Filed 5/27/14 P. v. Mode CA1/5
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION FIVE



THE PEOPLE,
         Plaintiff and Respondent,                                       A138181
                   v.
LAURA ANN MODE,                                                          (Del Norte County
                                                                         Super. Ct. No. CRF12-9235)
         Defendant and Appellant.

         Appellant Laura Ann Mode appeals from her conviction, after a jury trial, of two
counts relating to possession of methamphetamine and paraphernalia. She contends a
jury instruction regarding one of the counts was prejudicial error. We affirm.
                                                  BACKGROUND
         In April 2012, appellant was arrested on an outstanding civil warrant. The
arresting officer searched appellant’s purse and found two vials containing a substance
later determined to be methamphetamine.
         A glass pipe containing white crystalline residue was also found in appellant’s
purse. Results of a field test showed the residue was presumptively positive for
methamphetamine; however, the residue was not analyzed by the California Department




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of Justice.1 A law enforcement officer, testifying as an expert in the use of
methamphetamine, testified the pipe was a methamphetamine pipe. In his opinion, it
looked like a pipe that had been used to smoke methamphetamine.
       Appellant was charged with possession of methamphetamine (Health & Saf. Code,
§ 11377)2 and possession of drug paraphernalia (§ 11364, subd. (a)).3 She was also
charged with two additional counts of which she was not convicted and which are not
relevant to this appeal. Following a jury trial, she was convicted of possession of
methamphetamine and paraphernalia. This appeal followed.
                                       DISCUSSION
       In response to a question submitted by the jury during deliberations, the trial court
instructed the jury that “[a] pipe need not have actually been used to smoke
methamphetamine” to sustain a conviction under section 11364. Appellant argues
section 11364 does require the jury to find a pipe has in fact been used to smoke
methamphetamine, and the trial court’s error was prejudicial. We need not decide
whether the instruction was error because any error was harmless.
       “ ‘[A]n instructional error that improperly . . . omits an element of an offense . . .
generally is not a structural defect in the trial mechanism that defies harmless error
review and automatically requires reversal under the federal Constitution.’ [Citation.]
Instead, an erroneous instruction that omits an element of an offense is subject to
harmless error analysis under Chapman v. California (1967) 386 U.S. 18. [Citations.] In
general, the Chapman test probes ‘whether it appears “beyond a reasonable doubt that the

1   Other items found in appellant’s purse — a baggie and a compass — also contained a
white crystalline substance which tested presumptively positive for methamphetamine in
a field test.
2   All undesignated section references are to the Health and Safety Code.
3  Section 11364 has been suspended, effective January 1, 2012 until January 1, 2015.
(Stats. 2011, ch. 738, § 10.) Section 11364.1, subdivision (a), effective January 1, 2012,
contains language identical to section 11364, subdivision (a). (Stats. 2011, ch. 738,
§ 11.) Appellant has not raised the suspension of section 11364 as an issue in this case
and, in light of section 11364.1, subdivision (a), we do not believe the suspension is of
concern. (Cf. In re Dapper (1969) 71 Cal.2d 184, 189.)
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error complained of did not contribute to the verdict obtained.” [Citations.]’ [Citation.]”
(People v. Gonzalez (2012) 54 Cal.4th 643, 662-663 (Gonzalez).) In cases of
“instructional errors that arguably prevent the jury from finding an element of an
offense,” we ask: “ ‘Is it clear beyond a reasonable doubt that a rational jury would have
found the defendant guilty absent the error?’ [Citation.]” (Id. at p. 663.)
       The answer is yes. The evidence the pipe had been used to smoke
methamphetamine was overwhelming. The pipe contained white crystalline residue that
tested presumptively positive for methamphetamine in a field test. The pipe was found in
a purse containing vials of confirmed methamphetamine. An expert in the use of
methamphetamine testified the pipe looked like it had been used to smoke
methamphetamine. No evidence was introduced to suggest the white residue in the pipe
was anything but methamphetamine.
       In the face of this evidence, appellant emphasizes notes sent by the jury during its
deliberations to the trial court that relate to the pipe. One note asked whether the residue
in the pipe was tested by the California Department of Justice and, if so, what was the
result. The second note, which prompted the challenged instruction, asked, “If the meth
pipe had been brand new and never used,” would it sustain a conviction under
section 11364? Appellant argues these notes, and the short time elapsing between the
challenged instruction and the guilty verdicts, indicate this jury did not believe the People
had proven the pipe had been used.
       However, “the appropriate harmless error test for instructions that erroneously
omit an element of an offense . . . does not require proof that a particular jury ‘actually
rested its verdict on the proper ground [citation], but rather on proof beyond a reasonable
doubt that a rational jury would have found the defendant guilty absent the error
[citation].” (Gonzalez, supra, 54 Cal.4th at p. 666.) As discussed above, no rational jury
could find the pipe had not been used to smoke methamphetamine.
                                       DISPOSITION
       The judgment is affirmed.


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                    SIMONS, Acting P.J.



We concur.




NEEDHAM, J.




BRUINIERS, J.




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