Filed 12/24/19 P. v. Bessette CA4/1

Opinion following transfer from Supreme Court

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

OPINION ON TRANSFER FROM CALIFORNIA SUPREME COURT

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

DONALD JOSEPH BESSETTE,

Defendant and Appellant.

D069633

(Super. Ct. No. SCE352903)

APPEAL from a judgment of the Superior Court of San Diego County, Daniel G. Lamborn, Judge. Affirmed.

Lindsey M. Ball and Helen S. Irza, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Kathleen A. Kenealy, and Julie L. Garland, Assistant Attorneys General, Eric A. Swenson and Felicity Senoski, Deputy Attorneys General, for Plaintiff and Respondent.

A jury convicted Donald Joseph Bessette of transportation of controlled substances (Health & Saf. Code, § 11379; count 1) and possession for sale of a controlled substance (§ 11378; count 2). It found true as to count 2 that the substance contained 28.5 grams or more of methamphetamine (Pen. Code, § 1203.073, subd. (b)(2)). The court sentenced Bessette to a split four-year term on count 1, with two years to be served in local custody and two years under mandatory supervision. It imposed but stayed the count 2 sentence under Penal Code section 654. As conditions of mandatory supervision, the court required Bessette to submit his computers, recordable media and personal phone to a search as required by the probation officer or law enforcement officer; and, obtain his probation officer’s permission as to his residence and employment.

Bessette contends the trial court prejudicially erred by inadequately instructing the jury regarding constructive possession of narcotics by failing to address the affirmative defense of transitory possession, thus depriving him of his federal constitutional right to due process; and excluding testimony regarding an assault Bessette allegedly suffered shortly before trial. He maintains that the cumulative effect of these errors requires reversal. Bessette further contends the court erroneously imposed mandatory supervision requirements that he submit to an electronic search, and obtain his probation officer’s permission as to his residence and employment.

In our initial opinion in this case, we affirmed the judgment, including the challenged mandatory supervision condition. Bessette appealed to the California Supreme Court, which remanded the matter with instructions that we vacate our opinion and reconsider the cause in light of In Re Ricardo P. (2019) 7 Cal.5th 1113. We requested the parties provide supplemental briefing on the matter, and appellant filed a motion to augment with their supplemental brief. We grant appellant’s motion to augment the record to include a minute order from the superior court stating that Bessette’s mandatory supervision period was set to expire on December 8, 2019. Bessette concluded that as he will no longer be subject to the challenged condition, the issue he raised in his appeal is moot and no further action is necessary. We agree and revise our opinion to eliminate the discussion regarding the electronic search condition. In other respects, our opinion remains substantially unchanged and we affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Prosecution Case

San Diego County Sheriff’s Deputy Shawn Wray testified that on August 13, 2015, he was on patrol and saw a vehicle that had entered a crosswalk in violation of the Vehicle Code. He turned on his overhead lights and pulled over the vehicle. Both the driver, Raul Contreras, and the passenger, Bessette, appeared nervous. Deputy Wray observed Bessette three or four times move his hands from the top of his legs to the right side of his legs to an area between his right leg and the passenger side door, which was outside of Deputy Wray’s view. He cautioned Bessette to stop that movement, and Bessette complied. A backup deputy arrived and they discovered the vehicle was reported as stolen. They detained both occupants. They found a plastic bag containing 77.5 grams of methamphetamine by the passenger seat. Bessette had $520 in 20 dollar bills on his person. Contreras claimed ownership of all the personal property in the vehicle.

San Diego County Sheriff’s Deputy Rick Ellington, a narcotics expert, testified that the sheer quantity of methamphetamine found would indicate it was for sale; further,

the large amount of cash found would indicate that part of the methamphetamine was probably sold off. According to Deputy Ellington, the current price of methamphetamine was $40 to $50 per gram.

Defense Case

Craig Hodge testified he had hired Bessette to help him with a construction project and on July 31, 2015, he had paid Bessette $850 in twenty dollar bills plus a ten-dollar bill. Hodge testified he saw Bessette give his mother $300 of that money. Bessette testified that when Deputy Wray pulled over the vehicle, Contreras grabbed the bag of methamphetamine and tossed it over Bessette’s lap, telling him to put it somewhere. Bessette knew the bag contained methamphetamine and decided to brush it off to the side because he didn’t want to touch it. Bessette told the deputy that day that he did not know anything about the car, and that its contents belonged to Contreras. Bessette denied the methamphetamine belonged to him, or that he was trying to sell, transport, or hide it. When defense counsel asked Bessette why he had not immediately told Deputy Wray on the day of the incident that Contreras had tossed the drugs on Bessette’s lap, Bessette replied that he did not want to get himself or Contreras in trouble, or be labeled as a snitch or a rat. Bessette admitted he had a prior conviction for false impersonation.

