Filed 10/5/16 P. v. Berrigan CA5


                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
                                     FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F071795
         Plaintiff and Respondent,
                                                                             (Super. Ct. No. BF156571A)
                   v.

RUSTON CHAD BERRIGAN,                                                                    OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Kern County. Brian M.
McNamara, Judge.
         Charles M. Bonneau III, 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, Louis M. Vasquez and Nora S.
Weyl, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-




*        Before Kane, Acting P.J., Peña, J. and Smith, J.
       A jury convicted appellant Ruston Chad Berrigan of two counts of possession for
sale of methamphetamine (counts 1 & 3/Health & Saf. Code § 11378) and misdemeanor
possession of drug paraphernalia (count 2/Health & Saf. Code, § 11364.1). On May 28,
2015, the court sentenced Berrigan to an aggregate, local split term of three years eight
months, the middle term of three years on count 1, a consecutive eight months on
count 3, and a concurrent 90-day term on count 2. The court ordered Berrigan to serve
the first 22 months in local custody with the remainder of the sentence to be served on
mandatory supervision.
       On appeal, Berrigan contends the court committed instructional error. We affirm.
                                          FACTS
The Trial
       The prosecution established that on April 9, 2014, at approximately 10:00 a.m.,
Bakersfield Police Officer Lukious Sims, Detective Alex Paiz and other officers
conducted a search of Berrigan’s house in Bakersfield. During a search of the garage,
Officer Simms found two glass pipes and a plastic bag that contained 5.07 grams of an
off-white crystalline substance that was later determined to be methamphetamine. One
pipe had a crystalline residue on it and a discolored end caused by a substance melting in
the pipe. In a baseball cap on a couch, Detective Paiz found numerous empty two-inch
by two-inch plastic Ziploc baggies with a design printed on them. He also located two
digital scales on a coffee table. One of the scales had a white residue on it that appeared
to be the same as the crystalline substance Officer Sims found in the plastic bag. During
an interview with Detective Paiz, Berrigan admitted that the pipes and the crystalline
substance found in the garage belonged to him. He also stated that he “sells a little to
make ends meet.”
       On August 21, 2014, at around 4:00 p.m., Officer Sims, Detective Paiz and other
officers returned to Berrigan’s house. On this occasion, Detective Paiz noticed that the
house had three video surveillance cameras, one on the upstairs eave at the peak of the

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two-story house, another on the lower edge brim, and one near the front door. As the
officers entered the garage, Officer Sims saw Berrigan toss a prescription bottle to the
ground. Sims retrieved the bottle and inside found a clear plastic bag that contained an
off-white crystal substance that was later determined to be 1.56 grams of
methamphetamine. In Berrigan’s pocket, Detective Paiz found $30 in currency
consisting of a $20 bill and a $10 bill.
       The officers also found a monitor in the garage that was displaying feeds from the
three cameras noted above and one additional camera. Additionally, Detective Paiz
found a black digital scale with residue on it and numerous two-inch by two-inch Ziploc
baggies with a marijuana leaf printed on them.
       Detective Paiz also located a cellular phone that Berrigan admitted belonged to
him. Paiz looked through the phone and found several text messages. A message dated
August 10, 2014, and timestamped 11:47 a.m., read: “Hey, Bud, can I swing through for
20?” A second message of the same date, that was timestamped 11:22 p.m., stated: “Hi,
Bud, can I swing through for 20?” A third message dated August 19, 2014, that was
timestamped 5:42 p.m., stated, “Hey, can I swing by real quick? I’ll also bring those
bushings for you.” A fourth message dated August 21, 2014, stated, “Hey, sorry about
the other day. My ride flaked. I have a car. Can I come through for 20/10?”
       Bakersfield Police Detective Lester Van Riddle testified as an expert in narcotics
sales that a typical dosage of methamphetamine is about .10 grams, that 5.07 grams of
methamphetamine equaled 50 doses, and that the typical user will only possess an
amount they can use in a short period of time, i.e., from .10 grams to .50 grams. Van
Riddle also testified that the most important indicator of possession for sale of
methamphetamine is the possession of an amount that exceeds what officers would
expect to find on a person for personal use. Other indicators are the possession of
paraphernalia associated with sales of methamphetamine such as scales, various types of
packaging materials, small denominations of currency consistent with street sales, and

