent
to sell the controlled substance personally, or (2) possess the specific intent that someone
else will sell the controlled substance.” (Parra, at p. 227; People v. Consuegra (1994)
26 Cal.App.4th 1726, 1732, fn. 4 [“The requisite mental state is satisfied when the drugs
are possessed with the specific intent that they be sold, regardless of whether the
possessor intends to sell them personally”]; cf. People v. Perez (2005) 35 Cal.4th 1219,
1231.)5 Mere knowledge that the drugs will ultimately be sold by someone else is not
5 Parra and Consuegra considered Health and Safety Code section 11351 rather
than Health and Safety Code section 11378. The two statutes contain identical language
regarding possession for sale, but criminalize possession of different controlled
substances. Accordingly, the analysis in Parra and Consuegra is equally applicable here.
An earlier case, In re Christopher B. (1990) 219 Cal.App.3d 455, has sometimes
been interpreted to hold that to be found guilty of possession for sale the defendant must
have specifically intended to sell the drugs himself or herself. (See People v. Parra,
8
equivalent to the specific intent to sell. (Consuegra, at p. 1732; In re Christopher B.,
supra, 219 Cal.App.3d at p. 466.) However, intent may––and generally is––proven by
circumstantial evidence. (People v. Thomas (2011) 52 Cal.4th 336, 355 [“Mental state
and intent are rarely susceptible of direct proof and must therefore be proven
circumstantially”]; People v. Harris (2000) 83 Cal.App.4th 371, 374 [specific intent to
sell contraband may be established by circumstantial evidence].) Thus, evidence a
defendant knew drugs in his possession would eventually be sold is relevant on the issue
of his specific intent. The parties agree on these principles.
The instructions given sufficiently apprised the jury of these precepts. CALJIC
No. 12.01 expressly stated as an element that the defendant must have possessed the
controlled substance “with the specific intent to sell the same.” In response to the jury‟s
question, the court explained that to be found guilty, Bueno must have either intended to
sell the drugs himself, or “must [have] possess[ed] the specific intent that someone else
would sell the controlled substance or attempt to sell the controlled substance.” The
arguments of both attorneys made it clear that the key issue was whether Bueno intended
that the drugs be sold. Under these circumstances, the jury could not have been confused
regarding the intent element. There is no reasonable likelihood the jury applied the
instructions in a constitutionally impermissible fashion. (See People v. Richardson,
supra, 43 Cal.4th at p. 1028.)
Bueno‟s contention that the instructions suffered from flaws similar to those
present in People v. Beeman (1984) 35 Cal.3d 547, is meritless. Beeman concluded a
pattern jury instruction was defective because it stated an aider and abettor was liable if
supra, 70 Cal.App.4th at p. 226.) Christopher B. did not directly consider the question of
whether a defendant must have had the intent to personally intend to sell the drugs. (See
People v. Consuegra, supra, 26 Cal.App.4th at p. 1732, fn. 4.) It is now settled that a
defendant who possesses drugs may be guilty of possession for sale if he or she intends
that someone else will sell them (Parra, at p. 227; Consuegra, at p. 1732, fn. 4; People v.
Perez, supra, 35 Cal.4th at p. 1231), and the parties do not dispute this point.
9
he acted to aid or promote the crime with knowledge of the principal‟s unlawful purpose,
but did not explain he must have shared the perpetrator‟s intent. (Id. at p. 560; People v.
Houston (2012) 54 Cal.4th 1186, 1224.) Apart from the fact that Bueno was not tried as
an aider and abettor, Beeman is inapposite because the instructions given in the instant
matter expressly included an intent element.
Bueno also argues that the jury should have been provided with additional
instruction regarding the meaning of “specific intent,” and “intent to sell,” both under the
court‟s duty to sua sponte instruct on the relevant legal principles and in response to the
jury‟s specific request for additional clarification. “ „A court has no sua sponte duty to
define terms that are commonly understood by those familiar with the English language,
but it does have a duty to define terms that have a technical meaning peculiar to the
law.‟ ” (People v. Hoyos (2007) 41 Cal.4th 872, 915; People v. Brasure (2008) 42
Cal.4th 1037, 1066.) As they arose in this case, “intent,” “specific,” and “sell” are all
ordinary, commonplace words with readily understood meanings. Thus, the court had no
sua sponte duty to define them.
Bueno‟s reliance on People v. Williams (2008) 161 Cal.App.4th 705, is likewise
unavailing. In Williams, the defendant challenged CALCRIM No. 416, the uncharged
conspiracy instruction, on the ground it failed to adequately set forth a specific intent
requirement. (Williams, at p. 710.) In rejecting that contention, Williams observed: “In
order to instruct a jury that a particular crime requires a specific intent, it is not helpful
simply to say the defendant must have a specific intent. Rather, it is preferable that the
jury be informed what particular intent is required.” (Id. at p. 711.) Williams concluded
CALCRIM No. 416 did so, in that it listed, for example, the “specific intent to enter an
agreement with another member of the conspiracy to commit the unlawful sale or
furnishing of a controlled substance.” (Ibid.) Williams does not hold that a definition of
the term “specific intent” is required. The instruction given here, as in Williams,
appropriately told the jury what specific intent was required: the intent to sell the
methamphetamine.
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(ii) Refusal to give pinpoint instruction.
