People v. McCloudPeople v. McCloud
The prosecution charged McCloud with felony possession for sale for the 2012 incident, along with three felonies based on firearm possession. For the 2013 incident, the prosecution charged him with felony transportation for sale (
McCloud raises three arguments on appeal. He contends we must reverse his transportation for sale conviction because the trial court failed to instruct the jury that "transportation" means for the purpose of sale following the 2014 amendment to Health and Safety Code
FACTUAL BACKGROUND
A. The 2012 Incident
In September 2012, a Riverside County gang task force arrived at probationer R.F.'s residence to perform a probation search. McCloud was standing in the driveway of the home but ran inside and turned off the porch light when he saw the patrol cars approaching. Upon entering the home, the officers encountered four men playing dominoes in the kitchen. One of the officers recognized R.F. and another man hе knew to be a gang member, but McCloud did not appear to be among the group.
At this point, the officers began a protective sweep of the house, ordering everyone to come out of the rooms. McCloud's cousin, Antonio, came out of McCloud's bedroom. McCloud was in the bathroom and remained there for about thirty seconds and a few more commands before flushing the toilet and emerging. The officers swept through McCloud's room to see if anyone else was inside, and in so doing saw what appeared to be сrack cocaine and drug paraphernalia in plain view on a table.
The officers requested and obtained McCloud's consent to more thoroughly search his room. In total, they found 0.9 grams of crack cocaine; a digital scale; a ceramic plate; pills; a Ziploc bag containing about 100 smaller plastic bags; a marijuana grinder and pipe; an operable .22 revolver loaded with six live rounds of ammunition under the mattress; and over $750 in cash, in denominations of $20 or less, stashed in various places near the cocaine. Half of the cocaine lay on the ceramic plate and the other half was packaged inside two plastic baggies. There was cocaine dust on the scale and on a razor blade sitting on the plate.
A cell phone lying in the hallway just outside McCloud's room contained text messages addressed to him. One of the messages was from earlier that day and said, "Can you bring a dime, please?" McCloud had responded, "No. Don't have any."
At trial, a deputy who was part of the search team testified as the prosecution's drug expert. He believed McCloud intended to sell the cocaine found in his bedroom. He based his opinion on the fact McCloud did not appear to be under the influence during the search and was not in possession of a pipe or other device for ingesting the cocaine. McCloud was, on the other hand, in possession of several indicia of sale. The ceramic plate and razor blade would be used to cut the rocks into sellable, smaller amounts that
The expert also said when he searched the bathroom, he noticed the plunger was wet, indicating it had been recently used. In his experience serving search warrants on suspected drug dealers, they often will try to flush drugs down the toilet as soon as the poliсe arrive. He believed this may have been why McCloud was in the bathroom flushing the toilet when the officers began the sweep.
B. The 2013 Incident
In February 2013, while out on bail for the charges stemming from the 2012 search, McCloud initially resisted a pat down search during which officers found a pill bottle containing marijuana in his pocket. On the passenger seat of the car he had been driving, the officers found a pill bottle containing 1.4 grams of crack cocaine, a stun gun, $45 in cash, and two cell phones.
According to the prosecution's drug expert, the circumstаntial evidence of intent was not as strong as it was in the 2012 incident, and he could not be sure whether McCloud planned to sell or use the cocaine the officers found in his car. In response to the prosecutor's question whether McCloud possessed the 1.4 grams of cocaine "for purposes of sale," the expert answered, "It could be and it could not be." He explained: "[N]ormally ... to prove that it's for sales we want to see things like packaging ... We want to see a pay-owe sheet. Someone could conсeivably possess [1.4 grams] of cocaine for their personal use." The expert said if it had been his case, he would have investigated McCloud's cell phone to see if it contained call logs indicative of dealing. As for the cash McCloud was carrying, the expert viewed $45 as a neutral amount, noting, "He's got money. Everybody has money, but it's hard to say one way or the other on that."
On cross-examination, defense counsel attempted to elicit a more definite opinion on McCloud's intent. The following exchange occurred:
"Q. Deputy Williams, he could have been possessing it for sales, or he could not have been possessing it for sales, really is what you testified to?
A. Yes, sir.
Q. So he might have been selling drugs, or he might have ... possessed those for personal use, you just don't know?
A. Without more facts, no, sir, I couldn't really say positively one way or the other.
Q. Okay. So he might have been, you just don't know?
A. That's correct."
On redirect, the prosecutor asked whether the expert's conclusion changed if he considered the contraband found in McCloud's bedroom during the 2012 search. The expert responded, "Based
C. Defense Evidence
McCloud's cousin Antonio had been arrested on the evening of the 2012 search and pled guilty to possession of a controlled substance while armed with a firearm. At McCloud's trial, Antonio said he used to sell drugs to make еnds meet. He said on the day of the 2012 search he had sold McCloud three rocks of cocaine for $50. McCloud did not sell drugs-he had a job working as a "sign twirler"-but he had a drug problem and smoked crack at least once a day. McCloud would smoke "primos," a modified type of "blunt"
D. The Verdict
The jury found McCloud guilty of possession for sale (
II
DISCUSSION
A. Transportation for Sale Instruction
The parties correctly agree the trial court failed to instruct the jury with an essential element of transportation for sale (
1. Additional factual background
The prosecution charged McCloud with the offense in February 2013. At the time, a defendant could be guilty of violating Health and Safety Code
Effective January 2014, the Legislature amended the statute by adding a new subdivision that states, "[f]or purposes of this section, 'transports' means to transport for sale." (
McCloud's trial began in November 2015. For the transportation for sale charge, the trial court instructed the jury with a pre-amendment version of CALCRIM No. 2300 that did not contain the "for sale" additions:
"The defendant is charged ... with selling/furnishing/administering/giving away/transporting/importing cocaine base, a controlled substance in violation of [ Health & Safety Code section] 11352.