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cell phones. However, not all of these indicators are found in every case of
methamphetamine sales. Detective Van Riddle further testified that people who
possessed methamphetamine for personal use rarely possessed scales.
       Detective Van Riddle testified that the 1.56 grams found in Berrigan’s garage on
August 21, 2014, was about 15 doses and that people involved in drug sales often use cell
phones to communicate with their source and their buyers. According to Van Riddle, the
text messages with the numbers 10 and 20 referred to $10 or $20 amounts of
methamphetamine and were amounts he often saw with a .10 gram of methamphetamine
being sold for $10 and .20 to .25 grams of methamphetamine being sold for $20.
       Detective Van Riddle opined that Berrigan possessed for sale the 5.07 grams of
methamphetamine found during the first search. He based his opinion on this amount
equaling 50 doses, on Berrigan’s possession of several digital scales, including one with
residue on it, his possession of two-inch by two-inch Ziploc baggies, and Berrigan’s
statement that he was “sell[ing] a little to make ends meet.” Berrigan’s possession of
pipes to smoke methamphetamine did not change his opinion because sometimes people
involved in the sales of narcotics at the street level are users and they sell some of the
drug to support their habit.
       Detective Van Riddle also opined that Berrigan possessed for sale the 1.56 grams
of methamphetamine found in his possession on August 21, 2014. He based his opinion
on the amount of methamphetamine which was enough for approximately 15 doses,
Berrigan’s possession on that date of a third digital scale, packaging material, and a cell
phone with the text messages previously described, the surveillance by video cameras,
Berrigan’s history of possessing methamphetamine for sale, and his previous admission
that he sold methamphetamine.
       The defense did not present any evidence.
Jury Instructions
       During jury instructions, the court charged the jury as follows:

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        “The order in which you challenge this verdict form is purely yours.
Whatever I do here is not a guideline in any manner, shape, or form. You
decide how you challenge this job before you. I’m obviously going to take
it with the first count, second count, et cetera, for ease.

        “Here’s the verdict form. It will go back to the jury room. It has the
defendant’s name, verdict, the case number, first count. So on the first
count here, the word is guilty on the top, not guilty on the bottom. You go
back to the jury room as to Count 1, possession of a controlled substance
for sale. You decide that case.

       “You sit down. You deliberate, consider all the evidence. If you get
together and unanimously agree that the prosecutor has not met their
burden of proof as to that count, you would simply date it here and sign
here. That’s it. So that’s the first count. If you decide that, in the
alternative -- if you sit down and discuss all the evidence, deliberate,
consider everyone’s opinion, and you unanimously agree the prosecutor has
met their burden of proof, you date it here and sign here.

        “That’s how you get past that page in and of itself. We talked a bit
about lesser-included offenses, what they mean. If, for example, here you
get -- you deal with this count and you cannot agree whether the prosecutor
has met -- unanimously all 12 of you cannot agree that the prosecutor has
met that burden of proof, you cannot go to the lesser-included offense.

       “You cannot get to the second page. You don’t consider the lesser-
included. The only way you get to that next page, if you all agree the
prosecutor -- the only way you consider the next page is if you all agree the
prosecutor has not met his burden of proof on this count, in other words,
you find the defendant not guilty here, okay? If you can agree, it’s a
decision on this page.

       “You don’t get to the next page as to this count. You don’t consider
it. Okay? Now, we’ll assume you deliberate. You consider everything.
You believe as a group, 12 of you all, agree the prosecutor did not meet
their burden of proof, at that point you sign here, date here. Then you go to
the next page. You do not get to this page if you cannot agree on the first
page. If you find the defendant guilty on the first page, you don’t get to the
second page. There’s no reason to go there.

       “Now, if you do get to the second page, you do consider both of
these options again. In other words, you sit down, you deliberate, and you
discuss it. If you all agree at this point the prosecutor has not met their
burden of proof, again, you would sign here. If you do believe the


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       prosecutor has met their burden of proof -- if you cannot agree on this one,
       but you found not guilty on the first one or the lesser-included offense, you
       don’t put anything there.