Upon request, a trial court must give an instruction that pinpoints the theory of the
defense case, if supported by the evidence. (People v . Gutierrez (2002) 28 Cal.4th 1083,
1142; People v. Bolden (2002) 29 Cal.4th 515, 558; People v. Moon (2005) 37 Cal.4th 1,
30.) Such an instruction may properly be refused where it is, among other things,
argumentative, duplicative or potentially confusing. (People v . Homick (2012)
55 Cal.4th 816, 890; Moon, at p. 30; People v. Gurule (2002) 28 Cal.4th 557, 659;
Bolden, at p. 558.) Bueno contends the court committed prejudicial error by refusing his
proposed pinpoint instruction, “[k]nowledge standing alone is not specific intent.”
The instruction was a correct statement of law, and was not argumentative.
However, the trial court appears to have been concerned that it was potentially confusing.
There is some basis for the court‟s concern. A jury finding that Bueno knew the drugs
would be sold could not substitute for a finding he had the requisite intent. It could,
however, have supported a reasonable inference that Bueno had the specific intent that
the methamphetamine be sold. (See In re Christopher B., supra, 219 Cal.App.3d at
p. 466 [although juvenile court erred by characterizing possession for sale as a general
intent crime, the record might have “circumstantially support[ed] a true finding of
specific intent”].) The trial court may correctly have been concerned that the proposed
instruction would lead the jury to erroneously conclude such an inference was
impermissible.
But assuming arguendo the court should have given the requested instruction,
reversal is not required. The erroneous failure to give a proposed pinpoint instruction
generally requires reversal only if it is reasonably probable that the jury would have come
to a different conclusion had the instruction been given. (People v. Earp (1999) 20
Cal.4th 826, 887; People v. Hughes (2002) 27 Cal.4th 287, 363; People v. Larsen (2012)
205 Cal.App.4th 810, 830; People v. Canizalez (2011) 197 Cal.App.4th 832, 858.)6
6 Bueno argues that the Chapman harmless error standard applies because the trial
court‟s instructions on mental state may have misled the jury. (Chapman v. California
11
No such probability exists here. The jury was properly instructed on the
requirement of intent. Nothing in the instructions conflated knowledge with intent, or
suggested they were fungible. The parties‟ arguments extensively addressed the issue,
and did not suggest, explicitly or implicitly, that knowledge was the equivalent of intent.
To the contrary, the parties‟ arguments repeatedly addressed the distinction between the
two.7 Nor is there merit to Bueno‟s contention that omission of the instruction deprived
him of his right to present a defense. As noted, the instructions given clearly contained
the intent element. Based on the instructions given, Bueno could and did defend on the
theory that he lacked the requisite intent, and defense counsel‟s argument fully explored
(1967) 386 U.S. 18, 24.) Because the instructions given were not confusing, did not
mislead the jury, did not deprive Bueno of a defense, and did not remove an element from
the jury‟s consideration, the Watson standard applies. (People v. Earp, supra, 20 Cal.4th
at p. 887; People v. Watson (1956) 46 Cal.2d 818, 836.)
7 For example, the prosecutor argued: “Specific intent is an element that the People
must prove. If you find the defendant did not have the specific intent, that he planned to
just sit there and he had no intent that anything ever happen with these things other than
hopefully somebody comes back and takes them, and he didn‟t really care, if you really
believe that then you‟ve got to find him not guilty. But again, that is not reasonable. It‟s
not reasonable to say he had no intent, he did not have the specific intent that these drugs
would be sold.”
Defense counsel argued that Bueno‟s intent was the only question in the case.
“[I]t is not enough that Mr. Bueno stored drugs. . . . You‟ve got to focus on his intent.
The prosecution has to prove to you beyond a reasonable doubt that was his purpose.
Knowledge is not enough, period. Knowledge is not enough standing alone. If he knows
someone is going to sell these drugs, not enough. [¶] It‟s not enough that he should have
known those drugs were going to be sold. It‟s not enough that he might have actually
known, and it‟s not enough that if––even if he did actually know these drugs are good,
these drugs are going to be sold, even if Perico said I‟ll be back in five minutes, these
drugs are very good quality, I'm going to go sell them later today, that knowledge is not
enough. [¶] The prosecution has to prove specific intent. A different standard. Those
are two different standards completely. The prosecution wants to collapse these two in
telling you that knowledge, that‟s enough. He wants to turn an apple into an orange.
Two different things. Focus here on the difference, knowledge, specific intent.”
12
this theme. (See People v. Gutierrez, supra, 28 Cal.4th at pp. 1144-1145 [if failure to
give pinpoint instruction was error, it was harmless because nothing in the instructions
given precluded jury from adopting the defense theory, which was fully covered in
counsel‟s argument].) Nothing in the jury‟s questions to the court suggested it was
confused on the difference between knowledge and intent, or was equating the two.
Absent a showing the jury might have been confused on this point, we see no reason why
omission of the instruction was prejudicial. Jurors generally need not be told that apples
are not oranges. A reasonably intelligent jury can readily distinguish between the
concepts of intent and knowledge. Accordingly, any error in omitting the instruction was
harmless.
(iii) The trial court’s response to the jury’s question was not error.
Bueno next complains that the trial court‟s response to the jury‟s question was
“unhelpful and confusing” and likely mislead the jury.
When a deliberating jury requests clarification of an instruction, Penal Code
section 1138 requires that the court help the jury understand the legal principles it is
asked to apply, and attempt to “ „clear up any instructional confusion.‟ ” (People v.
