People v. McCloud

C. Defense Evidence

McCloud's cousin Antonio had been arrested on the evening of the 2012 search and pled guilty to possession of a controlled substance while armed with a firearm. At McCloud's trial, Antonio said he used to sell drugs to make ends meet. He said on the day of the 2012 search he had sold McCloud three rocks of cocaine for $50. McCloud did not sell drugs-he had a job working as a "sign twirler"-but he had a drug problem and smoked crack at least once a day. McCloud would smoke "primos," a modified type of "blunt"

Effective January 2014, the Legislature amended the statute by adding a new subdivision that states, "[f]or purposes of this section, 'transports' means to transport for sale." ( Health & Saf. Code, § 11379, subd. (c) ; Stats. 2013, ch. 504, § 2.) In August 2014, the CALCRIM authors amended CALCRIM No. 2300 to reflect the 2014 statutory amendment by inserting the words "for sale" after the word "transported": "To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant (... transported for sale ...) a controlled substance." ( CALCRIM No. 2300 [August 2014 update], italics added; see also Lua , supra , 10 Cal.App.5th at p. 1012, 217 Cal.Rptr.3d 23 [discussing the CALCRIM update].) The authors also added the words "for sale" to the instruction's definition of the term "transports": "A person transports something if he or she carries or moves it from one location to another for sale , even if the distance is short." ( CALCRIM No. 2300, second italics added.)

McCloud's trial began in November 2015. For the transportation for sale charge, the trial court instructed the jury with a pre-amendment version of CALCRIM No. 2300 that did not contain the "for sale" additions:

"The defendant is charged ... with selling/furnishing/administering/giving away/transporting/importing cocaine base, a controlled substance in violation of [ Health & Safety Code section] 11352.

"To prove that the defendant is guilty of this crime, the People must prove that:

"1. The defendant transported a controlled substance;

"2. The defendant knew of its presence;

"3. The defendant knew of the substance's nature or character as a controlled substance;

"4. The controlled substance was cocaine base;

2. Analysis

Health and Safety Code section 11352 as amended at the time of McCloud's trial provided transportation was a crime only if the prosecution established beyond a reasonable doubt the transportation was for sale . The jury instruction did not include the new "for sale" element, and as a result it was erroneous. ( People v. Mil (2012) 53 Cal.4th 400 , 409, 135 Cal.Rptr.3d 339 , 266 P.3d 1030 ( Mil ) [it is error to omit from instructions an essential element of an offense and defendant need not object to preserve the claim for appeal].) As noted, the parties agree on this point. The issue is whether the instructional error was harmless.

Omission of an element of an offense is not reversible per se but rather is subject to the harmless-beyond-a-reasonable-doubt standard articulated in Chapman v. California (1967) 386 U.S. 18 , 87 S.Ct. 824 , 17 L.Ed.2d 705 . ( Neder v. United States (1999) 527 U.S. 1 , 4, 119 S.Ct. 1827 , 144 L.Ed.2d 35 ( Neder ); People v. Merritt (2017) 2 Cal.5th 819 , 826, 216 Cal.Rptr.3d 265 , 392 P.3d 421 , cert. filed May 22, 2017 ( Merritt ).) In cases of omitted

Two recent California Supreme Court cases inform our analysis. In Merritt , the Court found the trial court's failure to instruct the jury with any of the

A. The 2012 Incident

In September 2012, a Riverside County gang task force arrived at probationer R.F.'s residence to perform a probation search. McCloud was standing in the driveway of the home but ran inside and turned off the porch light when he saw the patrol cars approaching. Upon entering the home, the officers encountered four men playing dominoes in the kitchen. One of the officers recognized R.F. and another man he knew to be a gang member, but McCloud did not appear to be among the group.

At this point, the officers began a protective sweep of the house, ordering everyone to come out of the rooms. McCloud's cousin, Antonio, came out of McCloud's bedroom. McCloud was in the bathroom and remained there for about thirty seconds and a few more commands before flushing the toilet and emerging. The officers swept through McCloud's room to see if anyone else was inside, and in so doing saw what appeared to be crack cocaine and drug paraphernalia in plain view on a table.

The officers requested and obtained McCloud's consent to more thoroughly search his room. In total, they found 0.9 grams of crack cocaine; a digital scale; a ceramic plate; pills; a Ziploc bag containing about 100 smaller plastic bags; a marijuana grinder and pipe; an operable .22 revolver loaded with six live rounds of ammunition under the mattress; and over $750 in cash, in denominations of $20 or less, stashed in various places near the cocaine. Half of the cocaine lay on the ceramic plate and the other half was packaged inside two plastic baggies. There was cocaine dust on the scale and on a razor blade sitting on the plate.

A cell phone lying in the hallway just outside McCloud's room contained text messages addressed to him. One of the messages was from earlier that day and said, "Can you bring a dime, please?" McCloud had responded, "No. Don't have any."