DISCUSSION

I.

The Instructional Error Claim Fails

Although framed as two separate contentions in his appellate brief, Bessette essentially makes one claim of instructional error: that the court’s instruction regarding constructive possession violated his federal constitutional right to due process because it did not also sua sponte address the affirmative defense of transitory possession in the language of CALCRIM No. 2305. Bessette challenges the court’s instruction of the jury as to counts 1 and 2 regarding constructive possession with CALCRIM Nos. 2300 (transportation of controlled substance), 2302 (possession for sale of controlled substance) and 2304 (simple possession of controlled substance) with the following language: “A person does not have to actually hold or touch something to transport [or possess] it. It is enough if the person has control over it or the right to control it, either personally or through another person.” Bessette contends that neither his testimony nor that of Deputy Wray supported instruction with that clause. Bessette further contends he did not voluntarily and consciously possess the drugs; therefore, the court instructed the jury on an inadequate theory of guilt.

We review an assertion of instructional error de novo. (See People v. Shaw (2002) 97 Cal.App.4th 833, 838.) Whether the trial court should have given a “particular instruction in any particular case entails the resolution of a mixed question of law and fact,” which is “predominantly legal.” (People v. Waidla (2000) 22 Cal.4th 690, 733.) As such, it should be examined without deference. (Ibid.)

” ‘[O]ne may become criminally liable for possession for sale . . . of a controlled substance, based upon either actual or constructive possession of the substance,’ ” and

” ‘[c]onstructive possession exists where a defendant maintains some control or right to control contraband that is in the actual possession of another.’ ” (People v. Thomas (2012) 53 Cal.4th 1276, 1284.) Circumstantial evidence and any reasonable inferences drawn from it may establish possession. (People v. Martin (2001) 25 Cal.4th 1180, 1184; see In re Z.A. (2012) 207 Cal.App.4th 1401, 1427.)

In Armstrong v. Superior Court (1990) 217 Cal.App.3d 535, the court stated: “For purposes of drug transactions, the terms ‘control’ and ‘right to control’ are aspects of a single overriding inquiry into when the law may punish an individual who is exercising such a degree of intentional direction over contraband that he can be justifiably and fairly punished in the same manner as if he were indeed in actual physical possession of a controlled substance. Implementation of this policy necessarily encompasses a potentially wide variety of conduct in a wide variety of settings, all directed by such factors as the alleged offender’s capacity to direct the illicit goods, the manifestation of circumstances wherein it is reasonable to infer such capacity exists and the degree of direction being exercised by the accused over the contraband.” (Id. at p. 539.) The court in People v. Montero (2007) 155 Cal.App.4th 1170, at page 1176, held that CALCRIM No. 2302 correctly states the knowledge requirement and the possession requirement.

Bessette fails to persuade us the jury would have misinterpreted the intent required for a conviction. Based on the totality of the situation, we conclude the court did not abuse its discretion in instructing the jury with the correct statement of the law regarding constructive possession. Bessette’s defense was that Contreras threw the contraband in Bessette’s lap, and he immediately tossed it aside. The instruction was necessary to help the jury understand that Bessette could possess narcotics even when he might not hold it in his hands.

The trial court’s duty to instruct sua sponte on defenses was explained in People v. Breverman (1998) 19 Cal.4th 142: “In the case of defenses, . . . a sua sponte instructional duty arises ‘only if it appears that the defendant is relying on such a defense, or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant’s theory of the case.’ ” (Id. at p. 157.) The Breverman court thus directed that “when the trial court believes ‘there is substantial evidence that would support a defense inconsistent with that advanced by a defendant, the court should ascertain from the defendant whether he wishes instructions on the alternative theory.’ ” (Id. at p. 157.)

Bessette’s reliance on People v. Mijares (1971) 6 Cal.3d 415, in which the appellate court held that the trial court was required to instruct the jury sua sponte that

the defendant momentarily handled narcotics prior to abandoning it, is unavailing. (Id. at p. 423.) That court concluded that the defendant by throwing away the narcotics had demonstrated his intent to abandon the narcotics; the defendant even voluntarily waited for the police to arrive. (Id. at p. 422.) By contrast, the trial court here did not err by declining sua sponte to instruct the jury regarding transitory possession, because no substantial evidence supported that instruction. Although Bessette knew the

methamphetamine was in the vehicle, he testified he did not tell the deputy sheriffs about it. This indicates he did not intend to abandon the drugs. By his actions, the jury could reasonably conclude that he intended to conceal from law enforcement the fact the drugs

were in the vehicle.

