Filed 4/22/14 P. v. Butler CA3
                                           NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.



                                                       COPY

              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                    (San Joaquin)
                                                            ----




THE PEOPLE,                                                                                  C072594

                   Plaintiff and Respondent,                                    (Super. Ct. No. SF113454A)

         v.

TIRELL BUTLER,

                   Defendant and Appellant.




         A jury convicted defendant Tirell Butler of transportation of cocaine (count two),
transportation of cocaine base (count four), and transportation of ecstasy (count five).
The trial court declared a mistrial on three other counts and they were ultimately
dismissed. The court found defendant had two prior strike convictions, had served two
prior prison terms, and had a 2001 prior conviction for cocaine base for sale. Pursuant to
Proposition 36, the Three Strikes Reform Act of 2012, the court sentenced defendant to




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13 years on count two and imposed sentences on counts four and five, but stayed them
pursuant to Penal Code section 654.
       On appeal, defendant contends the trial court prejudicially erred in instructing the
jury on moral turpitude, on consciousness of guilt, and in refusing to give his proffered
pinpoint instruction on third party culpability. Finding no merit to any of the contentions,
we affirm the judgment.

                                 FACTS AND PROCEEDINGS

       Around 10:00 or 11:00 p.m., on November 21, 2009, Stockton Police Officers
Carlos Vina and Mitch Tiner were on patrol looking for Syldarius Grant (Syldarius), a
parolee at large, when they stopped a car Syldarius was known to drive. As Officer Vina
approached the car, the driver yelled, “I’m not the person you’re looking for.” The driver
was defendant, who is Syldarius’s cousin, and he admitted he was on parole. A search of
a leather jacket defendant was wearing disclosed packets of cocaine, cocaine base, and
ecstasy. Expert testimony established the drugs were possessed with intent to distribute.
       Defendant testified that about 8:00 p.m. on the evening in question, he had driven
his van from a hospital where his wife had surgery to the home of his uncle, Sylvester
Grant (Sylvester), to check on him because he had cancer. Upon arriving at Sylvester’s
home, defendant locked the keys inside the van. Sylvester gave defendant permission to
borrow his car and defendant got the keys from Syldarius, who also used the car.
       Inside the car was a leather jacket which defendant put on because it was cold and
the car had no heat. Defendant picked up a friend of his sister’s and drove her to his
sister’s home in Manteca. When defendant got back to Stockton, he was stopped by
Officers Vina and Tiner. Officer Vina found drugs in the leather jacket, and defendant
told Officer Tiner they were not his. Defendant knew that Syldarius was wanted and that
he was a gang member who sold drugs. Although defendant knew the jacket belonged to




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Syldarius, he had no idea there were drugs inside it. Defendant admitted being convicted
of two robberies in 1993 and a felony in 2001 which involved moral turpitude.
       In rebuttal, Officer Vina testified that when he confronted defendant with the
drugs, defendant admitted they were his, but only were possessed for personal use.

                                        DISCUSSION

                                              I

                         Instructions Regarding Moral Turpitude

       Defendant contends the trial court made two instructional errors regarding his
prior felony conviction in 2001. First, by leaving the jury to decide whether his prior
2001 conviction involved moral turpitude; and second, by instructing the jury that “a
crime of moral turpitude is one that bears a rational relationship to a witness’s readiness
to lie.” We reject both claims.
       Prior to trial, defendant moved to prohibit the prosecution from using any of his
prior convictions for impeachment. The court denied the motion, but agreed with
defendant’s request to sanitize the 2001 prior as a “felony crime of moral turpitude.”
During defendant’s testimony, he admitted that his 2001 felony conviction was for a
crime involving moral turpitude.
       The court instructed the jury, per CALCRIM No. 316, as follows: “If you find
that a witness has been convicted of a felony, you may consider that fact only in
evaluating the credibility of the witness’ testimony. [¶] The fact of a conviction 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.” In a separate
instruction, given immediately after the giving of CALCRIM No. 316, the court defined
moral turpitude “as a readiness or willingness to do evil.”
       Defendant argues that CALCRIM No. 316, as given, permitted the jury to
determine whether his prior conviction in 2001 involved moral turpitude. Defendant