At trial, a deputy who was part of the search team testified as the prosecution's drug expert. He believed McCloud intended to sell the cocaine found in his bedroom. He based his opinion on the fact McCloud did not appear to be under the influence during the search and was not in possession of a pipe or other device for ingesting the cocaine. McCloud was, on the other hand, in possession of several indicia of sale. The ceramic plate and razor blade would be used to cut the rocks into sellable, smaller amounts that

On cross-examination, defense counsel attempted to elicit a more definite opinion on McCloud's intent. The following exchange occurred:

"Q. Deputy Williams, he could have been possessing it for sales, or he could not have been possessing it for sales, really is what you testified to?

A. Yes, sir.

Q. So he might have been selling drugs, or he might have ... possessed those for personal use, you just don't know?

A. Without more facts, no, sir, I couldn't really say positively one way or the other.

Q. Okay. So he might have been, you just don't know?

A. That's correct."

On redirect, the prosecutor asked whether the expert's conclusion changed if he considered the contraband found in McCloud's bedroom during the 2012 search. The expert responded, "Based

D. The Verdict

The jury found McCloud guilty of possession for sale ( Health & Saf. Code, § 11351 ), transportation for sale ( Health & Saf. Code, § 11352, subd. (a) ), misdemeanor being a felon in possession of a stun gun, and misdemeanor resisting an officer. It found him not guilty of possessing cocaine while armed with a loaded, operable firearm ( Health & Saf. Code, § 11370.1 ), being a felon and narcotic addict in possession of a firearm ( Pen. Code, § 29800 ), and being a felon in possession of ammunition ( Pen. Code, § 30305 ).

DISCUSSION

A. Transportation for Sale Instruction

The parties correctly agree the trial court failed to instruct the jury with an essential element of transportation for sale ( Health & Saf. Code, § 11352 )-that when McCloud transported the cocaine he intended to sell it. Their disagreement concerns only whether the instructional error was prejudicial. McCloud contends it was because the prosecution's circumstantial evidence of intent to sell was not strong and the entire defense theory was based on evidence McCloud was an addict, not a dealer. The People contend the error was harmless because there was overwhelming evidence of an intent to sell. We agree with McCloud. In our view, the circumstantial evidence of McCloud's intent was conflicting, and not particularly strong one way or the other. As a result, we cannot say with confidence the jury would have found him guilty of the offense had it been properly instructed transportation means not just movement from one place to another, but movement for the purpose of sale.

1. Additional factual background

The prosecution charged McCloud with the offense in February 2013. At the time, a defendant could be guilty of violating Health and Safety Code section 11352 if he or she simply transported the proscribed substances. ( Health & Saf. Code, § 11352, former subd. (a); Stats. 2011, ch. 15, § 154.) As we explained in

"AND

"5. The controlled substance was in a usable amount. [¶] ... [¶]

"A person transports something if he or she carries or moves it from one location to another, even if the distance is short."

During closing argument, the prosecutor argued McCloud was guilty of the offense because he "transported for sale a controlled substance, [1.4 grams] of crack cocaine." As to the transportation element, the prosecutor said, "[A] person transports something if he carries or moves it from one location to another, even if the distance is short. So somebody might be thinking transportation. Okay. That means he had to transport it from Mexico to California. No. Any short distance whatsoever is sufficient. Any movement. [¶] ... [¶] So the fact that [McCloud] was in the vehicle driving with that on the passenger seat constitutes transportation."

Defense counsel argued McCloud was a drug addict who intended to use, not sell, the cocaine the police found in his car. He pointed out the lack of packaging and paraphernalia indicative of sales and the fact the drug expert could not even be sure of McCloud's intent: "[The drug expert] himself testified that based on the fact that there were no baggies, there were no scales, there were no pay-owe sheets,

"Our task, then, is to determine 'whether the record contains evidence that could rationally lead to a contrary finding with respect to the omitted element.' " ( Mil , supra , 53 Cal.4th at p. 417, 135 Cal.Rptr.3d 339 , 266 P.3d 1030 .) In Neder , the United States Supreme Court instructed appellate courts to "conduct a thorough examination of the record" and "[i]f, at the end of that examination, the court cannot conclude beyond a reasonable doubt that the jury verdict would have been the same absent the error-for example, where the defendant contested the omitted element and raised evidence sufficient to support a contrary finding -it should not find the error harmless." ( Neder , supra , 527 U.S. at p. 19, 119 S.Ct. 1827 , italics added.) As our high court has explained, review for overwhelming evidence is essentially the reverse of a review for substantial evidence to support a conviction: "[U]nder [a substantial evidence review] ... we would view the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of any facts the jury might reasonably infer from the evidence," however, "our task in analyzing the prejudice from the instructional error is whether any rational fact finder could have come to the opposite conclusion." ( Mil , at p. 418, 135 Cal.Rptr.3d 339 , 266 P.3d 1030 .) Applying this standard here, we must find the error prejudicial if the record contains evidence to support a finding McCloud intended to use, rather than sell, the cocaine.