Giardino (2000) 82 Cal.App.4th 454, 465; People v. Montero, supra, 155 Cal.App.4th at
p. 1179; People v. Solis (2001) 90 Cal.App.4th 1002, 1015.) “ „This does not mean the
court must always elaborate on the standard instructions. Where the original instructions
are themselves full and complete, the court has discretion under section 1138 to
determine what additional explanations are sufficient to satisfy the jury‟s request for
information. [Citation.] Indeed, comments diverging from the standard are often risky.
[Citation.]” [Citation.]‟ ” (Montero, at p. 1179; Solis, at p. 1015.) The trial court must
consider how it can best aid the jury and “ „whether further explanation is desirable, or
whether it should merely reiterate the instructions already given.‟ ” (Giardino, at p. 465.)
Definition of a commonly used term may be required if the jury exhibits confusion over
the term‟s meaning. (Solis, at p. 1015; Montero, at p. 1179.) We apply the abuse of
discretion standard to any decision by a trial court to instruct, or not instruct, in its
13
exercise of its supervision over a deliberating jury. (People v. Waidla (2000) 22 Cal.4th
690, 745-746.)
We discern no abuse of discretion here. The court did not err by failing to provide
a further definition of specific intent. The court ascertained that jurors understood the
plain meaning of the words “specific,” “intent,” and “to sell,” and instructed them to
apply the plain meaning of the words. Although Bueno faults the court for referring
jurors back to the instructions already given, in light of the fact the terms at issue could
be easily and straightforwardly applied, this course of action was within the court‟s
discretion. (See People v. Montero, supra, 155 Cal.App.4th at p. 1179; People v.
Giardino, supra, 82 Cal.App.4th at p. 465.) As the jury did not ask about the interplay
between knowledge and intent, answering the query with the proposed pinpoint
instruction would have been unwarranted.
Nor do we agree that the court‟s comments likely misled or confused the jury.
The court adequately cleared up the jury‟s confusion regarding CALJIC No. 3.30, and
clarified that it applied only to the lesser included offense. There was nothing confusing
in the advice that the intent element could be satisfied if Bueno “possess[ed] the specific
intent that someone else would sell the controlled substance or attempt to sell the
controlled substance.” This accurate statement of the law would not “have given jurors
the impression that the specific intent issue was to be resolved simply [by] reference to
who was going to sell the drugs,” as Bueno asserts.
Finally, Bueno complains that certain offhand comments made by the court
somehow prejudiced him. In the course of responding to the jury‟s query, the trial court
mentioned several times that the attorneys had been unable to agree on an appropriate
instruction and response.8 While the court‟s comments were unnecessary, they were
8 The challenged remarks are as follows: “So I believe it was after court on Friday
when we were finalizing the instructions, we spent the bulk of our discussion talking
about this. Each side had a suggestion. But, as good as these lawyers are and as well as
they have cooperated with the court and as much as the court appreciated having them
here and invited back together or on other cases in the future, they could not agree down
14
innocuous. Bueno‟s theory that the comments likely led the jury to disregard defense
counsel‟s argument or prejudiced the defense is not persuasive.
2. The trial court’s pretrial explanations of the reasonable doubt standard did not
dilute the standard of proof or violate Bueno’s due process rights.
a. Additional facts.
During pre-instruction of the panel of prospective jurors, the trial court explained
that in a criminal case, the prosecution must prove every element of a charged crime
beyond a reasonable doubt. The court elaborated on the meaning of reasonable doubt as
follows: “Now what‟s reasonable doubt? It is not beyond a shadow of a doubt. It‟s not
beyond all doubt. Those are standards we don‟t use here. It‟s also more than I, think the
defendant did this; and he might have done it; perhaps he did it; looks like he may have
done it––things of that nature, that‟s not proof beyond a reasonable doubt.” The court
then read a portion of CALJIC No. 2.90, the standard reasonable doubt instruction:
“Proof beyond a reasonable doubt is that state of the case which, after the entire
comparison and consideration of all the evidence leaves the minds of the jurors in that
condition that they cannot say they have an abiding conviction of the truth of the charge.”
The court continued: “Okay. That‟s a lot of words––must have an abiding
conviction of the truth of the charge, be satisfied beyond a reasonable doubt. If you do
not have an abiding conviction of the truth of the charge, then the defendant is entitled to
the line as to what they would like me to tell you in addition to what the jury instructions
said. [¶] So in the court‟s wisdom, that‟s in quotes, I told the attorneys I‟m just going to
give them the instruction the way it is written, as we do in most cases . . . .” Shortly
thereafter, the court continued: “I‟m going to go out on a limb here with you, folks. . . . I
spoke with the attorneys, as I said, at some length last week and at some length this
morning, and there is––what I‟d like to do before I go out and make a definite decision on
something like this, if I get the sides to agree, it makes it––it‟s easier. . . . But sometimes
the sides just don‟t agree and so the judge, being the judge, has to step in and, as they say,
lay down the . . . law. I‟m not doing it in that sense that I don‟t respect what both the
attorneys have told me. [¶] So let me sum up my notes and see if I can give you
something here that might be helpful.” “Okay. Folks, what I‟m going to give you now is
the best I can do.” The court then provided the aforementioned response to the jury‟s
query.
15
an acquittal or a finding of not guilty. [¶] . . . [¶] Now for those of you who are really
thinking about this, what‟s an abiding conviction? To a certain degree, certainty, and
other than to say––the attorneys may explain it to you––that you must be satisfied with
your verdict, not only when you deliver the verdict to the court, but also when you think
about the verdict the next day, the next week, the next month, the next year, five years,
ten years down the line as you recall the case and be satisfied with the verdict that you
have arrived at. [¶] That would be a lasting or abiding conviction of the truth of the
charge.”