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misunderstands the instruction. It is true that the determination of whether a criminal
offense involves moral turpitude is a question of law for the court, not the jury.
(People v. Gray (2007) 158 Cal.App.4th 635, 640.) However, it is likewise true that
there is nothing in CALCRIM No. 316 which permits the jury to determine whether
defendant’s 2001 conviction involved moral turpitude. Indeed, the only determination
the instruction permits the jury to make is to find whether defendant has “been convicted
of a felony,” and if so, how to use that evidence. The instruction defining moral turpitude
was given, without objection by defendant, in anticipation that the jury would ask for
such an instruction. Hence, the instructional error perceived by defendant is nonexistent.
       Additionally, we note that even if the instruction could be read to permit the jury
to determine whether defendant’s prior conviction involved moral turpitude, the error
would have been to defendant’s benefit because such a reading would afford the jury the
opportunity to find that the prior did not involve moral turpitude, which, in the eyes of the
jury, would have rendered the prior less suitable for showing a readiness to do evil.
Defendant can have no reasonable complaint about an asserted error which was to his
benefit.
       During deliberations, the jury asked for a further definition of “moral turpitude.”
The court responded, “A crime of moral turpitude is one which bears a rational
relationship to a witness’ readiness to lie.” Defendant argues the court’s response was
“incorrect” because it “limit[ed] moral turpitude to crimes which bear a rational
relationship to a witness’s readiness to lie.” The instruction is and was correct. As the
California Supreme Court has noted, “[T]he law provides that any criminal act or other
misconduct involving moral turpitude suggests a willingness to lie . . . .” (People v.
Contreras (2013) 58 Cal.4th 123, 157, fn. 24.) “Possession of drugs for sale, which
involves the intent to corrupt others, is conduct involving moral turpitude.” (People v.
Harris (2005) 37 Cal.4th 310, 337.) Accordingly, the court’s response was correct.



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                                                 II

                                     CALCRIM NO. 362

       Defendant contends the trial court’s instructing the jury per CALCRIM No. 362
“violated [his] constitutional rights to due process by improperly singling out his [trial]
testimony for special scrutiny and denying him a meaningful opportunity to present a
defense.” We reject the contention.
       Defendant faults the trial court for giving the following version of CALCRIM
No. 362: “If the defendant made a false or misleading statement relating to the charged
crime, knowing the statement was false or intending to mislead, that conduct may show
that he was aware of his guilt of the crime and you may consider it in determining his
guilt.” According to defendant, the problem with this instruction is that it has “potential
scope for application” to his trial testimony.
       We disagree. The version of CALCRIM No. 362 given by the trial court said: “If
the defendant made a false or misleading statement before this trial relating to the
charged crime, knowing the statement was false or intending to mislead, that conduct
may show he was aware of his guilt of the crime and you may consider it in determining
his guilt.” (Italics added.) Accordingly, the instruction given precluded its application by
the jury to defendant’s trial testimony.

                                              III

                     Proposed Instruction on Third Party Culpability

       Defendant contends the trial court “violated [his] right to due process and a jury
trial when it refused to instruct the jury with a requested pinpoint instruction on third
party culpability.” We disagree, concluding that defendant has forfeited the issue by
failing to establish that the court refused to give the proposed instruction, and, even if the
court rejected the instruction, defendant suffered no harm.



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       Defendant’s defense was that the jacket he was wearing in which the drugs were
found belonged to Syldarius, and that defendant was unaware of their presence.
Accordingly, the court instructed the jury as follows: “Evidence has been offered that a
third party is the perpetrator of the charged offense. It is not required that the defendant
prove this fact beyond a reasonable doubt. In order to be entitled to a verdict of acquittal,
it is only required that such evidence raise a reasonable doubt in your minds of the
defendant’s guilt.”
       Defendant composed the following instruction, which he characterizes as a
pinpoint instruction that was not given: “You have heard evidence that Syldarius Grant
committed the offenses with which the defendant is charged. The defendant is not
required to prove Syldarius Grant’s guilt. It is the prosecution that has the burden of
proving the defendant guilty beyond a reasonable doubt. Therefore, the defendant is
entitled to an [sic] verdict of not guilty if you have a reasonable doubt as to the
defendant’s guilt. Evidence that another person committed the charged offenses may by
itself leave you with a reasonable doubt. [¶] If after considering all of the evidence,
including any evidence that another person committed the offense, you have a reasonable
doubt that the defendant committed the offense you must find the defendant not guilty.”
       As defendant points out, there is no discussion in the reporter’s transcript
regarding the third party culpability instruction. Defendant’s proposed instruction is
found in the clerk’s transcript under a section labeled “Instructions Not Given.” Nothing
in the record shows why the instruction was not given -- the court could have refused to
give the instruction or defendant could have withdrawn the instruction after further
consideration.
       On appeal, “ ‘ “[w]e must indulge in every presumption to uphold a judgment, and
it is defendant’s burden on appeal to affirmatively demonstrate error -- it will not be
presumed. [Citation.]” [Citations.]’ [Citation.]” (People v. Sullivan (2007)
151 Cal.App.4th 524, 549.) Defendant has not met his burden of establishing that the

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court refused to give the instruction rather than the instruction having been withdrawn for
some other reason. Accordingly, the issue is forfeited for appeal.
       Even if considered on the merits, defendant’s argument would fare no better.
Defendant’s complaint with the instruction given was that it did not name Syldarius as
the third party. Although the instruction did not specifically name Syldarius, defendant
testified the jacket belonged to Syldarius, and during argument, counsel expressly
identified Syldarius as the “third party” referred to in the instruction on third party
culpability. It is simply inconceivable that the jury did not relate the third party in the
instruction to Syldarius; hence defendant suffered no harm.

                                        DISPOSITION

       The judgment is affirmed.



                                                         HULL                   , J.



We concur:



      BLEASE                 , Acting P. J.



      DUARTE                 , J.




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