Having reviewed the record, we conclude it contains such evidence. First of all, and as the prosecution's drug expert pointed out, McCloud was in possession of none of the typical indicia of sales. The cocaine was in a single container (the pill bottle)-McCloud had no baggies or other packaging, no scale, no pay-owe records, and we do not know whether his phone contained any evidence of sales. Additionally, McCloud's cousin testified McCloud was a drug addict who smoked crack on a daily basis, and that his preferred method of

The prejudice analysis came out differently in Mil . There, the defendant was convicted of first degree murder with robbery-murder and burglary-murder special circumstances under an aiding and abetting theory of liability. ( Mil , supra , 53 Cal.4th at p. 405, 135 Cal.Rptr.3d 339 , 266 P.3d 1030 .) The Court held the trial court erred by failing to instruct on two elements: (1) the defendant was a "major participant" in the burglary and robbery and (2) had acted with reckless indifference to human life. ( Id. at pp. 408-409, 135 Cal.Rptr.3d 339 , 266 P.3d 1030 .) At trial, defendant contested whether he acted with reckless indifference to human life, and that issue became the focus on appeal. The appellate court concluded the failure to instruct on reckless indifference was harmless, citing all of the evidence supporting an inference the defendant was subjectively aware of a grave risk of death when he participated in the burglary and robbery. ( Id. at pp. 417-418, 135 Cal.Rptr.3d 339 , 266 P.3d 1030 .) The prosecution had presented evidence the defendant knew his associate, the direct perpetrator of the murder, liked to carry " 'big old steak knives with her,' " as well as evidence he himself had violently attacked the victim during the burglary-robbery. ( Id. at p. 418, 135 Cal.Rptr.3d 339 , 266 P.3d 1030 .)

The Supreme Court concluded the appellate court had used the "less demanding" substantial evidence standard and instead should have looked for evidence to support an inference the defendant was not subjectively aware of the risk of death when he participated in the burglary-robbery. ( Mil , supra , 53 Cal.4th at pp. 417-418, 135 Cal.Rptr.3d 339 , 266 P.3d 1030 .) Using the more demanding standard, the Supreme Court found the record contained evidence the defendant told the police during an interview that he was unaware his associate had planned to use any physical violence during the burglary and robbery and

Based on the fact the record contained some evidence to support the defendant's claim he had no subjective knowledge of the risk of death, the Court concluded "a rational juror, given proper instructions, could have had a reasonable doubt whether defendant was subjectively aware of a grave risk of death when he participated in this burglary and robbery." ( Mil , supra , 53 Cal.4th at p. 419, 135 Cal.Rptr.3d 339 , 266 P.3d 1030 .) "It follows," the Court explained, "omission of the element concerning defendant's state of mind was prejudicial and requires reversal of the burglary-murder and robbery-murder special circumstances." ( Ibid . )

Reviewing the trial record under the overwhelming evidence standard articulated in Mil , we find our case to be more like Mil than Merritt . Unlike Merritt , the evidence supporting the omitted element (intent to sell) was not overwhelming, the event was not recorded, and defense counsel did not stipulate the evidence satisfied the omitted element. Rather, the prosecution and the defense adduced conflicting evidence on the issue, as was the case in Mil .

The People argue the evidence of intent to sell was overwhelming because the expert opined McCloud intended to sell the cocaine and because McCloud had more cocaine on him that evening than he did in 2012. We see two problems with this argument. First of all, the 2012 and 2013 incidents are distinct, and it would be improper for the jury to assume an intent to sell for the transportation charge based on the strength of the evidence supporting the possession charge. Second, the People overstate the expert's opinion on McCloud's intent. The difference between 0.9 (the amount McCloud possessed in 2012) and 1.4 grams (the amount he had in 2013) is relatively minor, and the expert himself said a person "could conceivably possess ... [1.4 grams] of cocaine for their personal use." Contrary to the People's characterization, we find the expert was ultimately unable to commit to the sales theory. He began his testimony by stating he could not be sure about intent because McCloud did not possess the typical indicia of sale, and the closest he came to expressing a definite opinion was to say he was "leaning" towards intent to sell based on the presence of the stun gun and the two cell phones. At multiple points before and after that statement, however, he confirmed he was unsure one way or the other.

We find the expert's refusal to express a firm opinion on intent crucial to our prejudice analysis. If the very person trained to discern the difference

We also cannot conclude the prosecutor's reference to the offense as "transportation for sale" during closing argument rendered the error harmless. In certain circumstances, the "possibility of confusion" occasioned by an instructional error may be "diminished by the parties' closing arguments." (

We concur:

MILLER, Acting P. J.

CODRINGTON, J.