People v. Berrigan CA5
F071795
| Cal. Ct. App. | Oct 5, 2016Background
- Police searched Berrigan’s Bakersfield home on April 9, 2014, and found two glass meth pipes, a plastic bag with 5.07 grams of crystalline meth, small Ziploc baggies, and digital scales; Berrigan admitted the items were his and said he “sells a little to make ends meet.”
- Officers returned August 21, 2014, and found Berrigan in the garage, where he discarded a prescription bottle containing 1.56 grams of meth; officers also found another digital scale with residue, more small baggies, a monitor displaying multiple surveillance cameras, and Berrigan’s cell phone containing text messages referencing $10/$20 amounts.
- A narcotics expert testified that typical meth street doses are ~0.10 g, that 5.07 g and 1.56 g corresponded to numerous doses, and that indicators of sales include quantity, scales, packaging, small-denomination currency, and cell phones; he opined both seizures were possessed for sale.
- Jury was instructed (using CALCRIM 3517 language) that they must acquit the greater offense before convicting of the lesser included offense; the trial court’s further verbal explanation of how to fill out verdict forms for greater and lesser offenses was confusing but unobjected to by defense counsel.
- Jury convicted Berrigan of two counts of possession for sale of methamphetamine and one misdemeanor possession of paraphernalia; he was sentenced to a local split term. On appeal he challenged alleged Kurtzman instructional error and related ineffective-assistance claim.
Issues
| Issue | Plaintiff's Argument (People) | Defendant's Argument (Berrigan) | Held |
|---|---|---|---|
| Whether the trial court committed Kurtzman error by instructing jury not to consider lesser included offense unless defendant was acquitted of greater offense | The instruction followed CALCRIM 3517 and properly limited conviction of lesser only after acquittal of greater; verdict-form explanation did not show juror confusion that denied consideration | Court’s verdict-form explanation told jurors not to consider the lesser unless they unanimously found not guilty of the greater, effectively barring consideration of the lesser and violating Kurtzman | No Kurtzman error; even if error, harmless because no basis for lesser and evidence of sale was overwhelming |
| Whether Berrigan forfeited the instructional claim by failing to object at trial | The claim was forfeited because defense made no trial objection and record shows no juror misunderstanding; moreover, lesser instruction not required on facts | Failure to object preserved a substantial-rights claim; appellate review should consider whether denial of consideration injured Berrigan | Forfeiture: the court concluded Berrigan forfeited the claim because he was not entitled to lesser-included instruction on the facts; alternatively, any error was harmless |
| Whether trial counsel was ineffective for failing to object to the instruction | Counsel’s performance was not deficient because no warranted lesser instruction and no prejudice occurred | Counsel was ineffective for not preserving error | Claim rejected: no prejudice and no Kurtzman error, so no ineffective assistance |
| Whether the evidence supported a lesser-included instruction (simple possession) | The People argued evidence (quantities, scales, packaging, texts, admission) supported possession for sale, so no basis for lesser instruction | Berrigan argued some indicia could be personal use and jurors should have been allowed to consider simple possession | Court held there was no factual basis to instruct on simple possession; evidence supported sale and was unrebutted |
Key Cases Cited
- People v. Kurtzman, 46 Cal.3d 322 (establishes jury must acquit greater before convicting of lesser-included offense)
- People v. Fields, 13 Cal.4th 289 (explaining Kurtzman and interplay of greater/lesser verdicts)
- People v. Carey, 41 Cal.4th 109 (substantial-rights review available despite failure to object)
- People v. Walker, 237 Cal.App.4th 111 (lesser-included instruction required only if some basis other than unexplained rejection of prosecution evidence exists)
- People v. Campbell, 233 Cal.App.4th 148 (failure to instruct on lesser included in noncapital case is state-law error subject to harmless-error analysis)
- Strickland v. Washington, 466 U.S. 668 (two-prong test for ineffective assistance of counsel)