People v. Leon CA4/3 ( 2024 )

Filed 10/11/24 P. v. Leon CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, G062849
v. (Super. Ct. No. 21HF1982)
ANGEL BROQUE LEON, OPINION
Defendant and Appellant.
Appeal from a judgment of the Superior Court of Orange County,
Gary S. Paer, Judge. Affirmed.
Lindsey M. Ball, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Charles C. Ragland, Assistant Attorney General, Eric A.
Swenson and Heather M. Clark, Deputy Attorneys General, for Plaintiff and
Respondent.
* * *
INTRODUCTION
A jury convicted Angel Broque Leon of one count of possession for
sale of a controlled substance (fentanyl) in violation of Health and Safety
Code section 11351. Before trial, the prosecution dismissed the other charged
count, which was for misdemeanor possession of a controlled substance
(methamphetamine) in violation of Health and Safety Code section 11350.
After striking a prior conviction for purpose of sentencing, the trial court
sentenced Leon to a prison term of four years.
Leon seeks reversal based on three contentions: (1) The trial
court erred by instructing the jury with a credibility instruction modified to
refer to misconduct related to methamphetamine; (2) the trial court erred by
instructing the jury on constructive possession of controlled substances; and
(3) cumulative error. We conclude Leon’s challenge to the credibility
instruction is barred by the invited error doctrine and the instruction on
constructive possession, if erroneous, was harmless. We therefore affirm.
STATEMENT OF FACTS
On November 2, 2021, Newport Beach police officer Jacob Khor
was dispatched to the parking lot of a shopping center in Newport Beach in
response to a report of a road rage incident. At the scene, Khor saw a silver
Hyundai Sonata taking up two parking spaces and, next to it, a white Lexus.
A woman, later identified as Autumn McWilliams, was standing outside of
the Hyundai; Leon was seated in the rear passenger-side seat.
McWilliams told Khor the owner of the Hyundai was Keith
Bowling. A records check revealed that Bowling had an active “no bail”
warrant for his arrest, so Khor called for backup. Khor and two other police
officers searched the area for Bowling but could not find him. When the
officers returned to the scene, the Hyundai was gone.
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The officers soon located the Hyundai nearby. Four people were
inside of it: Bowling in the driver’s seat; McWilliams in the front passenger
seat; Liam Yanez in the rear driver’s-side seat; and Leon in the rear
passenger’s-side seat. Two police officers searched Bowling and found on him
two clear medium-sized plastic baggies. One baggie contained four gross
1
grams of fentanyl and the other baggie contained 23 gross grams (net 22.173
grams) of fentanyl. The officers also found on Bowling $1,201 in cash and a
plastic, turquoise-colored container containing .73 grams of fentanyl.
Inside the Hyundai, the officers found on the driver’s-side door
handle a clear baggie containing 2.98 gross grams of fentanyl and, on the
driver’s-side floorboard, a baggie containing numerous small baggies. In the
center console, the officers found a baggie containing 13.130 grams of
methamphetamine and 24 milligrams of fentanyl. The officers found no drug
paraphernalia inside the car.
Khor searched Yanez and found on him a clear plastic cigarette
holder containing .80 gross grams of buprenorphine, which is an opioid. After
Yanez was taken into custody, officers found two used syringes in his
waistband and foil and a burned pen in his pants. Officers searched Leon and
found in his left shirt pocket a small piece of rolled up paper containing .58
gross grams (net 376 milligrams) of methamphetamine. In Leon’s left pants
pockets the officers found a clear baggie containing 22.58 grams of
para-fluoro fentanyl combined with acetaminophen. Para-fluoro fentanyl is
an analog of and substantially similar to fentanyl. The officers also found a
folding knife on Leon. The drugs found on Leon were in usable amounts.
Drug paraphernalia was not found on him.
1
A gross gram is the weight including the packaging.
3
Leon was arrested for possession of a controlled substance. At the
jail, officers searched Leon again and found $1,206 in cash wadded into a roll
inside the pocket of his shorts. After interviewing Leon, Khor made the
decision to charge him only with possession of a controlled substance. Khor
told Leon his money was not being confiscated because Khor did not believe
that Leon possessed the drugs found on him for sale. At the time of Leon’s
arrest, Khor did not have a lot of special training in narcotic sales and had
investigated five to ten cases involving fentanyl for sale.
