People v. Guiton

• Decision Date: 18 March 1993
• Docket Number: No. S026003,S026003
• Citation: 4 Cal.4th 1116,17 Cal.Rptr.2d 365,847 P.2d 45
• Parties: , 847 P.2d 45 The PEOPLE, Plaintiff and Respondent, v. Ronald GUITON, Defendant and Appellant.
• Court: California Supreme Court

Page 365

17 Cal.Rptr.2d 365

4 Cal.4th 1116, 847 P.2d 45

The PEOPLE, Plaintiff and Respondent, v. Ronald GUITON, Defendant and Appellant.

No. S026003.

Supreme Court of California,

In Bank.

March 18, 1993.

Kathleen Bryan, Forrest Falls, under appointment by the Supreme Court, for defendant and appellant.

Fern M. Laethem, State Public Defender, and Philip M. Brooks, Deputy State Public Defender, as amici curiae on behalf of defendant and appellant.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Harley D. Mayfield and Gary W. Schons, Asst. Attys. Gen., Janelle B. Davis, Yvonne H. Behart, Frederick R. Millar, Jr., Robert M. Foster and Pamela A. Ratner, Deputy Attys. Gen., for plaintiff and respondent.

ARABIAN, Justice.

After hearing the evidence, the jury in this case was allowed to convict defendant, Ronald Guiton, of a felony if it found he either sold or transported cocaine on the occasion in question. There was insufficient evidence to support a finding that he sold cocaine. Because of this deficiency, the Court of Appeal reversed the conviction. We are asked to decide whether the reversal was proper where sufficient evidence existed that defendant transported cocaine. That question requires examination of two cases that reached different results: our decision in People v. Green (1980) 27 Cal.3d 1, 164 Cal.Rptr. 1, 609 P.2d 468 (Green ) and the recent United States Supreme Court decision of Griffin v. United States (1991) 502 U.S. 46, 112 S.Ct. 466, 116 L.Ed.2d 371 (Griffin ).

I. FACTS

During the morning of January 3, 1990, an undercover police officer, watching through the window of a second-story apartment in Riverside, observed defendant speaking with other men outside the gates of the apartment complex. At one point, defendant said, "Here, hold this," and handed a clear plastic bag to another person, later identified as Eddie Lee. The bag appeared to contain a white lumpy substance. Lee placed the bag into his right front pants pocket. Defendant walked out of sight through the apartment complex entrance.

A few minutes later, a white automobile pulled up to the curb in front of the apartment complex. The driver got out of the car and approached Lee. The driver and Lee spoke. Their hands may have been moving, but the officer could not see for sure. The driver returned to the white car with his right hand in a closed fistlike position. The officer could not see defendant while the car was present.

A short time after the white car left, defendant emerged into view, and approached Lee and the other men. Lee handed something to defendant, which defendant placed into his right front pants pocket. The men then entered another car parked in front of the apartment complex, and drove away. Lee was the driver, and defendant was in the front passenger seat. The police stopped and searched the car.

Near defendant's feet were found two plastic bags containing rock cocaine and a small bag of marijuana. A search of defendant's person revealed $490 in cash, a pager, and some marijuana.

Defendant was charged in count one with selling or transporting cocaine (Health & Saf.Code, § 11352), and in count two with possession of cocaine for sale (Health & Saf.Code, § 11351). There were also certain enhancement allegations. A jury convicted defendant of both counts; thereafter, the court found the enhancement allegations true. Defendant was sentenced to state prison for a total of seven years.

The Court of Appeal affirmed the conviction on count two, but reversed the conviction on count one and remanded the matter for resentencing. It found that, although the jury was permitted to convict defendant of that count on either of two grounds--that he sold or transported the cocaine--there was insufficient evidence to support a finding that he sold cocaine. As the court explained, "Here, the People would presumably argue that the defendant sold cocaine to the driver of the white car. But to reach that conclusion, we must be able to find, from the evidence, that Lee is the agent of the defendant, that Lee sold something to the driver, and that the thing sold to the driver was cocaine. Instead, each of those steps requires speculation. For instance, there is no evidence that that driver bought anything. Even if he did, there is no evidence of what he bought, since that car was apparently never stopped. We find that, as a matter of law, this evidence is insufficient to support the prosecution's theory that the defendant sold cocaine."

The court also found that it could not determine from the record upon which basis the jury verdict rested--the valid one of transporting cocaine or the invalid one of selling cocaine--and therefore concluded that our decision in Green, supra, 27 Cal.3d 1, 164 Cal.Rptr. 1, 609 P.2d 468, compelled reversal. We granted review.