If Bessette wanted to expand on the standard instruction or modify it to take into account his claim he did not voluntarily possess the methamphetamine, it was incumbent on him to request a pinpoint instruction. The defendant may request instructions that elaborate or “pinpoint” his or her theory of the case. (People v. Dennis (1998) 17 Cal.4th 468, 514; People v. San Nicolas (2004) 34 Cal.4th 614, 670.) The trial court is not required to create such a pinpoint instruction absent a request, and the instructions are adequate if they otherwise tell the jury all the applicable legal principles pertinent to a case. The trial court is not obligated to instruct the jury with the precise language requested by a party, even if the proposed instruction better states the rule. (People v. Williams (1980) 101 Cal.App.3d 711, 719.) A defendant’s failure to request a clarifying or amplifying instruction at trial forfeits any argument on appeal that the instruction given was ambiguous or incomplete. (People v. Cole (2004) 33 Cal.4th 1158, 1210.) Bessette’s reliance on People v. Barnes (1997) 57 Cal.App.4th 552 is unavailing.

In that case, a defendant sought to purchase cocaine but received a fake rock instead. When the defendant demanded that his seller give him real drugs, arriving police saw the seller throw the real cocaine on the defendant’s chest; the defendant never held it or controlled it. (Id. at p. 557.) By contrast, here, Bessette admitted he held the drugs, at least sufficiently to remove it from his person. But more importantly, he did not otherwise disclaim the drugs when police stopped the vehicle. Likewise, in Armstrong v. Superior Court, supra, 217 Cal.App.3d at page 538, the court pointed out that in the context of a drugs sale, when the seller was about to hand over the narcotics to the defendant, the undercover police moved in and arrested the defendant. Therefore, the defendant did not exercise the requisite control to establish constructive possession. (Id. at p. 540.) Such was not the case here.

When examining an ambiguous or purportedly erroneous instruction under the United States Constitution or California law, we inquire “whether there is a reasonable likelihood that the jury misconstrued or misapplied the words in violation” of such laws. (People v. Clair (1992) 2 Cal.4th 629, 663; People v. Young (2005) 34 Cal.4th 1149, 1202.) In deciding the issue, we consider the specific language challenged, the whole of the instructions, argument of counsel, and the jury’s findings. (People v. Holt (1997) 15 Cal.4th 619, 699; People v. Franco (2009) 180 Cal.App.4th 713, 720.) Reversal is not required unless it is reasonably likely the jury misunderstood and misapplied the court’s instructions to appellant’s detriment. (People v. Smithey (1999) 20 Cal.4th 936, 963-964.) Here, during closing arguments defense counsel argued transitory possession, telling the jury without objection that the People’s argument was limited to a showing “that Mr. Bessette was moving his hands in the area where the drugs were found, and that’s true. It’s not being contested. Mr. Bessette was moving his hands, but he wasn’t hiding anything. He was nervous, as any of us would be if you were in a car pulled over by the police and someone had just thrown a bag of drugs into your lap.” Defense

counsel added: “[Bessette] has to possess the drugs, and he didn’t. Okay. If I throw you something right now, that doesn’t mean you possess it. That doesn’t mean you have control over it. . . . It is not about whether he can reach over and grab it. Okay. Like I could reach and grab this notebook. That doesn’t mean I have dominion and control, just because I can.” Based on counsel’s remarks, the jury was fully aware of Bessette’s defense that he did not possess the drugs. If it had any reasonable doubt on this point it would have acquitted him. However, in light of its guilty verdict, we may reasonably assume it found Bessette’s testimony not credible. Assuming error, it was harmless beyond a reasonable doubt under Chapman v. California (1967) 386 U.S. 18, 24.

II.

No Abuse of Discretion in Excluding Evidence of Bessette’s Purported Assault

Bessette contends the trial court abused its discretion “when it excluded evidence that [he] was physically assaulted and labeled a ‘snitch’ shortly before the jury trial because it was highly relevant to his credibility as a witness,” thus depriving him of his constitutional right to a fair trial. (Capitalization omitted.)