Leon testified on his own behalf. He testified that on the day he
was arrested he had come from Los Angeles to join the others in the Hyundai
and take a Newport Harbor cruise with them. Leon testified he was a
long-time drug user but never used fentanyl. He claimed: (1) he had been
given the drugs found in his shirt pocket and pants pocket by Bowling; (2) he
knew methamphetamine was in one baggie given to him by Bowling but did
not know what was in the other baggie because he had quickly placed it in his
pants pocket; and (3) the cash found on him was government stimulus money
that he had withdrawn from the bank “in 2021 or sometime before.”
DISCUSSION
I.
THE INVITED ERROR DOCTRINE BARS LEON CHALLENGE
TO THE CREDIBILITY INSTRUCTION
The trial court read the jury two instructions regarding witness
credibility: CALCRIM No. 226 (Witnesses) and CALCRIM No. 316 (Additional
Instructions on Witness Credibility—Other Conduct). At the request of Leon’s
counsel, the court read alternative B of CALCRIM No. 316,2 modified to read
2
CALCRIM No. 316 offers two alternatives. Alternative A is for a
witness who has been convicted of a felony. Alternative B is for a witness who
has engaged in prior criminal conduct with or without a conviction.
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as follows: “If you find that a witness has committed a crime or other
misconduct involving methamphetamine, you may consider that fact only in
evaluating the credibility of the witness’s testimony. The fact that a witness
may have committed a crime or other misconduct does not necessarily destroy
or impair a witness’ credibility. It is up to you to decide the weight of that fact
and whether that fact makes the witness less believable.” (Italics added.)
Leon argues the trial court erred by modifying CALCRIM No. 316
with the italicized words because use of a controlled substance is not conduct
reflecting moral turpitude. We conclude the doctrine of invited error bars
Leon’s challenge to the jury instruction.
The doctrine of invited error bars an appellant from challenging a
jury instruction given by the trial court if the appellant requested the
instruction as a conscious and deliberate tactical choice. (People v. DeHoyos
(2013) 57 Cal.4th 79, 138.) The invited error doctrine is designed to prevent
an appellant from obtaining a reversal based on an error made at the
appellant’s behest. (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 49.)
“‘If defense counsel intentionally caused the trial court to err, the appellant
cannot be heard to complain on appeal.’” (People v. Bailey (2012) 54 Cal.4th
740, 753.)
The invited error doctrine bars appellate review only if the record
shows that counsel had a tactical reason for requesting or acquiescing in the
instruction. (People v. Moon (2005) 37 Cal.4th 1, 28.) However, in cases in
which defense counsel took affirmative actions toward inviting the error, “a
Alternative B reads: “[If you find that a witness has committed a crime or
other misconduct, you may consider that fact [only] in evaluating the
credibility of the witness’s testimony. The fact that a witness may have
committed a crime or other misconduct does not necessarily destroy or impair
a witness’s credibility. It is up to you to decide the weight of that fact and
whether that fact makes the witness less believable.]” (CALCRIM No. 316.)
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clearly implied tactical purpose” is sufficient to invoke the invited error
doctrine. (People v. Coffman and Marlow, supra, 34 Cal.4th at p. 49.)
The record in this case establishes that Leon’s counsel requested
and actively sought the modification to CALCRIM No. 316 that Leon now
challenges. Outside the presence of the jury, the court and counsel had a
discussion regarding jury instructions. On the record, the court “formalize[d]”
the decision reached during that discussion The following was said regarding
CALRIM No. 316:
“THE COURT: Also 316 which dealt with witness credibility you
had asked I believe for part two of that dealing with misconduct. [¶] You
wanted the Court to include the language involving methamphetamine?
“[DEFENSE COUNSEL]: Please.
“THE COURT: So the first sentence would read, quote, ‘if you
find that a witness has committed a crime or other misconduct involving
methamphetamine, you may consider that fact,’ and then the rest of the
instruction goes on. [¶] Is that the way you want it?
“[DEFENSE COUNSEL]: Including the bracketed [“]only[”]?
“THE COURT: Yes.
“[DEFENSE COUNSEL]: Yes”
Several days later, the court again addressed the modification to
CALCRIM No. 316. The following discussion took place:
“THE COURT: . . . . There was one thing I did want to put on the
record in regards to the instructions. There was that instruction on witness
credibility. [¶] And counsel, . . . in number 316 dealing with if a witness
committed a crime or other misconduct, you wanted to specify that was
involving methamphetamine.
“[DEFENSE COUNSEL]: Yes.
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“THE COURT: Is that accurate?
“[DEFENSE COUNSEL]: Yes.
“THE COURT: The change was made. I wanted to make sure
that the record included the fact that you wanted that added in and that I
didn’t put that in on my own.”
