People v. Carrasco

• Decision Date: 07 May 1981
• Docket Number: Cr. 4677
• Citation: 173 Cal.Rptr. 688,118 Cal.App.3d 936
• Parties: The PEOPLE, Plaintiff and Respondent, v. Juan CARRASCO, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 688

173 Cal.Rptr. 688

118 Cal.App.3d 936

The PEOPLE, Plaintiff and Respondent, v. Juan CARRASCO, Defendant and Appellant.

Cr. 4677.

Court of Appeal, Fifth District, California.

May 7, 1981.

As Modified May 27, 1981.

Allen R. Crown, Sacramento, under appointment by the Court of Appeal, for defendant and appellant.

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Arnold O. Overoye, Asst. Atty. [118 Cal.App.3d 939] Gen., Eddie T. Keller, W. Scott Thorpe and Janice Rogers Brown, Deputy Attys. Gen., Sacramento, for plaintiff and respondent.

See Concurring Opinions.

OPINION

ANDREEN, Associate Justice.

Appeal from a judgment of conviction of violation of Penal Code section 4573.6 (unauthorized possession of drugs in a penal institution). Reversed.

The defendant, an inmate in a county 'road camp,' returned from work furlough, changed his clothes, and went to the bathroom area whereupon he was approached by a correctional officer who demanded that he unbuckle his top pants button and open the flap of his trousers. When the defendant complied, a plastic baggie carrying a balloon was found between his pants and shorts. The balloon contained heroin.

The defense was that the correctional officer was on a vendetta against the defendant and that defendant did not possess any heroin. A doctor's report, submitted by stipulation, stated that the defendant was not a heroin addict and did not show signs of heroin use as of August 27, 1979, nor was there evidence of old pigmented injection sites.

DISCOVERY ORDER

Defendant contends that his motion to dismiss for failure of the People to comply with a discovery order should have been granted.

Although the discovery order is not before us, it may be inferred that it was issued after the information was filed. Seven days after the filing of the information (on September 11, 1979), defense counsel Sanders requested to view the pants and shorts that defendant wore on July 12, 1979. The prosecution attempted to comply with the request, but found that inmate clothing was washed on a regular basis and was not available. While the record does not establish when the clothing was removed and washed, it may be inferred that this occurred long before the filing of the information, the discovery order, and Sanders' request. Compliance with this particular aspect of the discovery order was thus impossible. It follows that no violation occurred.

As to the shorts, the evidence shows that these were appellant's personal property and presumably were not washed and recycled for other road camp prisoners. The defense failed to show that these shorts were ever within law enforcement custody and/or had been lost or destroyed because of law enforcement action or inaction.

The defense raises two other theories, first, that the prosecution suppressed substantial material evidence favorable to the defense (People v. Ruthford (1975) 14 Cal.3d 399, 121 Cal.Rptr. 261, 534 P.2d 1341); and second, that the prosecution failed to preserve evidence which might have been favorable to the defense (People v. Hitch (1974) 12 Cal.3d 641, 117 Cal.Rptr. 9, 527 P.2d 361). These theories are not based on a specific court order but due process.

To the extent appellant relies on Hitch and Ruthford, he failed to argue either theory below and has waived any appellate contention. Case law requires that a Hitch contention be raised in the trial court to be cognizable on appeal. (People v. Burciago (1978) 81 Cal.App.3d 151, 169-170, 146 Cal.Rptr. 236; People v. Smith (1977) 70 Cal.App.3d 306, 318, 138 Cal.Rptr. 783.) By analogy, waiver applies as well to the Ruthford argument (cf. People v. Burciago, supra, 81 Cal.App.3d at pp. 169-170, 146 Cal.Rptr. 236); furthermore, nothing in the record, as discussed above, supports a claim that the prosecution failed to disclose any evidence favorable to appellant prior to or during trial. A careful review of the pertinent record shows that the motion to dismiss was couched solely in terms of a violation of a specific discovery order.

While a finding of waiver may appear hypertechnical, fairness to the prosecution and the trial court requires that Hitch be raised below. The prosecution should have a chance to argue that the subject evidence was not material and/or to show that the government had established, enforced and attempted in good faith to adhere to rigorous and systematic procedures to preserve the evidence. (People v. Hitch, supra, 12 Cal.3d at pp. 652-655, 117 Cal.Rptr. 9, 527 P.2d 361.) The trial court should have a chance to rule on the specific theory on which it later may suffer appellate reversal.

Finally, we fail to see how the absence of the clothing at trial prejudiced defendant. The baggie was about the size of a quarter. Presumably, the jurors have had adequate experience to determine whether it is possible to hide a package the size of a quarter between inner and outer garments.