A. Background

During direct examination of Bessette, defense counsel sought to elicit testimony regarding the cause of Bessette’s black eye and swollen arm. The prosecutor objected on relevance grounds. Defense counsel argued: “The relevance is to [Bessette’s] state of mind, the fact that he’s [on the witness stand], nervous, his voice is shaking. I believe the prosecutor is going to get up and say [Bessette’s] lying, and an alternate explanation for that is he’s afraid.” Defense counsel sought the court’s permission to question Bessette about his injuries stemming from an assault. The prosecutor again objected: “It is irrelevant as to showing any kind of state of mind at this point, that he got beat up last Thursday. [¶] As far as the facts in this case go, the jury is well aware of his physical appearance. They’re looking right at him. Bringing in unsubstantiated claims that he’s been beaten up for whatever reason, no police reports were brought forward, no corroboration that this was done in any malicious purpose pertaining to this case, it’s inflammatory as far as the People’s case, because it’s all completely unsubstantiated, so you know, I think I would object to all questioning concerning his physical appearance. [¶] This trial happened weeks later and we don’t know if he punched himself in the eye, to be honest with you, and to just make the jury sympathetic. I don’t find it appropriate.” The court sustained the objection under Evidence Code section 352: “I don’t see the relevance of it. He’s in construction. A million things can happen that cause you to get injured.”

Thereafter, the prosecutor asked Bessette if he was “afraid of testifying that these drugs belonged to Contreras.” Bessette answered in the affirmative, explaining that he did not want “to be classified as a snitch or a rat”; adding, “[b]ecause you get beat up, hurt. I live with my mom. I would hate for anything to happen to my mom’s house because of something that I had said or done.” Bessette also testified his right eye and right hand were injured.

B. Applicable Law

The trial court has “broad discretion under Evidence Code section 352 ‘to exclude even relevant evidence “if its probative value is substantially outweighed by the probability that its admission will . . . create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” ‘ ” (People v. Merriman (2014) 60 Cal.4th 1, 60.) “An appellate court reviews a court’s rulings regarding relevancy and admissibility under Evidence Code section 352 for abuse of discretion. [Citation.]

We will not reverse a court’s ruling on such matters unless it is shown ‘ “the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.” ‘ ” (Id. at p. 74; see People v. Vargas (2001) 91 Cal.App.4th 506, 545, 543 [trial courts “have wide discretion in determining the relevancy of evidence”; no abuse of discretion under Evidence Code section 352

unless the court ” ‘ “exceeds the bounds of reason, all of the circumstances being considered” ‘ “].)

C. Analysis

The court did not abuse its discretion by excluding the proffered testimony regarding the cause of Bessette’s recent injuries as irrelevant to the charges of possession and transportation of methamphetamine for sale. Under Evidence Code section 352, any probative value of testimony regarding the source of Bessette’s injuries would be outweighed by prejudice. It would require a time-consuming trial within a trial, because witnesses to the assault would have to be called to testify, and possibly confuse the jury. Further, there was no constitutional violation. (See, e.g., People v. Abilez (2007) 41 Cal.4th 472, 503 [discretionary evidentiary ruling did not violate right to present a defense]; People v. Gurule (2002) 28 Cal.4th 557, 620 [ordinary rules of evidence generally do not infringe on the right to present a defense; argument that restricted cross-

examination violated rights to confrontation, due process, and a fair trial rejected]; People v. Cunningham (2001) 25 Cal.4th 926, 999 [exclusion of defense evidence on a subsidiary point is not a deprivation of due process].)

As for the collateral matter of Bessette’s fear of retaliation for his testimony, which might have impacted his credibility, the court permitted him to testify he was nervous, afraid of being labeled a snitch, and that individuals who are considered snitches get beat up, and he feared for his and his mother’s safety. Such testimony sufficed to address the credibility issue.

IV.

No Cumulative Error

Bessette contends the cumulative impact of the trial court’s errors requires reversal. “Under the ‘cumulative error’ doctrine, errors that are individually harmless may nevertheless have a cumulative effect that is prejudicial.” (In re Avena (1996) 12 Cal.4th 694, 772, fn. 32.) ” ‘[A] series of trial errors, though independently harmless, may in some circumstances rise by accretion to the level of reversible and prejudicial error.’ ” (People v. Cunningham, supra, 25 Cal.4th at p. 1009.)

Since we have found none of Bessette’s claims of error prejudicial, a cumulative error argument cannot be sustained. No errors occurred, which whether viewed individually or in combination, could possibly have affected the jury’s verdict in this case. (Accord, People v. Martinez (2003) 31 Cal.4th 673, 704.)

DISPOSITION

The judgment is affirmed.

O’ROURKE, J.

WE CONCUR:

McCONNELL, P. J.

BENKE, J.