Leon’s trial counsel thus requested and four times confirmed he
wanted alternative B to CALCRIM No. 316 modified to include “other
misconduct involving methamphetamine.” If the modified instruction is
erroneous, then Leon’s trial counsel invited the error at least four times.
People v. Merriman (2014) 60 Cal.4th 1 is similar. In Merriman,
the defendant argued that an instruction that the jury could not consider his
“lifestyle or background” as an aggravating factor during the penalty phase of
trial was erroneously vague. (Id. at p. 103.) During a discussion over jury
instructions, defense counsel had requested the instruction and insisted the
word “lifestyle” was appropriate in the context of the case. (Id. at p. 103-104.)
The California Supreme Court concluded the record supported a finding of
invited error. (Id. at p. 104.)
Leon argues the invited error doctrine does not apply because his
counsel did not express a tactical reason for requesting the modification to
CALCRIM No. 316 and record does not reveal one. But a tactical reason for
requesting the modification can be implied because Leon’s counsel requested
and took affirmative actions toward having CALCRIM No. 316 modified in
the manner Leon now challenges. (People v. Coffman and Marlow, supra, 34
Cal.4th at p. 49.)3
3
At oral argument, the Attorney General argued defense counsel
had two tactical purposes requesting alternative B of CALCRIM No. 316:
(1) to ensure the jury did not convict Leon on the lesser included offense of
simple possession based on his testimony that he had methamphetamine in
7
Leon argues the invited error doctrine does not bar his challenge
to the modified CALCRIM No. 316 because the trial court had a sua sponte
duty to correctly instruct the jury. A trial court does not have a sua sponte
duty to instruct with CALCRIM No. 316. (People v. Kendrick (1989) 211
Cal.App.3d 1273, 1278 [analogous instruction of CALJIC No. 2.23]; see also
Evid. Code, § 355 [court upon request shall instruct jury on limited use of
evidence]; People v. Hernandez (2004) 33 Cal.4th 1040, 1051 [“although a
court should give a limiting instruction on request, it has no sua sponte duty
to give one”].) “Because the [trial] court had no sua sponte duty to instruct in
a manner contrary to a defendant’s request, an appellate attack on the
instruction as requested is barred by the doctrine of invited error.” (People v.
McPeters (1992) 2 Cal.4th 1148, 1191, fn. 2.)
An appellate court may review instructional error even if no
objection was made at trial if the instruction affects the defendant’s
“substantial rights.” (Pen. Code, § 1259.) The “substantial rights” exception of
Penal Code section 1259 does not apply, however, when instructional error is
invited. (People v. Graham (1969) 71 Cal.2d 303, 319.) A defendant who is
barred from raising instructional error by the invited error doctrine may
present a claim for ineffective assistance of counsel. (People v. Wader (1993) 5
Cal.4th 610, 658.) Leon does not assert ineffective assistance of counsel in
this appeal.
his shirt pocket, and (2) to bolster Leon’s credibility and show he was being
honest when he testified he did not know that fentanyl was in one of the
baggies that Bowling gave him. We do not decide whether those reasons
satisfy the invited error doctrine because defense counsel took affirmative
steps toward inviting any error.
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II.
THE CONSTRUCTIVE POSSESSION INSTRUCTION,
IF ERRONEOUS, WAS HARMLESS
The court instructed the jury with CALCRIM No. 2302
(possession for sale of a controlled substance) and CALCRIM No. 2304
(simple possession of a controlled substance). In both instructions, the trial
court included the following optional language for constructive possession:
“The People do not need to prove that the defendant knew which specific
controlled substance he possessed. Two or more people may possess
something at the same time. A person does not actually have to hold or touch
something to possess it. It is enough if the person has control over it or the
right to control it either personally or through another person.”
Leon argues the trial court erred by instructing the jury with the
optional language on constructive possession because there was no evidence
that Leon had control over, or the right to control, the items found in the
Hyundai’s driver’s-side door handle, driver’s-side floorboard, or center
console.
Leon forfeited his challenge to the constructive possession
instructions by failing to object to either instruction or to the inclusion of the
optional language on constructive possession. (People v. Lee (2011) 51 Cal.4th
620, 638.) In fact, Leon’s counsel affirmed he was satisfied with those
instructions.
An appellate court may review “any instruction given, . . . even
though no objection was made thereto in the lower court, if the substantial
rights of the defendant were affected thereby.” (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
9
would result in prejudice if error it was.” [Citation.]’ (People v. Franco (2009)
180 Cal.App.4th 713, 719.)
The constructive possession instructions, if erroneously given, did
not result in prejudice to Leon and therefore did not affect his substantial
rights. Error in giving a jury instruction is reviewed for prejudice under the
standard of People v. Watson (1956) 46 Cal.2d 818, 836. (People v. Hendrix
(2022) 13 Cal.5th 933, 942.) Under the Watson standard, error is deemed to
be harmless unless, upon examination of the entire record, it is reasonably
probable the outcome at trial would have been different in the absence of the
error. (Ibid.)
