Filed 9/6/16 P. v. Ray CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F070436
         Plaintiff and Respondent,
                                                                             (Super. Ct. No. BF155743A)
                   v.

MAURICE RAY,                                                                             OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Kern County. Kenneth C.
Twisselman II, Judge.
         Katharine Eileen Greenebaum, under appointment by the Court of Appeal, for
Defendant and Appellant.
         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, R. Todd Marshall and Angelo S.
Edralin, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-




         *   Before Gomes, Acting P.J., Poochigian, J. and Peña, J.
       Maurice Ray was convicted of possession of methamphetamine for sale,
transportation of methamphetamine for sale, and misdemeanor resisting arrest. He argues
his conviction must be overturned because there was insufficient evidence to support the
two drug charges, and the trial court misinstructed the jury. We affirm the judgment.
                       FACTUAL AND PROCEDURAL SUMMARY
       The information charged Ray with possession of methamphetamine for the
purpose of sale (Health & Saf. Code, § 11378), transportation of methamphetamine for
the purpose of sale (Health & Saf. Code, § 11379, subd. (a)), possession of
methamphetamine (Health & Saf. Code, § 11377, subd. (a)), felony obstructing or
resisting a police officer (Pen. Code, § 69),1 and misdemeanor resisting arrest (§ 148,
subd. (a)(1)). The information also alleged Ray had suffered a prior conviction that
constituted a strike within the meaning of section 667, subdivisions (b)-(i) (counts one
through four), and had suffered two prior convictions that resulted in a term of
imprisonment within the meaning of section 667.5, subdivision (b) (counts one through
four). The possession of methamphetamine and the felony obstructing charges were
dismissed by the prosecutor prior to the presentation of evidence to the jury.
       All of the charges arose out of a single encounter between Ray and Bakersfield
Police Officer Travis McNinch. On the date in question, Paul Wolverton observed a man
walking near his house in a manner Wolverton found suspicious. Wolverton called the
emergency operator to report his concerns. He described the man as wearing a brown
jogging suit. At trial, Wolverton identified Ray as the man he saw that day.
       McNinch was on patrol in a marked vehicle when he was dispatched to respond to
Wolverton’s call. He observed Ray, who matched the description McNinch had been
given by dispatch, walking in a park. McNinch stopped his vehicle. As he did so, Ray
appeared to notice McNinch and walked towards him. When Ray approached, he told

       1   Undesignated statutory references are to the Penal Code.


                                              2.
McNinch he was at the park exercising and admiring the landscape in the area. Ray also
identified himself and said he was on parole. At this point Ray put his hands in his
pockets. This movement caused McNinch concern for his safety and that of the public,
so he asked Ray to remove his hands from his pockets. Ray did not comply. Because of
his concern, McNinch approached Ray. As McNinch approached, Ray said he had
something for McNinch. McNinch ordered Ray to turn away from him and place his
hands behind his head. Ray complied with the order. McNinch approached Ray and
began a pat down search. After about three to four seconds Ray became extremely
agitated and began shouting. McNinch felt Ray begin to tense up, so he decided to place
Ray in handcuffs for officer safety. McNinch put one handcuff on Ray without warning,
and Ray “violently turned to the left and was trying to pull away from me.” Because he
had only minimal control over Ray, McNinch shoved Ray away to create distance
between the two and called for assistance.
       Ray began to quickly walk away. McNinch ordered him to stop with no effect.
McNinch then retrieved his canine partner and warned Ray that if he did not stop the
animal would be released. Ray stopped and turned to face McNinch and his canine
partner. Ray then went to a kneeling position and positioned himself face down on the
ground. McNinch waited at his patrol vehicle until other officers arrived. When the
officers arrived, McNinch and another officer approached Ray and placed him in
handcuffs. Once Ray was secured, he began “to violently roll” from side to side. Ray
was ordered to stop moving, but he continued to thrash about and shout. Ray appeared to
be grabbing at the back waistband of his pants while he moved around. McNinch finally
saw a clear plastic bag on the back of Ray’s pants. McNinch seized the plastic bag and
placed it on the ground to free his hands to help control Ray. The officers put a restraint
device around Ray’s legs to prevent him from kicking. Ray finally stopped struggling.
McNinch retained the plastic bag which contained a crystalline substance that McNinch