The court then distinguished the preponderance of the evidence standard from the
reasonable doubt standard, as follows: “Now if you sat on civil cases before, you know
the standard is quite different. It‟s proof by a preponderance of the evidence. Now that‟s
easily quantified. I put out my hands to represent a scale. Both sides come into court. At
the end of the presentation of evidence, the side who tips the scale in their favor one way
or the other is entitled to the verdict. So it could be a slightest tipping one way or the
other. [¶] It‟s not the way it works in the criminal justice system, and it‟s something that
can‟t be quantified 99 to one and so on. It‟s something that is a little bit––little bit more
difficult than a simple tipping of a scale. [¶] So there you have it. That‟s the
instruction.” Defense counsel did not object to the court‟s explanations.
At the close of trial, the court instructed the jury with the standard version of
CALJIC No. 2.90.
b. Applicable law.
Bueno contends the court‟s comments diluted the standard of proof and infringed
upon his right to due process. We disagree.
California law imposes a duty on the trial court to instruct the jury in a criminal
case on the presumption of innocence and the prosecution‟s burden of proving guilt
beyond a reasonable doubt. (People v. Aranda (2012) 55 Cal.4th 342, 352; Pen. Code,
§ 1096.) Instruction with CALJIC No. 2.90 or CALCRIM No. 220, the standard
instructions on the presumption of innocence and reasonable doubt, correctly and
adequately set forth the law and satisfy the court‟s obligation. (Aranda, at pp. 353-354;
16
People v. Stone (2008) 160 Cal.App.4th 323, 333-334.) Neither the federal Constitution
nor state law prohibit trial courts from defining reasonable doubt, and there is no
requirement that any particular form of words be used, as long as the concept is correctly
conveyed to the jury. (Victor v. Nebraska (1994) 511 U.S. 1, 5; Aranda, at p. 354;
People v. Zepeda (2008) 167 Cal.App.4th 25, 30.) However, appellate courts have
sometimes warned of the perils of modifying or elaborating on the standard instructions.
(See People v. Freeman (1994) 8 Cal.4th 450, 504-505; People v. Bryant (2011) 191
Cal.App.4th 1457, 1471; People v. Katzenberger (2009) 178 Cal.App.4th 1260, 1269.)
Where a court has misdefined the reasonable doubt standard in a manner that improperly
lowers the prosecution‟s burden of proof, reversal is required. (Aranda, at p. 365.) An
instruction that effectively lowers the prosecution‟s burden of proving guilt beyond a
reasonable doubt is structural error because it vitiates all the jury‟s findings and its effect
on the verdict is unquantifiable. (Ibid.)
As noted, when reviewing a challenge to jury instructions, we consider the
instructions as a whole to determine whether there is a reasonable likelihood the jury
applied the instruction in an unconstitutional manner. (Victor v. Nebraska, supra, 511
U.S. at p. 6; People v. Loy (2011) 52 Cal.4th 46, 74; People v. Richardson, supra,43 Cal.4th at p. 1028; People v. Stone, supra, 160 Cal.App.4th at p. 331.)
c. The court’s comments on abiding conviction did not dilute the prosecution’s
burden of proof.
Bueno complains that the trial court‟s comments on the meaning of “abiding
conviction” lowered the prosecution‟s burden of proof because the court used the word
“satisfied,” a “much less demanding requirement than that they be convinced beyond all
reasonable doubt.” We do not believe jurors would have understood the court‟s
comments as Bueno suggests. To the contrary, the court appropriately equated the phrase
“abiding conviction” with permanence. As People v. Pierce (2009) 172 Cal.App.4th 567,
explained: “The United States Supreme Court and the California Supreme Court,
respectively, have described „an abiding conviction‟ as one that is „settled and fixed‟
(Hopt v. Utah (1887) 120 U.S. 430, 439) and one that is „lasting [and] permanent‟
17
(People v. Brigham (1979) 25 Cal.3d 283, 290.)” (Pierce, at p. 573.) Bueno does not
offer persuasive authority for the proposition that the word “satisfied” lessened the
prosecution‟s burden. Indeed, as the People point out, over a century ago Hopt observed
that “an instruction to the jury that they should be satisfied of the defendant‟s guilt
beyond a reasonable doubt, had often been held sufficient, without further explanation.”
(Hopt v. Utah, supra, 120 U.S. at p. 440.) Moreover, the court subsequently instructed
with CALJIC No. 2.90, the standard reasonable doubt instruction, which defined the
term. Considering the instructions as a whole, we see no likelihood the jury would have
interpreted the court‟s comments as Bueno suggests.
d. The court’s comparison of the reasonable doubt and preponderance of the
evidence standards did not dilute the burden of proof.
Bueno complains that the court‟s comments comparing the preponderance of the
evidence and reasonable doubt standards could have been misinterpreted to mean that
proving guilt beyond a reasonable doubt was only a little more difficult than a simple
tipping of a scale. The proper inquiry, however, is not whether the court‟s comments
“ „could have‟ been applied in an unconstitutional manner, but whether there is a
reasonable likelihood that the jury did so apply” them. (Victor v. Nebraska, supra,
511 U.S. at p. 6.)
The trial court first told jurors that in a civil case, the preponderance of the
evidence standard was simple to quantify, and used the analogy of a scale to illustrate the
point. The court then told jurors the standards in civil and criminal cases were “quite
different.” When the court commented, “It‟s not the way it works in the criminal justice
system, and it‟s something that can‟t be quantified 99 to one and so on. It‟s something
that is a little bit––little bit more difficult than a simple tipping of a scale,” its point was
that describing the reasonable doubt standard was more difficult than the scale analogy it
had just provided. Given that the court had just read a portion of CALJIC No. 2.90, and
had just informed the jury that the two standards were distinct, there is no reasonable
likelihood any juror would have assumed the court meant the reasonable doubt standard
18
was only a “little bit” more difficult to meet than the preponderance standard. There was
no error.