"To prove that the defendant is guilty of this crime, the People must prove that:
"1. The defendant transported a controlled substance;
"2. The defendant knew of its presence;
"3. The defendant knew of the substance's nature or character as a cоntrolled substance;
"4. The controlled substance was cocaine base;
"AND
"5. The controlled substance was in a usable amount. [¶] ... [¶]
"A person transports something if he or she carries or moves it from one location to another, even if the distance is short."
During closing argument, the prosecutor argued McCloud was guilty of the offense because he "transported for sale a controlled substance, [1.4 grams] of crack cocaine." As to the transportation element, the prosecutor said, "[A] person transports something if he carries or moves it from one location to аnother, even if the distance is short. So somebody might be thinking transportation. Okay. That means he had to transport it from Mexico to California. No. Any short distance whatsoever is sufficient. Any movement. [¶] ... [¶] So the fact that [McCloud] was in the vehicle driving with that on the passenger seat constitutes transportation."
Defense counsel argued McCloud was a drug addict who intended to use, not sell, the cocaine the police found in his car. He pointed out the lack of packaging and paraphernalia indicative of sales and the fаct the drug expert could not even be sure of McCloud's intent: "[The drug expert] himself testified that based on the fact that there were no baggies, there were no scales, there were no pay-owe sheets,
2. Analysis
Health and Safety Code
Omission of an element of an offense is not reversible per se but rather is subject to the harmless-beyond-a-reasonable-doubt standard articulated in Chapman v. California (1967)
"Our task, then, is to determine 'whether the record contains evidence that could rationally lead to a contrary finding with respect to the omitted element.' " ( Mil , supra ,
Having reviewed the record, we conclude it contains such evidence. First of all, and as the prosecution's drug expert pointed out, McCloud was in possession of none of the typical indicia of sales. The cocaine was in a single container (the pill bottle)-McCloud had no baggies or other packaging, no scale, no pay-owe records, and we do not know whether his phone contained any evidence of sales. Additionally, McCloud's cousin testified McCloud was a drug addict who smoked crack on a daily basis, and that his preferred method of
Two recent California Supreme Court cases inform our analysis. In Merritt , the Court found the trial court's failure to instruct the jury with any of the
The prejudice analysis came out differently in Mil . There, the defendant was convicted of first degree murder with robbery-murder and burglary-murder special circumstances under an aiding and аbetting theory of liability. ( Mil , supra ,
The Supreme Court concluded the appellate court had used the "less demanding" substantial evidence standard and instead should have looked for evidence to support an inference the defendant was not subjectively aware of the risk of death when he participated in the burglary-robbery. ( Mil , supra , 53 Cal.4th at pp. 417-418,
Based on the fact the record contained some evidence to support the defendant's claim he had no subjective knowledge of the risk of death, the Court concluded "a rational juror, given proper instructions, could have had a reasonable doubt whether defendant was subjectively aware of a grave risk of death when he participated in this burglary and robbery." ( Mil , supra ,
Reviewing the trial record under the overwhelming evidence standard articulated in Mil , we find our case to be more like Mil than Merritt . Unlike Merritt , the evidence supporting the omitted element (intent to sell) was not overwhelming, the event was not recorded, and defense counsel did not stipulate the evidence satisfied the omitted element. Rather, the prosecution and the defense adduced conflicting evidence on the issue, as was the case in Mil .
The People argue the evidence of intent to sell was overwhelming because the expert opined McCloud intended to sell the cocaine and because McCloud had more cocaine on him that evening than he did in 2012. We see two problems with this argument. First of all, the 2012 and 2013 incidents are distinct, and it would be improper for the jury to assume an intent to sell for the transportation charge based on the strength of the evidence supporting the possession charge. Second, the People overstate the expert's opinion on McCloud's intent. The difference between 0.9 (thе amount McCloud possessed in 2012) and 1.4 grams (the amount he had in 2013) is relatively minor, and the expert himself said a person "could conceivably possess ... [1.4 grams] of cocaine for their personal use." Contrary to the People's characterization, we find the expert was ultimately unable to commit to the sales theory. He began his testimony by stating he could not be sure about intent because McCloud did not possess the typical indicia of sale, and the closest he came to expressing a definite opinion was to say he was "leaning" towards intent to sell based on the presence of the stun gun and the two cell phones. At multiple points before and after that statement, however, he confirmed he was unsure one way or the other.
We find the expert's refusal to express a firm opinion on intent crucial to our prejudice analysis. If the very person trained to discern the difference
We also cannot conclude the prosecutor's reference to the offense as "transportation for sale" during closing argument rendered the error harmless. In certain circumstances, the "possibility of confusion" occasioned by an instructional error may be "diminished by the parties' closing arguments." (
Given the state of the evidence on intent to sell, we hold McCloud was prejudiced by the incomplete instruction and reverse his transportation for sale conviction.
B.-C.
III
DISPOSITION
We reverse the judgment as to the transportation for sale count, affirm the judgment in all other respects, and remand to the trial court for resentencing.
We concur:
MILLER, Acting P. J.
CODRINGTON, J.
Notes
The court deemed transportation for sale the principal count and imposed an enhanced sentence of 25 years to life as a result of the super strikes (
It is unclear from the officers' testimony whether the cell phones were in McCloud's pocket or his car, but the point is not material to our analysis.
See footnote *, ante.