People v. Spry
| Decision Date | 04 November 1997 |
| Docket Number | Nos. F024542,F027268,s. F024542 |
| Citation | 68 Cal.Rptr.2d 691,58 Cal.App.4th 1345 |
| Court | California Court of Appeals Court of Appeals |
| Parties | , 97 Cal. Daily Op. Serv. 8496, 97 Daily Journal D.A.R. 13,687 The PEOPLE, Plaintiff and Respondent, v. Matthew Vincent SPRY, Defendant and Appellant. In re Matthew Vincent SPRY on Habeas Corpus. |
Appellant was charged and convicted of possession of heroin. He relied on the defense that he lawfully possessed the heroin for the limited purpose of disposal, and the jury was instructed pursuant to CALJIC No. 12.06 concerning the elements of this defense. On appeal, he asserts the instruction failed to define the allocation and magnitude of the burden of proving this defense. Appellant also raises additional challenges to his conviction on appeal and through a petition for writ of habeas corpus.
In the published portion of this opinion, we will review CALJIC No. 12.06 and conclude the jury was not correctly instructed as to the magnitude of appellant's burden of proving his affirmative defense, and reverse his conviction. In the nonpublished portion of this opinion, we will address appellant's remaining issues for the guidance of the trial court on remand.
On September 28, 1994, an information was filed in Fresno County Superior Court charging appellant Matthew Vincent Spry with count I, possession of heroin, a felony (Health & Saf.Code, § 11350), and count II, being under the influence of a controlled substance, a misdemeanor (Health & Saf.Code, § 11550, subd. (a)). It was also alleged that appellant suffered three prior serious and/or violent felony convictions within the meaning of the three strikes law, and served two prior prison terms pursuant to Penal Code section 667.5, subdivision (b). Appellant pleaded not guilty and denied the special allegations.
On March 15, 1995, appellant's jury trial began. The court granted the prosecution's motion to file a first amended information, which repeated the original charges and corrected the dates of the prior conviction allegations. Appellant again pleaded not guilty and denied the special allegations. The court granted appellant's motion to bifurcate the matter of the prior convictions. On May 22, 1995, the jury found appellant guilty of count II, being under the influence of a controlled substance, a misdemeanor. The jury was deadlocked and unable to reach a verdict as to count I, felony possession of heroin. The court declared a mistrial as to count I, and selected another trial date. The court deferred the matter of the bifurcated hearing on the prior convictions for the second trial.
On June 27, 1995, appellant's second trial was scheduled to begin. Appellant moved for diversion pursuant to Penal Code section 1000. The motion was denied, and the matter reassigned for trial.
On July 5, 1995, appellant's second jury trial began as to count I, felony possession of heroin. The court granted appellant's motion to bifurcate the matter of the prior convictions. Appellant waived his right to a jury trial on the prior convictions. On July 12, 1995, the jury found appellant guilty of count I, felony possession of heroin.
On July 13, 1995, the court conducted the bifurcated hearing on the prior convictions. The court granted the prosecution's motion to amend the information and correct the allegations pertaining to the alleged second prior conviction. The court ordered the prosecution to file a second amended information reflecting the correction. The court found that appellant had suffered three prior serious and/or violent felony convictions within the meaning of the three strikes law, and had served two prior prison terms pursuant to section 667.5, subdivision (b).
On July 25, 1995, the court granted appellant's motion to release the names and addresses of the jurors.
On August 23, 1995, appellant filed a motion to strike one of the prior convictions, alleging that it had been found unconstitutional in an earlier proceeding. On August 29, 1995, appellant filed a motion for new trial, alleging the jurors were not correctly instructed concerning his trial defense. The prosecution filed opposition to appellant's motions to strike and for new trial.
On September 8, 1995, a hearing was held on appellant's motions to strike and for new trial. The motions were denied. The court sentenced appellant to the third strike term of 25 years to life as to count I, with a consecutive term of 90 days for count II. The court also imposed a consecutive term of two years for the two prior prison term enhancements.
On September 12, 1995, the prosecution filed the second amended information with the corrected date and offense for the alleged second prior conviction allegations.
