People v. Taylor
| Decision Date | 02 May 2000 |
| Docket Number | No. B128957.,B128957. |
| Court | California Court of Appeals Court of Appeals |
| Parties | The PEOPLE, Plaintiff and Respondent, v. Frederick R. TAYLOR, Defendant and Appellant. |
Daniel G. Koryn, under appointment by the Court of Appeal, San Diego, for Defendant and Appellant.
Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Carol Wendelin Pollack, Senior Assistant Attorney General, Kenneth C. Byrne, Supervising Deputy Attorney General, Jaime L. Fuster, Deputy Attorney General, for Plaintiff and Respondent.
Defendant Frederick Taylor was convicted of possessing a rock of cocaine weighing 0.04 grams along with a pipe to smoke it in. He was sentenced to 25 years to life in state prison under the "three strikes" law (Pen.Code, § 667, subds.(b)(i)).1 We affirm the conviction but vacate the sentence and remand the cause to the trial court for reconsideration of whether to dismiss one or more of Taylor's prior strike allegations under section 1385.
Police officers arrested Taylor after they found him in possession of a rock-like substance, which they suspected contained cocaine, and a glass pipe commonly used for smoking "rock cocaine." An analysis of the rock itself showed it weighed 0.04 grams and contained cocaine but the criminalist conducting the analysis did not determine the amount of actual cocaine contained in the rock.
Taylor represented himself at trial.
The arresting officers testified they were certified as drug recognition experts who had made hundreds of arrests for possession and sale of drugs. In their expert opinions the rock found in Taylor's possession was of "very common size and amount for personal use" and "enough to get high off of." In response to a question from the jury, the trial court instructed:
The trial court instructed the jury under CALJIC No. 17.41.1 "the integrity of a trial requires that jurors, at all times during their deliberations, conduct themselves as required by these instructions" and to report to the court any juror who expresses an intent to disregard the law.
A jury convicted Taylor of possessing a controlled substance and a smoking device. (Health & Saf.Code, §§ 11350, subd. (a), 11364.) Taylor waived his right to a jury trial on allegations of prior convictions and the trial court found he had suffered convictions for robbery and assault with a deadly weapon both of which constitute serious or violent felonies for purposes of the "three strikes" law. Before and after trial, Taylor requested the court to dismiss one or both of the "strike" allegations. These requests were denied and he was sentenced to 25 years to life for possession of a controlled substance and a concurrent term of 180 days for possession of the smoking device.
The trial court correctly instructed the jury under CALJIC No. 12.00 that in order to establish the offense of possession of a controlled substance in violation of Health & Safety Code section 11350, subdivision (a) the People had to prove "the substance was in an amount sufficient to be used as a controlled substance."
On the second day of deliberations, the jury submitted these questions to the trial court: "What is the amount (weight) required by Code to be a crime? Is the minimum amount stated? After conferring with the parties, the court responded: (Emphasis added.) Taylor argues the italicized portion of the trial court's response was erroneous because in People v. Rubacalba (1993) 6 Cal.4th 62, 66, 23 Cal. Rptr.2d 628, 859 P.2d 708, the court held the "useable amount" rule prohibits conviction "when the substance possessed simply cannot be used, such as when it is a blackened residue or a useless trace." The trial court's response, he maintains, allowed the jury to convict him of possession even if the amount he possessed was a mere "useless trace."
The People initially argue Taylor waived any error in the trial court's response by failing to object at the time the court was considering its response. We reject this argument. Because the trial court's instruction on the "useable amount" element affected Taylor's substantial rights, no objection was necessary. (§ 1259.) Furthermore, Taylor did object to the trial court's response, arguing it did not adequately address the jury's concern which he correctly perceived to be whether such a small amount as 0.04 grams could constitute an offense. Taylor suggested the jury should be instructed the minimum amount of cocaine necessary to constitute a crime is an amount sufficient to affect the central nervous system or produce a narcotic effect. Although the trial court correctly rejected such an instruction (People v. Piper (1971) 19 Cal.App.3d 248, 250, 96 Cal.Rptr. 643), Taylor did enough to preserve the court's response as an issue on appeal.