Evidence of the drugs and cash found on Leon was more than
sufficient to prove possession for sale. Found on Leon was 22.58 grams of
para-fluoro fentanyl combined with acetaminophen. The prosecution expert
witness, Quinton McKay, testified that amount was about 110 dosage units—
far more than an average person would possess for personal use. Leon
testified he did not use fentanyl. Also found on Leon was $1,206 in cash
wadded into a roll. Quinton testified the cash would have been received from
selling fentanyl. The amount of fentanyl and cash found on Leon was nearly
the same as the respective amounts found on or near Bowling.
Given a hypothetical mirroring the facts of this case, McKay
opined that the backseat passenger (Leon) possessed the fentanyl found on
him for sale. When asked for the basis of his opinion, McKay testified: “Based
on the rear passenger possessing very nearly the same amount of fentanyl as
the driver and also having just a little bit more cash than the driver, which is
a significant amount of cash to be paired up with that much fentanyl. . . . [¶]
This is also in part to the fact that in addition to the cash the rear passenger
was found with a knife on his person, which is another indicator that we
10
commonly see with people who possess drugs and large amounts of cash when
they are drug dealing. . . .”
McKay opined that the driver (Bowling) also possessed fentanyl
for sale. As to the driver, the basis for McKay’s opinion included the items
found Hyundai’s driver door handle, driver’s-side floorboard, and center
console. McKay did not link any of those items to Leon. McKay testified the
amount of fentanyl and cash found on the backseat passenger was “quite
high” and so “[d]espite the rear passenger not being directly related to the
baggies found on the driver’s floor it still shows that this person in the rear
[seat] was significant in being involved with at least possessing that much
cash and that much fentanyl for some sort of purpose other than for personal
use.” (Italics added.) McKay also testified that drug dealers sometimes work
together in order to increase the size of their client base.
The prosecutor’s closing argument may be considered in
assessing prejudice. (People v. Cain (1995) 10 Cal.4th 1, 37.) Although the
prosecutor did mention the baggie of fentanyl found in the driver’s-side door
handle and the baggies found on the driver’s-side floorboard, that evidence
was not emphasized. Rather, the prosecutor emphasized the amounts of
fentanyl and cash found on Leon, the fact those amounts were nearly the
same as the amounts found on Bowling, and Leon’s possession of a knife. The
prosecution argued that McKay “kept honing in on the fact there was a very
large amount of fentanyl” found on Leon and that “McKay said the cash
coupled with the large amount of drugs was a key indicator to him.”
The prosecution also argued Leon was guilty of possession for
sale under a theory he aided and abetted Bowling by holding onto large
quantities of fentanyl to be sold by Bowling. The prosecutor argued the drugs
11
and baggies found in the driver’s-side door handle, driver’s-side floorboard,
and center console showed that Bowling was the perpetrator.
Leon cites his own testimony as evidence the constructive
possession instructions were prejudicial. He claims he provided a plausible
explanation for having the fentanyl and $1,206 in cash. He testified he did
not know what was in one of the baggies Bowling had given him. But at the
jail, Leon told the arresting officer that Bowling had given him the baggie
because Bowling was on parole “or something”—a clear indication to Leon
that an illicit substance might have been in the baggie. Leon claimed that
sometime in 2021 he used a government stimulus card to withdraw $1,206—
which just happened to be around the same amount found on Bowling,
$1,200. Leon testified he had kept the cash at his home yet, for some reason,
brought it with him when he went to Orange County. The jurors disbelieved
Leon, and it is not reasonably probable their disbelief was due to the
constructive possession instructions.
In light of the evidence of the large amounts of fentanyl and cash
found on Leon, his possession of a knife, McKay’s testimony, and the
prosecution’s closing argument, it is not reasonably probable the jury would
have returned a different verdict had it not been instructed on constructive
possession.
III.
CUMULATIVE ERROR
Leon argues cumulative error. There is no cumulative error
because one of Leon’s claims of error is barred by the invited error doctrine
and the other claimed error is harmless. (See People v. Carter (2005) 36
Cal.4th 1215, 1281.)
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DISPOSITION
The judgment is affirmed.
SANCHEZ, J.
WE CONCUR:
MOORE, ACTING P. J.
DELANEY, J.
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