Statements made by trial court during sentencing hearing suggest it did not understand the breadth of its discretion to strike enhancements in furtherance of justice. A jury found Lua guilty of transportation for sale of a controlled substance (Health & Saf. Code, § 11379, subd. (a)) and simple possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)). Prior drug convictions and prior prison term enhancements were found true. Lua raised a number of issues on appeal, including that the trial court abused its discretion by failing to understand the scope of its sentencing discretion to strike one or more of the prior drug conviction enhancements (Health & Saf. Code, § 11370.2). Held: Remanded for resentencing. Penal Code section 1385 gives a judge the discretion to dismiss or strike a sentencing enhancement, or to strike the additional punishment for the enhancement, in furtherance of justice. In the present case, portions of the record reflect the trial court was aware of its discretion to strike a sentencing enhancement. For instance, it struck an on-bail enhancement (Pen. Code, § 12022.1) at the prosecution’s request. Other parts of the record suggest the trial court did not understand the breadth of its discretion, because it characterized the sentence it imposed (17 years) as “the lowest sentence possible,” and “the minimum.” The appellate record does not make clear that the trial court recognized it had the discretion to strike one or more of the section 11370.2 enhancements. “In the face of such an ambiguous record, it is appropriate to remand the matter to the trial court to consider the matter under the correct standard, to the extent it has not already done so.” [Editor’s Note: The court also noted that the trial court stayed the sentences associated with three prior prison term enhancement allegations that had been found true and that this was unauthorized. (See People v. Langston (2004) 33 Cal.4th 1237.)]

Standing alone, CALCRIM No. 2300 (the jury instruction regarding transportation of a controlled substance) may not adequately explain the specific intent element of the offense, but there was no prejudicial error in this case. Lua argued the instruction regarding transportation of a controlled substance (CALCRIM No. 2300) did not properly explain the requirement that he not only intended to transport the drug, but intended to transport it for sale. The giving of this instruction was not prejudicial error. Effective January 1, 2014, Health and Safety Code section 11379 was amended to limit the meaning of “transports” under the statute to transportation “for sale.” The jury instruction for section 11379 offenses was modified to reflect the 2014 amendment to the statute by inserting the words “for sale” after the word “transported.” However, this instruction does not list as a separate element of the offense that, when the defendant possessed the controlled substance, he intended to sell it, as do analogous instructions for other offenses with an identical “for sale” element. (See CALCRIM No. 2302, 2352.) “[I]t is at best questionable whether, standing alone, the instruction adequately explains the specific intent element of the offense.” However, Lua’s jury was also instructed the offense required specific intent. (See CALCRIM No. 251.) Correlating the two instructions, the jury would have understood the prosecution was required to prove that Lua intended to transport a controlled substance “for sale.” [Editor’s Note: The court noted that the Judicial Council “should consider conforming the standard instruction for transportation for sale offenses under section 11379 to the instructions for other offenses with an analogous ‘for sale’ element.” The court added that, “unless and until the standard instruction is amended, trial courts should consider modifying the instruction to be more explicit regarding the required intent.”]

The trial court did not fail to adequately answer jury questions during deliberations. During deliberations the jury asked three questions. Lua argued that the trial court abused its discretion in violation of Penal Code section 1138 by failing to adequately respond to these inquiries. However, the trial court responded as required. The first note asked what the jury should do if it could not reach a verdict. The court instructed the jury to reach a verdict if possible and provided instruction on general methods to facilitate deliberations. The third note asked for definitions of two terms, and the court appropriately directed the jurors to the jury instructions where the definitions could be found. The second note pointed out that the verdict form for simple possession of a controlled substance included the words “for sale,” while the verdict form for transportation of a controlled substance omitting those same words. The court provided a corrected verdict form for simple possession. It was not required to correct the verdict form for the transportation offense because the description of the offense was not erroneous (see below).

The verdict form for the transportation count, which omitted the words “for sale” in the description of the offense, was not erroneous. The verdict form for the section 11379, subdivision (a) count identified the offense as “transportation of a controlled substance” instead of transportation for sale. “In general, a verdict form need not restate the legal principles provided in proper instructions,” although it may not state principles that are contrary to the instructions. The verdict form for the transportation offense simply identified the offense charged; it did not set forth any legal principles. The verdict form tracked the language of the statute and was adequate, even if “transportation for sale of a controlled substance” is a more complete description.

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/E064038M.PDF