We agree with the People, however, the trial court's response was not erroneous. Telling the jurors "the amount required by [the law] to be a crime" is "an amount sufficient to be used as a controlled substance" is equivalent to telling them possession of an amount that is "useless" is not a crime. While it might have been better to respond in the language of Rubacalba, supra, we find the trial court's response adequate and not misleading.
Even if the trial court's response to the jury's question could be viewed as technically incorrect, the error was harmless in this case. In People v. Piper, supra, the court held a controlled substance is "useable" if it could be used in any manner "customarily employed" by users of the substance. (19 Cal.App.3d at p. 250, 96 Cal.Rptr. 643.) Here, both police officers testified, based on their experience making hundreds of drug arrests, the rock Taylor possessed was similar to rocks commonly used for personal use and "enough to get high off of," thereby satisfying the useable amount test of Piper as well as the "narcotic effect" test urged by Taylor.
The trial court instructed the jury under a recently developed CALJIC instruction (CALJIC No. 17.41.1, quoted below) which appears to be intended, at least in part, to stamp out the centuries-old practice known as "jury nullification" in which jurors refuse to apply a law they perceive to be unjust or to produce an unfair result and instead render a verdict consistent with their collective conscience. (See 2 LaFave & Israel, Criminal Procedure (1984) Right to Jury Trial, § 21.1(g), pp. 700-702; Gunther, The Jury in America (1988) Jury Justice, p. 219 ff.)
In an 1893 case, our Supreme Court described jury nullification as a "naked power" possessed by the jury (People v. Lem You (1893) 97 Cal. 224, 228, 32 P. 11) but it is more than that. The exercise of a "naked power" normally can be reversed or corrected or at least punished. In criminal cases, however, trial courts may not enter a judgment of conviction after acquittal by a jury or grant the prosecution a new trial; nor can the prosecution seek appellate reversal of an acquittal; and, by common law rule, jurors who engage in nullification are not subject to punishment. (Bushell's Case (K.B.1670) 124 Eng. Rep. 1006, 1012-1016; see Clark v. United States (1933) 289 U.S. 1, 17-18, 53 S.Ct. 465, 77 L.Ed. 993, In re Cochran (1924) 237 N.Y. 336,143 N.E. 212, 212-213, Bays v. Petan Co. (D.Nev.1982) 94 F.R.D. 587, 591.) Therefore, rather than a mere "naked power" to ignore the law, jury nullification is more in the nature of a prerogative not to apply politically ordained criminal sanctions which conflict with the community's conscience. (United States v. Dougherty (D.C.Cir.1972) 473 F.2d 1113, 1131.) As previously noted, this prerogative is deeply embedded in Anglo-American jurisprudence.2 (Conrad, Jury Nullification (1998) pp. 13-60, a Cato Institute book.)
CALJIC No. 17.41.1 instructs the jury, in relevant part:
3
Up until now, courts have followed a "don't ask—don't tell" policy with respect to jury nullification. Criminal juries are not asked to explain their verdicts. Indeed, asking a criminal jury to explain the reasoning behind its verdict has been condemned as repugnant to the constitutional guarantees of due process and trial by jury. (United States v. Spock (1st Cir. 1969) 416 F.2d 165, 180-183.)4 On the other hand, no case in California or any other jurisdiction so far as we know has held a trial court must instruct a jury it has the power of nullification. (People v. Sanchez (1997) 58 Cal.App.4th 1435, 1444-1445, 69 Cal.Rptr.2d 16.)
Through this policy, courts have managed to balance two fundamental but competing principles: juries ought to follow the law5 but juries should be able to protect defendants from oppressive prosecutions.6 (See Conrad, supra, pp. 137-138, 287, 300.) Thus, courts criticize jury nullification as "civil disobedience" (People v. Dillon (1983) 34 Cal.3d 441, 487, fn. 39, 194 Cal.Rptr. 390, 668 P.2d 697) and "abuse of power" (see People v. Gottman (1976) 64 Cal.App.3d 775, 780, 134...
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