3. The prosecutor did not commit prejudicial misconduct.
Bueno next contends that four comments made by the prosecutor during closing
argument were improper requests that the jury consider punishment. He asserts that the
improper argument violated state law and infringed upon his federal due process rights.
a. Additional facts.
During argument, the prosecutor stated the following: “Please don‟t sit there––it
would be the People‟s request that you don‟t say, you know what, we feel bad for him.
He said how hard up he was financially and so we‟re going to kind of split the baby and
say, well, he possessed it, he admitted he possessed it, let‟s just find no possession for
sale because we feel bad for him. [¶] First of all, you can‟t consider sympathy,
punishment, anything like that. The court told you that. Secondly, if you do that the
entire 50 plus kilos, that charge, that allegation goes away. It’s just the same as if he
possessed an ounce, so please don’t just go, oh, it’s simple possession. To do that, you
have got to disregard all the evidence that he did not possess it with the intent that it be
sold.” (Italics added.) Defense counsel did not object.
The prosecutor then argued that Bueno‟s account of events was not believable and
that his intent was shown by circumstantial evidence. After analogizing Bueno‟s conduct
to that of a cook who fries hamburgers intending that they be sold, the prosecutor stated:
“If you believe for a moment that he didn’t have the specific intent, then you are allowing
a man who was engaging in the commerce of a drug trafficking organization, you’re
letting him go.” (Italics added.) Defense counsel objected that the remarks were
“improper argument.” The trial court responded that “the argument must be within the
evidence and logical extensions from the evidence. I don‟t know that I necessarily agree
with [defense counsel] that it‟s improper or if it‟s the argument I would make if I was the
prosecutor in [the] matter, I‟m just going to instruct you, your job is to make a
determination of the charge that has been proven to you beyond a reasonable doubt, and
if so, is the allegation true beyond a reasonable doubt. If not, you can consider the lesser
19
related offense, and if you‟re not satisfied that that‟s been proven beyond a reasonable
doubt, you can choose to acquit the defendant on the charged offenses. That‟s up to you
based on your determination of the evidence. But public opinion, passion, sympathy,
prejudice, all the other things I mentioned, none of those things should affect your
judgment. Just the evidence and your judgment on the evidence.”
The prosecutor continued: “That is all I‟m asking you to do, is hold the defendant
accountable for what he did based on the evidence presented. [¶] The evidence from
Detective Sisneros was that this is how it‟s broken down. A person brings it across, a
person stores it, a person brings it down and a person sells it. The defendant was doing
his part, and if you go for the straight possession then the 50 kilos, good-bye. It’s as if
there was no difference between that and a couple of grams.” (Italics added.) Defense
counsel objected that the argument was “improper.” The trial court stated: “I don‟t know
that it‟s necessarily improper, but we‟re dealing with the amount we‟re dealing with,
ladies and gentlemen, and the one thing you have to keep in mind, whether it‟s a small
amount or a large amount, the allegation is possession for sale. A small amount could be
possessed for the purpose of sale, a large amount can be possessed for personal use. [¶]
I‟m saying that‟s the possibility. You‟re to make a determination based on what‟s been
proven in this case and be satisfied beyond a reasonable doubt with whatever decision
you make.”
The prosecutor continued: “Look at the verdict forms. The verdict form for guilty
does not have a weight enhancement allegation.” (Italics added.) Defense counsel did
not object to this comment.
b. Discussion.
“ „ “The applicable federal and state standards regarding prosecutorial misconduct
are well established. „ “A prosecutor‟s . . . intemperate behavior violates the federal
Constitution when it comprises a pattern of conduct „so egregious that it infects the trial
with such unfairness as to make the conviction a denial of due process.‟ ” ‟ [Citations.]
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
20
reprehensible methods to attempt to persuade either the court or the jury.‟ ” ‟
[Citation.]” ‟ ” (People v. Carter (2005) 36 Cal.4th 1215, 1263; People v. Vines (2011)
51 Cal.4th 830, 873; People v. Redd (2010) 48 Cal.4th 691, 733-734.) “ „To 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.‟ ” (People v. Brown (2003) 31 Cal.4th 518, 553; Carter,
at p. 1263.) We must place the challenged statements in context and view the argument
as a whole. (People v. Cole (2004) 33 Cal.4th 1158, 1203.)
A prosecutor is given wide latitude during argument. The argument may be
vigorous as long as it amounts to fair comment on the evidence, which can include
reasonable inferences and deductions to be drawn therefrom. (People v. Thomas (2012)
53 Cal.4th 771, 822; People v. Ward (2005) 36 Cal.4th 186, 215.) It is improper for a
prosecutor to reference punishment during trial. (People v. Thomas (2011) 51 Cal.4th
449, 486.) A defendant‟s possible punishment is not a proper matter for jury
consideration, and the jury “ „ “is not allowed to weigh the possibility of parole or pardon
in determining the guilt of the defendant . . . .” [Citation.]‟ ” (Ibid.)