INSTRUCTIONAL ERROR

Defendant contends that the trial court failed to instruct as to three elements of possession under section 4573.6: knowledge of the presence of the substance; knowledge of its nature; and presence of a usable amount. The People contend that the latter two are not elements of 4573.6 possession and, alternatively, that any erroneous omission was harmless.

A. ORDER OF INSTRUCTIONS

While searching the record to determine if there has been instructional error, we noted a problem regarding instructional sequence. Since it is inextricably entwined in the contention that there was instructional error for failure to instruct on the issues of knowledge and of usable quantity, we deem it appropriate to address the issue. (People v. Renchie (1962) 201 Cal.App.2d 1, 7, 19 Cal.Rptr. 734; People v. Wilson, supra, 258 Cal.App.2d 578, 585, 65 Cal.Rptr. 839; Stevenson v. Turner (1979) 94 Cal.App.3d 315, 318-319, 156 Cal.Rptr. 499.)

Penal Code section 4573.6, in pertinent part, provides:

"Any person who knowingly has in his possession in ... any county ... road camp, ... any narcotics, ... without being authorized to so possess the same by the rules of the ... camp, ... or by the specific authorization of the ... person in charge of the ... camp, ... is guilty of a felony." (Emphasis added.)

The statute was enacted in 1949. In 1970 it was amended by deleting the word "having" and inserting in its place the words "who knowingly has" as emphasized above.

The trial court instructed the jury that "Every person who has in his possession without authorization a controlled substance while in the Tulare County Correctional Center is guilty of a felony," and "Heroin is a controlled substance."

Earlier, the trial court instructed in the language of CALJIC Nos. 1.21 ("KNOWINGLY" DEFINED) and then 1.24 ("POSSESSION" DEFINED) as set forth in the margin. ¹

CALJIC Nos. 1.21 and 1.24 were separated by no less than 11 instructions from the instructions which defined the crime. After CALJIC No. 1.21 ("Knowingly" Defined) and CALJIC No. 1.24 ("Possession" Defined), there follows: CALJIC No. 2.00 (Direct and Circumstantial Evidence Inferences); CALJIC No. 2.01 (Sufficiency of Circumstantial Evidence Generally); CALJIC No. 2.20 (Credibility of witness); CALJIC No. 2.21 (Witness Willfully False Discrepancies in Testimony); CALJIC No. 2.22 (Weighing Conflicting Testimony); CALJIC No. 2.27 (Sufficiency of Testimony of One Witness); CALJIC No. 2.80 (Expert Testimony); CALJIC No. 2.90 (Presumption of Innocence Reasonable Doubt Burden of Proof); CALJIC No. 3.30 (Concurrence of Act and General Criminal Intent); Defendant's Requested Jury Instruction No. 2; and CALJIC No. 3.34 (How Intent Is Shown). Then followed the two instructions which attempted to define the crime (set out above).

The general rule is that the order in which instructions are given is immaterial. (18 Cal.Jur.3d, Criminal Law, § 876, p. 587; 23a C.J.S. Criminal Law § 1302, p. 737.) There has even been the suggestion that whether the first or last instruction makes the greater impression " 'borders on the realm of psychology wherein the law seems loath to enter.' " (Ritchey v. Watson (1928) 204 Cal. 387, 390, 268 P. 345, quoting Grillich v. Weinshenk (1923) 64 Cal.App. 474, 481, 222 P. 160.)

"The sequence in which instructions are given is a matter in the sound discretion of the trial court, and a very strong showing of prejudice must be made before a reviewing court will hold its discretion abused." (Nungaray v. Pleasant Valley Etc. Assn. (1956) 142 Cal.App.2d 653, 661-662, 300 P.2d 285.) But see People v. Ford (1964) 60 Cal.2d 772, 793, 36 Cal.Rptr. 620, 388 P.2d 892, where the court stated:

"Defendant's remaining contentions on the nonhomicide counts have been examined and are so devoid of merit as to require no particular discussion. For example, he contends that in a number of instances instructions that were otherwise admittedly correct were given in such a sequence as to mislead or confuse the jury; but a reading of all the instructions demonstrates that no such confusion was reasonably possible...."

This is a recognition of the obvious fact that the sequence of instructions can, in some instances, result in confusion. However, no guidance is given as to when such confusion is so serious as to mandate a reversal.

Chief Judge Devitt of the United States District Court, District of Minnesota, in an address entitled "Ten Practical Suggestions About Federal Jury Instructions" delivered at the Tenth Circuit Judicial Conference held July 9, 1965, as reported in 38 F.R.D. 75, 77, stated:

"7. Instructions Should be Given in Logical Sequence (P) Sometimes a judge's instructions sound like a talking crazy-quilt as he jumps from one subject to another and back again with utter abandon. This is most confusing to jurors. The instructions should be arranged in a logical sequence so that the whole will be intelligible to the jury. Symmetry is as necessary to legal exposition for easy...