                                             3.
suspected was methamphetamine. The substance was booked into the property evidence
room.
        Ray was arrested and transported to the county jail. Before he left the scene, and
after he was advised of his rights pursuant to Miranda v. Arizona (1966) 384 U.S. 436,
Ray said the plastic bag contained methamphetamine. Ray explained he recognized the
substance as methamphetamine because he had experience with methamphetamine in the
past. Ray resisted arrest because he knew he possessed the methamphetamine and he
knew the officers would not believe him when he explained how he came into possession
of the substance. Ray then explained he found the plastic bag on the ground in the park
and approached McNinch with the intent of giving it to him.
        During cross-examination, McNinch confirmed that in the preliminary hearing he
testified that Ray said he had a substance to turn over to McNinch as Ray initially
approached him. McNinch also admitted he knew Ray had something to turn over to him
before Ray went to the ground. Therefore, McNinch knew Ray was attempting to give
him something before McNinch attempted to handcuff him. McNinch also admitted he
did not ask Ray what he wanted to give him, where the item was located, or instruct Ray
to slowly remove the item from his person. McNinch admitted he did not describe Ray’s
turning motion as “violent” at the preliminary hearing.
        McNinch confirmed Ray had ample opportunity to dispose of the drugs before he
(Ray) arrived at the patrol vehicle. McNinch could not recall Ray stating that a small girl
alerted him to the presence of the methamphetamine in the park.
        Kern Regional Crime Lab criminalist Renee Peterson confirmed the substance
found on Ray contained methamphetamine, and that the weight of the substance itself
was 12.12 grams.
        Bakersfield Police Detective Lester Vaughan Riddle testified that in his opinion, a
hypothetical person who possessed 12.12 grams of methamphetamine in a public park
possessed that drug for the purpose of sales.

                                                4.
       Ray testified in his defense. He explained that he was in the area on the day in
question exercising. As he was walking around to cool down, he noticed a little girl
staring at something on the ground. He stopped to look and recognized the item as a
package of crystal methamphetamine. He picked up the item using his brown
handkerchief. Ray began walking to a police car he had seen in the area to turn the drugs
over to the officer.
       As Ray approached the patrol vehicle, he told the officer (McNinch) his name, that
he was on a six-hour pass, and he had found something he wanted to give to the officer.
McNinch got out of his vehicle and began giving Ray orders. McNinch told Ray to
remove his hands from his pockets, not to pull anything from his pockets, and informed
Ray he was not under arrest. McNinch stated, however, he wanted to pat down Ray for
weapons. Ray kept repeating he had something he wanted to give McNinch. McNinch
told Ray to turn around and interlace his fingers so he could check Ray for weapons.
McNinch repeated that Ray was not under arrest.
       Ray complied, and McNinch grabbed his fingers and squeezed them together.
McNinch began rubbing on Ray. Ray asked why McNinch was searching him, and told
McNinch he wanted to give him something. At about this point McNinch began putting
handcuffs on Ray’s wrists. Ray looked back at McNinch and asked why he was being
handcuffed, since McNinch said he was not going to handcuff him. That is when
McNinch pushed Ray away from him. McNinch apparently told Ray that if he moved he
could push a button and his K-9 partner would be released. Ray immediately got down
on one knee and told McNinch to not release the dog. When he got down on his knees,
Ray pulled the bag of drugs out and showed it to McNinch. He had it in his hand until
McNinch recovered it. Ray explained to McNinch how he found the bag.
       Other officers arrived at the scene a short while later. When the other officers
arrived, Ray lay flat on his stomach and put his hands behind his back. One officer put a
knee on Ray’s back and the other knee on Ray’s neck, then handcuffed him. Ray began