Bueno forfeited his challenges to the prosecutor‟s first and fourth cited remarks
because he failed to object below or request that the jury be admonished not to consider
punishment. When the defense fails to object to asserted prosecutorial misconduct and
request that the jury be admonished, the claim ordinarily is forfeited on appeal. (People
v. McKinzie (2012) 54 Cal.4th 1302, 1358; People v. Souza (2012) 54 Cal.4th 90, 122.)
Bueno asserts that an objection to the prosecutor‟s first and fourth comments would have
been futile, because when he objected to the prosecutor‟s second and third comments, the
court did not agree the argument was improper and did not admonish the jury not to
consider punishment. But Bueno cannot now complain that the trial court failed to
properly admonish the jury not to consider penalty or punishment immediately after the
challenged remarks. While he objected to the second and third comments on the ground
of “improper argument,” he never specified that the argument improperly referenced
punishment, nor did he request that the jury be admonished not to consider punishment.
21
Had he done so, the court would likely have addressed the issue with the prosecutor,
stricken any objectionable comments, and immediately admonished the jury on the
prohibition on considering penalty or punishment. Thus Bueno has failed to demonstrate
an objection and request for admonishment would have been futile. (See generally
People v. Redd, supra, 48 Cal.4th at p. 745.)
But apart from the issue of waiver, Bueno‟s claims fail on the merits. In Bueno‟s
view, the comments that if the jury convicted him of simple possession, it would be
“letting him go” and the 50-kilo enhancement would “go[] away” can only be interpreted
as improper requests that the jury consider punishment. He points out that a jury is not to
consider an enhancement allegation before it has determined guilt. The People, on the
other hand, argue that the prosecutor‟s comments, read in context, “are more reasonably
interpreted as requests for the jury to avoid rendering a verdict based on sympathy and to
base its decision on the evidence, i.e., the intent shown by the very large quantity of
methamphetamine.”
Turning first to the prosecutor‟s second challenged comment––“[i]f you believe
for a moment that he didn‟t have the specific intent, then you are allowing a man who
was engaging in the commerce of a drug trafficking organization, you‟re letting him go”
––we discern no impropriety. While the prosecutor‟s comment was somewhat
inarticulate, in context, jurors would have understood he was simply asking them to hold
Bueno accountable for his conduct. There was nothing objectionable about that
argument, which was based on the evidence. (See generally People v. Thomas (2012) 54
Cal.4th 908, 946; People v. Loker (2008) 44 Cal.4th 691, 741-742.) Reasonable jurors
would not have understood the “you‟re letting him go” statement as a reference to
punishment, but as a reference to accountability. The prosecutor did not reference
probation, prison, or a potential sentence, and 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. Brown, supra, 31 Cal.4th at pp. 553-554.)
The prosecutor‟s first and third challenged comments were unobjectionable to the
extent the prosecutor urged jurors not to be swayed by sympathy and not to disregard
22
evidence of the large amount of methamphetamine found. The thrust of the argument
was that if the jury made a decision based on sympathy it would be ignoring the fact that
the very large quantity of methamphetamine strongly demonstrated an intent to sell.
However, the statements that if the jury found Bueno guilty of simple possession,
“the entire 50 plus kilos, that charge, that allegation goes away,” the prosecutor‟s later
comment that “if you go for the straight possession then the 50 kilos, good-bye,” and the
reference to the verdict forms, are more problematic. People v. Stevens (2007) 41 Cal.4th
182, is instructive. There, during argument the prosecutor attempted to prevent the jury
from returning second degree, as opposed to first degree, murder verdicts. The
prosecutor urged, “ „What happens if they‟re second degree murders? You can never
find [the defendant] guilty of the special circumstance. And they save his life . . . .‟ ”
(Id. at p. 205.) Following a defense objection, the trial court directed the jury not to
consider the comment. The court subsequently instructed the jury not to consider penalty
or punishment in its deliberations. Stevens concluded there was no reasonable likelihood
the remark misled the jury as to whether it could consider punishment in its guilt
deliberations. (Id. at p. 205.) Arguments of counsel “ „generally carry less weight with a
jury than do instructions from the court.‟ ” (Ibid.) Moreover, after argument the jury was
instructed that penalty or punishment could not be discussed or considered, and the court
presumed the jury followed that instruction. (Id. at p. 206.)
Similar to the argument in Stevens, the prosecutor here improperly referenced the
fact that if the jury found Bueno guilty of the lesser included offense, it could not find the
quantity enhancement true. However, this misstep was far less egregious than that in
Stevens: the prosecutor here did not directly reference punishment, and did not state that
Bueno would be subject to a lesser sentence. Viewed in context, the thrust of the
argument was that Bueno should be held accountable for the very large quantity which he
admittedly possessed. Under these circumstances, there was no reasonable likelihood the
prosecutor‟s remarks misled the jury as to whether it could consider punishment in its
guilt deliberations. The challenged statements were brief and but a small part of the case.
They cannot fairly be characterized as deceptive or reprehensible, nor do we detect a
23
pattern of egregious conduct that might have infected the trial with unfairness.
Moreover, as in Stevens, Bueno‟s jury was instructed that the arguments of counsel are
not evidence, and that it must decide the case based on the evidence at trial. The jury was
also instructed, prior to argument and in the written instructions, that it was not to discuss
or consider the subject of penalty or punishment, and “[t]hat subject must not in any way
affect your verdict.” We presume the jury followed these instructions. (People v.
Stevens, supra, 41 Cal.4th at p. 206; People v. Thomas, supra, 51 Cal.4th at p. 487.) The
prosecutor also reiterated during argument that the jury should not consider punishment.