             “But if you can reach an agreement, you attempt to reach an
       agreement, either guilty or not guilty based on the burden of proof, you
       would sign either one. Is that making a bit more sense to you? I don’t
       mean to be rude to you. Unless you see it played out, it makes sense.
       Again, go to Count 2. It doesn’t have a lesser-included offense.

               “You decide this case and you attempt to reach a decision. If you sit
       down and agree and consider all the evidence involved in this case, and the
       prosecutor has met their burden of proof, you would simply sign here. If
       you all get together, find the evidence is not supported beyond that burden
       of proof, then you would sign here. If you can’t reach a decision, you leave
       it alone.

              “The last count is the same as the first. The same situation, different
       date, different situation, different facts applied to different dates but, again,
       you work out what happened. If you can reach a decision of guilty based
       on the fact that the prosecutor, given all the evidence, you deliberated,
       discussed it, has met that burden of proof as to Count 3, you sign here and
       you stop.

               “If you get here, and you can’t agree on a decision as to this count,
       you stop. If you do reach a decision, you believe that the prosecutor has
       not met that burden of proof, you would sign here. The only way you get to
       the last page is if you agree not guilty is [sic] this count, then you consider
       this lesser-included offense, which is possession only not for sale as in the
       first case.

               “Again, if you do reach a decision whether guilt or innocence -- not
       innocent, not guilty or guilty based on the burden of proof, you sign either
       place. If you don’t reach a decision on that one, you leave it blank.…”
       (Italics added.)
       Defense counsel did not object to the court’s comments quoted above.
                                       DISCUSSION
       “[People v. Kurtzman (1988) 46 Cal.3d 322] established that the jury may
deliberate on the greater and lesser included offenses in whatever order it chooses, but
that it must acquit the defendant of the greater offense before returning a verdict on the



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lesser offense. (Id. at p. 333.) In this manner, when the jury renders its verdict on the
lesser included offense, it will also have expressly determined that the accused is not
guilty of the greater offense.” (People v. Fields (1996) 13 Cal.4th 289, 309.)
       Berrigan contends the court committed Kurtzman error because through the
instruction quoted above it instructed the jury “not to even consider the lesser charge (of
simple possession), unless [he] was found not guilty of possession for sale.” He further
contends he did not forfeit this issue by his failure to object to the instruction at issue in
the trial court because the instruction resulted in the jury not considering a lesser charge
and thus deprived him of a substantial right. (People v. Carey (2007) 41 Cal.4th 109, 129
[notwithstanding defendant’s failure to object, claim is cognizable on appeal to the extent
it implicates defendant’s substantial rights].) We reject these contentions.
       The court charged the jury in the language of CALCRIM 3517 as follows:

             “If all of you find that the defendant is not guilty of a greater crime,
       you may find him guilty of a lesser crime if you are convinced beyond a
       reasonable doubt that the defendant is guilty of that lesser crime. A
       defendant may not be convicted of both a greater and lesser crime for the
       same conduct. [¶] … [¶]

              “Now I will explain to you which crimes are affected by this
       instruction: [¶] Possession of a controlled substance is a lesser crime of
       possession of a controlled substance for the purpose of sale charged in
       Counts 1 and 3.

              “It’s up to you to decide the order in which you consider each crime
       and the relevant evidence, but I can accept a verdict of guilty of a lesser
       crime only if you have found the defendant not guilty of the corresponding
       greater crime.” [Italics added.]
       In counts 1 and 3 the jury had the option of convicting Berrigan of possession for
sale of methamphetamine or the lesser included offense of simple possession of
methamphetamine. They were also provided with verdict forms for each offense in each
count. The instruction at issue explained to the jury the following with respect to filling
out the verdict forms for counts 1 and 3. If they unanimously agreed that in counts 1 and