                                             5.
rocking from side to side in an attempt to breathe. The officers began attempting to pull
Ray’s pants down, so Ray tried to prevent them from doing so.
       Ray denied the drugs were his, and contended his only intent was to turn the
package over to the police.
       On cross-examination, Ray denied ever telling an officer that he saw a person
throw the bag outside of the window of a vehicle that was driving by. The prosecutor
played a recording of an interview between Ray and Bakersfield Police Sergeant Eastman
during which Ray said he saw someone throw the bag out of a vehicle. Ray explained
that he did not see someone throw the bag out of a vehicle, but that is what the little girl
who had been looking at the drugs told him had happened.
       Closing argument focused on whether Ray was believable. The evidence was
undisputed that Ray possessed the 12 grams of methamphetamine, that Ray approached
McNinch, Ray identified himself, Ray told McNinch he was on parole, and at one point
in the conversation Ray told McNinch he had something for him. However, the
prosecutor argued that Ray told McNinch he had something for him only after a 20-30
second delay, and asserted that Ray made this statement only because he knew the
methamphetamine was about to be discovered. The prosecutor also asserted that other
than the facts McNinch corroborated, Ray’s testimony should be disbelieved.
       Defense counsel argued that Ray was attempting to do the right thing, and
McNinch overreacted to the events thereby upsetting Ray and leading to the
confrontation. Defense counsel urged the jury to find Ray not guilty, arguing the
confrontation occurred because once McNinch learned Ray was on parole, he was
determined to find a reason to arrest him.
       The jury found Ray guilty of the charges presented to it (possession of
methamphetamine for the purpose of sale, transportation of methamphetamine for the
purpose of sale, and misdemeanor resisting arrest). Ray waived his right to a jury trial on
the enhancement allegations. The trial court found true the enhancement allegations.

                                              6.
Ray was sentenced to the upper term of four years on count two, doubled because of the
strike prior, and two additional years for the two prior prison term enhancements, for a
total term of 10 years.
                                        DISCUSSION
       Ray asserts his conviction must be overturned for three reasons. We begin with
his argument that there was insufficient evidence to support the convictions.
       Sufficiency of the Evidence
       When the sufficiency of the evidence to support a conviction is challenged on
appeal, we review the entire record in the light most favorable to the judgment to
determine whether it contains evidence that is reasonable, credible, and of solid value
from which a trier of fact could find the defendant guilty beyond a reasonable doubt.
(People v. Elliott (2013) 53 Cal.4th 535, 585.) Our review must presume in support of
the judgment the existence of every fact the jury could reasonably have deduced from the
evidence. (People v. Manibusan (2013) 58 Cal.4th 40, 87.) Even where the evidence of
guilt is largely circumstantial, our task is not to resolve credibility issues or evidentiary
conflicts, nor is it to inquire whether the evidence might reasonably be reconciled with
the defendant’s innocence. (Id. at p. 92; People v. Maury (2003) 30 Cal.4th 342, 403.) It
is the duty of the jury to acquit the defendant if it finds the circumstantial evidence is
susceptible to two interpretations, one of which suggests guilt and the other innocence.
(People v. Snow (2003) 30 Cal.4th 43, 66.) But the relevant inquiry on appeal is whether,
in light of all the evidence, “any reasonable trier of fact could have found the defendant
guilty beyond a reasonable doubt.” (People v. Towler (1982) 31 Cal.3d 105, 118.)
       Ray argues that under the circumstances of this case a reasonable trier of fact
could only conclude that Ray possessed the methamphetamine for a short amount of time
and with the intent to turn it over to the police for destruction. He points out that he
approached McNinch voluntarily, told him his identity and that he was on parole, and
informed McNinch he had something to give him, i.e. the methamphetamine.

                                               7.
       The jury, however, was not obligated to accept Ray’s interpretation of the events.
The jury apparently chose to reject Ray’s testimony as unbelievable. In doing so, the jury
could reasonably infer that Ray possessed the methamphetamine to sell, but when he saw
the police vehicles in the area he decided he needed to dispose of it. It is true that if Ray
possessed the methamphetamine for sale, he could have avoided arrest by disposing of
the methamphetamine in the bathroom, or by spreading it around on the ground.
However, the jury did not have to conclude that because Ray approached McNinch with
the methamphetamine he must have found it on the ground as he testified. Instead, the
jury could have concluded that Ray approached McNinch and volunteered his name and
parole status in an attempt to gain McNinch’s trust and thereby retain the
methamphetamine. However, when McNinch told Ray he was going to be searched, Ray
may have decided to turn the methamphetamine over to McNinch and claim he found it.
       Since the evidence was undisputed that the amount of methamphetamine was such
that it was possessed for the purpose of sale, and the jury was not required to accept
Ray’s testimony that his intent was innocent, there was substantial evidence to support
the verdict.
       CALJIC No. 4.45
       The primary issue in this case was Ray’s intent when he possessed the
methamphetamine; did he possess the methamphetamine for sale, or did he find the
methamphetamine and intend to immediately turn the drug over to the police for the
safety of the public? Apparently on its own motion, and consistent with this argument,
the trial court instructed the jury with CALJIC No. 4.45 as follows: “When a person
commits an act or makes an omission through misfortune or by accident under
circumstances that show no criminal intent or purpose, he does not thereby commit a
crime.”