Bueno relies upon People v. Holt (1984) 37 Cal.3d 436, in support of his
contention. In Holt, the prosecutor argued during closing that if the jury found the
defendant guilty of first degree murder “ „based on a burglary theory, then you cannot
conclude that the murder occurred during a robbery and if you cannot conclude that it
occurred during a robbery, you‟ve just guaranteed [the defendant] a parole date.‟ ” (Id. at
p. 457, fn. 14, italics omitted.) Holt found the reference to punishment was improper.
(Id. at p. 458.) The court observed that an immediate admonishment that the jury could
not consider penalty or punishment might have “had a curative effect,” but none was
given. (Ibid.) An instruction not to consider penalty or punishment given at the
conclusion of the guilt phase was insufficient to negate the prosecutor‟s earlier, improper
reference to punishment. (Ibid.) Bueno argues that, as in Holt, his jury was not
immediately admonished that it could not consider penalty or punishment.
We are not persuaded. First, the misconduct in Holt––comments that a particular
verdict would guarantee the defendant a parole date, a direct reference to punishment––
was more serious than the comments at issue here. (People v. Holt, supra, 37 Cal.3d at
p. 457; see also People v. Thomas, supra, 51 Cal.4th at pp. 486-487 [prosecutor‟s
argument that defendant could be released on parole if jury did not find special
circumstances allegation true was improper but harmless].) The prosecutor‟s argument in
the instant case was far more oblique and did not directly reference punishment. Indeed,
it appears the trial court did not admonish the jury on the point because it did not
understand the argument to be a reference to punishment. It would be anomalous to
24
assume the jury drew the most damaging rather than the least damaging meaning under
these circumstances. (See People v. Brown, supra, 31 Cal.4th at pp. 553-554.) Second,
as we have explained, the court‟s failure to give a more specific admonishment regarding
punishment was due to defense counsel‟s failure to request one. A criminal defendant is
excused from the failure to timely object and request an admonition only if doing so
would have been futile or an admonition would not have cured the harm. (People v.
Clark (2011) 52 Cal.4th 856, 960.) As Holt explained, an admonition might have cured
any harm arising from an improper mention of punishment during argument; the same is
true here. Third, Stevens suggests that the standard instruction forbidding the jury from
considering penalty or punishment may have a curative effect regardless of when given.
There, unlike in Holt, the jury was told to disregard the objectionable comment but was
not immediately admonished that it must refrain from considering penalty or punishment.
The court nonetheless presumed jurors followed the subsequent instruction not to
consider penalty or punishment. (People v. Stevens, supra, 41 Cal.4th at p. 206.) Finally,
“the Holt court did not find prejudice based solely on the prosecutor‟s argument. Rather,
it reversed for cumulative prejudice” based on eight separate errors, including the
objectionable argument, the erroneous admission of evidence, and improper
impeachment. (Stevens, at pp. 205-206; Holt, at p. 458.) In sum, there was no reasonable
likelihood the prosecutor‟s remarks misled the jury as to whether it could consider
punishment in its guilt deliberations. No violation of state law or of Bueno‟s due process
rights is apparent.
4. Cumulative error.
Bueno contends that the cumulative effect of the purported errors infringed upon
his Sixth Amendment and due process rights, and constituted error under state law. As
we have “ „either rejected on the merits defendant‟s claims of error or have found any
assumed errors to be nonprejudicial,‟ ” we reach the same conclusion with respect to the
cumulative effect of any purported errors. (People v. Cole, supra, 33 Cal.4th at pp. 1235-
1236; People v. Butler (2009) 46 Cal.4th 847, 885.)
25
5. Health and Safety Code section 11370.4 enhancement.
The jury found Bueno possessed for the purpose of sale an amount in excess of 20
kilograms of a substance containing methamphetamine within the meaning of Health and
Safety Code section 11370.4, subdivision (b)(4). Pursuant to that statute, the trial court
imposed a sentence enhancement of 15 years, applicable when the substance possessed
exceeds 20 kilograms. (Ibid.)
Bueno argues that the trial court “made it clear it would have imposed” a shorter
term applicable to a lesser quantity had it had the authority to do so. Bueno
acknowledges that the trial court was bound by several appellate decisions––including
one from this court––holding that a trial court may strike or impose a section 11370.4
enhancement, but may not substitute a shorter term applicable to a lesser weight. He
urges, however, that these cases were wrongly decided and the matter should be
remanded to allow the trial court to exercise its discretion to impose a lesser term.
Assuming arguendo Bueno is correct that the trial court indicated willingness to reduce
the enhancement, his contention nonetheless lacks merit.
Health and Safety Code section 11370.4, subdivision (b), provides in pertinent
part: “(b) Any person convicted of a violation of, or of conspiracy to violate, Section
11378, 11378.5, 11379, or 11379.5 with respect to a substance containing
methamphetamine, . . . shall receive an additional term as follows: [¶] (1) Where the
substance exceeds one kilogram by weight, or 30 liters by liquid volume, the person shall
receive an additional term of three years. [¶] (2) Where the substance exceeds four
kilograms by weight, or 100 liters by liquid volume, the person shall receive an additional
term of five years. [¶] (3) Where the substance exceeds 10 kilograms by weight, or 200
liters by liquid volume, the person shall receive an additional term of 10 years. [¶]
(4) Where the substance exceeds 20 kilograms by weight, or 400 liters by liquid volume,
the person shall receive an additional term of 15 years.” Subdivision (e) of the statute
provides: “Notwithstanding any other provision of law, the court may strike the
additional punishment for the enhancements provided in this section if it determines that
26
there are circumstances in mitigation of the additional punishment and states on the
record its reasons for striking the additional punishment.”