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3 that Berrigan was guilty of possession for sale or if they did not unanimously acquit
him of that offense, they would not have to fill out the verdict form for the lesser included
offense of simple possession. If they unanimously agreed that Berrigan was not guilty of
possession for sale, then they would have to fill out the appropriate portion of the verdict
form for simple possession if they unanimously agreed that he was guilty or not guilty.
However, if the jury could not unanimously agree whether he was guilty or not guilty on
the greater or lesser offense in each count, then they would not fill out either form.
Although the instruction on filling out the verdict forms was at times confusing, Berrigan
does not cite any evidence in the record that supports his claim that it caused the jury to
not follow the language quoted above from CALCRIM No. 3517.
       Furthermore, “[a] defendant is entitled to instructions on lesser included offenses
only if some basis exists, ‘other than an unexplainable rejection of prosecution evidence,
on which the jury could find the offense to be less than that charged.’ [Citations.] ‘[I]f
there is no proof, other than an unexplainable rejection of the prosecution’s evidence, that
the offense was less than that charged, such instructions shall not be given.’ ” (People v.
Walker (2015) 237 Cal.App.4th 111, 117.)
       Defense counsel did not provide any evidence to rebut the overwhelming amount
of evidence the People presented that Berrigan was guilty of the two counts of possession
for sale of methamphetamine he was charged with. Further, during closing argument,
defense counsel essentially argued only that the People did not prove all the elements of
the charged offense, i.e., that there were “just too many holes in [the People’s] case” to
find Berrigan guilty beyond a reasonable doubt. Thus, Berrigan was not entitled to an
instruction on the lesser included offense of simple possession because there was no basis
in the record for instructing the jury on that offense. Since Berrigan was not entitled to
an instruction on simple possession, Berrigan could not have been deprived of a
substantial right by the court’s failure to charge the jury that they could first consider an
offense that he was not entitled to have the jury consider. Thus we conclude that

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Berrigan forfeited his right to challenge the instruction at issue on appeal and that, in any
event, the court did not commit Kurtzman error.1
       Moreover, even if Kurtzman error occurred, it was harmless. The error Berrigan
complains of is akin to the trial court failing to instruct on the lesser related offense of
simple possession of methamphetamine. “ ‘[T]he failure to instruct sua sponte on a lesser
included offense in a noncapital case is, at most, an error of California law alone, and is
thus subject only to state standards of reversibility.’ [Citation.] Under the state standard,
‘such misdirection of the jury is not subject to reversal unless an examination of the
entire record establishes a reasonable probability that the error affected the outcome.’ ”
(People v. Campbell (2015) 233 Cal.App.4th 148, 165.)
       As discussed above, Berrigan could not have been prejudiced by the failure to
charge the jury with an instruction on the lesser included offense of simple possession
because the evidence did not warrant an instruction on that offense. Further, the evidence
of Berrigan’s guilt was overwhelming. Detective Van Riddle relied on several
circumstances, including Berrigan’s admission that he sometimes sold methamphetamine
“to make ends meet,” to conclude that Berrigan possessed for sale each of the two
quantities of methamphetamine found in his possession. Berrigan did not provide any
evidence in the trial court to rebut this testimony. Instead, on appeal he attempts to
demonstrate that he was prejudiced by the alleged instructional error by individually
analyzing and discounting the significance of each circumstance Detective Van Riddle

1      Alternatively, Berrigan contends he was denied the effective assistance of counsel
by defense counsel’s failure to preserve this issue by objecting to the court’s instruction.
To prove he was denied the effective assistance of counsel, Berrigan has to show that
defense counsel’s representation was deficient and that it resulted in prejudice.
(Strickland v. Washington (1984) 466 U.S. 668, 687-688.) However, since we concluded
above that the court did not commit Kurtzman error and we conclude, post, that Berrigan
did not suffer any prejudice from the alleged instructional error, we also reject Berrigan’s
ineffective assistance of counsel claim.



                                               9
relied on to conclude Berrigan possessed for sale each of the two quantities of
methamphetamine found in his possession. Detective Van Riddle, however, relied on the
cumulative significance of all these circumstances to support his opinion that each of the
two quantities of methamphetamine found in Berrigan’s possession were possessed for
sale. Since Berrigan’s piecemeal analysis does not address the cumulative significance of
these circumstances, it does nothing to impeach Detective Van Riddle’s opinion,
particularly in light of Berrigan’s failure to present any evidence to rebut the People’s
case. Therefore, since the evidence of Berrigan’s guilt on counts 1 and 3 was
overwhelming and unrebutted, if instructional error occurred, it was harmless.
                                      DISPOSITION
       The judgment is affirmed.




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