                                              8.
       Ray argues this instruction should not have been given because there is no
evidence he accidentally possessed the methamphetamine, or that he somehow came to
possess it through misfortune.
       We begin by noting that defense counsel never lodged any objection to this
instruction, and even referred to this instruction in his closing argument. Any claim of
error in giving the instruction has therefore been forfeited. (People v. Virgil (2011)
51 Cal.4th 1210, 1260.)
       Even were we to proceed to the merits of the argument, and assume for the sake of
argument the instruction was not supported by the evidence, we would conclude that Ray
did not suffer any possible prejudice. The jury was instructed that not all instructions
may apply, and it should “[d]isregard any instruction which applies to facts determined
by you not to exist.” Since the jury apparently concluded that Ray did not acquire the
methamphetamine through accident or misfortune, which it must have done to find him
guilty, it undoubtedly disregarded the instruction in its entirety.
       Ray does not adequately address the issue of prejudice, instead suggesting the
instruction may have confused the jury. We fail to see how the jury could have been
confused and conclude Ray did not suffer any prejudice even if the instruction should not
have been given.
       CALJIC No. 12.06
       As stated above, Ray’s defense was based on the proposition that he found the
methamphetamine in the park and was attempting to give it to McNinch when he was
arrested. Consistent with this defense, the trial court instructed the jury with CALJIC
No. 12.06 which stated:
       “A person is not guilty of a crime when his possession of methamphetamine is
shown to be lawful. The defendant has the burden of proving by a preponderance of the
evidence all of the facts necessary to establish that his possession of the



                                              9.
methamphetamine is lawful. [¶] The possession of methamphetamine is lawful where all
of the following conditions are met:
          1. The possession is momentary and is not based on either ownership or the
              right to exercise control over the methamphetamine;
          2. The methamphetamine is possessed solely for the purpose of abandonment,
              disposal, or destruction;
          3. The methamphetamine is possessed for the purpose of preventing another
              person from acquiring possession of it;
          4. Control is not exercised over the methamphetamine for the purpose of
              preventing law enforcement from obtaining the methamphetamine, and
          5. The abandonment, disposal, or destruction was voluntary, that is, not
              simply to avoid arrest.”
       The trial court then defined preponderance of the evidence with CALJIC
No. 2.50.2 as follows:
       “ ‘ Preponderance of the evidence’ means evidence that has more convincing force
than that opposed to it. If the evidence is so evenly balanced that you are unable to find
that the evidence on either side of an issue preponderates, your finding on that issue must
be against the party who had the burden of proving it. [¶] You should consider all of the
evidence bearing upon every issue regardless of who produced it.”
       Ray argues the trial court erred because it should have instructed the jury with
CALCRIM No. 2305 which, in Ray’s opinion, is a superior instruction on this defense,
and which states:
       “If you conclude that the defendant possessed [the methamphetamine], that
possession was not illegal if the defendant can prove the defense of momentary
possession. In order to establish this defense, the defendant must prove that:
          1. The defendant possessed [the methamphetamine] only for a momentary or
              transitory period;

                                            10.
          2. The defendant possessed [the methamphetamine] in order to abandon, or
              dispose of, or destroy it;
          AND
          3. The defendant did not intend to prevent law enforcement officials from
              obtaining [the methamphetamine].
       The defendant has the burden of proving this defense by a preponderance of the
       evidence. This is a different standard of proof than proof beyond a reasonable
       doubt. To meet the burden of proof by a preponderance of the evidence, the
       defendant must prove that it is more likely than not that each of the three listed
       items is true.” (CALCRIM No. 2305.)
       Ray identifies three differences between the CALJIC and CALCRIM versions of
the instruction which he asserts constitute reversible error. The first difference is found
in the first element of the defense. CALJIC No. 12.06 describes this element as “The
possession is momentary and is not based on either ownership or the right to exercise
control over the methamphetamine,” while CALCRIM No. 2305 describes this element
as “The defendant possessed [the methamphetamine] only for a momentary or transitory
period.” Ray argues CALCRIM No. 2305’s description of this element is superior
because it includes the phrase “transitory period” which, according to Ray, indicates a
longer period of time than a momentary period of time. Ray then cites various cases
which apparently concluded that two hours, four hours, and two days were all determined
to be a longer period of time than permitted by the defense. (People v. Martin (2001)
25 Cal.4th 1180, 1192-1193 (Martin); People v. Frazier (1998) 63 Cal.App.4th 1307,
1312; People v. Hurtado (1996) 47 Cal.App.4th 805, 814.)
       We reject Ray’s attempt to find error with this instruction by parsing it into small
phrases. The evidence, if believed by the jury, was that Ray possessed the
methamphetamine for a very short period of time, presumably less than 10 minutes. It is
clear that regardless of how the first element of the defense was defined, if the jury