People v. Harvey (1991) 233 Cal.App.3d 1206, explained: “Health and Safety
Code section 11370.4, subdivision (a) makes it clear the court shall impose the additional
term of 15 years if the allegation is proven. Subdivision (e) is the escape clause and
indicates the court may strike the enhancement if it determines there are circumstances in
mitigation. The wording of the section makes it clear that the sentencing court has only
two alternatives. If the court does not feel there are mitigating circumstances sufficient to
justify the striking of the enhancement, it must impose the enhancement. Otherwise, if it
finds that mitigating circumstances do exist which would justify striking the
enhancement, it may be stricken. Nowhere does the section indicate the court may
impose only a portion of the enhancement. In interpreting the statute, the Legislature is
presumed to have meant what it said, and the plain meaning of the language governs.
[Citation.] Nowhere in the statute does it indicate the court has any discretion besides
either imposing the full enhancement or striking it in its entirety.” (Id. at pp. 1229-1230.)
We reached the same conclusion in People v. Ruiz (1992) 3 Cal.App.4th 1251.
Based on the statutory language, we held: “it is manifestly clear that the court has the
power pursuant to subdivision (e) to strike the additional term enhancements of
subdivisions (a)(1) through (a)(4) of section 11370.4. It is equally clear, however, that
the court does not have the power to substitute one of the term enhancements for another,
e.g., the five-year additional term under subdivision (a)(2) for the fifteen-year additional
term under subdivision (a)(4).” (Ruiz, at p. 1255.) We observed that our Supreme Court
stated in People v. Pieters (1991) 52 Cal.3d 894, at page 901: “ „The Legislature added
section 11370.4 to punish dealers of large amounts of drugs in direct proportion to the
quantity of drugs involved. This intent is evidenced by both the express purpose of the
section and the graduated sentence enhancements provided therein.‟ [Citation.] [Pieters]
further noted that such intent would be defeated if „those defendants possessing more
than 25 pounds of a controlled substance would be punished the same as those with 10
pounds.‟ ” (Ruiz, at p. 1255.) Accordingly, we concluded “the additional term
27
enhancements under subdivisions (a)(1) through (a)(4) of section 11370.4 are not
interchangeable,” and a trial court lacks discretion to substitute a lesser term under a
different subdivision. (Ruiz, at p. 1255.) Subsequently, People v. Arango (1993) 12
Cal.App.4th 450, 455 to 456, came to the same conclusion.
The reasoning in the foregoing cases is directly applicable to subdivision (b) of the
statute, which contains the same language as subdivision (a), but deals with different
controlled substances. The trial court therefore lacked discretion to substitute a term
applicable to a finding of possession of a lesser quantity.
We decline Bueno‟s invitation to revisit Ruiz. Bueno cites no authority directly
holding that Ruiz, Harvey, and Arango were wrongly decided, and we know of none. We
remain convinced these cases correctly state the law. Contrary to Bueno‟s assertions, we
do not view our reliance on Pieters as misplaced. Bueno‟s contention that the legislative
purpose behind section 11370.4 would be better served by a contrary interpretation is
unavailing: such a change would be a matter for the Legislature, not this court. Remand
is not required.
6. Review of in camera hearings.
Prior to trial, Bueno moved to suppress evidence under Penal Code section 1538.5,
to unseal the search warrant affidavit, and to quash and traverse the search warrant. He
also moved for discovery of a confidential informant‟s identity under Brady v. Maryland
(1963) 373 U.S. 83.
The trial court held two in camera hearings, one on February 24, 2011 and one on
April 25, 2011, and denied the motions. It ordered two paragraphs of the search warrant
affidavit unsealed, and ordered that the remainder remain sealed. The court found the
warrant affidavit did not appear to contain material misstatements; the warrant was
supported by probable cause; and there was no reasonable possibility that nondisclosure
of the confidential informant‟s identity would deprive Bueno of a fair trial.
Bueno requests that we conduct an independent review of the in camera hearings
to determine whether the trial court followed the appropriate procedures under People v.
28
Hobbs (1994) 7 Cal.4th 948, and whether it erred by denying his motions. The People
agree that review is permissible.
As Bueno requests, we have independently reviewed the transcripts of the in
camera hearings, as well as the sealed and public portions of the warrant affidavit. We
conclude that the trial court correctly followed the procedures set forth in Hobbs. Valid
grounds existed for maintaining the informant‟s confidentiality, and neither Brady nor
Hobbs required disclosure. (See People v. Hobbs, supra, 7 Cal.4th 948; Brady v.
Maryland, supra, 373 U.S. 83.) Disclosure of the sealed portions of the affidavit would
have revealed or tended to reveal the informant‟s identity, and therefore sealing was
proper. (Hobbs, at p. 972; People v. Martinez (2005) 132 Cal.App.4th 233, 241-242.)
Viewing the totality of the circumstances, the affidavit, including the sealed portion,
established a fair probability that evidence of a crime or contraband would be found at
the apartment, and probable cause thus existed to support issuance of the warrant.
(Hobbs, at p. 975; People v. Galland (2008) 45 Cal.4th 354, 364.) Nothing suggests that
the warrant affidavit contained material misrepresentations or omissions. Accordingly,
the trial court‟s denial of the motions to unseal and quash the warrant, and suppress
evidence, were proper. (See, e.g., Martinez, at p. 241.)
29
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
ALDRICH, J.
We concur:
KLEIN, P. J.
KITCHING, J.
30