II. DISCUSSION

A. Introduction

The Attorney General does not contend that the evidence was sufficient to support a conviction on the theory that defendant sold cocaine. Rather, he argues that count one should be affirmed because the alternate ground--transportation of cocaine--was supported by substantial evidence. He relies primarily on Griffin, supra, 502 U.S. 46, 112 S.Ct. 466, 116 L.Ed.2d 371. Defendant counters that Green, supra, 27 Cal.3d 1, 164 Cal.Rptr. 1, 609 P.2d 468, states the law in California, and that under its rule, reversal is required.

We conclude that the Green rule and the Griffin rule, properly construed, can and should be harmonized. Each applies to and governs a different situation. We adopt the Griffin rule when applicable in its domain, while reaffirming the Green rule (as construed herein) in its own. This case is governed by Griffin, not Green, and Griffin mandates affirmance. Hence, we reverse the Court of Appeal to the extent it reversed the conviction of count one.

B. The Green Rule

In People v. Green, supra, 27 Cal.3d 1, 164 Cal.Rptr. 1, 609 P.2d 468, defendant was convicted of first degree murder, robbery and kidnapping; special circumstance allegations that the murder was committed during the commission of robbery and kidnapping were found true. The portion of Green relevant to this issue involves the kidnapping count and the related kidnapping special circumstance. (Id. at pp. 62-74, 164 Cal.Rptr. 1, 609 P.2d 468.)

Upon reviewing the facts, we identified three distinct segments of asportation of the victim upon which the jury could have based its kidnapping verdict. (Green, supra, 27 Cal.3d at pp. 62-63, 164 Cal.Rptr. 1, 609 P.2d 468.) As to the first segment, we found that the trial court misinstructed the jury on the law. (Id. at pp. 63-64, 164 Cal.Rptr. 1, 609 P.2d 468.) As to the second, driving the victim to the murder scene, we found no error. The third occurred when the victim was forced to walk from the parked car to the spot where she was murdered. (Id. at pp. 63, 65, 164 Cal.Rptr. 1, 609 P.2d 468.) We found that the distance she walked, about 90 feet, "was insufficient as a matter of law to support" the kidnapping verdict. (Id. at p. 67, 164 Cal.Rptr. 1, 609 P.2d 468.)

Having found error as to two of the three possible segments of asportation, we next considered the consequences of the error. We could not determine from the record whether the jury based its verdict on either of the "legally insufficient segments of [the victim's] asportation...." (Green, supra, 27 Cal.3d at p. 67, 164 Cal.Rptr. 1, 609 P.2d 468.) The only instruction the court gave the jury regarding distance was that the asportation must be " 'for a substantial distance, that is, a distance more than slight or trivial.' " (Id. at p. 68, 164 Cal.Rptr. 1, 609 P.2d 468.) "No further guidance was provided" on this question. (Ibid.) Under the circumstances, we stated this general rule: "[W]hen the prosecution presents its case to the jury on alternate theories, some of which are legally correct and others legally incorrect, and the reviewing court cannot determine from the record on which theory the ensuing general verdict of guilt rested, the conviction cannot stand." (Id. at p. 69, 164 Cal.Rptr. 1, 609 P.2d 468.)

We noted that this rule "is perhaps most commonly invoked when the alternate theory is legally erroneous," that is, when one of the theories is infected by prejudicial error such as inadmissible evidence or incorrect instructions. (Green, supra, 27 Cal.3d at p. 69, 164 Cal.Rptr. 1, 609 P.2d 468.) However, in the portion of the discussion most pertinent to this case, we went on to state that the "same rule applies when the defect in the alternate theory is not legal but factual, i.e., when the reviewing court holds the evidence insufficient to support the conviction on that ground." (Id. at p. 70, 164 Cal.Rptr. 1, 609 P.2d 468.) We analyzed two cases, one involving alternate theories of first degree murder (People v. Anderson (1965) 63 Cal.2d 351, 46 Cal.Rptr. 763, 406 P.2d 43 [theories of premeditation, murder in the perpetration of mayhem, and murder by torture] ), and one involving alternate theories of second degree murder (People v. Houts (1978) 86 Cal.App.3d 1012, 150 Cal.Rptr. 589 [theories of malice and second degree felony murder committed in the course of an attempted sodomy] ). In both cases, one of the theories was not supported by sufficient evidence and the reviewing court could not determine from the record upon which theory the guilty verdicts were based. The convictions were therefore reversed. (Anderson, supra, 63 Cal.2d at pp. 359-360, 46 Cal.Rptr. 763, 406 P.2d 43; Houts, supra, 86 Cal.App.3d at pp. 1019-1022, 150 Cal.Rptr. 589.)

We concluded in Green, supra, 27 Cal.3d at page 71, 164 Cal.Rptr. 1, 609 P.2d 468, that "the record likewise contains evidence that could have led the jury to predicate its kidnaping verdict on the legally sufficient portion of [the victim's] asportation. But it also contains evidence that could have led the jury to rely instead on either of the legally insufficient...