                                             11.
believed Ray’s testimony it would have concluded his possession of the
methamphetamine was momentary. Moreover, we reject the contention the jury would
have interpreted “momentary or transitory period” as defining a longer period of time
than momentary possession. Accordingly, CALJIC No. 12.06 properly defined the first
element of the defense.
       We also note the issue at trial was not whether Ray possessed the
methamphetamine for a momentary period of time. The prosecutor did not argue the
defense should be rejected because Ray’s possession of the methamphetamine was more
than momentary. Instead, the prosecutor argued Ray’s testimony should be rejected
because Ray was untruthful. Accordingly, even if there was error, which there was not,
then the error was not prejudicial under any standard of review.
       The second issue identified by Ray involves the third element of the defense in
CALJIC No. 12.06, which states “The methamphetamine is possessed for the purpose of
preventing another person from acquiring possession of it.” Ray points out this element
is not included in CALCRIM No. 2305, and asserts it is an incorrect statement of the law.
He relies on the use note to CALCRIM No. 2305, which cites Martin as authority for the
proposition that the momentary possession defense does not require the drug be
possessed to prevent another from possessing it. We agree that nothing in Martin
requires the drug be possessed to prevent another from possessing it, but note the issue
was not directly addressed by the Supreme Court. Martin’s holding, however, is quite
clear: “We conclude that the defense of transitory possession devised in [People v.
Mijares (1971) 6 Cal.3d 415] applies only to momentary or transitory possession of
contraband for the purpose of disposal, and that the trial court did not err in refusing
defendant’s requested instruction based on the holding in [People v. Cole (1988) 202
Cal.App.3d 1439]. To the extent People v. Cole, supra, 202 Cal.App.3d 1439, and
[People v. Spry (1997) 58 Cal.App.4th 1345], are inconsistent with the views expressed
herein, they are disapproved.” (Martin, supra, 25 Cal.4th at pp. 1191-1192.)

                                             12.
       Martin makes clear the defense is limited to momentary possession for the purpose
of disposing of an illegal substance. Therefore, CALJIC No. 12.06 apparently incorrectly
requires the controlled substance be possessed for the purpose of preventing another from
possessing it.
       Nonetheless, assuming the instruction was erroneous, the error is harmless. Once
again, we turn to Ray’s testimony. Ray testified he first observed a young girl staring at
the methamphetamine as it lay on the ground. He recognized the substance as
methamphetamine, and told the girl not to touch the bag. Ray picked up the bag so that
the young girl, or other children, would not pick up the methamphetamine. Therefore,
had the jury believed Ray’s testimony, this element of the defense would not have
prevented the jury from returning a not guilty verdict. Once again, we note the
prosecutor did not argue this element was not proven, and that the jury must therefore
reject Ray’s defense.
       The third issue identified by Ray is the absence of a definition of “preponderance
of the evidence” in CALJIC No. 12.06. Ray points out that CALCRIM No. 2305
includes the definition of this term, while the trial court was required to include the
definition of the term by adding CALJIC No. 2.50.2. Ray argues the definition of
“preponderance of the evidence” in CALCRIM No. 2305 differs in two ways from the
definition in CALJIC 2.50.2. First, according to Ray, the definition in CALCRIM
No. 2305 is “more concise and easier to understand.” Second, CALCRIM No. 2305
informs the jurors that it is a different standard of proof than beyond a reasonable doubt,
which CALJIC No. 2.50.2 does not. Once again, we reject this parsing of the
instructions. CALJIC No. 12.06 informed the jury that Ray was required to prove the
element of the defense by a preponderance of the evidence, and CALJIC No. 2.50.2
adequately defined the standard of proof. No error occurred.




                                             13.
       Ray concludes by arguing the cumulative effect of the purported instructional
errors requires reversal. Since we have found only a single instructional error, and have
concluded that error was not prejudicial, we reject Ray’s cumulative prejudice argument.
                                     DISPOSITION
       The judgment is affirmed.




                                           14.