On September 12, 1995, appellant filed a timely notice of appeal.
On December 4, 1996, appellant filed a petition for writ of habeas corpus, and requested consolidation of the writ and appeal.
On December 9, 1996, this court granted appellant's motion and consolidated the writ petition and the pending appeal. On January 10, 1997, respondent filed an informal response. On January 21, 1997, appellant filed a reply to respondent's informal response.
On June 26, 1994, at approximately 4 p.m., the Fresno Fire Department paramedics responded to a dispatch of a narcotics overdose at a residence in Fresno. Captain Harold Nilsen and the paramedic team entered the residence and encountered appellant Matthew Spry. Appellant directed Captain Nilsen to the hallway where he discovered an individual, later identified as John Allen, unconscious on the bedroom floor. Captain Nilsen determined Allen had a pulse and heartbeat, he was not breathing, and his symptoms were consistent with an overdose of heroin. The paramedics administered an intravenous medication to counteract the depressant effect of heroin on Allen's respiratory system, and Allen regained consciousness. Allen became very agitated and tried to remove the intravenous line from his arm. Captain Nilsen explained to Allen that he needed further treatment at the hospital, but Allen refused to cooperate and resisted the paramedics as they placed him on the ambulance gurney. Captain Nilsen testified appellant interceded, asked them to leave Allen alone, and said Allen would be okay. Captain Nilsen advised appellant to remain cool and they would care for Allen. Captain Nilsen could not recall whether appellant said anything about the type of narcotics used by Allen or the circumstances surrounding the overdose.
Fresno Police Department Officer John McCrery also responded to the dispatch, and arrived at the residence after the paramedic unit. Officer McCrery observed the paramedics working on Mr. Allen in the bedroom while appellant watched. The paramedics told McCrery that Allen had overdosed on narcotics. Officer McCrery spoke with appellant in the living room, asked about the circumstances of Allen's overdose, and whether Allen used drugs. Appellant stated he had been drinking beer with Mr. Allen approximately 30 minutes before the incident. Mr. Allen went into the bathroom, closed the door, and stayed inside for five to ten minutes. Mr. Allen walked out of the bathroom, went into the bedroom and collapsed. Appellant stated he called 911 and administered CPR while he waited for the paramedics. Appellant stated he did not know what Allen used because the bathroom door remained closed the entire time he was inside.
Officer McCrery testified he did not detect the odor of alcohol from appellant while they spoke. Officer McCrery testified appellant was functioning fairly well, but his pupils were constricted, consistent with the use of an opiate. Officer McCrery decided to fully evaluate appellant to determine if he was under the influence of narcotics.
Officer McCrery never had an opportunity to evaluate appellant because the paramedics needed his assistance to restrain Mr. Allen as he continued to resist their efforts to take him to the hospital. Officer McCrery's partner remained with appellant while McCrery called for a backup unit. As McCrery assisted the paramedics, he noticed Mr. Allen had a new injection site on his arm, which was still open and surrounded by "[f]resh blood that was not real dried up."
Officer Joseph Gomez responded to the backup call and spoke with appellant in the living room. Appellant stated that the residence was his house, and his friend overdosed on heroin in the bathroom. Appellant also stated he called 911 after his friend collapsed. Officer Gomez asked appellant if he used drugs. Appellant replied that he did not. Officer Gomez asked appellant if he used heroin. Appellant replied no. Officer Gomez did not detect the odor of alcohol from appellant. Officer Gomez testified appellant's pupils were extremely small, he spoke in a slow manner, he seemed very relaxed, and his condition was consistent with being under the influence of opiates or heroin.
Officer Gomez placed appellant under arrest for being under the influence of narcotics, searched him and discovered a child's small toy balloon in appellant's right front pants pocket. As Gomez examined the balloon, appellant stated, "It's black tar," and it was the "same stuff" Allen overdosed on. Gomez opened the balloon and removed a small piece of black tar heroin. Gomez examined appellant's body for recent injection sites, and appellant stated, "you're not going to find anything because I ate it," referring to the heroin. Gomez did not find any injection sites on appellan...
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